Cirker's Moving Co.

National Labor Relations Board - Board Decisions

May 24, 1994

313 N.L.R.B. 1318 (N.L.R.B. 1994)

1318
313 NLRB No. 237
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent excepts to the judge’s decision only with regard
to his recommendation that backpay and reinstatement be ordered.
Specifically, the Respondent argues that Sec. 10(c) of the Act pre-
cludes the Board from awarding discriminatee Murray backpay and
reinstatement and that the purposes of the Act would not be effec-
tuated by his reinstatement.
Contrary to the Respondent, Sec. 10(c) does not preclude the
Board from ordering that discriminatee Murray be reinstated. Sec.
10(c) prevents the Board from providing a remedy for an employee’s
discharge if that discharge was for cause. Here, the judge found, and
we agree, that Respondent violated Sec. 8(a)(3) and (1) by condi-
tioning Murray’s return to work on his agreement to forego certain
union activity (i.e., serving as shop steward). The lawfulness of
Murray’s prior discharge is not before us. We make no finding nor
order any remedy, regarding that discharge. However, to remedy the
violation found (unlawfully conditioning reinstatement), reinstate-
ment with backpay, from the date of the violation, is proper. See
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187–189 (1941). See
also Allis Chalmers Corp., 231 NLRB 1207 (1977).
2 Aces Mechanical Corp., 282 NLRB 928 (1987), enf. denied 837
F.2d 570 (2d Cir. 1988), relied on in part by the judge, is distin-
guishable from the present case with regard to the issue of deferral.
The court in Aces Mechanical specifically determined that the min-
utes of the arbitral hearing established that the arbitrators were pre-
sented with evidence concerning the subject matter of the charge (an
offer of reinstatement conditioned on surrendering the union steward
position) and thus the court concluded that the Board erred by fail-
ing to defer to the arbitration award. In contrast, in the instant case,
the parties stipulated that the alleged settlement offer with regard to
Murray was not raised at the arbitration hearing by any party. As
the judge found, no evidence was submitted and the arbitrator did
not hear or consider the settlement offer that is the subject of this
proceeding. Hence, the judge correctly found that the issues before
the arbitrator and the unfair labor practice issue here are not factu-
ally parallel.
3 The judge included an order to expunge any reference to
discriminatee Murray’s discharge from the Respondent’s files. Inas-
much as the discharge was neither alleged nor found to be unlawful,
the expunction remedy is inappropriate and we shall delete it from
the recommended Order.
In this regard, we believe that Retlaw Corp., 310 NLRB 984
(1993), is distinguishable. In that case, the employer had made a de-
cision to discharge the employee for a lawful reason, but the deci-
sion had not yet been effectuated. The employer then offered to con-
tinue the employment, provided that an unlawful condition was met.
The employee did not meet the condition and was therefore termi-
nated. But for the unlawful condition, there would have been no ter-
mination. Thus, an expunction remedy was appropriate. By contrast,
in the instant case, the termination was lawful. The unfair labor
practice was the subsequent refusal to reinstate unless an unlawful
condition was met. Since the termination was lawful, an expunction
remedy is not appropriate.
Cirker’s Moving & Storage Co., Inc. and John B.
Murray. Case 2–CA–25169
May 27, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 22, 1993, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respond-
ent filed exceptions,1 a supporting brief, and a reply
brief and the General Counsel filed a brief in opposi-
tion to the exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Cirker’s Moving & Storage Co., Inc., New York, New
York, shall take the action set forth in the Order as
modified.
1. Delete paragraph 2(c) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 pro-
tected concerted activities.
WE WILL NOT condition your employment on your
relinquishing your right to act as union steward.
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 John B. Murray immediate and full
reinstatement to his former job or, if that job is no
longer available, to a substantially equivalent position,
without prejudice to his seniority or other rights, privi-
leges, or working conditions, and WE WILL make him
whole for any loss of pay or other benefits he may
have suffered as a result of our discrimination against
him, less any interim earnings, plus interest.
WE WILL notify Local 814, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO in writ-
ing, with a copy to John B. Murray, that we have no
1319CIRKER’S MOVING CO.
objection to Murray resuming his position as the
Union’s steward.
CIRKER’S MOVING & STORAGE CO.,
INC.
Suzanne K. Sullivan, Esq., for the General Counsel.
Stuart H. Bompey, Esq. and Theresa C. Mannion, Esq.
(Orrick, Herrington & Sutcliffe), of New York, New York,
for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was heard by me on October 8, 1992, at New York, New
York. The complaint alleges that Cirker’s Moving & Storage
Co., Inc. (Cirker’s or Respondent) conditioned the reinstate-
ment of employee John B. Murray, the Charging Party (Mur-
ray), who had previously been discharged, upon his resigna-
tion from his position as shop steward for Local 814, affili-
ated with International Brotherhood of Teamsters, AFL–CIO
(the Union), in violation of Section 8(a)(1) and (3) of the
Act. In its answer, Respondent claimed that the Union, not
Respondent, proposed Murray’s conditional reinstatement,
and asserted as affirmative defenses that the complaint is
barred by an adverse final and binding arbitration and that
its refusal to reinstate Murray was reasonable, in good faith,
or for just cause.
All parties were provided full opportunity to participate, to
present relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Posthearing briefs
were received from both the General Counsel and Respond-
ent and have been carefully considered. On the entire record
in this case, including my observation of the witnesses and
their demeanor, I make the following
FINDINGS OF FACT
A. Jurisdiction and Labor Organization Status
Respondent, a New York corporation, with an office and
place of business in New York, New York, at all material
times has been engaged in the interstate and intrastate trans-
portation of freight, including used household and office
goods. At all material times, Respondent has been an em-
ployer-member of the Movers and Warehousemen’s Associa-
tion of Greater New York, Inc. (the Association), made up
of various employers in the freight transportation industry,
one purpose of which is to represent its employer-members
in collective bargaining with various labor organizations, and
has authorized the Association to represent it in negotiating
and administering collective-bargaining agreements with var-
ious labor organizations, including Local 814, International
Brotherhood of Teamsters (the Union).
Annually, Respondent, individually, and the Association’s
various employer-members, collectively, perform services
valued in excess of $50,000, for enterprises within the State
of New York, which enterprises meet a Board direct test for
jurisdiction, exclusive of indirect inflow or indirect outflow.
On the basis of the foregoing, I find, and Respondent admits,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. I find, and Re-
spondent also admits, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
B. The Unfair Labor Practice Alleged
1. The collective-bargaining relationship
For at least 50 years Cirker has had a collective-bargaining
relationship with the Union covering its employees engaged
in moving and storage work. Through its membership in and
authorization of the Association, Cirker has been an em-
ployer party to a series of the Association collective-bargain-
ing agreements with the Union, including one effective from
April 1, 1989, until March 31, 1992. Article 10(V)(5) per-
mits immediate discharge of an employee, inter alia, for
‘‘drinking alcoholic beverages during duty hours.’’ Such a
discharge, is made subject to the agreement’s grievance ma-
chinery under section 10(V)(6). A joint labor management
board, consisting of six representatives appointed by the As-
sociation president and three members appointed by the
Union with each side casting one vote, shall have the power
and the duty to receive and investigate complaints of em-
ployers and violations by employers of provisions of the
agreement relating, inter alia, to wages, hours, and conditions
of work, and to provide hearings thereon. All disputes, griev-
ances, and controversies of any nature between the parties
which cannot be adjusted by the parties’ representatives,
shall be submitted to the joint board and if deadlocked, by
a tie vote, the American Arbitration Association shall be the
exclusive form for the determination of such matters (arts. 34
& 36A & B).
