Bailey Distributors

National Labor Relations Board - Board Decisions

Jan 21, 1986

278 N.L.R.B. 103 (N.L.R.B. 1986)

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