Bailey Distributors

BAILEY DISTRIBUTORS Donald Browne d/b/a Bailey Distributors and Timothy Nevins. Case 2-CA-18022 21 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 3 January 1983 Administrative Law Judge Robert T. Snyder issued the attached decision. The Respondent filed exceptions and a supporting brief. On 9 April 1984 the Board issued an order remand- ing the proceeding to the administrative law judge for consideration and preparation of a supplemental decision in light of its decision in Olin Corp., 268 NLRB 573 (1984). On 25 June 1984 Administrative Law Judge Robert T. Snyder issued the attached supplemental decision. The Respondent filed excep- tions and a supplemental supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decisions and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by applying the terms and conditions of a collective-bargaining agreement only to employees who were union members, by discriminating in terms and conditions of employment of employee Timothy Nevins be- cause he was not a union member, and by con- structively discharging employee Nevins for engag- ing in protected concerted activity. In so doing, the judge declined to defer under the doctrine of Olin Corp.' to the decision of an ar- bitrator which found that the Respondent's con- duct was not unlawful. The Respondent has excepted to both the finding of a violation and the refusal to defer to the arbi- trator's award. For the reasons set forth below, we find that deferral to the arbitrator's award is appro- priate and we dismiss the complaint. The Respondent is engaged in the nonretail sale and distribution of beverages. Since at least 1974, the Respondent and Soft Drink Workers Union, Local 812, 'LB.T. (the Union) have been signatories to successive collective-bargaining agreements, the most recent of which was effective from 1 June 1978 through 31 May 1981. As set forth in more detail in the judge's deci- sion, Timothy Nevins testified as follows: In No- 1 268 NLRB 573 (1984). 103 vember 1977 he began working for the Respondent as a helper on a delivery truck.2 This entailed re- porting on a daily basis to the Respondent's ware- house and then accompanying a driver, on the truck, to various customer locations where he would assist the driver in unloading the Respond- ent's beverage products. Nevins continued in this role until 5 January 19813 but on occasion during the period of November 1979 through 5 January 1981 filled in as a relief driver when regular drivers did not report to work or took their vacations. When employed as a helper, he was paid in cash by the driver but when employed as a relief driver, he was paid by check directly from the Respond- ent. During the last months of his employment, he complained to the Respondent that he was not a union member and was not receiving pay and bene- fits per the union contract. Then, on Friday, 2 Jan- uary, the driver Nevins was working for, Walsh, failed to meet him as prearranged. Nevins called Respondent Donald Browne and was told to come to the Respondent's facility and take the truck out for, the day. Nevins complied with this request. The following Monday, 5 January, Nevins met Walsh at the Respondent's warehouse and they went to talk with Respondent Browne. Nevins and Walsh found Browne in his office speaking with the union business agent. At that point Browne told Walsh he was fired and told Nevins to go downstairs. Browne came down later and told Nevins that he could follow Browne around in his own vehicle if he wanted and Browne would pay him $40-50 per day. Browne refused to let Nevins ride on the truck so Nevins refused to work. Respondent Browne testified that Nevins never worked for him as a helper and that he never, au- thorized any of his drivers to hire Nevins. Browne admitted, however, that Nevins worked for him as a relief driver in 1979, 1980, and 1981 and that when so employed Nevins was paid pursuant to the union contract. Concerning the incident of 2 January, Browne testified that when Nevins called, Browne was not even aware Nevins was working with one of the drivers. Browne did not dispute that on that day he told Nevins he could come in and take the truck out if he wanted. Concerning the events of 5 January, Browne tes- tified that because of slow sales and his dislike of 2 The collective-bargammg agreement between the Respondent and the Union specifies three classifications of employees. route salesmen, route drivers and utility drivers, and helpers Although some benefits apply to all employees, the contract specifies different wage scales for each classification The contract further specifies that any route salesman or driver leavin g the plant with 150 cases of beverages or more must have a helper a All dates hereafter are 1981 unless otherwise indicated. 278 NLRB No. 17 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walsh's work, he decided to go out on the route himself. Browne claims he offered Nevins a job as a union helper but Nevins declined as he wanted to be a driver. On 3 February, Nevins wrote to the Union in- forming it that he had been dismissed from his job with the Respondent. He further requested the Union to grieve his dismissal, seek his reinstatement as a relief driver and helper, and seek backpay for the 3-year period he alleged he worked as a helper without receiving union scale wages. By letter of 13 February, the Union requested the industry arbi- trator to arrange an arbitration hearing on the issue of Nevins' dismissal. On 27 April Nevins and Walsh filed the instant charge alleging the Re- spondent unlawfully discriminated against them.4 By letter of 5 May the Union informed Nevins and Walsh that the arbitration of their grievances was scheduled for 21 May. By letter of 14 May, Thomas McDonough Jr., an attorney retained by Nevins and Walsh, informed the Union that they would not be participating in or attending any arbi- tration scheduled by the Union. On 14 May Nevins and Walsh filed a suit against the Respondent in U.S. district court, alleging they were not paid in accordance with the collective- bargaining agreement and were both discharged in violation of this agreement.5 This suit sought, inter alia, reinstatement for Nevins back to his position of relief driver and helper and backpay for the time he worked as a helper. On 21 May representatives of the Respondent and the Union appeared before the arbitrator. When the arbitrator was presented with copies of the 14 May letter from McDon- ough, the proceeding was adjourned. Subsequently, in the civil action, the Union filed a motion to dismiss contending Nevins and Walsh had failed to exhaust the procedures under the col- lective-bargaining agreement. On 20 July a hearing was held in Federal district court on the Union's motion. At this time both the Respondent and the Union indicated they were willing to proceed to arbitration. McDonough, on behalf of Nevins and Walsh, indicated his reluctance to proceed to arbi- tration as, he was not convinced all the issues in the case would be pursued with the arbitrator. Specifi- cally, McDonough was concerned with Nevins' claim that the Respondent failed to apply the con- tract to Nevins when he worked as a helper. On 4 Separate charges simultaneously filed by Nevins and Walsh alleging the Union unlawfully refused to process their grievances were subse- quently withdrawn. 5 U.S District Court for the Southern District of New York, 81 Civil Action No. 2941. A suit was also simultaneously filed against the Union alleging that the Union failed to provide Nevins and Walsh with a copy of the collective-bargaining agreement and made no effort to discontinue the breaches of the collective-bargaining agreement the record, the Union's attorney assured McDon- ough and the court that all issues would be raised. The Union's attorney further offered to allow McDonough to conduct the arbitration and raise any issues he so desired. McDonough declined and stated he preferred that the union attorney conduct the arbitration. The suit was then dismissed. Nevins' arbitration was held on 8 December.6 Present were the Respondent's attorney, the Union's attorney McDonough, and Nevins.' A written decision issued 5 February 1982. In this de- cision, the arbitrator framed the issue as "an al- leged dismissal of Nevins, and other alleged viola- tions by the Employer." The arbitrator para- phrased the Union's arguments as twofold: "(1) Nevins, an itinerant driver and helper was improp- erly discharged in November 1980; and (2) the em- ployer owed Nevins for periods of employment as a helper." The arbitrator's decision then proceeded to evaluate the "credible" evidence and found as fol- lows: Nevins was a fill-in driver for the Respond- ent in 1977, 1978, and 1979. In 1980 the Respond- ent hoped to expand and use Nevins as an addition- al driver but the expansion did not work due to in- sufficient sales. Nevins continued to work as a va- cation relief driver until November 1980 when he was terminated because the regular drivers re- turned to work. Based on these findings, the arbitrator concluded that Nevins was primarily a- vacation relief driver. Relying particularly on Nevins', testimony that cash payments were made to him by the drivers and not by Browne, the . arbitrator concluded Nevins did not work for the Respondent as a helper and thus had no basis for seeking reinstatement and backpay. In his initial decision, the judge reviewed the facts of the case at length. In so doing, the judge also examined the arbitration proceeding, review- ing how it was conducted and what evidence was presented. The judge recognized that, as set forth above, the arbitrator found that Nevins never worked for the Respondent as a helper. The judge then proceeded to credit the testimony given by Nevins in the instant hearing and drew his own conclusion that Nevins did work for the Respond- ent as a helper. The judge, after stating "the award bears the `indications' that the issues crucial to the statutory questions were determined," proceeded to refuse to defer the arbitration award on the grounds that "the unfair labor practice issue relat- 6 Walsh's arbitration commenced in September but was continued until 8 December It concluded on that date and then the arbitration on Nevins' claim was held 7 The arbitrator's decision also indicates Ted Hutchinson for the Union and employee Ronald Walsh were present. BAILEY DISTRIBUTORS 1105 ing to Nevins' discriminatory denial of employment on January 5" was neither considered nor passed upon. The Respondent excepted to this decision, con- tending, inter alia, that the arbitration award war- ranted deferral. While the Respondent's exceptions were pending before us, we issued our decision in Olin Corp. We thus remanded the instant case to the judge for consideration in light of this decision. The judge issued a supplemental decision in which he again refused to defer to the arbitrator's award. The Respondent again excepted , contending, inter alia, we should defer to the arbitrator's award as the Olin standards have been met. We agree with the Respondent's position and thus conclude, contrary to the judge, that the Olin formulation of the standard governing deferral to arbitration awards was plainly met by the instant arbitration decision. As we have set forth in a recent decision: It is well settled that the Board will defer to an arbitration award when the proceedings appear to have been fair and regular, all par- ties had agreed to be bound, the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act, Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955), and the arbitrator considered the unfair labor prac- tice issue which the Board is called on to decide. Raytheon Co, 140 NLRB 883, 884-885 (1963). The Board will find that the arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. Olin Corp., 268 NLRB No. 86, slip op. at 5 (Jan. 19, 1984). Badger Meter, Inc., 272 NLRB 824 at 826 (1984). Further, asset forth in Olin Corp., "the party seek- ing to have the Board ignore the determination of an arbitrator has the burden of affirmatively dem- onstrating the defects in the arbitral process or award." 268 NLRB at 574. In his supplemental decision, the judge conclud- ed that the instant arbitration award should not be deferred to because: (1) the contractual issue pre- sented to the arbitrator was not factually parallel to the instant unfair labor practice issue and (2) nei- ther the facts nor the issue concerning the alleged constructive discharge of Nevins as a helper on 5 January was presented to the arbitrator. In evaluating the judge's first basis for refusing to defer to the arbitrator's decision, we must exam- ine the respective ' issues. The contractual issue was whether Nevins was employed as a helper and thus was entitled to the wages and benefits established in the collective-bargaining agreement. The statuto- ry question is whether Nevins was employed as a helper and,, if so, whether the Respondent unlaw- fully refused to apply the terms of the collective- bargaining agreement to him prior to 5 January and discharged him from his position on 5 January because he requested contractual wages and bene- fits. The contractual and statutory issues thus both turn on whether Nevins was ever employed by the Respondent as a helper. Accordingly, we find that these issues are factually parallel. Next, we must determine whether the General Counsel has demonstrated that the arbitrator was not generally presented with the facts relevant to the statutory issue. Contrary to the judge's appar- ent interpretation, and as we have stated in the past, the Board's review at this stage is not akin to a trial de novo. Badger Meter, Inc., 272 NLRB 824 (1984). Rather the operative phrase governing our review is "generally presented." A review of the record in'the instant case re- veals that the arbitrator was presented with ample testimonial evidence about Nevins' employment re- lationship with the Respondent. This evidence in- cluded testimony before the arbitrator from both Respondent Browne and Nevins. Specifically, Nevins ,stated at the instant hearing that at the arbi- tration hearing he testified about (1) working for drivers as a helper and being paid in cash for so doing; (2) his conversation with Browne regarding the termination of the truck in October 1980; and (3) the