Under another article, the Employer recognizes the right of
the Union to appoint and remove shop stewards. The Union
shall appoint a shop steward from the Employer’s seniority
list. The shop steward’s authority shall not exceed: 1. The in-
vestigation and presentation of grievances; 2. The trans-
mission of routine messages and information from the local
union (art. 17A & B). In a further paragraph the Employer’s
authority is recognized to impose proper discipline, including
discharge, in the event the shop steward has taken unauthor-
ized strike action, slowdown, or work stoppage in violation
of the agreement (art. 17D).
While witnesses for both the Employer and Union testified
that the relationship was generally amicable over the years,
certain occurrences during the incumbancy of Murray as
shop steward presented an issue as to whether animus had
developed on the part of Respondent toward Murray’s legiti-
mate conduct as steward. This will be presented and dis-
cussed, infra.
2. Murray’s service as steward, the events relating to
his termination, and his invocation of the
grievance/arbitration procedures
Murray was employed by Cirker for approximately 4 years
as a driver until his termination on September 6, 1990. At
the time of his termination, Murray was shop steward for the
warehouse, chauffeurs (drivers), packers, and helpers em-
ployed in the bargaining unit under the agreement. Although,
as noted, the Union could appoint its shop steward to serve
at Cirker’s, it was the Union’s practice, in order to encourage
democracy among its membership, to have the men elect
their steward. Murray ran for the position and was elected
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
steward by his own men and served for 2 years until his dis-
charge.
According to Paul Panepinto, vice president of the Union,
Murray was a good shop steward. In his capacity as vice
president, Panepinto negotiates contracts, becomes involved
in any labor disputes which arise with contracting employers,
and attempts to settle them and any grievances which are
pursued. He had periodic contact with Murray on regular
monthly visits to Respondent’s facility, or more frequently if
problems arose calling for his presence or involvement.
Panepinto testified to a number of instances when Re-
spondent showed distress and resentment with Murray’s ex-
ercise of his steward duties. Bart Cirker is Respondent’s vice
president in charge of operations and its principal officer in
dealing with the Union on a daily basis. His uncle, Stanley
Cirker, is Respondent’s secretary-treasurer, acting president,
and in charge of financial matters, and was the founding
principal and for many years, until recently, in charge of its
daily operations. On at least three or four occasions, Burt or
Stanley Cirker called him to say Murray was like overdoing
his job, explaining, in effect, that he was doing too good a
job as shop steward.
On one occasion Murray had complained to Respondent
that he wanted to check to make sure that a gasoline tank
buried at the facility which had previously supplied gasoline
to an old fuel pump now crated up but still located there was
not still full of gasoline and creating an environmental and
safety hazard. In conversation with Panepinto the Cirkers
took offense to Murray’s raising of this concern, and said
‘‘Come on, this guy’s not letting us breathe here.’’ Panepinto
responded he’s doing his job.
Another time, Murray had complained on safety grounds
when the Cirkers sought to have four men placed in the cab
of the truck on moving and storage assignments, when the
cab had normally held only three employees. Murray con-
tended such a practice was unsafe, as a driver he was unable
to shift gears, and it was hard for him to steer the truck.
Murray had refused to drive with the fourth man in the cab.
As a result, Respondent had been obliged to revert to the
standard of three men in the cab and to utilize a second truck
on jobs calling for a fourth workman.
Panepinto later independently recalled another complaint
Murray had made to Respondent about its failure to reim-
burse the men for the fees charged them for cashing their
paychecks. The Cirkers had called him to complain about
Murray’s conduct, saying since when do we have to pay peo-
ple to cash their paycheck. Panepinto told them that’s the
law, and he supplied Murray with documentation from the
Department of Labor to pass along to Bart Cirker which set
forth the legal requirement to pay the men. There was no
formal grievance filed, but Cirker was made to see the error
of his ways, and Respondent started to reimburse the workers
when they cashed their paychecks during the workday.
Panepinto explained that it was the Union’s practice to seek
in the first instance to resolve disputes which arose on the
job, verbally, because grievances filed in writing were re-
quired to be submitted to the joint board for determination
if not adjusted, thus bringing into play a more formal, en-
larged dispute hearing mechanism.
Panepinto related that he first learned about Murray’s dis-
charge early in the evening of the day it took place, on Sep-
tember 6, 1990. On that date, Respondent had terminated
three employees, driver and steward Murray, Donald
‘‘Whitey’’ Butler, a regular helper, and George Lunney, an
extra helper working that day on referral from the Union in
accordance with a contract provision providing for union re-
ferral of applicants not on, or after exhaustion of, the em-
ployer’s seniority list (art. 10(P)(1)). The next morning he
went to the Cirker warehouse at about 7 a.m. and spoke with
Bart Cirker. Bart said Murray had been terminated because
he was drinking during working hours. Panepinto said that
according to his conversation with Murray, he, Murray, had
been on a dinner break, and there’s nothing wrong with stop-
ping for a sandwich in a bar. Cirker maintained he had
caught Murray drinking when he went into the bar. After this
conversation, Panepinto filed for a joint labor-management
(joint board) meeting.
About 2 weeks later, and before the convening of the joint
board, Panepinto testified he telephoned Stanley Cirker and
told him there was a good chance he was going to lose, and
why didn’t he just put the guy back to work and that would
be the end of it. Cirker replied he would get back to
Panepinto. About a day or two later, Stanley Cirker called
back Panepinto and said, ‘‘Listen, tell Johnny Murray I’ll
give him his job back if he would resign as shop steward.’’
Panepinto said he would talk to Murray and get back to
Cirker.
Panepinto then contacted Murray and Donald Butler, told
them what Stanley Cirker had said, and asked for their posi-
tion. Both employees rejected Respondent’s offer.
The joint board hearing then took place within a few days
or a week thereafter, on September 19, 1990. As to Lunney,
the joint board concluded there was insufficient evidence to
terminate him and he was thereafter placed back on the
union list. As to Murray and Butler, the joint board dead-
locked, and the Union filed for arbitration on their behalf.
About a week after the joint board hearing, Panepinto
again called Stanley Cirker and told him, because of the
deadlock there’s a good chance of arbitration, ‘‘You’re going
to lose and that will involve all this backpay, overtime.’’
Panepinto added ‘‘your [sic] talking about big numbers
here.’’ Panepinto then asked, ‘‘Why don’t you sweeten the
pie a little but [sic]?’’ Stanley Cirker said he’d get back to
Panepinto. A day or so later he telephoned Panepinto and
said, ‘‘Listen, I’ll throw in three weeks backpay, I’ll give
him his job but he would have to give up his position as
shop steward.’’
Panepinto again went to see Murray and Butler and they
both again said no to this offer.
Subsequent to the joint board hearing, and before the arbi-
tration hearing was held on January 14, 1991, Murray filed
a charge with Region 2 of the Board in Case 2–CA–24720
on October 24, 1990, alleging that he was impermissibly ter-
minated by Respondent because of his union activities and
because of his union stewardship. On or about December 10,
1990, the Region deferred this charge to the pending arbitra-
tion proceeding.
Before the arbitration hearing went ahead on January 14,
1991, the various participants had arrived and were waiting
in the room or an adjoining hallway. As Panepinto was
standing just inside the doorway of the hearing room talking
with employee Butler, he saw Peter Furtado, union secretary-
treasurer, talking with Stanley Cirker 7 feet away but did not
hear them. Furtado next went over to Panepinto, and said
1321CIRKER’S MOVING CO.
that Stanley told him the offer still stands but this time he’d
jack it up a week to 4 weeks’ pay. Panepinto understood this
offer was made to both Butler and Murray. Butler then said
he’d accept it and go back to work. Panepinto and Furtado
then called Murray over, and Panepinto told him, ‘‘Listen,
Stanley upped the offer to 4 weeks’ backpay, he’ll reinstate
you but you have to give up your shop steward’s position.’’
