McNally Bros., Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1967

167 N.L.R.B. 819 (N.L.R.B. 1967)

McNALLY BROS.
McNally Bros., Inc. and Edward Peterson. Case
29-CA-729
October 17, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 7, 1967, Trial Examiner Samuel Ross is-
sued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, McNally Bros., Inc.,
Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as
modified below:
Delete from paragraph 2(d) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided."
I The Respondent's request for oral argument is hereby denied as the
record, including Respondent's exceptions and brief, adequately presents
the issues and the positions of the parties
2 The Respondent excepts to many of the Trial Examiner's credibility
findings It is the Board's established policy, however, not to overrule a
Trial Examiner's resolutions with respect to credibility unless, as is not
the case here, the preponderance of all the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc , 91
NLRB 544, enfd 188 F.2d 362 (C.A 3) We are also satisfied, on the
basis of the entire record, that Respondent's allegations as to the Trial Ex-
aminer's prejudging of the issues or his conduct dunng the hearing are
without merit.
167 NLRB No. 118
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
819
SAMUEL Ross, Trial Examiner: Upon a charge filed by
Edward Peterson on September 14, 1966, and amended
on November 17, 1966, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
November 28, 1966, alleging that McNally Bros., Inc.
(herein called the Respondent or the Company), engaged
in unfair labor practices within the meaning of Section
8(a)(3), (4), and (1) of the National Labor Relations Act,
as amended, by discharging Peterson on September 13,
1966, because of his membership in, and activities on be-
half of, Local 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (herein called Local 807), because of his other pro-
tected concerted activity for the purpose of collective
bargaining and mutual aid and protection, and because he
was not a member of Local 816, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America (herein called Local 816). The complaint
further alleges that the Respondent thereafter refused to
reinstate Peterson to his former or substantially
equivalent position because he filed the charge against it
in this case. The Respondent filed an answer which de-
nies the substantive allegations of the complaint and the
commission of unfair labor practices.
Pursuant to due notice, a hearing was held before me at
Brooklyn, New York, on February 2 and 3, 1967. Upon
the entire record of the case' and my observation of the
witnesses and their demeanor, and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a New York corporation whose prin-
cipal office and place of business is located in Brooklyn,
New York, is engaged in the business of providing
trucking, moving, warehousing, export packing, and re-
lated services. During the year 1965, a representative
period, the Respondent, in the conduct of its business,
performed services valued in excess of $500,000, of
which services valued in excess of $50,000 were per-
formed in, and for, various enterprises located in States
other than the State of New York. On these admitted
facts, I find that the Respondent is an employer engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
I After the close of the hearing, with the consent of all parties, addi-
tional business records of the Respondent were received as exhibits and
made part of the record These exhibits have been assigned the following
numbers The Respondent's shape sheets for the period from July 9 to
September 8, 1965, have been marked Trial Examiner's Exhibit la to
I qq, the shape sheets for the period from December 17 to 30, 1965, have
been marked Trial Examiner's Exhibit 2a to 2i, the shape sheets from
April 4 to 15, 1966, have been marked Trial Examiner's Exhibit 3a to 31,
the shape sheets from August 15 to September 15, 1966, have been
marked Trial Examiner's Exhibit 4a to 4z, and the Respondent's collec-
tive-bargaining agreement with Local 816 dated July 1, 1965, has been
marked Trial Examiner's Exhibit 5
310-541 0 - 70 - 53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Local 807 and Local 816 are labor organizations within
the meaning of Section 2(5) of the Act
111. THE UNFAIR LABOR PRACTICES
A. The Issue Presented
The sole issue presented in this case is whether the
Respondent terminated the employment of Edward
Peterson on about September 13, 1966, because he
caused an arbitration proceeding to be processed by his
Union (Local 807) against Frank P. McNally, Inc., an af-
filiate of the Respondent, and thereafter refused to rein-
state him because he filed the charge in this case against
the Respondent, or whether, as the Respondent contends,
Peterson was terminated because he violated a company
rule which allegedly provided that any employee who
failed to appear at the Respondent's daily shape for 5 con-
secutive days would be deemed to have abandoned his
job and be automatically terminated. The record is un-
disputed that during his employment by Respondent,
Peterson was a competent and satisfactory employee. It
is also undisputed that Peterson did not present himself
for work between August 18 and September 12, 1966.
However, there are substantial conflicts in the record as
to whether Peterson was required to present himself for
work during the period when he did not do so, and regard-
ing the reasons stated by the Respondent's officials for
his termination and the refusal to reinstate him. Basically,
the determination of this case depends on the resolution
of the credibility of witnesses who gave conflicting
testimony herein.
B. Background
1. The Board of Education of the City of New York,
Bureau of School Supplies, contracts annually with a
trucking company to furnish it with trucks, drivers, and
helpers to pick up school supplies2 at its depository or
warehouse, to deliver them to the public grade and high
schools and recreation centers located throughout the
city, and to transfer supplies, furniture, and equipment
from and among the various schools The Board of Edu-
cation generally awards the contract by competitive
bidding to the lowest bidder who is qualified to perform
the required services and to supply the necessary equip-
ment. The term of the contract so awarded is for 1 year
from July 1 to June 30 of the following year
2. The Board of Education has another division, the
Bureau of School Lunches, which utilizes its own trucks
and employees to deliver various food items to the public
schools in New York City. However, because a rule of
the Board of Education prohibits the use of its own food-
carrying trucks for the transportation of nonfood items,3
the Bureau of School Lunches also engages an outside
z The supplies consist of textbooks, maps, globes, paper, typewriters,
mimeograph machines, furniture , and other miscellaneous equipment
a Such as detergents , bleaches , soaps , kitchen utensils , dishes , garbage
cans, mops , and other cleaning supplies
" The jurisdictional claim of Local 816 over the work of delivering and
transferring school supplies for the Bureau of School Supplies apparently
is recognized by the other Teamsters locals in New York City
5 The most recent such agreement was entered into on June 23, 1965,
trucking contractor to supply it during the school year
with trucks, drivers, and helpers to pick up those nonfood
items from its warehouse (not the same as that of the Bu-
reau of School Supplies), and deliver them to the schools
in the City of New York Generally, the Bureau of School
Lunches requires the use of only one to two trucks for
this purpose during the school year. By custom and prac-
tice, it utilizes the trucking company which has the con-
tract with the Bureau of School Supplies to furnish the
extra truck or trucks, drivers, and helpers, and it does this
by requisition without a formal contract.
3. For an undisclosed number of years before July 1,
1965, A & A Trucking Company (herein called A & A)
located in Brooklyn, New York, had been the successful
bidder for the annual contracts with the Board of Educa-
tion, Bureau of School Supplies, and had furnished the
trucks and employees necessary for the performance of
the said contracts. In addition, during the term of its con-
tracts with the Bureau of School Supplies, A & A also
furnished the truck or trucks and employees used by the
Bureau of School Lunches in the distribution of nonfood
items to the schools in New York. The employees of A &
A who delivered and transferred school supplies for the
Bureau of School Supplies were represented for collec-
tive-bargaining purposes by Local 816 which apparently
claims jurisdiction over such work.4 However, Local 816
apparently did not claim jurisdiction over A & A's work
for the Bureau of School Lunches, and A & A's em-
ployees who performed that work were not required to be
or become members of Local 816.
