University Overland Express, Inc.

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, as the unit requested by the Teamsters is inappropriate, we shall dismiss the petition filed by the Teamsters in Case No. 20-RC-4204. In Case No. 20-RC-4234, we find the following unit is appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees of the Employer, in- cluding all truckdrivers, but excluding all office clerical employees,, professional employees, guards, and supervisors as defined in the Act. [The Board dismissed the petition filed in Case No. 20-RC-4204.1 [Text of Direction of Election omitted from publication.] University Overland Express, Inc. and Robert H. Connor. Case No. 22-CA-438. September 21, 1960 DECISION AND ORDER On May 18, 1960, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in any of the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations, except as noted below.' [The Board dismissed the complaint.] ' We agree with the Trial Examiner that Robert H. Connor was discharged for cause and not for protected union activity. Therefore, it is unnecessary for us to pass on the Trial Examiner's findings regarding whether the Joint Committee panel constituted an, "arbitration panel" as that term has been used by the Board and whether the award of the panel would be acceptable to the Board as an "arbitration award." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136) was heard at Paramus, New Jersey, on January 6, 129 NLRB No. 14. UNIVERSITY OVERLAND EXPRESS, INC. 83 7, 8, and 11, 1960, pursuant to due notice, and with all parties represented by counsel. The complaint issued on August 28, 1959, by the General Counsel of the National Labor Relations Board I and based on a charge duly filed and served, alleged in substance that Respondent discharged its employee Connor because of his activities as shop steward for the Union in violation of Section 8(a)(3) and (1) of the Act. Respondent's answer and amendment to answer denied the com- mission of unfair labor practices as alleged. As a separate defense it avers in effect that the Board should not assert jurisdiction herein for the reason that the issue of Connor's discharge had been submitted for final and binding arbitration to the Eastern Conference Automobile Transporters Joint Committee in the manner provided for in an existing collective-bargaining agreement between the Respond- ent and the Union. After a hearing the Joint Committee rendered its decision finding Connor "solely responsible" for an unauthorized strike and work stoppage, whereupon the Respondent, based on such decision discharged Connor. Counsel for the parties were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. The General Counsel and counsel for the Respondent filed briefs on February 10, which I have fully considered. Subsequent to the close of the hearing the General Counsel by written motion, served on counsel for the Respondent, moved to correct the record in certain respects. The motion is hereby granted. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS The complaint alleges and Respondent's answer admits that University Overland Express Inc., is a Massachusetts corporation with its principal office and place of business at Somerville, Massachusetts, where it is now and has been continuously engaged in the business of providing and performing transportation services and related services in various States of the United States including the State of New Jersey. In connection with its operations Respondent operates a trucking terminal at Mahwah, New Jersey. During the calendar year 1958, which period is repre- sentative of all times material herein, Respondent performed services valued at in excess of $3,000,000, of which more than $50,000 was derived for interstate operations between and among the States of New Jersey, Massachusetts, and other States of the United States. I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent and the Union, the collective-bargaining representative of Re- spondent's employees, have been in contractual relationship for a number of years. Robert Connor, the Charging Party herein, commenced his employment as a driver with Respondent in January 1956. In accordance with Article II of the then existing collective-bargaining agreement between Respondent and the Union, Connor was appointed shop steward in January 1958. Connor testified that during his tenure as shop steward until his discharge on April 2, 1959, he handled approxi- mately 800 written grievances, plus others that were not in writing Connor also testified that before a grievance was reduced to writing he attemped to have it resolved informally.2 In March 1958 negotiations started looking toward the renewal of the collective- bargaining contract which was to terminate on May 31, 1958. Connor, along with other union representatives and management officials participated in the negotiations i The General Counsel and his representative at the hearing are referred to herein as the General Counsel, the National Labor Relations Board as the Board, University Overland Express Inc., as the Respondent, the individual Charging Party as Connor, and Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America as the Union. 28ee Article VI. Grievance Machinery of the 1956-1958 Eastern Conference Area Truckaway and Driveaway Agreement. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In November 1958 the union membership ratified the terms of the new collective- bargaining agreement, which thereafter was signed by the parties in mid-December 1958. By its terms, wage increases provided for in the new agreement were retro- active to June 1, 1958, and the agreement was to remain in full force and effect up to and including May 31, 1961, and continue from year to year thereafter unless written notice of desire to cancel or terminate is served by either party upon the other at least 60 days prior to date of termination . It includes a "Dispatch System" and "Rules and Regulations " which were not in the expired agreement and also contains, among other articles, the following, which we are primarily interested in for the purposes of this proceeding: ARTICLE II. STEWARDS Section 1. The Employer recognizes the right of the Union to designate one or more Stewards from the Employer's seniority list to handle such Union business as may from time to time be delegated to him by the Union . Shop Stewards have no authority to take strike action or any other action interrupting the Employer's business in violation of the Agreement , or any action in violation of law, except as authorized by official action of the Union . The Employer recognizes this limitation upon the authority of Shop Stewards . The Union reserves the right to remove the Shop Steward or Stewards at any time, for the good of the Union. The Steward in each classification shall be granted number one ranking on the seniority list. He shall be the last employee to be laid off and, under no circumstances shall he be discriminated against by the Employer. Before discharging a Steward, the Employer shall take the matter up with the Union. The Chief Steward shall be allowed to choose his trips in all cases and at any time, and it is agreed that only one Steward shall have such privileges in each classification, and only at his home terminal . On any grievance or where disciplinary action may be taken , the Steward should be present at the outset of the grievance, if possible. Section 2. Authorized representatives of the Union shall have access to the Employer's establishment during working hours for the purpose of adjusting disputes, in- vestigating working conditions , collecting dues, and ascertaining that the Agree- ment is being adhered to, providing there is no interruption of the Employer's business. ARTICLE VI. GRIEVANCE MACHINERY Section 1. Local Level Disputes and grievances shall first be taken up by the shop steward and, if no settlement is reached then taken up between the business agent of the Local Union involved and the Company representative. Disputes and grievances shall be put in writing and presented to the Company within one (1) week, whenever possible, after the grievance arises, but in no case later than thirty (30) days after the grievance arises. The Company must designate its repre- sentative at each terminal who is authorized to settle grievances on the local level and must so notify the Local Unions within one (1 ) week of the consum- mation of this Agreement. The dispute or grievance must be settled or dead- locked at the local level within five (5 ) days after the business agent has taken it up. After the five (5 ) day period, either party has the right to file its griev- ance with the Joint Committee referred to in Section 2. The following pro- cedure shall then apply, except as provided in the no strike clause. Section 2. Joint Committee The Employers and the Unions parties to this Agreement shall together establish for the duration of this Agreement, the Eastern Conference Automo- bile Transporters Joint Committee . Any panel of the Joint Committee hearing a case shall consist of an equal number of designated representatives of the Employers and the Unions who are parties to this Agreement. Section 3 . Functions of Joint Committee It shall be the function of the Eastern Conference Automobile Transporters Joint Committee to settle disputes and grievances which cannot be settled in accordance with Section 1 of this Article. The Eastern Conference Automobile Transporters Joint Committee shall meet monthly and shall formulate Rules of Procedure to govern the conduct of its proceedings . All meetings of the UNIVERSITY OVERLAND EXPRESS, INC. 85 Joint Committee must be attended by each member of such Committee or his alternate. If for any reason either party feels that the situation warrants it, either party shall have the right to demand that the co-secretaries convene a special meeting of the Joint Committee in the offices of the Eastern Conference of Teamsters, Washington, D.C. within three (3) days after notice is given to the two co-secretaries or their representatives. A decision by a majority of a Panel of the Joint Committee shall be final and binding on the parties involved. Failure of either party involved to comply with any final decision of the Joint Committee shall give the other party the immediate right to all legal and economic recourse. Section 4. Rights of the Joint Committee The Eastern Conference Automobile Transporters Joint Committee shall have the right to investigate all facts pertaining to the dispute. The Joint Committee, as well as the Local Unions' business agents and/or stewards, shall, upon each dispute or grievance processed in accordance with Section 1 of this Article, have the right to examine time sheets and any other records pertaining to the computation of compensation of any individual or individuals whose pay is in dispute. Both parties shall be entitled to present such evidence and witnesses in support of their positron as they see fit. A decision of the majority of a Panel of the Joint Committee shall be final and binding on all parties. Section S. Deadlock and Arbitration If any grievance or dispute cannot be satisfactorily settled by a majority decision of the Panel then the grievance shall be submitted to an impartial arbi- trator who shall be named by the Local Union and the Company involved. If the parties cannot agree within seven (7) days on the selection of an arbitrator, then such selection shall be referred by either party to the Federal Mediation and Conciliation Service no later than the next day. After the Federal Media- tion and Conciliation Service submits a list of arbitrators to the Local Union and the Company involved, they shall reply with their preferred selections no later than three (3) days after receipt of such list. In the event that one of the parties fails to proceed with the selection of an arbitrator from the list sub- mitted by the Federal Mediation and Conciliation Service, then the other party shall