People'S Transportation Service, Inc. And Minute Man Transit, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 20, 1985276 N.L.R.B. 169 (N.L.R.B. 1985) Copy Citation PEOPLE'S TRANSPORTATION SERVICE People's Transportation Service , Inc. and Minute Man Transit, Inc. and Joseph McMahon. Case 1-CA-18305 20 September 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 28 December 1984 Administrative Law Judge Robert G. Romano issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings , findings,2 and conclusions,3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , People's Transportation Service, Inc. and Minute Man Transit, Inc., Dedham, Massachusetts, its officers, agents, successors , and assigns, shall take the action set forth in the Order. ' On 11 September 1985 the Respondent filed a motion requesting the Board to delay issuing a Decision and Order for a 2-month period so that it could "assess the impact to Respondent 's position" of the oversight hearing held by the House of Representatives' Employment and Housing Subcommittee on 11 June 1985, at which there was testimony regarding the delay in this case at the administrative law judge level . We deny the Respondent's motion. ' The Respondent has excepted to some of the judge 's credibility find- ings. The Board 's established policy is not to overrule an administrative law judge 's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent additionally suggests that at the hearing the judge en- gaged in prejudicial conduct directed at the Respondent . We have care- fully examined the record and we are satisfied that any contentions in this regard are without merit. In sec. II,A,11 ,d of his decision, the judge discredited Supervisor Mayo's testimony concerning the 3-4 February 1981 incident involving driver vogelsong. In adopting the judge's credibility resolution, we find that Vogelsong must have left the Wellesboro area 2 -1/2, rather than 1- 1/2 hours before the opening of the Wellesboro Post Office as found by the judge. ' We agree with the judge 's conclusion that the General Counsel es- tablished a prima fade case that the Respondent discharged McMahon on 5 February 1981 bemuse of his perceived union activity, and his conclu- sion that the Respondent failed to establish that it would have terminated McMahon even absent such perceived activity. Wright Line, 251 NLRB 1083 (1981), enfd. 662 F.2d 899 (1st Or. 1981), cert. denied 455 U.S. 989 (1982). 169 Robert F. Kiel, &q., for the General Counsel. Lester B. Slate, Esq., of Brocton, Massachussetts, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT G . ROMANO, Administrative Law Judge. Hearing was initially opened on June 15, 1981 , pursuant to an order consolidating cases and amended complaint in Cases l-CA-17958 and 1-CA-18305 . The charge in Case 1-CA-17958 was filed by Teamsters Local Union 25 a/w International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America (Team- sters Local 25) against People's Transportation Service, Inc. (People's-TSI) on October 17, 1980;1 and a com- plaint issued on November 25, alleging certain violations of Section 8(a)(1) and (3). By answer filed December 2, Respondent People's-TSI denied the commission of any unfair labor practices , and inter alia asserted that an em- ployee was not discriminatorily discharged on October 10, as alleged, but rather discharged for cause. The charge in Case 1-CA-18305 was filed by Joseph McMa- hon, an individual (McMahon) on February 5, 1981 (amended March 6, 1981) against People's-TSI and Minute Man Transit, Inc. (Minute Man). An order con- solidating cases and amended complaint issued on March 19, 1981 , alleging that People's-TSI and Minute Man were a single employer, and further alleging certain addi- tional violations of Section 8(axl) and (3), inclusive of that McMahon had been discriminatorily discharged on February 5, 1981 . By amended answer filed April 21, 1981 , Respondent denied single employer status , contin- ued its denial of commission of any unfair labor prac- tices, and inter alia affirmatively defended that McMa- hon was a supervisor within the meaning of Section 2(11) of the Act , and that therefore his discharge was not protected by Section 8(a) of the Act ; and that, alterna- tively, regardless of supervisory status of McMahon, McMahon was discharged for cause and not for any rea- sons proscribed by the Act. At opening of hearing on the above consolidated mat- ters before me on June 15, 1981 , the General Counsel and Respondent filed joint motion for an indefinite ad- journment on the basis that voluminous records were very recently made available by Respondent to the Region for review, and that the General Counsel on ini- tial inspection was satisfied these would cast a great deal of light on the matters raised in the complaint . There- upon the hearing on all the above consolidated matters was first indefinitely adjourned. Hearing was thereafter initially resumed on November 2, 1981 . At that time the General Counsel stated that as a result of an interim investigation it had been determined that further proceedings or litigation of the allegations in Case 1-CA-17958 was not warranted ; that the entire matter had been previously discussed with Charging Party Teamsters Local 25 ; and as a result of that discus- sion a withdrawal request from the Union had been ob- ' All dates stated herein are in 1980, unless otherwise stated. 276 NLRB No. 47 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained. The General Counsel thereupon made motion to sever, and moved for allowance of the withdrawal of the underlying charge in Case 1-CA-17958, and for dismissal of the related allegations of the complaint in Case 1-CA- 17958. There being no objection thereto by Respondent or Charging Party Teamsters Local 25, the motion was granted. Thereupon Teamsters Local 25 withdrew, and did not take further part in the remaining proceedings held on Case 1-CA-18305. Respondent thereupon amended its answer to admit, for purposes of this proceeding only, that People's-TSI and Minute Man constitute a single business enterprise, and are a single employer within the meaning of the Act. However, at the outset of the resumed hearing it soon became apparent that Respondent was to further alterna- tively contend that McMahon occupied a managerial po- sition of national systems manager at night. The General Counsel has contracontended that McMahon was neither a supervisor nor a manager, but simply a dispatcher with (at best) a fancy title, with duties similar to Respondent's other (nonsupervisory) dispatchers, as had been. earlier urged by Employer in a recent representation hearing held in Case 1-RC-17064. A protracted hearing (involv- ing review of voluminous records) on these and other substantive and procedural matters then developed. On May 14, 1982, being then the 20th day of this hear- ing, but on a motion made during case-in-chief, the Gen- eral Counsel was allowed, over Respondent's objection; to further amend the complaint to alternatively allege there was an unlawful supervisory discharge of McMa- hon by Respondent in violation of Section 8(a)(1) of the Act. Employer subsequently sought special appeal (dated June 1, 1982) on this ruling, which request was denied by a Board directive on June 17, 1982; and a Respond- ent's subsequent motion for reconsideration, denied by the Board on July 2, 1982. The denial was without preju- dice to Respondent to renew its contention through the filing of appropriate ' exceptions. (Board Member Zim- merman, dissenting, would have granted the appeal, and in subsequent consideration, inter alia, of Respondent's motion for reconsideration, dissenting 'in part, would have granted reconsideration of the earlier ruling.) It would seem otherwise as, appropriate only to addi- tionally note that Respondent had simultaneously filed with me a motion for disqualification, which was op- posed by the General Counsel, and which on due consid- eration, including due consideration of the parties' con- tentions and the status of the record relied upon, was denied by my order dated June 17, 1982, for reasons therein stated; and that Respondent's further request to specifically appeal that-ruling, filed contemporaneously with earlier recounted motion for reconsideration, also opposed by the General Counsel, was denied by the Board directive order of July 2, 1982. Hearing was thereafter resumed and completed on January 26, 1983. On the entire record, from my observation of the de- meanor of the witnesses, and after the consideration of the briefs filed by Respondent on August 2, 1983, and by the General Counsel on August 3, 1983,2 make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Jurisdiction is not in issue. Respondent has admitted at hearing that People's-TSI and Minute Man constitute a single employer. Respondent admitted in answer and/or at hearing that People's-TSI and Minute Man are Massa- chusetts corporations; that they are engaged at Dedham, Massachusetts, in the demand response trucking business and their primary function is to provide courier messen- ger services as well as warehouse and distribution serv- ices for their customers; and that each has received in excess of $50,000 for services performed for customers who meet the Board's direct inflow or outflow standard. Additionally it is apparent of record that during material times Minute Man obtained and began service on con- tracts with the U.S. Postal-Service valued well in excess of $1 million. Accordingly,. it is presently concluded and found that People's and Minute Man constitute a single employer, and that Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint also alleges and Respondent admits in answer and/or at hearing that Local 25 is a labor or- ganization within the meaning of the Act. It is uncontest- ed and found that the Independent Union involved in an organizational drive among Employer's Chicago drivers, as found infra, was also a labor organization within the meaning of the Act. 2 All received exhibits accompany the transcript; and where not shown received on the face of exhibit by the reporter are each and all shown so received of record by the reporter It is however observed that G C Exh 65A, Subpoena B-188044 , dated May 18, 1981 (and copy), presently accompanying G C Exhs was withdrawn by the General Counsel, and Subpoena B-213265 dated October 19, 1981, offered and received as shown - in G C Exh 65B. In that connection • Respondent then offered Subpoena B-188044 dated May 18, 1981, which was received as R Exh. 48 However, in the set of exhibits accompanying this transcript R Exh 48 is ascribed to a copy of 65b, rather than 65(a) Finally it is observed that though the reporter' s index shows G.C. 56(c) as an exhibit received in evidence it is clear of record in that volume that 56(c) was withdrawn (see Tr 2287). These inadvertent errors are noted and corrected For rea- sons that are fully set forth in letter dated August 12, 1983, the General Counsel sought permission to file a "corrected Brief" (dated August 18, 1983, as subsequently submitted), to which Respondent by counsel's letter dated August 23, 1983, has declared certain objections, with claim that matters of substance are potentially involved. The General Counsel's ini- tial request (herein made ALJ-1) shall be treated as a motion for leave to file "corrected Brief," and Respondent 's letter in response stating objec- tions (herein ALJ-2) as Respondent 's opposition filed thereto As Re- spondent has now filed opposition to the General Counsel 's "corrected Brief' as filed , and as the "corrected Brief" clearly is one untimely sub- mitted , the "corrected Brief' (herein made ALJ-3) is rejected , and the same has not been given further consideration However, the General Counsel's initially submitted brief is deemed timely received , and has been given the appropriate consideration deemed warranted in the light of the entire record PEOPLES TRANSPORTATION SERVICE 11 II THE ALLEGED UNFAIR LABOR PRACTICES Part I A Background 1 Minute Man s changing operations the development of integrated and/or affiliated businesses a Minute Man Minute Man was incorporated in June or July 1975 Joseph Bruno Jr (Bruno) is president of Minute Man In origin Minute Man was an outgrowth of a small taxicab business earlier begun by Bruno with 6 cabs which was expanded in later years to encompass operation of some 75 cabs through 13 separate compa vies The taxicab businesses were so structured for re stricted liability purposes as Bruno testified is common in that industry As an extension of the taxicab business Minute Man then began engaging in the demand re sponse trucking business with its primary function mi tially to provide courser messenger services principally of envelopes but later providing deliveries of small pack ages to specialized large unit transfer on a demand re sponse basis for business or professional people Its present business is inter aha to provide these vaned couner messenger services principally in the greater Boston metropolitan area but also regularly to certain nearby States e g in surrounding New England States and New York However through its operation of an air courier service it has also lurked its courier messenger service by air rail and bus to other States of the Union and indeed it has operated internationally Minute Man also provides certain related warehouse and distribution services for its customers In the summer of 1977 Minute Man successfully nego tiated a contract with Chrysler Corporation to deliver parts and accessories Minute Man had been running its courser messenger business essentially in the same manner as it did its prior taxicab business except it was delivering envelopes and small packages in station wagons on a demand response rather than people For the Chrysler (Mopar) work Employer utilized step vans On January 1 1978 Minute Man moved its principal place of business in Needham to a larger 10 000 sq ft warehouse facility at 24 Williams Street in Dedham Massachusetts b Peoples TSI Peoples TSI s president and sole owner was Paul Hightower Hightower was bought out by Bruno in 1978 Peoples has since operated from the same Dedham location engaged in the same or related buss ness operations including specifically providing limou sine service transport of individuals to a given location e g, to the airport c The Chrysler Mopar contracts When Minute Man was originally incorporated in Bruno s view there was no immediate likelihood of any catastrophic business loss from a lawsuit that might endanger the entire Minute Man enterprise because of the size and nature of its then structured indebtedness Bruno testified credibly howev er that with the possibility of additional growth and re suiting profit from the business he began to foresee such a danger 171 (1) Instate Mopar work General Transit Inc is a Massachusetts corporation with its principal place of business in Needham Massa chusetts along with several other unnamed corporations Robert Burnett is president and sole stockholder of Gen eral Transit General Transit obtained a contract from Chrysler to distribute Chrysler parts and accessories in certain areas of Massachusetts Although not without some record confusion apparently General Transit owns its own vehicles but leased drivers from Minute Man for that contract performance in Massachusetts (2) Out of state Mopar work In the summer of 1977 Minute Man had earlier suc cessfully negotiated a contract with Chrysler to provide a service of distribution of Mopar parts and accessories Bruno relates that theretofore he had no trucking or transportation expertise other than essentially in taxis Bruno also testified that he had received and proceeded on information from Chrysler (whether correctly or in correctly in doing so) that common carriers transporting commodities for hire (such as Minute Man) could not lease drivers under ICC regulation and he testified that he had later continued in that view even as to providing his service in the hauling of mail an exempted commodi ty Bruno also testified that Chrysler like many other businesses he has since discovered run (own) their fleets but regularly lease all other related required services viz drivers technical expertise management and book keeping From that point on according to Bruno with each new contract obtained from Chrysler a new corpo ration was formed with purpose that Minute Man as a common carrier would no longer be leasing drivers and he acknowledged that he did so also to spread the habil ity The newly formed corporations were provided in their corporate name the name of the State they at least initially served The Chrysler Mopar contract work ex pansion in Minute Man was concluded in 1979 Formed for such purpose in the intervening period (1977-1978), but within 6 to 8 months of each other inter aha were Transportation Services of Kentucky Inc (TSI Ken tucky) Transportation Services of Mississippi Inc (TSI Mississippi) and Transportation Manpower of New York Inc (TMI New York) (There are references to a possibility of still other corporations similarly existing e g Arkansas but do not appear germane to instant mat ters under consideration ) William Bowen appears as president and sole stock holder of TSI Kentucky and Paul Hightower appeared as president and sole stockholder of TSI Mississippi and TMI New York However, neither Hightower or Bowen has ever received any financial gain from these corpora tions For as employees of Minute Man they were used as corporate figureheads with Bruno possessing in each instance a written side agreement with each of them pro viding for surrender of all their owned stock upon demand (When Hightower resigned from Minute Man in June 1981 he thus turned over all stock and a replace ment employee of Minute Man was then substituted) Moreover both practical and effective financial control appears in the end to have been at all •imes actually pos 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sessed by Bruno through his initial sole possession and subsequent joint possession (with Minute Man s control ler) of all the checkbooks of the dnver leasing compa vies Bruno has also ultimately acknowledged that the labor policy of all of them was controlled by him It was thus last (on Respondents recall of Bruno) made in the end apparent and I am persuaded more convincingly so of record and I accordingly find that real ownership fi nancial and central labor policy control of the involved dnver leasing companies at all times has as a practical matter resided in Bruno It is however additionally war ranted to observe in regard to this matter that after re vealing for the first time late in the proceeding that out of state postal employees were not actually employed by Minute Man but employed by the above three driver leasing companies an initial lack of candor on the part of Bruno on his affiliated corporations relationships was compounded in his immediately subsequent testimony in denial of ownership and control of them and an asser tion of the relationship of them to Minute Man as being none other than that of vendor to supply Viewed most favorably to Employer Bruno initially was motivated with a desire to preserve separate corporate identities However there were resulting inconsistencies indeed contradictions in his eventual testimony certain of which are discussed next after presentment of the various out of state postal contracts with which they became in volved d The postal contracts (1) Pre 1980 postal service contracts In 1979 Minute Man bid on and was awarded several separate postal contracts to provide mail transport serv ice for Woburn and for Worcester Springfield Post Of (ices (collectively instate postal service) Mint. e Man provided the required vehicles3 and drivers (postal dnv ers) These instate postal drivers were Minute Man em ployees Postal drivers at all locations (instate and out of state) were paid a wage rate (and benefit level) in accord with local area wage rate determination by the Depart ment of Labor under the Service Contract Act of 1965 (as amended) Wages paid vaned accord ng to area Minute Man instate postal service actually began in the fall of 1979 Minute Man provided no out of state postal service under any other postal contracts prior to July 1980 (2) The 1980 postal service contracts In 1980 Minute Man s involvement with postal con tracts expanded very rapidly and very substantially All were out of state operation of additional postal contracts in the last half of 1980 as follows I There were three new diesel straight trucks initially placed in Woburn and three new diesel tractors in Worcester 4 Bruno described a step van as being a vehicle of 10 000 lbs with car tying capacity of 400 lbs and likeable to a curbside bread truck Straight trucks were in comparison of 25 to 30 000 lbs The Mail Sorting Center (MSC) in Northern Virginia is sometimes referred to as the Merrifield Post Office The Washington D C Bulk Mail Center (BMC) is located in Largo Maryland Equipment Location Start date "requirement 1 Washington July 12 4 straight trucks DC to Bristol VA 2 Chicago IL Sept 20 12 straight trucks (one spare) 3 Kalamazoo MI Oct 18 2 step vans to Gary IN 4 Bristol VA to Nov 1 2 straight trucks Ewing VA 5 Bristol VA to Nov 1 3 straight trucks Clmtwood VA 6 MSC Northern Nov 8 2 tractors 11 Virginia to trailers Washington D C BMC5 7 Harrisburg PA Nov 15 3 straight trucks to Wellsboro PA 8 Prince George Dec 4 4 straight trucks MD to Roanoke VA All of the above contracts were bid by and awarded to Minute Man except for the Chicago contract which was bid by and awarded to General Transit Bruno has testified that General Transit is not his company that he is not an officer or stockholder in it nor is it controlled by anybody employed by Respondent and that neither does General Transit have a financial interest in Minute Man However given Bruno similar testimony about the driver leasing corporations initially subsequently admit ted (by other arrangement) to be owned controlled and operated by Bruno I am reluctant to place any firm reh ance thereon particularly where there are occasions where Bruno and Mayo have both referred to General Transit as part of a single operation e g by use of the personal pronoun we (and otherwise) in referring to General Transit According to Bruno Minute Man manages the Chica go postal contract for General Transit for a flat percent age fee pursant to a written management agreement ne gotiated by Bruno and Bowen and General Transit paid Minute Man for its services As Respondents witness but on cross examination by the General Counsel Bruno then first revealed that the postal employees employed at Chicago were not employees of Minute Man but of TSI Mississippi a driver leasing company and similarly that employees employed at the other out-of state postal loca tions were also not employed by Minute Man but by other driver leasing companies Bruno s testimony given then was to the effect (1) as to payment procedure Minute Man paid money to TSI Mississippi for the dnv ers supplied (2) as to ownership and financial interest the nature of the relationship of TSI Mississippi to Minute Man was contractual and not other than of a vendor to suppliers that they (TSI Mississippi and Minute Man) had no financial interest in each other that none of the PEOPLE 'S TRANSPORTATION SERVICEr, - driver leasing companies were owned or, controlled by persons who had a financial interest in Minute Man, and specifically, that Bruno did not have financial interest in any of these leasing companies; (3) as to operational con- trol, Minute Man people gave them direction, had laid out the routes; and that though there were no written provisions on it, there were unwritten understandings that the employees - of these driver leasing companies were managed by those companies insofar as a final say on hiring, firing review, etc., but Minute Man could make recommendation of a customer,6 and that the process in- volved, if Respondent wished to discipline or terminate, was one of verbal -communications between the princi- pals of the two companies, by Bruno primarily for Minute Man, with Paul Hightower, and sometimes Man- ager John Holman for TSI-Mississippi, and with Bill Bowen, and sometimes Manager Tom Wise for TSI-Ken- tucky; though Bruno on redirect would promptly reas- sert that he, Norton, Mayo, and McMahon could exer- cise personnel decisions relating to hiring, firing, assign- ing, evaluating, disciplining, and managing in Chicago, and at the other post office locations; asserting further that he did not instruct Mayo or McMahon to clear any- thing with Bowen and Hightower, and that in the end of 1980, beginning of 1981, such personnel decisions did not have to be cleared with Hightower or Bowen though ini- tially having indicated in his testimony that Chicago field or system supervisor Castallano was to clear certain mat- ters through Ken (Mayo) and Bill (presumably Bowen); and (4) in. regard to related instructions and information given Mayo and/or McMahon; that neither Bruno, or any manager, explained Minute Man's relationship to the three companies to McMahon, nor did he (Bruno) to Mayo that Bruno recalls, though stating Mayo knew about it; but as to McMahon,, asserting that he was almost positive that McMahon was informed that the out-of-state drivers and field managers were employed by someone other than Minute Man, asserting further that McMahon would have known that from the payroll checks received from the outside payroll firm used. Bruno explained that payroll checks for a given com- pany were made up by - an outside payroll firm, and placed in a manilla envelope with the name of the com- pany on the outside. The packaged checks were then picked up by a courier driver, brought to Dedham, and, according to Bruno, delivered to no particular office. Bruno relates that because drivers of a given company were in different areas, the manilla envelope had to be opened; and Bruno asserts they were given to Mayo or McMahon to separate and put in outgoing mail pouches for the given area . Pouches were kept at the TSI-desk. However, Bruno has then also testified that it was done usually at 4-5 p.m., he imagined by Mayo, but acknowl- edging by Bruno sometimes and notably, in any event, at a time -when McMahon would regularly not be there. Moreover the pouches were then closed and sent out ex- press mail, with Bruno usually the one to generate the postage from the meter. Significantly, in regard to Bruno assertions of Minute Man interviewing, even though ap- 8 Bruno testified that the written agreement spelled out he could hire and fire employees for them on any other occasion 173 plicants were to 'be employed by another company, Bruno even then revealingly testified, our final decision was what mattered. . Question was, then raised'to counsel whether McMa- hon could be determined to be a supervisor of the out-of- state personnel who were all non-Minute Man employees as seemingly then being advanced as employees of sepa- rate independent contractors. See, e.g., Eugene Register Guard, 237 NLRB 205 (1978). On recall by Respondent, Bruno then testified: (1) in regard to payments, that TSI- Kentucky billed the percentage to the customer for the driver leasing services provided, which included supervi- sion, maintenance, everything but vehicle payment; and with Bruno's asserted -understanding, with preliminary, qualifying reference that all of it was done by the ac- countants, that Minute Man billed the driver leasing company for all Minute Man's services, administrative, and everything (including bookkeeping) as the driver leasing companies. did not have bookkeeping depart- ments. Minute Man in turn paid the one accountant firm, one bill, for all the accounting services. He further testi- fied, (2) as to ownership and financial interest, largely as above first related in regard to Bruno side agreement ar- rangement made with Hightower and Bowen for the sur- render of stock, and his checkbook possession to. effect financial control; and (3) operational control, that the lease drivers on (out-of-state) post office and Mopar work were all controlled by Mayo and McMahon direct- ly on a day-to-day basis; that Bowen and Hightower had nothing to do with running the operation; and that in the normal course of events Bruno did the personnel deci- sions, the hiring and firing, but with '(seeming) clarifica- tion that of supervision was always done by him. -There remains some confusion whether or not Bruno's last testi- mony about accounting in regard to TSI-Kentucky was intended to clarify the accounting arrangements on TMI- New York, or all companies on both Mopar and postal work. Other related discrepancies, where material, are resolved infra by the weight of more credible evidence. What is to be observed in regard to credibility of Bruno generally is that resultingly in one sense, in the end,- the issues of the supervisory/managenal status of Mayo and McMahon remain essentially the same, albeit one of their supervisory and/or managerial relationships to employ- ees of the single employer, rather than as long previously indicated to employees of Minute Man in these locations. That late development of fact has occasioned an evalua- tion of the evidence, as earlier presented, in that light. In the end I am persuaded that Bruno's errant testimony in these affiliated corporation matters was not with design to confuse the supervisory/managerial issue but, unwise- ly, a matter of his, reluctance to-reveal on the stand his separate liability defenses, corporately constructed, for other purposes. The out-of-state postal contracts are of varying '(set to indefinite) duration. Each of the contracts had its own starting date which in all but one instance varied. Each of the contracts reflected a specific anticipatable annual revenue rate, which, in total on all such contracts ob- tained, amounted to approximately $1.87 million on their combined annual basis. The Chicago contract had clearly 174 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD the largest annual rate , $606,335, next followed by the D.C. to Bristol contract at $326 ,083 annual rate . Kalama- zoo, Michigan , to Gary; Indiana , was the smallest of the contracts at $41,823 . Minute Man was invited to bid on the last contract , Prince George , Maryland , to Roanoke, Virginia , on an emergency basis ; and it did so with only a few days resultingly available for preparation . That con- tract itself was` a substantial one with annual rate of $299,677 in revenue . Equipment for the latter was initial- ly rented and later purchased . That contract was initially staffed , inter alia , about the D.C. point of origin with backup drivers previously used on other D.C. contracts, and, about the Roanoke origin ,- in the main by drivers from the predecessor contractor : Essentially this oper- ation , like -the Kalamazoo operation above; involved drivers from different points of origin , regularly meeting (essentially) midway , swapping trucks , and returning to their point of origin. - Adding the above 42 to 44 pieces of equipment which were to 'be utilized in the new out -of-state postal.work to the at most 20 vehicles involved in Mopar routes, vehi- cles (including trailers ) in use from July to early Decem- ber went from 20 to over 60. Thus TSI vehicles in oper- ation essentially tripled in - the period July-December 1980. Contract value essentially doubled after '-McMa- hon's,arrival on the TSI desk. The Post Office established the contractual require- ments for the schedule of Post Offices to be served by ,the route and with times specific as to `both required driver arrival and departure . Respondent contended, and I - readily find on the evidence presented before me, that the Chicago contract was by far the most complex; and that the degree of its complexity was indeed substantial. Thus there were 98 routes with multiple post office stops , and with over 400 scheduled trips a week to be completed over 7 days a week . A driver's assignment covered multiple routes .,The distance to be traveled on individual assignment was moderate (200 miles). Howev- er, although some Chicago routes had some leeway, gen- erally the timed schedules in Chicago , in their taking into account even' synchronization of traffic lights , had little tolerance built in for any delay ; and a delay at one post office would be likely to set off sequential delays at other later scheduled post offices . Although of decidedly dif- ferent nature , the D .C. to Bristol run similarly was ini- tially so tight that an unscheduled rest break , or even an abnormal delay in required _en route fueling, might result in- a service irregularity which possibility continued until the Post Office, on request , of the contractor , eventually reviewed that schedule , - and made an appropriate 1/4- hour adjustment at an intermediate stop at Roanoke, Vir- ginia.- The D .C. to Bristol contract was also the longest in, distance (440 miles). I credit Mayo 's last testimony that the most problemsome in cold , wintry weather were the Kalamazoo , Michigan to Gary , Indiana, Harrisburg to Wellsboro , Pennsylvania, and D.C. to Bristol runs, in -that order. The equipment used -in Chicago was at least essentially owned by General Transit . Thus 11 or 12 brand new Mercedes trucks were purchased from a Chicago dealer by General Transit for the Chicago contract work. (A 1- year-old truck was additionally brought there from Dedham for use as a spare by Gary Schneider employed Minute Man.) However , box bodies ' (conforming to Post Office 's specification) were required , to be added to the newly'purchased trucks in Jamesville, Wisconsin, some 200 miles away . There was quite a bit of shuttling of ve- hicles prior to startup in Chicago . A larger than normal work , force was initially provided for startup . There were no Minute Man employees hired in Chicago, nor in any of the other out-of-state postal areas . Drivers in Chi- cago were leased to General Transit by TSI-Mississippi. Similarly all the employees employed in the D .C.-and Bristol-served geographical areas (inclusive of. Roanoke) were employees of TSI -Kentucky ; and all the employees ,employed at Kalamazoo , Michigan , and Gary, Indiana, as well as at Harrisburg and Wellsboro , Pennsylvania, were employees of TMI-New York . There were , howev- er, no postal contracts in Memphis , Tennessee , Lexing- ton, Kentucky , and Buffalo, . New York, where oper- ations of these , corporations, were respectively initially lo- cated, or in the Mopar route areas served by them. • - . In short , and without exception, save a minor tempo- rary one on Chicago startup, all the out-of-state postal drivers and other supportive personnel , and- all the out- of-state Mopar ' drivers, and all field supervisors in Mopar locations . (infra) save a Mopar vehicle inspection (1979) by one traveling Minute Man employee , were not em- ployed , by Minute Man. (Excluded are two temporary postal contracts , ' obtained after material time (in 1981), viz, Springfield , Massachusetts, ' to Washington, D.C., and Washington , D.C., to St . Louis, Missouri , both oper- ated by Minute Man drivers .'Although Bruno on one oc- casion thought these contracts had. started during-McMa- hon's tenure , neither McMahon 's logs or postal form 5500s , produced for the period , supported same.) All payrolls (and related ' W-2 compilations) for the driver leasing corporations were ' handled by a ' single outside computerized payroll record firm also used by Minute Man. Although separate company paychecks were ini- tially delivered to Dedham for redistribution to the given field locations , the paychecks for distribution - to out-of- state locations were always in individualized envelopes with only name of payee identifiable while in transit. 2. Minute Man -management a. Corporate officers Bruno, in addition to being president of Minute Man, also functioned as general manager . William Bowen, who had earlier served with Bruno in the taxicab busi- ness, is presently administrative vice president of Minute Man. Bowen's assigned duties and responsibilities over • all billing , bookkeeping, collection 'and payable functions, general and contract administration, including postal contract bidding, procurement ,. and administration, as well as supervision of all the required clerical support staff. Richard Norton was initially hired by Minute Man in January 1976 as a management trainee , but at a time when Bruno and Bowen -were still doing all the regular hiring and firing . After approximately 3 to 4 months of dispatching , some sales work was then added to his 'duties . In the fall of 1978 , Norton was given the title of PEOPLE'S TRANSPORTATION SERVICE ` 175 vice president of operations , with assigned main - responsi- bility for the local courier operation. At the-same time Paul Hightower served as vice president of marketing and sales. in which position he continued until he re- signed in June 1981. While so employed, Hightower also .served as safety officer; and in that capacity Hightower directed and managed Respondent 's accident program. I find it was substantially formalized and essentially fol- lowed, it being modeled after a National Highway Safety Council Program, and ignored or excepted on rare occa- sion (e.g., Bruno and Gary Schneider's fall 1979 acci- dents). Hightower was not involved in operations. In the fall of 1979, and very shortly after the initial startup of the Woburn postal contract, which itself had staged startups , Bruno was involved in a major accident; and he sustained serious injury that both hospitalized him and for a period incapacitated him from work. Bruno had initially overseen instate postal operations (as he later oversaw the out-of-state postal operations). As a result, Norton was required to pick up and cover a number of Bruno's duties, which at that time materially included (only) instate postal operations. It would appear that it was about this same time that Gary Schneider (previously working in dispatch at Dedham) was trans- ferred to the Woburn Post Office to work as a (contest- ed) postal driver/supervisor; and as well, that contempo- raneously dispatcher Tom Robinson received an oppor- tunity for development in a contested dispatcher/- supervisor job role to assist Norton in courier dispatch operations. Following Bruno 's return , Norton retained certain of his added responsibilities , including specifically the in- state postal operations . Thus, as vice president of oper- ations at the start of the material period in the fall of 1980, Norton then regularly managed all the Boston- based Minute Man courier messenger services , perform- ing all hinng , firing, disciplining , and scheduling for a complement of approximately 50 courier drivers and 10- 12 dispatchers . In that connection , Norton was addition- ally responsible for the monthly compilation and averag- ing of courier driver income production which in rela- tion to a predetermined formula then served to establish driver (incentive) base pay rate ' for the following month. Norton was also responsible for the hinng , . assignment, transfer, discipline , and firing of all instate postal, and Mopar drivers , and dispatchers . Until at the earliest in late December 1980 I find Norton had essentially no re- sponsibility or contact in management of out-of-state postal and Mopar operations . Joseph Bruno Sr . (Bruno Sr.) was the maintenance department supervisor. His re- sponsibility covered the maintenance and upkeep of all vehicles , and the supervision of Respondent 's employed mechanics , principally located at Dedham. b. Preliminary view of the position of Ken Mayo (1) Background Ken Mayo , with a . college degree previously earned in philosophy , and with his prior employment experience obtained as a high school teacher in Connecticut, was initially employed by Employer as a courier driver in March 1978. Mayo worked for Employer through August 23 or 24 , 1981, at which time he voluntarily re- signed to resume a career as a high school teacher in his hometown in Connecticut . After the- initial hire and work performance as a courier driver for about a month, Mayo received an assignment from Bruno in sales, fol- lowed by a further assignment in out -of-state operations. Under direct supervision of Bruno, Mayo at first began to share his worktime between sales and out-of-state op- erations . Mayo then became more responsibly involved in the developing out-of-state Mopar work to point of becoming a clear (statutory) supervisor approximately in the fall of 1978 ; and he had also functioned with entitle- ment of national systems manager of Employer 's out-of- state distribution operations for Chrysler even prior to the same being fully established in 1979. (2) Exercise of supervisory authority since fall 1978 Mayo has thus testified - that it was about 6 months after his initial ' assignment in out -of-state operations (about September-October 1978) that he had first hired employees in the out-of-state (Mopar) operations. By early February 1979, Bruno had concluded that Mayo's progress in (essentially) overseeing these operations was "remarkable ." Bruno at that point in time recorded also that the "professional " he had been searching for was "developing right in my own house"; and with a further recorded observation that all Mayo needed "is time." Occasion for this observation by Bruno was an in- stance of a management initiative (I find) developed by Mayo at this time in his preparation of an evaluation of Tom Wise , a field supervisor as described (though re- ferred to by Mayo as an area manager ), regularly em- ployed - in the Lexington, Kentucky area . Mayo 's evalua- tion of Wise as then constructed was composed of -a one- page rating form containing Mayo 's rating of Wise in 14 listed components of the job as identified, and then nu- merically evaluated by Mayo ' as NSM. The rating form was itself accompanied by a three-page supplemental ,memorandum in explanation to Wise of the factors con- sidered in the ratings Mayo had given Wise . (Although I find that Mayo gave the ratings , I have no doubt he would have discussed the matters of Wise ' performance generally with Bruno .) This form was entitled a monthly evaluation. It was in overall nature essentially a review of the performance of Wise as a supervisor, together with a positive , or constructive , criticism in certain areas of identified 'performance failure . Mayo has testified without contradiction that he used this form of review on but two occasions . (Mayo had notified Wise that his first evaluation would -not be put in his file.) Thus, if not earlier in the fall of 1978, it is documentarily established persuasively to me that it was no later than by this time that Mayo had been initially given the title of national systems manager by Bruno . Bruno also provided Mayo (but not McMahon) with business cards . In the same 'February 1979 review , Mayo recorded instruction to Wise in regard to an apparently previously indicated problemsome employee that "I instructed ' you over the phone several times to wam him orally , write up the next incident , and then fire him for any. future viola- tions ." (For this reason I am not persuaded to accept 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bruno's recollection it was in the spring of 1980 before Mayo had. recommended the discharge of anyone;- and that before that no one would have presumed to do that.) Neither is it to be overlooked with respect to eval- uation of other Mayo testimony that field supervisors did not have such authority. Mayo has testified that he had never seen an organizational chart for Employer. Mayo has also testified that he had made an individual effort to write a job (or position) description for the field supervi- sors but had discarded it because he found it had de- scribed their job too narrowly. Bruno has essentially re- lated that Mayo did not-become a full-fledged manager until about the summer of 1980, which essentially coin- cided with his accelerating direct management of out-of- state postal operations , as they came on line. _ Prior to the commencement of any out-of-state postal operations, the, material Mopar out-of-state operations (then) involved operation of approximately 12-14 vehi- cles,) 15-drivers, and 3 field- supervisors in the multistate areas described elsewhere. However, a significant degree of overall control of operations had clearly been central- ized in Boston. Thus immediately prior to the startup of the first D.C. to Bristol postal operations on July 12, all out-of-state driver hiring, assignment to route, and startup scheduling was then handled out of Boston, by Mayo. Field • loca- tions for (Mopar) regular truck maintenance and/or serv- ice (including fuel and tire services) apparently may have been initially established by Bruno, Bruno Sr., Mayo, or a local supervisor. Regular maintenance, however, was performed, as scheduled by Boston, essentially by Bruno Sr. Emergency repairs, by their very nature, might be performed anywhere. However, information on logistical sources for providing required emergency towing, repair, fueling, and other services were accumulated and main- tained in Boston at the TSI desk of Mayo, in a "Rolo- dex" ( rotating card index). Decisions on mechanical problems essentially came out of Boston as at that time (apparently) only Mayo and Bruno Sr. regularly author- ized required-out-of-state repairs. (However, the record suggests that one or more of field supervisors also could effect repairs, at least within certain monetary limits.) Mopar routes were in general, not as time critical as the postal schedules were to be. An overall and direct control of daily operations was also kept in Boston primarily through the daily use of an 800 telephone number, in that the (Mopar) drivers were required to phone in 'a 'pretrip inspection report that ef- fectively doubled as a check on their vehicle condition and the driver's readiness in the field to perform the scheduled trip. Related reports required to: be made to Boston on (Mopar) freight handled served to effectuate a control of shorts and damages. (Boston is used inter- changeably :with Dedham main facilities .) Thus the trip inspection report called in by the driver to Boston con- tained the driver's name, location, and vehicle number. The report on vehicle condition covered mileage, oil and 7 Mayo's recollection at one point was that there were 10-12 such ve- hicles. Other documentary evidence would more definitively indicate that there were 14 vehicles, viz 8 vehicles in Memphis , Tennessee, 3 in Lex- ington , Kentucky, I in Defiance, Ohio; and 2 in Buffalo , New York, the areas deemed material herein - fuel added, and any vehicle defects discovered.8 There was also a trip coded report made on (Mopar) route stops and pieces (delivered) as compared with trip maini- fests. -There were also time and mileage reports which were regularly' filled out by drivers, periodically collect- ed and sent to Boston. There were report compilations for various operational purposes, including (later) serving as postal record requirements, and certain reports were utilized for efficiency comparisons. However, in regard to time worked, for the more immediate purposes, e.g., payroll, and particularly after the postal 'operations were in place, Mayo would total the hours worked by the drivers from weekly schedules he prepared; and Mayo regularly turned these totals in to ' Bruno for his review and call-in to the outside payroll computer firm for timely payroll processing. Fuel reports on postal oper- ations were totaled by Mayo, and later by McMahon for delivery to Bowen for review and required, certification of fuel expenses to the Post Office for `reimbursement. Fuel charges from vendor were broken down by area and totaled by McMahon and by Mayo- when he had time. Mayo has testified that decisions on personnel prob- lems also came out of Boston; and that all pay and bene- fits questions were handled by Bruno. (I have no doubt about the latter on this record.) Mayo handled the sched- uling of vacations, but again only in coordination with Bruno. However, Mayo's testimony in regard to disci- pline or discharge by Mopar field supervisors is confus- ing, and seemingly no less inconsistent thereon than Bruno's. Mayo's credited 1979 recorded broad direction to Wise for a progressive oral warning, written warning, and discharge of an improperly performing employee has been already noted. Mayo's testimony otherwise, at least at one point, was that field supervisors could suspend, but could discharge a driver only after consultation with Boston . On other occasions Mayo has related that no su- pervisor could suspend, or fire, without a clearance from Boston. Mayo has testified that field supervisors could issue written reprimands; though then later adding,. that by and large the same were also cleared with Boston. On other occasions, Mayo related that a field supervisor (e.g., Holman) had to clear his disciplinary actions with Boston before acting on them. I am however persuaded that the clear weight of more credible evidence is that field supervisors could discipline, • including suspend, a driver, pending Boston review, but probably would not 'discharge without a prior clearance from-,Boston, but see discussion of same with regard to Chicago postal oper- ations, infra. Mayo's testimony was, however, otherwise clear and consistent that when the above Mopar field su- 8 At some time drivers initially had simply reported the amount of fuel when purchased . Subsequently fuel sheets `were regularly kept in their trucks The fuel sheets were to be filled out by the drivers, periodically collected locally , and returned to Boston where they were apparently collated by area and totaled . Much later, e g, after postal operations were esablished , Employer purchased and operated its own 2000 -gallon fuel tank trucks (in certain areas) which essentially fueled the trucks in use on certain major postal contracts , e g., in Chicago and D C. areas Fueling records were thus generated either by driver , or other local agent , at time of fueling by Employer, and the same then forwarded peri- odically to Boston PEOPLE'S TRANSPORTATION SERVICE 177 pervisors were temporarily assigned to certain postal contract areas as discussed infra, they did not have (stat- utory) supervisory assignment in those areas, but rather -were assigned there only temporarily to assist in an oper- ational startup, including clear assignment to drive in an emergency. With the exception of Olin in D.C. postal operations, temporary assignment for startup. operation (only) appears to have been the case. There does not appear to have been local discipline exercise in postal op- erations by Mopar field supervisors. Their involvement with directing the work force, corrective instruction, and driver deficiency report to McMahon is delineated infra. Mayo regularly met with Bruno and participated in annual performance evaluation reviews of all Mopar field supervisors; and Mayo has testified (with essential cor- roboration from Bruno) that he personally could disci- pline the field supervisors, but he could not discharge a field supervisor without Bruno's approval. I credit Mayo that he could discipline, but not discharge, a field super- visor. It is uncontested that an established practice for all field supervisors in the Mopar operation was that the field supervisor was expected to, and he did regularly cover for an absent driver, i.e., drive the route himself, if the supervisor was unable to effect other replacement ar- rangement. It was Mayo's testimony otherwise, however, that a field supervisor could not (apparently permanent- ly) assign a driver work without clearing it with Boston. Mayo has traveled on company Mopar business to Mem- phis, Tennessee, Lexington, Kentucky, and Buffalo, New York; and he has personally, met Mopar Field Supervi- sors Holman , Wise, and Olin, respectively. Mayo would later travel to Washington, D.C., Chicago, Kalamazoo, grid Harrisburg on postal operations. McMahon did not so travel, and he had met none of the above. There were in all eight out-of-state postal contracts on which Employer commenced operations and performed driving services in the last half of 1980. Mayo has testi- fied that the first postal drivers for these operations were hired by Mayo, generally after Mayo had first visited the several areas and conducted personal interviews of job applicants, though some interviews and some subsequent hirings were also conducted' by phone. Mayo .has other- wise estimated that he has hired 60 such individuals,in the postal operations (including replacements); and that he has hired an estimated 100 drivers overall. Thus Mayo would appear to have acknowledged hiring some 40 individual drivers in the Mopar operations (including replacements) since 'the fall of "1978. Further to be noted even at this juncture is Mayo's revealing testimony given initially -as a Rule 611(c) witness for the General Coun- sel, which was to the effect that McMahon was not there long enough (4-5 months) to have hired anyone. Mayo also developed all the initial driver schedules for each of these postal contracts.-He has made all initial and perma- nent assignment of drivers to postal routes. It was 'he who thereafter continued to prepare all the weekly work schedules and assignments which were sent to the field. Mayo has also acknowleged that the original or initial logistics for each of these several postal operations were all handled by him (both before and after McMahon was hired), though he has also recalled that Bruno Sr: had later arranged certain replacement or ' alternate repair services. There is conflict' with McMahon's subsequent participatory role in such matters, discussed infra. Pres- ently it is observed that the critical logistics, not only for Mopar routes but for the two largest postal contracts, viz, the long Washington, D.C. to Bristol and return run and for the complex Chicago postal contract would thus have been already accomplished by Mayo before McMa- hon ever started work on the TSI desk. The operational "Rolodex" thus already contained at the time of McMa- hon's commencement of TSI work all the then accumu- lated logistical information required to accomplish the services of Mopar work, and-the D.C. to Bristol and the Chicago postal contracts. It contained phone, address, and other information on the Chrysler depots and the post offices, and representative personnel contacts; all -field drivers and supervisors; and regular fuel stops, repair, and tire service facilities and vehicle rental agen- cies, at which Employer's credit had already been ar- ranged. Similarly, but separately, available to assist in-ef- fecting on-the-road-'emergency' services were National Truck Stop (T/S) guides, e.g., Mid-Continent, and ap- parently Truck Stops of America (TSA), along with se lective distribution of several company credit cards. It was Mayo who established the same with,'each subse- quent postal contract to come on line. In my view, McMahon's entry from time to time of postal representa- tives that he dealt with, or the few facilities that he had used in an emergency, was' but peripheral to the above. McMahon, as instructed, left notes on mechanical mat- ters to Bruno Sr. On one occasion he passed on the driv- er's report of a fuel station that had a better diesel fuel cut for cold weather; however, it was Bruno Sr. that es- tablished the station as a regular account., 'Additionally, Mayo, in preparation of the Chicago op- eration, had prepared a booklet, also referred to as the Chicago driver's training manual (here simply Chicago manual), which contained: a detailed map-of the Chicago metropolitan area; each and all of the' Mayo developed Chicago postal driving assignments ,' with identification of the regular driver individually assigned, by lot by Mayo to each particular such driving assignment; and a de- tailed 4 to 6 block map provided by the Post Office of the area surrounding each post office to be served under this Chicago postal contract. Mayo has described the contract area coverage of post offices served as covering the post offices in virtually every suburb north and 'west of Chicago. The Chicago manual was provided to each of 'the original 14 full-time Chicago postal drivers hired. (Mayo was unsure' whether it was also provided initially to the one regular'part-time driver employed there.) A copy of the Chicago manual was retained'by Mayo in his desk. McMahon has testified that he did not recall ever seeing it, though he did recall the Chicago schedule in a binder of some sort on the desk. McMahbn's testimony thereon is viewed 'as wholly plausible, as at the time of his initial employment on TSI work, Mayo 'had tacked up on a wall relevant area maps , displaying a rundown of all the Mopar routes, and•also the D.C. to Bristol run; and certain schedule information was also available. This is also deemed the more likely in the light` of Mayo's in- structions with regard to McMahon's contact of certain 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individuals in Chicago on problems, discussed infra, and the fact acknowledged by Mayo that when he was not -there certain operational data was for the most part kept under locked file I find at least through December. (Ex- cepted were periods when Mayo was there, and periods when McMahon was requested to do certain filings, e.g., personnel time and mileage reports.) Ken Mayo is thus understandably uncontested as a statutory supervisor, and clearly appears as the Boston- based direct manager of all out-of-state postal and Mopar operations, serving under Bruno during material times. It is essentially Respondent's contention that Mayo was the national systems manager of such operations on days, and McMahon similarly so on nights. However, some brief review of prior record treatment of Mayo and McMahon title is in `order. Thus, the General Counsel has asked that official notice be taken of certain related representation proceedings. The parties have stipulated., that Teamsters Local 25 filed a petition on October 10 in Case 1-RC-17064, a case of which I take official notice. There sought by Petitioner essentially was a unit of all full-time and -regular part-time drivers, warehousemen, and mechanics of People's-TSI, Minute -Man, General Transit, and New England Transit Services, Inc. (TSI- New England), with Employer contending, inter alia, the unit should include dispatchers and (in state) postal driv- ers.9 The General Counsel however would have it ob- served that-in representation case testimony given there- in, Bruno had specifically` identified McMahon by name as being a dispatcher and more pointedly, did so other- wise by reference to certain (instate) dispatch work and function which related to McMahon alone. Bruno clearly --did specifically so testify. Appearing however more prominently questionable, - in my view, Bruno similarly referenced Mayo as being a dispatcher for, in addition to all the above duties, Mayo has independently testified that he had no instate responsibilities. On the other hand, Mayo has testified that from time to time he on occasion drove for extra money, and regu- larly unloaded trucks, though at certain limited times. Bruno has otherwise testified in the instant proceeding, in offered explanation of his earlier representative case testimony, that his attention was then being addressed es- sentially to the question of Dedham dispatch of instate work, not to his out-of-state operations. Bruno's offered explanation in those respects, particularly on Mayo, on its face appears highly questionable. However, the TSI operations generally, and. perhaps ultimately more note- worthy, the facts about Mayo and McMahon's (primary) work relationship (on TSI) do not appear of record therein. Though so identified in representation case as dispatchers, their specific names do not appear in the De- cision and Direction of Election of December 24, in which other dispatchers whose instate duties were. more fully described of record were there (by name) found to be nonsupervisory dispatchers. All dispatchers and assist- The latter two companies appeared by separate counsel and , on basis of record revealment therein, Inter aha, of lack of common ownership, management , and participation in labor relations , and that General Tran- sit employed no employees , and appearance that TSI-New England was not in operation , the petition as to them was dismissed in that proceeding. Robert Burnett appears as president and sole stockholder of both. ant dispatchers, but not instate postal drivers, were in- cluded in the unit found appropriate in Decision and Di- rection of Election dated December 24. It is observed in passing that Schneider and. Robinson, named therein, were determined to be nonsupervisory dispatchers, posi- tions maintained by Employer therein, and throughout instant hearing , but contested by the General Counsel at hearing, and in brief, as discussed infra. Position confusion and/or development on Mayo and McMahon status continued initially in the pleadings of both parties herein. Thus, it is noted on the one hand in instant complaint the General Counsel had alleged that Mayo was the vice president of operations for Minute Man and a supervisor; and that Norton was operations manager (vice president of operations TSI). On the other hand Respondents' answer, though clarifying that Norton was vice-president of operations for Minute Man, and while admitting that Mayo was a supervisor, then described Mayo's title as being a systems coordinator for Minute Man. Moreover, while complaint alleged inter alia that McMahon was a discriminatorily discharged employee, Respondent affirmatively defended initially in Answer, inter alia, that McMahon was a supervisor only .and thus not protected by the Act. . It was thus first at hearing -that Bruno testified that Mayo was the national systems day manager'and that McMahon was' the national systems night manager. Bruno 'asserting further that McMahon possessed the same authority and responsibilities as Mayo. The General Counsel countered that, even if so entitled, McMahon was no more than a dispatcher with a fancy title. McMa- hon has denied he was ever given such a title. Mayo. has testified that Bruno had • given Mayo such title, but with reference at the time that he was doing it so that Mayo could impress Chrysler officials -with whom Mayo was then to have to deal. As noted, certain related documen- tary evidence (viz G.C. Exh. 46(c)). has in the end wholly convinced me that Bruno and Mayo testimony is to be credited in the latter respect and that Mayo had such title given him at least on or -before February 2, 1979. Its-significance in prior use is another matter. Both Mayo 'and McMahon were unquestionably regu- larly employed by Minute Man. However, even that matter did not appear fully free from some record confu- sion . There was evidence of McMahon's subsequent re- ceipt of a W-2 (for partial income produced) from TSI- New England. According to Bruno's testimony, he has reaffirmed his belief nonetheless that that company had not been operative since the spring of 1979 (though it is indicated as active in the spring of 1980 elsewhere). Whether or not it was operating during term of McMa- hon's employ, it does not appear to presently affect the material consideration , inter alia , of McMahon as essen- tially a contested Minute Man supervisor of out-of-state (non-Minute Man, but single employer) employees. This is particularly so where there is no evidence of any out- of-state involvement by TSI-New England, and where explanation of that W-2 is left in 'posture documentarily unresolved; and where it is potentially otherwise explain- able, as (alone) suggested by Bruno, as naught but a po- tential aberration of computerized records by the outside PEOPLE'S TRANSPORTATION SERVICE firm, which in the past, to his knowledge, had on many occasion issued paychecks on the wrong payroll, and which (uncorrected) circumstance may account for this' W-2 issuance. Notably involved was awareness by Bruno that the payyoll firm, had handled records for both com- panies. Moreover, though Bruno has testified at. one point that he did not have any ownership or financial in- terest in New England Transit (also a driver leasing company), his testimony in other aspects, e.g.,.in regard to possibility of its inclusion -in certain records as an af- filiated company, would indicate the contrary. However, in this instance the same appears as again as but a collat- eral matter unnecessary to resolution of the issues herein. The General Counsel had contended from the outset of hearing that McMahon . was not a supervisor. Early hearing claim of surprise was raised by ' the General Counsel 'incorrectly' over the supervisory but correctly over the managerial raised defenses. The supervisory de- fense was clearly raised by Employer in its prehearing answer dated April 21,'1981. However, the managerial issue does appear first raised of record at resumed hear- ing in November 1981. In the interim, voluminous records had been initially reviewed by the -General Counsel on the then joined issues. Voluminous records were again reviewed during resumed hearing. In that connection, to ensure that the record would reflect that Employer was not withholding documents subpoenaed by virtue it appearing that a record inquired of was not in hearing room, Employer early represented that they could have filled the hearing room with the (sub- poeaned) records, but rather, an early understanding was reached by counsel that all (subpoeaned) records need not be furnished, or (sic and) `should a situation arise (of need fora particular record) the General Counsel could ask for it (production) at that point. With the General Counsel acceding that there was an effort at cooperation to try to reduce records (presumably required at hearing) but clarifying that he never said the records subpoenaed were- unnecessary, and had waived only production of records-bearing on business relationships (presumably of Minute Man and Peoples-TSI, since stipulated). Specific ruling was then early entered of record that no adverse inference would be drawn on .whether subpoenaed docu- ments were thus timely available, nor from the circum- stance there was a later call for a document from a file not present at hearing. The refined question, or, possibility, of the otherwise heatedly contested issue of McMahon's employee/- supervisory itatus resting , in the end , on a claimed exer- cise of supervisory authority only over nonemployees of Minute Man surfaced only very late in the hearing when the employments of out-of-state postal drivers (as well as Mopar route drivers) and supervisors by these other lease companies was first revealed by Bruno .' The corpo- rate relationships only later eventually were explained by Bruno in the manner first above presented . It would appear the joined (and fully litigated) management issue would remain unaffected - in any event . In that regard I am persuaded from Mayo, indeed Norton testimony con- sidered as a whole, that neither of them were earlier even generally aware of the non-Minute ,- Man employ- ment circumstances of out-of-state postal drivers. - 179 Mayo was aware of both the existence of,-the above three lease companies , viz TSI -Mississippi , TSI-Ken- tucky, , and TMI -New York , and of their origin being with purpose to conduct Mopar operations . Mayo knew and has described in convincing detail how these compa- nies operated respectively :' out of Memphis; Tennessee, but serving . Mississippi and parts of Arkansas; out of .Lexington serving several major cities and areas in Ken- tucky; and in the Buffalo , New York operation (inclusive of a related - warehouse drop operation in Erie , Pennsyl- vania) with major distribution operation in Buffalo, Rochester, and adjacent New York areas : (He also de- scribed a related one-driver operation in Defiance , Ohio.) On basis of sufficient admissions by Mayo and Bruno, and the entire record before me, there was, I find, a stat- utory supervisor employed by each said corporation, viz, John Holman at Memphis, Tennessee; Tom Wise at Lex- ington, Kentucky; and Bob Olin at Buffalo , New York, at all material times. Mayo was also aware that General Transit had ob- tamed the Chicago `postal contract (as presumably was Norton, at least at point of his direct involvement in out- of-state postal operations). However, in -that respect, Mayo has* testified that General- Transit was the name by which they were known in Chicago. General Transit's name in fact appears on the postal contract, and regular- ly on all related Chicago post office service irregularity forms, (5500s, discussed infra), which Mayo filled out, and Norton occasionally viewed in January 198.1. As noted, Mayo performed -the hiring and firing not only, in the Mopar operations, but also in all the out-of-state postal operations. -However, in that regard, Mayo. has testified in credible manner that, to his knowledge, Minute Man was the employer of the employees he hired in all.- the out-of-state post office operations. Mayo him- self thus did not know that it was the above three com- panies who were, also leasing the drivers for the out-of- state postal operations. (Job applicants were also screened by the Post Office.) According to Norton, nei- ther was Norton aware of the latter. Accordingly, I find on this record that neither Mayo nor Norton was aware of the actual employment of the out-of-state postal driv- ers by TSI-Kentucky, TSI-Mississippi, and TMI-New York. Of the principals, Bruno alone was aware of those circumstances; and he was surely aware of those and other Mayo and McMahon related circumstances above at the time he testified in the representation, case in No- vember 1980: c. Single employer-status expanded Employer contended late in hearing, and renews this contention in brief, without apparent countercontention by the General Counsel, that under all of the circum- stances now apparent of record that TSI-Kentucky, TSI- Mississippi, and TMI-New York must also -be viewed each' and all as parts of the earlier conceded single em- ployer status of Minute Man and People's-TSI. On the above facts, and other facts of record bearing 'on that contention, particularly: Bruno's eventual and record supported testimony (and above finding) that actual own- ership and central control of labor relations over. all 180 DECISIONS OF NATIONAL" LABOR RELATIONS BOARD these companies have always actually resided in'rBruno; the nature of their interlocking business relationships now shown; and the 'uncontested, common management and overall direction by Bruno and I find de facto hiring,' firing, and. direct daily operational control (at least) by Mayo, wholly convinces me in the end that Minute Man, People's-TSI, TSI-Kentucky, TSI-Mississippi, and TMI- New York if they do notactually constitute parts of a single integrated enterprise, they have been very closely related in their respective business operations; and I find, insofar as Respondent Minute Man and People's TSI• in- terests are to be resolved in this proceeding, they all clearly constitute a single employer being ultimately owned, controlled, and operated by Bruno in the above manner, Hillside Bus Corp., 262 NLRB -1254, 1259, 1260 (1982); see also Cone Bros. Contracting Co., 135. NLRB 108, 120 (1962), enfd.. 317 F.2d- 3 (5th Cir. 1963), cert. denied .375 U.S. 945 (1963). Out-of-state Mopar and postal operations are hereinafter referred individually and/or collectively, as Respondent, Employer's TSI oper- ations. Any issue of supervisory-status of Minute Man employee McMahon, on the basis of supervisory rela- tionship to TSI non-Minute Man employees, is thus in the end to be negated as an active issue, for any further consideration, inasmuch, as the out-of-state personnel: `above listed and McMahon were all ultimately employed by the single employer found above. However, as these 'additional corporations were neither named , or served, nor are they apparently claimed to be "necessary" par- ties to this proceeding,' for remedial or"other purpose, they are seemingly not to-be concluded as formal parties herein, e g., see Contris Packing Co., 268 NLRB 193, 195 fn. 5 (1983); -and see- also Riley Aeronautics Corp., 178 NLRB 495, 499-501 (1969).' ' d. Preliminary conclusions on McMahon's employee instate duties • In agreement with the"General Counsel, it is conclud- ed that there is considerable evidence of McMahon's sub- stantial and regular contact and interface with instate courier and instate postal drivers, though on a less degree (especially as time . of employment progressed) when compared with his increasing out-of-state postal driver interfacing, since eventually the majority of the latter operated at night. There was some, but lesser, interfacing with out-of-state Mopar drivers,. since they operated primarily during the day. Although there is , record reference by Norton- as to having hoped McMa- hon in his development would have shown some initia- tive in managing certain unusual problems in regard to instate operations (at night), Bruno testified responsibil- ity-wise, that not only 'McMahon,' but Mayo, • had no management involvement in those operations that he was aware of at the 'time; and that McMahon would contact Norton on unusual instate problems. Mayo confirmed that he had none . I do not find Norton's contrary asser- tion in that regard a persuasive factor for consideration of any failing on the part of McMahon. In any event; I presently conclude and find that the weight of the credi- ble evidence has convinced me that McMahon's respon- sibility concerning instate courier, postal, and Mopar op- erations was essentially to routinely follow established dispatch procedures and other specific operational in- structions that were laid clown by Norton, which includ- ed dispatch of an identified on-duty mechanic, or named driver (par'ticularly Schneider in , regard to Woburn postal problems);' and to otherwise report any unusual problems- in those operations to Norton for additional di- rection. ' In short I find that as to instate duties McMahon occu- pied a clear employee status. Thus in agreement with the General Counsel, I find that McMahon performed regu- lar dispatching functions 'of non-TSI work, such as: in- volvement with scheduled, "time call" runs; routine dis- patch handling, of late night courier drivers (including an owner-operator courier driver, John Baker); handling customer calls on Peoples-TSI passenger service; open- ing up the garage for courier drivers and related dispatch work in'the loft in the early morning; and as well, at the end of his shift, frequently assisting day dispatchers in -handling incoming calls in the routine dispatch of work to courier drivers. • His relatio'nship'to the out-of-state op- erations, particularly in the light of rapidly expanding post office operations on which 95 percent of the out-of- state runs occurred, the majority of which would be at night, was another matter. Part II. The General Counsel's prima facie case B. Presentment of the Issues, Interrelation of the ,Contentions of the Parties,- and Initial Fact Issue Refinements 1. The General Counsel's contentions on the alleged unfair labor practices a. McMahon's employment The General Counsel's basic view of the case rests pri- marily on McMahon testimony, which is that in Septem- ber, about 2-3 weeks after McMahon's initial hire as a courier driver at Employer's Dedham, Massachusetts fa- cility, McMahon was offered and accepted a job as a night-shift dispatcher on the TSI desk, covering Employ- er's out-of-state operations. The assignment 'was pre- viewed to McMahon -by Richard Norton, Minute Man's vice president of operations, as being an off-the-road'job, that would be for not really much more money; and as one in which McMahon, if he was interested in the job, would be working for Ken Mayo. Despite any-'indication to the contrary in Mayo testimony, I find, McMahon was essentially thereafter interviewed by Mayo for the job, albeit if only to pass on his personal compatibility with Mayo on the job. The same supports McMahon's recollection of being told initially by 'Norton that he would be working for Mayo. It is the General Counsel's contention that McMahon's night TSI desk fob was pri- marily to routinely answer phone calls at night that prin- cipally 'related to Employer's out-of-state postal and Chrysler (Mopar routes) contract work, though his as- signment was to also handle any' other non-TSI (essen- tially instate) routine dispatch work that might be direct- ed: (In that sense McMahon worked for both Mayo and Norton.) Moreover, since the week ending December 14, McMahon additionally " worked, so argues the General PEOPLE'S TRANSPORTATION SERVICE Counsel, essentially as a dual function employee, having as of that time once again , commenced work as a courier and truckdriver, in addition to his continued perform- ance of regular night dispatch work on the TSI desk. In that work he would clearly be working for Norton. Employer runs a weekly payroll period beginning Monday and ending' Sunday (herein w/e), with the em- ployee paid the following Friday. The General Counsel" has established that in addition to his normal 6-day, 48- hour - TSI workweek commencing 11 p.m. Sunday and ending Saturday 7 a.m., McMahon did subsequently drive (usually a tractor-trailer, though occasionally a straight truck) in the months of December (1980) and January and February 1981; as follows: We hrs. 12/14 18.25 12/21 33.0 12/28 19.75' l/4 27.75,- 1/11 39.0 1/18 _ 31.5 1/25 41.5 2/1 27.0 2/8 6.5 In that regard , as a Rule 611(c) witness , Bruno's testimo- ny initially was that McMahon did some occasional driv- ing in the morning after he finished his night job in order to supplement his income. Although Bruno initially did not think that McMahon was paid on the basis of an hourly rate for driving, it was subsequently stipulated that McMahon was paid at the rate of $4.50 an hour for this driving. It is also clear from the above and I prelimi- nary conclude and find that the amount of driving that McMahon performed, in the period from mid-December 1980 to his discharge in the morning of February 5, cannot be viewed in nature as occasional as Bruno initial- ly described. Rather, I conclude it to have been substan- tial, indeed, averaging about 35 hours a week in January 1981, though I find supplemental . Bruno has otherwise acknowledged, and I also find preliminarily that there never was any problem with McMahon's driving. b. The General Counsel's contentions about the _ alleged unfair labor practices It is the General Counsel 's basic contention that McMahon is shown by the weight of clearly more credi- ble evidence to have performed his TSI night dispatch work at least adequately, if not admirably, until his abrupt discharge on February 5, 1981; and further, that though also having performed his driving work for an appreciable time, and ' at all times in an unquestioned sat- isfactory manner, McMahon was not afforded any op- portunity for continued employ as a driver. Rather it is the contention of the General Counsel that McMahon was discharged by Employer for the certain asserted an- tiunion reasons to which McMahon has testified, were, though factually unfounded, specifically stated to him by Norton at the time of McMMahon 's discharge interview on February 5, 1981.1 181 In the latter respect, it was early presaged by the Gen- eral Counsel at hearing that, even though McMahon may ultimately appear of record as not to have actually taken an active part, or role, in either an interim organizational effort of Teamsters Local 25 in Dedham, Massachusetts, that commenced in the fall of 1980, nor in an Independ- ent Union's organizational drive in Chicago, Illinois, that apparently commenced in early January 1981, other credible evidence (to be) presented nonetheless supports and warrants the finding to be made that Respondent in the end believed that McMahon was involved in lending his support to its Chicago employees in their union effort; and that it discharged McMahon for that reason. Thus it is contended by the General Counsel that Re- spondent was uncontestedly aware of McMahon's prior membership in Teamsters Local 25 from McMahon's prior employment listed on his application, and from his additional clear declaration of having obtained his Class I drivers license form a Teamsters-sponsored school; any further, that other clear, consistent, and credible evi- dence warrants the additional findings to be made that Respondent held animus against both Teamsters Local -25's organizational drive amoung Employer's Dedham employees, and against the Independent Union's later or- ganizational drive among its Chicago employees. It is thus the General Counsel's further contention that, in that context, McMahon has offered credible testimony of subsequent events that should be credited over claimed, inconsistent , and unconvincing denials of Employer wit- nesses . The same when credited is then argued to clearly establish that Respondent came to believe that McMahon was engaged in union activities, and he was sympathetic and supportive of Chicago employees in their organiza- tional effort; and that it discharged McMahon precisely for that specific reason. Thus the General Counsel would rely on additional evidence which it is urged should be credited that: (a) McMahon was viewed at the time as the principal one who was in nightly contact with the Chicago drivers; (b) NSM Mayo had recently interrogated McMahon about McMahon's view of the union sentiments of the Chicago drivers; (c) Mayo subsequently instructed McMahon to conduct himself in a manner calculated to project McMahon as nonthreatening to Chicago drivers, and later directed McMahon to write down everything the Chicago drivers said to him, but separately from his reg- ular daily log'entries ; (d) after McMahon - did so in a few instances, including making report on certain matters to Mayo and Bruno, McMahon stopped ; and (e) in McMa- hon's discharge interview , Norton informed McMahon that they were going to have to let him go because he was not telling Employer about everything that was going on there (Chicago); and 'specifically because Em- ployer then held the view that McMahon had not told Employer about`a recent conversation McMahon had purportedly had with a . certain named' employee about the Union, in which McMahon had first indicated his sympathy with the Chicago driver (as overheard by others) and then sought to conceal that fact from Em- ployer by telling the others present not to mention the conversation to anyone. It is thus the General ' Counsel's 182 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD basic contention that the conclusion is warranted on the totality of the -above evidence , the 'same ' contended 'as being the more credibly presented in this record, that Respondent has in fact discriminatorily discharged and refused to reinstate 'McMahon. 