M & G Convoy, Inc.

1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD M & G Convoy, Inc. and Paul Desrosiers . Cases 4- CA-15549 and 4-CA-15549-2 29 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 13 April 1987 Administrative Law Judge Robert A. Giannasi issued the attached decision. The Charging Party filed exceptions and a support- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions,2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i The Charging Party has excepted to some of the judge's credibility findings, The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 2 In agreeing with the judge's conclusion that deferral to arbitration is not appropriate in this case, we find it unnecessary to rely on the judge's discussion, at fn 7 of his decision, regarding the circumstances when an alleged 8(a)(4) violation may "preclude" deferral of 8(a)(3) and (I) allega tions Dawn Miller 4bdulrnalik, Esq, for the General Counsel. Steven R. Wall, Esq. and Dennis J Morikawa, Esq. (Morgan, Lewis & and Bockius), of Philadelphia, Penn- sylvania, for the Respondent Julie Fosbinder, Esq., of Washington, D C., for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case was tried on 23, 24, and 25 July and 8 and 9 September 1986 in Philadelphia, Pennsylvania. The com- plaint alleges that Respondent violated Section 8(a)(4), (3), and (1) of the Act by issuing four warning notices to employee Paul Desrosiers in early January 1986 and thereafter discharging him in February 1986 because he (i) filed an earlier unfair labor practice charge against Respondent; (u) undertook activities on behalf of the Teamsters for a Democratic Union (TDU), a dissident group within the Union which represents Respondent's truckdrivers, and (iii) assisted an employee in connection with the filing of a charge with the Equal Employment Opportunity Commission (EEOC).' The Respondent filed an answer contesting the essential allegations in the complaint and also raising as a defense the assertion that the Board should defer to the decision of a joint manage- ment-union panel that found that Desrosiers ' discharge was lawful under the applicable collective -bargaining agreement I have received, read, and considered the briefs of the parties. On the entire record, including the testimony of the witnesses and, particularly, my observation of their de- meanor while testifying , I make the following FINDINGS OF FACT 1. JURISDICTIONAL MATTERS Respondent is a New York corporation engaged in the business of transporting automobiles from manufacturers to dealers. Respondent's terminal in Newark, Delaware, is involved in this proceeding. During the past year Re- spondent has received more than $50,000 for transporting automobiles across state lines. Accordingly, I find, as Re- spondent admits, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent's Newark, Delaware employees are repre- sented by Teamsters Local 326, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (the Union or Local 326). Both the Union and the International are labor or- ganizations within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A The Facts 1. Background Respondent operates several terminals throughout the country including one in Newark, Delaware (the Dela- ware terminal), and one in Port Newark, New Jersey (the Port Newark terminal) Respondent is party to the National Master Automobile Transporters Agreement and the Eastern Conference Area Supplement. The latest agreement runs from 1 June 1985 through 31 May 1988. Paul Desrosiers, the Charging Party in this case, was employed as a carhauler assigned to Respondent's Dela- ware terminal for 9 years before his discharge on 7 Feb- ruary 1986. Desrosiers lives in Foster, Rhode Island, and he was often assigned loads that would periodically bring him back home. Respondent's approximately 200 Delaware drivers are represented by the Union, Local 326. The terminal manager at the Delaware terminal during the relevant period was Bill Santini. Other super- visory officials at the Delaware terminal were Bob Gerew, John Constanzi, and Francis Winslow. The indi- vidual who initiated the investigation that led to Desro- i The discharge was also allegedly motivated by Desrosiers' collection of money on behalf of employees who were seeking legal representation in connection with a proceeding against Respondent and by his filing a second charge against Respondent about 2 weeks before his discharge 287 NLRB No. 110 M & G CONVOY, INC siers' discharge and who alone made the decision to dis- charge him was Edward McGrath, Respondent's East Coast director of labor relations, whose office is located in Port Newark, New Jersey 2 Desrosiers' protected activities Desrosiers testified in some detail about his activities on behalf of TDU. He twice ran for election as union steward at the Delaware terminal, he lost both times. He first contacted TDU in July 1984 in connection with in- ternal union charges he filed against the incumbent union steward. Thereafter he began to receive TDU newspa- pers and literature which he shared