have the right to select an impartial arbitrator from such list. A hearing by such arbitrator shall be held no later than two (2) weeks from the date of the appointment of the arbitrator. The arbitrator shall, if possible, render his decision at the conclusion of the hearing. In any event, his decision must be handed down as soon as possible, or, at the most, no later than thirty (30) days after the conclusion of the hearing before him. It is agreed that the arbi- trator is empowered to hear and decide the deadlocked case, even if only one of the parties submits to arbitration or, if either party fails to appear at the hearing, or to present evidence. The arbitrator shall have the authority to interpret and apply the provisions of this Agreement, but shall not have the authority to amend or modify this Agreement or establish new terms and conditions under this Agreement. The arbitrator shall be paid by the losing party. The decision of the arbitrator shall be final and binding on the parties involved. In the event that the losing party fails to abide by the arbitrator's decision, or that either party refuses to submit to his jurisdiction, the other party shall have the right to immediately take all legal or economic recourse. Section 6. Controversies and Requests for Interpretation In addition to the above, any and all controversies, including interpretations of contract provisions, arising under, out of, in connection with or in relation to this collective bargaining agreement shall be subject to the grievance pro- cedure of this Agreement. ARTICLE VII. DISCHARGE OR SUSPENSION Section 1 . Warning Notice The Employer shall not discharge nor suspend any employee without just cause. In respect to discharge, the Employer shall give at least one warning notice of the specific complaint against such employee, in writing, and a copy of the same to the Union and the Shop Steward, except that no warning notice need be given to any employee before he is discharged if he is discharged for any of the causes listed in Section 2, below. The warning notice as herein provided shall not remain in effect for a period of more than six (6 ) months for major offenses, and three (3) months for minor offenses, from the date of said warning notice. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 2. Causes for Discharge The only causes for immediate discharge of an employee shall be ... call- ing an unauthorized strike or walk-out, .. . . ARTICLE VIII. NO STRIKES OR LOCKOUTS The Unions and the Employers agree that there shall be no strike or tie-up of equipment, slow downs or walkouts on the part of the employees, nor shall the Employer use any method of lockout or legal proceeding without first using all possible means of a settlement, as provided for in this Agreement, on any controversy which might arise, except for the following direct violations: non- payment of the established rates provided in Article XX, Section 1, (a), (b) and (c), which are indisputable, non-payment of health and welfare contribu- tions, and non-payment of pension contributions as provided for in this Agree- ment. If the parties are unable to settle a dispute, then it shall be referred to the Eastern Conference Automobile Transporters Joint Committee. ARTICLE XVI. UNION COOPERATION The Union and all employees agree at all time, as fully as it can be in their power, to further the interests of the automobile transporting industry and of the Employer. * * * * * * * LOCAL RIDER, SECTION "A"- 21. TERMINAL MANAGER-STEWARD MEETINGS The driver Steward shall have the right to meet with the Terminal Manager once a week when necessary to take up and settle grievances... . * * * * * * * DISPATCH SYSTEM 1. ASSIGNMENT OR SELECTION OF TRIPS: Drivers will select, or as provided later herein be assigned, trips in order of their seniority, subject to eligibility at or between List Calls by having met the rules of checking-in, signing the availability list, having sufficient "Driving" and/or "On Duty" hours under the I.C.C. hours of service rules, and by appearing in person at the Terminal to select, or by having listed a phone on the Drivers' page in the Check-in Book. 4. LIST CALLS: A. Midnight-Sundays B. 6:00 P.M.-Mondays to Fridays inclusive C. 5:00 A.M.-Tuesdays to Saturdays inclusive EXCEPTION: List calls on Holidays, and the day before and after Holidays, will be scheduled by advance notice to driving personnel after discussion with Stewards if they are available. 21. Drivers whose telephones are listed in toll areas in relation to Mahwah will be called collect. 19. At the beginning of a model year, drivers will bid for the required number of 3-car trailers. Vacancies left after completion of bids will be filled in order of reverse seniority. 22. On December 1st and June 1st of each year, State of Vermont permits shall be put up for bid. Drivers are to exercise their options to bid in seniority order. Robert Smith, Respondent's Mahwah terminal manager, testified that starting at midnight December 7, 1958, list calls were made by Respondent's dispatchers in accordance with the terms of the Dispatch Agreement in the new contract. Smith also testified that normally when the list is called at midnight on Sundays there are about 50 drivers present in the drivers' room to answer in person and make his trip selection. It is not imperative that the driver be present in the drivers' room at the terminal when the list is called. If he is not, the dispatcher calls him on the telephone to give him an opportunity to make his trip selection. If the driver is not at the terminal in person or if he fails to respond to the telephone call, the dispatcher assigns him the trip for which he indicated a preference when he last checked into the terminal, if the same is available. Otherwise the driver is assigned the longest mileage trip available, when his name is reached on the seniority list. UNIVERSITY OVERLAND EXPRESS, INC. 87 As set forth above, the Dispatch System Agreement provided in #21 "Drivers whose