F.M. Charlton Co., Inc.

F.M. CHARLTON CO., INC. F.M. Charlton Co., Inc. and Richard Matrullo Paper Products and Miscellaneous Chauffeurs, Ware- housemen and Helpers Local 27, affiliated with In- ternatioral Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Rich- ard Matrullo. Cases 2-CA-14828 and 2-CB-6658 November 28, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELIO AND TRUESDALE On August 2, 1978, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and the Respondent Employer filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the fulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policN nor to overrule an Administrative Law Judge's resolutions with resepit lo credibih- iy unless the clear preponderance of all of the relevant evidence consinces that the resolutions are incorrect. Srandard Dr, W4oall Products, Inr, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 19511 We hasve carefully examined the record and find no basis for reversing his finding, DECISION MAX ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in New York, New York, on September 19, 20, 21, and 23, 1977, upon a consolidated complaint filed by the General Counsel of the National Labor Relations Board and an- swers interposed thereto by F. M. Charlton Co., Inc., herein called the Respondent Charlton or Charlton, and Paper Products and Miscellaneous Chauffeurs, Ware- housemen and Helpers Local 27, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Respondent Union or Union. At issue is whether Charlton and the Union violated Section 8(a)(4) and (b)(l)(A) of the Na- tional Labor Relations Act, as amended, respectively, by certain conduct to be detailed hereinafter.' Briefs have been received from the General Counsel and Charlton which have been duly considered. Upon the entire record made in this proceeding, includ- ing my observation of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT CHARI.TON At all times material herein, Respondent Charlton has maintained an office and place of business in the City and State of New York, where it is engaged in the business of binding paperback books, pamphlets, and other printed matter, and of performing related services. During the sa- lient period, Charlton purchased and caused to be trans- ported and delivered to its place of business, goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from States of the United States other than the State of New York. The complaint alleges, the answer ad- mits, and I find that Charlton is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORG;ANIZAIION INVOLVED It is undisputed and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALI E(;I,) UNFAIR LABOR PRACTICES The complaint alleges that Respondent Charlton vio- lated Section 8(a)(4) of the Act when, on March 11, 1977,2 it discharged Richard Matrullo because he had filed charges and gave testimony under the Act against Charl- ton. The complaint further alleges that Respondent Union violated Section 8(b I )(A) of the statute on March 24, and on various other dates during the months of March and April, by failing and refusing to process Matrullo's griev- ance arising out of his discharge pursuant to the terms of a collective-bargaining agreement in existence between the parties. Both Charlton and the Union deny' the commission of any labor practices banned by the controlling legisla- tion. Chariton is engaged in the business of assembling, bind- ing, packing, and delivering books and related materials to The conrsolidated complaint, which issued on May' 27, 1977. is based upon a charge filed in C ase 2 CA 14828 on April 11, 1977. and served on April 12. 1977, and a charge filed in Case 2 C(B 66S8 on April 6. 1977, and sersed on April 7, 1977 tnless oiherguise indicalred all dates herein fall In 1977. 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customers, after receiving the printed raw materials from those enterprises. To accomplish this task, Charlton retains approximately 150 bindery employees who are collectively represented under contract with Graphic Arts Internation- al Union Local 119B, New York, herein called Local 119B. At all material times, Charlton also employed two truck- drivers and two platform men who were represented for bargaining purposes by the Union, and whose duties con- sisted of loading and unloading Charlton's product and making deliveries and pickups to its customers. It is undis- puted and I find that William Zippilli, who held the office of shop steward for the Union, and Richard Matrullo, were classified as truckdrivers, and Tony Maggio and Jerry Urso were designated as the platform men. In order of seniority, Matrullo was the most junior employee. Richard Matrullo, the Charging Party, who had joined the Union in 1970, was first employed by Charlton as a temporary truckdriver in June 1975, and became a regular driver in July 1976. His duties consisted of driving a truck to deliver bound articles to Charlton's customers and to pick up printed materials from the customers for binding in Charlton's plant. Under existing company procedures, drivers