2. The Respondent 's cross-contentions a. General denial based on insufficiency of credible facts , - Although Respondent's principal and first' line of 'de- fense rests on its contentions that the Employer 'has not violated the Act in any event because McMahon at time of discharge-was a contended supervisor and/or manag- er, as - presented in 'Part II herein, Respondent offered a second line of defense that credible evidence does not `es- tablish that, it has committed the' unfair labor practices al- leged. Thus, essentially' Respondent's second line-of de- fense is that the evidence of record considered in its en- tirety does not warrant a - finding- that Employer- held animus towards the Union; or that it 'discharged McMa- hon for any antiunion reason. In that regard Employer has affirmed its own awareness of McMahon'' prior union membership in Teamsters Local - 25, prior to McMahon's hire; and it relies further on contended un- controverted circumstances of record (and I• preliminar- ily conclude and find the-same to be,so, at least-through period of Decision and Direction of Election, dated De- cember 24), that the General Counsel has failed to, make a showing that Employer has committed any unfair labor practices during the Teamsters organizational 'drive, let alone a more specific showing (with McMahon's .known prior membership in Teamsters Local 25) that it had en- gaged in any, individual harassment of:McMahon during -that union's organizational period. Although McMahon has testified that he had discussions with some drivers about what the -union benefits were at UPS where he previously worked, Respondent= points to the fact' that McMahon nonetheless has' independently testified (on cross-examination) that he personally did not actively engage in any union activities on behalf of that Union, nor later on behalf of the Independent Union in its orga- nizational- drive in January 198 11. Respondent would basically additionally have Mayo's testimony in' denial of any interrogation of. McMahon in January 1981 credited over McMahon's testimony that Mayo had done so; and it would even otherwise have credited, on the basis of the same being viewed as mutu- ally corroborative testimony and' thus to be' deemed as more credible in weight; the testimony of its witnesses (Bruno, Norton, and Mayo) who- have each separately' denied having formed any personal belief prior to McMahon's discharge that McMahon 'was engaged in any union activity: In those credible -eircumstances ' Eni- ployer argues that McMahon's final account of Norton, stating-as the'reason for McMahon's discharge essentially being an expression of the very opposite, is' -not only un- founded' but itself to be viewed as incredible as 'well, when considered in the light of Norton's thus more 'plau- sibly credible specific denial, especially as considered buttressed by its further- argument -of there being an in- herent implausibility - that Vice President. Norton would have made any such statement in any event at the time of McMahon's discharge, knowing only full well it would but likely bring on another charge being filed against Employer.' Respondent thus ultimately argues that McMahon's testimony on the remarks attributed to Norton are'in reality nothing more than_a fiction created by'McMahon to justify a backpay award.- _ In'regard to Respondent's argument based on mutually corroborative testimony of Bruno, Norton, and Mayo, however, Mayo did not discharge McMahon, Norton did. Mayo testified as a 611(c) witness in what must be viewed as truly significant, testimony, that prior to McMahon's termination Mayo did not know what the decision was based on. As to Norton' s denials in that re- spect and as to the content of his discharge interview re- marks to McMahon, it is the General Counsel's contra- contention that Norton is not to be credited in the light of Norton's incredible disavowal of his clear antiunion sentiment as expressed in his review of Tom Robinson on November 3, 1980. She contends his explanation of that remark is so wholly incredible as to be fatal to Nor- ton's credibility on other material union matters where in conflict with McMahon's account; and particularly so, in regard to Norton's similar denial of his own expression to McMahon of an antiunion reason as being the. reason for, McMahon's discharge. Respondent otherwise first and separately contends, as in basic defense presented in Part II, infra, that even if it were to be determined on the evidence, presented that Respondent nonetheless did believe that McMahon had engaged in union 'activities, (presumably encompassing its 'forming a belief.that McMahon had been recently ob- served being sympathetic to others engaged in union ac- tivities) and fired him for that reason, his termination as a then supervisor and/or manager of TSI operations was not protected by the Act. ' b. Specific denial supervisory discharge is unlawful -Both employee and-supervisory status and discrimina- tory discharge .,were initially - pleaded, and from -the 'outset fully litigated. With correlative regard to the Gen- eral Counsel's amended, alternative allegation, that there was an unlawful supervisory` discharge, Employer argues that thereafter 'the Board has issued its decision in Parker-Robb Chevrolet, 262 NLRB 402 (1982), pet. for review denied sub nom. Food & Commercial Workers Local 1095 v; NLRB, 711 F.2d 383 (D.C. Cir. 1983), in which the Board overruled prior Board cases having to do with all "integral part" or "pattern of conduct" line of cases in which a supervisory discharge was found to violate the Act. In'contending that, assuming. McMahon were to be found to be a supervisor, under I Parker-Robb, supra,.McMahon's discharge should be .concluded as not protected by.the Act, Respondent relies on Board state- ment, id. at 404: , In the final analysis, the instant case, and indeed all, supervisory' discharge cases, may be resolved by this analysis : The discharge of supervisors is unlaw- `ful-when it.interferes with.the right of employees to exercise' their rights under Section 7 of the Act, as PEOPLE'S TRANSPORTATION SERVICE when they give testimony adverse to their employ- ers' interest or when they refuse to commit unfair labor practices. The discharge of supervisors as a result of their participation in union or concerted activity-either by themselves or when allied.with rank-and-file employees-is not unlawful for the simple reason that employees, but not supervisors, have rights protected by the Act. In that connection, although the General Counsel, in brief, has continued to recite in "Statement of the Case" the amendment to complaint allowed on unlawful super- visory discharge, the same does not appear otherwise ad- dressed in argument advanced in the received brief. Rather, the entire thrust of the brief received appears ad- dressed to the multiple facets of arguments in support of the contention there was an unlawful discharge of McMahon as an employee, and in support of the multiple related arguments that Employer's raised defenses of his being a supervisor, manager, and discharged for cause are but hoax, and a pretext. At hearing the General Counsel's assertions, inter alia, were that certain evidence to be presented would be in nature supportive of a find- ing on the above allegation, albeit contemporaneously pressed from the start (and at end of hearing) as the basic argument was contention resting on the unlawful dis- charge of McMahon as an employee, for Employer-be- lieved engagement in union or protected concerted ac- tivities. It is first to be observed in light of Parker-Robb, supra, that there never was any contention advanced by the General Counsel that McMahon was discharged for any testimonial reason related to the Act. It is further pres- ently concluded and found that there was no evidence offered by the General Counsel that McMahon had been specifically directed (or requested) by any supervisor or agent of Respondent to make unlawful interrogations of any Chicago or Deham employees concerning their union activities, or sentiments, and refused; and/or for which refusal and/or failure to make related report McMahon was discharged. Moreover, were McMahon to be determined a supervisor, even assuming prelimimr- ily" it subsequently were to be found that Mayo asked McMahon about McMahon's - view of Chicago driver union sentiments, and/or to report his observations there- of in the future, there would be no violation of Section 8(a)(1) of the Act in such a discussion or direction be- tween determined supervisors, cf. Daniel Construction Co., 266 NLRB 1090 fn. 2, 1094-95 (1983); and on di- rected other action see Purolator Products, 270 NLRB 694 (1984). Moreover, in light of Board holding in Parker-Robb, supra, again assuming it were to be found that McMahon was a supervisor/manager , remaining' only then for consideration, on all the variables of the General Counsel 's above contentions ,' assuming any and all were supported by record evidence, would be a then highly questionable argument at best that an employer- believed instance of a supervisor/manager's refusal to report his own present or future lawful observations of employees exhibiting prounion sentiments to his employ- er, as requested; is in some manner to be equatable in nature to a supervisor's refusal to commit unfair labor 183 practices , rather than what on its face would appear its real nature to be , viz, an act of simple (albeit here argued employer-construed) supervisory support and assistance to employees engaged in union or . concerted activity, • or the same engaged .in directly by a determined supervisor, that is , as Employer essentially has herein urged it to be, a supervisory action simply left unprotected by the Act. Stated more directly if an employer request of a supervi- sor to pass on his lawful observations is lawful , it would seem to as logically follow therefrom that a discharge for a refusal , or a failure to do so , is itself lawful. Em- ployer's argument in the end is found persuasive ; indeed, it-would appear now dispositive , on basis of the Board's holdings of Parker-Robb, supra, and Daniel Construction Co., supra. 3. The General Counsel 's evidence offered in support of prima facie case a. Company knowledge of McMahon 's union membership vis-a-vis McMahon's declared noninvolvement in union organizational efforts In filling out an application for a driving job with Minute Man, McMahon had stated in his application that he possessed a Class I driver license obtained through a Teamsters ' tractor-trailer training program . McMahon also listed his prior employment with UPS in Water- town; Massachusetts . `Teamsters Local 25 represents the UPS employees locally . McMahon was a member of Local 25 . McMahon has testified independently that it was common knowledge that the Watertown UPS em- ployees were represented by Teamsters Local 25; and commonly known further that if an employee worked at UPS, that employee would be (eventually) required to become a member of Teamsters Local 25. Norton has confirmed that he was personally aware before he hired McMahon that McMahon had worked previously for UPS; that he (at least) thought one who worked for UPS had to join the ' Union ; that he knew Local 25 of the Teamsters was the union organized there ; and that he knew that McMahon had obtained his license from a Teamsters training program because Norton's practice was to always read the application carefully before hiring anyone , and that was information specifically stated in the application. Bruno has acknowledged as well that he also was subsequently made aware of McMahon's union membership , either from reading the application, or from Norton discussion , though the evi- dence is less persuasive exactly when Bruno may have become so aware . Nonetheless , I credit Norton, and I find that Norton was aware of McMahon 's earlier mem- bership in the Union , prior to even hiring McMahon. In passing it is observed that McMahon had also listed on the application, in response to the provided question. of what the applicant thought would be the most valua- ble contribution of the applicant to the Company, that he had obtained a B.S. degree in transportation , physical distribution . Norton testified, I find credibly , that both he and McMahon knew McMahon was overqualified; and when Norton made a related inquiry about McMa- hon's interest in a courier driving job, McMahon had 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then mentioned a consideration of potential for promo tion McMahon s offered contraexplanation of the appli cation that the information supplied was just a b-s- answer to a b-s- question was simply too glib and convenient to dissuade from the clear import of his own written application Norton has also testified that he had an additional discussion with McMahon one day in the parking lot in which McMahon (essentially) asked Norton to keep an eye out for him for any managerial job opening which McMahon has specifically denied When the night TSI job was eventually offered to McMahon he took a few days to think it over before ac cepting it I note in passing that Norton McMahon and Mayo were all college graduates McMahon has testified that after graduation from college he was still hazy about his career goals In light of McMahon s employment his tory and the above I find the latter plausible on this record Whether there was additional advancement con versation in the parking lot or not I am in any event convinced McMahon had indicated his general interest therein but as well that it was really Norton who had made mental notation of McMahon college background for potential advancement of both Employers and McMahon s interests McMahon was hired by Norton on September 8 as a courier messenger driver and was paid at initial rate of $4 50 per hour In the first workweek ending September 14 McMahon worked 515 hours and in the week ending September 21 he worked 57 5 hours Although McMahon had been paid considerably more per hour at UPS he had regularly worked but part time normally 15 hours maximum 23 hours on a daily schedule of a few hours essentially worked in the very early morning McMahon s view was that he could look forward to 6-7 years of additional such employment before becoming a full time employee with UPS McMahon also described circumstances of his initial employment as a courier driver which persuades me that he did not discuss pay with other drivers during those 2 initial weeks of em ployment as a courier driver I find that McMahon was generally aware that Employer had a courier driver in centive program but was not then so familiar with its operation as to be aware there were drivers who regular ly earned $300-400 per week under it McMahon would not drive again until during week ending December 14 under circumstances to be presented infra After the first 2 weeks of courser driving and some re flection on the job after it was offered McMahon volun tanly accepted the TSI night job with a starting salary of $225 McMahon regularly worked 48 hours a week on this job His hours were normally 11 p in to 7 a m 6 days a week beginning Sunday evening He started work on the TSI job the same evening Employer began servicing its Chicago postal contract at 11 p m Septem her 19 As noted Teamsters Local 25 filed its petition on October 10 At best there is earliest indication e g Mayo s notes about the need to know about employee at titudes sometime after October 4 but there is no persua sive evidence that the Employer had been earlier made aware of that Union s organizational drive at Dedham It is concluded and found that McMahon was offered and had voluntarily accepted the night TSI job before Em ployer was aware of any organizational effort by Team sters Local 25 McMahon has testified that he did have occasions to have subsequent casual conversations with some drivers about the Union that a few of the drivers did then know that he had previously worked for UPS that it was in the period of time when the Union was organizing in Dedham that he believed he was working at the time 11 p in to 7 a in and that the drivers were just asking him questions basically about what pay rates and benefits were paid at UPS and things like that However McMahon has as candidly testified that while working for Respondent he was never actively involved in orga nizing for a union No other evidence was offered as to McMahon s actual or Respondent s belief in McMahon s direct or perceived involvement in earlier organizational effort on behalf of Local 25 Bruno testified that he did not believe his employees needed a union that when he found out about Teamsters Local 25 s organizational effort in Dedham he hired a lawyer and that he thereafter sent each employee a letter stating his position on the Union That letter was not offered in evidence It is to be presumed and it is accordingly concluded and found that it contained noth ing more than 8(c) permitted employer expression of viewpoint opinion or argument on the subject of Em ployer s position on union organization of or by its em ployees Notably a copy was provided McMahon but not Mayo b Offered documentary evidence of employer animus The General Counsel however has presented in sup port of a contended revealment of Employers actual animus held towards the Union at the time the Second Annual Review of Tom Robinson prepared by Norton and dated November 3 1980 which in pertinent part states Now more than ever I need to rely on your ability to grow into the job I in giving you Our volume is up our work force is down and the union snake has not disappeared Things haven t even started to get difficult yet When it does get difficult , you have [sic] got to be the # 1 man aroung [sic] [Emphasis added ] Norton has offered in explanation that the phrase union snake was used in this communication to Robin son essentially because the work snake was a term that had been regularly used by Robinson himself for some thing Robinson did not like and it was a term to which he would readily relate According to Norton Robinson had never been a member of a union did not like unions and Robinson referred to people who were in unions as snakes Further advanced as background for the remark was not only Robinson s frequent use of the word snake but an occasion of his having given a rubber snake as a surprise gift at Christmas to air courser dis patcher Fran Gorman an individual whom it is uncon tested in this record Robinson did not like In contrast Norton has related that his own use of the word snake in connection with the Union in the communication with PEOPLE'S TRANSPORTATION SERVICE Robinson did not evidence Norton's personal view of the Union as being a problem at this time. Rather, Norton has asserted he did not see the Union as a problem at all. Nor, according to Norton, did it evidence Norton's own dislike of the Union, Norton raising in support that his father had been in unions for years. Norton otherwise as- serted that he had, utilized the phrase "union snake" in Robinson's review to alert Robinson that his dispatch job would likely be made more difficult because of Robin- son's attitude to the Union. I do not find Norton's above- offered explanations persuasive as evidencing the sole or . even operative reason for Norton's use of the phrase "union snake" when used by Norton on this occasion, was Robinson's prior use of the term, dislike of the Union, or to alert Robinson as to a personal difficulty he would have to guard against to perform successfully. First, Norton had used similar phraseology a year ear- lier in connection with Norton's evaluation of Gary Schneider following Schneider's transfer to the Woburn Post Office at a time when Respondent was experiencing great difficulties in opening up staged contracts there. In a subsequent evaluation of Schneider by Norton, ad- dressed to Bruno and dated October 29, 1979, Norton had there stated, "His assuming control of the Woburn snakepit has been his salvation." (Emphasis added.) Thus it is apparent to me on this record that, contrary to Nor- ton's assertion, he had made personal use of that phrase- ology much earlier, in communications with persons other than Robinson, and, indeed, in -context other than union, in, describing something to which Norton held personal aversion. In that connection Robinson may well have been the origin or source-for the term's catching-on in plant usage in connection with matters and things dis- liked. However, it is apparent to me.that Norton on oc- casion had embraced use of the term in his own commu- nications with employees when speaking of a subject dis- paragingly. Moreover, Norton acknowledged that he did involve himself in the effort to defeat Teamsters Local 25 during that. Union's drive to organize Employer's em- ployees at Dedham. It is concluded and found that Vice President Norton's written comment to Robinson on No- vember 3, at least in significant part, evidenced his own, and thus Employer's antipathy, or animus held against union organization at that time. Be the above as it may in evidencing employer antiunion sentiment to some signifi- cant degree, there is merit as well in Employer observa- tion that, nonetheless, no evidence was offered by the General Counsel to establish that contemporaneously during the Dedham campaign the Employer in fact had actually engaged in any unfair labor practices; nor,-point- edly, was there any related evidence offered that Re- spondent, or any of its agents, had in any manner sought to subsequently discipline or harass McMahon personally in any manner during the Dedham campaign in 1980, be- cause of McMahon's known prior affiliation with Team- sters Local 25. To the contrary, I am wholly persuaded by the presented evidence that McMahon was offered, and accepted the night TSI job before Employer was even aware of any organizational effort by Teamsters Local 25. 1 further find that the General Counsel has produced no convincing evidence that Employer had thereafter engaged in any apparent antiunion conduct in 185 regard to McMahon essentially throughout the remain- der of 1980. - The General Counsel has also introduced three other documents in evidence in support, of Employer animus. The first is a magazine article found by Norton, present- ed to Bruno, and placed in Norton's own personnel file by Bruno. The article is entitled "Busted." Employer es- sentially argued, and, in any event, I am now persuaded, that the main thrust of this article has to do with em- ployee theft, albeit also referencing Employer procedures for conducting successful investigations despite anticipa- table difficulties where a-union represents employees, Al- though I reaffirm ruling the same was relevant and pro- ducible under subpoena; upon closer analysis of the con- tents of the document, I find myself in essential agree- ment with Employer at this time that the same appears to have little in probative value in demonstrating materi- al Employer antiunion bias, nor does it provide probative value on other issues of the case. Most significantly, it is presently observed the article itself was apparently pub- lished in June 1981, thus well after McMahon's dis- charge, albeit prior to Respondent's testimony given herein. Contrary to Employer, two other documents (G.C. Exhs. 10(a) and 27(aa)); however: inartfully expressed, I find not only relevant but potentially material to several issues raised herein. The first document was in form a confidential note to Norton from Schneider-dated March 29, 1980, on the subject of new hiring in union areas; and it relates Schneider's personal views being made known to Norton at that time for avoidance of the union prob- lems completely; inter alia, by suggested employment of manager trainees. Norton has testified without contradic- tion that this document was unsolicited from Schneider; and that it was -not subsequently discussed with either Schneider or Bruno. Nonetheless Norton also acknowl- edged he retained the document, and placed the docu- ment in Schneider-'s file. The second document similarly reflects Schneider's further idea on the need and ways to keep nonunion in new opening area, essentially in urging close attention to "union scale" in the area; but also in observing that their open door policy would not be as effective without Bruno on the scene daily. Employer has elsewhere in evaluation described Schneider's loyalty as not questioned. At -the time of the document prepara- tion by Schneider, Schneider- was classified as- postal driver/supervisor at Woburn. Schneider is then, and presently contended to be, a supervisor by the General Counsel. Schneider was identified by Bruno in the repre- sentation case in November as a nonsupervisory dis- patcher. Norton's recollection was he -had transferred back as a courier driver in Dedham, though it was also acknowledged by Norton that Schneider from- time to time had continued to perform some postal. runs in Woburn. Norton's testimony on Schneider 's reassign- ments is supported by the record. More significantly Schneider- had also performed some dispatching in Dedham and materially did so in January 1981. Schne- dier's supervisory status is resolved infra. However, it is even now observed that no evidence was presented that Schneider was on duty as a dispatcher and present 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during any material conversation of McMahon with Debbie Ratcliffe on February 4 1981 discussed infra c The commencement of an organizational campaign in Chicago in January 1981 employer reaction Insofar as the record reveals there was an additional and separate organizing campaign begun in Chicago by an independent union in early January 1981 Bruno relat ed that he had first learned of that umon organizing effort from an unidentified driver calling him directly and that it was coincidental with reported calls made to Mayo and he thought McMahon within 24 hours Bruno recalled that Mayo had informed him that a (un identified) driver had called Mayo reporting people are threatening him that he s got to sign a card and what shall we do etc? Bruno has testified that no mforma tion came to him about who was leading the Chicago or ganizational drive nor did he make any attempt to find out Bruno issued the same type letter (of company posi tion) to the Chicago employees There was subsequently an election held in Chicago sometime in February 1981 which resulted in a vote of 14 to 3 against the Union Mayo relates that it was at some point in January (and Norton in early to mid January ) 1981 that he became aware that there was a unionization effort going on among the Chicago drivers However Mayo testified that it was Bruno who first made him aware of it and that his own feeling was that there was no need for a union Although Mayo testified that Bruno had never ex pressed his feelings to Mayo about a union coming into Chicago specifically Mayo also testified that Bruno did discuss with Mayo (essentially) the necessity of keeping Imes of communication open between employees and management that open Imes of communication make em ployees happy and that if you have happy employees there is then no need for a union Mayo testified that the Imes of communication were always open between the supervisors in Boston and the people in the field Mayo acknowledged that he conveyed his feelings of how em ployees should be treated to the field but could never recall putting it to them in context of so we could keep the Union out and he did not recall ever specifically mentioning the Union to Chicago employees McMahon however testified that it was Mayo who was the first one to discuss the Chicago union topic with him Thus McMahon initially related that it was in the early part of January that Mayo had said to McMahon We re having a problem and the drivers are trying to organize in Chicago Mayo denied saying to McMahon about 3 weeks prior to McMahon s termination that we have a problem and the drivers are trying to organize a union in Chicago On rebuttal McMahon reaffirmed Mayo had but then tracked Mayo s denial in time viz affirmed that it was within the last 3 weeks of his employ (thus approximately mid January) that Mayo told McMahon that the drivers in Chicago were trying to or ganize McMahon has further testified that he believed that Mayo had next spoken to him about what Mayo wanted the Chicago drivers to believe Thus according to McMahon Mayo told McMahon that Mayo wanted McMahon to let the drivers know that McMahon did not speak to Mayo regularly that he and Mayo only conversed in notes and Mayo said that in turn when he spoke to a driver Mayo would say Joe left me a note rather than Joe spoke to me According to McMahon Mayo also told McMahon that Mayo wanted the drivers to believe this because he felt the drivers would not feel threatened by McMahon It is observed in passing that the latter would compatibly relate to a renewed effort at keeping lines of communication open However Mayo has denied he told McMahon that he did not want anyone to know they spoke to each other or that he wanted everyone to think all of their communications were just through notes d The alleged interrogation by Mayo and related discussions The complaint alleges that about the beginning of Jan uary 1981 at the garage , Mayo interrogated an employee about which drivers operating out of Chicago were in favor of the Union According to McMahon it was during the last 2 weeks he worked that Mayo asked McMahon one day in their office during a morning dis cussion as McMahon was coming off duty of any of the drivers in Chicago which drivers would vote for a union On cross examination McMahon s recollection was being asked Who do you think might vote for the Union? However on rebuttal McMahon s recollection was he was asked by Mayo who he thought would be for the Union (In prior affidavit given during mvestiga tion and thus more recent to the event McMahon s recollection of the Mayo inquiry was there recorded as being who I thought was for the Union ) McMahon consistently testified that at the time he had named four employees by name viz Joe Diener Bob Grabowski Rich Hill and (as to the fourth ) told Mayo I hate to say it but Debbie Ratcliffe and that Mayo said that that s what he felt Mayo has denied he asked McMahon who McMahon thought was for or against the Union at any time and he specifically denied doing so within the last 2 weeks of McMahon s employment When further inquired if Mayo had asked McMahon for his opinion who would vote for the Union Mayo then testified ab solutely not According to Mayo it was McMahon who had first mentioned to Mayo during the course of a morning dis cussion that a certain different driver had called McMa hon up during the night the named driver indicating he wanted both McMahon and Mayo to know that he had nothing to do with the union drive that he wanted to wash his hands completely of it or wanted it clear that he was not involved in it at all and Mayo relating fur ther that that was the extent of their (McMahon and Mayo) conversation According to Mayo that was their only union conversation and he did not solicit that infor mation from McMahon McMahon thereafter specifically denied that he had ever told Mayo that the driver specif ically named by Mayo had called McMahon up to dis cuss the union drive in Chicago nor had that driver ever discussed with McMahon that driver s involvement or lack of involvement with the union drive McMahon has PEOPLE'S TRANSPORTATION SERVICE 187 testified he had no discussion with Mayo about that driver and the Union at all. ' Bruno's' testimony about conversation with Mayo in regard to employee. calls about the Union does not afford a specific corroboration of Mayo, to wit,' that Mayo made a report to`Bruno of a-call compatible:with.Mayo's -account of the McMahon-reported call' from 'the ''named employee wanting to disassociate himself from any union movement as described by Mayo. Neither did Mayo sup- port Bruno either about making a report to Bruno Hof 'Mayo's or McMahon's receiving' a call directly fromI an employee exhibiting concern about having been threat- ened or forced to sign a- card,- nor of reporting a call made to him (or' McMahon) otherwise. In short,'the tes- timony ' of Employer 's representatives in this area was neither cohesive, nor mutually supportive, in their sur- rounding details. The 'evidence presented was clearly not of a` nature that would serve to convince by its weight that McMahon's testimony of a Mayo interrogation is to be rejected out of hand as being demonstrably implausi- ' ble and/or unfounded. To the contrary, McMahon's ac- count on its face appears wholly plausible in being re- called as a timely Mayo inquiry made of McMahon fol- lowing his recent declared company awareness of a `new problemsome union organizational effort being made in Chicago. It is concluded that McMahon's testimony viewed overall is essentially consistent; and that such variance as 'does appear present, e.g., the related inquiry variance as to whom he thought would vote for, or be for the Union is, in my -view, not to be regarded as- substantial. Apart 'from Mayo's categorical denial ,that he absolutely did not ask McMahon which of the Chicago drivers would vote for the Union, Mayo's other recollections, in context of the evidence, simply did not impress or persuade me for - the above reasons, and other reasons still to be discussed, where his testimony conflicts with McMahon in regard to conversations about the Union in'this period. I credit McMahon's version. Accordingly it is concluded and found that after reporting to McMahon initially that they were having a problem, namely, that the drivers in Chi- cago were trying to organize, Mayo on later occasion es- sentially asked 'McMahon in, their office one morning during their normal discussions which of the Chicago 'drivers did McMahon think would vote for, or be for the Union, and more likely the latter. If I have any remain- ing reservation , it does not relate 'to whether such an'in- quiry was made, but on the, issue of when it was made by Mayo. In that respect, McMahon- in searching his memory seemed to recall the conversation as occurring in the office they occupied with Bruno Sr., while Mayo has testified he thought they , had moved from that office to another office sometime in December: However, on other occasion Mayo has indicated he was still occupy- ing the same room with Bruno Sr. as of January 12, in testifying he saw a note left by McMahon on Bruno Sr.'s desk. On weight of credible evidence I conclude and find that - Respondent first became aware of union organiza- tion in Chicago in early to mid-January 1981 and that Mayo's interrogation of McMahon likely occurred short- ly thereafter, more likely towards mid-January. McMahon has testified otherwise -that it was a few days later, recalling it as about'the second or third week of January 1981, that 'Mayo told' McMahon that Bryon Howard (a contested supervisor, or lead driver in Chica- go) was no longer a supervisor; and that, if any of the drivers .should ask, Bryon is now a lead driver; that he is basically' a hard worker; and that Howard was there to set an example . 'According to McMahon,' Mayo told McMahon, however, that if McMahon had any problems in the night, Bryon had a beeper, and McMahon- could still get in touch with him. McMahon relates that Mayo then said that he wanted any required phone calls to em- ployees to be made from Boston, and not from Bryon. McMahon testified that after, this conversation his view of Howard's status was that it was in limbo. If McMahon had a question he-was then to, and did, call Howard;. but if someone else were to be thereafter called, McMahon was to, and did, call that person from Boston. The Gen- eral Counsel relies on this incident, inter alia, in support of contention that'Howard was at the time a supervisor. Mayo has -denied he told McMahon that Howard was not a supervisor anymore, or was no longer going to be the Chicago supervisor, but was instead just, a lead driver; and further that he did not inform McMahon of any change in Howard's status at that time. Mayo also denied that • he informed McMahon that McMahon should respond differently. with regard to Howard's status, or respond differently to drivers insofar as wheth- er decisions were being made in Chicago or Boston. Mayo'testified specifically that there was not any change at all in Howard's duties as a result of the Union's orga- nizing effort in Chicago. (As we shall see there were changes in his duties related to the departure of Field Supervisor Castallano in the week ending January 11, 1981.) On the weight of evidence herein, I am wholly -convinced that Mayo had on.several prior occasions re- ferred to Howard as a supervisor. Whether Howard was ever, or at this- time, a statutory supervisor is a' separate issue logically arising at this time with an organizational campaign initiated by an, independent union. McMahon relates-that on the following night he had occasion to call Bryon Howard at his home.' When McMahon was unable to reach Howard, McMahon beeped him. Howard subsequently called McMahon. Re- spondent timely objected to' receipt in evidence of any conversation by Howard on basis of it being hearsay -evi- dence. It is the General - Counsel's contention that. the evidence was admissible, inasmuch as Howard was a su- pervisor, with reliance additionally on McMahon's ac- count that Mayo had initially told McMahon • that Howard was a supervisor; because' Tony Castellano, a contested Chicago supervisor, had been relieved by this time of his' supervisory 'duties, and not otherwise re- placed; and because of the contended supervisory nature of certain of Howard's conduct exhibited over the course of McMahon's employment. Respondent has essentially contracontended that Howard was never a supervisor, but was only a backup driver, who was regularly called upon because he was very knowledgeable of all the com- plex Chicago routes. Although there is no specific com- plaint allegation as to Howard 's supervisory status, the 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory status of Howard was an issue fully litigated on other material matters The issue of Howard s status is resolved infra in that connection However and more pointedly (a) there is no specific allegation in the coin plaint about a violation of the Act by Bryon Howard s conduct and (b) the General Counsel specifically ac knowledged at hearing that no separate unfair labor practice finding was being sought on the Howard McMahon conversation or on his reported conduct therein Suffice it to presently further observe that the circumstances of the Howard McMahon conversation was essentially made a subject of direct report and dis cussion by McMahon to Mayo the following day It thus appears to me from all the above that the specifics of Howard s actual report to McMahon itself is rendered a moot issue cf Albertson s Inc 243 NLRB 362 (1979) Thus McMahon testified that on the following morn ing McMahon gave Mayo a whole sequence about Howard and another employee , Timmy Drain spotting following drivers around seeing what they were doing pretnpping their trucks or whatever McMahon testified that on that occasion he also told Mayo that if any of the other drivers should see Howard, it was going to cause a lot of trouble and Howard would possibly get punched out that it would only be a negative factor as far as the union vote would be concerned and it would just sway their opinion the other way Accordingly to McMahon Mayo agreed that it was not a good idea and Mayo said that Joe Bruno had told him to do it Mayo called as a 611(c) witness by the General Coun sel, at first confirmed there was a discussion about spot ting of employees but initially testified that they were not employees employed by Respondent who were spot ting on drivers to his knowledge Mayo has consistently denied that he told McMahon that Bruno had instructed the individuals in Chicago to spot on drivers On the question of ever telling McMahon that he considered spotting of employees not to be an intelligent thing to do however Mayo s response at first was noncommittal viz he did not recall his exact words Mayo then later confirmed successively that McMahon had mentioned something about spotting that it was Bryon Howard and somebody else indeed later acknowledging the employee identified by McMahon as reported participating with Howard Mayo next confirmed their conversation was that Howard and Drain were out spotting drivers for their pretnp inspections making sure they were doing their pretnp inspections and that Mayo said he thought that that was pretty ridiculous because they called Joe McMahon with their pretnp inspections anyway How ever Mayo continued to deny there was a discussion at all about where the instructions to do that spotting came from Mayo testified he had absolutely no idea why they were doing it Mayo has further denied that he mvesti gated where the instructions to do that spotting came from and when questioned whether he instructed those personnel not to continue spotting on drivers responded I can t recall having a conversation with them, no (I would note only in passing the observation that a l keh hood that Mayo would have had no knowledge of au thonzation for such conduct regard it ridiculous, but make no inquiry nor seek any clarification thereon, simply strains credulity of him on this matter ) Mayo has otherwise testified that he did not at any time tell Bryon Howard to engage in spotting of employees In terms of past practice a year or so earlier Bruno had directed Minute Man employee Charles Carley to conduct mspec tions of equipment and procedures in out of state Mopar operations without discussion with employees The same was accomplished openly with a foreman present As a 611(c) witness Bruno had testified in early demal that he had any program whereby managers supervisors or other persons were to make secret observations of Chica go drivers to determine if they were making errors or omitting technical functions in their work Bruno identi fled Tim Dram as being a mechanic and he also readily acknowledged that Dram would tell Employer if from Drain s observation of the vehicle anybody did not pre trip Indeed Norton has discharged certain individuals for similar such reported failures When called subsequently as a witness for Respondent Mayo then testified that he did not have a conversation with McMahon at any tune during the latter stages of his employment meaning roughly last 3 to 4 weeks of his employment-with respect to the spotting of employees by Bryon Howard and Timmy Drain in Chicago How ever Mayo then went on to explain his present testmio ny, in terms of that from what he understands now spot tmg means spying Mayo thereafter asserted that such knowledge (to wit definition of spotting) was gained through course of this hearing Mayo has continued denial that Bruno told Mayo that Bryon Howard was en gaged in spotting of employees in Chicago and Mayo at this time testified that McMahon did not tell Mayo at any time that if Bryon Howard and the other employee did engage in spotting of employees and were found out they would be punched out Mayo s testimony in this matter was simply too strained in a number of particulars to be convincing by itself I credit McMahon s version of their conversation where in conflict However neither am I persuaded that spotting was either Mayo s or Bruno s term Bruno testified l mitedly he had no conversation with Bryon Howard about spotting employees in Chicago shortly before McMahon s discharge or towards the end of January Castallano who had previously performed mechanical duties left employ prior to this time Indeed Bruno testified that prior to this hearing he had never heard the expression of spotting of employees in refer ence to Chicago Bruno also testified that he had no con versation with Mayo regarding spotting of employees nor did Mayo bring the subject of spotting of Chicago employees to his attention Norton has denied that he had ever instructed any Chicago employee to engage in spotting employees in the Chicago area Norton also denied that he had any conversation with Mayo about Howard or another Chicago employee engaging in spot tmg of employees in Chicago nor did he converse with Bruno about it Although Mayo s testimony was strained Bruno and Norton s testimony was supportive Although I have credited generally McMahon s version of a report to Mayo on McMahon s being told of Howard and an other employee spotting the employees preinspechons, i PEOPLE'S TRANSPORTATION SERVICE nonetheless any statement/admission by Mayo is still too ill defined; or speculative 'in nature, to serve as direct evidence (admission) that Employer was engaged in spying on union' activity 'and thus engaged in conduct further exhibiting Employer's held- animus, particularly where allegation of related unfair labor practice is not only not alleged, but intent to do so specifically dis- avowed by the' General Counsel, cf. Albertson 's, -Inc., supra. What the incident is deemed-significant of, how- ever, is a clear instance where Mayo gave less than ini- tially frank testimony in what I conclude occurred in connection with a union-related conversation he actually had with McMahon. With more direct bearing on the General Counsel's claim of having established a prima facie case of an un- lawful discharge for discriminatory reason is McMahon's testimony that about a week prior to his termination Mayo told McMahon that he wanted McMahon to record everything* a driver said beyond the drivers' rou- tine (pretrip inspection) chcek, no "matter how-trivial it might seem to McMahon. According to McMahon, Mayo also told him to write it down on a piece of paper, separate and apart from McMalion's logs. (In ' compari- son, in a prior affidavit, McMahon had related, - "Starting about 1 a week ago, Ken ' Mayo told me to keep a sepa- rate log on scrap paper of all questions and everything•a driver said -beyond the -regular checklist:") Mayo, how- ever, has denied that he' told McMahon a week before McMahon's-termination that Mayo wanted McMahon to keep a separate log or scrap of paper of all questions and everything a -driver said beyond the regular - checklist. McMahon also testified that he subsequently did write down one or two notes; but then - more or less dropped the idea. However, McMahon has recalled and, testified specifically that he wrote down that one or two drivers were being particularly meticulous about their pretrip in- spections; and McMahon also testified that he wrote 'down that one driver,' Joe Deiner, was acting as a watchdog for -other employees, recording, "Joe called me, and told me to call a ' certain employee, -and tell him to get to work so that he could get to work on time." McMahon testified that he reported that incident to both Mayo- and Bruno . On rebuttal McMahon further reaf- firmed his earlier testimony about this conversation with Mayo, and specifically denied there was a discussion with Mayo about a new'log. (In comparison, McMahon's phone log ends on January 22, 1981, but the first of two event logs ends - January 16, and the second (continu- ation) begins on January 28, 1981. These logs are more fully explained infra.) It was `stipulated by the parties' thereafter that if Mayo were returned to the stand he would similarly reaffirm his earlier denial of this conver- sation occurring as related by McMahon: e. The discharge of McMahon and the related independently alleged coercive statement The complaint alleges essentially that Respondent; in discharging Joseph McMahon on February 5, 1981, did so for the reason that McMahon had joined or assisted' the Union, or engaged in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and thus it has discriminatorily discharged 189 McMahon in violation of Section 8(a)(3)'and (1)-of the Act. At the .outset of hearing and, in brief, the General Counsel advanced more refined argument that Respond- ent had discharged McMahon because it believed he had engaged in union activity. The complaint additionally al- leges that'Respondent has independently violated Section 8(a)(1) by Norton telling an employee (McMahon), on February 5, 1981, that he was being discharged because McMahon had sympathized with an identified union em- ployee (Debbie Ratcliffe) in Chicago and the Union. ' McMahon was discharged on February 5, 1981. McMahon's version is that about 7 a.m. (thus at the end of McMahon's shift), Norton asked McMahon to step into Norton's office and shut the door. McMahon did and they were then alone. According to McMahon, Norton at first said, "We -have to let you go." McMahon asked why. Norton then said, "You're not telling us every- thing that's going on." McMahon,-asked 'Norton what Norton meant by -that. Norton replied, "Yesterday you spoke to Debbie Ratcliffe." McMahon then acknowl- edged that he had. Norton said two other employees had overheard McMahon's conversation; and that what they gathered from McMahon's conversation was that McMa- hon was talking about the union matter in Chicago with Ratcliffe; that McMahon was sympathizing with Debbie; and' that, after that conversation, McMahon had- turned to, the other two employees in the office and told them not to mention anything in regard to McMahon's con- versation. There is 'no call entry on this matter in the event log for February 3-5.' However, there is a confirm- ing entry noting Ratclifee's daughter's hospitalization on February 2, 1981; and arrangement made of Grabowski (also previously identified as being for the Union by McMahon) covering Ratcliffe's run, and McMahon's ap- parently then arranging that driver Lenny Pales would cover for Grabowski.' McMahon' has on other occasion testified that it was rare that he called 'a driver directly, though he also has testified that by this time he had re- ceived instructions that he should consult Howard, but make any required.call directly from Boston to the em- ployee. McMahon testified that he then told' Norton- that he had not spoken to Debbie Ratcliffe about the Union; and that such a conversation had never taken place. McMa- hon also told Norton that he had never spoken to any of the Chicago drivers about the Union. According to McMahon, Norton only replied, without naming the em- ployees, "What can I say, it's two against one." Norton then handed McMahon two paychecks (both dated Feb- ruary 4, 1981), and that was it. McMahon thereupon left the building. McMahon has specifically denied that he had ever discussed the topic of the Union with Debbie Ratcliffe nor had Ratcliffe with him. McMahon also denied,' that he had ever discussed the Union with any Chicago 'drivers, excepting 'Bryon Howard, whom McMahon viewed to be a supervisor. On cross -examina- tion McMahon specifically affirmed that he,had not en- gaged in any union activities on behalf of the drivers in Chicago. - McMahon otherwise testified that he did have a con- versation on February 4, 1981, about 5 a.m., with Rat- 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cliffe and he recalled that at that time he was in the dis patch loft McMahon was sure there were others present but never could recall who was there at the time Re spondent s hearsay objection to McMahon s recitement of the purported conversation Ratcliffe had with him on that occasion was upheld but McMahon was allowed to testify about his own statements made in the presence of others in regard to that call which according to McMa hon was only that he had asked Ratcliffe how her hospi talized daughter was doing and that that was the extent of his part of the conversation with Ratchffe in the pres ence of any others in the loft on that day Notably McMahon did deny that he had turned and discussed this conversation with anyone at the time thus testifying as to fact not supportive of his own recollection of Nor tons recount of what had been seemingly reported to Norton but supportive of his own account that he was not then discussing the union organizational movement with Radcliffe and had not tried to conceal such Norton has denied that in McMahon s discharge mter view he told McMahon that McMahon was being terms nated because McMahon told an employee that he sym pathized with a particular employee in Chicago and with the Union nor had Norton implied McMahon was being terminated because he sympathized with Debbie Ratcliffe Norton denies knowledge at termination that McMahon was engaged in any union activities on behalf of employees in Chicago and Norton asserts that it had never entered his mind Norton also specifically denied he told McMahon that two people had overheard McMahon talking to Debbie about the Union Norton as serts there was no reference (in the discharge interview) to McMahon s conversation with any Chicago drivers and (essentially) that McMahon was discharged for poor work performance to be addressed in the consideration of Respondents defenses McMahon has testified that there was no discussion of his work performance or TSI operations, in his exit interview Preliminary analysis and conclusion It is apparent that if McMahon is to be credited in his version of the discharge interview the General Counsel has made out both a clear and strong prima facie case of unlawful discharge of McMahon by Respondent in viola tion of Section 8(a)(3) and (1) of the Act Without that conversation (essentially an admission) the General Counsels prima facie case is much less forceful relying as it then necessarily does on inference It is fairly to be observed firstly that there is no corroborative testimony offered in support of McMahon, not on his conversation with Ratcliffe or Norton On the other hand neither does Norton have corroboration on his version of the discharge interview content The available telephone logs did not extend beyond January 22, 1981 However no evidence was offered that a call from Ratcliffe was not received by McMahon as he claimed about 5 a in on February 4, 1981 Notably those assertedly present with McMahon during his conversation with Ratcliffe were not recalled by McMahon and never identified Drivers would be in the building at this time and likely a dis patcher Norton s version disclaims such predicate for McMahon s discharge and the noncall of any dispatcher on duty at 5 am by Emloyer is in one sense under standable from Employers (contention) vantage point However there is as a result , no attack of McMahon s account of that incident I credit McMahon about the in cident s occurrence The preparation of discharge checks on February 4 1981 is compatible The more consistent and credited evidence in summa ry is that McMahon was successively asked by Mayo which Chicago drivers would favor the Union, that McMahon initially identified Diener Grabowski and Hill adding with reluctance Ratcliffe that he was also instructed by Mayo to keep separate notes on the Chica go drivers, that he did so in a few instances (including on Diener) reporting to Mayo (and Bruno) that Diener was being especially attentive about getting employees to work on time but that McMahon soon stopped making such reports and that he did have subsequent conversa tions about Ratcliffe, the first of such involving Gra bowski s cover of Ratcliffe s absence and McMahon s arranging of cover then for Grabowski (apparently with out intervening call to Howard) on February 2 and the second on February 4 directly with Ratcliffe McMa hon s conversation in the latter being in nature both sym pathetic and very timely to his discharge Such facts in combination with Employers knowledge of McMahon s prior allegiance to a union are wholly congruous with and supportive of McMahon s version of his discharge interview with Norton Norton s dental of the statement evidencing union causation in McMahon s discharge in contrast must be evaluated for present prima facie case purposes in the light of his credibility in earlier unpersua sive explanation for prior use of the union snake remark evidencing his hostility to the Teamsters Local 25 Dedham organizing campaign It also must be evalu ated in the present light of Mayo s 611(c) initial testimony that at the time of McMahon s discharge Mayo who was far more directly involved with McMahon in Em ployer s operations, did not know the reason for McMa hon s discharge at the time of discharge Although there remain s some doubt emanating from Employers one re maining argument on this matter viz that Vice President Norton who impressed me as being an astute manager would be unlikely to have made such a damaging admis sion because of its likely foreseeable charge conse quences nonetheless the same consideration is not deemed one compelling in the framework of the above presently considered evidence, cf NLRB v J W Mays Inc 356 F 2d 693 698 (2d Cir 1966) Moreover the General Counsel has presented other significantly sup porting evidence that Norton held such view even earls er Thus in connection with McMahon s testimony that he shortly stopped making any reports to Mayo it is fur ther observed that in Norton s evaluation memo to Bruno dated February 2, 1981 in which Norton essen tially first recommended discharge of McMahon there appears inter aha Norton declaration Ken also says that he is not getting all the information he should be from Joe on personnel problems There is no issue con PEOPLE'S TRANSPORTATION SERVICE cerning Norton's authorship of this memo.' °' Although his February 2 review was written before the February' 4 call of'Ratcliffe which was related by McMahon as the specific subject thereafter referenced by Norton to him in the February 5 discharge interview, it was also writ- ten after the time McMahon has related at hearing that he had stopped making the special reports to Mayo that he has testified were earlier requested of him by Mayo. In that respect it may be observed that from McMahon's prior affidavit it is apparent that McMahon's testimony at hearing about Mayo's making a request for separate record of information, and that McMahon did so in the certain above particulars, was clearly not of recent hear- ing fabrication, though it does appear that the affidavit is silent on the aspect of his having stopped making such reports. McMahon would not have known of the Febru- ary 2 Norton review declaration at the time he gave the affidavit. However, the written declaration contained in Norton's February 2 review memo itself confirms that it was reported by Mayo that McMahon had not been giving Mayo all the information on personnel problems. Moreover, if it did not involve the very same matter later brought up in discharge interview, it relates clearly in timing and in essential supporting character to a gen- eral statement first attributed to Norton by McMahon in their conversation, viz, that he had to be let go because he was not telling them everything that was going on. It was thus notably thereafter, and upon McMahon's in- quiry as to what Norton meant , that Norton responded with a further specific example of the most recent in- stance of the observation and report on his Ratcliffe con- versation in which McMahon was believed to have evi- denced similar failure, this time in stated union context, and with attempted concealment. In short, McMahon's account of events leading to his discharge was essentially cohesive, not only internally but with Respondent's own records; and the testimony of McMahon on the various components of the General Counsel's offered prima facie showing is with appearance of being essentially consistent throughout, certainly dis- cernibly more so than that of Mayo, or of Norton testi- mony offered in response thereto. In that sense it is war- ranted to be viewed as the more plausible, indeed proba- ble. Although the issue of Norton' s damaging admission may remain one not free from some lingering doubt, McMahon's testimony as to it, in the end, is supported by substantial evidence of record otherwise. In contrast Norton's denials of it suffers still other denial infirmities. It is accordingly concluded. and found that the General Counsel has made out a prima facie showing sufficient evidence to support the inference that it was Employer's belief thai McMahon was engaged at this time in protect- ed conduct that was the motivating factor in Employer's decision to terminate McMahon, in the showing made that McMahon, who was known by his Employer to 10 To be sure, Mayo would subsequently testify that the above state- ment attributed to him by Norton was not precisely what he had told Norton, Mayo then asserting that what he had conveyed to Norton was that there were personnel problems out in the field which were not being handled properly. The fact is that neither. subject (Norton's statement or Mayo's hearing assertion) appears in Mayo's own written evaluation con- temporaneously made to Norton 191 been previously supportive of a union, and who was in a major sensitive position vis-a-vis its Chicago drivers, some of whom were reported to be favoring and engaging in union activity, was believed by his Employ- er not to be telling Employer all that was going on there as instructed; and also warranted to be directly conclud- ed on the basis of Norton's stated admission of having re- ceived a`recent report of an unreported McMahon con- versation that led it to believe, that to the contrary, McMahon was not only observed actually being sympa- thetic to the union activities, sentiments, and aspirations for, union organization of its Chicago drivers, to which Employer stood in declared opposition, but was reported as having attempted to conceal it. Actual engagement by McMahon in any such union activity is irrelevant where the belief of such is Employer's operative consideration in effecting discharge, ' cf. Monarch Water Systems, 271 NLRB 558 and see cases cited in fn. 3 (1984). Accordingly, it is concluded and found that the Gen- eral Counsel has presented a prima facie case: (a) that Respondent Employer discharged its employee Joseph McMahon on February 5, 1981, in violation of Section 8(a)(3) and (1); and (b) that on February 5, 1981, inde- pendently, Respondent Employer, in violation of Section 8(a)(1), had informed its employee Joseph McMahon that he was being discharged because of a report recently re- ceived by Employer that he had been observed being sympathetic on the phone with a Chicago driver about activities, sentiments, and aspirations for union organiza- tion of Chicago drivers, and essentially that, rather than telling Employer everything that was going on as in- structed, had thereafter attempted to conceal it. Al- though Employer was aware of McMahon's driver train- ing received at a ' Teamsters-sponsored school and, as likely, of his memberhsip in Teamsters Local 25, prior to employment by Employer, McMahon since hire was not openly active for Teamsters Local 25, nor for the Inde- pendent Union in Chicago prior to Mayo's interrogation. It would not be a violation of the Act for Mayo as na- tional systems manager to formulate his own opinion concerning any individual's union sentiments, Tipton Electric Co., 242 NLRB 202 (1979). However, Mayo's in- terrogation of McMahon about McMahon's opinion ef- fectively placed McMahon as an employee dispatcher in the position of either identifying to his superior which of the Chicago drivers McMahon thought would be for the Union, or McMahon reasonably risking the disfavor of his Employer, who had already declared its opposition to employees organizing a union, thus constituting an un- lawful interference with the free exercise of Section 7 rights by employees. Moreover, as other unlawful con- duct has later occurred in connection with McMahon, indeed found essentially to have occurred because of Employer's more recent belief McMahon had failed to do so, and rather had attempted to conceal union con- versational developments, the Board's holding in Ross- more House, 269 NLRB 1176, 1178 and fn. 20 (1984), would appear to indicate this form and circumstance of interrogation is one of nature to be concluded violative of the Act. Finally, no effective justification for Mayo's interrogation of McMahon was shown, e.g., as extension 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of and directly related to Employers own 8(c) expres sion of viewpoint argument or opinion such as was considered in A & E Stores 272 NLRB 737 (1984) Ac cordingly it is further concluded and found that Mayo s interrogation of McMahon was violative of Section 8(a)(1) of the Act Part III Respondent Defenses Preliminary Statement Respondent defends firstly and most vigorously that even if it be found that McMahon was discharged in some manner for union activity the Act was not thereby violative because at the time of McMahon s discharge McMahon was a statutory supervisor and/or manager Respondent urges otherwise that if it be determined in those discharge circumstances that McMahon was nei ther a statutory supervisor nor a manager it is important in the review of the evidence to be undertaken that it be observed that that was what Employer had viewed McMahon s status to be at the time of discharge Regard less of that consideration Respondent also defends that McMahon s performance in his TSI job assignment had become so demonstrably unacceptable by the time of his discharge on February 5 1981 that Respondent would have discharged McMahon at that time in any event be cause of his continued and increasing failures in the per formance of his night TSI work The General Counsel answers essentially that Respondents defenses are hoax and pretext and that to the contrary Respondent is shown additionally to have treated McMahon disparate ly Most of the litigation and most of the voluminous ex hibits received of record were generated by the parties in pursuit of evidentiary support for their above conten tions but more so or centrally on the basic issues relat ed to supervisory/managerial issues All evidence ad vanced by the parties thereon has been considered C McMahon Statutory Supervisor and/or Manager or Nonsupervisory Dispatcher Monitoring Night Operations 1 Employers nonformahzed structures As a 611(c) witness Bruno early testified and I find that Employer had no formalized or published structure no structured pay and benefits program and essentially no formal procedures (other than those associated with its accident program) Bruno ran the operations the way he wanted Bruno frequently set pay and the benefits on basis of his assessment of the attributes of the given indi vidual and granted raises on the basis of his view of the performance and/or contribution of the individual He has testified he might withdraw an established benefit from an individual for poor performance or grant a new benefit for good performance Pay and benefits appear presently as not systematic It is concluded Employer cffers no assistance in identifying or distinguishing statu tory supervisors managers vs nonsupervisory dispatch ers drivers or other employees material for comparison Although Employer issued a driver handbook with stated rules for plant order any discipline and discharge for violation was vaned by Bruno s Norton s and Mayo s approach and application I also credit Bruno that he did not then or now have a set policy of a pro gressive system of discipline nor a policy that all disci phnes be in writing thougl• I also find some form of pro gressive discipline might be followed in given cases and managers might and regularly did record a variety of failings and discipline in files in various manner Bruno relied inter alia, on Norton and increasingly Mayo to di rectly run the operation under broad guidelines of policy as he directed but then without much structural memo writing Bruno has testified that prior to the Board hearings he never gave a thought to consideration of statutory defuu tion of supervisory powers as such in supervisory and/or manager assignment There are a number of occa sions of record where an employer representative has asked an employee to perform some isolated act that ar guably partook of supervisory function Although from time to time a document describing duties of an individ ual has surfaced I find there was no formal program of job or position description There were written memo references to assignments of various managers junior manager or management trainees most of which Bruno asserts went nowhere either because the underlying job concept proved to be essentially a bad unworkable idea or because the individual simply never developed in the envisioned job In many instances I am persuaded by record evidence presented that was the case It would serve no useful purpose to reflect further the details of each and every such instance It is enough to find it as established background in this case What is more nota ble is that both Mayo and McMahon have testified credi bly that Employer never gave them a written job or po sition description of their assigned TSI work In essence assignments were made orally and from time to time 2 The NSM night contention Essentially the argument advanced by Employer is that like Mayo who is an uncontested statutory supervi sor and manager of TSI and who possessed a title of NSM and worked during the day McMahon was Em ployer s NSM at night with according to Bruno the same responsibility and authority There is no contest that during all material times Mayo was a supervisor within the meaning of Section 2(11) of the Act Bruno has testified that Mayo had func tioned as a full fledged manager since the summer of 1980 though Norton s view was that Mayo had acquired more responsibility through late summer into the fall of 1980 According to Norton up until that time Bruno had been running day to-day operations with Mayo acting more as Bruno s agent in carrying out Bruno s mstruc tion Bruno himself had very early testified that he did not think Mayo executed the power to discharge The record however fully supports conclusion that Mayo was functioning as a manager in regard to the startup of the first postal operation in July though I have no doubt that Mayo continued to work under direct supervision of Bruno at all times and that he frequently consulted Bruno on matters of discharge I also have no doubt on the record as subsequently developed that Mayo both PEOPLE 'S TRANSPORTATION SERVICE discharged , and effectively recommended the discharge of, employees , discussed infra. McMahon has testified that McMahon was' only told he was -hired as a night dispatcher on the TSI'desk; but that •he .was never told that he was the NSM at night, nor informed that he was a supervisor.- Brutio 's`=testimony as.;a 611 (c) witness initially was that McMahon was a 193 ible evidence , would support that neither Bruno nor Norton did so formally , either. 3. Contentions of'McMahon 's managerial and actual exercise of supervisory ' authority In contrast Employer, nonetheless , contends that manager -in September , when he first took the job : In McMahon was both developingly assigned , and/or of job that . general regard , however , certain testimony of Mayo necessity actually exercised statutory supervisory and/or is more -revealing and weight of evidence wholly con managerial authority . Wliether this is so involves the real vincing of the contrary. Mayo has testified , contrary to Bruno 's initial asser- tion , that he did not know if he ever explicitly told McMahon that he was a manager ; that it was not= Mayo's position to give to - McMahon , as he did not hire McMa- hon, but was only to , train him in the TSI job ; and that none of McMahon 's replacements (successively- Jim Peyton , Mike Braziele , and William Carrol) were manag- ers of TSI work when they were initially hired. Mayo also testified that no one came up and (either) • said to them "you are now a manager ," or sent an informing letter of congratulations at becoming a manager . It is ar- guably ambiguous whether Mayo testimony as given in this last particular was applicable to McMahon as well as to his three subsequent replacements to whom it was clearly directed . However, from the above and- other re- lated Mayo testimony , e.g., that the result (of the nature of the replacement hired ) was that it was back to Mayo's receiving calls on unusual circumstances as before clearly persuades me that was also earlier the case with McMa- hon. I • I - When- Mayo first approached - Bruno in August about the need for someone to be on nights , Bruno initially suggested that a new tape answering machine on,-order could handle the calls (e.g.,' on • pretrip - inspections). 'At that time - the, D . C. -to Bristol contract was already in place and it -provided for a number of night operations. When Mayo worked 'on and ' established the driver sched- ule for the Chicago operation, he determined that the best he could arrange was for four full shifts (two on day, and two on nights), and the rest were required to be split shifts with work runs occurring both - in day and night . Thus half of this major contract would be operat- ed at night, with , because of the split shifts ; even more' than half the assigned -drivers , inter alia, apparently working both night and day runs. I am convinced that it was this ' consideration that occasioned • Mayo ` td, realize immediately that he could not handle phone calls of both ; to bring it to the attention of Bruno ; and to eventu- ally persuade Bruno that someone had to be present at night-either Mayo , or someone else. To be sure, the tape could handle recording of pretrip inspections ,- but it could not handle 'everything else that might be required, e.g., the handling, even routinely,- of no-shows , lates, breakdowns, etc. McMahon 's December 4 review and weight of documentary evidence , discussed 'infra, are compatible . All of the above strongly supports McMa- hon's denials and, would as strongly confirm - that McMa- hon was , never explicitly told that he was the NSM at night . It is concluded and found McMahon never was so told by Mayo ; and I further find that the weight of cred-' and most difficult factual issues in conflict in this case. Employer would first have the Board be attentive of the circumstance that , in the material ' period of McMa- hon's , employ on the TSI desk , there was a markedly sig- nificant growth in Respondent 's business, particularly in its out-of-state postal operations , as support for its further argument that there was necessarily a related substantial expansion in McMahon 's duties and responsibilities in handling and managing TSI work at night . As earlier found , that =increase of postal work was 'substantial and had progressively impacted after July, in the mind, in successive months in the period of early fall to early De- cember (which notably coincides essentially with McMa- hon's initial assignment on TSI work through his first 60- day review period on December 4). Employer would have it next observed that as this out -of-state postal con- tract business increased , with its notable increase -of ex- acting schedules ;. the winter season had concurrently de- scended upon Employer bringing its own set of varied, increasing , weather-related operational problems. That circumstance , in turn , was itself soon compounded-by an additional seasonal -business operational burden placed on Employer of having to provide significant extra Christ- mas runs as required by pre-order of certain of the post offices served, in the main , Chicago (50-60 trips), and pursuant to previously provided post office extra run .schedule ; but also otherwise by, given post office, on 4- hour notice, per contract terms. There is no question that the material ,period of alleged unfair labor practices fol- lowed a period of major TSI business expansion for Em- ployer,, and 'unquestionably increase in work handled, though there is `also Employer testimony that when McMahon was first placed on- the TSI desk the work as- signed to him was then - felt not enough to keep him busy. It is in this overall view of Employer 's expanding busi- ness , and, indeed , its acknowledged experienced , increase of service problems; that Employer's basic • argument nonetheless rests that -the increasing problems Employer encountered ' in adhering to fixed time-sensitive postal schedules, as required by the out -of-state • postal con- tracts,- essentially fell increasingly and necessarily upon both Mayo and McMahon to handle. Employer further asserts in that connection'that while it was initially unex- pected that it would be so,, as its actual awards - of postal work on successful competitive bid by Employer had later , developed , a majority of the scheduled mail pickup and delivery work had to be performed at night. It is thus Respondent's-related contention that it was neces- sarily left to a daily exercise by both Mayo (on day) and McMahon (at night) of their own developing expertise 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and independent judgment as to how best to keep to a minimum any disrupting effects of encountered problems in effecting delivery of the contracted postal services on schedule, or as near as possible The question becomes in those circumstances did McMahon act as a supervisor/ manager even if he was not explicitly told he was 4 Contended supervisory/managerial actions Respondent has itself described McMahon s own logs (but the same also clearly constituting Company records) as primary uncontested documents on which it relies to establish (a) that McMahon has in the manner acted in a supervisory and or managerial capacity and (b) as also recording instances where it is claimed he had improper ly performed TSI (particularly postal) work These logs three in number were essentially kept by McMahon over the 4-5 month period of his employment Two of such logs contain essentially chronological (date and time) recordings of events with the second being a con tinuation of first These two logs (herein collectively re ferred to as the event log) were kept pursuant to Mayo instruction McMahon kept the event log in a more de tailed manner than he had been initially instructed by Mayo to do McMahon explained credibly that he had done so as a more or less diary type aid for himself in making his report to Mayo every morning on the prior evening s notable happenings The third-described log was essentially companion to the event log, and it was a chronological log of telephone calls received or placed during his shift with an occasional brief note added as to subject matter discussed reason of call or some other data, which McMahon jotted down as also notable or significant McMahon kept this phone call log essentially during the same period (through January 22 1981) and though he kept this log wholly on his own he did so also within the approving knowledge of Mayo who would regularly consult it as well as the event log in Mayo s addressment of McMahon s morning review of the nights notable events There was a fourth log re called by McMahon as a continuation of either the event or phone log (more likely a phone log) which for an in determinate reason, was not available for production at time of hearing Although Bruno on one occasion has as serted that Mayo regularly kept a log for McMahon the fact is he did not though Mayo has asserted that he always left McMahon a note on something McMahon had to know on his shift There is no question that the logs maintained by McMahon were more encompassing and were especially well suited to serve a purpose of an effective extension of Mayo supervisory and managerial control of TSI night operations both in regard to emer gency handling and recording of unusual events as well as regular recording of reported deficiencies in TSI em ployee attendance and/or job performance for subse quent evaluation correction and/or discipline of others The issue of whether McMahon was but a monitor of night operations (including mere passing on of reports of employee misconduct) is a real one see RAHCO Inc 265 NLRB 235 247 fn 22 248 (1982) a Contended supervisory/managerial work functions recorded in logs Employer relies on a significant number of daily en tries in these logs all of which were uncontestedly made by McMahon along with a correlation of its own wit nesses supportive testimonial recollections on certain specific events and calls recorded therein Respondent thus argues that certain such described incidents show that McMahon has effectively made assignments or issued instructions to employees by regularly arranging driver coverage for an absent or late driver (though far and away most frequently shown utilized in Chicago and accomplished by McMahon s first call to Bryon Howard or Tony Castallano contended by the General Counsel as being supervisors in Chicago) by an occasion of McMahon having directed an on-duty driver to wait to do an extra run (though it was standard procedure that last driver working would take extra run) or by an occasion of having directed a driver who had expen enced a breakdown to swap his load (though at How and s suggestion) by regularly adjusting meet points be tween two drivers (or in Kalamazoo directing that one of them complete a run) in order to keep at least the one underlayed driver on schedule the same becoming a practice in regular use on the Kalamazoo, Michigan to Gary, Indiana run and the Prince George Maryland to Roanoke Virginia run (though initially effected in emer gency on driver suggestion then used reported by McMahon approved by Mayo and subsequently routine ly used by McMahon) by notifying a local mechanic that he should perform a repair e g, fix a previsouly re ported flat tire (though the duty mechanic was one des ignated by Norton) by authorizing a new driver to drive without assistance (though on Castallano and Wise direr tion) by having authorized (unscheduled) extra runs and arranged for driver coverage by an acceptance of Post Office request (though without McMahon having discre tion to refuse such request, but to the contrary with con tractual obligation already resting on Employer with concurrent Mayo instruction for acceptance and with subsequent notice of the requested services then pnnci pally passed on to Ed Lawrence also a contended super visor in Washington, D C) and by having assertedly au thorned and/or granted time off by act of arranging a cover for a driver who had reported a personal car breakdown and that he would not be in, or by recording that a driver for some other reason would not work a certain shift and that another driver would cover (though far more regularly being arranged by another by Castallano and/or Howard in Chicago but occasion ally by others e g Keith Uglow a contested field super visor in Harrisburg and in all occasions with circum stance of absence lateness etc always recorded and re ported to Mayo and with various employee absences, etc in other departments similarly recorded and report ed to others) Respondent has contended that McMahon had other wise formulated a new company policy in addition to es tablishing a policy of adjusting meet points in directing that all drivers were to call in one half hour before their regularly scheduled departure time (though contracts in PEOPLE 'S TRANSPORTATION ` SERVICE dependently required - all drivers 'to be present at the post office at that time); had authorized both towing and re- pairs, including a performance of the same , and fueling by a new vendor (though only in emergency); on Decem- ber 25 , had alone arranged for a replacement vehicle from a rental company (Ryder) for • a then long broken=down rented (Ryder) vehicle (though -on general instruction of Vice President Norton to do what he could to handle the problem on Christmas Day); had granted an advance of funds, ($250) to a driver in the field , on request (though again in emergency, with the driver reporting his prior and outstanding submission of a $220 claim on major ex- penditures for expenses had remained unreimbursed); had authorized an exchange of a: credit card (apparently tem- porarily) from one employee who did not have immedi- ate use for it to another new employee who did , in con- trast with existing policy of having a driver initially-sign for a credit card at time,of distribution, (though in • an emergency situation and on:suggestion of Uglow in Har risburg and reported to Mayo ); and had both instructed ' q driver to continue in adverse weather conditions if there' was mail on board to be delivered (though pursuant to.estab- lished postal and company policy), and contacted related post office, to secure mutual agreement to shorten a run, if not; and as well, was in r̀egular contact with various post offices to keep them . fully informed, and thereby . regular- ly acted to preserve good customer relations., In connection with McMahon 's actual work functions at night, apart from routine local ' courier tasks earlier considered , throughout the hearing the General Counsel maintained that McMa . hon's part in the dispatch of a driver to cover an absent or late driver ; or his assistance provided to a driver in sending a local mechanic ; his ar- ranging , towing; or other repair , services; - his adjusting meet points ,on a driver 's report of delay ; and his early notification of affected post offices, etc., was all accom- plished routinely , under established procedures, and/or accomplished on an : emergency basis , itself pursuant to' standard instruction .; Bruno's related testimony as, 611(c) witness was. initially critical that McMahon, inter alia, failed to follow established standard operating pro- cedures in effecting= repairs .