telephones are listed in toll areas in relation to Mahwah will be called collect." Prior to December 7, Respondent paid for local and toll telephone calls it made to its drivers when calling them on the list. Shortly after December 7, the issue of collect toll calls became a subject of dis- cussion among the drivers, and by them with the shop steward. Connor testified, "it [collect toll calls] was just brought up in the course of conversation, as other -thing are, when you have a problem, they want to know when are you going to get us some kind of a settlement or a solution to it. It wasn't anything big. To me it was nothing." It, however, must have been sufficiently important to Connor, for as Smith testified, on December 11, Connor inquired of him what he though of the effect of the "Maintenance of Standards" clause, article V of the collective-bargaining agreement on collect toll calls Smith stated he did not think it had any application. Connor requested Smith to study the matter. In their next meeting January 2, 1959, Connor inquired if Smith had reached any decision. Smith said that the "Mainte- nance of Standards" clause did not apply to collect toll calls. During the week of December 29, 1958, Connor posted on several employee bulletin boards in the terminal the following: NOTICE There will be a special meeting of U.O E. drivers at the Twin Bars on Route 17 Mahwah at 9 p.m. January 4, 1959. The attendance has been very poor at the last couple of meetings. If you are interested at all in working conditions you should attend. R. CONNOR, Steward. Smith testified that at about 9:15 p m. on January 4, 1959, Connor telephoned him at home and asked if Smith would be available later that night to answer some questions which might come up at the meeting about the Dispatch System concerning three-car bids and Vermont bids. (See collective-bargaining agreement, Dispatch System, Nos. 19 and 22, supra.) Smith told Connor that even though Respondent was accepting bids under the said provisions of the Dispatch System, they had not been put into effect yet and he would talk with Respondent's Operations Manager Morrison to make certain they did not go into effect until he and Connor had an ,opportunity the next day to review the said provisions. Connor testified that about 50 drivers attended the meeting, which was called to order sometime after 9 p in. Connor presided at the meeting He denied that the issue of collect toll calls was discussed at the meeting. He also denied that a work stoppage was discussed. The business of the meeting was completed shortly after midnight. Connor testified that he and most of the men went upstairs to the barroom to have some beer and engage in the "usual barroom discussion." Connor admitted that while so engaged with a group of drivers, someone asked "what was the story on the collect calls?" Connor told the group he had discussed the matter with Smith, but would proceed by filing a grievance in order to have the matter reviewed by the Eastern Conference. Connor admitted he went a bit further and "made my mistake" by saying "I don't live in an area where they make a collect call to. If it was my phone bill, I probably wouldn't accept them." Connor re- mained in the barroom a short while thereafter and then left for his home in the company of Assistant Shop Steward Kennedy. Smith testified that about midnight January 4, he received a telephone call at his home from Dispatcher George Holier, who repotted there were no drivers in the drivers' room to respond to the list call, and that the six drivers he called on the telephone did not accept the calls. Smith instructed Holier to comply with the terms of the Dispatch System agreement, proceed through the list in accordance with the seniority standing of the drivers, and assign a trip to any driver who either was not in the drivers'rroom to answer the call or did not answer the telhpone call. Smith testified that Holter called him again at about 2.45 a.m., January 5 to report that some drivers had accepted telephone calls and trips, but only one driver had ap- peared at the terminal 3 Smith testified that at about 10 am. Ed Hughes, union business agent, told him the Union was ordering the men back to work and had sent Connor to the terminal to help in this regard. Hughes also told Smith that he talked with Connor about the collect toll calls and advised him to file a grievance against Respondent regarding this issue. s This was Driver Warren Reed whose equipment had been previously loaded, but some mechanical trouble developed which prevented him from leaving This was not a trip which Reed had been assigned to from the Sunday-midnight list call. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD None of the 103 trips either selected or assigned from the January 5 midnight list call left the terminal until after the Union ordered the men back to work. Under date January 5, 1959, the Union by its business agent, Fred Meyer, filed a grievance against Respondent with the Joint Committee, a copy of which Re- spondent received on January 6, setting forth as its position, "It was a condition of ours ever since this terminal opened, that the drivers were allowed to pick their loads over the phone at the Company's expense, and the Company has taken this condition away and now makes collect calls to the employees." The Union claimed that by such action the "Maintenance of Standards" clause in the collective- bargaining agreement (article V, section 1) was being violated. It also set forth that this grievance was first taken up with Respondent on or about December 1, 1958.4 Smith testified that concurrently with the work stoppage, he initiated an investiga- tion in an effort to determine responsibility. In the course of his investigation Smith interviewed several Respondent dispatchers, talked with and obtained written state- ments from a number of drivers and also talked with some union officials and employees. Smith testified that based on the information thus collected, he