4. Prior to July 1, 1965, the Respondent was engaged
primarily in the business of moving and storage of
household and other goods, and its employees were
represented for collective-bargaining purposes by Local
814, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America. In respect to the terms and conditions of em-
ployment of these employees, Respondent was a party to
the "Collective Labor Agreement of the Moving and
Storage Industry of New York, N.Y." between Local
814 and various associations of employers in that
industry.-
5 Frank P. McNally, Inc., is "an associated com-
pany" of Respondent which operates out of the same ter-
minals and uses the same office space as the Respondent,
and is engaged in the business of trucking and transporta-
tion at the piers 6 At all times material in this case, Frank
P McNally, Inc., was a party to a collective-bargaining
agreement with Local 807 as the representative of its em-
ployees.
6. In the spring of 1965, the Respondent submitted a
successful bid to the Board of Education, Bureau of
School Supplies, and was awarded the contract for the
year commencing with July 1, 1965, to furnish trucks,
drivers, and helpers to deliver and transfer school sup-
plies, furniture, and equipment.
for a term of 3 years commencing on March 1, 1965, and ending on
February 29, 1968
fi Frank 0 McNally is the majority stockholder in Respondent and
chairman of its board of directors He is also president and a substantial
stockholder of Frank P McNally , Inc John T Murray , the Respondent's
president and treasurer and a substantial stockholder in Respondent, is
also vice president of Frank P McNally, Inc
McNALLY BROS.
C. The Employment of Peterson and Other Former Em-
ployees ofA & A by Respondent
1. In connection with the performance of its new con-
tract with the Board of Education, Bureau of School Sup-
plies, the Respondent promptly hired practically all of the
employees of A & A who had previously performed this
work (about 30), and on July 1, 1965, it entered into a
collective-bargaining agreement with Local 816 "for the
account of [the] Board of Education," by the terms of
which it recognized Local 816 as "the exclusive bargain-
ing representative for all Chauffeurs and Helpers " The
agreement also provided that seniority, based on length
of service, would prevail in the making of assignments to
work, and that for the purpose of seniority and other
benefits in the contract which depended on length of ser-
vice, all employees were to be credited for all service with
their previous employer, A & A Coincident with the ex-
ecution of this agreement, Local 816 furnished Respond-
ent with a seniority list which contained the names and
relative seniority of its members who had delivered sup-
plies for the Bureau of School Supplies when A & A had
the contract with it. The Respondent was given 10 days
by Local 816 to either accept or reject the list, and ac-
cepted it.
2. One of the former employees of A & A, who was
hired by Respondent in July 1965, was the Charging Par-
ty, Edward Peterson, a truckdriver who had worked for
A & A for 15 years. In January 1957, during his employ-
ment by A & A, Peterson had joined Local 807 of the
Teamsters, an affiliate of Local 816, and thereafter had
retained his membership therein.7 In about 1963 or 1964,
Peterson was assigned by A & A (which then had the
contract with the Board of Education, Bureau of School
Supplies) to drive the truck used by the Bureau of School
Lunches, and he thereafter did so on a regular basis.
Peterson continued to work on this assignment until A &
A "lost the contract," at which time he applied to the
Respondent for a job.8 He was interviewed by John T
Murray, the Respondent's president, to whom he
recounted his prior experience in driving a truck for A &
A, and explained that as a consequence of its contract
with the Bureau of School Supplies, Respondent would
soon be contacted to furnish a truck and helpers for the
school lunch program.9 Peterson told Murray the
telephone number of the school lunch warehouse and
Murray called, verified the information which Peterson
had imparted, and then hired him.
D. Peterson's Employment Record with Respondent
Peterson commenced working for Respondent on July
9, 1965. Although he had been formerly employed by A
& A, his name was not on the seniority list which, as
noted above, was furnished by Local 816 to Respondent
in connection with the execution of their collective-bar-
gaining agreement.1° His absence from the seniority list
did not however adversely affect Peterson because com-
' Peterson was still a paid-up member of Local 807 at the time of the
hearing in this case
8 Peterson 's application for employment by Respondent was made at or
about the same time as that of A & A 's other drivers and helpers who were
members of Local 816, and had worked on the school supply program
9 Apparently Respondent had no prior knowledge of the practice of the
Bureau of School Lunches to hire a truck and employees from the com-
pany which held the contract with the Bureau of School Supplies
11 The absence of Peterson's name from the Local 816 seniority list ap-
821
mencing with his first date of employment by Respond-
ent, he regularly was assigned as the No. I driver for the
Bureau of School Lunches, which work consumed most
of the period of Peterson's employment by Respondent
before his termination.
The method by which Respondent assigned work to its
employees was through a daily shapeup at the Respond-
ent's terminal to which the employees reported at 7 a.m.
Between 10 a.m. and 4 p.m. on the day preceding the
shapeup, the Respondent would receive telephone calls
from the Board of Education ordering a specific number
of trucks, drivers, and helpers needed for the following
day, and the locations to which they should be
dispatched. Based on these orders, and the seniority list
furnished it by Local 816, a daily shape sheet or list was
prepared late in the afternoon containing the names of the
truckdrivers and helpers who would be used the next day,
the truck number to which they were assigned, and other
pertinent information. The following morning at 7 a.m.,
the Respondent's dispatcher would go down the shape
sheet or list calling the names of the employees thus listed
and advise them regarding the nature of their assignment.
If an employee whose name was thus called did not show
up, his name was crossed from the shape list, the name of
the next employee on the Local 816 seniority list who
was present at the shapeup was substituted, and the name
of the senior man who had been assigned but had failed to
show up was written on the side of the shape list under
the heading "No Show.-- Peterson' s name, which was
not on Local 816's seniority list, always appeared last on
the shape list if only one truck was ordered by the Bureau
of School Lunches, and next to last if two trucks were so
ordered.
From July 9, 1965, when he was hired, until July 30,
1965, when work for the school lunch program suspended
for the balance of the summer, Peterson regularly drove
a truck for the Bureau of School Lunches. His modus
operandi was to appear each day at the Respondent's ter-
minal, receive his assignment after the shapeup of the
Local 816 members who performed work for the Bureau
of School Supplies, drive with a helper to the warehouse
of the Bureau of School Lunches to pick up a load, and
then deliver the materials thus loaded to the various
schools designated by the supervisors employed by the
Board of Education, Bureau of School Lunches.12
Generally, the loads so picked up by Peterson were
designated to be delivered to 35 to 40 different schools,
and required from 3 to 5 days to deliver. In such cases, at
the end of each day, Peterson returned the truck to
Respondent's terminal with the undelivered portion of his
load still aboard, and picked it up again the next morning
after the shapeup and continued with the delivery of the
load.
