Classic Truck Rental Corp.

CLA.~SSIC 1RUC`) RFNVAI4 (ORPK~ 443 Classic Truck Rental Corp. and James Parker and Herman McLean and Local 138, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Party to the Contract Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and James Parker and Classic Truck Rental Corp., Party to the Contract Classic Truck Rental Corp. and Automated Bread Co. and James Parker. Cases 29-CA-5993, 29- CA-6469, 29-CA-6580, 29-CA-7044, 29-CB- 3087, 29-CA-7072, and 29-CA-7155 August 5, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MEMHERS JENKINS AND PENEI.I O On April 24, 1980, Administrative Law Judge William F. Jacobs issued the attached Decision in this proceeding. Thereafter, counsel for Charging Party James Parker and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Classic Truck Rental Corp., Brooklyn and Great Neck, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. I The Administrative Law Judge relied on a letter from a state board (lf mediation arbitrator as a basis for finding that Jamnes Parker's suspen- sion did not violate the Act. We place no reliance )on he contelts of the arhitrator's letter in finding that Respondent Classic', disciplinary actions against Parker ere IIot unlawful Parker's nisconduct. particularly his "stealing time," provided sufficien cause for dlsciplinary action up to and including discharge Parker's continuing disregard for company rules. de- ,pite sexeral s.irnings. prompted Respondent Classic to file the notice of Inten to arbitrate Parker's discharge ltcause we find that Respondent Classic sas justified in lking this actioi. and thai Respnderlt Classic uas not mnlolt;lled h a ll\ll\rlemlent h Parker i prlleclted concerted aclti ies, II, subsequent uspen ion of Parker Bias la fftil Ni ecepr llon Were taken uith respect to tIhe Adlnilimratic I a Judge's other finld- InRg 251 NLRB No. 56 DECISIO)N S I I M N I A1 I n C,\ S li1 I \1 1-. J\(OBS. Administratise la\\ Jittdic These consolidated cases were heard before tilte i Brooklyn, New York, on December 18 and I9. 1978, anid January 29 and 30. February 1, and September 24. 17Q Charges in Cases 29-CA-5993 and 29 C1 H3(i87 kcere filed on October 19, 1977. by James Parker an indix idu- al. A consolidated complaint issued based on said charges on December 28, 1977, alleging that Respondent Classic and Respondent Union maintained a collectt\c- bargaining agreement covering driver and helper em- ployees of Respondent Classic but nevertheless refused to permit helper employees to become members of Re- spondent Union or to apply the terms and conditions of the collective-bargaining agreement to them. The consol- idated complaint further alleges that agents and supervi- sors of Respondent Classic threatened employees wnith discharge if they became or remained members of Re- spondent Union or if they gave assistance to or support- ed said Union. The consolidated complaint further al- leges that Respondent Classic also requested its employ- ees to sign a petition to remove James Parker as steward and promised employees additional work if the. would do s. Additional allegations contained in the colnsoli- dated complaint charge that Respondent Classic assigned Parker more arduous and less agreeable job tasks by re- moving his helper and changing his starting time and as- signed employee Eddie Pagan to more arduous anti less agreeable job tasks by removing his helper because Parker and Pagan had engaged in union and other pro- tected concerted activity. Said consolidated complaint additionally alleges that Respondent Union filed and re- fused to process a grievance filed by Parker because of arbitrary and irrelevant considerations and because he had attempted to assist the helpers obtain their rights and benefits under the collective-bargaining agreement. By the acts described in the consolidated complaint Re- spondent Classic is alleged to have violated Section 8(a)(1) and (3) of the Act and Respondent Union is al- leged to have violated Section 8(b)(1)(A) and (2) of the Act. Respondents filed answers denying the commission of any unfair labor practices. The charge in Case 29-CA-6469 was filed on June 1o, 1978, by Parker against Respondent Classic Complaint issued thereon July 21, 1978, alleging that Respondent Classic demoted Parker from his position as driver to that of driver-helper and refused to provide Parker. Pagan, and others with a fifth day of work while provid- ing such to other employees because of Parker's activi- ties as shop steward, because the other employees re- fused to sign a petition to remove Parker from his posi- tion as shop steward, and because of their having en- gaged in other unspecified protected concerted activities. Respondent Classic, in its answer, timely filed. denied the commission of any unfair labor practices. I Sanltiord Pollack. [Esq. appearing for Re, mideinl i tipl,,rs. ,,i pre o slI .i reniher lof Ihe las firm oi (iletirirti & , I ,1 k CLASSIC RCK RNTAL R 443 444 I)4 ( ISI()NS ()F NAIIO()NAI I.A1()R RFIlAII()NS t()ARI) Ihc cllar ge ill (C';tc 29) CA 58X() was filed August 2, 1')7S, h P'arkc-r giinst Rcspondenl Classic and con:- 1pl;aint issued threonl September 12 1978. alleging that Rcspnttilctil Classic filed a noticC of its intcnlion to arhi- itlc Ilic issue o' \hlicther it could discharge Parker be- cause of inefficiencies iln peri'rming his job and sought the discharge of Parker because he engaged in union and other concerted activilies and because he filed charges wxith the National abor Relations oard and gave testi- 1lonl tlliuner the Act Respondent Classic, by said acts, is alleged tIo have violated Section 8(a)(1), (3), and (4) of the Act. Respolldent Classic, in its answer, denied the commission of any unfir labor practices. On October 6, 1978, the cases in which complaints had been issued were consolidated for hearing. As indicated above, the hearing opened on December 18, 1978, and closed on February 1, 1979. On February 26. 1979, however, the charge in Case 29-CA-7044 was filed against Respondent Classic by Herman McLean, an individual, and on April 18, 1979, complaint issued alleg- ing that certain agents of Respondent Classic had warned and directed its employees not to become members of Respondent Union despite the fact that there was in ex- istence at the time a collective-bargaining agreement containing a union-security clause. The complaint further alleges that Respondent Classic failed and refused to pay McLean the wages and benefits to which he was entitled under the collective-bargaining agreement because of his nonmembership in Respondent Union. Finally, the com- plaint alleges the discriminatory layoff of McLean be- tween January 5 1979, and March 26, 1979, because of his attempts to become a member of Respondent Union.2 Respondent Classic filed an answer in timely fashion denyig the commission of the unfair labor practices al- leged. On March 12, 1979, arker filed the charge in Case 29-CA 7072 against Respondent C!assic and on April 30, 1979, complaint issued alleging that Respondent Classic suspended Parker because of his union and other protect- ed concerted activities and because he filed charges and gave testimony under the Act. On May 11, 1979. counsel for the General Counsel filed a "Motion To Further Consolidate Cases and To Reopen the Hearing." On May 25, 1979, the motion was granted. Meanwhile, on April 25, 1979, Parker filed the charge i Case 29-CA 7155. On May 30, 1979, the Regional Di- I coi pl.llit ln C(;ia, 29 CA 7(044 . am en ded or the ilbjectlioin ot c1 ul, t for1 R llp idrli Classic h addillg the allgatiln lhlat Mcl t an sis, d elnied a lfith d of w rk fr discrimi natory reasons Counel for R esp dc l i lasi c in hi brief argues thatl. y permi ing he ( eneral (C iSCllo Ii illlcd the c oll plainl after he. the General Couns el, had reled. Rspoll illl (.lassic's reTpresel l ait e Was denied an oppIolluiit l to contfrir, ll itl, cro-s ClMill r ll M I.ealn oln he issue The record does lot supporl Ihls coltenlio( . ihowe:er The fact is that. w ithin seconds of the (; ell al ( oiiC els' anInoInlcenllln thlai he was resting. Respondenl Cllassic also ested . nlt n immediately, the General Counsel mo,ed to amend tIe l nip l illt so ; s i hiave iit "comporl 'A:ih the testii moilN o1 Ihe rcclrd" l ilt rgard to tis issue the General Counsel explained tIlha t l ie I ti illIlnle id to l l o c io ;alllnend before resillg and annot lnciid tIhlt ie k. A iS Il 1111 ll ill ltl er t) tndicale Iihat he Woulld not catlll a ll addiili n- iI \ 1 l llt'li. e ¥'1 C n the ( iiCl ll t.'IIIIl' s Ill ll til (i llo a lCid ias graill i.d R-spolllet CL-%.ic % , lri'Cllll iiti e ,1 , gix t the oppor i toil reopenl i, . .'s .ai call Mcl can 'sh,, sa s til i (tie h earing roo , anioie cse ho r pulrpows f c1ro%-callltill i ot n H tItlie dclied the ffer Masil ing 1 ssill r i tihc rec lld is it ow xl.iss and will rt" rector for Region 29 issued an order consolidating cases, : and consolidated amended complaint and notice of hearing providing for consolidating Case 29-CA-7072 with Case 29 CA-7155. The consolidated amended com- plaint contains all of the substantive allegations contained in the complaint which issued on April 30, 1979, in Case 29-CA-7072 but also alleges that Respondent Classic Truck Rental Corp. and Respondent Automated Bread Co. are joint employers, and that Automated Bread Co. terminated Parker because of his union and concerted ac- tivities and because he filed charges and gave testimony under the Act. Respondent Classic and Respondent Automated Bread Co. filed a single answer denying all substantive allegations. The issues are as framed by the allegations and an- swers as outlined above. All parties appeared at the hear- ing and were afforded full opportunity to be heard and to present evidence and argument. Briefs were filed by Respondent Employers and Respondent Union. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACI I. JURISI)ICTIONAI. FACS Classic Truck Rental Corp. is a New York corporation with its principal offices and places of business located in the borough of Brooklyn, in the city of New York and in the village of Great Neck, both in the State of New York, where it is engaged in the business of performing produce transport services and related services. During the year immediately preceding issuance of the initial complaint herein, Respondent Classic, in the course and conduct of its business, performed trucking services valued in excess of $50,000, of which services valued in excess of $50,000 were performed for various enterprises, each of which is in interstate commerce by reason other than indirect inflow or indirect outflow. The complaint alleges, the answer admits, 4 and I find that Respondent Classic is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act., II. HI. I HOR ORGANIZAI'ION INVOI V.I) Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. At lic timle l it Regionll iucd il (l tel r ItillS diltilg (ail se 2 ( CA 7072 ,:ilt (Case 29-CA 715. n1 I l i order cnlili lda(ig Case 29 CA 7072 w ilh Ihe earlier cases aid reopening Ihe haring had alread issued Sinlce the hearing had been reopened. a questulin clncerning further onsolidation wuld nmore apprpniately h andle(l through mtion Io me raiher than through aln order from he Regioin When Ihe hearing was Teellrened on September 24, 17, a mlotill toi coi,ohlidate Case 29 CA 7155 il h the earlir cases las rlentertained and graltle Responde t', IlOtse1 '\ As ioffcd adil dit lll lll iti i prepare his defenls e Respe ondelnt lassi : ilnletl ed its allster s ;al l he caritlg t il admii llU Jui tti ion Il rl' Atlilaiet. tJtta Ci i lobtailtd hs si rttl e If Its heg i a oilnt ellplsl s itih Clas ic. Ihe illtl.ai;ll tlf tltch is d liscl s , d init ra IK ./(X tllilh'-,tnrll Ieri/zl'r ( ld il f/iti i lu I Pritiic r (I. l , NI R 8h2 (119h ) CL.ASSIC TRU:CK RFNTAI CRP.' 44' III. THE UNFAIR I ABOR PRAC IICES Al I F(il)" Classic Truck Rental Corp. is engaged in the transpor- tation and delivery of produce, bread, and other mer- chandise to retail stores.' Among its employees are driv- ers, helpers, and driver-helpers. Mark Jacobson is its president, a position he has held since 1972. Cases 29-CA-5993 and 29-CB-3087 James Parker. one of the Charging Parties herein and an alleged discriminatee. was first employed by Respond- ent Classic on July 18. 1972, as a driver-helper delivering produce. At the time, Classic employed approximately 10 drivers and a like number of helpers, one to assist each driver. During the first year or two of his employment at Classic, Parker drove. About a year after he was hired Parker was given his own route and became a full-time driver with an increase in wages, though occasionally he still worked as a helper. In May 1974, the Union undertook to organize the drivers at Classic Truck Rental Corp. No attempt was made to organize the helpers and no authorization cards were distributed to or signed by the helpers.8 At no time thereafter were Classic's helpers asked to join Respond- ent Union.9 Following the organization of the drivers, Respondent Union and Respondent Classic commenced negotiations which successfully resulted in the execution of a collec- tive-bargaining agreement. The contract which became effective as of June I, 1974, contains the following pre- amble: AGREEMENT THIS AGREEMENT made and entered into as of this -- day of June 1, 1974 by and between CLASSIC TRUCK RENTING located at 21 Can- terbury Road, Great Neck, L.I.N.Y. hereinafter re- ferred to as the Employer and the FURNITURE. FLOUR, GROCERY, TEAMSTERS & CHAUF- FEURS LOCAL UNION #138. NEW' YORK, N.Y. AFFILIATED WITH THE INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS. CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA. hereinafter referred to as the Union. to govern wages, hours and condi- tions herein set forth for Chauffeurs, Helpers, Extra Help, Inside Men, Warehousemen, etc. Based upon the mention in the preamble of "Helpers" as a classification of employees and the fact that Re- spondent Classic employs helpers, the General Counsel has taken the position that Respondent Classic's helpers are covered by the contract. The General Counsel also takes the position that inasmuch as Respondent Classic's ' uring he hearing Resplndent Classic sought t have te instant case deferred It arbitration. citing Collyer Insulated ire. .4 Gul andl Western Stemrni Co. 192 NL RH 837 (1971) I declined to d so General Amricran runiportauron Corporation,. 228 NRB 808 11977) 7Classic delicr, largetI fo r K Foodsd Ahbrahan) Price presidcnl i f the Union. credibhI testified on his maulter lhs tesirllni .\as supporied b that of Perr) alker aln ildl d- ual enlplo)cd hb Classic al it helper ' errs ,';llkel testified .lhout olltrildl ctilon helpers are covered by the 1974 contract and admittedl\ have not received the wages and fringe benefits de- scribed therein. Respondent Classic has, along Awith Re- sponden t Union. maintained and enforced all arraillc- ment. understanding. and practice hereunder helpers have not been permitted to become members of Re- spondent Union and whereunder the colleclixe-bargain- ing agreement has not been applied to them. The Getner- al Counsel maintains that, although Respondenl Classic's employees are covered by the 1974 hargainig agree- ment, they have not been a warded the fruits of hat agreement because they are not members of Respondetl Union. Respondent Union argues that the 1974 contract xas designed to cover drivers (chauffeurs) (nly. not helpers: that Respondent Union never attempted to or:gani/e RK- spondent Classic's helper employees and nex er did si, The evidence supports Respondent Unllion' argentl for the record clearly indicates that no helpers ere cr ric quested to join the Union and none .er paid duies or ii- tiation fees. Similarly, Respondent Union also arguis that the preamble contained in its 1974 bargaining agreClement with Respondent Classic is purely boilerplate language, used in similar contracts for the lat 50 or 6() cars and was never intended to identify employees ill specific job classifications emrnployed by Respondent Classic \hich iit represents. To support this contention Respotindent Union offered into evidence other bargaining agreements con- taining similar language and pointed out that. although certain classifications of employees may ha e been men- tioned in the boilerplate preamble, Respondent Union represented only those classifications mentioned ill the preamble if those classifications of employees a crce men- tioned elsewhere in the bargaining agreement and , crc assigned a specific wage rate. Apropos its argument, Respondent points out that im its 1974 contract ith Respondent Classic, il article 2 where wage scales are laid out, only chauffeurs' ;x ages are specified and there is no mention in article 2 of the agreement of the other possible classifications of orkers described in the preamble. 12 In other collective-bargaining agreements" with other employers which Respondent offered into e idence in order to show its general practice. \where Respondent Union represents classifications other than chauffeurs. namely, helpers. warehousemen. and machine operators. the wage scales, unlike in the instant case, are laid out ill article 2 of those agreements, specifying the precise amount to be received by employees in each classifica- lion. Thus, only if classifications of employees appear l the wage scale section of the agreement ith specific wages assigned to such classifications would those classi- So credibhi testified Unioln Rpreseita iec Araha riti re arid iil- plicce helper Perrs Walker. ' Resp Union's Exh 3 t ()ther such possible classificaions l s i Helper. ' xtra help, t 11il( Men,. Warehlusenln. etc" 111 Responldent Ut111io , brief II i Cru1\ ils Ini IN argued that the listing of polible cla fi caiio ,i tarld ill, le pi- iamble calil he colsidered i s'pecific llIlt stliptll inll' iti llll Ibe u r et- .t" `llch if iCt N to tld ill akC t a it l ,ljitp , o \agie i, Io con ite]i , to nitak 1ilapptplilt S cc Rep t al,,, I i i CLASSIC TRUCK RENTAL CR 445 440 DECISIONS OF NATIONAl LABOR RELATIONS O()ARD fications he included in the unit and represented. If, on the other hand, certain classifications of employees happen to he mentioned in the preamble, and employees in said classification are, in fact, employed by the em- ployer-party to the contract, but said employees are not assigned a wage scale, these employees are not in the unit. are not represented by the Union. and the Union claims no jurisdiction over them. I ind Respondent's argument convincing and I con- clud., in accordance with the testimony of the wit- nesses14 testifying on the subject as well as an analysis of the exhibits offered, that the 1974 labor agreement be- t-eet Respondent Classic and Respondent Union was ne\er meant to cover the helpers, that the Union there- fore never intended to represent the helpers or to apply its labor agreement to them. A labor organization need not represent employees if, in good faith, it honestly chooseS 11ot to d(lo so. 5 Prior to 1974 Respondent Classic's employees were driving 5 days per week. In that year, however, the Em- ployer announced that there would no longer be a fifth day dlivery but that employees would be provided with other work in order that they could be paid for working 5 days. Thereafter they washed trucks and trailers, swept, and did odd jobs on the fifth day. This fifth day's work was set up on a revolving seniority basis whereby one or more employees would report on a Wednesday, the nondelivery day, while the others stayed home and were paid for half a day. Certain employees did not care to wash trucks and so did not work the fifth day at all. i Others would wash one truck and then go home for the day. This displeased management. Neither management nor employees were satisfied with the system. Another means utilized by the Employer to provide a fifth day of work for its employers was to assign one or more of them to make what was known as the Philadel- phia run. This consisted of a driver being assigned the task of driving one of the Classic trucks containing empty bread racks to Philadelphia and returning with a load of bread for the Automated Bread Company. The assignment was initially made on the basis of rotating se- niority and employees were compensated by payment of a full days' pay for the single trip to Philadelphia. On oc- casion drivers would be requested to make a bread run to Philadelphia outside his regular hours, rather than as a fifth day. Thus, on a Sunday or on a weekday after com- pleting his day's work a driver might be asked to make a run to Philadelphia. On these occasions his acceptance or rejection of the opportunity was optional and, if he chose to make the run, he was paid $30 over and above 4 Jamrel '.rker, the Charging Party herein. admitted that the 1974 labor agreerentll otlly cosered drisers. ' Lo 1,al 44 ud 'ashington State .4sociaion o( the United Association f orl;ilnr aUtnd .pprentic es of the Plumbing and Pipefirtting Induqtry of the I'mlltrl Statur and Canada (Indutrial Contracting Co.), 195 NLRB 225 (' 72). affd 82 IRRM 2687. 70 LC '13,448 (9th Cir. 1972). International Rrothrrhhod oJ Electrical Workers. AFL-'IO0-CLC (Steinmertz Electriwal Contractors tlssoiation, Inc. ) 234 NLRB 633 (1978). ' According to Mark Jacobhson, the president of Clasic. James Parker ad ised manlagement in 1974 that he did not want to wash trucks Parker testified that he worked the fifth day washing trucks, sweeping, and doing odd o,hs .land died complaining about it to management Since JaciLhs(itl admnillted ome doubt in hi, lestimony, I credit Parker on this poiln his regular wages for each run. It was possible sometime to make two such runs in I day at 30 per run. All Phila- delphia runs were assigned by members of Classic's man- agement, made in Classic trucks, and compensated for by Classic checks. Although, as noted above, the Philadelphia run as as- signed initially as a regular work day (fifth day) on a ro- tating seniority basis, eventually the employees with the most seniority began to insist that they be assigned that run on Wednesdays, the day that produce deliveries were not being made, to the exclusion of the less senior men. A controversy arose when other drivers com- plained that, if they had to make the Philadelphia run after completing their regular day's work, it would be too late in the afternoon. 17 Clearly, the $20 difference in compensation between making the run as a fifth work day for $50 and making it late in the afternoon for $30 most certainly must have added to the dissatisfaction of those receiving the lesser sum. Thus, certain of the driv- ers made it plain that they did not wish to make the Philadelphia run for $30 while others were receiving $50 for the same work. Parker began making the Philadelphia run in 1976 and did not complain at first since he needed the extra money. 