and discussed with other drivers In March 1985 Desrosiers wrote a letter to Fritz Reinhardt, the head of Respondent's carhauler op- erations, complaining about Vice President of Labor Re- lations Ray Doerfler and local management. Desrosiers received a response and Reinhardt sent Doerfler and Area Manager John McFall to Delaware to talk to Des- rosiers about his complaints. After the Carhaulers Agreement expired on 31 May 1985, Desrosiers expressed his opposition to employer contract proposals initially accepted by the International. He was also active in an ensuing strike called by the International Desrosiers' position on the second contract proposal coincided with that of TDU During the period when the contract proposal caused a division within the membership of the International, Desrosiers exchanged letters with a union official from Wisconsin Desrosiers wanted greater benefits, the union official from Wiscon- sin was willing to accept less. The union official's reply to Desrosiers-which contained rather sharp language- was posted on Respondent's bulletin board Desrosiers subsequently increased his activity on behalf of TDU, he eventually joined the organization and attended its national convention in October 1985 as a representative of some of the Delaware drivers. He cir- culated and posted TDU literature and newspapers in the drivers' room, began to wear TDU insignia, and solicited fellow drivers to loin TDU. On 18 October 1985 Desrosiers filed a charge with the Board alleging that Respondent had violated the Act by removing protected literature from Respondent's all-put- pose bulletin board The Regional Director found merit to the charge and issued a complaint and notice of hear- ing on 27 November 1985 in Case 4-CA-15375 On 23 January 1986 Respondent executed a settlement agree- ment in the case that was approved by the Regional Di- rector on 13 February 1986 Desrosiers testified that he could recall no management official other than Santini making statements to him about his having filed this or any other unfair labor practice charge Desrosiers testi- fied at one point that Santini said something to him about his charge, but that testimony was very ambiguous and seemingly contrary to his pretrial affidavit In November 1985 Desrosiers helped a black driver, Jethro Bennett, file a grievance against Respondent with respect to the denial of a transfer some time before. He advised Bennett about contacting the TDU and the EEOC and other governmental agencies. He also accom- panied Bennett to Santini's office where they discussed the allegation that Bennett had been discriminated 1141 against Bennett testified that he did indeed file an EEOC charge but he withdrew it about a week later be- cause he could provide no evidence of discrimination He testified that his grievance was denied but that his re- quest to transfer to another terminal is pending. Desro- siers did not even know whether Bennett had filed an EEOC charge, and there is no evidence that Desrosiers played any role in the processing of the Bennett griev- ance In January 1986 Desrosiers contacted TDU in an at- tempt to obtain an attorney for a group of employees who were protesting Respondent's decision to transfer five jobs from the unit Desrosiers posted the response from an attorney on the bulletin board in the drivers' room, and collected money to hire the attorney Subse- quently, Desrosiers learned that, in order to file the claim-apparently an age discrimination claim-the claimants had to be over 40 years of age No claim was ever filed 2 Santini candidly admitted that it "rubbed him the wrong way" that Desrosiers attempted to represent black employees "as not being able to speak for themselves." He acknowledged that he referred to Desrosiers as the "protector of black rights " He also testified that he re- ferred to Desrosiers jokingly from time to time as "Mr TDU" because of the latter's open activity on behalf of the TDU and issues that put him at odds with the incum- bent Union And it is undisputed that Santini and Desro- siers had heated discussions about the contract proposals under consideration in 1985. However, there is no evi- dence that Santini took any adverse action against Des- rosiers or that he had any input in the issuance of warn- ings to Desrosiers in January 1986 or in the investigation and discharge of Desrosiers thereafter. There was testimony from employee Kenneth Janeka that he overheard a conversation between Santini, John McFall, and John Constanzi in mid-1985 in which San- tini referred to Desrosiers as a "troublemaker, always constantly complaining or constantly grieving . " He also overheard a conversation in late 1985 between San- tini and McGrath, but could remember nothing about the conversation except that Desrosiers' name was men- tioned. The second conversation is not probative of any- thing and the first does not involve any official who was responsible for the discharge or the warnings that form the basis of the alleged discriminatory activity against Desrosiers There is no other credible evidence