When the school lunch program suspended on July 30,
1965, Peterson did not return to Respondent' s terminal
to seek other work, and first came back on Friday, Au-
gust 6, 1965, to pick up his check for the wages he had
earned in the preceding workweek. According to the
parently was based on his nonmembership therein , and because he had not
driven for A & A on the work of the Bureau of School Supplies, in respect
to which Local 816 claimed exclusive jurisdiction
i 1 The Respondent apparently conducts an additional shapeup each day
for its employees who are members of Local 814 and perform work in
connection with its moving and storage business
12 There are approximately 600 schools to which the Bureau of School
Lunches delivers food and incidental supplies
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of Respondent's president, Murray, which was
not contradicted and is credited to this extent, he asked
Peterson on that occasion, "where have you been all
week," and told him that Respondent "had been very
busy" and was "short of drivers and helpers." Peterson
replied that if he had known, he would have been "glad to
come in." As a consequence of this conversation, on the
following Monday, August 9, 1965, and daily thereafter
until September 3, 1965, when work by the Respondent
for the Bureau of School Lunches resumed, Peterson ap-
peared daily at the Respondent's shapeup for the Bureau
of School Supplies, and received an assignment each day
to drive a truck in connection with the school supply pro-
gram. However, when the school lunch program resumed
on September 3, 1965, Peterson again was assigned as
the Respondent's No. I driver on that work, and
thereafter, until the program was again suspended for the
following summer, he worked regularly thereon every
weekday, excepting only that when the schools were
closed because of a legal holiday, he neither worked nor
reported for work until the "next day" when the schools
reopened.' 3
E. Peterson's Grievance
As previously noted , on July 1, 1965, Respondent en-
tered into a collective -bargaining agreement with Local
816 "for the Account of the BOARD OF EDUCA-
TION," by the terms of which it recognized that Union
as the "exclusive collective bargaining representative for
all Chauffeurs and Helpers ." The said agreement also
contained (in addition to the seniority provisions previ-
ously described) a lawful union-security clause which
required membership in Local 816 on and after 30 days
from the date of employment or the agreement,
whichever was later, a checkoff of union dues clause, and
provisions which required the Respondent to give the em-
ployees paid vacations and sick leave, and to pay con-
tributions on their behalf into Local 816's health,
welfare , pension, and severance funds. The agreement
contained no provisions which limited its coverage to
Respondent ' s employees who worked for Bureau of
School Supplies , nor any which excluded from its
coverage the employees who performed services for the
Board of Education , Bureau of School Lunches. How-
ever , notwithstanding the broad and clear unit language
of the contract quoted above, its terms were never ap-
plied by the Respondent or Local 816 to Peterson who
performed work regularly "for the account of the Board
of Education ," and as a consequence he was never
required to become a member of Local 816, and no con-
tributions were made by Respondent on his behalf to
Local 816 's health , welfare, or other funds."
In October 1965, Peterson notified President Murray
that his wife was about to enter the hospital for "an opera-
tion ," and inquired about his coverage for hospital and
welfare benefits . Murray replied that Peterson had "no
coverage under our current contract here." Peterson told
Murray that he was a paid-up member of Local 807.
Murray suggested that Peterson might be covered for
hospitalization benefits under the contract of his former
employer, A & A. Peterson answered that he had
inquired at A & A, and had been advised to speak to
Respondent. Murray replied that as a driver for the Bu-
reau of School Lunches, Peterson was not covered by the
contract with Local 816, that it covered only the em-
ployees who worked "out of Vernon Boulevard [the
warehouse of the Bureau of School Supplies]," and that
"to qualify for benefits under [Local] 816," Peterson
would have to "work for 30 days [on work for the Bureau
of School Supplies] and attain a position on the [Local
816] seniority list." Murray then gave Peterson a number
of reasons why it would be impractical for him to qualify
for Local 816 membership and a place at the bottom of its
seniority list, and suggested that he look into the possibili-
ty of getting family plan Blue Cross coverage.
After his conversation with President Murray, Peter-
son visited the office of Local 807, and spoke to its pres-
ident, Joe Mangan, who, after inquiring, later advised
Peterson that no contributions had been paid for him into
Local 807's health and welfare fund, but promised to
look into the matter further. Thereafter, Local 807 in-
stituted an arbitration proceeding over the failure to pro-
vide Peterson with "Pension and Welfare" coverage.
However, the said proceeding was not instituted against
the Respondent, for whom Peterson worked, but against
its "associated company" Frank P. McNally, Inc., with
whom Local 807 had a collective-bargaining agreement.
The arbitration proceeding came on for hearing on June
28, 1966, before Hugh E. Sheridan, the impartial chair-
man of the New York City Trucking Authority. Frank P.
McNally, Inc., was represented at the hearing by
Respondent's President Murray, who, as previously
noted, is also vice president of Frank P. McNally, Inc. In
the proceeding before the arbitrator,15 the representatives
of Local 807 conceded that Peterson, although a member
of their Union, had neither worked for Frank P. McNally,
Inc., nor under Local 807's contract with that Company.
President Murray testified that Peterson worked for
Respondent, and that it had a contract with Local 816,
but Murray refused to answer when the impartial chair-
man asked him whether Peterson was "covered under the
816 contract " On August 12, 1966, the impartial chair-
man issued the following decision:
Although the Union [Local 807] and the Com-
pany [Frank P. McNally, Inc.] are parties to a labor
agreement, the grievant [Peterson] did not work
under that agreement nor did he work for the Com-
pany. He did work for another company [McNally
Bros., Inc.] doing work covered by another labor
agreement with another local union . [Emphasis
supplied.]
Because the gnevant is a member of the Union and
works for a company closely related to this Company
which in turn has an agreement with the Union gives
neither this Union nor its member the right to impose
any obligation on a Company which is not the em-
ployer of the man. Therefore, this Company is not
obligated to contribute to the Welfare and Pension
Funds of the Union for the grievant because he
13 During the Christmas to New Year's Day school holidays in 1965,
and Easter week in 1966, when the schools were closed, Peterson's truck
was loaded just before the holidays , and he worked during these periods
delivering his loads to their destinations
14 As previously noted , Peterson also was never placed on Local 816's
seniority list
15G C Exh 3
McNALLY BROS. 823
neither worked for the Company nor under the [Murray] is concerned I wouldn't be able to work any
Union 's labor agreement . And I do so rule.
August 12, 1966
HUGH E. SHERIDAN
IMPARTIAL CHAIRMAN
F. Peterson's Termination
During the pendency of Local 807's arbitration
proceeding against Respondent's affiliate, Frank P. Mc-
Nally, Inc., Peterson continued to work for Respondent
as its No. I driver for the Bureau of School Lunches, until
and including August 12, 1966, when the school lunch
program again suspended for the summer.16 On August
15, 16, and 17, Peterson reported at the Respondent's
shapeup and received assignments to work for the Bureau
of School Supplies. Thereafter, Peterson took a vacation
and did not report again for work until the school lunch
program resumed again."
