Penn Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1977

233 N.L.R.B. 928 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penn Industries, Inc. and Howard S. Reilly
Marine Freight Handlers & Warehousemen in the
Port of New York and Vicinity, Local 976 ILA and
Howard S. Reilly. Cases 22-CA-6794 and 22-
CB-3160
December 5, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On August 19, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent Union and
Respondent Employer filed exceptions and support-
ing briefs and Charging Party filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions1 and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein, and to modify the remedy so that
interest is to be computed in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977). 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent Employer, Penn Industries, Inc., Jersey City,
New Jersey, its officers, agents, successors, and
assigns, and the Respondent Union, Marine Freight
Handlers & Warehousemen in the Port of New York
and Vicinity, Local 976 ILA, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as modified.
1. Substitute the following for paragraph A,2(a):
"(a) Offer to Howard S. Reilly immediate, full, and
unconditional reinstatement to his former position
or, if it no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other
rights, privileges, benefits, and emoluments, includ-
ing regular periodic incremental and other pay raises
in the interim and also currently applicable pay
scales."
2. Substitute the following for paragraph B,l(b):
233 NLRB No. 133
"(b) In any other manner restraining or coercing
any employee in the exercise of the right to self-
organization; to form, join, assist, or participate in
the affairs of any labor organization; to bargain
collectively through representatives of his own
choosing, or to participate in that process; to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection; to
inquire lawfully into and attempt lawfully to influ-
ence the conduct of the management and affairs of a
labor organization of which he is a member; or to
refrain from any and all such activities."
3. Substitute the attached notices for those of the
Administrative Law Judge.
Both Respondents contend that the Administrative Law Judge's
interpretation of the evidence and his credibility findings showed bias and
prejudice against them. Upon careful examination of the Administrative
Law Judge's Decision and the entire record, we are satisfied that the
contentions of Respondent Union and Respondent Employer in this regard
are without merit.
2 The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (192).
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, help, and participate
lawfully in the affairs and activities of
unions
To bargain collectively through represen-
tatives of their own choosing, and to
participate lawfully therein
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT violate these rights.
WE WILL NOT encourage or discourage union
membership or any activity in which employees
have the right to engage or not to engage under
Section 7 of the National Labor Relations Act, as
amended, by discriminating in regard to hire or
tenure of employment or any term or condition of
employment, in violation of the Act.
WE WILL NOT, in violation of the Act, terminate
the employment of, discharge, lay off, separate,
928
PENN INDUSTRIES, INC.
suspend, furlough, or fail or refuse to recall,
reinstate, rehire, or reemploy any employee
because he seeks to bargain collectively with us,
or because he is active in union affairs, or because
he exercises or asserts or seeks to exercise or
assert any right under the National Labor
Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any employee in the
exercise of the right to self-organization; to form,
join, assist, or participate in the affairs of any
labor organization; to bargain collectively
through representatives of his own choosing, or to
participate in that process; to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection; or to refrain
from any and all such activities.
WE WILL offer Howard S. Reilly immediate,
full, and unconditional reinstatement to his
former job or, if it no longer exists, to a
substantially equivalent job, without prejudice to
his seniority and other rights, and we will,
together with Local 976 ILA, pay him for any
wages and benefits lost by him because of our
termination of his employment on January 26,
1976, plus interest; and we will also, together with
Local 976 ILA, pay into the Union's Welfare
Fund and Pension Fund all contributions on
behalf of Reilly due on and since January 26,
1976, just as if Reilly had not been discharged on
that date.
WE WILL forthwith remove from our records all
indications that Howard S. Reilly was discharged
by us on January 26, 1976, for any fault on his
part, and we will make no such statement to any
employer, prospective employer or in answer to
any credit, reference, character, or similar inquiry.
All of our employees are, as provided by law, free
to join or not to join any union, to participate in its
affairs, or to exercise any other right under the
National Labor Relations Act, as they see fit,
without interference, restraint, or coercion from us in
any form.
PENN INDUSTRIES, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, help, and participate
lawfully in the affairs and activities of
unions
To bargain collectively through represen-
tatives of their own choosing, and to
participate lawfully therein
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT fail or refuse to represent you
fairly and impartially in your grievances against
your employer.
WE WILL NOT fail or refuse to process your
grievances against your employer because you
exercise or seek to exercise any of your rights
under the National Labor Relations Act, or
because you file charges against your employer or
against us under the Act, or because you seek the
protection of the Act or the National Labor
Relations Board, or because you go to the Board
and seek to avail yourselves of its processes.
WE WILL NOT in any other manner violate your
rights under the National Labor Relations Act.
WE WILL, together with Penn Industries, Inc.,
reimburse Howard S. Reilly for any pay and
benefits he has lost, plus interest, because of his
unlawful discharge by Penn Industries on Janu-
ary 26, 1976, and our wrongful refusal to process
to arbitration his grievance over his discharge as
provided in our collective agreement with Penn
Industries, Inc.; and we will also, with Penn
Industries, Inc., pay into the Union Welfare Fund
and Pension Fund all contributions on behalf of
Reilly due on and since January 26, 1976, just as
if he had not been discharged on that date.
We assure you that you are all free to take part in
union affairs and activities, including raising ques-
tions about proposed wages and other terms and
conditions of your employment, with your union
officials and agents and at union meetings, without
fear of any reprisal, retaliation, restraint, or coercion
from your Union or any of your union officials,
agents, or employees.
MARINE FREIGHT
HANDLERS &
WAREHOUSEMEN IN THE
PORT OF NEW YORK
AND VICINITY, LOCAL
976 ILA
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
1. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding' under the National Labor
Relations Act, as amended (29 U.S.C. § 151, et seq., the
Act) was heard before me in Newark, New Jersey, on
various dates from July to September 1976, with all parties
participating throughout by counsel, who were afforded
full opportunity to present evidence and arguments and
who subsequently filed briefs after unopposed extension of
time for that purpose. Record and briefs, aggregating close
to 1,000 pages, have been carefully considered.
The principal issues tendered by the pleadings are (1)
whether, in violation of Section 8(a)(3) and (1) of the Act,
Respondent Employer terminated the employment of its
former Jersey City employee Howard S. Reilly (and has
since failed and refused to reinstate him) because of his
union membership and protected concerted activities; and
(2) whether, in violation of Section 8(b)(1)(A) of the Act,
Respondent Union failed and refused (and continues so to
do) to represent its member Reilly fairly and impartially,
by failing and refusing to process his discharge grievance,
because he filed charges and utilized Board processes
under the Act.
Upon the entire record 2 and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
II. JURISDICTION
At all material times, Respondent Penn Industries, Inc.,
(hereinafter Penn, Company, or Employer), a New York
corporation, has maintained and maintains places of
business at Port Jersey Industrial Park, New Jersey, and
other locations in the States of New Jersey and New York
for the conduct of its freight consolidating services
business. In the course and conduct of that business, in the
representative 12-month period immediately preceding
issuance of the complaint, said Respondent provided and
performed freight consolidating services valued in excess of
$50,000, of which over $50,000 worth were provided and
performed to or within States other than the State of New
Jersey.
I find that at all material times Respondent Penn has
been and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that at
all of those times Respondent Marine Freight Handlers &
Warehousemen in the Port of New York and Vicinity,
Local 976 ILA (hereinafter the Union or Local 976), has
been and is a labor organization within the meaning of
Section 2(5) of the Act.
1 Based on May 5, 1976, consolidated complaint growing out of charges
filed in each case on February 10, 1976, by Howard S. Reilly, Charging
Party.
2 Errors in the transcript have been noted and corrected.
3 See, e.g.. Amalgamated Local Union 355 [Russell Motors] v. N.LR.B.,
A. Background
1. Respondent Employer (Penn): Organization,
hierarchy, and general operational methodology
a. Organization and hierarchy
Respondent Employer is a freight consolidator with
facilities at Port Jersey Industrial Park, New Jersey, and
elsewhere in New Jersey and New York, with as many as
400-450 employees. Penn is interlocked with United States
Packing & Shipping Company (USP&S), with Penn as the
operating company with the labor force, and with USP&S
handling "sales" (i.e., freight consolidation) in the New
York area, basically for chain and department stores.
Either or both operate or utilize facilities (e.g., "Lifschultz,"
infra) in other locations, including New York City
(Manhattan). Neither is an ICC certificated carrier. At
some of the various locations, merchandise of various
customers is processed for shipment, at other locations,
merchandise of only one customer. At the head of the
corporate empire is said to be a Mrs. Greenough, the
"silent" president of both corporations, which are for
practical purposes operated by John B. Costello as
executive vice president of each. Under Costello is Alfred
(Al) Baffa, vice president of operations of Penn, whose
assistant is Larry Lavagnino (who is Al Baffa's second-in-
command in running Penn), with the title of superinten-
dent of operations. Gregory Bartolomucci is terminal
manager of Penn's Greenville (Jersey City) facility, while
Charlie Rocco and Arthur J. Olvesen are foremen in charge
of the two buildings comprising that facility.
Supervisory Status of Penn Foreman Olvesen
Because of the unopposed withdrawal of an admission in
Penn's answer, an issue was raised and litigated at the
hearing concerning whether Penn's employee Arthur J.
Olvesen is (and has been at all material times) a supervisor
as well as a foreman (the latter status-i.e., foreman-
remaining admitted). I resolve that issue by finding, on the
record as a whole, that Olvesen's status was and is indeed
supervisory as alleged in the complaint and originally
admitted.
Section 2(11) of the Act defines "supervisor" to "mean
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but
requires the use of independent judgment." It has repeated-
ly been pointed out3 that, since this definition is disjunc-
tive, possession of any of the enumerated powers or
481 F.2d 996, 999 (C.A. 2, 1973), and cases cited.cert. denied 414 U.S. 1062
(1973); Jas. H. Matthews & Co. v. N.LR.B., 354 F.2d 432 (C.A. 8, 1965),
cert. denied 384 U.S. 1002 (1966); Ohio Power Company v. N.LR.B., 176
F.2d 385, 387 (C.A. 6, 1949), cert. denied 338 U.S. 899.
III. ALLEGED UNFAIR LABOR PRACTICES
930
PENN INDUSTRIES, INC.
attributes is sufficient for the existence of supervisory
status.
Credited testimony of Respondent Penn's former check-
er, Howard S. Reilly (Charging Party herein), establishes
that, at any rate while working for it on its regular and
ongoing NORMA account, he functioned under and
subject to Foreman Olvesen (who in turn functioned under
Terminal Manager Bartolomucci), who gave Reilly as well
as other employees work orders which they carried out;
and that Olvesen also gave employees time off as well as
overtime. Penn's executive vice president, Costello, testify-
ing as its witness, identified Olvesen as its NORMA (New
Orleans Retail Merchants Association) facility foreman, as
did Penn's vice president of operations, Al Baffa. So did its
Greenville terminal manager, Bartolomucci, who described
Olvesen as one of two foremen under him-Olvesen in
Building 136 and Rocco in Building 120, those two
buildings, about 150 feet apart, comprising the Greenville
facility or terminal. Although, according to Bartolomucci,
Olvesen is not authorized to hire or fire, as has already
been indicated the Act's quoted definition does not require
that power as a sine qua non of supervisory status.
Bartolomucci conceded that, in contradistinction to rank-
and-file employees, Olvesen has a key to open the building
of which he is foreman; that Olvesen (as well as Rocco)-
unlike rank-and-file employees-appears to receive almost
10 hours of guaranteed overtime pay per week regardless of
whether he actually works that much; that he has the
power, on his own authority, to change and assign tasks to
employees, even for as much as a week or longer; that he
selects employees for overtime work; that he has the
authority to transfer employees from work on one account
to work on another account even in the other building; and
that he has the power effectively to recommend promo-
tions, job changes, and discipline (including suspension), so
as to carry weight.4 Also testifying as Respondent Penn's
witness, Olvesen identifies himself as its foreman for 4 or
more years. Even Union Secretary-Treasurer Frank Baffa
testified that he had been pointing out to Respondent
Employer that foremen in Olvesen's category had been in
fact exercising supervisory powers in relation to the rank-
and-file employees.