Murray said no, he wanted to go through with the arbitration
hearing. Panepinto emphatically denied that he or any other
union representative first proposed that Murray step down as
shop steward.
Since Butler’s case had been resolved, the arbitration hear-
ing went forward on Murray’s grievance and concluded that
day. The parties were each represented by counsel, the Union
by Bruce Levine and Respondent by Stuart Pompey, its
counsel in the instant proceeding. Among the witnesses who
testified were Bart Cirker and John Murray. Arbitrator Rich-
ard Adelman issued an opinion and award on January 30,
1991. The arbitrator found that on the day of the discharges,
September 6, 1990, Murray had been assigned to drive a
truck, and assisted by Butler and Lunney, to deliver voting
machines from a warehouse to various polling sites for a
New York City primary election. After making an initial de-
livery they ate lunch to about 3:30 p.m. and then loaded vot-
ing machines for a second run. Upon receiving instructions
from dispatcher John Avrutis by telephone to proceed on the
run into overtime, the three-man crew departed the ware-
house, made various deliveries in the area of 90th Street and
Second Avenue in the Borough of Manhattan, and before
making the last one assigned, parked the truck and at about
7:05 p.m. entered a bar on 92nd Street and Second Avenue.
Bart Cirker and James Pantazis, a dispatcher, who had been
engaging in surveillance of the crew because of a belief by
Cirker that he had detected the odor of alcohol on the breath
of several employees, observed the men enter and went in
themselves. They observed each man seated at the bar with
a bottle of beer in front of him and drinking from a glass.
Cirker and Pantazis testified that Murray acknowledged he
had been ‘‘gotten’’ and handed over the keys of the truck
to Pantazis. Cirker told them they were fired. After Cirker
and Pantazis left the bar and reached the truck, Murray came
after them and said ‘‘We were on supper break, that’s what
I’m going to tell Pauly.’’
Arbitrator Adelman noted that Murray testified he had in-
formed the dispatcher on duty that they were going to take
a supper break, that they had visited the bar to have sand-
wiches and were about to order them, and he did not have
a beer or drink any in the bar.
Cirker argued that Murray was ‘‘drinking alcoholic bev-
erages during duty hours’’ in violation of section 10(V)(5),
and had no authorization for, and was not on, a supper break.
The Union suggested that Murray was discharged because he
was the shop steward, did not get along with certain manage-
ment personnel, including Stanley Cirker and the dispatcher
Avrutis.
Arbitrator Adelman sustained the discharge, finding that
Murray, who had no authorization to take a supper break,
was drinking an alcoholic beverage at 7:05 p.m. while still
on duty in violation of the agreement, and thus warranting
his immediate discharge. The arbitrator also discounted the
Union’s claim that Murray was discharged because he was
shop steward, noting Murray’s own testimony that he did not
have any particular problems with Bart Cirker and that he
thought the Company was generally fair.
The parties stipulated that the alleged settlement offer with
regard to Murray, described earlier, was not raised at the ar-
bitration hearing by any party. In fact, no settlement offers
were raised at the arbitration hearing.
On or about June 14, 1991, Murray filed the instant charge
alleging that Respondent, immediately prior to the arbitration
hearing, impermissibly conditioned his reinstatement on abdi-
cating his shop stewardship.
Earlier, on May 4, 1991, the Regional Director dismissed
Murray’s earlier charge, which he had deferred pending the
arbitration. Murray’s appeal of this dismissal was denied by
the General Counsel’s Office of Appeals in Washington,
D.C., by letter dated June 12, 1992.
On cross-examination, Panepinto clarified that in his first
conversation with Stanley Cirker he had sought reinstatement
of both Butler and Murray, and that Cirker’s offer to rein-
state was made with respect to both employees but did in-
clude a requirement that Murray gave up his steward posi-
tion. When Butler rejected the offer he said he was going to
stay with the shop steward.
As to Murray, he denied any wrongdoing, wanted to be re-
instated the right way, and refused to give up or lose some-
thing (his stewardship) when he wasn’t wrong.
Again, in his second approach to Stanley Cirker after the
joint board hearing, Panepinto noted he was again urging re-
instatement for both employees. As to Cirker’s conditioning
Murray’s return on his loss of his steward’s position,
Panepinto was asked and denied that he told Cirker it was
okay with him. Panepinto replied, in a firm, perhaps even an
indignant tone, ‘‘what do you mean, okay with me?,’’ then
noting, in response to other questions as to whether it was
unacceptable to the Union, or whether the Union had no
problem with it, ‘‘No, it’s not my place to say what’s not
acceptable’’ and ‘‘of course not. Johnny Murray wants to
give up his shop steward’s job that’s his business. He can
give it up at any time he wants without even being fired.’’
(Tr. 51.) Panepinto and the Union’s position were made
abundantly clear, even if not stated in so many words, that
they were not about to take Murray’s union position away
from him, were not about to agree with Cirker to such a re-
sult, and that only Murray, himself, could make that deci-
sion, in any case, and, in particular in this case, where his
reinstatement to his job before arbitration hinged on his re-
sponse.
After receiving Stanley Cirker’s last response after the
joint board hearing, increasing the backpay offer, Panepinto
was asked on cross-examination as to Butler’s and Murray’s
responses when he contacted them, and replied that Butler
said he would do whatever the shop steward did and Murray
said he would go to arbitration with it. Panepinto did not ask
him why.
During his cross-examination Panepinto acknowledged that
in his prehearing affidavit he had indicated that before arbi-
tration proceeded he saw Furtado meeting with Stanley and
Bart Cirker. When asked if this was correct, Panepinto re-
plied that if that’s what he wrote down he guessed he must
have said it. While the affidavit conflicts with Panepinto’s
trial testimony that he saw Furtado conversing only with
Stanley Cirker before Furtado came over to where he was
standing in the doorway with Butler, I find that Panepinto
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was not comfortable with the affidavit version and his re-
sponse above shows as much. I credit Panepinto’s trial ver-
sion, indeed, he shortly reaffirmed it when he recalled
Furtado came over and repeated the proposal that Stanley
Cirker had made to him, and I do not take this inconsistency
as a major internal conflict sufficient to impeach Panepinto’s
testimony as to his involvement in the series of events in-
cluding his earlier conversations with Stanley Cirker, and
Furtado’s recounting of his own conversation with Stanley
Cirker on the eve of the arbitration.
Panepinto repeated his recollection of the proposal for the
two employees which Stanley Cirker had submitted to them
through Furtado. He didn’t recall any agreement incorporat-
ing Butler’s acceptance of the offer, certainly not one he
signed that day. However, when Respondent’s counsel then
showed him a settlement agreement providing for Butler’s
withdrawal with prejudice of his discharge grievance and his
immediate reinstatement but with a disciplinary warning no-
tice in view of his 20 years of service, good performance,
and the adverse effect of a termination on his ability to col-
lect full pension benefits, Panepinto acknowledged his signa-
ture and that he had forgotten about the agreement which he
believed was executed sometime after the arbitration. In
paragraph 4 of the agreement Butler is listed as receiving 3
weeks of backpay, contrary to Panepinto’s testimonial recol-
lection of the arbitration eve offer of 4 weeks. Again,
Panepinto’s failure to recall his signing an agreement memo-
rializing the parties’ resolution of Butler’s grievance does not
serve to discredit his testimony and neither does the rel-
atively minor discrepancy between the January 14, 1991
backpay offer to which he testified and the one to which the
parties’ agreed. It may also have been the fact that the offer
to Murray was 4 weeks’ pay and to Butler was 3 weeks so
that no inconsistency as to the amount for Murray is evident.
See Furtado’s recital of events, infra.