On or about September 1 or 9, Walter Steptoe, an
assistant supervisor employed by the Board of Education,
Bureau of School Lunches, told President Murray by
telephone that the Bureau would resume shipping on Sep-
tember 12, and that he had notified Peterson to bring a
truck over to the Bureau's warehouse on that date. Ac-
cording to Steptoe, Murray replied, "I don't know
whether or not we will be using Mr. Peterson because I
want to spread the work around."1'
On September 12, Peterson reported to the Respond-
ent's terminal for work, but was not assigned, either to
drive the school lunch truck, or to perform any other
work. However, when Peterson inquired at the conclu-
sion of the shapeup as to whether there was work for him,
the dispatcher assigned him to work as a helper for the
Bureau of School Supplies. For the next 2 days (Sep-
tember 13 and 14) Peterson reported to the Respondent's
terminal but received no assignment to work. Ac-
cordingly, on September 14 he filed the charge with the
Regional Office which initiated this proceeding. There-
after, Peterson continued to report daily to Respond-
ent's terminal, but received no assignments to work. Ac-
cording to Peterson, on Friday, September 16, he asked
President Murray, "Why wasn't I working?" and why
"he taken me [sic] off the truck?" Peterson testified that
Murray replied, "I [Peterson] brought him on-up on ar-
bitration and now the Labor Board, and as far as he
16 All dates hereafter refer to 1966 unless otherwise specified
In the spring of 1966, the Respondent was awarded a renewal of its con-
tract by the Board of Education , Bureau of School Supplies , for the ensu-
ing fiscal year commencing on July 1, 1966
11 There is a conflict in the record as to whether Peterson asked for per-
mission to take the vacation before he did so . This conflict will be con-
sidered and resolved, infra
11 Murray denied having this conversation with Steptoe, or making this
statement This credibility conflict also will be resolved, infra
19 Murray denied making the statement attributed to him by Peterson
According to Murray , when Peterson returned to the terminal after work-
ing on September 12, he called him into the office and told Peterson that
he had absented himself for a month during Respondent 's "busy period,"
and that "as far as I am concerned you have abandoned your job by not
showing up " Murray further testified tthat about a week later Peterson
visited his office and asked, "Can I have my job back9" and that he
replied, "No, you abandoned your Job " Peterson denied that he was sum-
moned to Murray 's office on September 12, and he also denied having any
conversation with Murray about his job on that date. This conflict in the
more."' 9
After Peterson's termination, Nathan Tykot, the super-
visor of warehousing, shipping, and receiving employed
by the Board of Education, Bureau of School Lunches,
asked President Murray, during a telephone conversation,
why Peterson no longer was being employed by Respond-
ent. According to Tykot's testimony, Murray replied
that "it was a matter of a jurisdictional dispute between
two unions at his installation," where one claims that he
is "not a member of theirs and the other one has no true
membership into that operation and rather than get into
a dispute [with] them I will do what they want me to do
and I won't use him, I won't use his service any longer."20
G. Credibility Determinations
As previously noted, there are substantial conflicts in
the testimony in respect to: (1) whether Peterson asked
for permission to take a vacation before he did so; (2) the
telephone conversation on or about September 2 or 9
between Assistant Supervisor Steptoe of the Board of
Education and President Murray, during the course of
which Murray purportedly told Steptoe that he might not
use Peterson for the school lunch program because he
wanted "to spread the work around"; and (3) the
telephone conversation between Supervisor Tykot of the
Board of Education and President Murray in which the
latter purportedly told Tykot that Peterson was no longer
employed because of a jurisdictional dispute between two
unions and his desire not to get involved therein. These
conflicts will now be considered and determined.21
Credibility determinations rarely are easy to resolve,
and this case presents no exception to their general dif-
ficulty. Peterson quite obviously was a person of only
limited education, and frequently disclosed a complete
lack of understanding of the nature of the questions he
was requested to answer, all of which resulted in some ap-
parent contradictions in his testimony. In addition, Peter-
son's memory of dates and sequence of events obviously
was poor and was shown to be inaccurate by the Respond-
ent's records in evidence. However, notwithstanding
these deficiencies, I was favorably impressed by his
demeanor, by the frankness with which he admitted mat-
ters which appeared unfavorable to his position, and by
his general sincerity and veracity.22 On the other hand,
President Murray, the Respondent's principal witness,
testimony also will be resolved, infra
21 On September 14, the same date that Peterson filed the instant
charge against Respondent , he also filed a charge against Local 816, alleg-
ing the latter 's violation of Section 8(b)(1)(A) and (2), but that charge was
withdrawn with the Regional Director's approval on November 21
Murray admitted that he was asked by Tykot the reasor, for Peterson's
termination, but he denied that he furnished Tykot with the foregoing, or
any other, reason. This conflict also will be resolved, infra
21 There is also a substantial conflict in the record regarding the date
and the nature of the terminal conversation between Peterson and
President Murray That determination will be made infra, under the
heading entitled "Concluding Findings "
22 As Chief Judge Learned Hand aptly said in N.L R B v Universal
Camera Corporation, 179 F 2d 749, 754 (C.A 2), reversed on other
grounds 340 U S 474
It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it , nothing is more common in all
kinds of Judicial decisions than to believe some and not all
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was quite the antithesis to Peterson - for although Mur-
ray, unlike Peterson, quite obviously was intelligent, ar-
ticulate, and aware of the nature and purpose of the
questions presented to him, he frequently equivocated
and evaded responses to questions whose answers he re-
garded as unfavorable to the Respondent's interest.23 In
addition, Murray's testimony in several respects was con-
tradicted by the documentary evidence in the record.24
For these reasons, as well as his demeanor, I regard Mur-
ray's testimony when controverted as generally unrelia-
ble.
Viewed in the light of these general credibility deter-
minations, the specific conflicts in the record will now be
considered-
1. Peterson's request for a vacation
Peterson testified that on or about August 17, before
he absented himself for the remainder of the summer, he
talked to both Respondent's dispatcher, Amady M.
Licata, familiarly known as Marty, and President Murray
about taking "time off for a vacation." Peterson further
testified that on this occasion he told both Licata and
Murray that there would be no more work on the school
lunch program, and he therefore wanted to take some
time off. According to Peterson, Licata replied that it
would be "Okay," and that Murray, to whom he spoke in
the Respondent's yard, "didn't say anything." Neither,
according to Peterson's testimony (admitted to this ex-
tent), told him that Respondent was busy, nor that his ser-
vices were then needed.
Accordingly, Peterson and his wife "went down to
Richmond, Virginia," for a week, and returned to New
York City on or about August 29, the date when the
school lunch program originally had been scheduled for
resumption. Upon his return to the city, Peterson
telephoned the warehouse of the Bureau of School
Lunches, and was advised by Walter Steptoe, the
assistant supervisor employed by that Bureau, that the re-
sumption of the program had been delayed for a week or
two. He therefore continued his vacation (at home) until
he learned that the school lunch program was resuming
on September 12, when he again reported for work. Dur-
ing the interval between his return from Richmond until
September 12, Peterson did not work for any other em-
ployer, or make any effort to seek other employment,
because he "expected to go back to work with McNally."
