B & L Motor Freight, Inc.

& MN1()1R FRIGl( II. INC B & I, Motor Freight, Inc. and Richard Rowlee. Case 8-CA- 11943 October 27, 1980 DECISION AND ORDER BY CtAIRt MAN FANNIN ANt) MFMHI RS JIENKINS NI) P1 Nl I O On June 25, 19XO0, Administrative Law Judge Robert G. Romano issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Hoard has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative l.aw Judge and hereby orders that the Respondent, 13 & L Motor Freight, Inc.. Newark, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: I. Insert the following as paragraph 2(b) and re- letter the remaining paragraphs accordingly: "(b) Remove from the personnel file of Richard Rowlee any reference to his discharge." 2. Substitute the attached notice for that of the Administrative Law Judge. it ddlllitlllo Il hos rcaClln salled h the AdlllilllhirallsC I. a JLldge i\r te Hoa.rd's refusal to defcr 1i, all arbitratln islard in thils plocceedilg. Memher Jenkins noltes that he s'ould not defer to the dciionll f n arb- Iralion paille lacking "neutral mellhrs." See his dis.elClig pilillIl iI Autornohile llantport, Inc.. 223 NIRH 217 1976). alid ilrinlal ranclort Company,. /Itn., 185 NRH 672 (1970) Member ellello ciincurs ill refii ng It defer ill hls case hbcaul he filds that the ral arbitration decision hereti conlitns ile .cndlltio thlat Richard RIoClee refrain in ie fiturC fron exercising right, under Se 7 of Ithe Act Such an ascard s clearly rpugnlant to the Act anid. pursuallt Itl the principles of Spwlbcrg 1uinujuicturing (C lnpanv. Inc1. 112 NI RB 1(O 1955) des t warrail HBoard defcreincte Member Pencli dc t ll in atl otliher respecl rl 1 o Ihc AdmnirirlratltC I a Judgc's ra:lstils for not deferring hereil and he spClcfiCalt reiteralts s l a'ldheretrle 1t Ils dls- senling opintiiln il Subhurbhan t ,rt;r Frcight, Inc., 247 NLRB N 2 (I'X0I) In addition I ( Ihe remncd recommendcd hN the Adminiitlrirlll. I a.1 Judge, we shall order Resplidetnll Io rnlo anl rfcrcltcs Ito Richard Row lee's d isch large front hi prsotinnll ilt 253 NLRB No. 14 APPENDIX No lICt To EM M o YtI Es POS:I ) Y ORI)I R OF llt NA IO(NAI LABOR Rl: A I()NS HOARD An Agency of the United States Government WtE Wllt. Noi discharge any employee be- cause the employee engages in union or pro- tected concerted activity. WE WIl.I NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act. Wt wi.i, make whole Richard Rowlee for any loss of earnings he may have suffered as a result of our termination of him, xsith interest. WE Wll. remove from the personnel file of Richard Row-,lee any reference to his unla,ful discharge. B & L MO'OR FRII(tl', INC. DECISION Sl'A II1A N01 HOF - Ht CSI ROHIRI G. ROMsiNO, AdminisIraiie L.axV Judge: This case was heard at Newark, Ohio, o December 7 1978. The charge was filed by Richard Ro(wlee on May 15 and the omplaint w\as issued on June 26. The complaint al- leges that Respondent discriminalorily discharged Rich- ard Rowlee on or about MNay 6 inl violation of Section 8(a)(3) and (I) of the Act. Respondent filed a timely answer on July 6 dellyirlg the commission of an) unfair labor practices; and, iter lia, raised an affirmative de- ferse that the matter of Rov lce's discharge w-as submit- ted to binding arbitration ad that Respondent has com- plied with the decision of the arbitrators of May 1, call- ing for Rowlee's reirstatement as of Mal 21. The pri- mary issues are whether the oard should defr to the arbitration panel's decision under its Spielberg doctrine 2 and dismiss the complaint as contended by Respondent, or not to so defer as contended by the General Counsel; and, if not, whether Respondent's assigned reason for the discharge of Rowlee on May 6 for alleged failure to follow conlpany instructions and unauthorized use of company equipment was for good cause, as contended by Respondent, or whether such assigned reason was pretextual, and the real reason for Rowlee's discharge was his engagement in certain protected concerted activ- ity as a steward and otherwise in violation of Section 8(a)(3) and (1) of the Act, as contended by the General Counsel and alleged in the complaint. Upon the entire record, including my observation of the demeanor of the witlnesses. and after due considera- tion of the brief filed by the General Counsel and the t All dlts, art Ir 1 78 unles\ Illhtrl.ce stIt.l - Spiclhc r 'lwiu tcrlrl tlrv (c-rtp,.m. lInc. 112 N R ilS"O I ll551 I IS I)l( CISIO)NS OF NATI )NAI AO()R RLA If)NS B()ARI) Companly on or about January 11, 1979. I make the fol- lowing: FINDIN(iS 01I FA(- I I. JRISIU('I I¢)N Respondent is an Ohio corporation with a facility ad place of business located in Newark, ()hio, where it is engaged in the trucking industry its a common carrier, hauling freight both intrastate and interstate. Annually, in the course and conduct of its business operations, Re- spondent receives gross revenues il excess of 50,(XX) from its interstate hauling operations. The complaint al- leges, Respondent by answer admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, Local No. 20, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. A. Bfackground 1. Respondent's trucking operations and supervisory structure B & L Motor Freight, Inc., herein Respondeint or simply B & L, has its main offices and a terminal at Newark, Ohio. Respondent owns and/or uses other ter- minals (also referred to as shops) at Whitman and Toledo, Ohio, and at Fort Wayne, Indiana. B & L also owns a certain lot in Columbus, Ohio, which lot, though leased to another company, is regularly utilized by Re- spondenit as a site for drops and pickups of B & L trac- tors and/or trailers.:' B & 1. drivers (and presumably me- chanics) are members of some 30 to 4() different Team- sters locals, one of which is Local No. 20 of Toledo, Ohio, the Union herein However, at times material herein, B & L employed only three drivers who were members of Local No. 20. The following are either admitted/stipulated supervi- sors and/or agents of B & L within the meaning of Sec- tion 2(11) and (13) of the Act, or found to be such on the basis of convincing record evidence before me: Joseph Huntsman. vice president, Industrial Relations; Paul Eugene Lieber, manager of road drivers; Mike Predieri safety supervisor; J. Cliff Griffith, safety supervisor; and Mark Dames, dispatcher, all located at Newark, Ohio; Fred Stenger, terminal manager of the Whitman termi- nal; and Robert Mellot, safety director, Fort Wayne ter- minal. 4 In issue is the status of one Robert soopes, an at- torney, who is contended by the General Counsel to have been an agent of Respondent B & I. in certain mat- ters material in this proceeding. B & I. is party (with various Teamsters organizations) to the National Master :' Respondenll aIpparenily employs hree drictrs a that localion ho regularly make dlicveries Il and froril he ci) of Cot lumbus hile :he charge in this matter would indicale that Responldent alliU empl) as many as 8(X) ciliploLces ove rall it is ulclear hwa: mni tlli riscrs I & I employs in is% various operations 4 In addition to the similarily if Meliotrs reponslhilills to olher id- milned safely supersslors. I am convinced on Itlis record that he effct civc. ly recommends the hire ofr eilployees Freight Agreemient, Central States Area Iron and Steel arid Special Comoditics contract. 2 The employment of Richard Rowlee Rowlee has beeil regularly employed by 13 & as an over-lhe-road driver for a little over 3 years. Prior to his employment with B & L, Rowlee had worked for an- other company, also as an over-the-road driver, hauling steel. Rowlee has beeni a member of the Teamsters for an undisclosed number of years arid a member of Local No. 20 since ()ctober 10. 1975. Shortly after being hired, Rowlee had occasion to question certain wages and benefits paid by 13 & L under the aforesaid agreement which he understood to be the same agreement as cov- ered his prior employment. Rowlee was informed at that time that B & L had a rider to the agreement which modified certain of its terms.:' According to Rowlee, after about 6 months, he made efforts (only generally de- scribed) to obtain a copy of the rider but was unsuccess- ful in doing so until January 3, 1978. In the interim, Rowlee had joined and become active for about 2 years inl all outside organization called PROD (PIrofessional Drivers Council), which Rowlec himself describes as a group of teamsters united for teamster reform. Bill Raike, a former PROD) president, is presently employed by Teamsters ocal No. 20 of Toledo, Ohio. as a busi- ness agent and has been since January 3, 1978. Raike was appointed by a new president-elect of that local. B. I he [ nio and Olher Protected Concerted clti vitv o/ Richard Rowlee I. he posting of the rider. Rowlee testified that he was eventually able to obtain a copy of the & L Mlotor Freight, Inc., rider supple- ment to the Central States Area Iron and Steel and Spe- cial Conlmodities contract and its attached B & L Motor Freight, Inc., chargeback schedule (herein referred to collectively as the rider). Rowlee obtained the rider from Local No. 20 in early January. As of this particular time. there were apparently only three B & L drivers who were members of Local 20, and Local 20 had no union steward appointed as such for the B & L drivers. Riley distributed copies of the rider to some of the other union stevirds ill different locals and to other drivers. Hie also posted some copies of the rider. Moreover, on certain of the posted riders, e.g., at the bottom of the second page. Ros lee additionally wrote the following message: Here is the illegal Rider Chargeback schedule, which you men are forced to work under. Of course some men could care less, just as long as they keep their New truck? Believe it or not, you have the right to vote on this'? We better wake up before its too late for all of us! At this rate each man is giving the company about $500.00 or more each year! ' Ro, lee qutestiincrd It & I.'s fallure to pa5 for actual cos, of aIlllcl or In-truck slceping rate of SI()50 under the agreement ()it that occasion Superisor 'rcdicri informed Role thalt H & I. ihad a rlder pursuainl to vhicth It pild Oil 5.' llid 1hai tite rider ,a, legal 116 l & . MN()I()R IRE(iitlL INC Ro'wlee testified that after the above nrotices were posted for or 2 days. he observed that his message on thile bottom part of the second page had been cut offl som of the original copies he had pre iousl posted. Ill February certain gric, aices hiadl been filed bs Rowlee and Ernie Rose, another over-thc-road driver employed by & for sonic 3 years ho also `',as a member of Local No. 20. According to Raike, these grievances were gclerally oncTernuing sin)s' time. pa1; shortages, and also the rider that the Local 20 dri,ers were working under. Raikc tcestified that he contacted Huntsman concerning the problemls of' 1 lti men and is a result met briefl w'ith Huntsman for the irsl time in February at the Detroit airport. Accompanying luits- man i at the time was one Robert Coopes of Detroit. Michigan. Raike recalled that Coopes did mlore talking on that occasion than Huntsman but as unable to recall how Coopes had been introduced to him at the time. Huntsman testified subsequently that he would haL c in- troduced the former simply as Mr. Coopes from Detroit. Coopes did not testify. There is thus no evidence to the contrary. I find that Huntsman did not otherwise identify Coopes on that occasion as a B & 1. agent. On being made Respondent's witnesses o certain sub- ject matters, Raike acknowlvedged that the position hce took in February in regard to grievances in regard to the rider was that the National Master Freight Agreement and Central States Area Iron and Steel and Special Cornm- modities contract (with B & L Rider) was the contract in effect at the time (between B & L and Local No. 20). (The basic agreement duration was from April 1, 1976 through March 31, 1979.) Raike also testified that hlie was familiar to some extent with the National Master Freight Agreement, Central States Area Iron and Steel and Spe- cial Commodities Contract, qualifying however that the employees he regularly represents are mainly covered under another contract, and that his primary assignment was not to B & L, but rather that he became involved by virtue of rendering assistance to another business agent in the matter. Raike also acknowledged that that latter business agent was of his own slate, but denied that the slate which ran in opposition to incumbents in the recent elections conducted in December of 1977 were affiliated with PROD. There is no evidence to the contrary. Rowlee testified that it was in April that he filed his first grievance (presumably one specifically) protesting the rider. His protest was based on contention that the rider was not put before the membership for a vote. Rowlee also argues that any substandard rider not sub- mitted to the National Committee for approval was il- legal. He further contended that none of the locals in the B & L system had knowledge of the rider. However, Huntsman testified that the rider was signed by him on behalf of B & L and was in effect everywhere, even in Toledo, Ohio (Local No. 20); although Huntsman ac- knowledged that somewhere the rider with Local 20 got lost in the shuffle and never came back to the Company signed. Significantly. in that regard, the General Counsel does not attack herein the legality of the rider, and both parties have indeed stipulated that its legality is not a material issue in this proceeding. What is material in the sense of being raised as protected concerted activity is, of course, Rowlec's icx', of a(d ac lixtl i relationship thercto. lThe original grievanlce (specificallv attlacking the rider) filed b Roux lc is riot ii evidence. Ro,, lee explained thlt the original cop(\, was sent to the linion, but ails Iot a\ ailahle iat the time if the hearing. IovL cx er. Riley tes- titied that ie hd subsequenlll Inl ilcd an additional grievante on Nay 5 (the daN of his discharge) to ensure his griev;lnce's coltilluel viabilit, and lie Itstifitcld. ilh- out conltrladictiorll. that that grievanlcc ;as cssentiall the sa;le ,; tre one ie had earlier filed. Th le latter grix allct is ill evidence Rowlee testified it ;as r;laftled o Ma; 4, ullt acknowlecdgcs it \;ias mailed t tho le lion at ndt the Coilpail after his discharge. That iiIICl pl'o. idi ai Illoh s: Illegal [sic] rider: BI & I. is forcing pcrcntlagc men, to operalte under a rider which is null & oid! Art 40.