who would normally be furloughed temporarily for lack of work were permitted to bid for platform duties if available based upon their overall seniority status in the unit of truckdrivers and platform men. On or about October 29, 1976, Matrullo learned that he would be placed in layoff status the following week. That afternoon, he approached Joseph Cilibrasi, Charlton's president, and informed the latter that, due to his lesser seniority as a truckdriver, he anticipated being laid off the following Monday. In their conversation, Matrullo re- marked that he understood that platform work would be available commencing on Monday because Charlton would be handling the New York Times' newspaper sec- tions, and he laid a claim to the work. When Cilibrasi re- plied that the newspaper work would not be performed until later in the week, the discussion ended. On November 1, 1976, Matrullo again met with Cilibrasi and sought plat- form assignments for that evening. Cilibrasi reiterated that he had no need for Matrullo's services, whereupon Matrul- lo, despite his junior seniority status, retorted, "Look, if you're going to use anyone other than me, I'm going to claim the day's pay." On November 5, 1976, Matrullo visited the Union's of- fices where he reported to Robert Crapanazano, the Union's secretary-treasurer, that he had been denied plat- form work on November I and 2 at the Charlton dock and that he desired to register a grievance claim for payment for those days pursuant to an arbitration clause contained in the contract between Charlton and the Union. Crapana- zano telephoned Cilibrasi and conveyed Matrullo's com- plaint about his denial of pay to Charlton's president. When the dialogue terminated, Crapanazano told Matrullo he had ironed out the problem with Cilibrasi and that henceforth Matrullo would be eligible to perform avail- able platform work. However, Matrullo persisted in press- ing his demand for payment, at which juncture Robert Crapanazano instructed the former to present the matter to Patrick Crapanazano, a union business agent who handled the shop, for possible arbitration. On November 12, Matrullo returned to the union head- quarters and met with Patrick Crapanazano. Matrullo once more insisted upon the payment of 2 days' wages, and the business agent advised him to forget about the matter. However, Patrick agreed to pursue the grievance with Cili- brasi and Matrullo returned to work. On November 13, 1976, Charlton's bookkeeper proffered Matrullo a check for I days' pay. Upon receiving the draft and observing the amount, Matrullo returned it to the bookkeeper with the comment that "When you make out the proper amount, I'll pick it up." Shortly thereafter, Cilibrasi emerged from his office and informed Matrullo that the latter was not enti- tled to any remuneration because Tony Maggio, conceded- ly a more senior employee, had made a prior claim for the work which lasted for but I day and was thus deserving of the time. Upon receiving this rebuff, Mattrullo immedi- ately called Patrick Crapanazano and related the contents of his conversation with Cilibrasi. Patrick instructed Ma- trullo to summon Cilibrasi to the telephone and, after their discussion of the matter, Patrick reported that only 1 days' pay was involved and that Maggio was entitled to it on the basis of seniority. Matrullo contended that Cilibrasi was in error, but Patrick rejected this contention. Still unsatisfied, Matrullo enlisted the aid of Shop Steward William Zippilli, and together they called upon Patrick Crapanazano. At this session, which took place on November 15 or 16, 1976, Matrullo offered to prove that 2 days' pay was involved, but Patrick counselled Matrullo to forget about the matter because it could not be successfully arbitrated, and he as- sured the employee that "In the future, call me up. I'll be right there on the spot." Events abided until December 17, 1976, when Matrullo was laid off from work with Charlton. Matrullo testified that, following his layoff, he attempted to contact Business Agent Patrick Crapanazano "to put me back on my job because the shop steward, William Zippilli, I had met him about two weeks after my layoff ton December 17, 1976] and he told me, 'We're busy as hell. He's [Cilibrasi] using outside trucks to do your work and you should go to the Union.' " According to Matrullo's direct testimony, Zippil- li volunteered that Cilibrasi was refusing to recall Matrullo because he had filed a grievance with the Union concern- ing the 2 days' pay in November 1976, and Matrullo opined that "I figure that was the reason he was prolonging the layoff." However, on cross-examination, Matrullo was questioned as to how Zippilli received this intelligence. Matrullo then confessed that "whether he [Zippillil was told or not, he didn't say it. Might have been his personal observation. It might have been that someone told it to him. I don't know for sure." Following his layoff on December 17, 1976, Matrullo sought the assistance of the New York City Human Rights Commission, the American Civil Liberties Union, various Congressmen, New York assemblymen and district lead- ers, other city and state agencies, and the President of the United States, to effect his recall. 