Both Dispatcher Licata and President Murray denied
that Peterson told them that he was going to take a vaca-
tion .25 However, despite their denials, I credit Peterson's
testimony regarding his request for a vacation for the fol-
lowing reasons (in addition to my general credibility
determinations above):
(a) Peterson obviously was a reliable employee. He
had worked for his former employer for 15 years, and for
the Respondent for over 1 year. His services admittedly
were regarded satisfactory, both by the Respondent and
by the supervisors of the Board of Education, Bureau of
School Lunches. During his employment by the Respond-
ent, he worked regularly, and, so far as the record shows,
without absenting himself on any day when the school
lunch program was in progress In addition, he also had
worked regularly during August 1965 for the Bureau of
School Supplies, when he was requested to do so by Pres-
ident Murray. His regular work record persuades me
that he was not the type of employee who would absent
himself without prior notice when or if he was expected
to work.26
(b) Dispatcher Licata testified in the main by referring
to the Respondent's daily shape lists, and he quite obvi-
ously had little or no independent recollection of the mat-
ters concerning which he testified. In view of the large
number of employees who appeared at the Respondent's
daily shapes (about 120), he could well have failed to re-
call whether any particular employee discussed taking
time off for a vacation. Under the circumstances, I regard
Peterson's testimony that he spoke to Licata about taking
time off for a vacation as more reliable than Licata's deni-
al thereof.
2. The conversation between Steptoe and Murray
As noted above, Assistant Supervisor Steptoe, em-
ployed by Board of Education, Bureau of School
Lunches, testified that on or about September 2 or 9, he
telephoned President Murray, told him that the Bureau
was going to resume shipping on September 12, and that
he had told Peterson to bring a truck to the Bureau's
warehouse on that date. According to Steptoe, Murray
replied, "Well, I don't know whether or not we will be
23 For example , although it was and is quite evident that according to
his own testimony , the Respondent terminated Peterson 's employment on
September 12, Murray repeatedly equivocated when asked whether in ef-
fect he discharged Peterson on that date , and persisted in testifying that
Peterson had abandoned his job Similarly , although it was obvious that
Respondent had work available for Peterson, and could have employed
him on and after September 13 had it so desired, Murray first repeatedly
evaded making that admission despite numerous questions directed
towards eliciting it from him, then asked if he could refuse to answer on
the ground that it might incriminate him, and finally , after Respondent's
counsel offered to concede for the record that work was available for
Peterson , Murray admitted it without equivocation
24 For example , Murray testified that Respondent was required to hire
members of Local 816 by a specific provision in its contract with the
Board of Education , Bureau of School Supplies However , it was later
stipulated by the parties that the contract contains no such provision, nor
any reference either to Local 816 or any other union Murray also testified
that Respondent 's collective-bargaining agreement with Local 8 16 con-
tained a provision for a daily shapeup , but there is, in fact , no such provi-
sion therein In addition , as previously noted , Murray justified the
Respondent 's failure to provide Peterson with welfare fund coverage on
the ground that its collective -bargaining agreement with Local 816
covered only the employees who performed work for the Bureau of
School Supplies , and not those , like Peterson , who worked for the Bureau
of School Lunches However , as found above, the said contract contained
no provision which limited its coverage to employees who performed ser-
vices for the Bureau of School Supplies , and the unit description therein
did not exclude employees who worked for the Bureau of School
Lunches, and was sufficiently broad to include them
25 At the time of the hearing , Licata was no longer employed by
Respondent, and therefore is regarded as a disinterested witness
ss Because of a coincidence of dates, the Respondent suggests that
Peterson's absence might have been motivated by his unhappiness over
the receipt of notice of the impartial chairman 's adverse decision in Local
807's arbitration proceeding on his behalf The date of the letter which
notified Peterson of this decision was August 17, and the earliest date
when it could have been received at his home in Brooklyn , New York,
was August 18 Peterson testified that he received it on August 18 or 19
The 7 a m shape on August 18, obviously, was before the hour when the
letter could have been delivered to Peterson's home, and his absence on
that date cannot therefore be ascribed to notice of the adverse decision
Moreover , during the entire penod that Respondent was rejecting Peter-
son's claim for hospitalization benefits , he continued to work I therefore
regard the Respondent 's suggested reason for Peterson's nonappearance
at the Respondent 's shape as speculative and unpersuasive
McNALLY BROS. 825
using Mr. Peterson because I want to spread the work
around."
Murray denied having any such conversation with
Steptoe, and denied making such a statement to him.
Murray also testified that on September 9 at 1:20 p.m ,
it was Fitzgerald who called from the Board of Education
to order a truck for the Bureau of School Lunches, and in
support of this testimony, the Respondent introduced in
evidence its "Daily Activity and Billing Report" dated
September 12, which shows in the column "School
Lunches" the word "Fitzgerald" and "1:20" (Resp. Exh
7). Murray further testified that he had heard from some
of his drivers that Peterson and Steptoe were friends and
had once gone hunting together.
In determining this conflict in the testimony, no weight
obviously can be given to Murray's hearsay testimony re-
garding the alleged friendship between Peterson and
Steptoe. The latter testified frankly on cross-examination
that he "like[d] Peterson because he has been one driver
that never gave us any trouble." Steptoe also readily ad-
mitted that about September 12 or 13, he had asked his
supervisor, Tykot, "to call Mr. Murray and asked him to
put Peterson back on the truck." Clearly these admis-
sions of Steptoe do not establish any basis for regarding
him as a witness with an interest in the outcome of the
proceeding, or one whose testimony should be weighed
more carefully because of such interest. No reason ap-
pears in the record why Steptoe should fabricate
testimony to assist Peterson. Moreover, unlike my
general observations previously stated regarding Mur-
ray's credibility, I was favorably impressed by Steptoe's
frankness and demeanor. I therefore credit Steptoe's
testimony regarding this telephone conversation.27
3. The conversation between Tykot and Murray
After Peterson was terminated by Respondent, Nathan
Tykot, the supervisor of warehousing, shipping, and
receiving employed by the Board of Education, Bureau of
School Lunches, during a telephone conversation with
President Murray, asked him "how come" Peterson was
no longer being employed by the Respondent.""
According to Tykot, Murray replied that "it was a matter
of a jurisdictional dispute between two unions, where one
claims he is not a member of theirs and the other one has
no true membership into that operation ... and rather
than get into a dispute [with] them I will do what they
want me to do and I won't use him, I won't use his service
any longer."