events of both 2 and 5 January. According- ly, we find that the General ' Counsel has failed to demonstrate that the arbitrator was not generally presented with the facts relevant to the statutory issue. Additionally, one other aspect of the judge's analysis requires comment . In'his supplemental de- cision, the judge reaffirmed the conclusion reached in his original decision that throughout the arbitra- tion process there was a conflict of interest be- tween ' the Union and Nevins such that the proceed- ings were not fair and regular and thus deferral was not appropriate. Spielberg Mfg Co., 112 NLRB 1080 (1955). The judge based this fording primarily on two factors: (1) animosity between the _ Union's attorney and Nevins' attorney and (2) his conclu- sion that the Union did not effectively present Nevins' case to the arbitrator. Regarding the first factor, the evidence indicates that prior to the arbitration, the two attorneys en- gaged in an unfriendly exchange of words; the Union's attorney Fox requested Nevins' attorney 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McDonough not to speak to him at the arbitration; and at the arbitration Fox initially would not let McDonough take notes. What the evidence also in- dicates, however, is that during the hearing on Nevins' civil action, Fox offered to let McDon- ough conduct the arbitration but McDonough de- clined. Shortly after the commencement of the ar- bitration proceedings, McDonough wrote to Fox complimenting him on how well he was handling the arbitration.8 Further, McDonough was present during the entire arbitration and did not object to the evidence being presented or make any attempt to present additional evidence. Weighing all this evidence, especially the fact that Nevins was repre- sented by independent counsel throughout the entire arbitration process, we cannot conclude that whatever animosity existed between McDonough and Fox rendered the proceedings not fair and reg- ular. Regarding the judge's conclusion that the Union did not effectively present Nevins' case to the arbi- trator, as set forth above, we will not grant a trial de novo. We will not examine the arbitration pro- ceedings from the perspective of whether the case could have been presented before the arbitrator more effectively, more persuasively, or in a more logical manner. We will not refuse to defer to an arbitration award because an argument can be made, with the benefit of hindsight, that a more ef- fective presentation might have changed the arbi- trator's decision. In the instant case, the evidence clearly shows that Nevins, McDonough, and Fox had an ade- quate opportunity to present evidence to the arbi- trator; Fox, the individual who conducted the arbi- tration for the Union, was an experienced prac- tioner; and McDonough, an attorney privately re- tained by Nevins, witnessed the entire arbitration without objection to either the manner in which the evidence was presented or the evidence itself. In light of all this, we do not agree with the judge's conclusion that the arbitration was not fair and regular because the Union did not effectively present Nevins' case to the arbitrator.9 For all the foregoing reasons, we conclude that the arbitration has met the Spielberg and Raytheon standards for deferral. We shall therefore defer to the arbitration award and dismiss the complaint. ORDER The complaint is dismissed. MEMBER DENNIS, dissenting. I would not defer to the arbitration award in this case, but would decide the case on the merits. One of the Spielberg criteria for deferral is that "the proceedings appear, to have been fair and regu- lar."' The conflicts of interest in this case raise doubts- about the fairness of the arbitration pro- ceedings, doubts that are not dispelled by the evi- dence about how the arbitration was handled. I agree with the judge that the arbitration proceed- ings "lacked the fairness which would justify the Board's confidence in the legitimacy of the award." Grievant Nevins' interest in the underlying issue was at odds with the Union's interest. Nevins wanted to be given the contractual wages and ben- efits for helpers. The Union, however, had a prac- tice of waiving the contractual requirement that an employer must have helpers on trucks delivering over 150 cases a day. The Respondent's relation- ship with the Union included an arrangement that drivers could deliver more than 150 cases without a helper and without sacrificing the drivers' bonus for delivering extra cases. All the Respondent's drivers were members of the Union; Nevins was not. To this extent the Union's interest in the un- derlying issue was in accord with the Respondent's and in conflict with Nevins'. The conflict between the Union's and Nevins' in- terests was underscored by a lawsuit for damages filed by Nevins and another grievant, Walsh, against both the Respondent and the Union.2 The conflict was also expressed by the antagonism be- tween the Union's attorney, Fox, and Nevins' at- torney, McDonough. Before the Nevins and Walsh arbitrations, Fox and McDonough exchanged strong words over the telephone. Fox wrote McDonough stating McDonough could observe a As set forth above, arbitration proceedings were held for both Walsh and Nevins This letter was written after the arbitration on Walsh's griev- ance had commenced but before the arbitration of Nevins' grievance In relevant part this letter stated. [I]t became apparent to me within five minutes of the commence- ment of the arbitration that you were handling the matter in an ex- tremely competent and professional manner I can in no way fault your handling of the matter and, to the contrary, I feel I am getting a lesson from a more experienced and abler practitioner of our profession Contrary to our dissenting colleague, the General Counsel has not demonstrated that "actual and potential conflicts of interest" rendered the arbitration proceedings not fair and regular If, as our colleague apparent- ly concedes, there is no basis for questioning the Union's handling of Nevins' grievance, we fail to see how these theoretical conflicts of inter- est affected the fairness of the arbitration Further, we cannot agree with our colleague's contention that "there was a potential for conflict be- tween the arbitrator's general interest and his duty to decide Nevins' grievance." As the arbitrator acted impartially , there has been no show- ing that a potential conflict had an effect on the arbitration proceedings Finally, we are unwilling to permit the integrity of the arbitration pro- ceedings to be attacked successfully based on the arbitrator's having per- manent status Indeed, the converse could be argued An arbitrator with permanent status may be best suited to decide issues fairly without fear that he would not be chosen for future arbitrations i Spielberg Mfg. Co, 112 NLRB 1080, 1082 (1955) See also Olin Corp, 268 NLRB 573 (1984) 2 The suit was dismissed because Nevins and Walsh had not exhausted the grievance procedure BAILEY DISTRIBUTORS the arbitrations, but he did not want McDonough to talk to him. At Walsh's arbitration, which was held first, Fox told McDonough that he would not continue with the arbitration if McDonough con- tinued to take notes. Fox thought the notes were for a lawsuit against the Union. Although the hos- tility between counsel was somewhat mitigated by McDonough's letter commending Fox's handling of Walsh's arbitration, the evidence nonetheless shows that Fox was subject to a conflict between protecting the Union's interest and advancing Nevins' interest. Walsh's and Nevins' arbitrations were held before the contractually designated permanent arbi- trator. Because the arbitrator was named in the contract, his general interest would be to serve the contracting parties who named him. Here, where the Union's interest in the underlying issue in Nevins' arbitration coincided with the Respond- ent's interest, there was the potential for conflict between the arbitrator's general interest and his duty impartially to decide Nevins' grievance. Al- though the evidence does not show that the arbi- trator acted other than impartially, the potential conflict further casts doubt on the arbitral proceed- ings. The actual and potential conflicts of interest in this case, some of which broke into litigation and heated exchanges, persuade me that we should not defer to the arbitral award. In these circumstances it is not necessary to find, as did the judge, that the Union did not in fact effectively present Nevins' case to the arbitrator. The conflicts of interest themselves raise sufficient doubt about the fairness of the proceedings. I am firmly committed to the strong policy fa- voring deferral to arbitration that we adopted, in Olin Corp., supra, and its companion case, United Technologies Corp., 268 NLRB 557 (1984). I simply believe that because of conflicts of interest in the instant case, the integrity of our deferral policy is best preserved by not deferring. James Wasserman, Esq., for the General Counsel. Allan 'M. Stern (Nathan Stern, P. C.), of Mineola, New York, for the Respondent. Thomas McDonough, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. This case was heard by me at New York, New York, on June 21 and July 7, 1982. The charge in this proceeding was filled by Timothy Nevins on April 27, 1981, and the complaint was issued by the Regional Director for Region 2 on June 11, 1981. By answer filed June 22, 107 1981, Respondent denied the material and conclusionary allegations of the complaint, and by supplementary answer filed March 15, 1982, Respondent asserted as an affirmative defense and as independent grounds for dis- missal of the complaint that Timothy Nevins fully par- ticipated in an arbitration held pursuant to a contract be- tween Soft Drink Workers Union, Local 812, I.B.T. (the Union or Local 812) and Respondent in which an arbi- trator issued an award dated February 5, 1982, resolving all issues. The Respondent attached a copy of the award. In substance, the complaint alleges that Respondent, in violation of Section 8(a)(1), (2), and (3) of the Act, has maintained a practice of not applying to Nevins, a bar- gaining unit employee, the terms and conditions of em- ployment embodied in the collective-bargaining agree- ment it has entered into with the Union, thereby causing Nevins to receive lesser pay, health, medical, and other benefits than all other unit employees receive, because Nevins was not a union member. The complaint further alleges, in violation of Section 8(a)(1) and (3), that about January 5, 1981, Respondent constructively discharged Nevins by conditioning Nevin 's employment on his relin- quishment of the right to these wages and other benefits enjoyed by all union members under the terms of the agreement. Counsel for Respondent and the General Counsel pre- sented summation at the conclusion of the hearing, and each filed , posthearing briefs. Based on the entire record in this proceeding, including my observation of the de- meanor of the witnesses and after considering the argu- ments of counsel made at the hearing and in the briefs filled, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a sole proprietorship, is engaged in the nonretail sale and distributions of soda beverages at its principal office and place of business located in the Bronx, New York. In the course and conduct of its busi- ness operations, Respondent, annually sells and ships from its facility products, goods, and materials valued in excess of $50,000 directly to Finast Supermarkets, Inc., a retail supermarket which has gross annual sales in excess of $500,000 and which purchases and has shipped to it products, goods, , and materials valued in excess of $50,000 directly from enterprises located outside the State of New York. At all times material, Respondent has been a member of the New York Pepsi-Cola Distrib- utors Association, Inc. (the Association) an organization composed of employers engaged in the distribution and sale of soda beverages and which represents its employ- er-members, including, Respondent, in negotiating and administering collective-bargaining agreements with the Union. Annually, the employer-members of the Associa- tion, in the course and conduct of their business oper- ations, collectively sell and ship from their facilities lo- cated in New York products, goods, and materials valued in excess of $50,000 directly to Finast Supermar- kets, Inc., whose gross annual sales and direct purchases from enterprises located outside the State of New York 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceed $500,000 and $50,000, respectively, as described above. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED A. Respondent's Collective-Bargaining Relationship and Business Setup Since at least 1974, Respondent has been a signatory of the agreements entered into on behalf of itself and all other members by the Association with the Union, the 1974 agreement had an effective term from June 1, 1974, to May 31, 1978. Effective June 1, 1978, a memorandum agreement was executed, and ratified by all Association members, including Respondent, increasing wages, com- mission rates, and health coverage and extending the term of the earlier agreement with these modifications to and including May 31, 1981. The agreement, as extended and modified , contains the following provisions, among others: exclusive recogni- tion clause describing the unit as including all produc- tion, maintenance, delivery employees, salesmen, and dis- tributors; a union-security clause requiring union mem- bership 30 days after the effective date of the agreement or date of hire, whichever is later; a provision providing the Union the first opportunity to provide suitable appli- cants when the firm needs additional employees and specifying that any extra help shall receive prevailing union scale; minimum wage scales for job categories of (a) route drivers and utility drivers, (b) driver's helpers, and (c) route salesmen. The agreement further provides for commission rates per case, which increase effective on the agreement's anniversary dates, a discharge clause requiring that the firm, if it desires to take disciplinary action against an employee for any reason other than dis- honesty or drunkeness during hours of employment, shall consult the Union, if the employee is a union member and, in the event the parties do not agree to the disci- pline which is to be imposed, the dispute shall be re- ferred to arbitration, and an article providing for final and binding arbitration before a named arbitrator, Harry Silverman, Esq., of all unadjusted complaints, disputes, controversies, or grievances arising between the parties which are referred to him. The agreement also contains a separate article specifying that any route salesman and driver leaving the plant with 150 cases or more must have a helpers and an article specifying the group insur- 1 The prevailing practice, although not detailed in the agreement, is that drivers receive a bonus, in addition to the regular commission, for delivery of more than 150 cases of soda in a day. There is no article which limits or restricts the bonus because a driver has used a helper in delivering the cases Nonetheless, there appears to be a practice among drivers, including those employed by Respondent, not to utilize the serv- ices of a ,helper when delivering more than 150 cases The Union has not sought to require the firms covered by the agreement to comply with the written article requiring helpers' employment; thus the article has not been honored generally in practice. ance, medical surgical benefits, major medical, prescrip- tion benefits, and Blue Cross and Blue Shield benefits the firm agrees to keep in effect for all regular employees. Respondent has generally employed four trucks in his sales and delivery operation, with the exception of a lim- ited period to be discussed, infra, when five were uti- lized. These trucks are leased from the Pepsi Cola Manu- facturing Corporation. Each truck is manned by a full- time route salesman. At all times material, these driver salesmen were Fidel (Mike) Perez, Harold Laub, Joseph Figueroa, and Ronald Walsh. The trucks are garaged and maintained at a warehouse located in the Bronx which also houses Respondent's office and the trucks and offices of approximately 10 other distributors which sell soda beverages on routes located in the Bronx and con- tiguous locations in the New York City area. Early each morning the trucks are serviced and leave the warehouse garage to make deliveries to retail super- markets and stores with which Respondent and the other distributors have sales agreements. B. Timothy Nevins' Alleged Employment Relationship and Termination Nevins testified as follows. In November 1977 he met Browne on the street and afterward in his office, at which time Browne told him he would be able to get him work with one of his drivers on the truck and that he would put Nevins on the truck driven by Joe Fi- gueroa. Nevins commenced working as a helper on Fi- gueroa's truck every day. Nevins reported daily to the warehouse in the Bronx where he met Figueroa and went out with him to make the deliveries at the sched- uled customer locations, bringing the soda into the stores, and replenishing and straightening out the racks. Once in a while when Nevins had something else to do, he prearranged to meet the driver and truck outside the warehouse. Nevins received instructions from both Figueroa and Browne. He and Figueroa saw Browne a couple of times a week, usually on the route. Browne checked the stores, helped build the displays, and advised them how and where to set up displays and racks in particular stores to encourage and expedite sales of the beverages which Re- spondent distributed, primarily Pepsi Cola, but also Schweppes soft drinks as well. Browne also provided Nevins with a Pepsi emblem shirt and jacket to wear on the job, telling him he had to look presentable, and should be identified with Pepsi. In December 1977, in his office, Browne gave Nevins a Christmas bonus. After the winter in 1978, when Figueroa's route got slow and he informed Browne he did not need Nevins anymore, Browne put Nevins on the truck with Ronnie Walsh. Nevins continued as Walsh's helper until January 5, 1981, but, on occasion, was reassigned by Browne to work as a helper with other drivers. He also was a relief driver, taking over the route of a driver who did not come in to work on a particular day and he substituted during the summer for the regular drivers when they took their vacations. Nevins estimated he averaged I4 months a year working as a relief driver. Browne gave Nevins a key to unlock the garage doors at the ware- BAILEY DISTRIBUTORS 109 house so he could park and leave his car early in the morning before going out on the truck. Browne also continued to give Nevins a Christmas bonus in 1978, 1979, and 1980. .During those regular periods that Nevins worked as a helper, he was paid in cash by the driver. When Nevins worked as a utility or relief driver, he was paid by check (with the usual deductions) directly from Browne. Fre- quently, Nevins was present at the' warehouse when the drivers were paid by Browne. The drivers received their regular pay by check and then Browne settled up with them in cash their commissions for delivering the cases. The driver who Nevins helped (generally Walsh, starting in 1978) then in Browne's presence immediately paid Nevins in cash from the commissions he had just re- ceived. Nevins checked with the drivers2 and learned he had no reason to dispute the pay, salary, and commissions he periodically received for his limited work as a relief driver. He confirmed he was receiving union scale for that work. With respect to his pay for work as a helper in the last few months of his employment, Nevins com- plained that he was not a member of the Union, was not receiving union scale, and was not receiving the contract benefits, particularly medical coverage. Those complaints followed a period of some weeks in the fall of 1980 when Browne assigned Nevins to a fifth delivery truck to work as a regular driver. Nevins ex- plained that when Browne gave him the fifth truck, he said he was going to try it out and see how it would work. The sales route was made up by taking some store delivery stops from those previously assigned to drivers Perez and Walsh. Nevins testified he was also assigned a helper by Browne, who for the first week was paid by Browne and thereafter by Nevins, after the helper com- plained about his pay and Browne told him to pay the helper out of his own pocket. After some weeks, Browne canceled the truck before he left for a vacation and reas- signed Nevins back as helper on Walsh's truck. After Browne returned from vacation and Nevins inquired about the fifth truck, Browne told him it was not work- ing out right, that he was not making any money on it. After Browne's return, probably in October 1980, Nevins continued work as a helper, being paid in cash by Walsh. Nevins asked Browne a couple of times about be- coming a' union member3 and getting union scale4 and benefits. In particular, Nevins asked Browne where his Blue Cross, Blue Shield card was. Brown's response was that he was taking care of everything. On January 2, 1981, Walsh failed to meet Nevins on the route, as had been prearranged. Nevins called in to the office and Browne told him to wait 15 minutes, straighten out the shelves, and take the soda order at the 2 While obtaining information about pay and commission rates from the other drivers, Nevins also asked them if they had ever received a copy of the contract and was told they had not At the time, Nevins did not approach Union Delegate Ted Hutchinson on his visits to the ware- house about he calculations of his pay as driver. 2 Nevins bad been a member of another local of the Teamsters but had taken a withdrawal card. He understood that to become a member of Local 812 he did not have to pay another initiation fee. 4 Nevins still had not seen the union agreement but believed he was receiving less than the contractual rate when working as a helper store where he was-waiting. When Walsh still did not show after 15 minutes , Nevins called in again and this time Browne told him to come in and take the truck out and Nevins did. On Monday, January 5, Nevins reported to the ware- house garage and met Walsh. He and Walsh went up- stairs to Browne's office where they found Browne talk- ing with Business Agent Hutchinson. Browne turned to Walsh, yelled at him that he was fired, and then told Nevins to wait downstairs. After a while, Browne came down a ramp to the floor of the garage and told Nevins that if he wanted to work, he could follow Browne around in his van as his helper. He said that was the only way Nevins was going to work, and he would pay Nevins $40 or $50 a day off the books. Nevins responded he would not follow him around in his van, asked Browne why he could not go on the truck, and asked if there were any complaints from any of the stores. Browne replied no, he just did not want Nevins on his truck anymore. Nevins then refused to work under those conditions and shortly thereafter left the facility. That day, Browne took out the truck Walsh had previ- ously driven and continued to drive it on a route through February 1981, when he hired a new driver to replace Walsh. The new driver, Carlos Martinez, was a nephew of Fidel Perez, who had then referred Martinez to see Browne about a possible opening. - The foregoing recital is Nevins' version of the events relating to his employment relationship and ultimate ter- mination. Browne disputed significant elements of Nevins' story, including Nevins' claim that he had worked for Browne as a helper over a 3- to 4-year period. Browne denied that Nevins ever worked for him as a helper. He swore he did not employ Nevins in that ca- pacity, that he did not direct any of his drivers to do so, and that none of the route driver-salesmen ever asked him for permission to employ Nevins as a helper. Fur- thermore, Browne said his records5 did not show Nevins worked as a relief driver' in 1977. Nevins started working for him as a relief driver in 1978, working 10 weeks in that year, 11 weeks in 1979, and 20 to 21' weeks in 1980, which also included approximately 2 months as driver of the fifth truck. Browne also claimed that he only learned that Nevins was assisting Walsh sometime in -November 1980 when an incident arose on Walsh's route involving what he was informed was Nevins' role in apprehending and beating a purse snatcher, whose act of theft was wit- nessed on the route. At the time he told Walsh not to continue Nevins as his helper because of his explosive nature. According to Browne, when Nevins called him from the route on January 2, he told Nevins he did not even know he was working with Walsh, but if he wanted the day's pay, he could come in and take, the truck out. Browne readily acknowledged employing Nevins as a relief driver at regular union scale and putting him on the fifth truck in October 1980. When Browne discov- 5 None of Respondent's employment records were 'produced at the hearing 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ered the sales record did not warrant continuation of a fifth driver he canceled the fifth truck.6 Browne testified that he visited accounts, trying to get sales. He also did not dispute Nevins' version of their January 2 conversation in which Nevins attributed to him the instructions that Nevins check and straighten out the rack display of soda at the store where Nevins was waiting for Walsh to accompany him as a helper that day. Browne testified he ultimately told Nevins that if he wanted the day's pay, to come in and take the truck out. Nevins received union scale, which included regular pay plus half a holiday pay, for his driving that day. Browne's version of the events of January 5 are as fol- lows. He decided, due to a lack of sales and the fact that every time he went out on the route he did not like what he saw in certain stores on Walsh 's route, he was going to go out to straighten things out himself.' He offered Nevins a position as a union helper because, as he ex- plained it, at his age he was not about to go out there and try to kill himself.8 According to Browne, Nevins said, "No, frig it, if I can't drive, I don't help," and then walked away up the ramp. Ten days later, Browne en- countered Nevins on the route. Nevins said he would like to come back to work. Browne told him he had not died yet and he would still continue to serve the route. Respondent also called Perez as a witness . Perez testi- fied that Nevins never worked for him or on his truck as a helper. Perez acknowledged he saw Nevins from time to time in the garage but asserted Nevins was working then as a driver-salesman. Neither was Perez aware, to his knowledge, that Nevins ever worked as a helper for any of the other drivers.9 Perez also testified to overhearing the exit conversa- tion between Browne and Nevins the morning of Janu- ary 5 . Perez initially recalled that Browne told Nevins, "[I]f you can't go out with me as a helper on- a truck ... if you want to work, you go with me as a helper." Nevins said, "No, I want to go home and left, up the ramp. When asked if he heard Browne tell Nevins he would only get $40 or $50 for the day, Perez initially did 6 Although Browne expressed criticism to Nevins at the time about his lack of abilities as a driver by generating sales and getting along with nu- nority store owners, these views did not foreclose Browne's authorization of Nevins to take out Walsh's truck on January 2, nor had they mflu- enced Browne at any prior time to discontinue Nevins' prior assignments as summer relief driver for the years since 1977 or 1978. Browne also ad- nutted offering of a helper's job to Nevins on January 5, as will be re- counted infra. 