- The General Counsel would have ' itMotherwise observed ; and has argued'in compari- son, that'courier ' dispa-tchers regularly assign and-reassign work between drivers on routine operatioiial consider- ations ; they regularly notify customers of delay ; they are directly involved in maintaining good customer -relations; and ' they have also notified Norton when ' a courier driver refused a run . The record supports those conten- tions . Indeed , Norton acknowledged that it was a routine part of a dispatcher 's' function to report unusual inci- dents, customer complaints , difficulties , etc. Bruno also received, weekly customer service reports that would cover reported courier driver deficiencies .,, McMahon's use of an unscheduled facility was done , only in an emer- gency and he did not set up any permanent service facili- ties, though a facility previously used in an emergency might be recorded for' possible, emergency use again. Moreover, in comparison ; a' local Dedha"m mechanic could determine whether repair work was to be per- formed by a nearby service facility , or towed consider- able distance back to Respondent 's mechanical shop. The 195 mechanic could also substantially pledge company credit in order of parts , etc. , b. Contended log evaluations of employees Respondent has urged - that McMahon 's own logs reveal that McMahon has evaluated driver performances. Argument is based on McMahon "log comments • regard- ing: (a) Chicago. driver Harold Ralston 's "surly attitude" on November 10; (b) a "Delirious call" made by Chicago driver Marvin Hamilton ' on December .6; (c) claimed on- going criticism by McMahon of Kalamazoo driver Jim Yerro , inclusive of notations : on December 15, 'on Verro's complaint being ' registered over having to drive a certain truck continuously in need of repair , that Verro was '..becoming a royal pain on December 19, in regard to'Verro 's 'request for an extra hour of pay because of the weather,, "He wants pay for this???"; and-McMahon's recorded observation as made on - January 7 , 1981, in regard to meet ' point , "It seems to be that Thompson usually waits for Verro in'"adverse weather conditions"; (d) Chicago driver Billy Pittman 's recorded , continued absences on December 22, .1980 , January 10 and 13, 1981 (leading to discharge); (e) Washington , D.C. driver Bob Lacey's recorded refusal to do' Roanoke runs on January 19, 1981 (with assertions by Employer 's witness May of other McMahon reported instances of Lacey 's earlier re- fusals to do extra trips before Christmas); (f) McMahon's observation made on January 31 , 1981; that D.C. me- chanic Tom Stradley was "playing supervisor" in having earlier - given driver Dan Embry "a hard time," and in having reported to McMahon that driver Dave Mieir had a problem . Finally Employer would rely on the con- tention that McMahon's ' log reveals that McMahon also adjusted a grievance on January 31, 1981, by telling the same ' D.C. driver Dave Mieir who had called and was upset with another' driver who he believed had falsely squealed on him,."we realize there is some personal con- flict and that he and other drivers are judged on their ability and performance ." It is noted for comparison with what is t6 , come that all but one such contended evalua- tion ' occurred after McMahon's 60-day review on De- cember 4; and the remaining, earlier one occurred after asserted Bruno direction to Mayo of October ' 29, that McMahon should be encouraged ' to make observations' and- suggestions. ' .c. Contended failure to exercise control over field employees,, and contended involvement in terminations, -or recommended terminations Respondent would additionally rely on Mayo testimo- ny that, McMahon had increasingly failed to exercise proper control over, certain field employees , viz: Castal- lano, Howard, and Ed Pittman (in Chicago); Jim Verro (in Kalamazoo);' Ed Lawrence and Tom Stradley (in D.C.); Don Strang (in Harrisburg);- and Harry Witt: (in Bristol). Respondent relies ''- on Mayo 's testimony principally, but also Bruno 's supportive- testimony,' and certain contested supportive documentation in regard ' to its . contentions that McMahon was actually involved in the termination, or had recommended 'termination of Castallano in mid- December ; of D:C . ' driver Bob Lacey on December 15 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1980) and January 19, 1981; of Kalamazoo driver Jim Verro on December 16; of Chicago driver" Ed Pittman in mid-January 1981; and of D.C. mechanic Tom Stradley on January 31, 1981. - In support of Respondent's contention that there has been specific exercise by -McMahon of supervisory and/or managerial authority in material period Respond- ent would, in principal, part rely on -certain company records, some few of.which on-initial production pursu- ant to subpoena were-introduced by the General Coun- sel, though accompanied by McMahon's disavowal of personal awareness, or with other . contentions; - and others which surfaced later and were introduced by Re- spondent over the General Counsel's strong objections. Certain of these latter exhibits are typed documents, pur- portedly authored by McMahon, but which are unsigned by McMahon who has also specifically denied any au- thorship of them. Still others are documents purportedly generated by Respondent's officials that would, if cred- ited, be in varying degree arguably supportive of actual and/or developing supervisory and/or managerial assign- ment to McMahon . McMahon has denied these latter documents were ever shown to him, nor was he aware of them. (McMahon has in this manner, inter alia, specifi- cally denied authorship and/or any prehearing awareness of Respondent's Exhibits 6,-10, 11, 12, 13, 24, and 25 and General Counsel's Exhibits 57(B), (C), and (D).), Respondent's Exhibits 6, 10-13, 24,, and 25(B) are ob- jected to, and are otherwise sought to be excluded, or probative value thereof urged discounted by the General Counsel on variously asserted grounds but, as presently noted , based on initial contention there was a fatally late ,production of them. Respondent countered that these documents were either subsequently located by it in cer- tain files earlier produced for the General Counsel's review and inspection, or produced as soon as discov- ered. Respondent acknowledged, however, Respondent's Exhibit 25A as the only document late produced; and Respondent argues that all such documents were, in any event, produced and made available during the General Counsel 's extended case-in-chief. The above-questioned company records were individ- ually received, some conditionally, all,. however, with clear admonition that they would each await overall -evaluation of their probative value on the issues in the light of the entire record, which is accomplished in due course infra." Respondent has further raised in general argument what on its face the General Counsel would appear to have conceded in brief is normally to be viewed as a sig- nificant factor in support of the contention made by Em- ployer that McMahon occupied a supervisory position; namely, that should McMahon not be found to be a su- pervisor, it would mean that a very substantial amount of Employer's out-of-state operations, to wit, that being conducted at night and (essentially) regularly reporting directly to McMahon, was effectively without any direct " Respondent correctly urges in brief in support of admission ruling, Bannon Mills, Inc, 146 NLRB 611, 613 fn 4, 633-634 (1964), American Art Industries, 166 NLRB 943, 952 (1967). However, see also the discus- sion of admissibility , adverse inference, subpoena exclusionary rule, and probative evaluation of the documents in question, mfrs. supervision. The General Counsel's contracontention in brief is, however, that on the weight of credible evidence presented of record in this case, it is simply shown in fact not actually to•be the case. 5. The General Counsel's interrelated - countercontentions a. Employer had designated local supervisors Argument offered by the General Counsel seemingly proceeded on evidence of a twofold nature. In any event, contentions are advanced by the General Counsel that in certain postal areas of TSI operations there were local supervisors , who were specifically designated as such by Mayo, and with whom Mayo had specifically in- structed McMahon to be regularly in contact for local aid in -handling any of the problems that McMahon en- countered at night in these locations . In that manner, identified as local supervisors in TSI postal operations were: Tony Castallano and Bryon Howard in Chicago, Illi- nois; Ed Lawrence 'in the Washington ; D.C. area; and Keith Uglow in Harrisburg , Pennsylvania; `along with cer- tain periodic appearances of Mopar Field -Supervisors Bob Olin (from Buffalo, New York) and Tom Wise (from Lexington, Kentucky) in these latter areas.' 2 The Gener- al Counsel additionally contended that Gary Schneider was the assigned dispatcher/supervisor at the (instate) Woburn post- office for similar such contact, until later relieved by Roosevelt King; and that Schneider, in the in= terim , also participated as a supervisor in the opening of the Chicago operation. Certain of the Mopar field super- visors also participated in that opening.' In ' certain, of the P.S. Form 5500s (post office-report- ed-service irregularities) answered by Mayo, as discussed infra, there are general references. (in October-Novem- ber) to the presence of local supervision in Chicago; and there are also clear and specific references to Castallano as a supervisor, and to Howard as an assistant manager, though references to these individuals (Howard and Cas- tallano) are not always so shown but, to the contrary, on more frequent occasion are -left appearing as described initially by post office, viz., as the driver. Similarly con- cerning Woburn there is both specific reference in 5500s by Norton to Gary Schneider as a supervisor in October and general references to local supervision in December, though again , there is also similar specific reference to Schneider but notably as a driver in November. Uglow and Lawrence appear to have been referenced only as a driver in their related 5500s, though once again there is also general reference to there being local supervision in 12 McMahon 's logs reflect appearances of Olin in Harrisburg , Novem- ber 14-18, and more substantial appearances of Olin in the D.C. area in December 1980 and January 1981. In the logs there appears to be only limited appearance of Wise in early December , though Employer would appear to have acknowledged that there were similar brief appearances of Wise in Bristol , e g, on opening of Bristol operations in early Novem- ber and more definedly in Roanoke on opening of an emergency contract in early December. Although at one point McMahon similarly named Harry Witt as a supervisor in Bristol , Virginia, his recollections on that were inconsistent , and thus less persuasive . The General Counsel did not contend Witt was a statutory supervisor ,- though certain of McMahon's log entries would tend to support it PEOPLE'S TRANSPORTATION SERVICE the Washington, D.C. area, identified by Employer as re- ferring to Lawrence. In the latter regard, it is, also noted as significant that Mayo (in 5500s of early ecember) refers to Olin'in the D.C. area as both a temporary and as an emergency -driver. Certain entries in- McMahon's logs confirm that - Olin drove. Bruno initially listed as field supervisors/managers Olin, Holman, Wise, Castal- lano, and Lawrence, but not Schneider, who notably was under direct supervision of Norton. Bruno otherwise has testified that Olin hired and trained Holman whose au- thority was unlimited and' that Wise had the same au- thority. The General Counsel proceeds with further argument that McMahon additionally made daily reports to Mayo in the morning, during which reviews McMahon ,would regularly bring to Mayo's attention noteworthy events that occurred during the night before.- In that reporting aspect, it is the General Counsel's basic contention that McMahon has reported routinely as a night dispatcher, much as the ' ot her nonsupervisory and nonmanagerial dispatchers (as well as driver-salesmen, indeed 'office clericals) have been documented by the General Counsel to have routinely done from time to time in report ing to Norton' that an operational problem had arisen with or been reported by another employee in the course of cou- rier operations in the day, or eventing. Here the General Counsel has, raised as various exam- ples for such comparison' the certain vehicle reports made by nonsupervisory dispatchers Mike Gilbo and Rick DeCosta on October 19-21, 1979, that on review by, Norton effectively led to disciplinary -loss of vehicle privileges for courier driver Peter Hartlen; and, more ar- guably analagous (in my view), to: the report on Novem- ber 6, 1979 (at least), nominally made by Tom Robinson, that was critical of Hartlen's refusals to do. jobs; a simi- larly critical report on work performance made by driver-salesman Dave Roberts (at Norton's-request) in late May, early June 1980 leading to Norton's issuance of a termination warning to Harden; Fred Hill's (a) initial report on impressions and constructive critique, • in March, on driver and dispatch office, observations' and procedures, at Bruno's request (though Bruno on review found the same not very informative), (b) Hill's assigned responsibility on April 29 (1980) in regard to monthly su- pervisory reports to be filled out by him, and (c) the documentation of his being given assignment to monitor and evaluate nine named employees (as well as certain other dispatchers being similarly assigned to monitor other groups of employees); Gary Schneider's report on April 3, 1981, while then dispatching, that was critical of then courier driver Tom Robinson's attitude; Norton's note to then Personnel Manager Bob Mann , on June 8, 1981, confirming Norton's receipt of varied negative re- ports from drivers and dispatchers on the attitude of driver "Tiina" Tammearu, a top producer; and finally by disp- tacher Mike Gilbo's authoring on July 7, 1981, at Nor- ton's request, an actual "Employee Evaluation Form" • on night courier driver Henry Young. (There are others of record, but more need not be marshaled as the above are fairly representative.) The argument proceeds that McMahon has similarly merely • recorded certain night events as they were reported to him, for Mayo's review 197 and action in his actual supervision and management of the TSI -operations during, the day, just as Norton and Bruno has done with the reports of these other Employ- er- asserted nonsupervisory employees;' and like many other documented instances of similar report by Employ- er asserted nonsupervisory.and nonmanagerial employees to their supervisor (e.g., Norton), McMahon -was merely reporting events to his supervisor (Mayo), along with making an occasional critical remark- in his recording arising out of. his own frustration with-an event, or over a particular driver's action. The argument has consider- able evidentiary merit, particularly as applicable to the above-contended log evaluations, if they be considered alone. In regard to Hill (or other named dispatchers), no evi- dence was offered of Hill's actual evaluation of any of the employees he -was assigned to monitor.- In contrast, other documentary evidence reveals that Bruno reported to an agency of the Commonwealth of Massachusetts, that Hill was hired -as an experienced executive who could deliver immediately, but who, esentially, despite a 90-day trial period, and•a 3-week additional period pro- vided, did not respond. In • that regard, significantly, Hill's own prepared monthly supervisory report recites his spending too much time on jobs that need to be done, "but don't help me or further my advancement to ops. mgr." It is also significant to note that on March 24, in a 7-week written review' on the first part of the 90-day evaluation period, Hill received a $25 a week increase, as was previously agreed, despite receiving a clearly unfavor- able evaluation from Bruno, reflecting, enter alia, that Hill had produced no new or better way of doing any- thing, and that, "YOU HAVE DONE NOTHING TO ESTABLISH YOURSELF AS A LEADER." Finally, Hill's termination notice of May 7 contains Bruno's handwritten note, "presented 5-8-80 & withdrawn pend- ing `one last chance"'. Bruno testified that he did not physically present the termination notice to Hill for his view because from their preliminary conversation Hill quickly discerned that termination was coming; and Hill then made a successful plea for a second chance, which I find Bruno granted him on that occasion. b. Actual discharge and discipline carried out by Mayo and Norton The second leg, or base, for the General Counsel's ar- gument that McMahon was. not in fact a supervisor or manager is the contention made that the weight of credi- ble record evidence herein is such as to have demonstrat- ed clearly that, in practice, the supervision at Boston always effectively resided in Mayo as the day and on-call (at night) supervisor and actual manager of TSI oper- ations (under Bruno); as was the case similarly with Norton, as the day, and on-call Boston based supervisor- manager of all of Employer's instate operations. In support the General Counsel has introduced all 303 written deficiency reports (P.S. Form 5500s) which were issued to Employer, by all the contracted post offices in the material period of McMahon's employment. They cover 'all the incidents of contract service irregularities reported, starting in, and/or occurring in, the shifts 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked by Norton, Mayo and McMahon In that regard the General Counsel points to related critical Bruno tests mony given early as a 611(c) witness that it was the man agers of these operations who regularly had made the re spouses to the individual report (form 5500) of a contract irregularity thus I find giving the respective post office the Contractors (Employer s) initial statement of official position in response to a described contract service irreg ulanty The General Counsel points to this all inclusive documentation on all individual postal service irregular ities with the claim that it establishes (and' I do so fmd) that, during the period of McMahon s employ only Mayo and Norton have formally responded to any one of them In the light of Mayo s initial testimony as a 611(c) wit ness to the effect that he was sure McMahon had not written any formal answers to 5500s and that he did not recall McMahon writing any responses to 5500s on scrap paper I shall place little reliance on his subsequent recol lection as Respondents witness that he had had McMa hon try writing out responses on sample 5500s on a couple of occasions in a 2 week period in November particularly where McMahon has credibly testified that he recalled nothing like that ever occurring In contrast Mayo has also testified that in November he had asked McMahon to prepare a supplemental extra run distnbu tion schedule for Chicago drivers on basis of Chicago postal order for seasonal extra runs In this instance McMahon acknowledged the Mayo request and that he had done so However McMahon s understanding of the basic instruction given him at the time was that it placed emphasis on the schedule providing for an equal distribu tion of the work As it turned out Mayo rejected McMahon s submission because it had too many drivers doing runs they were not familiar with Although Mayo has asserted in other connection (and reliably so) that each regular Chicago driver had maps of all the Chicago postal locations and in that sense could be used as a qualified backup driver on any given run in this instance Mayo determined that it was more desirable under the circumstances to place the primary emphasis on drivers being assigned to do extra runs that they were familiar with (acknowledging that also could not be fully done) and otherwise to attempt to distribute the work equally to the extent then possible The fact is Mayo rejected McMahon s submission and prepared and used his own supplemental schedule To the extent Bruno has offered related testimony that would appear to serve to minimize the above viz that the Company s response to the form 5500s were mean ingless and he did not read them and the same is urged for an accptance in any literal sense arguments based thereon must be rejected for the short answer to that is that Bruno later testified that they had to be responded to very very carefully Moreover it is to the contrary quite apparent to me on this record and I find that Em ployer s formal responses to the form 5500s as made by Mayo particularly on all out-of state postal operations but Norton as well on instate postal operations were indeed not treated as meaningless The same appears obvious from record revealments inter alia, of the nature of the response effort made, in its detail, and in the related testimonial admissions made e g by Mayo (essentially corroborated by Bruno) about the approach and the effort he made to make the con tractor s response to a post office s reported irregularity in service appear at once on selective facts to be pre sented as favorable to Employer as possible and in form of response as likely to be acceptable to the involved local post office as possible with essential purpose to always reflect a concerned Employer service the dis cermble related attempt at balance and uniformity in owning up to a deficiency while regularly describing specific logistical action taken that will prevent certain such problems from occurring in the future and as well the frequent report (at least by Mayo) of discharges and discipline of employees for reported conduct on its face with appearance of Employer conclusion being mexcus able, the collateral operational defensive procedures early set in place e g in regard to D C to Bristol con tract of drivers early being instructed by Mayo to obtain late slips where possible (or at least by Mayo the name of the post office official refusing it) with purpose to forestall subsequent 5500 issuance by display to downline local post office or to answer convincingly in the future any post office caused delays downhne that might none theless become the subject of a 5500 (and according to Bruno to effect payment for delay) and the pragmatic acceptance of an alternatively curative notice-clearing arrangement with the central post office (North Subur ban facility) in Chicago found equivalently acceptable in practice the compatibility therewith of the policy of generally prompt notice to be given to all post offices of any delays as soon as anticipatable to provide the post office with an opportunity for their own adjustment and to generate good will and possibly forestall 5500 issu ance particularly in close instances the clear related operational effort to minimize 5500 issuance by clearing a truck out of the post office on time even if it was to then only stand at nearby location (with driver) to await late arrival of actual assigned or substituted driver and finally but most significantly from the established rely tionship of the total of such service deficiencies (when initially answered) in their potential effect on future ad ministrative process e g, contractor fine or eventual loss of contract It follows that 5500 responders (and content) are but other strong confirmation that Mayo was the one with hands on direct managerial responsibil ity on TSI postal work at all times not McMahon It was also clear that Howard suggested and did most of the above special arranging in Chicago Two other related considerations however need present addressment First I do credit Bruno s testimony otherwise that he regularly reviewed the 5500s when they first came in and I further find that the volume of the 5500s being generated by the various post offices as and when received by employer was serviceable as a management tool for Bruno s ongoing evaluation of the performance of the several postal operations in place at least generally It is accordingly found that in his capac ity as general manager Bruno so viewed and likely used them, particularly so during the winter months with all the contracts in place, and operational problems mount PEOPLE'S TRANSPORTATION SERVICE ing, as he has testified . In light of earlier findings above, however , I do not credit Bruno 's further assertion that he did not read the responses made by Mayo and . Norton because they were meaningless . Rather, other back- ground is that there were several preliminary procedures any number or combination of which, were prelude to a contract cancellation by the post office for service deter- mined as continuously unacceptable . There was thus po- tential progression through phone calls and informal con- ferences about poor service; formal conference; fines, and the contract cancellation process itself, with various opportunities - for a contractor appeal therefrom, and to various levels of postal authority. I have no doubt on this record that Bruno had regularly left the individual form - 5500 responses to the expertise and detailed knowl- edge of Mayo and Norton , but he more directly involved himself (and Bowen and/or Norton) in these latter pro- cedures . Case in point is Bruno 's and Norton's consulta- tion and Employer 's action in regard to certain postal complaints and fines (initially levied , and eventually re- scinded on appeal ) in regard to essentially December service complaints about certain Woburn , postal service contracts. There is , however, significant further reliance ad- vanced by the General Counsel on the results of his de- tailed review of these individual P.S. form 5500s with both Mayo and Norton, in which, respectively, Mayo has essentially acknowledged that in every instance of reported discharge or discipline of out -of-state postal drivers as recorded therein Eby him , whether the underly- ing incident of contract irregularity had occurred on his shift or on McMahon 's shift that any resulting discharge, written warning , or other discipline therein recorded was in fact actually accomplished by Mayo ; and that on non- TSI postal operations, that Norton has similarly testified and acknowledged that any discharge or discipline of in- state postal personnel was performed by him , and not by McMahon, The issue remains , however, whether McMa- hon even otherwise exercised supervisory and/or mana- gerial authority. Mayo has significantly testified on one occasion that he handled all the paperwork recording of any personnel matters that went into TSI employee personnel files in regard to events that happened in his personal experience during the day; and also on night (events ) recorded them (personnel matters) based on what McMahon told him about the situation . In that respect , however, and apart from the specific incidents/documents that are in heated issue as to whether to be ascribed directly to McMahon and which are definitively to be addressed hereinafter, Mayo has otherwise asserted limitedly that McMahon had certain inputs to Mayo 's above-recorded discipline of employees , viz, that because Chicago driver Don Pingle drove on McMahon 's shift , Mayo had initially in- quired of ' McMahon about what McMahon thought would be an appropriate discipline of Pingle for having overslept on October 2, and that McMahon had suggest- ed that Pingle be issued a written warning , which was subsequently done by Mayo ; that McMahon had later mutually agreed with Mayo 's proposed termination of Chicago driver Jim Johnson for an accumulated number of asserted operational foul-ups around October 11 that 199 had already affected McMahon in his work performance; and that McMahon had reported that he did not believe D.P.-to-Bristol driver Tharps was being truthful with him, and stated he should be placed on probation in con- nection with an incident of Tharps having lost 15 min- utes on December 23, in driving the 90 miles from Pulas- ki to Bristol. ' McMahon has denied each of the above disciplinary input particulars . In light of conflict of a seemingly as- serted discharge of Johnson about October 11 (or even as also discussed , November 3, for that matter) with other documentary indications of Johnson 's continued employment for a period thereafter, Mayo's recollection about this incident would appear independently faulty. Regarding the Pingle matter ,- an incongruity is-immedi- ately discernible in an involvement of McMahon in an effective recommendation of discipline in very early Oc- tober with Mayo 's subsequent number of instances of failure to do so with other drivers who also worked on McMahon's shift , as well as being contraindicated by Mayo essentially concurrent notice to Castallano that McMahon left Mayo 's notes on problems so Mayo could get right on them , discussed further infra . (Pingle did not drive exclusively on McMahon's shift; drivers Rich Hill and Billy Pittman did.) - McMahon has also denied stating that he felt Tharps was being untruthful with him; and he has specifically denied ever having recommended a probation for Tharps (or anyone else). The above Tharps incident occurred on December 23, thus well into McMahon's performance on the TSI desk, through the busy, period and" after the early December evaluation of McMahon on the job. On first reflection it appeared as more appropriately to be addressed and resolved later along with other more ma- terial incidents of a similar period relied upon by Em- ployer . However, Mayo appears to have subsequently in- vestigated this matter further in conducting his own in- quiry of Tharps on elements of the incident (weather considerations) the next morning . Appearing even the more significant , the incident is not recorded in either of McMahon 's logs , a circumstance itself indicative that at the time McMahon had not regarded the incident as ini- tially noteworthy enough to have personally recorded it; and thus, seemingly on its face , a circumstance contrary to the asserted strong feelings ascribed to McMahon to point at McMahon, as recalled by Mayo, being the one to urge that Tharps be placed on probation . It is present- ly concluded and found that McMahon 's. denials, and specifically his denial of having recommended a proba- tion for Tharps, appears the more probable, are to be credited . I would only additionally note that even were it to be viewed otherwise about Tharps, in this instance an effective 'recommendation would appear the less likely by circumstance of Mayo 's further independent investi- gation of some of the facts before taking action. Moreover , it is also warranted to be presently noted that Mayo later issued a written warning to Tharps (as recorded in related 5500) on January 7, 1981, for Tharps' reported subsequent 35-minute late arrival at Bristol on December 28. Therein (in 5500), it is this time reported as having been asserted by Tharps to the post office in 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explanation for that delay Driver stated that he could not make the trip on time and stay within the 55 mph speed limit which whether to be viewed herein as ac tually said by Tharps or not was so recorded in relevant 5500 by the post office and forwarded to Employer for its response In light of Mayo s issuance of a warning thereon and Bruno s noncnticism of Mayo I shall fur ther place no reliance on Bruno s additionally related as sertion of his becoming critical of McMahon sometime later for McMahon s acknowledgment to him of having long known of such driver complaints (e g Montgom ery) that they did not have enough time to fuel and timely complete that run but assertedly had done noth ing about it and brought it to no one s attention Bruno s assertion here is that McMahon had thus failed to managerially recognize a potential relationship existing between such driver assertions and continuing 5500 issuances by the post office for late arrivals on the D C to Bristol run McMahon has denied that Bruno had expressed any such critical inquiry to him To be sure this was the 440 mile run eventually adjusted by the post office ( 15 minutes) at Roanoke both seemingly to accommodate complaints about inadequate time (occa sionally) for refueling and/or reasonable rest allowance (coffee break) It is in any event clear that many more times the run had been made on time and otherwise that there were any number of other reasons for late arrivals Wholly apart from the above considerations, however I am convinced that in this instance Bruno s emphasis on a McMahon failing in the latter regard was in nature of either an opportunistic afterthought or otherwise reveal mg of a disparate standard application e g as being in consistent with Mayo action therein of which Bruno es sentially remained uncritical First and apart from McMahon s assertion that early complaints of truck speed restrictions were passed on to Mayo I cannot accept that Mayo who clearly had the day to day direct hands on management and with whom these drivers were also in regular contact and who regularly admims tered discipline would not have been every bit as aware of any such ongoing driver complaints nor secondly that Bruno if he had the concern at the time as he pres ently advances with regard to McMahon s performance in that regard would not have pursued that same con cern with Mayo with similar objective faultfinding result unless there was some other disparate consider ation at play at this time However I am convinced it is here more a case of opportunistic afterthought by Bruno c Respondents cross assertions on local supervisors Respondent denies in brief that Castallano Howard Uglow Lawrence and Witt were ever statutory supervi sors In regard to its Chicago operation Respondent es sentially contends that although Castallano was initially given a title of supervisor it was with anticipation there would be a later increase in his assigned responsibilities but that it never occurred and that Castallano had never actually functioned as a statutory supervisor As to Bryon Howard it has essentially advanced as testimonial evidence that Howard had occupied a special position only because of his unique knowledge of the complex Chicago routes but that Howard nonetheless was and had remained only a regular day driver and night backup driver Respondent contends that Ed Lawrence in Washington D C and Keith Uglow in Harrisburg Pennsylvania occupied mutually similar nonsupervisory driver positions Respondent finally asserts that Harry Witt was never anything other than a driver m its local Bristol operations and that essentially to the extent he has acted otherwise Witt was wrongfully allowed by McMahon to do so The key to analysis and the resolu tion of these cross contentions on the status of Castal lano Howard Lawrence Uglow and Witt begin with a comprehension of the different postal contracts sched ules operations and backup systems in place 6 The differences in the postal operations a D C to Bristol operation and general operational considerations The first out of state postal operation established was the D C to Bristol operation on July 12 As it was in op eration for some 9- 10 weeks before the next (Chicago) operation came on line on September 20 the D C to Bristol and the other (later) postal operations in those areas would generally appear as an appropriate starting point for factual focus and analysis of these threshold issues Chicago and Kalamazoo operations are a conven tent grouping and finally considered is the Harrisburg Wellsboro operation Under the first D C to Bristol contract Employer performs mail handling (pickup and delivery) services between D C and Bristol Virgina/Tennessee but with service to five intermediate postal facilities on the route as appears materially might now be noted NOVA MSC Roanoke and Pulaski Virginia There were four straight trucks and six full time drivers utilized in this 440-mile D C to Bristol (and return) run which was operated 7 days a week These drivers were domiciled in the D C area (Domicile here is used in the sense of initial point of work origin of individual truck driver) The individual driver s normal work schedule was essentially to drive two complete D C to Bristol (and return) runs with however a rest layover provided at the end of each 440- mile leg Individual drivers notably worked a (unique) rotating schedule of 4 days on 1 day off then 4 days on and 3 days off before repeating their above work cycle A changing work schedule with driver assignments for the week was regularly prepared by Mayo and sent down to D C each week While a copy of a given work schedule(s) may not have been always immediately avail able to McMahon I am persuaded it usually was though I am as well more materially convinced that the work schedule was sent to Lawrence (and later Olin) in D C operation(s) from whom and/or by which the drivers would determine weekly schedule assignment confirma tion It appears that Employer obtained garage facilities in D C about 6 months after the contract opening thus about December Central posting or availability of sched ules would appear likely at that time In connection with the D C driver s schedule Mayo has also significantly testified that he had initially con tacted these drivers and ascertained that some of them PEOPLE'S TRANSPORTATION SERVICE were interested in working overtime , or extra , e.g:,' whenever there might be need, and they were available. Mayo additionally affirmed that there was a general ar- rangement made, thus L find a practice established that these individuals would be the first to be called for any required coverage of a run . I a'sure Mayo had made Lawrence' fully aware of that arrangement. Moreover, , I am in the end fully persuaded that certain of Mayo's es- tablished policies and arrangements on coverage of D.C. driver absence/sickness , as above discussed , and on late slip procurement as discussed infra, were already devel- oped and established with Lawrence and the regular full- time drivers on that route, even before McMahon's arriv- al on the TSI desk, more than 2 months later. It is pres- ently warranted on the basis of 'the evidence above, and it is accordingly now concluded and found, that arrang- ing coverage of a run on the D . C. to Bristol operation for an absent/sick driver would have been essentially a routine matter of Mayo, or Lawrence simply looking down the schedule for the next such available driver, or Lawrence driving it himself as Mayo has essentially testi- fied. As-noted, Bruno initially identified Lawrence as the field supervisor in D.C. Respondent later advanced testi- mony that Lawrence had no authority to hire or fire; nor to discipline ; and that Lawrence was essentially a former Mopar route driver who had transferred to D.C. in order to receive the substantially higher postal driver wage rate. There was no evidence offered that Lawrence had ever disciplined anyone in writing ; nor could McMahon recall any incident of discipline by Lawrence. Mayo has testified that Lawrence drove full time ini- tially on the D.C. to Bristol route; and that his other duties encompassed bringing trucks in for repairs, and also handling paperwork from and for Boston , respec- tively. McMahon has.testified that he was initially told that Lawrence was the supervisor in D.C.; and that he was instructed if he had any problem in that area he should call Lawrence. McMahon 's general instructions thus were that if someone called in sick, he was to note it, or in the case of a no-show, he was to note it, and he was (in either event) to call the local supervisor, who would suggest a -man that either the supervisor or he would then call. McMahon 's testimony is fully consistent with the above prior established practice. It will be recalled that it was a regular assigned re- sponsibility of Mopar field supervisors that they were to cover a Mopar run themselves, if,they could not readily effect a driver replacement . Those involved with postal operations were expected to do so also in postal oper- ations . I am fully convinced by Mayo testimony that operational policy assignment to Mopar field supervisors was early carried over to any other local postal driver supervisor , whether statutory supervisor or not. (Indeed failing to drive and learn routes is related as a principal reason for Castallano's subsequent release as a supervisor, discussed infra.) I have no doubt on this record Law- rence frequently drove in that manner. Otherwise , e.g., if unable to contact Lawrence (or other local postal super- visor), McMahon 's instruction was to use the Rolodex to call someone , or to call a driver known by McMahon to do the run . In that regard , McMahon has testified gener- 201 ally that there were rare occasions when he -had called individual' drivers who declined; but significantly, that he had personally never disciplined anyone for such a refus- al. 'Finally- it is to be observed that there do not appear to have been absence/sickness problems on this run evi- denced in McMahon's logs prior to Lawrence reassign- ments, infra, and the wintry months' and busy Christmas season arriving . Indeed , apart from McMahon 's normal assignment to render certain assistances to Lawrence and other drivers when actually broken down, there are in- stances recorded in McMahon 's logs , even after the next D.C. contract opened up and at time when Lawrence had reassigned driving responsibilities elsewhere, where McMahon still consulted Lawrence about D.C. to Bristol drivers reports to McMahon that they felt they should not go on because of some present indication they had of a serious truck defect , e.g., Don Bowman 's report on November 26, and Joe Randall's report on November 29. Thus McMahon informed Lawrence that Bowman, then 15 miles past, Troutville, indeed already en route to Pulaski, had reported having very little air pressure; and that Bowman felt he should not go on. When contacted, Lawrence advised McMahon he trusted Bowman's judg- ment on the safety issue. Thereupon, with additional Bowman assurances the road back to Troutville was known to be such as to essentially permit him to return safely , Bowman was routed back to the nearest Midcon- tinent T/S (Troutville) to effect repairs . Randall, at the same T/S a few days later , but at 2 a.m., reported a loss of vacuum pressure, with no power steering or power brakes. However , in this instance Randall wanted to go on to Roanoke (with mechanical steering and brakes) be- cause the T/S could not give him repair service before 6 a.m. (4 hours). On arrival at Roanoke, Randall called McMahon to advise the truck was' bad; the Roanoke (out) load was heavy; and that Randall did not want to go on (without the repairs). McMahon again notified Lawrence of this situation. Independently notable on this latter incident is -the at- tendant circumstance that Randall was driving a Ryder rental . When McMahon was subsequently unable to raise up Ryder repair service, McMahon contacted Bruno Sr., as McMahon was uncertain of Employer 's repair policy as being applicable to the repair of rentals . It was Bruno Sr. who approved the return of Randall to the Midcon- tinent (Troutville) T/S; and it was Bruno Sr . who even later approved a $100 expenditure (for an alternator and belts) for the repair of the Ryder rental. It is clear that on this occasion McMahon did not interpret or apply Employer's repair policy on his own vis-a-vis rentals, but rather sought clarification of the policy and/or authori- zation from the maintenance supervisor ; and, as well, that the latter was kept advised , and authorized the ex- penditure in the amount of $100. In connection with the related' authority to pledge company credit generally, the Employer has introduced in evidence (R. Exh. 25A) a memo from Controller David Snider dated October-7, 1980, in regard to the new purchase order system, expressing agreement that five authorized people were 'not enough and requesting addressees Norton, Bowen, and Bruno to submit lists of 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD managers who they feel should have purchase order au- thority . Bruno 's response of even date (see R . Exh. 25B), with copy to Norton, but significantly not Mayo or McMa- hon, to Snider's list of managers authorized to issue P.O. numbers , since they "frequently needed to authorize ex- penditures over fifty dollars." McMahon denied he ever was aware of the document. McMahon, however, did ac- knowledge that he was told by Mayo he had authority to pledge the Company 's credit , but asserts it was exercised only in handling an emergency . Pertinent background for evaluation ' of the significance of Respondent 's Exhibit 25B is Mayo 's testimony on the purchase order systems. (1) The purchase order systems Mayo's recollection was that before McMahon's em- ployment they did not have a purchase order system. At that time only. he and Bruno Sr. ordered out-of-state re- pairs. Mayo testified that they could authorize any ex- penditure on the road in order to accomplish the job; and he testified that McMahon was given the same pur- chase order authority he had. What is immediately ap- parent with regard to Respondent 's Exhibit 25B, insofar as Mayo is concerned , is that any addition of Mayo to the list of managers who should have purchase order au- thority in October was either pro forma, or he did not earlier-have the authority that Mario and others say he had. The latter is rejected. _ "Mayo testified that 'it was in the fall of 1980 that a formal purchase order system was instituted ; and that it was Controller Snider who recommended it be estab- lished as a guaranty of payment . According to Mayo's recollection , originally carbon triplicate forms were used. Mayo specifically recalled that a sequential numbered pad was explained to McMahon ; and he asserts McMa- hon used it . McMahon has testified that he never filled out a purchase order form . No purchase order . form filled out by McMahon was ever produced. Mayo re- called the - triplicate form proved to be too cumbersome; and it was discarded . I find it was discarded before McMahon 's TSI employment , if indeed it was in use theretofore , as opposed to after McMahon 's release. Mayo's recollection otherwise was that the 'purchase order system went through phases of development. He recalled another phase of a minimum or maximum amount system , viz, for over (I find) $50 amount, a pur- chase order number was required and- for under that figure nothing was required . However , it appears the purchase order system in effect in material times was given only if a vendor requested it, with the latter proce- dure passing through a further phase of first recording the area and any number for purchase order , to use of area and date of incident as identifying number, upon Mayo concludmg the prior was a bit too haphazard. McMahon 's first recorded purchase order number would appear to be on 10/2/80, P .O. #219 (seemingly corre- sponding with use of any number) and with purchase order number corresponding to date of incident appear- ing first shown on November 11. It is concluded and found there - was a loose purchase order system in place during McMahon's tenure. On rebuttal McMahon otherwise testified that Mayo did not inform him that he had complete authority to get any kind of repairs done on vehicles; that they never dis- cussed major repair work ; and he reaffirmed that major repair work was to be handled • by Bruno Sr. Otherwise, McMahon has acknowledged that his general instruction was to get the truck fixed and on the road . In that regard McMahon testified that Bruno 's general instruc- tion to him was that , if a truck could move under its own motor power , it was to keep moving . Bruno has es- sentially confirmed having issued such a . directive, re- serving only that it was made in the context that there be safe operations of the trucks. McMahon has testified that the process of his getting a truck fixed on the road involved his contact of an appro- priate repair service facility ; that his instructions con- cerning unusual problems , which most often were me- chanical , was to generally call a local supervisor, or me- chanic, e.g., in Chicago, Castallano; in D.C., Lawrence, and later Stradley ; if local , the on-duty mechanics , desig- nated by Norton ; if on the road , the nearest Midcontin- ent-listed facility ; and, in an extreme case, Bruno Sr. Mayo 's instruction to him was to report any important maintenance problem to Bruno Sr . McMahon's logs gen- erally support the above. McMahon has more definitively explained that his pro- cedure was , e.g., in D.C., in the event of a truck break- down on the road, to notify Lawrence who would make suggestions; and if Lawrence was not available, McMa- hon was to send the driver to the nearest service facility. However , if the driver could not go to the station, McMahon was to send the station to the driver to effect repairs on the road , or to have the disabled truck towed to the station where the necessary repairs could be ef- fected . McMahon would use the T/S guides and/or Ro- lodex listing to find the nearest such station , with the possible exception where a truckdriver was already at a truckstop, or could provide a nearby -one. To be sure, Mayo has relatedly testified that McMahon was not re- stricted to the guide, but it is nonetheless apparent to me on this record that departure from the above basic pro- cedural approach essentially arose only when there was some intervening emergency service consideration as when the nearest listed station was not both the nearest and available such station : There never was credible evi- dence offered that McMahon ever engaged in any cost estimate comparisons and evaluations or made vendor se- lections on his own on that basis . Any pledge of Compa- ny credit in regard to towing and/or repair arranged on the spot by McMahon was thus always done in the con- text of timely handling of an emergency 'situation pursu- ant to established procedures . In short it was automatic. Thus the occasional contact of a new station, with McMahon 's inquiry about that station 's willingness to provide the emergency service and to bill the Company for it , did not substantially alter the nature of the usual emergency repair procedure already established. In my view , it was an extension of it . It is also clear that an in- stance of a driver forgetting his credit card , or mistaken- ly purchasing fuel (in the amount of $55), believing a particular station accepted one of the Company's credit cards , and finding out it did not, present a-similar emer- gency situation for that driver , and thus McMahon. PEOPLE'S TRANSPORTATION SERVICE 2. The late slip policy, It is appropriate to presently address the matter o" f late slip policy, and Mayo's instructions issued to McMahon, as the same had principal significance on this D.C.- to Bristol run. McMahon has basically testified that he was instructed it was the driver's responsibility to get, a late slip. McMahon has corroboration from Norton that that was his policy in regard to instate postal operations. I am thus convinced and find in general that Employer's basic policy was that it was the responsibility of,the driver to obtain a late slip for a postal-caused delay, everywhere but Chicago. Although McMahon on one occasion denied that he was instructed to tell a driver that he should obtain a late slip, McMahon has as much ac- knowledged ,the same, in testifying on other occasion that he might have been told.- (generally) to remind a driver to get a late slip. However, McMahon has cate- gorically denied he was ever instructed to tell a -driver he-should refuse to leave a post office without a late'•slip; or that he was to tell a driver to get the name of a postal official refusing one. McMahon's recollection was that it (the request) was a matter of immediacy, and the driver -was to move on. Essentially I credit McMaho'n's recol- lection over Bruno's, and also Mayo's 'recollections where to the contrary. The finding is based in part on a strong probability that Mayo himself'would•have passed through his own phases of experience with, and develop- ing, policy in regard to, this run; viz, of instructing all 'D.C. -to Bristol drivers that a driver should insist on a late slip; topolicy of the driver requesting the postal offi- cial to speak to Boston about it before the driver left; to policy that the driver at least get the name , of the postal official refusing a late slip, to essential elimination on the problem on that run. • - s . The D.C. to Bristol run • from its beginning had little built-in time allowances. .Thus an early encounter of a late slip problem would appear the more.likely; and par- ticularly so, since Mayo recalled it was an aggravated problem at one location on this run. Thus Mayo has- re- lated ,that Roanoke was a paramount offender; and I find that such Roanoke conduct would likely have brought it to early head. This is, confirmed by McMahon logs- be- cause significant numbers of instances are not to be found reflected in McMahon' s logs . Moreover, Mayo has recalled in that regard that the. problem at Roanoke was effectively adjusted (eliminated) through his report to D.C. postal authorities' regarding the asserted frequent' driver complaints' being reported to him. Then too the late slip policy was never one' to be 'adhered to in the Chicago operations, which from the start were known to be even more broadly time critical that,would not allow as a practical, matter for a late slip pursuit. Notably -Chi- cago' had come on line contemporaneously with McMa- hon arrival on the TSI desk, and his receipt of. first in- structions. McMahon's recollections are viewed far more compatible with the latter. Finally I do not find suffi- ciently well supported, let alone persuassive in light of all of the above, any intended reliance by Respondent on isolated later late slip incidents as urged in , Employer's brief are reflected in McMahon's logs, especially when a relevant " comparison is attempted to' be made with avail- able 5500 documentation , and/or consideration is made 203 of time of report to McMahon, and, McMahon's own work_•.schedule in regard to those incidents. In any event, I do' not rely as substantially evidencing either contended McMahon failure to follow instructions, or a failure on his part to implement established company policy. Irrespective of what statutory supervisory authorities Lawrence may ultimately be determined. to have had, or not had, it is preliminarily concluded as well supported by clear weight of credible evidence that McMahon, was initially told that Lawrence was the supervisor in D.C. whom McMahon. could contact on any problem -he en- countered at night in the D.C. area, which he did; and that McMahon effectively . continued solely to do so clearly through the end of November. b. The local Bristol operations, etc. - The next Employer operation (in the Bristol area) to come on' line was actually pursuant to awards of two contracts that by their terms made commencement of op- erations̀ simultaneously 'effective on November 1. Under these contracts Employer performs similar mail hauling services in Virginia - and Tennessee, but essentially throughout' a general community area surrounding Bris- tol. There' were five trucks (collectively) regularly used in- performing this service. However, in the event of local •truck-disablement,:the nature of the D.C. to Bristol truck arrivals (and layovers) were such that at any given time during the Bristol operations, there were apparently one to two D.C. ' trucks, normally on layover. Mayo's in- struction to McMahon, confirmed by McMahon, was 'that McMahon -could make use of any such D.C. truck on the Bristol' contract, provided the D.C. truck would be back in time to complete- its scheduled return to D.C. Although there were five trucks regularly used in per- formance of the, local Bristol operation, there were six full-time drivers normally employed on the Bristol con- tracts. All six were domiciled in Bristol. As each Bristol driver knew all of the small community post offices served, any driver_cou'ld cover for another. When the Bristol contracts first started, - Lexington, Field Supervisor Tom Wise was brought-into the area for about a week to assist in startup. According to Mayo, Wise was not there as a statutory supervisor, but primari- ly to ensure initial driver attendance and/or route cover- age, i.e., essentially, to serve as a backup driver, if need be. Although a significant number of Bristol daily routes started on McMahon's shift, apparently all but one (start- ing on McMahon's shift) were towards the end of McMahon's shift, e.g., 5:45 a.m. which was about the time when a D.C. to Bristol truck would normally arrive (5:25 a.m.). It is clear however that the bulk of the Bris- tol operations otherwise took place. during the day, es- sentially on Mayo's shift. McMahon has testified general- ly that Mayo would usually notify, him of any schedule juggling to be, done. In point of fact it does not appear there were any troublesome events recorded in McMa- hon's logs with respect to local Bristol operations (and Witt in particular) until well into the Christmas-Decem- ber busy season. The record otherwise, reveals that Witt was paid an extra $20 to take trucks to the repair shop. Witt collected the paperwork for Boston; had keys to all 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the trucks locally ; and was the number one on-call backup driver . Witt was at least a lead driver , and there is other evidence to suggest he was more , at least in practice. c. The D.C. BMC tractor -trailer run, etc. The next D.C. contract came on line a week later, on November 8 . This was the only tractor-trailer mail haul- ing contract . Under this contract Employer 's tractors es- sentially ran its trailers (already loaded by the post office) back and forth between the (Largo , Maryland) D.C. BMC and the (Merrifield ) Northern Virginia MSC facilities (hereinafter simply the D.C. BMC , or tractor- trailer run). Notably there were only two tractors used in this 11 -trailer operation , though there were 3 tractor drivers employed on it . All were domiciled in D.C. One driver regularly worked an 8 a.m. to 4 p.m. shift during the day , though apparently at some early point regularly pulling an extra run initially at 6:30 a .m. Otherwise extra trips ordered were normally to be pulled by the last driv- ers on duty. The two other drivers' regularly worked early , evening ' shifts beginning respectively at 4 and 5 p.m. Lawrence was next , assigned to drive on' this run. Mayo recalls Lawrence regularly drove a 48-hour, 6-day workweek . Although Mayo recalls Lawrence regularly driving _ a 4 p.m . to 1 a.m . shift , it is apparent he, at least on occasion , drove a day shift, - probably , covering a run. As a 611 (c) witness Mayo related that the tractors ini- tially used on this route were Ryder rentals . Route and breakdown coverage was initially a problem in that a driver had to be Ryder qualified to drive a Ryder tractor rental . By Christmas most D.C. drivers " were Ryder' qualified . However , initially , only Lawrence, locally, was Ryder qualified . It was apparently on this account that Respondent had occasion temporarily to use driver(s) from other areas (at least one, e.g.; Phillips, out of Bristol) on this route. (There was no such req uirement with respect to driving Ryder straight truck rentals on other contracts.) Two incidents occurred early in the performance of this contract that are -additionally notable . On November 11, while driving this route , Lawrence ran out of fuel. There resulted a more than 4-hour delay , as a fuel filter had to be changed involving a time-consuming proce- dure , and the engine had to be primed. Mayo recalled the attendant thawing as the time-consuming element. In any event , McMahon did not receive a report of this in- cident until after it was resolved; and then he received initial report from another driver , though he also spoke to Lawrence about it that same day . Mayo's recollection was that he told McMahon when the incident was re- ported to him that Lawrence had a tendency to take over the responsibility for correcting a problem himself; that McMahon could not let Lawrence take charge, as it was possible McMahon could solve the problem more expeditiously; that Mayo told McMahon that he should inform Lawrence of the importance of calling Boston at the-first sign of a problem; and that when Mayo inquired of McMahon a day later , McMahon confirmed he had spoken to Lawrence about it . In contrast, as 611(c) wit- ness Mayo 's recollection was that he told McMahon he better have a. talk with Lawrence , that Lawrence bound him up by not telling him of the problem when it hap- pened . McMahon did not recall a specific instruction by Mayo to call Lawrence , but has acknowledged he prob- ably did tell Lawrence to call when there was a prob- lem. However , McMahon has denied that Mayo ever told him Lawrence had a - problem of trying to take charge ; and McMahon testified he did not counsel or dis- cipline Lawrence on this occasion , as had been also urged by Mayo . Mayo has further testified , and McMa- hon has categorically denied , that Mayo told McMahon essentially that if the operation did not go properly it was his head ; and/or that McMahon could set his own requirements. In connection with the above , it is noted in passing that on November 14 a night driver failed to fuel per schedule , and Lawrence , then apparently driving a day shift , was 5 hours late in arrival (on Mayo 's shift). The second notable event occurred on' November 17 and 18 when a day driver (Butler) again ran out of fuel. However , this time, when the road service towed the tractor in for repairs (change of filter , fueling , etc.), the repair service locked the tractor in its garage overnight. Employer operated with only one tractor , because, as Mayo later reported in 5500, no rental was available.. What is to be observed is that this development did not occur on McMahon shift.. There were a number of re- sulting defaults and or deficiencies (e.g., see G . C. Exhs. 18-46 through 49. (On another, occasion Mayo - acknowl- edged another reason for - failure to rent was that there was not another Ryder qualified driver available at the' time .) Problems on this operation continued through No- vember 20 , with a day driver not showing, and being ter- minated (see G.C. Exhs . 