Murray's version of this conversation was that Tykot
inquired regarding the reason for Peterson's termination,
asked whether he could be reemployed, and stated that
his intervention was pursuant to Steptoe's request. Mur-
ray testified that it was Tykot who stated that he had
heard (from Steptoe) that the reason for Peterson's layoff
was a dispute between two Unions, and that he merely
denied that such was the reason. Murray further testified
that Tykot questioned him further "about this dispute,"
and that he explained to Tykot the details regarding
Peterson's belief that "he was covered for welfare
benefits under [Local] 807," that in fact he was not so
covered, that he had offered Peterson an opportunity "to
work under the 816 contract" and acquire welfare
coverage thereunder, and that Peterson chose not to ac-
cept that offer but to continue "to work on the school
lunch." Murray specifically denied that he gave any
reason for Peterson's termination, because to do so would
be contrary to Respondent's policy in respect to such
matters. Murray admitted that he told Tykot that Peter-
son "was not going to be hired at the shape."
The determination of whose version of this telephone
conversation to credit is most difficult. Tykot obviously
testified contrary to the fact when he denied on cross-ex-
amination that he had been asked to intervene for Peter-
son by Steptoe, whose contrary testimony has been
credited above. I nevertheless regard Tykot's testimony
regarding the content of this conversation as more relia-
ble than Murray's, and credit it for the following
reasons:29
Tykot is a witness with little, if any, interest in the out-
come of this proceeding Murray admitted on cross-ex-
amination that Tykot was not "prejudiced" against
Respondent at the time of this hearing. There is, there-
fore, no reason for Tykot to fabricate testimony to assist
Peterson. The reasons for Peterson's termination which,
according to Tykot, were told to him by Murray, and
which Murray testified were stated by Tykot, were mat-
ters peculiarly within Murray's, not Tykot's, or even
Steptoe's, knowledge. Contrary to Respondent's alleged
policy which prohibits discussion of such matters "with
anyone," Murray, by his own testimony, admittedly told
Tykot, in considerable detail, the nature of Peterson's un-
successful claim for welfare benefits. In view of that
testimony, and the reasons previously stated for my lack
of regard generally for the reliability of Murray's
testimony, I do not believe that Murray did not answer
the question, admittedly asked of him by Tykot, which
was why Peterson was no longer employed by
Respondent
H. The Rule for Violation of Which Peterson Allegedly
was Terminated
According to the Respondent's testimony, the only
reason for Peterson's termination and its refusal to reem-
ploy him was his violation of the Respondent's rule or
"policy" which allegedly provided that any employee
who fails to appear at the daily shapes for 5 consecutive
working days is regarded as having abandoned his job.
The rule or policy, as expounded by President Murray,
was as follows:
A man must physically present himself in the
morning at the shape at 7 o'clock to go to work. If a
man is going to be late, he is allowed to come in late
up to 7.15, but he must call before 7 o'clock. If he
calls at 7:16 he does not go to work. If a man does
not come in to shape or does not.call, then he would
not be put to work the following day.
If a man absented himself from the shape for five
working days in a row, he would be considered to
27 In reaching this conclusion , I have considered and credited the tember 1966, when the school lunch program was already in "full produc-
Respondent 's documentary evidence that Fitzgerald called on September tion" and Peterson was not driving anymore Murray testified that this
9 to order a truck for the school lunch program for September 12, but con- conversation occurred "on Tuesday or Wednesday," apparently referring
clude that Steptoe also called, as he testified to September 13 or 14
28 According to Tykot, this conversation occurred sometime in Sep- 19 See in 22, supra
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have abandoned his job, quit his job.
This rule, according to Frank 0 McNally, the Respon-
dent's chairman of the board of directors, is one of "a
minimum of rules" which the Company "must stay with"
and "rigidly enforce" in order to maintain discipline and
control of its "considerable number of employees." The
rule, according to Murray, is not in writing or posted on
any bulletin board, but is "continually reiterated" at the
shapes in the morning. However, the Respondent's wit-
ness, Dispatcher Licata, who called the daily shapes,
when asked if he knew of any such company rule,
testified, "It is not a company rule. It is a union rule."
Licata further testified that to his knowledge, it was a
union rule of Local 816 and Local 807. In this regard,
early in the presentation of its defense, the Respondent
offered into evidence its collective-bargaining agreements
with Local 816 and Local 814, and that of its affiliate,
Frank P. McNally, Inc., with Local 807, and specifically
called attention to the following provision in the agree-
ment with Local 816:
ARTICLE VIII-SENIORITY
Section 2: An employee shall lose his seniority
because of unauthorized failure to report to work for
five (5) consecutive days, if work is available.30
Licata's testimony above, and the collective-bargaining
agreements in evidence, suggest the conclusion that con-
trary to Murray's and McNally's testimony, the Respond-
ent had no rule of its own that employees would be
deemed to have abandoned their jobs if they failed to ap-
pear for the shapeup for 5 consecutive days, and that the
only rules applicable to its employees in this regard were
those contained in the collective-bargaining agreements
referred to above. This conclusion finds considerable
support in the record as follows:
1. Peterson, whose testimony I credit, testified that he
had never been informed and had no knowledge of any
such rule.
2. The Respondent admittedly did not regard Peterson
as covered by any of its collective-bargaining agreements,
and he had not been afforded any of the benefits such as
hospitalization coverage, vacations, and sick leave, pro-
vided in Respondent's agreements. Clearly therefore, the
rules in the collective-bargaining agreements could not be
regarded by Respondent as applicable to him.
3 If any other such rule existed, it was violated by
Peterson in the summer of 1965, when he was absent
from Respondent's daily shapeup for 5 consecutive days
(August 2, 3, 4, 5, and 6) after the suspension of the
school lunch program. However, no rule was enforced,
rigidly or otherwise, against Peterson at that time.
Moreover, there is no indication in the record that Peter-
son was then even notified of the existence of any rule, or
his infraction thereof.31
4. According to President Murray, there are only 25 to
30 names on Local 816's seniority list, but the Respond-
ent hires daily an average of from 45 to 50 employees for
Board of Education work during the year.32 The addi-
tional employees needed by Respondent are obtained
from among extra or casual applicants for employment
30 Substantially identical provisions also are contained in the Respon-
dent's contract with Local 814, and in that of its affiliate with Local 807
31 No explanation was offered by Respondent for its failure to enforce
its alleged rule against Peterson at that time
who appear at the Respondent's daily shapes.33
According to Murray, "in the latter part of the summer
we would go begging for men and sometimes you grab
somebody walking along the street with his lunch bag and
say, `come to work here."' Murray also admitted that the
Respondent has "a continuing need for employees."
In view of all the foregoing, including Licata's testi-
mony that he knew of no company, but only a union rule
which requires employees to shape daily for Respond-
ent, the terms of the collective-bargaining agreements
between Respondent and its affiliate with the Unions,
"Respondent's continuing need for employees," the quite
obvious contradiction between Respondent's alleged rule
and its use of casual and extra employees, and the failure
of Respondent to rigidly or otherwise enforce the alleged
rule against Peterson, or even call his attention to it, when
its purported terms were violated by him in 1965, all per-
suade me, and I find and conclude, that the only such
rules which existed at the Respondent's terminal were
those contained in its collective-bargaining agreements.