4 Although Browne did not testify directly about his termination of Walsh, other evidence, including that relating to the subsequent lawsuit and arbitration proceeding, both instituted on behalf of both Nevins and Walsh, support Nevins' testimony regarding Browne's dismissal of Walsh as a driver on January 5, before his conversation with Nevins 8 On cross-examination, when pressed why he offered Nevins the job, in light of his understanding from information he had received that Nevins had an unstable and explosive nature (Browne had described Nevins as a "time bomb"), Browne responded that he had some questions about what he had been told about Nevins He wanted to find out if it was true or not and then acknowledge that, potentially, this was an ex- pensive way to find out. It should be noted here that Respondent did not assert, in defense of the discharge allegation , that it had terminated Nevins for good cause, but, rather, that Nevins refused to work as a helper, and insisted on being employed as a driver, thereby voluntarily quitting Respondent's employ 9 Perez did confirm Browne's testimony that a helper could only be employed with Browne's approval. not answer directly, but said he did not think this man would do that to anybody-he would not do that, and then denied it was said, to his knowledge. During cross-examination, Perez first noted that Browne and Nevins were talking when he came down the ramp to the floor. Then he immediately corrected that to say that he came down a flight of stairs-consist- ing of maybe 10' steps-connected to the back door of the upstairs office. Later, Perez confirmed that when he came through the office door to the head of the stairs, he saw them talking. Then he said at that point he did not hear them because the conversation was just the begin- ning. He knew it was just beginning because he was fol- lowing Browne down the stairs where Nevins was wait- ing for Browne at the bottom on the garage floor. Still later, Perez corrected his testimony to assert that the conversation between Browne and Nevins did not even start until he got downstairs and that he heard the whole conversation. Perez was also very unclear about what he talked to Browne about in the office just before he fol- lowed Browne downstairs. Perez now repeated the con- versation, but embellished it. Now, Browne said, "[L]ook, it's about time-" and was then interrupted by Nevins who asked "I'm working?" to which Browne re- sponded, "You're working as a helper." Nevins then said, "[N]o, I don't want to work as a helper. If I can't work as a helper [probably intending to say, driver], I'm going home." In a third version Perez later testified he now related that Browne told Nevins, "[Y]ou go with me as a helper," to which Nevins replied, "No, fuck it, if I can't go out as a driver, I might as well go home." Perez now admitted that any conversation held before he heard what he related was "not much." With respect to other matters to which he testified on cross-examination, Perez also proved to be highly susceptible to suggestions made by the General Counsel during cross-examination, as well as testifying in a clearly erroneous fashion. Ini- tially testifying on cross-examination that there were maybe 60 trucks stored in the garage,1° Perez next agreed there were 60 or 70, and finally confirmed, under the General Counsel's leading question, that there were 30 trucks in the Bronx barn, swearing, "That's what I figured. I don't know of too many, you know, not to my knowledge, like I said, you know, but I don't know. I told you." When asked by me if he was thereby chang- ing his earlier testimony, Perez now disclaimed ever counting or knowing how many trucks were stored there. I conclude, on the basis of Perez' evident suggestibil- ity, significant and multiple changes in his recollections of the conversations between Browne and Nevins on January 5, his eagerness to place Browne's conduct in the most favorable light, and the benefit his nephew re- ceived in becoming a Respondent employee on the ter- minations of Walsh and Nevins, that Perez' testimony was not trustworthy and I do not credit Perez in his as- 10 Perez denied, improbably, that the garage was a noisy place when trucks started up and left the garage , one at a time, in the morning He also swore that one truck left the garage every 15 or 20 minutes At that rate, it would take between 8 and 16 hours for all the trucks to leave for their daily runs, an impossible result BAILEY DISTRIBUTORS sertion that he overheard the full conversation between Browne and Nevins." Neither do I credit Perez that Nevins never worked with him as a helper. I do not accept Perez' knowledge, which had to be limited at best, that Nevins did not help Walsh or any of the other drivers on occasion. A more basic conflict exists between Browne and Nevins. Their testimony is diametrically opposed with respect to Respondent's authorization or approval of he]]pers' employment, in particular Nevins' employment, and whether Browne conditioned Nevins' employment as hellper on January 5, 1981, on his working off the books for a limited, direct cash payment. In my view, the aspect of Browne's testimony which I find most significant in resolving this conflict is that re- lated to the offer he made Nevins on January 5. Browne said this was an offer of employment as a "union" helper. Browne also confirmed that, as the contract specifies, it is the employer who must authorize the em- ployment of a helper, and it is the employer who then deals with the Union by providing the union with the opportunity of supplying a suitable applicant. Browne never testified that he provided notice or sought union approval for Nevins' employment as a helper on January 5. With Browne's knowledge of the contractual require- ment, he would have been required to do so. Yet no evi- dence was offered to show that this had been done, either from Browne himself or from a union representa- tive.12 In fact, Browne admitted on cross-examination that he did not call the Union to put Nevins on for Janu- ary 5. Thus, Nevins' employment had not been cleared. I also conclude that Browne's use of the phrase "union" helper strongly suggests that there was another category of helper known to him, those employed without notice to the Union and without application to them of the terms and conditions of employment embodied in the union contract,; 3 Browne's long-term relationship with the Union had included a tacit arrangement whereby drivers who could do so would deliver in excess of 150 cases per day without employing the services of a helper and without sacrificing the extra bonus paid above normal commission for such extra effort. Furthermore, Browne's explanation of his offer to Nevins, given the question he had about Nevins' performance, based on re- ports he had received, convinces me that although he i I The limited conversation, which Perez claimed he overheard, par- ticularly the first and third versions, is not inconsistent with an exchange of words immediately preceding them in which Browne would have in- formed Nevins the conditions and manner in which he would be em- ployed as helper, which Nevins rejected. Hutchinson was not called to testify. Browne's understanding of the importance of the union obligations and union-security agreement, even if satisfied at the expense of the em- ployee involved and when it suited the purposes of both parties, was un- derlined in his testimony when he said he assigned Nevins to the fifth truck and he voluntarily, and without Nevins' request, paid Nevins ' initi- ation fee, his first 3 months' dues, and an assessment Yet, Nevins could only produce a union work card not issued to him until March 1981, aftei his employment by Respondent terminated In a February 3, 1981 letter Nevins referred to the Union protesting his discharge and under- payments, and noting that he had filled out a union application as early as the summer of 1978, but was only "entered" since August 1980 but with- out paying employee contributions toward various fringe benefits and benefit plants 111 may have had very limited reservations about Nevins' in- dependent handling of the route as a regular driver, he was willing to overcome it and employ Nevins as his own helper so long as he could do so without incurring extensive contractual obligations about salary and other fringe benefits. In contrast to Browne's confusion and hesitancy about his offer to Nevins on January 5, and the absence of any union contact regarding his intention to employ Nevins that date, and the timing of his prior request to Walsh not to employ Nevins as a helper, Nevins testified in a relatively straightforward manner. Given his prior re- moval from the fifth truck and his evident concern about medical coverage and union membership, and Browne's sensitivity to union membership in other circumstances, I find eminently reasonable Nevins' testimony that when offered a job as helper "off the books," he forthrightly rejected such a position. I credit Nevins that the offer was made and rejected as he related it. I further credit Nevins that Browne first offered Nevins employment "off the books" as early as 1977 and continued to employ him to aid those drivers, particularly Figueroa and later Walsh, who sought his assistance as a helper, always re- taining ultimate authority to direct the manner of his job performance, exercising such authority primarily through his-direct supervision of the relations of his driver and helper with the store owners of their routes, and the manner in which the soda he distributed was stacked, displayed, and sold.14 C. Events Subsequent to the Termination of Walsh and Nevins 1. Commencement of Federal suit against Respondent and Union and its resolution On January 23, 1981, Browne' wrote Hutchinson ex- plaining that he terminated Walsh on January 2 "and re- placed him with another union driver" because of Walsh's habitual absences without notice, culminating in his failure to report or call in on January 2.15 On Febru- ary 3, Walsh and Nevins each wrote letters to Local 812. Walsh complained that his dismissal was unfair because he had been ill on January 2 and unable to contact his Employer. Walsh also complained that for the past 5 years he had never been 'paid bonus cases for products delivered to two stores, that he was not the only em- ployee Browne did this to, and that he did not complain for fear he would lose his job. Nevins complained he was dismissed unjustly on January 5 after 3 years of faithful service and sought reinstatement to his position as a relief driver and helper and backpay for the time he was a helper. He explained he had filled out a union ap- plication in the summer of 1978 but had only been en- tered since August 1980 and, to his knowledge, had re- 14 Brown's own testimony as to his January 2 telephone instructions to Nevins, who was then calling from one of the stores on Walsh's route is quite revealing in this regard. rs This letter was apparently in response to Hutchinson's complaint, either voiced on January 5 in person or at some later time. There is no record of any similar letter to the Union explaining Nevins' separation on January 5 It is probable that Nevins did not complain to the Union until his February letter, see infra. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceived no money toward any benefits to which he may be entitled. Copies of these letters were noted as for- warded to the International Teamsters headquarters, the New York State Labor Board, and the National Labor Relations Board.16 On February 13 Union President D. Levinger wrote Arbitrator Silverman separate letters on behalf of Walsh and Nevins, requesting arbitration hearings for each, the issues to be arbitrated being their respective dismissals by the Company, asserting them to be improper , and their demands for reinstatement with full backpay . Copies of the respective letters were forwarded to Union Attorney Sidney Fox and the grievant . No action to convene re- spective hearings were taken by the arbitrator until May 5, after Nevins filed a charge against Respondent17 on April 27, 1981, which triggered the instant complaint. On May 14 Nevins and Walsh commenced suit against the Union and Respondent in the U .S. District Court for the Southern District New York, 81 Civil Action No. 2941. The main claims asserted against Respondent were that Walsh, as driver, and Nevins, as driver and helper, were paid less than required by the applicable collective- bargaining agreements and were each terminated on Jan- uary 5 in violation of the agreements. For Nevins, dam- ages of $80,000 were sought, including $10,000 for his wrongful termination . The claims against the Union were that it had refused plaintiffs' requests for copies of the agreements and, although in possession of the facts, had made no effort to discontinue the breaches of the agree- ments alleged against the Respondent since January 1, 1975, causing Nevins alone to sustain damages of $80,000. Respondent answered the complaint under the date of June 14, denying any breaches of the agreements. The Union's answer, dated June 16, denied breaches of its duty toward the plaintiffs and asserted , inter alia, as af- firmative defenses, that the court lacked jurisdiction of the subject matter, and the plaintiffs failed to exhaust in- ternal union remedies and available contractual remedies. On the same date, the Union prepared and served a notice of motion to dismiss the complaint for summary judgment. The Union's motion papers included copies of the arbi- trator's May 5 letters to the parties and forms concerning both grievants, scheduling arbitration hearings for Walsh and Nevins on May 21 , as well as a May 14 letter from their attorney, McDonough, to Respondent Attorney Allan Stern, advising that he represented Nevins and Walsh. The letter said they would not be participating in or, attending any arbitration scheduled by Local 812. On May 21 the Respondent and union representatives appeared before the arbitrator , and he was provided with a copy of , McDonough's letter and the matter was ad- journed. At a hearing held before Federal District Court Judge Mary Johnson Lowe on July 20, 1981, in the Federal suit, Judge, Lowe learned that Nevins and Walsh had 26 It appears likely that by February, Walsh and Nevins had already retained counsel, Thomas McDonough Jr, Esq ., to pursue their claims and that he prepared these letters on their behalf 17 A separate charge filed simultaneously against Local 812 was subse- quently withdrawn by Nevins been supplied copies of the collective -bargaining agree- ment (and copies had been attached to the Union's motion). She advised McDonough that she was prepared to grant the Union's motion to dismiss because the plain- tiffs had not exhausted the grievance procedure, and in fact had aborted it by refusing to participate . Because of this the court had no jurisdiction over the action. On the record, Union Counsel Fox affirmed the Union's readi- ness to proceed to arbitration and Respondent Counsel Stern stated the Employer