Respondent finally sought to show that Panepinto, contrary
to his testimony, had placed Murray and Butler together
when Furtado came over and relayed Cirker’s final settle-
ment offer. Panepinto maintained, consistent with his direct
testimony that Furtado spoke to Butler and himself at the
time and Murray was then called over. The discrepancy, if
any exists at all, is minor and fails to discredit the main
thrust and significant aspects of Panepinto’s recital.
Panepinto’s failure to recount the amount of the backpay
offer in his affidavit, other than describing it as ‘‘some back-
pay’’ is hardly an inconsistency and certainly not worthy of
Respondent counsel’s efforts to portray it as such.
Finally, Panepinto was unable to explain Butler’s arbitra-
tion eve acceptance of an offer he had previously rejected in
solidarity with his fellow employee, Steward Murray. Butler
did not explain his acceptance, but it is evident from the
agreement entered on his behalf, and later testimony by Re-
spondent witnesses, that Butler’s reinstatement was made to
enable him to secure a full pension, something which an em-
ployee would naturally be loathe to forfeit if the opportunity
to secure it was then made available to him. This last oppor-
tunity appears to have overridden his concern with Murray’s
forced loss of his steward position.
Peter Furtado’s testimony corroborated Panepinto’s basic
presentation. Furtado recalled that while waiting for the arbi-
tration hearing to get underway, after talking with his com-
pany counterpart, Union Counsel Bruce Levine suggested he
get together with the owner of the Company, Stanley Cirker,
to discuss the case and see if they could work something out.
At that point Furtado went over to Stanley Cirker in the hall
away from the others, and Stanley Cirker told him that he
would take Whitey Butler back in his employ with backpay,
he believed it was 3 weeks, and he would also take John
Murray back with 4 weeks’ backpay, under the stipulation
that he would resign as shop steward. Furtado told Cirker he
would propose that to John Murray and Whitey Butler and
see what they said.
Furtado next went over to Murray, Butler, and Panepinto
and told them, look, Stanley Cirker just made this offer.
Whitey, he’ll take you back with about 3 weeks’ backpay.
And he told John Murray that Cirker would take him back
as well and he would give him 4 weeks’ backpay provided
he would resign as shop steward. Butler told him he would
accept the offer and Murray said he would take his chances
in arbitration. They then proceeded into the hearing room.
Furtado told union counsel of the result of his talk with Stan-
ley Cirker.
On cross-examination, Furtado denied he had made any
proposal to the men. Stanley Cirker gave him those propos-
als. He just passed them from one person to another. Yet,
like Panepinto, he also felt that anything that is reasonable
to get a man his job back he’ll propose. Had Murray accept-
ed the proposal made, it would have been perfectly okay
with him and the Union. Yet he offered no opinion or advice
to Murray when he passed along Stanley Cirker’s offer.
Furtado’s testimony is strengthened, not weakened, by Re-
spondent counsel’s producing and including in the record a
contemporaneous set of notes, which Furtado’s took of the
significant events of the day of the arbitration. In his notes,
Panepinto wrote,
Prior to Hearing: an agreement was reached, to sever
Whitey and reinstate him to his position with three (3)
weeks backpay. Whitey accepted. Union and Company
asked Murray if it would be acceptable to him to get:
1) job reinstated
2) one (1) month backpay
3) removal of shop stewardship—forever.
This was not acceptable to Murray therefore arbitra-
tion proceeded.
In interpreting ‘‘union and company asked Murray,’’ Re-
spondent is urging the court to conclude that the offer to
Murray was joint, originating with both parties. It is evident
from both Furtado’s direct testimony, his later testimony
under cross-examination and later redirect examination, that
he was relaying to Murray a proposal made by Cirker but
which neither he nor the Union would have rejected had
Murray accepted it. Indeed, these notes independently serve
to establish in my judgment that Respondent not only en-
gaged in arbitration eve negotiations with the Union regard-
ing both men but that Respondent proposed that Murray for-
feit his elective office of steward, contrary to Stanley
Cirker’s own testimony, in which he later denied making any
such proposal.
I am convinced that Furtado’s carefully prepared contem-
poraneous summary of the salient events of that day, both
before and during the presentation of testimony, represents
accurately the positions taken by the parties both prior to and
1323CIRKER’S MOVING CO.
during the arbitration. Of course, it is Furtado’s written re-
cital of the offer to Murray which is most significant in this
case and which must be analyzed closely in determining Re-
spondent’s legal responsibilities toward him.
On further cross-examination, Furtado was careful to note
that Bart Cirker was not privy to his conversation with Stan-
ley Cirker but was also standing some distance away in the
hallway. The only Respondent representative present and to
whom he was directed and referred by union counsel was
Stanley Cirker.
In its defense Respondent called to the witness stand both
Bart and Stanley Cirker.
Bart Cirker denied that the Company’s relationship with
John Murray when he was shop steward was any different,
either worse or better, than with other union shop stewards
who preceded or succeeded him. Significantly, however, nei-
ther Bart Cirker nor Stanley Cirker, when he later took the
witness stand, were asked about nor denied that either of
them had expressed resentment about Murray’s pressing of
complaints as described and reported by Union Vice Presi-
dent Panepinto.
Bart Cirker noted that Murray’s case was the first time Re-
spondent had given to arbitration with the Union. Over the
last 10 years, about 10 disputes had been submitted to the
joint board.
Bart Cirker testified that a short time after the joint board
hearing his uncle, Stanley Cirker, told him that he had a con-
versation with Paul Panepinto regarding reinstatement of
both Butler and Murray. Stanley said Panepinto asked with
regard to Murray if we would consider taking him back with
the possibility of not being shop steward. Bart could not re-
call if backpay was discussed between the two. Stanley said
he told Panepinto that he couldn’t answer at that moment. He
had to speak to others, namely Bart and other people in the
organization. Stanley Cirker told Bart that he also asked
Panepinto if Murray was aware of this offer, was it an offer
coming from Murray or just from the Union. Bart Cirker’s
understanding was that Panepinto was going to check with
Murray and get back to Stanley with that. Bart Cirker contin-
ued that it later came back to Stanley from Panepinto that
Murray was not interested in such an offer and we then pro-
ceeded on to arbitration.
In this discussion with his uncle, Bart Cirker said he
couldn’t take Murray back under any circumstances. He had
caught him drinking, he’s a driver, and he would not take
him back.
On the day of the arbitration Bart Cirker did not meet with
Furtado or Panepinto prior to the actual hearing. But Stanley
came over to him and said that Furtado had approached him
and asked if Cirker would consider taking back Butler as he
had only several weeks to go to obtain a pension and had
been with the Company in excess of 20 years. Based on his
lengthy period of good service and Stanley’s opinion, Bart
was willing to go along to permit Butler to work long
enough to earn his pension and then retire.
Bart further testified that prior to the actual arbitration
hearing, Stanley told him that the Union had reiterated their
question as to whether the Company would be interested in
taking Murray back under the same terms and conditions
without being shop steward again. Bart did not recall wheth-
er backpay was an issue at this point. Stanley told Bart he
he had told the Union no at that point. Bart’s own view was
that the Company’s position was going to be strong enough
at the arbitration to win the case outright, so that there was
no reason to compromise. Furthermore, in the interest of
public safety, although not under the contract, it made a dif-
ference to Bart Cirker whether the individual caught drinking
was a driver rather than a helper.
During his cross-examination, for the first time, and con-
trary to his earlier denial that he had spoken to the Union
prior to the joint board hearing, Bart Cirker noted that he
probably spoke to the Union the morning after the discharges
when Panepinto came down to the facility to discuss the mat-
ters with him.