that any officials other than Santini were particularly knowledgeable about or unusually concerned over Desrosiers' activities. Indeed, Reinhardt seemed to be sympathetic and respon- sive to Desrosiers' concerns when he sent two high-rank- ing officials to talk to Desrosiers Although Desrosiers testified that he spoke to other officials, including McGrath, about his objection to the second contract pro- posal, there is no evidence that these officials expressed any animus toward him for his objection. It appears that other Delaware employees also objected to the second 2 Although Desrosiers testified that he collected money on 7 February, the day of his discharge, other employees were unable to place the date as precisely as Desrosiers 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contract proposal. Desrosiers did testify that, on one oc- casion, Jack O'Neil, Respondent's terminal manager in Providence, told him that Ray Doerfler was "extremely angry" with him because of his opposition to the second contract proposal. Even though O'Neil did not testify, I reject Desrosiers' testimony on this point because of his general unreliability as a witnessr which I discuss more fully hereafter.3 3. The incident which led to the discharge On 30 December 1985 Desrosiers left his home in Rhode Island on the return run of a trip from Delaware The trip normally takes 5 hours. Desrosiers left his home about 4:30 a.m. He was to return to Delaware from whence, pursuant to his approved prior request, he was to attend a meeting in Philadelphia scheduled for 2 p.m. in the afternoon. The meeting dealt with his internal union appeal contesting the latest union steward's elec- tion that he had lost. There is no dispute that this was personal business. Had Desrosiers proceeded to Dela- ware as instructed he would not have been paid until he left Delaware on his next assignment because he had al- ready been paid for his return to Delaware. He intended to leave for Philadelphia about 1 p.m., attend the meet- ing, and return late in the day to Delaware. Had he gone to Delaware as instructed, and as he intended, he would not have received another assignment until 31 December and that assignment would not have originated from Delaware because there were no loads available at the Delaware terminal at this time. Indeed, Desroslers testi- fied that he would have put his truck in the shop at the Delaware terminal and would not have been paid break- down time or for his personal trip to Philadelphia. After driving 4 hours Desrosiers noticed a flickering dashboard light which signaled a problem with the water level on his truck. At this point he was on the New Jersey turnpike. After stopping to investigate the prob- lem, he had difficulty restarting the truck and decided to proceed to Respondent's terminal in Port Newark, New Jersey. He submitted a repair order identifying lights and transmission as problem areas and talked to James Lorber, a mechanic at Port Newark. Lorber told Desro- siers he could fix the lights but any work on the trans- mission would have to be done at Desrosiers' home ter- minal. Desrosiers testified that he called his wife, the Delaware terminal, and two fellow employees who would be accompanying him to the Philadelphia meet- ing. He later met employee Ronald Doan at the Newark airport and they drove together to Philadelphia where they attended the meeting. Desrosiers returned to Port Newark on the evening of 30 December, picked up his truck and drove to Port Albany, New York, as he was instructed by officials at his home terminal. Desrosiers filled out his logsheet for 30 December 1985 by classifying the 10-hour period from 9 a.m. until 7 p.m. as on-duty, nondriving time noting that it was due 3 I also reject other testimony by Desrosiers of the same nature such as his allegation that, in a conversation with Weed after his discharge, Weed told him he was fired for "getting in Ray Doerfler's face all the time " Weed, a far more credible witness than Desrosiers , denied he made the comment. to the breakdown of his truck He later submitted a breakdown slip to officials in Delaware and, on 19 Janu- ary 1986, accepted payment for breakdown time. The payment amounted to $135. Desrosiers' call to his home office about 8.30 am on the morning of 30 December 1986 came to Charles Weed, a regional vice president who had an office at the Newark terminal Desrosiers told Weed that he was in the shop at Port Newark and there was no work for him at that location. He asked for instructions. Weed told him to proceed to the Respondent's terminal in Albany, New York, because there was a need for drivers at that location. His instructions were for Desrosiers to get to Port Albany on 30 December, that day. After this call Weed notified the dispatcher in Albany about Desrosiers' assignment and told Robert Gerew, superintendent of operations at Newark, of the assignment. Gerew added Desrosiers' name to the list for Albany and confirmed with Albany that Desrosiers was to report there for an assignment that day. Desrosiers did not