Penn Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Penn Industries, Inc. and Howard S. Reilly Marine Freight Handlers & Warehousemen in the Port of New York and Vicinity, Local 976 ILA and Howard S. Reilly. Cases 22-CA-6794 and 22- CB-3160 December 5, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On August 19, 1977, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent Union and Respondent Employer filed exceptions and support- ing briefs and Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions1 and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein, and to modify the remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent Employer, Penn Industries, Inc., Jersey City, New Jersey, its officers, agents, successors, and assigns, and the Respondent Union, Marine Freight Handlers & Warehousemen in the Port of New York and Vicinity, Local 976 ILA, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as modified. 1. Substitute the following for paragraph A,2(a): "(a) Offer to Howard S. Reilly immediate, full, and unconditional reinstatement to his former position or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights, privileges, benefits, and emoluments, includ- ing regular periodic incremental and other pay raises in the interim and also currently applicable pay scales." 2. Substitute the following for paragraph B,l(b): 233 NLRB No. 133 "(b) In any other manner restraining or coercing any employee in the exercise of the right to self- organization; to form, join, assist, or participate in the affairs of any labor organization; to bargain collectively through representatives of his own choosing, or to participate in that process; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; to inquire lawfully into and attempt lawfully to influ- ence the conduct of the management and affairs of a labor organization of which he is a member; or to refrain from any and all such activities." 3. Substitute the attached notices for those of the Administrative Law Judge. Both Respondents contend that the Administrative Law Judge's interpretation of the evidence and his credibility findings showed bias and prejudice against them. Upon careful examination of the Administrative Law Judge's Decision and the entire record, we are satisfied that the contentions of Respondent Union and Respondent Employer in this regard are without merit. 2 The Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (192). APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, help, and participate lawfully in the affairs and activities of unions To bargain collectively through represen- tatives of their own choosing, and to participate lawfully therein To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT violate these rights. WE WILL NOT encourage or discourage union membership or any activity in which employees have the right to engage or not to engage under Section 7 of the National Labor Relations Act, as amended, by discriminating in regard to hire or tenure of employment or any term or condition of employment, in violation of the Act. WE WILL NOT, in violation of the Act, terminate the employment of, discharge, lay off, separate, 928 PENN INDUSTRIES, INC. suspend, furlough, or fail or refuse to recall, reinstate, rehire, or reemploy any employee because he seeks to bargain collectively with us, or because he is active in union affairs, or because he exercises or asserts or seeks to exercise or assert any right under the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce any employee in the exercise of the right to self-organization; to form, join, assist, or participate in the affairs of any labor organization; to bargain collectively through representatives of his own choosing, or to participate in that process; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL offer Howard S. Reilly immediate, full, and unconditional reinstatement to his former job or, if it no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights, and we will, together with Local 976 ILA, pay him for any wages and benefits lost by him because of our termination of his employment on January 26, 1976, plus interest; and we will also, together with Local 976 ILA, pay into the Union's Welfare Fund and Pension Fund all contributions on behalf of Reilly due on and since January 26, 1976, just as if Reilly had not been discharged on that date. WE WILL forthwith remove from our records all indications that Howard S. Reilly was discharged by us on January 26, 1976, for any fault on his part, and we will make no such statement to any employer, prospective employer or in answer to any credit, reference, character, or similar inquiry. All of our employees are, as provided by law, free to join or not to join any union, to participate in its affairs, or to exercise any other right under the National Labor Relations Act, as they see fit, without interference, restraint, or coercion from us in any form. PENN INDUSTRIES, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, help, and participate lawfully in the affairs and activities of unions To bargain collectively through represen- tatives of their own choosing, and to participate lawfully therein To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT fail or refuse to represent you fairly and impartially in your grievances against your employer. WE WILL NOT fail or refuse to process your grievances against your employer because you exercise or seek to exercise any of your rights under the National Labor Relations Act, or because you file charges against your employer or against us under the Act, or because you seek the protection of the Act or the National Labor Relations Board, or because you go to the Board and seek to avail yourselves of its processes. WE WILL NOT in any other manner violate your rights under the National Labor Relations Act. WE WILL, together with Penn Industries, Inc., reimburse Howard S. Reilly for any pay and benefits he has lost, plus interest, because of his unlawful discharge by Penn Industries on Janu- ary 26, 1976, and our wrongful refusal to process to arbitration his grievance over his discharge as provided in our collective agreement with Penn Industries, Inc.; and we will also, with Penn Industries, Inc., pay into the Union Welfare Fund and Pension Fund all contributions on behalf of Reilly due on and since January 26, 1976, just as if he had not been discharged on that date. We assure you that you are all free to take part in union affairs and activities, including raising ques- tions about proposed wages and other terms and conditions of your employment, with your union officials and agents and at union meetings, without fear of any reprisal, retaliation, restraint, or coercion from your Union or any of your union officials, agents, or employees. MARINE FREIGHT HANDLERS & WAREHOUSEMEN IN THE PORT OF NEW YORK AND VICINITY, LOCAL 976 ILA 929 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION 1. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Administrative Law Judge: This consolidated proceeding' under the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq., the Act) was heard before me in Newark, New Jersey, on various dates from July to September 1976, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and arguments and who subsequently filed briefs after unopposed extension of time for that purpose. Record and briefs, aggregating close to 1,000 pages, have been carefully considered. The principal issues tendered by the pleadings are (1) whether, in violation of Section 8(a)(3) and (1) of the Act, Respondent Employer terminated the employment of its former Jersey City employee Howard S. Reilly (and has since failed and refused to reinstate him) because of his union membership and protected concerted activities; and (2) whether, in violation of Section 8(b)(1)(A) of the Act, Respondent Union failed and refused (and continues so to do) to represent its member Reilly fairly and impartially, by failing and refusing to process his discharge grievance, because he filed charges and utilized Board processes under the Act. Upon the entire record 2 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS II. JURISDICTION At all material times, Respondent Penn Industries, Inc., (hereinafter Penn, Company, or Employer), a New York corporation, has maintained and maintains places of business at Port Jersey Industrial Park, New Jersey, and other locations in the States of New Jersey and New York for the conduct of its freight consolidating services business. In the course and conduct of that business, in the representative 12-month period immediately preceding issuance of the complaint, said Respondent provided and performed freight consolidating services valued in excess of $50,000, of which over $50,000 worth were provided and performed to or within States other than the State of New Jersey. I find that at all material times Respondent Penn has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that at all of those times Respondent Marine Freight Handlers & Warehousemen in the Port of New York and Vicinity, Local 976 ILA (hereinafter the Union or Local 976), has been and is a labor organization within the meaning of Section 2(5) of the Act. 1 Based on May 5, 1976, consolidated complaint growing out of charges filed in each case on February 10, 1976, by Howard S. Reilly, Charging Party. 2 Errors in the transcript have been noted and corrected. 3 See, e.g.. Amalgamated Local Union 355 [Russell Motors] v. N.LR.B., A. Background 1. Respondent Employer (Penn): Organization, hierarchy, and general operational methodology a. Organization and hierarchy Respondent Employer is a freight consolidator with facilities at Port Jersey Industrial Park, New Jersey, and elsewhere in New Jersey and New York, with as many as 400-450 employees. Penn is interlocked with United States Packing & Shipping Company (USP&S), with Penn as the operating company with the labor force, and with USP&S handling "sales" (i.e., freight consolidation) in the New York area, basically for chain and department stores. Either or both operate or utilize facilities (e.g., "Lifschultz," infra) in other locations, including New York City (Manhattan). Neither is an ICC certificated carrier. At some of the various locations, merchandise of various customers is processed for shipment, at other locations, merchandise of only one customer. At the head of the corporate empire is said to be a Mrs. Greenough, the "silent" president of both corporations, which are for practical purposes operated by John B. Costello as executive vice president of each. Under Costello is Alfred (Al) Baffa, vice president of operations of Penn, whose assistant is Larry Lavagnino (who is Al Baffa's second-in- command in running Penn), with the title of superinten- dent of operations. Gregory Bartolomucci is terminal manager of Penn's Greenville (Jersey City) facility, while Charlie Rocco and Arthur J. Olvesen are foremen in charge of the two buildings comprising that facility. Supervisory Status of Penn Foreman Olvesen Because of the unopposed withdrawal of an admission in Penn's answer, an issue was raised and litigated at the hearing concerning whether Penn's employee Arthur J. Olvesen is (and has been at all material times) a supervisor as well as a foreman (the latter status-i.e., foreman- remaining admitted). I resolve that issue by finding, on the record as a whole, that Olvesen's status was and is indeed supervisory as alleged in the complaint and originally admitted. Section 2(11) of the Act defines "supervisor" to "mean any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." It has repeated- ly been pointed out3 that, since this definition is disjunc- tive, possession of any of the enumerated powers or 481 F.2d 996, 999 (C.A. 2, 1973), and cases cited.cert. denied 414 U.S. 1062 (1973); Jas. H. Matthews & Co. v. N.LR.B., 354 F.2d 432 (C.A. 8, 1965), cert. denied 384 U.S. 1002 (1966); Ohio Power Company v. N.LR.B., 176 F.2d 385, 387 (C.A. 6, 1949), cert. denied 338 U.S. 899. III. ALLEGED UNFAIR LABOR PRACTICES 930 PENN INDUSTRIES, INC. attributes is sufficient for the existence of supervisory status. Credited testimony of Respondent Penn's former check- er, Howard S. Reilly (Charging Party herein), establishes that, at any rate while working for it on its regular and ongoing NORMA account, he functioned under and subject to Foreman Olvesen (who in turn functioned under Terminal Manager Bartolomucci), who gave Reilly as well as other employees work orders which they carried out; and that Olvesen also gave employees time off as well as overtime. Penn's executive vice president, Costello, testify- ing as its witness, identified Olvesen as its NORMA (New Orleans Retail Merchants Association) facility foreman, as did Penn's vice president of operations, Al Baffa. So did its Greenville terminal manager, Bartolomucci, who described Olvesen as one of two foremen under him-Olvesen in Building 136 and Rocco in Building 120, those two buildings, about 150 feet apart, comprising the Greenville facility or terminal. Although, according to Bartolomucci, Olvesen is not authorized to hire or fire, as has already been indicated the Act's quoted definition does not require that power as a sine qua non of supervisory status. Bartolomucci conceded that, in contradistinction to rank- and-file employees, Olvesen has a key to open the building of which he is foreman; that Olvesen (as well as Rocco)- unlike rank-and-file employees-appears to receive almost 10 hours of guaranteed overtime pay per week regardless of whether he actually works that much; that he has the power, on his own authority, to change and assign tasks to employees, even for as much as a week or longer; that he selects employees for overtime work; that he has the authority to transfer employees from work on one account to work on another account even in the other building; and that he has the power effectively to recommend promo- tions, job changes, and discipline (including suspension), so as to carry weight.4 Also testifying as Respondent Penn's witness, Olvesen identifies himself as its foreman for 4 or more years. Even Union Secretary-Treasurer Frank Baffa testified that he had been pointing out to Respondent Employer that foremen in Olvesen's category had been in fact exercising supervisory powers in relation to the rank- and-file employees. Credited testimony of Reilly and Respondent Penn's own terminal manager, Bartolomucci, without more, establishes Olvesen's supervisory status within the Act's definition, and I so find. b. General operational methodology The process of freight consolidation consists, among other things, in receiving shipments of freight, perhaps invariably of less than trailer truck or carload size, destined to consignees in various shipping locations; unloading, assembling, and organizing or consolidating these by destination or consignee(s) so as to fill as much of a truck or carload as is practicable; and then arranging, itself or 4 I was unfavorably impressed by Bartolomucci's attempted later equivocations concerning these earlier concessions. I accordingly credit the concessions and reject the equivocations. 