8" Later he, along with others, became discon- tented with the situation and made his feelings known just as they did. He spoke with the other drivers on an individual basis and it was generally felt that, because the drivers sometimes had to wait for a long time in Phila- delphia, it just was not worth the 530 to make the run. The general discontent and refusal of certain employ- ees to accept assignments of the Philadelphia run result- ed in Jacobson's calling a meeting of employees and criticizing them for refusing to do the work which he had made available. Though some of the employees indi- cated that they feared reprisals or discipline for refusing the work which the employer had made available, by the end of the meeting the issue still had not been resolved, and it was still left up to the individual driver as to whether he would accept the Philadelphia run or not. The 1974 contract was due to expire on June 1, 1977. Therefore, the employees in the unit got together some- time prior thereto and elected a negotiating committee. Parker, who had been a member of the Union since late 1974 or early 1975, did not attend the meeting but was nevertheless elected to the negotiating committee. There- after, he met with the other drivers to discuss what they wanted included in the new contract. Significantly, Parker testified that it was his understanding that he, as part of the bargaining committee, was to bargain on behalf of the drivers only, not the helpers. In fact, the only time the helpers were discussed during negotiations, according to Parker, was when someone suggested that, if the Employer should terminate the helpers, the drivers might in that way obtain more money. The 1977 contract negotiated by Abe Price as repre- sentative of the Union, the negotiating committee, and ' According to the testimony of Parker '* Parker was also, upon occasion, permitted to make a late afternoon run in lieu of reporting in for a scheduled Wednesday run and vsas corm- persalted for it a though it were a fifth dab CLASSIC TRUTCK RENTAL CRI' 447 Classic was, in all relevant parts, basically the same as the 1974 labor agreement. That is. it contained the same boilerplate language mentioning "Chauffeurs. Helpers, Extra Help. Inside Men, Warehousemen, etc.," but limit- ed its actual coverage in the body of the instrument to chauffeurs and contained a wage scale provision cover- ing only chauffeurs or drivers." Price credibly testified that the 1977 contract was intended to cover chauffeurs only, not helpers. Although the 1977 labor agreement, like the 1974 contract, contains a union-security provi- sion, the record contains no evidence that the helpers were ever required to join the Union or that at any time prior to the execution of the 1977 contract they request- ed membership in the Union. Throughout the entire term of the 1974 agreement and for several months after the execution of the 1977 agreement, the helpers received wages and benefits entirely different from those provided for in the two Teamsters labor agreements. They had nothing to do with the Union, paid no initiation fees or dues, filed no grievances, and were considered by every- one, including themselves, to be outside the unit. I find, contrary to the General Counsel's allegation, that the Union did not represent the helpers or anyone else de- scribed in the boilerplate language contained in the pre- amble of the two labor agreements except the chauffeurs, that the helpers were outside the recognized bargaining unit, and that the Union therefore had no obligation to represent them, nor any duty to insist that the Employer extend the provisions of the collective-bargaining agree- ment to them. 2 Similarly, I find, for the same reason, that the Employer had no obligation to extend the wage scale or other benefits contained in the labor agreements to the helpers or other employees outside the unit and I recommend that the paragraphs contained in the com- plaint based upon such allegations be dismissed. As noted earlier the means by which a fifth day's work was provided by Classic to its drivers, the washing of trailers and the trips to Philadelphia, proved not alto- gether satisfactory to the drivers and, since some of them refused these assignments and others complained about them, management too became dissatisfied with the ar- rangement and in 1977 discontinued the fifth day of work. As Mark Jacobsen testified: I had exhausted, at this point, about every means of creating a fifth day's work. We had tried one year to wash trailers. We tried-I created some work, this Philadelphia work. But everything seemed to fall flat. It never-there was always a hassle. Rather than put up with the "hassle" Jacobson discon- tinued this fifth day's "makework" despite the fact that a number of employees had been grateful for the opportu- nity to get in a full week's work regardless of the type of labor involved. 19 The new wage scale was determined b arbitration. the aard dated July 15. 1977. being retroactive to June 1, 1977 The helpers were not discussed at the arbitration. 10 Inasmuch as the helpers are outside the bargaining unit, the ,4irborne Freight line of cases is clearly inapposite International Brotherhood of Teamslers. Chauffeurt, Warehouseren and Helpers of Amrnerica. Local N.Vo 671 (Airborne Freight Corporation of Delaware), 199 NLRB 994 (1972) Parker, according to Jacobson, was one of those em- ployee s averse to washing trucks for a fifth day's wages but Parker denied this. Tony Passaro, dispatcher 2 and general manager for Classic, testified that he had asked Parker to go over and wash trucks to make his fifth day's wages and that Parker stated that he was not inter- ested in washing trucks and did not really care about working the extra day. I credit the testimony of Jacob- son and Passaro over the denial of Parker. Parker was also one of the employees who was not particularly anxious to make the Philadelphia run in order to obtain a fifth day's wages. He admitted that when asked by the dispatcher 2 if he wanted to make the Philadelphia run, at the end of the day, after com- pleting his regular run, he would decline the opportuni- ty. One Sunday in mid-July 23 he was called at home and requested to make the trip to Philadelphia. Parker's wife told the caller that he "wasn't going to go to Philadel- phia for no $30." On August 4, Parker reported for work and. according to Parker, Sal Ross, the dispatcher, told him not to punch his timecard, that he had something else for him to do. When Parker asked the dispatcher what he wanted him to do, the dispatcher replied that he wanted Parker to go to Philadelphia to pick up two loads. Parker then asked Ross how he was going to get paid and was told that he knew the deal, meaning, according to Parker's understanding, 30 per load. Parker replied that he was not going to go to Philadelphia unless he got paid on the clock, that is, unless he was paid contract wages. Ross then stated that if Parker did not go to Philadelphia he would not have anything for Parker to do that day. Parker, having nothing to do, waited around the rest of the day until John McNeil, the shop steward, reported back in at which time he advised him of the in- cident. McNeil told Parker that he would set up a meet- ing with Jacobson concerning the matter. The following day, August 5, a meeting took place, at- tended by Parker, McNeil, Joe Walker, a driver and a member of the negotiating committee that negotiated the contract, and Mark Jacobson. Jacobson told the group that he would not pay Parker for August 4 because he had flatly refused to go to Philadelphia.2 4 According to Parker, he asked McNeil what he intended to do about his day's pay but received no immediate response. After waiting a couple of days, he again asked McNeil what 2i Jacobson admitted Passaro's supervisory authority 22 Sal Ross. the dispatcher at the time. the record indicates. had super- visory authority He is since deceased 2a Hereinafter all dates are in 1977 unless otherwise indicated 2: Respondent takes the position that the August 4 run to Philadelphia was a regular assignment to Parker because he had not made that run earlier in the week and had not worked 4 days He was therefore obligat- ed to accept the assignment, and could not refuse to go to Philadelphia a, he could if it had been an offer of a fifth day's work. Parker. on the other hand, appears to have taken the position that he was free to reject the Philadelphia run whether or not it was a fifth day's work or part of his regular 4-day workweek unless he was paid the contract age. Though Parker admitted on the record that he had never before been paid on the clock for the Philadelphia run, he asserted that he refused to make that run on this occasion unless paid on the clock because he was afraid of being detained in Philadelphia, as sometimes occurred. and thereb) re- stricted to just one trip, thus being limited to 30 for the day, a sum which he argued was not worth the effort CLASSI TR C RE TA C(Rt 4 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would happen regarding his pay for August 4. McNeil replied that he had been unable to get in touch with Price. Thereafter, according to Parker, he tried to con- tact Price himself concerning his pay for August 4 but was unsuccessful. On August 12,25 1 week after Jacobson advised Parker that he would not be paid for August 4, Parker was handed a memo, disciplinary in nature: August 12, 1977 To: James Parker Please be aware that it is your obligation to do any run that you are designated by our dispatcher, Sal Ross. On August 4, 1977, you were assigned a Philadel- phia run, but you flatly refused to accept the assign- ment. May this letter constitute a last reprimand. A repeat of this situation will lead to dismissal from employment. Very truly yours, /s/ Mark Jacobson MARK JACOBSON, PR iS. cc: Local 138 Office James Parker When Parker received the August 12 disciplinary memo concerning his refusal to take the Philadelphia run on August 4, he brought the memo to the attention of his shop steward and asked McNeil to contact the Union for him. Parker waited a couple of days, then asked the ste- ward what had been the result. McNeil once again ad- vised Parker that he had been unable to contact Price. Parker then called the Union himself, spoke with the re- ceptionist and told her, apparently in Price's absence, to tell Price that he would like to talk with him. Parker was not immediately contacted by Price however, and he did not discuss the August 4 incident or the August 12 disci- plinary memo with Price until a month and a half after the August 4 incident had occurred, 26 and that would place his discussion with Price concerning these connect- ed matters in mid-September. Meanwhile, sometime in mid or late August an elec- tion for a new shop steward was held. Only the driv- ers 2 7 participated in the election and Parker was elected. Just after his election, and about a week after his leaving his message with the receptionist at the Union's office, according to Parker, he wrote a letter2 8 to Joseph Trer- 2. According to the credited testimony of Mark Jacobson, a certain period is set aside each Friday for management to discuss work problems which may have arisen during the week. It is at this time also that mat- ters requiring discipline may be discussed with employees. Both August 5 and 12 were Fridays At the time this disciplinary memo was issued to Parker. he had not yet filed a grievance or brought the August 4 incident to the attention of anyone besides McNeil. '2 Parker so testified 2 The helpers did not participate in the election. When testifying con- cerning the election of August 1977, Parker admitted that the helpers were not covered by the contract. In earlier testimony he had insisted that they were. >. Parts of the letter, written in longhand, are totally illegible. Teamsters, intimating by the context of his testimony that his letter was in pursuance of his pay for August 4. The supposed letter29 to Trerotola was not, however, addressed to him but was apparently a copy of a letter written and addressed to Price: 2940 W. 2st St. Brooklyn, NY 11004 Abe Price Pres. Local 138 I.B. of T.C.W. and H. of A. 1038 Jackson Ave. Long Island City, N.Y., 11101 Dear Sir and Brother, The men of Classic Truck Rental Corp. _--3 are members of Local 138 in good standing with the Union. Their Agreement with Classic Truck Rental has been broken. The men are not working their fifth (5) day and the Agreement calls for forty (40) hrs. Their seniority rights are not being upheld. Men on the lower scale are taking all the bacon home. They feel on the whole that this shop is unorga- nized and they are calling on you to organize the unorganized. These men have not received their new medical cards. The men want to know why their pension fund does not start until June 1, 1979. And what happened to all of the past pension funds. Helpers must be put into the Union (good steady working helper). The Labor Dept. said that the agreement must be upheld -- enforced by the Union. And if these things -- to them. And we will bring the Union Joint Council No. 16, The Eastern Confer- ence -- President if the - have to -- Members I) James Parker SS [shop steward] 2)-Herrera 3) Joe Walker 4) Frank De Bellis 5) Daniel J. Brown 6) Name scratched out 7) Eddie Pagan 8) Israel Castro 9) Ray Phipps yours truly, James Parker, SS Trerotola's reaction to the receipt of Parker's letter was to refer the matter to Price for handling, a copy of his cover letter and of Parker's letter being forwarded to Parker. At one point in his testimony Parker stated that, after he received the letter from Trerotola, Price came 2' I find, for reasons stated hereinafter, that the letter offered int, ei- dence as the one sent to rerolola h Parker i mid-August could nol have been sent then. he letter so identified a's clearly ritten at a much later date. :3o Blanks indicate portions of the letter hich are undecipherable Note that the letter is undated CL.ASSIC I-RUCK RENTAL CORP. 449 down to the shop and told him that he would take Park- er's case to arbitration in order to get him his day's pay. Elsewhere. Parker testified that Price had already prom- ised to take Parker's case to arbitration in a couple of weeks and that he, Parker. wrote to Trerotola only after waiting more than a couple of weeks for Price to take some action. He stated, "So I gave him sufficient time to get the arbitration together." Because of this discrepancy in Parker's testimony concerning his grievance and al- leged promise of arbitration, and the absence in the letter3 ' of any direct mention of Parker's personal griev- ance or of arbitration, I do not credit Parker with regard to this matter where his version differs from that of Price. According to Price, he did, in fact, discuss with Parker his claim for a day's pay based on the August 4 incident. The discussion3 2 took place at the Employer's place of business following a telephone call which Parker made to Price during which Price agreed to talk with Parker the following Friday when he would be at Classic for his regularly scheduled weekly meeting. When Price arrived Parker asked him about the day's pay which he claimed was owed to him by the Employ- er. He asked Price to process his grievance. Price told Parker that the Philadelphia run was out of his jurisdic- tion, that Local 138 had nothing to do with the oper- ations at Automated Bread Co. and therefore he could not handle the matter. Price testified that, although Mark Jacobson was the employer at Automated as well as at Classic, the Philadelphia run was not the normal oper- ation as far as Classic was concerned and that the Phila- delphia run was work which was within the jurisdiction of another union, Local 239, which represented the em- ployees of Automated and which operated out of a dif- ferent warehouse. Price denied having negotiated with Classic concerning the Philadelphia run and on the basis of the above explanation refused to take Parker's griev- ance further. There is nothing in the record to indicate that, after Price explained to Parker his reasons for not pursuing his grievance, Parker was not satisfied. On the contrary, Parker did nothing thereafter to show that he expected further action. On October 19 when Parker filed his charge against the Union, he did not mention in that charge the August 4 incident nor did he mention himself by name. Rather, the October 19 charge states: :I Although the General Counsel offered Parker's letter to Price as an attachment to Trerotola's letter of August 22. I do not believe that Exh 5H was the proper attachment to Exh 5A Not only does Parker's letter fail to mention his grievance or arbitration but Parker testified concern- ing a meeting in October during which he showed Price a petition signed by nine employees containing various grievances which he told Price he would he receiving later in the mail This petition appears to have been attached a GC Exh. 5H to G.C Exh 5A in error Clearly if Price were to receive this petiion for the first time after the October meeting it could not have been attached Io Trerotola's letter of August 22 In that case, the General Counsel never offered documenltar substantiation in the form of a copy of 'arker's letter toI Trerotol a to support his itstinlo- ny concerning his effort, t file a grievance based on the August 4 illnci- dent horrl. xh 5 obs hiousl did not come to Price's attentio in August through I rerotola ' Parker dated this discussion as occurrillg in mid-September Price did not upply .1 date. other thin 177 Since on or about October 11, 1977, the above named labor organization by its officers, agents and representatives, has arbitrarily refused to process the grievance of certain employees of the below named employer concerning the failure of said em- ployer to adhere to its collective bargaining agree- ment with said labor organization with respect to seniority, hours, medical and pension insurance benefits and other terms and conditions of employ- ment. By these and other acts, the above named labor organization has restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Thus, it is patently clear that, whatever gave rise to the filing of the charge on October 19, it was not any- thing that occurred in August. Rather, it appears that the grievance which is the subject of the October 19 charge against the Union has to do with a problem which arose on or about October II, just as stated in the charge. It has nothing to do with Parker's loss of a day's pay on August 4 but rather with the Union's alleged refusal to process a grievance of certain employees concerning the failure of Classic allegedly to adhere to its collective-bar- gaining agreement "with respect to seniority, hours, medical and pension insurance benefits and other terms and conditions of employment." These matters are the subject of the petition drawn up by Parker in October and mistakenly attached to Trerotola's letter to Price of August 22. Thus, when Price was advised on or about August 22 through Trerotola3 3 that Parker wished to pursue the August 4 matter, as alleged in paragraph 17 of the complaint, and when he discussed that matter with Parker in September and refused to proceed on the matter, as testified to by both Price and Parker, he could not have done so for the reason asserted, namely that Parker had attempted to assist the helpers obtain their rights and benefits under the collective-bargaining agree- ment, as alleged in paragraph 18 of the complaint, be- cause there is no evidence that Parker had at that time done anything to assist the helpers obtain such rights. That happened later. The allegation also contained in paragraph 18 of the complaint in Case 29-CB-3087 that the Union failed and refused to process Parker's griev- ance for arbitrary and irrelevant considerations is also devoid of evidentiary support. On the contrary, the evi- dence indicates that the Union refused to process Park- er's grievance because it concerned work which Price did not consider unit work, that when he told this to Parker, Parker accepted this explanation and did not pursue it further. The evidence further indicates that, at the time Price refused to process Parker's grievance, Parker had not yet undertaken to assist the helpers to obtain union representation and there was therefore no reason for the Union to deny him proper representation because of the protected activity alleged. In my opinion P'rice's reasons for refusing to process the grievance, when viewed in the light of the history of the special :':' The coser letter as caplioned "Re Memhber Complaint. James Parker" CLASSIC TRUCK RENTAL CORP 44q 450 I)-'CISI()NS OF NA-IONAL. I.ABOR RELAIIONS BO()ARI) nature of the Philadelphia run assignment, cannot be considered either irrelevant or arbitrary. I therefore rec- ommend that paragraphs 17 and 18 be dismissed. Parker testified that, in late August or September, sometime while he was steward, he was approached by the helpers and asked about their joining the Union. Parker testified that he, Joe Walker, Eugene Herrera. Frank DeBellis, Izzy Castro, and one or two others, all drivers, went to the union hall to talk with Price. Price was not present so, according to Parker, they talked to Secretary Treasurer Vilardo. They asked Vilardo to see a copy of their contract to which Vilardo agreed. They then asked him why they, as drivers, were receiving a pay scale $20 below that received by other produce driv- ers. The record does not reveal whether or not Vilardo answered this question. The drivers asked several other questions of Vilardo and Parker requested a copy of the constitution and bylaws which Vilardo promised to supply. The drivers had not been accompanied on the visit to the union hall by the helpers but nevertheless supposedly inquired whether they were covered by the contract. Vilardo allegedly replied that the only thing that the helpers were missing in this contract was a wage scale, that they had everything else. Parker was the only witness to testify concerning this visit to the union hall. Neither Vilardo nor any of the drivers was called.3 4 Though Vilardo may indeed have stated his opinion that the helpers should have been getting everything under the contract that the drivers were receiving except for the wage scale, I find his statement not binding on the Union since he apparently had nothing to do with nego- tiating the contract, and had no part in organizing Clas- sic's employees. In short, there was no foundation laid upon which one could conclude that Vilardo's under- standing of the contract's coverage was superior to that of Price, who had negotiated and was policing the con- tract. At