tell Weed that he could not get to Albany or that he had to be in Philadel- phia on 30 December. The above findings-which are crucial to this case- are based on the credited testimony of Weed and Gerew who impressed me as reliable witnesses. Gerew over- heard part of Weed's instructions to Desrosiers and acted on them. Neither was involved in the subsequent deci- sion to discharge Desrosiers. On the other hand, Desro- siers' testimony on this point was imprecise, ambiguous, and contradictory. Desrosiers testified that when he called his home terminal on the morning of 30 December he spoke first with a shop employee and then spoke to someone at the terminal, who he thought was John Cos- tanzi. He told Costanzi that he was "broken down" in Port Newark and would call back later. He testified that he later called his home terminal to try to get a load out of Port Newark, but was told he could only get a load out of Port Albany. According to Desrosiers he called his home terminal a third time shortly after 6 p.m. and was told he should report to Port Albany the following morning. Desrosiers could not remember with whom he spoke on the latter two occasions and neither Constanzi nor anyone else corroborated Desrosiers on these points. His testimony concerning his calls to his home terminal was very confusing. For example, at first, Desrosiers em- phatically denied that Weed told him to go to Albany and, indeed, denied even talking to Weed at 8 a.m on the morning of 30 December, he said he talked to Weed at noon . Later he testified that he did talk to Weed that morning. His explanation for this inconsistency was com- pletely convoluted and unreliable. Desrosiers' testimony on another crucial issue in this case is also unreliable. He testified that when he spoke to James Lorber, the head mechanic at Port Newark, on the morning of 30 December, Lorber told Desrosiers that he did not know when Desrosiers' truck would be fixed. Desrosiers had complained about his dashboard lights and his transmission . Lorber testified that he told Desrosiers that he could fix Desrosiers' lights but the transmission would have to be fixed at Desrosiers' home terminal. Lorber also testified that Desrosiers told M & G CONVOY, INC 1143 Lorber not to hurry because he did not have to be in Albany until the next day Consequently, Lorber put Desrosiers' work behind other more pressing work even though it would have taken very little time to fix his lights. It was later discovered that wires were cut on the sensor unit of Desrosiers' truck that might have caused the problem with the lights Unlike Desrosiers, Lorber was direct and straightforward in his testimony As a bargaining unit employee he had no reason to fabricate or shade his testimony. On the other hand, Desrosiers testified inconsistently about his conversations with Lorber, admitting that earlier testimony he had given on this issue was mistaken. Although Desrosiers was in- structed on the morning of 30 December to report to Port Albany, I find that he told Lorber that he was to report to Albany the next day. He did this, in my view, to cause a delay in the repair of his truck so that he could be paid while he conducted personal business in Philadelphia Because Lorber was a far more reliable witness than Desrosiers, I credit his testimony about what Desrosiers told him on the morning of 30 Decem- ber. Based on Desrosiers' unreliable testimony concerning the above two incidents, I have considerable doubts about his testimony on any significant issue in this case. In addition, his testimony about not being properly rep- resented at the panel hearing on his discharge seemed strained and unbelievable, an effort, I believe, to conform to the theory that the Board should not defer to the panel decision In this respect, he stretched far beyond what was necessary because, as stated hereafter, I do not defer to the panel decision for other reasons. Moreover, I perceived in Desrosiers' testimony about his asserted protected activities an exaggeration which led me to be- lieve that he was fashioning his testimony so as to create animus against him which in truth did not exist Al- though I am sure that Respondent's officials were not al- together pleased with some of his activities-he was, as Santini testified, quite "vocal"-I do not believe that they cared as much about those activities as Desrosiers thinks they did In short, after assessing all of Desrosiers' testimony, I am not confident that any of it is reliable 4 4 The discharge and its aftermath The payment of breakdown time to employees is gov- erned by article 46 of the Eastern Conference Area Truckaway, Yard and Shop Supplement to the National Master Automobile Transporters Agreement Section 2 of that article states: at destinations, they shall notify the home office or nearest terminal by telephone of such condition and ask for instructions, except in case of emergency. After such notification, the driver is to be paid at the appropriate rate per hour during the delay pro- vided, however, that in no case shall any employee be