18-41 through -45). According to Mayo, the underlying- problem was the location of the one established fuel stop, which problem was cured when Mayo, , over a period of_aobut 2 weeks, negotiated and established another -fuel stop . By Christmas , most of the D .C. drivers were Ryder qualified. In the interim however , - and shortly after the truck was locked in the repair shop , Mayo made a public relations trip to see D.C. officials to explain the problems and what the Com- pany was doing about them because the contract was scarcely a week old, and -the post office was understand- ably upset ' about the service that had been provided to date. What otherwise did occur on McMahon's shifts were incidents of a different nature. On November 17, McMa- hon was contacted by a postal official at 12:45 a . m. about additional runs still remaining to be done . On this occa- sion, McMahon was in immediate contact with Law- rence . To be sure Lawrence had left earlier at 9:30 p.m., but notably at a time when McMahon was not on duty. Lawrence additionally explained to McMahon his under- standing at that time from another postal official was that there were no more runs. Lawrence contacted the postal official for clarification , and at 12:55, thus quite promptly, notified McMahon there were more runs and they would be covered by him. Mayo subsequently re- sponded in'relatedrelated 5500 simply that the driver (Law- rence) had misread the schedule, and it had been correct- ed. Mayo's urging is that Lawrence should not have con- tacted the post office, but should have done the runs. PEOPLE'S TRANSPORTATION SERVICE This suffers the observable infirmity of an earlier cred- ited finding that it was Lawrence whom McMahon was instructed to call about problems. Moreover, as'a%practi- cal matter, it was Lawrence who had been given contra- instructions from another postal official and would know what had been said and not said. On November 20 McMahon recorded in his log that Lawrence said he was going to contact the local postal officials to see if a morning extra trip (which was appar- ently essentially bulk mailings and not as critical) could be done after scheduled regular trips in order to avoid conflict with the first (and more critical) scheduled trip. Mayo' testified that he told McMahon that this was an in- stance where Lawrence was trying to take control; that his aggressiveness was good, but McMahon had to keep it in check. Mayo asserted that McMahon should have been the one to contact the postal officials on this matter, because Lawrence was just a driver. However, I have earlier noted McMahon's' continuing contact of Lawrence about route problems encountered' was even later otherwise, e.g., in regard to truck condition and driver's reported refusal to continue on without effecting repairs on November 26 and 29. Moreover, in light of Mayo's subsequent evaluation of McMahon on Decem- ber 2 (discussed more fully infra), wherein Mayo reports that McMahon had done everything asked of him, I simply cannot now readily accept that the above incidents actu- ally evidenced a rather incongruous portrayal of'McMa- hon's repeated failure ' to control Lawrence on problems, or failure to attain effective communication from Law- rence contrary to ongoing attempted corrective Mayo in- struction and/or suggestion. There are other contended (primarily noncommunication) incidents in December that Employer would additionally rely upon. -In that regard, however, there was also a significant change in Lawrence's availability, for Mayo reports in the Decem- ber busy period Lawrence began driving (with extra trips and probably coverages) as much as 80 hours • a week. (According to Mayo, after Christmas, Lawrence went back to a 50-hour workweek, and then with change of shifts to work hours of 6 a.m. to 4 p.m.) d. The Prince George to Roanoke operation, etc. The last material D.C. contract came on line on De- cember 4; and it placed , another temporary strain on D.C. operations. The contract was awarded on an emer- gency basis; and Mayo had only a couple- of days for preparation . Under this contract Employer provides mail hauling services between D.C. and Roanoke, with some five to six intermediate postal stops, but most notably servicing a special Dow Jones (Wall Street Journal) mail pickup. There were three to four straight trucks eventu- ally used. There were three drivers domiciled at Roa- noke; and three drivers domiciled in D.C. working on this contract. The Roanoke drivers hired by Employer were formerly employed by Employer's predecessor- contractor. The strain came principally from the circum- stance that other drivers in D.C . previously available for casual use for extra or backup service had to be essential- ly pressed ' immediately into regular full -time service on this run. Whether it was because of this circumstance, or in anticipation of Lawrence's own increased work sched- 205 ule with regard to extras imminently upcoming in pre- Christmas season on the D.C. BMC operation on which Lawrence would end up working as much as 80 hours in a week, or more likely a combination thereof, Mopar field supervisors were again called upon. Thus, at Mayo recommendation, Olin was brought to D.C. by Bruno at the start of this contract in early December. Wise was brought in simultaneously to the Roanoke- end of the op- eration, and stayed there for. about a week. I cannot accept that Bruno was, not aware of the immediate effect on backups caused by this emergency contract, nor of Mayo's actions to counter it. According to Mayo, Wise's assignment in Roanoke was not that of a statutory supervisor, but the same as he earlier had at the start of the local Bristol 'operation. There is no evidence that Wise hired, fired, or disci- plined any postal driver. However, McMahon has testi- fied to an occasion when Wise reported that certain Roa- noke postal employees said (D.C. to Bristol) driver Ran- dall arrived frequently at Roanoke with appearance of having been drinking. Following McMahon's morning report, Mayo made, an independent inquiry. In light of information obtained from others that offered satisfactory explanation of Randall's appearance, Mayo took no fur- ther action at the time. Randall, however, would subse- quently be terminated for parking his mail truck by the side of. the road and sleeping for several hours, after. having been drinking. The fact of observed location of the parked truck was first reported to McMahon by a following driver, but not the above drinking and sleeping circumstances . To the extent Employer would rely . on this incident , I find the argument without merit. Wise, however,. did inform McMahon that he saw no reason someone should accompany a predecessor contract driver at startup of operations. . From McMahon's logs and, unlike Wise, I am persuad- ed that Olin stayed in the D.C. area for about 2 weeks, probably through December 22. (See also G.C. Exh. 60 summary revealing clearly accelerated calls in regard to Olin in this period.) It further appears that Olin was back in the D.C. area from mid-January and probably then through at least the remaining material period of McMa- hon's employ. Olin did some driving and some mechani- cal work. There is, however, no evidence that Olin hired or fired or disciplined-any postal driver in the D.C. area. Olin did, however, inform McMahon that a D.C. to Bris- tol driver should not be sent immediately back out on a run, a policy confirmed by Bruno. Contrary to Bruno urging , I am fully persuaded on compelling weight of evidence in this record that, just as it was Mayo who regularly did all the hiring on the TSI postal operations, including establishing ' an available backup, drivers' work force,- it was Mayo who again did subsequent hiring for replacements when the supplemen- tary casual D.C. backup driver work force was drained at this time. I do credit Mayo's and McMahon's related testimony to this extent , that the names and assignments of newly hired drivers were usually passed on to McMa- hon; and though I am not persuaded Mayo informed McMahon in terms of so-called casual driver status,-.1 also fmd that occasionally it was McMahon, who, upon 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receiving a report from a new (previously unknown) driver would then enter in the Rolodex the pertinent usual data of a new employee, e g name, address, phone number, etc and further that occasionally he would obtain for Mayo other personnel information when and as requested by Mayo However I am wholly convinced that it was Mayo who is revealed by this record to have clearly performed all the actual TSI hiring and initial regular assignment of personnel to a given postal job It is Mayo who did the regular scheduling of all of them There is simply no convincing evidence that McMahon ever effectively recommended the hire of any employee (Neither for that matter in my view, does the single re corded instance of Howard recommending employment of Debbie Ratcliffe in Chicago on October 7, persuade me that Howard is thereby automatically revealed or es tablished to be a statutory supervisor discussed infra ) The Alternate Meet Points On all the D C and/or Bristol based operations the Prince George to Roanoke run alone regularly utilized a meet point for a driver swap of loaded truck initially es tablished at Madison, Virginia, with the respective dnv er's return to his own point of origin Because the Dow Jones pickup was frequently late on an initial driver s suggestion McMahon moved the meet point established by Mayo in an attempt to keep the undelayed driver s delivery on time (McMahon had the prior experience with the Kalamazoo Michigan to Gary Indiana oper ation where he also did so) It is Respondents contention by that action McMahon established a policy for Em ployer Although Mayo subsequently typed a number of alternative suitable meet points it is Mayo s assertion that they were identified, and/or suggested by McMa hon It is McMahon s assertion that although a report was made to Mayo on what had been done the typed selection of alternate meet points was Mayo s The prob ability is that it was a collaborative effort and essentially based on drivers earlier suggestions and experience e The Chicago operations etc In regard to its Chicago operation though conceding that Castallano when initially hired in Chicago was given the title of supervisor Employer asserts it was done only because of the immensity of the Chicago postal contract Respondent further contends that it was done with the initial intent that Castallano would eventually take on ad ditional responsibilities but Respondent has asserted that Castallano had never progressed beyond the status of being a mechanic effecting minor repairs on equipment and it contends he otherwise performed only routine tasks of occasional driving collecting paperwork for and distributing mail from Boston and later upon Re spondent s obtaining its own fuel truck in Chicago, fuel ing the vehicles However it was acknowledged that Castallano did onsite interviews of job applicants and had authority to submit his opinions and recommends lions It is uncontested of record that Howard had worked for Employers predecessor-contractor for 4 years and that he had substantial knowledge of the various Chicago routes including their schedule interplay In that respect Mayo has significantly asserted that because of time con siderations he frequently relied on Howard s knowledge but not his judgment Mayo testified that he told McMa hon to tap Howard s knowledge but not to let him make decisions Howard regularly drove (at least through De cember I find ) a 38 5 hour (day) shift per week Em ployer also asserts Howard was the number one on-call employee for night shift, in short a contended regular backup driver McMahon s logs persuasively do establish that Howard drove a substantial number of hours at night and that they were more regularly of a covering or backup nature Although it is reflected in the logs that McMahon more frequently arranged cover by simply calling Howard there were other instances of record of Castallano or Howard reporting coverage arrangements being made by them, and occasionally of it being report ed to McMahon as being already arranged locally that one driver was to cover for another There was a log re corded instance of Howard shuffling drivers to effect coverages in an absence of a driver on November 29 The latter was clearly well after prior recorded instances where McMahon had reported an inability to contact Castallano to arrange a coverage at night, and it clearly was subsequent to the related time when McMahon had begun more regularly to contact Howard and rely upon him in coverages Moreover, Mayo acknowledged he had contacted the 2-day shift (Howard and John Cy chosz) and the two night shift employees (Hill and Pitt man) as to their interest in regularly being called on overtime opportunities (as was done on D C to Bristol run) Whether Howard was ever technically identified to McMahon as a backup driver or whether a refinement of permissible use of Howard s expertise and knowledge of interplay of routes and schedules was ever explained to McMahon vis a vis Howard s judgment on a matter I am convinced that Howard as a practical matter had comparatively shortly become the one in Chicago whom McMahon more frequently called upon and gave notice of any apparent driver s no show or lateness and that Howard either himself then covered the absence/lateness essentially as a backup driver or used his route and schedule knowledge and expertise to determine what driver(s) was (were) then available or would likely become most immediately available to cover and finally that Mayo was fully aware of that practice and proce dure To the extent Mayo has asserted he was not aware of such activity by Howard I do not credit that testimo ny With the passage of time Howard on occasion ar ranged coverages preliminarily and reported them to McMahon There is, however no evidence offered that Howard (or Castallano) has ever disciplined, or sought to discipline a driver for a driver s refusal when so con tacted by Howard (or Castallano) with a request to cover for another driver In the only apparently related instance where there was a refusal in Chicago to drive as scheduled the circumstance was that there was a mixup whether a driver was to drive as scheduled or had been given the time off Castallano on that occasion was con tacted in a conference call and the matter was resolved PEOPLE'S TRANSPORTATION SERVICE 207 by Castallano subsequently arranging for another driver to drive. It is, however, otherwise documented that in regard to a certain early truck sideswiping incident occurring on September 29, and involving Chicago drivers Hill and Pittman (who worked exclusively on McMahon shift) that McMahon has recorded a report of Howard that he would speak to Hill, and also recorded a Howard com- ment made on Pittman, "Last straw for Pittman." It is even more clearly recorded that Castallano and Howard reported to McMahon on October 18 their decision that they thought it best to "temporarily suspend" Chicago driver Harold Ralston for his failure to timely report an accident. Essentially Mayo's testimony was to deny either Castallano or Howard had the above authority; to state he had corrected each of them ; and as to McMa- hon, to assert, (a) that in the first 2 nights of McMahon's training he had initially told McMahon that field supervi- sors were not to take action on their own without con- sulting Mayo or McMahon first, that Employer wanted all disciplinary matters coming from Boston , and that none of the people in the field, regardless of title, had any authority to take any disciplinary measures by them- selves; and (b) that at time of the above incidents he had again advised McMahon as to their lack of such author- ity. Mayo also referred to an interim incident recorded as occurring on October 10, in which McMahon had re- ported that the Chicago Post Office had contacted Cas- tallano directly about a problem involving a driver's (Jim Johnson) no-show, without notifying McMahon. Mayo's related testimony was that he told McMahon on this oc- casion that although Castallano had the supervisor 's title, he had no authority; and that Mayo had accordingly di- rected McMahon to notify the Chicago Post Office to relay its problems directly to Boston by use of the estab- lished 800 telephone number . McMahon did not recall an instruction to tell a replacement postal official not to call Castallano, though acknowledging he might have been asked to ' call that official and explain the 800 telephone number procedure. It is concluded and found that he was directed by Mayo to call the postal official but, as well, that it was a replacement official , and that he was essen- tially to explain the established procedure of first notify- ing Boston. Respondent would rely on the same such incidents as evidencing McMahon 's lack of supervisory and/or mana- gerial control of Castallano and Howard from the outset. Respondent thus would rely on Mayo testimony that he had informed McMahon about Howard 's comment about Pittman that "Bryon Howard does not make disciplinary decisions , all discipline comes through Boston . Either you or myself." However, Mayo of record has also re- called that he told McMahon that Howard was just a lead driver , that Howard had no authority to discipline anyone , and that if he was going to talk to anyone, he should have talked to Castallano; and that he also had told McMahon about the October 18 suspension of Ral- ston , that no field supervisor had authority - to suspend anyone. The General Counsel has established that the October 18 suspension of Ralston was allowed- to stand; and McMahon has testified that the first time he heard the term lead driver was in January 1981. Mayo's explana- tion for the suspension being allowed to stand appears plausible on its face, namely,- that to withdraw the sus- pension would have only made things worse. However, Mayo's recollection then is that he had spoken` to all the parties involved explaining to Howard and Castallano they did not have that authority; and to McMahon the same, with general instruction that all discipline came from Boston from Mayo, or McMahon, or some higher authority; and later explained to Ralston that Boston did require a prompt accident report and, since he had not, a suspension discipline under the circumstances was war- ranted. McMahon has in turn testified that no manager had ever instructed him that field supervisors did not have the authority to discipline, or suspend, or that their disci- pline had to be okayed by McMahon; nor did anyone tell McMahon he should have prevented it. He specifically did not recall an instruction from Mayo that neither Howard or Castallano could suspend an employee. Rather, McMahon testified that, Mayo, at the time of McMahon's morning report on these incidents, had just acknowledged the reports when and as given. Finally McMahon has testified in (I find) a convincing manner that he thought such an authority instruction would have stood out in his mind, if Mayo had said that to him. Mayo's and Bruno's testimony in other respects about the underlying authority of a field supervisor, e.g., on au- thority to suspend, or to reprimand, was itself notably something short of consistent, indeed, in certain material aspects of discipline is discernibly internally inconsistent. As noted, Bruno on earlier occasion had testified about the supervisory authority of field supervisors; and Bruno specifically testified that Castallano could suspend, e.g., in the case of a driver drinking, and otherwise (apparent- ly) pending contact of driver and home office. On other occasion Castallano serving as "eyes and ears" for the Company was explained in terms of his reporting diffi- culties, eg., drivers not reporting for duty; and other things evidencing poor performance. Mayo's testimony was inconsistent as well with certain of Bruno's relations about a field supervisor's authority, and particularly Cas- tallano , and he made initial reference to both Castallano and Howard as supervisors . Appearing again far less likely at this time is any McMahon authority over field supervisors, particularly Chicago Supervisor Castallano, with a mind to the content of Mayo's own notes indicat- ing a comment was made to Castallano (and Howard) about October 4, as found infra, that report to McMahon was the same as to him but also that McMahon left him notes so that Mayo could get right on `them . In contrast, McMahon's testimony on these same matters, essentially denial of any authority grant or confirmation to him, was consistent ; was given with ' more than its own mere sur- face credibility , indeed , with its own claim ' to varied and substantial record support in this period ; and notably, is wholly congruous with the undisputed fact of Ralston's suspension standing , and McMahon 's only recording the reported incidents. Neither is Mayo's recollection of his comment on the October 10 incident particularly persuasive in evidencing 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an - existing McMahon authority over Castallano in the light of other evidence of record that Chicago drivers were instructed to call Boston which could beep Castal- lano if there was need for them to contact him, since Castallano might on occasion not be immediately accessi- ble by regular phone, and if beeped in any event would call Boston. In- the same sense Chicago postal authority direct contact of Boston with any problem was more ef- ficient in minimizing potential delays. On the other hand the ascribed Howard comment of "Last straw for Pitt- man" was entered in pencil, which strikes me as being, to some degree, of early hedging nature by McMahon, and thus indicative itself of either McMahon's recogni- tion of some potential of conflict with an earlier instruc- tion, or hesitancy otherwise as to propriety of recording such a comment from Howard. (McMahon had been in- structed to be careful what he put in his log.) In resolving this conflict, first I credit McMahon, at least to this extent, that Mayo did not on these early oc- casions instruct McMahon about McMahon's own au- thority, in the manner Mayo has now recalled and stated (or indicated), and relatedly I find, that Mayo did not in- struct McMahon that field supervisors, and specifically Castallano and Howard, had no disciplinary authority, or that an exercise of their disciplinary authority was itself subject to McMahon's approval. Nonetheless, it does appear to me essentially as being the more plausible that, upon notification, Mayo would have correctively, and separately, instructed Howard in regard to his McMahon reported September 29 Pittman comment, much as Mayo otherwise has recalled and testified, viz, told Howard that it was not Howard's place to make a report to McMahon that it was the last straw for Pittman; that if he (Howard) talked to anyone about it, he should have talked to Castallano (who was then clearly viewed, and entitled his superior); and noting the same is with the support of a following reported joint determination on the subsequent Ralston incident. Whether Mayo would have been prone to similarly have spoken to Castallano (and Howard) on the October 18 Ralston temporary sus- pension is much more questionable because of the above conflicting evidence bearing on field supervisor authority generally, and of Castallano suspension authority in par- ticular; evidence herein to support fording that suspen- sion was unquestionably an appropriate discipline for a driver's initial failure to report an accident; and here, the action initially taken was reported as a temporary sus- pension, and finally upheld by Boston, seemingly in ac- cordance with- Bruno's testimony, at least on one occa- sion. On the other hand, Bruno earlier, in late September, had instructed Castallano directly, albeit generally, that (when the other supervisors temporarily in the area for startup left) Castallano was to be the Company's. "eyes and ears" in Chicago, but that Castallano had to maintain strong communications with Mayo (and Bruno Sr.); and on that occasion also explicitly informed Castallano that Mayo had to, have final control of operations as Mayo saw the national. picture. Mayo was likely aware of that, at least shortly thereafter, just as Mayo was clearly soon made aware of Bruno's report of his own initial evalua- tion of Castallano as a field supervisor at this time, viz; that Castallano was experiencing difficulty in giving di- rections to the work force in the manner Bruno wanted, in that he had exhibited a tendency to tell, rather than ask, the drivers to do their work assignments, which was a matter Mayo was specifically instructed by Bruno to subsequently correctively stress with Castallano. Mayo's own notes on his subsequent multiple instructions given to •Castallano and Howard cover those matters, but do not squarely address the subject of Field Supervisor Cas- tallano's authority to discipline, let alone confirm, any specific restriction of his authority to suspend. The thrust of Mayo's directions at that time was for Castallano and Howard not only to forward any questionable matters on benefits, rather than make a mistake, but also to report driver attitudes to Mayo as soon as possible, with caution they could not afford malingerers or malcontents. On the other hand, certain of the very corrective instructions would appear to apply to the method of Castallano's continued exercise of his authority to direct the Chicago work force. It is warranted to observe as significant that all these developments would have occurred after Mayo's initial 2-day instructional period with McMahon. Also occurring in the interim before the October 18 in- cident (and October 10 incident as well), that Mayo was aware of, was further indication of a personality clash then developing between Howard, who has been herein described as a workaholic, and Castallano, described as easygoing, and anything but, as is reflected in McMa- hon's log ' recording of Monday, October 6, concerning two Howard-reported incidents. There Howard reported that Castallano had called a drivers meeting for the prior Sunday evening, but then had not shown for it, though the drivers had waited an hour for him; and secondly, that Castallano, contrary to an expectation of a new driver and Howard, had not shown to accompany the new driver on his first run, which Castallano subsequent- ly told McMahon was unnecessary as he felt the driver knew the route. Thus to the extent Mayo recollection would reflect a subsequent direct notification to Castallano and Howard of restricted authority on even temporary suspension of a driver, pending a Boston contact, the same is not without some record support therefor, albeit based on indirect in- ference. Accordingly, I credit Mayo to this extent, that he did issue such corrective instruction (or discipline re- striction) to Castallano and Howard, noting his observa- tion that they did not do it again appears an ^additional confirmation of him home out by the record. Be that as it may, what I have no reservation in finding is that Mayo did not. inform any of them, not Castallano, Howard, or McMahon, that, any field discipline had'to be cleared or approved by McMahon. Mayo's supportive implied assertions of such in raising rhetorical question at hearing of what else was the purpose in their reporting a temporary suspension to McMahon; and/or that (though there was no stated approval) McMahon had impliedly on this occasion given his own approval to the Ralston suspension, involve, in my view, but convenient mischar- acterization of the nature of the log report entry, Mayo's and Employer's self-inconsistency, and an assertion to much contraindicated by the weight of more credible PEOPLE'S TRANSPORTATION SERVICE evidence of McMahon, only the more so confirmed by the weight of his_ documented continued conduct of only reporting in that period. Notably none of the above is af- fected by later Bruno-Mayo, memo of October 29, of which McMahon was never made aware, discussed after the next consideration of the Kalamazoo contract. The same, however, on analysis, the more so supports McMa- hon. f. The Kalamazoo operations, etc. The Kalamazoo, Michigan to Gary, Indiana contract next came on line on October 18. It was • the smallest op- eration. It . was an operation (for, the most significant period) performed by three part- time employees. It in- volved two-step vans, which, though being of a smaller capacity truck, still had- sufficient -excess carrying capac- ity as to obviate any extra trip need in the pre-Christmas busy season. Two part-time drivers were domiciled in Kalamazoo, Michigan, and one part-time driver in Gary, Indiana. There was no local supervisor at either terminal end. In regard to backup driver, in Kalamazoo there were` two part-time drivers (elsewhere full time em- ployed) who worked for Employer essentially alternate days. It was thus generally anticipated- that the non- scheduled Kalamazoo part-time driver would be avail- able to serve as backup for the scheduled 'Kalamazoo part-time driver, in case of absence, sickness, etc. Though the same was not without some potential for a conflict of availability, Mayo did not recall such as a problem. The one Gary, Indiana part-time driver was to be backed up by Chicago, which was about an hour's drive distant; and, Chicago also handled regular truck maintainence for this operation. The Kalamazoo to Gary, Indiana route was itself a comparatively short route, a little over 2 hours (or 125 miles). A midpoint was first used on this run. Thus the two scheduled drivers would drive to a Mayo estab- lished midpoint at Bridgeman, Michigan, swap trucks, and return to their respective point of origin. The estab- lished meeting point was first alternated by McMahon following driver suggestion and agreement. The incident was reported to Mayo, and, such adjustment as a proce, dure and Mayo approval. In case of truck breakdown,,a continuance of undelayed truck through entire route was feasible, although 5500 issuance on one leg would result. Insofar as appears pertinent, Jim Verro and Jack Summer were the part-time drivers domiciled in Kalama- zoo; and Craig Thompson was part-time driver based in Gary, Indiana. - The Additional Training and Management Initiative Memo of October 29 Bruno wrote a memo to Mayo dated October 29 (G.C. Exh. 57(b)) which was credibly authenticated by both Bruno and Mayo. t 3 It was, however; also one I find 13 Pursuant to subpoena call, G C Exh 57(b), indeed the entire 57 series, were documents Bruno testified were found by Bruno in his per- sonal memo file as reserved by him for further review in his February 16, 1982 testimony in response to subpoena call The same were subsequently produced to the General Counsel (on April 16) during a hearing recess that extended from close of hearing February 17 to May 4, 1982 209 kept from McMahon's personal awareness.' In the memo Bruno relates that although Bruno realized that Mayo's training of McMahon had been limited, there was need for further training of McMahon, with Bruno instructing Mayo to make sure that McMahon understood "the im- portance of his making observations and suggestions"; and then stating, "Management initiative, on his part, is essential to the success of our night operations." 14 Bruno would have known of additional awards of local Bristol and DC BMC contracts at this time, and possibly the Harrisburg contract, as well. g. The Harrisburg to Wellsboro operations, etc. This contract came on -line November 15. Olin was as- signed to it at very start (actually the evening of Novem- ber 14). Olin was there for at most a week before return- ing to Buffalo. There were apparently three, straight trucks used in this operation.. There were four full-time and two part-time drivers employed, of which two full- time and one part-time driver were domiciled at each end of the run. After Olin left, Uglow was McMahon's contact. It is Respondent's contention that Uglow was not a statutory supervisor but a lead driver. Uglow was one of three drivers domiciled in the Harnsburg area Uglow regular- ly drove I find 48.25 hours on three routes. Uglow re- ceived $10 more per week, for performing errands, for bringing the trucks in for repair/service at Bruno Sr.'s direction; and for also collecting paperwork for Boston. Uglow also served as first backup driver for both Harris- burg and Wellsboro postal locations. There is no instance evidenced of Uglow's disciplining of any driver. There appears to be but one recorded instance of Uglow having given a driver a day off, Don Strang, on Decem- ber 24. It was Uglow who earlier suggested to McMa- hon that a new driver in need of a credit card, but pres- ently without one, borrow a credit card from another driver who'did not need it at the time, as Uglow did the fueling for their truck. McMahon's logs record an in- stance of Uglow, on contact by McMahon, reporting personal illness, and that he had already made arrange- ments with driver Vogelsong to cover his route; seem- ingly similarly so later with Noell when Uglow was overtired. Uglow filled out a time and mileage sheet each week. 7. McMahon's initial 60-day review on December 4 a. Mayo's and Norton's December evaluations of McMahon Norton apparently did not evaluate McMahon in writ- ing in December. However, Norton has testified that he had reported to Bruno, in regard to his instate oper- ations, that his impression was that McMahon was doing well and working hard. McMahon's log entries that he performed certain errands that took him away from the 14 Not found is a warrant for reliance on accuracy of incidents summa- rized in regard to Hill-Pittman , Castallano-Howard conflict and little D C disruptions, observing Bruno exhibited some degree of unsureness as to the first, and Mayo did not relate a McMahon involvement at all in the last 210 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD TSI desk, as a favor for Norton, further convince me he viewed himself workiiig for Mayo. It was Mayo who re- viewed him in writing. Mayo reported to Bruno in writing on December 2, in regard to out-of-state operations that he was basically "fairly pleased" with' McMahon's progress; and that McMahon "has a decent eye for details, and has done everything asked of him." Mayo listed McMahon's strong point as an ability, to relate to people, especially over the phone; that his projects were usually completed on time - with few" mistakes; that he had developed his problem-solving talents with, for the most part, what move to make becoming somewhat automatic; and that "he seems eager to learn & advance both position-wise and monetarily." It is noted that Mayo left question 9 on an accompanying Employee Evaluation form that he had filled out on McMahon unanswered as to peers, beyond adding a question mark. 115 Compatibly also with import of the October 29 memo, Mayo had here prepared a review memo (as he did in evaluating field supervisors). It' would appear on balance, however, that at best at this juncture Mayo had remained personally unclear as to McMahon's -actual status. To the extent Mayo has addressed operational incident criticisms of McMahon in the pre-December 2 period and, apart from certain incidents specifically considered elsewhere herein, Mayo's subsequent favorable review convinces me that such, if considered critically at all, were at this time actually viewed as but tutorial minor hitches in McMahon's training development in handling the TSI desk assignment. b. Bruno's review of December 4 The review of McMahon by Bruno at this critical time leading into the most busy period, is best presented in its entirety for its bearing on: McMahon's performance to date; the -then conceded actual limited degree of prior Bruno contact, direct oversight, and training; and the nature of his night TSI desk position presently occupied, especially vis-a-vis Bruno proclaimed opportunity for ad- vancement'and declared prospect of new jobs opening all the time. In my view, Bruno's December 4 evaluation memo confirmed that supervisory, managerial . status had not been awarded. 12/4/80 Joseph McMahon 60 Day Review-Effective Monday 12/8/80 Dear Joe: Normally a person in your position, at Minute Man, has been interviewed and hired by me. In your case your potential was noticed by Dick Norton. Dick felt you were a "cut above" and had more to offer than could be realized by your driv- ing. When we_ needed someone, in a hurry, to take over the 'night TSI desk, Dick did not hesitate to 15 Question 9 essentially severally addressed how well McMahon got along with superiors , peers, subordinates , customers, and other depart- ments . On a scale of I to 6 (not well-very well ) Mayo evaluated McMa- hon at 4 (high average) level in all categories with peers unrated recommend [sic] you. He still feels you have a lot to offer. . During the past 60 days Ken Mayo has had daily contact with you and your progress. your perform- ance is graded as "good overall." You are making progress in the critical area, of "judgment calls," you seem to realize an obligation to see, the job through. These are the things Dick & Ken have told me. My philosophy has been to hand pick my team, evaluating them as individuals based solely on their potential, ability and actual performance. In your case I have had little contact with you from the beginning. In addition your department is not going well. Yet, I can't blame you -for its fail- ures and I can't really expect you to cure the de- partment ills. So I'm going to leave the book open and your evaluation incomplete. Your next evalua- tion will ,be in June. This gives you six months to prove your worth and to prove your supporters correct in their recommendations [sic]. I'm sure you must see the tremendous opportuni- ty to contribute and advance at Minute Man. New. positions are opening all the time. Their [sic] is ab- solutely no limitations on your aspirations. All you have to do is DO IT!! Please remember, at Minute Man you are paid and promoted the old fashioned way, YOU EARN IT!! c. McMahon's sole (contended) warning There is conflict between Bruno and McMahon about whether Bruno's above review of McMahon was favor- able or unfavorable. McMahon - regarded it as a good review as he was rated good overall, and there was no real criticism of him stated in it . Bruno has testified that he did not rely on the favorable reviews of Mayo and Norton. Bruno relates that at the time of this review he was actually disappointed with McMahon as Bruno had expected an instant Mayo once McMahon' learned what they were 'doing. According to Bruno, even at this point he had a question whether McMahon would succeed, but Bruno decided to give McMahon the benefit of a doubt, as he had not interviewed McMahon for the job; and he felt there could have been a misunderstanding by McMa- hon of his responsibilities. Therein appears additional warrant for finding (at least) an admission that Bruno had not earlier personally presented clear definition of any contended supervisory/managerial job assignment directly to McMahon. Bruno' would explain the presence of the several non- critical remarks in his own review as designed to present his pre-answer to any argument against an asserted' in- tended criticism of McMahon in handling problems in the TSI department, by acknowledging that there was the major influx of business in the department, and by immediately posting that Bruno could not hold .McMa- hon responsible for the department, or expect McMahon to cure its ills. In Bruno 's view of the review, however, the token $25 raise he had provided in the attached wage plan that was to be effective through December 1981, and PEOPLE 'S TRANSPORTATION SERVICE the provision in the review for a next review, in 6 months rather than the normal year , were intended by Bruno to show McMahon that he was not doing the job. However, Bruno's testimony given ' on another occasion, viz, in a Bruno-McMahon subsequent discussion ' of the review , infra, relates there were other circumstances and another reason stated to McMahon by Bruno as basis for the 6-month review provision . Although the instant writ- ten review explicitly informed McMahon that his per- formance was graded ' at the time as "good overall," Bruno has nonetheless asserted the review in its above particulars was a warning to McMahon . Bruno acknowl- edged this review to be the only such (claimed) warning McMahon ever received :- To the extent document ' recit- als that his department "is not going well" and' that McMahon had "six months to prove. your worth, and your supporters correct" is advanced to support the (un- stated) performance warning , the same would appear just as clearly, if not more so, to relate , especially given dis- claimers of his fault in department problems , to the later explicitly stated opportunity stressed to McMahon to contribute in that circumstance and advance to potential new position by earned promotion. Thus , on the basis of the content of the document , itself I am not persuaded the same, reasonably viewed , portrayed a warning to McMahon . Neither, in my view, did it reflect managerial status presently occupied. d. Bruno 's conference with Mayo about his review of - ,. McMahon Mayo has essentially corroborated Bruno that Bruno had a discussion with Mayo about Mayo 's favorable review of McMahon . According to Mayo , it was on De- cember 4 or 5 that Bruno expressed both disappointment and surprise over Mayo 's review of McMahon. (Mayo did not see Bruno 's review.) Bruno said he had expected with McMahon's background that after a couple - of weeks McMahon would do the 'job just as Mayo did it. Bruno told Mayo that McMahon was not performing up to Bruno's expectations in terms of handling problems, and in his overall general performance . Bruno said he was surprised that Mayo had not picked up on some of the problems that Bruno saw . Bruno told Mayo that per- haps Mayo should change ' or alter the way he was' ob- serving McMahon so as to be more capable of evaluating McMahon in terms of problems : -Bruno mentioned, that he was anticipating that McMahon would use a good deal more initiative than he had shown ; and, according to Mayo , Bruno expressed concern with McMahon's lack of control of certain 'employees , particularly Castallano. Mayo told Bruno that perhaps his experience guideline, or direction , had been misdirected, and he would. pay closer attention to McMahon 's performance , and be criti- cal. Mayo has stated that he had been positive in his own review of McMahon primarily because he had stopped getting phone calls at night ; and because he thought. McMahon was making progress at night. Mayo has relat- ed that though Bruno was concerned with McMahon's lack of control of certain individuals; ' Mayo was not, as in his view it was (then) only a few, e.g.,. Castallano, Lawrence, and Strang. 211 e. Mayo's early December. notice of intent to resume teaching According to Mayo, it was also (at the latest) about this time , early December, that Mayo ' had given Bruno initial notice that Mayo desired to resume his teaching career . ' Mayo informed Bruno that he had an interview scheduled after Christmas at which time he'would know whether he would start in January , or the following Sep- tember , or not at all . It was understood by Bruno that if Mayo could obtain the position in January- 1981, he would take it. f. Bruno-McMahon conversations about, the review When Bruno gave McMahon his review Bruno. told McMahon that they could discuss it. Bruno's recollection was that he had three subsequent conversations with McMahon about the review within a period of 2 weeks following December 4 (Thursday). (McMahon recalls two conversations, only one in Bruno 's office .) Bruno re- lates that in'their first conversation in his office McMa- hon completely ignored the first page of the review, supra; and that all McMahon talked about was that the $25 raise being given him was a pittance. (The $25 raise would increase McMahon 's salary to $250, $50 less than Mayo 's existing salary.) McMahon confi rms that he tried to get more money, but has testified that when he did, Bruno asked him, "for what," then telling McMahon, that McMahon had no decision -making' responsibilities, and that basically his job was strictly a mechanical func- tion. Bruno's version is that; after McMahon said the $25 raise was a pittance , and that he could make more money driving, that Bruno had then said, "You know anybody could have done what you [McMahon] have done in the previous weeks; you're not doing anything other than answering the phone; [you're ] reacting, not planning , not managing the operation , not doing the job the way it is supposed to be done ." (However, in rebut- tal, denying that he had told McMahon that McMahon had no decision-making responsibilities , but rather had told McMahon there was a lack of initiative and deci- sion-making, Bruno in otherwise describing ' this . conver- sation did not then testify as'to his telling McMahon that he was not managing the operation .) In'. (incomplete) contrast , when the General Counsel had made an inquiry of Bruno seemingly , concerning Bruno's. _ not having sought to obtain initial impressions from McMahon (e.g., after he was on the TSI desk job ) as Bruno had with Hill on Hill's assignments (first in driving, and then in , the dis- patch office), Bruno's response at that time was that he did' not ask McMahon ' for his impressions, because McMahon's job was cut and dried. I am presently wholly persuaded the latter was the way Bruno (at least) initially ' viewed McMahon 's job, clearly , from mid- August discussions with Mayo through October 29. Ac- cording to Bruno, McMahon at this time said he would think about it, and get back. . As Bruno recalled, it was about a week after their first conversation about the review that McMahon came back to him to discuss it further . According to Bruno, McMa- hon started this discussion with the statement that he had interviewed for a job with a trucking company, for an 212 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD operations manager, like a dock supervisor or, dispatcher, and starting at $50 more, like' $300; and McMahon stated that the man had assured McMahon he had a future with the Company. Bruno has testified that, in that split second, before Bruno opened his mouth, he made up his mind, "this was not the guy for me"; adding the com- ment, "I mean hold me up, I'm going to get back at you sooner or later." Bruno additionally explained that they were doing $50,000 a week-in business, and from the first week, in Christmas, business volume virtually doubles. Bruno added comment that he felt McMahon was hold- ing him up for an extra few bucks, and not even address- ing the evaluation. Bruno has further testified that at the time he had mixed emotions, to throw McMahon out, but then realiz- ing if he did, he would be working 24 hours a day. Bruno relates that he swallowed his first instinct, and then inquired about the other company's assurance of a future, with a reference to McMahon talking to Bruno who was the president of his Company, as opposed to a manager of another company, and, if Bruno said McMah- hon could rise in the Company he could. According to Bruno, that approach appeared to strike a responsive chord with McMahon; and their discussion thereafter went along that line, omitting any discussion of Bruno's intended` criticism of-McMahon. However, Bruno asserts that he offered McMahon no- further money because he did not want to admit to McMahon that he (Bruno) was over a barrel. According to Bruno, McMahon asked about being provided transportation. Bruno relates that he then offered •a review in 6 months, rather than De- cember 1981. McMahon again said he would think about it. As noted, McMahon recalls only one conversation held in Bruno's office. McMahon otherwise confirms that he had sought employment elsewhere; that he did men- tion to Bruno a job offer he had obtained with another company; that Bruno had told McMahon that in regard to the other company McMahon was talking to a manag- er, and here Bruno was the company; and that Bruno could do more for McMahon than a manager could. However, McMahon has denied that he asked Bruno for a car; rather testifying that it was Bruno who said to him that 'next year "you could be looking at a company car" (in McMahon's view) to keep him. In regard to above referenced Bruno assertion of McMahon "holding up" Bruno, ' it is concluded in passing that McMahon surely knew that it was a very busy period immediately coming up. Moreover, Bruno's awareness of Mayo potentially leaving in Janaury would support McMahon's version of an effort by Bruno to keep him. There is no hard evi- dence that McMahon initially knew, or knew at time, of (any) review conversation with Bruno , anything about Mayo's anticipatory but indefinite plans to resume a teaching career. Bruno recalls a third meeting was held 2 days to a week later. McMahon said he had thought about it, and he would stay . Bruno was surprised, as he thought McMahon was going to walk . According to Bruno; McMahon said he would give it his best shot, but he did want to be reviewed in 6 months, and he thought he could 'do a better job.'McMahon also asked if there was a chance to pick up extra money, driving, or doing any- thing else (saying), -that he was not making enough- to live on. Bruno replied sure, "whatever, the need is, if Dick [Norton] needs extra help just,go tell him you're available, as long as it doesn't interfere with what your main job is." However, Bruno has testified that he had made up his mind at the time McMahon had said "he would stay employed with us that McMahon wasn't what we wanted; but [Bruno] would get through this tough period anyway, and tend to the matter later." McMahon's version is that Bruno simply came back to him and asked only what McMahon was going to do, if he was going to stay. According to McMahon, he re- plied yes, and Bruno then said, good. However, McMa- hon does confirm that he also asked Bruno about extra work, and Bruno-told him to see Norton. Norton con- firms the use of McMahon on driving both in periods of McMahon's offered availability, and- also on request of Norton, in short, a mutually satisfactory arrangement in execution. As McMahon drove an initial 18.25 hours in the week ending December 14 (and thus likely started at least 2 days earlier), and it is clear all the above meetings/conversations had occurred sometime prior'to his driving at all in that week, and as the first discussion was (at the earliest) a' day or two 'after review present- ment, it is sufficiently established all conversations/- meetings were closer to a span of a week, than two. g. The temporary training of another individual in TSI operations In light of Mayo's possible departure as early as Janu- ary 1981, Mayo (and Bruno) testified credibly that Bruno was concerned that somebody be immediately trained (to at least answer the TSI phone). Mayo recalled that in late December he began training warehoue dispatcher Bob' Clifford on the TSI desk, a couple of hours a day, for about a week. Mayo was off December 25 (Thrus- day)` until December 29 (Monday), during which period he"interviewed for the teaching job. On his return, Mayo was aware he was not going to start in January, and he promptly informed Bruno. (Mayo informed Bruno of actual acceptance and/or gave his actual notice in the spring (e.g., April) that he would be leaving in the next fall, for which long notice Mayo received later published commendation from Bruno.) It thus appears the more likely that Clifford was being trained by Mayo in the week immediately preceding Christmas, . thus starting about mid-December. More pointedly, however, just as I am convinced that it was the prospect of Mayo leaving in January 1981 that prompted Bruno to direct Mayo to commence training of Clifford to at least be able to answer the phone , I am similarly persuaded it was the same consideration which was precipitating influnce for Bruno to'direct Mayo in the same period to start pulling together all of his outstanding operational procedures and policies into one . source of operational information, viz, the so-called Red Book, concerning which McMa- hon remained discernibly ever vague in his recollections. Just as the training of Clifford ceased when Mayo re- turned without prospect of leaving in January 1981, it seems clear to me that the impetus for assembly of the PEOPLE'S TRANSPORTATION SERVICE 213 Red Book would' have lessened. Whether McMahon was ever made definitively • aware of the details of the Red Book, or not, I am in any event convinced that the prep- aration of the Red.Book was wholly Mayo's project re- sponsibility; and I am also convinced that McMahon has testified credibly that he continue to use the Rolodex in- formation. - - h. The genera l•overview of Bruno's, Norton's, and Mayo's assessment of McMahon's post-December 4 performance 'According to Bruno, with corroboration from Mayo and-Norton, Norton and Mayo had no decisional author- ity over McMahon's -continued employment nor discipli- nary authority over McMahon. All they did was offer in- formation to Bruno about the operations; and they re- ported'problems to Bruno, daily. Bruno has testified that he was trying to develop McMahon, who seemed to have all the tools, into a confident manager;,and that he was willing to allow time for that development. It was however Bruno's view of the TSI desk job that it was all judgment calls; and he felt either McMahon catches on, or he does not. Bruno relates that at first, after the De- cember 4 review, he did notice that McMahon was more intense; that he took more initiative, made more deci- sions ; but not what Bruno felt was necessary to do the job. Although he had not recalled such specifics as ini- tially a 611(c) witness, Bruno in later direct examination testified that McMahon attempted to make a change, as was evident from two (contended) attempted firings (Lacey and Verro) around mid-December, discussed infra. However, according to Bruno, it got to 'a point where McMahon was repeatedly making the wrong deci- sion, or no decision at all. Bruno related it got worse in the middle of December and the Christmas rush was a fiasco. Bruno also relates that by the first or second week in January 1981 problems in getting through the holidays were overcome; and volume dropped like a rock. Bruno, however, had acknowledged that it was the coldest winter they had had in many a year; and there were continuing operational problems. Indeed, Mayo has acknowledged that the degree of the fuel congealing problem (despiie fuel additive cuts) as, e.g., still experi- enced in January, simply had not been anticipated. The continued problem of delay because of the continually late Wall St.' Journal pickup had not been anticipated. Bruno also testified that employees had worked around the clock, and they were emotionally and physically beat. There were also payroll problems concerning all the extra hours that employees had worked. Additional- ly, the vehicles had not been tended to properly, with Bruno describing the latter circumstance , as a condition "that will come back to haunt you." In short Bruno has acknowledged there were any number of causes for the operational and personnel problems thereafter continu- ing. Nonetheless Bruno has also testified that after the holidays it seemed that McMahon had made up his mind that he did not need this garbage anymore. However it is to be fairly considered in contrast that in the same period McMahon was then working a 48-hour schedule on the TSI desk and averaging 35 hours a week driving in Janu- ary 1981. Bruno has testified that McMahon was fired for poor performance in his job as NSM at night, particularly on the postal contracts; and that in that respect, it was not so much what McMahon did, as it was what he did not do to get the job done. Significantly Bruno testified ini- tially that it would-be better if Mayo testified as to the details, but he did not leave it there. Bruno has testified generally that it was Employer's standard operational procedure in postal operations to get the mail delivered, no matter what. Though McMa- hon has countered with testimony that on one occasion (involving a trip accident) Bruno had instructed him to default a run rather than deadhead a truck a considerable distance to effect schedule coverage, it is also clear that Mayo has dispatched a truck to deadhead from D.C., or obtained a replacement vehicle, to effect late coverage of a scheduled run. More to the, point, I am persuaded by the clear weight of evidence herein that Employer's gen- erally policy was paramountly to pick up and deliver the mail as scheduled , or as close to scheduled time as would appear possible by all reasonable, and/or feasible, means. However, the same weight of evidence convinces that Employer would not indiscriminately underwrite major truck rental expenses (that might blow profit on a run for a week), e.g., if the circumstances were that another truck would reasonably shortly become available to effect coverage, albeit late coverage, irrespective of pres- ence of any occasional contrary suggestion by a witness that may appear in this record. Similarly, e.g., as in Nor- ton's runs , the noncritical nature of the particular mail load was a factor he considered. As noted elsewhere herein, Mayo, who worked days with Bruno, consulted with Bruno on rentals because of expense involved. There was also the offsetting consideration that a postal official had to be arranged to be present for a mail trans- fer between trucks. As to McMahon's contended deficiencies, Bruno has related generally that there were standard operating pro- cedures how vehicles broken down on the road were to be repaired, and McMahon did not follow them; that trucks would be broken down by the roadside for as long as 6 hours, without Employer knowing it; that McMahon had not planned ahead and arranged for backup drivers for coverage when someone was sick; and that Bruno would find out that drivers were given the night off with no replacement found. When it got down to specifics, however, Bruno would then also acknowledge that he did not know exactly how .the various backup systems that were in place had actu- ally worked. In a brief comparative summary thereof, e.g., as addressed to the subject of McMahon effecting driver coverages, it is made earlier apparent that McMa- hon had been given instructions to, and generally did, contact: in D.C., Lawrence and/or Olin later; in Chica- go, Castallano and/or Howard, but later primarily Howard ; in Harrisburg-Wellsboro, Uglow; and in Kala- mazoo, the usual practice was adjustment, though there was provision for alternate driver coverage. In regard to the Bristol local area , -schedule juggling had been nor- 214 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD mally directed by Mayo's note to McMahon; had other- wise essentially been without problem reported to McMahon from November 1 to mid-December, and when thereafter occurring, including with Mayo- not available (as when on holiday), contract had -been with, and/or arrangements made by; Harry Witt, lead driver in Bristol. (The essential problem with Witt, as we shall see infra, was with regard to his timely communications with Boston .) It was, as -noted, rare that McMahon had called a driver on his own directly; and he had exercised no au- thority in discipline of any driver who, on any contact by McMahon, on occasion had declined a dispatch on a then uncovered run. • In regard 'to a long roadside breakdown, Mayo 'has af- firmed generally that there were circumstances under which McMahon would not know of a driver's difficul- ty, until it was eventually, reported by the driver (or an- other driver, police, or an inquiry from the' next post office to -be served), which might involve'some consider- able time. In this regard, a driver was required-to remain with a disabled, truck if there was mail on board. Many trucks were without radio. If without radio, and disabled in a rural area, there might be no ready access to phone, or other means of ready report, other than by happen- stance. Many of the, longer' routes were through rural areas . Norton had unexplained 6-hour delay; and Mayo similar long delays. With regard to backup- hires, Mayo's testimony not only corroborates McMahon that McMahon did not hire anyone (in that Mayo has testified McMahon - was not there long enough to hire anyone), the same,' along with the area-backup systems evidenced as already in place, and Mayo's own testimony in regard to. special D.C. problem brought,-on by the emergency contract startup in early December,' warrants the findings that McMahon at that time did not possess, or exercise, independent general authority to hire anyone, let alone- had been made specifically responsible by anyone for the hire' and assignment of backup drivers, as Bruno seemingly above asserted. To the extent Bruno urges only that McMahon should have recommended that backups be immediately hired, e.g., in relationship to D.C. operations, Mayo was only too fully aware of the temporary D.C. need there; and if otherwise, generally; it was Mayo who.had set up all the different operations, and knew their. individual needs; including adequate provisions for backup, for which he had in fact reasonably provided. It is clear-that the above general assertions of Bruno are not, supported. Other matters of Bruno-claimed McMahon ',authority and/or, deficiency which I ford may be summarily treat- ed as insufficiently supported by the record are: (a) Bruno's assertion that McMahon told Bruno Sr. that a certain vendor was no good, and to use another one whose price was better, in light of McMahon's testimony thereon to. the contrary, corroborated as it is by Mayo; and (b) Bruno's broad assertion that most of the Kalama- . zoo run complaints were because of McMahon's failures, where it is otherwise apparent on the record, (including substantially from Bruno) that most_ were cold weather. or mechanical related. Moreover, in regard, to a particu- lar vehicle that for a period -continually acted up on that run, the record reveals that its difficulty about mid-De- cember essentially stemmed from a misdiagnosis by Cas- tallano, to say nothing about the more -repetitious diffi- culty experienced with a particular truck on Norton's Woburn run, without similar Bruno objection. In regard to Bruno's remaining testimony as a 611(c) witness' that McMahon was fired in part-because he had failed to initiate on his own and carry out discipline of employees on his shift who were creating problems; and because McMahon allowed.drivers,to, "stiff' him repeat- edly, without disciplining or discharging them, the same is of material significance, and treated infra, in connec- tion with Employer specific assertions of McMahon having made, or 'failed to have made, several, specific recommendations and unsuccessful attempts , to discharge certain employees, and Mayo's assertion that McMahon orally disciplined certain employees. Respondent's evi- dence' offered on asserted McMahon authority to disci- pline or discharge , in general , wa_s'anything but clear and consistent. As a- 611(c) witness Bruno initially testified generally that McMahon' could discipline and discharge; and that McMahon had received authority ' to reprimand drivers from Norton, Mayo, and Bruno himself. Bruno otherwise has testified that McMahon could 'suspend or discharge an employee for drinking on the job; that he could evaluate a "no "show" and discharge' immediately for a chronic no-show; and that he 'could evaluate a late em- ployee and either discharge for a chronic lateness, or decide to continue with the employee. To begin with, there is no documentary grant of any such authority or documentary evidence of criticism for failure to-specifi- cally exercise any such authority evidenced in this record: (The advanced unsigned documentary evidence of contended actual, or attempted, exercise of such au- thority is to be considered definitively infra.) Bruno re- lated occasions where McMahon would tell Bruno that a man did not show for 2 hours and McMahon say to Bruno that he thought he ;would go along with the em- ployee'another time; and if the employee would be late again , let him go. According to Bruno's recollection, he told McMahon, "Don't wait, the guy has burned us enough. Let.hith go now, before we lose a contract." McMahon, however, in general has categorically denied that any manager ever told him he had authority to discipline or discharge employees. Moreover, McMa- hon has testified that Bruno never told him to discharge or discipline anyone, though he had heard Bruno tell Mayo to do so. In that connection, following a Bruno- declared guess that McMahon had suspended and dis- charged employees, Respondent then (early) stipulated that McMahon in his capacity as NSM (night),- did not ter- minate any employees of (then described) Peoples-TSI, or Minute Man. However, shortly thereafter. Bruno would appear to have sought to recant from that position (with- out objection) in part, viz, that Mayo, or Norton, would know; only then on another later occasion to seemingly himself reaffirm that McMahon had never discharged an employee, but continue to assert he should have disci- plined employees . On-other 611(c) occasions Bruno -var- -iously testified, that he did not know if McMahon ever terminated anyone ; or if he had actually reprimanded, or PEOPLES 1 RANSPORTATION SERVICE issued disciplinary warnings only then to later rather significantly testify that Mayo had to have exercised the disciplinary action on employees that were on McMa hon s shift because McMahon didn t do one that I know of Bruno then asserted that Mayo should not have had to take the initiative that McMahon should have done Norton s involvement with TSI operations was very limited and the conclusion is warranted in general that his description of deficiencies in McMahon s perform ance in January and February was neither adequate nor persuasive in total Norton has more convincingly testa feed that the only postal contracts that he was involved with until January 1981 were essentially the Woburn contracts Norton excepted solely his report on brief in volvement with a long broken down TSI (Ryder) rental on Christmas Day The attendent circumstances there were that Mayo was off on holiday and Norton had eventually received the breakdown report Supported thereby and substantially otherwise of record is that McMahon s personal telephone number was not one pre viously distributed to drivers as was Mayo s and Nor ton s and also that McMahon never carried nor had he been instructed to carry a beeper for direct on call serv ice After McMahon was notified of this breakdown by Norton McMahon subsequently handled it Norton relates otherwise that his takeover of response bility for TSI was one of gradual development from Jan uary thorugh September 1981 However his identifica tion of Eric Fisher as a replacement for McMahon is more revealing of the nature of his continued limited in volvement Fisher was a replacement for Mayo who hired in the spring then spent 3 months sitting side by side Mayo learning Mayo s operation Nonetheless Norton re lates he had frequent conferences of varying length with Bruno (seemingly in January) but principally involving Bruno teaching him the operations and their discussion was about Bruno s philosophy as to how the various TSI operations were to be run Norton relates that Bruno on one such occasion in early January 1981 advised Norton of Bruno s prior unsatisfactory review of McMahon, and Bruno gave Norton Bruno s thoughts about McMahon s performance to date According to Norton Bruno said he was not pleased with McMahon that he did not think McMahon was going to make it and that he did not think McMahon was the man for the job Bruno also told Norton he wanted Norton to watch McMahon very closely he would also and they would get together thereafter to compare notes According to Norton Bruno felt it was an area of major concern Norton relates that he reviewed some of the TSI 5500s subsequently received in January but has acknowledged that he did not review McMahon s logs Norton asserts he observed McMahon and that he received some re ports from Mayo Norton has testified that it became ob vious to both Bruno and him that McMahon was not using good judgment and that he was not the person for the job However Norton on another occasion has testi feed that at this time he was just minimally starting to get involved in things certainly not where he would want to handle a problem of the magnitude of McMahon by him self and that he did not so much direclty supervise McMahon as confer with Bruno about McMahon s per 215 formance Norton has confirmed that he afforded McMa hon no constructive criticism in this period Neither Norton s nor Bruno s recollection of a major material incident occurring on the Harrisburg run on February 4 comports with Mayo s detailed testimony on the circumstances and effect of that incident discussed infra In brief Mayo did not support their collections of a truck with mail on board being improperly towed past a nearby post office without making usual delivery of mail before being towed on to the station to effect repairs nor of it being then locked up To the contrary Mayo re called no incident of a truck with mail ever being locked up and he identified only one other incident of a tractor being locked up overnight but not associated with McMahon fault supra Bruno despite repeated caution on guessing unfortunately evidenced a discernible dispo sition on the record to testify on specific matters of which I am convinced in light of record developments that he did not have either direct knowledge or accurate recollection Bruno s testimony on the above specific and material incident suffered the additional infirmity of self need for an immediate acknowledgement by him that the details he had just described (supportive of Norton s recollection) may not have been accurate but were the way he recalled the incident at that time Norton s de scnphon of certain other claimed McMahon deficiencies in this period upon the General Counsels examination of him thereon in general revealed Norton had even greater failing in recollections of the details and/or identity of certain of the advanced incidents even with documents made available to him The Vogelsong incident of Febru ary 4 1981 is considered further mfra because it is the incident Respondent has urged as triggering an immedi ate discharge of McMahon before it planned The specific problems otherwise were not recalled by Bruno initially he relating generally that they were not any more critical than others but that there were two, three or four glaring examples of what had been con tinumg Bruno then added that Mayo would know Bruno has also related Our mind was made up that McMahon was going to be terminated prior to the day he was Similarly Norton on frequent occasion other wise testified that not only was Norton s involvement with TSI operations acknowledged by him to have been very limited at that time but he also testified in regard to reports he received from Mayo, that he relied on Mayo s experience and investigation without conducting his own investigation or even at least consulting McMa hon thereon for his version of the facts Nonetheless it is warranted to presently observe in regard to a certain such incident at end of McMahon s employment that Bruno did significantly recall that he blew his top upon receiving Mayo s report on one (Harrisburg run) mci dent and Mayo s statement he did not know what to do about it and that Bruno subsequently told Norton that s it that McMahon was not even holding status quo but was hurting them that it s got to stop, instruct mg Norton to get rid of him Norton did confirm there was a discussion with Bruno essentially to the effect that they were not going to put up with it anymore and they had to bring McMahon s employ to a termination imine 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diately However by and large the issues of asserted spe cific poor performance are (at best) to be viewed those joined between Mayo and McMahon In general Mayo testified that after his discussion with Bruno (in early December) Mayo reassessed his way of approaching McMahon that he did things with McMa hon with greater intensity that he stressed the time-cnti cal nature of the postal operations and that he provided McMahon alternate solutions Mayo relates that for the first couple of weeks thereafter McMahon seemed more aggressive in handling the problems that McMahon began to evaluate and be more conscious of the people in the field he had control over that he made a couple of attempts in the area of discipline to handle personnel problems on his own and that McMahon thereby mdi cated to Mayo he was aggressively assuming his manage ment responsibilities as Mayo had desired him to do However Mayo relates that by and large thereafter McMahon reverted to his previous level or below Mayo has otherwise essentially summarized generally that McMahon was a college graduate and there comes a time when you have to perform all the time not just when it is convenient or you feel like it On the other hand Mayo has acknowledged that he and McMahon regularly experienced many of the same type problems mechanical breakdowns weather related breakdowns and/or delays e g fog snow conditions typical cold weather frozen exhaust brake conditions and (unanticipatable) fuel gelling that could and fre quently did occur while diesel truck was in operation conduct by drivers that they knew nothing about until after the fact conduct by post offices beyond their con trol occasions where they simply could not obtain equipment or personnel quick enough or circumstances where the post office was not satisfied with the equip ment they did have available (The 5500s of both TSI operations and of Norton s instate operations fully cor roborate the above as does Norton s testimony in regard to his own instate operations essentially confirm his own related experience with such problems) Nonetheless it is also Mayo s testimony that he ultimately reached the same conclusion Bruno did with McMahon evidencing major failures in (a) allowing (new) D C mechanic Stradley to operate a defective truck on December 20 (b) providing Kalamazoo driver Verro no help when broken down on January 3 1981 (c) allowing Stradley to go to Bristol on January 13 1981 contrary to Mayo s explicit prior instruction (d) McMahon s oversight on February 4 1981 in allowing Harrisourg driver Vogel song (after several hours thawing delay) to drive on with mail for a closed post office without McMahon s review of the schedule from which he would have been able to readily determine that the closed post office would open in 15 minutes and (e) an increasing problem in general lack of control of Castallano and Howard in chicago Strang in Harrisburg Wellsboro and Lawrence and Stradley in D C operations (and presumably Witt in Bristol) Before addressing the remaining advanced in stances (1) of (asserted) discipline/discharge on supervi sory issue (2) the specific asserted major incident failures advanced by Mayo and (3) the asserted lack of control of certain field employees it is well to present at this juncture Respondents documented predischarge reviews of McMahon and related matters with preliminary ob servations they were in content generally not so direct ed 8 The predischarge reviews of McMahon by Bowen Mayo and Norton Mayo s related January 19 1981 evaluation of operations a Bruno s direction that McMahon s performance be reviewed again in January 1981 Bruno directed the review be made of McMahon s performance Bruno asserts he was not happy with what was going on there were difficulties in the field and he felt the same difficulties that had occurred over the prior 2 months were continuing Norton corroborates that at Bruno s request in late January 1981 Norton solicited evaluations of McMahon from Bowen and Mayo Norton related that during this month (January) he had not held a real lot of hope that McMahon would succeed and that McMahon s failure to handle the Christmas crunch was an indication to him that McMahon was incapable of handling the position In contrast Norton had given a favorable report on McMahon s performance in early December and his admitted only contact on TSI work related to a Christmas Day breakdown on which he con cluded McMahon had performed well Given the above and Norton s testimony that he did not review any pre January TSI 5500s and did not review McMahon s logs at all it is reasonably clear that whatever impression Norton formed on McMahon s pre Christmas busy period performance was more likely one derived from others On another occasion Norton affirmed that in January for all intents and purposes it was Bruno who was making all the (TSI) decisions In connection with Norton s ongoing conferences with Bruno on postal op- erations in the December January period the same no doubt related in significant measure to recent postal corn plaints on the Woburn contracts for which Norton was directly responsible To the extent the timing of Norton s takeover of future management of TSI operations was initially affected by the developing consideration (in De cember) of whether Mayo would leave in January it was certainly a short lived one b Bowen s review ofJanuary 28 1981 Bowen s typed but unsigned review/memo to Norton with the date of January 28 1981 relates essentially that (a) McMahon was constantly late and had been very often incomplete in his compiling of certain statistical in formation on a monthly basis for TSI operations with a particular reference to Bowen s dependence on informs tion from McMahon on fuel costs on the postal con tract and (b) that he had failed to perform satisfacton ly otherwise in that McMahon had in regard to a much earlier assignment reported his other duties precluded him from performing the certain (then ) desired computer billing inputs for Bowen at night in his free time estunat ed to be then about 1 to 2 hours of work per night and that McMahon made it obvious otherwise that he did not like keypunching McMahon has essentially acknowl PEOPLB S TRANSPORTATION SERVICE edged disliking keypunching but explains the end of his computer assignment was based on a practical work con sideration viz that his primary duties regularly took him away from the location of the computer and he asserts after reporting that fact he was relieved of the assign ment The significant point here in my view apart form the matter of fuel reports is that the same had been re solved months prior to McMahon s discharge Although the Bowen review was unsigned and Bowen did not tes tify in this proceeding Norton has identified the review as that of Bowen submission pursuant to his request Before addressing consideration of documentary enclo cures found in McMahon s personnel file Norton has re latedly acknowledged that (a) he did not insert any 5500 form deficiencies in McMahon s file as he did in Schnei der s file in regard to determined deficiencies in the Woburn postal operations related to Schneider (and as Mayo apparently did with deficiency notations on Cas tallano) and (b) that Norton not only did not personally give McMahon any corrective instructions on any assert ed McMahon TSI deficiencies observed by Norton in January he had not as to his own instate postal oper ations at any time Mayo has denied he had supervisory or disciplinary authority over McMahon Mayo asserts he did not give counseling to McMahon but gave him initial instructions on how to do the job Thereafter, he would make suggestions to McMahon as to how the job might be done better based on his own experience c Mayo s review of January 29 1981 Mayo s typed memo to Norton with date of January 29, 1981 relates as an evaluation of McMahon s per formance that (a) in regard to Mopar Route Cost forms which were due on the 10th of the following month No vember s forms were not done until January 9 and De cember s (due January 10) were not yet started (b) in regard to Fuel Reports which were due by Friday of fol lowing week McMahon was on time fairly consistently in October and November but since then only on time on January 9 and (c) in regard to Fuel Certifications (viz the above compilations for Bowen who reviewed and always did the actual certifications) the same for period ending November 28 1980, were done January 6 1981 and figures for period ending December 26 1980 which were due on January 12 1981 were not (as of January 28) even in the building It thus appears that the fuel re ports for certification that Bowen had made inquiry of Mayo on January 5 were completed by McMahon on January 6 1981 With regard to fuel certification reports present in McMahon s personnel file was a handwritten and mi tialed note from Bowen to Mayo dated Janaury 5 1981 Where is that fuel certification for November ?m Please' It is thus apparent that though found in McMa hon s file Bowen s earliest inquiry theron was in Janu ary and addressed to Mayo, not McMahon McMahon has affirmed that he performed certain fuel compilations when the supporting records/reports were given to him by Mayo to do but he asserts that the underlying record procurements e g on fuel reports from the field were always disorganized and that the records were frequent ly incomplete in their presentment to him McMahon tes 217 tified further that he had made that very fact known di rectly to Bowen in earlier reports he submitted to Bowen at least certain of which Bowen had nonetheless accepted approvingly More significantly McMahon also denied that anyone ever informed him that he was the one to be held responsible for obtaining all the underly mg fuel records and for timely fuel report submissions McMahon has testified in further explanation that the data he utilized in making various fuel reports came from a variety of sources was regularly at least a week or two late in coming in was frequently then incomplete with the information sources duplicative and the accumula lion of records in general a mesh mash Fueling sheets from Chicago were from tanker source but also from fuel stations all to be forwarded by Castallano (or Howard) When Castallano had failed to send the fuel consumption reports in it hindered preparation of re ports Various DC fuel sheets and charge slips were sent up by Lawrence from D C disorganized in a box A lot of times the truck number date odometer reading or fuel amount (as opposed to cost) was omitted and it could not feasibly later be determined from a driver In areas other than Chicago different drivers drove and fueled different vehicles McMahon would collate the forwarded information by area to truck as best he could he would use charge cards driver sheets and if cards were not available charge slips and if there was a par ticular problem in getting information he would notify Mayo McMahon then made the compilations as best he could and reported to Bowen what was missing Ac cording to McMahon the available data problems were widespread existing not just in postal operations but in Minute Man courier operations as well Thus he relates Bruno Sr also wanted a recording of mileages of each truck each week Bowen after initially wanting mpg sta tistics on vehicles every 2 weeks later directed that monthly compilations be made for greater accuracy McMahon ended up compiling mpg statistics not only for postal operations for Bowen certification but also on the Minute Man courier vehicles Any observed fuel dis crepancy was to be turned over to Mayo who reserved to himself managerial decision on what to do thereon Mayo has also generally testified that he also worked on fuel charges reports when not completed by McMahon when he could With regard to a specific claim on base data for De cember compilation through December 26 reported as of January 28 as not in the building it is also warranted to observe that it was certain local individuals (whether supervisor or lead driver) who had been initially assigned responsibility to collect fuel paperwork for Boston Moreover in regard to collection and submission of fuel sheets specifically from Chicago that was one observed failure to carry out Mayo s instruction inter aha, on the part of Castallano (as declared by Mayo in notes written on December 19) that led to Castallano s temporary reas signment in late December ana eventual discharge about the second week in January 1981 Indeed Mayo notes reflect the first item of deficiency noted on December 19 was that he asked you [Castallano] to make fuel sheets up for trucks-not done Mayo testified that Castallano 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continued to be their eyes and ears even after some re assignment of duties until terminated There is no con wincing evidence that he was relieved of responsibility for fuel sheet submission prior thereto To the contrary it appears by this time Employer had its own fuel tank for fueling in Chicago and it was a specific assignment of Castallano to fuel the vehicles and to record and submit fueling sheets thereon With regard to the suffi ciency of reports submitted by drivers Mayo had occa sion to direct Clifford (thus a period mid December through December 24) to remind Kalamazoo drivers Verro Summer and Thompson (who all worked in McMahon s shift) that they had to record the truck number and odometer reading every time they fueled up On the weight of consistent evidence I credit McMa hon s version of his limited assigned responsibility in se curing required fuel information On the weight of evi dence I further conclude and find there was duplication in reports submitted that it was not feasible to call most drivers on missmg elements and essentially McMahon made due after discussions with Mayo with reports compiled from available fuel sheets cards slips etc Finally in evaluation of the above (as compared with other testimony of Mayo in regard to asserted McMahon operational failures) it must be observed as very sigmfi cant that Mayo essentially did not in writing mention any operational failure in his review Mayo has testified explicitly that he did not know the reason for the term ma Lion of McMahon at the time of McMahon s termination In contrast with the essentially administrative content of Mayo s January 29 memo Employer in this hearing has unquestionably placed its primary reliance on contended continuing operational deficiencies of McMahon Mayo would explain the omission of any reference to such in his review of McMahon s performance essentially on two bases (a) that at this time Norton s interest was primarily in the administrative end of TSI operations (with Bruno being directly involved with actual operations) and that Norton had only asked Mayo for an evaluation of McMahon s deficiencies in his administrative duties and (b) Mayo had been already reporting operational deli ciencies of McMahon to Bruno daily as they occurred and the matters he reported in his above written review were matters that he had never previously discussed with or reported to Bruno On the basis of Mayo s own testimony it is presently concluded and found that at the time of McMahon s termination Mayo did not know that McMahon was being discharged on the grounds of (as serted) operational deficiencies (1) Mayo s prior request for a system review on January 19 1981 Mayo has identified a certain memo (G C Exh 57(d)) from him to Bruno which Bruno testified he had found in his personal memo file, and which Bruno testified he assumed he had received about its date of January 19 1981 That memo notably does not specifically refer to any McMahon operational deficiencies in Mayo s sum mary made at that time that their system was not work ing, and should be scrutinized along with further reveal ing admission that he (Mayo) was falling behind in his own paperwork The memo does not specifically assert that McMahon s operational deficiencies were the cause for the system not working It does explicitly and signili cantly so recite Mayo s claim (under exisitng system) that all the night problems were falling on Mayo The latter as an observation by him is timely supported at least to the extent of an occurrence of a refusal by a cer tarn tractor drier (Lacey) to perform a (Mayo) changed assignment at night which problem was first reported to Mayo at his home by McMahon in the very early morn mg hours of that day It is presently concluded and found that Mayo sent the aforesaid memo to Bruno on or about January 19 Although the General Counsel would appear to urge the document should be additionally que'tioned on the grounds that McMahon s name is mis spelled in it Mayo s testimony would appear adequately to account for this discrepenacy as being a hurried typing error on his part This Mayo memo has other sig nificance discussed mfra and it specifically provides in full Nothing much has changed If anything the oper ation has deteriorated Joe McMahon [sic] says his driver morale is at an all time low because of continuing payroll and schedule [sic] problems We both know service is temble especially on the night P 0 runs Our system isn t working All the night problems fall on me Because of that I can t devote all the time I should to my own operations I in way behind on my paperwork I suggest that our whole system be scrutinized There are testimonial inconsistencies between Bruno and Mayo about the meaning and purpose of this memo Bruno has testified that Mayo s memo was not meant to be a direct criticism of McMahon However Bruno re lates that Mayo was frustrated with lack of progress in organizing the system in a manner to keep them from op erating in a crisis mode all the time and in discussion Mayo did relate that he was spending a good part of his day working on situations that developed at night In contrast Mayo has testified that the impetus for it was frustration with McMahon's work performance Howev er Mayo has then testified that the deterioration he prominently described related to delay problems contmu ing on the Prince George to Roanoke run (because of the Dow Jones continuous late pickup which was not McMahon s fault) though also with general assertion to mechanical problems he felt were not necessarily being handled by McMahon most expeditiously and to person nel problems pnmanly Harrisburg driver Strang and D C mechanic Tom Stradley whom Mayo has asserted McMahon could not handle but with whom Mayo as serts he had little contact Mayo further relates he dis cussed the problems with Bruno and Bruno told Mayo that he wished he had seen what Bruno had (seen) back in October November It is Bruno s testimony otherwise that while Mayo did not register therein the specific complaint that it was McMahon s operational deficien cies that were causing the system failure he (Bruno) had picked up on that as a consideration from various Mayo reports and his (Bruno s) involvement at the time with PEOPLES TRANSPORTATION SERVICE employee discharges/disciplines and hinngs It is thus confirmed generally that Mayo did regularly consult with Bruno on discharge/discipline actions in busy De cember 1980 and January 1981 periods (2) The Post Offices written complaints At the outset it may be observed that Bruno does not assert that the receipt of any written postal complaints entered into his own consideration of McMahon s per formance, or was a factor in his decision to terminate McMahon initially as soon as a replacement could be found Nor could he The first postal complaint letter re ceived in material time was received in early December but related to the Woburn contracts being handled by Norton, with a conference requested scheduled, and sub sequently held on January 7 1981 That meeting was fol lowed successively by post office imposition of fines Employer appeals, and eventual Post Office recision of the fines, when Employer learned of, and was able to present evidence that its service provided on those con tracts had in any event met and exceeded the (apparent ly) acceptable standard of a contractor providing 95 per cent (or better) on time service Mayo was regularly made aware of all other postal written comments on TSI contracted service McMahon was not The Post Office s written comment on the serv ice provided on the largest contract (Chicago) was ap parently one solely of commendation There was in point of fact only one postal complaint letter on TSI oper ations received prior to McMahon s termination on Feb ruary 5, 1981 That complaint letter dated December 31 1980 was in regard to contract irregularities on the Kalamazoo run which was as previously noted the smallest run It covered incidents occurring in the last 30 days thus covering essentially the month of December, Employers and the various post offices busiest service season and as related principally so in Chicago which normally provided maintenance and partial backup on that run The letter presented request that there be a meeting between Employer-contractor