3 Failing to receive any It is uncontroverted and I find that none ot these individuals, organiza- tions, or agencies ever contacted Respondent Chariton regarding Matrullo's complaints, and only the New York Cit,, Bureau of Labor Services got in touch with Respondent Union in April as a result of his search for assis- tance. 518 F.M. CHARLTON CO., INC. affirmative action from these sources, and convinced that his layoff had been triggered by his earlier insistence upon payment of the 2 days' wages, Matrullo filed charges on February I with the Board's Regional Office in Case 2- CA-14690 alleging that Charlton had laid him off on De- cember 17, 1976, "because of his union and protected con- certed activities and has refused to recall him since that date," all in violation of Section 8(aX3) of the Act. Matrul- lo also filed charges on the same date against the Union in Case 2-CB-6541 in which he alleged that the Union had offended the provisions of Section 8(bX)(IXA) of the statute by its failure "to process the grievance of Richard Matrullo relating to his layoff because of arbitrary, invidious, and unlawful considerations." After a careful investigation of the charge against Charlton, the Acting Regional Director for the Region mailed a letter to Matrullo on February 23, in which he announced that: The evidence does not tend to establish that [Charl- ton] violated the National Labor Relations Act as al- leged by you. The evidence establishes that you were laid off because of a decline in business operations, and not because of your activities on behalf of Local 27, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, nor for any other reason proscribed by said Act. Further, the evidence does not tend to establish that the Company violated the Act in any other manner encompassed by your charge. I therefore am refusing to issue a com- plaint in this matter. On the same date, the Acting Regional Director dispatched another letter to Matrullo in which he recounted that the companion charges against the Union had also been found to be lacking in merit and would therefore be dismissed. Pursuant to the Board's Rules and Regulations, Matrullo appealed the dismissal of his charges to the office of the General Counsel of the Board in Washington, D.C. By le:- ter dated March 22, that office advised the appeallant that: Your appeal from the Regional Director's refusal to issue complaints in the [cases filed against Charlton and the Union] has been duly considered. The appeal is denied substantially for the reasons set forth in the Regional Director's letters of February 23, 1977. Meanwhile, Matrullo had obtained employment with another enterprise. The record discloses and I find that, in mid-February, Paul Reyes, Charlton's shipping clerk, learned that William Zippilli, the senior truckdriver at the plant, would be absent from work that day due to an ill- ness. Upon receiving this information, Reyes telephoned Matrullo's home to ascertain the latter's availability. Reyes spoke to Matrullo's wife who informed him that her hus- band was working for another firm. Reyes told Mrs. Ma- trullo that, in view of her husband's unavailability, Charl- ton would be obligated to contact the Union for a replacement. Thereupon, Reyes placed a call to that labor organization and a driver named Joe Williams was referred to Charlton to fill the absent Zippili's slot. On February 21I, Matrullo passed by Charlton's dock and noticed that Wil- liams was toiling as a truckdriver along with platformman Tony Maggio. Matrullo approached Maggio and inquired into the reason for this happenstance. When Maggio was unable to account for Williams' presence, Maggio sought out an official of Charlton named Max Zoline. Zoline re- ported that a second truck would be utilized indefinitely and that Williams was scheduled to perform the driving duties. Matrullo protested this assignment, in consequence of which Zoline suggested that Matrullo check with the Union. On February 22, Matrullo revisited the plant and spoke with Shop Steward William Zippilli regarding the contin- ued employment of Williams. According to Matrullo's tes- timony, Zippilli agreed that the former was entitled to the work, and told Matrullo that he would cause a work stop- page the following day in the event Charlton refused to assign the second truck to Matrullo and displace Williams. Later that day, Matrullo spoke to Union Business Agent Frank Garcia. At the inception of their conversation, Ma- trullo told Garcia that "there's another man over here. He come in to fill in one day and they decided to keep him on indefinitely. I was supposed to be called back before him." Garcia replied, "You wasn't around last week when they called you for one day. You didn't cover the job. This man [Joe Williams}-so, first come, first served." When Matrul- lo complained that he was entitled to the work, Garcia finally consented to call the Union