1. Concluding Findings
In view of my conclusion that the only rules requiring
appearance at the Respondent's daily shapes were those
contained in the collective-bargaining agreements and ap-
plied only to employees covered thereby, and that the
Respondent had no such rule applicable to employees like
Peterson who were not covered, or regarded as covered,
by said labor agreements, it is quite apparent and found
that the assignment of Peterson's absence, in alleged
violation of a rule not applicable to him, as the reason for
his termination and the refusal to reemploy him, is a pre-
textual device of the Respondent to conceal the real
reason for its action.
Additional support appears in the Respondent's busi-
ness records for this conclusion. Thus, the Respondent's
daily shape sheets disclose that Peterson was not ex-
pected to work or to shape up during the period of his
absence. As previously noted, President Murray testified
that the Respondent's shape sheets, which set forth the
work assignments of its employees, are prepared each af-
ternoon for use in calling the shape on the following
morning. There is a column headed "No Show" at the
right side of these sheets for listing the names of em-
ployees who were scheduled to appear but failed to
present themselves at the shape. The Respondent's shape
sheets for August 15, 16, and 17, disclose that Peterson
was scheduled to work on those dates and that he did
work. However, although it is undisputed that Peterson
did not appear at the shapes between August 18 and Sep-
tember 12, his name does not appear on any of the daily
shape sheets for the said period, either as having been
scheduled for a work assignment, or as a "No Show."
The quite apparent and obvious inference from the
foregoing is that Peterson was not required, or expected,
to appear for Respondent's daily shapeups during this
period of his absence.
The Respondent nevertheless contends that Peterson
was expected and required to shape daily during the
period between August 18 and September 12. In ex-
planation for the total absence of Peterson's name from
32 Murray testified that in the summer of 1966, Respondent employed
from 45 to 82 men for this work, and the average was about 75 men a day
33 The number of persons who appeared at the shapes vaned, according
to Murray, from 55 to 150, with the high point building up in the summer
McNALLY BROS. 827
the shape sheets for this period, either as scheduled to
work or as a "No Show," President Murray testified that
the shape sheets are prepared "mainly" from Local 816's
seniority list, and that only the names of employees on
that seniority list who fail to appear after a scheduled as-
signment are placed in the "No Show" column.34
Murray's explanation merely supports the conclusion
that the so-called rule requiring appearance at daily
shapes applied only to employees who were regarded by
the Respondent as covered by its collective-bargaining
agreements with Local 816 and Local 814, and whose
names were on the seniority lists of said Unions. I con-
clude from Murray's explanation, Peterson's lack of
seniority status, and the absence of his name as a "No
Show" on the shape sheets during the period when he ad-
mittedly was absent, that Peterson was not expected to
appear during this period of absence, and that he was
required to shape daily only while the school lunch pro-
gram for which he was hired was in progress.35
The Respondent also contends that Peterson knew that
he was required to shape up daily even when the school
lunch program was not in progress, because he did so for
a period of 3 weeks in the summer of 1965, and for the
first 3 days in 1966 after that program ended. I reject this
contention for the following reasons:
Peterson's work on the school program in 1965 oc-
curred (after he had not appeared for 5 days) as a result of
a specific request from President Murray that his services
were needed. His work on the school supply program
pursuant to that specific request does not establish
knowledge that he was required to shape daily when the
school lunch program, for which he was hired, was in
suspension. On the contrary, his absence for the first 5
days before the request was made indicates that he had no
such knowledge. Admittedly no like request or statement
that he was needed was made to Peterson after the school
lunch program ended in 1966. Moreover, Peterson's ap-
pearance at the shape for August 15, 16, and 17, the first
3 days after the school lunch program ended in 1966,
does not compel the inference that he knew he was
required to shape up after that program ended. It could
just as readily be attributable to his desire to work as a
casual employee on the school supply program and to
earn a full week's wage before going on vacation.36
In view of the foregoing, including Peterson's record of
regular attendance at work prior to August 18, his admit-
tedly competent and satisfactory performance while
working, the Respondent's "continuing need for em-
ployees," and its utilization of casual and extra applicants
for employment, I am persuaded and find that the reason
assigned by Respondent for Peterson's termination and
its adamant refusal to reemploy him-his absence from
August 18 to September 12, in alleged violation of a rule
which was not applicable to him, and after permission had
been given him to take a vacation -is an obvious pretext
to conceal another motivation for the Respondent's ac-
tion against Peterson.
My conclusion that the reason asserted by the Respond-
ent for Peterson's termination and its refusal to reem-
ploy him is pretextual, is not dispositive of the issue
presented in this case. That issue is whether the Respond-
ent terminated Peterson's employment because he
caused an arbitration proceeding to be processed by
Local 807 against Respondent's affiliate, Frank P. Mc-
Nally, Inc., and thereafter refused to reinstate him
because he filed the charge in this case against the
Respondent. The burden of proving that motivation rests,
of course, on the General Counsel. Direct evidence of
motivation, which is a state of mind, rarely is available.
However, in the instant case, the credited testimony of
Tykot discloses that after Peterson was terminated,
President Murray in effect told Tykot that Peterson no
longer was being employed in order to avoid involvement
in the dispute resulting from his membership in Local
807, and Local 816's jurisdiction over the Respondent's
work. In addition, for the reasons previously stated in my
credibility determinations, and in the light of the pretext-
ual reason asserted by President Murray for Peterson's
termination, I believe Peterson's testimony that on Sep-
tember 16, when he inquired regarding the reason for his
nonemployment, President Murray replied that Peterson
had "brought him on ... up on arbitration and now the
Labor Board, and as far as he is concerned, [Peterson]
wouldn't be able to work any more "37 This testimony of
Tykot and Peterson, when viewed in the context of Peter-
son's satisfactory service for the Respondent, his regular
attendance at work during the school lunch program, the
Respondent's continuing need for employees, and its
utilization of casual and extra employees to meet its per-
sonnel requirements, establishes, at least prima facie, that
Peterson was terminated and refused reinstatement for
the reasons stated to him by President Murray, and that
the Respondent thereby engaged in unfair labor practices
within the meaning of Section 8(a)(3), (4), and (1) of the
Act.38
The Respondent in effect urges that its record of con-
tinued employment of Peterson while Local 807's arbitra-
tion proceeding on his behalf was pending before the im-
partial chairman, and for 3 days after his decision,
requires the conclusion that it was not concerned about
the said proceeding, that it bore Peterson no animus
because of it, and that, therefore, no inference is possible
that its later termination and refusal to reinstate Peterson
was motivated by the arbitration proceeding. At first
blush, the logic of this argument is quite persuasive. How-
ever, further consideration reveals at least several other
34 Dispatcher Licata's explanation was the opposite of Murray's. Ac-
cording to Licata, only the names of casual employees, which he would
not otherwise remember , were listed under "No Show " Since no useful
purpose possibly could be served by keeping a record of casual employees
who do not shape up, I regard Licata 's explanation as completely im-
plausible, and do not credit it
35 In reaching this conclusion , I have considered both Peterson's con-
fused and somewhat self-contradictory testimony regarding the require-
ment that he shape up daily, and the Respondent 's contention in this re-
gard . In response to questions which did not distinguish between the
periods of Peterson 's regular employment for the school lunch program,
and the relatively short periods when he worked for the school supply pro-
gram , Peterson first admitted on cross-examination that he knew that if he
did not shape up every day he would "lose " his job However, even as he
did so, it was apparent, as Peterson later testified , that he "misun-