no time after his discussion with Vilardo did Parker advise Price of Vilardo's opinion concerning the cover- age of the helpers by the contract nor did he talk to Price about whether they were covered. Nevertheless, he did tell the helpers in accordance with Vilardo's opin- ion that they were entitled to everything that the con- tract covered except drivers' wages. Parker testified that he told this to several of the helpers who approached him on the subject in September, but none was called to testify concerning these discussions except Perry Walker. Parker testified further that he tried to assist the helpers as much as possible and as shop steward this was his duty. He added however that his first loyalty was to the union men so he would see that the union men would go out on a job before the helpers. He also testified that as shop steward it was his job to see that anyone who worked 30 consecutive days on the job was taken into the Union. :" The Ge(neral COInII.el had driver Joe Walker subpcnaed Io estif to Ihis and otrher rmatters Iloer, Walkr l Iir 11 t appear al the healillng Hisi te, Inot , .cvn if corrohoratei, of Parker's tcstinOlly, sould not affect he decisionll on ll 11s IsLe Perry Walker: ' supported Parker's testimony by stat- ing that he did, in fact, seek to join the Union by speak- ing to Parker about the matter. This discussion was in October and occurred in the presence of several other drivers and helpers. Walker complained to Parker that the helpers were not getting holiday pay or sick leave and stated that he would like to join the Union. Parker promised to speak to Price about it. When he did so, Price told him that the helpers could not join the Union.:a' Parker reported Price's statement to Walker but added that he, Parker, would try to get sick leave, holidays, and vacations for the helpers. At this same meeting or at another one, also occurring in early October, between Parker, Walker, and certain other drivers and helpers, Walker again advised Parker of his interest in joining the Union. Parker told those present that there was a union meeting scheduled for Oc- tober 7,37 that Price would be there, and that they were invited to attend. Parker said that at that time he would put the question to Price as to why the helpers were not allowed to join the Union. In the meantime, other matters came to the fore which were of great concern to the employees, particularly the fact that they were not getting in a 5-day week. The Employer by October 1977 had long since discontinued its practice of permitting the driver to earn a fifth day's pay by washing trucks at the Automated Bread Co. warehouse, because of the problems connected with it. Similarly, Jacobson had discontinued the Philadelphia run because of the refusal of some employees, including Parker, to accept that assignment without a hassle. Nev- ertheless, because a number of drivers were still interest- ed in finding some means of obtaining a fifth day's em- ployment, Parker, as steward, sought out Jacobson to discuss with him the means by which a fifth day's wages could be obtained. According to Jacobson, Parker approached him, as steward, on the subject of a fifth day's work, sometime in late August, September, or early October, asking in particular what Classic would be having the men work at during the forthcoming winter, as opposed to previous winters. Parker advised Jacobson of his unwillingness to have the men wash trucks and sweep down the ware- house as a means of earning the fifth day's wages. He proposed that Jacobson pay the men 5 days' pay for working 4 days. Jacobson replied that Parker's sugges- tion was absurd. Parker countered that the men were hauling the same amount o produce in 4 days that they had been hauling in 5 days. Jacobson denied that this was the case and offered Parker an opportunity to look at the logbooks. He also argued that he did not control the amount of a day's work, that Key Foods made that : 'Perry W'alker. a helper, is not to be conflused with Joe Walker, a drirer and a mrember of the Union :` Since it has been established that the helpers cere outside the unil, 'rice aid the Unionl could lalfull decline to oflfer them membership in the U]nio or to represeCnlt tihem /Intertl muinrr!li rolhrhood / i E/c rli IlorAr. 4111.-('10O-('LS ( St c'ze l/ iricla/ (mllrudc/ori Awnl , iiio. limr ). rupru. :17 rjiti rrtetirigs vsere ,lrtiirnai, held (<l a Friday ()ctolbe 7 % as a ; rida, therefrore, Parker s tslrmioni that till mectig occurred on Oc- tober is prlbablN in rrwr C`LASSIC I UCK RE:NTA CRP. 451 decision. Jacobson and Parker then discussed the Phila- delphia run as a means of obtaining a fifth day's work and Jacobson explained that he could no longer utilize that means because of the problems which had arisen in connection with it over the past 2 years. He noted that bread products are perishable, cannot lie around an extra day before being picked up. and that the company had received complaints in the past that it had been responsi- ble for clogging up the bakery's platform. For that reason, he explained, Classic had given the run back to Automated and, since then, it had been doing its own hauling. Jacobson stated that all he could see doing for the drivers for the fifth day was to let them go back to washing trucks and sweeping down the warehouse at Automated. Parker replied that the men were not jani- tors and that neither he nor the men wanted to wash trucks. He insisted that they were chauffeurs, trailer drivers, intimating that that was the only kind of work they would do for their fifth day and suggested again that, if they could not drive the fifth day, then they should be paid five days' pay for four days' work. Jacob- son replied that Parker was out of his mind and the con- versation ended there. Parker denied that this conversation ever took place. In fact, he denied ever saying to anyone that he did not want to wash trucks. On the contrary, he testified that he and the other drivers wanted to wash trailers when Jacobson took the fifth day away from them. As to this conversation, I find that it occurred as Jacobson de- scribed it and credit Jacobson's testimony over that of Parker.3 8 I conclude from the content of this conversa- tion, as described by Jacobson, that he was willing at this point in time to offer the drivers a fifth day's wages for washing trailers but that Parker as steward and as spokesmen for the drivers refused the offer. Parker's position with regard to washing the trucks in return for a fifth day's wages became known to the other drivers, some of whom did not agree with him and, as a matter of fact, blamed Parker for their failure to obtain the fifth day's wages. This situation was aptly described by Norris Dabney, one of the drivers, in his testimony: A. Once the drivers get together-(if they don't like something that's going on . . . they call a meet- ing. Q. Would not they have asked the shop steward about the problem? A. Well, he wasn't doing anything about the problem. Q. Who is this? :" I base my credibility findings on a comparison of the demeanor of Parker and Jacobson while testifying. on the testimony of other itnesses concerning Parker's stated altitude to.ard the job of ashing trucks, and on incomplete or easise ans,,ers in Parker's testimony ith regard to the mailer Thus: Q Did there ever come a time hen you complained that you didn't %vant to 'wash trailers and get your feet et' A No ( NKr' Never said It to anlhbody' A Nio Q What about hen ,ou crc shop ste.ard. did wou ec er sa; thatls not parlt of he Job lassficrtiot ' function if he dri ers' A I can't recall, can't recollect thait A. Mr. Parker. Q. This has to do with the fifth day? A. I mean, he was the problem. He wasn't doing anything about the problem. As a result of Parker's failure to obtain a fifth day's wtages and the feeling among the men that he might even have been the reason why they were not getting more work, Dabney and some of the other employees request- ed a meeting with management to discuss the subject. A meeting was therefore scheduled, apparently on a Friday. probably October 7. 9 Present were Jacobson, Passaro, 40 and Ross representing management. Parker, Dabney. and most of the other drivers. At this meeting Jacobson offered once again to reinsti- tute the practice of having the men wash trucks and do some general cleaning on a rotating basis in order to make up their fifth day's work. Most of the employees present agreed to accept the assignment but a fevs others refused. Parker, consistent with his previously stated po- sition, said that he was not in favor of accepting Jacob- son's offer because the men got soaked while vwashing trucks, and with fall coming on and winter following his feet would get wet and he would catch cold.4 He stated that he and the men were trailer drivers, not janitors. Driver Eddie Pagan, present for part of the meeting. sided with Parker and stated that he did not want to wash trucks, that he was a trailer driver and not a truck washer. Aside from Pagan, no one present at the meeting ap- pears to have supported Parker's position. Although other drivers expressed their own opinions and there was a lot of shouting and screaming, Dabney appears to have been the major spokesman for the drivers who were in favor of accepting the assignment of washing trucks for a fifth day's wages. According to Dabney, his group wanted no work that fifth day, whether "it meant wash- ing trucks or whatever." His feelings and those of the other drivers who sympathized with him were quite clearly very strong, as revealed by Dabney's4 2 testimo- ny: Q. Well, why was this so important? A. Hey, I'm trying to make a living, man. I can't make it on 4 days a week. Q. So the fifth day was of critical importance to you? A. Sure. It would be important to you, too. i1 Several meetings ere called in October and Novsember and he record is coinsiderably cnfused as tto hat occurred ad What was said at each meeting I have endeavolred to separate these meetings and de- scribe "hat happened at each in accordance with the most probable. logl- cal. sequential chronologig 4" Passaro .as in arid out iof the meeting, participating fr a hil. then leavsing to take care of the business Passaro sas one of Respopdtnt (lasslc's traffic manlagerl anid admittedly had supers isory authotrity 4 Accrdilg to tic c rclitt'It Cstilnll of la,aro, Jalhon. ild t)ahtricy 42I found [),lhilcie b h. a coni ticing credible tie'.,s, though IIot str- prisiligly his mnitotr ll r 1ailtler, s l Ih tic ctionlsidcrcd( o les, iiportrnce % as nlo ia g d ais his rienory of matters hlch tlie considered oI greal- cr inlporlii.C CLASSIC tRUCK RLNTAL R 451 452 DECISIONS OF NATI()NAL AI.ABOR RELATIONS BOARD Dabney took a survey of those present and found that of those present all but Parker and Pagan were in favor of accepting Jacobson's offer. Jacobson, in reply to Parker's statement that he would not wash trucks for the fifth day, stated that he was not going to pay a fifth day's wages to the men for not working at all. He noted that it was not his own fifth day's work that was in question, but the drivers'. He said it was up to the men; it was their decision. He added that whoever would like to wash trucks or was interested in sweeping the warehouse to make up the fifth day's wages, that type of work was available to them, both drivers and helpers. Those, he said, who did not want to do this work would not be ob- ligated to do it but would, of course, not be paid for the fifth day. Parker was not examined directly with regard to this meeting called by Dabney and the other drivers. He was, however, asked if he had ever told Passaro4 3 or Ross that he did not want to wash trucks because he did not want to get his feet wet. Parker emphatically denied ever making such a statement to either Passaro or Ross though both were present at this meeting and three wit- nesses testified that he had indeed made such a state- ment. Under strong cross-examination, after first denying it, Parker later admitted that he "probably could have" told Ross that "there were a lot of men that didn't want to wash the trucks."4 4 He insisted, however, that he never told Ross that he was among those who did not want to wash trucks. Pagan was not questioned concern- ing this meeting. With regard to this early October meeting, I credit Respondent's witnesses and find that it took place basi- cally as described by them. Where Parker's testimony differs from that of Jacobson, Passaro, and Dabney, I find the latter more credible. Following this meeting, a number of employees availed themselves of the opportunity to wash trucks and sweep the warehouse in return for a fifth day's wages. A number of them, however, did not do so. Among the latter, according to Passaro, was Parker. Passaro testified to a conversation which he had with Parker in October 1977, which clearly must have oc- curred after the above-described meeting, concerning the washing of trucks. According to Passaro, the discussion took place I day when he was choosing men to work the forthcoming Wednesday, the day that produce deliveries were not ordinarily made, and the day the drivers had off. Passaro asked Parker to go over to the warehouse and wash out the trucks that Wednesday. Parker replied that he "wasn't too interested in washing trucks," that he "really didn't care about . . . working that extra day." As noted earlier, Parker denied ever refusing to wash trucks. I credit Passaro. The importance of the above-described event lies in the fact that it underscores the apparent rift between 4': Parker testified that he did inot knoil that t'assaro worked for Clas- sic and denied that Passario had any control oer him, or esen that they had any contact with olne anolther ·4 Parker testified that, whenl he made this statement to Ross, he was not steward but merely made the stlatemcnt in passing. Parker and Pagan 45 on the one hand and the rest of the drivers on the other. This rift later gave rise to actions which supply the answers to some of the questions posed by certain allegations in the complaint. The October 7 meeting was apparently scheduled around Price's periodic Friday visits to the terminal 46 and was not a specially scheduled meeting called for the specific purpose of discussing the helpers' desire to join the Union. Therefore, a number of items were discussed in addition to this subject matter. According to Parker, Price was advised of the desire of the employees to meet with him and the meeting took place just as Parker had promised the helpers. About 15 drivers and about 5 helpers were in attendance. Of the 20 or so employees present, 4 7 the General Counsel called only Parker, Pagan, and Perry Walker and Re- spondent called only Dabney to testify as to what oc- curred at the meeting. Price and Jacobson also testified. According to Parker, the meeting was called to discuss a letter or petition which he had written48 and it was he who chaired the meeting. Among the matters discussed at this meeting, according to Parker, were the pension plan, the medical plan, and the desire of the men to obtain a fifth day's work.49 A document in the record, a letter signed by nine drivers, addressed to Price may be the petition to which Parker alluded in his testimony though it was offered for a contrary purpose (infra.) It contains references to a fifth day's work, seniority prob- lems concerning younger men getting more work than older men, the unorganized status of the helpers, medical benefits and the pension fund. If this document was the one which Parker alleges he gave to Price that day, and I conclude that it was, these were probably the subjects discussed at the rmeeting. Parker testified that he read his petition to Price at the meeting. Then with regard to the pension fund, Parker testified that he questioned Price about the late effective date contained in the contract. Price assured him that the effective date was the date of actual employment. There was no further testimony con- cerning the pension fund and none concerning the medi- cal plan, so it may be assumed that these matters were of little relative importance compared to certain other mat- ters more fully discussed. Concerning the request of the helpers to be permitted to join the Union, Parker testified first that Price said that "if they joined the Union, he couldn't guarantee that they would have their jobs." Elsewhere, Parker testified 45 Joe VWalker, another driver i sympathy with P'arker's position, did not attend the meeting where Jacobson agreed to reistlate the truck- washing job a a means of earning a fifth day's Vsages 46 Parker denied that Price visited the terminal ever) Friday but I credit rice that he did so, if not every Friday. then periodically on that day of the week 47 Pagan estimated the number at betwleen 12 and 14 '; No letter or petition ',as offered into csidellce by the G(incral Counsel o support Parker's contention Ilowevcer ( C EFxh 5B, which purported to he all attachment to art August 22 letter, fits the description tif tie letter or petiion, discussed al the ()clohcr 7 meeting. which Parker told Price lie s, ould be receling in the nmail 41 Ihhough ornie dri.ers s.ere satisfied t slash trucks and sweep the \sarehouse to obtain a fifth day's kuages, Parker. agan aid posihly Joe Walker were not. The issue, at the tinme of this meeting, apparently had not been resolved CLASSIC UCK ENTAL CORI' 451 that Price told the helpers that they "couldn't join the Union." Price testified at length concerning this meeting but did not address the subject of the helpers' request to join the Union. Perry Walker, a helper who was present during the early part of the meeting, testified that he could not recall what was said by Price at that time con- cerning the helpers joining the Union." o Dabney, also in attendance at this meeting, was not asked any questions concerning the helpers' request to join the Union. Pagan testified that Parker told the assembled group at the meeting that he wanted a 40-hour week and wanted the helpers in the unit. Price, according to Pagan, stated that he would have to call management to find out whether or not they could have the helpers in the Union. Pagan then testified as follows: Q. Did he say whether he wanted the helpers in the Union? A. No. He said it wasn't up to him. Q. He said it wasn't up to him? A. It was up to management. On the basis of all of the testimony available, I find that Price did not state during this meetinq, as Parker testified, that helpers "could not join the Union." Rather, I find that Price stated, in accordance with the other tes- timony of Parker and of Pagan, that "if they joined the Union, he couldn't guarantee that they would have their jobs" and/or that "it wasn't up to him, that it was up to management." Inasmuch as there is no evidence that Price had any control over the employees' tenure"' or that he was an agent of the employer, I cannot find his statement(s) in violation of the Act. 52 Perhaps the topic that was discussed the most during this meeting was the subject of how the employees would be able to obtain a fifth day's wages. Granted, ac- cording to my understanding of the record, that Jacob- son had already decided to offer them a fifth day's wages in return for washing trucks and sweeping down the warehouse, this type of work was apparently not a satis- factory substitution for road work as far as Parker and his followers were concerned, and therefore Parker and his supporters, Pagan and Joe Walton, insisted on exam- ining the possibility of obtaining a fifth day's wages out- side the type of employment previously offered. Accord- ing to Parker, at this meeting Price recommended that the drivers get rid of their helpers and in this way pick up the fifth day's work. Price made this suggestion, ac- cording to Parker, in reply to Parker's complaint that men with less seniority were getting more extra work than were more senior employees, and in answer to Parker's question as to what could be done about it. " Walker testified that he heard that Parker and McNeil said that Ja- cohbson did not want an) helpers in he Union I do not rely on this hear- say testiony He also testified hat he heard that Price had made "a statement along th,,se lines"' Again. this lestimony appears t1o he hearsas. and unreliable ince he did not estify as to actually hearing Price make the statement at Globe ,orrs. I1n , 123 NL.RB 30 (1959) 2 Although there vsas ino uch allegation included in the complain against the linion here 'i.as alr allegation i the compalilnt against Classic and it, ageitls Clearly. there i. ino e.ldeilce to concluide that Price .,las one of these alleged agent, Price's testimony was entirely different from that of Parker. Price testified that the question of how the driv- ers could obtain a fifth day's work arose during the meeting but he could not recall precisely in what con- text. He told the drivers that there was nothing in the contract that guaranteed them a fifth day's work and he could therefore not compel the employer to give them a fifth day. Price admitted that he knew that some employ- ees had been obtaining a fifth day's work outside the unit assignments but felt that it was no concern of his, and whoever accepted the opportunity to work the fifth day, well, it was to their advantage. Price testified, contrary to Parker, that the question of eliminating the helpers and thus making a fifth day's work available to the drivers originated with Parker, Pagan, and Joe Walker, with Parker being the primary spokesman. They felt, according to Price, that if the helpers were completely eliminated, they would be able to obtain the fifth day's work. Price testified that he could not understand their thinking on the matter, that all they would be doing was to provide the employer with a more economical operation. He asked for a show of hands and determined thereby that a majority of those present were in favor of eliminating the use of helpers. 