had reason to believe that Connor caused and/or participated in the work stoppage in violation of the no-strike clause in the contract. The Respondent did not take disciplinary action against Connor based on Smith's belief. Instead on February 3, 1959, Smith on behalf of Respondent and in accordance with article VI-Grievance Machinery, of the contract submitted to the Joint Committee on the appropriate forms (1) request that determination be made as to Local 560's responsibility for the unauthorized strike and work stoppage; (2) request that determination be made as to Connor's responsibility for the unauthorized strike and work stoppage; and (3) request that determination be made as to Assistant Shop Steward Kennedy's responsibility for the unauthorized strike and work stoppage. On April 1, 1959, the Eastern Conference Automobile Transporters Joint Com- mittee met at the Governor Clinton Hotel in New York City. The business of the day included among other things, hearings on the matters submitted to it by Respondent on the issue of the unauthorized strike and work stoppage of January 5. A panel consisting of five employer representatives and five union representatives was designated to hear and decide whether or not the Union or Connor or Kennedy "was responsible in any way for the unauthorized strike and work stoppage under the terms of Article VI, Section 6 and Article VIII of the Master Agreement." The three cases were consolidated for hearing, since the evidence to be presented by the parties was the same, but it was also provided that separate decisions would be ren- dered by the Joint Committee. The record reveals that the Joint Committee does not have a verbatim transcript made of its proceedings. In the Connor matter, as in all other disputes which come before the Joint Committee, notes of the testimony and the exhibits offered in evidence are kept by Walter Shea an official of the Eastern Conference of Team- sters, and member of the Joint Committee. After the proceeding is completed, Shea writes up a set of minutes from his notes, which he submits to the cochairmen of the Joint Committee for examination. Thereafter the minutes are distributed to all of the members of the Joint Committee and at their next meeting, the minutes are presented for correction and approval. The minutes in the Connor matter (Respondent's Exhibit No. 10 in evidence) reveal that Respondent's case was presented by Smith in the form of affidavits from various employees and drivers, and by Smith's oral statements. Members of the Joint Committee panel asked Smith questions, which he answered. Connor ap- peared in person and presented his own case as well as the Union's and Kennedy's cases. He was also represented by Union Business Agent Fred Meyer. Connor told the panel his version of the January 4, 1959, union meeting. Among other testimony, he gave the reasons for calling the meeting; he stated he made efforts to get drivers to go to work after the meeting, and claimed that the alleged work stoppage was caused by Smith who did not permit certain men to take out loads. Members of the Joint Committee panel asked questions of Connor and Meyer which they answered. No witnesses other than Smith, Connor, and Meyer appeared before the panel. { It should be noted that the contract was not signed until December 7. The record reveals that even though the above-noted grievance was filed with the Joint Committee, further negotiations on this issue took place between Respondent and. the Union with the result that #21 Dispatch System, dealing with collect calls was deleted from the contract on January 23, 1959. UNIVERSITY OVERLAND EXPRESS, INC. 89 After hearing the evidence as presented the Joint Committee panel went into executive session and thereafter issued the following: It was the finding of the Panel, after full hearing and consideration of all testimony presented, that Steward R. Conner [sic] was solely responsible for the unauthorized strike and work stoppage under the terms of Article II, Section 1, Article VI, Article VII, Section 2, and Article VIII of the Agreement. Costs to be paid by the Union. The panel also found that neither the Union nor Kennedy was responsible for the unauthorized strike and work stoppage. Under date April 2, 1959, Smith by registered mail sent the following letter to Connor: DEAR SIR: The Eastern Conference Automobile Transporters Joint Com- mittee in its scheduled meeting at the Governor Clinton Hotel, New York City, on April 1, 1959 having heard Cases 85, 86, and 87 as listed on their formal docket and having rendered their decisions thereon, and said committee having fixed the sole responsibility for the unauthorized strike and work stoppage on your acts and actions during the period involved; we are in accordance with our letters and notices, discharging you for violation of the following pro- visions of our collective bargaining agreement: Article VIII-no strikes or lockouts. Article VI-Grievance Machinery (Failure to proceed thereunder). Article 11, Section 1-("Shop Stewards have no authority to take strike action or any other action interrupting the employer' s business ...") Article VII, Section 2-("calling an unauthorized strike"). Your discharge is to be effective as of April 2, 1959. On April 7, 1959, the Union by its Business Agent Ed Hughes submitted a griev- ance to the Joint Committee on behalf of Connor, asserting the following: I am appealing my discharge dated April 2, 1959. I base my appeal on the fact that I did not call a strike. I was not involved in one myself. I did everything in my power to get men to work on the day in question. There was no proof of any kind presented to the panel of the Eastern Conference that I called a work stoppage or strike. I am also requesting copies of all evidence presented the panel on this case and copies of any minutes concern- ing it. On May 20, 1959, the Joint Committee met. It appointed a panel consisting of five union and five employer representatives to hear and decide the