5 Such manifests are prepared by IBM-leased computers at the No. 2 Sixth Street, Jersey City, facility. I USP&S has no contractual agreement with any union. through carrier(s), for the transportation and delivery of the merchandise to consignees. An object of such consoli- dation is to achieve economy in cost and also, at times, to speed delivery of relatively small or less than truck or carload lots of merchandise, which would otherwise have to be transported in individual smaller shipments to the same consignee or destination by different or sometimes even the same consignor. In the process of freight consolidation, inbound bills of lading, prepared by the shipper or its carrier, are received and receipted for by the freight consolidator, who (USP&S) in turn issues its outbound consolidated bills of lading, together with manifests describing the contents or breakdown of the specific consolidated loads.5 One of Respondent's ac- counts, for the past 15 or 20 years or so, has been New Orleans Retail Merchants Association (NORMA), a shippers' association with a membership of 100-300 merchants, 6 or 7 of whose 20-25 active members make up most of the NORMA freight tonnage consolidated by Respondent Penn. 2. Respondent Employer's relationship with Respondent Union Respondent Employer (Penn) has enjoyed collective contractual relationships with Respondent Union (Local 976 ILA) since 1937 (Resp. Union Exh. 2) more recently reflected in 3-year-term agreements, the latest of which was formalized in January 1976.6 The chief participants in the Respondents' collective negotiations and relationships include Penn's vice president, Al Baffa, and the Union's longtime (since 1953) secretary-treasurer, Frank Baffa, who are brothers. Prior to becoming Respondent Union's secretary-treasurer in 1953, Frank Baffa was employed by Respondent Penn from 1939 to 1953. Respondent Union's business agent servicing Respondent Penn's employees is Sam DelGrosso, who, prior to occupying that status (since about 1974), had also been in Penn's employ for about 10 years.7 Respondent Union Secretary-Treasurer Frank Baffa insists that his only relationship here with his brother, Respondent Employer Vice President Al Baffa, has been at "arm's-length." He swears, for example, that he never so much as mentioned the name of Reilly-the centerpiece of the instant case, as will be shown-to his brother prior to Reilly's discharge; in Frank Baffa's words, "My job is to protect the men, not to talk about them." B. Howard S. Reilly: Advent into Respondent Union's Affairs and Discharge from Respondent Employer's Employ Charging Party Howard S. Reilly entered Respondent Penn's employ as a checker (and at times loader) in September 1971,8 working for it in about seven locations in the New York City Metropolitan Area (including Jersey City, New Jersey), for the next 3 years. In September 1974 7 DelGrosso was also formerly a member of the Teamsters and of the TWU. 4 After graduation from Harvard Law School in 1959. Reilly was admitted to the Colorado Bar in 1959 and practiced in that State for a year. After not practicing from 1960-75, he was admitted to the New 'ork Bar in (Continued) 931 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was transferred, at his request, to the night shift and assigned by Respondent's superintendent of operations, Lavagnino, to the premises of California Shippers in Jersey City, where he remained as a sorter for 2 months until, in November (1974), he was assigned to Penn's New York City "Lifschultz" location, unloading, sorting, and recon- signing freight (still on the night shift)-a task at which he remained until September 1975. At that time (September 1975), again at his request, he was retransferred by Superintendent Lavagnino from the night shift (on which Reilly was only working about 2 or 3 nights a week) to the day shift, and rotated as a checker among various locations-initially, for about 2 weeks, at Chicago Shippers in Jersey City, and then at Detroit Shippers at Greenville (Port New Jersey, Jersey City), for about a week in September 1975, until he was called for jury duty. On his return in October 1975, he was assigned, again as a checker, to the USP&S building or Greenville terminal in Jersey City, where the NORMA account was handled, and, together with a route clerk and loaders, came under the supervision of Foreman Olvesen. Although only Reilly had the job title of checker there, Olvesen as well as the route clerk (John Boyle) also checked NORMA-destined freight there; and Reilly also occasionally assisted the loaders in loading. As aforestated, Foreman Olvesen functioned under Greenville Terminal Manager Greg Bartolomucci. During all of this time-over 4 years of continuous employment-Respondent Penn was seemingly satisfied with Reilly's performance. Reilly credibly and undisputed- ly recounted how his superior, Sabatini, during the summer and fall of 1975, repeatedly praised his work and indicated he would be "happy" to have him continue under him and to serve as a reference for him. It is also uncontroverted that, when Reilly passed the New York bar examination on December 5 (1975), his foreman, Olvesen, indicated to him later that month that if he planned to leave Penn's employ he should give the Company 2 months' notice-hardly the attitude of an employer dissatisfied with an employee's work or on the verge of discharging him. Reilly joined Respondent Union (Local 976 ILA) around December 1971, shortly after he was hired by Respondent Penn. He attended union meetings regularly. Apparently Reilly's participation in union affairs was unremarkable until the fall of 1975, when he emerged into prominence, as will be shown. At that time (fall 1975), when the subsisting March 1976 after passing that State's bar examination on or about December 5, 1975. 9 As to this, Reilly's credited testimony is corroborated by credited testimony of Respondent Employer's checker-router John Boyle. 'o Respondent Union's LM2 report for 1973 (G.C. Exh. 2) discloses that the Union's address is c/o its treasurer, Frank Baffa, with its president one Joseph Casazza (identified by Frank Baffa as a Penn route clerk and checker); that its total cash receipts were $74,256, of which $71.847 were from dues, $710 from "fees," and $1,699 from "other sources"; that its total cash disbursements were $71,194, of which $30,216 gross went to "officers," $1,531 for "professional fees," $9,310 for "benefits," $1,814 ($1,314?) for "contributions, gifts and grants," $4,957 for "office and administrative expense," and $15,431 for "other purposes"; that the book value of its fixed assets at year end was $968; that salary paid to Treasurer Frank Baffa was $14,155, to President Joseph Casazza was $2,910, and to Business Agent MacLeod $9,625, with a total payment of $30,316, plus $ 11,484 to Organizer D. Iquinto; plus a pension payout (seemingly the only one) to "retired officer" in the sum of $5,200, "Xmas & other gifts" in the sum of $1,285, "additional listing" in the sum of $2,611, and "other disbursements" in the sum of $S15,481. Its LM2 report for 1974 (id) identifies the same officers; collective agreement between Respondent Employer and Respondent Union was coming up for "renegotiation," employees began discussing among themselves9 their rates of pay and other terms and conditions of employment, with a view toward betterments in the upcoming collective agreement. In this connection, on November 5 Reilly requested Respondent Union-for the first time-supply him with a copy of its constitution, bylaws, pension plan, welfare plan, collective agreement, and financial statement. When Reilly received all of these, except the financial statement, he posted them in the company employees' locker room. Reilly then took it upon himself to procure, from the U.S. Department of Labor, a copy of the Union's LM2 reports for 1973 and 1974 (G.C. Exh. 2), which he discussed with fellow employees.10 No union meeting at all had been held in 1975. A meeting was called for Saturday, November 22 (1975), shortly before the expiration of the subsisting 3-year (1972- December 1975) collective agreement. At that meeting, chaired by Union Secretary-Treasurer Frank Baffa and attended by 50-60 members, Baffa, seemingly according to his testimony on cross-examination, indicated that Respon- dent Union intended to ask Respondent Employer, which he characterized as "a little private small company," for a wage increase of the same 37-1/2 cents per hour it had asked 3 years earlier. Reilly objected and was the first to ask for the floor to speak on behalf of the employees.' He proposed wage demands substantially in excess of this (i.e., $2.50 per hour) and more in line with the Teamsters scale (which Frank Baffa, according to his own testimony, indicated was inappropriate and excessive), as well as ameliorations in pensions, sick leave, and other fringe benefits substantially in excess of what Frank Baffa was suggesting. Although Reilly's proposals were ridiculed by some (including Foreman Charlie Rocco, who called them "idiotic" and said that "the company couldn't do that"), they were nevertheless adopted "by acclamation." How- ever, Frank Baffa on cross-examination conceded that, nevertheless, when he submitted Reilly's suggested wage demand to Respondent Employer, he (Frank Baffa) explained to Respondent Employer that this was only "what one of the members proposed" (emphasis sup- plied). 12 During the foregoing confrontation at the November 22 (1975) union meeting between Reilly, who suddenly total cash receipts, $80,636 ($75,347 dues); total cash disbursements, $76,854 ($35,760 gross to "officers"; $5,129 for "office and administrative expense"; $11,950 gross to "employees"; $1,250 for "professional fees"; $7,502 for "benefits"; $1,880 for "contributions, gifts and grants"; and $17,482 for "other purposes"); that the book value of its fixed assets at year's end was $868; auto rental, $4,847; salary to Treasurer Frank Baffa, $15,960; salary to President Joseph Casazza, $2,970; salary to Business Agent S. DelGrosso, $9,450; total payout to officers and business agents, $35,760; plus $11,950 to Organizer D. Iquinto; pension payment (apparently the only one) to "retired officer" $5,200, "Xmas and other gifts" $1,375, and "additional listing" $16,151. " Reilly's testimony to this effect is confirmed by Respondent Union Secretary-Treasurer Frank Baffa, who, testifying on its behalf, described Reilly as "the first man up on his feet ... and he demanded that there be a secret ballot . . land ] kept interrupting me." 12 Frank Baffa denies he identified to Respondent Employer who the employee was. This strikes me as of a piece with Frank Baffa's denial that he ever so much as mentioned the name of Reilly to his own (Frank Baffa's) brother Al Baffa, Respondent Employer's vice president of operations, or to 932 PENN INDUSTRIES, INC. became outspoken, and Union Secretary-Treasurer Frank Baffa, Reilly asked for a secret-ballot vote among the members, but Baffa refused to entertain Reilly's motion on the ground that "a secret ballot [is] not necessary" among "brothers in the union," as he likewise did to entertain Reilly's appeal to the membership from that ruling. Reilly, however, pressed his demand, calling attention to the presence at the union membership meeting of various of Respondent Employer's supervisory officials ("sitting on every row in that place practically"),' 3 which Reilly pointed out engendered fear of reprisals and was an unfair labor practice, but Union Business Agent DelGrosso stated that Reilly need not be concerned about that and not to bring it up. Reilly thereupon added that he himself was apprehensive that the Union would not defend any employee so retaliated against. To this, Frank Baffa exclaimed, according to credited testimony of Reilly, "I would never defend you .... if you have any trouble with the union you could go to the NLRB or you could go to court." Although Frank Baffa denies he said this to Reilly, nevertheless on comparative demeanor observations I credit Reilly. Frank Baffa concedes, however, that he did indeed rule Reilly out of order at the meeting and that he refused to allow an appeal to the membership from his ruling. Frank Baffa characterizes Reilly's participation in the meeting as "obnoxious, abusive and loud, and he was disrupting the meeting"-characterizations which were not established here by substantial credible proof as required. Between the foregoing November 22, 1975, union meeting and the next union meeting on January 10, 1976, Reilly continued his delvings into union affairs, researched the Union's current bargaining positions, and discussed these matters extensively (he estimates as many as 50 occasions) with fellow employees, as well as the salaries of the union officers and the apparent anomaly of the Baffa family control or interlocking influence over the Union as well as over the Employer. They also discussed their own being required to unload incoming cargoes-normally Teamsters' work-at $4.33 per hour instead of the $6.80 per hour if Teamsters had been utilized. Reilly's delvings into employment conditions prevailing at Penn produced some startling revelations. Thus, not- withstanding his being "represented" by Respondent Union as a longtime member, he discovered from conver- sation with fellow checker/route clerk John Boyle that for over 4 years he (Reilly) had been receiving 2 cents per hour, or 80 cents per week, less than the contractually specified rate for a checker, and also that he had not been given required vacation pay. After verifying this from the Greenville Terminal Manager Greg Bartolomucci, or any other company official. 