derstood " the import of the inquiry, for on further questioning , he clarified
his response by testifying that he knew that if he did not shape up, he
would not work that day I credit his latter testimony for the reasons
previously stated regarding his obvious lack of education and understand-
ing, and the generally forthright character of his testimony
38 The Respondent's workweek for payroll purposes ends on Wed-
nesday August 17, the last day Peterson worked before going on vaca-
tion, was a Wednesday
47 A fortiori, I do not credit Murray's testimony regarding the date and
content of their terminal conversation
18 Farmers Union Cooperative Marketing Ass'n, 145 NLRB I,
N L R B v Whitfield Pickle Company, 347 F 2d 516 (C A 5)
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons why Peterson's continued employment during
the pendency of the arbitration proceeding is not incon-
sistent with a conclusion that his later termination was il-
legally motivated For example the Respondent may have
been deterred from terminating Peterson sooner because
no ostensibly lawful reason for his termination was
available for assignment, and to have discharged him be-
fore a pretext was available, or coincident with the impar-
tial chairman's decision would have been too obvious a
violation of the Act. In this regard, Peterson's absence,
albeit on vacation, may have presented Respondent with
its first plausible excuse for terminating him. Another
possibility is that the Respondent was not overly con-
cerned about the obviously meritless arbitration proceed-
ing against its affiliate (for whom Peterson did not work),
but first became concerned when the decision of the im-
partial chairman issued, because of the statement therein
that Peterson's work was covered by the Respondent's
labor agreement with Local 816, which thus indicated
that the Company might be subject to liability for reim-
bursing Peterson for his wife's hospital bills. In view of
these and other possible examples, I conclude that
Respondent's failure to terminate Peterson during the
pendency of the arbitration proceeding is not necessarily
inconsistent with its illegal motivation for his later ter-
mination and refusal to reinstate.
The court of appeals has said in a recent decision: 39
Actual motive, a state of mind, being the question,
it is seldom that direct evidence will be available that
is not also self-serving. In such cases, the self-serving
declaration is not conclusive, the trier of fact may
infer motive from the total circumstances proved.
Otherwise no person accused of unlawful motive
who took the stand and testified to a lawful motive
could be brought to book. Nor is the trier of
fact-here the trial examiner-required to be any
more naif than is a judge. If he finds that the stated
motive for a discharge is false, he certainly can infer
that there is another motive. More than that, he can
infer that the motive is one that the employer desires
to conceal-an unlawful motive-at least inhere, as
in this case, the surrounding facts tend to reinforce
that inference. [Emphasis supplied.]
In the light of that decision, my credibility findings above,
and my conclusion that the reason assigned by the
Respondent for the termination and refusal to reinstate
Peterson, a competent and reliable employee, is false and
pretextual, I find and conclude that the Respondent ter-
minated Peterson's employment because of his activity in
pressing a grievance for hospitalization benefits under a
collective-bargaining agreement, and that it thereafter
refused to reinstate Peterson or consider him for further
employment because he filed the charge in the instant
case, and that thereby the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(3), (4),
and (1) of the Act 40
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having further found that the Respondent dis-
criminated against Edward Peterson by terminating his
employment and thereafter refusing to reinstate him
because he engaged in activities protected by the Act, I
will recommend that the Respondent be ordered to offer
him immediate reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniori-
ty or other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of
the discrimination by the payment to him of a sum of
money equal to the amount he normally would have
earned as wages from the date of his termination to the
date of his reinstatement less his net earnings during said
period, with backpay computed on a quarterly basis in the
manner established by the Board.41
I will also recommend that the Respondent preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary to
analyze and determine the amount of backpay due under
the terms of this recommended remedy.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following-
CONCLUSIONS OF LAW
1. McNally Bros., Inc., is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, and Local 816, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, are labor organizations within the meaning of Section
2(5) of the Act.
3. By discriminating against Edward Peterson by ter-
minating his employment and refusing to reinstate him
because he engaged in union and concerted activities pro-
tected by the Act, and filed a charge under the Act, the
Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)(3), (4), and
(1) of the Act
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
iV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations of
the Respondent described in section 1, above, have a
10 Shattuck Denn Mining Corpo,ai ,on v N L R B 362 F 2d 466, 470
(C A 9)
a0 See cases cited in fn 38, supra
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I recommend that the Respondent, McNally Bros.,
A' F W Woo/worth Company, 90 NLRB 289 Backpay shall include
the payment of interest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716
McNALLY BROS.
Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against any employee by terminat-
ing his employment , or refusing to reinstate him, because
of his membership in, or activities on behalf of, Local 807,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or any other
labor organization , or because he engaged in concerted
activities protected by the Act , or filed a charge under the
Act, or in any other manner discriminating in regard to
hire or tenure of employment or any term or condition of
employment.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
right to join or assist labor organizations , to bargain col-
lectively through representatives of their own choosing,
or to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities , except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment , as authorized by Section 8(a)(3) of
the Act.
2 Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Edward Peterson immediate and full rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges previously enjoyed , and make him whole for
any loss of pay he may have suffered as a result of the dis-
crimination against him in the manner provided in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze and determine the amount
of backpay due under the terms of this Recommended
Order.
(c) Notify Edward Peterson if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act , as amended , after discharge from the
Armed Forces
(d) Post at its terminal in Brooklyn , New York , copies
of the attached notice marked "Appendix . ` 42 Copies of
said notice , to be furnished by the Regional Director for
Region 29, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof , and be maintained it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.43
41 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
829
peals Enforcing an Order " shall be substituted for the words "a Decision
and Order "
4t In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 29 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act , as amended , we hereby notify our em-
ployees that:
WE WILL NOT discriminate against any of our em-
ployees by terminating his employment or refusing
to reinstate him, because of his membership in, or ac-
tivities on behalf of, Local 807, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization , or because he engaged in
concerted activities protected by the Act, or filed a
charge under the Act.
WE WILL NOT in any like or related manner inter-
fere with , restrain, or coerce our employees in the ex-
ercise of their right to join or assist any labor or-
ganization , to bargain collectively through represen-
tatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection , or to refrain
from any and all such activities, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL offer Edward Peterson immediate and
full reinstatement to his former or substantially
equivalent position , without prejudice to any seniori-
ty or other rights and privileges previously enjoyed,
and make him whole for any loss of pay suffered as
a result of the discrimination against him.
MCNALLY BROS, INC.
(Employer)
Dated By
(Representative ) (Title)
Note : We will notify Edward Peterson if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office , 16 Court
Street , 4th Floor, Brooklyn , New York 11201,
Telephone 596-3535.