grievance sub- mitted by the Union involving Connor's discharge. The minutes of the hearing in evidence reveal that a technicality involving the terms of article VII section 3 of the Agreement-Appeal from Discharge or Suspension, developed. Connor appeared in person and was represented by his counsel William Curtin, attorney for the Eastern Conference of Teamsters. An employer representative on the panel con- tended that the present submission was an appeal from a decision which had already been rendered by the Joint Committee. Curtin argued that Connor by virtue of the "issue" in the previous case (the April 1 hearing) had not been properly notified that a question of discharge was before the Joint Committee, moreover Connor did not gather any evidence supporting his position in the previous case, and that since his discharge he has collected evidence to support his position under article VII, section 2 of the Agreement and finally, Curtin, citing the laws of evidence argued that a person is entitled to a new hearing if there is any new evidence. The panel in executive session decided to recommend the following providing all parties agreed: (1) Waive article VII, section 3, in that the Local Union and Robert Connor did not properly comply with the terms of this provision in processing Case No. 110 (the present grievance); and (2) amend the grievance as submitted to read as follows: Was the action taken by the Company proper subsequent to the decision ren- dered by the Panel in Case No. 86, in the discharge of Robert Connor. The parties agreed to this decision of the panel. Curtin then presented the Union's case and introduced all of the new evidence, consisting of signed statements from employees and a "notice to claimant of benefit determination" an unemployment insurance form which Connor had obtained. Connor also testified and answered the panel's questions. Smith presented the 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's case. Upon the completion of the taking of testimony and the pres- entation by the Parties, the Joint Committee panel in executive session ruled that the action of the Respondent in the discharge of Connor be sustained, with costs of the hearing to be paid by the Union. Contentions and Conclusions A main contention in this proceeding raised initially by the Respondent in its answer and reiterated at the hearing and in its brief is that in accordance with Board decision 5 and its announced objective of encouraging the voluntary settlement of labor disputes, the arbitration awards of the Joint Committee panel control and warrant the dismissal of the complaint in this matter. The General Counsel's position is to the contrary. It must first be pointed out that the Board is not bound, as a matter of law, by an arbitration award. As the Court of Appeals for the Ninth Circuit said in N.L.R.B. v. Walt Disney Productions, 146 F. 2d 44 (C.A. 9), cert. denied 324 U.S. 877, "Clearly, agreements between private parties cannot restrict the jurisdiction of the Board. We believe the Board may exercise jurisdiction in any case of an unfair labor practice when in its discretion its interference is necessary to protect the public rights defined in the Act." In a number of cases involving an arbitration award, the Board has refrained from exercising jurisdiction and in its decisions set forth the policy, "that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the arbitrator's award." See The Timken Roller Bearing Company, 70 NLRB 500; Paramount Pictures, 79 NLRB 557; Spielberg Manufacturing Company, supia; The New Britain Machine Company, 116 NLRB 645. In another group of cases Hamilton-Scheu & Walsh Shoe Co., 80 NLRB 1496; The Wisconsin Axle Division, etc., 92 NLRB 968; Monsanto Chemical Com- pany, 97 NLRB 517; and Wertheimer Stores Corp., 107 NLRB 1434, where the Board found the result of the arbitration award not in accord with statutory objec- tives or policies, or that requisite procedural protections had not been accorded employees, it disregarded the arbitration award and decided the cases on the merits. In the Spielberg case, supra at page 1082 the Board stated the circumstances under which it will recognize an arbitration award as follows: 1. The parties, including the affected employees, must have acquiesced in the arbitration proceeding, and agreed to be bound by the decision of the arbitration panel. 2. The arbitration proceeding must have been fair and regular. 3. The decision of arbitration panel is not clearly repugnant to the purposes and policies of the Act. Of particular significance, throughout the cases noted above the Board makes reference in its decisions to "decision of the arbitration panel," or "arbitration," or "arbitrator's award." The Board has not however defined nor has it explicated the "makeup" of an "arbitration panel." The questions presented to me are (1) Does a panel consisting of an equal number of representatives of the employer and the union, constitute an "arbitration panel" as that term is invoked by the Board, and (2) will an award of such a panel be acceptable to the Board as an "arbitration award," all other indicia of Spielberg having been met? Or did the Board have in mind that an award must have been made by a panel which includes an impartial member or members along with management and union representatives, or an award by a single impartial person not connected with either the employer or the union? Arbitration is defined in Black's Law Dictionary, fourth edition, as the investiga- tion and determination of a matter or matters of difference between contending parties. by one or more unofficial persons. chosen by the parties, and called arbi- trators or referees. Arbitrator is defined in Black's as a private, disinterested person, chosen by the parties to a disputed question, for the purpose of hearing their conten- tion and giving judgment between them. (Emphasis supplied I Indeed, the collective-bagaining agreement between the parties herein, provides in article VI, section 5, "Deadlock and Arbitration" for the submission of a griev- ance or dispute to an impartial arbitrator in the event such grievance or dispute c Reference is made by the Respondent to Spielberg Manufacturing Company. 