13 Including Greenville Terminal Foremen Olvesen (Building 136) - Reilly's foreman-and Rocco (Building 120). Foreman Costa (California Shippers location). Foreman Roger Anzelone (son of Penn conceded Supervisor Sal Anzelone) of the Lifschultz 33d Street (New York City) location, Foreman Dexter ("Geetch") Bacote (also of the 33d Street location), and perhaps others. In addition to Foreman Olvesen, credited testimony establishes others of the foregoing. such as Charlie Rocco-under whom Reilly also worked and from whom Reilly as well as other Penn employees took orders and carried them out-to be supervisors within the meaning of the Act and I so find. Of the foregoing. Olvesen. the only one to testify-as Respondent Employer's witness-conceded he attended the November 22, 1975, union meeting, and confirms (as he does Union copy of the collective agreement which he had demanded from the Union, he called this to the attention of Penn bookkeeper Hopkins, who referred Reilly to his foreman. When Reilly spoke to Foreman Olvesen, the latter referred him to Greenville Terminal Manager Bartolomucci, who said he would check into it. About an hour later, Reilly was summoned to the office of Penn Vice President Al Baffa, where Union Secretary-Treasurer Frank Baffa and Busi- ness Agent DelGrosso were already present-"accidental," according to Al Baffa. After Reilly explained the situation, DelGrosso asked him why he had not notified his foreman. Reilly (who had done so after he found out) pointed out that he had been unaware of the contractually required wage rate. Al Baffa thereupon ascertained the time involved and Reilly was paid. No adverse mention whatsoev- er was made-nor had any previously been made-concern- ing Reilly's work performance. This occurred on January 9, 1976, shortly before Reilly's discharge, and was the first occasion on which Reilly was in Al Baffa's office. On the next day, January 10, 1976, another union meeting was held, at which Reilly again took an active leadership role in opposition to that of the union hierarchy. Again, various supervisory personnel of Respondent Employer were present.14 The announced purpose of the meeting was to ratify a new proposed 3-year collective agreement between Respondent Employer and Respon- dent Union (January 1, 1976-December 31, 1978), again- as in the expired 1973-75 3-year contract-calling for the same 37-1/2-cent hourly increase (but with added incre- mental increases of around 20 and 25 cents for the second and third years) and some incidental fringe betterments such as 4 days of unrestricted sick leave (instead of, as previously, on medical certificate).' 5 At the outset of the January 10, 1976, meeting, Reilly objected to Secretary-Treasurer Frank Baffa's chairing the meeting, calling attention to the Union's constitutional requirement that the Union President preside, and pointing out that, according to the Union's LM2 report to the Secretary of Labor, Joseph Casazza (Cassasa, Cazazza) was its president at an annual salary of some $3,000. Casazza, however, refused to preside, stating he did not care what the union constitution required,' 6 a position in which he was supported by Frank Baffa. Testifying as Respondent Union's witness, Secretary-Treasurer Frank Baffa concedes that, although the union president (i.e., Casazza) is required under its constitution to preside, he (Baffa) declined to follow this requirement, construing it to require only that the president "hit the gravel [sic]" (which he concededly had not done) and that since Union President "Casazza is Secretary-Treasurer Frank Baffa's) Reilly's active participation there, including his demand for a secret ballot and increased wage demands. i4 Including Reilly's foremen. Olvesen and Rocco, as well as Foremen Costa and Bacote (credited testimony of Reilly). Again. Olvesen in his testimony conceded he also mentioned this union meeting. (He denies, however, that he told management about anything that transpired at either of the meetings of January 10 or November 22--difficult for me to believe- although Bartolomucci concedes he learned it otherwise anyway.) Other of Respondent Employer's foremen-who, Respondent Employer concedes, had the same capacity as Olvesen-likewise attended that union meeting. is Testimony of Union Secretary-Treasurer Frank Baffa. 16 Undisputed, credited testimony of Reilly. Without explanation. Casazza was not produced as a witness. 933 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not in on everything" and "I [Frank Baffa] was much more qualified ... ," Baffa announced in response to Reilly's request, "I [Frank Baffa am ] the Chairman of this meeting and I would run it"; and that a motion that Baffa preside was carried "unanimously"-adding, as an afterthought, that "maybe he [Reilly] voted against it," but that he (Baffa) did not "hear" any opposition. When Reilly asked-perhaps in part in view of the seemingly greatly increased attendance at the January 10 meeting (around 190, according to Baffa) over that of the previous November 22 meeting (around 50-60, according to Reilly; around 125 according to Baffa)-that the minutes of the last meeting (i.e., November 22) be read, Baffa declined to do so and refused to make them available to Reilly until the close of the meeting. Baffa then explained the terms of the proposed new collective agreement. During the ensuing discussion, Reilly criticized the meagerness of the indicated betterments and took exception to what he characterized as a 26-percent increase in the union secretary-treasurer's own salary at the same time that the latter was urging union members to take less than 6 percent, drawing from Baffa the retort, "I am not going to recognize you any more, you are just a trouble maker .... if you don't like working here under these conditions you can go join the Teamsters because you seem to like them so much better." 17 Although Baffa denies that he said he would not recognize Reilly any more, upon the basis of testimonial demeanor comparisons I clearly prefer the testimony of Reilly. Conceding that Reilly called for secret balloting, Baffa claims that Reilly was the "only one" who "wantled]" a secret ballot; and that the proposed contract was ratified, without change, by a 178-11 vote. According to Baffa, Reilly was "standing on a nonsensical idea, and holding up the meeting . . . standing on technicalities . . . being disruptive" and "the men were getting upset and impatient . . . [andj didn't want to hear all of that from [Reilly]." Although Baffa denies he called Reilly a "troublemaker" (again preferring Reilly's testimony upon the basis of testimonial demeanor comparisons, I credit Reilly), he concedes that he indeed told Reilly to "go to the Teamsters." 18 Testifying as Respondent Employer's witness, Greenville Terminal (where, it will be recalled, Reilly was employed) Manager Bartolomucci conceded that, soon after the described January 10, 1976, new 3-year collective agree- ment union "ratification" meeting, he (Bartolomucci) 17 Reilly had also prepared two petitions for presentation at the January 10 meeting-one calling for secret balloting (G.C. Exh. 3A) and the other for a special meeting to consider officers' salaries, election of shop stewards, etc. (G.C. Exh. 3B). Apparently, in view of Baffa's handling of the meeting or for other reasons, nothing came of these or they were not presented or reached. is Trial transcript, p. 643; but later (id., 679) Baffa claimed not to be able to "remember that." Baffa also concedes that, when Reilly accused him of not following requirements of the union constitution and bylaws and that this could be an unfair labor practice redressible through the Labor Board, he (Baffa) invited Reilly to present the matter to the Labor Board. 19 The checker receives, counts, and checks on shipments received at the terminal from drivers. The route clerk (router) routes merchandise, upon receipt of documentation, to a specific trailer or destination. According to credited, undisputed testimony of Greenville Terminal/NORMA account route clerk John Boyle. Respondent Employer's NORMA account Building 136 facility has about six doors. After a truck is backed to a door, the driver hands his bills of lading to the route clerk at the latter's desk or bench. The learned near his office about what had transpired there during the "big shouting match ... with [Reilly and Frank Baffa] yelling and screaming at each other." However, upon the basis of testimonial demeanor as observed, within the context of the record as a whole, I discredit, as unworthy of belief, his further testimony that he did not so much as mention any of this to Vice President of Operations Al Baffa or Executive Vice President Costello. He is silent on whether he mentioned it to Al Baffa's lieutenant, Lavagnino, who did not testify. Following the explosively rancorous confrontation be- tween Reilly and Frank Baffa at the January 10 contract ratification meeting, the demarche of events ensued speedily, culminating in Reilly's precipitous discharge from his job after over 4 years of steady employment, capped by Respondent Union's refusal to test the propriety of that discharge through the grievance arbitration proceeding established in its collective agreement with Respondent Employer. These events will now be described. It will be recalled that, at the time of Reilly's rancorous exchanges with Frank Baffa at the January 10 union contract ratification meeting, Reilly was working at the Greenville facility in Building 136 under Foreman Olvesen, where the NORMA freight consolidations were processed. Although Reilly was the only person there with the title of checker-also assisting with loading at times-Foreman Olvesen, as well as route clerk John Boyle, also checked NORMA freight.' On January 12, 2 days after the aforedescribed union meeting, Greenville Terminal Build- ing 136/NORMA route clerk Boyle went on jury duty, and Reilly was assigned to do Boyle's job as well as his own. Also during the period of Boyle's absence, Reilly carried out certain work revisions he had been instructed to make, involving more specific markings of freight as well as more work. On Friday, January 23, 1976, Reilly as usual processed thousands of packages or pieces of freight-not only as checker but also as router. During the course of the day, he observed a loaded trailer being "stripped" (i.e., unloaded) and its contents reasserted. He asked Foreman Olvesen, "Is this because of some mistake I made?" Olvesen replied, "No, nothing of the kind." About an hour later, Olvesen remarked, "This was a complete waste of time." Late that afternoon, after working outside in subzero weather, Reilly caught an apparent error which might or might not have been ascribable to or "seconded" by Reilly, involving an checker is right next to the route clerk. The route clerk "PRO's" or routes the shipments by rubber-stamping a "PRO" number on the bill of lading and also on the shipping order (i.e., the second copy of the bill of lading), since these two documents are separated. After the shipping order is inspected to determine that the consignee is a member of NORMA, it is assigned the number of the trailer which will transport the merchandise. The bills of lading are later returned to the driver, as are the shipping orders (stamped USP&S). The driver then gives the shipping orders, with their described cartons, to the checker, who, after checking them, writes the "PRO" number and also the trailer number (both from the shipping order) on the package(s), which he places on a flat near him, for loading into the appropriate trailer(s). The shipping orders are returned by the checker to the route clerk, who thereupon stamps "Received" upon and releases the original bills of lading. At times, according to Boyle-as in both his case and in the case of Reilly-the same person does both the routing and checking. Boyle, as well as Reilly, acknowledges occasional errors-not surprising, particularly considering the huge volume of separate packages handled daily. 