() Sec. 4 pg 9. See Art 2 See 5. pg 8 this practice is heen going on for two 1/2 years. I'm asking the Union to in act [sic][enact] a strike againslt & I on behalf of the percentage men in I.ocal 20 plus meet and discuss all backpay duc the en. An sub- standard Rider riot submitted. or not approved shall be null & void. I also note in passing that the foresaid griex;ice form il the place pro ided for the name and title of a company representative with whom the grieatuncce was discussed wilas filled in by Roulce as follo, s: "Iri cer fired before discussing, oni a set-up deal!" 2. The April 15 meeting on the first rider grievance. A meeting ,'as scheduled between the Union and B & L on Rowlee's grievance for April 15 at Toledo. Ohio. Present on that occasion crc drivers Rowlee arid Rose. Present for the Union were Raike and Chuck Large. who is another business agent of Local 20. Also present oin that occasion was Robert L.. Coopes. (It is General Counsel's contention that Coopes appeared there as an agent for Respondent.) Huntsnman testified that he as supposed to be at this grievance meeting but was unable to make it because of an emergency. Although the exact nature of the emergency does not appear of record. Huntsnlan's testimony-that he was unable to make it be- cause of an emergency and that he was sure that the Union was told the reason why he could riot make the meeting is uncontradicted on the record Huntsman ac- knouledges that. inter alia, one issue to be discussed \ as the question of whether or not the B & L rider would bhe enforced by B & I. with regard to ocal 20 members. Huntsman also acknowledged that B & L is a member of the National Steel Carriers and Special Commodities Association of \wNhich Coopes is general counsel. Howe v- er. Huntsman denied that B & 1I retains Coopes as their individual company counsel, and specifically denied that Coopes had ever represented B & L on the matter of the rider grievances. Thus, Huntsman o(uld explain Coopes' presence at the April 15 meeting as merely because the matter w;as of interest to the Association and since his Company (as a member thereof) was obligated i regard to its ( & 1) rider to be careful that something did not 117 I)tCISIO()NS ()I NA I I()NAl ILABO()R RIlI.A II()NS BO()ARI) happen that would cause ian area ( nationa prohleli o a precedent. According to liulltsman, C(lopes ssas prs- ent for guidance in that area. Huntsman categorically denied that oopes had authority to make any decisions in such matters unless & I.. first told himll whatexcr it was. il this connection, the General Counsel o(ffcred in evidence a copy of lie aforesaid rider which containi, a typed place for signature of a local union (hich is ll- signed), and also the inscription "B' & L Motor reight. Inc. (signed) hby:" Rohert L. Coopes, its labor counlsel, which it is observed was already in tile possession of Raike and Rowle. Rowlee protested the rider as being illegal and conltrary to the Master Freight Agreemlent." ' Rowlee relates thliatl o this occasion Coopes hlad replicd: "I know it is illegal but prove it.' Thlen li stlatd: '"Wll. let's discuss this rider and try to nlake us lake dICvialti(,lns to the contract so we could get some type of agreetment settled there. "7 Raike testified otherwise, that this net l- ing had been initially set up for all the members of L.ocal No. 20 employed by 13 & L. over problems they had re- lating to their contract. Raike testified, in the above con- nection. that Coopes had told them that beflre lie could make ally decision on anything, he would have to corncr with Huntsman. Employee Rose corroborated Raike as to Coopes makinig tile latter statement to them, but olh- erwise recalled that Coopes had also asked thetnl what it would take to keep them happy at their local. Rose fnr- ther colnfirmed that Coopes had told them that 13 & 1. could not survive under the agreement without the rider " Addilioally, te (telle l (oulllel ofTeredt i evidllc iilrl tunlllilted letter f Rhcrt 'I C(ipcs sent O O1cal No 2) (rTceliCd h the iltter in Septeniher 1978) with an attaclhed leltr of understandinig bluel 'ct it & I Motllr :reighlt ad irl ers Rile i and Rse and signed h (haIrilts 1 Large in behalf f l.Iocal Inion No 20) 'lhe letter of uIlerllllidilig s well as the record refects that tle parties met muchl later iii August 14, 1978. i Columabs ()Ohio, aid eventually resotsed their dffrerlics rl IhIi rider in certain particulars Ilie letter f understanlding h it1, lertnl was in settlenlent (if all gri itncices iled h Rowlee and Rose, with tile cXccp- lion oi Rowlce's discharge, which that time had already been arhbitrral- ed. Hlulnt(sran testified that prior thereto oin August 14 1I78, he had per- sonally) nlet with divcr, Ro , and Rowlee and reached agrlnTllCt i ri the niatter tigl ackiowledginig hat Ciltps. agaiill, as , .aus prct IHuntsmanl relates that he saw the attached letlei f understandinllilg hut had nreer seenl the ubsequcnt cIi erilig letter of Coolpe, to local N 2(1 Huntsiliall ai tslified that although It & it-elf h never igneld the said letter f Ilnderstandiing g it has imnplemented its terms Iswitially the ternis of the agreemient inl resolutilonl of the oitaitilindig gricillC uere that the drivers agree ti accept chargehacks then in effct, that rl olel hills were to he paid i accordance with Company's past praltlrie aild I1n no case exceed $9 per night unless ,autlhoried by the Conlmpai It also provided fIir certail netacllry rec(ler to Rwlet and Rise alnid Ihlt conlpa ratiscly riew equipmenl rtul bhe assigned to driver R wluec aild Rose Rowlee explained the agreemeit was lone approsed h the nlenl- hership and as a siclward (if the Uniron he had to, go along with their i- retioln Rlwlec relates, however, tht prior thereto. n April 15. hte had presented the rider It Coopes and stated that II wias illegal: that it s iioat- ed tie Master I reight Agreemclt. and he inquired oif Co< o pes vhi iy lmcrr hers of I ocal 2() were being paid differenlly thi the agreemtiln prt- vided 7 Respondent objected at hearing t the latter as hcarsa). which hlec- ilon was initially sustained, it neither appearing as a all egation olf cun- plaint that ([Co, pes wals an ageit if Respondent. nor admiltd h Re spldeinl t o he one At that pint General Counsel was alluicd lo nllnld the complain It allege that Coopes was labor counsel for It & I. r acting as its agent in that matter A ruling follrowed admitting such s te- ments subject ilo the sifficietncy and the (General Counsel ,s ilt latc esi denilary shhowirg inr the issue of Coope' agency relationrship with It & L. hut withe oh'bervation made that if such proof ilileredl li i nt pr vail the statements wldmil he disregarded as hearsay that they had. I note as significant. however. that neither Raike nor Rose corroborated Rlce that Coopes said the rider was illegal. I ind Rowlee's version as to the latter and his recollection of Cotopes tryihg t( make them maike deviat ions il the conlltract as more likely ivolving his owI stlhJCclive ipressions of what was occurring ra;ler thail co1nstitutinlg all accurate recollection of hil Coopes actully said to hint (iti that occasion. I find rather that the stated and ritutlially cotnsistenit recollec- lionis of Raike and Rste ae hy far the more plausible I credit the latter as being the lorce factual accoutnts. The issue remains helher or 1not these remarks s fotlund 5,5cre Ilade b a agent of Responlldent such as to make them attributable to Rcspondent. Although Raike ad- nitcd thal lie nlever actually questioned Coopes as ito Coopes authority to rcpresenlt the Association or its nlmembers I am satisfied that tle aitendant circuImstaices werc stuchI as to w\arrat conclusion thait all implied agency relationship existed for the purpose of the initial broaching aid nonbinding exploratory discussions such as occurred. II ay eventil as weC shall see, the material issue of Conlpany awareness of Rowlee's involvement is substantially mooted by Hulntsman's admission that Coopes reported to him hat had tratnspired at that meeting. To the extelit Huntsmat's testimony would sug- gest he as unaware of Rowlee's part therein, I reject samne. Another meeting was set up for May 6. Raike testified that he could not recall who had suggested that date for the next nieceitig, or whether it was agreed to at the meeting. but recalled that the date of May 6 was one reached by rmultual agrccicilt. According to Huntsman, Coopes later reported to him what had occurred, and Coopes indicated that it had been agreed that there would be a later meeting set up; but Huntsman did not believe the date was initially firmed up. Huntsman other- wise testified that, when he was unable to attend because of an emergency, he had instructed Coopes."[i]f we can arrange a mutually agreed time on my schedule and Local 20. I'd try to nlakc myself available. In this in- stance I find Rowlee's recollection as the more probable. viz, that the date of the next meeting o the grievance ,,was set for May 6, tnlati ely, that as subject to the availability and approval of Huntsman, and that it was subsequently agreed upon. The meetilg. however. was not held on May 6 as scheduled. though Rose appeared for it as originally scheduled. In the intlerim, on May 5. Rowlee was discharged. Row lee testified that after the April 15 meeting Local 2() Business Agent Chuck Large appointed Rowlee as steward for H & L drivers represented by Local 20 and appointed Rose as assistant steward, and that the same was subsequently confirmed by union letter to the Com- pany. Additionally Rowlee testified, without subsequent contradiction, that he thereafter went to see Supervisor Predieri in the Newark safety department and personally informed Predieri of his appointment, and Predieri had replied that he knew that. Rowlee also notified his new driver supervisor, (iriffith. and inquired at the time how many & L employees were members of Local No. 20, and received a active seniority list of same. 1 x 1 & I. M1()()R R-(iH'T, INC' Rowlee also testified that sonme time afltr the April 15 meeting he put up in the 1I & I terminal drixer,' room a notice that said: A meeting had been held on April 15: that there would be a further meeting on May- to dis- cuss the illegal rider: and that ''[w]e loutld not make a iclal. kWe would stick b , hlalt e hclic\e in." As notelL earlier. apparently since January and at lcast clearly hb April, there were but three members of l.ocal 20 cm- ployed by & I.. Some time during the next 2 weeks Rowlee prepared four posters (expanding his interest) shich read s tfollows: D I S C R I M I N A T I () N Has The Company "V'iolated" r'our Rights! Such as some of thie l'flloiving! (1) DispatchH Procedure! (2) Damaged Freight (Being charged fir t) (3) Loading & Unloading Chlrges! (4) Not paying The Contract! (5) Snow Time! Down Time! (not paid!) (6) Not paying Motels Bills in Full! (7) Seniority Terminal