As to Bart Cirker’s finding the Company’s relationship
with Murray no better and no worse than under prior shop
stewards, he now acknowledged that Cirker may have been
investigated by the Department of Labor, although he was
not aware when John Murray was shop steward but not to
his knowledge under prior stewards. Murray’s objecting to
the practice of putting four men in the front seat of a cab
also meant that the Company was now going to have to pay
for an extra van for the fourth man, contrary to its practice
before and during part of the time Murray was shop steward.
Furthermore, since Murray became steward Cirker was now
paying for check-cashing privileges for its employees. Bart
Cirker explained that under the prior steward, the bank which
employees used to cash their checks was on the street corner
of the facility which employees could visit at their conven-
ience. After that bank closed and employees had to go sev-
eral blocks and spend more time to cash their checks, ‘‘it
was brought to [his] attention’’ and Cirker made arrange-
ments to pay a check-cashing establishment nearby to per-
form this service for its employees. It is evident that it was
Murray, supported by Panepinto, who brought the issue to
Cirker’s attention. And Bart Cirker shortly confirmed that
this was so. (Tr. 104.)
Bart Cirker was also not aware of any shop steward other
than Murray, prior to Murray, who raised safety violations
under the contract.
Bart Cirker disclosed on redirect examination that when
Murray’s predecessor as shop steward, a Mr. Ahearn, first
began as steward in 1985 or 1986 he presented approxi-
mately 40 outstanding complaints to him in an effort to clear
up a lot of problems with the men which had not been dealt
with, and at a meeting with Ahearn and the dispatcher a
great many were resolved, some of which cost the company
money. When questioned closely by the General Counsel on
re-cross-examination as to which of the beefs cost Cirker
money and how much was the cost, Bart could not recall the
particular complaints, not even the nature of them, and didn’t
know how much their settlement cost. Bart Cirker did subse-
quently mention that some of them involved a failure to fol-
low the seniority provisions of the contract on hiring, each
of which cost the Company $150 a day. But he also agreed
that Murray had also processed similar violations while he
was steward. Following the resolution of the accumulated
complaints with Ahearn, he did not process many more in-
volving the seniority provision.
Stanley Cirker claimed to have met John Murray once or
twice to exchange pleasantries and to have had a good rela-
tionship with him. His relations with the Union over the last
10 years were also good.
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sometime in September 1990 Stanley received a phone
call from Bart informing him that he had terminated Murray,
Butler, and a man named Louie after having caught them
drinking in a bar. Stanley next learned that a grievance in-
volving them was going into joint labor-management. He de-
nied having any conversation with Union Agent Paul
Panepinto prior to the joint board meeting.
After it was decided to put the case into arbitration, Stan-
ley Cirker received a message at his office to call Panepinto.
He returned the call. After some pleasantries, Panepinto said
going to arbitration will be costly what with legal fees and
other costs. The arbitrator could favor the employee and cost
you a lot of backpay and maybe you ought to think about
straightening out this thing. He then asked would you con-
sider taking Murray back, not as shop steward, but as a driv-
er for the Company. Stanley replied he’d have to think about
it. Cirker then asked have you spoken to Murray about this
and what’s his attitude. Panepinto said he’d speak to Murray
and get back to Stanley. Stanley Cirker later affirmed that
when he ended this conversation, it was his understanding
that Panepinto had not yet talked with Murray as to whether
Murray would accept coming back as a chauffeur without
being steward. One or two days later, Panepinto called back
to say that Murray would not come back except as shop
steward. Stanley Cirker told Panepinto that they would go to
arbitration.
Stanley Cirker repeated these conversations to Bart Cirker.
Bart told him he didn’t want to take Murray back, neither
as a chauffeur nor shop steward.
On the day of the arbitration, Stanley Cirker swore that he
had a discussion with Peter Panepinto in the corridor outside
the hearing room. There were just the two of them.
Panepinto asked if Stanley would consider taking John Mur-
ray back, forgetting about the shop steward situation and
he’d come back as a helper. Stanley answered no, he was not
going to reverse his opinions, and they would go to arbitra-
tion. Next Panepinto mentioned that Whitey Butler had about
9 weeks to go in order to get his pension, and would the
Company consider taking him back. You’d have to give him
a couple of weeks of backpay and that will be the end of
the situation. Butler agreed to that.
Stanley Cirker accepted the agreement and understanding
that Butler would retire after Cirker would make up the time
he needed in order to qualify for his pension.
Before agreeing, Stanley Cirker relayed this offer to his
nephew Bart Cirker who disagreed and wanted both cases to
go into arbitration. Stanley noted that since he was the senior
officer of the Company he accepted the Butler offer but not
the one involving Murray.
Stanley Cirker denied at any time making any offer to the
Union to reinstate Murray under any conditions, certainly not
an offer to reinstate him as long as he wasn’t the shop stew-
ard. In Stanley’s view, he had to go by the rules of the union
contract. Since Butler had worked for the Company for 20
years, he knew him well, and the Union had asked for help
in getting him his pension, he went along with it.
Interestingly, in contrast to Bart Cirker’s position, it made
no difference to Stanley in weighing their drinking infrac-
tions that Butler was a helper and Murray was a driver.
During his cross-examination by counsel for the General
Counsel, Stanley Cirker now testified that Panepinto never
came to him prior to the arbitration, but that Furtado did.
Cirker did not explain this significant change in the identity
of the union agent with whom he resolved one of the two
pending arbitration cases.
Although Stanley Cirker had told Panepinto he would
think about taking Murray back as chauffeur but not as stew-
ard, and had even asked Panepinto if Murray was aware of
and had approved this offer, he later explained that he never
considered reinstating Murray under such a condition but
never told Panepinto his true feelings. Stanley Cirker’s expla-
nation for this provocative conduct is not convincing.
When asked if it wasn’t true that it was a daily practice,
a regular practice, for employees to have a beer with lunch,
Stanley responded that he didn’t know. He also noted that
the Company ‘‘couldn’t’’ object when employees took a beer
with their lunch.
I have previously noted that Panepinto and Furtado made
credible, consistent presentations of the salient facts, in par-
ticular Panepinto with regard to his interchanges with Stanley
Cirker prior to the arbitration, and Furtado as to his discus-
sion with Stanley Cirker the morning of the arbitration and
his relay of the results of that conversation immediately
thereafter to Panepinto and the two employees, Butler and
Murray.
Both Bart Cirker’s and Stanley Cirker’s presentations con-
tain such inconsistencies and are so improbable in light of
other evidence in the record in regard to Stanley Cirker’s
interchanges with Panepinto and Furtado as to lead me to
discredit their defense that Cirker did not make an offer of
reemployment to Murray conditioned on his relinquishing his
position as shop steward.
Bart Cirker was less than candid and straight forward in
initially denying that John Murray’s tenure as shop steward
created more problems for Respondent than that of his prede-
cessors. By his and Stanley Cirker’s failures to deny their ex-
pressions of resentment made in response to Murray’s press-
ing of informal complaints to Respondent’s conduct or prac-
tices, attributed to them by Panepinto, as well as Bart
Cirker’s later reluctant acknowledgement, inconsistent with
his initial denial, of the extra costs to the Company arising
from Murray’s raising objections to Cirker’s truck manning
and wage payment practices, I conclude that Murray’s per-
formance of his duties as steward was a matter of some con-
cern to Respondent and I do not credit Bart Cirker’s earlier
testimony that Respondent’s relationship with Murray was no
different from its relations with prior or later stewards. Bart
Cirker’s testimony was also vague when it came to whether
and to what extent backpay offers were made in the settle-
ment talks, in particular, with respect to Murray.