934 PENN INDUSTRIES, INC. incorrect "PRO" or forwarding identification number on two cartons (out of the thousands of cartons or pieces that day), assumedly the product of driver-improvised paper- work (not unusual) or of a double billing-so that the error may not basically have been on Reilly's part at all (although it is possible that it may have been, or that it may have been "seconded" or carried forward by Reilly, based on driver paperwork error, in the rush of things with thousands of parcels being processed that day). The shipment involved some Lady Carol dresses consigned to Labiche's in New Orleans, and the precise circumstances were that Reilly had placed a PRO number on two cartons for which there was no shipping order-not an unusual situation; and, when Reilly later received the shipping order, showing a PRO number different from the first PRO number he had already placed on it (originally in the absence of any PRO number), he at once pointed this out to Foreman Olvesen 20 so that the error could be promptly rectified. At the close of the afternoon of Monday, January 26, 1976-after over 4 years of steady employment at Penn, without warning, notice, or adverse employment history- Reilly was precipitately discharged by Foreman Bartolo- mucci, who told him it had been necessary to "strip" two trailers in 2 days because of him. Specifically he was faulted on the PRO marking on the previous Friday (January 23) involving the Lady Carol consignment (which Reilly himself had caught and at once reported for rectification), 21 a wrong number marking on one carton on January 26 (conceded by Reilly), and an allegation that he had been letting "open" boxes go by-an allegation vigorously and credibly denied by Reilly, who points out that other loaders handle the cartons after they leave his hands. But Bartolomucci was inflexible, suggesting to Reilly that "If you have anything more to say take it up with Frankie DeFranco, your shop steward." (The fact, if it was such, that DeFranco was shop steward or assistant shop steward "came as a surprise to me [Reilly].") On January 28, promptly after his discharge, Reilly communicated with Union Secretary-Treasurer Frank 20 On the basis of comparative testimonial demeanor as observed, I discredit Olvesen's denial that Reilly pointed this out, and that it was Olvesen himself who discovered it. While impressed with Reilly as a truthful witness, I found Olvesen to be an unprepossessing and clearly partisan witness who trimmed and hedged his testimony at times, contradicting himself, affecting a deficient memory when it served his purpose. and who finally conceded on cross-examination that it was indeed Reilly who pointed out to him that two shipping orders or PRO's had been used for a single two-carton Lady Carol shipment (after Olvesen had himself allegedly discovered it). It also impresses me as highly implausible that Olvesen would himself have discovered such a thing so rapidly-rather than Reilly, who was doing the checking-with thousands of cartons, as Olvesen concedes, being processed. Accordingly. I prefer and credit Reilly's testimony that it was he himself who called this matter to the attention of Olvesen. 1i There is no indication that any damage or claim ever resulted therefrom. 22 DelGrosso's version of this exchange is that after Reilly did, indeed, indicate that DelGrosso should represent Reilly, DelGrosso explained to Reilly that Reilly "might have misled" the membership; that Reilly's aims were not understood by the membership, since "most of it was black, 60 percent," with "very little schooling," and that "we are not a union like the school teachers or the printers union," and that the members were interested only in "the bread and butter issues." According to DelGrosso, whom I do not credit in this regard. when he asked Reilly whether he wished to go to arbitration, Reilly stated he would "sue" for backpay. DelGrosso concedes that, although, according to DelGrosso's testimony, Reilly did not state he Baffa, placed the matter of his discharge before him, and asked that it be processed under the collective agreement. Baffa replied that he was assigning Business Agent Sam DelGrosso to handle it. On February 10 a grievance meeting was held at the Greenville Terminal. Present in addition to Reilly were Respondent Union Business Agent DelGrosso, Respondent Employer Superintendent of Op- erations Lavagnino, and Foreman Olvesen. DelGrosso, in the presence of Respondent Employer, remarked to Reilly, as he riffled through some papers, "These look like a lot of errors .... If I was your foreman I would fire you .... " to which Reilly pointed out that the documentation was either incorrect or unfair and remonstrated to DelGrosso, "You are supposed to be on my side." When DelGrosso thereupon asked Lavagnino to take Reilly back, Lavagni- no's response was, "Absolutely not." After this meeting, when Reilly indicated to DelGrosso that he wished to pursue the matter further, DelGrosso said, "That involves cost, money, also it involves the approval of the Executive Board of the Local." Although DelGrosso indicated he would "start the ball rolling," he added-apparently significantly, in Reilly's estimation-that "I [DelGrosso] understand what you [Reilly] are trying to do" and that he (DelGrosso), too, had at one time "bucked" union leadership, but that what Reilly-unlike DelGrosso-failed to understand was that this Union was "different" and not like "the printers union or the teachers" and that here "you wouldn't find a guy or many guys with 7th or 8th grade education. Most of the guys were satisfied with their jobs . . . and with the way things were."22 Thereupon, Reilly promptly (on the same day, February 10) visited the Board's Newark (New Jersey) Regional Office and filed the charges resulting in the consolidated complaint here against the Union as well as the Employer. On February 26, Reilly made a formal written request upon Respondent Union (i.e., Frank Baffa) to further process his discharge grievance through arbitration under the terms of the subsisting collective agreement (G.C. Exh. 4).23 This drew from the Union (i.e., Frank Baffa) a March 8 written refusal to do so-not upon any ground related to did not want to go to arbitration, he (DelGrosso) nevertheless informed union head Frank Baffa that Reilly did not wish to go to arbitration. Upon comparative testimonial demeanor observations, I clearly prefer and credit Reilly's testimony that he told DelGrosso that he desired to go ahead with arbitration, and the remainder of Reilly's testimony (including DelGrosso's response) as recounted above. In this connection, it is noted that although at another point in his testimony DelGrosso-an unprepossessing witness who contradicted himself in various respects under oath and whom I simply cannot credit-also testified that Reilly indicated to him (and DelGrosso so reported to his superior, union chieftain Frank Baffa) that Reilly did not want to go to arbitration (testimony which I totally discredit), in his pretrial affidavit DelGrosso had sworn that when he asked Reilly, after the February 10 grievance meeting. whether Reilly wished to proceed to arbitration, Reilly's response was "Yes. I'm going to sue for all of my back wages." (Emphasis supplied.) Further, although according to the testimony of Al Baffa, DelGrosso never indicated to Respondent Employer that arbitration might be in the wind, Al Baffa conceded that in his pretrial affidavit he had sworn that DelGrosso had stated to him, "I assume we will have to go to arbitration." At the hearing Al Baffa claimed he forgot he had said this in his affidavit. 23 According to Reilly, the occasion for his drafting and transmitting of this letter was a call he received from Labor Board Agent Thomas informing him that the Union did not know whether Reilly wished to take the matter to arbitration, and that if he did the Board would defer to such arbitration. Reilly's copy of his February 26 letter (Resp. Union Exh. I) so indicates. 935 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the merits of the discharge, but on the sole ground (G.C. Exh. 5) that: I am in receipt of your letter of February 26, 1976 in which you wrote requesting the "Executive Board of Local 976 I.L.A.,"2 4 to take your discharge to Arbitra- tion. I regret to inform you that under the circumstances, as they now stand, this is not proper. After your hearing, in which the company refused to reinstate you, you could have at that time requested Arbitration, 25 as the Union contract specifies clearly (and which you have a copy of). You however chose to file an unfair labor charge with the National Labor Relations Board. Therefore, since you chose the National Labor Relations Board, instead of furthering your rights under the provisions of the Union contract, I suggest that you stay with the National Labor Relations Board with the charges that you made to them and await their final conclusion of this case. /s/ Frank Baffa Secretary-Treasurer Thus, after a period of over 4 years of continuously satisfactory employment, shortly after he interested himself in and began asking questions about the administration of "benefits" achieved under an exclusive union closely allied to his employer by family ties, Reilly found himself precipitately discharged upon the alleged basis of a few "errors" seemingly of a trivial as well as a previously tolerated nature (on his part as well as on the part of others), involving a few packages out of thousands processed by him daily; and with his "Union" refusing to test the propriety of his discharge through the procedures available under the collective agreement, for the reason that he had seen fit to exercise his right of placing the entire matter before the National Labor Relations Board. C. Respondent Employer's Defense; Resolution and Rationale Respondent Employer's defense concerning its discharge of Reilly revolves around its contention that his handling of the NORMA account was unacceptably inefficient, engendering substantial business disruptions and losses to it. Since this contention was sought to be advanced through a number of witnesses, in order to determine the weight of the contention it is necessary to evaluate the testimony of 24 The enclosure of the indicated words in quotation marks by the author of the letter, Frank Baffa, is noted. It is conceded that the union constitution requires that the question of whether grievances shall be submitted to arbitration must be determined by the executive board. According to Frank Baffa's testimony, "we considered it. We acted on it ... DelGrosso and myself." 25 Reilly's credited testimony, as recounted above, establishes that he did in fact so request. I do not credit DelGrosso's contrary testimony. 26 The quoted words are characteristic of consistent and repeated vagueness punctuating Costello's testimony. 27 I find this difficult to credit, considering the close family ties of his second in command, Al Baffa, with his brother Frank Baffa, the first in command of the Union, and the rancorous, daggers'-end relationship which developed in January between Frank Baffa and Reilly at union meetings concededly attended by Respondent Employer's foremen, which were concededly learned by Respondent Employer (Bartolomucci). those witnesses, as well as related countertestimony presented by General Counsel. Respondent Employer (i.e., Penn) Executive Vice Presi- dent Costello testified that during the first half of 1975 he noticed an "unusual" amount of NORMA outturn reports and complaints concerning shortages, overages, misloads, mismarked cartons, and billings by vendors for unreceived merchandise. Since, however, as will be recalled, Reilly did not begin to work on that account until in or about October 1975, that situation-whatever it may have been-is in no way ascribable to Reilly. Nevertheless, according to Costello, "complaints" continued "later" in 1975, resulting in his suggesting certain operational "changes" to Al Baffa, possibly Superintendent of Operations Lavagnino, Green- ville Terminal Manager Bartolomucci, and "probably" also in a discussion of the "problems" with NORMA Foreman Olvesen. 26 Costello concedes he was familiarized by Al Baffa and Bartolomucci in January 1976 with the name and identity of Reilly, but he insists this was only as the checker for the "majority" of the NORMA freight, and he denies that he was told or in any way aware of any union activity on Reilly's part, at meetings or otherwise.2 7 Although, according to Costello, approximately 10 of Penn's accounts are serviced at the Greenville Terminal, the "claim incidence" relating to the NORMA account was in his estimation "substantially greater" than for other accounts, even during the period when Reilly was among those involved in the processing of merchandise of that account. Since, however, no comparative quantities of merchandise involved, or carton or package quantities, or other basic facts have been established by documentary or other factual proof presumably available to Respondent Employer, the validity of these vague and conclusionary, generalized allegations is impossible to assess, leaving them open to serious question, not warranting their acceptance and accreditation as that substantial credible proof required.2 8 Also, among many other factors, there is no proof that the "claims"--whatever their extent or nature- had any validity, or that they were not the result of miscarriages or pilferages en route, or that they were in fact the fault of Reilly at all or-if at all-in greater proportion than the fault of anybody else. Indeed, Costello freely concedes that the "claims" could have involved pilferage or other losses following the departure of the trucks from the Greenville Terminal, including pilferage at the receiving point. And Costello relates the "claims" to Reilly only because they arose in part while Reilly was at the Greenville Terminal, while at the same time conceding that 2I We have been instructed to accord weight to a party's failure to produce records within its control and therefore facts peculiarly within its knowledge. U.S. v. Denver& R.G.R.R., 191 U.S. 84, 91-92 (1902); N.LR.B. v. Wallick, 198 F.2d 477, 483 (C.A. 5, 1952). Here, especially, although I even expressly invited Respondent Employer to produce such documenta- tion and its executive vice president indicated he could, no such material was forthcoming. I rejected a proffered exhibit (Resp. Employer Exh. 10- Ident.) containing a purported listing of numbers of claims per month, September 1975 - January 1976, for various accounts, since, among other things, Costello denied knowledge as to the meaning of the numbers. No other foundation was sought to be established for this crude, conclusory aggregate of unanalyzed "numbers," which would in any event be meaningless unless tied to quantities of merchandise consigned and the circumstances of the claims including whether meritorious or not and whether or not tied to fault on Reilly's part. 936 PENN INDUSTRIES, INC. others including Olvesen and Boyle also checked, routed, and handled NORMA shipments from the Greenville Terminal and that, for example, in Costello's words, "I [Costello] don't know that we do know that it wasn't [Boyle's] fault." 