Hall and speak to Sec- retary-Treasurer Robert Crapanazano about the matter. Sometime later, Garcia telephoned Matrullo at home and related that he had obtained the approval of John Newton, Charlton's plant manager, and Robert Crapanazano for Matrullo to report for work the next morning, February 23. Following Garcia's call, Matrullo testified that the shipping clerk, Paul Reyes, placed a call to Matrullo to inform the latter that Reyes had gotten a message from the Union apprising him that Matrullo was to return to work on Feb- ruary 23, and Reyes informed Matrullo that "it's only one or two days' work." Matrullo replied that, "Whatever it is, I'll be in." Hence, on the very day on which the the Board's Regional Office dismissed the charges which Matrullo filed against Charlton and the Union, Charlton, at the Union's behest, unconditionally recalled him to duty. Despite Reyes' alleged prediction that Matrullo's re- newed tour of duty would last only a few days, Matrullo nevertheless continued in his job as a truckdriver uninter- ruptedly until March I 11. It is Matrullo's testimony that, around the end of February while he was working on the dock, Reyes approached and stated that "I just spoke to Joe Cilibrasi and he's been asking me how you're doing and I told him you're doing a good job." Reyes then added that "I think Joe's picking on you for some reason. I don't know why. He's always looking to get something on you." 4 Matrullo further testified that, on the morning of March II, he approached Reyes in the shipping room and told 4During his examination by the General Counsel, Reyes was shown a sworn affidavit which he gave to a Board agent dunng the investigation of the instant cases. In that sworn statement REyes avvered that, after Matrul- lo was recalled to work on February 23, "Richie worked okay I had no complaints about his work." 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipping clerk Reyes, "Paul, I just called my house. Some- thing came up. I'm going to have to take two weeks off." According to Matrullo, he did not go into detail regarding his impending absence, and Reyes responded, "Okay, Ri- chie, but you call the union and make sure you get a man to cover and ask for Joe Williams. They like the way he works. He's been here before." Matrullo immediately tele- phoned the union hall and spoke to the office secretary. In the ensuring conversation, Matrullo asked her whether Joe Williams was available for work at Charlton because "I'm going to need a man to take my place for two weeks," and received an affirmative response. Matrullo then informed Reves that the Union had confirmed Williams' availability. A short while later, Reyes came to Matrullo and comment- ed that "I just spoke to Joe Cilibrasi. I told him about the two weeks you got to take off. Says, it's all right, but you call a few days ahead of time so we could give the other man notice, the man that's going to replace you." Immedi- ately thereafter, Matrullo received his delivery orders and commenced his run. At the conclusion of his direct exami- nation on this score, Matrullo asserted that he did not quit his job on March 1 I. On cross-examination, Matrullo repeated that he did not give Reyes any reason for his intended leave of absence and that Reyes failed to ask for one. Initially, Matrullo steadfastly denied that Reyes advised the former that the shipping clerk had no authority to grant time off to Ma- trullo, or that Reyes had told Matrullo that Reyes would first have to check with Charlton's President Cilibrasi be- fore permission could be granted. While Matrullo insisted that Reyes "gave me permission on the spot," he then added that "Then, later on, he said Joe [Cilibrasi] also ap- proved it." Matrullo further confessed that, whenever he had sought a change in his terms and conditions of em- ployment at the plant, he uniformally broached the matter to William Zippilli, the Union's shop steward and chapel chairman, who instructed Matrullo to seek those changes directly from Cilibrasi, and that Zippili was not on duty at the plant on March II when Matrullo sought permission to leave that day. Continuing the narrative, Matrullo testified that, on March 24, he telephoned Paul Reyes at the plant to notify him that Matrullo planned to return to work on Monday, March 28. Reyes replied, "Don't bother coming back." When Matrullo inquired whether Charlton was utilizing only one truck, Reyes stated that "we don't need you. We're keeping the other man," and advised Matrullo to contact his Union. Following this conversation, Matrullo placed a call to the Union and spoke to Joe Mingo, another business agent, and reported the problem to him. Because Patrick Crapanazano was in charge of servicing the union members at the Charlton plant, Mingo advised Matrullo to get in touch with Patrick. On March 24 and 25, Matrullo telephoned the Union in quest fo Patrick Crapanazano, but on each occasion the office secretary stated that Patrick was not at the union hall. On March 28, Matrullo tele- phoned Business Agent Frank Garcia at union headquar- ters and reiterated the story he unfolded to Mingo that Matrullo had notified Respondent of his plan to return to work on March 28, but had been told by Reyes that there was no work for him and that Joe Williams had taken his place. Garcia informed Matrullo that the former would leave a message for Patrick Crapanazano detailing Matrullo's complaint because "[h]e [Patrick Crapanazano] handles that shop." During the remainder of the month of March, Matrullo attempted to contact Patrick at the union hall without success. According to Matrullo, he was never informed by the Union that Crapanazano was absent due to illness at this time. Matrullo further testified that, on April 5 or 6, after fail- ing to reach Patrick Crapanazano in an effort to return to work at Charlton, he called Charlton's President Cilibrasi. At the outset of their conversation, Matrullo asked, "Joe, I'd like to know what's going on," and Cilibrasi replied, "You quit." Matrullo retorted, "What do you mean by quit? I didn't quit. I had a leave of absence. It was ap- proved by you and Paul." Cilibrasi responded that "I don't know anything about it. All I know is Paul told me you quit." In his testimony, Matrullo denied that he became verbally abusive to Cilibrasi during their discussion or that he had threatened to obtain a lawyer and sue him. On April 6, Matrullo proceeded to the Board's Regional Office and filed charges against the Union in Case 2-CR- 6658 alleging that "Since on or about March 24, 1977, [the Union] failed to represent Richard Matrullo in his griev- ance relating to his reinstatement after a leave of absence, for arbitrary and invidious reasons," in violation of Section 8(b)(1)(A) of the Act. On April 11, Matrullo also filed charges against Charlton in Case 2-CA-14828. In these charges, he alleged that "Since on or about February 17, 1977, [Charlton] has discriminated against [Matrullo] by replacing him on recall and on recall list with another per- son newly employed, and, after subsequently employing Matrullo, and authorizing a 2-week leave of absence, firing him, all because of his demanding enforcement of the col- lective bargaining agreement and filing a charge or charges, in or about November 1976, with the Board, against the employer and Local 27, IBT," and that Charl- ton thereby violated Section 8(a)(3) and (4) of the Act.5 After a careful review of the entire record made in this proceeding, I am not convinced that the General Counsel has sustained his burden of proof by a preponderance of the evidence taken as a whole that either Charlton or the Union had offended the provisions of Section 8(aX4) or (b)(l)(A) of the Act in their dealings with Matrullo. To support his legal stance, the General Counsel main- tains that Charlton knowingly granted Matrullo permission to absent himself from work for a 2-week peiod on March 11 and, on March 24, refused to restore Matrullo to its employment rolls, in order to punish him for having filed charges against it with the Board on February 1. Taking aim at the Union, the General Counsel argues that the Union's refusal to pressure Charlton, pursuant to its con- tractual grievance procedures with Charlton, to recall Ma- trullo on and after March 24 violated its statutory duty effectively to represent him. As heretofore chronicled, Matrullo testimonially claimed that, on March II, he received permission "on the spot" In his complaint, the General Counsel abandoned any contention that Charlton's conduct with regard to Matrullo was violative of Sec. 8(aX3) of the statute. 520 F.M. CHARLTON CO., INC. from Shipping Clerk Reyes to take a 2-week leave of ab- sence, and that Cilibrasi approved the absence later that day. In this connection, the General Counsel sought to por- tray Reyes as a statutory supervisor whose deeds and words were binding upon Charlton. While I do not deem Reyes' supervisory status as critical to a decision herein. the record discloses and I find that, pursuant to the provi- sions of a collective-bargaining agreement between Re- spondent and Local 119B covering the bindery employees, Charlton was obligated to maintain a shipping clerk at the plant and Reyes, who was covered by the contract and belonged to Local 119B, was appointed to that classifica- tion by his union. It is undisputed and I find that all sched- ules and routings of truckdrivers are prepared by either President Joseph Cilibrasi or Plant Superintendent John Newton, and are transmitted to Reyes for execution. Reyes has no authority to hire, discharge, or discipline truckdriv- ers or platform men and, whenever a new driver is needed or a currently employed driver must be furloughed, these decisions are made by either Cilibrasi or Newton, and Reyes merely acts as a conduit to siphon this information to the Union as required under the labor compact between that labor organization and Charlton. Indeed, Reyes' rate of pay as established under the Local 119B contract is con- siderably less than that paid either to the other supervisors and foremen employed by the company, or to the truck- drivers and platform men whom he allegedly supervises. Upon the record as a whole, 1 am perauaded that Reyes was not a supervisor within the contemplation of Section 2(1 1) of :he Act at the times material herein. Reyes testified that, toward the end of February while Joe Williams was working as a truckdriver as a replace- ment for William Zippilli, Matrullo came to the plant and claimed the work. Matrullo thereupon called the Union. Following Matrullo's call, Union Business Agent Frank Garcia telephoned the plant. Because of Cilibrasi's ab- sence, Reyes and Plant Superintendent Newton engaged in a conference call with Garcia during which the Union rep- resentative requested that Charlton lay off Williams and recall Matrullo. With Newton listening, Reyes told Garcia that "Joe Cilibrasi is not here and I can't do this without his permission." According to Reyes, "The union guy [Gar- cia] got real mad at me and said you got to do this and I'm going to be there at 7:00 a.m. and you ain't going to move one truck." At this juncture, Newton acquiesced in Garcia's demand and instructed Reyes to replace Williams with Matrullo. Reyes informed Williams of the decision, and contacted Matrullo to report that the latter should show up for work on February 23. Reyes further testified that, on March Il 1, Matrullo ap- proached him and said, "'Paul, something come up. I got to go out of town for couple weeks.' I say, 'I can't give you no permission. You got to talk to Mr. Cilibrasi or the union because we are very busy and I need truck driver.' And at that time he no go to see Mr. Cilibrasi. He call the union, talk to somebody there. I don't know who it was. And I told him, 'Now, you are on the phone, tell the union if it's okay I call Joe Williams because I got his telephone num- ber.' And Richie come back; he told me, 'Paul it's okay, you can call Williams.' " At the conclusion of the conversa- tion, Reyes instructed Matrullo to call him at the plant in a few days before his contemplated return because Reyes had to check to see if work was available for Matrullo. Charlton's president, Joseph Cilibrasi, testimonially re- ported that, on the afternoon of March 11, Paul Reyes entered his office and related that Matrullo "says he has got to go out of town. He is going to be out a couple of weeks." Reyes added that he told Matrullo that he had no authority to grant any time off and advised Matrullo to contact Cilibrasi or the Union. According to Cilibrasi, Charlton was experiencing a surge in business activities and the company was in dire need of a truckdriver. In consequence thereof, Cilibrasi instructed Reyes to be sure and contact the Union to replace Matrullo. Cilibrasi's testi- mony is undenied and I find that Matrullo never sought the former's permission to absent himself from work on March I 1. After Reyes supplied Cilibrasi with information concerning Matrullo's intended absence, Cilibrasi told Reyes that "As far as I am concerned, he [Matrullol quit." In explaining his reason for reaching this conclusion, Cili- brasi noted that, pursuant to the terms of the collective bargaining agreement between Charlton and the Union, no provision is made for leaves of absence other than for va- cations or when employees are elected to union office, and a perusual of that contract substantiates Cilibrasi's expla- nation. Moreover, Cilibrasi testified without contradiction and I find that, under established contractual procedures, when an employee covered by the contract leaves his job for reasons other than those specified in the compact, he forfeits his seniority with Charlton and "would be next in line after whoever was working" in his place. Following his conversation with Reyes, Cilibrasi dis- patched the following letter to Union Business Agent Pat- rick Crapanazano on March I I: I was informed today by my Shipping Clerk that Richard Matrullo will be leaving our employ volun- tarily for an indefinite period of time. His reasons for leaving are for some personal business that he has to take care of out of town for a couple of weeks. Since he has filed a complaint with the N.L.R.B. [an appar- ent reference to the charges which Matrullo filed on February I and which were dismissed on February 23], we want to be sure that you are aware that this is voluntary on his part and as a matter of fact, without any advance notice, leaving us short at a busy time. As far as we are concerned, he has quit his job. As you are aware we have called you for another man. I hope this clarifies our position in this matter. For a man who was laid off for two months, it seems strange for him to leave after coming back to work for only two weeks. On some date after the dispatch of this letter, Cilibrasi had occasion to speak with Union Business Agent Patrick Cra- panazano. In the course of their discussion, Cilibrasi broached the topic of Matrullo's departure and comment- ed, "could you believe that, after all this that he [Matrullo] finally gets back to work and he leaves." Crapanazano could not account for this conduct, and informed Cilibrasi to refer Matrullo