Shoppers Drug Mart, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1976

226 N.L.R.B. 901 (N.L.R.B. 1976)

SHOPPERS DRUG MART, INC 901
Shoppers Drug Mart, Inc. and Denita Swindell and
Marion Dean . Cases 7-CA-12104 and 7-CA-
12146
November 10, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On August 13, 1976, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed an exception and a supporting 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 exception and brief,
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her 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, Shoppers Drug Mart,
Inc., Sterling Heights, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for the Administrative
Law Judge's notice.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not found herein.
1 The only exception was filed by the General Counsel, pointing out that
the Administrative Law Judge inadvertently failed to include in the notice
to employees the name of Denita Swindell among those entitled to be paid
for wages lost as a result of their unlawful discharges during the week of
April 23, 1975. We hereby correct such inadvertency by substituting the
attached notice for that of the Administrative Law Judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found
after a hearing that we violated Federal law, we
hereby notify you that:
WE WILL pay Denita Swindell, Marion Dean,
Sandra Roberts, Karen Silver, Dorothy Linde-
man, Sue Weinberger, Jim Bolen, and Don
Tucker for wages they lost as a result of our
having discharged them during the week of
April 23, 1975, and our failure to reinstate them
until May 15, 1975. WE WILL also pay Denita
Swindell, Sue Weinberger, Karen Silver, Sandra
Roberts, and Dorothy Lindeman for loss of pay
they suffered as a result of our reduction in their
working hours on and after May 31.
WE WILL offer to reinstate Marion Dean, De-
nita Swindell, Karen Silver, and Dorothy Linde-
man to their former jobs or, if such jobs no lon-
ger exists, to substantially equivalent jobs and
pay them for wages they lost as a result of their
constructive discharge on June 14, 1975.
WE WILL NOT discharge or threaten to dis-
charge or reduce the working hours or change
the working schedules of any employees because
of their membership in or support of Retail
Store Employees Union, Local 876, Retail
Clerks International Association, AFL-CIO, or
for having engaged in any lawful picketing ac-
tivity.
WE WILL NOT question our employees about
their union sympathies, or in any other manner
interfere with their right to join or assist any
union.
SHOPPERS DRUG MART, INC.
DECISION
STATEMENT OF THE CASE
PLATONIA P. KIRKWOOD, Administrative Law Judge: This
proceeding was heard by me in Detroit, Michigan, on Oc-
tober 21, 22, and 23 and December I and 2, 1975.' The
complaint alleges numerous violations of Section 8(a)(1)
and (3) of the Act. It was issued on July 31, pursuant to
charges filed on June 13 and amended on July 1.
Respondent's answer admits the jurisdictional allega-
tions of the complaint and the supervisory status of certain
of the individuals named as Respondent's agents in the
complaint but denies the commission of any unlawful con-
duct.
Based on the entire record in this case, including the
posthearing brief filed by the Respondent 2 and my obser-
vation of the witnesses, I make the following:
1 Unless otherwise mentioned all dates hereafter mentioned in this deci-
sion are for the year 1975
2 As will appear below, the case presents numerous factual and legal is-
sues of a somewhat subtle and complex character , each of which is touched
Continued
226 NLRB No. 140
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, is engaged in the
retail sale of drugs, liquor, and related products. It operates
a store in the City of Sterling Heights, Michigan, herein
called the Sterling Heights store. During the fiscal year
ending October 31, which period is representative of its
operations during all times material hereto, Respondent in
the course and conduct of its business operations pur-
chased and caused to be transported and delivered to its
Sterling Heights store goods and materials valued in excess
of $500,000 of which goods and materials amounts valued
in excess of $50,000 were transported and delivered to its
store directly from points located outside the State of
Michigan. During this same period of time Respondent's
gross revenues from all sources was in excess of $500,000.
Respondent admits and I find that it is engaged in com-
merce within the meaning of the Act and that its business
operations satisfy the Board's jurisdictional standards.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 876, Retail Clerks
International Association, AFL-CIO, hereinafter called
the Union, is a labor organization within the meaning of
the Act.
III. BRIEF STATEMENT OF THE ISSUES
The complaint and its litigation alleges, in the main, that
Respondent:
1. Discharged employees Thomas Dean, Divonne Wil-
liamson, Dionne Williamson, Kathy Morefield, Mary El-
len Lindeman, Jim Bolen, and Tony Purgatori between
April 9 and 18 in derogation of their protected Section 7
rights to engage in protected concerted activity and/or in
order to penalize them for seeking to inspire or for engag-
ing in protected concerted activity.
2. Changed the job conditions of certain employees on
or shortly after April 23, because those employees partici-
pated, during their off-duty hours, in picketing instituted
by the Union at the store premises.
3. Constructively discharged Denita Swindell, Jim Bo-
len, Sue Weinberger, Dorothy Lindeman, Marian Dean,
Don Tucker, Sandra Roberts, and Karen Silver between
April 24 and 29 because those employees were picketing its
premises, and refused to reinstate them until May 15.
4. Subjected employees who had engaged in picketing to
discriminatory treatment on and after May 15 by: (a) se-
lecting such employees to do a disproportionate amount of
on by the Respondent's brief However, my task in resolving the issues
before me would not only have been aided but also accomplished more
expeditiously had General Counsel also similarly presented for my consider-
ation a full statement of his position on the issues and the cases bearing on
them , either by way of using the opportunity I afforded for oral argument or
by filing a brief
different and demeaning work tasks between that date and
May 30; and (b) reducing the work hours of a number of
them after May 30 so as to force them to quit.
5. Constructively discharged Manon Dean, Denita
Swindell, Dorothy Linderman, Karen Silver, and Jim Bo-
len on or about June 14.
6. Through supervisory agents Milton Sloban, Donald
Bennett, Cecil McMahan, and Peter Bellisle, engaged in
oral threats and interrogation between April 23 and 28.
Respondent's answer and its litigation places all the un-
lawful or discriminatory conduct described in the com-
plaint in issue. It would have the complaint dismissed in
toto first on grounds attacking its evidentiary support, and
next on grounds challenging its legal theory that the al-
leged discriminatees engaged in concerted or union activity
of a kind "protected" by Section 7 of the Act. Respon-
dent's answer admits the supervisory status of Sloban, Ben-
nett, and McMahan, but denies that Bellisle possesses such
status.
IV DESCRIPTION OF RESPONDENT'S WORK FORCE; THE
SUPERVISORY STATUS OF PETER BELLISLE
The only facility of the Respondent involved in this pro-
ceeding is its retail store location at Sterling Heights, Mich-
igan. In April 1975, when the conduct here alleged as viola-
tive of the Act commenced, Respondent employed at that
store a total complement of about 22 employees: 2 regis-
tered pharmacists; 4 stockboys; and 16 cashier- salesclerks.
Milton Sloban, Respondent's president, and Donald Ben-
nett, Respondent's vice president, have overall responsibil-
ity for the operations of the store and for the establishment
of Respondent's labor relations and employment policies.
Cecil McMahan, one of the two registered pharmacists em-
ployed during the dates here material , was designated as
the store manager with responsibility for the store's day-to-
day operations. He was immediate supervisor of the store
employees. The status of these three individuals as supervi-
sors within the meaning of the Act is, as noted, admitted by
Respondent's answer. At issue, however, is the supervisory
status of Peter Bellisle, the other registered pharmacist em-
ployed during this period, who is also described by the
complaint as a supervisor. The facts bearing on this issue
are as follows:
Bellisle acts as McMahan's assistant. He is regularly as-
signed a work schedule contemplating his presence at the
store at times when McMahan is not there. The store is
normally operated on a 7-day basis, from 9 a.m. to 10 p.m.
weekdays, and from 10 a.m. to 10 p.m. on Sundays. Each
of the two pharmacists regularly work an 8-hour shift ar-
ranged so that each is off duty for 3 to 4 days out of every
14. When McMahan is off duty, no other acknowledged
supervisor of Respondent is regularly present; and it is
clear from the undisputed evidence that, at such times, Bel-
lisle is responsible for overseeing and directing the work
force and for performing other day-to-day management
functions essential to the efficient operation of the store.
Although the precise extent of Bellisle 's supervisory au-
thority during the substantial periods of time when he
alone is on duty at the store was not thoroughly litigated, I
am persuaded, and find on the above facts, that Bellisle
SHOPPERS DRUG MART, INC.
possesses and exercises, at the very least, the kind of au-
thority to responsibly direct the' work of store employees
which satisfies the definition of a supervisor set out in Sec-
tion 2(11) of the Act. I conclude, accordingly, that Bellisle
was in fact a supervisor within the meaning of the Act, at
all times here relevant.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information and Chronological Statement of
the Events Forming the Setting of the Complaint
The events giving rise to this proceeding had their gene-
sis in Respondent's decision to subject its employees-all
composing an unrepresented and previously unorganized
group of employees-to investigatory interviews. Respon-
dent made that decision in the spring of 1975 when it be-
came aware of a discrepancy between inventory and sales
volume indicating a shrinkage in merchandise for the past
year of between $30,000 and $50,000 and believed that that
loss might be attributable to internal theft.3 It employed for
the purposes of conducting the investigation of its employ-
ees, the services of a polygraph expert named Steven Ross;
and it authorized him to conduct investigatory interviews
of all its employees beginning on April 8, and to use, at his
discretion, a polygraph or lie-detector method of inquiry.4
Respondent had no reason to anticipate employee objec-
tions to the polygraph as it had, in its possession, agree-
ments signed by most, if not all, the employees on or short-
ly after their hire, consenting to submit to polygraph tests,
at Respondent's option, as a condition of continued em-
ployment.5 However, it is apparent from the record facts
below recited that, although no employee had protested
signing that consent agreement when requested to do so, a
number of them did not feel that Respondent had a legal
right to enforce that agreement, and had not anticipated
that it would seek to do so.
The employees found themselves facing the imminent
prospect of investigatory interviews without advance notice
on April 8, when eight or nine of them were instructed by
The truth of the testimonial statements of Respondent' s president con-
cerning the reasons prompting his decision to investigate the employees
cannot be gainsaid in light of the information subsequently supplied by
employees and former employees during the course of the investigation in
relating below what Ross-Respondent 's investigator-learned from the
employees and what he reported to Respondent , I have based my implicit
findings of fact partly on the testimony of employees and former employees
called by General Counsel as witnesses about what they told Ross, and
partly on the testimony of Respondent 's officials concerning what Ross
reported to them, as there was no inconsistency As Ross was not called as
a witness, I have also accepted, as true, certain additional testimony by
employees and former employees about statements of relevance to this case
which they made to Ross and Ross made to them during the investigation
The facts I narrate , by way of background, about the group efforts and
activity engaged in by the employees after the Respondent launched its
investigation are presented as described by the General Counsel's witnesses
in mutually corroborated testimony
4 The complaint asserts, and I agree, during the period Ross was em-
ployed as Respondent's investigator he was an "agent" of the Respondent
within the meaning of Sec. 2(13) of the Act
5 The written form of employee consent stated "I [name] understand as a
condition of employment I may be requested to submit to a polygraph
test either before or sometime during employment whichever the company
decides I hereby give my consent to such a test Signed "
903
McMahan to report for investigatory interview by Ross at
the "back room" of the store. So far as the record shows
none of them then either questioned McMahan about the
investigation or made any protest to its conduct.