Credited testimony of Reilly and Respondent Penn's
own terminal manager, Bartolomucci, without more,
establishes Olvesen's supervisory status within the Act's
definition, and I so find.
b. General operational methodology
The process of freight consolidation consists, among
other things, in receiving shipments of freight, perhaps
invariably of less than trailer truck or carload size, destined
to consignees in various shipping locations; unloading,
assembling, and organizing or consolidating these by
destination or consignee(s) so as to fill as much of a truck
or carload as is practicable; and then arranging, itself or
4 I was unfavorably impressed by Bartolomucci's attempted later
equivocations concerning these earlier concessions. I accordingly credit the
concessions and reject the equivocations.
5 Such manifests are prepared by IBM-leased computers at the No. 2
Sixth Street, Jersey City, facility.
I USP&S has no contractual agreement with any union.
through carrier(s), for the transportation and delivery of
the merchandise to consignees. An object of such consoli-
dation is to achieve economy in cost and also, at times, to
speed delivery of relatively small or less than truck or
carload lots of merchandise, which would otherwise have
to be transported in individual smaller shipments to the
same consignee or destination by different or sometimes
even the same consignor. In the process of freight
consolidation, inbound bills of lading, prepared by the
shipper or its carrier, are received and receipted for by the
freight consolidator, who (USP&S) in turn issues its
outbound consolidated bills of lading, together with
manifests describing the contents or breakdown of the
specific consolidated loads.5 One of Respondent's ac-
counts, for the past 15 or 20 years or so, has been New
Orleans Retail Merchants Association (NORMA), a
shippers' association with a membership of 100-300
merchants, 6 or 7 of whose 20-25 active members make up
most of the NORMA freight tonnage consolidated by
Respondent Penn.
2. Respondent Employer's relationship with
Respondent Union
Respondent Employer (Penn) has enjoyed collective
contractual relationships with Respondent Union (Local
976 ILA) since 1937 (Resp. Union Exh. 2) more recently
reflected in 3-year-term agreements, the latest of which was
formalized in January 1976.6 The chief participants in the
Respondents' collective negotiations and relationships
include Penn's vice president, Al Baffa, and the Union's
longtime (since 1953) secretary-treasurer, Frank Baffa, who
are brothers. Prior to becoming Respondent Union's
secretary-treasurer in 1953, Frank Baffa was employed by
Respondent Penn from 1939 to 1953. Respondent Union's
business agent servicing Respondent Penn's employees is
Sam DelGrosso, who, prior to occupying that status (since
about 1974), had also been in Penn's employ for about 10
years.7
Respondent Union Secretary-Treasurer Frank Baffa
insists that his only relationship here with his brother,
Respondent Employer Vice President Al Baffa, has been at
"arm's-length." He swears, for example, that he never so
much as mentioned the name of Reilly-the centerpiece of
the instant case, as will be shown-to his brother prior to
Reilly's discharge; in Frank Baffa's words, "My job is to
protect the men, not to talk about them."
B. Howard S. Reilly: Advent into Respondent
Union's Affairs and Discharge from Respondent
Employer's Employ
Charging Party Howard S. Reilly entered Respondent
Penn's employ as a checker (and at times loader) in
September 1971,8 working for it in about seven locations in
the New York City Metropolitan Area (including Jersey
City, New Jersey), for the next 3 years. In September 1974
7 DelGrosso was also formerly a member of the Teamsters and of the
TWU.
4 After graduation from Harvard Law School in 1959. Reilly was
admitted to the Colorado Bar in 1959 and practiced in that State for a year.
After not practicing from 1960-75, he was admitted to the New 'ork Bar in
(Continued)
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was transferred, at his request, to the night shift and
assigned by Respondent's superintendent of operations,
Lavagnino, to the premises of California Shippers in Jersey
City, where he remained as a sorter for 2 months until, in
November (1974), he was assigned to Penn's New York
City "Lifschultz" location, unloading, sorting, and recon-
signing freight (still on the night shift)-a task at which he
remained until September 1975. At that time (September
1975), again at his request, he was retransferred by
Superintendent Lavagnino from the night shift (on which
Reilly was only working about 2 or 3 nights a week) to the
day shift, and rotated as a checker among various
locations-initially, for about 2 weeks, at Chicago Shippers
in Jersey City, and then at Detroit Shippers at Greenville
(Port New Jersey, Jersey City), for about a week in
September 1975, until he was called for jury duty. On his
return in October 1975, he was assigned, again as a
checker, to the USP&S building or Greenville terminal in
Jersey City, where the NORMA account was handled, and,
together with a route clerk and loaders, came under the
supervision of Foreman Olvesen. Although only Reilly had
the job title of checker there, Olvesen as well as the route
clerk (John Boyle) also checked NORMA-destined freight
there; and Reilly also occasionally assisted the loaders in
loading. As aforestated, Foreman Olvesen functioned
under Greenville Terminal Manager Greg Bartolomucci.
During all of this time-over 4 years of continuous
employment-Respondent Penn was seemingly satisfied
with Reilly's performance. Reilly credibly and undisputed-
ly recounted how his superior, Sabatini, during the summer
and fall of 1975, repeatedly praised his work and indicated
he would be "happy" to have him continue under him and
to serve as a reference for him. It is also uncontroverted
that, when Reilly passed the New York bar examination on
December 5 (1975), his foreman, Olvesen, indicated to him
later that month that if he planned to leave Penn's employ
he should give the Company 2 months' notice-hardly the
attitude of an employer dissatisfied with an employee's
work or on the verge of discharging him.
Reilly joined Respondent Union (Local 976 ILA) around
December 1971, shortly after he was hired by Respondent
Penn. He attended union meetings regularly. Apparently
Reilly's participation in union affairs was unremarkable
until the fall of 1975, when he emerged into prominence, as
will be shown. At that time (fall 1975), when the subsisting
March 1976 after passing that State's bar examination on or about
December 5, 1975.
9 As to this, Reilly's credited testimony is corroborated by credited
testimony of Respondent Employer's checker-router John Boyle.
'o Respondent Union's LM2 report for 1973 (G.C. Exh. 2) discloses that
the Union's address is c/o its treasurer, Frank Baffa, with its president one
Joseph Casazza (identified by Frank Baffa as a Penn route clerk and
checker); that its total cash receipts were $74,256, of which $71.847 were
from dues, $710 from "fees," and $1,699 from "other sources"; that its total
cash disbursements were $71,194, of which $30,216 gross went to "officers,"
$1,531 for "professional fees," $9,310 for "benefits," $1,814 ($1,314?) for
"contributions, gifts and grants," $4,957 for "office and administrative
expense," and $15,431 for "other purposes"; that the book value of its fixed
assets at year end was $968; that salary paid to Treasurer Frank Baffa was
$14,155, to President Joseph Casazza was $2,910, and to Business Agent
MacLeod $9,625, with a total payment of $30,316, plus $ 11,484 to Organizer
D. Iquinto; plus a pension payout (seemingly the only one) to "retired
officer" in the sum of $5,200, "Xmas & other gifts" in the sum of $1,285,
"additional listing" in the sum of $2,611, and "other disbursements" in the
sum of $S15,481. Its LM2 report for 1974 (id) identifies the same officers;
collective agreement between Respondent Employer and
Respondent Union was coming up for "renegotiation,"
employees began discussing among themselves9 their rates
of pay and other terms and conditions of employment, with
a view toward betterments in the upcoming collective
agreement. In this connection, on November 5 Reilly
requested Respondent Union-for the first time-supply
him with a copy of its constitution, bylaws, pension plan,
welfare plan, collective agreement, and financial statement.
When Reilly received all of these, except the financial
statement, he posted them in the company employees'
locker room. Reilly then took it upon himself to procure,
from the U.S. Department of Labor, a copy of the Union's
LM2 reports for 1973 and 1974 (G.C. Exh. 2), which he
discussed with fellow employees.10
No union meeting at all had been held in 1975. A
meeting was called for Saturday, November 22 (1975),
shortly before the expiration of the subsisting 3-year (1972-
December 1975) collective agreement. At that meeting,
chaired by Union Secretary-Treasurer Frank Baffa and
attended by 50-60 members, Baffa, seemingly according to
his testimony on cross-examination, indicated that Respon-
dent Union intended to ask Respondent Employer, which
he characterized as "a little private small company," for a
wage increase of the same 37-1/2 cents per hour it had
asked 3 years earlier. Reilly objected and was the first to
ask for the floor to speak on behalf of the employees.' He
proposed wage demands substantially in excess of this (i.e.,
$2.50 per hour) and more in line with the Teamsters scale
(which Frank Baffa, according to his own testimony,
indicated was inappropriate and excessive), as well as
ameliorations in pensions, sick leave, and other fringe
benefits substantially in excess of what Frank Baffa was
suggesting. Although Reilly's proposals were ridiculed by
some (including Foreman Charlie Rocco, who called them
"idiotic" and said that "the company couldn't do that"),
they were nevertheless adopted "by acclamation." How-
ever, Frank Baffa on cross-examination conceded that,
nevertheless, when he submitted Reilly's suggested wage
demand to Respondent Employer, he (Frank Baffa)
explained to Respondent Employer that this was only
"what one of the members proposed" (emphasis sup-
plied). 12
During the foregoing confrontation at the November 22
(1975) union meeting between Reilly, who suddenly
total cash receipts, $80,636 ($75,347 dues); total cash disbursements, $76,854
($35,760 gross to "officers"; $5,129 for "office and administrative expense";
$11,950 gross to "employees"; $1,250 for "professional fees"; $7,502 for
"benefits"; $1,880 for "contributions, gifts and grants"; and $17,482 for
"other purposes"); that the book value of its fixed assets at year's end was
$868; auto rental, $4,847; salary to Treasurer Frank Baffa, $15,960; salary
to President Joseph Casazza, $2,970; salary to Business Agent S. DelGrosso,
$9,450; total payout to officers and business agents, $35,760; plus $11,950 to
Organizer D. Iquinto; pension payment (apparently the only one) to
"retired officer" $5,200, "Xmas and other gifts" $1,375, and "additional
listing" $16,151.
" Reilly's testimony to this effect is confirmed by Respondent Union
Secretary-Treasurer Frank Baffa, who, testifying on its behalf, described
Reilly as "the first man up on his feet ... and he demanded that there be a
secret ballot . . land ] kept interrupting me."
12 Frank Baffa denies he identified to Respondent Employer who the
employee was. This strikes me as of a piece with Frank Baffa's denial that he
ever so much as mentioned the name of Reilly to his own (Frank Baffa's)
brother Al Baffa, Respondent Employer's vice president of operations, or to
932
PENN INDUSTRIES, INC.
became outspoken, and Union Secretary-Treasurer Frank
Baffa, Reilly asked for a secret-ballot vote among the
members, but Baffa refused to entertain Reilly's motion on
the ground that "a secret ballot [is] not necessary" among
"brothers in the union," as he likewise did to entertain
Reilly's appeal to the membership from that ruling. Reilly,
however, pressed his demand, calling attention to the
presence at the union membership meeting of various of
Respondent Employer's supervisory officials ("sitting on
every row in that place practically"),' 3 which Reilly
pointed out engendered fear of reprisals and was an unfair
labor practice, but Union Business Agent DelGrosso stated
that Reilly need not be concerned about that and not to
bring it up. Reilly thereupon added that he himself was
apprehensive that the Union would not defend any
employee so retaliated against. To this, Frank Baffa
exclaimed, according to credited testimony of Reilly, "I
would never defend you .... if you have any trouble with
the union you could go to the NLRB or you could go to
court." Although Frank Baffa denies he said this to Reilly,
nevertheless on comparative demeanor observations I
credit Reilly. Frank Baffa concedes, however, that he did
indeed rule Reilly out of order at the meeting and that he
refused to allow an appeal to the membership from his
ruling. Frank Baffa characterizes Reilly's participation in
the meeting as "obnoxious, abusive and loud, and he was
disrupting the meeting"-characterizations which were not
established here by substantial credible proof as required.
Between the foregoing November 22, 1975, union
meeting and the next union meeting on January 10, 1976,
Reilly continued his delvings into union affairs, researched
the Union's current bargaining positions, and discussed
these matters extensively (he estimates as many as 50
occasions) with fellow employees, as well as the salaries of
the union officers and the apparent anomaly of the Baffa
family control or interlocking influence over the Union as
well as over the Employer. They also discussed their own
being required to unload incoming cargoes-normally
Teamsters' work-at $4.33 per hour instead of the $6.80
per hour if Teamsters had been utilized.
Reilly's delvings into employment conditions prevailing
at Penn produced some startling revelations. Thus, not-
withstanding his being "represented" by Respondent
Union as a longtime member, he discovered from conver-
sation with fellow checker/route clerk John Boyle that for
over 4 years he (Reilly) had been receiving 2 cents per
hour, or 80 cents per week, less than the contractually
specified rate for a checker, and also that he had not been
given required vacation pay. After verifying this from the
Greenville Terminal Manager Greg Bartolomucci, or any other company
official.
13 Including Greenville Terminal Foremen Olvesen (Building 136) -
Reilly's foreman-and Rocco (Building 120). Foreman Costa (California
Shippers location). Foreman Roger Anzelone (son of Penn conceded
Supervisor Sal Anzelone) of the Lifschultz 33d Street (New York City)
location, Foreman Dexter ("Geetch") Bacote (also of the 33d Street
location), and perhaps others. In addition to Foreman Olvesen, credited
testimony establishes others of the foregoing. such as Charlie Rocco-under
whom Reilly also worked and from whom Reilly as well as other Penn
employees took orders and carried them out-to be supervisors within the
meaning of the Act and I so find. Of the foregoing. Olvesen. the only one to
testify-as Respondent Employer's witness-conceded he attended the
November 22, 1975, union meeting, and confirms (as he does Union
copy of the collective agreement which he had demanded
from the Union, he called this to the attention of Penn
bookkeeper Hopkins, who referred Reilly to his foreman.
When Reilly spoke to Foreman Olvesen, the latter referred
him to Greenville Terminal Manager Bartolomucci, who
said he would check into it. About an hour later, Reilly was
summoned to the office of Penn Vice President Al Baffa,
where Union Secretary-Treasurer Frank Baffa and Busi-
ness Agent DelGrosso were already present-"accidental,"
according to Al Baffa. After Reilly explained the situation,
DelGrosso asked him why he had not notified his foreman.
Reilly (who had done so after he found out) pointed out
that he had been unaware of the contractually required
wage rate. Al Baffa thereupon ascertained the time
involved and Reilly was paid. No adverse mention whatsoev-
er was made-nor had any previously been made-concern-
ing Reilly's work performance. This occurred on January 9,
1976, shortly before Reilly's discharge, and was the first
occasion on which Reilly was in Al Baffa's office.
On the next day, January 10, 1976, another union
meeting was held, at which Reilly again took an active
leadership role in opposition to that of the union hierarchy.
Again, various supervisory personnel of Respondent
Employer were present.14 The announced purpose of the
meeting was to ratify a new proposed 3-year collective
agreement between Respondent Employer and Respon-
dent Union (January 1, 1976-December 31, 1978), again-
as in the expired 1973-75 3-year contract-calling for the
same 37-1/2-cent hourly increase (but with added incre-
mental increases of around 20 and 25 cents for the second
and third years) and some incidental fringe betterments
such as 4 days of unrestricted sick leave (instead of, as
previously, on medical certificate).' 5
At the outset of the January 10, 1976, meeting, Reilly
objected to Secretary-Treasurer Frank Baffa's chairing the
meeting, calling attention to the Union's constitutional
requirement that the Union President preside, and pointing
out that, according to the Union's LM2 report to the
Secretary of Labor, Joseph Casazza (Cassasa, Cazazza) was
its president at an annual salary of some $3,000. Casazza,
however, refused to preside, stating he did not care what
the union constitution required,' 6 a position in which he
was supported by Frank Baffa. Testifying as Respondent
Union's witness, Secretary-Treasurer Frank Baffa concedes
that, although the union president (i.e., Casazza) is required
under its constitution to preside, he (Baffa) declined to
follow this requirement, construing it to require only that
the president "hit the gravel [sic]" (which he concededly
had not done) and that since Union President "Casazza is
Secretary-Treasurer Frank Baffa's) Reilly's active participation there,
including his demand for a secret ballot and increased wage demands.
i4 Including Reilly's foremen. Olvesen and Rocco, as well as Foremen
Costa and Bacote (credited testimony of Reilly). Again. Olvesen in his
testimony conceded he also mentioned this union meeting. (He denies,
however, that he told management about anything that transpired at either
of the meetings of January 10 or November 22--difficult for me to believe-
although Bartolomucci concedes he learned it otherwise anyway.) Other of
Respondent Employer's foremen-who, Respondent Employer concedes,
had the same capacity as Olvesen-likewise attended that union meeting.
is Testimony of Union Secretary-Treasurer Frank Baffa.
16 Undisputed, credited testimony of Reilly. Without explanation.
Casazza was not produced as a witness.
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not in on everything" and "I [Frank Baffa] was much more
qualified ... ," Baffa announced in response to Reilly's
request, "I [Frank Baffa am ] the Chairman of this meeting
and I would run it"; and that a motion that Baffa preside
was carried "unanimously"-adding, as an afterthought,
that "maybe he [Reilly] voted against it," but that he
(Baffa) did not "hear" any opposition. When Reilly
asked-perhaps in part in view of the seemingly greatly
increased attendance at the January 10 meeting (around
190, according to Baffa) over that of the previous
November 22 meeting (around 50-60, according to Reilly;
around 125 according to Baffa)-that the minutes of the
last meeting (i.e., November 22) be read, Baffa declined to
do so and refused to make them available to Reilly until
the close of the meeting. Baffa then explained the terms of
the proposed new collective agreement. During the ensuing
discussion, Reilly criticized the meagerness of the indicated
betterments and took exception to what he characterized as
a 26-percent increase in the union secretary-treasurer's own
salary at the same time that the latter was urging union
members to take less than 6 percent, drawing from Baffa
the retort, "I am not going to recognize you any more, you
are just a trouble maker .... if you don't like working
here under these conditions you can go join the Teamsters
because you seem to like them so much better." 17
Although Baffa denies that he said he would not recognize
Reilly any more, upon the basis of testimonial demeanor
comparisons I clearly prefer the testimony of Reilly.
Conceding that Reilly called for secret balloting, Baffa
claims that Reilly was the "only one" who "wantled]" a
secret ballot; and that the proposed contract was ratified,
without change, by a 178-11 vote. According to Baffa,
Reilly was "standing on a nonsensical idea, and holding up
the meeting . . . standing on technicalities . . . being
disruptive" and "the men were getting upset and impatient
. . . [andj didn't want to hear all of that from [Reilly]."
Although Baffa denies he called Reilly a "troublemaker"
(again preferring Reilly's testimony upon the basis of
testimonial demeanor comparisons, I credit Reilly), he
concedes that he indeed told Reilly to "go to the
Teamsters." 18
Testifying as Respondent Employer's witness, Greenville
Terminal (where, it will be recalled, Reilly was employed)
Manager Bartolomucci conceded that, soon after the
described January 10, 1976, new 3-year collective agree-
ment union "ratification" meeting, he (Bartolomucci)
17 Reilly had also prepared two petitions for presentation at the January
10 meeting-one calling for secret balloting (G.C. Exh. 3A) and the other
for a special meeting to consider officers' salaries, election of shop stewards,
etc. (G.C. Exh. 3B). Apparently, in view of Baffa's handling of the meeting
or for other reasons, nothing came of these or they were not presented or
reached.
is Trial transcript, p. 643; but later (id., 679) Baffa claimed not to be able
to "remember that." Baffa also concedes that, when Reilly accused him of
not following requirements of the union constitution and bylaws and that
this could be an unfair labor practice redressible through the Labor Board,
he (Baffa) invited Reilly to present the matter to the Labor Board.
19 The checker receives, counts, and checks on shipments received at the
terminal from drivers. The route clerk (router) routes merchandise, upon
receipt of documentation, to a specific trailer or destination. According to
credited, undisputed testimony of Greenville Terminal/NORMA account
route clerk John Boyle. Respondent Employer's NORMA account Building
136 facility has about six doors. After a truck is backed to a door, the driver
hands his bills of lading to the route clerk at the latter's desk or bench. The
learned near his office about what had transpired there
during the "big shouting match ... with [Reilly and Frank
Baffa] yelling and screaming at each other." However,
upon the basis of testimonial demeanor as observed, within
the context of the record as a whole, I discredit, as
unworthy of belief, his further testimony that he did not so
much as mention any of this to Vice President of
Operations Al Baffa or Executive Vice President Costello.
He is silent on whether he mentioned it to Al Baffa's
lieutenant, Lavagnino, who did not testify.
Following the explosively rancorous confrontation be-
tween Reilly and Frank Baffa at the January 10 contract
ratification meeting, the demarche of events ensued
speedily, culminating in Reilly's precipitous discharge from
his job after over 4 years of steady employment, capped by
Respondent Union's refusal to test the propriety of that
discharge through the grievance arbitration proceeding
established in its collective agreement with Respondent
Employer. These events will now be described.
It will be recalled that, at the time of Reilly's rancorous
exchanges with Frank Baffa at the January 10 union
contract ratification meeting, Reilly was working at the
Greenville facility in Building 136 under Foreman Olvesen,
where the NORMA freight consolidations were processed.
Although Reilly was the only person there with the title of
checker-also assisting with loading at times-Foreman
Olvesen, as well as route clerk John Boyle, also checked
NORMA freight.' On January 12, 2 days after the
aforedescribed union meeting, Greenville Terminal Build-
ing 136/NORMA route clerk Boyle went on jury duty, and
Reilly was assigned to do Boyle's job as well as his own.
Also during the period of Boyle's absence, Reilly carried
out certain work revisions he had been instructed to make,
involving more specific markings of freight as well as more
work.
On Friday, January 23, 1976, Reilly as usual processed
thousands of packages or pieces of freight-not only as
checker but also as router. During the course of the day, he
observed a loaded trailer being "stripped" (i.e., unloaded)
and its contents reasserted. He asked Foreman Olvesen,
"Is this because of some mistake I made?" Olvesen replied,
"No, nothing of the kind." About an hour later, Olvesen
remarked, "This was a complete waste of time." Late that
afternoon, after working outside in subzero weather, Reilly
caught an apparent error which might or might not have
been ascribable to or "seconded" by Reilly, involving an
checker is right next to the route clerk. The route clerk "PRO's" or routes
the shipments by rubber-stamping a "PRO" number on the bill of lading
and also on the shipping order (i.e., the second copy of the bill of lading),
since these two documents are separated. After the shipping order is
inspected to determine that the consignee is a member of NORMA, it is
assigned the number of the trailer which will transport the merchandise. The
bills of lading are later returned to the driver, as are the shipping orders
(stamped USP&S). The driver then gives the shipping orders, with their
described cartons, to the checker, who, after checking them, writes the
"PRO" number and also the trailer number (both from the shipping order)
on the package(s), which he places on a flat near him, for loading into the
appropriate trailer(s). The shipping orders are returned by the checker to the
route clerk, who thereupon stamps "Received" upon and releases the
original bills of lading. At times, according to Boyle-as in both his case and
in the case of Reilly-the same person does both the routing and checking.
Boyle, as well as Reilly, acknowledges occasional errors-not surprising,
particularly considering the huge volume of separate packages handled
daily.
934
PENN INDUSTRIES, INC.
incorrect "PRO" or forwarding identification number on
two cartons (out of the thousands of cartons or pieces that
day), assumedly the product of driver-improvised paper-
work (not unusual) or of a double billing-so that the error
may not basically have been on Reilly's part at all
(although it is possible that it may have been, or that it may
have been "seconded" or carried forward by Reilly, based
on driver paperwork error, in the rush of things with
thousands of parcels being processed that day). The
shipment involved some Lady Carol dresses consigned to
Labiche's in New Orleans, and the precise circumstances
were that Reilly had placed a PRO number on two cartons
for which there was no shipping order-not an unusual
situation; and, when Reilly later received the shipping
order, showing a PRO number different from the first PRO
number he had already placed on it (originally in the
absence of any PRO number), he at once pointed this out
to Foreman Olvesen 20 so that the error could be promptly
rectified.
At the close of the afternoon of Monday, January 26,
1976-after over 4 years of steady employment at Penn,
without warning, notice, or adverse employment history-
Reilly was precipitately discharged by Foreman Bartolo-
mucci, who told him it had been necessary to "strip" two
trailers in 2 days because of him. Specifically he was
faulted on the PRO marking on the previous Friday
(January 23) involving the Lady Carol consignment (which
Reilly himself had caught and at once reported for
rectification), 21 a wrong number marking on one carton on
January 26 (conceded by Reilly), and an allegation that he
had been letting "open" boxes go by-an allegation
vigorously and credibly denied by Reilly, who points out
that other loaders handle the cartons after they leave his
hands. But Bartolomucci was inflexible, suggesting to
Reilly that "If you have anything more to say take it up
with Frankie DeFranco, your shop steward." (The fact, if it
was such, that DeFranco was shop steward or assistant
shop steward "came as a surprise to me [Reilly].")
On January 28, promptly after his discharge, Reilly
communicated with Union Secretary-Treasurer Frank
20 On the basis of comparative testimonial demeanor as observed, I
discredit Olvesen's denial that Reilly pointed this out, and that it was
Olvesen himself who discovered it. While impressed with Reilly as a truthful
witness, I found Olvesen to be an unprepossessing and clearly partisan
witness who trimmed and hedged his testimony at times, contradicting
himself, affecting a deficient memory when it served his purpose. and who
finally conceded on cross-examination that it was indeed Reilly who pointed
out to him that two shipping orders or PRO's had been used for a single
two-carton Lady Carol shipment (after Olvesen had himself allegedly
discovered it). It also impresses me as highly implausible that Olvesen would
himself have discovered such a thing so rapidly-rather than Reilly, who
was doing the checking-with thousands of cartons, as Olvesen concedes,
being processed. Accordingly. I prefer and credit Reilly's testimony that it
was he himself who called this matter to the attention of Olvesen.
1i There is no indication that any damage or claim ever resulted
therefrom.
22 DelGrosso's version of this exchange is that after Reilly did, indeed,
indicate that DelGrosso should represent Reilly, DelGrosso explained to
Reilly that Reilly "might have misled" the membership; that Reilly's aims
were not understood by the membership, since "most of it was black, 60
percent," with "very little schooling," and that "we are not a union like the
school teachers or the printers union," and that the members were interested
only in "the bread and butter issues." According to DelGrosso, whom I do
not credit in this regard. when he asked Reilly whether he wished to go to
arbitration, Reilly stated he would "sue" for backpay. DelGrosso concedes
that, although, according to DelGrosso's testimony, Reilly did not state he
Baffa, placed the matter of his discharge before him, and
asked that it be processed under the collective agreement.
Baffa replied that he was assigning Business Agent Sam
DelGrosso to handle it. On February 10 a grievance
meeting was held at the Greenville Terminal. Present in
addition to Reilly were Respondent Union Business Agent
DelGrosso, Respondent Employer Superintendent of Op-
erations Lavagnino, and Foreman Olvesen. DelGrosso, in
the presence of Respondent Employer, remarked to Reilly,
as he riffled through some papers, "These look like a lot of
errors .... If I was your foreman I would fire you .... "
to which Reilly pointed out that the documentation was
either incorrect or unfair and remonstrated to DelGrosso,
"You are supposed to be on my side." When DelGrosso
thereupon asked Lavagnino to take Reilly back, Lavagni-
no's response was, "Absolutely not." After this meeting,
when Reilly indicated to DelGrosso that he wished to
pursue the matter further, DelGrosso said, "That involves
cost, money, also it involves the approval of the Executive
Board of the Local." Although DelGrosso indicated he
would "start the ball rolling," he added-apparently
significantly, in Reilly's estimation-that "I [DelGrosso]
understand what you [Reilly] are trying to do" and that he
(DelGrosso), too, had at one time "bucked" union
leadership, but that what Reilly-unlike DelGrosso-failed
to understand was that this Union was "different" and not
like "the printers union or the teachers" and that here "you
wouldn't find a guy or many guys with 7th or 8th grade
education. Most of the guys were satisfied with their jobs
. . . and with the way things were."22 Thereupon, Reilly
promptly (on the same day, February 10) visited the
Board's Newark (New Jersey) Regional Office and filed the
charges resulting in the consolidated complaint here
against the Union as well as the Employer.
On February 26, Reilly made a formal written request
upon Respondent Union (i.e., Frank Baffa) to further
process his discharge grievance through arbitration under
the terms of the subsisting collective agreement (G.C. Exh.
4).23 This drew from the Union (i.e., Frank Baffa) a March
8 written refusal to do so-not upon any ground related to
did not want to go to arbitration, he (DelGrosso) nevertheless informed
union head Frank Baffa that Reilly did not wish to go to arbitration. Upon
comparative testimonial demeanor observations, I clearly prefer and credit
Reilly's testimony that he told DelGrosso that he desired to go ahead with
arbitration, and the remainder of Reilly's testimony (including DelGrosso's
response) as recounted above. In this connection, it is noted that although at
another point in his testimony DelGrosso-an unprepossessing witness who
contradicted himself in various respects under oath and whom I simply
cannot credit-also testified that Reilly indicated to him (and DelGrosso so
reported to his superior, union chieftain Frank Baffa) that Reilly did not
want to go to arbitration (testimony which I totally discredit), in his pretrial
affidavit DelGrosso had sworn that when he asked Reilly, after the
February 10 grievance meeting. whether Reilly wished to proceed to
arbitration, Reilly's response was "Yes. I'm going to sue for all of my back
wages." (Emphasis supplied.) Further, although according to the testimony
of Al Baffa, DelGrosso never indicated to Respondent Employer that
arbitration might be in the wind, Al Baffa conceded that in his pretrial
affidavit he had sworn that DelGrosso had stated to him, "I assume we will
have to go to arbitration." At the hearing Al Baffa claimed he forgot he had
said this in his affidavit.
23 According to Reilly, the occasion for his drafting and transmitting of
this letter was a call he received from Labor Board Agent Thomas informing
him that the Union did not know whether Reilly wished to take the matter
to arbitration, and that if he did the Board would defer to such arbitration.
Reilly's copy of his February 26 letter (Resp. Union Exh. I) so indicates.
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the merits of the discharge, but on the sole ground (G.C. Exh.
5) that:
I am in receipt of your letter of February 26, 1976 in
which you wrote requesting the "Executive Board of
Local 976 I.L.A.,"2 4 to take your discharge to Arbitra-
tion.
I regret to inform you that under the circumstances,
as they now stand, this is not proper. After your
hearing, in which the company refused to reinstate you,
you could have at that time requested Arbitration, 25 as
the Union contract specifies clearly (and which you
have a copy of). You however chose to file an unfair
labor charge with the National Labor Relations Board.
Therefore, since you chose the National Labor
Relations Board, instead of furthering your rights
under the provisions of the Union contract, I suggest
that you stay with the National Labor Relations Board
with the charges that you made to them and await their
final conclusion of this case.
/s/ Frank Baffa
Secretary-Treasurer
Thus, after a period of over 4 years of continuously
satisfactory employment, shortly after he interested himself
in and began asking questions about the administration of
"benefits" achieved under an exclusive union closely allied
to his employer by family ties, Reilly found himself
precipitately discharged upon the alleged basis of a few
"errors" seemingly of a trivial as well as a previously
tolerated nature (on his part as well as on the part of
others), involving a few packages out of thousands
processed by him daily; and with his "Union" refusing to
test the propriety of his discharge through the procedures
available under the collective agreement, for the reason
that he had seen fit to exercise his right of placing the entire
matter before the National Labor Relations Board.
C. Respondent Employer's Defense; Resolution and
Rationale
Respondent Employer's defense concerning its discharge
of Reilly revolves around its contention that his handling
of the NORMA account was unacceptably inefficient,
engendering substantial business disruptions and losses to
it. Since this contention was sought to be advanced through
a number of witnesses, in order to determine the weight of
the contention it is necessary to evaluate the testimony of
24 The enclosure of the indicated words in quotation marks by the author
of the letter, Frank Baffa, is noted. It is conceded that the union constitution
requires that the question of whether grievances shall be submitted to
arbitration must be determined by the executive board. According to Frank
Baffa's testimony, "we considered it. We acted on it ... DelGrosso and
myself."
25 Reilly's credited testimony, as recounted above, establishes that he did
in fact so request. I do not credit DelGrosso's contrary testimony.
26 The quoted words are characteristic of consistent and repeated
vagueness punctuating Costello's testimony.
27 I find this difficult to credit, considering the close family ties of his
second in command, Al Baffa, with his brother Frank Baffa, the first in
command of the Union, and the rancorous, daggers'-end relationship which
developed in January between Frank Baffa and Reilly at union meetings
concededly attended by Respondent Employer's foremen, which were
concededly learned by Respondent Employer (Bartolomucci).
those witnesses, as well as related countertestimony
presented by General Counsel.
Respondent Employer (i.e., Penn) Executive Vice Presi-
dent Costello testified that during the first half of 1975 he
noticed an "unusual" amount of NORMA outturn reports
and complaints concerning shortages, overages, misloads,
mismarked cartons, and billings by vendors for unreceived
merchandise. Since, however, as will be recalled, Reilly did
not begin to work on that account until in or about October
1975, that situation-whatever it may have been-is in no way
ascribable to Reilly. Nevertheless, according to Costello,
"complaints" continued "later" in 1975, resulting in his
suggesting certain operational "changes" to Al Baffa,
possibly Superintendent of Operations Lavagnino, Green-
ville Terminal Manager Bartolomucci, and "probably" also
in a discussion of the "problems" with NORMA Foreman
Olvesen. 26 Costello concedes he was familiarized by Al
Baffa and Bartolomucci in January 1976 with the name
and identity of Reilly, but he insists this was only as the
checker for the "majority" of the NORMA freight, and he
denies that he was told or in any way aware of any union
activity on Reilly's part, at meetings or otherwise.2 7
Although, according to Costello, approximately 10 of
Penn's accounts are serviced at the Greenville Terminal,
the "claim incidence" relating to the NORMA account was
in his estimation "substantially greater" than for other
accounts, even during the period when Reilly was among
those involved in the processing of merchandise of that
account. Since, however, no comparative quantities of
merchandise involved, or carton or package quantities, or
other basic facts have been established by documentary or
other factual proof presumably available to Respondent
Employer, the validity of these vague and conclusionary,
generalized allegations is impossible to assess, leaving them
open to serious question, not warranting their acceptance
and accreditation as that substantial credible proof
required.2 8 Also, among many other factors, there is no
proof that the "claims"--whatever their extent or nature-
had any validity, or that they were not the result of
miscarriages or pilferages en route, or that they were in fact
the fault of Reilly at all or-if at all-in greater proportion
than the fault of anybody else. Indeed, Costello freely
concedes that the "claims" could have involved pilferage or
other losses following the departure of the trucks from the
Greenville Terminal, including pilferage at the receiving
point. And Costello relates the "claims" to Reilly only
because they arose in part while Reilly was at the
Greenville Terminal, while at the same time conceding that
2I We have been instructed to accord weight to a party's failure to
produce records within its control and therefore facts peculiarly within its
knowledge. U.S. v. Denver& R.G.R.R., 191 U.S. 84, 91-92 (1902); N.LR.B.
v. Wallick, 198 F.2d 477, 483 (C.A. 5, 1952). Here, especially, although I
even expressly invited Respondent Employer to produce such documenta-
tion and its executive vice president indicated he could, no such material
was forthcoming. I rejected a proffered exhibit (Resp. Employer Exh. 10-
Ident.) containing a purported listing of numbers of claims per month,
September 1975 - January 1976, for various accounts, since, among other
things, Costello denied knowledge as to the meaning of the numbers. No
other foundation was sought to be established for this crude, conclusory
aggregate of unanalyzed "numbers," which would in any event be
meaningless unless tied to quantities of merchandise consigned and the
circumstances of the claims including whether meritorious or not and
whether or not tied to fault on Reilly's part.
936
PENN INDUSTRIES, INC.
others including Olvesen and Boyle also checked, routed,
and handled NORMA shipments from the Greenville
Terminal and that, for example, in Costello's words, "I
[Costello] don't know that we do know that it wasn't
[Boyle's] fault." 29
Costello describes three types of errors which a checker
may theoretically make: (1) signing for merchandise not
actually received; (2) signing for a carton more valuable
than actually received; (3) misloading or misdirecting a
carton to the wrong destination. Most serious of these,
according to Costello, is the first, since it allegedly cannot
be corrected. There is no indication here that Reilly was at
any time responsible for or charged with such or other
uncorrectable or uncorrected error.30
In short, Costello's testimony does not establish or
constitute persuasive proof or demonstration as to the
comparative extent of claims involving NORMA vis-a-vis
other accounts, nor in terms of their proportionate
relationship to total freight handled for those accounts, nor
of their basis, nor that they or some of them were due to
Reilly's fault, nor that, if they were, how they were or that
they were disproportionately due to errors on Reilly's part.
Costello's testimony thus does not make out Respondent
Employer's defense.
Respondent Employer Vice President of Operations Al
Baffa testified that he had nothing to do with Reilly's
discharge, and that he learned of it the next day from
Bartolomucci, who told him he had discharged Reilly for
issuing a receipt for freight not received.31
Also according to Al Baffa, when he was informed by
Costello at the beginning of 1975 of a "problem" with the
NORMA account, involving "a lot of claims and bad
OS&D reports, he (Baffa) directed Bartolomucci to correct
it. Thereafter a "blind tally" was carried out and trailers
were spot checked and "stripped" at random; and two men
were assigned to the account instead of one-Lubinsky
(Luninsky) was there alone in early 1975 (when the
"problem" with "claims" was allegedly intense), then Boyle
replaced Lubinsky, and Reilly was added to Boyle.
According to Baffa's testimony, he received these "bad
reports" concerning NORMA shipments from Costello
since the beginning of 1975, long before Reilly was
assigned there, and although Reilly was discharged both
Lubinsky and Boyle are still in his Company's employ.
Al Baffa described Respondent Employer's negotiations,
from November 1975 to January 1976, with Respondent
Union eventuating in the 3-year collective agreement
presented to the union membership at the aforementioned
stormy session of January 10, at which Reilly had his
29 I reject, as another vague, conclusory, and unestablished generality,
Costello's uncorroborated and implausible estimation that there is "no
longer . . . a problem with NORMA" since Reilly's discharge since "the
proportion of problems in claims is drastically reduced."
30 Costello describes the claims procedure for lost or damaged goods as
follows: The consignee or its agent (e.g., Calongne Company of New
Orleans, for NORMA) submits an "OS&D" (i.e.. over, short, and damaged)
or "outturn" report to USP&S for use in case of a subsequent claim; but in
most cases, according to Costello, the consignee also submits a blank claim
form even if the shipment is in order-perhaps because of the relatively
short time limitation for making claims under the standard bill of lading and
related legal requirements. USP&S thereafter takes appropriate action
(presumably including attempts to determine who is at fault, and to locate
misrouted merchandise), including notifying the consignor and also Penn.
explosive confrontation with Baffa's brother, Frank Baffa,
shortly after which Reilly was discharged (January 26). In
these collective negotiations, according to Al Baffa, he was
present on behalf of Respondent Employer, as was his
brother Frank Baffa as principal spokesman on behalf of
Respondent Union, but Costello served as principal
spokesman for the Employer. I cannot credit the reiterated
testimony of Al Baffa that his brother Frank never told
him "anything" that went on at union meetings, other than
the outcome of the vote on the contract; nor can I credit
his testimony that neither his brother Frank nor anybody
else ever mentioned to him anything about Reilly's
activities or role in the Union or at any of its meetings or
that he was having difficulty with Reilly.
It is apparent from the testimony of Al Baffa that, taking
it at face value, he played no role in Reilly's discharge and
claims no first-hand knowledge concerning it. We proceed,
therefore, to the testimony of the third of Respondent
Employer's witnesses on this subject-its Greenville termi-
nal manager, Gregory Bartolomucci.
Bartolomucci testified that he has been in Respondent
Penn's employ for 11 years, since February 1975 in charge
of both buildings (i.e., 120 and 136) comprising that
terminal, under Superintendent of Operations Lavagnino
and Vice President of Operations Al Baffa, with Foremen
Rocco (Building 120) and Olvesen (Building 136) under
him. Although he swore on direct examination that he has
never been a member of Respondent Union, on cross-
examination he conceded he was a member of that Union
from 1965 to 1974 or 1975-a recent period of 10 years,
hardly regardable as a lapse of memory.
Bartolomucci also speaks of "problems" of overages and
shortages with the complicated NORMA account from
early 1975 (when or shortly after Bartolomucci came on as
Greenville terminal manager), 32 resulting in his assigning
Reilly there in addition to Boyle, under Foreman Olvesen
in Building 136. According to Bartolomucci, the "OS&D"
reports disclosed overages, shortages, damaged merchan-
dise, and recoopered cartons (i.e., cartons which had
opened or been opened, and retaped-Bartolomucci
acknowledging that it was pure assumption on his part that
this existed or took place before rather than after the
checker's checking). Also according to Bartolomucci, he
had replaced Lubinsky, the original checker in NORMA
Building 136, with DeFranco, and DeFranco with Boyle.
Although this would have had to have been done by
Bartolomucci subsequent to February (1975), when he took
over there, and before October (1975), when Reilly was
assigned there, Bartolomucci conceded on cross-examination
S1 It hardly seems probable that Costello would not have kept his second
in command, Al Baffa, apprised of his alleged misgivings regarding Reilly's
efficiency-if, indeed, Costello was really aware of lowly employee Reilly, as
he now claims he was, out of hundreds of employees. It also seems
improbable that, if Costello were aware, it was not through Al Baffa or at
least with knowledge on the latter's part. (On cross-examination, Baffa
acknowledged that he had, indeed, mentioned Reilly to Costello as an
employee servicing the NORMA account. Why he should have singled
Reilly out is unexplained.) Neither Costello nor Baffa testified that he gave
instructions to have Reilly discharged.
32 Contrary to his repeated testimony to this effect at the hearing, in his
pretrial affidavit Bartolomucci swore that he began noticing errors in the
NORMA shipments between November 1975 and January 1976.
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he at no time disciplined (or, of course, discharged, as in
the case of Reilly) Lubinsky, DeFranco, or Boyle for any of
the numerous and repeated errors he discovered on the
NORMA shipments being handled by them.
Concerning his discharge of Reilly on Monday, January
26, after over 4 years of steady employment, without
previous intimation or notice, Bartolomucci testified that,
after he directed Olvesen to "strip" a trailer that day,33 the
unloaded trailer allegedly disclosed five or six errors
involving incorrect "PRO" numbers; 3 4 and two shipping
orders for the same two Lady Carol cartons.3 5 According
to Bartolomucci, the trailer in question had been loaded on
the previous Friday (January 23), when Reilly-as well as
Olvesen, Boyle, and perhaps others-had been working;
but since the shipping orders in question bore Reilly's
initials, he told Reilly he was discharged and that he could
get details from Olvesen. Although Bartolomucci vaguely
recounted an episode involving a discharge (not by him)
for errors in sealing a freight car-hardly comparable to
the situation involving Reilly-he himself referred to this
as "ancient history . . way back"; and was able to
recall36 only one other checker (Charlie Wills) discharged
by him (allegedly in the spring of 1976, following Reilly's
discharge), for misrouting freight as well as receipting for
wrong amounts of freight. He was unable to name a single
other checker discharged by him in all of 1975,37 despite
the claimed great problems with the NORMA shipments
that year.38 Bartolomucci concedes that in 1975 when an
error by Boyle, involving a misload of 300 cartons-which
apparently traveled 2,000 miles off destination-was
discovered, he merely "reprimand[ed " Boyle, with
"doubt" that he even "considered" discharging him.39
Bartolomucci acknowledges that he never gave Reilly any
warning or intimation that he faced discharge or discipline,
and "doubt[s ]" that anyone else did. Finally, on cross-
33 Bartolomucci indicated that a NORMA trailer had also been
"stripped" on the previous Friday, November 23. Assumedly no shortcom-
ing was found, since he speaks of none.
34 Since these were not established factually, I discredit this testimony of
Bartolomucci, a flippant and plainly partisan witness, who did not hesitate
to alter his testimony under oath. Again, without explanation, no records
were produced. See fn. 28, supra. Nor was Reilly credibly linked to any
disproportionate or undue quantity or severity of such alleged errors.
35 This refers to the Lady Carol shipment described in detail, supra, a
seemingly trivial error promptly caught and reported by Reilly himself, and
one which could readily have been corrected in various ways, including
prompt notification to the shipper and the consignee. Bartolomucci
concedes the error was discovered before the trailer left. Furthermore, there
is no contention that even one claim resulted from this error which was thus
discovered and reported by Reilly himself. Moreover, Bartolomucci's order
to "strip" the trailer on January 26 to search for two extra Lady Carol
cartons which did not exist was not only unnecessary but also seemingly
without logical justification.
36 With his characteristic testimonial brashness and flippancy, Bartolo-
mucci claimed that although he "knows" of others, he "cannot think" of
their names. Considering the fact that he had ample time to do so, before as
well as at the hearing, and, once again, the availability of records neither
produced nor consulted, I attach no weight to this testimony.
3a On redirect examination, however, Bartolomucci dredged up the name
of Gleason as a checker he discharged in 1975 for "making mistakes" of an
unspecified nature. Recross-examination elicited that there were two
Gleasons, each in the Company's employ for a comparatively short time,
one as a checker and the other as a loader, both discharged-one because
"he didn't care about the work he was doing .... he would take a lot of
time off and he would just get in a trailer and sit down behind there and
make a little seat and smoke a cigarette or something and just sit there," as
well as misloading and misrouting, and, with all that, only after an express
examination Bartolomucci explicitly conceded that his
'primary reason" for discharging Reilly was the described
Lady Carol incident-as he indeed expressly told Reilly, and
that although there had been comparable errors by other
checkers, none of them had been discharged or disciplined
therefor during the entire year of 1975.
Respondent's final witness was its Building
136/NORMA account foreman, Olvesen, who has been in
its employ as foreman at various locations for over 4 years
and who is also a member of Respondent Union, whose
meetings he attended. He has been foreman for the entire
Building 136, which handles 10 or 11 accounts including
NORMA, and he has also cosupervised Building 120 with
Foreman Charles Rocco, since February 1975. He recount-
ed that in March or April NORMA account checker
Lubinsky was replaced by John Boyle, that around early
October Reilly was added to assist Boyle, and that in
January 1976 Reilly and Boyle were 2 of 5 checkers and
routers out of 9 or 10 employees under Olvesen.
On Friday, January 23, 1976, on instructions of Terminal
Manager Bartolomucci, a trailer which had been loaded in
Building 136 was "stripped" in order "to see how the check
was going on in the building itself." According to Olvesen's
testimony on direct examination by Respondent Employ-
er's counsel, no discrepancy wasfound. 40 Later that day (or
on Monday, January 26)-still according to Olvesen-
while another trailer was being loaded by loader Ben
Williams, with Reilly as checker but Olvesen unable to
"recall" whether he himself (Olvesen) assisted in checking
or loading, a "discrepancy" was discovered involving two
shipping orders on a single consignment of two Lady Carol
dresses. Although Olvesen claims it was he who discovered
the discrepancy, I have already credited Reilly's contrary
warning by Bartolomucci that the next time he would be discharged; the
other Gleason not only for misleading as well as receipting for wrong
amounts of cartons, but also because he "screwed it all up," and in his case
also only after an express prior warning from Bartolomucci.
38 According to Bartolomucci, the 25 employees (including 12 or 13
checkers) under him in January 1976 rose to around 36 by September of that
year.
39 I place no weight upon Bartolomucci's vague, unexplicated, and
unsupported testimony that he "talked" to Reilly at various times about
supposed mistakes in the latter part of 1975 when Reilly started working on
the NORMA account.
40 Notwithstanding this explicit testimony on his direct examination by
his own Employer's counsel, on cross-examination by counsel for General
Counsel of the Board, Olvesen-in what impressed me as a smart-alecky
ploy demonstrating his unconcealed partiality and attempt to do his
Employer the most possible good regardless of the truth-swore that
damaged cartons and wrong PRO numbers were discovered, even though
there were no "shortages." I discredit this testimony, not only because of his
seemingly discrepant testimony on direct examination, but also because of
his admissions to Reilly to the contrary as described in Reilly's credited
testimony (supra), and because loaders other than Reilly handled cartons
after they left Reilly's hands, and finally because it is most unlikely that
Bartolomucci would not have emphasized this in his testimony if in fact it
had been so. It should be added that Olvesen further testified, on cross-
examination, that although he discovered wrong PRO numbers on freight in
the first "stripped" trailer on January 23, he permitted the shipment to go
forward without making any corrections or notifying his office-either a
most unlikely canard or an action which would seem to reflect adversely on
his own job performance or on the efficiency level of his Employer's
practices, either casting no credit on his testimonial quality or on the merit
of his Employer's basic contention concerning Reilly here.
938
PENN INDUSTRIES, INC.
testimony that it was Reilly who caught and promptly
reported it.4 ' Olvesen personally that same afternoon
(Friday) informed the truckman (Dynamic Trucking), who
had brought in the Lady Carol shipment, of the error. On
the following Monday, January 26, the trailer was
"stripped," confirming the fact-if, indeed, there had ever
been any question-that it contained only one shipment of
two cartons of Lady Carol dresses. It would indeed appear
to have been crystal clear that only one shipment of two
cartons of Lady Carol dresses was received or involved,
and that at no time has any contrary contention or claim
been made, since (I) the error was promptly discovered
and reported by Reilly; (2) the delivering truckman was
promptly informed of the error by Olvesen, and there is no
credible proof that the truckman or consignor at any time
in any way disputed this information; (3) Olvesen conced-
ed that at no time did he-and there is no evidence that
anybody else on Respondent Employer's behalf did-see
fit to so much as inquire from the consignor whether it had
in fact made two shipments of two cartons each, or other
than one shipment of two cartons; and (4) there is no
indication that the consignor, consignee, or anybody else
has ever made any claim in regard to the foregoing. Under
these circumstances, since it was utterly clear that only one
shipment of two Lady Carol cartons was involved and
nobody was claiming otherwise, it is difficult to understand
why Bartolomucci ordered the trailer "stripped" on
January 26 to look for two more cartons which did not
exist-unless he was looking for an excuse or device to
blow up out of all "importance" the technical error which
Reilly himself had caught and reported, in order to use it as
an excuse and pretext for firing Reilly.
Olvesen explained that Reilly was the checker for two
accounts in addition to NORMA, and that in January 1976
Reilly processed perhaps thousands of cartons each day.
Olvesen concedes that at no time prior to Reilly's discharge
had he ever censured, reprimanded, or even criticized
Reilly's work performance. 4 2
Finally, there is in evidence a summary of the NORMA
account OS&D reports from July 1975 through January
1976, as well as various stipulations relating thereto (G.C.
Exhs. 8, 8A, 9, 10, and II). No lengthy analysis of these
voluminous documents is necessary since, for reasons
already explicated in connection with Costello's testimony
(supra), they are wide of the precise mark here, and are
41 Olvesen conceded that it was indeed Reilly who pointed out (allegedly
after Olvesen had discovered the two-carton shortage) that two shipping
orders had been issued-i.e., for two instead of one two-carton Lady Carol
shipment.
42 Olvesen, however, on occasion showed Reilly OS&D reports received,
a practice he followed with regard to all checkers and routers. (It will be
recalled, as explained above, that OS&D reports do not necessarily establish
fault on the part of the checker or router since, among other things, they as
well as consignor/consignee claims may be put forward for such things as
pilferages en route or at destination pror to unqualified contents-quantity-
and-condition-count receipt without recourse.)
43 Thus, as already indicated, OS&D claims-even when they are not
themselves spurious, wrongful, exaggerated. erroneous, or subject to valid
legal defenses-involve all manner of things (pilferages or damage en route,
etc.) in no way ascribable to Respondent Employer's checkers in general or
to Reilly in particular. Additionally, many of these OS&D reports involve
NORMA shipments completed long before Reilly started that work; and
there is no indication that any pre-Reilly checkers purportedly responsible
rather in the category of arrows shot into the air to fall one
knows not where.4 3
Reilly's position vis-a-vis the foregoing has already been
essentially detailed. Among other things already men-
tioned, Reilly testified that his work as checker for
Respondent Employer required him to process thousands
of cartons a day and as many as 10,000 per week. In this
testimony he is supported by his foreman, Olvesen. As has
also been mentioned, Reilly further testified that on
January 23, when the incident involving the duplicate
shipping order on the two Lady Carol cartons occurred-
which Terminal Manager Bartolomucci testified was the
real reason for Reilly's discharge-Reilly was also doubling
in brass for route clerk John Boyle, who was away on jury
duty, so that Reilly was doing not only his own job of
checking thousands of cartons daily but also Boyle's job of
routing thousands of cartons. In his testimony, too, Reilly
is supported by Boyle as well as by Foreman Olvesen.
Reilly admits as, indeed, is overwhelmingly established
by the OS&D reports in evidence (G.C. Exhs. 8-l 1) that in
'the complex process of unloading, checking, routing,
paperwork issuance (bills of lading, shipping orders, PRO
numbering,44 manifests, etc.), freight consolidation reload-
ing, etc., of thousands of cartons daily, errors occurred (as
well as nondeliveries, short deliveries, and damage of all
sorts, and also theft and pilferage in transit after merchan-
dise left the terminal). Reilly candidly admits that these
errors occurred on his part as well as on the part of others
(as they necessarily would, since merchandise was loaded
and otherwise passed through other hands after leaving
Reilly's), and that in previous years they had merely been
brought to the attention of those who were or might have
been responsible; but he insists his own errors were "very
few" and infrequent. It is certainly true that neither has the
contrary been established, nor any comparative error level
been shown for Reilly vis-a-vis other checkers, nor that
Respondent Employer at any time even criticized, much
less warned or disciplined, Reilly for the caliber of his
performance (although, as Bartolomucci himself testified,
he warned others). Reilly uncontradictedly testified about
a misconsignment of 300-400 cartons of NORMA mer-
chandise in the late fall or early winter of 1975-76, by
another employee, which traveled 2,000 miles from where it
should have gone, with no disciplinary action taken.
Respondent's route clerk John Boyle, an impressively
plain-spoken and credible witness, strongly corroborated
for any alleged errors therein have been discharged or disciplined.
Moreover, the quantity, scope, and regularity of these reports serve to
indicate the apparent day-to-day, routine character of such errors or
exceptions, the volume of which in relation to the huge volume of cartons
processed would seem to stamp them as unremarkable if not "par for the
course" in this kind of business. Cf. M.C.C. of Floridae Inc., 224 NLRB 1519,
1527 (1976) (re Dennis Fields).
" Thus, even on so seenmingly a routine mechanical task as PRO-
numbering by number-stamp machine, as explained by Reilly and
corroborated by route clerk Boyle, if the numbering machine is set on
duplicate numbering (i.e.. the same number for the bill of lading and for its
mate shipping order), if an extra copy or document is attached or in the pile,
the consecutive numbering may easily be thrown off unless immediately
caught and the numbering machine readjusted. With thousands of cartons
being numbered and otherwise processed daily, occasional errors would
thus seem to be unavoidable-and all agree that they occurred, without their
authors (even when identified) being criticized or disciplined, much less
discharged. Cf. M. C.C of Florida, Inc., supra.
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reilly in these respects. Boyle, who has been in Respon-
dent Employer's employ as a checker and router since
1968, began working on the NORMA account around
February 1975 as a checker-router. Boyle freely concedes
that he has made mistakes in processing the huge quantities
("over a thousand") of cartons passing through his hands
each day, including mismarking cartons and incorrect PRO
numbering, different PRO numbers on cartons from those
on the shipping order, two shipping orders covering the
same shipment (with two different PRO numbers assigned
to the same shipment), and cartons loaded into the wrong
trailer. When these errors were discovered by him, they
were corrected by him. When they were discovered by
others and ascribed to him, they would be called to his
attention by persons including Olvesen and Bartolomucci,
but he was never in any way disciplined for any of them.
Boyle even speaks of incoming deliver drivers filling out
bills of lading when none was found to cover a package;
the errors and discrepancies, to say nothing of possible
shortages, which could result from this practice-said to
have occurred several times a week-are readily imagina-
ble. According to Boyle, trailers were "stripped" on various
occasions, including by him, in order, for example, to
locate a misrouted carton; so that the "stripping" of a
trailer is not unique, but rather a standard episode in this
business as the occasion-hopefully "infrequently"-aris-
es. 45 Boyle testified that Terminal Manager Bartolomucci
as well as Foreman Olvesen had told him as early as
February 1975-long before Reilly was assigned to Building
136 and the NORMA Account-that they were having
"problems" with the NORMA shipments, including mis-
marked cartons and wrong PRO numbers. Boyle testified
that he himself has acceptedfewer cartons than calledfor on a
shipping order, for the NORMA account-as many as five per
week; that drivers have sometimes given him the same bill of
lading for two different consignors or consignees; and that he
has experienced "double billings," where he has issued two
different PRO numbers where only one should have been
issued-and that he has never in any way been disciplined for
any of these "errors" or resulting discrepancies.
In sum, the overall combined testimony of Respondent's
witnesses simply does not overcome or match in weight
and quality that of Reilly and Boyle within the frame of
reference of the total circumstances and the record as a
whole. Within that total context, I am indeed persuaded
that Reilly was discharged from his long held employment
because of his suddenly awakened interest and demon-
strated activism in endeavoring to discover the true nature
of the Union and its seemingly close and cozy relationships
with the Employer, the way the Union was being run and
its officials paid, and the kind of seemingly inadequate
collective agreement once again being concluded; and I am
utterly unpersuaded that, as Respondent Employer con-
tends, he was discharged because of the error (promptly
discovered, reported, and corrected) with the PRO num-
bers on the January 23 Lady Carol shipment or other
shortcoming in relation to his work. Based upon the record
4' As further explained by Boyle, "blind tallies" are made on outgoing
shipments. These are done on a paper pad, kept on or near the trailer door
and filled in by the checker, router, or loader as the trailer is being loaded.
The loaders or checkers also make a "loader's count." If these counts do not
correspond to the total of packages on the bills of lading, an error is
as a whole, I accordingly so find. In so doing, I have given
weight to the following, among other, factors and circum-
stances: my assessment of the testimonial demeanor of
Reilly and Boyle, preferring it to that of Respondent's
witnesses as shown; the wide-of-the mark and inconclusive
nature of Respondent Employer's "showing" of alleged
"errors" or "discrepancies" in NORMA shipments, not
shown to be ascribable to Reilly or in any event not
established to be such as to have been the real reason for
his discharge; and my being persuaded that the real reason
for Reilly's discharge was that he had suddenly become an
abrasive factor toward the union leadership and a wrinkle
in its previously smooth and comfortable relationship with
the Employer, when he began-shortly before his precipi-
tate discharge-to exercise his rights under the Act. I am
persuaded that this was the real and compelling reason for
his discharge, and not any work shortcoming as now
claimed. Reilly had been a long-term (over 4 years), steady,
and satisfactory employee. Other employees concededly
made comparable, if not worse and more extensive, errors
and were not discharged or even disciplined. Unlike Reilly,
other employees who were discharged, in their case for
prolonged and egregiously unacceptable work perfor-
mance, were warned ahead of time that such a conse-
quence would ensue if they did not improve. Considering
the huge number of cartons processed by Reilly daily-
concededly perhaps thousands, and as many as 10,000
weekly--plus his double job as router as well as checker on
January 23 during Boyle's absence on jury duty, the
"error" or discrepancy here (or any previous alleged work
shortcoming dredged up after his discharge) seems de
minimis, if not unavoidable. Such errors, on the part of
others as well as Reilly, were part of the usual, accepted
routine of such volume work and were invariably con-
doned and excused if not ignored. Cf. M.C.C. of Florida,
Inc., supra. The alleged "error" itself (Lady Carol) resulting
in Reilly's discharge was of a technical nature, in no way
unusual, was promptly discovered and reported by Reilly
himself, was promptly corrected, and has not been shown
to have resulted in any damage or claim-nor would any
claim have been justified or meritorious even if filed. It
was, however, although speedily caught and reported by
Reilly himself and promptly rectified without damage or
loss to anybody, nevertheless seized upon and exploited by
Respondent Employer as a convenient pretext to rid itself
of a good employee who had just begun to demonstrate
that he was prepared to lead his fellow employees to gain
more for them than the Union wanted to, and that he was
prepared to stand up against a union leadership with which
Respondent Employer had enjoyed a longstanding amiable
relationship, in at least Reilly's view, at the expense of the
employees.
Respondent Employer's desire to rid itself of such an
employee was, I believe and find, its true reason for
discharging him, and the Lady Carol incident (later, after
his discharge, sought to be supplemented as will be shown)
was a mere pretext to mask that true reason. When
indicated-a short or overage of the packages, or an error in a bill or bills of
lading; if the former, the trailer may have to be "stripped" in whole or part.
Boyle could recall various such instances, not only on the NORMA but
other accounts and at other locations as well as the Greenville Terminal.
940
PENN INDUSTRIES, INC.
subjected to the bright light of day, Respondent Employ-
er's defense simply does "not stand under scrutiny."
N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9, 1953) and
cases cited. It has repeatedly been pointed out that, in
assessing an employer's true reason for its discharge of an
employee engaged in protected concerted activity, impor-
tant clues include the leadership or prominence in that
activity of the employee (N.LR.B. v. Sequoyah Mills, Inc.,
409 F.2d 606 (C.A. 10, 1969); N.L.R.B. v. Council
Manufacturing Corporation, 334 F.2d 161, 164 (C.A. 8,
1964)); the previously satisfactory work performance of the
employee (N.LR.B. v. Elias Bros. Big Boy, Inc., 325 F.2d
360, 366 (C.A. 6, 1963)); the nondischarge of others in the
same work category (N.LR.B. v. Nabors, 196 F.2d 272,
272-276 (C.A. 5, 1952), cert. denied 344 U.S. 865 (1952));
the employer's continued need for that category of
employee (N.L.R.B. v. Local 776, International Alliance of
Theatrical and Stage Employees (Film Editors), 303 F.2d
513, 519 (C.A. 9, 1962), cert. denied 371 U.S. 826 (1962));
the timing of the discharge (N.L.R.B. v. Sequoyah Mills,
Inc., supra; Tele-Trip Company, Inc. v. N.L.R.B., 340 F.2d
575, 579-580 (C.A. 4, 1965); N.L.R.B. v. Montgomery Ward
& Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied
355 U.S. 829 (1957)); the precipitate nature of the
employer's discharge of the employee vis-a-vis the employ-
er's learning of the employee's organizational activities
(Tele-Trip Company v. N.LR.B., supra, N.L.R.B. v. Council
Manufacturing Corp., supra); the replacement of the
discharged employee (N.L.R.B. v. Superior Sales, Inc., 366
F.2d 229, 235 (C.A. 8, 1966); N.L.R.B. v. Davidson Rubber
Co., 305 F.2d 166, 168-169 (C.A. 1, 1962); N.L.R.B. v.
Local 776, IATSE (Film Editors), supra; N.L.R.B. v.
Montgomery Ward & Co, supra); and the employer's
implausible explanations for its actions (N. LR.B. v. Harry
F. Berggren & Sons, Inc., 406 F.2d 239, 245-246 (C.A. 8,
1969), cert. denied 396 U.S. 823 (1969)). An employee who
is "dissident and annoying" or a burr in his employer's side
because of his union activism (including opposition to a
proposed collective agreement, cf. Aerodex, Inc., 149
NLRB 192, 198 (1964); Nu-Car Carriers, Inc., 88 NLRB 75,
76 (1950), enfd. 189 F.2d 756 (C.A. 3, 1951), cert. denied
342 U.S. 919 (1952))46 is not thereby vulnerable to
discharge in exemption from the Act's protection. Duo-Bed
Corporation v. N.LR.B., 337 F.2d 850, 851 (C.A. 10, 1964),
'6 As stated in Nu-Car Carriers, Inc., 88 NLRB 75 at 76-77 (1950):
The discharge of a dissident within a union when that termination is
motivated by a desire to eliminate protest must inevitably result in an
infringement under Section 8(a)(X) and 8(aX3) of that employee's right
to self-organization.
47 Had the Union's refusal to proceed to arbitration been related to any
ipse dixit determination on its part that arbitration was unwarranted on the
merits (cf. Vaca v. Sipes, 386 U.S. 171. 190, 191-195 (1967); Humphrey v.
Moore, 375 U.S. 335, 349-350 (1964): Ford Motor Company v. Huffman, 345
U.S. 330, 337-339 (1953))-not the case here, it is emphasized-in the
situation here presented I would find and hold upon the record as a whole
that such determination by the Union would have been unreasonable.
unwarranted, arbitrary, discriminatory, and in bad faith, both because of
the total circumstances and because of the Union's own conflict-of-interest
involvement against Reilly in the situation underlying his discharge. Even
within the standards of Vaca v. Sipes, supra, unions must adhere to "rational
decisionmaking processes." Clark, The Duty of Fair Representation. 51 Tex.
L. Rev. 1119. 1131 (1973). It has recently been held that bad faith is not an
essential element in a claim of unfair representation, negligent processing of
a grievance being a sufficient basis for such a claim. Ruzicka v. General
cert. denied 380 U.S. 912 (1965). When an employee's
"work apparently became intolerable only after he [became
active in] the union," that circumstance is entitled to
weight in assessing the true reason for his discharge.
N.L.R.B. v. Elias Bros. Big Boy, Inc., supra at 366. And
where, under the circumstances and timing involved here
with Reilly's unprecedented intrusion into the sensitive
area of the apparently close ties and relationships between
the Employer and the Union, and Reilly's novel attempt to
obtain wage scales and other economic betterments for the
employees far in excess of any previously received as well
as far in excess of what the union hierarchy was asking in
its collective agreement, "the discharge in question involves
the 'key' employee .... supplyling] shape and substance
to otherwise equivocal circumstances." N.LR.B. v. David-
son Rubber Co., supra, see also N.LR.B. v. Nabors, supra.
As we have been instructed by the Supreme Court, where a
union activist is discharged for conduct engaged in by
many others with impunity, "the Board need not listen too
long to the plea that shop discipline was simply being
enforced." American Ship Building Co. v. N.L.R.B., 380
U.S. 300, 312 (1965). See also N.LR.B. v. Great Dane
Trailers, Inc., 388 U.S. 26, 33-34 (1967).
D. Respondent Union's Defense; Resolution and
Rationale
As will be recalled, Respondent Union refused to process
Reilly's discharge grievance to arbitration in accordance
with the collective agreement with Respondent Employer.
Under the terms of that agreement (Resp. Union Exh. 2),
membership in the Union by Respondent Employer's
employees is compulsory, with a checkoff pay deduction of
union dues; and, in the event an employee grievance is not
satisfactorily adjusted at the first-step discussion between
Employer and Union, it "shall" be submitted to arbitra-
tion.
As has been shown above, Respondent Union's reason
for refusing to proceed to arbitration with Reilly's
discharge grievance was unrelated to the merits of that
grievance, 47 and was based solely on Reilly's having placed
the matter before the National Labor Relations Board-as
Respondent Union explicitly stated in its letter to Reilly
(G.C. Exh. 5).
Motors Corporation, 523 F.2d 306 (C.A. 6, 1975). Moreover, the alleged
"additional" instances-some disputed and others in no way previously
mentioned or claimed to have been significant or unusual-of previous
"errors" on Reilly's part, dredged up by Respondent Employer at the first-
step gnevance discussion with the Union on February 10, 1977, and still
others attempted to be interlarded at this hearing, but never previous/l
brought up or indicated as significant or as in any way being the reason for
Reilly's discharge (it will be recalled that even Terminal Manager Bartolomuct'i
conceded that the January 23 Lady Carol "error" by Reilly was the real reason
for his discharge), were and are obviously makeweight afterthoughts
assembled by Respondent Employer to make its previous discharge seem
plausible; as shown above, even Union Business Agent DelGrosso
purported or pretended to be impressed by them without further investiga-
tion as was his duty. Cf. Ruzicka v. General Motors Corporation, supra.
Phyllis Whitehead d/b/a P & L Cedar Products, 224 NLRB 244 (1976).
Although, as I find, these alleged "additional" errors played no role in
Reilly's discharge and were not all laid at his door, they were in any event
no more than the normal kind of errors generally occurring in this business
and tolerated by Respondent Employer as being within the level of
acceptable performance, all things considered. Cf. M. CC of Florida, Inc.,
224 NLRB 1519, 1527(1976).
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asked the direct question, Respondent Union Secretary-
Treasurer Frank Baffa conceded upon the record that it is
not the Union's position that it would not go to arbitration
because Reilly had gone to the Labor Board. But the
Union's letter to Reilly (G.C. Exh. 5) appears to say the
opposite; and in fact the Union has at no time indicated
any willingness to go to arbitration. Notwithstanding
Respondent Union's current insistence that it did not
refuse to take Reilly's discharge grievance to arbitration-
which must be taken tongue in cheek in view of its own
letter to Reilly (G.C. Exh. 5)-I find that it has indeed
refused to go to arbitration as provided in the collective
agreement, for the reason that (as stated in that letter)
Reilly had filed charges under the Act and invoked the
Board's processes. Respondent Union's counsel conceded
upon the record 48 that Respondent Union does not
contend that it is absolved from the obligation to proceed
to grievance arbitration if a member files a charge with the
Labor Board. There is no dispute that Reilly has at all
material times-indeed for the more than 4 years of his
employment with Respondent Employer-been a member
in good standing of the Union.
The details of Respondent Union chieftain Frank Baffa's
close family relationship with Respondent Employer's top-
ranking executive, Al Baffa (his brother), need not here be
reemphasized; nor of Frank Baffa's rancorous relation-
ships with Reilly after the latter began probing into the way
the Union was being run and its seemingly cozy relation-
ships with the Employer; nor of my discrediting the
testimony of Frank Baffa that he never so much as
mentioned to his brother, Al Baffa, Reilly's suddenly
awakened intransigence at union meetings since "My job is
to protect the men, not to talk about them"; nor of my
discrediting the testimony of Al Baffa that his brother
Frank ever so much as mentioned Reilly to him; nor that
Terminal Manager Bartolomucci conceded that he was
well aware, from foremen or others attending the January
10, 1976, contract ratification meeting, of the violent
exchanges between Frank Baffa and Reilly "yelling and
screaming at each other"; nor of my crediting Reilly that
he asked Union Business Agent DelGrosso orally (before
48 The trial transcript at p. 97 reads:
JUDGE OHLBAUM: Mr. Markson [i.e., Respondent Union's counsel
.... Is it the position of the union that if an unfair labor practice
charge is filed with [the] Labor Board the union is absolved of any
possible responsibility which it has with regard to going to arbitration?
MR. MARKSON: No.
4P In view of the way Union Business Agent DelGrosso "represented"
Reilly at the grievance discussion of February 10 and his remarks to Reilly
there and afterward, superimposed upon the acrimonious rancor previously
displayed toward Reilly by DelGrosso's superior, Union chieftain Frank
Baffa, Reilly had good reason to believe the Union was not representing him
fairly and properly and could not be relied upon to do so. In addition to
being fully morally justified under these circumstances in looking to the
Board for help. Reilly also had the absolute statutory right to invoke the
Act's protection by filing charges, independently of and in addition to
pressing his contractual right to resort to arbitration. It is no answer to the
Union's obligation as the employees' exclusive representative in enforcing
the collective agreement for it to refuse to do so merely because Reilly
exercised his statutory right to go to the Board. Reilly's resort to the Board
did not constitute a surrender, waiver, or abandonment of his rights under
the collective agreement nor a release of the Union's obligations under that
agreement and by virtue of its fiduciary duties as exclusive bargaining agent.
he wrote his formal letter of February 24 (G.C. Exh. 4) to
Frank Baffa) to proceed to arbitration; nor of Frank
Baffa's own testimony that, notwithstanding the Union's
constitutional requirement that the question of whether to
take a grievance to arbitration must be determined by its
executive board, he did not submit it to the executive board
but that only "we considered it. We acted on it ...
DelGrosso and myself."
Under all of these circumstances, I am persuaded and
accordingly find and hold that Respondent Union in
refusing to proceed with arbitration on the propriety of
Reilly's discharge failed to accord its member Reilly fair
and impartial representation because he had filed charges
under the Act and sought the protection of Federal law and
Board processes; and, further, restrained and coerced
Reilly and his fellow employees in the exercise of rights
guaranteed in Section 7 of the Act. Cf. Vaca v. Sipes, supra;
Humphrey v. Moore, supra, Ford Motor Co. v. Huffman,
supra; Local 703, Teamsters, 188 NLRB 873 (1971);
Association of Packers & Drivers Union (Guy's Foods, Inc.),
188 NLRB 608 (1971), enfd. 78 LRRM 2792, 66 1 12,215
(C.A. 8, 1971); Port Drum Company, 170 NLRB 555 (1968),
and 180 NLRB 590 (1970); Selwyn Shoe Manufacturing
Corporation, 172 NLRB 674, 682 (1968), modified on other
grounds 428 F.2d 217 (C.A. 8, 1970); W. J. Graham d/b/a
Graham Engineering 164 NLRB 679, 696 (1967); Local
Union No. 12, United Rubber, etc. (David Buckner), supra,
International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, AFL-CIO and
Amalgamated Local 453 (Maremont Corp.), 149 NLRB 482
(1964); Local 1367, ILA (Galveston Maritime Association),
148 NLRB 897 (1964), enfd. 368 F.2d 1010 (C.A. 5, 1966);
Independent Metal Workers Union, Local No. I (Hughes
Tool Company), 147 NLRB 1573 (1964); Miranda Fuel
Company, Inc., 140 NLRB 181 (1962), enforcement denied
on other grounds 326 F.2d 172 (C.A. 2, 1963).49
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
Whether or not the Board at some point in time impossible of determination
here would have "deferred" to arbitration under Colyer (Collyer Insulated
Wire, 192 NLRB 837 (1971)), as perhaps then but perhaps no longer extant,
is speculative and beside the point, since Reilly might have been content to
abide the arbitration outcome or, if intolerable, he might then have pressed
before the Board for vindication if (for example) the arbitration process had
been irregular or inconsistent with Spielberg (Spielberg Manufacturing
Company, 112 NLRB 1080 (1955)) standards; or the Board might, in
exercise of its then currently perceived statutory obligations, have opted to
proceed upon the charge or charges here in any event, under the particular
circumstances shown. In either or any event, however, the Union failed in its
obligation to represent Reilly fairly and properly by its conduct under the
circumstances capped by its express refusal to proceed with arbitration,
without regard to the merits of Reilly's grievance, simply and solely because
he had invoked the protection of the Act by filing charges against the
Employer and the Union in the situation shown. It was just as much a
violation as if the Union had told Reilly that it would go to arbitration for
him only if he did not go to the Board or that it would go to arbitration only
if he withdrew his charges before the Board. "No responsibility of a union to
protect its members' interests, no duty of fair representation, no 'legitimate
discretion' to process or not to process a grievance isjustification to impede,
deter, or interfere with an employee's right to come to this Board with an
unfair labor practice charge." Association of Packers and Drivers Union
(Guy's Foods, Inc.), supra.
942
PENN INDUSTRIES, INC.
2. Through its termination of the employment of its
employee Howard S. Reilly on January 26, 1976, and its
failure and refusal at all times since then to reinstate him,
under the circumstances set forth and found in III, supra,
Respondent Employer Penn Industries, Inc., has discrimi-
nated in regard to terms, conditions, hire, and tenure of its
employee Reilly to discourage or encourage membership in
a labor organization, constituting unfair labor practices in
violation of Section 8(a)3) of the National Labor Relations
Act, as amended.
3. By its said acts as described in Conclusion of Law 2,
supra, Respondent Employer has also interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7, constituting unfair labor practices
in violation of Section 8(a)(1) of said Act.
4. Through its failure and refusal, under the circum-
stances set forth and found in Il1, supra, to proceed to
process the discharge grievance of its member Howard S.
Reilly to arbitration, involving the termination of the
employment of Reilly by Respondent Employer on
January 26, 1976, and its failure and refusal to reinstate
him, Respondent Union Marine Freight Handlers &
Warehousemen in the Port of New York and Vicinity,
Local 976 ILA, has failed to accord Reilly fair and
impartial representation because Reilly filed charges under
the National Labor Relations Act and made use of
processes of the National Labor Relations Board, thereby
interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in Section 7, constituting
unfair labor practices in violation of Section 8(b)(1)(A) of
the Act.
5. The aforesaid unfair labor practices and each of
them have affected, are affecting, and, unless permanently
restrained and enjoined and otherwise appropriately
remedied, will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having been found to have terminated the employment
of its employee Howard S. Reilly by reason of his union
and concerted activities protected under the Act, and
thereby to have discriminated against him unlawfully as
well as thereby to have interfered with, restrained, and
coerced employees in the exercise of their rights under the
Act, Respondent Employer should, as is usual in such
cases, be required to cease and desist from continuing or
other violations of the Act, and to offer Reilly reinstate-
ment, with backpay and interest, computed as explicated
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). Respondent Employer should also, in accordance
with the practice in cases of this nature, be required to
preserve and open its books and records to the Board's
agents for backpay computation and compliance purposes.
Respondent Employer should further be required to
50 A. J. Krajewski Manufacturing Co., Inc., 180 NLRB 1071 (1970).
sl Cf. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
52 Cf., e.g., Truck Drivers, etc., Local No. 705. 210 NLRB 210, 277 (1974),
and cases cited.
53 In the event no exceptions are filed as provided by Sec. 102.46 of the
expunge any entries from its records reflecting that Reilly
was discharged for work-related cause.
Having been found to have failed in its duty of fair and
impartial representation of its member Reilly in his
meritorious grievance involving his unlawful discharge by
his Employer under the circumstances shown, Respondent
Union should be required to share the backpay obligation
jointly and severally with Respondent Employer, as well as
to cease and desist from that and further violations of the
Act. Respondent Employer and Respondent Union should
also be required to make the required payments into the
Union's welfare and pension fund under their subsisting
collective agreement on Reilly's behalf since the date of his
wrongful discharge and the Union's associated wrongful
refusal to process his discharge grievance to arbitration
under that collective agreement.
In view of the serious nature of the violations here,
discriminatory discharge of the leader of protected concert-
ed activity going "to the very heart of the Act",5 0 and the
same being true of a Union's wrongful refusal to represent
its member because he has invoked the protection of the
Act and the Board's processes, Respondents should further
be ordered to cease and desist from in any way violating
employees' and members' rights under the Act. 5' Finally,
posting of the usual informational notice to employees and
notice to members should also be required. Because of the
dispersal of small numbers of Respondent Employer's
employees, all of whom are under the collective agreement
required to be members of Respondent Union, throughout
a network of terminals, subterminals, or facilities located
within a concentrated area-i.e., the Metropolitan New
York City shipping area or zone-and because of the
nature of the violations found, affecting all employ-
ees/union members who wish to exercise their rights in
achieving and maintaining union democracy without
jeopardy to their jobs, the posting requirement should be
applicable to all of Respondent Employer's terminals and
facilities, as well as Respondent Union's offices and halls,
in that concentrated Metropolitan New York City shipping
area in order to reach the affected employees/members
and be reasonably efficacious. 5 2
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 53
A. The Respondent Employer, Penn Industries, Inc.,
Jersey City, New Jersey, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Encouraging or discouraging union membership or
any activity in which employees have the right to engage or
not to engage under Section 7 of the National Labor
Relations Act, as amended, by discriminating in regard to
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire or tenure of employment or any term or condition of
employment, in violation of said Act.
(b) Terminating the employment of, discharging, laying
off, furloughing, separating, suspending, or refusing or
failing to recall, reinstate, reemploy, or rehire any employee
because he has exercised or sought to exercise any of his
rights as a member of a union or any other right under
Section 7 of said Act.
(c) In any other manner interfering with, restraining, or
coercing any employee in the exercise of the right to self-
organization; to form, join, assist, or participate in the
affairs of any labor organization; to bargain collectively
through representatives of his own choosing, or to
participate in that process; to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection; or to refrain from any and all such activities.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Offer to Howard S. Reilly immediate, full, and
unconditional reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and
other rights, privileges, benefits, and emoluments, includ-
ing regular periodic incremental and other pay raises in the
interim and also currently applicable pay scales.
(b) Forthwith expunge from all of Respondent Employ-
er's personnel, employment, and other records all state-
ments, entries, and references that Howard S. Reilly was
terminated, discharged, laid off, or separated by Respon-
dent on or about January 26, 1976, for any work-related
fault, deficiency, or reason; and desist from so stating to
any employer, prospective employer, credit, reference,
character, or similar inquiry.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage scale records and notations, social
security payment records, timecards, personnel records and
reports, job sheets and cards and records, and all other
records and entries necessary or appropriate to determine
the amount of backpay and other sums and benefits due
under and the extent of compliance with the terms of this
recommended Order.
(d) Post at all of its terminal premises and facilities in the
Metropolitan New York City shipping area, including but
not limited to its Greenville Terminal in Jersey City, New
Jersey, copies of the attached notice marked "Appendix
A."54 Copies of said notice, on forms provided by the
Board's Regional Director for Region 22, after being duly
signed by Respondent Employer's authorized representa-
tive, shall be posted by Respondent Employer immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places in each of said locations where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent Employer to insure that said
notices are not altered, defaced, or covered by any other
material. The foregoing provisions shall be equally applica-
ble to the signed "Notice to Members" form (Appendix B,
attached) of Respondent Union which said Regional
54 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a
Director shall likewise furnish to Respondent Employer for
simultaneous posting alongside each said "Notice to
Employees" form (Appendix A, attached).
(e) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
Employer has taken to comply with this Order.
B. The Respondent Union, Marine Freight Handlers &
Warehousemen in the Port of New York and Vicinity,
Local 976 ILA, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Refusing or failing to accord any of its members fair
and impartial representation, including processing a mem-
ber's employment discharge grievance to arbitration under
a subsisting collective agreement, because such member
has filed charges under the National Labor Relations Act
or has made use of or sought to make use of protection or
assistance from or processes of the National Labor
Relations Board.
(b) In any other manner interfering with, restraining, or
coercing any employee in the exercise of the right to self-
organization; to form, join, assist, or participate in the
affairs of any labor organization; to bargain collectively
through representatives of his own choosing, or to
participate in that process; to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection; to inquire lawfully into and attempt lawfully
to influence the conduct of the management and affairs of
a labor organization of which he is a member; or to refrain
from any and all such activities.
(2) Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Post at its offices, union halls, and all other places of
business in the Metropolitan New York City shipping area
copies of the attached notice marked "Appendix B." 55
Copies of said notice, on forms provided by the Board's
Regional Director for Region 22, after being duly signed by
Respondent Union's authorized representative, shall be
posted by Respondent Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places in
each of said locations where notices to its members are
customarily posted. Reasonable steps shall be taken by
Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
Union has taken to comply with this Order.
C. The Respondent Employer, Penn Industries, Inc.,
and the Respondent Union, Marine Freight Handlers &
Warehousemen in the Port of New York and Vicinity,
Local 976 ILA, shall, jointly and severally:
Make Howard S. Reilly whole for any loss of pay and
benefits (including all regular periodic incremental pay
increases on and since January 26, 1976; and also
including overtime, holiday, and vacation pay; and
insurance benefits, claims, and reimbursements if any),
together with interest, computed in the manner set forth in
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
s5 See fn. 54, supra.
944
PENN INDUSTRIES, INC. 945
the "Remedy" portion of this Decision, and also including dated as of January 1, 1976, between Respondent Union
all contributions and payments on his behalf into the and Respondent Employer, to the same extent and effect as
Union's welfare fund and pension fund due on and since if Reilly had not been discharged on January 26, 1976.
January 26, 1976, under the subsisting collective agreement