paid more than ten (10) hours out of every twenty-four (24) hour period Because Respondent believed the 10 hours of break- down time reported by Desrosiers was excessive and be- cause it questioned whether Desrosiers' truck could in fact not have been driven to Delaware, it initiated an in- vestigation into the circumstances of the breakdown. McGrath conducted the investigation after being notified of some of the circumstances by Gerew. On 27 January 1986 a letter of investigation was sent to Desrosiers in accordance with the requirements of the applicable col- lective-bargaining agreement On Sunday morning, 2 February 1986, after he re- ceived the letter of investigation, Desrosiers called San- tini and told him "the company is trying to fire me, but they can't because they don't know where I was, so if you want to know where I was, I will tell you I was at a union meeting in Philadelphia, and if you want me to say it, just bring me in the office and ask me in front of a witness, and I will tell you where I was." Santini told Desrosiers that he would pass the information on to McGrath and he did 5 On 7 February 1986 Desrosiers was notified that he was being discharged for violation of article 40, section 3-1 of the applicable agreements That section provides that the causes for immediate discharge include "proven theft during working hours." Respondent's position was that, by asking for and receiving payment for nondriving time while he was on previously scheduled personal busi- ness, Desrosiers fraudulently obtained money to which he was not entitled McGrath alone made the decision to discharge Desrosiers Desrosiers filed a grievance over his discharge pursu- ant to the applicable agreement. The grievance was heard by a joint panel of four management representa- tives and four union representatives, none of whom were representatives of the Respondent or Local 326 The contract provides that any decision of the joint panel "shall be final and conclusive and binding upon the Em- ployer and the Union and the Employees involved " Desrosiers was represented at the hearing by two union When a driver is delayed through no fault of his own, due to weather conditions, waiting over week- ends, and/or holidays, impassable highways or equipment breakdowns and/or unnecessary delays 4 The General Counsel also elicited testimony from David Figliola, a former dispatcher at the Newark , Delaware terminal , which suggested that Terminal Manager Santini bore some animus toward Desrosiers be- cause of the latter's protected activity I was not impressed with Figlio- la's testimony or his demeanor His testimony seemed to me tentative and vague and his testimony about the circumstances of his termination from Respondent's employ reflected adversely on his reliability I therefore do not credit any of his testimony 5 Desrosiers acknowledged the above conversation as related by San- tini although he gave it an embellishment I cannot accept He testified that Santini spoke about his "contract activities " and said that Desrosiers "had gotten a lot of people angry " but he also testified that he could not recall Santini 's exact words I also reject Desrosiers' testimony to the effect that , after he received his letter of investigation , he talked to San- tini who told him that the action was being taken because of Desrosiers' protected activities Santini acknowledged that he talked to Desrosiers at this time but testified credibly that he simply said he did not know any- thing about the investigation Desrosiers ' own testimony on this point renders his account implausible He admitted that Santini told him that he knew nothing about the investigation and that it was being undertaken at a higher level 6 Actually the article is numbered 41 in the most recent contract of the parties 1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD officials. McGrath presented the Respondent's case Des- rosiers and the union representatives presented four wit- nesses and a dozen affidavits on his behalf. After a 3- hour hearing the panel upheld the discharge on the ground that Desrosiers "applied for and received break- down time, even though he was engaged in personal business without prior authorization from the Company, for at least four (4) hours of the breakdown time [for] which he was paid .. .." The decision was dated 18 February 1986. 