3 He then told them that, since he had no jurisdiction over the helpers, he would have to discuss the matter with the Employer and advise Jacobson of the drivers' feelings on the matter. To that end he sent for Jacobson. Dabney's testimony was similar to that of Price. Ac- cording to him, Parker wanted to work without a helper whereas Dabney and certain other drivers wanted to continue to work with helpers. Feelings concerning this matter were strong as reflected by Dabney's testimony: He [Parker] wanted to work without helpers. We didn't want to work like that. Dogs work without helpers, not humans. I'm not going to go out with a thousand pieces of produce by myself. You think I'm crazy? Thus the split between the Parker faction and the other drivers because of their differing positions with regard to the matter of washing trucks and sweeping the warehouse to obtain a fifth day's work was broadened by the further debate and the differing positions taken by these factions with regard to the matter of eliminating the use of helpers. When Jacobson arrived Price told him that the helpers wanted to join the Union. Jacobson replied, "No way.' He stated that he would let them go first before he would let any of them join. 54 After Jacobson rejected s The helpers hl had hecn present initially had prohabl. il the meantime been asked Iti lease. It seems highly unlikely that Price ould conduct a ote among the driers n the subject of eliminating the help- ers' jobs while the helpers sere still present There is. hoeeser. a dis- crepancy in the record on this pint since Perry Walker testified that he and the other helpers were chased out of the meeting by Price and Ja- cobson, thus indicating that the subject of the eliminatln of the helpers' jobs as not broached until Jaacohson arrilcd ion the sceei ;' Acordig Io the uncontrildlcted tletlm on of Parker CLASSIC TRC RENTAL CORP 453 454 DECISIONS OF NATIONAL LABOR RELATIONS B()ARD the idea of the helpers joining the Union, Price informed Jacobson that the drivers wanted work without helpers so that they might be enabled thereby to obtain a fifth day's work.55 Jacobson agreed to eliminating the helpers from the produce runs but stated that he would need 7 to 10 days to implement the new system.5 6 He also stated that the elimination of the helpers' jobs was also dependent on the approval of Key Foods. At this point, however, certain of the drivers strenuously objected, stating that they did not want to work without helpers and would refuse to take out trucks if they did not have helpers. Price then told the drivers to make up their minds: Did they or did they not want helpers. He told them that they had better tell Jacobson while he was there what they wanted to do. It was decided, at that time, according to Price, that the drivers would work without helpers. 57 The complaint alleges that on or about October 8, 1977, Respondent Classic by Mark Jacobson, its presi- dent, threatened its employees with discharge if they became members of Respondent Union. The evidence adduced at the hearing through the General Counsel's witnesses clearly indicates that, at the above-described meeting of October 7, Jacobson did, in fact, make such a threat. Though Jacobson testified on many aspects of the case, he did not deny making the statement attributed to him. I therefore find that Respondent Company did, in fact, violate Section 8(a)(1) in this respect as alleged. C.W.F Corporation, 188 NLRB 554 (1971), affd. sub nom. Retail Store Employees Union Local No. 400, Retail Clerks International Association, AFL-CIO, 458 F.2d 792 (D.C. Cir. 1972). Following the meeting on October 7, Price engaged a few of the helpers in conversation. At that time he told .. Parker testified that the elimination of the helpers' jobs originated with Price rather than with himself and Pgan as other witnesses testi- fied I do not credit Parker but on the contrary find that he and Pagan were the primary movers in this respect Parker's testimony, with regard to his position concerning the elimination of the helpers' jobs, was incon- sistent at the very least: 3. And so Price came down and told him-say, well, get rid of the helpers, it would make more work for the drivers. And he [Jacobson] told Price, yes. Give him 7 to 10 days P Price told him, all right, he'd give him 7 to 10 days. Q. What did you say about that? A I agreed to it. If it means more work for the men, yes. But Parker's testimony a little later is: Q As to the elimination of the helpers, when that issue came up in the October meeting, did you ever say that you didn't want your helper? A. No. Moreover, Pagan testified that the elimination of the helpers' jobs was Parker's and he and others voiced approval of the idea. .5 According to the credited testimony of Parker. 'r Price testified that it was at this meeting that it was decided that the starting time would be 5 a.m. On this point Price was apparently not to- tally correct. The record indicates that 5 a.m. had been the starting time all along although there is evidence that in winter the established hour was moved back to 6 a.m. or later and that there were varying times that some employees started work even in summer. For reasons discussed at length later in this Decision, drivers who were going to work without helpers would of necessity have to start at a later hour. Meanwhile, before the new system was able to be implemented, those drivers who were still working with helpers probably would be expected to continue to report at 5 a.m If there were any emphasis placed on the 5 a.m start- ing time during this meeting by Jacobson, and the record is silent on this point, it could account for Price's misunderstanding. them that he had no objection to their joining the Union and, if they wanted to, they could join. He added, how- ever, that he would not guarantee that they would keep their jobs, that Jacobson just might dismiss them. Since Price had no apparent control over the helpers' employ- ment, in the absence of any evidence of Agency, I find no violation in Price's statement to the helpers. Amalga- mated Meat Cutters and Butcher Workmen of North America. and Local 222 (lowa Beef Processors, Inc.), 233 NLRB 839 (1977). Sometime shortly after the October 7 meeting, prob- ably the following Monday, Jacobson, in order to begin implementing the program decided upon at the earlier meeting, asked Parker if he had any objection to going out on his route without a helper. Parker replied in the negative and stated that he did not want to work with a helper.5 8 Reasoning that it would be best to let the driv- ers' representative, their shop steward, be the first to go out without a helper, Parker was chosen to begin phas- ing in the new system, since it could not be done all at once. Also, Jacobson, having found out that certain driv- ers had definitely rejected the idea of driving without a helper, did not intend to apply a general rule and force all employees to drive without helpers. After Parker, other drivers who preferred to work without helpers would he phased into the newly implemented system. This included Pagan and Joe Walker, apparently the same day. When Jacobson tried to send the other drivers out without helpers, however, they balked and refused to take the trucks unless they had helpers. Jacobson called Price to complain to him that a majority of the drivers were refusing to take out the equipment without helpers although some had done so. Despite Jacobson's com- plaint, it was still Price's understanding that the program to eliminate the use of helpers would still be implement- ed. Through the week following the October 7 meeting Jacobson continued with the plan to eliminate helpers. In all he laid off five helpers before (as he testified) "there was a revolution in the shop." On Friday, October 14, Price visited the Employer's place of business. When he arrived he found that a notice had been posted on the bulletin board calling for another meeting. Though Price had not written the notice or called for a meeting, his name had been signed to it. Price was annoyed and asked Parker who had called the meeting. Parker admitted that he had both called the meeting and signed Price's name to the notice, then apologized for having done so. Parker had called the meeting to once again discuss the fifth day's work in light of the fact that there were still some helpers on the job. 59 Since Parker rather than Price had called the meeting, he opened it. After about 5 minutes Price came in but refused to remain and left after 10 or 15 minutes, telling Parker to run it himself. Price did, however, " This incident appears as credibly testified to by Jacobson. 59 Parker testified that at this time no helpers at all had been removed from the trucks. In light of the commotion that attended the meeting and the admitted anger of the drivers toward Parker because of the elimina- tion of the helpers. it would more likely appear that at least some helpers had already been eliminated. CL.ASSIC TRUCK RNTAI. CRP.' 455 remain on the premises. After Price left the meeting, ac- cording to Parker, the men became unruly. Parker ad- mitted that the drivers were upset about the elimination of the helpers,"0 were complaining and blaming Parker for their loss of helpers. They carried on to such an extent that Parker could not handle them any longer and left the meeting in the middle of it. After leaving the room where the meeting was being held, Parker met Price and advised him of the problems he was having conducting the meeting, then left. Shortly thereafter some of the men came out of the meeting room and asked Price to come in. They complained to him that the shop steward had run out on them and there was nobody there to conduct the meeting. Price initially refused to go into the meeting since he had not called it himself, but then relented and, because of their apparent frustration, agreed to participate. When Price went into the meeting the men com- plained that Parker had run out on them, and since he was the steward, they wanted to elect a new shop ste- ward. This was the stated preference of a majority of those present. Price refused to permit any action to he taken with regard to electing a new steward or removing Parker from his stewardship without hearing Parker's side, and he had apparently left the premises.6i Price ad- vised those present that he would not call another meet- ing or do anything with regard to the shop steward problem until he received a request from a two-thirds majority of the people for an election of a new shop ste- ward. Shortly after the October 14 meeting from which Parker fled, very likely the same day, Norris Dabney drew up a petition to have him removed as steward. Dabney circulated the petition and a majority of the drivers signed the petition. 6 2 In fact, according to Dabney, everyone except Parker, Pagan, and Joe Walker signed the petition and of course Dabney did not request Parker to sign it. He did ask Pagan to sign the petition but Pagan declined. The conversation between Dabney and Pagan appears to have given rise to the allegation in paragraph 13 of the complaint in Case 29-CA-5993 wherein it is stated: 13. On or about October 21, 1977 the Respondent Company, by Mark Jacobson, its President and agent, solicited and requested its employees to sign a petition to remove James Parker as shop steward and promised its employees additional work if they would do so. According to Dabney's testimony concerning his so- licitation of Pagan to sign the petition, it all arose be- cause the drivers had been working 4 days instead of 5. Dabney mentioned to Pagan this fact and apparently inti- 0o Contrary to this admission, Parker testified elsew here. sshen asked if it was not a fact that the men had complained that they did not want to work without a helper, "I wouldn't know." Parker was inconsistent in his testimony on this mailer as well as many others. "6 Price went looking for Parker when the drivers indicated that they wanted to elect a new shop steward but was unable to find him. 62 Dabney was asked whether anyone, particularly Jacobson. suggest- ed to him that he put together the petition in order to get rid of Parker Dabney credibly denied that this had occurred. mated that Parker was responsible for the situations:i and, if the men had a different shop steward, things would be different. According to Dabney he talked to Pagan out in the street rather than in the warehouse where he had seen him earlier. At the time, he was sitting in his car with another driver. David Ward, when Pagan came over to him, presumably because he had gotten the word that Dabney had wanted to talk with him. When Pagan ap- proached the car Dabney told him that he had a petition there to try to get another shop steward he asked him if he would like to sign it. Pagan replied that he had to think about it. Dabney said that he had something to do then anyhow, and Pagan answered that he would meet Dabney there later.6 4 They parted and when Dabney re- turned later Pagan had left for the day. The following day Dabney saw Pagan at work and mentioned to him that he had not returned the day before as he was supposed to have done. He asked him whether or not he was going to sign the petition. Pagan replied that he was not going to sign. Dabney said noth- ing or something noncommittal. No one else was present during this second conversation. Dabney did not argue with Pagan at the time nor approach him again thereaf- ter to sign the petition because a majority of the drivers had already signed the petition and so it did not matter that much whether or not Pagan also signed. 65 Dabney specifically denied that Jacobson or anyone else suggest- ed that he initiate or circulate the petition to get rid of Parker as shop steward. He also emphatically denied tell- ing Pagan that Jacobson promised the men a fifth day's work in return for getting rid of Parker. 6: As background to the circulating of the petition. it must be remenm- bered that Parker had been averse to the drivers earning their fifth da's wages by washing trucks and sweeping the warehouse. His positio on this matter was well known SimilarIl, he was not in favor of using the Philadelphia bread run as a means whereby the drivers could obtain a fifth day's wages, and his position on this matter was apparently no secret Parker's desire to obtain the fifth day's wages for the drivers is well documented but the means whereby he chose to do this was to elim- inate the helpers' jobs and to spread out the road work among the dris- ers. The problems which he ran into during the October 14 meeting clearly indicate that the other drivers were not in sympathy ith Parker with respect to this matter. The circulation of the petition ito remove Parker must he considered in light of the umbrage aroused as a result of the dichotomy of views between the two factions. Parker's and the oppo- sition. 64 The alleged witness to this incident, David Ward, was not called o testify I" Dabney struck me as an honest and forthright witness whose de- scription of this incident I wholly credit Pagan's testimony concerning the petition was confused as to both time and circumstance Thus. Pagan testified that, during the meeting at which getting the helpers into the Union was discussed (October 7), and after the helpers left the meeting, Dabney came back and told between 8 and 10 drivers that if they signed a petition to get a new shop steward the5 would get the fifth day's work. He stated that Dabney had just come from Jacobson's office and either intimated or stated, the record is un- clear, that Jacobson had said this No other witnesses testified concerning a petition being mentioned at this particular meeting Certainly if. as Pagan testified, there ere between 8 and 10 drivers present when the statement was made, Pagan's testimony concerning it should have been corroborated by one or more of them It was not. Mloreoser. I found Pagan's demeanor on the stand far less worthy of credit than most wit- nesses His testimony was disjointed, confused, and difficult to apprehend I do not credit him s ith regard to this matter CLASSIC TRUCK RFNIAL CR. 455 456 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD Pagan testified that one day after he came in from his run he went into the office where Jacobson, Dabney, Ward, and McNeil were present. He testified that Dabney and Ward approached him and asked him to sign the petition to get rid of Parker and elect a new shop steward. Pagan noticed that it had already been signed by other employees. He refused to sign the peti- tion and walked out. 66 Pagan's version of Dabney's at- tempt to get him to sign the petition is markedly differ- ent from that of Dabney. Dabney denied making any at- tempt to get Pagan to sign the petition other than the two times he described in his testimony. I credit Dabney and his version of events. But granting, arguendo., that Dabney asked Pagan to sign the petition while Jacobson was in the room, there is no indication that Jacobson was aware of what was going on, and I would not assume his implication in the attempt to get rid of Parker as shop steward merely by the fact that he was present. As far as Pagan's testimony is concerned, Jacobson neither said anything nor did anything at the time to indicate his in- volvement. I find nothing in this incident to support General Counsel's allegation. Helper Perry Walker testified that Dabney in October told him that he wanted all of the helpers to sign their names to the petition to remove Parker as shop steward and he could get them their fifth day of work. Walker testified that he did not sign the petition. Though Walker saw the petition and testified that it contained the names of others, he did not notice whether it contained the names of other helpers. It is difficult to understand why Dabney would want the names of helpers on the petition since they were not members of the Union, not in the unit, and had no say in the choice of a steward if it came to an election. It is also difficult to conceive of why any of the helpers would be in favor of Parker when it was well know n that he was attempting to get them eliminated from the runs. Dabney was aware that Parker was trying to get rid of the helpers and could have told Walker about this fact and thus enlist his support. 6 7 There is no indication from Walker that he did so. Regardless of these consid- erations, however, if Walker were credited to the effect that Dabney said that, if Parker were out as steward, he could get Walker a fifth day, this does not necessarily implicate management, for neither management nor Ja- cobson's name was allegedly mentioned during the dis- cussion between Dabney and Walker. More probably, Dabney and everyone else knew that Parker, as an indi- vidual, and more forcefully as steward, had long rejected the Employer's offer of a fifth day's work for washing trucks, sweeping down the warehouse, and making the Philadelphia run. The record is not all that clear but it would appear logical that Dabney, and the other drivers, wanted Parker out of his position as steward so that the drivers would be free to accept the extra day's work which the Employer had already agreed to give before 'r 'agan places tie liming if this alleged incideit at heiig a ex dass after he meceing at vwhich getting Ihe helpers into the Union L as dis- cussed (Octoher 7) Neither McNeil nor Ward was called as a itivess "' At he time he e'ifled ill this hearing Walker had beent o w rk- mans compensalolln foaralnorlt )car. and not actisvel s orking for Clas- sic Parker began his campaign to eliminate the helpers. I see no evidence that Dabney was acting as an agent of man- agement during this discussion with Walker. Parker testified that he heard about the petition to remove him as steward being circulated the same after- noon of the meeting from which he had walked out. the meeting during which he testified, "There was a lot of uproar . . . about guys refusing to go out ithout a helper." Thus, Parker's own testimony supports the con- clusion that his insistence that the drivers go out without helpers 68 was the immediate cause of the petition being initiated, with his earlier position with regard to the men not washing trucks and sweeping the warehouse in return for a fifth day's work also being a contributing consideration. From the above facts, I conclude that there is insuffi- cient evidence to warrant the conclusion that the petition was instigated or initiated by Jacobson or any other member of Respondent Classic's management. I therefore recommend dismissal of the allegation contained in para- graph 13 of the complaint in Case 29-CA-5993. According to Price it was not long after the meeting from which Parker walked out and at which the drivers demanded Parker's replacement as steward that he, Price, received the petition.; " Upon receiving the peti- tion Price told the drivers that he would hold an election the following week. The following week Price7" conducted another meet- ing at which there was a vote to change the shop ste- ward. Two members of the National Labor Relations Board were invited to the meeting and attended. Helpers did not participate in the election nor attend the meeting. Two drivers ere nominated for the position-Parker and McNeil. There were considerable differences in the testimony of Price and Parker concerning the procedure followed at the election. According to Price there were about 13 persons participating. They voted by a show of hands and McNeil appeared to have woon. However, Parker ob- jected on the basis of two persons having oted who were nonunion employees. Price asked the two people to leave and a second ballot was taken. McNeil again won over Parker. According to Parker, the first ballot ended in a tie. Price then "made some kind of statement, 'I came to hold an election, what do you think, let's get on with it."' There was a second ballot and McNeil won by one vote. Pagan was still out on the road, however-, so ' About this Ilrle, anoither rltletinlg hbet eeil he L'nionl iid manlage- menil resulted in anll agreement heil eln he parties to gie the Implilyer an addiltilal 30 days ito further implement the progranm if dtriers work- ilg 'without helpers. Parker a;l'o agreed '" Ihe petition was recciseld in the form of a registered letter, accord- itlg to Price, ablou i .t eek after tlt rilneinig It ;nlld was signed h a ma- jritl of the emiploes c ilced bh the contracl 'rohahl,, how eer it \was rceived i le Ics than seck hecause P'rice testified that the eleclion was colduted the Friday follo ing that meeting " y Price's teslimrnoni a, Io he relatise iminig of the \arilus inci dents and etings. the rctling at vhich the lecltion ccurred should hasve heen October 21 Parker testified ilitiill l that the clecit ne look place ot Nosenbler 4 Flses here lie indlicateitl leld it I ccurrI ote O tto- bhler 21 'Paganl testified thit tihe election was' . held alndtld No.ember 20 Ironli a collnsideratln it alil , t the ts1 illTI ,I i\ outldd appei al TIst likel) thi ct e let1ioti seas hc'l o (),.t1hcr 21 CLIASSIC TRUKLCK FNTAI, CORP, 457 Parker and some others asked Price to ait until he came in t1 see which ceas he w ouldx vote. Ac cording to Parker. Price refused this request and that is the reason s hyv Parker ohjected. No other witnesses were called to describe the procedures followed at the election, presum- ably because Price and Parker had agreed on the out- come. But Pagan was asked if he had attended the meet- ing at which the election \was held and he testified that he was there. Thus, once again it would appear that Parker's testimony is not as reliable as it could be. More- over, his testimony on this matter supports to some extent the conclusion that Parker's testimony was some- times apparently shaped more in accordance with the case he wished to present than with the facts as they were. The complaint in Case 29-CA-5993 alleges in para- graph 14 that Parker, on or about October 21, as well as on other dates, was assigned to more arduous and less agreeable job tasks by having his helper removed from his run in retaliation for his acting as shop steward. In accordance with the allegation in the complaint Parker testified that his helper was taken away from him on, ap- proximately, October 21. He further testified that he did not know why his helper was taken away and so asked the dispatcher, Sal Ross. According to Parker, Ross said "he don't know why, so I just let it go at that," and he went out that day without a helper. I find this testimony totally incredible. First of all, the allegation is clearly based on the charge which states in relevant part: Since on or about October 17, 1977, the above named employer by its officers, agents and repre- sentatives, has discriminated against its employee, James Parker, by assigning him to more arduous tasks and changing his hours because of his position as shop steward of Local 138. International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Thus, there is an obvious discrepancy between the date contained in the complaint and that contained in the charge. This is, of course, a minor matter which fre- quently occurs where ivestigation of the facts alleged in a charge reveals that incidents alleged to have occurred on one date turn out to have occurred on a different date. This discrepancy might be overlooked if it were the only one, which it is not. Rather, a cursory examina- tion of the charge indicates that it was filed on October 19, 2 days before the incident upon which it is based al- legedly occurred, according to the complaint. These dis- crepancies seriously undermine the Charging Party's case for clearly he took few pains to make certain that the in- cidents to which he testified occurred when he said they did. 7 In a case such as this where there are a myriad of incidents and happenings occurring within a few days of each other or even simultaneously and the ability to draw a proper conclusion hinges on a total understand- ing of the cause and effect relationship between these various incidents, timing is of utmost importance, and 7rINo alltc p st , a( th ellr (tousel l, expplin Ihes dP.c rpr llc It, failure of a charging party to give proper attention to the order of events seriously undermines the reliability of his testimony. Similarly, lwhen the fiormal documents are in contradiction with each other, the General Counsel's case is likewise put at a disadvantage. 