wise (8) akcn otlney out of your check without rhow- ing you First htat 7The Rate. Grossu wa! (9) Forcing }'ou to Lay-over Without Pay! (10) Driving Unsafe Equipment most of the Time! (11) Forcing You to Pull Relay or Trip Leases, when there is other Freight there! (12) Being Charged $5.00 extra For 1Money Sent To you! When You use Your money for tolls, Etc. during the week! (13) "And other Violations you know about" "If you can prove it & want help, or just don't know if this or other things is being done to you. Then sign below if your [sic] not scared & we will help you! This includes all drivers and mechanics" [Contact me... The notice further identified Rowles by name, CB handle, address, and telephone number; provided 85 numbered places for individual signatures, with post- script inviting the drivers or mechanics to call Rowles for private discussion if they wanted to do so; and it also specifically provided: (Note: If any Company Head, Takes this down; let me know and I'll Take it from there!) On Saturday, April 29, when stopping for fuel at the Ft. Wayne terminal, Rowlee put up the first of his post- ers, which was promptly taken down by Safety Supervi- sor Robert Mellot.9 In that connection, Rowlee testified, " The notice ,as printed/rilrten in ink on approximately 2 h 2-1/2 foot yellow poster board with underlining made in red 9 Although Rose was clearly cnfused as to the date of po ting t l Wayne he estified credibly hat he saw the poster put up hy Rovlee on the F WaLne terminal hboard. Drivers from different Iocal, regultirI come through he IFt Wayne terminal. Rose also lestlfied credihl that he observed Supcrlisor Bob Mlit cornie dn aiid look ;It he posle r. g, hack upstairs and use he phone. and come hack do0rs lltillr, ant rmo~t the poster that dturing tile subsequent arbitration meeting of May 16. discussed inlra, Htunltsman had stated to the panel that he had given the order to tear dowin the poster posted o April 29, and that he had also stated before the panel that he did not want to see any more posters up. (Iluntsman did not subsequently deny the remarks Rowlce attributed to him.) ()n Monday. May 1, RosClec asked Manager Stenger at the Whitman. Ohio, terminal where he could put the second poster up and was direct- cd to the bulletin board. where Rowlee put up the second poster, The record is unclear when or if that poster was removed. According to Rowlee the Nevark board was under lock and key and he nevser posted any- thing there. Before getting to the Toledo terminal Rowlee relates he was discharged. C. The Discharge of JRichard Rowlee 1. General Counsel's case a. he circumi.tatnces of the discharge. O()n Thursday, Ma3 4, Rowlee delivered a load in iatt- lecreek, Michigan. Rowlee called in to Central Dispatch at Newark Ohio. and reached initially dispatcher Charlie VWalters. Walters asked Rowlee how many hours he had left and Rowlee replied, "3-1/2 hours.""' adding he had to be home by Friday, May 5, because of the meeting in Toledo on May 6. Walters said, "OK," and after a few minutes instructed Rowlee to take a break, go to bed, and to call in later. Rowlee did so. and on calling central dispatch next reached dispatcher Dale and also advised that dispatcher that he would be out of hours at mid- night on Friday. Dale assigned Rowlee a load from Battle Creek, Michigan, to Columbus, Ohio. Rowlee also informed Dale that he had to he home Friday because of the meeting in Toledo. Roslee testified without contra- diction that Dale replied. "We know this already." Rowlee then delivered the Columbus load. Rowlee dropped the loaded trailer at the Columbus, Ohio, lot at or about 4 a.m., Friday, May 5. Rowlee then first checked to see what loads were available for the coming week and observed there was one load for Huntsville, Alabama. on Monday. Rowlee then called Central Dispatch and spoke to a third dispatcher, Mark Dames (who works midnight to 9 a.m.). According to Rowlee he told Dispatcher Dames that he was about out of hours and also that he would take the Huntsville, Ala- bama, load for Monday. Dames replied he could not have it. Rowlee inquired why, as it was first come, first serve, and Darnes replied, "I just can't give it to you." Rowlee told Dames that he did not want to file a griev- ance but he was entitled to it. According to Rowlee, "' Ro, lee eplains that under Department of ransportation D()O) regulations, generally, he could drive 10 hours in I day, and 70 hour irn 8 da, II that conneclion, althhough Darnes did not tesiIfy as to this maler. Hlunitman teslified that the arbiiration panel as uhsequentls adslised that Ross lee had debated wlth dispatcher Darnes ahbout going home v ith lad fr Mlssissippi r Alabama and as told h dispatcher D)arnes at that tinle otlt I do, It to er. r, ail, noted iifru. Damrne, did nol lestlf in support of that circumslance Ro'slee tsified he had told Daernes he uouli crle hack foir it. apparenls .1 45-nillrlt (rip I Il )ICISI()NS ()1 NA I)NAI. I AIf)R RIlI.A lIO()NS O()ARI) I)arncs aisked Rowlec if lie % ould t;ake al ctinpl trailer to Ne. ark, ()hio. Rosslec replied he did 110t halve liIIlc legally, or illegally. to do it. According to RowIcc, he repealed to D)aries halt he did not Vwant to il a gric - alnce against him., but 'I'm enlitled to the load. \l wv can'l I have it ''" Rowle relates that I)arnes oul(ld 111 argue the mallcr. and that Ros lee then told l)Dlrnes h could bobtail home. Rowlee's version becaime somewIlialt gener- alized at this poinll vi.z. they talked and )Daries then said. "'Well go oon honie." Rowlec thecn drove homeni a 45- minute drive, ad was on break oi Frida May 5 According to Ro\ lee it was about 4 p.m., May 5. that two Ontario, Ohio, police officers anid three & L. safety men appeared i his ri cwuay, knocked on the door, and invited him outside. When he went outside Su- pervisor Predicri informed Rowlee they wAalltd tihe truck Rowvlee inquired what for and was thel ltold, "You're fired. When Rowlee asked for what hic was told: "Failure to follow company instructions anld unau- thorized use of companiy equipmenit. Rowlee told Pre- dieri that he did have permission or lie would not be there. Iredicri replied: "We just aritt the truck." Ac- cording to Rowlee he theni told them he was tired of it and retrieved his personal belongigs from the truck. Rowlee notified the Union (presumably his own Iocal No. 20) and he also notified PR()D, in Washington, I).C. As earlier noted, it was clearly after his discharge that Rowlee mailed the refiling of his grievance over the le- gality of the rider to the Union and to B & i, as his dis- charge is reported thereon. In further support of the Getneral Counsel's colitenitioi that the Company's assigned reason for the discharge of Rowlee was actually a pretext, General Counsel has of- fered the additioial testimony of Rowlee and Rose as to past practice of bobtailing home. Thus, Rowlee testified (with logbook support) that he had previously bobtailed home from Columbus and back on January 22-24, 1977; and similarly bobtailed from a terminal to home and back to a terminal for a load on August 6-8, 1977, November 19-21, 1977; and, more recently, on March 24-26, April 7-9, and April 13-17, 1978. 2 Rose corroborated that he also has frequently bobtailed to his home, when he is out of hours; and that although the dispatcher does instruct a driver where to take equipment, a dispatcher has never instructed him to go home without takinig the tractor. b. The grietvance A grievance was pursued on Rowlee's discharge. O()i May 11, there was a preliminary meeting o this gri - 2 Row lee tclsticid hal tie hlia heenr hohlilllg hmie r stil indeed, that he had dlnrle so as rcctlt a he Saturday hore tihe Illtalt hearing Row le also recalled ,i rlaled illiden sl e Il ln i ilmhs tarlicr with a nICw dispatchr Ihicr was it oad at Whlltll i1a Ihlil riio ,1i(, \.lli.i , hul Ro l did 1not ha,e thC hours to lake i and he had t he ot 1o s'.e a doctor A new displatclhr told Row lec Ito call ls itf ad l ;c (ic pick hinl up Rowlee tiId the nelt dispatlhter thi;l Itle ci oract rtquired him to furnish Rowlee rarlsportatilllo for he astest aIailahle wax! hllt' Whetl the dispatcher Itquired whall thalt was Rolcc iorrlled hlrr there was a plane from \'thmnian to his illon ' i Ma sfeld it. dl , paIst[er wcnt ioff the ille :Ild 2 mliltes later aillc hack rl, the hnie ad ithl i iIl- structed Rtlwcc l i take the tractor lol i te arid ull ti e l t lhlStrg Sit iIr day Accoring t Rwlee Ihalt s is Ihe o1l1' ine .a tipal. ticr ver told him tJ) ilaVC a tiaLoir iticc. I'cscitl fr ,ocal 20() were Raike ad larg ad possibhl iiller alternalct hunesls airtlls. RKollee and Rose c .reC also present. I'rescrlt fr the Company as [Ilttitstanl. hlulllslt;lla had a statementt from D)ispatcher I)ari.,es about the incident which he read to the group. Iluntsmania stated Ro kIlce was fired for it and that they would go to gricvauicc Raikc conrfirmed the company position that Rouslcc was discharged foir taking the com- paIy quipimenllt clltrarv to cottlpla illstruction Raikc also testified that at this prelinlinary mceting Rowlec had had a chiace to speak his piece and did state that his dis- charge as really lor pslinig posters on the company pretliscs. According to Raike the ComIpany refused rin- statemlent and Raikc suthnitted the lmatter to a arbitrationi patiel for determinatiotn. RowIce acknowledged that they signred a paper affirminig that Dartics' slatemelt had been read to them ad t hat the discharge was sellt to griev- alnce arbitration. The grievanc o Rowlee's discharge was subsequent- lv scheduled ftor hearing before the arbitralion panel on May 16. As earlier noted, on May 15 Rowlee filed the charge herei explaining at the hearing that he had done so at the time because if his belief that there was no pos- sible way for him to get a fair hearing the way the com- mlittee was then set up and that, specifically, he could not ask questions of the committee. c. /11( carhil'rationit proceeding The grievaicc on Ros lee's discharge as the third case brought on for hearing before the arbitratioi panel on Nlay 16. I'rcsent ifor the Union were Raike, Large, anid apparently threc other bhusiness agents from Local No 2(). Rowlee and Rose were present. Huntsman was present for the Company. Roulee relates that the panel or board which heard his case was composed of four unioiI representatives and four company representatives. The chairman of this panel as Robert L. Cassidy, sec- retary-treasurer of Teamster l.ocl No. 42 of Canton, Ohio. A compatny represeltaiti e was co-chairman. Rowlee recalled observing that seated by Chairman Cas- sidy was Robert L. Coopes. Otherwise Rovlee acknowl- edged tha, as far as he knecw none of the panel members were officers of Local No. 20 or employees of B & L. On cross-examination Rowlee further acknowledged that at the time lie had raiscel no question or objection that the panel vas not constituted mi accordance with the col- lcctive-hargaining agreement existing between l.ocal No. 2() ad & L, but added, however, he was not permitted to do it. Rowlee relates that the Company's case was presented first by Huntsman. Huntsman had the dispatcher's state- melt, urhich he read to the panel. Huntsman then said that Rowlee was discharged for this reason and noted that Rosslee had been discharged previously. Chairman Cassidy rejected the prior disputed discharge from any consideration, and then Cassidy asked Rowlee if he had something to say. Rowlec replied initially that he rested his case ith his business agent and that Raike had then presented the facts. Rouwlee testified, A ithout contradic- tion, that during the presentmr nt it as asserted that Rowlee was a good w% orker and that HunIsman had 12( & I M()()R :RF l(iIII, INC agreed this was so. After Raike's presentment and some discussion of contract terms Rowlee asked if he could say something and was permitted by Chairman Cassidl to do so. Rowlee then added that he had been elected steward; that he was letting his men and other men know of their rights to lessen the burden on some (if the needless griexances; and that he got his head chopped off for doing his job. Cross-examination estahlished that the fact he had bobtailed home on other occasions was made a matter of record before the tribunal, as was the fact that he had put up the posters. However, Rowlec denied he had opportunity to get ilto these matters in any depth. (he duration of the hearing as variously estimated between 15 minutes by Rose and 30 minutes b Raike.) Raike testified that the provisions of the conitract, as far as the commitlee-panel was concerned. were fol- lowed: confirmred that there were a equal nurmher of union and employer members4: and lie testified that Rowl ce's hearing was conducted along the same lines and procedures as are normal _joiit employer-uiiorn panels with which he had experience under the agree- ments he supervised. Raike relates that. following usual procedure. Huntsmani made the Company's presentment on reason for discharge xklhich was that Rowlee woas dis- charged for unauthorizcd use of cornpany equipmnint. Thereafter, Raike presented the facts supporting Rox- lee's position which was that he had not done so, but rather had received authorization to take the equipment home in accordance with his past practice, which was Raike's sole view of the ase. Thus, Raike testified: I tried to prove in rly case that he had been al- lowed to bobtail home il different places along with all the other members of B & L to show the Committee that I felt that he was the discharge was wrong. And the only instance was this one par- ticular night that the Company claimed-or day. whatever-that the Company claimed that they had told him rinot o. But mnian other times he had been allowed to do it. So, there was no reason for me to believe that on this one particular instance that he RI:o Kse related that Ro, lec dld ,li sa) t hle panel thai lie had hl fired hecause of grlalnces he had filtId or r pods ting signls th Ii,. i cording o Rst's recolleciion the pter s ,a, not nelllmlle b Rk' Ros le, or any panel member lituol er .;is ulst ued In/r. h both R aik and Hlunliman es,sctirallk corr obrated Ros lce hat it .a, is 1lstcl ()Ol this malter I a coilincedd h tihe seight oI the idnelcc aInd I il that Ro,e has either simpl no, recoleclti lli i 11ln i ilattcr ol. or ot r il ras ln. failed to observe such remark, hl rnade i the fir llnlalti(e 14 Although the record reeals, that Raikt at in- polill testilied teIit he thought Coopes sa ai membher of the pallel. alifer rllrhe eilnlaminatilo and reflection, he retracted ihat ,leus . thetn teslflnl thai he coulld It[t ansv, r sshcelher Co, pes sat ill a a panel secirelar). or 1i l . i lo l llnecti l with evaluatioll iof Raike', testntlio ) Il tits area, oavt--ls tuitisilai l'% tSs inoII , il ftru. i liegaird to Coops' slatils,. t hase htl sed siilflittsr, effect ofl the follisuilg t1icis that Ralik ssas gcnc iall fanlilar it l thil Cenlral Sates Area Irlio and Steel and Special Co(nllodnelles con t ra;l, hut this ua as n the contrlact hlich he regularl admlililstered; that lie had lOl partlicpal ed beifore pantel, iherctilltr priot ti Jaiiiar?, that Walter H rescer. shi lie iliderst ild As as th reg lar ,ecretilr tio tlc h panels. ulas liet ther e; h;lt It- kitCU ItrCss cr to ht. ChIlrlailil i thlt ()h1l Motor Carrier Iabir iior Rellt ion . s AS,oclitliol alld it liai (illt c1lr;l ,t Ik' had ,ihserved (oope, sign tlherelofor lbhor cousel fr lii Natiuald Sitc Carrier, A ssocialt i n hald been told not t( do it. And that's wha I based i\' case on, nriot anythilIg else. Rolec's testimolny, howeer, w\as som\ewhat illOre limit- ed and revealinlg il that he admitted ol crolss-examilia- tion that lie had told the panel that. hen dispatcher Mark )arntes told him to go home, Row lee had dra ni his ovwin conclusion that h could take the vehicle home as lie had done i the past. Raike also colfirmed that Chairman Cassidy had af- torded Row lee opportunity to add anything else hie de- sired before a recess was taken for deliberation. Accord- ing to Raike, Rowlee mentioned his appointment as ste- ward for .ocal No. 20, and somni of the things he had been doing. According to Raike. Rowlee told the panel that he felt those actions would have led to his dis- charge: related that Iih felt hie was doing his job bh post- ing notices in different terminials; and stated that he felt hli had beel discriminated against and harassed bh tIhe Company hbecause of his union activities as a steward.' The Union, Row lee, arid the Company were then ex- cused wlhile the panel deliberated for 15 minutes. Row lec relates thalt Coopes cameil out at one point and took Iuluntslar io another room. and that Coopes then re- turned to the panel 'lhe parties o the arbitration were then called back i for the dcterminlation. According to Ro, lce. Chairmanl Cassid. announced their decision %%hich \was that Ro lee would bhe reinstated but ithiout backpay or any ni etary, reco,,cry and w ould riot be re- instated until May 21. lie also said that brieny thereafter Cassidy had said. "Remember, I don't want avnimore dani posters up anys here. Contine our acti itics tIo Local 20."'' Cassid also told Roi-leic " hrn he did alli bobtailing he should get somebody's name on the log- book." Accordinlg to Rowlee he had never before heard of ally such ii procedural requirement for bobtailing hole. Raike, ho evxcer only recalled that Chairrtlarl Cas- sidl tIdt Rowlee lic was a stc.ard for ocal 20) arid to confine his activities as a stew ard to Local 2()0's jurisdic- tion. Significantly, again. neither Raike nor Rose cor- roborated Rowlec that Cassidy had told Rowlee that he did riot wvant anymore posters up. li It is noteworthy also that Raike acknowledged that article 46 of the contract does specificalls provide that unauthorized use of equip- ment is grounds for discharge. ..s Repondetnrls s iltlc. Raikc lestifiedl tha1 h1 had had llan) pril till't'liAiioll's sili Ri l ett l icc ah ut }i, dtlihargc,. l.li Ite preenlted iall Ille t.1 h I s 1 .i \ils sll hb Roiu le ili Iihe pail ;s hbest he could. sitll iupr porllng ta.teicnlt , ts nllbl h!t RoKlscc il t hla.lrli g land that Roslc It1lit Talwd1 e o l b jccollll 1 lo th e il l1l l HI lll la l htd e od h % hlch I oca] N 20 had liretCs llItl tlte sac ' R, i% e t, I, llti iii 11; h itIu rCilqel r a coll plaillll silh PROD() ill a, ishilti ilot, 1) t ii c fll hle sa is ilcriniletCd Iagillnt iitl thlalt a chal is. su;i filed h I'R()D's aitoirtlc\ ag.illl ( .t'l id! tl I ocal 42 for i- sIrailii ,1 t td cercintlg 1l ctiplo. co of t & I bh tli hlg Roslcc Io 1 1 ilt lit s lx islls Iic rec ordI rescils t s 1'aid charge u.ks as LjhslU 1 11 l\ itlllr;al, l tilll RoL .le. rclaits ht11 sAs lltlleu e hi (.oopes 1hl.ai the illtree st Ir lopped Ross (c It'tltfit'U th1 he l11tl 11it pursue II 121 DI)lCISI()NS ()OF NA I I)NA. l.AIBO()R R.A' If)NS lBO)ARI) 2. Rcspondent's case a. /ie urbllration proc('dlig Respondent's first line of defense conteintions rest on the completeness of the arbitration proceeding held and its specific result. Thus. Huntsman testified that Rowlee's discharge was presented in arbitration hearing held on May 16 at Columbus. Ohio. The grievance in regard to Rowlee's discharge was heard before a designated panel or committee, of the ()hio Joint Area Committee, Na- tional Steel Carriers and Special Commodities Commit- tee, pursuant to the contract existing between 13 & L and Local No. 20. Huntsman testified that the designated committee consisted of four union and four company representatives, none of whom were representatives of the involved contractual parties. Huntsman first presented the provisions of the conitract that the Employer relied upon which included: the cir- cumstances of Rowlee's conduct and discharge: the Company's coltention that the discharge of Rowlce was proper, viz, for failure to follow instruction arid for unau- thorized use of company equipment (for personal trails- portation home): and that it should be upheld by the committee. (As noted, Raike acknowledged that art. 46 of the contract does specifically provide that unauthor- ized use of equipment is grounds for discharge.) Accord- ing to Huntsman, the Union had full opportunity and did present its full defense. In regard to the circumstances of the presence of Coopes with the panel, Huntsman categorically denied he was a representative or agent of the Employer sitting on the panel. In that connection Huntsman testified that Huntsman has participated over a period of 20 years as a company representative on X,(X)O to 9,(XX) similar artitra- tion cases (where B & L not involved as a parey in inter- est) and that Coopes has never sat in as a member of any panel of the committee. Huntsman testified without contradiction that Coopes is general counsel for the National Steel Carriers and Specia! Commodity Carriers Association and that he is also secretary of their grievance panels. Huntsman testi- fied further, and I find credibly, that Coopes did not sit in on the panel as a member on this occasion, but rather was present in his capacity and function as secretary of this committee's arbitration panel. Thus, Hunt testified that each committee has a secretary. The functions of the secretary are: to prepare agenda of cases; to notify the parties when their cases are on the agenda; and to take notes at the hearing. Huntsman testified further in expla- nation that the secretary remains present during panel deliberations; that the secretary may carry additional messages or pose questions of the panel to the parties: that the secretary subsequently prepares summaries of the panel's decision by case number; and that the secre- tary distributes them to members of the AssociationS; but that the secretary does not participate in the actual decision of any panel. Thus, Huntsman testified that Coopes was present as secretary for the above panel. No ll is unclear whether the secretary disiribule thell sumrnary to ulion members of the committee or if ither provlisions are made for uion ac- cumulaion and/or access The summary for the instant case of Rowlee was not introduced by any party to this proceeding party inquired of Huntsman what he had discussed with Coopes, nor did arty party call Coopes to lestify thereto. lunisnian testified otherwise that as vice president for industrial relatiois for 1B & L he sets its labor policy, ne- gotiates colitracts, and processes grievances. Huntsman related that he has given authority to discharge to super- visors in B & 's operating and safety departments. Ac- cording to untsman, he was out of town at the lime of Rowlee's discharge. and the irst time he heard of it was a couple of days later. According to untsman it was Paul Lieber, mianager of road drivers, who actually pre- cipitated Rowlee's discharge. Huntsman also testified that at the time of Rowlee's discharge he did not have the May 5 (refiled) grievance mailed hby Rowlee. Howev- er untsmnilnl did not testifys further as to the scheduled meeting of May 6 o the April grievanice of Rowlee. In any event I am fully collvitced and I find that Hlunts- man was aware of that scheduled meeting and of Row- lee's likely involvement in its process and presentment In that conniection I find somewhat revealing that Hunts- man at one point testified. "I always have to take tile po- sition that it was cause for discharge for the things I mentionted." b. 717( specific prevwstnrltr1 l ma,,le bhfore il arbitration punel lunitsman relates ie presented the Company's position which was that Rowlee had failed to follow a dispatch- er's order and had engaged in unauthorized use of com- pany equipment tfor prsonal transportation to his home. Iluntsnman testified he presented to the panel his under- standing of the facts. Specifically the panel was told thatl Rowvlee had arrived at Columbus, Ohio, at 4 am.. on May 5 had notified cenltral dispatch that ihe had 15 miin- ules left on 1() hours and I5 minutes left on 70 hours; that Rowlee vias instructed to take break there and call dispatch at midnight (he n Rowlee would pick up hours) for further instructions. T'he panel was told that Ro\vlee, however, had debated with the dispatcher about going home with a load for Alabama or Mississippi. which request was refused by the dispatcher; that Rowvlee mentioried the fact that he was bobtailing home: that Rowlee wsras then instructed to leave the tractor in Columbus and call in at midnight when he got additionlal hours; that Row lee did not" and that rather he proceed- ed on his own to take the truck home to Ontario, Ohio. a suburb of Mansfield. Huntsman testified that when they began looking for the truck early the following morning for some reason they found the tractor \was not at the Columbus lot; that they found the tractor was parked in Rowlee's driveway at Ontario \without authorization; and that was the reason he was discharged. Huntsman ac- knowledges there was a dispute between the parties as to whether Rowlee had actually been told not to take the ' I here is an uclear rlerellce by Roswle as ilo the panel's iquir of lthiiitsmanr of .hy tihe' did nrot allosw 72 hours h contract. hul no lalri- fing lelinilolly ils tl tsliitsrlall' ailnswer. r irectl enlirnoly h R,"slee il clarification As the contract ilel was nl ffered in1 cidence. I have sorle hesitranl concl udi ig. on tihe ate ol the videlnce. th hcre wa a