had no objection. McDon- ough continued to express some reluctance to participate, noting possible prejudice to the pending NLRB charges his client had filed" and voicing skepticism that all the issues raised in the Federal suit would be pursued before the arbitrator. Here McDonough referred to the Union's letters to the arbitrator which raised only Walsh's and Nevins' dismissals and did not refer to the other claims each had raised, including claims of failure to pay bonus cases to Walsh and provide contract coverage as helper to Nevins. In response to these misgivings, Judge Lowe directed Union Counsel Fox to bring up each and every complaint he had or thought he had in the arbitration proceeding then pending . She noted that the arbitrator's determination under his primary jurisdiction would be subject to judicial review if, as McDonough feared, his clients did not get a fair shake from the Union and Em- ployer in the arbitration. Fox responded by stating that an arbitration, could be set up raising all these issues and any other issues he (McDonough, on behalf of his cli- ents) could bring up.19 When the colloquy then turned to reinitiating the arbi- tration proceedings, Fox offered to permit McDonough to conduct the arbitration for his clients and frame what- ever issues he wanted to , without fee from the Union, with Fox attending solely to see that none of the condi- tions set up by the Union would be hurt in the arbitra- tion. The judge then posed for McDonough whether he was willing to waive the Union's initial obligation to rep- resent his clients and represent them directly. McDon- ough then declined to waive the employees' rights and stated he wanted to have the Union to represent them, at least for the purposes of the arbitration . Fox agreed and the judge then noted, with Fox's approval, that McDon- ough could attend the arbitration as an observer. Judge Lowe thereupon stated that the action would be dismissed for reasons stated on the record . In a memo- randum order signed and dated the same date, July 20, after stating that the first issue had been rendered moot because plaintiffs had received a copy of the agreement, and that the court had no jurisidiction over' the action because plaintiffs had not exhausted the grievance proce- dure, Judge Lowe noted that plaintiffs and defendants had agreed to reinstate arbitration proceedings during which plaintiffs may raise any and ' all issues relevant to their claim of arbitrary treatment. By letter to the arbitrator dated July 20, Fox requested that a hearing be held to adjudicate a grievance of an al- 18 In fact, the instant complaint m"Nevins ' case had already issued on June 11. 19 As will be seen, infra, not all the issues raised by McDonough in the Federal action were presented for determination by the arbitrator. BAILEY DISTRIBUTORS 113 leged dismissal of Nevms and any other alleged viola- tions by the Employer. Hearing on the Walsh and Nevins arbitrations was re- scheduled by the arbitrator for a date in September 1981. About a week or so prior to the arbitration , McDonough and Fox held a telephone conversation . McDonough suggested that Fox engage in discovery in preparation for the arbitration. Fox said insofar as arbitrations are concerned there is no procedure for discovery. McDon- ough then sought to confirm that the would be present at the scheduled hearing, and Fox indicated to McDon- ough that he could not be present. The discussion got heated as the disagreement over McDonough 's presence continued, with McDonough attempting to remind Fox of his statement made on the record before Judge Lowe in chambers and Fox denying any such agreement. At this point, McDonough called Fox a crook and Fox hung up. Fox then reviewed the minutes of the Federal action and , by letter to McDonough dated September 3, acknowledged his commitment before Judge Lowe and withdrew any objections he previously stated to McDon- ough that he could not attend as an observer . In the last paragraph Fox wrote : "In view of your statement to me on the telephone, I do not want you to talk to me when we meet." 2. The arbitration proceeding and award According to Fox, he spoke to Nevins in his office sometime in September 1981 to prepare for Nevins' arbi- tration. The conversation lasted about an hour to an hour and a half. Among other things, they discussed Nevins' claim concerning his termination and backpay issues. He also conferred with Nevins immediately before and during the arbitration .20 Neither Fox nor any other participant requested that an official transcript be made of the proceeding. It was not the customary practice and was not utilized here, even though, as Fox acknowledged, he was aware an NLRB complaint had issued on behalf of Nevms in June, and he requested and received from Stem a -copy of the complaint before the arbitration commenced. Fox stated the claims he asserted on Nevins ' behalf at the arbitration were that Nevins had been paid below rate for periods of time he worked in helping out Walsh, Nevins was discharged improperly by Browne, and Nevins should be taken on as a driver . In an opening statement on behalf of Walsh, Fox sought his reinstate- ment to driver after his improper discharge , compensa- tion for commissions, reimbursement for money deducted from his wages, and reimbursement for money he had to pay a helper with the knowledge and consent of Browne. Yet, Fox was unclear whether Nevins ever 20 Nevins was not asked specifically if he met with Fox prior to the arbitration He denied having the opportunity on the day of hearing of conferring with Fox or that he spoke to Fox about the nature of his testi- mony In view of the testimony at the hearing , to be discussed, infra, I remain skeptical that Fox had any prior or continuing discussion with Nevins or that, if he did, he explored with Nevins all the facts relevant to his claims, including the facts relevant to his claim of status as a regular Respondent helper over a 3-year period , as well as the conditions Browne imposed on his agreement as a helper on January 5. As will be seen, infra, Fox did not raise or press the unfair labor practice issue before the arbitrator complained to him about being paid off the books by Walsh. Fox testified the Union was not seeking Nevins' reinstatement as a helper , only as a driver. According to Fox, he had become aware, from his discussion with Nevins in his office prior to the hearing, of Nevins having taken out Walsh's truck at Browne's direction on January 2 after Walsh did not appear and then having re- jected the offer of a job as a helper on January 5 when Browne discharged him. It was also Fox 's recollection that he had also learned from Nevins that he told Browne on January 5 that he would continue to work for Browne as a driver. As far as Nevins' past,-employ- ment as a helper helping Walsh and other drivers, Fox said he became aware of Nevins' arrangement with the drivers but, in responding to a question posed about what he knew of Nevins' work as a helper, Fox ap- peared hesitant to assert an employment relationship be- tween Browne and Nevins, arising from Nevins helping Walsh on the route off the books 21 At one point in his testimony, Fox stated his assump- tion that Nevins would have, worked on January 5 as a helper at union scale. Fox also testified that Nevins had previously complained to Browne and,-again at the arbi- tration, that he should have been paid union rates prior to Walsh's discharge. Yet, Fox did not show any aware- ness of the allegation which constitutes the heart of Nevins' claim in the instant proceeding, that Browne re- fused to offer Nevins the union terms and conditions as helper on January 5 and that this was the motivating factor for Nevins' rejection of the helper offer. The end result was that Foci did not argue to the arbi- trator that Nevins refused to work as a helper because Browne would not pay him union scale.22 And, as al- ready noted, Fox did not seek Nevins' reinstatement to his prior status as a helper with full union coverage. The Union, through Fox, sought reinstatement of both Walsh and Nevins to a job as driver for Respondent.' On the claim for backpay for Nevins, Fox recalled that Nevins at the arbitration asserted that Browne knew he was a helper because he, Walsh , and Browne knew each other. Based on Nevins' testimony regarding the work he performed for Walsh , Fox argued to the arbitra- tor that Browne knew or should have known that he was a helper. Fox was the only participant in the arbitration who testified at any length about the proceeding, the testimo- ny offered, and the claims and arguments made. Fox's testimony bears no support that Nevins testified at all about the facts relating to his employment relationship with Browne; his interview, his hiring, and his directions 21 The Union's ambivalence regarding whether Nevins had an employ- ment relationship with Browne as a helper appears to conflict with its claim for backpay Another anomaly ' relates to the Union 's pursuit of backpay and reinstatement as a driver for an employee, who according to Fox, was not on the Employer's seniority list in any capacity when the discharge occurred Yet, also according to Fox , an employee who com- pletes a 30-day probationary period, either as driver or helper, is placed automatically on the seniority list. - 22 Neither did Fox contend , as alleged in the complaint, that Nevins had been denied his Sec 7 rights under the Act by being denied the con- tractual terms and conditions of employment, nor that Browne had un- lawfully discouraged him from joining Local 812 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in his daily work in the manner of the display of the soda at the stores; the issuance to him of an identifying uniform shirt and jacket; the reporting to the garage most mornings; and reassignments from Figueroa to Walsh and to other drivers from time to time. Fox did recall something vaguely about Nevins being supplied a uniform, but failed to recall Browne's response if he had, indeed, asked Browne any questions about the matter. It was also apparently Fox's understanding that Nevins had not reported daily but had invariably met Walsh on the route. In terms of procedure , the two arbitrations were held consecutively; Respondent presenting its case first and Browne testifying in September about his actions regard- ing Walsh. He was then cross-examined by Fox. Before another driver was called as a witness by Respondent on Walsh's case, Fox sought and received an adjournment till December. Walsh's arbitration then continued and was completed on December 8. Nevins' arbitration was held with Browne, another driver, and then Nevins testi- fied. During presentation of the other's case, the nonpar- ticipant was excused from the hearing room. Neither tes- tified for the other. At the initial hearing in September, McDonough had no discussion with Fox about the manner of presentation of the cases and did not participate in a prehearing con- ference. When McDonough was observed taking notes after the hearing opened, Fox called a recess and advised McDonough that he would not continue with the arbi- tration if the note taking continued'23 stating his belief that the notes were in preparation for a lawsuit . McDon- ough's note taking thereupon ceased and the arbitration continued. In a subsequent September 25 letter to Fox, following the September adjournment , McDonough stated he understood Fox's objection to his note taking, although it became apparent to him within 5 minutes of the commencement of the arbitration that Fox was han- dling the matter in an extremely competent and profes- sional manner. McDonough added that any notes would have been used against the Employer if it became neces- sary, referring to the outstanding complaint before the NLRB. McDonough concluded by lauding Fox's han- dling' of the matter. McDonough's letter to Fox predates Nevins' Decem- ber 8 arbitration by 2-1/2 months. Mention should be made of the manner in which the Union presented Nevins' case on December 8. Fox testified that he fol- lowed his usual practice in presenting the grievant's case of asking a general question about what his claim was, and the grievant proceeds to tell what his entire claim is and whatever point he wants to raise, he raises. At the conclusion of the grievant's presentation, he is asked if he has anything else to say.24 After the grievant tells the story, if there are certain things brought out by the em- , I 22 Fox , did not recall whether Union Agent Hutchinson offered to throw McDonough out of the hearing room if he continued to take notes Nonetheless, I conclude that Fox's rigidity was expressed in har- mony with the views of his client 24 Fox testified Nevins may have responded that he wanted his job back ployer, Fox will go into that.25 Thus, Fox did not direct Nevins into specific areas of inquiry by asking any par- ticular questions. 26 Neither did Fox seek to frame any issues as such, other than a statement of the breaches claimed and relief sought, in his opening statement at the September session . In Fox's view, the issues were framed as the parties went along by what they put in the record. In the award in the Nevins case,27 a four-page docu- ment which issued February 5, 1982, Arbitrator Silver- man characterized Nevins as an itinerant driver and helper. He then stated the two union claims made on Nevins' behalf. He next proceeded to summarize the credible evidence, referring first to Nevins' work as a va- cation fill-in driver and this assignment to and then re- moval from the fifth truck, when Browne discontinued its operations due to insufficient sales. The arbitrator next related the events of January 2, but not those of January 5. The award next turned to Nevins' testimony that com- mencing in 1975, he worked continuously for the Em- ployer as a helper when he was not driving for him or another distributor. The award continued that Nevins stated that when he worked as a helper, he met the driver on the route and was paid "off the books" in cash by the driver. The arbitrator reported that Nevins never discussed his pay or terms or conditions of employment with the Union and acknowledged he was never co- erced, restrained, or interfered with in the exercise of his union activities. The arbitrator stated the Employer denied that he had never employed Nevins as a helper. A witness for the Employer (not identified but probably Perez) stated that Nevins never worked for Browne as a helper. The award next reviewed Nevins' testimony regarding deductions from his pay as a result of his shortages when employed as a driver. The arbitrator then concluded, concerning the Union's request for reinstatement, that as Nevins' regular employ- ment as a driver was tied to the use of a fifth truck, when that truck was eliminated , Nevins' position was eliminated. Concerning the backpay claim, the arbitrator finds that Nevins did not work for the Employer as a helper "particularly in view of his testmony that cash payments were made to him by the drivers and not by Browne." After referring again to Nevins' failure to question the Union about the rate of pay or any other term or conditions of employment, and noting that sales receipt shortages were reasonable deductions by the Em- ployer and all other payments to Nevins were at proper rates, the arbitrator denied the union grievances seeking his reinstatement and backpay. IV. ANALYSIS Having credited Nevins that he was hired, assigned, reassigned, provided a uniform, and generally supervised 25 Fox stated there were questions Stern posed to Nevins after telling his story. The record is unclear whether Fox made any further inquiry of Nevins 26 It bears noting that Nevins had only a ninth grade education 27 The record does not contain any reference to the outcome of the Walsh arbitration BAILEY DISTRIBUTORS by Browne in the performance of his duties as a helper assisting a Respondent driver-salesman in delivering soda to and servicing customers on his route,28 I conclude that Nevins was an employee of Respondent entitled to the protections of the Act. Under the traditional test ap- plied to determine employee status, as against that of an independent contractor, when the one for whom the services are performed retains the right to control the manner and means by which the result is to be accom- plished, the relationship is one of employment.29 Apply- ing every one of the factors at which the Board has looked in making this determination, Nevins must be deemed an employee. Thus, he has no special skills which are required in his work and does not practice a distinct occupation. All tools and equipment, including a truck, cases, a customer list, display boards, and the like, as well as the place to which Nevins reported to com- mence his daily work, were supplied by Browne. Nevins' sole services were performed in assistance with a driver working Respondent's route and on Respondent's behalf. Nevins had performed the same work for Browne over a 3- to 4- year period, and Nevins' income was related to the amount of sales his driver, using the truck from which both operated, was able to achieve, even though not directly transmitted to him by Browne. Most signifi- cantly, Browne controlled the manner and means by which the sales were accomplished, through the device of his overseeing the operation from his office and the garage, from which place the trucks went out each day, and his periodic visits to customer locations to check on displays, soda racks, deliveries, and records comprising the sales made to each customer over given periods of time.3 ° With respect to this issue, Respondent never directly claimed that Nevins was an independent contractor but only that Browne was never aware of his employment, if any, by the drivers, thus leaving the implication that the individual driver is the employer of his' helper or, at least, the sole entity with whom Nevins independently "engaged in business." Yet, in the cases which have dealt, at least peripherally, and in some degree, directly, with the claim, the conclusion has been uniform that the salesmen drivers are themselves employees who only, routinely direct the helpers, who also are employees of the enterprise, retaining the services of both.31 21' Respondent's counsel notes that those benefits were provided with- out indicating whether they were based on Nevins' employment history as driver or helper It is likely that, based on the timing of Nevins' appli- cation, as well as the past regularity of his employment as helper, con- trasted to the irregular and limited history of his employment as driver, which would have provided a very doubtful basis for `such benefits, Nevins' application was grounded on his employment as helper by Re- spondent Given this inference, which I find reasonable to draw, it was up to Respondent to clarify that its failure to question Nevins' application was based on a belief that the benefits related to Nevins' limited work history as relief and fifth dnver 22 Young & Rubicam International, 226 NLRB 1271 (1976); News Syn- dicate Co, 164 NLRB 422 (1967) 30 When Browne told Walsh around November 1980 to get rid of Nevins because of concern about reports of his explosive nature, Browne was exercising the very control over the manner of Nevins' work per- formance which Respondent has consistently denied it possessed. 31 See Brewery Workers Local 366 e NLRB, 298 F.2d 297, 304 (D C. Cir 1961), cert denied 369 U.S. 843 (1962), enfg 127 NLRB 850 (1960); Welds Dairies Cooperative, 109 NLRB 1450, 1451 (1954) 115 Browne's enjoyment of the fruits of Nevins' services, at least since October 29, 1980, a date within the 10(b) period, without applying to him the terms and conditions of employment contained in the collective-bargaining agreement between it and Local 812, constitutes an inde- pendent violation of Section 8(a)(I) and (3) of the Act. Clearly, that agreement covered helpers employed in the delivery of soda by truck to Respondent's customers. Those terms and conditions of employment were not ap- plied to Nevins because Respondent had authorized and countenanced his employment on a regular basis "off the books" without notice to the Union and without Nevins ever having achieved membership in the Union.3-2 So long as Nevins had not achieved membership status, he was not recognized under the agreement as a helper enti- tled to seniority and all its other benefits. It is clear that Browne's intention was to permit Nevins to remain buried in his nonunion status, deprived of his contractual rights for as long as Browne could get away with it. Whether through inertia or a conspiracy of silence with the Employer, with the intention of avoiding problems which could add to the Employer's cost of doing busi- ness, the Union never insisted, prior to February 1981, on Browne's compliance with the agreement by applying its terms to Nevins.33 In any' event, the Employer, thus failed to comply with its obligations under the Act of ap- plying the terms of the contract equally to all employees, whether union members or not. By so doing, Respondent unlawfully favored union members to the detriment of nonunion member employees like Nevins, in violation of Section 8(a)(1),34 restrained Nevins in his right to refrain from becoming a union member under Section 8(a)(1),, and discriminated against Nevins in his terms and condi- tions of employment in a manner tending to encourage membership in- a labor organization in violation of Sec- tion 8(a)(3) and (1) of the Act.3a Having also credited Nevins that he rejected Browne's offer of, employment as a helper on January 5, 1981, be- cause the offer was conditioned on Nevins receiving $40 or $50 a,day off the books, I conclude that by this con- duct, Respondent thereby violated Section 8(a)(3) and (1) of the Act. 32 Even if Browne had in fact made initiation and dues payments to the Union for Nevins in the fall of 4980, these related to his status while driving the fifth truck and were never applied or related to his employ- ment as helper which, in spite of Browne's direction to Walsh, continued until January 5, 1981 In any event, Nevins never even received a union work card from Local 812 until March 1981, well after his termination by Respondent as It is probable that Hutchinson was aware of the Employer's practice of hiding Nevins But, I need not decide that. It is also apparent that the practice of not applying the contract terms to Nevins is consistent with the parties' practice of waiving the requirement of employing a, helper beyond 150 cases where only a nonemployed helper was likely to raise the issue. 34 Because a legal conclusion that the Employer also thereby rendered illegal assistance to the Union would provide no greater relief under the Act, and in view of the failure of the General Counsel to join the t7nion, as a party to the contract, as required by Sec. 102.8 of the Board's Rules and Regulations, I deem it unnecessary to rule on the 8(a)(2) allegation. See Parker Bros & Co , 101 NLRB 872 (1952). 35 See Schorr Stern Food Corp., 227 NLRB 1650 (1977). Respondent's attempt to distinguish this case is rejected because of my conclusion that Browne's failure and refusal to apply the contract to Nevins was directly related to Nevins' nonunion status 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As already noted and reiterated, Respondent's labor agreement with Local 812 covered helpers employed to assist drivers in making soda deliveries to customers' premises. Browne's offer of a job accompained, by the option of working without benefit of the terms and con- ditions of employment embodied in the union contract, left Nevins with the unenviable choice of quitting and re- fusing employment or working without Local 812 repre- senting him and without enjoying the salary, fringes, and other protections provided by the contract-31 An em- ployee faced with such a choice may freely choose to refuse to work under such conditions without forfeiting his right to assert that the employer's conduct was the proximate cause of his nonemployment and incurring the loss of those rights to bargain collectively through a rep- resentative of his own choosing protected by Section 7 of the Act. The rejection of such an offer by an employ- ee thus places the employer proffering it, in this case Re- spondent, in the position of having forced the employee's abandonment of his Section 7 rights and thereby having constructively discharged the employee, in this case Nevins, in violation of Section 8(a)(3) and (1) of the Act.37 As noted, Respondent defended itself against the 8(a)(3) and (1) discriminatory discharge allegation by as- serting that Nevins voluntarily rejected employment on January 5 as a helper, insisting that he would only work as a driver. The General Counsel seeks Nevins' reinstate- ment to his prior employment as helper and relief driver. Having concluded that Nevins did not voluntarily quit or reject an- offer of employment, but was, rather, left with no choice but to do so if he was to retain his rights under the Act, I find no occasion, contrary to the urging in Respondent's brief, to apply the standard in dual- motive cases for allocating the burden of proof or of coming forward with evidence enunciated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). I also have no hesitancy in concluding that Browne's discriminatory offer was one of indefinite duration as a helper, continuing Nevins in the same status he had here- tofore had with drivers Figueroa and Walsh, outside the unit or contract coverage. Respondent asserts that, regardless of the merits of the case, it should be deferred to the arbitration award ren- dered with regard to Nevins. As the arbitrator deter- mined, after reviewing the facts, that Nevins did not work for the Employer as a helper, the standard for Board deferral enunciated in Suburban Motor Freight, 247 NLRB 146 (1980), had been met in that the award bears the "indications" that the issues crucial to the statutory questions were determined. 36 For this reason, the calculations contained in Respondent 's brief, at- tempting to equate the $40 or $50 a day with the union rate for helpers, misses the point of unit inclusion and coverage under the agreement, aside from failing to acknowledge all the problems, such as those related to Federal income taxation, social security deductions and coverage, workmen's compensation , and disability insurance coverage which arose from working "off the books " 37 NLRB v Tricor Products, 636 F.2d 266 (10th Or. 1980), enfg 239 NLRB 65 (1979), Redlands Christian Migrant Assn, 250 NLRB 134 (1980); Fairmont Foods Co., 245 NLRB 915 (1979), Superior Sprinkler, .Inc., 227 NLRB 204 (1976) In Spielberg Mfg. Co., 112 NLRB 1080 (1955), 'the Board set forth the criteria for deferral to arbitration awards. Deferral is improper unless the following condi- tions are met: (1) the proceedings are shown to have been fair and regular; (2) all parties agreed to be bound; and (3) the arbitration decision is not repugnant to the purposes and policies of the Act. In Suburban Motor Freight, supra,38 the Board reinstated" a fourth standard that it will not honor the results of an arbitration pro- ceeding unless the unfair labor practice issue involved was both presented to and considered by the arbitrator. Applying that standard to the facts with reference to Nevins' arbitration, I conclude that the Union did not present the unfair labor practice issue relating to Nevins' discriminatory denial of employment on January 5, and that the award neither considered nor passed upon the issue. As my summary of the facts relating to the arbitration hearing makes clear, Union Counsel Fox did not seek to litigate the complaint allegation that Browne conditioned his employment of Nevins as helper on Nevins' relin- quishment of his right to contract coverage and benefits. Fox limited his presentation regarding termination to a claim of contractual breach arising from Browne's refus- al to employ Nevins as a driver. The record bears no in- dication whatsoever that the facts relating to Browne's January 5 conversation with Nevins was presented for the arbitrator's consideration. Fox did not specifically identify the confrontation between the two as having been adduced during Nevins' telling of his story or as having been developed in his cross-examination of Browne. The award itself never refers to the incidents of Jauary 5, limiting its chronological summary of the facts to the period from 1977 to 1980, and then briefly re- counting Nevins' assignment as driver on January 2, 1981. Even in his determination of the Union's claim for reinstatement as a regular driver, all the arbitrator's ref- erences are to the period in the fall of 1980 when Browne first employed, and then terminated, the fifth truck. Without hearing or considering the nature of Brown's offer of employment on January 5, 1981, the arbitrator was in no position to judge whether Browne had either unlawfully or improperly dealt with Nevins as a helper, not as a driver.40 In this connection, the arbi- trator's apparently gratuitous statement that Nevins ac- knowledged that he was never coerced, restrained, or interfered with in the exercise of his union activities, a statement repeated in a conclusionary paragraph of the award, does not show that the award dealt at all with the statutory issue.4 t 38 See also Air Reduction Co, 195 NLRB 676 (1972); and Raytheon Co., 140 NLRB 883 (1963) 39 Reversing Electronic Reproduction Service Corp., 213 NLRB 758 (1974) 40 Although Fox's explanation that he presented whatever claims Nevins wanted to assert and that Nevins did not assert a claim to rein- statement as helper may help explain the failure to present the unfair labor practice issue, it does not explain the failure to adduce the facts about Browne's offer of a helper's job, when the employer had asserted he had never employed Nevins as a helper, in rejecting Nevin's claim for backpay The January 5 offer would have served to undercut Browne's denial of knowledge of Nevins' past services for his drivers. 41 See Professional Porter Co, 263 NLRB 136 at 137 (1982) BAILEY DISTRIBUTORS 117 Turning to whether the arbitrator dealt with the al- leged unfair labor practice of Respondent's discrimina- torily limiting contract coverage and benefits to union members only, to the exclusion of and detriment to Nevins, I likewise conclude that the arbitrator did not deal with this statutory issue. Based on Fox's testimony, and in the absence of any minutes of the proceeding, the record fails to establish42 that the parties presented or the arbitrator considered the statutory allegation. As Fox himself acknowledged, Nevins' testimony was not direct- ed to any, much less specific, areas of inquiry. As a con- sequence, the instant record does not contain any show- ing that the- arbitrator was presented with the facts relat- ing to Nevins' initial employment, reassignments, issu- ance of uniform, Browne's regular direct supervision of the delivery and sales process, and direct knowledge of and acquiescence in the arrangement whereby Nevins was paid directly by the drivers out of moneys just re- ceived by them as commissions. The arbitrator limited his consideration of Nevins' helper status to his claim he worked continuously as a helper when not driving, meet- ing the driver on route, and being paid in cash "off the books" by ' the driver, Browne's denial that he had ever employed Nevins as a helper, and an unidentified wit- ness' statement that Nevins never worked for Browne as a helper. Furthermore, the arbitration proceeding does not contain any indication that the arbitrator was pre- sented with or considered Nevins' claims to his Employ- er of seeking union membership or medical coverage while working as a helper. Thus, there was no occasion for the arbitrator to deal with Respondent's motive in denying contract benefits to Nevins. Finally, the arbitra- tor relied solely on the direct cash payments to Nevins by the drivers and not Browne in concluding that Nevins did not work for the Employer as a helper. 43 As previ- ously noted, the failure to present the facts relating to the Browne-Nevins interchange of January 5 also re- moved another relevant area of consideration from the arbitrator. Only by having been presented for consider- ation the totality of Respondent's conduct could the arbi- trator be in the proper position to judge whether Nevins' past services were performed within the unit covered by Respondent's collective-bargaining agreement and thus resolve the statutory issue of Nevins' exclusion from both union membership and the unit and the relationship between the two. Accordingly, even if it could be said that the arbitrator's ruling on Nevins' employee status re- solved the separate 8(a)(1), (2), and (3) issues relating to the denial of past contract coverage and benefits to 42 The burden of proving that the issue of discrimination was litigated beibre the arbitrator is on the party seeking Board deferral-here, the Respondent. Suburban Motor Freight, supra, 43 This fact alone warrants the conclusion that the arbitrator was not presented with the facts relevant to a determination of the employee status of Nevins as a necessary predicate to resolving the statutory issue or, at the least, that he decided the question of employee status without the full ramification of the relationship of that determination to Nevins' nonunion status and the statutory claim that his noncontract coverage is directly related to that status. Thus, the reasoning of the Board in Pmpoco Inc., supra, in rejecting Member Hunter's view that Suburban Motor Freight requirements are satisfied whenever the contractual and unfair labor practice issues are factually parallel and the arbitrator was present- ed generally with the facts relevant to resolving the unfair labor practice issue. Id. at p. 137 is relevant here Nevins, it would be inappropriate to defer that issue alone, since, as the Board has noted, when only part of the dispute can be disposed of in arbitration, there is far less compelling reason for not permitting the entire dis- pute to be resolved in a single proceeding under the Act.44 Apart from the foregoing, I also conclude that there is serious question whether the arbitration proceeding was conducted fairly and, for this reason as well, I will rec- ommend that the Board not defer to the award. Because of the confluence of several factors relating to the rela- tionship between the parties, as well as the nature of the relief sought and conduct of the arbitration, I would not, in the exercise of appropriate discretion, permit a pro- ceeding raising these doubts about its fairness to supplant the full protection of Nevins' rights under the Act ac- corded in the instant proceeding.45 These factors are: (1) The Federal action brought by Nevins and Walsh against the Respondent and Union, and the fears, expressed by Fox, that McDonough's note taking would be used in re- instating the action on the basis, acknowledged by Judge Lowe, that the grievants did not receive a fair hearing of their grievances; (2) ; the hostility and animosity evi- denced between McDough and Fox, which resulted in McDough's nonparticipation in consultations held at and prior to the resumed arbitration on December 8, 1980, and McDonough's forced discontinuance of note taking; (3) Nevins' nonunion status at the time of the arbitration, coupled with- the contract provision requiring member- ship as a condition of union processing of a grievance to arbitration; (4) the 3-month delay in scheduling the arbi- tration until after Nevins' charge was filed; (5) the limit- ed preparation of Nevins for the arbitration and the lack of direction he received in testifying before the arbitra- tor; (6) the Union's failure to seek Nevins' reinstatement to his prior position as helper and relief driver, in light of those claims having been asserted by Nevins in the in- stant proceeding; (7) the Union's contention in the, paral- lel arbitration that both Walsh and Nevins were entitled to reinstatement as drivers when it was apparent that Re- spondent regularly employed only four drivers and thus both grievants would be seeking a single position,'which might only' materialize when and if Browne ceased driv- ing the fourth truck; and (8) the Union's tacit waiver of the contract clause requiring the hire of a helper when a driver loads more than 105 cases. Considered in isolation, some of these factors might not warrant the conclusion I reach; taken together, they are sufficient, in my considered judgment, to cast serious doubt whether Nevins' and the Union's interest were fully aligned and case doubt on the fairness of the pro- ceeding.46 44 See Sheet Metal Workers Local 17 (George Koch), 199 NLRB 166 (1972) 41 See Sabine Towing Co, 224 NLRB 941 (1976) 46 See Mason & Dixon Lines, 237 NLRB 6 fn 2 (1978); Sabine Towing Co., supra; NLRB v Longshoremen ILA Local 27, 514 F 2d 1481 (9th 1975), enfg. 205 NLRB 1141 (1973), Marin Dodge, 206 NLRB 370 (1973) 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE EFFECT OF THE UNFAIR LABOR PRACTICES CONCLUSIONS OF LAW UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent, described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. VI. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative actions necessary to effectuate the policies of the Act. Specifically, regarding Respondent's denial of union con- tract coverage and representation to Nevins, I shall rec- ommend that it make whole Nevins while he was em- ployed by Respondent as a helper since October 29, 1980, 47 for any loss of pay, health insurance, retirement credits, seniority credits, or other benefits he may have suffered by reason of Respondents failure to apply the terms and conditions of the collective-bargaining agree- ment with the Union to him to the same extent and in the same manner as such benefits were granted or should have been granted to its union employees in the same classification. I shall also recommend that Respondent offer Nevins full and immediate reinstatement to his former job as helper and relief driver or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges previously enjoyed, or which Nevins would have enjoyed had he been employed as a helper and relief driver under the terms and conditions of employment embodied in the collective-bargaining agreement with the Union or any successor agreement and to make him whole for any loss of earnings or other benefits under the agreement he may have suffered by reason of the dis- crimination practiced against him since January 5, 1981, such earnings and benefits to be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 298 (1950). Those losses of benefits arising from Respondent's failure to apply the agreement to him and those losses of earnings arising from Respondent's dis- criminatory termination of his employment shall include interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See gener- ally Isis Plumbing Co., 138 NLRB 716 (1962). I shall also recommend that Respondent remove from the records of Timothy Nevins any and all written re- ports, notations, or memoranda reflecting its unlawful re- fusal to employ him on and after January 5, 1981, and to notify him in writing that it has done so.48 47 The date 6 months prior to the filing and service of the instant charge from which date forward Respondent 's conduct in continuing to maintain its illegal practice is not time barred by Sec. 10(b) of the Act. See machinists Local 1424 v NLRB, 362 U.S. 411 (1960). 48 See Sterling Sugars, 2,61 NLRB 472 (1982) 1. The Respondent, Donald Browne d/b/a Bailey Dis- tributors, is and has been at all times material an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Soft Drink Workers Union, Local 812, I.B.T, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By maintaining a practice whereby the terms and conditions of employment embodied in a collective-bar- gaining agreement with Soft Drink Workers Union, Local 812, I.B.T. were applied,to those employees in the bargaining unit who were union members only, and by discriminating in regard to the terms and conditions of unit employee Timothy Nevins since October 29, 1980, because he was not a union member, the Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By constructively discharging Timothy Nevins on January 5, 1981, giving Nevins a choice-of quitting his job or working without union representation or inclusion in the unit represented by-the Union for purposes of col- lective bargaining, Respondent violated Section 8(a)(3) and, (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices' affecting commerce within the meaning of Sec= tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.] James Wasserman, Esq., for the General Counsel. Allan M. Stern, Esq. (Nathan Stern, PC), of Mineola, New York, for the Respondent. Thomas McDonough, Esq., of New York, New York, for the Charging Party. SUPPLEMENTAL DECISION PRELIMINARY STATEMENT ROBERT T. SNYDER, Administrative Law Judge. By Order dated April 9, 1984, the Board remanded this pro- ceeding to me for consideration and preparation of a sup- plemental decision' in- light of its decision in Olin Corp, 268 NLRB 573 (1984). By Order dated April 12, 1984, the parties were provided an opportunity to file supple- mental briefs with me, analyzing the record in light of Olin Corp, supra. Counsel for Respondent and the Gener- al Counsel have each submitted timely briefs, which have been duly considered in preparation of this deci- sion. Analysis and Conclusions In Olin Corp., supra, the Board adopted a new stand- ard for implementing its Spielberg2 policy of deferring unfair labor practice proceedings to arbitrators' decisions that are asserted to have resolved issues subsequently presented to the Board. The Spielberg standards were reaffirmed. These required, for deferral, that the arbitral proceedings appear to have been fair and regular, all par- 1 On January 3, 1983, I issued my original decision in this proceeding. 