2 Aside from the discrepancies as to dates, however, Parker's testimony that he did not know why his helper was taken away is patently absurd 7 in light of the testi- rmony, including his on, reflecting that the Union and the Employer had reached agreement that the helpers would be gradually eliminated from the runs. Parker must certainly have known why his helper was taken away. His further statement that he "just let it go at that" 74 would indicate that he knew very well why his helper was taken away. This fact emerged under cross- examination: Q. But management did know that you didn't mind losing your helper, in an effort to try to get a fifth day, isn't that true? A. That's true. But despite this admission and his testimony that he "just let it go at that," Parker, in fact did not "just let it go at that"-he filed a charge with the National Labor Rela- tions Board. He filed this charge on October 19, based on his helper having been taken away allegedly because of his position as a steward, and he did so despite the fact that he was actively fighting for elimination of the helpers since October 7 and despite knowing why his helper had been taken away. Thus, it is apparent that, with regard to the elimination of Parker's helper, both as to the circumstances surrounding it and the timing there- of, his testimony is riddled with inconsistencies. But, granting the inconsistencies, if he did not file the charge against the Employer for taking away his helper, inas- much as he did not want a helper to begin with, why did he file the charge? What had occurred just prior to his filing of the charge that prompted him to do so? Well, though it is patently clear that no one can theorize with certainty why Parker might have decided to file the charge the day he did, since his motives were never ex- plicitly made a part of the record, nevertheless a review of that record indicates that he had for a long period of time sought to obtain a fifth day's wages but had also for a long time rejected a fifth day's wages if it involved the washing of trucks or the sweeping of the warehouse, simply stated, because this was not chauffeurs' work. He had also rejected the Philadelphia bread run as a means of obtaining a fifth day's wages because he felt that the compensation being paid for this work was less than the scale required under the contract. What Parker wanted was a fifth day's day in return for a fifth day's work 7 A brief containing an ouiline of the events as the General Counsel understand them to hac occurred and on hich he relies would have been helpfuill in a case ia factuall l Irltricalt a i, hi, ine No brief as riled I'' ()n cross-exlminaltiorl arker Idillnied that he thought his helper had been tIken a.1 a hecip,eC J;lco hbO its I, phaling out the helpers. "like lie said hle as going t do ()On this point 'Parker's teslimon, ,as again 4 Parker tClfilld that he iicter olnilpliiedl .ibou hi, helper being taken is i lSSIC TRUCK RFNTAI COR 457 458 I)I:CISI()NS O() NAII()NA I l.ABR R-.I.A It)NS BA()ARI) doing the same thing he and the other drivers had been doing to earn wages for the other 4 days; i.e., delivering produce. Now, when advised that there simply wIas not a fifth day's produce delivery work available. Parker argued that the drivers should get paid 5 days' wages for working 4 days. When Respondent Classic refused this demand as "absurd," Parker suggested that the drivers would be illing to work without helpers to obtain the fifth day's work, the theory being apparently that it would legitimately take a driver longer to accomplish the produce deliveries alone than it would with a helper, and the produce delivery work would thus be spread out over the 5 days instead of 4. The Employer accepted Parker's offer,7 ' with Price's support, to have the driv- ers work without helpers because it would be economi- cally advantageous to do so. However, when the major- ity of drivers determined that they did not want to work without helpers but preferred to wash trucks and sweep floors for their fifth day and initiated a petition on or about October 14 to replace Parker as steward because he had taken the opposite position, Parker felt threat- ened. He suspected, as is charged, that the Employer was behind the petition to remove him and that the Union supported the Employer in its efforts to remove him. In order to fight back against the Employer and Union for what he felt was a conspiracy to remove him as steward and prevent him from obtaining the goals that he had been striving for, Parker filed the unfair labor practice charges of October 19 against both Respond- ents. Granted that this hypothesis may or may not reflect Parker's reasons for filing the October 19 charges, it is offered to show that there exists other possible alterna- tive reasons for the actions taken by Parker, aside from those proffered by the General Counsel as reflected by the allegations contained in the complaint. In other words, whereas the General Counsel argues that Parker filed the charges of October 19 because the Employer had taken his helper away from him in retaliation for his work as steward, the record indicates that the Employer took Parker's helper away from him in accordance with Parker's wishes and in an effort to implement an agree- ment reached between itself and the Union. According to Jacobson, before sending Parker out on his run without a helper he had a discussion with him during which he asked him if he had any objection to working without a helper. Parker replied in the negative and stated that he did not want to work with a helper. Jacobson then stated that, since that was Parker's feeling on the subject and since he was the men's steward, he thought it would make the most sense to let Parker be the first one to put the new system of "helperless" runs into effect. Jacobson had already told the men of his in- tention to phase-in the program gradually. The following Monday Parker was sent out without a helper. The testimony of Jacobson with regard to the circum- stances surrounding the elimination of Parker's helper ' tholugh IParkLr lestified that i as Iht lieol that insisted nII the ellli inlll of Ihr hcIlper lalhl Ih han hinlSt'lf, I find that the record 'L aip perls tile ctlllusioll that Parker ails at least a strong supporter olI' he illlie, i i le rl l It prilFc IaIc. % P i r ir l 'id P al tsltliel 111 lll ilt casl. 'Parker adnillcd "Abe rivc said i Maliagtmlrcil aglreed itsh II And I "tll along itlh il" withstands scrutitny far better thani does Parker's, because of its cotnsistency with surrounding facts. Thus, his deci- sion to do away with Parker's helper is in accordance with the agreement made with the Union. That he chose Parker to start with is consistent with the e idence that Parker had made it kinowri o several occasions to others and on the occasion of this discussion with Jacobson that he was in favor of vworking \without a helper in order to achieve a 5-day workwecek. Jacobson's testimony that he also chose Parker first because he was the shop steward and assigned him his first helperless run on a Monda is consistent with the evidence in the record because Park- er's charge is dated October 19) and the date of the al- leged violation contained in the charge is October 17, the Monday before Parker lost his position as shop steward. Thus it is patently clear that Jacobson's testimony is far more credible than Parker's on this subject and I there- fore credit the former over the latter wherever there are inconsistencies. Based on these findings I shall recom- mend dismissal of that portion of paragraph 14 of Case 29-CA-5993 dealing with this subject. Paragraphs 14 and 16 of Case 29 CA 5993 also allege that Parker, on or about October 28, had his hours changed for discriminatory reasons. According to Parker's initial testimony, the starting time for drivers prior to October 21 was 5 a.m. 76 but on that date he was informed by his dispatcher that his starting time thereafter would be 6:30 a.m.77 He further testified that Ross gave no reason for changing his hours and that no other driver was required to start at 6:30 a. l. 78 Abe Price testified that no particular starting time was ever mentioned on the 1977 labor agreement and, prior to the agreement reached on October 7 concerning the elimination of helpers, the drivers started work at vary- ing times between 3 and 7 a.m. 79 Then, according to Price, at the October 7 meeting a standard starting time was discussed in conjunction with the new program of driving without helpers. It was decided at that time that all of the drivers would report to work at the same time, 5 a.m., work 8 hours, and be paid for any overtime.Hi Pagan testified concerning the starting time that he would come in at 4:30, 5, or 5:30 am. or anytime he walnted to come in and go out on his run. This was prior to the decision to send drivers out without helpers. When the Employer began to implement the program of sending the drivers out without helpers, Pagan was as- signed "a special time to come in." He, like Parker, was one of the drivers chosen early to go out alone. " ' The ~I' Parker testified that cccasialllt at riser flight iorlle ill a late as h 3110 a . hut the was considred latle 7 Since PIarker's charge i Case 2CA 5'993 as filed ilt ()ctober ' alleging the iolaliion to hae occurred oi ()cltober 17, I lind I'arker im elrlOr vitlt regar i this pari t f hit tetlit nl , llu ' I'agail teslified tiha l it was required tI st art at h 1( nl Itist as Parker had hbeen l hi Iltheir helpers were elninlatlcd 7! A Ilolice liel been circulated or posted bh Ihe Illploycr Ill Jul, /Is eer. ad i,,iig all diiers. drrer lpers alld helpers thit the trsiling Ill ' %isas 5 ni As oltid carlit', te 5s nl stlrtilig litlp rCTLTiled fllolxsl p 1 rihabl. lu , t thosc dtiirs still titkilig \,lti helpers PIg~ill lcsifiethl ai tli 'ts I stil t tilt St i~tiltlt a helper aid at i spc l1 1I ti ' I kt 'il r ht \5,s iskeid cl l igil te petitltOll C ASSIC TRUCK RFNTI` CRPt 459 so-called special time was 6:30 a.m. and ias assigned to him by dispatcher Ross. When Pagan's time was changed he neither complained nor filed a grievance. Pagan testi- fied that, before his helper was taken away,. when he started work at 5 a.m. he had a number of key stops to make. Key stops were deliveries made prior to the stores opening and so called because the driver had to open the door to the store with a provided ke and place the goods to be delivered inside. Because of the nature of the delivery to be made. a key stop delivery could not be made by one person; it took two. 2lTherefore after Pagan, and apparently for that matter, any other driver, had his helper elimiiated, he could not make key stops and would necessarily make his deliveries later wehen the stores ere already open. Thus, it would make sense to have the drivers start at a later time in order to make certain that they cold make their deliveris at a time when the stores were already open. Consequently, they were sent out at 6.30 a.m. rather than earlier. Parker too testified that after his helper was eliminated he no longer made key stops but came in at 6:30 a.m. arind continued to do so "for the duration of the time that he was going out without a helper." Parker did not agree with Pagan's testimony that key stops could riot be made without a helper but admitted that he had never made a key stop without a helper and knew of no driver that had. He testified that his hours were changed from 5 a.m. to 6:30 a.m about "maybe a week after he lost his helper." Parker testified that his main objection to having his hours changed was that by the time he arrived at 6:30 a.m. the other drivers had left and he could not therefore perform his duties as shop steward. He did not, however, mind the change in hours from a personal viewpoint. s This argument appears to me to be clearly specious and, more probably than not, an afterthought. There was nothing to keep Parker from coming in early in order to transact his union business or, in the alternative, having the drivers wait until he returned from his run in order to do so. In the face of more convincing evidence con- tained in the record concerning the reasons for the change in Parker's hours, I am unwilling to ascribe it to the motive suggested, albeit obliquely, by Parker's testi- mony; i.e, to keep Parker from meeting with the other drivers to conduct union business. As to the actual assignment of a new starting time, Parker testified that he was advised on Friday, October 21, the day that he first went out on his run without a helper, that his starting time would be changed from 5 12 The record does not reflect the reasons shy two men were neces- sary to make key stop, hile onnl one as necessary to make other de- liveries Hovwevrer. one can concei,.e of s he necessit l of having one indi- vidual guard the ruck and is produce while the othe r is bhus opening up the ssore Pagan's staled reasons for haing two men o orking rather than one, i.e., onc to hanld the pr duce don from the truck, the other to re- ceie it and place it n the ground. appears to he as applicable to nonkey stops a to ke srlops and is nor particularly helpful : Parker did nor complain to management nor ile a grievance with ihe Union ooer his change in hours Ihus indicating a least initially, that he had no trong l*hlect ion, io I he change Aftr irst rtfiniug that he said nothing it Ross ' hen hi, hour r s .ere h c ha nged , Parker later testilied thai he told Ross that te union has io he someone presenl durin g p- eraing hours Ross I deceased I d not credi Parker a.m. to :30 a.m effective the following Monday, Octo- ber 24. As noted earlier, since Parker had filed his charge con- cerning these matters on October 19 and alleged in that charge that the violation occurred on Monday, October 17, 1 find that the events which he described occurred on the date indicated in his charge rather than on those supplied by him in his testimony. He was, therefore, at the time his hours were changed, still steward. I also find in accordance with his charge that the change in his hours was made generally to coincide with his being sent out without a helper and for the purpose of permitting him to make his deliveries at a later time, hen the stores were open thus avoiding the necessity of making key stops, a practice vWhich, as Pagan had admitted, re- quired two men. I therefore find that, since the change in Parker's hours was merely the coincidental effect of his voluntary choice to work without a helper, it was not discriminatorily motivated and I recommend dismissal of the allegation in the complaint based upon the change in Parker's hours. About the time that Parker was being sent out without a helper, drivers Pagan and Eddie Brown were also being sent out without helpers. Both men previously had been sent out with helpers as had the rest of the drivers. As noted, when Pagan was sent out without a helper he, like Parker, was told to start at 6:30 a.m. Pagan testified that without a helper the work was far more arduous since the driver was doing the work of two men. He complained to Price that the work was more difficult but kept with the schedule for a week or two. Then, appar- ently without being told to do so, he began to report to work earlier than he had been, and his job reverted to what it had been. From Pagan's own testimony, as well as from the testi- mony of other witnesses, it would appear that Pagan's being assigned to his run without a helper was a direct result of the Union's, Parker's, and his own attempt to get a fifth day's work at the expense of the helpers. Granted, his work became more arduouss 4 just as did Parker's but it became so simply as a result of his own preference and not as a result of discriminatory motiva- tion. Pagan as one of the few drivers, along with Parker and Walker, who voiced a preference for work- ing without a helper in return for a fifth day's work. As a natural effect of his decision to work alone, his work became more arduous, since he was doing the work of two men. As was the case with Parker, since he was no longer working with a helper, his reporting time was changed because, without a helper, he could no longer make key stops. Thus, I find that neither the more ardu- ous work which was assigned to Pagan nor his change in hours was the result of discriminatory motivation and I recommend that the allegations contained in the com- plaint dealing with these matters be dismissed. s 5 ' One incident t ouched upon lightly during Pagan's esrimon} con- ccrned his being ordered to move some skids He refused to obey his order There is no evidence that he order was discriminaoril moti at- ed, or hat Pagan was disciplined fr disoheing the order I find no "iii- laiton in connection sith the incident t Pagan nesified that ill October he ua., Itll occasion, sent OUt i;s a helper rather thiall i, a d rt Cr ftosme' , r. P arker also o i n occasion v s orked Continued ClASSIC TRICK RENTAL CORP 459 ^ - ^ 460 DLECISIONS OF NATIONAI. LABOR REL.ATIONS BO)ARI) To summarize: I have found all of the allegations in Case 29-CA-5993 to be without merit except for the al- legation in paragraph 12 to the effect that Respondent Company in October 1977 threatened employees (help- ers) with discharge if they became members of Respond- ent Union. Similarly, I have found all of the allegations contained in Case 29-CB-3087 to be without merit. My recommendations will be in accordance with these find- ings. Case 29-CA-6469 On June 16, 1978, Parker filed another charge in which he alleged that Respondent Classic directly and through its alter ego, Automated Bread Co.. discriminat- ed in favor of those employees who voted for McNeil and against those employees who voted for Parker in the October election for steward by limiting Parker's sup- porters to 4 days' employment per week. The complaint which issued based upon this charge al- leged that on April 1, 1978, Respondent Classic demoted Parker from his position as driver to a position of driver- helper and on May 1, 1978, refused to provide Parker, Pagan, and other employees with a fifth day's work while giving such to employees with less seniority all be- cause of Parker's activities as shop steward and because the other employees refused to sign a petition to remove Parker from his position as shop steward and because Parker and the other employees engaged in other pro- tected concerted activities. The record reveals with respect to the new charge that from October to roughly mid-December Parker con- tinued to drive without a helper. On or about December 178f Parker was once again supplied with a helper. On that date Parker was asked by Jacobson if he wanted his helper back. Parker replied, according to his own testi- mony, "Hey, I'm in no position to give or take. If you want to give it back, then you give it back." If not, I'm in no position. Who am I? I'm no boss. I can't call no shots. You take it. If you want to give it back, then you give it back." Prior to this discussion with Jacobson on December 17, Parker never had requested that his helper be returned. According to Jacobson, when he offered Parker his helper back he was the last driver to be working alone. Jacobson testified that he was aware that it was difficult for a driver to work without a helper. His testimony and that of Parker gave me the impression that Parker and Jacobson were very much at odds over Parker's stand concerning working conditions, specifically with regard to the fifth day of work. In particular Parker's position, discussed above, concerning the washing of trucks, the Philadelphia run, and his decision to work without a helper caused not only friction between himself and man- agement but a great deal of turmoil among the employ- ees. By December it would also appear from Parker's as a helper and, as a matter of fact. the contract, art 2. D, prosides that "chauffeurs when working as helpers shall be paid chauffeurs' pay Thus, it appears that the occasional assignment of drivers to work as