and the local (Kalamazoo) post office on Janaury 14 1981 Whether such meeting was held then or later it is notable that there was a second postal complaint letter (undated) on this same contract The second letter asserted unsatis factory service but period there covered was from De cember 27, 1980 through March 20, 1980 with request for a formal conference on April 21, 1981 It is thus readily apparent therefrom that the postal service coin plaints on Employers service provided on the Kalama zoo Michigan to Gary Indiana run had continued well past McMahon termination There was also a complaint letter dated March 18 1981, received on the DC to Bristol service which similarly covered irregularities occurring on that run from December 27 1980 through March 15, 1981 Thus, once again it is apparent the service complaints on the DC to Bristol (and return) run also extended well past McMahon s employment There was otherwise only one other postal complaint letter with date of February 12 1981 in regard to Bristol contracts There it was asserted that there had been an excessive number of contract failures or irregularities in an unstated period but refer 219 encing that of 15 such irregularities 11 had involved a vehicle not being available which the Bristol Post Office viewed as unacceptable (Unavailable here means only not available at time of scheduled run for whatever reason) However the letter requested no meeting but only requested that the require and necessary action be taken immediately While Employer would question its fault in some of the above-declared 11 instances of a ve hicle not being available at scheduled time e g because of weather, it did not contest the Bristol recitement of irregularities, as it did the imposition of fines on the Woburn contract Two considerations would appear of immediate analyt ical significance from the above First as noted, the only TSI postal complaint actually received prior to Employ er s termination of McMahon was the observed one on the Kalamazoo run In regard to that run Bruno had on one occasion specifically asserted that he was being re quired by the post office to fly to Kalamazoo to defend Employers service under that contract with Bruno then generalizing all of the service deficiencies on that run were to be ascribed to McMahon performance failures Bruno would appear to have subsequently substantially recanted thereon in indicating (and in any event I find) the same the more so to appear to be related primarily to cold weather and/or mechanical breakdowns Addition ally I find that McMahon regularly limited such deficien cies by the use of alternate, or adjusted meet point What would appear as anomalous otherwise in the above however, would be the necessary comparison of Bruno s above assertion of a primary fault in McMahon for irregularities on the Kalamazoo run with Employer later urgings in regard to claimed repeated instances of McMahon s unsuccessful efforts to discharge and/or effect discipline of one of the three part time employees (Verro) who appears very prominently involved in the irregularities being encountered on that run d Norton s review of February 2 1981 By typed memo to Bruno dated February 2 1981 after first referencing the above Bowen and Mayo eval uations illustrated McMahon s deterioration in his admin istrative duties Norton went on to add his own evalua tion as follows In addition my personal evaluation is that Joe certainly has shown the ability and desire in the past in his operational capacities However he cer tainly has not responded to the pressure of our winter operation As Ken notes he constantly makes errors in following through on vehicle prob lerns which is one of his most important functions Ken also says that he is not getting all the informs tion he should be from Joe on personnel problems I see his overall performance and production drop ping steadily as our need to depend on him in creased My recommendation is therefore that Joe be re placed ASAP He does not have the desire to sec ceed [sic] as is shown by his increasingly unaccept 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able performance. He cannot, in short, hold a candle to Ken. The above memo was also not signed., However, it.not only was identified by Norton, it contains Norton's ini- tialed handwritten postscript of even date, "In conversa- tion with JB this date-Joe B -agrees with the overall poor evaluation of McMahon. Replace ASAP-put ad in the paper." However, Respondent acknowledged that Mayo was not informed of the decision of February 2, 1981. The ad was''not placed in the paper until February 8, 1981; and then in the general help section, for a night' dispatcher. Norton's- review contains the assertion that McMahon had constantly made errors in vehicle pioblem follow- through, as reported by Mayo. Mayo's evaluation does reflect assertion that McMahon had a definite'', lack of communication on Massachusetts vehicles with problems, with assertion he had on a few occasions mixed up' num- bers of vehicles which caused confusion in the repairs and hindered the operation. However, Mayo appears to have clarified at the hearing that his last comment in review was an add-on, based on one recent conversation Mayo had with' Bruno- Sr., in which Bruno Sr. told Mayo with an expression of vehement frustration that he had recently sent a mechanic-to Woburn to -work on a particular truck, on the basis of a McMahon note with a truck number, and' the truck was not there; and the me- chanic's trip there was wasted. In that respect McMahon has testified-that changing truck numbers was a Bowen administrative project, with correct placement of new decals on the trucks to be performed in the field; and that McMahon's involvement with the project was at • most only one of putting the decals into envelopes for distribution to the field locations. Be that as it may, what does appear depicted from Mayo's testimony in any event is generalized comment on one incident reported by Bruno Sr., and even more revealed from the then em- phasized (review) reliance by Norton in his presentment of it as basis for • a conclusion that McMahon was con- stantly failing in one of McMahon's most important func- tions. In *my view, instead of a conviction of poor per- formance generated thereby, there is'a rather strong indi- cation emanating therefrom of the limited degree of Nor- ton's actual involvement and awareness of the TSI'oper- ations at this time. • In summary then, the reviews of Bowen and Mayo es- sentially do not address the many contended operational deficiencies of McMahon advanced herein; and they are also' upersausive on the administrative deficiency details they do relate. It is only Norton's review, following ac- knowledgment of McMahon's demonstrated operational capacities "in the past, in reference to McMahon's nonre- sponse to'the "pressure of our winter- operations" that 'has addressed , in any real sense , contentions of oper- ational deficiencies; but' Norton then shown in this record to have had very limited knowledge thereof, indeed to have provided clearly discerned ineffective tes- timony thereon. Thus unless substantially and credibly supported otherwise , e.g., by Mayo's and- Bruno's testi- mony, and the documentation (in question ) offered, the pre-review discharge documents are to be concluded as too porous with inconsistency, and lack of cohesion, to -be deemed convincing that Employer would have dis- charged' McMahon at this time in any event for the rea- sons it therein stated. Notably Norton, even then, did not follow up on the decision for almost a week. 9. The status of Tony Castallano and Bryon Howard in Chicago; the nature and extent of McMahon's input into the discharge of Castallano - There is no dispute between Mayo and McMahon that McMahon from time to time had experienced difficulty in.contacting Castallano at night. McMahon has candidly summarized that is what he has reported in his logs. Mayo has testified even more revealingly of the nature of that intended contact, in testifying that Castallano cre- ated additional problems for McMahon in that when there was a situation in Chicago which required•a supervi- sor's attention, McMahon knew he was supposed to call Castallano,: but he had .a great deal of trouble reaching Castallano. It is clear that Howard was regularly on call for backup driving, and that he did a lot of backup runs at night. However, Mayo has also essentially acknowl- edged that Castallano could have covered some of these runs. It is established that is what Employer's. field super- visors elsewhere were expected to do;. and it is what they regularly did do. Mayo_ has also related occasion when in discussion with Howard, Howard had men- tioned to him in general that Castallano did not seem to be. aware of the (time) critical nature of the postal con- tract; and Mayo has testified that he agreed with that evaluation. , Bruno has testified that he decided to terminate Castal- lano; but asserts that he did so on the basis of input re- ceived from both Mayo and.McMahon. In that regard, on December 11, at 5:05 a.m., McMahon had recorded in his event log that Castallano tried to pawn a trip off on Howard that McMahon had asked Castallano to cover. Castallano subsequently arranged that still another driver cover that run. Mayo . has asserted, and McMahon has denied,' that he and McMahon had at this time decided to put 'pressure on Castallano. In regard to the above entry; McMahon has more particularly testified that it was-Howard who had reported to him that Castallano had attempted to get Howard to cover this run. Howard did not testify. I credit McMahon. It appears Mayo assigned Castallano to drive the next day, December 12.' On this assignment Castallano fell from a loading platform and fractured his wrist. It is ad- mitted by Mayo that he had also assigned Castallano to cover a Gary to Kalamazoo run on December 13 for Gary driver Thompson, who was to be off because his wife recently had a baby. According to Mayo, after his injury, Castallano called Mayo up, and made a claim that he should not be driving that run because of' his injury. Mayo asserts that.Castallano told Mayo that McMahon had earlier told Castallano that he had to drive it. --McMahon, however, has denied that he- instructed Cas- tallano that Castallano had to take this trip despite his -wrist injury. -Mayo acknowledged that he had'not there- -after checked out any such Castallano statement with McMahon. Finally, Mayo acknowledged that he directed PEOPLE S TRANSPORTATION SERVICE Castallano to take the run the afternoon before after Castallano had the wrist injury What is clear and found is that Castallano was as signed and was continued in the Gary assignment by Mayo In that regard Mayo has otherwise explained that the trucks used in this run had an automatic shift and it was anticipated that there should be no problem with Castallano driving However the truck that Castallano was to drive (apparently on its last back legs) to Gary was Truck #67 which was running roughly at the time Castallano drove this run on December 13 McMahon s logs for such date reflect Verro s report at 12 35 am that Truck #67 was dying at the meet point (Bndgeman Michigan) Castallano reported at 1 am that he would try to make it to Gary with Truck #67 later reporting at 2 25 am that he had made it and significantly that Castallano would try to have Truck #67 fixed on De cember 14 (Sunday) and if not possible would rent a ve hicle for December 15 Mayo has testified that Castal lano may have picked up a rental but he had never rented a vehicle before The repair of #67 that was thereafter effected by Cas tallano on December 14 was apparently a filter change and/or fuel additive However the engine of #67 contra ued to run rough on December 15 the problem was eventually identified as a cracked spark plug that had es caped prior diagnosis by Castallano In the interim on December 15 McMahon recorded relatedly that driver Verro is becoming a royal pam Jim threatened to leave #67 at the halfway point [Bridgeman Michigan] #67 has been running rough-backfiring through carburetor However this truck completed the 12/13 trip in this condition and made it to Bndgeman from Gary The above entry makes it persuasively clear that McMahon at this time was being critical of Verro s complaint reaction (elsewhere described by McMahon as bitching and moaning) about his having to drive a continuously poorly performing vehicle and not Castallano s failure to have effectively repaired it or failing that to have ar ranged a rental of a replacement vehicle Mayo testified that he could not discharge Castallano without Bruno s approval because Castallano was a super visor Mayo in that regard relates that he made an evalua tion of Castallano s performance to Bruno at this time but without recommendation However Mayo has testi fled (in regard to performance) that (in his view) Castal lano was no supervisor and not much of a mechanic Though the record is not without some Bruno and Mayo inconsistency thereon I am persuaded to accept Mayo s testimony to the effect that on December 19, Bruno had decided and informed Mayo that they would no longer function with Castallano as their representative (supervi sor) in Chicago but Bruno did not want to discharge Castallano before Christmas On December 19 Mayo in formed Castallano that he was to be relieved as supervi sor (elsewhere that he did not trust Castallano as a super visor) that he could continue (temporarily) as mechanic and also drive a 2 hour run at 3 45 a in in the morning 6 days a week at a salary of $235 a week Castallano was given until December 22 to respond From stipulation that Castallano last worked 12 hours in week ending Jan uary 11 1981 it is apparent he accepted the arrange 221 ment Castallano s letter to Mayo confirms Mayo had previously conveyed a displeasure with Castallano as both supervisor and mechanic and with Castallano making request for another chance at the supervisory title It is Mayo s testimony that Castallano continued to be their eyes and ears etc throughout his employment Howard continued to be called on backup situations It was only thereafter that Howard s hours were for a time reduced (apparently 20 percent) and according to Mayo McMahon notified that Howard could now be called on mechanical matters errands etc Mayo s notes made in connection with his December 19 conversation with Castallano confirm as then identi fled ana summarized Castallano -- deficiencies inter aha that Castallano had been told by Mayo to make up the fuel sheets and he did not that Castallano did not call Bruno Sr every day (on mechanical matters) as he had been directed to do by Mayo that he had not regularly or timely fixed driver reported truck defects and var iously but essentially that he had been repeatedly in structed by Mayo to drive the various routes and learn the schedules and he had not done so and that he had failed to follow several other Mayo instructions e g to get a babysitter and to send up local newspapers to assist Employer in finding a garage etc However Mayo has testified that Castallano s failure to learn was the prin cupal reason for his discharge (There was no mention therein of any recent failure to rent a vehicle) Relatedly with regard to Mayo s assertion that McMahon had more problems with Castallano than Mayo did at best Castallano was on 24-hour call and it is clear from the above that Mayo s own problems with getting Castallano to follow Mayo s instructions were substantial It is concluded and found that it was Castallano s con tinued failure to follow Mayo s several explicit mstruc bons, but chiefly Mayo s repeated direction that Castal lano himself drive and learn all the routes that led to his eventual release McMahon s reports (essentially) as to his own difficulty in contacting Castallano at night and the recent Howard report were but symptomatic of Cas tallano s continued basic deficiency in failure to drive and learn the routes as Mayo had instructed, and in the appreciable time Mayo had allowed him so that he might function in backing up any driver in Chicago as field supervisors regularly did elsewhere and unquestion ably take some of the load off Howard Although I have no doubt that Mayo inter aha, had consiaered the night reports of McMahon in reaching a decision to carry his evaluation of Castallano s overall performance to Bruno at this time it is concluded and found that it was Mayo who elected to do so at this time and he who thereby did effectively recommend the release and/or reassign ment of Field Supervisor Castallano at this time not McMahon and in that regard McMahon had theretofore only reported incidents and/or essentially passed on from time to time reports that Howard made to him in regard to Castallano s work performance Moreover, even where Mayo s additional assertion to be credited that at this time he had also asked McMahon and re ceived agreement of McMahon that Castallano was not salvageable, which McMahon has specifically and cate 222 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD gorically denied,,the clear weight of the above evidence, particularly Mayo's own recorded notes on Castallano's deficiencies, wholly persuades me that the partial yeas- signment, .and eventual release, of Castallano was by Bruno's decision ,, on Mayo 's implementation , determined at this time on basis of Mayo's, reasons , involving Castal= lano's continued failure to follow Mayo' s instructions. I am resultingly wholly convinced that any arguable input of McMahon therein was not that of a statutory effective recommendation of discharge . It is clear from numerous admissions of both Bruno and Mayo and the record as. a whole that Castallano was a statutory field supervisor with assigned responsibility to direct and evaluate, and (at least) effectively recommend hire and, more probably than not, discipline of employees in the Chicago work force. To the extent Respondent has urged as a consider- ation otherwise that, McMahon had failed to exercise a proper control of Field or System. Supervisor Castallano, and also Bryon Howard, whether the latter - tie also viewed a statutory supervisor, or but lead driver under Castallano, the same is to be concluded, on this record, to be wholly without merit. 10. McMahon's purported typing of evaluative and/or'recommendatory notes; `and discharge memo/letters (herein consideration of questioned unsigned documents); and related issues of -failure to control certain field employees a. In general Under present consideration are essentially six unsigned typed documents 'purportedly to be attributed to ,McMa- hon authorship, viz, General Counsel's Exhibit 57(c), and Respondent's Exhibits 6, 10, 11, 12, and 13. Also consid- ered herein is a handwritten Bruno memo purportedly addressed to McMahon (R. Exh. 24). -Broadly viewed, an initial admission issue was present- ed on the General Counsel's claim there was a late pro- duction of certain of these subpoenaed documents such as to cause them to immediately fall to the Board's exclu-_ sionary rule application. Over the General` Counsel's ob- jections initial ruling was made at hearing (on R. Exh. 6) which in effect did not, as urged, preempt, or preclude Respondent 's further examination on questioned docu- ments in support of showing' that they were, as claimed, subsequently found - in personnel files previously pro- duced for the General Counsel's inspection , ;either at hearing, or' prehearing; or, for that matter, preclude the General Counsel from making showing by' evidence, or any prior agreement on reviewed files, that they were not. Respondent's Exhibits -10, 11, 12, and - 13, as to which certain inconsistencies later arose in Respondent's- supportive testimony, were' subsequently conditionally received for evaluation in light of entire record-showing (including production issue). Respondent centrally asserts , in its brief, that Respond- ent did- not refuse to-comply with a subpoena duces tecum. Essentially, Respondent would rely (e.g., as-evidencing its good faith in - its responses , to subpoenas):'-'on the access it had- provided 'the - General Counsel" to its records, pursuant to subpoena, even prior to commence- ment of hearing - in June 1981; on its further contention that, when the hearing resumed in November, the Gen- eral Counsel was provided with extensive personnel"files pursuant to subpoena ; and its related contention that 2 days of 'hearing were set aside for review of the pro- duced files, 'at conclusion of which review the General Counsel requested certain files be, made available to him in ' the hearing room, - which was subsequently done. Re- spondent has also concluded , in its brief that the reason certain documents were not produced at the outset of (resumed) hearing , was either because of , a failure to - counsel after examination of files to-find same, or, they were located in files that a ,good-faith search prior to the hearing failed to disclose ; that the documents were dis- covered by Respondent subsequently in • its own review of the files; and, in its brief, it has also contended that as soon as Respondent became aware that these documents existed, they were immediately brought to the attention of counsel. Respondent asserts that Bruno testified that the, documents (G.C. Exhs. 57(b), .(c), and -(d), R: Exhs. 6, 10-13, 24, 25(a) and (b)) were found either in person- nel files which previously had been given to the General Counsel (such as R. Exhs. 6, 10, 11, and 12) (though without record citation afforded in support thereof, or in case of R. Exhs. 13 and 25 and G.C. Exh. 57, in a per- sonal memorandum file controlled by Bruno); or, in one instance , a file kept-by Bruno Sr. (R. Exh. 24). Finally, Respondent contends, in brief, that the General Counsel had- opportunity to. examine Respondent's witnesses pur- suant to Rule 611(c) of the Federal Rules`of Civil Proce- dure; and, that no prejudice has resulted to the General Counsel's case. .Respondent would have it • ultimately concluded and found, on the basis of Bruno and Mayo testimony offered thereon, that each (and all) of these documents (excepting R. Exh. 24) were authored by McMahon . Respondent has then centrally urged in brief that all these documents conclusively -prove that McMa- hon was acting as a statutory supervisor at the time of, his discharge. In contrast, on the merits, the General Counsel has urged that there has been an effective, full, and credible refutation by McMahon of his authorship of any of these documents. It-is the General Counsel's related contention that McMahon's denials of authorship are to be viewed the more credible evidence because of the consistency of McMahon 's testimony ; in light of all 'the circumstances of the ` produced documents, and substantial inconsisten- cies asserted 'to exist in the 'testimony 'of Respondent's witnesses thereon;"and because Respondent failed to pro- vide certain supporting evidence it had indicated existed thereon . Finally, as a corollary to the renewed assertion that there was- a late- (subpoena) production of docu- ments, the General-Counsel has urged in brief, that find- ing is warranted herein that certain of the documents are late produced inventions. In addition to Respondent's ex- planations essentially of earlier production and/or late discovery, after •an earlier diligent search, Respondent has itself urged that all of the General-Counsel's late produc- tion cross-arguments are just a smokescreen to cloud the clear probative and dispositive effect that these docu- ments should be found -to have on the' central ` statutory supervisory issue. PEOPLES TRANSPORTATION SERVICE (1) Preliminary observations The principles governing initial admissibility of un signed documents are to be distinguished from those governing the subsequent evidentiary evaluation of the documents as offered proof after an initial showing of sufficiency for their admission is made and they are ad matted To begin with the potentiality in unsigned docu ments for carnage of fraud mistaken attribution and fact finder confusion has been long recognized Nonethe less an unsigned document may be authenticated with the required prima facie sufficiency for admission not only by a person s testimony to having seen the writing executed but by some offering of other external evi dence e g by the aggregate circumstances of a note s discovery or by some urged oral act of acknowledge ment or assent by the contended author or the very con tent of the document itself may be urged as revealing knowledge or some other trait that is peculiarly referra ble to a single person See e g US v Sutton 426 F 2d 1202 1207-08 (D C Cir 1969) and see generally 7 Wig more Evidence §§ 2130 at 709 2134(2) at 719 2148 at 745 (3d ed) 5 Weinstein Evidence at 901-910 and see Federal Rules of Evidence 901(a) and (b)(4) and 104(b) generally In deciding whether to admit such a document on one or another of the above evidenced contentions issues of credibility are to be initially decided in favor of the proponent of the evidence Once admitted however the issue for the factfmder remains as to the document s overall credibility and probative value and as to which the trier of fact is not to lose sight that a personal con nection must in the end be made to appear and that the proof of connection may depend on continued credibility of the authenticating witness There remain s even then need for an evaluation of the nature of the showing made by the distinctive qualities of the evidence See 5 Weinstein Evidence ¶ 901(a) at 901-15 16 18-20 and (b)(4) at 901-46 48 In the subsequent evaluation made of the evidence a questioned document in light of other credible evidence may simply fail as proof of the point for which it was offered The documentary evidence however may also be concluded to be false in two ways either totally untrue or untrue in the sense that though the document exists if other facts be known it would have less or a different inferential force Wigmore supra , § 1845 at 487 If any of these be eventualities there is a failure or weakening in the proof on the point offered These con siderations on the admission of unsigned documents and evaluation of them as proof when offered and admitted on material issue are independent of the adverse infer ence rule or the Board s exclusionary rule as applicable to a lawfully subpoenaed document that is determined to have been wrongfully withheld The adverse inference rule by itself neither requires a subpoena frame of reference nor does it serve to exclude any evidence Rather the adverse inference is triggered by an adequate showing on the record from which it ap pears to the factfinder that evidence of relevant (usually) potentially controlling , vital or dispositive nature, is in existence is in the possession or control of one party and has been withheld by that party When that combs nation of fact is made to appear clearly enough of 223 record the basic nature of the adverse inference rule is such that if such vital or best evidence has not been pro duced by the party in possession or control of it fair in ference is concluded to lie that it was not produced in resolution of materially joined issue because it is not fa vorable to the party possessing it To be sure the ad verse inference rule may arse for application in subpoe naed document context and where the document is there withheld the adverse inference is but strengthened Indeed the above basic nature of the adverse inference rule is such that where its predicate lies of record it is unaffected by even a failure of the other party to request the production of the suppressed vital document cf Auto Workers (Gyrodyne Co) v NLRB 459 F 2d 1329 1339 1349 (D C Cir 1972) The Board however has subse quently observed the latter case dealt with an evidentiary and procedural question viz whether the Board could decline to draw an adverse inference without explana tion where a respondent had refused to comply with the General Counsels subpoena of relevant documents He dison Mfg Co 249 NLRB 791 795 fn 18 (1980) See and compare Professional Air Traffic Controllers 261 NLRB 922 fn 2 (1982) (with the Gyrodyne case supra, cited therein) on the necessity for adequacy of a record showing to be made on existence and nature of a pur ported document urged as suppressed under a subpoena to support a negative or adverse inference However as explicated clearly by the court in the Gyrodyne case supra in appropriate circumstances for adverse inference rule application it is of no moment what substitute or how many other subpoenaed documents were produced if the best (there a subpoenaed ) one is not 459 F 2d at 1335-36 1338 The Board s exclusionary rule applicable to a wrong fully withheld subpoenaed document in contrast does not mvovle an adverse inference at all nor an issue of authentication of a document though it does affect the admissibility of a document if its own special circurn stances are shown It rests on entirely different premises viz of protection of Board processes from abuse and of achieving a fundamental fairness in evidentiary access of all parties to vital or best evidence in the proof of their claim or defense Thus, when an oppoinent is in posses sion of vital, or the best documentary evidence and has refused to produce it to a party who has lawfully subpoe naed it and the opponent in possession has thus put the party initially seeking to use what may well be the best evidence to support his cause to an unwanted choice of either seeking subpoena enforcement with attendant delay to obtain the documentary evidence, or to trial election with the purpose of avoidance of delay to offer proof on his cause by secondary , and perhaps leas effec five evidence the Board s exclusionary rule provides that the opponent may not thereafter itself use the same vital or best documentary evidence nor even offsetting sec ondary evidence in its own case presentment, albeit the documentary evidence in its possession remains unques boned as the best evidence on the material issue joined cf Bannon Mills 146 NLRB 611 613 fn 4 633-634 (1964) American Art Industry 166 NLRB 943 952 (1967) enfd in pertinent point modified and remanded 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on other grounds 415 F.2d 1223; 1230 (5th Cir. 1969). (The Board has provided specific rules governing re- quests for production of material records of the Board and the General Counsel . See Sec . 102.118. The same are not, however , germane to the issues presented herein.) Even where the material issues are not such as are to be 'deemed to involve , or to be readily disposed of by a doc- ument , e.g., as where involving motivation in discharges, where an official of respondent has refused to testify when lawfully subpoenaed , not by any inability , or acci- dent, but rather on determination that he has - refused willfully, consciously, and intentionally , that individual offi- cial may be precluded from testifying later as a witness for the respondent , though other witness, who have not so refused , are not to be so precluded , Hedison Mfg., supra, 249 NLRB at 795 . Whether it be production of a document or testimony as a witness it is the deliberate re- fusal to timely produce , or testify that is the critical ele- ment of abuse of Board subpoena process, and/or indica- tive of an adversary 's intendedtended imposition of an unfair evidentiary disadvantage- upon his'opponent. A subpoena for 'the production of documents generally reaches all documents directed for production under the control of the corporation , or person ordered to produce, see 5A Moore , 'Federal Practice , 45-53 ( 1981); and in that connection the Board 's Rules and Regulations provide adequately for a prompt resolution ' of any imme- diately perceived real issue that might bear on a party's ability for a full response thereto, as where, inter alia, "the subpoena does not describe with sufficient particu- larity the evidence whose production is required ," Board Rules and Regulations Section 102.31(b). Any burden in the search may and should be likewise preliminarily ad- dresed , and resolved . See and compare Oklahoma Press Publishing Co., 327 U.S. 186, 208-209 , 213 (1946), and U.S. v. Morton Salt Co., 338 U.S. 632, 653-654 ( 1950). Otherwise , in'-general and as here , the lawful'subpoena duces tecum process requires and directs the corporation 'and/or individual subpoenaed and/or responding to be present ' with all the subpoenaed material documents at the appointed time and place of hearing;' and thereafter, -during , course of hearing, unless subpoena be withdrawn; or be - quashed by me or the National Labor' Relations Board ; or released by me after a compliance that is de- termined due and proper-, see Hedison Mfg. -Co., supra, 249 NLRB at 830 ; and see generally Board Rules and Regulations Section 102.35. Nonetheless, as a practical matter , it frequently occurs, particularly in a case involving voluminous records sub- poenaed , as here , that the production thereunder is one progressively scheduled , and/or a subpoena record pro- duction is arranged , by a mutual agreement of the parties in a prehearing arrangement, one reasonably and volun- tarily reached , and understood .as no less intended to ac- commodate eventual production of all required relevant records' at hearing pursuant to the subpoena 's directions. it reasonably implies an agreement to be abided by the parties throughout the course of hearing . It may be the case that an opponent 's prehearing examination of the vo- luminous subpoenaed records can also be arranged be- tween counsel . Indeed , the' general desirability of above type arrangements would appear - beyond question, in being reasonably encompassed within basic scope of 1980 amendment , Rule. 26(f) Discovery Conference. To be sure, these procedures in Board proceedings , to which Federal Discovery rules (and penalties) generally do not apply , are not without their own potential problems, as the duration of heated litigation may subsequently simply break down the parties ' mutual commitment to the once amicable arrangement they initially entertained for pro- 'gressive production of relevant documents ; or, as here, an issue of fact of, and efficacy of an initial (prehearing, or hearing) production of a document in a file earlier produced pursuant to a subpoena , may later arise. None- theless, in general, these are both desirable trial proce- dures , generally susceptible to adequate control precau- tions by counsel , and in any evert subject to curative trial production order on a pressed subpoena , if they go amiss . In my view both , but particularly the actual pre- hearing review of subpoenaed voluminuous records by an opponent, though a wholly voluntary procedure, is both desirable and practical trial procedure , and one to be generally encouraged, not discouraged , especially with mind to the general absence of pretrial discovery ,,procedures being otherwise available to the parties in Board proceedings , for paramount desired reasons early pronounced and long since adhered to by the Board, with approval of the courts. In general, on a call of the party issuing a subpoena for the production of the documents subpoenaed, they are to be -forthwith produced at hearing, in reasonable manner, as here pertinent , as either then regularly main- tained in business (files), or cataloged , if extracted.-It is the burden of the proponent of documentary evidence to establish its materiality and competence for admission into evidence . It would seem as readily apparent that it is the ultimate burden of the party seeking to claim that a subpoenaed document has been wrongfully refused timely production by his opponent in possession, to rea- sonably establish that fact clearly of record . Refusal of a document may' be made apparent on first simple call for production of a,specific document , and the opponent's refusal; or become de facto apparent only in examination of a responding witness in clarification of his return on class of documents subpoenaed , and when other qualify- ing documents are then identified and further directed to be produced, and are refused . A demonstrably recalci- trant respondent however is to gain nothing from -a "hare and hound" play. See , and compare 4A Moore's Federal Practice, ¶ • 34.07, and particularly at 34-58; and Vol. 5A ¶ 45.03(5), at 45- 19; ¶ 45.03(6) at 45-20, 21. If there is thus shown to appear an opponent 's refusal of a subpoena qualifying document that may appear vital, or best evidence , both strong adverse inference may be con- cluded to lie , and that the best evidence , or equivalent secondary evidence on that material fact , or circum- stance, may be precluded from later receipt on behalf of the opponent . There is , however , another category of subpoenaed documents viz, that of late surfacing docu- ments, that, in my view, may raise special considerations and difficulties in any urged automatic application of the above exclusionary rule. PEOPLE'S TRANSPORTATION SERVICE Thus, where an opponent , or a responding custodial witness' of • an opponent , appears initially to have' re- sponded testimonially not with refusal , but with the, ap- pearance of production of all known documents when called for , and with uncontroverted testimonial decl"ara- tiori , the production is one that has been 'made after rea- sonable and diligent search , it may be that a later claim may still arise by that party , ' in good faith , that another material document has been only recently ' discovered either because its initial search , though diligent , did not -previously reveal the existence of the document, but an additional search conducted - for- the same , or other, : docu- ment or purpose has, or , with similar claim that a rele- vant document has surfaced later , being found in mis- placed , misdirected , or unexpected location , in normal course of business , and in either event with claim it also has been produced as soon as discovered . Of 'course the bona fides of any such claims may then be' called into question , -and examined as with other issues of fact, and related issues must be evaluated on the ultimate showing made thereon . This is not to say that a subpoenaing party must accept -an opponent 's earlier summary - that the initial search conducted by it was a reasonable or diligent one , but rather just as reasonable inquiry'by a subpoenaing party may be allowed of a responding cus- todial witness for a record assurance that all utilized doc- uments of the class subpoenaed have been in fact reason- ably identified, and produced in the first' place, the party may also make reasonable inquiry to establish assurance of record , particularly on later cause appearing , that, the, response being made ,is a result of a diligent and reasona- ble search , as claimed . Related . problems of cost may dis- cretionarily be allowed to be brought forward, and con- sidered at hearing , and resolved along with any.-further ordered production or search under circumstances of need and justice then made apparent . The Gyrodyne case, supra , would appear to confirm clearly that time to be ,allowed for production is in ,the end a judicially discre- tionary matter , 459 F . 2d at 1348. - In regard to late surfacing subpoenaed documents,, the warrant for an application of the Board's exclusionary rule, in my view , thus becomes less clear , commensurate with the presence or absence of a number of other'fac- tors in the case that may affect the establishment of the predicates on which the rule itself is based , viz, factors affecting the clarity of the indication of any Board proc- ess abuse , or that diminish apparent certainty of an in- tended or designed purpose to effect unfair disadvantage to opponent , e.g., as ; when not revealed by declaration of a deliberate refusal - to produce , or developed circum- stances warranting- such conclusion . It -seems to me that factors that are to be generally considered here are: the initial scope and specificity of the subpoena(s) directions; the volume of the records addressed,, and those pro- duced ; the nature of the call, or request for production, and the nature and type of prior responses ; and any other factors of record indicative of an opponent 's actual. in- tended compliance with subpoena direction, whether (as here) there has been voluntary prehearing and hearing response , or response to - subsequent ruling on dispute thereon ; the status of the record showing on claim made of prior conduct of a reasonable - and diligent search;'the 225 nature of the explanations offered for any late produc- tion ; the point in hearing at which produced ; and any other factors reasonably tending to establish there was good faith in adherence - to Board subpoena .- process, albeit late production. Then, too, it is my view that a subpoenaed -document , once produced to an opponent under one direction , of a subpoena , is quite properly to be considered produced under all applicable subpoena(s) directions and/or calls. (2) The evidence bearing on the urged exclusion At the end of hearing the parties stipulated that prior to the :first day of the scheduled hearing on - June 15, 1981, the General Counsel visited Respondent 's premises and was given some opportunity , pursuant to subpoena (R. Exh . 48), to inspect some documents , including some personnel ' files of Respondent 's employees ; and that the General Counsel was not able to complete his inspection of all the documents furnished him at that time . The par- ties further stipulated (again : limitedly) that when the hearing resumed on November' 2, 1981 , Respondent pro- vided the General Counsel with some records , including some' personnel files , pursuant to subpoena . (G.C. Exh. 65(b)). From the limited stipulation , and the record oth- erwise , it would appear 'that there was no joint record made of the -files produced and inspected pursuant to subpoena prior to or at hearing. At the'end of hearing , the parties also stipulated as to their basic contentions, respectively , viz, that Respond- ent's representation . is that all records subpoenaed by the General Counsel were provided on November 2, 1981, and that the General Counsel was given a continuing access to the records throughout the remainder of the hearing ; and that the General Counsel has represented that he was not able to review all of the records provid- ed him at that time , that he was not provided a continu- ing access to all the records, that certain subpoenaed records, were not produced, and that reserved was any other record argument to be made on lack of timeliness of a full . production pursuant to subpoena . The latter stipulations were conditionally, accepted subject to what is fairly shown from the record as a whole; and with ob- servance that representations to extent in conflict would not be resolved on that basis, but the record as a whole. However, it is apparent at the outset that there was a po- tential or condition inherent for mutual misunderstanding both as to what was, produced, and what was reviewed, which, in my view , counsel by their. final stipulations have revealed , if not in the end also acknowledged. In the first 2 days of resumed hearing , November 2 and 3, 1981 , there clearly is reflected of record that there was a substantial review of (indefinitely described) com- pany personnel records . (Indeed there were subsequent reviews of, various records , from time to time , for a sub- stantial period thereafter .) The record in such early days reflects.that , Respondent's, position also was expressed then to be that , to the extent that the subpoenaed records were, -not in the , hearing room, Respondent would make every effort to comply with the General Counsel's re- quest - for additional records , , assuming they came within the purview - of. the subpoena . In connection with the 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above party contentions it is observed , generally, that the General Counsel did express concern, as is clearly evi- • denced of record on January 13 , 1982 , over his- then non- continuous access to reviewed documents , e.g., over- night , etc. While an order for a continuous custody of original documents was not provided , a procedure was then adopted and/or directed providing for the extrac- tion of the selected exhibits of potential relevance from the reviewed files for copying , premarking , and retention throughout hearing . However, it is also to be observed that there was a prior declaration of concern by Employ- er with regard to occasional calls for documents which were not ' to be found immediately present in the hearing room , that such not thereafter be viewed as evidencing an Employer engaged in hiding documents (e.g., a recal- citrant emplooyer engaged in a proverbial "hare and hound" play), but rather (an effect) of counsels' practical arrangements in the handling of , voluminous records; and, as well , I have noted the General Counsel's clearly stated reservation thereunder that production of relevant documents under the subpoena had not been waived (es- sentially) on open issues . Protective ruling on the appar- ent arrangements by counsel for the progressive schedul- ing and handling-of voluminous documents pursuant to the subpoena was entered of record in ruling . then made that adverse inference would not ' be subsequently drawn from failure of a (subpoenaed) document to be found im- mediately present in the hearing room, on a request for same. It-is in the foregoing general background that I firstly conclude and find that there was a clear and specific call by the General Counsel made on witness Bruno and/or Respondent Employer , on February 16, 1982, for pro- duction , pursuant to subpoena , of all purported McMa- hon documents of the order (asserted evaluations) in the main presently to be considered . Though Bruno on that occasion , had also previously ' testified that McMahon must have made comments on some people , Bruno could not then give - any specifics ; and he also testified that he did not know if they were maintained or not. On later direct inquiry Bruno testified that he had made a produc- tion of all subpoenaed documents that he was aware of after - a diligent search, though Bruno specifically re- served at that time that he had not as-yet searched his own, personal file of memos, which had only recently come to his mind , (G.C. Exh . 57 series were subsequent- ly produced by-Respondent on April 16; 1982, within.the time allowed 'witness Bruno and Respondent Employer for a full response on the then solely reserved source (ex- cepting that -based on logs) during a hearing recess that extended from February 17 to May 4, 1982 .) In passing it is observed that the General Counsel made inquiry on documents McMahon may have issued ; and Respondent represented that all documents in support of its conten- tion that McMahon was a supervisor had been turned over. Witness Norton, who had begun his testimony as a 611(c) witness on February 17, 1982, and resumed it on May 4 , thereafter first testified on May 5 , 1982, that he was not aware of any evaluations by McMahon other than those he (unlike Bruno) had initially testified that he had seen in ' McMahon's logs. However , witness Norton on 'May 6, 1982, on renewed inquiry, first asserted that there were evaluations by McMahon, not yet produced, but only then to immediately request a recess; and there- after, Respondent to offer in explanation that witness Norton did.not want to say there were not any (more), and with'counsel representation that they had gone over (unspecified) files, and were not (then)-aware of any; and that if there were any such evaluations, they would be produced at following week session to begin May 12, 1982. The General Counsel did request production of any such documents. However, significantly, on May 6, witness Norton, in resumed testimony, testified affirma- tively-even then that all the McMahon evaluations that he was 'aware of right now had been produced. In his continued testimony on May 12-14, 1982, the subject was not again apparently broached of Norton of record, nor of him on July 6, on resumed hearing (following res- olution of interim appeals related to the allowed com- plaint amendment) although there was renewed inquiry' of his knowledge of• McMahon's claimed evaluations in log entries., Nor did Norton otherwise subsequently make apparent reference to personal awareness of any addi- tional documented evaluations by McMahon. On July- 7, 1982, witness Bruno resumed his 611(c) tes- timony and .confirmed, as noted, that the General Coun- sel's Exhibit 57 series, inclusive of General Counsel's Ex- hibit 57(c) (a purported typed note from McMahon to Mayo, but unsigned), were documents found in the review of his own personal memo file, and earlier pro- duced, within (I find) the time allowed for that addition- al search and production. It is notable in that regard even now that Bruno also testified at that time (essential- ly) that he was not aware of any other McMahon typed notes (in addition to G.C. Exh. 57(c)). (Although Bruno testified in perhaps ambiguous double negative form that he did not know that there was no other example of any memo or note from McMahon that was ever typed, Bruno then testified affirmatively that he did not have any recollection of any other McMahon typed memo.) However, at this time, Respondent did produce another document' (R. Exh. 24, initially marked G.C. Exh. 58 for identification, but not offered by the General Counsel when McMahon disavowed any knowledge of it.) The document, subsequently remarked as Respondent's Ex- hibit 24, is a purported 'copy of a handwritten memo of Bruno to a "Joe," calling for certain evaluations 'and rec- ommendations on Bristol employee' Harry Witt, the original of which Bruno has later testified was given to Joe McMahon. _ Prior to Respondent's offer, the General Counsel had objected to receipt of Respondent's Exhibit 24 with con- tention that it had not been timely produced. Respondent cross-contended: that it was not aware of the existence of this document at time of its earlier productions ; and oth- erwise generally that it had hundreds upon hundreds of employees pass through its employment; that it believed it had produced 99.5 percent of McMahon-related docu- ments; declaring though there may be others, it did not know that; and argued generally that it should not be pre- cluded from introduction of 'documents relating to McMahon . The dispositive circumstane here would PEOPLE'S TRANSPORTATION SERVICE 227 appear to be that Bruno testified at the,time of produc- tion of this document on July 7, 1982, with. sufficiency to even then' support admission of Respondent's Exhibit-24 as a late surfacing document,'but one reasonably timely produced upon recent discovery, in then testifying ini- tially that the document was one rcently. found by Bruno in'his late- June inspection of a certain maintenance file (maintained by his father,, Bruno Sr.) that he had • re= ' viewed -for a purpose unrelated to this hearing, viz, in his' preparation for a then- scheduled maintenance seminar. However, subsequently Bruno would also later testify 'in- consistently therewith that Respondent's Exhibit 24 was found in his memo file, discussed infra. In my view, Re- spondent's Exhibit '24 was clearly initially admissible, with credibility thereof to be ultimately determined on the basis of the entire record. It - is observed further in passing that the General Counsel began his direct exami- nation of McMahon that same day, July,7, 1982. The real dispute centers more -pointedly on even later surfacing documents viz, -Respondent's Ex'hs. 6, 10, 11, 12,- and 13), all typed documents, 'purportedly authored by McMahon, but all unsigned; and with the issue initial- ly developed of record in regard to Respondent's Exhs. 6 ' and 10. The dispute thus first arose of record on August 27, 1982, during Respondent's cross-examination - of McMahon -with regard- to Respondent's Exh. 6. Respond- ent's Exh. 6 (in general) is a credit card control 'form which accompanied delivery' of a credit card to a driver- in the -field. Essentially, it is-to be signed by the driver acknowledging receipt of the card, and provides'- the driver' certain instructions about subsequent use of -the card. Respondent's Exh. 6 bears Kalamazoo driver Verro's signature, and date of October -19, 1980. The printed content was, not prepared by McMahon. The form's use is ministerial in nature; and Respondent's -Exh. 6, at best, - was clearly of isolated, occurrence, discussed infra. It is only presently observed further that it bears as - typed. (but unsigned), name of originatory "J. McMahon." On that occasion McMahon testified that he had not seen Respondent's Exh. 6 in. that form. While' acknowledging he had- reported other credit card expirations to Mayo, and, had discussion, thereon with Mayo, McMahon initial-: ly denied any memory that he could mail credit card au- thorizations to employees under his-signature. The General Counsel objected to any future receipt of Respondent's Exh. 6 on the basis it otherwise was a doc- ument that had been timely produced pursuant to sub- poena request. Respondent then represented that "this Verro document was contained in the Verro personnel file, a file that Employer first asserted was earlier pro- duced to and reviewed by.the'General Counsel, and that it was available to, the General Counsel for production at' resumed hearing (but not -requested). Respondent then generally advised further that there were between : four to seven such documents it intended to introduce from files earlier made available to the General Counsel. At time of Respondent's (cross-examination) inquiry of McMahon in regard to Respondent's Exh. 6 and declara- tion about the. existence of, certain- other similar such documents, -there was no -clear, claim by Employer ap- pearing of' record that these documents also were'. but only recently discovered, and brought immediately to the General • Counsel''s attention. However, neither did the General Counsel then request an immediate produc-- tidn of them, or seek definitive clarification of record as to the timing of their discovery. Nor did the General Counsel seek interruption of McMahon's testimony and re- sumption of examination of Respondent's witness on the then declared existence of 'other documents (R. Exhs. 10, '11, 12, and 13). I necessrily conclude and find that the General Counsel elected not to seek' to minimize 'any po- tential- disadvantage -arising from late surfacing of these documents from which position he may then have urged and -offered showing of any real prejudice remaining to the'presentment of his case. Rather, although reflection of counsel as. to the produceability of these documents even at that juncture was initially raised for-their consid- eration, Respondent' continued its contention (from a seemingly urged aggrieved belief) that the documents had been contained in certain files already earlier pro- duced, and were ignored by the General Counsel; and the General Counsel contended the document was not in any ' file he had reviewed. In light of the General Counsel's failure to immediately call for production of these docu- ments, and"request immediate further examination of Re- spondent's witnesses on these documents, or pursue iden- tification and clarification of when first discovered, the General Counsel appeared to adopt similar adamant posi- tion the documents were automatically and preclusively not. admissible because there was not a timely production pursuant to the subpoena direction, and earlier hearing call. On October 6, -during the General Counsel's exami- nation of Mayo as a 611(c) witness, following Mayo tes- tifying as to a conversation with McMahon concerning McMahon's displeasure with Verro, Mayo then testified that McMahon thereafter wrote a letter to Castallano di- recting Castallano to relieve Verro (under circumstances to be reviewed infra); that Mayo saw the letter (R. Exh. 10); and only that it would be one normally maintained in the personnel records of Respondent. On that occasion the General Counsel.did- ask to see the, document; Re- spondent's Exh..10 was then produced on the General Counsel's request; and objection was placed also to its subsequent, use, at trial as a document not timely pro- duced pursuant to the subpoena. Respondent contended that Respondent's Exhibit 10 was one, of- the documents it had earlier declared (on August 27); that it was also found in the Verro file, the same file it claimed was' previously turned over to the General Counsel- for inspection. The General Counsel in turn contended it was not contained in any file turned over, exhorting it to be inconceivable that the General Counsel'.could have overlooked such a material docu- ment in'•an inspected file; 'and urging also that Verro' was a postal driver, while driver files produced at (November - 2, 1981) hearing'were all courier driver files. Respondent then advanced, in response to the General Counsel's last contention, a further contention that, pursuant to subpoe- na, the-General Counsel had; reviewed some 200 -to 300 personnel files at Respondent's place 'of business' prior to commencement -of 'hearing (or November 2 resumption), that all files subsequently requested 'by the General Counsel-to be produced- at hearing were produced; that 228 DECISIONS` OF NATIONAL LABOR RELATIONS BOARD as the General Counsel's case unfolded, it had opened up other , areas to Respondent 's defenses ; and that in its own subsequent review of those same files, earlier claimed re- viewed by the General Counsel, these documents were found by Respondent. On this record, it is unclear exactly when Employer discovered these documents , though Bruno 's testimony of July 7, 1982, would appear , short of undeclared mental reservation , more to indicate it was some time thereafter (and thus also after McMahon direct examina- tion had already begun ). Bruno has otherwise testified that he found Respondent's Exh. 11 in postal driver Robert Lacey's file, only some time (indefinite) after the hearing commenced ; and that he had not seen that docu- ment before that time . Bruno also testified that he found Respondent's Exhibit 10 in the Verro file (which also contained R. Exh. 6). However, Bruno testified that he found Respondent 's Exhibits 12 and 13 in his memo file, which the-General Counsel immediately. observed was inconsistent with any urged prior production of person- nel files to him for inspection. Mayo's subsequent alterna- tive testimony of placement of Respondent 's Exhibits 12 and 13 in such personnel files, though supportive of ad- mission if selectively credited , does raise its own credibil- ity questions more appropriately discussed infra. It is the General Counsel's basic contention that the issue of Employer 's response to the subpoena 's directed production of documents (at hearing) should be resolved solely within the confines of the record subsequently made, viz, on the showing the General Counsel has made of specific request (or call) for the production of docu- ments by Employer pursuant to the subpoena, and the timeliness in relation thereto of Respondent Employer's actual production of the subpoenaed documents as shown in the record . In general I agree. However, to the extent the General Counsel 's broad argument appears to encompass contention that the parties ' voluntary arrange- ment- for a pretrial production and review of records, or claim of actual hearing production, is not a matter cogni- zable by me or the Board in consideration of a subse- quent request by the General Counsel for application of the Board 's exclusionary rule on late surfacing subpoe- naed documents , I do not so broadly agree , particularly under the unique circumstances of this case . In the same vein, to the extent that Respondent may be viewed to have now advanced argument in brief that would in any way import (e.g., apart form claim of earlier production, recent discovery, or other circumstance indicative of nonwillful delay in production) that it may, with impuni- ty, consciously elect on its own when a document, on proper subpoena call, is to be produced , e.g., so long as it be produced during the opponent's case-in-chief, I would clearly disagree and conclude such if actually shown by the facts to be the case it would be instance of willful refusal to timely produce . However, to the extent that the Respondent has only urged that the documents were declared and produced during the General Coun- sel's case for consideration should its basic reliance on a prior claim of production be improvident, e.g., fail , either on evidence presented and/or credited, that, it seems to me presents another cognizable matter. Analysis of the Exclusionary Issues Respondent here does not claim , . nor clearly was it beyond the Board's lawful subpoena process, cf. Oklaho- ma Press Publishing Co. v. Walling, supra; nor has. Re- spondent sought to defend any, untimely, production of instant considered documents on basis the subpoena di- rection for. their. production was unclear or burdensome. To the contrary, Responent has sought to explain the late surfacing with a contention that , the documents were only subsequently found by Respondent;. and after there was a prior production, with some,. albeit not wholly consistent, or convincing evidence offered in support of these contentions . In final analysis of the record showing on prior and hearing productions , I remain unpersuaded that the General Counsel has established either that Re- spondent directly refused to produce these-documents, or that circumstances appearing of record-warrant that con- clusion . I reach that conclusion by addressment of the two basic questions prefatory to an application of the ex- clusionary rule as I understand -them, viz, has there been shown to have been an abuse of Board subpoena process or intended disadvantage to opponent by a willful refusal to timely produce subpoenaed documents. ' - - In addition to the now evidenced prehearing and hear- ing production of voluminous records considered above, and the reviewed periodic testimony of Bruno' and Norton as to Respondent's full productions of such docu- ments , Respondent - Employer has additionally pointed out, and I ; find not only-that it had produced literally thousands . of documents pursuant to the various direc- tions of the subpoena(s) lawfully served upon it-by the General Counsel, but also I find that- it essentially pro- duced other certain documents directed after in camera inspection , upon adverse ruling on certain of its objec- tions , and still other documents (later subpoenaed) fol- lowing adverse ruling on a petition to revoke. The Gen- eral Counsel does not dispute Respondent 's additional claim that all the questioned documents were produced during the General Counsel 's extended case-in-chief; and it.is clear the documents were so produced . In general, this is not a background conducive to-finding there was a willful refusal to produce , particularly where there is no clear or direct refusal to produce such documents de- clared of record . Setting aside the difficulties attendant to all unsigned documents , what the issue of contended abuse of Board subpoena process comes down to is es- sentially, from the General Counsel's : vantage point, whether passage of time from the General Counsel's February 16, 1982 request, to August 27 Employer's dec- laration, warrants that conclusion . However, even then Bruno's testimony - on the state -of this record has addi- tionally indicated that he was not aware of any addition- al McMahon-typed memos as of July 7, 1982. While there remains a lack of clarity as to exactly when these- documents were otherwise discovered e.g.,' as between Bruno's testimony of July 7 and the August 27, 1982 record declaration of their existence and it would have been in my view unquestionably more appropriate if that fact did clearly appear of record),• in-connection with the related consideration of any intended disadvantage to the General Counsel, it is to be observed that offsetting any .PEOPLE'S TRANSPORTATION SERVICE 229 intended disadvantage is the fact that McMahon's direct examination had already commenced at the time of recent Bruno testimony that he had no recollection of other typed McMahon memo (which I view applicable to, or reasonably encompassing if not R. Exh. 6, surely R. Exhs. 10, 11, 12, and 13); and further, when the exist- ence of these additional documents were first clearly de- clared of record (albeit then generally) the General Counsel neither requested an immediate production of them, nor sought interruption of McMahon's testimony, or resumption of 611(c) examination of witnesses Bruno and/or Norton thereon, or to minimize disadvantage, or establish nonrecentness of their discovery. That late sur- facing, but otherwise explainable and credible, evidence may adversely affect a party's position is not the issue. Rather, the issue is whether the circumstances that may be established with regard to late surfacing documents reveals earlier willful refusal to produce, or intended dis- advantage, and hence prejudice t to the subpoenaing party. Under the circumstances of this case, in agreement- with Respondent; I am not persuaded either has been shown. Finally, as becomes apparent infra, there are serious in- consistencies in Respondent's testimony in regard to cer- tain of these documents. However, considerations of' evaluation of late surfacing documents as proof, as with related considerations of- unsigned documents once ad- mitted, it seems to me , raise issues sounding • not as, to review of initial admissibility of the document, but over- all, or ultimately shown credibility of the testimony of the producer, and to the related weight-to be eventually attached to a document, with the evaluation of it as proof to be made ultimately in the light of the entire evi- dence of record. See additionally generally 1 Wigmore, Evidence § 12(2) at 299; § 29 at 411: (3) The documents in evidence - - The first group of five questioned documents purport- edly ascribed to McMahon are composed of three typed notes reporting certain employee complaint, or conduct with aspects of arguable evaluative and/or recommenda- tory comment; a fourth being a typed discharge memo/letter to D.C. employee Robert Lacey; and lastly, the typed memo to Castallano directing discharge of Kalamazoo part-time driver Verro. Each of the three typed notes is addressed,to Ken (Mayo), with two of the notes (with dates of January 6 and 9, 1981, respectively) bearing typed appearance as being authorized by a "Joe," and with the third note undated similarly so, but by a "J. M." The discharge letter to D.C.• driver Lacey (with date of December 15) and the Verro discharge di- rective memo to Castallano (with date of December 16) are each with typed appearance of originator being "J. McMahon" (similar to R. Exh. 6). Neither of the two discharge memo/letters was implemented- or effectuated with an immediate discharge of the named employee. Neither memo/letter was ever sent, under circumstances to be addressed infra. Lacey subsequently terminated about January 19, 1981; and Verro was not discharged until some time much' later after McMahon's termination (at least), after March 10, by Mayo. None of the above documents-contain McMahon's per- sonal signature or initials. Neither do they bear any other identifying- personal mark _ of McMahon. Although the note with typed initials "J. M." is undated, its asserted circumstances would indicate its generation about Janu- ary 10-12, 1981, thus indicative of different typed initial use purportedly. by McMahon within but' few days. McMahon however has testified that when he signed his initials it was usually "J. McM." and the only evidence of written use of initials by McMahon offered in this entire record supports McMahon. Some of the memos of Respondent's witnesses in evidence are also unsigned or initialed by them but, unlike them, no signed memo, letter, note of McMahon is of record, though Mayo had indicated he had seen such initialed. McMahon signed his application "Joseph McMahon." Nonetheless it is urged' by Respondent that, based `on Bruno's and Mayo's testi- mony in regard to their knowledge of each of these doc- uments, it has been sufficiently established by credible evidence (including all surrounding circumstances) to warrant finding that these documents, were authored by McMahon. McMahon, for his part, has not only categor- ically denied that he authorized any of them, he has fur- ther testified that he had 'never even seen any of them prior to this hearing. Capsulizing relevant Mayo background testimony, as a 614(c) witness Mayo had generally acknowledged initial- ly that he executed the written evaluation paperwork for TSI employees; and that he ^ handled all the paperwork recording of any personnel matters that went into TSI personnel files. It was he who had handled written com- munications to the local supervisors; and in regard to ter- mination, he had testified, 'at one point, that-he (at least) believed. that it was he who wrote all the letters; or had phone called the terminations of TSI employees. Other- wise Mayo has testified that he might personally only orally warn an employee, but that if he typed a warning, it went into the employee's file. Mayo further testified that he did so on those matters that happened'during the day in his personal experience; and in regard to night matters, he recorded them also, based on what McMahon told him about the situation.. Not to be overlooked is his confirmation that Bruno earlier (essentially) instructed him to change his approach to be better able to evaluate the performance of McMahon. Mayo also testified that it was his practice to report any outstanding problem to Bruno (occasionally Norton); and that he communicated problems, indicating what McMahon either did or did not do in solving problems; and that he told Bruno what correc- tive action McMahon took, and what further, action Mayo took; and finally that the continuing problems indicated to Mayo that McMahon not only could not accept addi- tional responsibility, he was failing in the responsibility he already. had. The above is certainly background that would be supportive of instance of Mayo's memorializa- tion of McMahon reported incident. Mayo has testified that he never told McMahon that he wanted a' particular driver terminated by McMahon, that he recalled; and Mayo also did not then believe that McMahon had actually discharged anyone. Mayo also could not say he ever told McMahon to issue a written 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warning to' a particular driver that had performed an ir- regularity on McMahon's shift; and he did not know if McMahon' had ever issued a written warning note. The warranted general finding that in fact Mayo had far and away regularly issued written warnings, and had disci- plined and'discharged employees for conduct occurring on McMahon's shift throughout McMahon's tenure, has al- ready been 'earlier noted.-Mayo, however, has testified that there were occasions when McMahon indicated to Mayo he had problems with employees on his shift; that Mayo had- on occasion asked McMahon what McMahon wanted to do about an incident, but had basically left it in McMahon's hands; and "that on an occasion he told McMahon'that McMahon was the one who had to deal with the fellow (Verro)• all the time, and had • told' McMahon,' do whatever you think you have to do. Al- though Mayo could not recall ever telling McMahon specifically to issue a written warning, he'did recall cau- tioning McMahon many times that he thought McMahon was losing control of 'certain named people, and not to, let it happen. In contrast, McMahon testified in general, that Mayo's. instruction to him was' to report the facts; that Mayo always wanted to know the facts, and not necessarily McMahon's opinions; and that Mayo never asked for his (discipline) opinion on an employee's performance. - McMahon also testified that no one ever instructed him that he had control over people in the field; and collater- ally, that Mayo had never discussed McMahon's losing control of people in the field. McMahon has categorically denied that Mayo ever told him to do whatever he (McMa- hon) thought he had to do in discipline of employees, or to handle such personnel matters. McMahon has testified that Bruno never told him to discipline a particular employee, but that he had heard Bruno tell Mayo to do it. In regard to typing documents generally , McMahon testified that with an- exception of certain partially typed (and thereafter mimeographed) forms-which he had pre- pared and later used as format in making fuel and/or truck mileage reports for Bowen and/or Bruno Sr.-," that he had always printed in 'performing his (written) work. McMahon otherwise testified that he had always hand- printed the notes which he has acknowledged that he did occasionally leave for Mayo, when he did not anticipate seeing Mayo on the following morning to discuss a matter. - Although Mayo has confirmed that McMahon rarely used the typewriter for notes, Mayo has nonethe- less testified' that he believed McMahon had left him typed notes estimating (unsuredly) about 8 to 10, or a dozen times. McMahon has testified in rebuttal that he had never sent a typewritten document' to Mayo, or to any other manager. (Fuel mileage entries on his typed- form reports were made by hand.) None other than the above five documents (six including i-6) has been pro- duced. It is warranted to be presently concluded that, at time of hearing, no additional typed document or note existed (whether described as signed, initialed, or not). I b. The notes (1) The payroll problem note of January 6, 1981 The first such note as to which Bruno has testified was General Counsel's Exhibit 57(c), dated January 6, 1981, which provides, explicitly:, Ken, Some of my drivers think they have been cheated. out of some hours. I can't figure out what's wrong except for holiday screwups. If we don't straighten them out they will all quit on me. Joe As a 611(c) witness Bruno testified that this particular document was found by him in his personal memo file. A review" of that particular source was timely reserved in earlier (February 16, 1982) Bruno's testimony-,for a fur- ther response 'on documents subpoenaed by the General Counsel. This document, along with others (viz, in the G.C. Exh. 57 series), was produced on April 16, 1982, for the General Counsel during a long hearing recess, with more than adequate time allowed" for ..a complete review of that source. At first Bruno testified that he did not recall how he got this particular note, though later, as witness for Respondent, he has acknowledged that he must have gotten the note from Mayo. Bruno regularly maintained McMahon 's file at his desk, as " Bruno did with supervisors ' and other individuals he had a special interest in. As a 611(c) witness Bruno could not recall why this note was not placed in McMahon's file (e.g., if McMahon was author, and the content of the note as perceived by Bruno revealed McMahon's deficiency). Indeed, the note also bears Bruno's personal handwritten notation thereon, "Ridiculous/Is this the way he takes charge." Bruno's recollection was he had placed his no- tation on the'note at time of receipt of the document. In that regard ,' other similar Bruno-added comments abound throughout McMahon's event log, the record reflecting' however that all such comments were added there by Bruno some time after McMahon was discharged, and as likely after the charge was filed, and prior to Bruno's awareness that the logs would become exhibits in this proceeding. (The substance of all such comments in the logs were excluded by agreement of the parties from con= sideration as evidence herein, but not the note-'on G.C. Exh. 57(c).) It is clear of record that Bruno, on the occasion of tes- tifying about the General Counsel's Exhibit 57(c), also testified in regard to other typed documents and very significantly so, essentially and' respectively that, at this point he was ' not aware, or he did not recall if he had ever seen any other memo of McMahon typed. The fording ap- pears, thus, as one wholly warranted to be-made at this juncture that there were no additional typed McMahon documents that were to be found in Bruno's personal memo file at the time of his allowed review, and April production; and as well, none seemingly known as of his next July 7, 1982 testimony on General Counsel's Exhibit 57(c). - PEOPLE S TRANSPORTATION SERVICE The note is dated January 6 1981 (a Tuesday) Mayo related that the note was on his desk that he subse quently put it on Bruno s desk and Mayo also testified that Bruno then came to Mayo put the note back on Mayo s desk and said You know I can t believe this he s dust not taking charge Mayo s testimony would thus support inference that Bruno at least then held that view and support Bruno s recollection of also then make cor responding entry on the document in response to it at time of his receipt of the document from Mayo (Howev er such a finding would then appear incongruous with a Bruno asserted predetermination (earlier in December) that McMahon was not going to remain in the TSI job in any event because he had held Bruno up) According to Mayo Mayo then replied Well that s why I wanted to give it to you to alert you to another potential prob lem (Mayo s testimony is that he had already alerted Bruno to a McMahon problem with Stradley discussed infra) Mayo has otherwise related that it seems he re ceived the note a day or two later, though it is unclear in reference from whom he then received it especially given Tuesday occurrence On other occasion Mayo has related that he asked McMahon to be more specific when he said that some of my drivers think that they have been cheated out of some hours viz who the driver was and what the driver felt was owed so they could compare schedule and payroll Whether it be concluded that Mayo s above testimony was structured or that Bruno s and Mayo s testimony combined would support inference of McMahon s authorship if undemed the fact is McMahon has denied authorship and this evidence of fenng does not persuade in the end as an unsigned but McMahon authored document to the contrary (2) The evidence regarding the payroll problems Bruno relates that there was a lot of discussion at this time about the lack of control of hours actually being worked by the drivers particularly in regard to the problems arising in the Christmas rush period and with many schedule changes and that it all came to a head when after Christmas the drivers got the big paychecks but found the hours they worked did not figure Al though acknowledging that some employees may have thought otherwise Bruno explains that there simply had not been adequate planning and that the drivers had called in their hours and no one had verified them Bruno has acknowledged that he was sure some drivers were underpaid and as well asserts others were over paid in this period I essentially credit Bruno in the above and I find that there was a significant problem in payroll in January with ramifications inter alia at Chica go and Harrisburg and I further find that there was likely considerable discussion between Bruno and Mayo throughout January in sifting out the payroll problems Mayo s memo to Bruno of January 19 (supra) corrobo rates serious payroll problems were reportedly continu ing on McMahon s shift even at that time Mayo s view was that the payroll problems at this time were common because of the tabulating system then in place Compilation of hours worked were being made up by him from the hours worked by an individual as they appeared on a master schedule, which compilation was 231 then turned into Bruno for his review and phone in to Employers computer payroll service According to Mayo s recollection they instituted a schedule check by January 16 1981 and by the second week payroll prob lems virtually disappeared Mayo s recollection of that system check was that all changes were to be entered in the weekly/master schedule of work hours and drivers maintained in the Red Book If a driver report was re ceived by a dispatcher in off hours it was recorded on paper and the paper placed in the Red Book for later entry Mayo s plan was that as long as an accurate upkeep of the master schedule was maintained it could be anticipated payroll preparation therefrom would be accurate According to Mayo McMahon had access to the Red Book and Mayo has asserted that McMahon had entered such changes in the schedule in the Red Book Mayo has relatedly testified that if a driver called (e g with a payroll question) all McMahon had to do was take out the master schedule check the hours off to the driver calling (if needed) ask and/or check who had received credit and thereafter make any appropriate en tries on the schedule necessary to straighten it out McMahon has acknowledged that there were occasions when he told Mayo that some drivers felt their paychecks were wrong However McMahon has otherwise denied he ever made payroll change/hours entries in the Red Book or had any instruction to straighten the payroll matters out It is too well evidenced that he regularly re corded driver changes in his log and no documentary evidence offered otherwise Bruno did not assert that McMahon handled payroll matters and Mayo has ac knowledged generally that he could not say McMahon had ever done any payroll tabulating In the above regard I fully credit McMahon and Bruno also in regard to the corrective system set in place that eventu ally cured the problem I do not credit Bruno s general assertion that McMahon was responsible for driver morale and thus responsible to cure payroll problems Bruno who was primarily involved in payroll and benefits testified that he pushed a system that involved a local manager (adding where there was one) essentially verifying the hours with the employee, before the hours were to be called in The record reflects that field super visors (whom Bruno used interchangeably with manag ers) and/or certain lead drivers collected time and mile age reports from drivers In that connection it may again be cross noted that beginning in early February, Mann was sent off and on to Chicago when Employer found out it could not get along without a replacement for Cas tallano thus likely continuing until permanent manager Cobb was employed in March 1981 It also appears gen erally that Mayo about this time stopped his involvement with compiling payroll and it was turned over to a clerk who no doubt at that time received a local managers or I find lead driver s clearance of payroll hours already checked with local drivers Olin was already back in D C by mid January 1981 and Lawrence was always there I am convinced Uglow handled time reports on the Harrisburg run and presumbly continued to do so under the above altered procedure, and Witt in Bristol, likely as well 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In summary , there is no question that driver payroll complaints had become widespread and prominent in early January , and continued well through January. It'is notable that McMahon apparently does not enter a spe- cific denial of discussion with Mayo on the specific com- plaints of drivers who felt they were cheated , which was first reported in the log on October 31, and which as an ongoing problem is essentially furhter confirmed by Mayo 's January ' 19, 1981 memo to Bruno (G.C. Exh. •57(d)). At. least this much is thus presently to be conclud- ed and found . McMahon had discussions with Mayo' re- porting employees had payroll problems that were seri- ous as drivers felt they were being " cheated , but he did -not have a present understanding he had been given any responsibility for these in payroll, or was to take upon himself to solve (understandably so, as payroll was clear- ly handled in fact , on this record, by others), but rather he was - only to -report the problems as they came to him, with or without observation , or suggestion . However, the testimonial evidence of record - is unconvincing that any comment or suggestion he may have made was in nature an effective recommendation - or management so much as - it was (in my .view) reporting driver, pay com- plaints he received to the managers who were actually handling such- matters. -It would appear probable that McMahon in doing so - may have told Mayo (essentially) that the drivers ' complaints on payroll were serious, as in the form of again, offering a remark that some of the drivers felt they were being cheated and, inferentially, if something was not done about it , drivers would quit. The present findings are made on the basis of the weight of interrelated supporting credible testimony of the wit- nesses on this problem shown . existing at the time, but not with reliance on the questioned document , certainly not as an established McMahon -authored document. The connection of McMahon authorship is not made on the weight of credible evidence . There was no evidence of execution observance , nor direct and convincing circum- stantial evidence of discovery , or clear evidence of sub- sequent admission of authorship. To the contrary, McMahon has denied the same in much more convincing and supported fashion , and the fact - is the document is not signed . Neither is it effectively shown that the con- tent of the note was the exclusive knowledge of McMa- hon, who has affirmatively acknowledged making re- ports on driver complaints on pay shortages , and not denied making other related comments attributed to him by Mayo , but denied authorship of the document. I credit McMahon. (3) Bruno 's note on Witt, dated January 8,• 1981 Although not a purported McMahon -authored docu- ment, it is convenient to'address Respondent 's Exhibit 24 at this juncture . Bruno in his later testimony , as-Respond- ent's witness, inconsistently testified that this document was also found in a file of correspondence in which he lumps everything . It is clear of record that Respondent's Exhibit 24 was not simultaneously produced with the General Counsel 57 documents found in Bruno's memo file. In that regard, Bruno had initially testified when this note was first produced , that it had been found (recently discovered) in 'a, maintenance file maintained by his father , Bruno Sr ., on an occasion (June 1982) : when Bruno was preparing for a regular . company maintenance seminar . Respondent Exhibit 24 , with date of January 8- 1981, is in form a handwritten note by Bruno .addressed to "Joe," and in substance appears to reflect a Bruno concern over a suspicion (Bristol lead driver . Harry Witt was abusing equipment), with reference to report. of Witt's earlier opting to-have a frozen truck pulled with a chain ;. and - the memo notably containing a request to "Joe," the addressee , "Please make your evaluations & recommendations ." McMahon testified in rebuttal he also never saw or received this note. McMahon 's event log- contains a related and self-ex- plicatory entry on January 5, 1981 (Monday ). The entry essentially records a Witt , report at 5 :45 a.m . from Camp- bell's T/S (a driver terminus) that a truck froze up; and relates Witt had already "made contact with Ponderosa (an area "towing vendor frequently used by Respondent) and apparently with the assigned driver Singleton. They were going to try to start it by pulling it with a chain. In the local Bristol operation a majority of. trips started at 5:45 a . m. McMahon there reported he had let Witt handle it; and that Witt was keeping in regular contact. (There is another later instance of record on February 3, 1981, where a vendor- mechanic was sent with a.Mopar driver to such a disabled truck.) Bruno has testified that his - knowledge of the memo in- cident came from Bruno Sr ., not McMahon's-log; and he otherwise could not attest his note referred to the Janu- ary 5 log incident, though it would appear most likely- it did. Even more notably , Bruno testified that Bruno, Sr. told Bruno that Witt was pulling the truck around on his own, clearly contrary to McMahon 's log entry. Bruno initially testified that he- had no record of McMahon's subsequent evaluations or recommendations thereon; and as Respondent's witness at first related that McMahon did not-get back to him , though then registering immedi- ate unsuredness . There was no inquiry by Bruno thereon. In light of the nature of McMahon's log entry of timely call from Witt and his report of contact of vendor, and keeping - McMahon informed , etc., -McMahon 's denial that he ever saw, received , or spoke about the note, nor had made any - evaluation or recommendation on " Witt, and Bruno 's initial testimony there was no subsequent report or inquiry by him , I do not credit Bruno 's rebuttal assertions , that Witt had just acted without calling in; or that McMahon had orally responded - to the Bruno note either the following day , or some time later, that he agreed, and would- watch Witt thereafter . -There is clear conflict - in ultimate Bruno testimony of record - about the discovery source of this document . His testimony about its circumstances and followup is unconvincing. In con- trast, McMahon's testimony thereon was consistent, and supported. I' credit McMahon 's denials about Respond- ent's Exhibit 24. It is concluded and found on weight of above 'evidence that to whomever this note , may have been sent (if-actually ever to anyone for action), it was not sent or given to McMahon ,- as Bruno asserted. PEOPLE'S TRANSPORTATION SERVICE (4) The Strang breakdown note of January 9, 1981; and the (undated) Pittman note The remaining two typed notes (R. Exhs. 12 and 13) are more conveniently addressed together to accommo- date certain • common considerations., Respondent's Ex- hibit 12 (undated) provides: Ken Pittman screwed me up yesterday. I had to get bryon [sic] to run his route. I don't believe his ex- cuses. I think the other guys are covering for him. The next time he is late I want to fire -him. What do you think? J.M. Respondent's. Exhibit 13 (dated January 9, 1981) _ pro- vides: Ken Strang broke down . tonight. I think he broke the fuel line on purpose. 'He is always. talking about crazy-things. I wouldn't put anything past him. Joe' At the outset it must be noted that, when initially called as a 611(c) witness (and testifying about G.C. Exh. 57(c), as above noted), Bruno did not then 'testify to any present awareness on his part of either Respondent's Ex- hibits 12 or 13 as typed notes to be also ascribed to McMahon. As a , subsequent witness for Respondent, Bruno testified that he. had seen the Pittman note some time- during McMahon's employ, though he could not then say when, nor did he describe the circumstances. Bruno has testified that he did discuss Pittman's situation' with McMahon, but could not say he had discussed the document with McMahon; and Bruno did not recall McMahon' s_ use of initials "J.M." on any' other docu- ment. No other support for any such usage was ever pro- duced. When asked the direct question if he knew who had authored this document (R. Exh. 12), Bruno re- sponded limitedly that he could only ' assume it was McMahon. Bruno has testified that he, again did not put this document in McMahon's file, but then asserted that he put it in his own file; and, specifically, Bruno further testified that the document was found in his above memo file. Bruno has similarly testified that Respondent's Ex- hibit 13 was also found in his memo file. There is thus serious inconsistency of such Bruno testimony with his earlier - testimony given- in connection. with General Counsel's Exhibit 57(c). Moreover, his' testimony, is wholly inconsistent with Mayo testimony thereon, next considered, which upon close analysis itself is none too convincingly clear on document location, authorship, or purpose. Mayo has generally recalled Respondent's Exhibits 12 and 13 astyped notes that McMahon left with him. Al- though later to assert-that he placed the document(s) in personnel files, Mayo had first testified, semi-paradoxical- ly, though perhaps only the more revealingly as to other potential location, and inferentially the nature of the doc- 233 uments being other than what they might appear on their face to be, and suggestive of explanation for their late surfacing, that Mayo could have put them under a blotter, or in the personnel files. (Presumably the blotter refer- enced was one to be found on Mayo's desk.) Mayo did not otherwise testify in further explanation of occasion for his retention of documents under his blotter, rather than in TSI-identified Respondent's Exhibit 12 as a docu- ment found on his desk. Although Mayo has related he subsequently discussed it with McMahon, and that McMahon indicated he typed it, Mayo does not specify the base of that indication. In other testimony, Mayo has related an occasion when he came to work that McMa- hon said, "Pittman screwed me again last night." Mayo's version of the conversation that then followed is that Mayo first inquired of McMahon what had happened, asking if Pittman did not show, with McMahon affirming that Pittman had not- shown. Mayo then said , "It's a habit, isn't it," and received- McMahon affirmance. --Ac- cording to Mayo ,he then asked McMahon, "What do you think we ought to do," and Mayo has McMahon reply, "I think we ought to fire him." Mayo then said, "OK, I agree with you." As Respondent's witness Mayo testified that McMahon terminated Pittman, and otherwise at this time testified that, with that exception, Mayo had fired all of the out-of-state drivers who were fired during McMahon's employ. McMahon's phone log entry of January 14, 1981, tends to confirm McMahon and to support the General Coun- sel's contention that Howard was then acting in place of Castallano as supervisor, and accomplished the Pittman termination , in that it is there recorded that, at 12:40 a.m., Howard reported that Pittman would not turn over the key;-though Mayo would rely on another entry that (about a half hour later) Pittman called McMahon to support Mayo discharge version below. In regard to the actual discharge procedure used with Pittman, Mayo as- serted that he called Bryon Howard in Chicago (as Cas- tallano was gone), and that a three-way conversation was held between Mayo, Howard, and McMahon, with Mayo instructing Howard that, when Pittman arrived that night, Howard was to relieve Pittman of his keys, and say only, "If you have any questions, you call Joe McMahon." Mayo further relates that McMahon subse- quently told Mayo that Pittman had called McMahon wanting to know why he was being fired; and that McMahon told Mayo he (McMahon) had told Pittman, "You screwed me two nights in a row, and I'm not going to put up with it anymore." It is Mayo's testimony otherwise generally that Pittman had called McMahon on several (absence) occasions , with different problems; that McMa- hon had expressed concern to Mayo a couple of times about it, including registering his belief that Pittman's (recent) excuse of his wife in the hospital was not accu- rate . (Norton's testimony, essentially was such an incident would not be, questioned.) Moreover Mayo then ac- knowledged that he had made no subsequent check of that December 21 absence, as he asserts in several occa- sions he had done in checking other alibis given to McMahon, that McMahon (he asserts) had failed to check himself. I observe in passing it to be unlikely 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mayo would have failed to do so or direct McMahon to do so , on this one occasion which McMahon purportedly questioned , if McMahon had actually questioned it., McMahon has not only denied he authored Respond- ent's Exhibit 12, and denied that he recommended dis- charge or discipline of Pittman , but has further testified: that he never made a statement to any company manager about wanting to fire Pittman , and specifically -did not do so to Mayo in January ; that he had not expressed an opinion that Pittman 's excuses (including that of his wife being in the hospital) were false ; that he did not tell or communicate to Mayo in any way that Pittman had "screwed " McMahon again last night ; and specifically, that he did not have a three -way conversation with Howard and Mayo over the issue of discipline of Pitt- man. (Howard did not testify.) McMahon confirms that Pittman did call him , but McMahon testified that - he only referred Pittman to Mayo ; and McMahon has specifically denied that he discussed the discharge (reason) with Pitt- man. Pittman drove exclusively on McMahon 's shift. McMahon 's prior event log entries reflect in general that after Pittman had called in sick on October 17, and with it reported to Castallano and an arrangement made by Castallano with another driver to cover , Pittman came in later to do the next leg of his regular route , with a report made to McMahon (or so recorded) that apparently Howard had said he could do this. , McMahon also reports only that there was resulting confusion,'and both drivers ended up taking the run .. (The effect' was Employer paid double for that run .) On November 17, Pittman received a written warning from Mayo for giving short notice of an illness . McMahon 's event log at 11:30 p .m. on Decem- ber 22 (actually December 21) records only that Pittman called ; reported that his wife was sick at the hospital; that he would not be able to run ; and that Howard will run. McMahon 's phone log entries even' more tersely ad- ditionally affirm only that on January 10 , 1981 (Saturday) Howard was called at" l a . m. (in combination with-testi- mony revealing it was to cover for Pittman absence); and that in entry on 11:20 p . m., January 13 (actually January 12, 1981, , Monday), only that Pittman called in sick, and Howard was called to cover . There were no entries made in McMahon 's event log essentially for the period January 10 through 15, 1981, when Mayo apparently had the event log at his, home . (That would be a consider- ation at best on only R. Exh . 12.) McMahon's log entries more support McMahon 's version of reporting only the facts of absences to Mayo , than Mayo's version that McMahon discharged , or recommended a discharge of, Pittman . The circumstance that Mayo - had the event log at his home may, in one sense , support inference of a McMahon note preparation , particularly on a' Saturday incident ; but McMahon has specifically denied he did so, and, moreover , he did make entries in his phone logs on each of the events ; and their very brevity -is congruous with his hearing testimony of limited reporting of these events; and the degree of the indefiniteness , but further supportive of McMahon 's version. In contrast, as a 611 (c) witness Mayo had initially more limitedly testified that he had terminated Pittman, though McMahon had input ; that Mayo 's decision then was based on McMahon 's recommendation' and lack of action ; and basically , that it was McMahon 's neglect that let it fall in Mayo's lap. Mayo testified that he did not record that deficiency anywhere. There is much clear (and in my view) substantial in- consistency in the above versions of Mayo - as a Respond- ent witness vis-a-vis 611 (c) witness , as to McMahon's as- serted termination of Pittman , vis-a-vis Mayo termina- tion , with McMahon input , and because of McMahon's neglect ; and, as well , inconsistency in his assertion that McMahon earlier questioned the truthfulness of the excuse for absence on December 21, but Mayo did not check the alibi as he assertedly did in the past , or direct McMahon to do so . I credit McMahon 's version which was considerably more consistent and fully explanatory of and supported by-his log entries . The logs also sup- portingly reflect prior disciplinary action taken with regard to Pittman was accomplished by Mayo or Howard and not McMahon, as does Mayo 's general testi- mony as to his handling of written TSI discipline. The evidence that has been submitted is insufficiently credible in the end to warrant finding that McMahon authored this document, as the connection to McMahon is not made by signature , convincing evidence of assent, nor again exclusive . knowledge of note content . Here again, the testimony of Respondent 's witnesses in the end -re- flects at least confusion , and more likely contradiction and/or inconsistency on discovery of location of this note . There was also no corroboration -of Mayo as to his version of a three-way discharge arrangement made, in- volving McMahon, to accomplish the termination of Pittman . To the contrary, his initial testimony that he .terminated Pittman because of McMahon 's neglect is deemed substantially inconsistent with his later asserted version of an initiating McMahon report to him of an- other absence by Pittman , and receipt of a recommenda- tion from McMahon , if not also flatly contradictory of a three-way discharge arrangement conversation involving McMahon . (I resultingly place no reliance on R. Exh. 12.) Rather, I credit McMahon on general and specific consistency. With regard to Respondent 's Exhibit 13, it is appropri- ate to note at the outset that the subject matter of this note is essentially directed at suspicion of abuse of equip- ment by Strang, and not McMahon 's problems with Strang over payroll questions being unreasonably raised by Strang , as to which there is much more consistent evidence offered by Respondent . In regard to Strang's equipment problems, Mayo testified that McMahon ex- pressed a concern to him about Strang 's -relatively fre- quent breakdown as compared with others . In McMa- hon's even log there appear to be three vehicle incidents reported by McMahon in regard to Strang . The first is that of December 17 when Strang reported truck #456 was running poorly. On that occasion , Uglow on three- way contact felt it was a filter problem that could wait for the truck to go ' into service as was then shortly planned .- The second was that of January 9 ,; 1981, when Strang reported that truck #456 was broken down with a fuel line problem between Williamsport and Rockha- ven, with McMahon recording first contact of Bairs T/S, PEOPLE'S TRANSPORTATION SERVICE 235 which 'gave him the name of a local (apparently new vendor), Hessler's Garage, who agreed to repair, or tow the truck to Wellsboro (its destination). Wellsboro .was also Strang's domicile, and his scheduled destination at 5:45 a.m. when he•called McMahon at 5:15 a.m. on the breakdown. (The note, if ascribed to. McMahon, would. have thus, been generated by McMahon' after only. these two demonstrated vehicle incidents, on its face a most, unlikely circumstance.) The third event log entry was a recorded, en route freeze-up on February 3, 1981, that was common to many drivers on this run. Mayo testified that he saw Respondent's Exhibit 13 on 'January 9, 1981 • (Friday). It is Mayo's testimony that McMahon had left it on his desk for Mayo's perusal., That would have been a departure from normal proce- dure. However, Mayo has testified that McMahon was, not present when-he reviewed the note; and that he did, not see McMahon thereafter for a, couple of days., As- suming, for some reason; Mayo arrived late, as it is un- likely, McMahon left early, it is warranted to observe in such regard that McMahon's instruction was to report all mechanical 'problems to Joe Bruno, Sr. McMahon has denied his authorship of the-note. According to Mayo, at a later point he discussed the memo with McMahon, and. McMahon indicated he drafted it,• though Mayo does not, state how, other than testifying generally that' they, dis- cussed it in the sense that McMahon,expressed his con- cern about the relatively frequent breakdowns of Strang. In point of fact there, was another and interim breakdown which occurred thereafter, early the next week. Thus Mayo recalls that Strang broke down' again. McMahon's only available phone' log entries on January 13, 1981 (actually starting 11:25 January 12, Monday evening), support Mayo's account of another breakdown in reflecting recorded calls from and later to Strang, to involved Harrisburg Post Office; and again first to Bairs T/S and then to Hessler's garage. There is no indication in the log as to whether this breakdown was mechanical, or cold weather related, e:g., fuel gelling, which was, an ongoing problem at this very time and in this very area. The related 5500s of even time however, make it clear beyond question it was cold weather related (see, e.g., G:C. Exhs. 18-4, 5, and 77- 80. It was also "af this very time that Uglow reported discovery of a new fuel station with a better diesel fuel cut, of which McMahon was surely aware, as he passed it on to Bruno Sr., who promptly established the account. Mayo independently has otherwise confirmed that the degree of the problem of cold weather on diesel fuel operations at this' time simply had not been anticipated by the Employer. ` McMahon had the truck towed to Harrisburg (its des- tination), and another truck available there was used for dispatch of Strang on the back leg to Wellsboro. It ,is clear however beyond question that the latter breakdown incident would have occurred' only after the indicated generation date of the memo urged to be ascribed to McMahon on January 9, 1981, though it would have oc- curred before Mayo might plausibly have engaged- McMahon in a discussion of Strang's breakdowns, with specific discussion then of frequency at point of an addi-' tional Monday evening breakdown , but then clearly in cold weather context discussion. Moreover, Strang did not work exclusively on'McMahon's shift.- Strang would regularly, depart Wellsboro at '7:15 p.m. and return to Wellsboro ''at 5:45 a.m. Serious route problems, e. g., breakdowns, called in by Strang before McMahon ar-, rived at 11 p.m., would be referred by the evening dis- patcher to Mayo `(if not made directly to Mayo) at home;' and, if not, then to Bruno Sr. In addition to denying his authorship, and any prehearing awareness of the docu- ment , McMahon has further denied that he had ever reg- istered a concern to Mayo about the frequency of Strang's breakdown; and even more pointedly, has' spe- cifically denied making a 'statement in any manner to any company manager concerning the subject matter (sus- pected" abuse of equipment) of that earlier memo. I con- clude and find-on the basis of the above evidence consid-' erations that McMahon's testimony on the memo was complete, consistent, cohesive, and persuasive, and that Respondent's evidence offered thereon when similarly scrutinized is much less so. Particularly is the latter the case where 'another maintenance supervisor, Joe Bruno Sr.; appears every bit as likely with knowledge of con- tent, and a potential author, and. he did not testify there- on, and especially so with the other substantial work pe- riods of Strang not being sufficiently addressed. The evi- dence offered on'the unsigned note is not persuasive that it was. authored by McMahon. (5) Asserted lack of control of Strang Strang.is an employee whom Respondent has -other- wise contended that McMahon had failed to control from the beginning. Strang's employment began on the Harrisburg-Wellsboro run-which itself commenced No- vember 15. The first reported incident involving Strang occurred shortly thereafter on November 18, in context of bad snow weather. Respondent's contention is in this respect based on Mayo's recollection that McMahon that morning had been severely critical of Strang. McMahon records Strang was upset over perceived favored treat= ment being,afforded to Uglow (in'his having a trip abort- ed because of heavy snow) to point of Strang, who was about to leave from Harrisburg on an abbreviated but long trip, having informed McMahon of an intent to go home after drop of the mail then on board which was all destined for Sunbury (a considerable distance away), and giving McMahon a notice of his possible resignation. On review of this event the following morning, Mayo con- cluded that' McMahon had. properly handled it in the in- stuction he gave to Strang at the time that Strang (pursu- ant to postal and company policy) could not 'go home after the Sunbury drop if there were then additional mail placed onboard for further delivery, and in McMahon's followup inquiry for a clearance from Harrisburg Post Office for Strang to go home because of the weather, if there was no mail. Mayo's only asserted criticism of McMahon over this incident was that McMahon did not leave the•matter there, ,but had contacted Olin with a re- quest that ' Olin speak to Strang who had not as of then called McMahon from Sunbury as directed. There is no showing of record that Strang had arrived at Sunbury, or that he did and failed to'follow, or call for further dis- patch instruction . It-would appear as only logical for any 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clarification from Harrisburg to be imparted to Olin who was in the area to ensure driver coverages. According to Mayo , in their morning review of this incident, McMahon had otherwise reported that Strang had been crude and verbally abusive , bordering on bel- ligerent . Mayo has testified , and McMahon has denied, that on this occasion he complimented McMahon on the firm way he handled the problem with Strang , up to his contact of Olin, but as to , that, informing:, McMahon that action " could be misinterpreted by Strang as a sign of weakness and that .he had to control Strang . However, Mayo , on another occasion , has testified that his own view was perhaps that Strang simply had a bad day. Mayo did not contact Strang , as Strang had requested, asserting he thereby delivered his own message to Strang . Apart from that incident , the only other apparent incident in 1980 involving Strang was when - Strang did not show up for a -run-'scheduled for 9:15 p.m., Decem- ber 24. This was at a time when McMahon was not sce- duled to . work TSI desk and, though working for some- one' else , was not working in the building . As it turns out, Strang had been given the day off by Uglow whose own understanding from the, post office at the time was. that this particular run would not operate .. It is, in any event, clear of record to me that asserted 1980 control difficulties with Strang of a significance from the start , as suggested by Respondent 's witnesses, is not at all well supported by the evidence . I am persuaded by credible evidence, however , that McMahon did have prominent difficulties with Strang in January 1981, all apparently related to pay and expense (believed) discrepancies. Bruno has testified that Strang was McMahon's baby; and that Strang (in regard to payroll) had pulled every- thing on McMahon 's shift . 'According to Bruno, McMa- hon told Bruno - that: Strang would call McMahon up when-bookkeeping was closed , and would ask McMahon technical questions about payroll checks from. weeks back , that McMahon had no chance to research; that Strang would demand immediate answers; and that Strang had threatened to sabotage the equipment. Bruno recalled such conversations with McMahon had, oc- curred over a 2-.to 3 -day period . Bruno at first thought it was a joke , and when Bruno inquired of McMahon what he had told Strang , McMahon answered that he said he would get .back to Strang, and had ;- but that - McMahon further told Bruno that Strang did not want to listen , he just rambled on, as if he were not expecting an answer, and was not calling so much for the informa- tion , but to threaten. Bruno recalled that McMahon called Bruno one night at home , waking Bruno . up (pre- sumably about such a threat). Mayo has confired Bruno to the extent that McMahon had discussed with him Strang 's anger over pay discrep- ancies; that Strang felt he was not being paid in full; and that Mayo told McMahon they would have to keep an eye on Strang - because Strang had threatened, not McMahon personally , but to put the truck in the woods and "we 'd never . find it," and/or to leave the turck in the middle of the route , and find his own way back to Wellsboro , if he was not paid in full . Although Mayo has acknowledged that McMahon had made no recommen- dation on Strang at this time , Mayo has recalled that Mayo spoke to Strang in mid-January, informing Strang that he should not yell- at McMahon; that McMahon was his boss ; essentially pointing out that Strang had never yelled at Mayo because, if he did, he would be gone; and telling Strang that he also should not- do so with McMa- hon, because McMahon should "have Strang gone [sic]" too. It is notable Mayo's version addressed Strang 's yell- ing at McMahon , ' not the matter of threats being made about the equipment . According to Mayo, but denied by McMahon, shortly before McMahon was let go, McMa- hon had informed Mayo that he could not deal with" Strang. On the other hand, Mayo has also related that he had encountered similar difficulties with Strang about the end of January or early February; and at first related that he fired Strang . Mayo explained essentially that you-could understand the man's complaints at first but, when it is repeated , it .eventually becomes too much. 'However, Mayo has even more revealingly thereafter testified that Strang was actually fired after an occasion when Strang had similarly threatened Norton, without knowing who Norton was. It is apparent*to me that, even given Mayo's earlier discussion with Strang,- Strang later continued to be problemsome to Mayo, until he made the ultimate error of still doing it. with Norton. I conclude and find Strang was fired only when continued complaint threats came to the attention of Norton; and that it is more likely he was fired after McMahon was terminated. Moreover it is further concluded and found that any problem in controlling Strang's anger over his view of continuing payroll shortages was clearly not one unique to McMahon , but experienced -by Mayo. as well, even before Norton ended the problem by a directed dis- charge, which Mayo then accomplished. McMahon has 'testified that he had no recollection of Strang threatening any person or equipment; and McMa- hon has variously denied his awareness of a call to Bruno at home over such . McMahon has also denied that Mayo told him to keep an eye on Strang, . or had re- marked on McMahon 's lack of control of Strang. McMa- hon, with more conviction , testified that it is not true that Mayo had cautioned him three or four times to watch Strang, or told McMahon at one point that he was losing control of Strang and had better get control of him. In this area I credit McMahon only about the degree and scope of likely Mayo instruction and com- ment . Thus, although McMahon has testified on a later occasion that he could not recall Strang ever telling him that he was going to leave a truck in the woods, and McMahon would never find it, McMahon had earlier testified a similar threat sounded vaguely familar, and he was sure that, if it was said by Strang, McMahon would have reported it. I am wholly convinced Strang made such threats to McMahon , and probably did so more than once ; and that on such occasions McMahon more than likely reported them to Mayo and to Bruno. How- ever, it is significant how such threats were then viewed by Employer, that neither Bruno nor Mayo issued a written" warning to Strang about the threats. It is accordingly concluded and found on the weight of evidence deemed the more credible that Strang in this PEOPLE'S TRANSPORTATION SERVICE period of January 1981 had become very angry over his perceived pay 'and expense shortages; that Strang likely did make certain threats to McMahon of the order re- ported by Respondent's -witnesses, which threats were promptly reported by McMahon to Mayo, and to Bruno (whether on one occasion at night or otherwise), but that they were then overlooked as essentially arising in a con- text of the broad payroll problems Employer was experi- encing not only with Strang, but with others at this time. Moreover, it consequently would appear far more proba- ble than not that in those' circumstances Mayo would have essentially instructed McMahon that he should watch or keep an eye out for Strang; indeed, that McMa- hon should not lose control of Strang, but essentially that when Strang complained , McMahon's approach should generally be to just tell Strang to do what he was sup- posed to do; and that if Strang did not, they might re- sultingly blow a run, but they would also be rid of a problemsome employee , as Mayo has essentially also tes- tified. I am not at all persuaded, however, that control of Strang in those circumstances was • then viewed as a unique deficiency of McMahon. The problem was rather one then recognized as the broader one being generated by the continuing payroll errors; with which Strang (along with many other employees) had evidenced dis- pleasure; and that Strang's response, if not' condoned, was acquiesced in by Bruno's and Mayo's withholding discipline on the threats made, pending the Employer's straightening out of its own underlying payroll problems. The acknowledged fact that Employer was aware that there was union activity among Chicago employees which Bruno, in part, essentially also related, only the more confirms me in that view. - c. The purported discharge letter/memos 1. Robert Lacey's discharge letter/memo of December 15 The first document (R.- Exh. 11) is a document ad- dressed to Robert Lacey, and is in typed form appear- ance from J. McMahon . This letter , in memo format, and in subject matter related to Lacey's job performance, in- formed Lacey essentially that he was being terminated for certain declared failure to,run extra trips, effective upon receipt of the letter. Lacey was employed as a trac- tor-trailer driver on the D.C. BMC run. There is some conflict whether Lacey worked at this precise time on one of the two evening shifts on this run which Mayo related began at 4 p .m. or 5 p.m., respectively, or, as McMahon appears to have recalled, worked what would have been an additional fourth shift from 11 p.m. to 7 a.m. What is clear in any event is that Lacey worked nights, and he had frequent occasion to work in McMa- hon's early shift hours, and at least occasionally well into McMahon's shift. It was Bruno's testimony, as Respondent 's witness, that he found Respondent 's Exhibit 11 in Lacey's.file, in Bruno's -asserted own review of produced files accom- plished some time after the hearing started . In contrast with earlier 611(c) testimony , it was Bruno's further gen- eral testimony at that time that McMahon 's thus appar- ent attempt to discharge Lacey (and also Jim Verro, next 237 to be considered) has evidence' that McMahon had become much more intense and exhibited more initiative in his attempt to an NSM-job performance in mid-De- cember.. Mayo, at least at one point 'in his testimony, has direct-; ly identified Respondent's Exhibit 11 as a letter McMa- hon had written to Lacey. In direct contrast, McMahon has testified that he did not produce Respondent's Exhib- it 11; and that he had never seen this letter before this hearing. It is undisputed that-this letter, with the date of December 15, was never sent to Lacey; and Lacey did not in fact terminate his employ until considerably later, on January 19, 1981, over a different incident. Mayo's recollection was that on that latter occasion he had left a note for McMahon essentially to the effect that at the end of Lacey's shift (on January 19, 1981) Lacey was to be temporarily assigned to drive a straight truck on the short section of the Prince George to Roanoke run where Employer was short a driver; and that when Lacey finished that, another driver would be available to complete the run. However, McMahon's phone log re- flects that at 12:10 a.m., on January 19, 1981, D.C. trac- tor driver Bob Lacey had reported a generator fire in his tractor; that about 12:35 a.m. McMahon called a towing service; and that an hour later at 1:35 a.m. Lacey refused to do Roanoke (straight truck) runs. Be.that seeming dis- crepancy on nature of Roanoke run assignment as it may, McMahon called Mayo at 1:40 a.m. January 19, 1981, to report Lacey's refusal of the Roanoke runs. According to' Mayo, Mayo told McMahon at this time that he did not have any information as to who was available as that information was all at the office; and McMahon was on his own. McMahon's phone log only confirms that he thereafter called the D.C. beeper number in an apparent attempt to reach Olin and/or Lawrence. According to Mayo, when Mayo came in the office that morning they discussed Lacey. Mayo relates that Lacey was viewed as being on shaky ground at the time because Lacey had also earlier refused to do extra trips, or had gone home with extra trips to be done during the Christmas rush. Mayo relates it was decided that the re- fusal of the Roanoke assignment had to be the last straw, and that Lacey would be terminated. Mayo has asserted that it was McMahon's input completely (in the dis- charge of Lacey). As Respondent's witness, Mayo then volunteered, "I typed up the termination letter to Mr. Lacey." (No termination letter for Lacey on January 19, 1981, was ever produced.) Mayo has further testified that Lacey called Mayo that afternoon to make an inquiry about the prospect of Lacey's discharge for his earlier re- fusal of an assignment . Upon receiving an affirmance from Mayo that he was to be discharged, Lacey told Mayo, following an initial remark derogatory of the Company's method of operation, that he was going to deny Mayo the opportunity to fire him, that he was a tractor-trailer driver, not a straight truck driver; and Lacey thereupon told Mayo that he quit. McMahon in that connection testified initially with an unsureness as to the reason for Lacey's termination, but,' I find, and contrary to Employer's urging in that regard, in a manner that is wholly compatible with McMahon's 238 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD nonparticipation in Lacey's -termination,. and also with unawareness of interim resignation delivered to Mayo, that there was an instance of. a driver refusing an assign- ment, and it could have been Lacey. McMahon, howev- er, has also subsequently testified that he only reported the Lacey refusal event to Mayo; that he did not recom- mend that Lacey be fired, or be disciplined; that he had made no suggestion thereon to Mayo, nor did Mayo to him; and that there was no discussion of either. On this very same day Mayo would write the January 19 memo to Bruno referring to morale being low inter alia because of night schedule problems, and, relating - that all the night problems fell on him. Clearly the latter timely re- corded statement'-by Mayo' more supports the decision of the termination of Lacey as being of Mayo's handling, rather than a McMahon determination. The same is also more consistent with much other -evidence of Mayo's part in discharge matters through McMahon's entire tenure, supra. I credit McMahon that he essentially only reported to Mayo the fact of Lacey's _ refusal of the Mayo assignment, in the manner McMahon relates. There remains consideration of the earlier document, re- lating to other events, that -Respondent would, nonethe- less, attribute to McMahon.' ' With regard to the December 15 letter itself as being one earlier purportedly prepared by McMahon but not sent to Lacey at' that time, Mayo initially related that he was 'virtually certain that he had intercepted this Lacey discharge letter (R. Exh. 11) in the office one morning, on,'the same or the next day. Mayo's initial, recollections on the-matter additionally were:' that there was an- enve-lope with Lacey's 'name on it in the material going out to the field; that he knew he had not put it there, so he asked McMahon what it was; ' and McMahon told him, and showed Mayo the letter. As noted McMahon has denied both his authorship- and any awareness of." the letter. I' resolve this conflict on. the basis that there are too many incongruities and uncertainties in -Mayo's ver- sions of the related circumstances to credit his recollec- tions. (Bruno's testimony was he had not seen this-letter before review of Lacey's file.) To begin with, December 15 was a Monday. The un- derlying events are evidenced in McMahon's;logs (by a reported post office call) only as trips not- runon-the im- mediately preceding Sunday, December 141 McMahon would have first learned of the December ' 14 problems after the fact on his December 15 shift (starting 11 p.m., ,,Sunday evening, December. 14); and McMahon's logs and-other Employer documents do not record any, other earlier refusals on this run by Lacey, or anyone else, as discussed further, infra. (Any such earlier refusal, coming to- the attention of McMahon would, surely have been a notable, unusual event that McMahon would • have re- corded.) McMahon would have gone over these. first in- cidents with Mayo 'in the normal course the morning.of December 15. - - - It. is otherwise established that -the material for the field was regularly put in pouches for mailing to. the field on Monday afternoon,by Bruno or Mayo but usually by Bruno in that he also regularly handled the postage: me- tering for the outgoing mail. McMahon would not have been there from- relief discourse with Mayo at 7 .a.m., Monday morning, until, that evening at 11 p.m. What is thus urged essentially is that McMahon had prepared a Lacey discharge letter as of that Monday morning, thus without any prior discussion with Mayo, the very con- sideration as to which I find Mayo's testimony was the least , convincing , infra. There are still 'other serious inconsistencies in Mayo's recollections on this matter. According to Mayo, McMa- hon had felt he was really saddled by Lacey's lack of co- operation; and Mayo asserted that McMahon told Mayo that Lacey was refusing to do, extra trips at the end of -his shift, and how'they could handle Lacey. On one oc- casion, Mayo asserted in explanation that "once or twice we were informed -by the Post Office," and other times by drivers, that Lacey refused the extra trips; and that Mayo,told McMahon he had to just handle Lacey "the best way he can, but you've got to get Lacey to do the trips"; that it happened again and McMahon (this time) wanted to fire Lacey for insubordination and lack of co- operation. According to Mayo, he then • explained to McMahon that it would probably be' a bad time (on De- cember 15) to do it because of the Christmas rush and the extras; that they were stretched thin, personnel-wise, and had no one to take his place; that it would put them behind the eight ball; and so "maybe we could hold off for a while," or should probably put up with Lacey for a little 'while longer, at least until Christmas was over. Mayo has testified that it was his decision that the De- cember 15 letter not be sent;'and that, Lacey's continued employment was necessary to adequately cover-the extra runs. Mayo has also testified that he did not overrule McMahon, because they had discussed it. and agreed on it; and that had McMahon insisted, "we would have done something else." ' In contrast, when initially testifying as a 611(c) wit- ness, the thrust and tone of Mayo testimony appeared to be rather discernibly different. There Mayo began his de- scription of the situation with relation that he did not know if it could be called discipline; that it came to McMahon's attention that, Lacey was refusing to-pull extra trips on-the trailer run mid-December; that' Mayo -told McMahon, "You gotta tell him' that we don't, turn down extras"; and that, McMahon told Mayo (later) he did tell Lacey, "We don't turn down extras ." It is nota- ble that this first . account - is more compatible. with McMahon's log entries. -In that regard Mayo then testi- fied, clearly inconsistently with his subsequent (but first above related) testimony on'the matter , and inconsistent- ly with the body. of the letter in question as well, that.to his knowledge, McMahon did not give orders to Lacey in regard to not turning down extras before Mayo's talk with 'McMahon,, and also that Mayo did, not think he had told Lacey. .However, Respondent's Exhibit., 11 explicitly provides: Recently, several drivers complained to me that you. were not running extra trips , thereby placing an unfair burden on your. fellow drivers. Two weeks ago 1 ,spoke with you about this, saying that we do not turn down .extra trips. _ PEOPLE'S TRANSPORTATION SERVICE On Sunday, December 14, 1980, there were sev- eral extra trips at the BMC in Largo, yet you decid- ed to go home. This resulted in a great deal of confusion and extra work for your fellow drivers and caused us to run late on several trips. Actions such as this reflect poorly on our Com- pany and could jeopardize our relationship and con- tract with the Postal Service. I will not allow this to happen. If this were the first time it happened it would be a different story, but I have spoken with you about this before. Therefore, I must inform you that your services will no longer be required by-this Compa-_ ny, effective immediately upon receipt of this letter. Even if it be considered that Mayo had in his earlier testimony merely misspoke or misrecollected on prior communication , there are additional inconsistencies evi- denced as to such prior refusals, particularly as known by McMahon. The end of the two afternoon tractor shifts (as recalled by Mayo) normally overlapped the start of McMahon's shift. While it is clear that extra trips were to be done at end of shift , McMahon 's logs appear to provide no support to Mayo for pre-December 15 re- ports to McMahon from postal officials or drivers on Lacey's refusals to do extra trips; but rather provide only support for Mayo's above recollections as a 611 (c) wit- ness of no prior discussion with Lacey (at least) by McMahon. McMahon's event log entries for December 15 first report at I a.m . a D.C. BMC postal official re- quest for 5 extra trips ASAP; at 1:15, Lawrence report only that Lawrence, Tomlinson, and Lacey should be able to run off extra trips that night ; and that at 1:30 a.m. a further postal call was received that explained the five trips were caused by five traps not run on Sunday. The trips scheduled (as there recorded by McMahon) were: regular trips #813 at 2 a . m. and #803 at 11 : 30 a.m.; and extras at 5:50, 6 : 55, and 9 :20 p.m . Any and all such fail- ures occurred over weekend before the McMahon shift. There is no subsequently recorded related problem en- tered on December 16, ' e.g., such as that contrary to Lawrence 's expectation , Lacey went home without making any extra run , that night . There is also no similar or related problem entry recorded in McMahon's logs during the prior 3 to 4 weeks, that would support McMahon involvements as' otherwise indicated in the letter, and certain of Mayo's testimony. In short, McMa- hon's logs wholly support McMahon's testimonial denial of preparation of this letter;, and they do not support either the content of the ' letter, or the contrary. Mayo version of McMahon having any earlier such problems with Lacey at all, nor consequently support Mayo's ver- sion of McMahon this time wanting to fire Lacey for in- subordination , or lack of cooperation . There is no sup- port to be gleaned for that assertion from the only earlier related 5500 form (see G . C. Exh. 18-36 where the expla- nation essentially was the driver (Lawrence) failed to run an extra because he misread the schedule , and was repri- manded); nor is support - readily apparent from any other 5500 form in 'evidence. 239 With regard to the initially contended preparation of this letter by McMahon, Mayo at. first testified that its substance or content was not overly formal for MacMa- hon (who uncontestedly had never prepared such a dis- charge letter for Employer theretofore). However, when then asked the direct question by the General Counsel essentially if it was then Mayo's testimony that McMa- hon was all set to send out this formal discharge letter to Lacey, all sealed and ready to go in a pouch, without conferring-with Mayo first, Mayo clearly then hedged in his answer , responding , "The letter to Verro was right around this time too, and I'm not sure which came first." In point of fact the failure to run extra trips underlying the Lacey incident and its letter date is a day before the Verro incident and its memo date, respectively. I find that the Lacey letter was first in origin. What is signifi- cant is that both the failure to run extra trips (not Lacey involvement as such) and Verro complaints, discussed infra, would have been both normally reported to Mayo on Monday morning by McMahon. The matter of Re- spondent's Exhibit 11 being attributed to McMahon rests essentially on the recollection of Mayo that itself pre- sents many inconsistencies and a major uncertainty occa- sioned by Mayo's later volunteered but ambiguous ac- knowledgement of authorship of a Lacey discharge letter. Finally, but even more pointedly, in summary on McMahon's part in the discharge-of Lacey, and in regard to Mayo 's assertion of McMahon 's preparation of Re- spondent Exhibit 11, when one combines the only seem- ing reasonable import of an early hearing Employer stip- ulation that McMahon did not discharge. anyone, and the confirmation, albeit inconsistent, if not contradictory tes- timony of Bruno thereon to the same effect, and com- pares the early Mayo testimony in compatible summary, viz, that it was he (Mayo) who had regularly executed the written evaluations for day and night TSI employees; and he that handled all the paperwork on personnel mat- ters that went into ' employee's files (with related evi- dence that the Lacey letter was found in Lacey's file); that he recorded discharges on paper rather than McMa- hon,, along with Mayo's early belief that it was he who also wrote all the letters (including written communica- tions to field supervisors), or telephoned the terminations of TSI employees, if not to be viewed fatally contradic- tory, the same hardly makes for a supporting,. or very convincing , background for a finding that it was McMa- hon who prepared this letter, over. McMahon's categori- cal denial . This is to say nothing of weighing the addi- tional testimonial background assertions shown deficient in connection with Castallano discharge, and/or the in- consistencies in Mayo's relations : in general , that he did not know of any situation involving the discharge of a postal driver in which he did not discharge the driver; in connection with Verro , that he knows of no other situa- tion involving the discharge of a postal driver in which he did not discharge the driver, during McMahon's tenure ; and on other, occasion , that with the exception of Pittman , that he fired all the out -of-state drivers who' were fired during McMahon 's employ or , finally , in con- nection with Johnson 's discharge , Mayo 's early acknowl- 240 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD edged belief that it was he who always wrote the letter, or made phone calls on terminations. In contrast, McMahon's denial essentially is well sup- ported by and/or congruous with several documentary sources. In my view the above delineated factors, viz, the infirmities, or lack of cohesion, in Mayo's several re- called accounts; the discrepancies in the body of the letter with other documentary evidence, as attributed to McMahon; the major circumstance that the letter to Lacey is not signed or affirmed in any fashion by McMa- hon, but rather categorically denied by McMahon; the internal consistency of McMahon's testimony thereon as compared with that of Mayo; the compatible documenta- ry support for his version over Mayo' s version; the dis- credited assertions, that McMahon terminated Lacey on January 19, 1981; and other considerations noted above, all combined, have 'resultingly caused me in the end to conclude and find that Respondent has wholly. failed in advancing Respondent Exhibit 11 as a document either authored by McMahon, or as one establishing that McMahon was acting as a statutory supervisor and/or manager. (2) Jim Verro's discharge letter/memo of December 16 Jim Verro was a part-time driver who would normally drive one-half the distance of, the _125-mile 2-plus hour run from Kalamazoo, Michigan, to Gary, Indiana, to an essential midpoint meet-point, where he would swap trucks with another driver arriving from Gary, and then return to his own point of origin, Kalamazoo, Michigan. Respondent's Exhibit 10 is a discharge memo in typed form from "J. McMahon," with date of December 16, 1980, addressed to Castallano, and directing the dis- charge of Verro in the following manner: On Friday 12-19 1 want you to relieve Jim Verro of his keys and cards and have him call me. Plan to run his route if I don't have a replace- ment by Friday. If you have any questions call me. In contrast, with his initial 611(c) testimony of a lack of awareness of any McMahon discharge/discipline of an employee working at night, as Respondent's witness Bruno has testified that Respondent Exhibit 10 was found in Verro's file, one earlier produced; and that he first saw it on or about its date. Bruno recalled the cir-. cumstances were that he stuffs the mail pouches going out to the field; and he saw it in the outgoing mail. Ac- cording to Bruno, he removed it, and confronted McMa- hon about it. Bruno on this occasion said, "If you let this fellow go' now during the Christmas rush, Castallano can't cover his route or, you can't depend on Castallano to cover-it." Bruno said , "Castallano is needed in Chica- go to cover the Christmas rush routes"; that in fact; "Castallano is hanging by his fingernails anyway"; that "the timing is all wrong"; and not only that, there was serious doubt that Castallano would' be there through Christmas; and that they were going to try to hold Cas- tellano, but there was no guarantee if it was' going to happen. Bruno has testified again that he assumed that McMahon was the author, as McMahon did not indicate to Bruno at that time that he did not author it. However, as revealed by the record, the outgoing mail was normal- ly stuffed in pouches on Monday afternoon; and at a time when McMahon was not present. . Mayo's version is that Bruno spoke to him, but on Tuesday morning, and otherwise affords an uncertain corroboration of McMahon being present. Mayo has thus testified that he saw the letter the next day, after his De- cember 15 conversation with McMahon, thus December 16 (Tuesday). Mayo relates McMahon had put it in a bin to go to Chicago; and- Bruno had intercepted it. Accord- ing to Mayo, Bruno showed the letter to Mayo and, Mayo believed, also 'to McMahon. Mayo's recollection otherwise was that Bruno said, "You know you don't want a guy we are thinking of _ letting go, terminating someone else ." Mayo has confirmed on other occasion that the reason Verro's discharge was not allowed was because Castallano was' on thin grounds , as Bruno ex- plained it to Mayo; and on still other occasion that Bruno discouraged McMahon from letting -Verro go be- cause Catallano was on shaky grounds. The fact is that Verro was not terminated at this time. Mayo has ac- knowledged the discharge was not. carried out by some other means; and he was sure there was a reason for that which he knew at the time, but could not recall at time he testified. It. is established that the truck that , caused .Verro's complaints at this time was one ineffectively re- paired by Castallano. It is also clear that, not until De- cember 19, did Mayo require of Castallano an agreement by December 22 to run (essentially) a 2-hour early morn- ing Chicago route. By that time the pre-Christmas season was pretty much past. Mayo has testified that Bruno gave the letter to Mayo (not McMahon), but apparently he did not relate what he then-did with it. Mayo's testi- mony otherwise was only that such a letter would nor- mally be found in the employee's personnel file. McMahon -has testified that he did not author or draft Respondent Exhibit 10; that prior to this hearing he had also never seen it; and that he did not put it in the Chica- go bin. McMahon's denial of this document is complete. McMahon has thus otherwise testified that he never typed any letter, nor did he have any other communica- tion with Castallano telling him to relieve Verro of his duties , or in regard to Verro's employment status. In fact, McMahon has testified that he never wrote a letter to Castallano about anything (and noiie other was ever produced); and also, that he had no memory of ever typing any memorandum to any personnel of. Respond- ent. McMahon has further denied that he ever spoke to Bruno or any manager about 'the subject of this docu- ment, or, in regard to discharge or discipline of Verro. In general, Mayo has testified that McMahon had ex-, pressed to Mayo several times his displeasure or dissatis- faction with Verro's performance, particularly Verro's attitude; and that prior to the letter being sent out, in those conversations, McMahon had described Verro as being "a pain in' the ass, a crybaby and a chronic com- plainer." McMahon has essentially confirmed Mayo in each of those particulars. Thus McMahon- has recalled and acknowledged 'telling Mayo that ' Verro was "a pain PEOPLES TRANSPORTATION SERVICE in the ass and McMahon has specifically characterized Verro s earlier recorded reports on December 12 about his inquiry about a Hertz rental that might be obtained in Kalamazoo in terms of Verro being paranoid about having a breakdown There Verro on his own had in quired and reported that the Hertz rental in Kalamazoo was a franchise, but not affiliated the significance of which (apparently) was that being unaffiliated with other Hertz rentals along the Kalamazoo Gary run in event of breakdown of a rental truck from Hertz in Kalamazoo repair would be required to be accomplished in Kalama zoo There is no question that truck #67 was giving Verro considerable and ongoing trouble for the past week inclusive of the period in which he made inquiry about rentals McMahon event log for date of December 15 records at 1 20 a in inter alia that Verro is becoming a royal pain and that Verro had threatend to leave truck #67 at the halfway point (Castallano s failure to properly repair this particular truck over the weekend or alterna lively to arrange a rental for this particular day has been earlier considered) It is Mayo s testimony in connection with this event that on that morning he and McMahon had a rather lengthy conversation about Verro and that McMahon expresed very strongly that it was impossible for him to deal with Verro Mayo relates that he told McMahon (variously) that he (Mayo) did not deal with the guy that Verro did not drive at all on Mayo s shift and Mayo had little or no contact with Verro and that Verro drove on McMahon s shift and was McMahon s baby Mayo has testified generally but variously with regard to Verro that he told McMahon he should take what action he deemed necessary or that McMahon should go ahead and do what you think is appropriate On one initial occasion Mayo more specifically testified in regard to this event that he (Mayo) asked McMahon what do you think we should do and that McMahon then said I would like to get rid of him According to Mayo Mayo then said do it and that his exact words were if he is that much of a pain do it On another occasion Mayo essentially reaffirmed that when McMahon said he wanted to get rid of Verro he told McMahon that if he felt that strongly about it do it (However it is to be re called in comparison that as a 611(c) witness Mayo had earlier testified that he had never told McMahon to dis charge or discipline an employee) Mayo s testimony then initially was that in response to that instruction McMahon wrote a letter to Castallano to relieve Verro and that Mayo saw the letter the next day and that that letter would be one maintained Mayo s testimony given on this matter was of nature more clear and decisive in identifying Respondents Exhibit 10 as being of McMa hon origin than any other document (That very testi mony must be additionally contrasted however with Mayo s earlier and inconsistent testimony as a 611(c) wit ness that Mayo (then) believed he wrote all the termina tion letters and also that he wrote all communications to the field) Mayo s account is surely substantially mcon sistent in its above details and with Bruno s version of the interception being on Monday afternoon mail out, rather than Tuesday morning as Mayo recalled 241 McMahon has denied that he ever told Mayo that it was impossible for him (McMahon) to work with Verro or that he told Mayo that he wanted to fire Verro or ever recommended Verro s discipline McMahon has also denied that Mayo ever told McMahon to take appropn ate action with Verro or told McMahon to get rid of or go ahead and fire Verro or said anything of that type McMahon denies anyone ever instructed him to do so (3) Other factors On December 19 McMahon recorded a call of Verro at 3 50 am 1 extra hr do [sic] to weather He wants pay for this??In regard to this incident Mayo has testi fled that McMahon wanted to get rid of Verro very badly and that McMahon had on this occasion said sar castically to Mayo Why don t we not pay him and maybe that way he will quit or let s not pay him and maybe we can force him to quit McMahon at first did not recall the remark He also testified that he did not think he said it that he did not inform Mayo that he did not want to pay Verro for an extra hour of work, and would explain the signifiance of the question marks in his log as only the equivalent of his earlier pain in the ass remark Mayo has also asserted that Verro thereafter called McMahon about wanting some time off On December 29 when Mayo returned from his holiday McMahon mentioned it to Mayo and Mayo asserts that McMahon said to Mayo Why not let him have it off After McMahon had confirmed coverage by alternate driver Summer Verro was given the time off Mayo has testi feed that this was the only instance Mayo recalled of McMahon ever granting time off (Other instances of log recorded absences that Norton asserted were grants of time off were not confirmed by Mayo Norton s asser tion thereon are not credited) McMahon has testified that he never granted time off to any employees he es sentially testified that he only recorded reported illnesses (with or without reason) and other requests for Mayo etc and that the only time off incident with Verro was when he called in sick There is an inconsistency be tween Mayo s recollections of McMahon s disfavoring payment of Verro for a recent claimed extra hour of work and Mayo s recollection of McMahon s favoring or championing a Verro leave request and also between the latter and Mayo s asserted question of McMahon about not extending himself for Verro on January 3 1981 because McMahon did not like Verro next consid ered December 29 was Mayo s first day back and even under Mayo s version the message given him included that Verro would be calling Mayo about getting certain time off Such limited evidence of isolated incident would in any event not warrant finding McMahon granted or effctively recommended time off to employ ees particularly with the background of the full record made herein Vero is also one of the individuals that Mayo has as serted that McMahon failed to effectively control As noted on December 31, 1980 (Wednesday) the Kalama zoo Post Office wrote Employer the complaint letter re questing a meeting on January 14 1981 on contract is 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regularities that had occurred in the past 30 days (essen tially December) As Mayo was directly managing TSI operations and has acknowledged that he was shown all the postal complaint letters it is concluded and found that he likely would have become aware of the initial Kalamazoo postal complaint letter promptly upon its re ceipt by Employer likely in very early January but whether before the incident of January 3 1981 is not clear Though with occasional departure from time to time Mayo has nonetheless the more consistently testified that he began to become displeased with McMahon s per formance about early January In the entry of January 3 (actually 11 p in January 2) 1981 Verro reported that he could not start his truck as apparently a dome light had been left on and the battery was dead but that he was thereafter able to get a jump start Verro was 40 minutes late in his depature About an hour later at 1240 a in January 3 1981 Verro reported poor weath er conditions that he had no brake lights but was using his 4 way flashers and that he was running late McMa hon kept Verro running under his understanding of Bruno s instruction to keep an operable truck running, and it appears Mayo did not question that action in this instance At 3 50 am Verro reported running truck #269 off the road (into a snow bank) and that he re quired a wrecker service for extrication (Mayo has oth erwise acknowledged receiving a number of reports from McMahon that generally indicated to him that Verro had reoccurring difficulty in driving in inclement weather) According to McMahon on this occasion Verro pro vided McMahon with a few local wrecker service tele phone numbers and he also advised McMahon at first that he only had $1 for phone calls and (only) company issued Marathon and Standard Oil charge cards After placing certain calls McMahon records in his event log that the one station that said it would accept the Stand and credit card also said it would not have a wrecker on duty until 7 am (thus about 3 hours later) and that others contacted wanted cash or Master Charge McMa hon s log reflects At this point I told Jim there was nothing I could do until 7 a m and that he would have to stay with the truck Within 5 minutes Verro called McMahon back to report that he had found a wrecker that would accept Verro s personal Mobil credit card Although McMahon would later assert he was thereby by no means giving up on Verro and would rely on the circumstance of Verro s almost immediate call back I do not credit that assertion in light of his log admission clearly (in my view) indicative of the contrary According to Mayo on the following morning in their log review of this incient upon Mayo s inquiry McMa hon told Mayo that he had made two phone calls that Verro was a pain in the neck, and had been very unco operative Inasmuch as Mayo s assertion that McMahon said he placed only two calls is itself clearly contraindi cated by McMahon s log entry I do not credit it Mayo has also asserted relatedly that he expressed his own dis appointment to McMahon that McMahon had not exert ed a greater effort and Mayo told McMahon that his handling of this incident was absolutely unacceptable Mayo has explained that McMahon had not done every thing he could According to Mayo he told McMahon that they had to do everything they possibly can to create a sense of security in the driver that the incorrect information given him by Verro was irrelevant that they were supposed to provide a wrecker to get the truck out of the ditch by any means possible whether by calling the nearest service station of record another station in the area the police-anybody According to Mayo McMahon expressed no reaction to these criticisms Mayo prepared no writing on this incident In contrast McMahon has asserted that Mayo did not discuss what additional calls could have been made and he testified that Mayo did not reprimand him in any way about this incident I credit McMahon that Mayo did not discuss other calls that could have been made As to the reprimand likelihood the fact is that the obtaining of a wrecker was resolved as a practical matter on this occa Sion in a matter of minutes and that it was done through the use of Verro s personal credit card previously unde Glared to McMahon which would support as plausible McMahon s assertion of brief Mayo comment about the incident when reported McMahon has otherwise fully acknowledged that his and Verro s personalities did not mix whatsoever that it was Verro s tone and manner that over the phone other people would cooperate but Verro would not almost to the point of being rude and repeating that Verro was (in his view) a pain in the ass Mayo well knew of that conflict at this time In seemingly open conflict with his repeatedly asserted restrictions that governed him on not directly counseling and/or evaluating McMahon s performance Mayo has nonetheless additionally in this matter testified and McMahon has as categorically denied that Mayo at this time suggested that McMahon did not overextend him self in helping Verro because McMahon did not like Verro McMahon continued with critical observations on Verro soon thereafter on January 7 1981 in reporting in his event log that it seemed to be that (Gary driver) Thompson usually waits for Verro in adverse weather conditions even though he there recorded also an an pression gained from a postal official that the weather was harsher in Kalamazoo Given that McMahon s feelings towards Verro were well known by Mayo by this time it would seem plausi ble in his review of this incident that Mayo would have entertained some concern that McMahon had extended himself sufficiently Mayo s credited inquiry of McMa hon how many calls he made convinces me that was likely the case though Mayo s other recollections of a response by McMahon that he had made but two calls (and the related expanded discussion of calls that could have been made) is not credited since a two call answer from McMahon on the face of his log entry is clearly contraindicated and wrecker service was quickly ar ranged In part because of Mayo s repeated assertion that he did not engage in counseling or a reprimand of McMahon but even more so because it seems more un likely that McMahon would have continued with a cnri cal observation of Verro only a few days later if Mayo had so accused him I do not credit Mayo s recollection that Mayo had expressed a suggestion to McMahon that PEOPLE'S TRANSPORTATION SERVICE 243 he had failed to extend himself in Verro's behalf, because he did not like Verro, supported as the same is by strong and convincing McMahon denial. While I have no doubt that Mayo and McMahon understood that their primary objective was to get a stalled vehicle on the' road again whether disabled, or in a snow bank, or ditch, I am not . persuaded that receipt of incorrect information in that respct from a driver was regarded as of little or no moment by Mayo in this incident as he seems to now assert; especially given his testimony on other occasion that McMahon took all together too much grief from Verro. What is clear is that Mayo subsequently instructed Yerro to, arrive a half hour earlier than normal to avoid any repetition of his initial delay. Mayo also continued with a closer review of Verro's performance. . On January 16 (actually 1:15 p.m., January 15), 1981, McMahon records Verro's first call that he had an ear infection, and second call that the brake cylinder was low in fuel; and in Verro's reported view, the truck should not be run. With regard to this incident, from a subsequent inquiry made- of Verro after a check of - a truck ordered by Mayo, and Verro' s admission to him, when confronted, Mayo learned that the problem of delay here was not with the truck, it was with Verro's personal car; but that Verro knew the post office would not accept that as an excuse for his lateness, so Verro had offered.-to them- that there was a brake cylinder problem with - the - company truck. Mayo relates that Yerro had offered the same explanation to McMahon, which he recorded: Mayo again discussed with Verro the necessity for his on-time operation. According to Mayo, McMahon should have had the brake problem checked at a truck-stop when reported. McMahon again has testified that he was never instructed to check on employees' alibis, and also that he was, never, instructed to check on brakes. Problems on the Kalamazoo-Gary run continued through March 20, 1981. Verro was not .terminated until sometime in March, clearly after March 10, 1981, by Mayo, and, in any event, well after McMa- hon's termination. With regard to the matter of Bruno's discussion of Re- spondent Exhibit 10, first, 'I am wholly persuaded. to credit McMahon that he was not present when Bruno and Mayo discussed it. Under Bruno's version, even as- suming pouches were stuffed on this Tuesday, McMahon would not have been working at the time (afternoon) when Bruno stuffed the pouches; and I note further that Mayo was not firm in corroboration that McMahon was present. Under Mayo's version, his conversation with Bruno would have taken place on the morning of De- cember 16, in my view, more feasibly, and with his initial conversation with McMahon in both recorded events in the log occurring the prior morning of December, 15. What is indicated from the dates of the letters is that the Lacey letter was prepared the same day of McMahon's report to Mayo, and the Verro letter the day following that report. Moreover, Mayo's corroboration otherwise of what Bruno said, more confirms Bruno's remarks were being addressed directly to Mayo, rather than to McMahon . Given Mayo's unsureness that McMahon was there, and McMahbn's clear testimony that he was not, the same appears only the more so confirmed in Mayo's recollection that the Verro document was returned to Mayo, not McMahon: The argument of Bruno, that in conversation with McMahon, McMahon did not deny authorship, is unconvincing.. Even were it to be concluded from the above that Bruno misrecollected as to a Verro letter interception at Monday afternoon mail out time (rather than a Lacey letter), and Mayo initially misspoke of a Lacey letter interception early one morning, there is even otherwise much confusion remaining of record in Bruno and Mayo testimony additionally vis-a-vis McMahon preparation of a Verro discharge letter, as earlier discussed in connec- tion with the Lacey letter. -On the other hand, in regard to the Verro discharge document, although authorship is denied by McMahon as is the case of the other documents, there is substantial evidence that real antagonisms of personality existed be- tween McMahon and Verro that would make his prepa- ration of it plausible- particularly if directed by Mayo. But Mayo's general and specific testimony is inconsistent even on that. Then too, there are the revealed. infirmities with regard to each- of the earlier considered documents that were also of attributed, but unproven McMahon au- thorship (viz, G.C. Exh. 57(c), R. Exhs. 11, 12, and 13), which necessarily provide cause for pause in ascribing Respondent Exhibit 10 to McMahon authorship, where it lacks his signature and he denies authorship. However, in this instance, it seems to me it does not make any differ- ence, at least in regard to supervisory issue. First, the Employer asserted reasons for Verro's non- dismissal resting on Castallano being on thin - grounds is much weakened by Mayo revelation that Castallano had effectively continued as their eyes and ears even after December 19 and through the time of his departure about January 11, 1981. Moreover, Mayo was least per- suasive in his failed memory as to why the discharge of Verro could • not have been accomplished in another manner, e.g.';as seemingly phoned in on Pittman, or di- rected by mail as in the prospective but aborted written discharge of Lacey of eventime. Whatever may be said concerning Bruno's additionally supplied reason of Cas- tallano needed use on Christmas rush extra trips (notably of little duration) that. consideration no longer applied after Christmas; and it certainly was not a case where Verro's performance thereafter had become that of a model or an exemplary employee; nor had McMahon's antagonism towards Verro in any sense subsided or di- minished. To the contrary, it clearly continued after Em- ployer's receipt of the service complaint of the Kalama- zoo Post Office. Though McMahon may not have been aware of that complaint letter, Mayo surely was, just as, he was surely aware of Verro's deficient performance, even shortly thereafter in January, though Verro was not discharged 'until -March 1981. Under no view of these circumstances can it-',-be said McMahon discharged Verro, or-it be concluded that he was able to;effectively recommend the discharge 'of Verro. Finally I have diffi- culty in accepting that if McMahon had actually au- thored his first discharge letter/memo to Castallano, that he would not have signed it, particularly as purportedly 'pursuant to a specific direction of Mayo. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus what the above evidence in final analysis more clearly proves on supervisory issue is that even it were to be concluded that McMahon typed this document which though not without some reservation because of McMahon s clearly evidenced antagonism towards Verro I nonetheless do not do in the light of the greater weight of contradictory and inconsistent circumstances thereon otherwise presented to me in this record the ul timate result would be of a finding that McMahon did not thereby discharge Verro nor was he able thereby in any real sense to effectively recommend the discharge of Verso What the record convincingly shows on Verro is that if McMahon really had either power the weight of the evidence as to his antagonistic relationship to Verro is such as to wholly persuade me that McMahon would have used that authority to discharge or effectively rec ommend discharge to secure the release of Verro if not then (mid December) thereafter at his first opportunity On balance it is concluded and found that Employer has not only failed to produce convincing evidence that McMahon had and exercised statutory supervisory power to discharge or effectively recommend discharge of Verro with independent judgment given the above inconsistent accounts and state of the evidence it more basically failed to produce convincing evidence that McMahon prepared the document The same evidence considerations however belie the assertions that McMa hon failed to control Verro The fact is his documented continuing report of incidents and observations in regard to Verro if anything went insufficiently heeded by others who had the real authority to control Verro by discipline or discharge at that time viz if not Mayo then Bruno That Bruno in discussion with Mayo may have elected not to have done so for operational reasons deemed good and sufficient to him at that time is of no moment on the instant issues of McMahon s actual au thonty to discharge or effectively recommend the dis charge of Verso with independent judgment as to be proven by this incident The issue of McMahon s assert ed failure to control Verro is simply without merit as evidenced by the background found above Finally to the extent that the Gereral Counsel has urged that the notes and/or discharge letter/memos were inventions I am not persuaded that these documents were proven inventions so much as they may have been misattnbuted to McMahon In that respect however I need not address the documents Wholly apart from the ncessanly involved but undeveloped hearsay consider ations I need not speculate on other origins thus not on the payroll problem note (G C Exh 57(c)), as neither Bruno nor Mayo have advanced as a contention that an other may have typed such note for another plausible purpose e g by Mayo as a memorialization of a McMa hon report of a serious problem of driver complaints being received about the accuracy of their paychecks and with or without an additional purpose for potential use in a later evaluation of McMahon s work perform ance on the TSI desk or for use in connection with an evaluation of his readiness for any future advancement opening nor similarly so on the Pittman note noting there additionally was contradiction by Mayo of having done so and that additionally McMahon has credibly denied certain specific statements attributed to him in the body of that note nor of the Strang abuse of equipment note (R Exh 13) involving still another potential author and with a substantial segment of his regular work period uncovered by McMahon shift That Mayo was the actual author of the Lacey document (R Exh 11) in my view is more than a mere possibility shown on this record but an issue I need not reach beyond a convic tion it was not shown to be a McMahon authored docu ment as I similarly need not do on the more problem some Verro document (R Exh 10) 11 Remaining claimed incidents of poor performance lack of control of and/or failure to effect communication from field employees a In general Mayo has testified to four major failures by McMahon as well as claimed increasing failure of McMahon to con trol certain field employees One of the major failures as asserted by Mayo was McMahon s performance in regard to Verro s disabled truck on January 3 1981 ear her considered Of the three additional major matters (according to Mayo) remaining for consideration two in volve D C mechanic Tom Stradley and the last in volves Harrisburg driver Vogelsong s incident of Febru ary 3 and 4 1981 earlier briefly mentioned The Stradley incidents relate (a) to Mayo s assertion that McMahon exercised poor judgment in allowing Stradley to drive a defective truck on December 20 and (b) that contrary to Mayo s explicit instructions McMahon allowed Strad ley to drive the D C to Bristol run on January 12 1981 In general Norton has also testified to McMahon s de ficiency in certain of these and other matters but his tes timony of record is clearly confused overstated and/or without record support and in the end wholly uncon vincing Thus Norton s assertion that McMahon did nothing to get a trailer flat fixed and his subsequent in ability to identify any record of the claimed event his overly broad generalization that mechanic Stradley was allowed by McMahon to take it upon himself to make operational decisions to reroute and schedule people on his own too far embellished his own erroneous recite ment that Stradley took a trip to Bristol on his own and adds erroneously to Mayo s complaint that McMahon did not follow his explicit instructions on Stradley use In contrast McMahon has testified with much more solid record support that Stradley did not reroute or make any changes in the D C to Bristol run Apart from runs driven by Stradley discussed herein none other appear shown While seemingly not so character ized as a major failing Mayo (like Norton) has addition ally referenced an occasion that McMahon failed to direct as soon as he should have driver Tomlinson to do the remaining portion of D C driver Mieirs run when Mieirs reported his tractor was running poorly, as sertedly on January 26 1981 McMahon has testified that he did not recall any incident where one truck was run ring poorly and one was running well and he did not switch off McMahon s logs do not record entries for January 26 but they do for January 28 1981 There, PEOPLE ' S TRANSPORTATION SERVICE 245 however , McMahon has recorded that Mieirs ' trailer had broken down with two broken airlines ; that both Olin and Stradley worked on the problem , and that Tomlin- son had pulled the rest of Mieirs ' trip . While there is no log documentation available in support of McMahon, it is also clear there is no 5500 documentation in support of Mayo 's and/or Norton 's version of January 26, and in this instance Mayo 's account was somewhat lead. McMa- hon did rapidly handle a Lawrence -reported flat tire on December 17. Under all these circumstances , I credit McMahon's denials in the above. b. The -Stradley incidents Tom Stradley was hired as a mechanic in D.C. It is. clear of record that neither Mayo nor McMahon hired Stradley . Indeed, it appears clear in documentary record McMahon 's first contact with Stradley was a surprise one when he first became aware of Stradley at work on December 20 (actually 11 p.m., December 19, Friday). At 11:20 p.m.'that evening , Stradley reported to McMa- hon that a Ryder Rental truck had died at the D . C. Post Office ; that it was 50 minutes before he could get it start- ed; and that the alternator gauge did not indicate it was charging . Stradley then told McMahon that , as long as he had headlights , he could keep going . McMahon had Stradley , then 1 hour late , drive on to the Quarrells' T/S (in D.C.) meet point . With the driver coming up to D.C. also continuing late, at 1:30 a.m . McMahon later further adjusted their meet point . The truck eventually went all the way, apparently, to Roanoke , without incident. It is Mayo's testimony , however, that, since they were going to get 5500s all the way down , whether it took 2 more hours or a half-day, McMahon should have had the truck taken to Ryder and had it fixed or replaced . In that regard it was Mayo 's main assertion that the truck had no running lights; and Mayo therefore raised the question why risk a driver 's life , a stop by the police , or a DOT seizure . - According to Mayo , he told McMahon that was a performance failure as McMahon had allowed Stradley to do it . Mayo also testified that McMahon 's lack of judgment on it was extremely bothersome to Mayo. On the matter of safety McMahon has first testified that there was no indication made to him that running and/or brake and warning lights were not working ; and McMa- hon's log entry of even date (along with circumstance of the mechanic driving) rather support McMahon's than Mayo . Moreover, McMahon on other occasions has re- corded incidents of no running lights when such was re- ported to him (as on October 24 and November 20). Indeed , McMahon suggests Mayo may have been con- fused over one or another such red-tagged trailer inci- dents . More to the point , no document was ever intro- duced to show a repair related to a running light prob- lem on this incident was subsequently accomplished, such as would have corroborated Mayo 's recollection over McMahon 's recollection of this claimed major inci- dent. McMahon has additionally answered that Bruno's general directive was that he was to keep any operating truck going ; and, significantly , Mayo has testified he was personally not aware Bruno had given that broad pri- mary directive to McMahon . Finally, McMahon has tes- tified that Mayo expressed no criticism to him over his handling of this incident , at the time of the incident, which I credit , for if Mayo had been critical , McMahon surely would have brought both his unawareness of a running light problem being involved in the incident and as well the Bruno primary direction to Mayo 's attention. Given the nature of McMahon 's related log entries, Bruno directive , and absence of any convincing evidence that this truck was actually ever shown to have run without running lights, I credit McMahon's account, in- cluding that Mayo did not offer criticism of him over it at the time, noting ' further that Mayo has asserted on other occasion that he really did not become displeased with McMahon 's performance until early January 1981. Finally I observe that Mayo apparently expressed no similar criticism to McMahon about allowing Verro to run with four-way flashers later in early January. Essentially supported by the same reasoning and close analysis of the events , it is further concluded and found that McMahon had not failed to follow any prior instruc- tion with regard to mechanic Stradley driving two D.C. to Bristol trips (and return) in late December , despite McMahon's candid testimony generally that his instruc- tions on the use of Stradley were hazy . McMahon did recall that Stradley, being the D.C. mechanic , was to be used only as a last resort . The first such trip by Stradley began on December 21 and discernibly before the McMahon shift . Thus , McMahon 's log entry for 5:40 a.m. on December 22 confirms that Stradley was on the D.C. to Bristol run , but it records he had experienced a breakdown (ran out of fuel) at the Bristol end. Mayo subsequently reprimanded him for failure to stop at the regular fuel station. Mayo has, at least on one occasion, asserted that McMahon had assigned this run to Stradley the night before . However, the trip has been otherwised identified of record more clearly as one specifically leav- ing at 10:45 p .m. (December 21). (See and compare G.C. Exh. 18-153 and R. Exh. 44.) Although there is a seem- ing discrepancy in postal declared (5500) arrival time of 5:10 a.m., rather than 5:25 and identification as trip 1, from an untimely actual arrival at 7:35 a .m., it is clear this trip was not trip one which had a scheduled arrival time of 8 : 55 a.m ., in which event it would have been ahead of schedule , but rather trip 3 , arriving at either 5:25 (or 5 : 10) a.m., thus , confirming Stradley commenced the-D.C. to Bristol first leg at a time when McMahon was not on duty . (In that connection this was a later ad- justed route, and it is otherwise notable that there was no related phone or event log entry before the above 5:40 a .m. entry .) At 12 : 30 a.m ., on December 23, thus on the back leg, Stradley reported he was lost, and had missed the Charlottesville , Virginia exit . (He was sched- uled to arrive at Charlottesville at 11:50 p.m ., December 22.) Mayo has testified that the use of Stradley on the D.C. to Bristol run had the undesirable effect of Stradley not being able to do mechanical work in D.C. for 2 full days or more . However , it was Mayo who subsequently also issued a written warning to Stradley additionally for only missing the Charlottesville exist , though Mayo as- serted again that he did so because McMahon had failed to do so . McMahon has testified to general recollections that Stradley wanted to drive ; that he made a few trips; 246 DECISIONS OF NATIONAL " LABOR RELATIONS BOARD and that there may have been a discussion with McMa- hon that ' Stradley was - not to drive , though McMahon has testified that he could not say it was after this par- ticular (first) trip.' Stradley drove a second trip starting on December 27 (Saturday). The circumstances there were that a regular D.C. to Bristol driver- reported sick at the last moment, and reportedly was terminated because of not running the trip .' Mayo has testified that he , did not terminate a driver - over this incident , and generally that F Bruno and McMahon handled it. Whether or not a driver was ter- minated over it, I in any event credit McMahon that he did'not terminate any driver over this incident : Stradley covered - this run at 11:25 p.m . on December 27. It is es- tablished that McMahon was not working at that time on Saturday, December 27. It is concluded from the- above, and by weight of record evidence otherwise , that McMa- hon was also not involved in any assignment of this run to Stradley . It also appears that because of- encountered weather conditions Stradley was even later getting back on this trip (e.g., see G .C. Exh . 18-124). Determination to restrict Stradley 's driving more probably - occurred some time after this incident, . particularly with the Christmas rush over . However, it is concluded and found that whether or not McMahon had received any instruc- tion (e.g., after the first such trip) about the restricted use of Stradley on this run in December , McMahon was in any event not the one who thereafter assigned Strad- ley to the next run. (For the same reason and above un- persuasive assertion on Stradley being allowed to drive a truck without running lights , I do-not credit Mayo's as- sertion of having spoken to Bruno about McMahon's de- ficiency in respect to Stradley's work performance in handling these runs at time of his report on payroll prob- lem supra .) That Mayo made a- report to Bruno on the Verro incident of January 3 was apparently never specif- ically urged. The next major incident , according to Mayo, occurred on January 12, 1981, when a D.C. driver did not show for a 11 p.m. trip . Again there is no event log entry for this incident , but there are phone , log -entries. After McMahon called several drivers unsuccessfully he called Mayo at 2 : 15 ,a.m. on January 13 (and immediately there- after Lawrence). Mayo has testified - that he had no ob- jection to receiving this call from McMahon , as McMa- hon was fresh out of ideas . Mayo instructed McMahon specifically to; have Stradley drive the truck from the D.C. Post Office to Merrifield and'switch trucks there with driver Bowman . coming up from Bristol. (It is un- clear what the returning D .C. to Bristol driver Bowman was then to do in light of Bruno's policy not to turn such a driver around .) As McMahon did not earlier dis- patch Stradley (with whom he was in contact at 1:45 a.m.) but attempted contact of D.C. drivers Tharps and Montgomery before calling Mayo (and then Lawrence, not Stradley), I-_ am wholly persuaded = Mayo had issued instruction on` Stradley restricted use earlier , probably after his return from holiday and review of the log on December 29. Essentially Mayo wanted Stradley to remain in the D .C.-area in order to be available to repair the trucks when ' they went down. 'At this time postal volume was rapidly decreasing but cold weather persist- ed as did related vehicle breakdown problems . Mayo's recollection was that in the morning McMahon informed Mayo that Stradley had called McMahon and told him that Bowman looked tired , and that Stradley was going on to Bristol . (In contrast , McMahon 's phone log entry at 3:15 a .m.-records , "I let Stradley run the trip.) Mayo has testified that at this point he recognized that McMa- hon was never going to have control of Stradley. In what must be regarded otherwise as an anomaly with re- spect to Mayo's (and other's) repeated assertions that McMahon was Mayo 's peer and with the same authority, Mayo 's additional testimony here was that McMahon al- lowed Stradley to do this "despite my explicit instructions, and 'it was very, extremely bothersome ." Finally Mayo as- serts that a later log report by McMahon on January 31, 1981, of Stradley playing supervisor ' in giving driver Embry a hard time , and in reporting to McMahon that drivers Mieirs and Tomlinson had a problem occur only because McMahon had allowed Stradley to assert and exercise more authority than he had . It is McMahon's testimony that when they went over these latter entries, Mayo only said he would take care of it . I credit McMa- hon about Mayo 's limited reaction to the latter remarks on January 31, 1981. c. Lack of field control, communication - Respondent 's remaining Urgings in this area are that McMahon failed to control Field ` Supervisor Ed Law- rence in D.C.; and seemingly that he failed to control lead driver Harry Witt in Bristol. (1) Ed Lawrence It will be recalled that, in earlier review of McMahon, Mayo reported to Bruno that McMahon had done every- thing asked of him , and the same in respect to Lawrence in pre-December 4 period has been earlier reviewed and is deemed essentially supported of record . Only Law- rence post-December 4 conduct remains to be consid- ered . It is to be recalled that Ed Lawrence was initially identified by Bruno as a field supervisor . Bruno has addi- tionally testified that Olin was brought into the D.C. area to supplement Lawrence ; in early December: To the extent Respondent would seek to rely on an asserted fail- ure of Lawrence to contact McMahon about extra trips, viz, on December 15, that assertion is without discernible merit 'as is made clearly to appear from McMahon's credited documentary log entry of prompt Lawrence contact on that matter. It has'been noted that Lawrence also reported to McMahon on December 17 that a loaded trailer had a flat tire; and that McMahon, at best, had on this occasion promptly handled it with a new , vendor on an emergency basis , when the regular tire vendor could not provide the emergency service timely . (Mayo, on the other occasion , related that McMahon - had brought to Mayo's attention Metro Fleet's slow response; that Mayo had said he would check on it' one day; that Bruno Sr. set it up ; and that Mayo left McMahon a note on the new alternate tire service source.) Respondent would otherwise rely on ' McMahon's re- ports of an inability to contact Lawrence , viz: at 1:30 a.m. on December 20 (McMahon 's reporting in the log PEOPLE'S TRANSPORTATION SERVICE that Lawrence was not home); and at 1 a .m., on Decem- ber 26, with respect to McMahon 's inability to contact Lawrence in regard to D.C. driver Nelson 's dead battery (after mechanic - Stradley 's suggestion that a tractor go over with a chain and pull the truck around to start it). Nelson 's run was scheduled to start at 11 p.m. on Christ- mas day and thus was then 2 hours late. While McMa- hon's event log entry occurs at 6 a .m., and his phone log entries appear very limited , McMahon has testified with much documentary support otherwise that frozen and/or brokendown vehicles were a big problem that day (start- ing Christmas Day). Mayo confirmed the log itself does not show whether McMahon was at fault or not. For reasons to be more fully explicated , but generally sum- marized as relating to his work periods at this time, in this matter I fully credit McMahon that there (essential- ly) were a significant number of problems and related calls that he did not keep an accurate account of. It is apparent that ' Respondent later answered 5500 on this particular matter with declaration that the vehicle froze up, and a rental could not be obtained that day. (See G.C. Exhs . 18-134, 135 .) It is otherwise notable, with regard to Lawrence 's availability, that one -half hour ear- lier at 12:30 a .". on December 26, that D.C. driver Lane, himself being in more difficulty , being then 4 hours late , reported that he was out . of fuel , and had had to wait in Springfield, Virginia , for Lawrence to bring him the gasoline ; and (in G . C. Exh . 18-137), relatedly, Employer answered that Lane had had difficulty getting the fuel on , Christmas Day. Thus not only McMahon, but Lawrence , was very busy at the time. Respondent would otherwise , and in light of the above I thus find, principally rely on McMahon 's log entry on December 27. On this occasion McMahon at 1:40 p.m. recorded , "Ed Lawrence is switching drivers around; without -informing us. There is a lack- of communication. Ed's calls are -far and few [sic] between and Ed is diffi- cult to reach ." Respondent would . rely on asserted Mayo testimony that this was an example of McMahon 's'failure to control Lawrence with regard to communications; as a result of which Mayo asserted he was forced to talk to Lawrence some time after he returned from vacation in the end of December . McMahon's telephone log does not record any other call to or from Lawrence until one placed on January 12, after McMahon had received a call from Mayo . The urgings with regard - to Lawrence do not withstand scrutiny on even other bases and are, in the end , wholly unconvincing. To begin with , Mayo was on vacation from December 25 through 28, returning Monday, December 29. Mayo has testified that after Christmas , Lawrence , who had been working 80 hours a week in December , then began running a day schedule, 50 hours a week , 6 a.m. to 4 p.m. (Presumably that would have occasioned one or two other drivers' also being rescheduled at the same time since he previously regularly ran an afternoon shift.) It is notable that Mayo himself elsewhere shorted the December 27 incident , as of weighty consideration, refer- ring it only as a "wrinkle we didn't need "; and while as- serting, that he - told McMahon that . he had to control Lawrence , Mayo did not himself talk to Lawrence until some time later, at which time he relates he told Law- 247 rence that he and McMahon had to be informed , other- wise they could not run the operation . As noted there was no log indication of subsequent contact between Lawrence and McMahon until January 12 , and then fol- lowing Mayo 's call. Apart from his general driving, McMahon like Law- rence was himself working a significant number of extra TSI and instate hours in this period . Thus McMahon, after having driven • most of the day before Christmas, was to have Christmas Eve and (essentially) Christmas Day scheduled off, being next scheduled to report for work at 11 p.m. Christmas Day, when regular routes were scheduled to resume . However McMahon had also agreed and worked for evening ' dispatcher Gilbo until 9 p.m. Christmas Eve, December 24. Thereafter he drove a dedicated route (a regular established courier route) for an absent courier driver . Moreover , when notified by Norton on Christmas Day midafternoon that a Ryder rental had been broken down for a considerable time in Virginia, McMahon came in early (between 2 and 4 p.m.) that day , and handled that emergency problem at Norton 's direction , as well as certain other problems. Thus McMahon worked on that (and other matters) es- sentially up to his shift start (excepting a late evening brief eating-break at home), and then through his regular shift , ending in the morning of December 26 (Friday). McMahon followed that substantially expanded'-work period with next working his regular shift beginning that day at 11 p.m., but then working well beyond normal shift end at 7 a . m. and through the afternoon of Decem- ber 27 (Saturday) where at 1:40 p.m . he made the above comment on Lawrence, upon which Employer would rely. Given all these • circumstances , I do not find Em- ployer's present contention convincing ' that what is evi- denced here is a failure of McMahon to control Law- rence 's communication in this period, so much as the record reflecting both Lawrence and McMahon had been working much more than normal workdays; and workweeks , with McMahon having occasional related difficulty in contacting Lawrence . McMahon 's Decem- ber 27 remarks were likely well understood by Mayo to be both (overtired) comment by McMahon, and not likely as involving any serious problem; with Christmas rush over and Lawrence settling into a day shift,"-in short, a wrinkle he did not need 'at the time, but no more . Given that shift 'changes were accomplished by Mayo , it would appear no less indicated by the above circumstances that - this may not have been instance where McMahon had not been kept as timely informed of imminent shift changes in. D.C. after Christmas as he might have been. (2) Harry Witt - • The majority of the routes of the local Bristol oper- ations start on McMahon 's shift, viz, 5:45 a . m. However, the majority of their operation (and their end) is on Mayo's shift . With regard to Harry Witt , the lead driver in Bristol, indeed the Bristol operations as a whole (in operation since November 1), there appear to be no en- tries in the event log recorded by McMahon prior to De- cember 16, excepting only driver Leon Wilke 's (unrelat- 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed) pay question of November 28. The phone log adds nothing beyond arguable Witt late report on November 1, and notification by Mayo on November 11 that an- other driver en route to Bristol would not arrive until 11 a.m. In effect, there were no unusual problems reported to McMahon that he recorded in the first 45 days of Bristol operations. To that extent, McMahon is fully sup- ported in his testimony that any juggling theretofore ac- complished in Bristol operation was at the direction of Mayo: Nonetheless ^ it is Respondent 's contention that McMahon later failed to control Witt. On December 16 a postal official called McMahon when a driver (Witt) failed to show at 3:45 a,m. (the one earlier shift) and they were unable to contact him. McMahon also was unable to contact Witt at home. McMahon immediately contacted another driver (Wilke) who volunteered to cover. By the time McMahon had promptly reported back to the post office, Witt had al- ready arrived . What is of material consideration here is that McMahon recorded Wilke information that "some of today's trips were swapped around." According to Mayo, when that morning Mayo made inquiry as to why the confusion, McMahon replied that Witt was swapping trips around. As a 611(c) witness Mayo has testified that he asked McMahon, "Did you talk to Witt; and did you tell him that creates payroll, schedule problems?" Ac- cording to Mayo McMahon said he did. Mayo has on other later occasion testified that he told McMahon that he better talk to Witt and tell Witt that he does not have authority to swap trips, around; that -any schedule changes have to come from Boston. On still another oc- casion Mayo related he told McMahon that Witt was just ,a driver, and McMahon had to be doing the schedul- ing; and that he, told McMahon, "If we start letting local people make our schedules, our operation [will be] a complete disaster." However, in seeming as revealing testimony, Mayo has also identified the problem as being basically that Witt was not communicating.' Mayo has fur- ther testified that it was an ongoing, but not an everyday problem, though Mayo fired Witt eventually, after McMahon left, when his lack of communication contin- ued. On December 18, McMahon recorded Witt's sugges- tion that they use a Bristol truck that was scheduled for state inspection in place of a D.C. truck they were then still waiting for. That was done. On December 27 (actu- ally December 26, 11:50 a.m., and with Mayo on vaca- tion) McMahon recorded report that Witt had Phillips drive to Roanoke and swap with the D.C. to Bristol driver, and return to Bristol, to help with a D.C.-to Bris- tol-run coverage . On December 27 (being the same shift) McMahon at 6:50 a .m. records he had Witt go up at 8 a.m. to meet Bowman who had reported ill en route to Bristol . McMahon thereafter shows Bowman at 9 a.m. reporting he would try to make it in, but' at the same time there is recorded report of coverages by Bristol drivers prospectively arranged (presumably by Witt, not Bowman) for Bowman's return leg if necessary. There was effectively no failure of Witt to communicate on the above. Witt's report and contact for vendor service on the truck freezeup that occurred on January 5 has been earlier addressed . There was clearly no failure to com- municate there. The prior failure to communicate with McMahon thus rested solely on December 16 incident. According' to Mayo, when the Bristol operation start- ed trucks were originally.-kept in a central parking lot, and they were not to be taken home. On January 20, 1981, a driver took a truck home, and the battery was stolen out of the truck. According to Mayo, McMahon had the driver use an arriving D.C. truck. When Mayo later' made inquiry, Witt said he let `the driver take the truck home. Mayo then asked Witt, "Who let you let him"; and Mayo has testified that Witt replied, "McMa- hon never told me we couldn't." However, Mayo then told Witt that no one told him to do it, or not to do it. On' January 28 an entry appears (without the time of call documented) regarding an incident occurring on January 27, 1981 (Tuesday),- when D.C. driver Snelling had waited until 4:30 p.m. before he let anyone know that he did not have a truck. McMahon records that when he made an inquiry of Snelling about it, Snelling told McMahon that Witt had told him there would be two trucks at Campbell's T/S (local terminal), either of which Snelling could drive back to D.C. Notably McMahon would not have been working the prior day at 4:30 when the incident took place. Any ;failure to communicate thereon by Witt or Snelling would have been with , Mayo . McMahon reported only Snelling's ex- planation. Finally, apparently on February 5, McMahon's last day, he recorded report that Witt was, running Phil- lips' runs. The above evidence, is not. persuasive that McMahon had failed to effect communication from Witt, certainly no more than Mayo had. McMahon has also specifically denied that Mayo ever told him to tell Witt that he could not switch drivers around ; that Mayo never expressed a',concern to him about letting Witt get out of control; that Mayo never discussed Witt overstepping his bounds that, he could recall ; and relatedly that there was no Bruno or Mayo conversation , with him, about being dissatisfied with Witt's performance. More to the point, I cannot accept that Witt would have continued to make the above changes, if such were not being allowed by Mayo. I fur- ther fmd the real problem . was, as Mayo essentially has revealed , one of communication with Boston as to what Witt did, not that he made or suggested certain adjust- ments and/or changes, particularly in the cold, busy season, with Bristol and D .C. to Bristol - drivers experi- encing varied problems, that Bristol drivers were affect- ed by, and occasionally assisted on. d. Harrisburg driver Vogelsong's February 3-4, 1981 incident This is Mayo's asserted fourth major -incident involv- ing poor performance by McMahon . It is also the inci- dent which Respondent asserts triggered McMahon's im- mediate discharge ; without waiting for a replacement as originally' planned. Bruno- and- Norton have essentially related that McMahon had a disabled truck improperly towed right past the Wellsboro Post Office, without ef- fecting a delivery of the mail on board for that post office., Bruno's ' related assertion - was that McMahon should never have allowed that to happen; and Norton, PEOPLE 'S TRANSPORTATION SERVICE in his description of the self-same' incident , asserted he had received a report from Mayo that the truck broke down a short distance from the post office at a time when it was not late for delivery ; that - it was towed right past the post office and tied up for 7 hours ; and that Mayo remarked to Norton that McMahon should have known on what street in Wellsboro the truck broke down; that subsequently, the mail on board for the Wellsboro Post Office, which was closed , was left at Williamsport ; and that Mayo told Norton there was not anything he could do now. Norton has also testified that he relied on what Mayo told him of incidents ; and he ac- knowledged that he had not discussed them with McMa- hon. Norton did not conduct an independent investiga- tion of the Harrisburg incident. Bruno recalled : The initial diagnosis was that the fuel gelled ; the truck was brought inside to thaw ; but a filter was not available , and the truck was locked up. Bruno also asserted that no one knew where he was . (Signifi- cantly Bruno promptly after so testifying 'acknowledged ,his recollections of this incident might not be the exact circumstances .) Nonetheless, Bruno has asserted he (es- sentially) blew his top over this incident , and directed Norton to immediatley discharge McMahon . Bruno has testified generally that McMahon in length of -service and contribution could not compare with Norton • and Mayo . Bruno otherwise has testified that on paper McMahon was highly qualified but he did not do the job properly ;- and that McMahon held him up , felt that ,was the way to play the game , and he did not ask how he could do the job better . According to Bruno at that time there was not much he could have done to have avoided being fired . Norton confirmed Bruno's testimony that after this incident it was decided they could not put up with it anymore . Norton testified it was decided McMa- hon was to be let go without their having a replacement; if they waited , it could be 6 to 8 weeks, and there might not be a business. In contrast McMahon testified that he recalled no inci- dent in which a truck (contrary to. established procedure) was towed past a post office without delivering the mail, and it thereafter locked in a garage . McMahon event log entry of that date, February 4 (Wednesday), records that Harrisburg driver Vogelsong driving #456 had fuel con- gealed and had to be thawed out, at Eddie TIS Mans- field, Pennsylvania; and, that he was 7 - 1/2 hours off schedule . The entry did confirm generally that mail for Wellsboro was' left at Williamsport, and that Wellsboro was closed. 'There appears no report hour in the event log; and phone log entries are not available as the avail- able phone log entries ended on January 22, 1981. McMahon has denied that Norton ever informed him that Norton , was-,upset about a Harrisburg truck being locked up in a garage. , The Wellsboro Post Office was regularly closed 8 p.m. to 3 a .m. Vogelsong 's work hours (excluding one-half early report time) were 2:45 to 10:30 p.m. Vogelsong's normal assignment was on a Harrisburg to Wellsboro and return run (Postal Route 17025), viz, K67, trip 1 and 2. His route schedule (see. R . Exh. 7) specifically provid- ed as follows : Outgoing, or -starting departure from Har- risburg at 2 p .m., to, Williamsport 5-5 p.m . (arrival-de- 249 parture), to a normally scheduled arrival at Wellsboro at 6:30 p. m. Vogelsong 's Inbound return , or backleg provid- ed for a departure from Wellsbbro at 10:45 p . m., to. Wil- liamsport 8-8:15 p.m . (arrival-departure), to Harrisburg 10:30 p .m. arrival . Mayo otherwise appeared to refer to a fast run due in (at Wellsboro) at 7 or 7:30 p.m . However, no weekday outgoing route appears to have done so, though there is a trip 6 (and 5) route run by Strang, starting inbound from Wellsboro at Z•15 p . m. with a Wil- liamsport arrival at 8:30 p.m., and a Harrisburg arrival at 3:30 p .m. Any breakdown while Vogelsong's trip was on time would have been well before McMahon shift; likely on Mayo's shift ; and in any event would normally have been reported to Mayo at home ,. if not at the office. .Mayo's description of the incident does not corrobo- rate either Bruno or Norton . Mayo relates only generally that Vogelsong's truck broke down between Harrisburg and Wellsboro ; that there was quite a bit of time before the tow was made (at a- time when McMahon was not working); that the truck with mail was then towed to a garage, but to thaw ; and that there was a 7-1/2-hour delay . Mayo does not confirm the truck was locked up with mail on board , nor wrongfully towed by the Wells- boro Post Office . Mayo recalled that there was another incident where a D.C. tractor was locked up , but even that not with trailer (or mail), on board. Nor did Mayo corroborate Norton relatedly , with regard to specifics of McMahon 's responsibility 'to know the street . Given the above, and other unquestionable circumstance, e.g., that the tow was to a Mansfield T/S, I do not credit Bruno or Norton version at all. It is Mayo's recollection otherwise that McMahon told Mayo that Vogelsong had called him and told him that the Wellsboro post office was closed , and he was just going on to Williamsport, 50 miles away . According to Mayo, McMahon told Vogelsong to do so, and he did. It is Mayo's testimony that if McMahon had taken the trou- ble 'to look at the schedule he would have seen the Wellsboro Post Office opened in 15 minutes. While Mayo acknowledges that the trip was blown, and they had a 5500, Mayo has testified that McMahon's lack of attention to what he was supposed to be doing caused a great deal of confusion, extra work , and very bad public relations. Mayo explained that the error resulted in an- other contractor having to transport the mail left at Wil- -liamsport back to Wellsboro; and secondly , the outgoing mail from Wellsboro was not picked up .- Mayo testified that he told Bruno, and that Bruno said , with prefatory expletive,' "unreal" and "O.K." McMahon was terminat- ed the next day. McMahon has testified that he did not recall receiving a call from Vogelsong from a telephone near the Wells- boro Post Office to tell him the post office was closed; and testified from recollection that he would say he knew of the incident only after the, fact. McMahon has testified also that Mayo did not criticize him for allowing Vogelsong`to go by Wellsboro; never indicated it was a serious, defect; and no manager indicated it was one of the reasons for -his termination. McMahon, however, did recall that he was driving out in the western part of the State on February 4 and received a message from dis- 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patcher DeCosta to see Norton upon his return. When he did return, Norton was not there, so he went home. When he saw Norton (at the end of the shift) the next day February 5, 1981, Norton did not say anything about wanting to see him the day before; and McMahon asserts that the only reference to the prior day was to the Rat- cliffe conversation, which McMahon relates also oc- curred later on the morning of-February 4, 1981. Norton had no recollection of directing any such message to McMahon on February 4, 1981. However, discharge -checks were prepared for -McMahon on February 4, 1981. McMahon's log entry for February 4, 1981, though in this instance -without a definitive time of day recorded, confirms Vogelsong made a report to McMahon that fuel had congealed in Vogelsong's truck #456; that it had to be thawed at Eddie's T/S, Mansfield, Pennsylvania; and that he was 7-1/2 hours off schedule. McMahon's log entry only relates that "The mail for Wellsboro was left at Williamsport-Wellsboro was closed." The entry does not definitively indicate where the call was made from, e.g., Wellsboro, Williamsport, the Mansfield T/S, or elsewhere. The log entry would appear to conclusive- ly indicate that the Wellsboro mail was left at Williams- port at a time when the Wellsboro Post Office was closed, thus necessarily some time between 8 p.m. and 3 a.m. It does not indicate whether breakdown occurred en route to Williamsport or Wellsboro. In the only apparently related 5500 placed in evidence (G.C. Exh. 18-76) it is there reported by the post office that driver Vogelsong, = on Route No. 17025, trip no. 2, with a scheduled (ending) arrival at 10:30 p.m. and with date of irregularity identified as February 3, 1981, had riot actually arrived at Harrisburg until 4 a.m., thus on February 4, 1981, (A similar incident with Strang then driving No. 456, and with required tow back to Harris- burg on February 3, precludes earlier date.) It is immedi- ately to be substantially (5-1/2 hours) late, it was not the 7-1/2 hours that Vogelsong had reported he was off schedule earlier to McMahon. (In some manner Vogel- song had thus made up 2 hours by his route' s terminal end.) Scheduled allowed driving time from Williamsport to Harrisburg was an hour and 15 minutes , which means that Vogelsong would have at best last left Williamsport at 2:45, a.m. However, in terms of a normal 'schedule, that would have been necessarily a back-leg (or inbound) departure time from Williamsport to Harrisburg for Vo- gelsong . More pointedly, if it be taken into account, as seemingly urged by Mayo, that the Vogelsong call to McMahon was made in the Wellsboro area, at 'which point McMahon wrongfully allowed Vogelsong's depar- ture from Wellsboro for Williamsport some 50 miles away, with the closed Wellsboro Post Office due to open per scheduled in 15 minutes at 3 a .m., that account would then have Vogelsong in Wellsboro area near post office at 2:45 a.m . However, Wellsboro is an additional 1 hour and 15 minutes away in allowed driving time from Williamsport. Thus , given a 4 a.m. arrival at Harrisburg and a normal inbound stop at Williamsport, Vogelsong would have earlier at best driven from Wellsboro area at 1:30 a.m ., clearly 1-1/2 hours before Wellsboro Post Office opening , and in any event not the 15 minutes Mayo has urged in his recollection. Said another way, assuming a call was made to McMahon at 2:45 a.m., Vo- gelsong was necessarily close to, Williamsport given that he made it back to Harrisburg at 4 a.m. While the.Har- risburg Post Office might have garbled where the break- down occurred, infra, I cannot accept Harrisburg would have inaccurately recorded when Vogelsong arrived at Harrisburg, vis, at 4 a.m., infra. To the extent Mayo's recollection would place Vogelsong's call at Wellsboro at 2:45 a.m., and McMahon's authorization then given for him to go on to Williamsport as Wellsboro was closed, I do not credit the same. However, even other aspects of Mayo's recollection appears in conflict with the thrust of the only related 5500 offered on this incident. For it is (G.C. Exh. 18-76) reported by the Harrisburg Post Office in the section normally utilized for post office comment, frequently re- cording driver-offered explanation in the postal report to contractor, "Broken down between Wellsboro & Wmspt. Enroute to Wmspt. Had to be towed to Wmspt P.O. trip delayed. Came in empty,. mail was put on 17025-6." (Em- phasis added.) Trip no. 6 was the first leg of Strang's Wellsboro to Harrisburg (and trip 5 return) route, which essentially started from Wellsboro on weekdays at 7:15 p.m., inbound for Harrisburg. Strang 's starting departure from Wellsboro was thus 30 minutes after Vogelsong's (second leg) inbound trip would normally itself depart Wellsboro (at 6:45 p.m.); and it was also 45 minutes before the Wellsboro Post Office would-close, with noth- ing else of Employer "normally due in or out of Wells- boro in the interim . (Strang's subsequent departure from Williamsport at 8:15 , was also an hour after Vogelsong's normally scheduled departure at 9:15.) The post office's form 5500 on -the irregularity of Vogelsong's service would thus seemingly confirm that Vogelsong' s normal mail pickups (at best) from Wellsboro, to Williamsport and Harrisburg, and from Williamsport to Harrisburg were actually handled by Strang on his trip ' no. 6, though-as reported, Vogelsong's scheduled trip in such particulars itself was one delayed, and shown as the serv- ice irregularity. This is not very convincing evidence to support Mayo's assertion that an adverse effect of McMahon's allowing Vogelsong to go on to Williams- port without waiting for Wellsboro to open had resulted in unduly delayed pickup and delivery of mail outgoing from Wellsboro. (In this regard, in passing, I cannot accept, if intended, as a viable alternative, that the refer- enced trip no. 6 on which the mail was reported as put was a trip no. 6 to run the next day, given the seemingly clear language to the contrary, viz, that the reason for Vogelsong coming in empty was that the mail was put on trip no. 6, and also because there would then be indi- cated nonuse of available interim inbound trips.) There is seemingly additional conflict whether the Vo- gelsong truck broke down while Vogelsong was en route to Wellsboro as Mayo has contended and McMahon's log entry would appear ambiguous to the extent it records Vogelsong's report that the_ mail for Wellsboro was left at Williamsport and that Wellsboro was closed, as compared with postal report from driver that he was en route to Williamsport, and towed to Williamsport, PEOPLE'S TRANSPORTATION- SERVICE 251 unless the breakdown occurred before Williamsport de- livery, and the tow was by Williamsport Post Office, and then on to Mansfield T/S for truck thaw, and with Wellsboro mail (also) left at the Williamsport Post Office because the Wellsboro Post Office was then closed and would not open'til 3 a.m., and because of the prospective thaw delay time on No. 456. Mayo has, in any_' event, urged that another contractor had to be used to transport the misdelivered Wellsboro mail from Williamsport to Wellsboro. Aside from the circumstance that no docu- mentary evidence from the post office (5500 irregularity) was offered to corroborate that assertion, no- explanation is offered about nonavailability of Employer's own out- going service to handle that (back) transport from Wil- liamsport to Wellsboro, e.g., trip no. 3 departing at 2 a.m.-, arriving at 3:15 a.m. (15 minutes after Wellsboro Post Office opened), or trip 5 at 4:30 a.m., especially given that Mayo has acknowledged that the towing of Vogelsong was one that was itself not immediately - ar- ranged. Thus the entry by McMahon and the 5500 postal report taken in combination are more compatible with: a significant towing delay and an initial towing by the Wil- liamsport Post Office; and :offloading of Williamsport (and likely Wellsboro mail there); a towing of No. 456 to the Mansfield T/S and a significant period of thawing; Harrisburg inbound mail from Wellsboro and Williams- port being handled by Strang's trip no. 6 on ocasion of Vogelsong''s initial delay; and Vogelsong's inbounding after the thaw, arriving empty at Harrisburgh at 4 a.m. (making up 2 hours) with, Vogelsong's departure from either Mansfield T/S or Williamsport, but not from Wellsboro. Even assuming Mayo's recollection of having to use another contractor is accurate, it would then indi- cate a much earlier breakdown that would not be so rea- sonably accommodated by trip No. 3 departing at 2 a.m. In short, a problem before McMahon's shift, reported to Mayo, resolved by Mayo, including accounting for Vo- gelsong's actions thereafter. One thing is sure, if Vogel- song's inbound mail was on trip No. 6 it was scheduled to. leave all areas before McMahon's shift, as- it would arrive at Harrisburg one-half hour after he started. In short, McMahon's recollection of a report after the fact, though general, is alone supported by all the circum- stances; and Mayo's assertion of a call from Vogelsong in the Wellsboro area at 2:45 a.m. is simply not.compati- ble with the schedule, or post office 5500. Mayo's related 5500 response on February 17 to the post office was solely, "Driver was unable' to fuel at normal fuel stop & was therefore unable to blend fuel- this caused this problem. We have corrected this situa- tion." Thus there was then no mention .of McMahon's now raised negligence,, nor of his interim discharge on February 5, as was assertedly triggered by that very event. It is concluded and found that McMahan's ac- count that he was notified after the fact is the more well supported and credible; and his assertion that no manag- er expressed criticism directly to him over. it seems un- contested. In any event, -I further find the conflict be- tween Bruno's and Norton's version of the Vogelsong in- cident on the one hand, and Mayo on the other involves a major contradiction. Even giving selective consider- ation to Mayo's account alone, the same is sufficiently contraindicated by certain established facts as not to pre- vail over McMahon testimony thereon which was not only consistent but in this instance-more compatible with the documentary corroboration supplying his testimony with a convincing ring of truth, while the same consider- ations effectively unravelled major elements, if not all Mayo's recollections of the event. Finally, given Norton's unconvincing testimony, on an asserted occasion on January 26.of McMahon's failure to have driver Tomlinson, at the completion of Tomlinson's run,, swap his truck with driver Mieirs, whose truck was asserted as running poorly; given the leading nature of Mayo recollection thereon, and given the denial of McMahon, and absence of other convincing evidence, I place no reliance on such additionally asserted failure of McMahon on January -26, 1981, nor of him on January 28, 1981,-which notably occurred immediately prior to the advanced- discharge memos. e. Norton's version of the McMahon discharge interview , Norton's version of the exit interview with McMahon was that it was a generalized one:. According to Norton, he told McMahon that he was becoming more and more involved with out-of--state operations the past month; that he' was watching McMahon's performance very closely; that he thought it was very unacceptable, par- ticularly over the last several weeks; that he did not think McMahon was the man for the job;, that "we couldn't use his services anymore;" and that he was all done: Norton essentially denied McMahon's versions of that conversation with regard to discussion of Ratcliffe, other Chicago drivers, or union matters ; and he affirma- tively testified that at time of termination of McMahon, he had no knowledge that McMahon was engaged in any union activities; that it never entered his mind; and that McMahon was discharged strictly on his job per- formance, which was lousy. Norton also testified that the time of his termination McMahon made no request what- soever as to whether he could be allowed to continue to drive asa courier driver. 12. Other evidence offered-on managerial contentions a. The documentary credit card forms The only other documentary evidence offered in sup- port of •McMahon 's. status as NSM are Respondent's Ex- hibits 5 and 6. Respondent's Exhibit 5 is a form memo- randum with the date of July 7, reflecting Mayo as ongi- nator of a Mid-Continent credit card (unaddressed indi- vidually), but with a D.C. driver signing therefor on No- vember 8 . Respondent also offered Respondent 's Exhibit 6 being, a similar form memorandum, with date of Octo- ber-1,_ 1980, but reflecting that an Amoco credit card for Kalamazoo driver Jim Verro originated (in type) from J. McMahon but which on its face shows a return with the appearance of Verro personally signing for the card on October 19, 1980.- The General Counsel's contended there was a failure,to timely produce Respondent's Ex- hibit 6, while Respondent countered the form was found 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by it in the Verro file produced earlier for the General Counsel's inspection. No evidence was offered that the Verro file had not been earlier produced. - Mayo has otherwise testified that he did not see McMahon do Verro's credit card letter, he saw it in the mail box, and as he had not done it, he recalled that he had asked McMahon what it was for,- that McMahon had responded that it was a credit card thing for Verro because Verro had asked; and that he then told McMahon to send it out. Mayo has also testified that the credit cards and related forms were regularly kept in his desk to which McMahon had ready access, though acknowledg- ing that he could not recall any other instance of McMahon ever taking any other credit cards. Both offered Mid-Con- tinent and Amoco cards provide various instructions to recipient , inter alia , to retain all charge receipts and "pass them in to your supervisor who will forward them to accounting; a direction to surrender card to supervisor immediately, on leaving company; and that upon receipt, the form and old card were to be returned to supervisor. Fuel reports and charge slips- were generally collected locally. The same would appear confirmatory of local supervisory usage . However, there was no supervisor on the Kalamazoo run, as such. McMahon's log reflects that on November 3; 1980, Verro called, reporting that the Marathon credit card ex- pired the end of November. There is no evidence McMa- hon sent Verro a card on that occasion (or later on No- vember 28); nor did McMahon send a card to Kalama- zoo driver Summer on his report of November 4. McMa- hon otherwise testified that he recalled there was an oc- casion when a whole serves of credit cards were expiring, and new cards were on Mayo's desk. While at first McMahon-testified that he did not recall filling any out, and specifically one on Verro, on a_ later occasion McMahon testified in more specific denial: that before this hearing he had never seen, typed, or written on any such (Verro) memo in regard to credit cards; that Mayo had never shown it to him; that no old card was ever returned to him; and that he had no memory of Mayo ever telling him he could mail credit card authorizations to employees under his signature. His signature (or other marking) does not appear on the Verro Amoco card memo. Only McMahon's typed name appears as a for- warder. On rebuttal McMahon has even further denied that Mayo had told him to send Verro a card; and he has testified unequivocally that he never sent a card to Verro. McMahon then testified explicitly that he did not author Respondent's Exhibit 6; that he did not take it from the desk; and that he had never removed a credit card from Mayo's desk, nor had he ever (relatedly) as- signed a credit card number to a driver. Mayo has testified that it was he who traveled to new contract areas to interview drivers prior to startup; and Mayo has testified he traveled to Kalamazoo. The Kala- mazoo contract on its face was effective October 18. However, the first phone log entry would appear to be that of Gary driver Crag (sic) Thompson on October 20 (actually 11:35 p.m: October 19)., Notably, October 19 is the same day that Verro signed the credit card form. However, close review of log entries would appear to in- dicate that Kalamazoo drivers Summer and Thompson drove the runs the first week; and it appears that Verro did not drive before Monday, October. 27. (Indeed Verro's inquiry on October 31, Friday, as to when he would be paid, would appear to further confirm that he did not drive earlier.) In my view, even assuming with- out finding that McMahon sent this card out, this was not a very convincing evidence offering on managerial status. However, in that regard, I need not go beyond observations that at best this was but one isolated in- stance of a ministerial act performance, and one never shown to have been repeated, though there were fre- quent occasions for it to have been done again by McMahon if, it had been either a McMahon directed or assumed responsibility; and finally it is observed that, even under Mayo's version, on that one occasion, Mayo confirmed the single mailing. I place little reliance on this document, or this isolated, instance, on either super- visory or managerial issues. b. Policy establishment Norton testified he had no knowledge of McMahon es- tablishing management policy. Both Norton and Mayo have confirmed that Employer's accident policy was one already established before McMahon arrived. Essentially it was Mayo's sole testimony that McMahon effectively created the policy of Chicago drivers calling in a half- hour before their departure time ; and that it was McMa- hon who also established a policy of adjustment of meet points, when one driver was late, in order to keep at least one driver on time. The adjustment practice (earlier described) was employed initially at Kalamazoo, and sub- sequently on the Prince George to Roanoke run. It is clear as well that postal contracts, and particularly that of Chicago, required the postal driver to be present at the post office one-half hour before departure time. Ac- cording to Mayo, at Chicago the drivers - were initially calling in about 15 minutes before departure; and McMa- hon (essentially) told- Mayo this was not giving him enough time to get a replacement in case of lateness/absence Mayo asked what McMahon needed; McMahon replied one-half hour; and Mayo then told McMahon they were his drivers and he could go ahead and set whatever requirement he needed. In contrast, McMahon has testified that drivers were always sup- posed to call in one-half hour before departure (when they arrived) but they did not always do it; and also (es- sentially) that on occasion Mayo instructed him to remind them. A very early entry thereon appears in McMahon's log for October 3, viz, "-Spoke to each Chi- cago driver about calling 1/2 hour before they depart North Suburban." I credit McMahon. To the extent Mayo appears on occasion to have indicated that McMa- hon set an additional requirement upon drivers to call one-half hour before arrival at the post office, such testi- mony is concluded as not supported by weight of more convincing evidence of record, and any contention based thereon is rejected. The Rental Authority Conflict Bruno has asserted (without corroboration) that McMahon rented a truck on a Mopar operation . May did PEOPLE 'S TRANSPORTATION SERVICE S not know if McMahon ever actually rented a vehicle. He was sure Castallano -never had. McMahon has categori- cally denied that he ever rented a vehicle on any oper- ation. It is established 'of record that on one occasion McMahon did have a disabled Mopar vehicle towed in for repairs, and had only thereafter notified the involved field supervisor of the details. No rental- was shown in- volved. I am convinced that is likely to have been what Bruno (erroneously) adverted to. It- is also established that on Christmas Day, McMahon, armed with an imme- diate prior broad Norton directive, thereafter had a dis- abled Ryder rental towed to Dulles A/P mail facility; and in connection with effecting mail. delivery and repair., service thereon by Ryder, arranged with the national Ryder rental agency that Ryder make a vehicle available to Roanoke as substitute for the Ryder truck which was already rented, but had been previously long broken down outside D.C. on Christmas Day without repair, and only recently been towed to Dulles Airport post office to 'effect mail delivery, and to await repairs by Ryder. No evidence was offered that the vehicle subse- quently made available at Roanoke (where the earlier rental would have by then traveled if it had not broken down) was not a substitute for the already rented, but disabled vehicle. In short, it is clear on the totality of the evidence found credible, that McMahon never actually exercised any authority to rent a vehicle, though on one occasion, on Christmas Day, he obtained a substitute ve- hicle at a different location for a long broken-down rental. There is, however, a degree of conflict as to the nature of the existence of rental authority in or the dele- gation of such rental authority to McMahon.,First, Mayo was adamant in his testimony that, from the first night of his instruction to McMahon, he (Mayo) had informed McMahon that McMahon could rent a vehicle if there was need. He has also testified that McMahon was told the information on rental agencies was in the Roladex. (Credit was already established.) It is in this area of rental authority that I find McMa- hon's testimony to have been least consistent and least persuasive . Thus McMahon confirmed that Mayo in an initial interview had informed him that in some cases ve- hicles were rented, but McMahon testified that Mayo also said that it was something with which= McMahon really did not have to concern himself. McMahon also initially testified that there may have been additional dis- cussions in October (seemingly in connection with a Ryder rental breakdown) that in the event of emergen- cies, trucks were rented; but no information was then provided how it was to be done, and, again , with assert- ed Mayo comment it was something they really would not have -to worry about. However, McMahon would later deny (on cross-examination) that he had testified- earlier that Mayo told him at some point that rental vehi- cles could be obtained on an emergency basis (albeit adding) elsewhere. In rebuttal McMahon would again testify that Mayo in the beginning had described briefly that, in the event of emergencies, trucks -are rented; though repeating otherwise that Mayo did not supply further information as to how it could be done; that Mayo did not go through .the mechanics involved in ob- 253 taining a rental truck; and that again Mayo had told him it was something they would not really have to worry about. In the interim McMahon acknowledged, with re- spect to telling a driver what to do in event of a break- down, that he had stated in previous affidavit, inter alia: "I have a catalog of Mid-Continent truck stops, and I direct him to the nearest stop, if it's really severe, I try to ' arrange for a rental vehicle for the driver." Nonethe- less, McMahon testified at hearing that in the presence of such actual circumstances he would have contacted Mayo. Despite McMahon's above inconsistencies, there is more in record to support his contact of others before rental, than the contrary. In resolving the conflict I rely on McMahon's testimony only to the extent well sup- ported by other credible evidence. Firstly, it is clear that McMahon never rented a vehicle, including on those oc- casions when a serious accident had occurred; and that he was never directly criticized, at least in writing, for failure to do so. To the extent this authority rested in McMahon, it is clear that it was never used. Secondly, I am convinced renting a vehicle was not a perfunctory matter. Bruno has testified that a rental could blow the profit in operation for a week; and he has confirmed that Mayo has discussed such a matter with him because it was an expenditure of a substantial sum. The record also establishes that there were many alternative consider- ations to be first addressed, as for example noted by Mayo, whether delayed would, or had occurred, and if 5500 was already likely incurred; the severity of the truck disablement; how soon another truck, if not imme- diately available, would become available; where the breakdown occurred; the consideration of the require- ment that postal officials be in attendance for any break of seal (and transfer of mail and reseal); and finally as Norton appears to have indicated in explanation of cer- tain occasion when he did not rent, that the noncritical nature of the mail load was also a factor he weighed. There was a backup truck at every location except Har- risburg. It only appears in this record that it was Mayo who arranged TSI startup rentals, not McMahon, nor even Castallano. It is clear that there were any number of occasions when Norton and Mayo did not rent vehi- cles, for one or another reason. It is shown that Mayo (even in an emergency) had consulted Bruno first. Analysis and Conclusions In general observation, by fortuitous circumstantial combination, the alleged unfair labor practices and relat- ed supervisory/managerial and other defenses raised herein occurred in context of an employer at the time operating: without a published defined management structure;; without related supervisory/managerial posi- tion descriptions formally in place, and indeed, with a discerned background of prior loose superviso- ry/managerial (real and temporary) assignments ; without discernible uniform program in either pay or benefits that would be helpful in supervisor-employee recogni- tion; without uniform enforcement policy on rules; 'or formal system of internal work performance evaluation; nor formalized practice in place on written recording of 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge and/or discipline; and all continuing in place following a clear, incontestable, and very substantial growth in Employer's TSI operations. In many respects that staged growth was of a similar nature, but in other and materially significant aspects , e.g., in resulting effect on operational procedures, dissimilar,. particularly as to be observed as impacting on the raised defenses of a supervisory/managerial capacity existing in McMahon's work performance in night TSI. operations, and local su- pervisor or lead driver use. Finally, despite the effort on the part of all parties to nonetheless prevail in the bal- ance of weight of evidence in that context by advancing voluminous material evidence in support of their firmly held positions , the same notably in the end did not mate- rially change the above difficult background. As the General Counsel has essentially pointed out ac- curately in brief, there was unfortunately no substitute for my review of all the testimony and interrelation of the voluminous records advanced for an ultimate dis- cernment and evaluation of her contentions of inconsist- encies and contradictions in Employer 's offered testimo- ny and evidence with urged purpose that her reliance on Employer's normal business practices, policies, and con- duct, such as are contended to be revealed from business records, be concluded to have carried her case that McMahon was neither supervisor nor manager; had per- formed ably; and that Employer's defenses to the con- trary were hoax and pretext. There were many such in- consistencies and contradictions evidenced, and ' found herein. However, the overall evaluation of such has to be tempered in analysis from that which fairly detracted, viz, the effects that, the.lack of formality and/or uniform- ity in-procedure , practice, and increase in business (as above equally evidenced) is to fairly have in analysis of such testimony and records. Employer has placed similar heavy reliance on its showing of the increase in business, and its urged various ramifications that that business' ex- pansion had in its TSI operations, particularly as'base support-of its contentions that McMahon in practice had' to function as a supervisor/manager, and/or ultimately performed so,. poorly: in TSI operations that it led inex- horably to his discharge on -February 5, 1981. Indeed, Bruno testified explicitly that , even assuming he'formed a belief that McMahon was involved in union activities, he would have been terminated in any event for his per- formance failures. In regard to the credibility of Employer's witness Bruno, in general , Bruno was discernibly initially not candid in his testimony as to his corporately related ma- terial operations,,but viewed overall, he has eventually testified on that area though not without prior contradic- tion . Howsoever testifying thus unwisely, that . initial tes- timony was determined primarily founded in a concern for a preservation of his liability interests. In assessing the significance of his initial lack of candor I'have relied heavily on the circumstances of the outset indication that the TSI employees were Employer's employees, albeit as eventually shown a single Employer's employees. His testimony in the representation case , when compared with assertions herein, raised more directly related and serious questions as, to his general reliability, that was only the more exacerbated by early discernment of his tendency to testify in self-serving- manner, oversimplyfy- ing certain .TSI operations and conduct of Mayo and McMahon, frequently shown doing so inaccurately. However, to conclude on that basis that none of his testi- mony was with foundation, as the General Counsel es- sentially has urged, would not "be warranted on 'this record. Nonetheless, even with that allowance, Bruno's testimony was generous in summarizing McMahon's defi- ciencies, but weak on specific incidents and details. Nor- ton's testimony was, in general, notably comfortable and strong when testifying on the details of his instate oper- ations . His testimony on TSI operations particularly in regard to McMahon's advanced failures that led to his review and discharge was in stark contrast, almost in- variably weak; and it has in the end wholly convinced me that Norton, as he himself definitively offered essen- tially on several occasions, was not really functioning with managerial familiarity in TSI operations, nor I am convinced did he have real working knowledge of them at the time of McMahon's discharge. However, certain of his testimony, e.g., in disavowal of clear import of his, own written documents in relation to the General Coun- sel's prima facie case, was simply wholly unconvincing; and it has but further served to weaken his general reli- ability on TSI-McMahon matters. On details of TSI operation and resolution of the par- ties' position, the case comes down to an evaluation of Mayo and (guardedly) Bruno, and McMahon's testimo- ny, and an evaluation of the voluminous related records in evidence, now accomplished. Because of the plethora of testimonial conflict, where possible I have relied heav- ily on credible documentation. What is immediately to be observed in regard to Mayo's testimony and related doc- umentation , in general , is that Mayo had, reviewed McMahon favorably in writing in early December; that his written request essentially to cure operational prob- lems on January 19, 1981, was in the form of a call for any analysis of the system, not McMahon's failing part in it; that he did not in that writing specifically criticize McMahon's work performance; that his written evalua- tion of McMahon's work performance immediately prior to discharge was essentially on administrative record- keeping, with himself also behind in paperwork, and not the operational failures now urged in depth; that in his hearing review of McMahon's logs and his own TSI 5500 responses, there was in contrast a litany of asserted ongoing operational deficiencies which were not earlier subject of any prior acknowledged or -itemized written discipline/counseling of record, many of which were dis- cernibly., minor (and of same nature both Mayo and Norton experienced), and that Mayo, in contrast, openly acknowledged he did not previously know the reason for McMahon's discharge, and only since learned it was for McMahon's operational failures. Finally, an. overview of Mayo's hearing testimony in identifying McMahon's operational deficiencies in performance (pre- and post- December 4), by-virtue of its very depth, given his para- mount knowledge of TSI operations, his prior history of performance in an assignment to formally put Employ- er's best foot forward in selective facts to the post office, especially in light of his above own candid acknowledg- PEOPLE 'S TRANSPORTATION SERVICE ments in regard to his lack of knowledge of the actual reason for McMahon 's - discharge , but had essentially since learned it was for operational deficiencies, has in the end caused me to initially conclude that Mayo's of- fered testimony and his conviction on such deficiencies was of later analysis and determination , and consequently his present marshalling thereof had to be the more close- ly scrutinized , particularly in relationship to its _ support in available documentation , for an accurate evaluation to be made of his testimony overall on ' supervisory/- managerial and work performance issue considerations. When that was done , the above noted significant number of discrepancies emerged. McMahon was clearly less broadly knowledgeable of the TSI operations than Mayo , but it ' is• observed that with possible exception of certain Verro matters, and with managerial related exception otherwise , viz, on the subject of rental authority , McMahon was , in general, re- markably consistent in his testimony as to his part' in those many questioned operations, discernibly more so than any other witness . Moreover , he discernibly exer- cised control during the hearing in testifying on matters that ' he was aware of, and - guardedly where not; and in the end , appears much more consistently supported by the available records, perhaps understandably by his own logs, but in no small measure significantly so by 5500s, in which he had essentially - no part in preparation. The main issues of McMahon 's credibility thus rested: in the evaluation to be made of his denials of authorship and awareness of the certain documents Employer urged should be attributed to him, largely bearing on asserted supervisory/managerial capacity ; and the credibility to be attached to his , denials of responsibility for and' of Mayo criticisms and/or • warnings received in, regard to control of and/or communications with field personnel. Otherwise , the asserted supervisory/managerial facts found must be evaluated and weighed . Though the case first and last was ponderous , and the inconsistencies and contradictions were many to resolve , with the conflicts now largely resolved , the legal principles for application in resolution are well established. The General Counsel having established a prima facie case sufficient to support the inference that Employer unlawfully -discharged McMahon in violation of Section 8(a)(3) and ( 1), it became Respondent 's burden to estab- lish its raised defenses , viz, either McMahon 's discharge was -not one protected by the Act because he was a stat- utory supervisor at the time , cf. Tucson Gas Co., 241 NLRB 181 ( 1979); Soil Engineering, 269 NLRB - 55,' 56 (1984); or he was a managerial employee excluded from coverage of the Act , cf. NLRB v. Bell Aerospace Co., 416- U.S. 267 , 288-289 '( 1974); or , failing that, it was Re- spondent's burden to - itself show that other lawful rea- sons existed for the discharge of McMahon that were of a nature sufficient to establish that Respondent` would have discharged McMahon at this time, in any event, viz, as essentially urged , for McMahon 's increasingly poor work performance in night TSI operations, cf. Wright Line , 251 NLRB 1083 ( 1980), enfd . (on other grounds) 662• F . 2d 899 ( 1st Cir . 1981), cert . denied 455- U.S. 989 (1982), but passed on approvingly by-the Su- preme Court in NLRB v. Transportation Management 255 ' Corp., 462 U.S. 393 ( 1983); a burden applicable in all 8(a)(1) and (3) motivational cases , Limestone Apparel, 255 NLRB 722 (1981 ); and Jefferson Electric Co., 271 NLRB 1089 ( 1984). Section 2(3) of the Act as amended provides: "The term 'employee ' shall include any employee . . . but shall not include any individual employed . . . as a su- pervisor .. ."; and Section 2(11) of the Act provides: The term "supervisor", means any individual having authority , in the interest of the employer, to hire , transfer , suspend , lay off, recall , promote, dis- charge , assign , reward , or discipline other employ- ees, or responsibly to direct them , or to adjust their grievances , or effectively to 'recommend such action , if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature , but requires the use of independent judgment. - - Employer correctly observes that Section 2(11) is to be interpreted in the disjunctive as to the specific authorities enumerated, and that the actual possession of any one of the above explicitly expressed supervisory powers is suf- ficient to place the individual within statutory superviso- ry definition , Ohio Power Co. v. NLRB , 176 F . 2d 385, 387 (6th Cir. 1949), cert . denied 338 U.S. 899 (1950); NLRB v. Budd Mfg. Co., 169 F.2d 571, 579 (6th Cir. 1948), cert. denied 335 U.S. 908 ( 1949); but only when there is con- junctive use of real - independent judgment , on behalf of management , Poultry Enterprises v. NLRB, 216 F.2d 798, 802 (5th Cir . 1954); and not judgment exercised that is but routine and clerical , Sweeney & Co. v. NLRB, 437 F.2d 1127, 1131 (5th Cir . 1971). Even independent judg- ments , no matter howsoever otherwise observed to have been exercised , will not substitute , or suffice, cf. Thayer Dairy Co ., 233 NLRB 1383, 1386-87 (1977). What is the centrally relevant and decisive factor is the actual (enu- merated) authority possessed , and its use with independ- ent judgment; and not mere conclusory assertions of company officials thereon , Advanced Mining Group, 260 NLRB 486 , 507 (1982), and see cases cited thereat, enfd. mem. 701 F.2d 221 (D.C. Cir . 1983). This is so essential- ly because : "[T]he Board has a duty to employees to be alert not to construe supervisory status too broadly be- cause the employee who is deemed a supervisor is denied employee rights which the Act is intended to protect." Cf. Westinghouse Electric Corp. v. NLRB, 424 F :2d 1151, 1158 (7th Cir. 1970), cert . denied 400 U.S. 831 ( 1970). No matter how formidable the task may be in a given case, a' possession . of supervisory authority sporadically or infre- quently in a nonsupervisor must be distinguished from •a supervisor 's constant possession of a supervisory author- ity regardless of the frequency of its use, Kern Council Services, 259 NLRB 817, 818 ( 1981). Although Bruno may never have given a prior thought to the formal definition of supervisory authority found in the Act, that background itself was no longer a significant factor for consideration by the time of Bruno 's -representation case appearances in November. Mayo's subsequent written December 2 evaluation of McMahon was - found to be at best ambiguous on the 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory/manager issue, even with the consideration of Bruno's October 29 memo to Mayo. Of a more signifi- cant, seemingly controlling, bearing thereon is Bruno's subsequent December 4 written review, especially fol- lowing his recent representation case testimony and with all contracts in place. Thus Bruno's December 4 written, review of McMahon more contraindicated any present occupancy by McMahon of a supervisory/ managerial station at that time, though it arguably held out the pros- pect of one to him. When that written review is analyzed with Bruno's November representation case testimony wherein he has both identified McMahon as a dispatcher, and where he had there contended and testified pointed- ly that dispatchers were not supervisory employees, the combination thereof has all the more convincingly sup- ported finding that McMahon was not theretofore viewed by Bruno as actually occupying a Night NSM status, nor had. McMahon'. been formally awarded supervisory/managerial status on December 4. The late January written evaluations of both Mayo and Bowen do not indicate that McMahon was a supervisor; and neither does Norton's review either definitively, or otherwise convincingly: There were no interim written criticisms addressed to McMahon by any manager, which would serve to identify orconfirm that McMahon was then ac- tually acting, as now claimed, as a supervisor (or manag- er) albeit being recorded in some aspects as a failing one. In contrast, despite a lack of a written job/position' de- scription prepared for or given to Mayo, the weight of evidence, including supporting documentary evidence of record, is simply overwhelming in establishing the broad scope of Mayo's genuine supervisory and direct manage- rial involvement in almost every aspect of day and night TSI operations, though I entertain no misgiving that there was not° broad operational overview and control exercised ' by Bruno in material times. There is thus a' clear and convincing evidentiary showing of it made, stretching from Mayo's long developed status on out-of- state Mopar operations leading to his possession' of real supervisory/managerial status in regard to all TSI oper- ations in material times, as is evidenced in: his initial breakdown of all the various postal contracts to deter- mine requirements of manpower schedule, and his related involvement in the arrangments to be made for startup, e.g., in regard to equipment, supplies, and establishments of regular vendor and suppliers; in his establishment of operational procedures, and ongoing refinement thereof, 'including his preparation of all initial driver route sched- ules to be assigned to individual drivers; his travel to and personal (and by phone) interviews of all initial (and re- placement) drivers; in his initial assignment and reassign- ment of all drivers to specific routes and shifts, and his related advancement of part-time, temporary (or casual) drivers to permanent regular assignments; his preparation of all the required (including changing) weekly schedules and formats thereof; and, finally, his clearly evidenced broad involvement and performance in the regular firing drivers both before and during McMahon's entire period of employment, covering employees', deficient perform- ances, irrespective of whether such an occurrence was on Mayo's or McMahon's shift. A further determined and significantly congruous fact is that the logs regularly maintained by McMahon on night TSI operations, and notably not similarly so kept on day TSI operations by Mayo, were on their face, in- subject coverage, and espe- cially with Mayo's daily review of them as coupled with McMahon's normal supplementary oral report, particu- larly well suited to serve the related purpose of an effec- tive extension of Mayo's supervisory and managerial evaluation and control of night TSI operations as well as day; and that indicated arrangement , when further cou-' pled with observation and assessment of the degree of Mayo's admitted broad involvement with discharge/- discipline of TSI employees and his related sole perform- an ce in writing responses to TSI 5500s on irregular serv- ices, would appear to but -in a most substantial degree convincingly confirm the same to, have been the actual intended operational arrangement or system in place during all material times, with Mayo as real supervisor and hands-on direct manager- of all TSI operations, and McMahon as essentially a night dispatcher, and other- wise a monitor of night-TSI Greyhound Airport Services, 189 NLRB 291, 293-394 (1971), and see Carey Transpor- tation , 119 NLRB 332, 334-335 (1957), NLRB v. City 'Yellow Cab Co., 344 F.2d 575, 581-582 (6th Cir. 1975), and other cases cited, and compared in fn. 14. No contention is advanced, and, in any event, no con- vincing evidence has been offered that McMahon had authority to transfer, lay off, recall, promote, or reward employees. The evidence offered by Employer to estab- lish that McMahon, hired, or effectively recommended the hire of employees has also been found wholly uncon- vincing. The evidence of record about Mayo doing the hiring as noted is conclusive. Even after the startup of these various postal contracts, it _was Mayo who, with limited apparent exception, e.g., of D.C. mechanic Tom Stradley or McMahon replacements, interviewed and hired all employees for TSI operations thereafter, even when certain. local supervisors did onsite interviews and reported their opinion, e.g., Castallano, and wholly apart from any consideration of the post office's additional in- vestigation of postal drivers to be supplied. The short of it is that the nature and circumstances of Employer's evi- dence (in summary) was so limited and unconvincing of McMahon's part in hiring that I am only the more per- suaded to wholly -credit McMahon's account on the weight of evidence as the more probable one; and I ac- cordingly find, in summary, that though there may have been a few occasions that he received calls at night, and took basic information on the caller , the inquiries were referred to Mayo, and there was but one occasion credi= bly shown when McMahon took down certain (even then) limited information from a job applicant caller; and he did so on that occasion one morning only at Mayo's direction, when Mayo was busy. It is concluded and found that McMahon did not hire, nor did he effectively recommend the hire of any employee. Norton's assertions that McMahon 's recorded instances of individual absences of sickness, accident, personal car breakdown, or otherwise were instances of time off granted or approved by McMahon, were for the most part wholly unsupported by Mayo, who knew from his own daily review much more so than Norton what those PEOPLE'S TRANSPORTATION SERVICE log entries actually portrayed, viz, information on an event recorded, and passed on to Mayo, or to others with a direct interest, including Norton. The one claims of time off granted, as asserted by Mayo, viz. Verro, even were it'to be credited would stand thus clearly re- vealed in nature as an isolated incidence over the 4- to 5- month period of McMahon's employ, not illustrative of a possessed power, being but rarely used. See and compare (at best) sporadic layoff, Artcraft Displays, 262 NLRB 1233, 1234 fn. 7 (1982). Moreover, there is not even a warrant on the substance and consistency of the evidence offered to credit that instance. Mayo thus acknolwedged that the report to Mayo was that Verro was going to call Mayo on his return, about the time-off request; and McMahon's testimony otherwise, in the background 'of all the other evidence, is also the more credible that there was only occasion of Verro sickness passed on to Mayo by him. The same is clearly consistent with his treatment of all the other individuals making similar re- ports to.