In his testimony reporting his conversations with his uncle
after Panepinto telephoned Stanley and Furtado approached
Stanley in the hallway the morning of the arbitration, Bart
Cirker was generally consistent with Stanley’s recital except
for his failure to recall backpay as a topic and the outlandish
claim made by Stanley that the Union offered to have Mur-
ray reemployed as a helper. Such general consistency is not
surprising and relates for more to a conscious attempt by the
two related Respondent principals to avoid liability in this
case than to an independent corroboration of plausible testi-
mony. Bart Cirker also agreed with Furtado and with
Panepinto’s credited trial testimony that his uncle had a pri-
vate discussion with Furtado prior to the start of the arbitra-
tion.
1325CIRKER’S MOVING CO.
1 The collective-bargaining agreement contains no language or pro-
vision placing a greater responsibility, duty, or burden on the shop
steward to comply with its terms, except for the steward being sub-
ject to discipline for an unauthorized strike action, slowdown, or
work stoppage, none of which took place or are present in this case.
Ultimately, it is Stanley Cirker’s recital of his interchanges
with the Union, which Bart Cirker claimed were reported to
him, which must be examined for their trustworthiness.
I do not credit Stanley Cirker that Panepinto first con-
tacted him after the joint board hearing. It was consistent
with the Union’s efforts to resolve disputes informally, inso-
far as possible, that Panepinto would have sought to settle
the two regular employee grievances before they were for-
mally presented to the joint board. Apart from the timing of
their initial contact, I find it inconceivable, given Panepinto’s
strong feelings about employee determination and autonomy
in arriving at settlement terms, generally, of employee dis-
ciplinary grievances and his consistent and firm expression
of the Union’s view that only Murray, himself, could aban-
don his shop steward position, that Panepinto would suggest
at all on their first contact, as testified by Stanley Cirker, that
Murray would renounce his union role in return for reinstate-
ment as driver. Neither is it conceivable in any event, that
Panepinto would have done so without first procuring
Murray’s agreement to such action as Stanley Cirker also tes-
tified.
Stanley Cirker changed the identity of the union agent who
approached him with an offer as to both employees on the
eve of the arbitration, between his direct and cross-examina-
tion. Furthermore, he now added a union proposal which is
unbelievable, that Murray, a driver for the 4 years of his em-
ployment, aside from his status and stature as steward, would
accept a position as helper. As noted, even Bart Cirker did
not report that he received this portion of the Union’s last
minute offer from his uncle and I find that it was never
made.
Stanley Cirker was acting president and chief financial of-
ficer and continued to be sufficiently involved in the busi-
ness operations to be aware of Murray’s functioning as stew-
ard, particularly insofar as his complaints resulted in addi-
tional costs of operation. Stanley Cirker never denied he was
aware of Murray as steward or that his nephew, Bart, would
not have consulted him about the pending grievances and
possible resolutions short of arbitration. Indeed, Bart prompt-
ly consulted Stanley the evening of the discharge. I further
find that Stanley Cirker was aware of Bart Cirker’s expres-
sion of animus toward Murray’s exercise of his shop steward
duties and that Bart Cirker’s hostility underlay his own set-
tlement offer regarding Murray.
It is significant that Stanley Cirker made the decision to
settle Butler’s case after prior consultation with Bart and
against Bart’s consistent position that both Butler and
Murray’s terminations should stand (although Bart consid-
ered Butler less responsible as helper). As senior company
officer he admittedly made the final decision to accept the
Union’s offer, modifying his prior firm stance against
waiving contract breaches. I find that as senior company offi-
cial he also made the offer to the Union which was relayed
to Murray that Murray could have his job back if he gave
up his position as shop steward. The deadlock at the joint
board did not provide any advance indication as to how the
arbitration might play out, and while Bart Cirker believed the
case against Murray was strong, Stanley Cirker had limited,
but good relations with Murray, had final independent au-
thority to resolve Murray’s grievance, and had always main-
tained good relations with the Union over 50 years of busi-
ness activity.
Stanley Cirker’s good sense in working out Whitey But-
ler’s grievance probably led him to believe that Murray’s
case could be settled as well at the same time so long as he
could be gotten ‘‘off the company’s back.’’ Stanley Cirker
never testified that his conversations with either Panepinto or
Furtado were on advise of counsel, neither his earlier tele-
phone contacts with Panepinto nor his arbitration eve discus-
sion with Furtado. The Butler memorandum was not pre-
pared that day but was drawn up probably by counsel after
the principals had agreed. Likewise there was no reason to
consult counsel because Respondent’s conditional offer had
been consistently rejected by Murray, the last time the morn-
ing of his arbitration.
I also find that Murray, in rejecting the Respondent’s con-
ditional offer, never stated or implied that he was doing so
solely to seek reinstatement with full backpay. Recall that
Panepinto reported that Murray’s initial reaction to Stanley’s
telephone offer included a statement of his refusal to lose
something, an obvious reference to his stewardship. The
backpay first offered him was a fair or reasonable amount
given the fact that only weeks had elapsed since his dis-
charge, and his future tenure as driver was being assured.
What was consistently missing from Respondent’s offer was
the restoration of his union position. The reinstatement with
some backpay was vindication for Murray and the Union’s
belief that his job had been improperly or unfairly removed.
Until his union status was restored Murray’s grievance was
not being appropriately remedied. That Respondent’s prin-
cipals may have erroneously believed that as steward Murray
owed a greater duty to comply with contractual requirement
than other employees,1 did not excuse them from seeking to
punish Murray in his capacity as union agent, thereby caus-
ing the Union to lose stature in the eyes of unit employees.
Analysis
As I have found, above, the Respondent offered to rein-
state Murray to his former job as driver, provided he resign
his union position as shop steward. Murray’s right to hold
union office is protected under Section 7 of the Act. An em-
ployer is not free to refuse employment because the applicant
has been designated as shop steward. Aces Mechanical
Corp., 282 NLRB 928, 930 (1987). Similarly, conditioning
reinstatement to an employee’s former position from which
he had been discharged upon his agreement that he not serve
as chairman or committeeman of the Union for the duration
of the next two collective-bargaining contracts has been
found by the Board to violate Section 8(a)(1) and (3) of the
Act. Sycon Corp., 258 NLRB 1159 (1981). Such conduct
places an employee in the position of having to make a co-
erced choice between foregoing his employment or foregoing
his Section 7 rights. Dravo Corp., 228 NLRB 872, 874 fn.
7 (1977). The natural and foreseeable consequence of such
conduct is to discourage active membership in the Union by
its employees and, particularly, to discourage employees
from serving as stewards on behalf of the Union. Id. at 874.
Since the designation of a union steward and the proper per-
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formance of a steward’s duties are protected under the Act
as a legitimate union activity, discrimination based on des-
ignation as a steward, or, as in this case, conditioning rein-
statement on the relinquishment of that designation, violates
Section 8(a)(1) and (3), and union animus is inherent in such
discrimination. See Commercial Contracting Co., 283 NLRB
784 (1987); see also John P. Bell & Sons, Inc., 266 NLRB
607 (1983). An employer’s restrictions on employees’ and
union’s rights to be represented by persons of their choice
cannot be diluted in the absence of compelling evidence of
legitimate considerations. Dravo Corp., supra.
Respondent argues in its brief that Murray’s conduct of
drinking during working hours, as confirmed by the arbitra-
tor, was such a flagrant violation of the collective-bargaining
agreement that Respondent was justified in conditioning
Murray’s job restoration on his agreement not to serve as
steward. It should first be noted that Stanley Cirker, who
made no distinction between driver and helper, was amenable
to the reinstatement of the helper who had participated in the
incident at the bar. While justifying Butler’s special treat-
ment on humanitarian grounds, Respondent has certainly
weakened its position that those who participated in this fla-
grant contractual violation can only be deemed to have for-
feited or, at least restricted their legitimate participation in
Cirker’s affairs.
Aside from its inconsistent treatment of the wrongdoers,
Respondent’s argument is not well founded. And its reliance
on Bethenergy Mines, 308 NLRB 1242 (1992), is misplaced.