helpers was nrot unusual bill sas contemplated under the terms of the contract. I therefore find Pagan's assignment as a helper was not di.cri- minatorily motivated. s" Jacobson placed the discussion at December 19 own description of his discussion ith Jacobson that he was pretty well tired of working without a helper but was too proud to come right out and admit his mistake. So. Jacobson, apparently sensing the same thing, made his offer to restore Parker's helper to him, i an effort to smooth over the "problcrm that had developed bctes en them." It 'was, after all. at a meeting where Christmas bonuses were being distributed at hich this con.ersa- tion took place. When Parker gave his begrudging non- committal answer, Jacobson took it upon himself to give back Parker's helper. The following Monday, Parker went out on his run with a helper for the first time sice the previous October. In April 197887 Parker was taken off his route as driver and sent out as a helper with Joe Walker. No one indicated to Parker why his position swas being changed. As noted earlier the contract provides that, if driLers are used as helpers, they will still receive the same pay as they would receive as drivers. Parker testified that, in keeping with the contract, he continued to receive the same pay and the same benefits as he had received while working as a driver. As a helper Parker reported to work at 5 a.m. as did the other drivers and helpers. After about a month of working as a helper, Parker went to Passaro and asked him why he was being sent out as a helper instead of as a driver. Passaro told Parker that there was no reason. Parker then stated that, if there were no reason, then he wanted to talk to Jacobson who might give him a reason. Passaro then asked Parker if he really wanted to drive and Parker replied that he did, that he thought he could take the responsibility as a driver. The next day Passaro sent Parker out as a driver and he continued on as a driver thereafter. From December 1977 when Jacobson gave Parker back his helper until the following April, Parker does not appear to have been involved in any protected con- certed activity. It is difficult to believe that after the con- ciliatory move made by Jacobson in December when he gave Parker back his helper, he should the following April demote Parker to a helper from a driver because of something he had done as a steward the previous Octo- ber. I cannot accept the General Counsel's theory on this matter. The reasons must lie elsewhere, most probably with management's dissatisfaction with Parker's work, matters discussed infra. The second allegation of the complaint in Case 29- CA-6469 has to do with the Employer awarding a fifth day's work to other employees with less seniority while denying the same to Parker, Pagan, and certain other employees because of Parker's activities as a shop ste- ward, the previous October, and because of the support he received from Pagan and other employees who re- fused to sign the petition to oust him as steward. According to Parker, he heard o or about May 13 from Pagan that there were men working on Classic equipment, work that he and Pagan had normally done before, and that these other employees had been working on this equipment since Septemher 12, 1977. On May 14 Parker went to Classic to check out Pagan's story and ' Froilm this point in the )Decisiin all dates w ill refer to 1978 uless otherwise indicated CLA.·SSIC TRILICK RFNTAI'A _ CORP, 461 found other driers and helpers gassing up the vehicles and washing the trucks. Parker admitted that this work was being done on the employees' regular day off by em- ployees who were senior to himself.88 He claimed that this work which had been assigned to the other employ- ees had not been made available to himself. He did not, however, testify that he ever asked management to assign him this work. Pagan corroborated Parker's testimony to the extent of testifying that in May 1978 he had a discussion with Parker during which he mentioned to Parker that some of the more senior drivers had been working Wednesday, the fifth day. According to Pagan, however, Parker stated that he knew that the other employees had been working the fifth day because he had seen them. Pagan testified that he and Parker agreed that they too should be working the fifth day, but he did not testify that either he or Parker requested this work. Passaro testified that in the spring of 1978 he had a discussion with Parker at the Key Food warehouse about cleaning out the warehouse and washing trucks as a means of earning a fifth day's pay. This discussion took place in the presence of several other drivers including Joe Walton. According to Passaro he told Parker that, if he were interested, he should go over to the warehouse to sweep up and to wash trucks and he would get paid for it. Parker replied that he "wasn't too interested in washing trucks or sweeping floors." In May 1978 Passa- ro also posted a large sign on the bulletin board in the office concerning the availability of this work. Sometime in September or October Passaro was in the truck bay trying to get the men to go over to wash trucks. Parker was present so Passaro told him that, if he wanted to wash trucks on a Wednesday, the work was there. Parker said he would let Passaro know but, ac- cording to Passaro, he never did. Though Parker made a blanket denial that he ever turned down the opportunity to wash trucks in return for a fifth day's work, I credit Passaro to the effect that Parker was offered this work on two specific occasions and that he turned it down. I also credit Passaro's testi- mony that he had posted a notice advising all employees that this work was available and I find that Parker failed to take advantage of the offer. Similarly, there is no evi- dence that Pagan was denied the opportunity to wash trucks in return for a fifth day's pay. Apparently, the work was available, its availability was well publicized but neither Parker nor Pagan chose to avail themselves of the opportunity. In short the evidence does not sup- port the allegations contained in the complaint in Case 29-CA-6469 and I recommend that it be dismissed in its entirety. Case 29-CA-6580 On July 2789 Respondent Classic filed with the New York State Board of Mediation a request to arbitrate the issue of: ~" One driver. who "was seen working the fifth day. Norris Dabney. had less seniority than Parker or Pagan "9 On the same date Parker authored a letter to the Union charging Classic with siolations f the contract He did not mail this letter until Whether the Employer can discharge James Parker because of his inefficiencies in performing his job. The Employer takes the position that its decision to go to arbitration to seek Parker's discharge was legitimately based on his inefficiencies as an employee. On July 31 Price, who had been sent a copy of the re- quest to arbitrate, mailed a copy of the same to Parker. On August 2 Parker filed the charge in Case 29-CA- 6580 charging that Respondent Classic had filed its notice of intention to arbitrate his termination because of his activities on behalf of Respondent Union and because he had filed charges under the Act. On August 10 Parker was advised through Price that the hearing before the arbitration was scheduled for September 22. Parker was subpenaed to appear. According to Respondent's witnesses, there were sev- eral areas in which Parker was considered inefficient. Ja- cobson testified that the decision to take Parker to arbi- tration was his own. He indicated some reluctance to do so since the Company tries to avoid a high turnover. Ac- cording to Jacobson, some of the things considered in making his determination were Parker's record of tardi- ness and absences, adverse spotting reports on Parker, complaints from storekeepers that Parker had been dis- courteous to them, and some dissatisfaction with Parker's attitude. According to company records, as early as December 13, 1976, the Company, through its then dispatcher, Sal Ross, saw fit to write the Union a letter concerning Parker's attitude in failing to give proper attention to "important job details." According to a memo of that date, when Parker was questioned about a shortage at one of the stores, he replied, "Fire me!" Ross retorted, "No, quit!" Parker insisted that Ross fire him which he did and upon request gave Parker a pink slip. The fol- lowing workday, when Parker reported to work as usual Ross refused him employment. The record does not reveal what else occurred with regard to this incident but apparently the termination was retracted for clearly Parker continued in the employment of Respondent Clas- sic. Though apparently offered to show that Parker's at- titude left something to be desired, I doubt that it had anything to do with the decision in July 1978 to seek his discharge through arbitration. Clearly, the incident was far too remote in time. With regard to the matter of lateness the record re- flects some evidence9 0 that the Employer maintained a policy of requiring its employees to report at the proper starting time. A memo dated July 8, 1977, reflecting this policy warned that anyone failing to report on time would be reprimanded, that a record of all latenesses would be kept on file and with the Union, and that con- tinued latenesses would eventually lead to dismissal. On the following day, July 28 Inasmuch as the Employer's request for arbi- Iration was mailed prior to the date Parker sent his letter charging Clas- sic with contract violations, it ould appear that the Employer's decision to seek arbitratlion to determine if it could discharge Parker could not hase been in retaliation for Parker's letter s' As noted earlier, there is also some eidence that he starting time v\aried CLASSIC TRCK RENTAl COR 461 462 D)I CISIONS OF NATIONAL L.ABOR REL.ATIONS B()ARI) July 20, 1977, Jacobson wrote the following memo to Parker: July 20, 1977 To James Parker It has been clearly established to you that our workday commences at 5:00 a.m. As you are fully aware, you have not adhered to this schedule de- spite repeated reprimands. Unless you are able to conform to the 5 a.m. re- quirement, I will find it necessary to discharge you from employment. Very truly yours, /s/Mark Jacobson, Pres. cc: Local 138 Office James Parker On July 27, 1977, Jacobson wrote the following memo to Parker concerning absences: July 27, 1977 To: James Parker I find it necessary to reprimand you at this time for not reporting to work, nor failing to report the fact that you had no intention of working today. As you are aware, company policy demands that you report an intended absence at least two hours before reporting time which is 5:00 A.M. There is always someone at the office phone to whom you could relay a message. It is of utmost importance to our efficiency that you do so in the future. I am hopeful that will not occur again. Very truly yours, /s/Mark Jacobson Mark Jacobson, Pres. cc: Local 138 Office James Parker The contract requires that an employee who intends to be absent must call in and report same. On July 28 Jacobson wrote the following memo to Parker, once again concerning tardiness: July 28, 1977 To: James Parker You reported late for work again today. May I remind you once more that our workday com- mences at 5:00 A.M. You should be aware that continued latenesses will eventually lead to dismissal from employment. Very truly yours, /s/Mark Jacobson Mark Jacobson, Pres cc: Local 138 Office James Parker Copies of each of these memos were, as a matter of course, sent to the Union. }1' This was the practice, ac- cording to Jacobson, whenever it was necessary to issue memos of reprimand. Memos of reprimand for lateness were not sent out in every circumstance but only when tardiness was excessive, for example, several instances of lateness over a period of several weeks. Parker was aware of the Employer's policy with regard to lateness and admitted having seen the July 8, 1977, memo on the subject. With regard to his own tar- diness and absentee record Parker testified that no one from the Company ever complained to him about his work, that he was only late once or twice for 5 or 10 minutes at the most, and had no problem with absentee- ism. In subsequent testimony Parker admitted to having re- ceived at least one oral warning but could not recall when it had issued or what it concerned but thought it might have been over lateness. He admitted having re- ceived the July 20 memo concerning his lateness. He then added that he recalled being orally warned by Sally Ross, the dispatcher, for being late both before and after receiving the July 20 reprimand. Thus, there is again some inconsistency in Parker's testimony, this time with regard to oral warnings for lateness. He denied ever having seen the July 28 memo. With regard to absentee- ism, Parker's testimony was as follows: Q. I now show you Respondent's Exhibit 5(c) 92 for identification, and ask you if you ever saw that or the original or another copy of it? A. No. Q. Were you ever given written notices concern- ing your failure to report absenteeism. A. One. Thus, either there was an additional memo sent to Parker for absenteeism or he was inconsistent when he denied receiving the July 27 memo, the only one offered on the subject by Respondent Employer. In the quoted testimo- ny Parker admitted that he received a memo concerning absenteeism. Yet in another part of his testimony Parker insisted he only received two warnings-the July 20 memo concerning lateness and the August 12 memoran- dum concerning his refusal to take the Philadelphia run. Thus, at this point in his testimony Parker evidently forgot all about the memorandum concerning his absen- teeism. In short, Parker's testimony concerning warnings, oral and written, regarding lateness and absenteeism is not reliable. Even so, the last written warning concern- ing Parker's lateness or absenteeism was dated a full year "' Copies senil to the Ulllill tre no rineIessarily addressed to Price which may account for hi, denial of haing see them Price denlied seeing the July 2 memorandum hich Parker admitted receiving. ". The July 27 memo repeilmalding Parker for failure to call in wher he expected o be absent. CLASSIC TRUCK RENLTAL CORP. 403 prior to the date the notice to arbitrate was filed. Again, quite remote. With regard to the matter of complaints from store op- erators about Parker, Jacobson testified with some uncer- tainty about a number of incidents. He noted that he per- sonally did not receive all the complaints: that they would have come into the office to Ross or Passaro. One such complaint received from Store #770 on De Kalb Avenue was to the effect that Parker gave the store op- erator "a whole hassle about it" when asked to place the merchandise on a U-boat. The complaint came to Ross' attention and Ross advised Jacobson of the incident at one of their regular Thursday night meetings dedicated to such matters. On Fridays there are meetings with the drivers and, according to Jacobson, he would have dis- cussed this incident with Parker at one of these meet- ings.93 Jacobson testified with regard to a second complaint, one which came from a store on St. Nicholas Avenue in Ridgewood. In this case the owner of the store com- plained directly to Jacobson that Parker was very arro- gant with him. Though Jacobson could not recall the specifics of the incident which gave rise to the charge that Parker was arrogant, he did recall that it again in- volved the store operator requesting Parker to stock the merchandise properly and Parker telling the operator that it was just a sidewalk delivery and that he did not have to put it on the U-boat or in the cellar. As with the incident discussed earlier Jacobson discussed the matter with Parker. Jacobson could not recall when this inci- dent occurred, not even the year. I conclude that it was remote in time. Jacobson testified to a third incident-a complaint from Store #718 on Pineapple Street, Brooklyn. The complaint was probably received by Sal Ross, according to Jacobson who was not certain on this point. Again it concerned Parker's reluctance to place the merchandise on the U-boat as directed. Again, Jacobson could not recall when this incident occurred and did not reduce the incident to writing because, as he testified, "these are day to day problems." From this testimony I conclude that Jacobson did not consider such incidents, occurring singly, as important enough to keep records of, but im- portant enough to discuss with the driver involved, as he did in this case with Parker. This is not to say that such incidents occurring frequently or in conjunction with other misbehavior might not give rise to greater concern on Jacobson's part. Still a fourth incident occurred concerning which Ja- cobson testified, this one involving Store #608 in Queens, I of 17 stores owned by the president of Key Foods. The incident involved a request made by the pro- duce manager of the store that Parker stack the mer- chandise in such a way as to keep certain items together. According to the report received by Jacobson, Parker did not want to be of any assistance to the produce man- ager and gave a very arrogant response to his request. 93 Jacobson struck me as extremely careful during his examination Particularly, he refused to give dates and times When after several months or years he felt that he could not accurately do so I consider his cautiousness an attempt on his part to he as truthful as possible and not an indication of evasiveness Jacobson explained that his company is in the business of providing a service and it was Parker's job to comply with the request. Again. Jacobson was unable to recall when this incident occurred and testified that it was not written down. With regard to these several complaints from store op- erators, Parker admitted that he had, in fact, refused to place merchandise on U-boats. He recalled an incident occurring at a store on De Kalb, possibly the same inci- dent recounted by Jacobson as having occurred at that location. Parker recalled this incident as having occurred in 1975 or 1976 but admitted similar incidents may have happened as late as June or July 1978. As far as the Em- ployer's policy is concerned, Parker first testified that whether drivers placed the merchandise on the sidewalk or on U-boats was a matter of the driver's discretion. He also testified, however, that drivers were not to get into hassles with the store personnel and he later admitted with regard to the placing of merchandise on U-boats that the instruction from his Employer was "to work with the stores." Thus, from all of the testimony on the subject it ap- pears that Parker had been the object of several com- plaints from store personnel, mostly about his refusal to stack the merchandise where the store personnel wanted it and about his arrogant attitude. It would also appear that no single incident was considered important enough to take disciplinary action upon, but it is quite possible that cumulatively the incidents were considered a serious matter. Although considerable time and effort were expended during the hearing to adduce evidence concerning Park- er's record of lateness and absenteeism and somewhat more to develop evidence concerning complaints about him from store operators, it would appear that by far the most serious allegations concerning Parker's inefficien- cies were with regard to his alleged stealing of time. From the record as a whole, it would appear that Re- spondent Employer utilizes two means for determining whether or not a particular employee is stealing time. One involves the use of spotters, the other the use of company overtime records. The spotters utilized during the relevant period were two in number, one employed by Respondent Classic, Passaro, and one employed by Key Foods, Jack Birdie. Birdie spotted all trucks leaving the Key Foods warehouse carrying Key Foods goods, whether in Classic trucks or in other carriers, the pur- pose primarily being to guard these goods against hijack- ing or pilferage by drivers. Passaro spotted Classic trucks only. This consisted of following the trucks, store to store, marking down the amount of time it would take to make a delivery, watching out for drivers stealing time by "goofing off' or stealing merchandise. As spotting is a surveillance type of operation, a spotter tries to do his work without being observed by the subject. During the regular Thursday night meetings already mentioned, where customer complaints, maintenance problems, and personnel problems are discussed, spotters' reports are likewise considered. From these spotters' re- ports, by comparing the different routes, the number of stops, and the number of pieces delivered by each driver C L S S C R U K R E T A ' . . 