corntracl pro sioll n which did allow a driser in Roslee's polimn (in regard Io hours r orked to then claun 72 himrs off' However. Ros4lee did le'tifN wiithol conlralition Ihal .r could la , off, hich I do credit 122 I ()It()R R F( ;lI 1 I N( tractor. In that conniection lieh testified thalt his intornia- tion from his , eople S as Ross lee definilcl had heet Iold to leave the tractor, hut the e iduce hi eprested to t the panel isistCd o011) of his o, II testlint]n. o that effect anid a written statentlll of hc dispatcher. \shich he read, NA hich verilied Rowlee had been told to leav, e the tractor at Columbus. Hluntsmnai] othersic onfirmed thait Raike made the case presentment contru. Csscnliall! as Raikc testified. Iloe,,er. lunitsmiall also further testifiecd that. atl the i itatioti of the c}hairllian. Ro\s lee made certain statementits. vz that he felt his discharge probahbl 5 \ as dueo olis actiities on hhalf of tile Local. Ill the lalter regard, llutrmall otherwise denied that Rosslee's dis- charge \sas in any any mntiiated with respect to his ac- tivities on behalf of the ocal or any other labor organi- zation. s. hich presumably ,ould thus include PROI) . Rcspondetl's slupportig ('idenIce ojjirc'd ua insluan Ihearing Alternativel? Respondent's contention is that even if the matter of Rowlee's discharge is to be addressed dce noro, his discharge was one clearly shown lawful. In sup- port thereof, Mark Darwin Dames testified that he is a dispatcher in central dispatch and works midnight to a.m., and that his responsibilities include. inter ulia. the dispatch of drivers while out on the road to various des- tinations to pick up and deliver loads, and basically to in- struct and direct the drivers. At the time of occurrence of the incident in question concerning Rowlee on May 5 Darnes had been a dispatcher for I 11 months. Dames' version of the incident is that he received a call from Rowlee at 4 am., on May 5. Rowlee reported he was dropping a load at the Columbus lot. Dames in- quired of Rowlee what available hours he had, and Rowlee told Dames that he had 1/4 hour o 10 hours and 1/4 hour on 70 hours. According to Dames, Row- lee's schedule was such that he would pick up 10 hours at midnight on May 5. Dames instructed Rowlee to leave the tractor and trailer at Columbus and go on break and to call central dispatch again at midnight. Ac- cording to Darnes, Rowlee said that he would take the tractor and go home. Dames testified that he told Rowlee not to because he needed the tractor left availa- ble at the Columbus lot. Rowlee told Dames that he would go to Darnes' supervisor and get the matter straightened out, because he could could log off duty and go home with the tractor. Darnes testified that he again told Rowlee no; that he could not let him take the truck home at that time; that Rowlee could take it up with Darnes' supervisor who would be in at 7:30 a.m.; but that Darnes needed Rowlee to go off duty until mid- night and call him then. According to Darnes, he also told Rowlee that Rowlee could have his wife or a friend pick him up. but the equipment had to stay at the Co- lumbus lot. (A driver has the option of taking a break in the tractor.) Darnes offered in explanation that many B & L drivers come through the Columbus Ohio, lot during the day and night dropping and picking up loads; that a given tractor might be needed; and that a lot of times "we make a trailer available to them there." Darnes also testi- fied that it was not unusual for him to require a driver to lcai ;I piece f equilpnienit at particular point and that It is done quite often. D)arnLs gentrail explained that the situation swas that with the workload conming in and then becotlilig aa;ilable at Coilumbus for tha;l ssekend that Ithere s as a possibility that he would need that tractor thal ll tlrlilg l)arnles aknolC edged that he had no spe- cific \\orkload in in id and did not know hos often lie hadl old a dricr ti leave a tractor. hiutll testified that he had done so henes er it ssas needed Dlarties could nei- Iher recall the last time he had done ( before Ros lee mnr. more signific;ailrly. recall an olthcr driver that he had so told. )arties related that he also could not re- teIl lbc r if a driver ever look a tractor honle. Howeo er. I did not find the latter testillOn vcrs convincing. e,cn \,shen given. Darices also estified that he could not recall if he had asked Ro lee to go to Ness ark explaining that lie regularly reeci. es at least 5() calls a night: and that there would be no reason for him to recall what lhe told a particular driver. I do not find the latter lestimr) in- herelll I implausible even in context of the seeming uni- usual prominence of the situation w hich developed be- ts vecr Darnes and Rowlee. I am convinced that Darnes did, at one point, and probably early i the conversation, initiall3 request Rowlee to take an empty trailer to Newark and that Darnes was then advised bh Rowvlee that he did not have the time available. Een more sig- nificantly, Darnes did not testify at all as to Rowlee's claim o the Monday load on first serve basis, or support Huntsmia belief that Rowlee proposed to take that load home with himi 1I1 the absence of such testimony by Darrles there ssas nothing for Rowlee to further deny. I credit Rovlce o that aspect as well and I find that Dis- patcher Dares refused Rowlee's request for the Monday assignment, and rather sought to dispatch him with empty trailer, and on being advised Rowlee had no hours, then instructed him to call in for assignment that eveniig ,,hich Would hire conflicted with Rowlee's at- tendance at his gric antce meeting on May 6. 1 am equal- ly convinced that B & L drivers did take their vehicles home in like circumstances and not infrequently. Indeed, Lieber acknowledged there was a company policy on this issue, regulated by the dispatcher, discussed infra. Thus, I have still additional difficulty in accepting that Darnes would have been in dispatcher service for almost a year and not have been aware of that policy or driver exercise thereunder. I am thus convinced that there were areas of Darnes' testimony that were unduly guarded and/or unpersuasive and I further find his testimony in other aspects is thus made the less readily acceptable be- cause of these considerations. Darnes testified that, at the time of the Rowlee inci- dent, he was not aware that Rowlee was a steward or that Rowlee had posted any poster and that he had never seen the particular poster in evidence or anything like it. Dames testified that he also was not aware of any of Rowlee's other activities on behalf of PROD, or any other labor organization. Again I have difficulty in fully accepting the latter aspect. I have earlier noted that the second dispatcher, according to credited testimony of Rowlee, stated central dispatch was already aware that Rowlee had to be back by Friday for the grievance 12I I)2('IJSI()NS ()F NA II()NA[, ILAB)R RA I()ONS BO()ARD meeting the next day in Toledo. I find it hard to accept that Dames, an oncoming dispatcher, would not have the same information available to him particularly in view of the nature of his position. Thus, to that extent, I do not credit his testimony of complete unawareness of Rowlee's union activity. Darnes relates that he reported the incident he had with Rowlee over the tractor use not to his own supervi- sor, who came on at 7:30 a.m., but to Lieber, who camne in at 8 a.m. However, Dames testified that no supervisor had instruction input into his action in regard to this inci- dent and that he reported the incident to Lieber because Lieber is in charge of driver personnel. Paul Eugene Lieber testified that he has been em- ployed by B & L since 1952; that he is presently man- ager of road drivers; and that his responsibilities include safety, road patrol, and being counselor to driver person- nel. Lieber confirmed that there is a company policy to try to permit drivers to take equipment home whenever they can, but that this practice is predicated on what the Employer's business needs are at the time. " Lieher testi- fied also that the use of company equipment for driver transportation home was subject to the approval of the dispatcher, since the dispatcher is the one that would know what the Employer's immediate business needs are Lieber relates that he usually works from 8 am. to 5:30 or 6 p.m. and occupies an office on the second floor of the terminal building. Lieber recalled that on the morning of May' 5 he had received a call from Damrnes who is located on the first floor of the same terminal building. Dames reported to him that a tractor that should have been in Columbus was not there. Lieber left his second floor office and went downl to discuss the matter more fully with Dames. Dames then told Lieber of the details of Rowlee's report of arrival an] available time. According to Lieber, Darnes also reported to him that he had told Rowlee to leave the tractor in Colum- bus, but that Rowlee had indicated that he was not going to do this; that Dames had again told Rowlee that he had to have the tractor at Columbus, and that Rowlee was to sign off and call back at midnight. Darnes report- ed to Lieber that they had determined that morning that the tractor was not there in Columbus where it was sup- posed to be. Upon receipt of this information, Lieber had the Co- lumbus lot checked twice and he also had a nearby res- taurant checked. Lieber next instructed Safety Supervi- sor Cliff Griffith to check Mansfield where Rowlee lived. About noon, Griffith reported back to Lieber that the tractor was observed to he in Rowlee's driveway. Lieber relates that it was he who made the decision at that point to discharge Rowlee and that he so instructed Griffith. (Griffith did not testify.) However, he directed Griffith to remain at the restaurant from which he had called while Lieber dispatched others up to help in re- covery of the truck. Because of past experience in such matters Lieber next called the Ontario police with re- quest for their presence at the time the Company sought to effect recovery of its property from private property. " Raike testificd that the ompanies covlered by he other tonliract(s) he administers do not have such (beneficial) policy or practice Lieher next arranged for Safety Supervisor Predieri to also drive up with driver George Streeter to recover the truck." ' Rowlee was thereupon discharged by Predieri and the tractor was recovered without incident and re- turned by Streeter to Newark, Ohio. According to I .ieber, Huntsman was not in the area: and it was l.ieher's recollection that he reported the matter to Huntsman on the following Monday. May , thus con- firming Huntsman's recollection of his first awareness ot the incident. I.ieber also testified that at the time Rowlee was dis- charged he was not aware that Rowlee was a steward though he acknowledges that both Supervisors Predieri and Griffith were his subordinates. Predieri and Griffith unquestionably were aware that Rowlee had been ap- pointed steward in mid-April, about 2 to 3 weeks before. Both were involved in Rowlee's discharge incident. Thus, I am, in effect, asked to accept that even if Lieber had not known of Rowlee's stewardship before, neither of his subordinates would have mentioned that act to him during the developing discharge situation. The likeli- hood that l.ieber was without such knowledge, or would remain ithout such knowledge, strains credulity on that point. l.ieber also relates that he was unaware that Rowlee had posted ay notice or poster at a terminal or was involved with PR()D. Tl'o accept such testimony, specifically on the former point, would call for an ac- ceptance on my part that the Company's operating man- ager of road drivers would have not only been ignorant of such notices and posters, posted in terminals, but kept ignorant of Huntsman's displeasure with the posters and instruction that the posters be removed. If I could accept possibility of the former on the basis of Lieber's testimo- ny that he did not regularly view the bulletin boards, I nonetheless find consideration of acceptance of the latter simply implausible. Rather I am wholly convinced that .ieber was aware at the time both of the fact of the posters and of Huntsman's itstructions in regard thereto. Nonetheless, Lieber also denies the fact Rowlee was cur- rently processing a grievance involving the contract rider had entered the picture. 