In Bethenergy a group of employees had engaged in an un-
protected, unauthorized work stoppage at the employer’s
premises and extended this misconduct by picketing an unre-
lated employer. The Board held that by engaging in such
conduct in contravention of the contract’s mandatory proce-
dures for the peaceful resolution of disputes over health care
benefits, the employees had exhibited contempt for the col-
lective-bargaining agreement and it was not arbitrary for the
Respondent to seek to prohibit them from holding union po-
sitions that required them to deal with management for the
duration of the contract.
Contrary to the situation in Bethenergy, there is no nexus
here between Murray’s breach of the contract and the prohi-
bition from permanently serving as union steward which Re-
spondent required from him. By permanently denying Mur-
ray his prior union position, Respondent has clearly not im-
posed a ‘‘condition narrowly drawn to fit the situation and
designed to be prophylactic.’’ Id. at 1242. No contract provi-
sion required Murray to serve as a model for fellow employ-
ees. There is no evidence that Murray’s appearance in the
bar with a glass of beer in front of him on the occasion in
question which led to his discharge shows he was not in full
possession of his mental faculties or physical capabilities on
that occasion or any other and not fully qualified to perform
his duties as both driver and shop steward. Respondent failed
to offer any history of conduct engaged in by Murray inimi-
cal to Respondent’s legitimate interests on any occasion over
his 4 years of employment.
Murray’s conduct may have breached the contract provi-
sion at issue; it did not evidence either contempt for the
agreement or for the process of peaceful resolution of dis-
putes thereunder. None of the cases, including Bethenergy,
may be relied on to assert otherwise. In the absence of any
evidence that Murray in any way abused his privilege of act-
ing as steward in presenting grievances or other matters on
behalf of his fellow employees, see Sycon Corp., supra, 258
NLRB at 1160, I dismiss this defense as lacking any merit
whatsoever.
Respondent also claimed and, indeed filed, a written mo-
tion in support at trial, that the evidence regarding its con-
duct toward Murray was excludable because in contravention
of Federal Rule of Evidence 408. That rule provides, in sum,
that evidence of offering or accepting a valuable consider-
ation in compromising a claim disputed as to validity or
amount is not admissible to prove liability for or invalidity
of the claim or its amount and neither is evidence of conduct
or statements made in compromise negotiations. The rule
goes on to state, that, ‘‘this rule does not require the exclu-
sion of any evidence otherwise discoverable merely because
it is presented in the course of compromise negotiations. This
rule also does not require exclusion when the evidence is of-
fered for another purpose.’’
Here, the General Counsel is not contesting Murray’s dis-
charge for his participation in the events of September 6,
1990, and a fortiori is not seeking to elicit Stanley Cirker’s
conditional offer to contradict that discharge. ‘‘Rule 408 ex-
cludes evidence of settlement offers only if such evidence is
offered to prove liability for or invalidity of the claim under
negotiation. To the extent that the evidence is offered for an-
other purpose, and to the extent that either party makes an
independent admission of fact, the evidence is admissible.’’
Vulcan Hart Corp. v. NLRB, 718 F.2d 268, 277 (8th Cir.
1983), enfg. in relevant part 262 NLRB 167 (1982). Just as
the court in Vulcan Hart Corp. recognized that the Respond-
ent employer’s statements made in the context of negotia-
tions to settle an employee’s discharge grievance, making his
reinstatement conditional on his resignation from union of-
fice, was independent of his discharge claim which was not
at issue before the Board, so too, in the instant proceeding,
Stanley Cirker’s conditional offer of reinstatement to Murray
was an independent act unrelated to his discharge grievance
and aimed specifically at coercing Murray to forfeit his Sec-
tion 7 rights or his job, in violation of Section 8(a)(1) and
(3).
Contee Sand & Gravel Co., 274 NLRB 574 (1985), relied
on by Respondent, is inapposite. The Board there properly
excluded evidence offered by the General Counsel that dur-
ing the course of negotiations to settle the very unfair labor
practice charges alleging a refusal to bargain forming the
basis for that proceeding, Respondent agreed to execute new
collective-bargaining agreements with the Union. As noted
by the Board, the alleged new collective-bargaining agree-
ments were so closely intertwined with the unfair labor prac-
tices then under discussion that they could not be separated
therefrom. Id. at fn. 1. Thus, the General Counsel’s at-
tempted use of the settlement statements made were not of-
fered ‘‘for another purpose’’ but for the very purpose of
proving agreement, the gravamen of the charges filed and
consolidated with the existing ones after the settlement meet-
ing was held.
Clearly, consistent with the teaching of Vulcan Hart Corp.
and Contee Sand & Gravel Co., the evidence of Stanley
Cirker’s offer is admissible to prove that an independent un-
fair labor practice of coercing an employee from exercising
Section 7 rights encompassed by the complaint took place
1327CIRKER’S MOVING CO.
during settlement discussions on Murray’s discharge griev-
ance which was not in issue in this proceeding.
Respondent raises yet another defense to the complaint, by
way of affirmative defense in its answer, but not in its
posthearing brief, that the complaint is barred by an adverse
final and binding arbitration decision upholding Murray’s
discharge.
I conclude that the General Counsel has met its burden es-
tablished under Olin Corp., 268 NLRB 573, 575 (1984), that
deferral of this proceeding to the arbitrator’s award would be
inappropriate. Under Spielberg Mfg. Co., 112 NLRB 1080
(1955), as amended in Raytheon Co., 140 NLRB (1963), and
further clarified in Olin Corp., supra, the Board will defer to
arbitration awards where the proceedings appear to have
been fair and regular, all parties have agreed to be bound,
the decision of the arbitrator is not clearly repugnant to the
purposes and policies of the Act, and the arbitrator has con-
sidered the unfair labor practice issue. The Board in Olin
concluded that the last standard for deferral would be met if
(1) the contractual issue is factually parallel to the unfair
labor practice issue and (2) the arbitrator was presented gen-
erally with the facts relevant to resolving the unfair labor
practice.
It is evident that the arbitrator had before him as the sole
issue whether John Murray was discharged for just cause as
provided in section 10(v)(5) of the contract. The relevant evi-
dence included whether, and to what extent, Murray engaged
in job misconduct justifying his discharge. The issue in-
volved in this proceeding is whether Respondent’s imposition
of the condition to his reinstatement that Murray resign his
union position as shop steward violated the Act. The evi-
dence bearing on the resolution of that issue relates to events
and conversations which all took place after his discharge.
Thus, the issues are not factually parallel and the arbitrator
was not presented generally with the facts bearing on the un-
fair labor practice issue. See Aces Mechanical Corp., 282
NLRB 928, 930 (1987). While it appears that the Union ar-
gued or sought to present evidence to the arbitrator showing
that Murray was discharged because he was shop steward, it
is also evident that no evidence was submitted, and the arbi-
trator did not hear or consider the settlement offer imme-
diately preceding the arbitration hearing which is the central
issue in the instant proceeding, nor any of the evidence re-
garding Murray’s presentation of grievances and Respond-
ent’s negative reaction to such conduct which relate to Re-
spondent’s motive for the condition attached to the offer. The
parties stipulated that the alleged settlement offer with regard
to Murray was not raised by any party, nor were any other
offers raised (which would have included the one made to
and accepted by Butler). A reading of the arbitrator’s opinion
and award confirms that neither the unfair labor practice
issue nor the evidence bearing on it was considered by him.