2 Spielberg Mfg. Co, 112 NLRB 1080 (1955). BAILEY DISTRIBUTORS 119 ties have agreed to be bound, and the decision of the ar- bitirator is not clearly repugnant to the purposes of poli- cies of the Act. The new standard rejected both Subur- ban Motor Freight, 247 NLRB 146 (1980), and Propoco, Inc., 263 NLRB 136 (1982), in the interpretation the Board majorities in those cases placed on a further re- quirement for deferral, first enunciated in Raytheon Co., 140 NLRB 883 (1963), that the arbitrator considered the unfair labor practice issue, by improperly expanding that requirement to the detriment of the declared purpose of Spielberg to recognize the arbitration process as an im- portant aspect of the national labor policy favoring pri- vate resolution of labor disputes.3 Under the new standard, the Board will find that an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. To the extent the contractual and statutory standards of review of the unfair labor practice issue differ, they should be weighed by the Board in considering whether the arbitration award com- ports with the Spielberg requirement that it not be clearly repugnant to the Act, a standard requiring that the award be "palpably wrong" or not susceptible to an in- terpretation consistent with the Act. Furthermore, the Board in Olin Corp., now placed on the party seeking to have the Board ignore the determination of an arbitrator the burden of demonstrating the defects in the arbitral process or award, expressly overruling Suburban Motor Freight, supra, to the extent it provided for a different al- location of burdens in deferral cases. The facts here show that although Federal District Court Judge Lowe, in granting the Union's motion to dismiss Nevins' and Walsh's suit for failure to exhaust the grievance procedure under the contract, directed union counsel to raise and pursue before the arbitrator each and every complaint Nevins (and Walsh) had asserted, including Nevins' claim of unjust dismissal as relief driver and helper on January 5, 1981, first raised with the Union in Nevins' February 3, 1981 letter to it. The Union, in presenting Nevins' case before the arbitrator, failed to develop any relevant facts or raise this issue for disposition by the arbitrator. Union Attorney Sidney Fox testified that the claims he asserted on Nevins' behalf at the arbitration were that Nevins was improperly discharged as a driver and was paid improperly for the periods he had been employed as a helper. The award makes clear that the claimed dis- charge occurred in September 1980 when the Respond- ent ceased operations of a fifth truck and removed Nevins as its' driver, and Nevins returned to relief driv- ing until November 1980 when all the more senior driv- ers returned to work. The claim for improper payments as a helper did not extend beyond 1980. Concerning the first claim, the arbitrator concluded that when the fifth 3 Board Member Zimmerman dissented from the Board's decision in Olen Corp, supra, disagreeing with the majority's reading of the Suburban Motor Freight, supra, and Propoco, Inc, supra, interpretation of the addi- tion to the original Spielberg standards for Board review of arbitration de- cisions, and from the order of remand in this proceeding, finding it un- necessary. truck was terminated, Nevins' position as a driver was eliminated. Thus, he had no valid claim to reinstatement as a driver. Concerning the second claim, the only facts relating to Nevins' employment relationship as a helper referred to by the arbitrator were Nevins' testimony that, commencing in 1975, he worked continuously for Re- spondent as a helper when he was not driving for Re- spondent or another distributor, that he met the driver on the route and was paid "off the books" in cash by the driver, and Respondent's denial corroborated by a wit- ness for Respondent.4 It is evident, and I so found in the earlier decision, and reaffirm that finding here, that Fox failed to adduce through Nevins any of the facts relating to his employment relationship with Donald Browne, the sole proprietor, which are itemized in section III, 13, and summarized in section III, C, 2, of the decision.5 Fur- thermore, as I also concluded in section IV of the deci- sion, and as noted earlier herein, none of the facts relat- ing to the events of January 5, 1981, including Browne's admitted offer to Nevins of a job as a helper,6 were pre- sented at the arbitration. Neither was the arbitrator pre- sented with the facts relating to Nevins' claims made to Browne for contractual benefits as a helper commencing in October 19807 (see secs. III, B, and IV of the deci- sion) which, coupled with Browne's offer of a helper's job on January 5, 1981, buttressed Nevins' claim that Browne had employed him directly as a helper over a number of years but in such a way as to shield him from union knowledge of this fact, and thus the application of contract benefits to Nevins, or union complaint that he had failed to seek a helper though the Union as required by the contract. By virtue of these significant gaps in the Union's pres- entation of 'Nevins' case to the arbitrator-in fact, making a presentation of a claim for reinstatement as a driver not asserted as an unfair labor practice in the in- stant proceeding-I conclude that the arbitrator did not adequately consider the unfair labor'practice under the Olin Corp. standard. Clearly, the contractual issue was not factually parallel to the unfair labor practice issue be- cause none of the facts nor the issue relating to Nevins' claim of constructive discharge as helper on January 5, 1981, was presented or considered by the arbitrator, Just as clearly, the arbitrator was not presented generally with the facts relevant to resolving that particular unfair labor practice nor with the issue of Nevins' failure to re- ceive contract terms as a helper up to January 1981. Nevins' January 5, 1981 claim was not pursued and even the minimum facts necessary for a determination of the issue-of Nevins' status as a direct helper employee of Re- 4 This witness was probably Fideli Perez, a driver employed', by Re- spondent, whose testimony in the instant proceedingwas discredited with respect to the events of January 5, 1981, as well as his claim that Nevins never worked for him or any other driver. JD sec. III, B. 5 As I pointed out in my ealier decision, sec. III, C, 2, there is serious doubt that Fox asserted any employment relationship with Respondent arising during the period Nevins helped drivers and was paid off the books. s The significance of this offer is dealt with in secs III and IV (fns. 8 and 40) for the decision. 4 In his award, the arbitrator refers to Nevins' failure to discuss his rates of pay or terms and conditions of employment with the Union but does not mention Nevins' discussions with Browne. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent were not presented in the arbitration. The arbi- trator's determination of the employment status issue was made without having been presented with the facts rele- vant to resolving that issue, not only the facts relating to Browne's retention of authority to control Nevins' as- signment to a particular driver and the nature of his work performance but, of equal significance, the facts re- lating to the Browne-Nevins interchange of January 5 and the offer of a helper job, coupled with Nevins' prior claims to contract coverage and benefits, which shed light on Respondent's motive in acquiescing in Nevins' past cash payment arrangement with the drivers. See sec. IV of the earlier decision. Upon the record made in the instant proceeding, the General Counsel has met its burden of proof of establishing that the facts relating to the constructive discharge issue were not adduced nor considered, and, further, that the facts generally relevant to the denial of benefits issue, including Nevins' prior status as a Respondent employee, were not presented nor considered. Even, assuming arguendo, the Board concludes, con- trary to me, that in making a determination that Nevins ,never worked for Browne as a helper, the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice of denial of contract benefits'to Nevins because of his nonunion status, the issue of Nevins' constructive denial of work as a helper in viola- tion of the Act, stands independently from the contract coverage issue. The events of January 5, 1981, present for determination an unfair labor practice issue which does not rely on any prior facts relating to Nevins' past status as an employee. Nevins' January 5 demand for contract benefits and Browne's rejection of Nevins as a helper covered by the contract, as found by me, may be determined without regard to the validity of the General Counsel's allegation that Nevins was denied contract coverage and union representation up to January 1981, when previously employed by Respondent as a helper. The acts and events of January 5 constitute an independ- ent violation of Section 8(a)(3) and (1) of the Act -which warrants an affirmative remedy of reinstatement and backpay. Under this view of the arbitration proceeding, only one of the unfair labor practice issues could even be argued to have been resolved by the arbitrator, but not the issue which calls for significant relief for the future for the employee/applicant discriminated against. Be- cause the Board has enunciated a policy rejecting the parties' grievance and arbitration machinery as an alter- native form for disposing of an unfair labor practice pro- ceeding when the entire dispute cannot thereby be re- solved, Sheet Metal Workers Local 17., 199 NLRB 166, 168 (1972), as the Board must determine the issue of Nevins' claimed constructive discharge, there is little reason to defer only one allegation and not to permit the entire dispute to be resolved in a single proceeding before the Board. Apart from the foregoing, there is equal warrant to refuse to defer to the arbitration here because that, pro- ceeding lacked the fairness which would justify the Board's confidence in the legitimacy of the award. The reasons for this conclusion are itemized in section IV of the original decision, and that conclusion is here reaf- firmed. Nevins' participation, with Walsh, as coplaintiff in the suit instituted against Respondent and Local 812, certain- ly did not endear him to the Union. The subsequent strong words between union counsel and Nevins' attor- ney, culminating in Fox's decision to isolate McDonough and refuse to confer with him in preparation for or during the arbitration, established a pervasive conflict be- tween their representatives which necessarily tainted and affected the relationship between Nevins and the Union and the presentation of Nevins' case. This hostility was manifested in front of the arbitrator when Fox interrupt- ed the proceedings to force McDonough to cease taking notes. Fox's preparation of Nevins for the arbitration was superficial, at best, and this, coupled with Fox's and the Union's reluctance to assert a past employment relation- ship between Nevins and Respondent, apparently be- cause of the harm it could do to the contractual practice of permitting drivers to earn extra commissions without employment of a helper, to the benefit of the union driv- ers and the Employer-Union relationship, which included a tacit recognition of Browne's employment of a helper outside the contract, shows how the conflict between Nevins and the Union was made concrete in the presen- tation of Nevins' case before the arbitrator. The Union's limitation of the relief sought on behalf of Nevins to his "reinstatement" as a regular driver when his past em- ployment,m that capacity was minimal and covered only the weeks when Respondent employed a fifth truck, as against Walsh's much longer regular employment in that capacity, when only one driving position was available, if at all, is further evidence that the Union was only going through the motions to avoid any liability which McDonough might claim under a renewal of the Federal suit. It was fairly evident that the arbitrator, would not require Browne to reinstate a fifth truck, which he aban- doned on valid economic grounds or, if he did, that Nevins, rather than Walsh, would be the driver selected to man it. None of the evidence relating to the arbitra- tion shows recognition of Nevins as a union member. To the contrary, the arbitrator's reference to union member- ship is solely to Nevins' joining another Teamsters Union prior to working in the soft drink industry. Because, as noted in the earlier decision, the contract limited the benefits of arbitration to employees who are union mem- bers by requiring employer consultation with 'the Union only in the case of disciplinary action involving union members, which, if not resulting in agreement, shall be referred to arbitration, it would not have failed to come to the arbitrator's attention that Nevins lacked such status and, further, that the Union's bringing his griev- ance to this stage was dictated by considerations' relating to his lawsuit and the condition of its disposition. All these foregoing factors justify the conclusion' that I have previously drawn, and reaffirm that there was suffi- cient conflict of interest between the Union and Nevins to preclude the Board from deferring to the award ren- dered by the arbitrator. By denying Nevins' the effective and informed participation in an advisory role' of his own counsel, seemingly contrary to the order dismissing th- BAILEY DISTRIBUTORS 121 Federal lawsuit entered by Judge Lowe," Nevins' rights in the arbitration were undermined . By failing to prepare or present the January 5, 1981 events as they related, to Nevins' claim of denial of contractual coverage, as well as his claim of constructive discharge, by limiting Nevins' demand to reinstatement as a regular driver, and by failing to make an effective presentation of the evi- dence Nevins could marshall concerning his employment status as a helper, the Union prejudiced the proceedings against Nevins, and rendered them unfair.9 On the basis of the record in this -proceeding, the find- ings of facts and analysis as presented in the earlier deci- sion, and the analysis made and conclusions drawn in this supplemental decision, the remedy, Conclusions of Law, and recommended Order set forth in the decision dated January 3, 1983, are adopted and reaffirmed herein. 9 See Seymour v. Olin Corp, 666 F 2d 202 (5th Cir 1982) The fact that Attorney McDonough expressed confidence in Fox's handling of the ar- bitration should not detract from this conclusion . His letter was written to Fox prior to the main presentation to the arbitrator and at a time when his client's interests were realistically subject to union control and it was thus judicious to mitigate Fox's hostility toward McDonough which had previously been strongly expressed 9 See Mason & Dixon Lines, 237 NLRB 6, 13 (1978 ), Longshoremen's ILA Local 27 (Port Angeles), 205 NLRB 1141 (1973). Precision Fittings, 141 NLRB 1034 (1963) ("From the outset there was the kind of diversity of interest between Voght and the Union in respect to the very activity accounting for his discharge , which would dull the impulse to diligent inquiry by it on his behalf." 141 NLRB at 1042.)