3. The contentions of the parties It is the General Counsel's basic position that the cu- mulative evidence shows that Respondent discriminatori- ly discharged Richard Rowlee in violation of Section 8(a)(3) and (1) of the Act and that its assigned reason that the discharge occurred for Rowlee's failure to follow instructions aind for his asserted misuse of compa- ny equipment for personal transportation without author- ization is only a pretext. As to the effect of the prior ar- bitrators' award, it is the General Counsel's contention that the burden of establishing the affirmative defense, viz, that there are grounds for deferral to such award 2" Ili s was ecessary in order to ensur il dliver for each vehicle nll return I'redleri did not testifry the record r eicclts. at Rspolldenl s re- qucst. iliat P'rdieri sas under sIlhpcrla by tih (ic e hral C<(uinsel, aailahle to tstify at hearing, hut nio icalled hby ither part, Ulndr the circuti- stati Ls. itll) ;dvtrse ireille Is dlrtimed salrranted iIt he drawnll from Re- sponldenl's failure o call P'redicri iI lurther support of its poslition 124 13 & I NIM()'O()R FRI(ifl INC rests upon RKspoldenllt.' xliiuch hurdein, the (icneral Counsel conltends Rpo(lllden has failed t mut. As a consequeice of' J lich thet' (ienel-l ral Counsel ri Coll- tends that the merits of tIhe (enecral Counseltl's esidence presented on the complaint allegaltions should he evaluat- ed. Specifically. the General Counlsc aguiles tha it a deter- ral by the Board is nort s arranted to be xtlnded t the arbitration panel's award herein because Rowlee's hea;r- ing before it ,ras not a fair and regular proceeding as is required b the Board's basic Spielerg doctrine. Thus. the Getreral Counsel, inrter aulia has argued: (1) that the panel did not necessarily consider the alleged discrimina- tory reason for Rowlee's discharge (2) due process standards of fairness were abridged by the introduction into evidence before the panel by Respondenl of an uns- worn statement of the dispatcher. thus. without affording Rowlee an opportunity to cross-examine the critical wit- ness against Rowslec, and because there was no full and thorough litigation of the unfair labor practice issue such as is presently now before the Board; (3) the arbitration proceeding was tainted by an unexplained presence and actions of Coopes, reasonably shown otherwise to have been an agent of Respondent; (4) the award itself is one that is repugnant to the Act because Rowlee has re- ceived no backpay award for the 2 to 3 weeks he was off prior to his directed and accomplished reinstetement on May 21. And finally, the General Counsel argues that the remark of Panel Chairman Cassidy to Rowlee shortly after the award announcement that Rowlee was not to put up anymore posters and to confine his activities as steward to Local No. 20, essentially reveals a misconcep- tion of Rowlee's Section 7 rights and, thus, an award re- pugnant to the Act and as well also indicates that the lack of backpay award was linked to a member of the committee's mistaken, if not overlooked, view of the fully protected nature of Rowlee's union activities under the Act (presumably in failing to recognize such a right as being one to be fully protected under the auspices of the Act or, in failing to recognize such as a significant element indicative that a pretextual discharge had oc- curred in view of the attendant circumstances), for which wrongful conduct, full backpay is warranted. The General Counsel essentially relied upon Cessna Aircraft Co., 220 NLRB 873 (1973); and Vcrsi Craft Corporation, 221 NLRB 1171 (1975). and 227 NLRB 877 (1977). Thus. the General Counsel has argued that in Cessna Air- craft, supra, the Board has refused to defer to an arbitra- tor's award because the arbitrator in issuing his award had been silent on certain allegations in the grievance, did not state the issues; did not relate his conclusions thereon; and relies as well, on Versui Craft Corp., upra, where the Board ultimately refused to defer because there was no opportunity afforded the grievant to cross- examine witnesses and an unswoln letter was introduced into evidence. The General Counsel contends that in both cases the Board found due process considerations under Spielberg had been violated; and/or the General Counsel has argued that the Spielberg doctrine has been 'I his c. arly is and ha,s ee l c csc .tcs rSuburban .ltrr rcighl. (o Inc, 247 N RH No 2 (198)): Jhn ,helofi &i (, o. a )ii.nwol !f ilirtr ood (Co, 211 N R 795 1 9 74 )'ourgau lwuking Inc. 17 NlRB 12S X Ig72) to that extent additionally modified Indeed. the General CoLusel alppears to argue fr . ener broader nondeferral lo suci panrels generally Thus it has been argued bcfore me ill brief Wnhile arbitration decisions from similar constituted panels ha e been deferred to by the Board in tihe past, Denver Chic-ago Irucinji, Co., 132 NLRB 1416. 48 LRRM 1524 (1961), and lerminal rarn- port Comnpany. Inc., 185 NL.RB 672 75 LRRM 1130 (1970), the Board's deferral in situations like this has to be reconsidered in light of the Board's decision in ('ssroa ireraft Co., 220 NI.RB 873. 90 LRRNI 1312 (1973), I'rsii Craji Corp., 221 NI.RB 1171, 91 1.RRM 1108 (1975). and 227 NLRB No. 12, 94 IRRM 120()7 (1977). I am not persuaded that the Board has gone so far, though that would appear to be Member Jenkins' con- tinlmig view in instances here the arbitration panel, committee, or board lacks "neutral members." Cf. Suhur- hbar Motor reight. Inc.. supra at fn. 7. However, this is not to say that the Board will not look to evidenced community of interest on the part of committee members which is directly in conflict with the interests of the grieving party, and thus likely to preclude the degree of impartiality deemed necessary in an arbitration proceed- ing that is to properly qualify for Board deferral. Brown Company, et al. 243 NLRB 769 (1979). The General Counsel has also relied upon .Mason and Dixon Lines, Inc., 237 NLRB 6, fn. 34 (1978), for a comparable inade- quacy with the claimed inadequacy of the decision r.i- dered herein: 22 and Douglas .lircraft Co., 234 NLRB 578 (1978), and similar cases. 23 likening deficiency in an arbi- trator's award based in part upon an employee's prior failure to withdraw charges. to the instant chairman's ad- monishment of Rowlee "to not put up anymore damn posters, and to confine his activities to Local 20"; and as reasonably encompassed and controlled by Board hold- ing therein that "an award which is based even in part on employee's abandoning any of their Section 7 rights was palpably wrong." The deferral issue to be resolved against Respondent, so argues the General Counsel, a clear pretext case is then discerned: In the timing of the abrupt discharge of an unquestioned good worker without initial effort even taken to learn the employee's side; in the context of clear hostility on the part of Huntsman to Rowlee's union ac- tivities as evidenced by the removal of his posters; by the weakness of alleged contradictory and incredible testimo- ny of Respondent's witnesses Darnies. Lieber, and Hunts- man: and by the unconvincing nature of the asserted reason advanced in support of Rowlee's discharge for failure to follow instructions and unauthorized use of company equipment in the face of the clearly established : hcr Thrin ai Iter, decision "tased oln lIh fact prccnt'd. lc illl of ith lilitln is denie d oin the dischargc Is uph'lid" ' 1's fitllI siipIl, Inlldequllltto ii support dferral ' See ord otor (o. 231 NLRBt 9S 197 7 ). Inlsilng a simillr proni,c ii to dln rlbutc literature it) the uturc t1hi c.sc did nol In- ·. ilc ,iarhir.a[i,'s sard For rlacedc lt 'Ll1 i % ol f i the ranic ' rk .f nltllli .lid or prtoIiicii . , s.e I ,1. I t Inc . .I . R B 4 1' S 5 h st68 12S DECISIONS ()F NATIONAL LABOR RELATIONS BOARD longstanding practice of Rowlee and others in use of the tractor in going home when hours were up. In contrast, Respondent at the threshold of the cause argues for Board deferral to the arbitration panel's award in the instant matter. Respondent argues that the hearing before the arbitration panel was shown to have been conducted fairly and impartially and that all parties in- cluding the grievant were given an opportunity to pres- ent their full version of the dispute. Respondent contends that the business agent presenting Rowlee's case clearly was not hostile; there was no objection by Rowlee to that presentment; and, in any event, the claim that Rowlee was discharged for protected activity was also clearly raised and presented before the panel by Rowlee himself. Respondent argues that there should be a pre- sumption of validity of the panel's award, contending no evidence was introduced sufficient to rebut such pre- sumptive validity of the award. Respondent argues there- from that if the panel had concluded that Rowlee was actually discharged for his protected activity it would have been a full defense to Rowlee in regard to the dis- charge. Rowlee would then have been awarded rein- statement with backpay. However, the panel concluded contrary to grievant's claim that Rowlee had in fact failed to follow the dispatcher's instruction and the panel obviously concluded some discipline was warranted for that wrongful conduct, though discharge was deemed by them to be too severe. Respondent argues that the deci- sion by the committee, which had both issues before it and necessarily resolved them, thus warrants dismissal of the complaint in this proceeding. Cf. Kansas City Star Company, 236 NLRB 866 (1978). In regard to claimed deficiency in the award such as to render it repugnant to the Act, viz, the failure to award backpay for the 2 to 3 weeks prior to reinstatement, Respondent argues such consideration is controlled by the Board's earlier holding in Crown Zellerbach Corporation, 215 NLRB 385 (1974), a case, it may be appropriately noted, which also involved a steward who had posted notices but in which it was concluded by an arbitrator that insubordination was the reason for discharge. Respondent also has taken basic issue with the basic propriety of Rowlee having filed the instant charge on May 15, the day before he voluntarily proceeded with grievance hearing to arbitration decision. Respondent, thus, contends that Rowlee should have been compelled to exercise his option in either proceed- ing, and be bound by arbitration in which he proceeded. It seems to me the short answer to this contention is and must be that it is within the statutory function of the General Counsel who has sole authority to issue such complaints. Westclox Division, General Time Corporation, 245 NLRB 785 (1979). Assuming arguendo the matter of Rowlee's discharge is not one for deferral, Respondent has alternatively argued that the evidence considered de novo clearly establishes that Rowlee was in fact discharged because he failed to follow dispatcher Dames' instruction to leave his tractor at the Columbus lot and for taking the tractor home without permission. Respondent argues that there is in- sufficient proof that the discharge was with antiunion motivation, e.g., by reason of Rowlee's protected activi- ties. Thus, Respondent argues that the supervisor respon- sible for the discharge, Lieber. had no knowledge of Rowlee's union activities, or processing of grievances, contentions, I note, in part at variance with the record before me and more seriously at variance with certain earlier findings of fact which I have been led by the weight of the evidence to make herein. Analysis, findings of fact, and conclusions The Board's basic Spielberg doctrine, 24 arose out of a case involving Board review of a finding that a Respond- ent employer had violated Section 8(a)(1) and (3) of the Act in refusing to reinstate certain employees at the con- clusion of a strike, in face of a raised defense that the un- derlying substantive matters had already been arbitrated and Respondent's action taken in accordance with the ar- bitrator's award. The Board reversed and deferred to the award of the arbitrator, but only after first expressing that the Board was not bound, as a matter of law, by an arbitration award and, indeed, then noting there could be no justification for it to be bound by an award at odds with the statute, but that deferral was a matter for its dis- cretion exercise. The Board went on to state the reasons for its deferral in that case which have hence come to serve as the basic Spielberg doctrine describing the guid- ing circumstances under which the Board would exercise discretion and defer to an arbitrator's award, viz, where: [t]he proceedings appear to have been fair and regu- lar, all parties had agreed to be bound, and the deci- sion of the arbitration panel is not clearly repugnant to the purposes and policies of the Act. The Board next had early occasion to clarify that if an arbitrator's award was to be deferred to on an unfair labor practice complaint allegation brought before it, the arbitrator must be capable of being reasonably viewed as having addressed and resolved the unfair labor practice issue in his rendition of the award, to which a deferral by the Board was to be made. Where he explicitly had revealed that he had not passed upon it, deferral was re- fused, the Board noting: [T]he Board has adopted the policy of honoring ar- bitration awards where it can do so without aban- doning its obligation to protect rights which the Act guaranteed to employers, bargaining repre- sentatives, individual employees or the public. [Monsanto Chemical Company, 130 NLRB 1097, 1098 (1961).] The result was the same where it was clear the arbitrator was precluded from reaching any issue but the contrac- tual one and, thus, could not have addressed the unfair labor practice issues of whether a discharge was for union activity and/or the asserted reason (e.g., one under the contract) was actually "pretextual or spurious," as might be contraevidenced by remarks or expressions of animosity to actions performed in an exercise of steward duties, clearly protected activity. Raytheon Company, 140 NLRB 883 (1963).25 24 Spie/lberg Munuracruring Compunv. 