29 Costello describes three types of errors which a checker may theoretically make: (1) signing for merchandise not actually received; (2) signing for a carton more valuable than actually received; (3) misloading or misdirecting a carton to the wrong destination. Most serious of these, according to Costello, is the first, since it allegedly cannot be corrected. There is no indication here that Reilly was at any time responsible for or charged with such or other uncorrectable or uncorrected error.30 In short, Costello's testimony does not establish or constitute persuasive proof or demonstration as to the comparative extent of claims involving NORMA vis-a-vis other accounts, nor in terms of their proportionate relationship to total freight handled for those accounts, nor of their basis, nor that they or some of them were due to Reilly's fault, nor that, if they were, how they were or that they were disproportionately due to errors on Reilly's part. Costello's testimony thus does not make out Respondent Employer's defense. Respondent Employer Vice President of Operations Al Baffa testified that he had nothing to do with Reilly's discharge, and that he learned of it the next day from Bartolomucci, who told him he had discharged Reilly for issuing a receipt for freight not received.31 Also according to Al Baffa, when he was informed by Costello at the beginning of 1975 of a "problem" with the NORMA account, involving "a lot of claims and bad OS&D reports, he (Baffa) directed Bartolomucci to correct it. Thereafter a "blind tally" was carried out and trailers were spot checked and "stripped" at random; and two men were assigned to the account instead of one-Lubinsky (Luninsky) was there alone in early 1975 (when the "problem" with "claims" was allegedly intense), then Boyle replaced Lubinsky, and Reilly was added to Boyle. According to Baffa's testimony, he received these "bad reports" concerning NORMA shipments from Costello since the beginning of 1975, long before Reilly was assigned there, and although Reilly was discharged both Lubinsky and Boyle are still in his Company's employ. Al Baffa described Respondent Employer's negotiations, from November 1975 to January 1976, with Respondent Union eventuating in the 3-year collective agreement presented to the union membership at the aforementioned stormy session of January 10, at which Reilly had his 29 I reject, as another vague, conclusory, and unestablished generality, Costello's uncorroborated and implausible estimation that there is "no longer . . . a problem with NORMA" since Reilly's discharge since "the proportion of problems in claims is drastically reduced." 30 Costello describes the claims procedure for lost or damaged goods as follows: The consignee or its agent (e.g., Calongne Company of New Orleans, for NORMA) submits an "OS&D" (i.e.. over, short, and damaged) or "outturn" report to USP&S for use in case of a subsequent claim; but in most cases, according to Costello, the consignee also submits a blank claim form even if the shipment is in order-perhaps because of the relatively short time limitation for making claims under the standard bill of lading and related legal requirements. USP&S thereafter takes appropriate action (presumably including attempts to determine who is at fault, and to locate misrouted merchandise), including notifying the consignor and also Penn. explosive confrontation with Baffa's brother, Frank Baffa, shortly after which Reilly was discharged (January 26). In these collective negotiations, according to Al Baffa, he was present on behalf of Respondent Employer, as was his brother Frank Baffa as principal spokesman on behalf of Respondent Union, but Costello served as principal spokesman for the Employer. I cannot credit the reiterated testimony of Al Baffa that his brother Frank never told him "anything" that went on at union meetings, other than the outcome of the vote on the contract; nor can I credit his testimony that neither his brother Frank nor anybody else ever mentioned to him anything about Reilly's activities or role in the Union or at any of its meetings or that he was having difficulty with Reilly. It is apparent from the testimony of Al Baffa that, taking it at face value, he played no role in Reilly's discharge and claims no first-hand knowledge concerning it. We proceed, therefore, to the testimony of the third of Respondent Employer's witnesses on this subject-its Greenville termi- nal manager, Gregory Bartolomucci. Bartolomucci testified that he has been in Respondent Penn's employ for 11 years, since February 1975 in charge of both buildings (i.e., 120 and 136) comprising that terminal, under Superintendent of Operations Lavagnino and Vice President of Operations Al Baffa, with Foremen Rocco (Building 120) and Olvesen (Building 136) under him. Although he swore on direct examination that he has never been a member of Respondent Union, on cross- examination he conceded he was a member of that Union from 1965 to 1974 or 1975-a recent period of 10 years, hardly regardable as a lapse of memory. Bartolomucci also speaks of "problems" of overages and shortages with the complicated NORMA account from early 1975 (when or shortly after Bartolomucci came on as Greenville terminal manager), 32 resulting in his assigning Reilly there in addition to Boyle, under Foreman Olvesen in Building 136. According to Bartolomucci, the "OS&D" reports disclosed overages, shortages, damaged merchan- dise, and recoopered cartons (i.e., cartons which had opened or been opened, and retaped-Bartolomucci acknowledging that it was pure assumption on his part that this existed or took place before rather than after the checker's checking). Also according to Bartolomucci, he had replaced Lubinsky, the original checker in NORMA Building 136, with DeFranco, and DeFranco with Boyle. Although this would have had to have been done by Bartolomucci subsequent to February (1975), when he took over there, and before October (1975), when Reilly was assigned there, Bartolomucci conceded on cross-examination S1 It hardly seems probable that Costello would not have kept his second in command, Al Baffa, apprised of his alleged misgivings regarding Reilly's efficiency-if, indeed, Costello was really aware of lowly employee Reilly, as he now claims he was, out of hundreds of employees. It also seems improbable that, if Costello were aware, it was not through Al Baffa or at least with knowledge on the latter's part. (On cross-examination, Baffa acknowledged that he had, indeed, mentioned Reilly to Costello as an employee servicing the NORMA account. Why he should have singled Reilly out is unexplained.) Neither Costello nor Baffa testified that he gave instructions to have Reilly discharged. 32 Contrary to his repeated testimony to this effect at the hearing, in his pretrial affidavit Bartolomucci swore that he began noticing errors in the NORMA shipments between November 1975 and January 1976. 937 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he at no time disciplined (or, of course, discharged, as in the case of Reilly) Lubinsky, DeFranco, or Boyle for any of the numerous and repeated errors he discovered on the NORMA shipments being handled by them. Concerning his discharge of Reilly on Monday, January 26, after over 4 years of steady employment, without previous intimation or notice, Bartolomucci testified that, after he directed Olvesen to "strip" a trailer that day,33 the unloaded trailer allegedly disclosed five or six errors involving incorrect "PRO" numbers; 3 4 and two shipping orders for the same two Lady Carol cartons.3 5 According to Bartolomucci, the trailer in question had been loaded on the previous Friday (January 23), when Reilly-as well as Olvesen, Boyle, and perhaps others-had been working; but since the shipping orders in question bore Reilly's initials, he told Reilly he was discharged and that he could get details from Olvesen. Although Bartolomucci vaguely recounted an episode involving a discharge (not by him) for errors in sealing a freight car-hardly comparable to the situation involving Reilly-he himself referred to this as "ancient history . . way back"; and was able to recall36 only one other checker (Charlie Wills) discharged by him (allegedly in the spring of 1976, following Reilly's discharge), for misrouting freight as well as receipting for wrong amounts of freight. He was unable to name a single other checker discharged by him in all of 1975,37 despite the claimed great problems with the NORMA shipments that year.38 Bartolomucci concedes that in 1975 when an error by Boyle, involving a misload of 300 cartons-which apparently traveled 2,000 miles off destination-was discovered, he merely "reprimand[ed " Boyle, with "doubt" that he even "considered" discharging him.39 Bartolomucci acknowledges that he never gave Reilly any warning or intimation that he faced discharge or discipline, and "doubt[s ]" that anyone else did. Finally, on cross- 33 Bartolomucci indicated that a NORMA trailer had also been "stripped" on the previous Friday, November 23. Assumedly no shortcom- ing was found, since he speaks of none. 34 Since these were not established factually, I discredit this testimony of Bartolomucci, a flippant and plainly partisan witness, who did not hesitate to alter his testimony under oath. Again, without explanation, no records were produced. See fn. 28, supra. Nor was Reilly credibly linked to any disproportionate or undue quantity or severity of such alleged errors. 35 This refers to the Lady Carol shipment described in detail, supra, a seemingly trivial error promptly caught and reported by Reilly himself, and one which could readily have been corrected in various ways, including prompt notification to the shipper and the consignee. Bartolomucci concedes the error was discovered before the trailer left. Furthermore, there is no contention that even one claim resulted from this error which was thus discovered and reported by Reilly himself. Moreover, Bartolomucci's order to "strip" the trailer on January 26 to search for two extra Lady Carol cartons which did not exist was not only unnecessary but also seemingly without logical justification. 36 With his characteristic testimonial brashness and flippancy, Bartolo- mucci claimed that although he "knows" of others, he "cannot think" of their names. Considering the fact that he had ample time to do so, before as well as at the hearing, and, once again, the availability of records neither produced nor consulted, I attach no weight to this testimony. 3a On redirect examination, however, Bartolomucci dredged up the name of Gleason as a checker he discharged in 1975 for "making mistakes" of an unspecified nature. Recross-examination elicited that there were two Gleasons, each in the Company's employ for a comparatively short time, one as a checker and the other as a loader, both discharged-one because "he didn't care about the work he was doing .... he would take a lot of time off and he would just get in a trailer and sit down behind there and make a little seat and smoke a cigarette or something and just sit there," as well as misloading and misrouting, and, with all that, only after an express examination Bartolomucci explicitly conceded that his 'primary reason" for discharging Reilly was the described Lady Carol incident-as he indeed expressly told Reilly, and that although there had been comparable errors by other checkers, none of them had been discharged or disciplined therefor during the entire year of 1975. Respondent's final witness was its Building 136/NORMA account foreman, Olvesen, who has been in its employ as foreman at various locations for over 4 years and who is also a member of Respondent Union, whose meetings he attended. He has been foreman for the entire Building 136, which handles 10 or 11 accounts including NORMA, and he has also cosupervised Building 120 with Foreman Charles Rocco, since February 1975. He recount- ed that in March or April NORMA account checker Lubinsky was replaced by John Boyle, that around early October Reilly was added to assist Boyle, and that in January 1976 Reilly and Boyle were 2 of 5 checkers and routers out of 9 or 10 employees under Olvesen. On Friday, January 23, 1976, on instructions of Terminal Manager Bartolomucci, a trailer which had been loaded in Building 136 was "stripped" in order "to see how the check was going on in the building itself." According to Olvesen's testimony on direct examination by Respondent Employ- er's counsel, no discrepancy wasfound. 40 Later that day (or on Monday, January 26)-still according to Olvesen- while another trailer was being loaded by loader Ben Williams, with Reilly as checker but Olvesen unable to "recall" whether he himself (Olvesen) assisted in checking or loading, a "discrepancy" was discovered involving two shipping orders on a single consignment of two Lady Carol dresses. Although Olvesen claims it was he who discovered the discrepancy, I have already credited Reilly's contrary warning by Bartolomucci that the next time he would be discharged; the other Gleason not only for misleading as well as receipting for wrong amounts of cartons, but also because he "screwed it all up," and in his case also only after an express prior warning from Bartolomucci. 38 According to Bartolomucci, the 25 employees (including 12 or 13 checkers) under him in January 1976 rose to around 36 by September of that year. 39 I place no weight upon Bartolomucci's vague, unexplicated, and unsupported testimony that he "talked" to Reilly at various times about supposed mistakes in the latter part of 1975 when Reilly started working on the NORMA account. 