to Crapanazano in the event he returned. Regarding the events which transpired on March 24, Paul Reyes testified that he received a telephone call on 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that date from Matrullo who stated that he desired to re- turn to work. Reyes replied that there was no work avail- able because Charlton already had two truckdrivers on its employment rolls. At the conclusion of the conversation, Reyes advised Matrullo to get in touch with either Cilibrasi or the Union. Matrullo made no effort to contact Cilibrasi until April 5 or 6. It is Cilibrasi's testimony that, on or about these dates, he received a call from Matrullo to in- quire about the latter's job status. Cilibrasi told Matrullo to, "Go down to the Union and straighten it out. Straight- en what your seniority is." Matrullo then exclaimed that, "I'm not going down to the Union. I'm going to get a law- yer. You're a fucking punk. You're no damn good. I'm going to get you and you're a punk." Angered by these threats and obscenities, Cilibrasi unsuccessfully attempted to reach Patrick Crapanazano at the union hall. Under the date of April 11, Cilibrasi mailed a letter to Patrick Crapa- nazano in which he recited that: Last week I received a phone call from Richard Ma- trullo asking to return to work. As you are aware, he left our employ voluntarily in March for personal rea- sons and we replaced him with another man from your local. When he called me he was abusive in lan- guage, threatening me personnally, used foul language and was insulting, to say the least. We at Charlton have always had good relations with out staff, but this man is impossible to understand or work with. Previously, he left of his own accord, now due to his behavior, I do not want him back in any capacity. I suggest that you please speak to this man for his own good and, at least be civil in his conversation with future employers. Patrick Crapanazano testified that, shortly after March 11, he received a call from Joseph Cilibrasi who reported that Matrullo had left the job without permission and that Cilibrasi had considered this absence as a voluntary quit. A few days later, Crapanazano obtained Cilibrasi's letter con- cerning the matter. According to Crapanazano, he immedi- ately telephoned Matrullo at the latter's home to inquire into the situation but no one responded. Crapanazano fur- ther testified that he had been away from his office be- tween March 22 and early April due to an illness. How- ever, during that period, his secretary relayed several telephonic messages to him from Matrullo which he at- tempted to return but that, on the occasion when he called Matrullo's home, there was no answer. According to the business agent, he never was directly requested by Matrul- lo to process a grievance growing out of Charlton's failure to recall Matrullo on or after March 24. Based upon the foregoing, I find that, in early November 1976, Matrullo claimed payment for 2 days' of platform work and that his claim was denied both by Charlton and the Union on the ground that Matrollo was not contractu- ally entitled to the wages due to his lack of unit seniority. On December 17, 1976, Matrullo was laid off by Charlton, in consequence of which he filed charges with the Board. In those charges, he alleged that Charlton violated Section 8(aX3) of the Act by laying him off because of his insis- tence upon the earlier payment of wages for the platform work which he claimed. He further alleged that the Union violated Section 8(bX)( 1I)(A) of the Statute by failing to pro- cess his grievance bottomed on his layoff. On February 23, these charges were rejected by the Board's Regional Office as unfounded. On the same day, Matrullo was recalled to work by Charlton through the efforts of his Union, and he continued to perform his usual truck driving duties until March 11. I find that, on the later date, Matrullo informed Shipping Clerk Reyes that he had decided to take 2 weeks off from work. I do not credit Matrullo's testimony that he had obtained both Reyes' and Cilibrasi's permission to ab- sent himself from his duties, not only because Matrullo failed to impress me with either his candor or his trustwor- thiness when he spoke from the witness stand, but also because his testimony on this score itself was internally inconsistent. Thus, Matrullo initially proclaimed that he had received "on the spot" permission from Reyes to take a leave of absence on March II. He then admitted that Reyes subsequently returned to inform him that Cilibrasi had approved the leave, a surprising admission in light of Matrullo's attempt testimonially to portray Reyes as a stat- utory supervisor whose judgments were binding upon Pres- ident Cilibrasi. Moreover, Matrullo further confessed that it was standard operating procedure for him to obtain Cilibrasi's approval whenever changes in any working con- ditions were sought, and that such requests were normally channelled through William Zippilli, the Union's shop steward, rather than Reyes. In short, I find that Matrullo was not