Whether Arbitrator Adelman’s award is clearly repugnant
to the Act depends on whether Murray’s discharge can be
considered independent of the conditions Respondent placed
on his achieving the return of his job which, if they had been
agreed to by Murray, would probably have resulted in a set-
tlement of his grievance just as Butler’s grievance was set-
tled on the eve of the arbitration hearing. On balance, I con-
clude that the award is repugnant in the light of the facts of
record in this proceeding. Had Murray’s discharge under the
contract been permitted to resolve the instant proceeding,
such a result would be repugnant to the purposes and policies
of the Act of encouraging employee union participation and
preventing direct employer interference with such activity by
making employment hinge on its renunciation.
Accordingly, I recommend that the Board refuse to defer
this proceeding to that award.
Having concluded that the General Counsel has made a
prima facie showing that Murray’s protected conduct was a
motivating factor in conditioning his reinstatement as a driv-
er on his relinquishing his position as union steward, under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1982), the burden shifts to the Respondent to establish that
it would have taken the same action in the absence of
Murray’s Section 7 conduct. I conclude that it is unable to
do so, and that it has thereby engaged in unlawful conduct
in violation of Section 8(a)(1) and (3).
In its defense, Respondent sought to show that the Union
initiated the conditional offer. In determining the facts, and
in resolving credibility conflicts, supra, I found that neither
union agent, Panepinto nor Furtado, initiated the proposal
that Murray renounce his stewardship. Even if it had, such
arbitrary action by a union against an employee would not
provide a defense to Respondent’s participation in the trans-
mission and agreement to the illegal offer to Murray. An em-
ployer who accedes to a union’s unlawful demands inde-
pendently discriminates against the affected employee and
the Union’s initiation of the proposal provides no defense to
its own illegal acts. Sycon Corp., 258 NLRB 1159, 1160 fn.
2 (1981).
Neither has Respondent sustained its burden of showing
that the Union waived Murray’s right to be shop steward. In
my detailed weighing of the union agents’ testimony on the
subject, I found that the Union practiced a policy of neutral-
ity in evaluating an employer’s request to relieve a member
of the shop steward job. Insofar as the condition Respondent
imposed on Murray’s reinstatement involved his loss of a
union representative position, the Union was loath to rec-
ommend his acceding to the stipulation and studiously re-
frained from offering any advise. It was a decision only the
incumbent employee could make, having in mind both the
personal benefit of job restoration and the loss of status and
effective participation in union affairs and union labor-man-
agement relations which acceptance of the offer entailed.
Under the test enunciated in Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983), and recently discussed and ap-
plied in Aces Mechanical Corp., 282 NLRB 928, 930 (1987),
which requires that a waiver of statutory rights be established
clearly and unmistakably, the Union’s conduct here fell far
short of establishing that such a waiver occurred here. See
Bethenergy Mines, supra, 308 NLRB 1242, 1243 (1992). Fi-
nally, there is serious question whether the Union had the
power or authority to effectuate a waiver of Murray’s partici-
pation in its affairs inasmuch as he was elected to the stew-
ard position by his fellow employees under a longstanding
practice even though the Union’s right of selection is spelled
out in the contract. See Aces Mechanical Corp., 282 NLRB
928 at 930 (1987). As pointed out in the General Counsel’s
brief, such cases as Shenango Inc., 237 NLRB 1355 (1988),
in which the Board validated a union’s removal of a dis-
sident member from an appointed union position, hardly
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Unlike the facts in Aces Mechanical Corp., cited supra, which re-
sulted in a limited Board remedy ordering no reinstatement and
backpay only for the period from Respondent’s conditioning em-
ployee O’Toole’s continued employment on his relinquishing his
right to act as union steward until the issuance of an arbitration
award which sustained his discharge for just cause, Cirker’s unlawful
conditional offer of reinstatement was for an indefinite period of
time and, if accepted, would have obviated the necessity of proceed-
ing to the arbitration on Murray’s earlier discharge. Contrary to Re-
spondent’s argument appearing at p. 27 of its brief, in offering to
reinstate Murray, albeit coupling that offer with an impermissable
condition attached, Respondent was condoning Murray’s prior con-
duct which resulted in his initial discharge. No impediment was
placed in the way of his resuming his chauffeur duties so long as
he resigned his union position. Respondent was thus prepared to ac-
cept Murray back in its employ, and but for Murray’s objection to
the unlawful condition imposed he would have resumed his job.
Under such facts, the only appropriate remedy placing the parties in
the position they would have been but for the unlawful conduct is
to require Murray to be offered reinstatement.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
stands for the proposition that an employee occupying an
elected union position can be removed by the union absent
approval of the employees who choose him as their rep-
resentative in the first place. It cannot be over emphasized
that the Act protects the right of employees to be represented
by persons of their own choice, Syncon Corp., 258 NLRB
1159 (1982), and even the Union would be hard pressed to
sustain Murray’s removal in the absence on this record of
any compelling evidence of legitimate considerations to jus-
tify such a removal.
In this case, where the Employer’s insistence on the shop
steward’s renunciation of his Section 7 rights as the cost of
his job was not based on any valid reasons, but rather, was
motivated by expressed displeasure with aggressive advocacy
of employee interests in the workplace by the steward, a rea-
son which Respondent sought to shield but which may not
form the basis for its conduct, see Southern California Edi-
son Co., 307 NLRB 1426 (1992), the violation of the stew-
ard’s rights under the Act must be sustained. I do so, and
conclude that Respondent has thereby committed unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent Cirker’s Moving & Storage Co., Inc. is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Local 814, affiliated with International Brotherhood of
Teamsters, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. On or about January 14, 1991, by conditioning the rein-
statement of employee John B. Murray who had been dis-
charged on September 6, 1990, to his former position of em-
ployment upon his resignation from his position as union
shop steward, Respondent has discriminated, and is discrimi-
nating, in regard to the hire and tenure or terms or conditions
of employment of its employees, thereby discouraging mem-
bership in a labor organization, and Respondent thereby has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed violations of
Section 8(a)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. Such affirmative action shall include an order that Re-
spondent make John B. Murray whole for any loss of earn-
ings suffered by him by reason of Respondent’s unlawfully
conditioning Murray’s reinstatement to his prior employment
as driver on his relinquishing his right to act as union stew-
ard as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corp., 231
NLRB 651 (1977), and New Horizons for the Retarded, 283
NLRB 1173 (1987). Inasmuch as Murray, but for Respond-
ent’s unlawful conditioning of his reinstatement, would have
been reinstated as driver, I shall also recommend an order
that Respondent offer him reinstatement.2 Additionally, I
shall recommend that Respondent, notify the Union, in writ-
ing, with a copy to Murray, that it has no objection to Mur-
ray resuming his position as the Union’s steward, and ex-
punge from its files all references to his discharge and notify
Murray, in writing, that it has done so.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Cirker’s Moving & Storage Co., Inc.,
New York, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Conditioning the reinstatement to employment or the
employment of any employees on their relinquishing their
right to act as union steward.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer John B. Murray immediate and full reinstatement
to his former job or, if that job is no longer available, to a
substantially equivalent position, without prejudice to his se-
niority or other rights, privileges, or working conditions, and
make him whole for any loss of pay or other benefits he may
have suffered as a result of the discrimination against him in
the manner set forth in the remedy section of this decision.
(b) Notify Local 814, affiliated with International Brother-
hood of Teamsters, AFL–CIO, in writing, with a copy to
John B. Murray that it has no objection to Murray resuming
his position as the Union’s steward.
(c) Remove from its files any reference to the discharge
of John B. Murray and notify Murray, in writing, that this
has been done and that the discharge will not be used against
him in any way.
(d) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
1329CIRKER’S MOVING CO.
4 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
lyze the amount of backpay due under the terms of this
Order.
(e) Post at its office and place of business in New York,
New York, copies of the attached notice marked ‘‘Appen-
dix.’’4 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by a rep-
resentative of Respondent, shall be posted by Respondent im-
mediately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent 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 Respondent has
taken to comply.