464 DECISIONS OF NATIONAl. L.ABOR RELATIONS 13OARD to the amount of time taken to complete the deliveries, it can be seen which of the drivers is doing his work expe- ditiously and which of them are "dogging it," according to Passaro's credited testimony. Considerations such as traffic problems and weather are also made a part of each report where material. Up until about June 1977 every Friday or every other Friday there would be a meeting with the drivers during which the problems dis- cussed the previous evening among members of manage- ment were discussed with the drivers to the extent they were involved. During many of these regular Friday meetings with the drivers, along with all of the other problems discussed, was Jacobson's concern about the stealing of time which he likened to the stealing of mer- chandise. Although the regular Friday meetings with employees were not held as often after June 1977 as before, they were nevertheless held with some frequency and Jacobson continued to stress his insistence on the drivers refraining from "dogging it" or stealing time. Thus, it seems clear that Respondent's concern with the stealing time issue was historic, consistent, and genuine. In spite of Jacobson's frequent warnings to the drivers that he considered stealing time the same as stealing mer- chandise, on December 6, 1977, Parker, on a run to the Bronx, left at 6:30 a.m. and did not return until 6 p.m. On that day he delivered 720 pieces at 7 stops. This was according to Passaro who filed the spotter's report which included the comment, "He really dogged it today." Passaro told Ross that Parker had parked at Store 796 for better than an hour and a half. When Parker finally returned, a big argument ensued between Ross and himself. Parker refused to clean off his truck and just walked out of the warehouse. According to Jacobson, he received several adverse reports from his spotters in October, November, and De- cember, 1977 about Parker "dogging it." In addition, since he signed all the checks tor the employees, he became aware that Parker's overtime had increased no- ticeably over that period of time. Passaro's testimony concerning his reports to Jacobson about Parker killing time just sitting in his truck was supportive of Jacobson's testimony. Jacobson credibly testified that not only was the Company losing money by having to pay Parker for unearned overtime but there were also problems because of the perishable nature of the merchandise. As Jacobson explained, the Company's policy was to get the produce delivered as expeditiously as possible, usually by I or 2 o'clock in the afternoon, so that the stores would have it available for sale the same day. If the produce is not re- ceived promptly there are complaints. To make certain that deliveries were made promptly and to avoid any problems with the stores, the Company had a policy whereby, if a driver were to finish his route within 4 or 5 hours, he could park his truck, go home, and get paid for a full day. Despite this policy, according to Jacobson, Parker frequently failed to complete his route in the given timeframe or within a period comparable to the performance demonstrated by other drivers, and was re- turning 4 or 5 o'clock in the afternoon. When Passaro reported to Jacobson how Parker was wasting time sitting in his truck he recommended to Ja- cobson that something be done about it. Jacobson con- sidered the reports of Parker's goofing off, the excess overtime that he was paying him, the late deliveries to customers and the complaints he had received from stores about Parker, and agreed that something should be done. In addition to these so-called inefficiencies Jacob- son also felt that he should get rid of Parker because of the "total disharmony" which he had brought about in the shop. As Jacobson explained, "The helpers wanted . . .to kill him," quite obviously because they had become aware that he was trying to do away with their jobs and "half the drivers wanted to physically go at him" because he had been insisting that the Employer force them to work without helpers. With all these prob- lems which Parker presented to the Employer at this time, still Jacobson felt that he could not take action against him without first consulting his lawyers because the charge which Parker had filed against the Employer with the National Labor Relations Board in October was still outstanding. About December 1977, Jacobson visited his attorneys and told them of his desire to proceed against Parker. He was advised, however, not to do so because the case then pending before the Board required a "more sensi- tive handling" of the situation than might otherwise be called for. Jacobson took his attorney's advise and so did nothing at the time insofar as taking disciplinary action against Parker was concerned. He did, however, meet with him one Friday before Christmas to discuss with him his inef- ficiencies. This was the same meeting discussed supra, at which he informed Parker that he was giving him back his helper. At this meeting Jacobson told Parker bluntly that he felt that Parker "was screwing around" and he "knew that he had not been doing his job as expeditious- ly as possible." He told Parker that he was going to "afford him the opportunity to have his helper back if he so desired but if he didn't desire it, he had better start doing his job in proper fashion, and not spend 2 hours lying on the side of the road somewhere." He advised Parker that he was "totally fed up with his activities"; that he "wasn't going to tolerate his inefficiencies"; that he "wasn't going to tolerate his stealing time";94 and that "he wasn't going to tolerate his abusing the stores." Despite Parker's receiving his helper back and the rep- rimand from Jacobson, he did not, according to Jacob- son, improve. The Employer attempted in the early months of 1978 to assign Parker the shorter routes, pri- marily the one closest to the warehouse consisting of 7 to 12 stops and between 600-1,00095 pieces of merchan- dise. Jacobson testified that, whereas Parker would take 10 hours to do this run, other drivers did it in 4-5 hours. On April 18, 1978, Joe Walker was sent out on a run to Brooklyn with Parker as his helper. Passaro, on spot- ting duty that day, reported that, after they made a de- livery to Store #798, "they pulled to the next block and "9 Parker denied that Jacobson ever discussed with him the subjects of stealing time or overtime other than in lone group meeting in late May 1978. credit Jacobson on this matter 9' Other drivers were delivering on a heavy day about 200-250 more pieces than Parker. according to Jacobson's credited testimony, and would make between 7 t 14 stops. CLASSIC TRUCK RENTAL CRP. 465 parked there for an hour and a half."! '" Passaro reported the incident to Jacobson. Although Respondent argues that this incident should be correctly viewed as a nega- tive report on Parker since he %was part of the team, both members of which had been caught stealing time, the General Counsel argues that, since the driver admittedly "calls the shots." Parker cannot be blamed. I tend to agree with Respondent's position. If Parker did not want to engage in stealing time along with Joe Walker, I am certain that he could have convinced Walker to get back to work by merely stating that, unless he did so. Parker would advise the Employer what had occurred. I agree with Respondent that as a team they were both responsi- ble. In May there was a regular Friday meeting with the employees at which the men twere again warned about dogging it. They were advised again, as they had been on previous occasions, that the Company employed spot- ters, and there had been reports from the spotters that the men were not running their routes as efficiently as they could. The men were informed that from an analy- sis of the logs it could be seen that certain men would go out on a route on I day and spend 10 hours to complete the run, then go out on the same route the next day, with the same number of stops and the same number of pieces, and be able to complete the run in 4 hours be- cause they had something personal that they wanted to do. The men were advised that management was aware that some of them "were playing with the time" and that they were to stop this practice. The men were told that an hour of overtime normally cost the Company more than a case of merchandise, that to steal an hour of over- time was like stealing a case of merchandise, that stealing merchandise was cause for dismissal and that therefore stealing time was likewise cause for dismissal. Parker was one of those present during this meeting and heard Ja- cobson's warning. He testified however that this was the only time he heard anyone from management discuss stealing time being a violation of company rules. In June 1978 the Employer's accountants visited his place of business to do their periodic 6-month analysis of the Company's expenses. They reported to Jacobson on all aspects of the business including payroll costs. Payroll was broken down into several categories including total cost for overtime and overtime paid to each employee for the period immediately preceding the analysis. 97 The accountants' figures indicated that Parker had received double the average of the overtime earned by the other employees over the 6-month period January through June 1978.98 Whereas Parker received $900 in overtime and Joe Walker received about $700, the other drivers averaged between $150 and $250 for the same period. When asked about Parker's overtime in previous years, 96 Passaro testified to one incident where he spolted Parker sitting behind the truck for an hour and a half This may or may riot be the same incident Parker admitted putting in fr osertime during the time he worked with Walker but stated that it only amounted to I or 2 hours per week "'when the route as real heavy." and in the winter during heas snows. 97 The General Counsel asked Jacobrson if this material a aailable Jacobsoin assured him that it als in his office anrd could be extracted The General Counsel did not pursue the matter. n I The report was still in draft form aid, of course. not quite cormplete Jacobson testified that in the period January through June 1977 Parker's overtime was one of the lowest fig- ures among the drivers and helpers. In the second half of 1977 Parker's overtime began to increase until by the end of that period he was at the top in overtime received or close to it. From the spotter reports, from a comparison of the hours taken by other drivers to complete their runs and from the report of the accountants as to the amount of overtime received by Parker as compared to the amounts received by other drivers, Jacobson con- cluded that Parker was stealing time. O)n the subject of overtime, Parker denied that he received any at all except for the period of time he worked with Joe Walker. After receiving the report from his accountants, and determining that Parker was receiving more overtime than anyone else, and after receiving the reports from his spotter that Parker was stealing time, Jacobson consid- ered also Parker's demonstrated arrogance and the ill feelings that had been created between Parker on the one hand and Ross and Passaro on the other and decided once again to talk to his attorneys to see what could be done about Parker. According to Jacobson: It was like nitpicking things. where everything became a conflict. I decided I could no longer put up with it. I just felt like, that I was the one that was being prejudiced. Because I couldn't proceed in operating a business in its normal fashion. My hands were tied. And I finally spoke with my attorney. Once again Jacobson was advised not to proceed to arbitration against Parker. Jacobson therefore decided that once again he would have to speak to Parker about the situation. He confronted Parker with the fact that he had received the report from his accountants, that Park- er's overtime had exceeded everyone else's, that he was unhappy with Parker's work, that in his opinion Parker "was screwing the company," and that the time had come when he "wasn't putting up with it anymore." Ja- cobson told Parker that, if he thought he could hold him over a barrel by running to the Labor Board, he could not do so. Despite advice of counsel he advised Parker that he intended to proceed with the arbitration against him because of his failure to follow company policy and for stealing time, and that maybe it was about time to straighten out their problems. According to Jacobson, Parker simply replied that, as far as he was concerned, they had no problems and that Jacobson "could do whatever he pleased." 99 Subsequently, Jacobson again saw his attorneys and advised them that he felt he just had to seek the remedy available to him under the contract, to take Parker to ar- bitration to determine if he could terminate him, since he felt that he was being "prejudiced" or "persecuted"' °" ,'9 Parker did nol testifs with regard toi this discussirtn but testified e.asielv o the general subjec of stealing time tie specifically denied Ihai arnyone from tlhe C'lirpan e.er mentioned taking him t arbitrationrl I credit Jacobson oin this mattiler ""1 Terms used h) Jacobhson in his testimolny CLASSIC TRUCK RENJ AL COR I'. 465 466 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD because of Parker's actions in failing to do his work properly, then hiding behind the Labor Board in order to prevent the Company from taking remedial steps against him. About this time, in June, Jacobson continued to re- ceive spotting reports from Passaro, both good and bad. On June 27 Parker and his helper made his run in 4 hours and 20 minutes, time which Passaro termed "fan- tastic," very good in terms of the number of pieces deliv- ered and the number of stops. This proved all the more to the Employer that Parker was capable of doing his work in proper time and that on those days when he took much longer he was "goofing off." In fact, on June 16, Parker had been seen by Passaro parked for an hour and a half near Linden Boulevard, not performing his duties. On this occasion, he had left at 6 a.m.. made 4 stops and delivered 642 pieces, and returned at I p.m.t"' In addition to Passaro's spotting reports on Parker. Ja- cobson also received spotting reports on Parker from Birdie during the period June and July 1978. Again these reports were both favorable and unfavorable. One of these reports involved Parker's sitting in his empty truck for between 1-1/2 to 2 hours after making his delivery. The delivery made on this particular occasion consisted of about 40 pieces, 24 of which were bunched parsley in a paper bag. According to Passaro the entire delivery should have taken no more than 10 minutes. The Birdie report for this day also noted that Parker sat in his truck for 20 minutes after each of his other deliveries. '102 On July 27 the Employer through its attorneys filed its notice of intention to arbitrate the matter of whether it could discharge Parker for inefficiencies. The arbitration was to be held through the facilities of the New York State Mediation Board in accordance with the provisions of the labor agreement with the Union. This was the first time, according to Jacobson, that the Company ever sought to invoke the arbitration clause of the labor agreement against an employee. On August 2, 1978. Parker filed the charge in Case 29- CA-6580 in which he alleged that the notice of intention to arbitrate was filed because of his activities on behalf of the Union and because he filed charges with the Na- tional Labor Relations Board. On September 12 com- plaint issued based on said charge. Respondent takes the position that it has undertaken the course of action it has because Parker was stealing time and for the other rea- sons enumerated above. The record certainly supports a finding that Parker had been engaged in protected activity. He was a union member but so were all the other drivers. He had served on the negotiating team but the contract had successfully been arbitrated and it appears that its negotiation had "" One might be tempted to argue that, since Parker earned no over- time on this occasion and the Employer's policy would permit the drivers to go home if they finished their runs early. no harm had been done However, it seems clear from the record that the Employer could change the routes around, adding or subtracting stops on those routes Thus. if all drivers worked at a steady. normal pace, presumably fewer drivers would he needed to do the same amount of work. The loss to the Em- ployer due to stealing time is thus quite apparent even where there is no overtime involved. I" Passaro. w\hile on the stand, offered to make these reports available to the General Counsel but the offer was declined. raised no animosity on the part of anyone. Parker's grievance over the August 4, 1977, incident had never gotten off the ground and had been, by the time the Em- ployer filed its notice of intention to arbitrate on July 27, 1978, apparently long abandoned. A good many prob- lems surrounded Parker's running for steward in August 1977 but these problems concerned, for the most part, re- lations between Parker and the drivers rather than be- tween Parker and management. Thus, Parker's active at- tempt to get the helpers into the Union was ephemeral in nature, lasting but a few hours until, in violation of the Act, Jacobson stated that he would let them all go before he would agree to their membership in the Union. As soon as Jacobson made his position known in an in- stantaneous outburst, Parker dropped the subject and im- mediately embarked on a program to get rid of the help- ers in order to assure the drivers of a fifth day's work. There is not a shred of evidence that after October 7. when the subject of the helpers being brought into the Union was first brought up and rejected, that Parker pursued this objective by any means undertaken through direct negotiation with the Employer and the Union. On the contrary, Parker's energy as steward, after October 7, was expended entirely in attempting to get the Em- ployer to agree to send the drivers out without helpers, a plan which the Employer, himself favored. But although Parker made no further overtures to the Employer after October 7 to get the Employer to have the helpers cov- ered by the contract and, in fact, did his utmost to get rid of the helpers altogether, Parker on October 19 un- dertook a course of action totally at variance with his ac- tivities as steward. On that date he filed charges against both the Employer and the Union for failure to extend the coverage of the contract to the helpers-the same employees that he was trying simultaneously to get rid of. The inconsistent nature of Parker's actions, together with the timing of the filing of the charge which oc- curred within a few days of the drivers' attempt to circu- late a petition to remove Parker as steward, convinces me that Parker filed the charge against the Employer and the Union not because of any desire to aid the help- ers but rather in retaliation for what Parker suspected was a conspiracy to remove him as steward. Thus, in- cluded in the complaint which issued based on this charge was the allegation that Jacobson requested em- ployees to sign the petition to remove him as steward. It was in the months of October, November, and De- cember, immediately after Parker's removal as steward, that Jacobson noticed an increase in Parker's overtime and an upsurge in adverse reports on his work from the spotters. Finally, just before Christmas 1977 Jacobson discussed his dissatisfaction with Parker's work with Parker, noting in particular the matters discussed earlier herein. A few days later, on December 28, the Regional Office issued its complaint against the Employer based on Parker's charge. Jacobson, in his testimony, noted his frustration in feeling that he could do nothing about Parker's poor work record while there was a charge out- standing against the Company. In June 1978 when Jacobson received his accountants' report he called Parker in and, as described above, repri- CLA~iSSIIC TRUCl RNTA CRPK 4. . manded him again for the inefficiencies in his work. O)n June 16, 1978. Parker filed the charge in Case 29-CA 6469 alleging that Classic alld its a/ler ego. Automated Bread Co.. had been, for 6 months, discriminating against him and his followers in favor of McNeil and his follos - ers. On July 21 the Region issued its complaint hbased on Parker's June 16 charge. On July 27 the Employer filed its notice of intention to arbitrate the discharge of Parker. From the totality of the evidence I cannot conclude that Respondent decided to file its notice to arbitrate Parker's discharge because of his protected concerted or union activity because much of it had occurred monthlls hefore. here .s as however, the timeliness of the June 16 charge and the is- suance of the July 21 complaint sshich ml) has e pla!ied a part in Respondent Classic's decision to seek Parker's discharge. Stacked against the case put togethelr h the (ieneral Counsel to prove a iolation i Respondent's case upoii which it relies to sho\% an intention to discharge or. more accurately, to bring a case to arhit';ation in order to discharge Parker. Much of that upon which Respondenl relies to show cause for discharge consists of matters remote in time from the date upon which notice to arti- brate was given On the other hand, it is clear that Parker had fairly recently been engaged in stealing time. had been warned about it, and had cavalierly brushed aside the criticism, despite the fact that Respondent had ofttimes advised him and other employees how seriously this particular offense was considered Jacobson testified. in my opinion credibly, that he felt that Parker was steal- ing time, then hiding behind charges with the Board ill order to protect himself from discipline. I think that Re- spondent is correct in his assessment of Parker's stand. Although it is quite possible that Respondent would not have filed its notice to artibrate Parker's discharge absent Parker's filing unfair labor practices, I cannot conclude that the General Counsel has sustained his burden of proof in this respect. Rather, I find that the General Counsel has failed to prove by a preponderance of the evidence that Respondent filed its notice of arbitration with regard to its intention to discharge Parker because of discriminatory motivation or because Parker had filed charges with the Board. On the contrary, I conclude that, for reasons stated by Jacobson during his testimony, Respondent was initially dissuaded from seeking Parker's discharge because of the outstanding charge, then determined later to file the notice to arbitrate his discharge despite the new charges filed by Parker on June 16 and the complaint which issued on July 21. Granted that Parker did not endear himself to the Employer by filing the new charge on June 16 but neither did he by so doing succeed in insu- lating himself from discharge for cause simply by virtue of the fact that he had engaged in protected activity. whether or not this was the purpose of his filing of the charge.103 As stated in Klate Ilolt Company, 161 NLRB 1606, 1612 (1966): "" Rtos and uara,... /,, i. h a (ait Opcn Aitr Surket. 211 NI RI 945 (1977) ThFile mere fact that an employer may desire lo ter- minate an eIployee because he engages in un*el- come concerted activities does not, f itself. eslab- lish the ula fulillss of a suhbscquclt discharge. If an employee pro ides an employer sxithi a ufficient cause for his dismissal b engaging in conduct fi ss hich he would ha e been terminated i any;- e entl and the employer discharges him for that reason. the circumstance that the employer 'celcomcd the opportunitx to discharge does iiot make it discilinll- atorS inILd therefore lass.ful t'cr-taill Ili.coindluclT sxlliicLh s(I]ud jllutifs a discharge. absent an protected actiit, ,.ill also justif\ a dis- chatr ge despite protected acti it 5. Ro aliid .1uzirlcco. In.. suipra: Summitr/l lt/c, Inc.,. 245 N RIB No Ill {197(). 