Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 17, 1965

155 N.L.R.B. 999 (N.L.R.B. 1965)

MONTGOMERY WARD & CO., INC. 999
Montgomery Ward & Co., Inc. and Retail Clerks International
Association, Retail Clerks Union Local 24, AFL-CIO. Case No.
27-CA-1720. November 17,1965
DECISION AND ORDER
On August 1'7, 1965, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist, therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel and the Respondent filed excep-
tions to the Trial Examiner's Decision and supporting briefs, and the
Respondent also filed an answering brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and,Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom.-
mendations of the Trial Examiner, with the following modifications.
The Trial Examiner found, and we agree, that, following an eco-
nomic strike, the Respondent discriminatorily refused to reinstate
employees Mary Schaffer and Ruby Sheppard, in violation of Section
:8 (a) (1) of the Act. There is no exception to the findings as to
Sheppard.
The Trial Examiner,rejected the Respondent's contention that
Schaffer had engaged in misconduct on the picket line which war-
ranted the Respondent in denying her reinstatement.
The incident in question involved an argument between Schaffer and
Howell, a woman customer of the Respondent's store. As the Trial
Examiner found, when Howell approached the picket line, another
woman picket "and probably Schaffer, asked her, in substance, to
please respect the picket line and not to go through it." The Trial
Examiner characterized what was said as "an appeal, an attempt to
persuade." When Howell said that she "certainly" was going into the
store, Schaffer again appealed to her not to do so. As the Trial Exam-
iner found, Howell "replied with asperity, in substance, that she did
155 NLRB No. 87.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
not belong to the Union and would buy where she pleased and that
`the likes of you' _ were not going to stop her and that she did not give
a damn if you starve to death." Although Schaffer denied it, the Trial
Examiner found that , in the ensuing argument, Schaffer used some
profane language.
The Trial Examiner nevertheless concluded , on the basis of the
facts that Schaffer was engaged , at the time this occurred , in a pro-
tected concerted activity ; that this was the only incident of misconduct
during the strike , which was in effect from May 14 to November 27,
1964; and that Schaffer had never, in the 12 years she had been
employed by the Respondent , used any improper language to a cus-
tomer, that Schaffer was entitled to reinstatement . We agree. Even
if, as the Respondent contends, picket-line conduct directed to an
employer's retail customers should be , required to meet a, higher stand-
ard of propriety than when directed to other employees, we do not
find under the circumstances of this case that Schaffer 's conduct in
response to Howell's provocation warrants a denial of reinstaternent.1
Although the Trial Examiner recommended 'Schaffer's reinstate-
ment, he was of the opinion that some ' penalty should be imposed
against her, and recommended that the period during which she was
entitled to backpay be reduced by 60 days . The General Counsel has
taken exception to this recommended penalty. We find merit in these
exceptions . Vindication of the public policy which the Board enforces
generally warrants an award of backpayto strikers who have been
unlawfully denied reinstatement; 2 and we see no warrant in the facts
of this case for ordering less than full remedial relief. We shall
therefore require the Respondent . to make Schaffer whole for the entire
period of its unlawful refusal to reinstate her.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the , National Labor Relations Board hereby orders that the
Respondent , Montgomery Ward and Co., Inc ., Pueblo, Colorado, its
officers , agents , successors , and assigns , shall :
1. Cease and desist from discriminating against any of its employees
because of their concerted activities , or in any like or related manner
interfering with, restraining , or coercing its employees in the exer-
cise of their rights guaranteed under Section 7 of the Act.
i See N.L.R.B. v. Thor Power Tool Co., 351 F. 2d 584 ( C.4. 7), involving an obscene
remark by an employee grievance committeeman to a company official following a grievance
meeting, where the Court held that "not every impropriety committeed during [such]
[Section 7] activity places the employee beyond [the] protective shield of the .. .
Act . . . . [The ] [ e]mployee's right to engage in concerted activity may permit some
leeway for impulsive behavior . . . 21
2 See Phelps Dodge Corp . v. N.L.R.B., 313 U.S. 177 at 197-198.
MONTGOMERY WARD & CO., INC. 1001
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Mary Schaffer and Ruby Sheppard immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may have suffered
as a result of the discrimination against them in the manner set forth
in the section of the Trial Examiner's Decision , entitled "The Rem-
edy," as modified by this Decision and Order.
(b) Notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with they Selective Service Act and
the Universal Military Training and Service . Act of 1948 , as amended,
after , discharge from the Armed Forces.
(a) Preserve and, upon request , make available to the Board or its
agents, for examination and copying , all payroll records , social security
payment records and reports , timecards , and all other records neces-
sary to analyze the amount of backpay due said employees.
(d) Post at its place of business in Pueblo , Colorado, copies of the
attached notice marked "Appendix" 3 Copies of said notice, to be
furnished by the Regional Director for Region 27, shall, after being
duly signed by the Company 's authorized representative, be posted by
the Company 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. , Reason-
able steps shall be taken by the Company to insure that said notices are
not altered , defaced, or covered by any other material.
(e) Notify the Regional Director for Region 27, in writing, within
10 days from the date of this Order , what steps have been taken to
comply herewith.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discriminate against any of our employees because
of their concerted activities , or in any like or related manner
interfere with, restrain , or coerce our employees in the exercise
of their rights guaranteed under Section 7 of the Act.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Mary Schaffer and Ruby Sheppard immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings they may
have suffered as a result of the discrimination against them.
MONTGOMERY WARD & CO., INC.,
Employer.
-Dated---------------- By--------------------------------------
(Representative) (Title)
NoiE-We will notify the above-named employees if presently serv-
ing in the Armed Forces of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
,other material.
Employees may communicate directly with the Board's Regional
'Office, 609 Railway Exchange Building, 17th and Champa Streets,
Denver, Colorado, Telephone No. 297-3551, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The charge of unfair labor practices in- this case was filed by the above-named
Union on December 2 , 1964. The complaint issued under date of March 29, 1965.
The issue arose over Respondent 's refusal , on the ground of alleged misconduct on
the picket line, to reinstate two striking employees , Mary Schaffer and Ruby Shep-
pard, after conclusion of an economic strike. More precisely , the issue is, did
'Schaffer and Sheppard engage in the asserted misconduct and, if so, was the miscon-
duct such as to disqualify them from reinstatement . With all parties represented,
the matter was tried at Pueblo, Colorado; on May 6, 1965 , before Trial Examiner
Ramey Donovan.
FINDINGS OF FACT
I. JURISDICTIONAL FACTS
Respondent is a nationally established merchandising corporation. Respondent's
Pueblo, Colorado, retail store is involved in this proceeding. As admitted in Respond-
ent's answer to the complaint, the Board's jurisdiction is established herein and it
is so found. The Union is likewise, admittedly, a labor organization within the
meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary factors
From May 14 to November 27, 1964, the Union engaged in an economic strike
:and picketing against Respondent's Pueblo, Colorado, store. The parties agreed, in
November 1964, to conclude the strike and picketing, and to reinstate the striking
,employees. Pursuant to the aforesaid strike termination, Respondent reinstated all
strikers except two, Schaffer and Sheppard. Respondent refused to reinstate these
-two employees because of alleged misconduct an the picket line in June 1964. No
claim is made by the General Counsel and no evidence indicates that the alleged mis-
MONTGOMERY WARD & CO., INC. 1003
conduct was a pretext used by Respondent to discriminate against two employee union
leaders. Indeed, the alleged discriminatees are not shown to be distinguishable, from
the standpoint of union activities, from other reinstated strikers. Nor is a claim
made or evidence adduced to indicate that either of the two customers, who accused'
Schaffer and Sheppard, respectively, of misconduct on the picket line, were agents
provocateurs or in league with Respondent or that they were instigated by Respond-
ent. We therefore have as the pertinent legal doctrine in this case, the following
principal enunciated by the United States Supreme Court: 1
.. § 8(a)(1) is violated [despite the employer's good faith] if it is shown that
the discharged employee was at the time engaged in a protected activity, that the
employer knew it was such, that the basis of the discharge was an alleged act
of misconduct in the courts of that activity, and that the employee was not, in
fact, guilty of that misconduct.
An essential ingredient of the foregoing principle is that the misconduct itself,.
in a particular case, is misconduct that would justify the discharge of the perpetra-
tor. For instance, if the misconduct is the alleged unprovoked shooting by a picket
of a supplier coming to a struck plant, the sole issue is whether or not the picket did
the shooting. But, if the alleged misconduct is a statement, allegedly made about
nonstriking employees by a picket to the effect, "There go the strikebreakers and
scabs," there are two issues. One, whether the picket did in fact make the alleged'
statement, and, two, assuming that the responsibility of the picket is established, the
question remains whether the statement disqualified the picket from subsequent
reinstatement because his statement constituted misconduct that removed the picket
from the statutory protection otherwise accorded picketing.
B. Mary Schaffer
On the morning of June 5, 1964, there had been a meeting in Pueblo between union
and company representatives. In addition to the representatives of the respective
groups, a substantial number of employee strikers had apparently been present as
spectators or as interested onlookers in the union hall where the above meeting was.
held. There is no evidence of any participation by the spectator group in the dis-
cussions that took place at the meeting. Schaffer was among the spectator group.
Evidently the June 5 meeting represented an attempt to settle the strike. The-
meeting was not successful from this standpoint and later, the same morning, the
pickets returned to their picket stations at the store. It is clear that Schaffer and
other strikers were disappointed and peeved over the unsuccessful outcome of the-
meetings and Schaffer admittedly felt that the fault lay with the Company.
On this particular day, Schaffer and two other women, Magan and Giannetta, were
picketing at a side entrance to the store located on Third Street. The main, customer
entrance to the store was on Main Street but the Third Street entrance was also used
by customers as well as by store employees.
In the late morning of June 5, Helen Howell, a housewife and resident of Pueblo,
emerged from a store on Third Street that had an entrance, nearly opposite but across.
the street (Third Street) from Respondent's Third Street entrance.2 Howell walked'
across the street to Respondent's Third Street entrance intending to enter the store-
to make a purchase .3
From this point on, there are sharp. conflicts in testimony as to what occurred.
Howell testified that as she approached Respondent's entrance the pickets told her
not to go in. She replied that "I don't belong to the Union and I can buy where I'
want to." Thereupon, "Mrs. Schaffer flew off the handle and raised her temper and
called me a dirty bastard." Howell told Schaffer that she was going to find out her-
name and Schaffer said, "Oh, you God damn son of a bitch." Howell then went
into the store, found the assistant manager, Coleman, and asked him who the woman
was who cursed her. Coleman came "upstairs" and identified the picket to Howell
as Mary Schaffer. Howell then telephoned the police and, upon being advised of
the necessary procedure by the police, Howell, on June 5, filed a "City Complaint
1 N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21.
2 As disclosed in the record , I, accompanied by the court reporter , viewed the outside
of Respondent's premises on Main and on Third Streets and the adjacent area.
s According to Howell, she and her husband planned to purchase a pump. Her husband'
had gone to Respondent's store, while his; wife stopped at the store across the street. She-
then went to Respondent's store to join her husband on the pump purchase.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against Schaffer and caused a summons to issue. The complaint charged violation
of a city ordinance against profane, obscene, or offensive language to another per-
son, or in a public place.4
Schaffer testified that on June 5 when Howell was approaching the entrance to the
store, Schaffer said to her, in a normal tone, "You aren't going in there, are you?"
Howell said that she certainly was, going in, and Schaffer said, "We just came from
the negotiations and they [the Company] treated us like dogs, they ignored us ...."
Howell replied that this was America and that she could shop wherever she wished.
Schaffer told her "to get the hell in there and do her buying and shut up." Accord-
ing to Schaffer, she believed that someone, other than herself, said something about
taking the bread off the table and Howell remarked about not giving a damn if they
had bread or not.
The following witnesses, who were employee-strikers on June 5, also testified
regarding the Howell-Schaffer incident: Magan and Giannetta, as previously men-
tioned, were picketing the Third Street entrance with Schaffer on June 5. Strain was
picketing an adjacent area of Respondent's store on Third Street; and Ahlers came
to the Howell-Schaffer scene toward the end of the incident.
Magan states that Schaffer initially said to Howell, in a normal tone, that "we
would appreciate it if you didn't cross our picket line." Howell said that she had
traded with Wards for years and that "the likes of you is not going to stop me."
Magan testified that Howell referred to Schaffer by some insulting term that she
could not remember but stated that the term might have been "streetwalker." Magan
states that quite a bit was said by the two women but that she could not remember
what it was. She heard no swearing or language of the type described by Howell in
her testimony.
Gianetta, an employee of Respondent since 1958, testified that when Howell
approached and was going through the picket line of herself, Schaffer, and Magan,
Giannetta said, "Mam, would you respect our picket line and not go through our
picket line." Schaffer also asked Howell to pleaserespect the picket line and not go
through.5 Howell replied that she "would do what she damned please," then went
insidethe door, came right back, and said that she would do "as she god damned
pleased [and said] I don't give a God damn if you starve to death." At this point
Schaffer said, "Well, I'll be God damned, she don't care if we starve to death."
Gianetta told Howell to "get in the store and get the heck out of here." The witness
did not hear the term "streetwalker" and said that she did not hear everything that
was said. She stated that Howell "did all the cussing," including such terms as "bas-
tard" and "s.o.b."
4 The matter was heard before a municipal judge on June S. Schaffer pleaded not guilty.
Howell and Schaffer testified, as well as two of Schaffer's fellow pickets, Magan and
Giannetta. The judge found Schaffer :guilty and fined her $15. Schaffer's attorney filed
an appeal and the matter was evidently scheduled to be tried before a jury in October 1964.
Moore, the assistant city attorney at the time, testified that, "based on my knowledge of
the circumstances of the Municipal Court case" and having considered that there would be
three witnesses for the appellant against one witness (Howell) and that the matter would
be heard by a jury, he informed Howell that it would not be advisable to pursue the mat-
ter further. He pointed out that the issue "was not a very grave one" and that Schaffer
had been sufficiently punished. Howell agreed to drop the matter. Moore then entered
into a stipulation with Schaffer's attorney whereby the case was dismissed with prejudice,
each party paying her own costs. Appellant's appeal bond of $30, double the amount of
the fine, was remitted to appellant according to the stipulation and, according to Moore;
this meant that the fine, which had been held by the court pending appeal, was remitted
pursuant to the stipulation for the remittance of the $30. Respondent's store manager,
MacArthur, on June 5, had heard about the Howell-Schaffer incident from the assistant
manager. As far as the record discloses, the extent of the latter's knowledge was that a
woman named Howell had asked him the name of the picket who had cursed her and after
Howell pointed out Schaffer the assistant manager said that her name was Mary Schaffer.
The original trial, on June 8, was publicized in the local press and MacArthur was aware
of the conviction. He testified that he was not aware of the appeal and of its disposition
and stated that he did not believe there had been any publicity regarding the appeal
aspect. MacArthur had made no independent investigation of the Howell-Schaffer incident
and apparently the Company's position regarding Schaffer was first made known in Novem-
ber 1964, when the matter of reinstatement of strikers arose.
5 One of the few aspects that is not controverted is that the pickets at no time blocked
the physical access of Howell to the store entrance and It appears that Howell walked
through the general area of the picket line and that most if not all conversation thereafter
occurred when she was within touching distance of the entrance door.
MONTGOMERY WARD & CO. , INC. 1005
Ahiers, an employee of the Company for 2 years, testified that he was around at
the side of the building onJune 5 when someone , unidentified, yelled to. him, "Bill,
get around to the side, there is trouble." Ahlers proceeded immediately to the side
entrance and arrived to see Howell going through the door into the store. At the
same time he heard Schaffer say, "go on in, no one is stopping you." Schaffer
was mad, according to Ahlers, and he heard her also say, "don't you call me a son
of a bitch."
Strain, who had worked for Respondent beginning in 1945 and who was employed
at the store in 1964 and at the time of the hearing, testified that she was picketing the
area on Third Street adjacent to the area picketed by Schaffer, Giannetta, and
Magan on June 5. She came up to the area of the entrance in time to hear Howell
say to Schaffer, as Howell was going in, "I don't give a God damn, if you starve."
Schaffer replied, "if that's the way you feel, I don't give a God damn, you go into
the store and buy whatever you want."
In addition to their appearances on the witness stand and their demeanor and
testimony, and the inherent probabilities and improbabilities of various phases of
the evidence, including. apparent consi stencies and inconsistencies, I have before me
some very limited background evidence regarding the two principal protagonists,
Howell and Schaffer. At some location, not disclosed by the record, Howell testi-
fied that she worked for Montgomery Ward in 1930 and 1931. Other than as a
-customer she had no other connection with Respondent. She testified that when she
was on the west coast, date undisclosed, she had been a member of a union but had
taken a withdrawal and was in good standing. These very limited factors would
indicate no reason for presumed partiality toward Respondent vis-a-vis a union or
corresponding hostility toward the Union and its activities. By the same token, her
-onetime membership in some union, under undisclosed circumstances, can warrant
no conclusion as to any partiality or hostility or neutrality regarding union activi-
ties. If anything, Howell's. own version of the June 5 incident would indicate that
-she did not subscribe to the tenet of many union-oriented people that a picket line
should be respected. Regardless of what was said or not said, it is apparent that
Howell had every intention of going through the picket line on June 5. Whatever
her views and opinions, Howell was entitled to hold them and I mention the fore-
going factors simply to neutralize the possible drawing of weighty inferences, bear-
ing on credibility, either from the fact that she had once worked for the Company
and was therefore partial to the Company vis-a-vis the strike and picketing; or an
inference that because she had been a union member she was therefore partial to
the strikers and that if she accused a striker of misconduct the accusation carried
great weight because of her own former union affiliation. The evidence regarding
the foregoing Howell background is too limited and there are too many unknown
factors to warrant my relying on the oversimplified types of inferences indicated
above.
The background evidence regarding Schaffer is also limited. She was a company
employee for 12 years at the time of the strike. Schaffer was a satisfactory employee
with no record of improper conduct toward customers or fellow employees. As
'Store Manager MacArthur testified, the work in the store entailed daily contact
with people and the Company regarded good conduct and a good atmosphere as
essential. Schaffer had evidently fulfilled such requirements during her 12 years of
employment. Schaffer admitted that she was outspoken and that she did use words
like "damn" and "hell' but denied that she used profanity of the type attributed to
her by Howella After careful consideration I reconstruct the events of June 5 as
'follows:
Initially, let it be stated that my appraisal of Howell and Schaffer was that they
-were both in the area of middle age and both physically and mentally alert and
-articulate. Howell was the taller and larger woman but from the standpoint of a
verbal exchange my estimate was that both were well able to take care of them-
selves. I believe that neither Howell nor Schaffer was, in the vernacular, one that
took much or any "pushing around" or any adverse infringement upon her personal
qualities or personal point of view.
When Howell came to the immediate vicinity of the pickets in the area of the
Third Street entrance, it is my opinion that Giannetta and Schaffer asked her in a
normal tone of voice to respect the picket line and not go through into the store.
I believe that Schaffer and the other pickets, owing to the lack of success in nego-
tiations with the Company, were disappointed and irritated by the failure to nego-
tiate a settlement . But the most apparent and effective outlet for the pickets' irri-
tation against the Company was a successful strike that would in turn depend upon
e Howell testified that she herself does not use profanity.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an effective appeal to customers not to patronize the store. The appeal to the cus-
tomers, as far as the pickets were concerned, was through their own activity as pick-
ets whereby, customers were to be persuaded not to cross the picket line. I believe
therefore that the initial approach to customers nearing the picket line was an
appeal, an attempt to persuade. There is no evidence of mass picketing or violence
,on the picket line during the course of, the instant strike and this confirms my belief
that on June 5 the appeal to Howell was one of persuasion. Certainly, alienation of
the customer, before she entered the store or finally determined to, do so, was not
intended, since the very purpose of the picketing would be thereby defeated.
I am not convinced that after being asked or told by the pickets not to go in the
store Howell was thereupon and forthwith called a "dirty bastard" by Schaffer when
Howell simply said that she was not a member of a union and could buy where she
pleased. This is Howell's version, and in my opinion it portrays a few brief words
between Howell and Schaffer including an epithet out of all proportion to the provo-
cation or lack of provocation. Howell's version would also indicate minimal effort
on the pickets' part to persuade rather than to insult and to antagonize. I am of
the opinion that there was a considerable interchange of words between Howell and
Schaffer. The encounter was such that it drew a group of people around the scene
and it was this convergence that attracted the attention of Strain who was picketing
an adjacent area. The encounter was sufficiently long to allow someone to go
around the corner of the building to inform Ahlers that there was trouble at the
Third Street entrance and to enable Ahlers to arrive in time to still hear the last part
of the argument. Schaffer testified that more was said than she could remember.
In view of all these factors, I believe that the Howell-Schaffer exchange was much
more of a word Pest than Howell's testimony would indicate.
Further reconstructing the event from the evidence, my opinion is, as mentioned,
that when Howell approached the picket line, Giannetta, and probably Schaffer,
asked her in substance to please respect the picket line and not to go through it.
The effort was to persuade a customer to withhold patronage from the picketed
store. I believe that Howell proceeded through the picket line and had reached
the door of the store when Schaffer said "You aren't going in there, are you?" and
Howell said that she certainly was. Schaffer, then proceeded, in a further effort to
evoke sympathy and to persuade, to state that "We just came from the negotiations
[with the company, and they treated us like dogs, they ignored us ...." It is pos-
sible that some mention was made about taking the bread from the table by going
through the picket line although, this is uncertain. In any event, I believe that How-
ell, having been made the center of attention of not only the pickets but of some
others, and resenting the situation, replied with asperity, in substance , that she did
not belong to the Union and would buy where she pleased and that "the likes of
you" were not going to stop her and that she did not "give a damn if you starve to
death." Instinctively, under all the circumstances, the reference to "the likes of you"
was taken by Schaffer as a personalized attack upon herself with the implications
that two irate and resolute women might well read into the remark or might intend
by the remark. This was the first personalized type of reference that occurred in
the fracas and it was followed by at least a type of semi-personalized remark, "I
don't give a damn if you starve to death." This latter remark also additionally con-
veyed an attitude and expression of open hostility. In any event , I am of the
opinion that Schaffer reacted strongly and called Howell a "bastard" or a "dirty
bastard." Howell, in substance , said that she was going to find out who Schaffer was
and by implication indicated that she was not going to let the matter drop. I believe
that Schaffer probably called Howell a "s.o.b." and told her in substance to go in
the store and buy it out for all she cared. I am not persuaded that Howell made up
her allegations of Schaffer's profanity although Howell's version of the details of the
incident was, in my opinion, oversimplified. I do not believe that Howell used pro-
fanity, such as "s.o.b." and so forth in the course of the argument.
Contending that it had a "bearing on the issue that might have provoked the
June 5 incident," apparently because it allegedly gave an indication of Howell's nature
and her contentiousness, the General Counsel introduced evidence regarding events
following June 5.
Schaffer testified that on June 6, while: she was picketing, Howell was parked in
front of the store and that Howell went in and out of the store at least three times
in front of Schaffer. Johnson, an employee of Respondent since 1937, testified that
the day after June 5, or a few days later, she observed Howell going in and out of
the store three or four times one morning. Childress, an employee for 15 years, tes-
tified that after the June 5 incident she observed Howell coming to the store "day
after day ... going in and out of the store" with never any packages in her hands.
MONTGOMERY WARD & CO., INC. 1007
;Schwerk, a 17-year employee, testified that "a day or so" after June 5 she observed
Howell "going in and :out of the store" without packages but that Schwerk did not
"stop to count" the number of times this going in and out occurred. Strain, an
employee previously referred to, testified that on the day after June 5 she saw Howell
emerge from a car parked in front of the store and go in and out of the store twice;
2 days later, Strain saw Howell going in and out of the store;, on, neither of these
days did Strain observe. Howell carrying packages. Horton, who commenced work-
ing for Respondent in 1960 or 1961, testified that within 3 days after June 5, she was
picketing and she saw Howell "just walking up and down the street, back and forth,
across, and in and out of the store." Horton observed no parcels in Howell's hands
but she stated that she saw Howell "just kind of sarcastically smiling at the pickets."
Howell testified that the day after June 5, or 2 days after, she went to the store
to seek employee Chappero who had entered the store on June 5, going through the
door while Howell and Schaffer were having their interchange. Howell testified
that Chapperohad said that he had heard part of the argument and that she was
seeking to enlist him as a witness on June 6 or 7• Howell also testified that the
pump that she and her husband had purchased on June 5 proved to. be inadequate
and they returned it to the store about a week later. She denied going in and out
of the store repeatedly on these occasions.
Assuming that Howell went in and out of the store on several occasions after
June 5 and did not carry parcels, I regard the evidence on this point as inconclusive
as far as warranting a material conclusion. Moreover, any alleged going in and
out after June 5 was after the June 5 incident about which Howell was admittedly
incensed, since she had promptly reported to the police on June 5 about the incident.
Schaffer's language to Howell was, in my opinion, improper and not justified in
the circumstances. I do not, however, regard this as a situation where a person or
persons, nonstriking employees or customers, simply gothrough a picket line and are
greeted by a shower of insults and abuse by a picket. There was no pattern or other
incident, during a strike in progress from May to November, wherein a customer was
cursed by Schaffer or by any other picketing striker. It appears entirely reasonable
to conclude that, on June 5, before and after the Howell incident, other customers
entered the store and disregarded the picket line without being cursed. However
fretful and annoyed Schaffer may have been on June 5, I have found that she did
not unleash the strong language of June 5 simply because Howell or any other cus-
tomer went through the picket line and expressed an intention to enter the stores
As I view the situation, Howell and Schaffer became embroiled in a personalized
argument precipitated by such remarks as the "likes of you" and, "not caring whether
you starve to death." These remarks did not justify Schaffer's language but I believe
that the disposition of the issues herein should be made, with due regard to all the
factors and circumstances involved.
Before me is the statutory right of Schaffer to engage in protected activity. The
protected activity in this instance is picketing in which the decorum of the drawing
room is not always present. But also before me is the right of private citizens, such
as Howell, to go about their affairs, including patronizing picketed stores, without
being subjected to abusive language such as is here involved. The right of the
employer to preserve vital customer relationships by barring from its employ those
employees who insult or abuse customers and thus frustrate the customer relation-
ship is also. involved.
I find that Schaffer was engaged in a protected activity in picketing on June 5. I
do not believe that her abusive language, under the circumstances previously
described, was such as to remove her completely from statutory protection. I there-
fore find that Respondent's refusal to reinstate Schaffer was in violation of Section
8(a)(l) of the Act.
However, because of the tripartite interests involved in the Howell-Schaffer inci-
dent, as set forth above, and because of the particular factual situation, I do not
believe that the remedial proscription follows automatically and withoutflexibility
from a finding of a violation of Section 8(a)(1) herein. Nor do I believe that it
is appropriate in this case to dispose of the Schaffer incident by simply saying that I
do not condone the language used and then accord the same remedy as if not mis-
conduct had occurred.
4 Chappero did not testify in the municipal court case or in the instant case.
s As an employee in Respondent's retail store for 12 years, with no record of Improper
language to customers, Schaffer must have had an adequate amount of self -control since
there is no doubt that retail employees encounter considerable and varied degrees of
provocation from members of the public
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I shall recommend that Respondent offer reinstatement to Schaffer , with backpay
to commence 60 days from the-date in November . 1964, when Schaffer would other
-wise havebeen reinstated , to the date of the offer of reinstatement . I believe thereby
that the policy of the Act and the essence of Schaffer's rights thereunder will be pro -
tected. At the same time I believe that the employer 's legitimate interest in proper
employee-customer relations will be insured in view of the nature of the remedy.
This remedy , in view of Schaffer's 12 years of proper employee conduct toward.
customers , is adequate , in my view, to insure legitimate employer interests . I also,
believe that the rights of customers and members of the public , will be reasonably
insured by the remedy. recommended.
C, Ruby Sheppard
Mrs. Sharon Wolgram was an employee of the local telephone company which was
a unionized establishment. The evidence indicates that Wolgram was a member of
the Union. Prior to June 27, 1964, Wolgram had given notice to her employer of her-
intention to quit her employment and on June 27 she had only a few more days before
her employment was to cease.
On June 27, Wolgram came to the principal entrance, the Main Street entrance, of
Respondent's store to take care of some details of a purchase she had previously
made. There was three pickets at or in the immediate area of the store entrance,
Coke, Sheppard, both striking employees, and Codena,a 17-year-old youth who was-
substituting as a picket for his brother, a striker. Sheppard was nearest to the entrance
when Wolgram proceeded to the door.
Wolgram testified that she knew who Sheppard was because Sheppard and Wol-
gram'ssister had at one time worked together in another store. This was the extent
of their acquaintanceship.9 Wolgram testified that she had married in February and
on June 27, when she saw Sheppard she remembered that someone, whose identity
she did not recall, had told her that Sheppard was spreading rumors that Wolgram had
"had to get married." According to Wolgram, this intelligence that she had received
about Sheppard spreading rumors came to her "right before, sometime before this
incident [on June 27]" but she was not sure if it was a matter of days or weeks before
June 27. Wolgram further testified that, at the time of the reported rumor, Wolgram's
sister had told Sheppard not to be spreading rumors about Wolgram. Sheppard denied
that she had ever said that Wolgram had to get married or that she had ever told
anyone anything about Wolgram. She also denied that Wolgram's sister had ever,
approached her on the subject.1e
• I have no doubt that Wolgram herself believed that Sheppard had spread rumors
to the effect that Wolgram"had to get married." There can be little doubt that this
belief generated a basic resentment or hostility on Wolgram's part toward Sheppard'
and this latent disposition was further triggered when the two women encountered
each other on June 27.11
Wolgram testified that on June 27 when she was going toward the store entrance,
Sheppard said, "Telephone Company people aren't supposed to go in there." Wol-
gram said nothing and continued toward the door. Sheppard tapped her on the
shoulder and said, "I said Telephone people aren't supposed to go in there." Wolgram
testified that she then told Sheppard, "No Mexican tells me where to go" and kept
walking toward the door. With her back toward Sheppard as she approached the
door, Wolgram states that she was then hit in the back by Sheppard with the picket
sign.12 As she entered the door, Wolgram turned around and told Sheppard that
"Sheppard testified that she knew who Wolgram was but did not know her per-
sonally. She knew Wolgram's sister when they worked together previously. She had
been introduced to Wolgram's mother, apparently in the past, but she had never spoken
to Wolgram.
10 Wolgram's sister did not testify at the hearing.
11As mentioned, both Wolgram and Sheppard testified that neither knew the other
personally although each knew who the other was. Under the circumstances we are
impressed by Sheppard's denial that she had ever spread a rumor that Wolgram had
"had to get married." No reason appears why such a basically vicious rumor should be
spread by one woman about a virtual stranger. I am of course not interested in these
personal matters as issues in themselves in this proceeding but my appraisal is relevant
in evaluating the judgment, credibility, and motivation of the witnesses.
'5'The picket sign was cardboard of poster thickness that was stapled or nailed to
a piece of wood to support the sign and with an area for holding the wood by the picket.
The sign was apparently about 21/ feet square. The picket sign was relatively light and
was carried for hours by a female picket such as Sheppard who was not a large woman.:
MONTGOMERY WARD & CO., INC. 1009
she had not heard the last of this. Once in the store, Woigram reported the incident
to the manager, MacArthur. He asked her if she wished to call the police and she
said, no.
Wolgram testified that she did not seek or secure medical attention and sustained
no bruise from the alleged blow. She told the manager that "it was just a cardboard
sign." She testified that she definitely had felt the blow and that it was, stronger than
a tap on the shoulder. On cross-examination Wolgram stated that she had called
Sheppard a Mexican because she had heard that she was of Mexican descent. She
said that she was angry because Sheppard "had been causing a scene in the middle
of Main Street... everybody was looking at us." 13
Sheppard testified that on June 27, although she did not know Wolgram personally,
she knew who she was, recognized her, and knew that she worked for the telephone
company and was a union member. Because of the latter fact, Sheppard made the
remark that telephone company employees should honor the picket line. I believe
that the statement, concerning which Woigram and Sheppard are in substantial agree-
ment, was made in an audible tone probably slightly above conversational tone. It
was no doubt intended to be heard by Wolgram, the other pickets, and anyone else
in the immediate area. According to Sheppard, Wolgram thereupon said that she
could go in the store any time or any damned time she pleased. Sheppard then said,
that is your privilege, step right in. Sheppard accompanied this with a gesture of her
hand, a sort of wave toward the door in an "Alphonse-Gaston" manner. As. Wolgram
was going in the door she turned and said to Sheppard, "You are nothing but a dirty
Mexican" and went in the store. Sheppard states that at no time did she poke or
strike Woigram with a picket sign or otherwise.
Codena, one of the other pickets, substantially corroborates Sheppard. He states
that he heard Wolgram call Sheppard a dirty Mexican or a black Mexican. He did
not see Sheppard poke or strike Wolgram with a picket sign or otherwise although
he was about 10 feet away at the time y4
Coke, the other picket, also substantially corroborates Sheppard.15 As to the
"Mexican" remark by Wolgrarn, Coke said she did not remember exactly "how she
said it" but it was "shut up, you dirty Mexican or something like this." is
MacArthur, Respondent's store manager, testified that on June 27 Wolgram came in
the store and told him that Sheppard had struck her with a picket sign and asked what
he was going to do about it.17 Although MacArthur stated that Wolgram was "upset
[and] on the verge of tears," he also stated that the conversation was "very calm
and collected." The witness was asked:
Q. Did she [Wolgram] say anything-didn't she tell you, ask you what you
could do about that son of a bitch on the sidewalk?
A. There was conversation of that type. 18
In its brief, Respondent adverts to the fact, that Sheppard never went to the store
manager to deny Wolgram's accusation, as confirmatory of Sheppard's guilt. It is, in
my opinion, by no means clear, as Respondent asserts, that Sheppard was aware of
management knowledge or any management decision around the time of the June 27
13 At another point Woigram was also asked in connection with her calling Sheppard
a Mexican, whether she was angry. She replied:
Wouldn't you be angry if somebody hit you across the back with a sign and made
a public scene?
Q. You call her`a Mexican after she hit you with the sign?
A. I don't remember..
The evidence as a whole satisfies me that it is Wolgram's testimony that it was after
she had called Sheppard a Mexican, that she was struck by the sign.
14 Codena did not know Wolgram or her name. His interest in the affair, since he was
quite young and was a substitute picket and not a striker, appeared relatively meager.
He was mistaken in his recollection that Sheppard was wearing a sandwich picket sign
over her shoulders.
' Coke had been a fellow employee of Wolgram's in another store before Wolgram was
married.
16 Coke did not see any striking of Wolgram or gesture by Sheppard but she admittedly
had resumed her picketing after the "Mexican" remark when Wolgram had started into
the store.
17 The precise extent of the information that MacArthur, according to his testimony„
secured from Wolgram, was that, Sheppard had struck her with a picket sign as she
entered the store and she. asked what was he. going to do about it.
18 Wolgram testified that she also reported the Sheppard incident to her own union
steward at the telephone company.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurrence. Management admittedly. never. asked Sheppard for her version of the
incident (or Schaffer for hers) and there is no evidence that the Union or the
employees were made aware of any management decision not to reinstate certain
employees or that management had made. any such decisions before the latter part of
November 1964. The record establishes that, at the latter date, Respondent asked
the Union to submit a list of strikers who desired reinstatement. It was when the list
was submitted, about the end of November, that the Union and the employees were
apprised of the Company's decision not to reinstate Sheppard and Schaffer because
of alleged misconduct on the picket line:19 Moreover, Sheppard when asked by
Respondent's counsel, "when were you told by anyone that you were not wanted back
as an employee by Montgomery Ward," replied that although she did not recall the
exact date or month, it was when "a list was made [the November list of these strikers
requesting, reinstatement]. and I knew then ... that . . . they didn't want me back."
Around this time Sheppard apparently had some discussionwith a union representa-
tive about the details of the Company's decision and it is evident that the matter of
reinstatement was carried on between the Union and the Company and not on an
individual basis by employees20
In appraising the Wolgram-Sheppard incident I am conscious that the objectivity
of the principal witnesses , Wolgram and Sheppard, as well as, in some degree, Codena
and Coke, is not to be readily assumed. Sheppard is quite clearly an interested party
and some bond of sympathy may be presumed to exist on the part of her fellow
pickets. As a person unconnected with Respondent' s establishment , other than as a
customer, Wolgram would ordinarily be regarded as a person without any personal
or private involvement in a picket line incident. However, the evidence satisfies me
that there was a patent aggrievement or resentment on Wolgram's part toward Shep-
pard because of a recent alleged spreading of a rumor by Sheppard. This rumor was
about what was, in effect, Wolgram's premarital conduct in a rather sensitive area of
Wolgram's reputation. It is evident that Wolgram believed that Sheppard was guilty
of the foregoing and I do not believe that Wolgram was not resentful of the fact.
Prescinding from the question, which need not concern me, whether Wolgram's belief
was justified, it was a de facto belief and most persons would feel aggrieved at such
rumor spreading, indeed whether the rumor was true or not.2i
19 It was stipulated, inter alia, ".. . that at the conclusion of the strike and the strike
settlement [on or about November 27, 19641 the Company at that point refused to offer
employment to Mary Schaffer and Ruby Sheppard , based, from the company 's standpoint,
on the misconduct of these two employees on the picket line, and so informed the
Union ..: '
20 Inasmuch as Respondent has raised the matter of the employee failing to give her
version of a customer complaint to management, it is appropriate to make the following
observation : Experience would indicate that In retail stores and other businesses serving
the general public, complaints by customers regarding conduct of employees (rudeness,
discourtesy, insolence, misrepresentation, and worse) are not unheard of and many retail
stores maintain a complaint department or an established channel for complaints.- It is
unreasonable to assume that whenever a customer lodges a complaint against an em-
ployee that the management ipso facto credits the customer's version and discharges or
otherwise disciplines the employee. What is more normal is that the complaint is inves-
tigated and the employee and other witnesses are requested to furnish their version
before any decision is reached by management. In the case of Sheppard, management
limited itself to Wolgram's account and did not secure even- the details of Wolgram's
version. As to Schaffer, the limit of management knowledge was that Howell asked the
assistant manager the name of the picket who had "cursed" her. There is no evidence
that Howell told the assistant manager or was asked what the "cursing" consisted of or
any other details even though the version would be that of only one party to the incident.
Since Respondent introduced the evidence of Schaffer ' s initial conviction in the munici-
pal court, the implication is that this conviction in June was the basis of its action in
November in refusing to reinstate, albeit in October the case of the City of Pueblo v.
Schaffer was dismissed with prejudice , including remission of the amount of the appeal
bond that included the original $15 fine. Although there is no record evidence on the
point, it is a fair inference that the Union disagreed with and disputed the Company's
announced decision, In the latter part of November, not to reinstate Sheppard and
Schaffer, since, a few days later, on December 2, the instant charge was filed. As far as
appears the Company continued to rest its position upon the limited unilateral evidence
above described.
211 assume that Wolgram , and she so impressed me, was a respectable lady of good
reputation and that her conduct was at all times consistent therewith.
MONTGOMERY WARD & CO., INC. 1011
Wolgram's patent aggrievement against Sheppard was compounded by Sheppard's
action on June 27 in focusing attention upon Wolgram on the main street of the city.
Wolgram's anger and resentment was quickly manifest in her admitted use of the
designation "mexican" in referring to Sheppard. There is no doubt in my mind that
this was intended to be a derogatory reference and that it was a reflection of Wol-
gram's basic resentment against Sheppard.22
It is apparent that whatever feelings Wolgram may have harbored toward Sheppard
before and on June 27, they would not be relevant if Sheppard on June 27 did strike
Wolgram as described by the latter. My appraisal of Wolgram's feeling toward
Sheppard is relevant with respect to the basic credibility issue of what actually did
occur on June 27. Carefulconsideration of the evidence has led me to the following
conclusions and findings:
Sheppard pronounced in an audible tone calculated to be heard by Wolgram and
others in the immediate area of the store entrance (an alcove type of arrangement)
that telephone company people were supposed to honor the picket line and not go
in the store. As Wolgram continued, Sheppard repeated her statement, addressing
herself more directly to Wolgram. Sheppard may have prefaced her second statement
by tapping Wolgram on the shoulder with his finger to insure that Wolgram knew that
she was being addressed directly. Wolgram said, "look, no Mexican tells me where
to go." Whereupon, as Wolgram walked by Sheppard and toward the door, Sheppard
made a waving gesture with one of her hands toward the door. A type of "after you"
or "be my guest" gesture and said, in words or substance, that is your privilege, step
right in. The evidence indicates that Sheppard, a relatively small woman, normally
held her picket sign with two hands. In making her gesture with one hand, it is my
opinion that Sheppard had transferred the picket sign to the other hand. She was
therefore holding a sign that, not so much because of its weight but because of its
configuration, was a somewhat awkward object, something like a sail. 1 believe that
as Sheppard made her little speech, described above, and made her gesture, she
probably took a step or two back as one well might do in keeping with the words
and gesture 23 The gesture itself and its intent may have been accompanied, deliber-
ately or as part of the normal' coordination of tl body with such an arm ges-
ture, by a slight bow or for-ward inclination of the body from the waist up. In any
event, I believe that the gesture of one hand, whether with a,forward 'riclination of
the body or not, but probably with, accompanied by one or two backward steps, with
the other hand of a relatively small woman balancing a slightly awkward object, the
picket sign, resulted in a tilting of the sign that contacted the back of \'Jolgrani as she
passed. Wolgram, of course, admittedly, had her back town r Sheppard at the time
of contact. All she could testify to was the feeling of contact.cf her back with the sign.
As to why Sheppard did not describe the incident in exactly this manner, I regard
it as not improbable that she was unaware of any contact of the sign with Wolgram.
It seems likely that it was the end or top of the cardboard sign that made the contact
since, if Wolgram had been deliberately struck by the wooden board portion of the
sign some mark or bruise might have been evident. The evidence is that the contact
with the sign, although felt by Wolgram, was not a heavy blow24 Further, with a
cardboard poster. about 21/2 feet square, the area occupied by the board was probably
no more than 2 or 3 inches wide, with a height corresponding to the cardboard. The
odds were pronounced that, if the contact was inadvertent, as I believe it was, and was
made when Sheppard was making her semi-obsequious gesture with her other hand, a
portion of the cardboard and not of the wooden-support and handle came into contact
23 Woigram testified that she referred to Sheppard ""-as a Mexican because she had heard
that she was of Mexican descent. Quite clearly Wolgram would not have referred to
Sheppard as an "American" or "Anglo-Saxon" or otherwise by race if she had believed
that Sheppard was of such ancestry. In the United States and in other parts of the
world, where people of different racial ancestry live; in the same community, there is
frequently, among many people, a hierarchy of community. status, not uncommonly :based
on racial origin and other factors. .,As mentioned, Ihave no doubtthat when Wolgram
referred to Sheppard as,a Mexican on the main street in Pueblo she intended that her
contempt for, and anger at, Sheppard be manifested thereby.
a Sheppard testified that she did not remember exactly but "I probably moved -back
and says, step right in."
No witness, including Wolgram, testified to having seen the actual contact or, iIts
nature.
212-809-66-vol. 155-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Wolgram's back. The cardboard being relatively light and thin, flexible and not
rigid, would relay little or no contact sensation,to the human hand on the wooden
handle. Not only would this flexible, light cardboard reflect little sensation upon
contact with an object but it would reflect even less since the object was moving away
from the cardboard when contact was made (Wolgram was proceeding to the door,
had passed by Sheppard, and her moving body, left only her back in the area of con-
tact). Finally, any contact sensation registered on the cardboard upon contact was
diffused and dissipated over a large . area of sound and sensation-deadening paper
cardboard (as contrasted with the transmittal qualities of a thin sheet of metal or
strands of wire if occupying an area comparable to the size of the picket sign). It is
also to be noted that, when Sheppard was making her little speech, telling Wolgram
to step right into the store and accompanying it with a gesture of, one hand, Sheppard's
attention was probably concentrated on what she was saying and on her gesture, which
involved a hand on the opposite side of the body, from the hand that was evidently
holding the picket sign.
If, contrary to -my belief, Sheppard was aware of any contact of the sign with
Wolgram's back in the manner that has been described above, she may, in denying any
contact whatsoever, have proceeded on the theory that an admission that her picket
sign did hit Wolgram's back would be a fatal admission whether the contact was
deliberate or inadvertent.25 In any event, I have stated my conclusion that the sign
did contact Wolgram's back and that it was not deliberate but occured in the general
manner described herein. Under these circumstances I find that the conduct of
Sheppard in the course of protected union activity was not such as to remove her
from the protection of Section 8(a) (1) of the Act and disqualify her from employ-
ment by Respondent and that the "misconduct," in the manner contended by Respond-
ent, did not in fact occur.26
III. THE REMEDY
The remedial action recommended is an offer of reinstatement to Schaffer and
Sheppard to their former or substantially equivalent positions without impairment of
seniority or other rights and privileges. It is also recommended that the employees be
made whole for their loss of pay. The computation in the case of Sheppard to be
made from the date of the refusal to reinstate to the date of the offer of reinstatement,
less intermediate earnings . In the case of Schaffer, the recommended computation
is to be made from the date 60 days after the refusal to reinstate to the date of the
offer of reinstatement, less intermediate earnings . All computations to be made on a
quarterly basis. Consistent with the Board policy, interest at 6 percent is to be added
to the backpay due to the aforesaid employees.
CONCLUSIONS OF LAW
By refusing to reinstate employees Schaffer and Sheppard upon conclusion of the
strike in November 1964, Respondent engaged in and is engaging in a violation of
Section 8 (a)(1) since the conduct of the said employees on June 5 and 27, respec-
tively, the reason for Respondent's refusal to reinstate, was not such as to remove
Schaffer and Sheppard from the protection accorded their picketing activities under
Section 7 of the Act.
[Recommended Order omitted from publication.]
25 Sheppard testified that she did not hit or poke Wolgram with the sign. As wit-
nesses sometimes do, she may have construed the question very literally and in the sense
of affirmative deliberate action (hit or poke) as distinguished from mere inadvertent
contact.
28 As previously noted, Respondent did not investigate the occurrence or know how it
took place, other than Wolgram's statement to MacArthur that Sheppard had hit her
with a picket sign. I can, in this connection, use an extreme example to illustrate a
point. Thus, a customer reports to the manager that a picket twisted her arm at the
entrance to the store. The Company does not investigate and has no information other
than the customer's limited statement. The picket is terminated. It is then established
that the picket did indeed twist the customer's arm as stated but before this occurred
the customer had first hit the picket on the head with a baseball bat and the picket in
defending herself had grabbed the arm and twisted it. It seems unlikely that the ter-
mination could be defended by asserting that it was not disproved that the picket had
twisted the customer's arm.