In the interview room, each of them was asked and an-
swered a set of similar questions put to them by Ross at the
initial stage of his conference.6 At the end of this stage of
the interview, all but one of them was asked, respectively,
by Ross to submit to further inquiry under polygraph test
procedures. Each of the employees, Thomas Dean among
them, refused when asked to submit to polygraph inquiry.
According to Dean, he gave Ross as a reason that he had a
constitutional right to refuse and told two other employees
who were waiting to be interviewed (Don Tucker and Dor-
othy Lindeman) that he had done so. Lindeman and Tuck-
er expressed their refusal of the lie-dector test to Ross on
grounds similar to Dean's.
At the conclusion of the first day's interviews , Ross re-
ported to Sloban, Bennett, and McMahan, among other
things, that information supplied him by the employees he
saw that day tended to affirm Respondent's suspicion that
part of its inventory shrinkage at least was attributable to
employee practices: many of the employees were in the
habit of helping themselves to snack foods and soft drinks
at the store under a belief that the Respondent permitted
employee consumption of such items; a few employees also
helped themselves to other merchandise such as cigarettes,
beer, windshield wipers and cosmetics; some cashiers cus-
tomarily gave discounts on store purchases to fellow work-
ers in amounts ranging from 10 to 40 percent of the sales
price. Ross also informed Respondent's supervisory agents
that Thomas Dean had admitted to having been arrested,
convicted, and fined $125 on a possession- or use-of-man-
juana charge a few months before he had been hired by
Respondent; and that he, as well as others, had refused to
submit to a polygraph test.
On the morning of April 9, Respondent posted at the
store premises a notice that it would hold a general meeting
of all the employees after store hours on April 11, and that
the attendance of each of them was "mandatory." On the
afternoon of that day, Respondent summarily discharged
Thomas Dean. (He is the first of the alleged discriminatees
named in the complaint.) That evening, Marion Dean
(Thomas Dean's aunt) contacted the Union and arranged
to have an organizational meeting with a group of employ-
ees at her home the following night.
6 The procedures Ross followed in conducting his interviews is depicted
in the uncontradicted testimony of General Counsel' s witnesses as follows
Reading from a printed questionnaire form he had prepared in advance
of the interviews , Ross addressed questions to each employee and recorded
his or her responses on the form These questions covered such matters as
the employee's age , record of prior arrest , if any, work tasks while in Re-
spondent's employ, consumption of store merchandise. if any, without pay,
purchases of store merchandise at discount of the established price, and
knowledge, if any, about any other employee consumption of the merchan-
dise or discount purchases
At the conclusion of the oral inquiry, Ross asked the employee to sign a
written statement which incorporated a summary of the interview and in-
cluded , in instances where the employee had admitted to consuming Re-
spondent 's goods without pay, Ross' estimate of the price of the consumed
goods and a promise by the employee to repay Respondent for the same
Where Ross deemed such course appropriate , Ross would, at that point, ask
the employee to submit to further inquiry under the lie-detector test proce-
dures
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 10, 11 employees met with Marion Dean and
union agents at Dean's home and all of them signed union
cards. They subjected to group discussion the reservations
they had about the Respondent's use of the polygraph for
its investigation, and asked the union representative what
they could do. He advised them that "a union doesn't be-
lieve in lie-detector tests" and that each of them had a right
to refuse to take such a test.7
On April 11, Respondent held the meeting it had previ-
ously scheduled with the employees. Sloban and Bennett,
Respondent's officials and Store Supervisors McMahan
and Bellisle were present. Bennett acted as the Respon-
dent's spokesman. Among other things, he made it plain
that Respondent was requiring the investigation and the
polygraph tests because it had suffered extensive losses of
merchandise. Those who had not yet been investigated on
April 8, would be next scheduled for interviews beginning
April 16, and Respondent expected each of the employees
to take a polygraph test, on request, and stood ready to
discharge any who refused. Bennett also told the employ-
ees that it considered theft of any of its merchandise to be
a dischargeable offense; but, because there appeared to be
some "confusion" about store policy with respect to the
consumption of food, snack, and soft drink items, Respon-
dent would not penalize any employee for his or her past
consumption of that type of goods, but would expect every
employee to pay for this (or any other) goods from there
on. Finally, Bennett spoke about allowable discounts on
employee purchases. He stated that Respondent's discount
policy allowed employees a maximum discount of 10 per-
cent on most goods other than food, cigarettes, or liquor;
but that, in order to keep track of discount purchases, it
required that employees bring the goods they wanted to the
pharmacy counter, have their purchases there charged at
full price for payment by payroll deduction from the next
paycheck; and Respondent's payroll office would take off
the allowable discount in figuring the cost of purchases to
the employee and making up their paychecks accordingly.
Some employees then said they had never before had a
clear statement of the store policy on matters Bennett
spoke about and believed Respondent should give all em-
ployees a written statement of its policies and rules. Ben-
nett acknowledged the complaint and promised to supply a
written statement of policy in about 2 weeks .8 One employ-
ee asked why Thomas Dean had been fired. Bennett re-
sponded he "couldn't discuss" that matter.
On April 15, a group of 11 or 12 employees met at the
home of employee Sue Weinberger. Of these 12 employees,
5 had already been interviewed by Ross on April 8: Doro-
thy Lindeman, Marion Dean, Sue Weinberger, Denita
Swindell, and Sandy Roberts. The other seven were part of
a group scheduled for the next day's interview: Mary Ellen
Lindeman, Dionne and Divonne Williamson, Kathy More-
field, Don Tucker, Jim Bolen, and Tony Puragatori. At
7 There is no direct evidence that any employee identified himself or her-
self to the Respondent as a union sympathizer or activist until about April
22 or 23, when, in the circumstances below related, the Union called on
Respondent with certain demands and then instituted a picket line at the
Respondent's premises
e Respondent never did supply a written statement of policy, however
that meeting, the employees present mutually agreed that
each of them would refuse, if asked, to submit to polygraph
examination, but that each would make up and give Ross
his or her own individual reasons for refusing.'
The next day, April 16, Ross interviewed the 10 or 12
employees he had not seen on April 8, and asked each of
them, at the conclusion of the first stage of the interview, to
take the polygraph test. All but three refused to do so. Four
among those who refused (Mary Ellen Linderman, the two
Williamson sisters, and Kathy Morefield) each told Ross
that she was less than 18 years old and was refusing to take
the polygraph test on parental advice and/or direction.
The others who refused gave different reasons.
Respondent discharged Purgatori, Morefield, Mary El-
len Lindeman, and the two Williamson sisters between
April 17 and 19. As appears from section III of this Deci-
sion, supra, the complaint names each of these five as al-
leged discriminatees.
On April 22, two union agents appeared at Respondent's
premises and spoke to Store Manager McMahan. They
told McMahan, inter aka, that the Union represented a
majority of the employees, wanted immediate recognition
and prompt reinstatement of all the employees who had
been discharged between April 9 and 19 (after Ross had
interviewed them) or else a picket line would be set up the
next day. McMahan responded that he did not have any
authority in the matter but would telephone Sloban; and
he did so. Acting on Sloban's instructions, McMahan ad-
vised the union agents Respondent would not comply with
their requests.
The following day, April 23, union agents and former
employees who had been terminated in the prior 2-week
period began picketing at the store entrances in support of
the Union's recognition and resinstatement demand. Be-
ginning on the morning of April 24, and for the remainder
of the picketing's duration, 8 of the 15 individuals who had
been investigated by Ross, but who had not been dis-
charged or disciplined, joined the picket line. These eight,
however, conducted their picketing activity solely during
their off-duty hours. The complaint describes their picket-
ing as "protected" in character.
On April 24, Sloban directed McMahan to reduce the
number of hours of the store operation and to cut employ-
ee work schedules accordingly. That evening, pursuant to
Sloban's instructions, McMahan posted on the front store
window a revised work schedule for the following week
and included therein a notice that paychecks would not be
given out during the normal afternoon hours, but would be
available in the late evening hours, and that no paychecks
could be cashed at the store that night. The complaint ac-
cuses Respondent of having effected the reduction in hours
and the change of its check distribution and paycheck
cashing practices in derogation of its employees' protected
right to engage in picketing.
Between April 26 and 29, one or more of Respondent's
supervisory agents respectively admittedly advised most, if
not all 11 or 12 of its picketing employees that he or she
could not both picket and work, but would have to do one
9 There is no evidence that any employee told Respondent about this
meeting or the group decision
SHOPPERS DRUG MART , INC. 905
or the other . Eight of the employees it so advised chose to
remain on the picket line and therefore quit their jobs. The
complaint charges Respondent with having constructively
discharged these eight individuals in derogation of their
right to picket.
On April 30, Respondent filed an RM petition with the
Board and on the same day, the Union filed charges
(served on May 2) alleging that Respondent had violated
Section 8 (a)(l) and (3) of the Act . Thereafter , Respondent
and the Union entered into an agreement providing, inter
alia, for the full reinstatement on May 15, of the eight pick-
eters who had been on the payroll when the picketing be-
gan, the simultaneous withdrawal of the picket line and the
unfair labor practice charges, and the conduct of an elec-
tion on May 30 , at which all employees other than those
who had been discharged between April 9 and 19, would
be eligible to vote.
On May 15, Respondent reemployed the eight picketers,
supra, but, according to the complaint , gave many of them
a disproportionate amount of demeaning work tasks to
perform.
On May 30, the Board conducted the election in accord
with the parties ' May 15 agreement . The Union lost by a
vote of 11 to 10.
Beginning May 31, Respondent reduced and changed
the working hours of some employees and, according to the
complaint , discriminated , in so doing against the employ-
ees who had engaged in picketing or other prounion activi-
ty.
On June 13 , a group of the employees visited the Board
offices to file charges , and one among them , Denita Swin-
dell, formally signed the 8(a)(3) and (1) charge initiating
this proceeding . Respondent received notice of the charge
on the morning of June 14 , a Friday.
On the afternoon of June 14, Denita Swindell and four
other employees on whose behalf the 8 (a)(3) charges had
been filed , confronted McMahan as a group to complain
about the reduction in their work hours. They threatened
to quit if their normal work hours were not immediately
restored ; and, although McMahan asked them to wait until
Monday as he could not do anything until then the five
employees refused to wait and quit their jobs then and
there.
Below , I discuss and resolve each of the allegedly unlaw-
ful acts attributed to the Respondent, as above described,
in chronological order.
B. The Merits of the Complaint's Allegations
1. The alleged unlawful character of Respondent's
termination of Thomas Dean
a. The alleged unlawful termination of Tom Dean
The complaint alleges that Respondent, in violation of
Section 8(a)(1), discharged Tom Dean on April 9 "because
he attempted to obtain the cooperation of his fellow em-
ployees in a concerted refusal to take a polygraph test
which was imposed by Respondent as a condition of con-
tinued employment."