112 NLRH I080 (1955) Z, Enforcement denied on olher grounds 326. F2d 471 (st Cir 1964) 126 I & 1. N1()OR FRIF(ilI', INC The problematical issues then arose of the appropriate approach by the Board where it was explicitly unclear whether the unfair labor practice issue was presented and/or ruled upon by the arbitrator, the Board initially concluding the burden to show each was present, was to rest upon the party urging a deferral to the arbitrator's award. 26; However, i a later general review, a Board majority concluded in Electronic Reproduction Service Corporation. et a., 213 NLRB 758 (1974). that its ap- proach would be in the absence of "unusual circum- stances" (such as would show bona fide reason for not introducing evidence on claim of discrimination) to defer under Spielberg to arbitration awards dealing with dis- charge or discipline cases where no indication existed as to whether the arbitrator had considered, or had been presented with the unfair labor practice issue involved. The Board, however, had prompt occasion to reiterate that the burden of showing an arbitration met basic Spiel- berg requirements remained on the party urging deferral; though seemingly noting that even a presumption of pro- priety of deferral to an award that was silent on the unfair labor practice issue coverage was still one rebutta- ble by a General Counsel showing the unfair labor prac- tice issue was reasonably not in fact considered Thus, in John Sexton & Co.. .4 Division of Beatrice Food Co., 213 NLRB 794, 795 (1974), the Board promptly after Elec- tronic Reproduction, upra, restated as its then held view: [t]hat a respondent who wishes to rely on a Spiel- berg defense must identify what specific greivance and/or stipulation issue was submitted to arbitration and what or who the arbitration tribunal was; and must also identify, by the best evidence available (usually the text of the arbitration award), specifi- cally what the arbitration tribunal decided. Only by having such evidence in the record can we deter- mine whether the Spielberg requirements have been met. After such prima facie proof of the defense has been placed in the record it then, and only then, be- comes the burden of General Counsel to counter it by evidence tending to show that the proceedings were not fair, were not regular, that the issue sub- mnitted did not emcompass the unfair labor practice issue,2 or that the decision of the tribunal is in some respect repugnant to the purposes of the Act. [Em- phasis supplied.] 2 Electronic Reproduction Service Corporation, 213 NLRH (1974) As noted in Suburban Motor Freight, Inc.. supra, the Board has recently overruled its prior Electronic Repro- duction rationale and in doing so returned to its prior standard for deferral in terms as follows: In specific terms, we will no longer honor the re- sults of an arbitration proceeding under Spielberg unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator. In accord with the rule formerly stated 26 On required showing of ruling oin the unfair labor practice issue, cf 4irco Indurial Gaes-Pacific a Diviion of 4ir Reduction Company. In- corporated, 195 NLRBH 676 (1972); and on required submisiion of the ame issue, cf Youega lrucking. Inc. 197 NLRB 928 (1972) in 4irco Industrial Gases, we will give no deference to an arbitration award which bears no indication that the arbitrator ruled on the statutory issue of discrimination in determining the propriety of an employer's disciplinary actions. In like accord with the corollary rule stated in Yourga Trucking, we shall impose on the party seeking Board deferral to an arbitration award the burden to prove that the issue of discrimination was litigated before the arbi- trator. It would appear not open to serious question that the underlying unfair labor practice issue (viz, the contention that the discharge of Rowlee was for his steward activi- ties, including activities in recent posting of posters dis- pleasing to Respondent), was an issue presented by Rowlee to the arbitration panel and litigated in a more than tangential manner, as was the case in .4irco Industri- al Gases-Pacific. supra. However, the panel's decision as evidenced by testimony2 7 did not explicitly recite ad- verse finding on that issue. Respondent nonetheless argues, in effect, for a presumption of validity for the award rendered. Thus. when the issue is one explicitly presented to the arbitration panel, so argues Respondent, the award implicitly indicates a resolution of the raised unfair labor practice issue was made adverse to Rowlee. This is indicated to be so, so argues Respondent, by virtue of the panel's award of only reinstatement 5 days hence, on May 21 (in effect awarding a 2 to 3 week sus- pension to Rowlee without pay). Thus, the panel neces- sarily and also implicitly found that the employer had cause to discipline Rowlee for the employer assigned reasons of failing to follow the dispatcher's instruction and for using company equipment without authorization and only differed in assessing degree of discipline for the infraction. On presumption of lawfulness claimed Re- spondent argues the panel implicitly found as well that Rowlee's protected activities were not a governing con- sideration. The problem with Respondent's position on a presumption of validity of an award is that it allows only for selective inference; and in any event, in my view, ap- pears contrary to Board approach in current Board pre- cedent. Thus, where there has been a failure to address unfair labor practice issue by ruling, even where issue is explicitly presented, other inferences are equally possible, e.g., that the matter was nonetheless one not considered, or if considered, the statutory right wrongfully compro- mised. To provide deferral to such an award would appear to abandon statutory rights to possible silent com- promise or neglect, an approach which the Board's ma- jority, as I construe the above authorities rejects. I thus conclude that Suburban Motor Freight, Inc.. supra, and Airco Industrial Gases, supra, are dispositive, and accord- ingly deferral should be denied on that basis. Thus cases of similar vein reflecting an essential inadequacy of the decision rendered, that is, vis-a-vis, the unfair labor prac- 27 The record does not clearly reveal that here was a written award decision of the panel: arid in any event, even If there were it would appear its ntrdluction though the usual way is not the only esidenltiar wa the ruling might e shown Ito appear f reciord Cf John Se.rrxton Co. upru: Y'ourga Irucking. Inc. upru 127 2t I £ISI{)NS ()1 NA IONA1 I ABt)R R A' I(I)NS BO ARI) lice issue, would appear to find applicalion herein as well, cf. Mason and Dcixon Line . Inc.. upra; see Itriplc . .M1achine Shop, Inc., 245 NR 136 (1979),-n As it does not thus appear of record either explicitly or iniplicitly that thie arbitration panel has fiound that Ro:Ice was not discharged for engagement protected concerted aci- tly the possibility exists that either the panel did not con- sider the issue, or compromised it: hence, th e failure to award backpay is still another ground for the oard to decline a deferral. The case ,I' Crownl Zell rhbch (orprar- ion, supra, relied upon Respondent is thus to be dis- inguished. General Counsel's further argument in regard to inade- quacy of the arbitration proceeding, viz, that Ro lee re- ceived marginal representation by an inexperienced busi- ness agent is in my view not shown supported on this record. Thus. although this may well have been the irst grievance Raike processed before this panel it does not follow therefrom that in the prior approximate 4 to 5 months he had served as business agent that Raike had rinot processed grievances through other arbitration panels, e.g., under the contracts hie regularly supervised and with which he has testified hlie was more familiar Indeed, his testimony in comparison of the instant arbi- tration proceedings with those others of his experience would appear to me to suggest exactly that. I would only note further in passing that it would as well appear that any evaluation of due process sufficiency of a busi- ness agent's grievance presentment in a given case must make reasonable allowance for the concept of strategy ill where emphasis in a particular case presentment is to be placed. Here Raike tried the case before the panel ont the basis that available evidence of strong prior practice of Rowlee and other employees taking a tractor home would carry the day for Rowlee on his coiteition that Rowlee was not told by Dames to leave the tractor at Columbus on this single occasion. But as earlier noted. Rowlee did not advance his claim based upon any direct or explicit authorization from Darnes to take the truck home, but rather he testified, that he was not told that he could not take the truck home and that he drew conclu- sion on that occasion of being authorized to use the truck from Darnes' final instruction to go home, which is an account in conflict with Dames' version as reported to Huntsman and read to the panel. I am unwilliing to conclude the case presentment approach of Raike was either an unreasonable or an inexperienced one under all of these circumstances.2" Accordingly, I conclude that 2 here being insufficient rather than cmplete and comprh'llitC findings shonull which parllel the unfair labor practice sue. cases uch as are represented by Allurant Steel Company, 245 NLR 814 (179), are readily dislinguishable. 2" Rowlee acknowledged that no supersisor or managecr actuall I spokec to Rwlee about his union a;cviesti (ec g, in regard 1to the notices posters he posted) prior to his discharge hat fact would ave been re- ported to Raike who testified he had many conferences with R lc about the circunmstances of hIls discharge I an conlsirced as t the Rowlee-Darnes ncident generally. that the ultimatc cculit l1o the facts Io he fiurid reveals its hase nolt nly in thle areas of cnlpaih ilily of Iheir individual accounts, hut in the areas of their silence vis-a-o, each oIthcr' account I hus find D)arnes ilitially asked R trc ll take an crli pt trail- er to Nevark arid, when it became apparent t that Rtlee cmtidd noit ilke the trip, Darnes then to!d Ro,lce that tie as to leave ie tract r 1t (o lumhbus (ding st or e han ionce) hilt Ihall I);arnlr dil riot l io huc ,'rhi the case holditng of Super lulu Xeni, 228 N RB 1254 (1977), also urged by General Coutsel a s a pplicable herein, appears inapposite o certain of its substanlie facts. Certain other arguments raised h y (General CrMusel al- tacking deferral would appear equally unconvinciing ' T1hus the conitention made o the basis that the arhitra- tion proceeding was not fair ad regular because of the unexplained presence anid activities of' Coope s is, ii my view, ithout merit , as tiot supported by tile ultimat faets of' record. The record ratiher clearly reflects that Coopes w as present as secretar-. not as a membher of the panel. aid that he was nonparlicipating in its delihera- tiris, but perfitrnmed lorinal a d routitte functiotns only such activities being acceptable to the panel which was conmposed of equal nlenber-representativcs of the con- ractinig parties. Nor do I find the use of the statement of Darme s i i evidence as a procedure necessarily violative of due process. Here the cotenit of the statement had previouslI been made knowni to both Ihe Union and Rowle: vslas read in evidence before the panel 'witlhout apparent objection b either: and as far as this record re- veals as ai procedure deemned normal, useful, and