40 Notwithstanding this explicit testimony on his direct examination by his own Employer's counsel, on cross-examination by counsel for General Counsel of the Board, Olvesen-in what impressed me as a smart-alecky ploy demonstrating his unconcealed partiality and attempt to do his Employer the most possible good regardless of the truth-swore that damaged cartons and wrong PRO numbers were discovered, even though there were no "shortages." I discredit this testimony, not only because of his seemingly discrepant testimony on direct examination, but also because of his admissions to Reilly to the contrary as described in Reilly's credited testimony (supra), and because loaders other than Reilly handled cartons after they left Reilly's hands, and finally because it is most unlikely that Bartolomucci would not have emphasized this in his testimony if in fact it had been so. It should be added that Olvesen further testified, on cross- examination, that although he discovered wrong PRO numbers on freight in the first "stripped" trailer on January 23, he permitted the shipment to go forward without making any corrections or notifying his office-either a most unlikely canard or an action which would seem to reflect adversely on his own job performance or on the efficiency level of his Employer's practices, either casting no credit on his testimonial quality or on the merit of his Employer's basic contention concerning Reilly here. 938 PENN INDUSTRIES, INC. testimony that it was Reilly who caught and promptly reported it. 4 ' Olvesen personally that same afternoon (Friday) informed the truckman (Dynamic Trucking), who had brought in the Lady Carol shipment, of the error. On the following Monday, January 26, the trailer was "stripped," confirming the fact-if, indeed, there had ever been any question-that it contained only one shipment of two cartons of Lady Carol dresses. It would indeed appear to have been crystal clear that only one shipment of two cartons of Lady Carol dresses was received or involved, and that at no time has any contrary contention or claim been made, since (I) the error was promptly discovered and reported by Reilly; (2) the delivering truckman was promptly informed of the error by Olvesen, and there is no credible proof that the truckman or consignor at any time in any way disputed this information; (3) Olvesen conced- ed that at no time did he-and there is no evidence that anybody else on Respondent Employer's behalf did-see fit to so much as inquire from the consignor whether it had in fact made two shipments of two cartons each, or other than one shipment of two cartons; and (4) there is no indication that the consignor, consignee, or anybody else has ever made any claim in regard to the foregoing. Under these circumstances, since it was utterly clear that only one shipment of two Lady Carol cartons was involved and nobody was claiming otherwise, it is difficult to understand why Bartolomucci ordered the trailer "stripped" on January 26 to look for two more cartons which did not exist-unless he was looking for an excuse or device to blow up out of all "importance" the technical error which Reilly himself had caught and reported, in order to use it as an excuse and pretext for firing Reilly. Olvesen explained that Reilly was the checker for two accounts in addition to NORMA, and that in January 1976 Reilly processed perhaps thousands of cartons each day. Olvesen concedes that at no time prior to Reilly's discharge had he ever censured, reprimanded, or even criticized Reilly's work performance. 4 2 Finally, there is in evidence a summary of the NORMA account OS&D reports from July 1975 through January 1976, as well as various stipulations relating thereto (G.C. Exhs. 8, 8A, 9, 10, and II). No lengthy analysis of these voluminous documents is necessary since, for reasons already explicated in connection with Costello's testimony (supra), they are wide of the precise mark here, and are 41 Olvesen conceded that it was indeed Reilly who pointed out (allegedly after Olvesen had discovered the two-carton shortage) that two shipping orders had been issued-i.e., for two instead of one two-carton Lady Carol shipment. 42 Olvesen, however, on occasion showed Reilly OS&D reports received, a practice he followed with regard to all checkers and routers. (It will be recalled, as explained above, that OS&D reports do not necessarily establish fault on the part of the checker or router since, among other things, they as well as consignor/consignee claims may be put forward for such things as pilferages en route or at destination pror to unqualified contents-quantity- and-condition-count receipt without recourse.) 43 Thus, as already indicated, OS&D claims-even when they are not themselves spurious, wrongful, exaggerated. erroneous, or subject to valid legal defenses-involve all manner of things (pilferages or damage en route, etc.) in no way ascribable to Respondent Employer's checkers in general or to Reilly in particular. Additionally, many of these OS&D reports involve NORMA shipments completed long before Reilly started that work; and there is no indication that any pre-Reilly checkers purportedly responsible rather in the category of arrows shot into the air to fall one knows not where.4 3 Reilly's position vis-a-vis the foregoing has already been essentially detailed. Among other things already men- tioned, Reilly testified that his work as checker for Respondent Employer required him to process thousands of cartons a day and as many as 10,000 per week. In this testimony he is supported by his foreman, Olvesen. As has also been mentioned, Reilly further testified that on January 23, when the incident involving the duplicate shipping order on the two Lady Carol cartons occurred- which Terminal Manager Bartolomucci testified was the real reason for Reilly's discharge-Reilly was also doubling in brass for route clerk John Boyle, who was away on jury duty, so that Reilly was doing not only his own job of checking thousands of cartons daily but also Boyle's job of routing thousands of cartons. In his testimony, too, Reilly is supported by Boyle as well as by Foreman Olvesen. Reilly admits as, indeed, is overwhelmingly established by the OS&D reports in evidence (G.C. Exhs. 8-l 1) that in 'the complex process of unloading, checking, routing, paperwork issuance (bills of lading, shipping orders, PRO numbering,44 manifests, etc.), freight consolidation reload- ing, etc., of thousands of cartons daily, errors occurred (as well as nondeliveries, short deliveries, and damage of all sorts, and also theft and pilferage in transit after merchan- dise left the terminal). Reilly candidly admits that these errors occurred on his part as well as on the part of others (as they necessarily would, since merchandise was loaded and otherwise passed through other hands after leaving Reilly's), and that in previous years they had merely been brought to the attention of those who were or might have been responsible; but he insists his own errors were "very few" and infrequent. It is certainly true that neither has the contrary been established, nor any comparative error level been shown for Reilly vis-a-vis other checkers, nor that Respondent Employer at any time even criticized, much less warned or disciplined, Reilly for the caliber of his performance (although, as Bartolomucci himself testified, he warned others). Reilly uncontradictedly testified about a misconsignment of 300-400 cartons of NORMA mer- chandise in the late fall or early winter of 1975-76, by another employee, which traveled 2,000 miles from where it should have gone, with no disciplinary action taken. Respondent's route clerk John Boyle, an impressively plain-spoken and credible witness, strongly corroborated for any alleged errors therein have been discharged or disciplined. Moreover, the quantity, scope, and regularity of these reports serve to indicate the apparent day-to-day, routine character of such errors or exceptions, the volume of which in relation to the huge volume of cartons processed would seem to stamp them as unremarkable if not "par for the course" in this kind of business. Cf. M.C.C. of Floridae Inc., 224 NLRB 1519, 1527 (1976) (re Dennis Fields). " Thus, even on so seenmingly a routine mechanical task as PRO- numbering by number-stamp machine, as explained by Reilly and corroborated by route clerk Boyle, if the numbering machine is set on duplicate numbering (i.e.. the same number for the bill of lading and for its mate shipping order), if an extra copy or document is attached or in the pile, the consecutive numbering may easily be thrown off unless immediately caught and the numbering machine readjusted. With thousands of cartons being numbered and otherwise processed daily, occasional errors would thus seem to be unavoidable-and all agree that they occurred, without their authors (even when identified) being criticized or disciplined, much less discharged. Cf. M. C.C of Florida, Inc., supra. 939 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reilly in these respects. Boyle, who has been in Respon- dent Employer's employ as a checker and router since 1968, began working on the NORMA account around February 1975 as a checker-router. Boyle freely concedes that he has made mistakes in processing the huge quantities ("over a thousand") of cartons passing through his hands each day, including mismarking cartons and incorrect PRO numbering, different PRO numbers on cartons from those on the shipping order, two shipping orders covering the same shipment (with two different PRO numbers assigned to the same shipment), and cartons loaded into the wrong trailer. When these errors were discovered by him, they were corrected by him. When they were discovered by others and ascribed to him, they would be called to his attention by persons including Olvesen and Bartolomucci, but he was never in any way disciplined for any of them. Boyle even speaks of incoming deliver drivers filling out bills of lading when none was found to cover a package; the errors and discrepancies, to say nothing of possible shortages, which could result from this practice-said to have occurred several times a week-are readily imagina- ble. According to Boyle, trailers were "stripped" on various occasions, including by him, in order, for example, to locate a misrouted carton; so that the "stripping" of a trailer is not unique, but rather a standard episode in this business as the occasion-hopefully "infrequently"-aris- es. 45 Boyle testified that Terminal Manager Bartolomucci as well as Foreman Olvesen had told him as early as February 1975-long before Reilly was assigned to Building 136 and the NORMA Account-that they were having "problems" with the NORMA shipments, including mis- marked cartons and wrong PRO numbers. Boyle testified that he himself has acceptedfewer cartons than calledfor on a shipping order, for the NORMA account-as many as five per week; that drivers have sometimes given him the same bill of lading for two different consignors or consignees; and that he has experienced "double billings," where he has issued two different PRO numbers where only one should have been issued-and that he has never in any way been disciplined for any of these "errors" or resulting discrepancies. In sum, the overall combined testimony of Respondent's witnesses simply does not overcome or match in weight and quality that of Reilly and Boyle within the frame of reference of the total circumstances and the record as a whole. Within that total context, I am indeed persuaded that Reilly was discharged from his long held employment because of his suddenly awakened interest and demon- strated activism in endeavoring to discover the true nature of the Union and its seemingly close and cozy relationships with the Employer, the way the Union was being run and its officials paid, and the kind of seemingly inadequate collective agreement once again being concluded; and I am utterly unpersuaded that, as Respondent Employer con- tends, he was discharged because of the error (promptly discovered, reported, and corrected) with the PRO num- bers on the January 23 Lady Carol shipment or other shortcoming in relation to his work. Based upon the record 4' As further explained by Boyle, "blind tallies" are made on outgoing shipments. These are done on a paper pad, kept on or near the trailer door and filled in by the checker, router, or loader as the trailer is being loaded. The loaders or checkers also make a "loader's count." If these counts do not correspond to the total of packages on the bills of lading, an error is as a whole, I accordingly so find. In so doing, I have given weight to the following, among other, factors and circum- stances: my assessment of the testimonial demeanor of Reilly and Boyle, preferring it to that of Respondent's witnesses as shown; the wide-of-the mark and inconclusive nature of Respondent Employer's "showing" of alleged "errors" or "discrepancies" in NORMA shipments, not shown to be ascribable to Reilly or in any event not established to be such as to have been the real reason for his discharge; and my being persuaded that the real reason for Reilly's discharge was that he had suddenly become an abrasive factor toward the union leadership and a wrinkle in its previously smooth and comfortable relationship with the Employer, when he began-shortly before his precipi- tate discharge-to exercise his rights under the Act. I am persuaded that this was the real and compelling reason for his discharge, and not any work shortcoming as now claimed. Reilly had been a long-term (over 4 years), steady, and satisfactory employee. Other employees concededly made comparable, if not worse and more extensive, errors and were not discharged or even disciplined. Unlike Reilly, other employees who were discharged, in their case for prolonged and egregiously unacceptable work perfor- mance, were warned ahead of time that such a conse- quence would ensue if they did not improve. Considering the huge number of cartons processed by Reilly daily- concededly perhaps thousands, and as many as 10,000 weekly--plus his double job as router as well as checker on January 23 during Boyle's absence on jury duty, the "error" or discrepancy here (or any previous alleged work shortcoming dredged up after his discharge) seems de minimis, if not unavoidable. Such errors, on the part of others as well as Reilly, were part of the usual, accepted routine of such volume work and were invariably con- doned and excused if not ignored. Cf. M.C.C. of Florida, Inc., supra. The alleged "error" itself (Lady Carol) resulting in Reilly's discharge was of a technical nature, in no way unusual, was promptly discovered and reported by Reilly himself, was promptly corrected, and has not been shown to have resulted in any damage or claim-nor would any claim have been justified or meritorious even if filed. It was, however, although speedily caught and reported by Reilly himself and promptly rectified without damage or loss to anybody, nevertheless seized upon and exploited by Respondent Employer as a convenient pretext to rid itself of a good employee who had just begun to demonstrate that he was prepared to lead his fellow employees to gain more for them than the Union wanted to, and that he was prepared to stand up against a union leadership with which Respondent Employer had enjoyed a longstanding amiable relationship, in at least Reilly's view, at the expense of the employees. Respondent Employer's desire to rid itself of such an employee was, I believe and find, its true reason for discharging him, and the Lady Carol incident (later, after his discharge, sought to be supplemented as will be shown) was a mere pretext to mask that true reason. When indicated-a short or overage of the packages, or an error in a bill or bills of lading; if the former, the trailer may have to be "stripped" in whole or part. Boyle could recall various such instances, not only on the NORMA but other accounts and at other locations as well as the Greenville Terminal. 