5. The warnings On 8 January 1986, Desrosiers was issued three warn- ing notices dated 2 January 1986 dealing with falsifica- tion of logs, more particularly, dispatch time. They cov- ered dates in December 1985. They admonished Desro- siers "to be more aware" and were signed by Margorie Davis, Respondent's log auditor. On 8 January Desrosiers was also issued two warning notices signed by Francis Winslow The first indicated that, on 5 December 1986, Desrosiers had "picked a load" in Providence, Rhode Island, and did not deliver it until 9 December 1985. This warning was prompted by an incident resulting in theft or vandalism on a loaded trailer Desrosiers had parked near his home. Winslow had received a letter from J. A. O'Neil, the terminal manager in Providence, dated 18 December 1985, speci- fying that Desrosiers had failed to properly secure his tractor-trailer thereby causing the theft of a radio from his unit, parked his trailer unguarded and unlocked near his home, and delayed the delivery of his load causing strained relations with a valued customer. O'Neil's letter prompted another warning-also dated 8 January 1986- alleging "failure to secure a load and equipment-(loss of radio)." Desrosiers received still another warning on 8 January involving a delay of load. This warning was prompted by a letter dated 6 January 1986 from a Chrysler official stating that Desrosiers' fully loaded trailer was parked near his home from Monday, 23 December 1985, through Thursday, 26 December. The official com- plained about the 4 days the vehicle was parked "at Chrysler Corporation's expense" and asked for a full in- vestigation. O'Neil transmitted the letter to Bill Santini, the terminal manager in Newark, Delaware, by memo dated 14 January 1986 Desrosiers received a 3-day sus- pension for this incident because, after the 5 December delay of load, this was his second offense. Desrosiers apparently protested the warning concern- ing the 5 December incident because of a problem at the Providence terminal Respondent agreed with Desrosiers and rescinded that warning and, in turn, the suspension for second offense due to the 23 December delay of load. The 23 December incident was therefore reduced to a warning in a notice dated 24 January 1986. The record shows that many warnings were issued to Respondent's drivers for falsification of logs in late 1985 and early 1986. However, Desrosiers complained about his three warnings and, because of a misunderstanding whether the applicable Department of Transportation regulations applied to dispatch time, those warnings were rescinded The record also shows that numerous other employees were issued warnings for delay of load. Desrosiers him- self was issued 38 warnings for various derelictions from February 1982 through November 1985. Desrosiers' warnings put him in the top 10 or 15 percent of Re- spondent's drivers in terms of receipt of warnings How- ever, Desrosiers constantly complained about warnings and, as a result, some were removed from his file; these were not counted in the 38 warnings mentioned above. The General Counsel alleges that the three falsification of logs warnings and the delay of load warning dealing with the Providence incident were unlawfully motivated by a desire to punish Desrosiers because of his TDU ac- tivities, his having filed a charge with the Board in Octo- ber 1985 and because Desrosiers assisted another employ- ee in the filing of an EEOC charge. The General Counsel has failed completely to show any causal connection between the issuance of the four warnings mentioned above and Desrosiers' protected ac- tivities. The four allegedly unlawful warnings were all rescinded after Desrosiers' complaints were found by Re- spondent to have been valid. Two other warnings issued at the same time-delay of load and failure to secure load-were not contested by the General Counsel and were clearly justified by uncontested record evidence. The evidence also indicates that the falsification of logs warnings were issued routinely by an administrative offi- cial who would have had no occasion to retaliate against Desrosiers. There is no evidence that any supervisory of- ficial intervened to cause the issuance of those warnings. Nor is there any other evidence that these warnings were occasioned by concern or animus by Respondent's officials over the asserted protected activities of Desro-' siers The General Counsel relies primarily on timing: the warnings followed TDU activities, EEOC activities, and the filing of a charge. However, Respondent had known of Desrosiers' TDU activities for at least several months, the alleged EEOC activities occurred in November 1985, and the charge, which actually was settled, was filed in October 1985 The record shows that Desrosiers re- ceived many warnings; most predated his alleged pro- tected activities. Indeed, Respondent rescinded the very warnings alleged to be unlawful in this case. Even if the timing of the warnings could be found to be somewhat suspicious, there is still no causal connection between the warnings and Desrosiers' alleged protected activities. I reject as completely implausible the notion advanced by the General Counsel that the fact that the warnings were rescinded is evidence of their lack of justification and therefore of their illegality. Respondent operates under a very sophisticated grievance procedure that Desrosiers and others have utilized in the past to correct alleged im- proper discipline. Respondent surely knew that transpar- ent warnings would be grieved. My view is just the op- posite of that of the General Counsel: the warnings had a plausible basis but Respondent was flexible enough to re- alize in reaction to employee complaints that it might not succeed in a contractual grievance