The General Counsel litigated this allegation on the
theory that the discharge action was taken by Respondent
not only because Respondent found out through the infor-
mation admittedly supplied by Dean during his investiga-
tory interview the prior day that Dean had a use -of-mari-
juana conviction on his prehire record and had pilfered
cigarettes while working for Respondent , but also because
Dean had "influenced " the refusal by other of his fellow
workers to take the lie-detector test . Apparently it is the
General Counsel 's position that the Respondent would not
have discharged Dean but for the last -mentioned reason.
There is a conflict in the testimony adduced respectively by
the General Counsel and by Respondent on the subject of
whether Respondent was motivated to discharge Dean in
part for the reason alleged in the complaint.
To support his position on that issue , the General Coun-
sel relies on testimony given by Dean and by former em-
ployees Dorothy Lindeman and Karen Silver. Dean testi-
fied that , when he asked McMahan why he was
discharged , McMahan responded by giving him three rea-
sons. the first was that Dean had confessed to having a
"drug conviction" on his record . The second was that
Dean had engaged in "petty theft ." And the third was that
"they" (presumably management) believed Dean had "in-
fluenced people in not taking the lie -detector test" and that
the reason for that belief was that "they did not get any
information out of any person" who saw Ross after Dean's
interview was over. Lindeman testified that on the evening
of April 9 McMahan initiated a conversation with her in
the pharmacy area and said , "I suppose you are wondering
why Tom Dean was fired ." When she said "Yes," Mc-
Mahan said, "Well , I'll tell you ... we felt that Tom was
telling everyone their constitutional rights and he was
thereby impeding us from getting the information we need-
ed. We feel we can do better without him ." Silver testified
that on April 9 she overheard McMahan answer the tele-
phone and talk to the caller , whom she could not identify,
about "having to let someone go because of a marijuana
use conviction . . . influencing other people about the
polygraph test , and petty theft."
The testimony of General Counsel 's witnesses to the
foregoing effect is disputed by Respondent 's witnesses, Slo-
ban and McMahan. Both insisted that no reason other
than Dean's drug conviction and petty theft played any
part in Respondent 's determination to discharge Dean.
And McMahan categorically denied that he gave Dean any
other than those two reasons in responding to Dean's re-
quest about why he had been discharged.
For purposes of decision on this aspect of the case, I find
it unnecessary to resolve the factual issue raised by the
conflicting testimony reported above . For, even if I were to
credit the version of the General Counsel 's witnesses, and I
were also to find that the third stated reason attributed by
Dean to McMahan was a substantial motivating reason for
the discharge , I would nevertheless conclude on all the
facts of this case, that Respondent engaged in no conduct
violative of Section 8(a)(1) of the Act either by terminating
Dean for that reason or by declaring to Dean or other
employees that it formed a basis for the discharge. My
reasons follow.
I observe , to begin with , that there is nothing in this
record to suggest, and indeed the General Counsel makes
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no claim, that Respondent's polygraph testing requirement
was designed or intended by it to serve any purpose con-
demned by the Act. To the contrary, the record shows that
Respondent imposed that requirement solely to determine
whether its inventory shrinkage was attributable to em-
ployee misconduct, and, if so, to identify the offending em-
ployees-in short, for a legitimate business objective. l Nor
is there anything in this record to suggest that Respondent
utilized the polygraph test, in whole or in part, to delve into
any matters that might be viewed as an unlawful subject
for employer inquiry under the Act.
I further observe that there is no evidence in this record,
nor in any contention made, that Dean sought to persuade
fellow employees to engage in a strike to protest the poly-
graph testing requirement or that Respondent acted on any
such belief when it discharged Dean. The testimony of
General Counsel's witnesses, if accepted, would at the most
establish no more than that Respondent was motivated in
part to discharge Dean because of the belief that he had
attempted to influence fellow employees to refuse, while
remaining at work, to comply with Respondent's directive
to them to take a polygraph test. That directive as noted,
was designed to serve legitimate business objectives; and it
was, moreover, in accord with express conditions of em-
ployment to which employees had consented at the time of
their hire.
In these circumstances, I perceive no proper basis for a
finding that it was violative of the Act for Respondent to
discharge Dean for attempting to persuade fellow employ-
ees to commit acts of insubordination by disobeying a law-
ful employer order. It is no answer to say that in seeking to
adduce other employees to act together with him and with
each other in refusing to submit to the polygraph test,
Dean was engaged in conduct of a concerted character. It
has been held by the Board and the courts that the Act
does not protect all forms of concerted activity;" and it
does not follow per force from the fact that Dean's conduct
was concerted, that it was also of a protected character
within the contemplation of Section 7 of the Act. For it has
been recognized by the Board and the courts that the im-
munity from employer disciplinary action which the Act
normally grants all employees for engaging in strike or
other concerted action designed to protest conditions of
employment lawfully established by their employer, does
not extend to situations where employees attempt, in effect,
unilaterally to determine for themselves the working condi-
tions that are to prevail by continuing to remain at work
while at the same time refusing to comply with the specific
conditions of employment to which they take exception.12
To state it more succinctly, the Act, as it has been inter-
10 Cf. American Oil Company, 189 NLRB 3 (1971), National Food Service,
Inc, 196 NLRB 295 (1972) See also Medicenter Mid-South Hospital, 221
NLRB 670 (1975)
11 See, e g, International Union, U A WA, A F of L, Local 232 v Wiscon-
sin Employment Relations Board, 336 U S 245, 255, 256 (1949), C G Conn,
Ltd v. N L R B, 108 F 2d 390 (C A 7, 1939), N L R B v Montgomery Ward
& Co, 157 F 2d 486, 496 (C A 8, 1946), Valley City Furniture Company, 110
NLRB 1589, 1594-95 (1954), enfd 230 F 2d 947 (C A 6, 1956), Lenscraft
Optical Corporation and Rayex Corporation, 128 NLRB 807 (1960)
i2 See the Conn, Montgomery Ward, Valley Furniture and Lenscraft Optical
Company cases, cited supra, fn I I See also Stop & Shop Inc, 161 NLRB 75,
79 (1966), and Napoleon Steel Contractors, Inc, 194 NLRB 783, 788 (1971)
preted, accords employees the right to strike to force em-
ployer agreement to a change of terms or conditions of
employment the employees may find objectionable; but it
does not accord them a right to work on terms prescribed
solely by them. In my view, the "concerted" conduct here
in question quite clearly falls in the latter and unprotected
category.
Accordingly, I shall recommend dismissal of the
complaint's unfair labor practice allegations relating to
Dean's discharge.
2. The alleged unlawful terminations of April 17 to 19
Paragraph 9(b) of the complaint alleges in substance that
between April 17 and 19, the Respondent, in violation of
Section 8(a)(1), terminated five employees-Anthony Pur-
gatorl, Dionne and Divonne Williamson ( sisters), Mary El-
len Lindeman, and Kathy Morefield-and suspended a
sixth employee, James Bolen, because the six of them en-
gaged in a "concerted refusal to submit to polygraph
tests." 13 To support that allegation of the complaint, the
General Counsel relies on testimony by Bolen, Lindeman,
Morefield, and Divonne Williamson concerning the rea-
sons given them by McMahan for their discharge. These
witnesses testified that McMahan first gave "failure to
comply with Company policy as the reason"; but, when
pressed for an explanation, further stated that they were
discharged for refusal to take the polygraph test. Bolen
further testified that he got "into an argument" with Mc-
Mahan on the matter, in the course of which McMahan
told him that he (Bolen) "fell into the same pattern" as the
other five, that all of them had given "pretty much the
same reason" for their refusal to take the polygraph-pa-
rental advice or direction.
McMahan, testifying as Respondent's witness, admitted
giving the five employees who were discharged "failure to
comply with Company policy" as a reason for their termi-
nation. But he denied telling these employees that their
discharge was attributable to their refusal to take the poly-
graph test and maintained that when asked to explain what
he meant by "Company policy," he said, "petty theft." Mc-
Mahan further testified that his decision to terminate the
five employees was rooted solely in Respondent's discov-
ery of the following information which was disclosed by
them during their investigatory interviews by Ross on April
16• each of the five discharged employees, during the inter-
views, had admitted to pilfering store merchandise for per-
sonal use. More specifically, Purgatori had admitted taking
a 12-pack of beer, and each of the others had admitted
taking cigarettes. Further, the interviews had revealed that
13 The complaint's relevant allegation also alleges that James Bolen was
one of the group terminated between April 18 and 19-and for the same
reasons The record shows, however, that Bolen was in fact placed on medi-
cal leave status between Thursday, April 18, and Monday, April 21 He had
suffered a deep cut in his arm while at work on April 17, and he tried to
report to work on the following day But McMahan concluded-reason-
ably, in my view-that, contrary to Bolen's representations , Bolen would
not be able to perform the loading and unloading tasks of his job as a
stockboy for a few days without aggravating his injury I have, accordingly,
treated this part of the complaint as having been amended to allege that
Bolen was suspended by McMahan because of his suspected participation,
together with the five terminated employees, in the alleged concerted activi-
ty
SHOPPERS DRUG MART, INC 907
four of the employees-Lindeman, Morefield, and the two
Williamson sisters-all of whom were salesclerks, were un-
der 18 years of age. According to Sloban, the age of these
four employees was a matter of grave concern to him, be-
cause the state liquor laws prohibited the employment of
minors in positions involving sales of alcoholic beverages,
thus precluding Respondent, for that reason, from retain-
ing those employees in its employ.
Here, as in the case of Dean, I need not and do not
resolve the conflict that appears between the testimony of
the General Counsel's witnesses and that of the witnesses
for Respondent-and this, for substantially the same rea-
sons that were stated in my discussion of Dean's termina-
tion. In short, I am satisfied that the refusal of the six
employees involved in this allegation to take a polygraph
test , although of a concerted nature, did not constitute con-
duct protected by the Act. Therefore, even if I were to find
that Respondent was motivated in substantial part to ter-
minate Purgaton, Lindeman, Morefield, and the two Wil-
liamson sisters, and to suspend Bolen, because of their re-
fusal to take the polygraph test, I would be constrained to
conclude that Respondent did not, by doing so, commit
any unfair labor practice.
I shall, accordingly, recommend the dismissal of the un-
fair labor practice allegations contained in paragraph 9(b)
of the complaint.
3. Unlawful actions allegedly taken by Respondent
between April 23 and 29
a. Introductory statement
Paragraphs 9(c) through (k) and 9(m) through (s) of the
complaint place in issue certain measures taken by Re-
spondent after the Union's institution of the picket line
about noon on April 23 and the appearance on that picket
line soon thereafter of eight employees-Marion Dean,
Sandra Roberts, Dorothy Lindeman, James Bolen, Karen
Silver, Denita Swindell, Don Tucker, and Sue Weinber-
ger-each of whom did regular picket duty before or after
his or her work shift beginning on the afternoon of April
23. More specifically, this part of the complaint lists: (1)
eight separate incidents involving one or more statements
of threats concertedly made by one or more of Respon-
dent's supervisors to employees, each separately alleged to
be a violation of Section 8(a)(1) of the Act; and (2) 10
separate instances in which one or more of Respondent's
supervisors assertedly implemented 8(a)(1) threats made to,
or in the presence of, one or more employees by various
discriminatory actions violative of Section 8(a)(3) and (1)
of the Act.
As to a few of the significant incidents, there is uncon-
tradicted testimony in support; and I have credited that
testimony where the reported facts seemed inherently plau-
sible and consistent with probabilities. As to most of the
incidents or acts of an unlawful character, however, there
is conflicting testimony-affirmations by the General
Counsel's witnesses , met either by flat denials or inconsis-
tent versions by supervisors testifying as witnesses for Re-
spondent. I shall not, except where I believe that special
circumstances call for it, set out all of the conflicting testi-
mony on disputed points or state, in each case, all of the
reasons for resolving particular conflicts as I have. Every
witnesses ' pertinent testimony on both sides has been con-
sidered and evaluated with due regard to its consistency
with other evidence I deem reliable, its inherent plausibility
in light of the surrounding events, the influence of partisan
interests on the content of the testimony, and my estimate
of the reliability of the witnesses based on my observation
of their demeanor as I heard them testify, their overall can-
dor, or lack of it, as reflected by their overall testimony and
the extent, if any, to which their testimony was impeached
in other respects.
a. Alleged unlawful interrogation of employees on April 23
The complaint attributes to three supervisors the com-
mission of coercive acts of interrogation of employees on
April 23, the first day of picketing (See par. 9(c), (d), and
(e) of the complaint )
The sole record evidence bearing on this alleged viola-
tion is to be found in the uncontradicted and here credited
testimony of Silver and Lindeman. Based on their testi-
mony, I find that the following three incidents of relevance
here took place on April 23.
The first incident occurred shortly after the 'picket line
appeared at the store. Bellisle , the only supervisor then on
duty at the store, spoke to Silver while she worked at the
pharmacy counter and asked her what "all that garbage
was outside." Silver claimed she didn't know what was
going on.
The second incident took place about 1-1/2 hours later
when McMahan reported for duty at the store. McMahan
talked to Silver on arrival and asked her, inter alia, whether
the Union had approached her. She responded that she
didn't know whether or not the Union had approached her.
He then asked her "why they were doing that." She replied
that she "had no idea." 14
The third incident occurred later in the evening and in-
volved a confrontation between Sloban and Lindeman.
The latter was then an evening-shift employee, and she had
been on the picket line before coming to work. Lindeman
reported about questions and remarks addressed to her by
Sloban on that occasion, and her responses thereto appear
on the record as follows:
I was in the pharmacy that evening and Mr. Sloban
and Mr. McMahan were in the pharmacy also. Mr.
Sloban approached me and said, "Dorothy, you have
been with us a long time . I'd like you to answer this
question honestly." He said, "Why are you picketing
outside and coming in to work for me at night." He
said, "I can't run a business when you turn my busi-
ness away. Why didn't you come to me with your
problem first "
He said, "What's the deal?" Are you trying to start
a union or what?"
I said, "yes." The Union is the deal.
14 Silver had in fact been informed, at an early morning meeting held by
the Union before the Respondent's store opened that day, about the
Union's plans to set up the picket line and had there agreed, as did other of
her fellow workers at that meeting , to go on picket duty on a regular basis
after completing her 9-to-5 shift at the store
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion and Conclusion
Respondent claims in its brief that none of the above
incidents depict conduct rising to the level of improper in-
terrogation within the meaning of Section 8(a)(1). I find
that claim without merit.
As the Board recently reiterated:
No proof of coercive intent or effect is necessary
under Section 8(a)(1) of the Act, the test being
"whether the employer engaged in conduct which, it
may be reasonably said , tends to interfere with the
free exercise of rights under the Act." 15
The questions asked by McMahan of Silver and by Slo-
ban of Lindeman called for information about the employ-
ees' union sympathies and activities . No assurances of free-
dom from reprisal were given, and, indeed , as found below,
beginning on the following day Respondent , in effect,
threatened union activists with discharge if they continued
appearing on the picket line on off-duty hours; and then
implemented those threats when it found that the employ-
ees did not heed them . 16 Accordingly , I conclude that by
the interrogation of Silver and Sloban about the employ-
ees' union sympathies and activities on the first day of the
picketing the Respondent violated Section 8(a)(1) of the
Act, as alleged in paragraphs 9(c) and (d) of the complaint.
I do not find , however, that Bellisle also interrogated
Silver within the meaning of Section 8(a)(1) by merely say-
ing to her when he saw the picket line "what all that gar-
bage outside" was about . I shall therefore recommend the
dismissal of paragraph 9(c) of the complaint.
b. Alleged unlawful threat to reduce working hours of
picketing employees
In paragraph 9(f) of the complaint , General Counsel al-
leges that on or about April 23 , Sloban, "in the presence of
Respondent 's employees ," instructed Cecil McMahan to
reduce the working hours of employees who took up picket
duty on the picket line on their own time.
The sole evidence adduced by General Counsel in sup-
port is to be found in testimony by Lindeman on direct
that , immediately after she told Sloban , in response to his
questions concerning the union, supra, that "the Union was
the deal ," Sloban turned to McMahan and said, "Okay, if
that's the way it's going to be , next time you make a sched-
ule up , I want these employees' hours cut to 2 and 3 hours
a day." (Emphasis supplied.) However , Lindeman's testi-
mony on cross-examination shows that her account of
Sloban 's instructions to McMahan was of a biased charac-
ter. She admitted , in answer to questions by Respondent's
15 Monroe Enterprises, Inc, 210 NLRB 403 (1974), quoting with approval
Time-O-Magic, Inc v N L R B, 264 F 2d 96, 99 (C A 7, 1959)
16 I am cognizant of the fact that Respondent has interposed , as a defense
to the allegations based on these threats and discharge actions , a claim that,
as a matter of law, picketing by employees at the entrance of their place of
work during the hours they are not on duty, is not a form of protected
concerted activity However, for the reasons later set forth , I find that claim
has no merit
counsel , that in her notes she said she had made that eve-
ning of the incident involving her and Sloban , she had
quoted Sloban as telling McMahan , "next time you make a
schedule up I want the employees ' hours cut ." (Emphasis
supplied.)
On rebuttal Respondent adduced from Sloban his ver-
sion of the incident . He admitted that he did in fact give
McMahan , on the evening of April 23, instructions to re-
duce the work schedules of employees . But, he asserted,
what he instructed McMahan to do, was to cut all the em-
ployees' schedules ; "as business was so bad ." I credit his
testimony , noting , inter aha, its consistency with the facts
bearing on the alleged violation next discussed.
Conclusions
I find that General Counsel did not establish , as alleged
in paragraph (f) of the complaint that Sloban directed Mc-
Mahan "in the presence of employees ," to make discrimi-
natory cuts in the work schedules of employees who joined
the picket line on their own time . I shall therefore recom-
mend that paragraph 9(f) of the complaint be dismissed.
c. Alleged discriminatory reductions in the normal schedule
of picketing employees on April 24
The complaint's paragraph 9(m) contains an allegation
related to that dust considered and dismissed. General
Counsel here attacks, as discriminatory in character within
the meaning of Section 8(a)(3) and (1) of the Act, the ad-
mitted assignment by Respondent of reduced working
hours to employees beginning on April 24. It is the appar-
ent theory of the complaint that : (a) Respondent decided
to reduce employee hours at that time, not because of eco-
nomic need , but, rather , because eight of its employees
were participating in the Union's picketing activities; and
(b) Respondent , in implementing that decision , discrimi-
nated against the eight picketing employees.
On the issue of whether the reduction in work hours was
motivated by economic or by discriminatory considera-
tions, I hold with the Respondent . Both Sloban and Mc-
Mahan testified that the institution of picketing caused a
sharp falling off of customer patronage and that , as a con-
sequence of this, there was insufficient work available to
keep all the employees busy for the full period of their
usual scheduled workday. It was for that reason-accord-
ing to their further testimony- that Sloban instructed Mc-
Mahan , on the evening of April 23, to cut the normally
scheduled work hours of all employees. I credit the fore-
going testimony of Sloban and McMahan , which appears
to me to be inherently plausible.
The finding that Respondent 's decision to reduce the
working hours of employees was economically motivated,
does not, however, dispose of the further question of
whether the Respondent engaged in unlawful discrimina-
tion against the eight picketing employees in giving effect
to that decision . To that question , the following is relevant.
General Counsel called on Dean , Roberts , Silver, and
Lindeman, all of whom were picketing employees, to de-
scribe the nature and extent of McMahan 's reduction in
work hours on April 24. Dean, Silver, and Roberts , testi-
SHOPPERS DRUG MART, INC. 909
fled that, for the week ending April 26, McMahan had
originally scheduled them to work their regular Monday-
to-Friday full-time shift which began at 9 a.m. and ended
at 5 p.m.l' However, on April 24 and 25, respectively, they
were pernutted to work for only about half of their regular
8-hour-per-day schedule, whereas fellow workers on the
job who had not participated in the picketing were allowed
to work as originally scheduled. Lindeman, a regular part-
time worker on an evening shift, testified to the same ef-
fect.
In further testimony, all four of General Counsel's wit-
nesses reported that on the afternoon of April 24 McMa-
han also prepared and posted on the front store window
the schedule of the work shifts for the forthcoming week
commencing Sunday, April 27; and that, in that schedule,
each of the four of them was listed for a reduced schedule
of hours,ia and so was each of the other picketing employ-
ees. However, of these four witnesses only Dean had made
any comparison between her reduced assignment on that
schedule and that of nonpicketing employees. She testified
that all of her fellow workers who regularly worked on a
40-hour full-time basis, including some who had not pick-
eted, had been cut exactly the same number of hours.
Respondent asked McMahan to testify about how he
had redistributed shift hours of employees after Sloban or-
dered him to cut employee schedules. He responded that
for the 3-day period remaining in the current workweek
ending April 26, he simply cut all the employees' scheduled
work hours by about half; and that for the week beginning
April 27 he reduced by 1 full day the weekly shift regularly
worked by each full-time employee; and, in the case of
hours per week, he reduced the normal shift of each in an
equally proportional amount.19 I credit McMahan's testi-
mony-and this for the following reasons:
Towards the close of the hearing, General Counsel ad-
duced, as further evidence bearing on the alleged discrimi-
natory character of the Respondent's work assignments,
copies of the week-to-week timecards which Respondent
maintained as part of its permanent business records and
which showed the hours actually worked by all employees
in the Respondent's complement at dates here relevant.
Analyzing those records, I found nothing to support Gen-
eral Counsel's contention, on the one hand, that Respon-
dent, on April 24, had cut the hours of picketing employees
in amounts disproportionate to those of nonpicketing em-
ployees. I found much to support Respondent's position,
on the other, that it had not done so. 0
On all of the above, I conclude that General Counsel did
17 In accord with established store routine , McMahan prepared and post-
ed at the store on every Thursday a list of the shifts and hours each employ-
ee was scheduled to work in the forthcoming Sunday-to-Saturday work-
week McMahan had, accordingly, posted on Thursday, April 17, the
schedule of work shifts for the week of April 20-26.
18 Dean, Roberts, and Lindeman each testified that her normal week's
shift hours had been cut by 8 hours Silver testified that although she usually
worked a full 5 days per week , she had been scheduled for only 3 days
19 The record shows that Respondent regularly employed for some of its
part-time positions college or high school students whose availability for
work vaned from week to week
20 The timecards are in evidence as G.C Exh 4 In addition, General
Counsel adduced in evidence as G C Exh. 5, a compilation made by Mc-
Mahan from those timecards which summarizes on a week -by-week basis
the hours worked by all employees in the complement at dates relevant to
not prove by a preponderance of the credible evidence
that, as he alleged in paragraph 9(m) of the complaint,
Respondent, on April 24, violated Section 8(a)(3) and (1)
of the Act by reducing the work hours of Dean, Roberts,
Silver, Lindeman, Swindell, Weinberger, Bolen , and Tuck-
er because those eight employees had participated in the
Union's picketing activities. I shall, therefore, recommend
that paragraph 9(m) of the complaint be dismissed.
d. Alleged unlawful departures on April 24 from past
practices concerning issuance and cashing of paychecks
Paragraph 9(n) of the complaint alleges that on April 24
McMahan delayed issuance of the employees' paychecks
and then refused, contrary to established practice, to cash
them in the store, all because of the employees' picketing
activities, and thereby committed a violation of Section
8(a)(3) and (1) of the Act.
The record shows that April 24-a Thursday-was, un-
der established store procedure, the day on which Respon-
dent's employees expected paychecks for the work per-
formed for the week ending the prior Friday. 21 On all prior
Thursdays, the employees could pick up their checks at the
store by 5 o'clock and, if any of them so chose, could
promptly cash them at the store. On this Thursday, how-
ever, management informed the employees, some time in
the early afternoon, that their paychecks would not be
available until about 9:30 p.m. (a half hour before the
store's closing hour) and that the checks could not be
cashed on the store premises that night. To communicate
that information to employees who were on the picket in
the afternoon hours, it posted a bulletin on the front win-
dow of the store.
Although it does not appear that Respondent offered
any explanation at the time to any employee for its delay in
issuing the paychecks on that day and for its refusal to cash
them at the store, it also does not appear that any employ-
ee either asked management for an explanation or voiced
any protest to it about the matter. At the hearing, however,
McMahan gave the following explanation of the here-chal-
lenged management action which I find plausible and cred-
ible:
Our normal check out time being-would be be-
tween 8:00 o'clock and 9:00 o'clock, and this was on a
day when our business was cut substantially. The
amount of our money receipts for that day would not
be very great. I didn't think there would be enough
money or time to cash these checks.
this proceeding From those exhibits, I was able to see, inter a/a, that Re-
spondent 's store was usually staffed with a large number of part-time em-
ployees and a relatively few full-time employees , and that , although regular
full-time employees and some regular part-time employees normally worked
the same days and hours every week , a few part-time employees worked for
various days and hours from week to week I was also able to tell, by
comparing the hours worked by each employee the week preceding that in
which the picketing began, to the hours worked by each employee in the
workweek ending April 26, that, for the latter week , all employees had
worked reduced shifts, and that McMahan 's report that he had reduced the
regular schedule of hours of every employee working that week in equally
proportionate amounts was a substantially accurate one
21 The checks always carved the next day's date . They were processed in
a central office maintained by Respondent at a location outside the store.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
I do not find either in the Respondent's deviation on
April 24 from the normal paycheck distribution and pay-
check cashing routine or in the manner in which Respon-
dent announced the matter to its employees proof of will-
fully taken employer action to discourage union activity. I
would find, rather, that the above deviation by Respondent
from established business procedures-one clearly minor
and temporary in character-was impelled by and was a
consequence of the sudden change in business conditions
Respondent faced on April 24, as a result of the unantici-
pated institution of the picket line.
In light of my above findings and conclusions, I shall
recommend that the 8(a)(3) and (1) allegations in para-
graph 9(n) of the complaint be dismissed.
e. The allegedly unlawful "work-or-picket" conditions and
the alleged constructive discharges
In paragraph 9(g) to (1) of the complaint, General Coun-
sel asserts that, between April 25 and 28, Respondent in-
formed its employees that they would not be allowed to
work if they continued to picket at Respondent's store dur-
ing their off-duty hours and thereby imposed on them a
condition to their continued employment in derogation of
their Section 7 rights. In related allegations in paragraph
9(o) to 9(s), the complaint alleges that Respondent con-
structively discharged the eight employees between April
26 and 28 because they would not submit to the allegedly
unlawful "work-or-picket" condition and thereby violated
Section 8(a)(3) and (1) of the Act.
The relevant evidentiary facts are not disputed. They
show, I find, as follows:
On or about April 25, Sloban, after seeking the advice of
counsel , decided that Respondent was not obliged to allow
employees to work if they continued to picket the store, as
some of them had been doing before or after reporting for
regularly scheduled work. He so advised the three mem-
bers of his supervisory staff-Bennett , McMahan, and Bel-
lisle. Within the next few days, accordingly, the eight pick-
eting employees were informed by one or more of the
management representatives that they would not be al-
lowed to work if they continued to picket.
Given the "work-or-picket" directive, the eight employ-
ees elected to picket rather than to submit to the condition
which Respondent imposed as a prerequisite to their re-
maining in Respondent's employ. The record shows that
some of them simply told Respondent they would not sub-
mit to the condition and walked off their jobs. Others who
had continued to picket after receiving the ultimatum but
who tried, nonetheless, to report for work, were told by
management on reporting, that they were "off schedule"
because, and so long as, they continued to picket. Accord-
ing to Respondent's timecard records, April 26 was the last
day on which any of the eight picketing employees report-
ed at the store and worked. From that point on, I find
Respondent treated all of them as having voluntarily quit
their jobs, removed them from the payroll, and began to fill
the vacancies with new employees.
Concluding Findings
Applying, as I must, established-Board precedent to the
foregoing facts, I am constrained to conclude that the Gen-
eral Counsel has supported the unfair labor practice allega-
tions of the complaint presently under consideration. The
Board has long held, in closely analogous situations, that
employees need not strike their employer in order to be
protected in their right to picket him, and that employees
do not forfeit their statutory right to engage in peaceful
picketing activities where, as here, they picket their em-
ployer at the locus of their job on their own time . See, e.g.,
Edir, Inc., d/b/a Wolfie's, 159 NLRB 686, 693-695 (1959);
M Restaurant, Incorporated, d/b/a The Mandarin, 223
NLRB 725 (1976). From this it follows that Respondent
imposed a condition of employment in derogation of its
employees' Section 7 rights in issuing its ultimatum to the
eight employees to either abandon their picketing or to
abandon their jobs, and thereby engaged in conduct viola-
tive of Section 8(a)(1) of the Act. It also follows that the
eight employees were thus lawfully justified in electing to
continue to picket rather than to submit to the unlawful
requirement imposed upon them as a condition to their
continued employment. In these circumstances, I find, the
employees' loss of employment, though arising from their
election, may not properly be viewed as being the result of
a voluntary quitting on their part, but, rather, must be
viewed as an unlawfully forced quitting 22 amounting, in
legal effect, to a discriminatory discharge violative of Sec-
tion 8(a)(1) and (3) of the Act 23
f. The threat of store closure allegedly made by Sloban on
April 28
Paragraph 9(k) of the complaint alleges that, on or about
April 28, Sloban threatened employees that Respondent
would close the store before it would allow the Union to
represent its employees.
The relevant evidence appears in testimony given by
Dean and Silver as General Counsel's witnesses, relating to
a meeting held on the afternoon of April 28 at a backroom
of the store at which Sloban, the Respondent 's counsel,
22 Cf Playskool, Inc, a Division of Milton Bradley, Inc, 195 NLRB 960
(1972)
23 In reaching this conclusion I have not overlooked the fact that there is
evidence in this record showing that three of the employees, Marion Dean,
Sandy Roberts, and Sue Weinberger, engaged in acts of misconduct while
on the picket line by telling customers that milk at Respondent's store was
"sour" or that customers could buy prescriptions at lower prices at other
retail stores A different situation would have been presented and a different
result might well have been called for had Respondent discharged these
employees or refused them reinstatement for that reason It does not appear,
however, that the ultimatum given the employees to abandon their picketing
or abandon their jobs was related in any way to the conduct referred to
above The record, as a whole, indicates rather that in issuing its ultimatum
Respondent was acting in the mistaken belief that it was a dischargeable
offense for employees to remain at work and to picket during their off-duty
hours It is quite clear , moreover, that Respondent condoned the foregoing
acts of misconduct by Dean, Roberts, and Weinberger and did not regard
them to be of a serious enough character to justify barring those employees
from further employment This is evident from the fact that Respondent
drew no distinction between the three employees who engaged in the above
incidents and the five who did not, when, subsequently, on May 15, it
offered to reinstate all eight of them to their jobs
SHOPPERS DRUG MART, INC
Roy Hunsinger, Esq., and Dean and Roberts were the only
ones present . That meeting, it appears, had been arranged
by Sloban because, earlier that day, Dean and Roberts had
called Sloban and asked that Sloban meet with them to
explain why he had objected to their picketing on their own
time and forced them, therefore, to choose between their
picketing activity and their jobs; and what "rights," pre-
cisely, was he giving them in the circumstances.
Dean, in her testimony on direct, gave the following ac-
count as a report of all that happened at the meeting:
Well, I sat down and Mr. Hunsinger said, "`Well, la-
dies, what would you like to know? What can I do for
you?"
And I said, "Well, we were told that you would tell us
of our rights."
And he said, "Well, the thing is, ladies, we have got
$50,000 loss in our inventory and we feel that it has
been lost through a conspiracy."
Right away, Sandy [Roberts] and I said, "Well, what
are you talking about?"
And he says, "Well, we have had shortages."
And I said, "Oh."
And Mr. Sloban says, "Yes. And we were just getting
to the head of this when you brought this to me." And
he waved his hands in the air
I says, "I'm sorry, Mr. Sloban. If you're talking about
the union," I says, "I'm for the union all the way."
"My husband has always belonged to unions and they
have helped us many times" and I said "I just feel that
those people want a union and I'm with them."
At this point Mr. Hunsinger said to me, he looked
over to me and he asked me if I had any answer to this
problem and I told him, "Well, I don't know if I have
an answer , but I feel that if you two people would
meet with the rest of us and explain the store policy to
us and let us know what we can and cannot do, I feel
after this then if the thing is done wrong, well get rid
of the person that's doing it," to that effect anyway.
At this point, the only thing Mr. Sloban kept re-
spondmg to, was the union. He couldn't get it off his
mind and he was raising his hands and he was saying
I'll never have a union in here. He says, "I'll close my
doors before I have a union in here."
Then at this point, somebody from the picket line
came to the pharmacy and said that Sandy was want-
ed in out front. Then she left. This left Mr. Sloban and
myself towards the back of the room. Mr. Hunsinger
was going into the pharmacy. Mr. Sloban opened his
wallet and he said to me-he handed me this card and
he said, "Marion, anytime you want to stop your ac-
tivity and come back on my payroll, you're more than
welcome." He said, "Give me a call any time." And he
handed me his personal card.