940 PENN INDUSTRIES, INC. subjected to the bright light of day, Respondent Employ- er's defense simply does "not stand under scrutiny." N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9, 1953) and cases cited. It has repeatedly been pointed out that, in assessing an employer's true reason for its discharge of an employee engaged in protected concerted activity, impor- tant clues include the leadership or prominence in that activity of the employee (N.LR.B. v. Sequoyah Mills, Inc., 409 F.2d 606 (C.A. 10, 1969); N.L.R.B. v. Council Manufacturing Corporation, 334 F.2d 161, 164 (C.A. 8, 1964)); the previously satisfactory work performance of the employee (N.LR.B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360, 366 (C.A. 6, 1963)); the nondischarge of others in the same work category (N.LR.B. v. Nabors, 196 F.2d 272, 272-276 (C.A. 5, 1952), cert. denied 344 U.S. 865 (1952)); the employer's continued need for that category of employee (N.L.R.B. v. Local 776, International Alliance of Theatrical and Stage Employees (Film Editors), 303 F.2d 513, 519 (C.A. 9, 1962), cert. denied 371 U.S. 826 (1962)); the timing of the discharge (N.L.R.B. v. Sequoyah Mills, Inc., supra; Tele-Trip Company, Inc. v. N.L.R.B., 340 F.2d 575, 579-580 (C.A. 4, 1965); N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957)); the precipitate nature of the employer's discharge of the employee vis-a-vis the employ- er's learning of the employee's organizational activities (Tele-Trip Company v. N.LR.B., supra, N.L.R.B. v. Council Manufacturing Corp., supra); the replacement of the discharged employee (N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229, 235 (C.A. 8, 1966); N.L.R.B. v. Davidson Rubber Co., 305 F.2d 166, 168-169 (C.A. 1, 1962); N.L.R.B. v. Local 776, IATSE (Film Editors), supra; N.L.R.B. v. Montgomery Ward & Co, supra); and the employer's implausible explanations for its actions (N. LR.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245-246 (C.A. 8, 1969), cert. denied 396 U.S. 823 (1969)). An employee who is "dissident and annoying" or a burr in his employer's side because of his union activism (including opposition to a proposed collective agreement, cf. Aerodex, Inc., 149 NLRB 192, 198 (1964); Nu-Car Carriers, Inc., 88 NLRB 75, 76 (1950), enfd. 189 F.2d 756 (C.A. 3, 1951), cert. denied 342 U.S. 919 (1952))46 is not thereby vulnerable to discharge in exemption from the Act's protection. Duo-Bed Corporation v. N.LR.B., 337 F.2d 850, 851 (C.A. 10, 1964), '6 As stated in Nu-Car Carriers, Inc., 88 NLRB 75 at 76-77 (1950): The discharge of a dissident within a union when that termination is motivated by a desire to eliminate protest must inevitably result in an infringement under Section 8(a)(X) and 8(aX3) of that employee's right to self-organization. 47 Had the Union's refusal to proceed to arbitration been related to any ipse dixit determination on its part that arbitration was unwarranted on the merits (cf. Vaca v. Sipes, 386 U.S. 171. 190, 191-195 (1967); Humphrey v. Moore, 375 U.S. 335, 349-350 (1964): Ford Motor Company v. Huffman, 345 U.S. 330, 337-339 (1953))-not the case here, it is emphasized-in the situation here presented I would find and hold upon the record as a whole that such determination by the Union would have been unreasonable. unwarranted, arbitrary, discriminatory, and in bad faith, both because of the total circumstances and because of the Union's own conflict-of-interest involvement against Reilly in the situation underlying his discharge. Even within the standards of Vaca v. Sipes, supra, unions must adhere to "rational decisionmaking processes." Clark, The Duty of Fair Representation. 51 Tex. L. Rev. 1119. 1131 (1973). It has recently been held that bad faith is not an essential element in a claim of unfair representation, negligent processing of a grievance being a sufficient basis for such a claim. Ruzicka v. General cert. denied 380 U.S. 912 (1965). When an employee's "work apparently became intolerable only after he [became active in] the union," that circumstance is entitled to weight in assessing the true reason for his discharge. N.L.R.B. v. Elias Bros. Big Boy, Inc., supra at 366. And where, under the circumstances and timing involved here with Reilly's unprecedented intrusion into the sensitive area of the apparently close ties and relationships between the Employer and the Union, and Reilly's novel attempt to obtain wage scales and other economic betterments for the employees far in excess of any previously received as well as far in excess of what the union hierarchy was asking in its collective agreement, "the discharge in question involves the 'key' employee .... supplyling] shape and substance to otherwise equivocal circumstances." N.LR.B. v. David- son Rubber Co., supra, see also N.LR.B. v. Nabors, supra. As we have been instructed by the Supreme Court, where a union activist is discharged for conduct engaged in by many others with impunity, "the Board need not listen too long to the plea that shop discipline was simply being enforced." American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 312 (1965). See also N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967). D. Respondent Union's Defense; Resolution and Rationale As will be recalled, Respondent Union refused to process Reilly's discharge grievance to arbitration in accordance with the collective agreement with Respondent Employer. Under the terms of that agreement (Resp. Union Exh. 2), membership in the Union by Respondent Employer's employees is compulsory, with a checkoff pay deduction of union dues; and, in the event an employee grievance is not satisfactorily adjusted at the first-step discussion between Employer and Union, it "shall" be submitted to arbitra- tion. As has been shown above, Respondent Union's reason for refusing to proceed to arbitration with Reilly's discharge grievance was unrelated to the merits of that grievance,47 and was based solely on Reilly's having placed the matter before the National Labor Relations Board-as Respondent Union explicitly stated in its letter to Reilly (G.C. Exh. 5). Motors Corporation, 523 F.2d 306 (C.A. 6, 1975). Moreover, the alleged "additional" instances-some disputed and others in no way previously mentioned or claimed to have been significant or unusual-of previous "errors" on Reilly's part, dredged up by Respondent Employer at the first- step gnevance discussion with the Union on February 10, 1977, and still others attempted to be interlarded at this hearing, but never previous/l brought up or indicated as significant or as in any way being the reason for Reilly's discharge (it will be recalled that even Terminal Manager Bartolomuct'i conceded that the January 23 Lady Carol "error" by Reilly was the real reason for his discharge), were and are obviously makeweight afterthoughts assembled by Respondent Employer to make its previous discharge seem plausible; as shown above, even Union Business Agent DelGrosso purported or pretended to be impressed by them without further investiga- tion as was his duty. Cf. Ruzicka v. General Motors Corporation, supra. Phyllis Whitehead d/b/a P & L Cedar Products, 224 NLRB 244 (1976). Although, as I find, these alleged "additional" errors played no role in Reilly's discharge and were not all laid at his door, they were in any event no more than the normal kind of errors generally occurring in this business and tolerated by Respondent Employer as being within the level of acceptable performance, all things considered. Cf. M. CC of Florida, Inc., 224 NLRB 1519, 1527(1976). 941 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Asked the direct question, Respondent Union Secretary- Treasurer Frank Baffa conceded upon the record that it is not the Union's position that it would not go to arbitration because Reilly had gone to the Labor Board. But the Union's letter to Reilly (G.C. Exh. 5) appears to say the opposite; and in fact the Union has at no time indicated any willingness to go to arbitration. Notwithstanding Respondent Union's current insistence that it did not refuse to take Reilly's discharge grievance to arbitration- which must be taken tongue in cheek in view of its own letter to Reilly (G.C. Exh. 5)-I find that it has indeed refused to go to arbitration as provided in the collective agreement, for the reason that (as stated in that letter) Reilly had filed charges under the Act and invoked the Board's processes. Respondent Union's counsel conceded upon the record 48 that Respondent Union does not contend that it is absolved from the obligation to proceed to grievance arbitration if a member files a charge with the Labor Board. There is no dispute that Reilly has at all material times-indeed for the more than 4 years of his employment with Respondent Employer-been a member in good standing of the Union. The details of Respondent Union chieftain Frank Baffa's close family relationship with Respondent Employer's top- ranking executive, Al Baffa (his brother), need not here be reemphasized; nor of Frank Baffa's rancorous relation- ships with Reilly after the latter began probing into the way the Union was being run and its seemingly cozy relation- ships with the Employer; nor of my discrediting the testimony of Frank Baffa that he never so much as mentioned to his brother, Al Baffa, Reilly's suddenly awakened intransigence at union meetings since "My job is to protect the men, not to talk about them"; nor of my discrediting the testimony of Al Baffa that his brother Frank ever so much as mentioned Reilly to him; nor that Terminal Manager Bartolomucci conceded that he was well aware, from foremen or others attending the January 10, 1976, contract ratification meeting, of the violent exchanges between Frank Baffa and Reilly "yelling and screaming at each other"; nor of my crediting Reilly that he asked Union Business Agent DelGrosso orally (before 48 The trial transcript at p. 97 reads: JUDGE OHLBAUM: Mr. Markson [i.e., Respondent Union's counsel .... Is it the position of the union that if an unfair labor practice charge is filed with [the] Labor Board the union is absolved of any possible responsibility which it has with regard to going to arbitration? MR. MARKSON: No. 4P In view of the way Union Business Agent DelGrosso "represented" Reilly at the grievance discussion of February 10 and his remarks to Reilly there and afterward, superimposed upon the acrimonious rancor previously displayed toward Reilly by DelGrosso's superior, Union chieftain Frank Baffa, Reilly had good reason to believe the Union was not representing him fairly and properly and could not be relied upon to do so. In addition to being fully morally justified under these circumstances in looking to the Board for help. Reilly also had the absolute statutory right to invoke the Act's protection by filing charges, independently of and in addition to pressing his contractual right to resort to arbitration. It is no answer to the Union's obligation as the employees' exclusive representative in enforcing the collective agreement for it to refuse to do so merely because Reilly exercised his statutory right to go to the Board. Reilly's resort to the Board did not constitute a surrender, waiver, or abandonment of his rights under the collective agreement nor a release of the Union's obligations under that agreement and by virtue of its fiduciary duties as exclusive bargaining agent. he wrote his formal letter of February 24 (G.C. Exh. 4) to Frank Baffa) to proceed to arbitration; nor of Frank Baffa's own testimony that, notwithstanding the Union's constitutional requirement that the question of whether to take a grievance to arbitration must be determined by its executive board, he did not submit it to the executive board but that only "we considered it. We acted on it ... DelGrosso and myself." Under all of these circumstances, I am persuaded and accordingly find and hold that Respondent Union in refusing to proceed with arbitration on the propriety of Reilly's discharge failed to accord its member Reilly fair and impartial representation because he had filed charges under the Act and sought the protection of Federal law and Board processes; and, further, restrained and coerced Reilly and his fellow employees in the exercise of rights guaranteed in Section 7 of the Act. Cf. Vaca v. Sipes, supra; Humphrey v. Moore, supra, Ford Motor Co. v. Huffman, supra; Local 703, Teamsters, 188 NLRB 873 (1971); Association of Packers & Drivers Union (Guy's Foods, Inc.), 188 NLRB 608 (1971), enfd. 78 LRRM 2792, 66 1 12,215 (C.A. 8, 1971); Port Drum Company, 170 NLRB 555 (1968), and 180 NLRB 590 (1970); Selwyn Shoe Manufacturing Corporation, 172 NLRB 674, 682 (1968), modified on other grounds 428 F.2d 217 (C.A. 8, 1970); W. J. Graham d/b/a Graham Engineering 164 NLRB 679, 696 (1967); Local Union No. 12, United Rubber, etc. (David Buckner), supra, International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, AFL-CIO and Amalgamated Local 453 (Maremont Corp.), 149 NLRB 482 (1964); Local 1367, ILA (Galveston Maritime Association), 148 NLRB 897 (1964), enfd. 368 F.2d 1010 (C.A. 5, 1966); Independent Metal Workers Union, Local No. I (Hughes Tool Company), 147 NLRB 1573 (1964); Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied on other grounds 326 F.2d 172 (C.A. 2, 1963).49 Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. Whether or not the Board at some point in time impossible of determination here would have "deferred" to arbitration under Colyer (Collyer Insulated Wire, 192 NLRB 837 (1971)), as perhaps then but perhaps no longer extant, is speculative and beside the point, since Reilly might have been content to abide the arbitration outcome or, if intolerable, he might then have pressed before the Board for vindication if (for example) the arbitration process had been irregular or inconsistent with Spielberg (Spielberg Manufacturing Company, 112 NLRB 1080 (1955)) standards; or the Board might, in exercise of its then currently perceived statutory obligations, have opted to proceed upon the charge or charges here in any event, under the particular circumstances shown. In either or any event, however, the Union failed in its obligation to represent Reilly fairly and properly by its conduct under the circumstances capped by its express refusal to proceed with arbitration, without regard to the merits of Reilly's grievance, simply and solely because he had invoked the protection of the Act by filing charges against the Employer and the Union in the situation shown. It was just as much a violation as if the Union had told Reilly that it would go to arbitration for him only if he did not go to the Board or that it would go to arbitration only if he withdrew his charges before the Board. "No responsibility of a union to protect its members' interests, no duty of fair representation, no 'legitimate discretion' to process or not to process a grievance isjustification to impede, deter, or interfere with an employee's right to come to this Board with an unfair labor practice charge." Association of Packers and Drivers Union (Guy's Foods, Inc.), supra. 942 PENN INDUSTRIES, INC. 2. Through its termination of the employment of its employee Howard S. Reilly on January 26, 1976, and its failure and refusal at all times since then to reinstate him, under the circumstances set forth and found in III, supra, Respondent Employer Penn Industries, Inc., has discrimi- nated in regard to terms, conditions, hire, and tenure of its employee Reilly to discourage or encourage membership in a labor organization, constituting unfair labor practices in violation of Section 8(a)3) of the National Labor Relations Act, as amended. 3. By its said acts as described in Conclusion of Law 2, supra, Respondent Employer has also interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, constituting unfair labor practices in violation of Section 8(a)(1) of said Act. 4. Through its failure and refusal, under the circum- stances set forth and found in Il1, supra, to proceed to process the discharge grievance of its member Howard S. Reilly to arbitration, involving the termination of the employment of Reilly by Respondent Employer on January 26, 1976, and its failure and refusal to reinstate him, Respondent Union Marine Freight Handlers & Warehousemen in the Port of New York and Vicinity, Local 976 ILA, has failed to accord Reilly fair and impartial representation because Reilly filed charges under the National Labor Relations Act and made use of processes of the National Labor Relations Board, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7, constituting unfair labor practices in violation of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices and each of them have affected, are affecting, and, unless permanently restrained and enjoined and otherwise appropriately remedied, will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having been found to have terminated the employment of its employee Howard S. Reilly by reason of his union and concerted activities protected under the Act, and thereby to have discriminated against him unlawfully as well as thereby to have interfered with, restrained, and coerced employees in the exercise of their rights under the Act, Respondent Employer should, as is usual in such cases, be required to cease and desist from continuing or other violations of the Act, and to offer Reilly reinstate- ment, with backpay and interest, computed as explicated by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent Employer should also, in accordance with the practice in cases of this nature, be required to preserve and open its books and records to the Board's agents for backpay computation and compliance purposes. Respondent Employer should further be required to 50 A. J. Krajewski Manufacturing Co., Inc., 180 NLRB 1071 (1970). sl Cf. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). 52 Cf., e.g., Truck Drivers, etc., Local No. 705. 210 NLRB 210, 277 (1974), and cases cited. 53 In the event no exceptions are filed as provided by Sec. 102.46 of the expunge any entries from its records reflecting that Reilly was discharged for work-related cause. Having been found to have failed in its duty of fair and impartial representation of its member Reilly in his meritorious grievance involving his unlawful discharge by his Employer under the circumstances shown, Respondent Union should be required to share the backpay obligation jointly and severally with Respondent Employer, as well as to cease and desist from that and further violations of the Act. Respondent Employer and Respondent Union should also be required to make the required payments into the Union's welfare and pension fund under their subsisting collective agreement on Reilly's behalf since the date of his wrongful discharge and the Union's associated wrongful refusal to process his discharge grievance to arbitration under that collective agreement. In view of the serious nature of the violations here, discriminatory discharge of the leader of protected concert- ed activity going "to the very heart of the Act",5 0 and the same being true of a Union's wrongful refusal to represent its member because he has invoked the protection of the Act and the Board's processes, Respondents should further be ordered to cease and desist from in any way violating employees' and members' rights under the Act. 5' Finally, posting of the usual informational notice to employees and notice to members should also be required. Because of the dispersal of small numbers of Respondent Employer's employees, all of whom are under the collective agreement required to be members of Respondent Union, throughout a network of terminals, subterminals, or facilities located within a concentrated area-i.e., the Metropolitan New York City shipping area or zone-and because of the nature of the violations found, affecting all employ- ees/union members who wish to exercise their rights in achieving and maintaining union democracy without jeopardy to their jobs, the posting requirement should be applicable to all of Respondent Employer's terminals and facilities, as well as Respondent Union's offices and halls, in that concentrated Metropolitan New York City shipping area in order to reach the affected employees/members and be reasonably efficacious. 5 2 Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 53 A. The Respondent Employer, Penn Industries, Inc., Jersey City, New Jersey, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Encouraging or discouraging union membership or any activity in which employees have the right to engage or not to engage under Section 7 of the National Labor Relations Act, as amended, by discriminating in regard to 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. 943 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire or tenure of employment or any term or condition of employment, in violation of said Act. (b) Terminating the employment of, discharging, laying off, furloughing, separating, suspending, or refusing or failing to recall, reinstate, reemploy, or rehire any employee because he has exercised or sought to exercise any of his rights as a member of a union or any other right under Section 7 of said Act. (c) In any other manner interfering with, restraining, or coercing any employee in the exercise of the right to self- organization; to form, join, assist, or participate in the affairs of any labor organization; to bargain collectively through representatives of his own choosing, or to participate in that process; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative actions necessary to effectuate the policies of the Act: (a) Offer to Howard S. Reilly immediate, full, and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights, privileges, benefits, and emoluments, includ- ing regular periodic incremental and other pay raises in the interim and also currently applicable pay scales. (b) Forthwith expunge from all of Respondent Employ- er's personnel, employment, and other records all state- ments, entries, and references that Howard S. Reilly was terminated, discharged, laid off, or separated by Respon- dent on or about January 26, 1976, for any work-related fault, deficiency, or reason; and desist from so stating to any employer, prospective employer, credit, reference, character, or similar inquiry. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage scale records and notations, social security payment records, timecards, personnel records and reports, job sheets and cards and records, and all other records and entries necessary or appropriate to determine the amount of backpay and other sums and benefits due under and the extent of compliance with the terms of this recommended Order. (d) Post at all of its terminal premises and facilities in the Metropolitan New York City shipping area, including but not limited to its Greenville Terminal in Jersey City, New Jersey, copies of the attached notice marked "Appendix A."54 Copies of said notice, on forms provided by the Board's Regional Director for Region 22, after being duly signed by Respondent Employer's authorized representa- tive, shall be posted by Respondent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places in each of said locations where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. The foregoing provisions shall be equally applica- ble to the signed "Notice to Members" form (Appendix B, attached) of Respondent Union which said Regional 54 In the event this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Director shall likewise furnish to Respondent Employer for simultaneous posting alongside each said "Notice to Employees" form (Appendix A, attached). (e) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent Employer has taken to comply with this Order. B. The Respondent Union, Marine Freight Handlers & Warehousemen in the Port of New York and Vicinity, Local 976 ILA, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing or failing to accord any of its members fair and impartial representation, including processing a mem- ber's employment discharge grievance to arbitration under a subsisting collective agreement, because such member has filed charges under the National Labor Relations Act or has made use of or sought to make use of protection or assistance from or processes of the National Labor Relations Board. (b) In any other manner interfering with, restraining, or coercing any employee in the exercise of the right to self- organization; to form, join, assist, or participate in the affairs of any labor organization; to bargain collectively through representatives of his own choosing, or to participate in that process; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; to inquire lawfully into and attempt lawfully to influence the conduct of the management and affairs of a labor organization of which he is a member; or to refrain from any and all such activities. (2) Take the following affirmative actions necessary to effectuate the policies of the Act: (a) Post at its offices, union halls, and all other places of business in the Metropolitan New York City shipping area copies of the attached notice marked "Appendix B." 55 Copies of said notice, on forms provided by the Board's Regional Director for Region 22, after being duly signed by Respondent Union's authorized representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places in each of said locations where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply with this Order. C. The Respondent Employer, Penn Industries, Inc., and the Respondent Union, Marine Freight Handlers & Warehousemen in the Port of New York and Vicinity, Local 976 ILA, shall, jointly and severally: Make Howard S. Reilly whole for any loss of pay and benefits (including all regular periodic incremental pay increases on and since January 26, 1976; and also including overtime, holiday, and vacation pay; and insurance benefits, claims, and reimbursements if any), together with interest, computed in the manner set forth in Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." s5 See fn. 54, supra. 944 PENN INDUSTRIES, INC. 945 the "Remedy" portion of this Decision, and also including dated as of January 1, 1976, between Respondent Union all contributions and payments on his behalf into the and Respondent Employer, to the same extent and effect as Union's welfare fund and pension fund due on and since if Reilly had not been discharged on January 26, 1976. January 26, 1976, under the subsisting collective agreement