ac- ceptablc to the parties i heir arbitration proceedings. There was nio claim perfected or showing made other- wise that tihe grievant could not have taken steps to copel lares appearance as a tilless before the panel. Even hearsay matters, when unobjected to, ma have probative value in court and administrative proceedings. As it does not appear on the instant record that Rowlee was precluded from exsaining Dames, had hce wished, the holding of C'cir'i ('rafi. sr/ra, appears inapposite onl its facts. There appears but to remain for consideration on the deferral issue the conltenition of the General Counsel based o Drouglav AircruJi Co., upra, and similar cases relied upon by the General Counsel, which are bottomed on a I3oard mondeferral where it is shown the arbitrator as part of its award would require an abandonment by the grievant of importantl Section 7 rights. This issue has been deemed to present a closer issue, of fact, and of the law to be applied to the fitc found. Although with some reservation, on the sseight of tihe eidence, I cornclude and find that Chairman Cassidy did tell Ro le, immediately after announcing the panel's decision oi Rs olee's grievanice, "Remember I don't tillyiin iIsriltcl Ross lce cit}ier that lit, ctolld n1t take lie tractor iorie r wils leav s tihe tractor atl the Ctolumlhus 11ot Ro lec 1m tlurn did 10it accepl )larries' iritial directilons il regard to all enpl? trailer. oIr ltasing Ilh ira tlr ait COiuIIIhibUl. bhUlt tLOtinued he discussion ll terrils t is liml- ilel hours aailahl; his olsrl ihes ailnd uniderstandtings Including prl- Ing fi, e-larli tIr tih Monday lad t the slruth (hich h did notl ohilalnl that he persoriall; dretv his Owti colt'clusi1i from finl irectilll of DIalllres it the clll of the conllcrsatril t1 go homte, hal tht nearll hat ti culd go homrne as he was out of hurs, but with the tractlr, as liti had il Ie pilt; and as he had been aible ti, d csvell after a1 serbal cllnfrr al- till snlth a rlets diipatchr r ii1 Itle past aiId, inldeed,s l hie hd done. in several occasilris i the recent ilailtihs prior to tis incidenl tIlowcte r, I am ls cll cn11ViTllced that Darnes necer specifically: aulhori/ed hilil ito di sO allntd. s fir s I)ariles sa c icetriled, his earlier ilistrucliohn to lIcast thie ratrilr t ihe ('tinlhu l[o stlil stood 'thlcl the usual report canlme II11It lie N tssark trnalllill later lIhal rIlorlilng shovlng tie tracltl 11i() 1is1tl ill e ('ola lhbus ]lit D)arvs thenl brlrighl tiat situiltil to l.ieber's alltCI111on 128 I & I M()t()R I'REI( li. INC.. want anymore damni posters up anywhere. Confine your activities to Local 2()""' After fuller reflection I am per- suaded that Rowlee's activities in regard to the posters were, on this record (e.g. in their substance atid as shown to have been preceded by various notice post- ings), protected concerted activity:" and I am further persuaded the context of Cassidy's pronouncement was such as to import restraint of Roy lee in his future exer- cise of those Section 7 rights. I accordingly conclude such constitutes still additional grounds for the oard to decline deferral in this matter."' Turning then to the merits of the underlying contro- versy, I readily conclude on the weight of the credible evidence and arguments made thereon that General Counsel has prevailed on contentions made that the dis- charge of Rowlee was on pretextual grounds and unlauw- ful. I thus conclude and find that on May 5 Respondent seized upon the developed difficulty between I)arnes and Rowlee and the reported circumstance that his tractor was not at the Columbus lot as a pretext for discharging Rowlee for his engagement in certain protected actiities to which Respondent was openly hostile. In reaching this conclusion I have been persuaded by the record as a whole, but specifically by the following consideratio ols which I conclude point to a discriminatory discharge of Rowlee. Thus the record has clearly revealed that Rowlee was very active in seeking enforcement of the & L contract: in filing aind pursuing grievances on behalf of members of his own l.ocal: and that he more recently exhibited interests in investigatitng the possibilities of sim- ilar situations that might be affecting other union mem- "' Raik trrohorat-ed mlil] so mli o te actTmicnIt lhat Rs Ice sais tld hat RosIlcc a' a tlcard for L ocal 72 ad gas ii ,to olit Ils Ullion actl itics to I ocal 20()' sirlditllill ()Ir tillt othcr hallld Iitther Rali- nilr Illlttl.lln h[l s dceicd ilt rtlllark inl regard It posttcr 'kils miad h (st} I his c had arierr oC iltill i tric la k f pleri.,slioll as to thet' r-colll tlill of Ro letc In rgardl tIo crtlll :i'.alrks ite ir.11 alttrihiited ti I topts. for rcaroni s earlier siattil tmors ccl. l ti ll, iistalitcC. neilther Raiki. nolr iurintmlan has denied that CaldL utllctrel lilt' rnmalrk (attrlbuted to Cidsld hb Rosk]ctCl in regard I thc prostcrs Rsprtr)lcitl il hrief woull lrntcrpolate that (,;issld toil Ros lcc Ihal hc Ishoul d rnot pol5 signs at other ioltlpall trminals olthcr thani h, ll11i trmial Ir1 .n Csent. thi s t I, It hati Ros uIc tcsificed Io I redit Rosl cc 1 (intatinr ( rpoauiton ! .-,n,-rl. 244 N R 1 ( 97i ). arid sct te confirming anld qalllliflg ic ' ases ited ill fi 2 12 the rc finctll ll t 0 fll t citrllr llllg ditic rleri ng t iit1. hlt.s h eCl st)intl - 'sshat prohlCiltlSmtitc tloe,sc r. t ould appear thc Issu of li crral III [he ahbxic tirtilrsallotcs is It h rslscd oil tlic hats if rc ticl icsLt If whetlher ail arhllraiolln panil through a11 iclioin itf Its chllrllllrl hil, cffectr ed a prior inlterfercncc r re.trrll nt l Rossle , excrclC i f i rtlill t )t hi, Sect lin 7 righis Ill tile ftluric (particlarl Ill the iolecd coticst occurrillg atl lime of Rous Ic's a;llnt(lli ct ristaltnlcmcnt aiu ird ailld fter arliler M1il- lar posillitll 1aertetnnt h his mploycr ha, hbtcrl ilialrI ill h prcst n tce heftre the same Iribunlll), and. f so. htelhc I hal lmentrIt i Inlcrfrtcnc fr restraint is i he diltiguishted fromn a issute t slit ! he rqutltcl tO ciinsiiui a Ildcpcndteit mnfair lahbor pralatlice h! i l itl ;0 Ioair it' agent i given Cl tcillllriances A tl Ihe ltter llatttr or i smic. c rl. Icri- ther i, hbefire nml as a Respoindent t o lmphltl allegatiol At ctOrdiigig, it soulcd appeair that I ilccd nt adidrtss a, ullch It stIe ci iidltrattl for approprialc rcsllilloll. g . ulidtr the Ihartl' nliore rcilllt dllltg III that area, 1il itmiitri I.iaul 515 (Riadar .- Fpri-i Inc u. 248 NIRII 83 (1980) Addressclg hc former sslue. I am persuladled- that Ilii raslonrl.hl effect itf Chairman Cassild, stlatcmlt to RoisKul thlet lhl rd rcrlll her that Cassld, iid n1(l arit antymiore ptlcr lip alltI.h'rt' a;nd 1thaI Rouslet should confine his ai tlilt's t.cal 2() CiolitICLItd a prsr-tl r st railin on R , icc' futurc c ercise of h ScIiottio ' righis tif suiffi ' llI stature a t preclut de Iloard dcfirral It th;tl pa;lwl' tI esrlllali c rlitlrrclt arhitrallin a ard hers (lf other local unlions wuho were also emplosed by 13 & L. He did so by posting posters, soliciting reports on a number of subjects in regard to wages, hours. and work- ing conditions from fellow drivers and mechanics. As to the latter efforts it appears clear beyond question that Respondent was openly hostile In passing I note that no judgmental view is expressed on whether Rowlee in his latter endeavor had either acted wisely, or had any war- rant for attempting to do so. for that is not the test for protected concerted activity in such matters. I have ear- lier noted the areas in the testimony of Darnes and l.ieber that have given me hesitation from full accept- ance of their accounts, all of which need not be repeated now, but which are indicative of interplay of another motive. In contrast the record reveals the discharge of Rowlee was abrupt and finalized without any effort at investigating to ascertain Rowlee's version of the circum- stances a procedure which itself suggests presence of other and resolved motive not to be affected by ans re- finement of the actual facts in regard to the asserted os- tensible cause for discharge. The asserted reason as being the real reason only pales the more in the face of the ad- mitlted policy of the Company's, Rowvlee's, and others past practice thereunder. The conclusion that the dis- charge was an unlawful one is enforced by the consider- ation of the timing of the discharge occurring so shortly after Rowlee had engaged in the certain postings as to which Respondent as openly hostile; and only a day before the agreed but unheld meeting on his grievance in regard to the B & L-Local 2() rider was to occur. More could be said of supporting indications from the inconsis- tencies of the incidents of that day, but more need not be marshalled. I conclude and find that the weight of the credible eidence before me has established that the dis- charge of Richard Rowlee on Ma 5 was not because he had failed to follow an instruction of Darnes or had used his truck to go home without authorization, but rather the attendant circumstances of the incident were seized upon by Respondent as a pretext to effect Rowlee's dis- charge for another reason, an unlawful one. and that the real reason for Rowlee's discharge on May 5 was be- cause of his active and continued engagement in exercise of certain Section 7 rights to which Respondent had become hostile, all in violation of Section 8(a)( ) and (3) of the Act. CONCI t SIONS ot01 L \ 1. Respondent & L Motor Freight. Inc., is an em- ployer engaged in commerce within the meaning of Sec- tionti 2(2), (), and (7) of the Act 2. The Union. Interinatiotnal Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 20, is a labor organization within the meaning of Section 2(5) of the Act. 3 By discharging Richard Rowlee on May 5, 1978. and hy failinig to reinstate him until May 21. 1978. Re- spondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 12" I) t('ISI()NS )F NA I )NAI I AB()R RITA I I)NS BO()ARI) Tit R ti)N Hlaving found that Respondent has elCgaged in ccrtain unfair labor practices, I find it neccssary to order the Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to cffectuate the policies of the Act. Respondent having discriminalorily discharged its em- ployee Richard Rowlee and having reinstated him on or about May 21, 1978, but without payment of backpay for the interim period, I find it necessary to order Respond- ent to make Richard Rowlee whole for any loss of earn- ings he may have suffered during the period from the date of his discharge to the day his full reinstatement was affected. Said loss of earnings, with interest thereon, is to be computed in the manner prescribed in /- W' Wool/worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).ia Upon the foregoing findings of fact, conclusions of law. and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER '14 The Respondent, B & L Motor Freight, Inc., Newark, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging any employee because the employee engaged in union or other protected concerted activity. : Sc, ginerally. I Plrumnhing & Ilturg C' o., 138 NlRtI 716 (1lh?2) 'i4 I the ievent no exceptionls rc ilcd a,1 provlctd y See 12 4h the Ruls arld RglalilnS of the Natilnal I.hor Relaiiols Board. thi findings, conclus,ions. and r cdrcomlnCed ()Order hTerein hall. as prolllcd i1 See 1(12.48 ,f thc Rule, alld Rcgutalions hc adopted h he Bhtoard aid becon its finidings, ciiiclusill,, aiidl rder, iId all obctjrcliis thereto shall h deemnied waived fr all puirposcs (h) In any like or related manner interfering wilh. rc- straiing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. ake the following affirmative actioti necessary to effectuate the policies of the Act: (a) Make Richard Rowlee whole for any lost earllings in the manner set forth in the section entitled "I he Remedy." (b) Preserve and. upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) ost at each of such of the terminals at Newark, Whitman, and Toledo, Ohio, and Ft. Wayne, Indiana, and at the Columbus, Ohio, lot, where it maintains bulle- tin boards or other suitable locations for notice to its em- ployees, copies of the attached notice marked "Appen- dix." a Copies of the notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Responldent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, wshat steps the Re- spondent has taken to comply herewith. ': 11il t ,c ,tilt 1111 ()lcr Is cnIforcLcd h i a Jlldgilltt ii f 1ic tc Siales Courl t' ppcils. the '.ord, ill tile iontic rFadilig "P mticd hS ()rdcr of Ihc Nallllmil I bol Rtcllios lBoard" shall rad -)IoCId i'urll- a llt ( i Judgi il ofi t nitcd St at s C (LIrt f Appcals tnforcinig a ()rder f iltc Ntilil lahr Rlaions Hoard" 13()