1Therefore, if the Finploer felt that these tere grounds for discharg e of Parker. .hich I find e did. then he certainly had grounds to file a notice of itention to arbitrate to determine if ie swcrcT correct i Ilis judg- ment. I therefore find no i olation in Respondent (Clas- sic's decision to issue its notice of intention to alhitlralie conceriiiig its intention to discharge IParker. Just prior to the scheduled date for arbitration, i Sep- tember 1978, Jacobson again spoke with Parker. lie asked Parker if he realized why he was taking him to ar- bitration. He told him that his overtille swas highly ill excess of that of other employees. IHe advised him that he, Parker, knew that the Company employed spotters and that he, Jacobson, had received reports from these spotters indicating that Parker had taken excessi' e tine sshilc out o his route. lie informed Parker that whtma tit, was tryinlg to do was to get him to get his job donle in a normal timeframe. Parker replied, according to Jacobson. that he did not feel that he was doing ;anythilng ut of line. The scheduled September arbitration sas postponed as was the next two scheduled arbitration hearings, the third one indefinitely. On December 18 and 19, 1978, and on January 29 and 30 and February 1, 1979, the hearing \vas conducted in Cases 29-CA-5993, 29-CB-3087, 29-CA-6469, and 29 CA-6580. On February 26, 1979, the charge i Case 2- CA-7044 was filed. Case 2-CA-7044 In Case 29-CA-7044 filed by Herman Mcl.ean. an employee of Respondent Classic, it as charged that Classic denied vages and other benefits o Mcl.ean be- cause he was not a member of the Union and thus ren- dered unlawful assistance to the Union in violation of Section 8(a)(1) and (2) and discriminated against McLean in violation of Section 8(a)(1) and (3). It further alleged that on January 5 1979, Respondent Classic discrimina- torily laid off McLean because he tried to join the lnion and because of other protected concerted acti ities in which he engaged, also in violation of Section X(a)(1) and (3). When comiplaint issued oni April 18, 179). one of the substantixe allegations contained therein s\*as that: Since on or about August 26, 178, Respondent, h\ Anthony Passaro alld Mark Jacobson . aried ClASSIC RCK RFNT.\l R 4r' 46; DECISIONS OF NATIONAL LABOR RELATIONS BOARD and directed its employees not to become members of the Union . . . .04 A study and analysis of the record reveals no evidence to support the allegation that anything at all occurred on or about August 26, 1978. 0 5 Since the General Counsel did not file a brief I am left to guess at his probable theory. The record indicates that Herman McLean was hired by Respondent Classic on July 3, 1978. as a driver. McLean was paid $213 for a 4-day week, which equates to the union scale as reflected by the contract. When he first obtained employment, he asked Passaro which local union would be representing him and Passaro replied that it was local 138 and that he would have to be there for 6 months before he could join the Union. It is patent- ly clear that if this discussion is the incident which is being relied upon by the General Counsel, it is barred by Section 10(b) for the incident took place during the week of July 3., 1978, and the charge was not filed until Febru- ary 26, 1979. In January 1979 there was another conversation be- tween McLean and Passaro during which McLean ad- vised Passaro that he would like to get into the Union. IPassaro, on this occasion, told McLean that there were other people there 6 months and over who were not yet in the Union. ater, McLean went to Jacobson and asked him about the Union. McLean showed Jacobson his old Local 138 book which had run out. Jacobson opined that probably McLean would not have to pay an- other entry fee and promised to look into the matter. Ja- cobson never did get back to McLean with regard to this question. In my estimation neither Passaro nor Jacobson had any obligation to McLean to pursue the matter. Clearly, if McLean were genuinely interested in union member- ship, it was easy enough to contact NcNeil, the steward, Price, the business agent, or someone else connected with the Union. I see no violation here and recommend dismissal of the allegation. The second substantive allegation contained in the complaint in Case 29-CA-7044 (pars. 10 and Il) states: Since on or about August 26. 1978 Respondent has refused to pay to ts employee McLean wages and to provide him with welfare benefits to which he is entitled, pursuant to the terms of the collective bar- gaining agreement . . . because of his nonmember- ship in the Union. The record reveals with regard to this allegation that contrary to the General Counsel's position McLean did, in fact, receive the contract wage-$213 for 32 hours work-and stated as much on the record. As to fringe benefits, McLean testified that during the 6-month period prior to his filing of the charge he had incurred medical expenses and had received no compensation therefor from the Employer as required by the labor agreement. On cross-examination, however, McLean admitted that ' I'Par 9 f he complainl "' August 2h, 1978, I, precisel 6 months prior to Ihe dte Mcl.ean filed the charge I hus, this particular date was cited for obvious I(b) purposes he never filed a claim for these expenses. I therefore find no violation with regard to medical or hospitalization fringe benefits. Similarly, the record reveals that, as of the time the charge was filed and complaint issued, McLean had not been employed for a full year with Re- spondent. Under the terms of the contract, employees in the unit receive 2 weeks' vacation after 1 year's service. Therefore, as of the relevant period McLean was not en- titled to vacation. ° 6 I therefore find no merit to this al- legation and recommend its dismissal. The third allegation contained in the complaint (pars. 12, 13, and 15) in Case 29-CA-7044 is as follows: On or about February 5, 19791"0 Respondent laid off its employee McLean. From January 5, 1979 until March 26, 1979, Respondent failed and refused to reinstate its employee McLean to his former or substantially equivalent position of employment .. . because McLean attempted to become a member of the Union. With regard to this allegation McLean testified that on February 5 after he returned from completing his route he received a message to contact Passaro at the bread house (Automated Bread Co.). When he went over to talk with Passaro, Passaro told him that business was slow and that he was going to have to lay him off be- cause of a shortage of work. Passaro told McLean that he was going to have to lay off' three people including McLean. He did not, however, name the other two and McLean testified that, in fact, no one else but himself was laid off. McLean testified that at the time of his layoff he was not the most junior employee and that there were drivers hired after he was. McLean, when asked to name the drivers with less seniority than himself, named one Jessie Louis and two other drivers, Woodrow and Robert, nei- ther of whose last names McLean knew. These three drivers, according to McLean, continued to work after his layoff. He stated that he knew this to be a fact be- cause he saw their cars parked at the bread house and because his helper Isaac Brahan, had told him that these people were still working. McLean, before his layoff, drove Route 6 which cov- ered Queens, Long Island City, and Astoria. After his layoff several other drivers 108 drove Route 6. When asked if anyone with less seniority than McLean had driven Route 6 after his layoff, McLean named an indi- vidual named Stewie but could not supply his last name. Upon further examination McLean stated that Stewie used to be a helper and was classified as a driver- helper' 09 who drove infrequently whereas McLean is classified as a driver. In his testimony on the subject, McLean admitted that, when Stewie was on Route 6 ""( In September 1979 there as another question concerning Mcl ean's right to vacation and vacation pay McLean did not, however. pursue the matter "'7 The date appears as amended at the hearing. i"" McLean testified vaguely that Jessie L.ouis probably worked his route in his absence. This testimonS is too ague, howeser, to warrant serious consideration "'o The classification of driver-helper does not appear in the contract. CLASSIC TU~CK RTALL COI' 4. during the period of his, McLean's, layoff, and was help- ing rather than driving, the driver was one with more se- niority than McLean. When asked if it were not true that during this period when Stewie was working Route 6 most of the time he was helping and not driving, McLean admitted. "Well, I couldn't say for that, because I weren't there." At a later point in his testimony McLean contradicted himself and stated that he knew for a fact that Stewie did more driving than helping on Route 6 during his layoff. Although McLean testified that other more junior em- ployees worked his route during his layoff, his testimony as to what he did about it was confusing and inconsist- ent. Thus: Q. Yes, did you ever complain to anybody about the layoff that people more junior than you were working and you weren't? A. I spoke to Mr. Bunyan [NLRB attorney]. Q. When was the first time you spoke to Mr. Bunyan about that, if you can remember? A. I think it was two weeks after I was laid off. Q. Did you in your entire life ever complain to anybody from the boss from the Employer's side of this problem that you have been laid off out of se- niority and that they should do something about it? A. Only Mr. Bunyan, as I say. Q. But you didn't tell it to Mark [Jacobson]? A. No. Q. You didn't tell it to Tony [Passaro]? A. No. Q. And Tony or Mark never said anything to [you] about your being laid off because of the Union and all that kind of stuff, did they? A. Well, he told me I was laid off because he was short of work. Q. (By Mr. Bunyan) During the time that you were laid off, Mr. McLean, did you ever speak with anyone at the Employer about work? A. I spoke to Tony over the phone. Q. Do you recall how many times you had con- versations with Tony about work? A. Maybe about two times. Q. Do you recall what those conversations were about? What did he say and what did you say as best as you can recall? A. I asked him if there's-you know, if work picked [back] up, and he said, No. Q. Was that the extent of the conversation? A. That's it. But compare the above testimony of McLean with this testimony, also McLean's: Q. Did you ever have a conversation with any- body about the fact, at the time of your layoff, that the route which was available to you or less junior men than you was a route that you didn't know how to handle, that you weren't familiar with? A. Oh, yes. I spoke to Tony. Q. Tell me about that conversation would you? A. Well, I asked Tony what happened to my route six. You took it off me and gave it to some- body else. Q. What did Tony say? A. He told me that no driver here got a special route, they put you on any route he feel like. Q. When was this? A. After my layoff. Q. About how long after our layoff? A. About three weeks. I find McLean's description of his various conversa- tions with Passaro somewhat inconsistent. I also find that the evidence adduced by the General Counsel to show that McLean was laid off out of seniority less that over- whelming, i.e.. McLean's alleged observation of some workers' automobiles parked in the vicinity of the Em- ployer's premises and the hearsay testimony adduced through McLean that he was told by Brahan that youn- ger drivers were still working while he was laid off. Why was Brahan not called to testify directly, or other employees called for that purpose? Why were there no records subpenaed? But granting, arguendo, that McLean was laid off out of seniority, that fact in itself does not convince me that the layoff was discriminatorily motiv at- ed, for the choice of McLean for layoff might have been for any number of legitimate reasons, including but not limited to the one hinted at during the hearing: namely that other drivers may have been more familiar with the routes. In short, I find that the General Counsel has failed to prove by a preponderance of the evidence that the layoff of McLean was motivated by discriminatory reasons. I therefore recommend that this allegation be dismissed. At the hearing the General Counsel moved to amend the complaint to allege a denial of a fifth day's work during the period 6 months prior to the date the charge was filed, that date being February 26, 1979. The record reveals that during the period in question Respondent permitted its drivers to wash trucks and sweep out the warehouse on Wednesdays on a rotating basis in order for the drivers to occasionally make a fifth day's wages. McLean testified that, prior to his discharge, he worked a number of Wednesdays as did the other drivers."" There is no evidence that he did not receive his fair share of this type of work. After his layoff from Classic he, of course, did not work on Wednesdays for the obvi- ous reason that, since the whole idea of giving the Wednesday work to the drivers was to try to make up a fifth day's work and insure, where possible, a full week's wages, it would not serve that purpose to call in McLean to work just on Wednesdays. In fact, it would defeat that purpose. I therefore find that the failure of Respondent to call in McLean to work at Automated while in layoff status was not discriminatorily motivated and I recommend dismissal of the allegation. Inasmuch as I have found no merit to any of the sub- stantive allegations contained in the complaint in Case 11" )1 one isolated occalion McLean drose a truck fir Aulinalled w.hen thal compan' was shorl rf help CLASSIC TRUCK RENTAL CRP 4() 470 D)ECISIONS OF NA'IONAL LABOR RELATIONS BOARD 29-CA-7044 I recommend that said complaint be dis- missed in its entirety. Cases 29-CA-7072 and 29-CA-5155 After arbitration was postponed three times, Respond- ent Classic, on March 1. 1979,111 requested the New York State Mediation Board to reschedule a hearing date to arbitrate Parker's discharge. On March 7 the Media- tion Board scheduled the arbitration for March 21. Parker received proper notice through the mail. Parker testified that he did not attend the scheduled March 21 arbitration because he was ill. On March 21 Arbitrator Mortimer D. Moriarity wrote the following letter to Respondent Classic with copies to Parker, his attorney, the Union, and Respondent Classic's attorney. Dear Sirs: Since James Parker has consistently frustrated your efforts and those of Local 138 I.B.T. as well as those of this Agency to arbitrate the matter of his discharge, you are hereby advised to suspend the grievant without pay as of Friday, March 23, 1979 pending a final hearing by this Agency. The date for this Final Hearing shall be Tuesday, April 3, 1979 and it shall take place in the New York Mediation Board Offices on the 34th Floor of Two World Trade Center, New York, New York 10047 at 10 a.m. Very truly yours, Mortimer D. Moriarity Arbitrator Parker received a copy of this letter on March 22. On March 23 Jacobson showed Parker his copy of the March 21 letter from Moriarity and advised Parker that the letter gave him authority to suspend Parker. He then did so. In February and March Parker did some work for Automated Bread, sweeping down the warehouse on Saturday mornings. This work was again to give the drivers a means of obtaining a fifth day's employment. After Parker's suspension on March 23, he was no longer permitted to work Saturdays for Automated Bread. On March 31 Parker went to Automated and asked if it would be possible for him to continue working Saturdays as he had been doing. The individual whom he asked, Murray Brenner,' 12 told him that he, Brenner, would have to ask Jacobson. When Parker called back later he was informed by Brenner that he had been unable to contact Jacobson. Parker did not work that day. I con- sider that Parker was suspended at Automated 1 3 as well as Classic as a result of the arbitrator's letter of March 21 advising Jacobson to suspend him. t ' tlerellaftcr all dates are in 1979 unless otherwise indicated. 112 Ihe record is silent as ilt renner's position ith Automated Bread " : Inasmuch ils emploeyces of Classic worked for Automnaled as well. at tile direction olf Jacobson ho, fIronl the record, clearly "aas i charge of labo r relaltilts at both places, I find Classic and Automated tIo he join emplyecr, orf iho.se cmplo ees "rking at hboth establishments. Inasmuch as I have found that Respondent Classic did not violate the Act in attempting to arbitrate the ques- tion of whether or not it had just cause to terminate Parker, since the labor agreement provided for arbitra- tion, and Respondent had sufficient reasons, unrelated to Parker's union and concerted activity, to pursue its con- tractual rights, it follows that if, in fact, Parker had "consistently frustrated" the efforts of all concerned, then the arbitrator, to force Parker to cooperate, might take the logical steps of advising the Employer to sus- pend him pending the rescheduling of a new hearing at a reasonable time. To do otherwise would be to permit Parker to frustrate the arbitral process while continuing the activity to which the Employer objected, at the Em- ployer's expense. Likewise, it follows that the Employer had no alternative but to follow the arbitrator's advice and suspend Parker until he cooperated. This conclusion of course presupposes that Parker had as charged "consistently frustrated" the efforts to arbi- trate his case. The record is almost barren of information concerning why the arbitrator reached the conclusion he did except that Parker admitted that he did not appear at the hearing of March 21. Though Parker testified that his absence was due to illness, there was no testimony as to whether or not he had advised the parties or the arbitra- tor in advance that he would not appear. If he had not, this fact might account, at least in part, for the arbitrator concluding that Parker had "consistently frustrated" ef- forts to arbitrate his case. Although the record contains nothing more, I am willing to conclude that the arbitra- tor, a neutral party, acted in good faith when he advised Respondent to suspend Parker and that Respondent Clas- sic did not violate the Act when it followed the arbitra- tor's direction. As noted above, the new date for the arbitration hear- ing was April 3. There is no indication in the record as to what if anything occurred on that date. On April 4 Parker again went to Automated and talked with Bren- ner who allegedly told him that Jacobson had told Bren- ner not to let Parker work at Automated because he had been suspended at Classic. Thereafter, Parker did not work at Classic or at Automated until he was reem- ployed on August 13 at Classic, and shortly thereafter at Automated. Brenner is nowhere alleged to be a supervisor nor was any evidence offered by the General Counsel to indicate agency status. Therefore, any statements made or actions taken by him cannot be automatically attributed to Re- spondent Classic or to Respondent Automated. Brenner's remarks to Parker concerning Jacobson will also be re- jected as evidence in this instance as purely hearsay. But if, arguendo, the evidence did reflect that Automated laid off Parker because of his suspension at Classic, I would find no violation of the law since Parker's suspension at Classic was for legitimate reasons and Parker's work at Automated was only for the purpose of permitting him to fill out the week by giving him some extra work.' 4 I'4 Ptr 14 orf he conlslidated colmplaint in Cases 29-CA-7072 and 29 CA 7155 which issued iln May 30, 1979. sates Continued CIASSIC TRUCK RENTA. CRP. 471 It was in, effect, an adjunct to or an extension of his work at Classic. When Jacobson determined to follow the arbitrator's advice and suspend Parker, he did so from both jobs for the same reason. I would therefore recommend dismissal of the charge in Case 29-CA-7155 as well as Case 29-CA 7072. IV. THE ltFFtiT OF RESPONDENT CLASSIC'S UNFAIR lABOR PRACHICES UPON COMMERCE Respondent's unfair labor practices, as found above, occurring in connection with its operations 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 burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEI)Y Having found that Respondent Classic has engaged in unfair labor practices warranting a remedial order, I shall recommend that it be ordered to cease and desist there- from and that it take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS O1: LAW 1. Classic Truck Rental Corp. and Automated Bread Co., 5 are employers within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening employees with discharge to prevent them from becoming members of the Union, Respondent Classic has engaged in, and is engaging in, unfair labor practices with the meaning of Section 8(a)(l) of the Act. 4. The unfair labor practices engaged in by Respond- ent Classic affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent Classic has violated the Act in any other respect. 6. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent Automated or Respondent Union has violated the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursu- At all times material herein. Parker was employed by Respondent Automated on a regular "shape up" basis as a driver In an effort to support this allegation the following testimony was ad- duced by General Counlsel Q In the instances that we have you-having worked for Auto- mated in the time frame of February and March of this year, the work that you performed for Automated was what, sirs A Sweeping floors, moving racks around But I did drive one day. One day, I think it was my first day working there, he told me that he was short of a driver to take out a route out there in Elmont. Long Island. I conclude that Parker worked on Saturdays, as Jacobson testified, simply to make up enough time to complete his workweek, just as he and other employees did on Wednesdays His work at Automated was there- fore contingent on his continued employment at Classic Therefore, if his suspension at Classic was lawful. his suspension at Automated for the same reasons uas likewise lawful l By virtue of its being a joint employer. ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER' l 6 The Respondent, Classic Truck Rental Corp., Brook- lyn and Great Neck, New York, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge to prevent them from becoming members of Local 138, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Post at its Brooklyn and Great Neck, New York, locations copies of the attached notice marked "Appen- dix." t7 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 116 In the eent no eceptions are filed as pro, ided hb Sec 102 4 of the Rules and Regulations of the National l.abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rule, and Regulations, he adopted bh the Board and become its findings. conclusions, and Order. and all ohjections thereto shall he deemed waived for all purposes. I': In the event that this Order is enforced by a Judgment of a United States Court ot Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union CLASSIC TRUCK RENTA. COR'. 471 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activi- ties. In recognition of these rights, we hereby notify our employees that: WE WILL NOT threaten our employees with dis- charge to prevent them from becoming members of Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act, as amended. CLASSIC TRUCK RENTAL CORP.