I then left the store and went back to the picket line
Q. Okay. Did you have any further conversation
911
with Mr. Bellisle or Mr . Sloban or Mr . Hunsinger on
that day?
A. To my knowledge , I can ' t remember any right
now.
On cross-examination, Dean admitted that the discus-
sion had lasted approximately 20 minutes, but that, none-
theless, she could recall no statements Sloban or Hunsinger
may have made other than those she had attributed to
them in her testimony above.
Roberts' version of the meeting corroborates the sub-
stance of Dean's account. Her report, however, describes
Sloban as having made the closure threat early in the dis-
cussion and before Dean expressed her belief in the Union
and her intent to support the Union "all the way." Her
testimony indicates, also, that Sloban made an additional
threat to "sue everyone" of the employees for the $50,000
shortage; and that, somewhere along the way, Hunsinger
made a statement that the employees had a "right" to be
for or against unions, as they chose.
Sloban, called by Respondent in rebuttal, expressly de-
nied that he had made any statement about closure of op-
erations at any time during the meeting. Reporting about
what was in fact discussed and said, he indicates that Dean
and Roberts asked a number of questions, all of which
Sloban and Hunsinger willingly answered, concerning such
matters as the reasons for the polygraph testing require-
ments; the reasons why Respondent had terminated
Dean's nephew and the other employees; the amount of
theft going on at the store; and how the "strike" could be
settled. Responding to the latter question, Sloban claims he
said he was willing to take back any of the picketing em-
ployees any time the picketing ended; that, at this point,
Hunsinger asked Dean and Roberts if they had any idea
how the labor dispute could be settled, but that neither of
the employees replied. In additional testimony, Sloban af-
firmed Dean's reports about his mention of the $50,000
shortage in inventory and he admitted that he might have
used the word "conspiracy" in expressing a view that the
complement included a large number of relatively young
people who might have felt encouraged to engage in pilfer-
ing because of "peer" pressures. And to affirm the truth of
his denial of the alleged closure remarks attributed to him
by Dean and Roberts, he stated that he was very careful to
avoid using any words with threatening implications be-
cause, prior to coming to the meeting he had been "very
well enlightened" by Hunsinger about his obligations un-
der the National Labor Relations Act and the kind of con-
duct which might be deemed an unfair labor practice; and
had, moreover, received from Hunsinger specific advice
that the employees had every right to "protest" and to join
a union if they wanted to and that he should make no
threatening remarks of any kind.
Discussion and Conclusions
I cannot, in good conscience, credit the testimony of
Dean and Roberts where it conflicts with that of Sloban.
Neither Dean nor Roberts impressed me as candid and
forthright witnesses as I heard them testify and I detected
in each of them, as well as in certain other of General
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel's witnesses, a willingness to go to almost any
length to get a favorable decision in this case. Sloban, on
the other hand, left me with a feeling of confidence in his
honesty as I observed him on the stand, and his accounts
on all points here at issue were both inherently plausible 24
and delivered with a ring of truth. In sum, I resolve the
credibility issue here involved in favor of Respondent and
I find, accordingly, that General Counsel did not establish,
as he alleged, that Sloban made a threat that the Respon-
dent would close the store before it would deal with the
Union. I shall therefore recommend the dismissal of para-
graph 9(k) of the complaint.
4. Respondent 's alleged acts of discrimination against the
former picketing employees following its grant of
reinstatement to them on May 15 z
a. Alleged discriminatory work assignments made to the
eight reinstated employees on or about May 15
Paragraph (t) of the complaint alleges, in effect, that im-
mediately after Respondent reemployed Dean, Roberts,
Silver, Swindell, Weinberger, Lindeman, Tucker, and Bo-
len on May 15, it assigned all of them to demeaning
"housekeeping" tasks instead of to their usual duties and
that it did so because these eight employees had previously
engaged in protected picketing activity and in order to dis-
courage its employees' support of the Union.
I precede my narration of the record evidence relevant
here with the observation that General Counsel's evidence
was limited to testimony given by Dean, Roberts, Silver,
and Lindeman concerning the tasks each of them was
called on to perform following their reemployment on May
15, and how those tasks differed from those they had per-
formed in the prepicketing period of their employment.26
24 I observe, inter aha, that it is simply not consistent with inherent proba-
bility that Sloban would have displayed the deep-seated hostility to Roberts
and Dean which the latter attributed to him when, as is indicated by the
undisputed facts . ( 1) he had gone to considerable trouble to arrange that
meeting pursuant to the request of the two employees and the expression of
a need to know where their jobs stood, (2) he was aware of their prominent
leadership status among the union adherents, (3) his attorney was with him,
and (4) Sloban made it very clear to the employees both by his statement to
Dean and Roberts at that meeting and by his subsequent conduct as well,
that once the picketing activity-as distinguished from commonplace orga-
nizational activity-ceased , he was willing to put all of them back to work
I observe, also, the highly selective and biased character of the limited
recollection of the 20-minute meeting which Dean and Roberts' accounts
reflect , as contrasted with Sloban's much fuller and, in most respects, un-
contradicted report of the matters covered at the meeting.
25 As earlier indicated, Respondent, on May 15, reemployed the eight
employees who had been discharged during the picketing, supra, but without
backpay, pursuant to an agreement made by it with the Union on or about
May 12 or 13 On the reemployment of the eight employees, the Union
ceased its picketing, withdrew unfair labor practice charges it had previous-
ly filed on or about April 30, and entered into a stipulation provision for the
Board's conduct of a consent election on May 30 in a storewide unit
26 With respect to stockboys Bolen and Tucker, undisputed record evi-
dence affirmatively establishes that they were assigned precisely the same
duties after May 15 as those they had in the prepicketing period With
respect to Swindell and Weinberger-neither of whom testified at the hear-
ing-the record shows only that they were employed as regular part-time
sales clerical employees both before and after May 15, and that between
May 15 and 30, they were employed on the same shifts and for the same
hours as in the prepicketing period and at the same hourly rate of pay it is
All of them, as noted, were employed during the prepicket-
ing period, as salesclerks and cashiers-Dean, Roberts,
and Silver on a full-time day-shift schedule, and Lindeman,
on a regular part-time evening-shift schedule. Silver and
Lindeman had customarily been stationed at the pharmacy
counter and handled the register at that counter; while
Dean and Roberts had customarily handled merchandise
at other store locations and rang up sales at cash registers
outside the pharmacy area.
According to the testimony of General Counsel's wit-
nesses on direct,27 on May 15, and for about 2 weeks there-
after, Respondent routinely assigned to the employees
newly hired during the picketing the kind of work tasks
which Dean, Silver, Roberts, and Lindeman had custom-
arily performed in the prepicketing period of their employ-
ment; while at the same time it assigned to the latter four
only a relatively small amount of their prepicketing sales
clerical work tasks and a very substantial amount of new
and physically tiring housekeeping tasks-such as scrub-
bing empty display shelves, cleaning the merchandise to be
displayed, and then restocking the shelves with such mer-
chandise. Furthermore, according to Silver and
Lindeman's additional testimony, Respondent seldom
asked either newly hired employee or others who were in
the complement in the prepicketing period but who had
not engaged in picketing, to perform similar housekeeping
tasks.28
Admissions elicited from each of the General Counsel's
witnesses during cross-examination, however, established
that at least part of their story on direct was told in a
manner calculated to serve their partisan interests. Thus,
each admitted, on cross, that Respondent had always im-
posed on them, as well as all other similarly classified em-
ployees, the duty of keeping shelves and merchandise dis-
plays clean and orderly in the store areas to which each
was assigned; and that the shelving each was asked to
scrub was in fact so dirty that razor blades and commercial
type detergents had to be used to wash them clean. They
each further admitted that they continued to perform sales
clerical and cashier duties every day and that, even when
told to do housekeeping tasks, they were free to and did in
fact stop doing such tasks whenever there were store cus-
tomers requiring their attention.
Respondent's affirmative case in defense was presented
through the testimony of McMahan as its witness. Mc-
Mahan's testimony supplies the following unrebutted ac-
count of certain background and other relevant facts:
At the time that Respondent agreed to put the eight em-
ployees back to work, it was in the process of moving sec-
tions of merchandise and shelving from one part of the
store to another By May 15, the shelf-repositioning work
had been about completed, but there yet remained to be
done the work of scrubbing the shelves, cleaning merchan-
therefore apparent, and I find, that General Counsel did not prove that
Respondent made discriminatory work task assignments to Bolen, Tucker,
Swindell, and Weinberger on and after May 15
27 Dean, Silver, Roberts, and Lindeman
2s Roberts' testimony was limited to a description of her own work assign-
ments and their content before and after the picketing period. Dean's testi-
mony indicates only that she observed Gloria Manse , a fellow employee
who worked on the same shift as Dean both before and after the picketing,
but who had not been a picketer, also doing shelf-scrubbing tasks
SHOPPERS DRUG MART, INC.
dise stock, and repositioning and rearranging the stock on
the shelves. McMahan found it appropriate to have that
work done by regular store employees during their working
hours at times when customer trade was light. Accordingly,
on May 15, he began assigning portions of the tasks in-
volved in cleaning and restocking the shelves to such em-
ployees for part of each day, and continued making such
assignments for about 2 weeks when, it seems, the shelf-
cleaning and restocking project was done.
McMahan also gave testimony directed to disproving
the truth of General Counsel's evidence that he had distrib-
uted the shelf-cleaning and restocking tasks discriminato-
rily. McMahan stated that every sales employee in the
complement was given shelf-scrubbing, merchandise clean-
ing, and stock tasks to do, and that he tried "as best he
could" to distribute those tasks evenly among all of them.
He explained that the proportionate amount of such tasks
he had required employees to perform, as compared to
other more commonplace clerical tasks, varied from day to
day depending on such factors as the amount of merchan-
dise Respondent received at the store for purposes of re-
stocking and the number of employees on hand at signifi-
cant times. He admitted, however, that he had changed
"somewhat" the work assignments of Dean and Roberts on
May 15 by giving them practically no "cashier" or sales
work to do that day. He explained that he did so because
none of them had reported to work that day until some
time after the regular 9 a.m. reporting time; and by the
time that each came, he had already assigned other em-
ployees who had come on the job before the tasks of man-
ning the cash registers which Dean and Roberts had usual-
ly manned 29
Discussion and Conclusions
Reviewing all the above evidence, I am unable to sustain
General Counsel's claim of a discriminatory assignment of
"demeaning" housekeeping tasks on and after May 15 to
employees who had previously engaged in protected pick-
eting and had been discharged for so doing. In making this
judgment, I have accepted as true, because not disproved
or impaired by anything of any real significance in' General
Counsel's evidence, McMahan's testimonial representa-
tions concerning both the economic reasons why the dis-
puted work assignments were given to the employees in-
volved on and after May 15 and the manner in which he
distributed them to all members of the complement at
times here material.
I have also considered as a possible factor bearing on the
alleged violations here under discussion, Respondent's
obligation, under well-established rules of law, to effect the
reinstatement of employees whom it fired in violation of
the Act, to the same or to substantially equivalent jobs as
those from which they were unlawfully fired-even if this
necessitates the termination of replacements hired mean-
39 The timecard records adduced in evidence as G C Exh 4 show that, on
May 15, Silver and Roberts did in fact come in about 10 a in Other record
evidence indicates that their lateness in reporting on that day was due to
"confusion" about work schedules and related matters under the provisions
of the union-respondent agreement
913
while. But I cannot find that Respondent acted in deroga-
tion of that obligation on the facts above set out. Dean,
Lindeman, Silver, and Roberts were not, I find, denied any
of the rights contemplated by the above-stated rule of law
simply because they were not positioned at exactly the
same counters or locations in the store when reemployed
on May 15 as those to which they had been stationed be-
fore their termination. That change in location did not af-
fect their rate of pay, their job classification as sales cleri-
cals, or other of their conditions of employment. To
conclude, I find that General Counsel did not prove the
alleged violation described in paragraph 9(t) of the com-
plaint. I shall recommend, accordingly, that this part of the
complaint be dismissed.
b. Alleged discriminatory reduction of the hours of former
picketing employees on and after May 31
In paragraph (u) of the complaint General Counsel al-
leges that on or about May 31, 1975, Respondent, by its
agent Cecil McMahan, discriminatorily reduced the work-
ing hours of employees Marion Dean, Sandra Roberts, Sue
Weinberger, Karen Silver, Dorothy Lindeman, Denita
Swindell, Jim Bolen, and Don Tucker, because they had
participated in picketing Respondent's store on their own
time and because of their adherence to the Union.
Respondent's defensive contentions with respect to this
alleged violation do not dispute the truth of the asserted
fact that McMahan assigned abbreviated workweek sched-
ules to some of the above-named employees on and after
May 31. Respondent's admissions in this respect made on
the record through the testimony of McMahan, are, how-
ever, limited to affirmations of testimony given by General
Counsel's witnesses Roberts, Silver, Lindeman, and Dean
concerning their reduced work-shift assignments for the
workweeks subsequent to May 31 30 Respondent denies,
however, the implication that its assignments of abbreviat-
ed work schedules to these or any other employees here
involved were made on a discriminatory basis, and it as-
serts, as an affirmative matter, that its decision to reduce
the work hours of its employees was moved solely by legiti-
mate and lawful considerations. It thus appears that the
issues accordingly presented here are: (1) whether McMa-
han also assigned abbreviated workweek schedules to
Swindell, Weinberger, Bolen, and Tucker during the here
relevant periods of time; (2) were McMahan's assignments
of reduced workweek schedules to some or all of the eight
employees named in the complaint in fact discriminatory
as compared to the work schedules assigned to other em-
ployees, and, if so, then (3) did Respondent establish a
legitimate justification for its discriminatory assignments.
The precise answer to the first and second of the above
questions is to be found in two exhibits adduced in evi-
30 With respect to Dean , McMahan's admissions go only to the schedule
of work assigned to her on June 12 for performance during the week of June
15, since Dean was absent on medical leave from May 31 to June 14. She,
however, would have been put back on working status after June 15, though
on a reduced schedule But, as set out more fully in the next part of my
Decision, on June 14, Dean, together with Swindell, Silver , and Lindeman
refused to accept further employment by Respondent unless assigned their
regular (prepicketing) schedule of hours and "quit" because Respondent
would not satisfy their demands
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence as General Counsel's Exhibits 4 and 2. General
Counsel's Exhibit 4 consists, as earlier indicated, of copies
of the employees' week-by-week timecards maintained by
Respondent as part of its permanent business records and
supplied by it at the hearing in response to a subpena
served on it by General Counsel. The timecards cover a
period of time commencing on or about March 29 and
ending on or about June 30. They compile the paid time
worked of all rank-and-file members of Responent's com-
plement in that period. General Counsel's Exhibit 2 is a
copy of a schedule posted by McMahan at the store on
June 12 on which he set out advance shift and hour assign-
ments for each employee for the week commencing June
15. 31
General Counsel's Exhibit 4 shows, in part, that Swindell
and Weinberger worked on abbreviated workweek sched-
ules for the 2-week period ending June 14 as compared to
their schedules for weeks prior to May 31; but that Tucker
and Bolen worked on substantially the same schedules at
all times here relevant. It also reveals together with General
Counsel's Exhibit 2, the existence of a discriminatory pat-
tern in McMahan's implementation of abbreviated or re-
duced workweek assignments for the periods here signifi-
cant. More specifically, General Counsel's Exhibit 4
proves, on examination and analysis, that, with one single
exception, no salesclerks other than Swindell, Lindeman,
Silver, Weinberger, and Roberts worked less for the here
relevant weekly periods after May 31 than they did during
the weekly periods before that date.32 And examination of
General Counsel's Exhibit 2 shows that in making advance
assignments on June 12, for the June 15 week, McMahan
continued to discriminate in the same fashion against these
four employees, and, in addition, also discriminated
against Dean-who had not been able to work because of
illness up to June 12 or 13-by also assigning to her a
substantially abbreviated workweek schedule for the com-
ing week. At the same time , as these exhibits further prove,
McMahan left virtually undisturbed the schedules of other
sales clerical employees. None among the latter group had
supported the Union's picketing activity; and indeed most
of them in that group had been newly hired during the
course of that picketing activity. All of this evidence, I con-
clude, plainly affirms, as a prima facie matter at the very
least, the complaint's allegation that Respondent discrimi-
nated against Dean, Silver, Roberts, Weinberger, and
Lindeman after May 31 by reducing their working hours
3i
As earlier indicated, McMahan made and posted advance work assign-
ments on each Thursday The schedule he posted on June 12 was copied by
Dean , and I am satisfied , on the basis of her uncontradicted testimony, that
the copy she made is a substantially accurate duplicate of the schedule's
content as posted by McMahan
32 The sole exception is salesclerk Ann Hannebaugh The documentary
evidence with respect to her work schedule shows that she worked a total of
16-1/2 hours for the week ending May 3, 30-1/2 hours for the week ending
May 10, 12 hours for the week ending May 17, 29 hours for the week
ending May 29, 14 hours for the week ending May 31, 14 hours for the
week ending June 7, and 8 hours for the week ending June 14 and for
subsequent weeks thereafter
As to stockboys-the only otherwise classified rank-and-file employees-
McMahan testified, in effect, that none of the stockboys' schedules were
changed The documentary evidence confirms his testimony in this respect
Bolen and Tucker, I note, were stockboys
and hence also their earnings 33 and thereby penalized
them for engaging in protected union activity and neces-
sarily discouraged their further support of the Union.34
This brings me then to the question of whether Respon-
dent established a legitimate justification for the disparate
treatment I find that it accorded after May 31 to the five
union adherents On this question, too, I hold with General
Counsel. McMahan's sole explanation for the conduct in
question is to be found in his testimony as follows'
Q. (By Respondent's counsel.) And, why did you
make changes in work schedules?
A. Prior to May 30th, we were-well, part of the
agreement that brought these people into the store
who had been picketing, was that they be given as
close as we could, their same schedule as they had
before And, then, I had at least four new people or
three more people on from 9:00 o'clock to 5:00
o'clock, five days a week. Dust had more employees. I
had those who had been picketing plus those that had
been hired in the interim were working, and that left
me with an awful lot of employees. Now, after May
30th, after the election which completed the terms of
that agreement, then we adjusted the work schedules
to more correctly reflect the amount of business we
were doing
Q. How did you reduce the employees; did you re-
duce all of the employees time ; did you reduce indi-
viduals; what was the basis in rationale for reduction
of hours, to the best of your recollection?
A. We were trying to reduce everybody as equally
as possible
Q. Was there employee turmoil at or around June
1st or May 31st, or around election time?
A. Yes there was.
Q Did anybody threaten to quit or did anybody
quit around that time?
A There were people that said they were going to
quit.
Q. Could you tell us who those people were?
A. Sue Weinberger, she kept claiming she'd quit.
Q. Do you recall when it was she said?
A She had never given a specific date, but had ear-
lier in the year said I'd be quitting in May or June to
look for another job. It was normal this time of year
when kids get out of school and out of college, they
look for other jobs We have a pretty good turnover
about every year at that time of a couple of employ-
ees. I had Marion Dean come in, I believe it was the
73 Respondent, I note, paid all its rank-and-file employees at an hourly
rate only for time actually worked
34 The necessarily discouraging effect on union activity by discriminatory
employer action against union adherents which reduces their monetary
earnings cannot be gainsaid Cf N L R B v Erie Resistor Corp, 373 U S
221, 228 (1963) See also N L R B v Great Dane Trailers Inc, 388 U S 29,
34 (1968)
1 note, in this respect, that although the Union had lost the election held
on May 30, the Board, in an unpublished decision in Case 7-RM-1029, of
which I take official notice, found that Respondent , through McMahan,
engaged in conduct on May 30 which interfered with the employees' free
choice, and that it therefore set that election aside I note , further, that the
objections to election on which the Board ruled were filed by the Union on
June 5
SHOPPERS DRUG MART, INC. 915
following day and submitted a note from her doctor
that said she could not work until further notice.
Q. What day was this?
A. I believe it was the Saturday following the elec-
tion.
Q. What about Sharon Moeller?
A. Sharon Moeller had quit prior to the election.
Q. What about Sue Conger?
A. Also quit prior to the election because she didn't
want to pick a side to be on, she didn't want to walk
the picket line against us and she didn't want to con-
tinue working for us and upset, you know, the friends
she had worked with for that long a time.
Q. Is that what she told you?
A. Yes.
Q. Did you have people who were scheduled not
showing up on or about June 1st?
A. Yes, I did.
Q. Had this occurred between May 15th and June
1st?
A. At various times, yes.
Q. Did you notice any increase or decrease in the
amount of absenteeism amongst employees, during
the month of May?
A. No.
Q. Had any employees told you that they were
either on layoff status or anything that might effect
their continuance of employment with you?
A. Yes. I had a stock boy who was working for me
part time, who prior to that had worked at Chrysler or
or General Motor or some big operation like that, and
he was on layoff at that time and expected to be called
back at any time
McMahan's representations that he had too many em-
ployees on hand on and after May 15 or 31, even if true, do
not supply a justification for McMahan's clearly proven
assignment after May 31 of abbreviated work schedules to
Dean , Swindell, Lindeman, Weinberger, and Roberts, on
the one hand, and its continued assignment, on the other,
to employees newly hired during the picketing, of the same
work schedules as those given such later employees on hire.
Because the five employees who were reemployed on May
15 were discnminatees, Respondent was plainly obligated,
under the law, to provide them with the same conditions of
employment, on resinstatement , as those such employees
would have had but for its discrimination against them,
even if such reinstatement would have required its firing
the replacements it had meanwhile hired.35 What Respon-
35 See, for example , Mastro Plastics Corp v N L R B, 350 U S 270 278
(1956), et seq Although the Supreme Court's decision in that case was spe-
cifically concerned with the reinstatement rights of unfair labor practice
strikers who had struck during the effective term of the bargaining contract
containing a no-strike clause , the concepts on which the Supreme Court
based its decision in that case are clearly applicable here See also Mooney
Aircraft, Inc, 132 NLRB 1194 (1961), enforcement granted 310 F.2d 565
(C A 5, 1962), a case holding that an employer failed to comply with its
reinstatement obligation when , after it reemployed unfair labor practice
strikers, it found that , together with the newly hired replacements, it had
more employees than it needed and put all the employees, accordingly, on
an abbreviated work schedule and thereby gave the reinstated strikers less
paid worktime than they had had before the strike
dent here chose to do, however, was not only to retain the
employees it had hired as replacements for the alleged dis-
cnminatees when it reemployed the latter, but to treat
those replacements as having job rights superior to those of
the reemployed discrinunatees, thereby indicating to the
latter that it was still penalizing them for having engaged in
lawful picketing.