-him. It is found that McMahon did not possess" or regularly exercise an authority of granting time off to employees, but rather. regularly only, recorded absences of various types, with or without reasons stated, for eval- uation by ;others. - With- regard to Employer's reliance on McMahon's single calming comment to driver Mieir that drivers are judged , on individual ability and merit, to the extent urged as proof that McMahon similarly possessed a statu- tory- authority to adjust grievances, the same is in my view at .best too isolated, and more to the point, of nature hardly to be viewed persuasive evidence of a reg- ular possession and infrequently exercised supervisory authority to adjust employees' grievances, particularly in the light of its isolation in the- full record made herein. In the latter regard to the extent it is also evidenced that McMahon reported" driver complaints on paycheck dis- crepancies, his part did not constitute grievance resolu- tion, cf. Commercial Movers, 240 NLRB 288, 289 fn. 8 (1979). McMahon's postal action on Strang's perceived disparate treatment was never urged as-such; but to the contrary his passing.such information on to Olin urged as McMahon failing, albeit unconvincingly so. The weight of related evidence, carefully considered, convinced me that Employer never informed McMahon that he was a supervisor or NSM. Seemingly the ;only argued open questions on statutory supervisory status arise in context of whether McMahon, de facto, func- tioned as a supervisor in regard to statutory powers to: assign , responsibly- direct the work force, discipline, or discharge employees; and, whether it is sufficiently evi- dence in regard to any one of these authorities as may be shown possessed or exercised by him that he did so with an exercise of 'the concurrently required independent judgment. Clear contractual obligation considerations, coupled with established procedures, and/or non-discretionary standard operating instructions, are shown to have effec- tively governed McMahon's actions in handling extra trips. It is clear that McMahon regularly passed on such notice on ordered : trips, for the most significant part to Lawrence in D.C. operations. McMahon's sole participa- tion in preparation of an extra trip seasonal schedule 257 with regard to Chicago operations was clearly pursuant to Mayo direction, was, at best, in nature a training exer- cise; was in any event to be performed in accordance with Mayo specific instructions; and when reviewed by Mayo, and found not to be what he wanted, it was sum- marily discarded by Mayo, who then established his own schedule, prepared in accordance with his own judgment as to what should be done. There were also established procedures and/or standard operating instructions that governed McMahon's giving notice of required repairs to on-duty and/or assigned mechanics of Employer, with a standard report to Joe -Bruno Sr. on all mechanical problems. Standard procedures/instructions governed with regard to all postal office contracts to be made by him as related to any reported delayed service. The ad- justment of meet points, and the less frequently encoun- tered procedure of a swap of load, were on close inspec- tion of their surrounding circumstances essentially re- vealed as emanating from initial suggestions for a more efficient operation offered by others, initially used by McMahon at night in emergency circumstances but, sig- nificantly, promptly reported to and reviewed approv- ingly by Mayo; and both of the same, particularly the much more frequently utilized adjustment of meet points (the 'latter, in my view, involving essentially dispatch considerations) were thereafter routinely administered and utilized by McMahon. It is uncontested that drivers contractually had to report to the post offices one-half hour before the driv- er's scheduled departure time, not only in Chicago but, e.g., on D .C. contracts, inclusive of earliest D.C. to Bris- tol contract. It is thus concluded as the more probable on weight of evidence offered, that it was already an es- tablished procedure that drivers were supposed to call in one-half hour before their departure from first contract startup, but did not always do so; and that it was on that account that McMahon early in his work performance on the night TSI desk, at Mayo's notice and direction, had occasion to remind the Chicago drivers of that pro- cedure, and to do so at night, e.g., as is essentially shown in the logs on October 3, and as McMahon credibly has related, with much record support otherwise. However, even assuming, with a view to the comparative newness of the Chicago contract, to its schedule tightness and to McMahon's limited 2-day training period with Mayo, that such a call-in consideration at this time originated with McMahon, and that McMahon did urge it on Mayo on that early occasion, the result is the same. The Chica- go drivers were already fundamentally required as a part of their job assignment when received from their Em- ployer (in accordance with Employer's own contractual obligations) to arrive at the central Chicago post office facility one-half hour before their scheduled departure. Assuming McMahon observed and urged that they there- after make their call-in to McMahon at that arrival time rather than only 15 minutes before departure (or when ready to depart), as then would have been previously set by Mayo, in order to assist McMahon in his more early detection of an occasion of unreported absence or inci- dent of lateness, etc., and relatedly to increase the time for McMahon's opportunity to locally arrange timely 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD route coverage , the same just as clearly in its basic nature would have been a suggestion by McMahon for an improved efficiency in dispatch of such driver cover- ages . An employee 's suggestion for an-increased oper- ational efficiency does not . itself convey supervisory au- thority , or serve to transpose an otherwise nonsuperviso- ry employee to a supervisory status, anymore than was the case, e.g., when drivers made the suggestions on al- ternate meet-points dispatch . - Said in another and more direct way , McMahon did not on this occasion on his own, e . g., in an exercise of his own independent judg- ment, establish a requirement upon drivers that they call earlier; To the extent Mayo may appear to have addi- tionally asserted that on this occasion he granted or con- firmed a general authority to McMahon that McMahon could set whatever requirements on drivers at night that McMahon wanted , I do not credit so broad an assertion over McMahon 's credible denial, it being additionally also against the clear weight of evidence of the circum- stances more credibly found existing at this time , viz, of McMahon in early training learning the job, and Mayo ordered by Bruno to be in clear control of Chicago oper- ations . To the extent Mayo on occasion has asserted that McMahon established a policy of drivers calling in one- half hour before arrival for work , I credit McMahon's denial , supported as it is by only early October 3 con- trary log entry. Given Bruno 's early concession as to existence of standard operational ' procedures governing road break- downs , but even more so on the basis of McMahon's own credited , detailed account of the procedures and ap- proaches that he regularly followed in handling a truck problem or a breakdown on the road , it is further con- cluded and found that there were standard operational procedures governing his work performance in those areas which he essentially routinely followed and ap- plied . In regard to assignment and/or responsible direc- tion of the work force ' with independent judgment, it would appear that there only remains for addressment an analysis of McMahon's part in effecting individual driver coverage for the absent , late, etc ., driver, in the various areas of Employer 's operations. To again put the assignment power in perspective, the evidence is compelling that McMahon was never in- volved with a driver's initial permanent assignment, or any indicated permanent reassignment of a driver in regard to route , schedule , or shift . Any and all ongoing normal albeit changing weekly scheduling of drivers was accomplished by Mayo , and never McMahon .. (Mayo's rejection of the sole exception on Chicago seasonal extra trips has been above last considered .) What remains for analysis is the nature of McMahon 's part in handling emergency assignments essentially to effect coverages of drivers who were absent , late, etc ., in the various TSI postal areas . To be considered relatedly are issues of the part played by local individuals in those areas , and the different ,- but established, backup systems in place. It has been determined on the basis of a substantial evi- dence review earlier , including that corroborative from Employer 's substantiating admissions, that Mopar Field Supervisors Holman, Olin, and Wise were in material times not only statutory supervisors , but that unquestion- ably one '. of their primary functions was also to drive themselves covering a route in an emergency , e.g., if they could not effect a replacement .. It was further con- cluded and found that that very function was one carried over to the various postal and operation areas, and as- signed to Castallano and Howard in Chicago, Lawrence in D.C ., Uglow in Harrisburg , and Witt in Bristol, irre- spective of whether one or all were called supervisors, or lead drivers , and irrespective of statutory supervisory status considerations . Similarly when Holman was in Chicago in September , and Olin was in Harrisburg in November temporarily , and in D . C. in December and January, and when Wise was in Bristol in early Novem- ber, and in Roanoke in early December , irrespective of the issue of presence of any of them in those areas re- spectively as a statutory supervisor , each was in any event there to cover for an absent driver. In Chicago, Castallano was a local field supervisor; and one I find not only intended by Bruno and Mayo to function in driver coverage, but empowered by Employ- er from the start with an authority to responsibly direct the 14 to 15 driver Chicago work force there , as is evi- dent from Employer asserted admissions thereon (includ- ing possession of disciplinary if not discharge authority). Bruno 's observation of Castallano 's difficulty with telling rather than asking subordinate employees to do things, along with Bruno direction to Mayo to continue to give Castallano's corrective instructions in a reminder - to do it properly, confirms it. Castallano 's evidenced exercise of an authority to-call employee meetings ; his basic assigned responsibility to - daily observe Chicago drivers and report any and all work performance deficiencies further evidenced it; Mayo 's various admissions, - including Mayo's acknowledged needs for McMahon to occasion- ally contact a local supervisor, and the Mayo -enforced requirement on Howard that Howard report first to Cas- tallno any employee work-performance deficiency he ob- served and felt should be brought to Boston 's attention, all confirm it. This finding of Castallano 's possession of statutory supervisory authority is made without any'reli- ance on additional Bruno testimony that Castallano had authority to discharge an employee for drinking , cf. Lof- fland Bros , Co., 243 NLRB 74, 75 fn. 4 (1979). The issue of Lawrence 's statutory authority is closer. To be sure , there were Employer similar admissions as to Lawrence which , despite occasional Employer recant thereof, are sufficient to support a finding that Lawrence was also a statutory local field supervisor in D.C. as Bruno initially identified . He was also specifically identi- fied as the local supervisor in documents. Though there has not been evidenced any discipline of employees by Lawrence , there was Employer 's general testimony, on occasion, that he had such authority ; and there was' limit- ed evidence that he was directly involved in directing and evaluating the D .C. work force as it grew . The cir- cumstances that Lawrence himself went to much more substantial driving in pre-Christmas seasonal period, and Olin was called in as a supplement , does not detract sub- stantially from the weight of the above evidence. Con- trary to Mayo, I find that neither Olin nor Wise ceased to be statutory supervisors by virtue of their respective PEOPLE'S TRANSPORTATION SERVICE .' assignment to postal operations , albeit I have no doubt that they would be the more likely in these new- oper-ations to make their reports on deficient performances by an employee on postal operations to Boston , e.g., as evi- denced by Wise's report to McMahon that D.C. to Bris- tol driver Randall was reported by Roanoke post em- ployees to arrive frequently intoxicated , but the same is also to be compared with Olin 's operational direction to McMahon that drivers performing on the D.C. to Bristol run should not be turned around , a policy confirmed by Bruno , and Wise 's decision that he saw no reason anyone should accompany a new but predecessor driver on the Roanoke run . With regard to backup driving, Lawrence also- drove regularly as a backup driver , as did the other local field supervisors . However, with regard to emer- gency assignment of others , it was more routine , certain- ly as to D.C. to Bristol prior arrangement , as clearly on D.C. BMC, though frequently also involving different operational rule (of last driver handling extra trips) and likely as to - Prince George to Roanoke, particularly when extra driver source was renewed by Mayo. Thus, with regard to Lawrence , even if it were to be deter- mined otherwise , and it held on this record that Law- rence was then no more than a lead driver, and Uglow in Harrisburg and Howard in Chicago as well, there is still no question reasonably , left open as to the essentially routine nature of McMahon 's contact of Castallano and Howard in Chicago , Lawrence and/or Olin in D.C. area, Uglow in Harrisburg (and Wellsboro), and the others 'on the Kalamazoo run, to effect driver coverages for any reported sick, absent , late, or delayed drivers . Essential- ly, the named individuals contacted either then drove themselves , or determined the driver replacement under the most part preexisting established guidelines of avail- ability . Thus while on the one hand I have reservations that the General Counsel's evidence has established that Lawrence and certain others were statutory supervisors, again there is no procedural contact of these individuals to effect driver coverages and, I find, pursuant to Mayo's instruction to do so. The weight of the credited ` evidence does not persuade me that Howard in Chicago also occupied statutory su- pervisory authority and, even less so as to Uglow in Har- risburg . Thus, in my view, Employer has more convinc- ingly - made the -case that Howard's position of promi- nence in Chicago with regard to driver assignment was one essentially bottomed on Employer's use of his exper- tise with the ,complex Chicago postal routes, and not a- reliance on his judgment in making any assignments inde- pendent of that knowledge. I view it also as involving a' matter of circumstantial development of his being regu- larly available , and Castallano 's failure in improperly not so in material times for that purpose . In regard to Em- ployer's reliance on Howard 's expertise , it is concluded that Howard 's resulting status is the more to be deemed governed by an application of the Board 's approach on similar special expertise considerations made with regard to a craftsman , tradesman , or artisan as illuminated long since in NLRB v. Southern Bleachery & Print Works, 257 F.2d 235, 239 (4th Cir . 1958). Moreover, congressional intent has made it relatedly appear clear generally that straw bosses , leadmen ; - setup men, and other minor su- 259 pervisory employees, of - various sorts, who may face problems in their jobs which they handle in a manner which might otherwise justify it, are not to-be viewed as statutory supervisors if they do not possess one of the earlier enumerated genuine - managerial prerogatives. 16 It is, of- course, essentially a question of fact in every case as to whether the individual is merely a superior work- man or lead man who exercises the control of a-skilled worker over less capable employees, or a supervisor who shares the power of management, cf. Thayer Dairy Co., 233 NLRB, 1383, 1386-87 (1977); and see NLRB v. Southern Bleachery & Print Works, supra. Be that as it may, I have no doubt that McMahon was informed by Mayo that not only Castallano in Chicago and Lawrence in D.C. were local supervisors that he could contact on any local problems, but McMahon was similarly so instructed concerning Howard in Chicago. He also knew that Uglow was his contact in Harrisburg to accomplish the same result. In passing, it is observed that-Uglow, was himself the backup driver established by Mayo, if available, and in regard to an occasion of Uglow's arranging a backup driver when not, e.g., when he was ill or overtired, such is clearly viewable as spo- radic and isolated in nature. Under record circumstances revealed herein, by mid-December McMahon reasonably similarly viewed Witt as his contact man on Bristol prob- lems; and he continued to do so without Mayo's restric- tion even after Mayo returned from holidays. Thus the weight of the above considerations, and the evidence as earlier comprehensively analyzed on the dif- ferent area operations and which need_ not be further re- peated here, has convinced me that driver backup sys- tems were already established in all areas which were es- sentially routinely followed by such local supervisors, lead drivers, or otherwise upon McMahon notice to them (with. possible exception of Witt) of a needed driver coverage. hat is clear beyond question in any event on this record is that McMahon was far and away the more routinely contacted each of these individuals respectively (including Witt) on an absent or 'late driver, or other problem, in their area. Moreover, to the extent there is suggestion by Mayo, or in Employer's position otherwise (e.g., on Witt being allowed to act improperly), that each, and every time McMahon contacted Witt and the others only routinely, and left it to them, he was failing in his assignment as a supervisor/manager, the same is to be clearly rejected, for. to do otherwise would turn the weight of evidence in this record as to McMahon's regu- lar procedure of local contact of others on its head. Em- ployer's operational system set in place must be analyzed - in terms of what it was. - For the same reason, on the thrust of such evidence in support of the above, I, have 16' See S Rep No 105, 80th Cong ,- 1st'Sess at 4 (1947), where it is stated . ' [T]he committee has not been unmindful , of the fact that certain em- ployees with minor 'supervisory duties have problems which may justify their inclusion in that act It has therefore distinguished be- tween straw, bosses, leadmen, set-up men , and other minor superviso- ry employees , on the one hand , and the supervisors vested with such genuine management. prerogatives as the right to hire or fire, disci- pline, or make effective recommendations with respect to such action. ' 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accepted Bruno 's and Mayo 's related testimony that they had explicated and cleared their method of having a local individual respond in regard to the contract re- quirement of local "personal or representative supervi- sor"), but with first postal contact on a problem to go through Boston . But that does not mean that McMahon's subsequent handling of dispatches was not routinely ac- complished through local contacts , under established, though area-varied , procedures . Finally on this point, there was significantly no discretion in McMahon as to whether the absence , lateness , or other reported work deficiency or problem of a driver was to be reported to, his superiors ; nor that a run should be covered, under the established procedures. To the extent allowed under those established proce- dures, McMahon has occasionally called an available driver on his own, given the above actual circumstances of Respondent 's established systems governing general backup coverages , that , in my view , no more has estab- lished McMahon as a supervisor than it did Howard on the occasion of Howard , knowing that a driver was to be absent , making preliminary coverage arrangements on his own ' initially , and only then reporting them; or Uglow, similarly , being the primary backup driver in Harrisburg , by occasion of Uglow's arranging for driver coverage for his own illness; or a courier driver who re- ported desired unavailability at the end of a long day; or, even as shown more pointedly , as in the case of the dis- patcher observed in Norfolk Lines, 175 NLRB 209, 210 (1969). There a dispatcher was observed to have occa- sionally selected an individual driver because the dis- patcher was aware a particular driver was familiar, with a particular route or destination ; and especially is this so where it appears there is not any open question that the real supervisory judgments and authority of creating the schedules , and making the initial and ongoing basic as- signments of the individual drivers to such schedules, routes , and shifts (and related establishment of the area systems for backup driver coverages in place ) is always accomplished by another , here clearly Mayo , cf. Groen- dyke Transport , 171 NLRB 997, 998 ( 1968); Vangas, Inc., 167 NLRB 805, 806 (1967). Relatedly, I am not persuaded under this Employer's operational system that the General Counsel has estab- lished that Howard or Uglow was a statutory supervisor.' There was no evidence offered that Howard or Uglow (or Witt) ever sought to, let alone had ever, effectively disciplined a driver for a refusal to handle a backup cov- erage assignment when an available driver was given notice of same , nor evidence that McMahon had for that matter in any case where a driver actually declined, beyond recording that fact . It is certainly no advance- ment of their status to compare that courier dispatchers are shown to have affirmatively reported courier driver refusals to Norton, when they are unable to effect other dispatch coverage , and a courier driver refused to dis- patch at end of day. Again I am not unmindful that Howard and Lawrence do appear in some postal docu- ments as assistant manager , or supervisor (though more often not so in this record), were confirmed in such uti- lized identity by certain Mayo testimony, and specifically identified as such to McMahon under credited Mayo's in- struction to him . However , the conferral or use of the title of supervisor is but a secondary indicia , in nature supplemental , and more importantly clearly insufficient to carry the day in itself, if there is no showing made as to accompanying actual statutory empowerment , cf. Orr Iron, Inc., 207 NLRB 863 fn . 2 (1973), and there is court approval that it is the total picture which controls, enfd. 508 F . 2d 1305 , 1307, 1309 (7th Cir . 1975); and see RAHCO, Inc., supra, 265 NLRB at 248 . Then, too, an exercise of discretion in disptach circumstances , indeed even considerable discretion , but only in an emergency, and involving essentially predetermined procedures, even where the procedures may vary with the nature of emer- gency , does not confer a statutory supervisory status, any more than an accompanying occasional assignment otherwise does , where the largest majority of such dis- patch assignments are otherwise shown clearly to be rou- tine , cf. Boston Gas Co., 136 NLRB 219, 223 ( 1962). All that the above essentially means , in my under- standing of the cases , is that it is not the discernible ex- ception in an individual 's work performance that is to serve to identify him as occupying a statutory superviso- ry status , but the record 's revealment of the real nature of his regular assignment and.,performance that does or does not show him to be a functioning statutory supervi- sor, with or without such title. Here it is concluded on the weight of evidence and found that McMahon 's regu- lar handling of reported or discerned absent or late driver, was a regular contact of one of the above individ- uals in their respective backup driver coverage , either by themselves ,, respectively, 'or by others, involving essen- tially a routine function by them in each area, with possi- ble exception in Bristol by Witt. However, even there, as with all areas, it involved essentially a routine procedure of McMahon's contact of that individual . The weight of such credited evidence thus does not persuade me that McMahon therein possessed or engaged in exercise of statutory supervisory assignment authority with inde- pendent judgment. - Special circumstances , as with Witt , e.g.; in McMa- hon's direction - to Witt to go up to meet an ill driver (Bowman), do not convince me of the contrary . Neither does the change of his calling the driver directly, after contact of Howard , at the very end of his employment. In contrast, some indicated assignment activity of Witt, appearing to be regularly accomplished on his own, might raise closer question as to Witt , even though it is clear he had assigned responsibilty to keep Boston in- formed of his adjustments . It is no answer to assert such occurred by McMahon's failure, for Mayo was as aware, and it continued . A more plausible explanation is that the failure to keep Boston informed was his deficiency whether in notifying McMahon certain trips were swapped between drivers on a certain day; or with Mayo that it was being anticipated that a certain D.C. driver would wait for use of an anticipated truck availability at a particular time. - ' To the extent that Uglow, 'Howard , or Witt have checked essentially timesheets for other employees, the recording of the time of employees accurately without more is merely a routine , clerical function, not necessari- PEOPLE 'S TRANSPORTATION SERVICE ly indicative of possessed supervisory status ; and it is concluded it was not shown otherwise herein , cf. John Cuneo of Oklahoma, Inc., 238 NLRB 1438, 1439 (1978) enfd . 106 LRRM 3077 ( 10th Cir . 1980); Commercial Movers, supra, 240 NLRB at 290 fn . 12. I do not over- look that there were otherwise some evidentiary indica- tions that Howard was a supervisor , e.g., his reported urging of the hiring of Ratcliffe ; and his reported unsuc- cessful attempt to pick up the, keys from Pittman, upon Pittmans discharge ; and as well , Uglow , in giving Strang a day off. However , the status of record evidence made thereon is deemed not sufficient to convince me that it was Howard who had thereby effectively recommended the hiring of Ratcliffe (who apparently hid independent- ly already submitted an application), or that Howard was involved in the decision or effective recommendation of discharge of Pittman ' (a power otherwise earlier contra- indicated on this very individual ), or acted other than as agent to perform local action in that regard for Employ- er, on decision reached by another, Mayo, as indicated. Neither does the single incident of Uglow giving Strang a day off on Christmas Eve, with Uglow 's understanding that the 9 : 15 p.m. trip was canceled , serve to convince me on this record that Uglow was any more than a lead driver normally. Seemingly , disposition of the entire supervisory matter has thus come down to ' the evaluation of the evidence as to Employer 's claims that McMahon possessed and exer- cised discharged/discipline authority in TSI operations. With regard to the discharge/discipline of TSI employ- ees generally, the weight of the General Counsel's evi- dence shown via review of all the 5500s , and Mayo's re- lated admissions , if technically not to be said as all inclu- sive , is far and away to be concluded as very strong evi- dence to support the joint finding that it was not McMa- hon, but Mayo (though the latter likely frequently -in consultation with Bruno in busy period), who regularly and consistently exercised the statutory discharge/- discipline supervisory function on all day and night TSI operations . Indeed, in comparison , apart from McMahon log entries, there is an absolute dearth of any signed, per- sonalized , or, handwritten evidence of McMahon 's actual involvement in a written discharge or discipline of any employee , TSI or othewise . That there would be not one clearly evidenced instance of written discipline or eval- uation in 4 to 5 months renders Employer 's assertion that McMahon was repeatedly urged to do so only the less credible . The comments/reports made in McMahon's logs as viewed by themselves are in nature to be likened to similar reports made by conceded nonsupervisory em- ployees to their supervisors , sometimes as a- result of a manager's special direction , other times in a work func- tional report on events, difficulties , and problems of vari- ous sorts . Again, viewed alone they are more illustrative of McMahon 's nondiscretionary policing of night oper- ations for Mayo , cf. RAHCO, Inc., 265 NLRB 235, 247 ( 1982), and similar cases cited. Employer 's arguments that, absent McMahon being a supervisor , there was no facility supervisor over night operations , are much diminished by observations that the TSl operations were in varying distant areas ; the work basically involved traveling truckdrivers; and there were 261 local supervisors or lead truck drivers that functioned in those areas on the various problems that were reported to' McMahon , and on which he, in turn , was instructed to contact them .- Mayo 's normal hours were 7 a.m. to 5 p.m., though he might be there through 7 p.m. Thus per- haps more significantly dispositive of that consideration, prior to ' McMahon 's arrival there was no supervision at the facility from 5 or 7 p.m. to Mayo 's return the next day. In this period , Mayo handled all emergency calls at home, e.g., as related to D.C . to Bristol operations, and the Mopar operations (admittedly less so). While McMa- hon was employed , there continued to be ' no facility su- pervision essentially over weekends . However, perhaps most significantly on this point, after McMahon 's depar- ture there was similarly no facility supervision on all postal and Mopar operations ; in light of McMahon's non- supervisory replacement . Again Mayo handled any -emer- gency TSI calls at home , as Norton did on instate mat- ters . Even considering the urged presence of Bowen nor- mally till 9 p.m. (who Employer urged on another occa- sion was not involved in day-to-day operations), this still left a rather significant period of time thereafter without a supervisor on facility grounds to handle night TSI op- erations . The ultimate fact is the Employer ran its night TSI operations without a statutory supervisor at the fa- cility both before and after McMahon's tenure. To the extent Mayo has testified that he suggested McMahon talk to certain individuals about their deficien- cies, and it has been found that McMahon did , and.that Mayo and/or Employer has construed or characterized the same as oral discipline by McMahon , the arguments advanced are without merit . Considered here are state- ments of McMahon resulting from Mayo's asserted spe-. cific instructions to, McMahon , e.g.: that he notify Law- rence essentially that Lawrence 's failure to report a problem promptly when it happened was hampering McMahon in the performance of his own job; that McMahon had to get Lacey to do extra runs ; that when Strang complained excessively, to essentially just tell Strang to do his job or route ; and to inform Witt not to fail to communicate • on a. schedule change , etc. First, a relay of a supervisor 's instruction to a negligent employ- ee is not an exercise of supervisory authority , Commer- cial Movers, supra, 240 NLRB at 289 fn . 9. Even were the same all to be viewed as delivered criticisms, McMa- hon appears more a conduit for the orders and directions of Mayo, than acting - on his own, Victory Electric Coop.; 230 NLRB 1201 , 1202 (1977). Moreover , even were the same to be viewed as McMahon 's own criticisms of em- ployees, oral reprimands that carry no weight, and are not even entered in personnel - files, do not establish a possession or exercise of supervisory authority, Tucson Gas Co., supra, 241 NLRB at 182. There was no show- ing that Mayo entered any such McMahon-delivered (contended) reprimand in an employee 's file ; and McMa- hon certainly did not memorialize any of them there. The operative key in all such considerations is whether an oral reprimand-has a significant effect on an'employ- ee's employment status, or impairs a reasonably expected employment benefit . No such showing was made herein by Mayo, or othewise by Employer . Absent some show-- 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of an impact on job status, it is settled that verbal reprimands do not constitute discipline within the mean- ing of Section 2(11) of the Act; Commercial- Movers, supra, 240 NLRB at 289. See and compare where coun- seling is shown accompanied by an instance of actual re- lated evaluation and a recommended pay raise,- Kern Council Services, 259 NLRB 817 (1981). Finally, even where the employee is alone at night, bringing infrac- tions of employes to the attention of the employer, where the employee has no discretion , the same is insuf- ficient to establish a statutory supervisor if it .is not also established that the individual can-effectively recommend disciplinary action or take such action on his own, West- ern Union Co., 242 NLRB 825, 826-828 (1979). There were occasions evidenced where this Employer has directed anindividual supervisory type act to be per- formed by an employee, that the record has otherwise revealed was done without any general empowerment of that individual with regular 'supervisory power, e .g., air courier dispatcher Fran Gorman is being dispatched to' New York to effect release of an employee, and to obtain the keys and/or otherwise to secure Employer's property; or night dispatcher Gilbo's assignment to evaluate an employee's work performance at night for Norton. There were other occasions where this Employ- er assigned in writing seeming more general supervisory/managerial responsibilities , e.g., in directing an evaulation of operations, or monitoring and evaulating assigned numbers of employees , in a new job concept, which general authorities nonetheless were never shown effectively exercised , and thus as Bruno in effect uncon- testedly has asserted, never went anywhere, e.g., Hill, and certain courier dispatchers , including Tom Robinson; and Robinson also, as shown, momentarily tried out' as a dispatcher/supervisor in the fall of 1979. However, Rob= inson failed to perform adequately in a supervisory ca- pacity and , more pointedly , during material times Robin- son was not shown by the weight of evidence to be then performing as a supervisor , but rather clearly working as a nonsupervisory dispatcher. The case of Schneider's contended supervisory status presents a closer question. In contrast, and in partial agreement with the General Counsel, - and contrary to Norton's attempted disavowal of clear import of support- ing documents , Gary Schneider by such documents is shown to have been an empowered , indeed an evaluated, supervisor of Woburn postal ' operations from 1979 ex- tending into material period , while serving as Postal Contract Supervisor/Driver at Woburn (see G.C. Exh. 10 series). However; and contrary to the General Coun- sel's contention thereon , the same has not been effective- ly similarly shown when Schneider 's duties were changed on occasion when Norton determined that his services were no longer needed ' in Woburn (with Roose- velt King 's transfer there); and Schneider was then reas- signed , seemingly sometime in October , to regular couri- er driving, albeit remaining available for occasional cov- erage of an absent postal driver, and, as well, with return to some courier dispatching . The fact is that he was not shown to be functioning as a statutory supervisor in any of these reassignments ; and indicated - to the contrary in McMahon 's contact of him in December to cover -for a reporting 'absent postal driver, but with - notice to that driver to contact Norton about his reported absence. When Woburn postal driver Brietzke reported sick on December 23 (actually 11:15 p.m. December 22) McMa- hon had Brietzke call Norton in the morning about his absence, though he called Schneider for the coverage. Thus, relatedly, although the General Counsel did estab- lish Schneider's own held antiunion sentiment at time he was a supervisor at Woburn, it was not convincingly es- tablished, by evidence offered, that Schneider's reassign- ments were themselves antiunion motivated, or that he had remained Employer's supervisor or agent in regard to any particular conduct in other assigned position. What_ is apparent is that McMahon's contact of Schnei- der on -any instate postal driver coverage continued-rou- tinely. It is also clear that McMahon -was neither as- signed nor exercised any disciplinary, authority over in- state postal and Mopar employees. With all of Employ- er's arguments otherwise considered and concluded un- prevailing, the case for supervisory status comes down to a consideration of McMahon's contended part in the dis- charge or the discipline of certain ,employees and/or au- thorship of the urged, but unsigned notes, and letters as to which the litigation was unquestionably most heated. The Employer's offered, unsigned documentary evi- dence, categorically denied by McMahon, has been treat- ed earlier, in great factual detail, and with analysis. The general conclusion warranted therefrom, for the reasons earlier specified, is that Employer showings were in the end shown to be porous with inconsistencies; are con- cluded inadequate to warrant a credited finding any doc- ument was authored by McMahon; and they do not-in the end establish that McMahon then possessed or exer- cised a supervisory/managerial authority to discharge or effectively recommend the discharge, or similarly disci- pline anyone. The testimonial and other evidence offered in support of McMahon's contended involvement in the discipline/discharges of Castallano, Lacey, Verro, Pitt- man, or of Pingle, Tharps, and Johnson, has been similar- ly concluded unpersuasive for the reasons early specifi- cally related; and any contention of his involvement with actual discharge of Strang, Stradley, and Verro , seeming- ly all of which were accomplished after his tenure, were in any event not effectively shown accomplished by McMahon at all. -It is further concluded and found,' in final analysis of all the urged contentions and arguments advanced thereon by Employer, considered individually, or collectively, that on the clear weight of evidence, McMahon is not shown to be a statutory supervisor, but rather an assigned night dispatcher on the TSI desk, per- forming employee work functions while regularly moni- toring night TSI operations under Mayo's extended but overall direct supervisory and managerial operation and control. 17 17 Employer's reliance on such cases as Laramee 's Transit, 224 NLRB 56, 59 (1976), Burns Motor Freight, 246 NLRB 368 (1979), Redwing Carri- ers, 224 NLRB 530 (1976), NLRB v Concord Furniture Industries, 675 F.2d 426 (1st Ca. 1982), are distmgui "shed on lack of showing herem of one or more of the statutory authorities therein found , viz, to hire, fire, disciplme, and/or meaningfully exercise independent judgment in regular assignment of work. ' PEOPLE'S TRANSPORTATION SERVICE The alternative argument, that McMahon was a man - ager, is itself largely affected, but not wholly disposed of, by the above findings that McMahon possessed and exer- cised no statutory supervisory (and in that sense manage- rial) authority. Generally speaking an excluded manageri- al-employee is more'broadly defined as one who has the authority to "formulate and effectuate management poli- cies by expressing and making operative the decisions of their employer." NLRB v. Bell Aerospace Co., 416 U.S. 267, 288-289 (1974). Thereafter the Board noted that it "long has defined managerial employees as those who formulate and effectuate management policies by express- ing and making operative the decisions of the employer, and those who have discretion in the performance of their jobs independent. of their employer's established policy." General Dynamics Corp., 213 NLRB 851, 857 (1974). The matters which here are to be additionally consid- ered are essentially urged considerations of McMahon's involvement with management policy,'-which Norton for the most part negated and Mayo only limitedly ad- vanced. Employer has urged that McMahon formulated and effectuated management policy in having employees in Chicago call in one-half hour before their departure; and in utilizing an alternative meet point for an already established midpoint. In degree of policy discretion, I find neither urging persuasive that McMahon was a man- ager. The advancement of credit to a driver, _pursuant to a policy applying to the D.C. to Bristol run (alone) at its Bristol T/S terminus, was apparently not frequent and normally of a minor amount, e.g., $30; and more pointed- ly, in any event pursuant to an established policy, essen- tially on need basis, at that one terminus. As noted; McMahon's more regular pledge of credit, e.g, in effect- ing emergency repairs, did not involve on McMahon's part any evaluation of the price to be paid'for a required towing, fueling, repair service, but was to be accom- plished in accordance with a procedural approach gov- erning him that was largley defined, thus _essentially rou- tinely followed. Any discretion he enjoyed clearly did not involve managerial effectuation of Employer's policy or interests in price quotations, or price considerations, cf. Ladish Co., 126 NLRB 555, 559 (1960); St. Cloud Rendering Co., 116 NLRB 1069, 1071-72 (1956); Puerto Rico Sheraton Hotel, 248 NLRB 867, 877 (1980), and see White Cross Stores, 186 NLRB 492, 497, 511-514 (1970), Iowa Industrial Hydraulics, 169 NLRB 205 fn. 1, 210-211 (1968), and other cases cited in fn. 14 at 877. Finally, I have given consideration to the Board's seeming approv- al of the late Judge Charles W. Schneider's astute obser- vation and conclusion that a clearly nonsupervisory em- ployee, but one with assigned responsibilities to report what he regarded as inadequate employee performance that involved not only monitoring the performance of a significant number of employees (300), but of seeking correction through supervisory officials; seemed to effec- tively have placed an individual in those circumstances as in such a potential conflict with his fellow employees as to constitute that individual a managerial employee; Puerto Rico Sheraton Hotel, supra, 248 NLRB at 877-878. It'is concluded McMahon did not occupy such a position 263' here. (In passing, it is observed the Board has overruled the-Puerto Rico Sheraton Hotel case, supra, in its review of "integral part" and "pattern of conduct'' holdings in Parker-Robb Chevrolet, 262 NLRB 402 (1982), but seem- ingly left holdings considered herein undisturbed). Whether it be a supervisory or managerial issue, weighing these factors again involves a matter of ascer- tainment of the degree of authority actualy exercised, cf. NLRB v. North Arkansas Electric Coop, 414 F.2d 602, 608 (8th Cir. 1971). Here most of the' deficiencies recorded and/or reported by McMahon to Mayo were by far defi- ciencies and problems reported to him by others and they were matters' he is shown to have but routinely passed on to Mayo: To the related extent it is revealed herein that on occasion McMahon made critical observa- tions and suggestions, whether pursuant to _a Mayo en- couragement (as, e.g., per Bruno October 29 direction, albeit undeclared to McMahon), or not, the degree and kind are not such as to convince me, that McMahon was constituted by. Bruno a manager, so much as indicating to Mayo at that time,, and by Bruno to McMahon in a December 4 review, that Employer might consider him in the future for such a position when and if it opened, noting as especially significant that most of the same oc- curred after December 4. However, the fact determined herein is that McMahon was never formally identified or raised even to a declared manager trainee status . In that connection, though McMahon had special - education in transportation he did not accept the TSI desk job with a special designated managerial goal-or -leave assignment, but rather to perform=an employee job as in Washington Post Co., 254 NLRB 168, 190 (1981). In regard to those who were earlier identified by -Employer variously as manager trainees, they were personally notified; and even then, certain of them continued in regular employ- ment, though never raised to actual manager status, indeed, even after disclaiming interest of further pursuit of it, e.g., in addition,-to Robinson, Carmella Kennedy, Jim Finn, and Charles Carley. Since all Employer's man- agement trainees did not either advance to managerial positions, or leave Respondent's employ on failure, the- holding of Curtis Noll Corp., 218 NLRB 1447 (1975), that' managerial trainees who face that prospect are not cov- ered by the protection of the Act (under Bell Aerospace Co., supra), would appear readily distinguished. More- over, many of the supporting factors therein found are clearly not present here; and it is observed, as was ob- served by former Judge Paul E. Weil in the Curtis Noll case , 218 NLRB at 1452, citing WTOPP. Inc:, 115 NLRB 758 (1956), comparatively that, "If the employee's future assumption of supervisory duties is in any way specula- tive he is held not to be a supervisor and is included in the rank-and-file unit ." Seemingly assumed is the case where present duties do not include supervisory power exercise, e.g., though on eligibility issue, see US. Radium Corp., 122 NLRB 468, 471 fns. 4 and 6 (1958). Here McMahon was never definitively told he was a supervisor/manager or trainee , let alone made aware by specific instruction or, Employer's past practice that if he failed in such he would be released. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It. is further concluded and, found that neither does McMahon's general pledge of Employer's credit in han- dling emergencies, most ordinarily applied in truck breakdown, tow, and/or repair do so, any more- than` Employer's Dedham mechanic appears constituted a manager merely because he could, and did, decide where (instate) repairs were to be accomplished, and regularly substantially pledged Employer's credit in connection with such repairs, but more so in procurement of parts to routinely effect necessary repairs at the local facility. The central fact is that neither formulated and effectuat- ed the underlying policy of getting a disabled truck back on the road by effecting a tow, repair, purchase of neces- sary parts, etc., as a manager, but. rather' essentially fol- lowed Employer's already established and standard oper- ating policy in doing so. Finally, on the matter of rental authority, in the circumstantial showing made I do not find such an authority, assuming it rested in McMahon, though it was one which clearly was never executed, when reasonably viewed in the context of this case, is to be concluded was one that would have been exercised by McMahon without discussion with his 'superiors, nor was it such in any event alone sufficient to constitute him a manager. - In summary, in view of all of the above findings whether McMahon be viewed as a normal dispatcher, or in some sense, a professional/technical, his work judg- ments, discretions, and decisions such as are revealed in this record did not constitute 'the formulation or alter- ation of Employer's business policy such as to constitute him a true manager, which is reversed for, "executive-" type positions, those who are closely aligned with man- agement 'as true representatives of management." General Dynamics Corp., supra, 213. NLRB at 857-859. Employer would additionally rely on NLRB 'v. Yeshiva University, 444 U.S. 672 (1980). There it was observed; at 683 "Al- though the Board has established no firm criteria for de= termining when an employee is so aligned, normally an employee may be excluded as managerial only if he rep- resents management interests by taking or recommending discretionary actions. that effectively.-control or imple- ment employer policy," and citing as e.g., in addition to the Bell Aerospace- and General Dynamics cases, supra; Sutter Community Hospitals of Sacramento, 227 NLRB 181 (1976). In the Sutter-Hospital case, the Board expli- cated that "The touchstone in a given case is whether or not a professional employee either exercises the type. of discretion indicative of managerial, status, or, having some responsibility for authorship, participates directly,in the employer's policymaking- process."- Id. at 193.18 18 In the Sutter Community Hospitals case, the Board had excluded as managerial a clinical specialist who used interdisciplinary professional skills to develop a new intensive care unit , and who was shown involved in development of new -and improved methods of nursing care, and the policies and procedures applicable thereto. Therein the Board observed relatedly that it had held with judicial approval , inter alia, that manageri- al employees include "those who have discretion in the performance of their jobs independent of their employer 's established policy." Id at 193 It"was thus there determined that the degree of responsibility entrusted aligned this clinical specialist more closely with management in whose in- terest she acted, than to other employees the Act protects But it was not so concluded as to others where it did not appear , or appear as clearly; that the individual formulated or effectuated management policy, or exer- Though the'Yeshiva case involved managerial issues in a college faculty, not completely- analogous to industry, it has explicitly provided the industrial analogy of the equivalent that it was there- addressing, vii, "To the extent the industrial analogy applies, the faculty deter- mines within each school the' product to be produced, the terms upon which it will be offered, and the custom- ers who will be served." Id. at 686.19 Nothing of that sort pertained to McMahon 's assigned responsibilities- as shown herein. It is accordingly concluded and found that Respondent's urged defenses that McMahon was a super- visor, or alternatively a manager, are not supported by the weight of credited evidence. - At the outset it may be observed that an employer acts at its peril in believing that an individual is not an em- ployee, see, e .g., NLRB v' Bardahl Oil Co., 399 F.2d 365, 367-370 (8th Cir. 1968). Employer thus does not prevail in its urging that the Board consider that it believed McMahon 'was a supervisor: or manager. Respondent's final defense is that McMahon, as an employee, would have been discharged for his poor performance in han- dling night TSI operations in any event. Respondent's defense essentially is that the nature of McMahon's in- creasingly poor work performance in the TSI operations, particularly as evidenced in January 1981, despite an as- serted postal drop in business, and as exacerbated by in- stances occurring at time of his discharge, reveals that his failftigs in the job had, in time, -become so demonstra- bly substantial, -and ongoing,' that McMahon would have been discharged from the TSI operation at that time in any event. • The General Counsel contracontends that the present- ly advanced reason of ""poor performance" as a cause of " discharge is but pretext, no matter how compared. That the discharge for a "poor performance" is pretextual is itself, clearly demonstrated, so argues the General Coun- sel, from the absence of Employer documentation 'of any ongoing poor 'performance evaluation in McMahon's file as is to be found in the file of numerous other employees where that was the case. Rather, it is the General Coun- sel's assertion that the record establishes that McMahon's salaried night TSI work was performed in a manner clearly within the same standards of acceptable perform- ance which Respondent had theretofore found satisfac- tory for its other employees; and, accordingly,- pretext is shown in the asserted reason of "poor performance". from the 'extremely disparate treatment afforded McMa- hon when compared with other 'employees who are shown by Employer's own records as to have been fre- quent•beneficiaries of prolific counsellings, warnings and cised discretion independent of employer's established policy; or partici- pated directly in employer 's policyviaking process Id. at 194 In the latter regard a responsibility for assisting with revisions of policies and procedures to fill new needs was deemed not specific enough as to form, for a present disposition Here there is more basically no showing that McMahon had any assignment to regularly participate directly in Em- ployer 's policymaking process 19 Though it was also in Yeshiva considered that the faculty played a predominant role in such employment status considerations as hire, tenure, sabbaticals, termination , and promotion, which have both manage- nal and supervisory characteristics , the Supreme Court did not reach, or primarily rely on them , id at 686 fn . 23. None of these factors is found herein PEOPLE'S TRANSPORTATION SERVICE 265 other contended progressive disciplinary measures rou- tinely"utilized by Respondent, but then, other than for contended union reasons , inexplicably withheld from McMahon. The General Counsel makes strong showing on such cases . Employer counters with examples provid- ed of other even more prompt discharges of previously excellent employees- for serious infractions, though the General Counsel for the most part has effectively coun-' tered with the observation that present in most were clear indications of theft or deceit, and/or direct insubor- dination , none of which was present in McMahon's cir- cumstances. Employer essentially has urged that McMahon dis- played an increasing lack of control and/or effective communications with field employees, viz, from failing to effectively control Castallano in Chicago, Lawrence in D.C., and Strang in Wellsboro, prior to his review, to an increasing failure thereafter to control Castallano, Howard, and Pittman in Chicago; Strang in Wellsboro; Verro in Kalamazoo; Lawrence and Stradley in D.C.; and seemingly Witt in Bristol. It may be firstly observed that this argument of failure to control, where the cir- cumstances are that McMahon is not otherwise estab- lished to be a supervisor or a manager, is essentially rel- egated to a bootstrap , or circuitous reasoning , argument for application on those issues. To the extent it-was McMahon's own job responsibility to conduct effective communications with the field in the performance of his job, the evidence does not support a finding that McMa- hon, for his part, failed to carry out his work duties in communicating , or attempting to communicate with Cas- tallano and Howard in Chicago, Uglow in Harrisburg, Lawrence in D.C., Witt in Bristol, or other named em- ployees (e.g., Verro in Kalamazoo, Pittman in Chicago, Strang in Wellsboro, or Stradley in D.C.). Neither did he fail to record instances when he could not contact them. Even if the aspect of control were to be addressed on some - other basis as related to McMahon 's own work performance , the argument advanced was not . convinc- ing. First it is unpersuasive with regard to statutory Su- pervisor Castallano and lead driver Howard in Chicago, for reasons earlier treated in depth , and similarly as to Lawrence whether he be viewed field supervisor or lead driver. Nor was it convincingly shown as to the others named. With regard'to Strang particularly, the credited evidence does not warrant a finding at all that McMahon failed to control Strang before his review by Mayo. No- tably there was not a hint of such in Mayo's written De- cember employee rated evaluation. To the contrary his concurrently submitted written memo reveals Mayo's evaluation then was, "Perhaps his strongest point is his ability to relate well to all types of people, especially over the phone." The problem that McMahon had with Strang in January was determined to be in a causative nature no different from that which Mayo experienced with him (and others), and that Norton had also experi- enced on the occasion of ordering Strang's discharge, most of which Bruno was well aware. To the extent such contentions were advanced on Verro, Pittman, or even Witt they are not convincing, for reasons earlier related . Of all the individuals named, only Stradley appears with some 'supporting evidentiary base, and that limitedly relating to McMahon dispatch of Stradley to Bristol on January 12 , to extent appearing as contrary to Mayo explicit instruction . It seems clear that the Bristol to D.C. backlog driver Bowman, under' Em- ployer's established policy, was not to be turned around, and particularly so with the rash of accidents experi- enced by Employer. The only presumption seemingly is that McMahon should have dispatched someone else but, on this occasion, McMahon had already made such ef- forts, and Employer never made an effective showing of who was otherwise available to do the job; and it is un- likely having explored being fresh out of ideas with Mayo, that if rental of truck and/or driver was deemed the more feasible in that circumstance , Mayo would not have so directed McMahon. Essentially there were four so-called major incidents that Mayo advanced with the contention that it showed to him McMahon's performance had deteriorated to the point he became convinced of Bruno's asserted view that McMahon's performance or, the TSI desk was so unsatis- factory that he realized that McMahon was not only able to assume additional responsibility, he was failing in the responsibilities he had and should be replaced. The first such advanced incident was of McMahon allowing Stradley to drive a defective truck, which upon close review was shown not supported but, to the contrary, itself contraindicated not only by credible McMahon tes- timony but by the weight 'of evidence arising from the status of various related documentation of record. Then, too, Mayo's initial assertions that it was McMahon who had assigned Stradley to the December runs to Bristol was not borne out, to say nothing of the confirming effect of his own acknowledgment that Mayo did not really begin to become displeased with McMahon's per- formance until early January. The second such major in- cident related to McMahon 's asserted failure to afford Verro adequate help with a tow on January 3, which itself was shown on close inspection of surrounding cir- cumstances and background to rest on a strained base vis-a-vis related documentation, especially - in light of prior McMahon-Verro background, Verro's (uncontest- ed)-lack of candor with McMahon, and Mayo's own dis- cipline of Verro in connection with that incident,'by re- quiring Verro thereafter. to report even one-half earlier to avoid any repetition of the initiating delayed start. The third and fourth major incidents were respectively the dispatch of Stradley on January 12, 1981, above men- tioned, and lastly the Vogelsong incident of February 3 and 4, 1981 . As to the latter incident , there is major con- flict between Bruno's and Norton's account on the one hand , and Mayo 's on the other ; and there was even dis- crepancy, or inconsistency, in Mayo's account with the only related and produced documentation, while McMa- hon's account thereon of receiving communication from Vogelsong after the fact only appeared the more sup- ported. What in the end has emerged is that McMahon in Jan- uary was regularly working 48 hours a week on the TSI desk, and averaging 3 5 hours a week driving under cir- cumstances mutually beneficial to him and his Employer; with the record made showing there are essentially no 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD written criticisms on his TSI operational work perform ance in his file as there are to be found in the case of numerous other employees most particularly other dis patchers and/or even manager trainees the predischarge reviews that are submitted by his supervisors severally relate old events administrative paper work failings that appeared confessed as essentially common to Mayo as well as McMahon and only one of which reviews at best treats in general fashion any operational deficiency that eventualized as the heart of Employers defense for its actions with an asserted decision reached to replace him in the future as soon as possible that his direct supe nor Mayo was wholly unaware of but not done and even then a supposedly triggering incident for discharge on February 3-4 1981 advanced which on analysis is revealed as porous with conflict and discrepancy in rela tion by Respondents witnesses and with the one most immediately involved and reporting thereon to Bruno with asserted remarkable Bruno reaction not aware thereafter that was the reason for discharge the next day It was the responsibility of the Employer to offer con vincing evidence that McMahon so increasingly failed in his performance on the TSI desk and did so in such manner that it be made clear that Employer would have discharged McMahon at this time in any event Employ er s evidentiary offering does not so convince me All of Employers other arguments as advanced at hearing or in brief do not otherwise so convince me as they do not pass muster of Mayo s own written acknowledgement as of December that McMahon had done everything asked of him nor persuade me to a contrary finding where as serted subsequent major declared incidents do not In that connection I have considered and concluded as overstrained and opportunistic under all the circum stances Mayo s faulting of McMahon for his treatment of the Hamilton delenous call on December 6 in having Howard check on Hamilton after a second call still well prior to Hamilton s scheduled arrival, but not before about an hour had passed from a first unusual call of Hamilton Respondents own assertions on delayed reac tions by McMahon in handling postal matters do not make a distinguishable or convincing case on 5500 prob lems on McMahon shift vis a vis the same being expen enced on Mayo and Norton shift Nonetheless there are two additional areas deemed worthy of an additional review and analysis The first is with regard to the testimonial evidence of Bruno that in early December his initial reaction to McMahon s re quest for more money was that he felt McMahon was holding him up, and that he then and there decided sev erally that McMahon was not the man he wanted but that he would continue McMahon in his employ until he got over the busy period and then handle it If that had been the real operative reason for McMahon s discharge in early February with the seasonal business declining one would have expected some clear corroborative testi mony of events There is none in the written reviews that are in evidence The closest arguable related offer ing seemingly was Norton s testimonial recollection that in January he did not hold out much hope that McMa hon would succeed However Norton did not base that on an awareness of Bruno s adverse and preemptive reac tion based on a Bruno perceived McMahon effort to hold him up for more money in early December but to his own assessment of McMahon s earlier performance that was not itself convincingly supported when scruti nized There was no hint of it from Mayo Rather as noted elsewhere herein there was substantial contraindi cation of any such determination by other Bruno evi dence The second matter for final review has to do with a brief revisit of McMahon s and Norton s testimony as to the content of the discharge interview with Employer s full defenses now presented and considered There is no question that McMahon worked very hard in December 1980 and January 1981 for Employer But that is not the direct issue in this case other than in bearing on Bruno s assertion that it seemed to him in January that McMa hon had lost interest in the job I have difficulty with a ready acceptance that Bruno was not fully aware how many hours McMahon had been actually working on both TSI and instate courier driving But neither is the relevant issue one of Employers fairness to McMahon though his treatment of McMahon as an employee coin pared with other employees may well be a factor for consideration on motivation as the General Counsel urges The basic question under the Act s purview is whether the General Counsels evidence has ultimately shown that McMahon was discharged in violation of Section 8(a)(3) and (1) of the Act, as was earlier shown prima facie because Employer believed that McMahon was en gaged in protected conduct in that he was believed by his Employer not to be telling Employer all that was going on among the Chicago drivers who were engaging in union activity but to the contrary on the basis of a recent report received from others believed observed ac tually being both sympathetic to Chicago drivers union activities sentiments, and aspirations for union organiza tion to which Employer stood in declared opposition and reportedly as well to have attempted to conceal it The burden became Employers inter aha, to show that it would have discharged McMahon on that occa sion in any event If it only so much as advanced his re lease because of such discriminatory motivation it has violated the Act The conversation between McMahon and Norton as reported by each has great bearing on the motivational issue it being McMahon s version that Norton essentially admitted operative was a discriminatory reason for his abrupt termination and Norton s version that the discus sion was only McMahon s lousy work performance I have earlier noted that the earlier finding of McMahon credit on this conversation on weight of credible evi dence was not without some reservation because Norton was an astute and proven manager With a mind now to a final review of all of Respondents evidence present ment first I do not overlook the potential bias nexus be tween McMahon s considerable work effort for his Em ployer that was followed by an abrupt previously un forewarned discharge and his subsequent testimomally uncorroborated attribution to Norton who carried out that discharge, of a telling discriminatory motivational PEOPLE'S TRANSPORTATION SERVICE exposition, no more than I have not overlooked the logi- cal nexus of just such a remark as plausible in explana- tion for an -abrupt, unlawful ' termination of an employee who has performed his work without previously having received any written reprimand or counseling indicative of any operational failure, let alone operational failures of the -order advanced herein. Similar careful review of Norton's assertions as to the advanced triggering, inci- dent for McMahon's discharge, rather than now serving as additional support for Norton's account and offset to McMahon's version, are now but revealed to contain fur- ther infirmity of conflict. It is concluded that the weight of the entire evidence, considered as a whole, has failed to support Employer's last defense that McMahon's per- formance had become so increasingly poor that Employ- er would have discharged McMahon on February 5, 1981, in any event. Finally, where many reasons are ad- vanced for Employer's action, and none found persua- sively so, there is independent warrant to conclude an- other, and where that very unlawful motivation is prima facie shown, the search surely need not continue, see Shattuck 'Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir 1966). I have considered Employer's offered evi- dence in support of its contention that it has discharged certain employees, with ' good records, without warning, and it is concluded and found the same is insufficient in the circumstances of the case to warrant finding that Employer would have discharged McMahon at this time in any event. It is thus unnecessary to review in detail the General Counsel's effective showing of Employer's long tolerance of other employees, nor of Employer's willingness to subsequently reemploy certain employees, e.g., dispatcher and driver Robinson, even after dis- charge for unquestionable cause. However, I specifically would not include in that category, as the General Coun- sel also urged, former Vice President of Marketing and Sales Paul Hightower, who, after resignation in June 1981, is shown to have been temporarily reemployed by Bruno, under special circumstances; for a brief period in 1982.20 Accordingly it is concluded and found that Re- spondent discharged McMahon on'February 5; 1981, in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. People's Transportation Service , Inc. and Minute Man Transit Inc., the Respondent Employer herein, to- gether with, inter alia, Transportation Services of Ken- tucky, Inc., Transportation Services of Mississippi, Inc., and Transportation Manpower of New York, Inc. are a single employer. ' 20 The circumstances of Hightower 's initial resignation , his subsequent difficulties , and the reasons for Employer's subsequent aid to him in those difficulties were previewed by Employer to the General Counsel and before me in chambers as involving sensitive,.but wholly immaterial, mat- ters, urged as potentially harmful to the individual if made public. With Charging Party 's agreement , Bruno's testimony thereon was taken under seal, and only such sensitive matters ruled by me as wholly immaterial preserved under seal. I remain of the view these matters are in nature both wholly immaterial and' of sufficient sensitivity that they should remain closed rather than needlessly be made public, though , of course, available for Board (or court) review and publication, should any warrant to do so appear to a reviewer The closed testimony of Bruno is identi- fied in the record as exhibit entitled "The reason for Employer 's action." 267 2. Respondent Employer is an employer within the meaning of Section 2(2), (6),_ and (7) of the Act; and Re- spondent Employer is fully able to remedy the unfair labor practices found herein. 3. Teamsters Local Union 25 a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers' of America, and the Independent Union, each. respectively, is a labor organization within the meaning of Section 2(5) of the Act. 4. In early to mid-January 1981, by its National Sys- tems Manager Ken Mayo, Respondent Employer interro- gated its employee Joseph McMahon, in the office, as to which of the Chicago drivers McMahon thought would be for the Union, in-violation of Section 8(a)(1) of the Act. . 5. On February 5, 1981, by-its Vice President of Oper- ations, Richard Norton, Respondent Employer, in viola- tion of Section 8(a)(1) of the Act, informed its employee, Joseph McMahon,- that he was not telling Employer all that was going on as instructed, and that he was being discharged because of a report recently received by Em- ployer that McMahon had been observed being sympa- thetic on the phone with a Chicago driver about the ac- tivities , sentiments , and aspirations for the union organi- zation of its Chicago' drivers, and had thereafter attempt- ed to conceal it. 6. In its belief that its employee, Joseph McMahon, was not reporting all that was going on in regard to Chi- cago driver union activity, but rather engaged in union activity in being observed as sympathetic on the phone with a Chicago driver about the union organizational ac- tivity of its Chicago drivers and attempting to conceal it, Respondent Employer discharged its employee, Joseph McMahon, for those reasons on February 5, 1981, in vio- lation of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, in violation of Section 8(a)(1) and (3) of the Act; I shall recommend that it be ordered to cease and desist therefrom and to take cert ain affirmative actions designed to effectuate the policies of the Act. I have found that Respondent Employer discharged Joseph McMahon in violation of Section 8(a)(3) and (1) of the Act. I fmd it necessary to order it to offer Joseph McMahon immediate and full reinstatement to his former position or, in the event his former position no longer exists, to a substantially equivalent one, without preju- dice to his seniority or. other rights and-privileges; and to make the employee whole for any loss of pay or other employment benefits he may have suffered as a result of the unlawful discharge by payment to him. of a sum of money equal to the amount he normally. would have earned from the date of the discrimination to the date of Respondent 's offer of reinstatement, less net interim earn- ings, with backpay to be computed in the manner as de- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner pre- scribed in Florida Steel. Corp., 231 NLRB, 651 (1977); and see generally Isis Plumbing Co., 138 NLRB 716 (1962). I further find a broad cease-and-desist order is not war- 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ranted in this case as Respondent Employer has not dem- onstrated a proclivity to violate the Act, nor engaged in such egregious or widespread misconduct as to demon- strate a general disregard for employees' fundamental statutory rights, Hickmott Foods, 242 NLRB 1357 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 ORDER The Respondent Employer, People's Transportation Service , Inc. and Minute Man Transit Inc., Dedham, Massachusetts , its officers, agents , successors, and as- signs, shall 1. Cease and desist from (a) Interrogating employees about the union activities, interests, and sympathies of fellow employees. (b) Telling any employee that the employee is being discharged because of a report received that the employ- ee was observed engaged in union activities and had at- tempted to conceal it. (c) Discharging employees because of a belief they are engaged in union or protected concerted activities. (d) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights under the Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act. (a) Offer Joseph McMahon immediate and full rein- statement to his former position or, if that position no longer exists , to a substantially equivalent position, with- out prejudice to his seniority and any other rights and privileges. (b) Make whole Joseph McMahon for any loss- of earn- ings or other employment benefits he may have suffered by reason of the discrimination practiced against him, in the manner set forth in the remedy section. (c) • Remove from its files any reference to the dis- charge of Joseph McMahon and notify him in writing that this has been done, and that evidence of the unlaw- ful discharge will not be used as a basis for future per- sonnel actions against him. - (d) Preserve and, on request , make available to the Board or its agents for examination and copying , all pay- roll records , social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facility in Dedham , Massachusetts, copies of the attached notice marked "Appendix."22 21 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations , the findings , conclusions , and recommended Order shall, as provided in Sec. 102 .48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 22 If 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 Na- tional Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an_Order of the Nation- al Labor Relations Board " Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent -immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what • steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives' of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL. NOT coercively question you about 'the union activities, interests, or sympathies of your fellow employees. WE WILL NOT tell any employee that the employee is being discharged because of a report received that the employee was observed engaged in union activities with another employee, and had attempted - to conceal it. WE WILL NOT discharge or otherwise discriminate against any of you for supporting any union. WE WILL NOT in any like or related manner interfere with , restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Joseph McMahon immediate and full reinstatement to his former position or, if that position no longer exists , then to a substantially equivalent position, without' prejudice to his seniority or other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits result- ing from his discharge , less any net interim earnings, plus interest. WE WILL notify Joe McMahon that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. PEOPLE'S TRANSPORTATION SERVICE, INC. AND MINUTE MAN TRANSIT, INC. Copy with citationCopy as parenthetical citation