112 NLRB 1080, and tho fact that the Spielberq case was cited with approval by the Fifth Circuit Court of Appeals in Lodge No 12, International Associattion of Machinists v Cameron Iron Works, Inc., 257 F. 2d 407, 473. UNIVERSITY OVERLAND EXPRESS, INC. 91 cannot be satisfactorily settled by a majority decision of the Joint Committee panel. Furthermore, it appears clear from the terms of the agreement that the decision of the Joint Committee panel is merely the second step in the grievance machinery, one step below the impartial arbitrator stage. Finally, from a realistic point of view in the field of labor relations, it should be pointed out that employees who agree to be bound by the determination of an "arbitrator" or an "arbitration panel" are entitled to the presence on such panels of an impartial arbitrator who will assure the fairness and regularity of an arbitration hearing. I have no doubt that this concept was what the Board contemplated in its decisions noted above, rather than as Respondent contends herein the award of a panel which does not include an impartial, private, disinterested, person. Since the Joint Committee panel did not include in its makeup, an impartial, private, dis- interested, person, I find that its decisions in the Connor matter are not "arbitration awards." I do not accept Respondent's defense in this regard. I have hereinabove noted that the record made by the Joint Committee panel which heard the Connor dispute consisted of minutes of a secretary of the Eastern Conference. Since I have rejected Respondent's defense that the Board should accept the "arbitration award" of the Joint Committee panel and not assert jurisdic- tion herein, there is no need to discuss whether such a record is sufficient to meet the "fairness and regularity" requirement of the Board as set forth in Spielberg, supra. I note however, my full agreement with the nature of the record required in "arbitration award" cases comprehensively discussed by Trial Examiner Charles W. Schneider in the Hershey Chocolate Corporation, Intermediate Report, Case No. 4-CA-2001, issued on April 20, 1960. We turn next to the merits of the issue and the General Counsel's contention that Respondent was motivated in discharging Connor because of his zealousness as a shop steward for and on behalf of the Union and not for the reason that it believed Connor was responsible for the unauthorized strike and work stoppage. The burden of proof rests on the General Counsel to prove affirmatively, by sub- stantial evidence, that Connor's discharge was due to his union activities. "The thought that a discharged employee may be engaged in labor union activities at the time of his discharge, taken alone, is no evidence at all of a discharge as the result of such activities. There must be more than this to constitute substantial evidence." N.L.R.B v. The Citizens-News Company, 134 F. 2d 970, 974 (C.A. 9). The General Counsel adduced testimony from Connor that during his tenure as union shop steward from January 1958 until April 1959, he handled approxi- mately 800 written grievances, plus others that were not in writing, in addition to "other duties" and "obligations" which were given to him by his Local Union and the International, "some of them in pamphlet form, some of them verbally." Questioned as to the "duties and obligations," Connor answered "things such as if you see a condition that exists that shouldn't exist, to correct it, to correct it not just for one driver but for all drivers such as if one man comes to you with an unjust suspension, don't wait until 150 men are mad at the steward, at the Company, at the Union, try and set a precedent with the one thing so that that thing doesn't keep happening and happening. Try to call meetings of the men and try to explain a thing one time so that everyone or at least the people attending the meeting will understand what it is all about, instead of getting yourself all mixed up and every- one getting a different version of the thing. Naturally, there is other duties, col- lecting dues, doing the best you could to see your members in good standing, understood what their duties were to the Union and the Company and call meetings to give the men the information they need. Calling meetings at times. I think that's about the other duties." Connor also testified that as shop steward he instituted a system of filing grievances when a steward was on the road and not available. Further, that he obtained certain benefits for the employees, such as 25 additional trailers and tractors, so that the men would not lose time if a trailer or tractor was laid up because of mechanical difficulty. Connor admitted however that all of the "innovations" and "benefits" were obtained as a result of negotiations between Respondent and other union officials, with whom he participated in the course of his regular duties as shop steward. In an attempt to prove the Respondent's bias against Connor, the General Counsel adduced testimony from him that in late December 1958, be overheard a conver- sation engaged in by employer and union representatives at one of the Eastern Conference meetings at the Governor Clinton Hotel, when it was mentioned by an employer representative, "that I [Connor] was taking my job too serious, the way they interpreted the contract I was only supposed to handle such things as would 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be delegated to me from time to time . .... Connor claimed at that point he entered the discussion and commented that if he was going to have to call the union hall every time a man came to him, they had better find themselves another shop steward. Connor continued to act as shop steward and processed all grievances that arose until his discharge. The General Counsel also relies on a remark made by Paul May,6 during a griev- ance discussion when May said to Connor "the hell with the Union. I have seen guys like you come and go before. I'll see you go. If I handled the last arbi- tration case you wouldn't be here now." Connor admitted that May was referring to a grievance involving himself which had been processed through the grievance machinery, and Connor's position was sustained. It also appears from the testi- mony of Raymond Cooper, Respondent's manager of personnel, safety, and claims, which I credit, that he had been discussing a grievance regarding breakdown pay of employee Gerald Raymond with the employee, Connor and Kennedy when May walked into the office and entered the discussion. Connor and May got into an argument and Connor told May he was from Chester and had nothing to do with Mahwah. The argument became heated with Connor and May shouting at each other, when May made the remarks attributed to him. Such remarks made during a grievance session which becomes heated, with participants' tempers rising, while perhaps regrettable, certainly are not sufficient upon which to base a finding of Respondent's bias against Connor. Finally the General Counsel relies on a remark made by Cooper to Connor in December 1958. Connor testified that he went to see Cooper to straighten out a grievance by a driver on breakdown time. Cooper told Connor he could not be bothered just then, that he had to go over to the shop. Connor complained to Smith and when he saw Cooper later, the latter remarked "you got so many grievances, I don't have time for them all the time." This, in my opinion was a completely innocuous remark by Cooper, and I will not base any finding of antiunion bias thereon. Smith who has been handling grievances for many years testified there was nothing abnormal about Connor's grievance handling. He stated that Connor's claim of handling over 800 written grievances in a period of 15 months was an exaggeration. With this I am inclined to agree. There is no doubt in my mind from observing Connor testify and from a thorough study of the record, that he took his job as shop steward seriously However, this was his duty and it does not appear that he handled it differently than did other shop stewards. Nor does it appear from the record that Respondent treated Connor differently than it did other shop stewards. On the other hand the Respondent has been dealing with the Teamsters for many years. Indeed, the record is devoid of any antiunion animus on its part. When we consider the facts found above, particularly Connor's admitted mistake when he told a group of employees after the union meeting on the night of January 4, 1959, that he would not accept collect toll calls made to him, I find it incon- ceivable under all the circumstances, that Connor was an uninformed and innocent bystander to all the events leading up to the unauthorized strike and work stoppage of January 5. It must also be borne in mind that Connor was an active union participant in the negotiations leading to the signing of the present collective- bargaining agreement between the parties, which contains a valid no-strike clause. As the shop steward and one of the contract negotiators, Connor had an even greater duty than the rank-and-file employees to uphold the contract provisions. See Stockham Pipe Fittings Companies, 84 NLRB 629. Under all the circumstances and upon the entire record, I find that the general counsel has not sustained his burden of proving by a preponderance of the evidence that Connor was discrimi- natorily discharged. I further find that Respondent had reasonable cause to believe that Connor was responsible for the work stoppage on January 5, 1959. I will hereinafter recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. The operations of the Respondent, University Overland Express Inc., consti- tute and affect trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 8 Paul May is director of safety and personnel for Nu-Car Carriers, Inc, an affiliate of Respondent May's office is in Chester , Pennsylvania . He visits Respondent's plant in an advisory capacity and participates in the handling of grievances. BARGAIN CITY, U.S.A., INCORPORATED 93 2. Local 560, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. [Recommendations omitted from publication.] Bargain City, U.S.A., Incorporated , a Pennsylvania Corporation and its wholly owned subsidiary, Bargain City, U.S.A., Incor- porated, a Delaware Corporation and Retail Store Employees Local 400, Retail Clerks International Association , AFL-CIO and Retail, Wholesale & Department Store Union, AFL-CIO, and its Local 770, Party to the Contract. Case No. 5-CA- 1550. September 2 , 1960 DECISION AND ORDER On October 23, 1959, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. The Charging Party filed exceptions and a. brief, and the Respondent filed a brief. The Party to the Contract also filed a brief. Subsequently, by Order dated January 28, 1960 the Board remanded this matter to the Trial Examiner, who was directed to hold a further hearing to permit the parties to introduce into evidence certain testi- mony and documents previously excluded. After the further hearing was held, the Trial Examiner made his Supplemental Intermediate Report on April 27, 1960, also attached hereto, wherein he also re- issued the Intermediate Report dated October 23,1959. The Charging Party again filed exceptions and a supporting brief, and the Em- ployer filed a brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearings and finds that any prejudicial error which may have been committed in the first hearing was cured at the hearing on the remand, and that no prejudicial errors were committed in the hearing on the remand. The rulings of the original hearing are hereby affirmed, excepting those rulings which excluded evidence the parties were permitted to introduce at the reopened hearing pursuant to the Board's remand. The rulings of the Trial Examiner at the hearing 129 NLRB No. 16.