On all of the above, I conclude that, by assigning to
Dean, Swindell, Weinberger, Lindeman, and Roberts a re-
duced schedule of working hours on and after May 31,
Respondent violated Section 8(a)(1) and (3) of the Act, as
alleged in paragraph 9(u) of the complaint.
c. The alleged unlawful constructive discharge of Dean,
Swindell, Silver, Lindeman, and Bolen on June 14
The complaint's paragraph 9(v) alleges that on or about
June 14 McMahan constructively discharged five of the
employees-Marion Dean, Demta Swindell, Dorothy
Lindeman, Karen Silver, and Jim Bolen by discriminato-
rily reducing their working hours and thereby further vio-
lated Section 8(a)(3) and (1) of the Act. This allegation
turns principally on the following facts as reported in the
credible testimony of both sides' witnesses on this part of
the case 36
On Thursday morning, June 12, Dean, who had previ-
ously been absent from work on medical leave since May
31, came to the store and told McMahan that she had now
been released by her doctor and would like to be put back
on the payroll. McMahan said, "Fine." Later that same
afternoon Dean returned to see what hours McMahan had
assigned her for the coming week. She found that her
schedule provided that she work for only 3 of her normal 5
days for the next week and for a total of only 21 instead of
her normal 40 hours; and that one of the three shifts as-
signed to her was for Saturday-a day on which she had
never previously worked. She noticed also that substantial-
ly reduced schedules of hours were listed for other of her
fellow workers who had, like her, been earlier terminated
for picketing on off-duty time but that no sinularly reduced
schedules had been assigned to newly hired employees or
to certain other employees who had not picketed. Dean
then contacted Swindell, Silver, and Lindeman; and on the
following day, Friday, June 13, the four of them went to
the Board's offices where they filed the charge initiating
this proceeding.
On the following morning, Saturday, June 14, Dean
went to see McMahan to complain about her assignment.
He told her he had already prepared the schedule when she
spoke to him on the prior Thursday, but he " put her name"
in it afterwards for the 3-day period described above. Dean
told him she wanted her original schedule back. McMahan
replied that he "couldn't do that, but if she wanted more
hours [he] would allow her to work the next day which was
Sunday" for an 8-hour, 10 a.m.-to-6 p.m. shift. Dean re-
sponded she would contact her husband about working on
Sunday and would let McMahan know.
After Dean left, McMahan received in the mail a copy
36 Dean. Lindeman, Silver. and Bolen testified as General Counsel's wit-
nesses, and MaMahan testified as the Respondent 's witness
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the charges filed by the employees the prior day. He
tried, without success, to reach Respondent's attorney on
the matter. Later that afternoon Dean returned with Silver,
Bolen , and Lindeman to the store, and together with Swin-
dell (who was then at the store at work), met with Mc-
Mahan at the backroom of the store. They confronted him
with the demand that he give them back their original
hours of employment, or else they would quit. McMahan
responded that because of the filing of the "new charges,"
he did not deem it advisable to make any change in the
schedule until he had contacted Respondent's attorney;
and he asked the employees to defer their action until
Monday. The employees responded, in effect, that, as he
was not willing to change their schedules back to normal
then and there, they were quitting. McMahan asked them
to sign a written statement. They refused to do so. There-
upon, McMahan called in two other employees then at
work to witness the "oral resignation."
At the hearing Dean, Silver, and Lindeman all testified
that they decided on this course of action, i.e., to quit as a
group if McMahan did not immediately restore their work-
ing hours to normal, before they saw McMahan.37 I credit
this testimony. Bolen , however, admitted on cross-exami-
nation that he had earlier decided to quit and would have
done so irrespective of how the above meeting came out.
Concluding Findings and Discussion
In contesting the validity of the alleged 8(a)(3) viola-
tions, Respondent contends, in part, that the above facts
do not establish a "constructive discharge" situation, but
show, rather, that all of the five alleged discnminatees quit
voluntarily. I find clear ment in that contention only as to
Bolen since, as Bolen's testimony indicates, his decision to
quit Respondent's employ was prompted by reasons unre-
lated to Respondent's discriminatory cuts in the hours of
known union adherents. I reach a different conclusion,
however, with respect to Dean, Silver, Swindell, and Linde-
man. In their case, I find, General Counsel clearly proved,
on the facts set out above, that the four of them quit be-
cause Respondent, by its discriminatory reduction in their
working hours and hence their wages as well, had imposed
on them such intolerable working conditions as a predicate
for continued employment as to force them to quit.38 Un-
3' Dean further testified that Swindell had earlier decided she was going
to continue to remain at work despite the cut in hours But, as appears from
McMahan's report of the June 14 confrontation, and also from other testi-
mony by Dean and by Silver, Swindell changed her mind when her fellow
employees came into the store and Joined with them in the election to quit
rather than to continue to work at reduced schedules of hours I so find
38 The fact that McMahan asked the employees to defer their "quit" until
the following Monday does not provide evidence negating the General
Counsel's case It is plain from the record as a whole that Respondent
believed that it had a lawful right to treat these employees in the di scrimina-
tory fashion that it did following the conduct of the Union election, and
that it is still insisting on that position I cannot find, accordingly, that
Respondent would have been willing to abandon its discriminatory course
of conduct and remove the intolerable working conditions it had instituted
if the employees had waited until the following Monday Furthermore, inso-
far as Respondent argues that the employees should have been willing to
work and await the Board's disposition of their unfair labor practice
charges, the argument has no meet it is one which all cases sustaining
constructive discharge allegations implicitly reject See, for example, Cadil-
lac Olds, Inc, 172 NLRB 807, 812, In 9 (1968)
der well-established principles,39 Respondent is therefore
to be found to have "constructively discharged" the four
employees in violation of Section 8(a)(3) and (1) of the Act.
I so conclude.
CONCLUSIONS OF LAW
1. By coercively interrogating its employees about their
union activities or those of other employees, Respondent
engaged in interference, restraint, and coercion of its em-
ployees within the meaning of Section 8(a)(1) of the Act.40
2. By threatening to discharge and by constructively dis-
charging Jim Bolen, Denita Swindell, Sue Weinberger,
Dorothy Lindeman, Marion Dean, Don Tucker, Sandra
Roberts, and Karen Silver during the week of April 23,
because of their engagement in lawful picketing of the Re-
spondent's store, Respondent violated Section 8(a)(1) and
(3) of the Act.
3. By reducing the working hours of Denita Swindell,
Sue Weinberger, Dorothy Lindeman, Marion Dean, San-
dra Roberts, and Karen Silver on and after May 31, be-
cause of their protected concerted and union activity, and
by then constructively discharging Denita Swindell, Doro-
thy Lindeman, Marion Dean, and Karen Silver on June 14,
Respondent violated Section 8(a)(3) and (1) of the Act.
4. Respondent has not engaged in unfair labor practices
in any other respects alleged in the complaint.
THE REMEDY
I shall recommend that the Respondent be ordered to
cease and desist from its unfair labor practices and from in
any other manner interfering with, restraining, or coercing
employees in the exercise of their rights under Section 7 of
the Act. Affirmatively, I shall recommend that the Compa-
ny offer to reinstate Marion Dean, Denita Swindell, Doro-
thy Lindeman, and Karen Silver; that it make them and
Sue Weinberger, Sandra Roberts, Jim Bolen , and Don
Tucker whole in accordance with the formulas approved in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Company, 138 NLRB 716 (1962); and
that it post appropriate notices. Respondent's backpay
obligation shall include the reimbursement to: (a) Marion
Dean, Sandra Roberts, Sue Weinberger, Karen Silver, Dor-
othy Lindeman, Denita Swindell, Jim Bolen, and Don
Tucker for loss of pay they suffered as a result of the Re-
spondent's constructive discharge of each of them during
the week of April 23, because of their engagement in lawful
picketing activity; (b) Marion Dean, Denita Swindell, Sue
Weinberger, Dorothy Lindeman, Sandra Roberts, and
Karen Silver for the loss of pay they suffered because of
Respondent's discriminatory reduction of their working
39 See N L R B v Tennessee Packers, Inc, 339 F 2d 203 (C A 6, 1964),
Cavalier Olds, Inc, 172 NLRB 807, 810-812 (1968) Compare the case cited
supra, fn 22
401 base this conclusion solely on the allegations contained in pars 9(d)
and (e) of the complaint, and their substantially supported evidentiary base.
Similar acts of interrogation, I note, were alleged to have been committed
on May 30 by McMahan in the complaint's par 9 (1) However , General
Counsel adduced no evidence in support of the latter allegations and I shall
accordingly recommend that par 9(1) of the complaint be dismissed
SHOPPERS DRUG MART, INC. 917
hours on or after May 31; and (c) Marion Dean, Denita
Swindell, Karen Silver, and Dorothy Lindeman for loss of
pay they additionally suffered from June 14, the date Re-
spondent last constructively discharged each until the date
each of them is offered proper reinstatement to her former
job or to one substantially equivalent thereto, less interim
earnings.
Accordingly, upon the foregoing findings and conclu-
sions and upon the entire record in this case, I recommend,
pursuant to Section 10(c) of the Act, issuance of the follow-
mg recommended:
ORDER41
The Respondent, Shoppers Drug Mart, Inc., Sterling
Heights, Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees about their
union sympathies and activities or those of other employ-
ees.
(b) Discharging, threatening to discharge, or reducing
the working hours of any employees because of the engage-
ment by any of them in protected concerted or union activ-
ities, including lawful picketing.
(c) In any other manner interfering with, restraining,
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to reinstate Marion Dean, Denita Swindell,
Karen Silver, and Dorothy Lindeman to their former or
substantially equivalent positions without prejudice to their
seniority or other rights and privileges, and make each of
them and Jun Bolen, Sue Weinberger, Sandra Roberts, and
Don Tucker whole, in the manner described in the section
of this Decision entitled "The Remedy," for any loss of
earnings suffered by reason of the discrimination against
them.
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Decision.
(c) Post at its store at Sterling Heights, Michigan, copies
of the attached notice marked "Appendix." 42 Copies of
said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by an authorized rep-
resentative of the Respondent, shall be posted immediately
upon receipt thereof, and shall be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that paragraphs ((a), (b), (c),
(f), (k), (1), (m), (n), and (t) of the complaint be dismissed.
41 In event no exceptions are filed as provided by Sec 102 46 of the Rules
and Regulations of the National Labor Relations Board, the findings, con-
clusions, and recommended Order herein shall , as provided in Sec 102 48 of
the Rules and Regulations , be adopted by the Board and become its find-
ings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
42 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"