authorized to absent himself from work on March II. I further find that, when Cilibrasi learned from Reyes on March II that Matrullo had announced that he would take a 2-week leave of absence without Cilibrasi's official sanc- tion, Cilibrasi could reasonably conclude, as he did, that Matrullo had voluntarily abandoned his employment with Charlton. I am fortified in this conclusion by the undisput- ed testimony of Cilibrasi that, under the terms of the ex- isting contract between Charlton and the Union, no provi- sion was made for leaves of absence other than for vacations or for the conduct of union business, and that a unit employee who took leave which was not officially ap- proved thereby forfeited his seniority and "would be next in line after whoever was working" in his stead. I find that, following his receipt of the intelligence that Matrullo had left the job, Cilibrasi wrote a letter to Patrick Crapanazano in which the former expressed his astonishment that Matrullo would have voluntarily quit his job after the Union and Charlton had restored him to work on Febru- ary 23, and Cilibrasi backed this correspondence up with a telephone call to Crapanazano in which he expressed the same sentiments. After this conversation, Crapanazano in- structed Cilibrasi to contact him in the event that Matrullo ever sought to return to work. On March 24, Matrullo telephoned Reyes to relate that he intended to return to work on March 28, and Reyes advised Matrullo that the latter's job had been filled during his absence and that no position was available for him. I find that Matrullo next contacted Cilibrasi on April 5 or 6 about his employment status and the latter referred Ma- trullo to the Union to ascertain his seniority ranking. I find that, after receiving this response from Cilibrasi, Matrullo 522 F.M. CHARLTON CO., INC. proceeded to heap obscene abuse upon Cilibrasi and threatened to sue and destroy his former employer. I also find that, between March 24 and early April, Matrullo at- tempted to reach Union Business Agent Patrick Crapana- zano on several occasions to resolve the problem created by his unauthorized absence from work, but was unsuc- cessful in these ventures because Crapanazano was away from his office due to an illness and because Matrullo was not at home when the business agent returned his calls. 6 In sum, I am persuaded and find that Respondent Charl- ton refused to return Matrullo to his position as a truck- driver at the plant on March 24, not because he had filed charges against it under the Act on February 1, but solely because he had voluntarily quit his employment and there- 6 In his attempt to establish that the Union had unlawfully refused to process Matrullo's grevance on and after March 24. the General Counsel drew upon the testimony of Saul Kuper. an administrative assistant in the Bureau of Labor Services for the City of New York. whom Matrullo had visited in early April to file a complaint against the Union. A few days later. Kuper spoke to Patrick Crapanazano about the matter and learned that the Union could not obtain immediate reinstatement for Matrullo because of the strictures of the prevailing collective-bargaining agreement between the Union and Charlton. During the conversation. Crapanazano stated that he could not fathom the reason for Matrullo's having sought Kuper's assis- tance inasmuch as he did and could avail himself of the services of the Board. In his testimony, Kuper sought to show that Crapanazano had failed to process Matrullo's grievance regarding his loss of employment on March 24 because the truckdriver had filed charges with the Board against the Union on February I. After fencing with his questioners. Kuper finally confessed that Crapanazano never told Kuper in their conversation that the Union's failure to act on Matrullo's behalf was caused by the filing of the antecedent charges. by lost his employment seniority under the terms of the controlling collective-bargaining agreement to his replace- ment. Accordingly, I conclude that Charlton did not of- fend the provisions of Section 8(aX4) of the Act by dis- charging him on March I I. I am also convinced and find that Respondent has not been shown to have arbitrarily, invidiously, or unlawfully refused to press any grievance which Matrullo might have harbored against Charlton arising out of its failure to rein- state him on March 24. As I have heretofore found, Ma- trullo had forfeited his contractual right to job retention by embarking upon an unauthorized leave of absence, and I am satisfied that the Union's refusal to act on his behalf was prompted solely by its reasonable belief that the pro- cessing of Matrullo's asserted grievance would have been futile. I therefore conclude that Respondent did not violate Section 8(bX)(I)(A) of the Act by refusing effectively to rep- resent Matrullo. Accordingly, I shall order that the complaint be dis- missed in its entirety. ORDER 7 IT 15 HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed in its entirety. 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 523