procedure. This is the action of a fair and reasonable employer, not one seeking to discriminate. Moreover, the General Counsel's argu- M & G CONVOY, INC. ment fails to take into account that two of the warnings were well justified and revealed serious mistakes on Des- rosiers' part. In these circumstances, I find that the Gen- eral Counsel has not shown, by a preponderance of the evidence, that Respondent issued the 8 January warnings to Desrosiers for unlawful reasons. B. Discussion and Analysis of the Discharge Issue 1. The deferral argument Respondent argues that the Board should not even pass on the merits of Desrosiers' allegedly unlawful dis- charge because a joint labor-management panel upheld the propriety of his discharge under the applicable col- lective-bargaining agreement. The General Counsel and the Charging Party counter that deferral is not appropri- ate in this case. I find that deferral is not appropriate for the reasons stated below. Section 10(a) of the Act provides that the Board's power to prevent unfair labor practices "shall not be af- fected by any other means of adjustment or prevention that has been established or may be established by agree- ment, law, or otherwise." However, the Board has, in its discretion, provided for deferral to arbitration or other contractual remedies in certain circumstances. Spielberg Mfg. Co, 112 NLRB 1080 (1955) One important prereq- uisite for deferral is that the arbitrator or final contrac- tual authority has adequately considered the unfair labor practice issue which is presented to the Board. The Board will view the unfair labor practice issue as having been adequately considered 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 573, 574 (1984) The instant case is not appropriate for deferral because the contractual issue was not factually parallel to the unfair labor practice issue and the joint panel was not presented with important facts relevant to resolving the unfair labor practice issue. The panel addressed only the issue of whether Desrosiers was discharged "without just cause" under the applicable agreement. The complaint allegations, on the other hand, dealt with whether Re- spondent had fired Desrosiers for having filed an NLRB charge or having engaged in concerted protected activi- ties on behalf of TDU or other employees. A tape of the panel proceeding was transcribed for this hearing It re- veals that there was no evidence submitted with respect to Desrosiers' activities on behalf of TDU, his fellow employee who sought help in filing EEOC charges or other employees whom he helped by collecting money to finance a lawsuit against Respondent Although there was some reference to Desrosiers' having filed a charge with the Board, consideration of the matter was perfunc- tory; in any event, 8(a)(4) allegations are not normally subject to deferral 7 7 See International Harvester Co, 271 NLRB 647 (1984), and Filmatton Associates, 227 NLRB 1721 (1977) In this case the General Counsel as- serts that the 8(a)(4) allegation also insulates the 8(a)(3) and (1) allega- tions from deferral because they were "closely intertwined" in forming the basis of Desrosiers' discharge Although the mere assertion of an 8(a)(4) violation and an intertwining might well preclude deferral before 1145 Thus, because there was no evidence submitted on Desrosiers' protected activities or the Respondent 's reac- tion to them, the panel could not have had any basis for considering whether he was fired because of these pro- tected activities. The panel considered only whether the asserted reason-improper collection of breakdown pay-amounted to just cause under the contract . At most it considered circumstances surrounding Desrosiers' at- tendance at the union meeting in Philadelphia; the Gen- eral Counsel's allegations were broader, however, and encompassed protected activities that predated the meet- ing by months and even years. Nor did the panel consid- er evidence of any possible animus towards Desrosiers because of his protected activities-evidence that was an important element of the General Counsel 's case. In these circumstances, it would not be appropriate for the Board to defer in this case . See NLRB v. Ryder/P.I.E. Nationwide, 810 F 2d 502 (5th Cir 1987), denying enf. 278 NLRB 713 (1986), but upholding refusal to defer to arbitration.8 2. The merits of the discharge I therefore turn to the question whether Respondent unlawfully discharged Desrosiers for reasons prohibited by the Act. I find that the General Counsel has not proved a violation by a preponderance of the credible evidence. Although Respondent's officials knew generally of Desrosiers' protected activity and there is evidence that some officials, particularly Santini, did not view favor- ably this activity, there is no credible evidence that Re- spondent took any adverse action against Desrosiers be- cause he engaged in such activity. As I have stated, the January warnings issued to Desrosiers were not unlaw- ful; and Desrosiers' testimony accusing Santini and others of statements indicating animus against him was not credible. Moreover, McGrath, the official who initi- ated and conducted the investigation leading to the dis- charge and made the discharge decision was not impli- cated in any incidents which could fairly give rise to an inference of animus. Although he knew generally of Des- rosters' TDU activities, he never spoke to Desrosiers about them. There is absolutely no evidence that he knew anything about Desrosiers' activities on behalf of employee Bennett or the employees seeking to file a law- suit against Respondent. Nor is there any evidence that McGrath or anyone else cared that Desrosiers had filed charges against Respondent. In any event, the first charge, which had been filed in October 1985, was set- tled; the second, which was filed on 21 January 1986 and related to the 8 January warnings, was filed after Desro- siers had put in for and collected his breakdown pay. In these circumstances, I find and conclude that the Gener- trial, this theory is dependent on the General Counsel proving both the violation of Sec 8(a)(4) and the alleged intertwining Had this been the only basis for challenging deferral I would have rejected it because the General Counsel has proved neither the intertwining nor the 8(a)(4) vio- lation 8 In view of my determination on the deferral issue I see no reason to pass on the Charging Party's posthearing motion to reopen the record to take evidence that one member of the joint panel was convicted of a crime 1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD al Counsel has failed to establish a prima facie case that Desrosiers was fired because of his protected activities Even if I were to find a prima facie case , I would con- clude that Respondent would have fired Desrosiers in the absence of his protected activities . In this respect, I must give some weight to the interpretation of the appli- cable contract provision by the point panel Although the Board cannot defer to the panel 's decision because of its failure to consider evidence of Desrosiers ' protected ac- tivity, the panel's determination that Respondent had good cause to fire Desrosiers for his improper use of breakdown time is persuasive on the issue of whether Respondent's discharge would have been proper in the absence of protected activities . Desrosiers intended to spend 3 or 4 hours in Philadelphia on personal business, the fact that his truck broke down would not make him any more entitled to pay for that time than if it had not broken down . He did not intend to work for those 3 or 4 hours Moreover, in view of my credibility determina- tions, I have inferred that Desrosiers misrepresented the time of his next assignment in order to delay the repair of his vehicle On this view of the case there is no need to analyze the considerable evidence submitted by both sides on Respondent 's past practice in paying for break- down time However, I note, in considering such evidence, that the General Counsel and the Charging Party have not shown that Respondent ever awarded an employee breakdown pay for time the employee had previously designated for carrying out personal business The evi- dence of the General Counsel and the Charging Party is to the effect that employees who are delayed while their truck is being fixed take the time to go shopping or per- form other nonwork related activities. This is not equiva- lent to Desrosiers ' situation . Here, Desrosiers had asked for and received permission to be off several hours on 30 December to attend to personal business. He nevertheless tried to get the Respondent to pay him for this time There is no evidence that Respondent had permitted such payments in the past Indeed, Respondent was watchful of employees' theft of time. It fired another em- ployee, Roger Priesch, dust 5 months before, for request- ing and accepting pay for time Respondent believed he was not working Priesch successfully grieved the dis- charge under the same contractual procedure that upheld the Desrosiers' discharge because he was able to prove that the documents Respondent relied on to show he had been paid for nonworking time were in error. A fair reading of article 46 of the contract-and one which rep- resentatives of the contracting parties endorsed -is that an employer is required to pay an employee only for time occasioned by a delay caused "through no fault of his own," and is not required to pay for time an employ- ee previously intended to take off to attend to personal business . This comports with common sense In these cir- cumstances , I find that Respondent was justified in firing Desrosiers and would have fired him even in the absence of his protected activities CONCLUSIONS OF LAW The General Counsel has not proved by a preponder- ance of the evidence that Respondent violated Section 8(a)(4), (3), and (1) of the Act when it issued warnings to and thereafter discharged Paul Desrosiers. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" • ORDER The complaint is dismissed in its entirety. if no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses