Nationsway Transport Service

National Labor Relations Board - Board Decisions

Mar 24, 1999

327 N.L.R.B. 1033 (N.L.R.B. 1999)

NATIONSWAY TRANSPORT SERVICE 1033
Nationsway Transport Service and Gregory Noweski

Local 560, International Brotherhood of Teamsters,
AFL–CIO and Gregory Noweski. Cases 22–CA–
20363 and 22–CB–7933
March 24, 1999
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
BRAME
On May 30, 1997, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
Employer (the Employer) and the Respondent Union (the
Union) each filed exceptions and supporting briefs, and
the General Counsel filed a reply to the Employer’s ex-
ceptions.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order, as modified and set
forth in full below.2
1. The Employer has excepted to, inter alia, the judge’s
failure to defer to the parties’ September 9, 19943 settle-
ment of Charging Party Gregory Noweski’s July 13
grievance over the Employer’s failure to credit and pay
him for work performed on June 3 and 15. The Em-
ployer relies on Postal Service, 300 NLRB 196 (1990),
and Alpha Beta Co., 273 NLRB 1546 (1985), petition for
review denied sub nom. Mahon v. NLRB, 808 F.2d 1342
(9th Cir. 1987). We find no merit in this exception.
As set forth in Postal Service, 300 NLRB at 198, one
of the criteria for Board deferral to a grievance settlement
agreement is that the contractual issue in the grievance be
factually parallel to the unfair labor practice issue in the
Board proceeding. As discussed below, this criterion is
not met here.

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
We also find without merit the Union’s allegations of bias and
prejudice on the part of the judge. On our full consideration of the
record, we find no evidence that the judge prejudged the case, made
prejudicial rulings, or demonstrated bias in his credibility resolutions,
analysis, or discussion of the evidence.
2 We have modified the judge’s recommended Order (1) to conform
to Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Con-
tainer, Inc., 325 NLRB 17 (1997); (2) to delete “interfering with” from
par. B1(c); (3) to include in pars A2(c) and B2(a) the statement that the
Union’s liability for backpay shall terminate 5 days after it notifies the
Employer that it has no objection to the employment of Noweski; and
(4) to require the reciprocal posting of notices. See North Carolina
Shipping Assn., 326 NLRB 280, fn. 1 (1998).
3 All dates are 1994 unless otherwise stated.
The contractual issue in Noweski’s July 13 grievance
was whether the Employer violated article 49, pay pe-
riod, by not paying him for the 2 days in question. The
September 9 settlement of this grievance provided Now-
eski with pay for 1 day (June 3). Crediting him with that
additional day gave him the 30 total working days that he
needed to complete his probationary period and resulted
in his obtaining seniority status and returning to work on
September 12. The unfair labor practice issues in this
case, on the other hand, are: (a) whether the Union vio-
lated Section 8(b)(1)(A) and (2) of the Act by causing the
Employer to discharge Noweski on June 27 in violation
of Section 8(a)(3) and (1) of the Act; (b) whether the
Employer violated Section 8(a)(3) and (1) by discharging
Noweski (more precisely, no longer assigning him
work); (c) whether the Union violated Section
8(b)(1)(A) and (2) by causing the Employer not to place
Noweski at the top of the seniority list in violation of
Section 8(a)(3) and (1); and (d) whether the Employer
violated Section 8(a)(3) and (1) by not placing Noweski
at the top of the seniority list. Thus, the grievance set-
tlement resolved only Noweski’s claim to 2 days’ pay
and did not parallel or encompass the unfair labor prac-
tice issues of whether he was unlawfully deprived of
work between June 27 and September 9, and whether he
was unlawfully deprived of placement at the top of the
seniority list.
Nor does the record support the Employer’s contention
that Noweski agreed, in connection with the grievance
settlement, to reinstatement without backpay and to be
placed in the number two position on the seniority list.
To the contrary, the record shows that the backpay and
seniority issues arose subsequent to the September 9 set-
tlement. Thus, on September 12, when Noweski re-
turned to work, a question was raised as to where he be-
longed on the seniority list. At that time, the Employer
sought guidance from the Union, which advised that
Noweski should be placed in the number 2 position.
Accordingly, on September 12, the Employer published
a new seniority list with Noweski occupying the second
position. Two days later, Noweski filed two more griev-
ances, (a) seeking backpay for the approximately 11-
week period between June 24 and September 9, when he
was not working, and (b) seeking placement in the num-
ber one position on the seniority list. The Union thereaf-
ter processed both of these grievances through arbitra-
tion, with the Employer making the procedural argument
that the backpay grievance was barred by the September
9 settlement of Noweski’s July 13 grievance. The griev-
ance committee rejected the Employer’s procedural con-
tention and denied both of Noweski’s grievances on the
merits.
Accordingly, for all these reasons, we find that the
contractual issue resolved by the grievance settlement is
not factually parallel to the unfair labor practice issues
327 NLRB No. 184
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
raised by the complaint and that, therefore, deferral to the
settlement is not warranted under Postal Service.
2. The judge concluded, inter alia, that the Employer
violated Section 8(a)(3) and (1) of the Act by terminating
Noweski on June 27. More specifically, the judge found
that the Employer ceased assigning Noweski work from
that date on in response to the Union’s June 24 unlawful
request that the Employer terminate Noweski because he
had frustrated the Union’s plan to have another em-
ployee, Raymond Doyle, be the first employee to sign in
on the first day of operation of the Employer’s Parsip-
pany, New Jersey terminal. Under the Union’s plan,
Doyle, rather than Noweski, would have been entitled to
act as the Union’s “spokesman” on the job, performing
the duties normally performed by a shop steward. In
reaching this conclusion, the judge applied the frame-
work for analysis set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). He found that Noweski’s
union activities were a motivating factor in the Em-
ployer’s decision to terminate Noweski, and that the
Employer failed to establish that it would have termi-
nated Noweski in the absence of his union activities.
The Employer excepts to this conclusion on the
grounds, inter alia, that the judge erred (a) by applying
the Wright Line framework for analysis and (b) by char-
acterizing Noweski’s conduct as “union activities.” We
find no merit in the Employer’s arguments. The consoli-
dated complaint alleges, in pertinent part, that the Em-
ployer terminated Noweski pursuant to the Union’s re-
quest that it do so (complaint paras. 8 and 9), and that in
so terminating Noweski the Employer discriminated in
regard to the hire or tenure or terms and conditions of
employment of its employees, thereby encouraging
membership in a labor organization, in violation of Sec-
tion 8(a)(1) and (3) of the Act (complaint para. 15). Ap-
plication of the Wright Line framework for analysis is
entirely appropriate, where, as here, the Employer’s mo-
tive is at issue. See Wright Line, supra, 251 NLRB at
1089. While Noweski’s conduct was not in support of
the Union, and thus was not classic “union activities,” his
signing in first and his resultant top seniority were
clearly opposed by the Union. E.g., Wenner Ford Tractor
Rentals, Inc., 315 NLRB 964 (1994) (Wright Line ap-
plied; discriminatee’s conduct in question was his oppo-
sition to union officials in an internal union election);
Avon Roofing & Sheet Metal Co., 312 NLRB 499, 503
(1993) (Wright Line applied; discriminatees’ conduct in
question was their dissident internal union activities);
Combustion Engineering, 272 NLRB 957, 966 fn. 6
(1984) (Wright Line applied; discriminatee’s conduct in
question was his acrimonious challenge to and disagree-
ment with the union business manager’s interpretation
and application of the collective-bargaining agreement).
3. Contrary to our dissenting colleague, we agree with
the judge’s conclusion that the Union violated Section
8(b)(1)(A) and (2) of the Act by requesting the Employer
to deny Noweski his proper seniority when he returned to
work on September 12 and that the Employer violated
Section 8(a)(3) and (1) by acquiescing in the Union’s
request.
Under the parties’ practice, the employee who arrives
first at a terminal and is put to work first is entitled to the
first position on the seniority list. It is undisputed that
Noweski began work before any other employee at the
Parsipanny terminal. Accordingly, the judge found, and
we agree, that he was entitled to be placed at the top of
the seniority list.
Our dissenting colleague contends that Parsippany
Terminal Manager Burr allowed Noweski to report first
to the job, and consequently be given top seniority, when
the terminal opened for the first time on April 28, not-
withstanding the Employer’s agreement with the Union
that Raymond Doyle would report first and be given top
seniority. Our colleague would not “permit the individual
dealing between Burr and Noweski to trump the agree-
ment between the Employer and the Union.” We dis-
agree. First, there is no showing that, at the time Burr
and Noweski reached their agreement on April 27 for
Noweski to sign in early the next morning, they were
aware of a contemporaneous agreement between Em-
ployer Vice President Wolfe, neighboring South Plain-
field Terminal Manager Brandowsky, and Union Presi-
dent Granello that Doyle (Granello’s son-in-law) was to
sign in first on the morning of April 28. Thus, the record
does not establish that Burr entered into his agreement
with Noweski notwithstanding—i.e., with knowledge of
and in spite of—Wolfe and Brandowsky’s contempora-
neous agreement with Granello.
Second, Burr’s arrangement with Noweski, made in
Burr’s capacity as terminal manager, and absent evidence
of any hiring restrictions placed on Burr by the Em-
ployer, was entirely within his authority to staff the ter-
minal on behalf of the Employer. As such, his agreement
with Noweski was as much an agreement by the Em-
ployer as was the contemporaneous agreement by Wolfe
and Brandowsky with Granello.4
Third, and perhaps most significant, article 3, section
1(c) the collective-bargaining agreement with the Union
provides only that the Union is to be given equal oppor-
tunity with all other sources to provide applicants for

4 Thus, we disagree with our colleague’s characterization of the issue
as whether Burr’s “individual” dealings with Noweski can trump an
agreement between the Employer and the Union. Our colleague does
not dispute that Burr was acting on behalf of the Employer when he
made the arrangement with Noweski, and he assumes that Burr had
authority from the Employer to do so. Thus, the issue is more accu-
rately characterized as whether the Employer’s hiring Noweski, in the
normal course of business, with the attendant assignment of seniority,
was legitimate. We find that it was, particularly in light of art. 3, sec.
1(c) of the collective-bargaining agreement discussed in the following
paragraph.
NATIONSWAY TRANSPORT SERVICE 1035
employment, thus giving the Employer the authority to
hire from other sources as well.5 That is what Burr did.
Accordingly, for these reasons, we find no merit in our
dissenting colleague’s position, and we adopt the judge’s
unfair labor practice findings.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that
A. Respondent Employer, Nationsway Transport Ser-
vice, Parsippany, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Unlawfully terminating its employees pursuant to
the request of Respondent Union, Local 560, Interna-
tional Brotherhood of Teamsters, AFL–CIO, and thereby
encouraging membership in a labor organization.
(b) Unlawfully denying its employees their proper sen-
iority pursuant to the request of the Respondent Union,
and thereby encouraging membership in a labor organi-
zation.
(c) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Gregory Noweski full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Grant Gregory Noweski his proper seniority, by
placing him first on the seniority list of the Parsippany,
New Jersey terminal.
(c) Jointly and severally with the Respondent Union,
make Gregory Noweski whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him. Backpay shall be computed in accor-
dance with F.W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent Un-
ion’s liability for backpay shall terminate 5 days after it
notifies the Respondent Employer that it has no objection
to the employment of Noweski and no objection to the
grant of his proper seniority.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of,
and unlawful denial of proper seniority to, Gregory

5 Thus, we do not agree with our colleague that Burr’s agreement
with Noweski is nullified by art. 6, sec. 2 of the collective-bargaining
agreement, under which the Employer agreed not to enter into any
agreement with its employees, individually or collectively, which con-
flicts with the terms and provisions of the contract. Burr was clearly
acting within the authority provided by art. 3, sec. 1(c) of the collec-
tive-bargaining agreement to hire from any source, including the Un-
ion.
Noweski, and within 3 days thereafter notify him in writ-
ing that this has been done and that the discharge and
denial of proper seniority will not be used against him in
any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
the facility to which the Parsippany, New Jersey terminal
unit employees were transferred copies of the attached
notice marked “Appendix A.”6 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent Employer’s author-
ized representative, shall be posted by the Respondent
Employer 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 Respondent Employer to ensure that
the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent Employer has gone
out of business or closed the facility to which the Parsip-
pany, New Jersey terminal unit employees were trans-
ferred, the Respondent Employer shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent Employer at any time since June 24, 1994.
(g) Post at the same places and under the same condi-
tions set forth in paragraph 2(f) above, and as soon as
they are forwarded by the Regional Director, copies of
the Respondent Union’s attached notice marked as “Ap-
pendix B.”
(h) Furnish the Regional Director for Region 22 signed
copies of Appendix A in sufficient number to be posted
by the Respondent Union in places where notices to its
members are customarily posted.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent Employer has
taken to comply.
B. Respondent Union, Local 560, International Broth-
erhood of Teamsters, AFL–CIO, Union City, New Jer-
sey, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Requesting the Respondent Employer to terminate
its employees, for reasons other than the failure to tender
6 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1036
uniformly required initiation fees and periodic dues,
thereby encouraging membership in a labor organization.
(b) Requesting the Respondent Employer to deny its
employees their proper seniority thereby encouraging
membership in a labor organization.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with the Respondent Em-
ployer, make Gregory Noweski whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent
Union’s liability for backpay shall terminate 5 days after
it notifies the Respondent Employer that it has no objec-
tion to the employment of Noweski and no objection to
the grant of his proper seniority.
(b) Notify the Respondent Employer, in writing, with a
copy to Gregory Noweski, that it has no objection to the
employment of Noweski and no objection to the grant of
his proper seniority.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of,
and unlawful denial of proper seniority to, Gregory
Noweski, and within 3 days thereafter notify him in writ-
ing that this has been done and that the discharge and
denial of proper seniority will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Union office copies of the attached notice marked
“Appendix B.”7 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being
signed by the Respondent Union’s authorized representa-
tive, shall be posted by the Respondent Union and main-
tained for 60 consecutive days in conspicuous places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent Union to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Post at the same places and under the same condi-
tions set forth in paragraph 2(e) above, and as soon as
they are forwarded by the Regional Director, copies of
the Respondent Employer’s attached notice marked as
“Appendix A.”

7 See fn. 6, supra.
(g) Furnish the Regional Director for Region 22 signed
copies of Appendix B in sufficient number to be posted
by the Respondent Employer at all places at the facility
to which the Parsippany, New Jersey terminal unit em-
ployees were transferred where notices to its employees
are customarily posted. Copies of that notice, after being
signed by the Respondent Union’s authorized representa-
tive, shall be returned to the Regional director for dispo-
sition by him.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent Union has taken
to comply.

MEMBER HURTGEN, dissenting in part.
I do not agree with my colleagues’ conclusion that the
Employer and the Union (Respondents) violated the Act
by taking away the top seniority of employee Noweski.
The Employer and the Union reached an ad hoc
agreement that employee Doyle would report first to the
job, and consequently would be given top seniority.
Notwithstanding this agreement, Employer Manager
Burr allowed employee Noweski to report first and to be
given top seniority. I would not permit the individual
dealing between Burr and Noweski to trump the agree-
ment between the Employer and the Union. Indeed, arti-
cle 6, section 2 of the collective-bargaining agreement
seems to nullify such individual dealing.8 At the very
least, it was not unlawful for the Employer and the Union
to give their agreement precedence over the individual
dealing. Thus, the Employer and the Union were privi-
leged to enforce their agreement by giving Doyle senior-
ity over Noweski.
The agreement between the Employer and the Union
was valid. Although it was not required by the collec-
tive-bargaining agreement, neither was it forbidden by
that agreement. It was precisely the kind of interim de-
tail that employers and unions often add to their basic
collective-bargaining agreement.
My colleagues argue that Burr was acting on behalf of
the Employer when he made the arrangement with Now-
eski. My colleagues miss the point. The issue is not
whether Burr had authority from the Employer. I assume
that he did. The issue is whether his dealings with an
individual employee can trump an agreement between the
Employer and the Union.9
My colleagues rely on article 3, section 1(c) of the
contract. That section gives the Union only an equal
opportunity to provide applicants. Thus, the Employer
8Art. 6, Sec. 2 provides:
The Employer agrees not to enter into any agreement or
contract with his employees, individually or collectively,
which in any way conflicts with the terms and provisions of
this Agreement. Any such agreement shall be null and void.
9 The fact that Burr may not have known of the Employer-Union
agreement does not privilege his individual dealing.
NATIONSWAY TRANSPORT SERVICE 1037
was free to hire Doyle and Noweski. However, the issue
here is the relative seniority as between those two hired
employees. The conduct here was designed to effectuate
an Employer-Union accord to give seniority to Doyle.
In sum, it was not unlawful for the Employer and the
Union to enforce their agreement by giving Doyle senior-
ity over Noweski.10
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT unlawfully terminate our employees
pursuant to the request of Local 560, International Broth-
erhood of Teamsters, AFL–CIO, thereby encouraging
membership in a labor organization.
WE WILL NOT unlawfully deny our employees their
proper seniority pursuant to the request of Local 560,
International Brotherhood of Teamsters, AFL–CIO,
thereby encouraging membership in a labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL , within 14 days from the date of the
Board’s Order, offer Gregory Noweski full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL grant Gregory Noweski his proper seniority,
by placing him first on the seniority list of the Parsip-
pany, New Jersey terminal.
WE WILL jointly and severally with Local 560, Inter-
national Brotherhood of Teamsters, AFL–CIO, make
Gregory Noweski whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him, with interest.
WE WILL , within 14 days from the date of the
Board’s Order, remove from our files any reference to
our unlawful discharge of, and unlawful denial of proper

10 I agree with my colleagues that the discharge of Noweski was not
justified.
seniority to, Gregory Noweski, and WE WILL , within 3
days thereafter, notify him in writing that this has been
done and that the discharge and denial of proper seniority
will not be used against him in any way.

NATIONSWAY TRANSPORT SERVICE
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT request Nationsway Transport Service
to terminate its employees, for reasons other than the
failure to tender uniformly required initiation fees and
periodic dues, thereby encouraging membership in a la-
bor organization.
WE WILL NOT request Nationsway Transport Service
to deny its employees their proper seniority, thereby en-
couraging membership in a labor organization.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, jointly and severally with Nationsway
Transport Service, make Gregory Noweski whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against him, with interest.
WE WILL notify Nationsway Transport Service, in
writing, with a copy to Gregory Noweski, that we have
no objection to the employment of Noweski and no ob-
jection to the grant of his proper seniority.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of, and unlawful denial of proper seniority
to, Gregory Noweski, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge and denial of proper seniority will
not be used against him in any way.

LOCAL 560, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL–
CIO

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038

Richard Fox, Esq., for the General Counsel.
Edward Lyons, Esq. (Jones & Keller, PC.), of Denver, Colo-
rado, for the Employer.
Paul Montalbano, Esq. (Schneider, Goldberger, Cohen, Finn,
Solomon, Leder & Montalbano, P.C.), of Kenilworth, New
Jersey, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon
charges filed by Gregory Noweski, an individual, on December
21, 1994, in Case 22–CA–20363, and Case 22–CB–7933, a
consolidated complaint was issued against Nationsway Trans-
port Service (the Employer or Nationsway), and against Local
560, International Brotherhood of Teamsters, AFL–CIO (the
Union or Local 560), on August 23, 1995.
The complaint alleges essentially that on June 24, 1994, the
Union requested that the Employer terminate Noweski, and that
the Employer did so on June 27. The complaint further alleges
that following Noweski’s reinstatement on September 12, the
Union requested that the Employer deny seniority to Noweski,
and that the Employer did so.
The complaint alleges that by this conduct the Employer and
Union violated Section 8(a)(1) and (3) and Section 8(b)(1)(A)
and (2) of the Act.
Respondents’ answers denied the material allegations of the
complaint, and asserted certain affirmative defenses which will
be discussed infra, and on September 25–27, 1996, a hearing
was held before me in Newark, New Jersey.1
Upon the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after considera-
tion of the briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a corporation, having an office and place of
business in Parsippany, New Jersey, has been engaged in the
interstate transportation of freight. During the past year the
Employer derived gross revenues in excess of $50,000 from the
transportation of freight from New Jersey directly to points
located outside that State. The Employer admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Employer and the
Union admit that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Opening of the Parsippany Terminal
The Employer, a nationwide trucking operation, is exten-
sively organized by the Teamsters Union, and employs nearly
5000 employees.
In early March 1994, Peter Granello, the president of Local
560, was advised by a Teamsters official that the Employer
would soon be opening a terminal in Parsippany, New Jersey,
which is within Local 560’s jurisdiction, and wanted to sign a
full freight agreement with the Union.

1 Two pages of the hearing transcript were missing from my copy of
the transcript. The parties supplied them by agreement.
Calvin Wolfe, the vice president for human resources of the
Employer, 1 month later, contacted Granello, and asked if he
could supply two to four employees to open the terminal at 8
a.m. It was agreed that one of the four would punch in earlier
than the others. Wolfe considered this arrangement a binding
commitment by the Employer to the Union.
The collective-bargaining agreement’s provision concerning
hiring states that “when the Employer needs additional employ-
ees, he shall give the Union equal opportunity with all other
sources to provide suitable applicants, but the Employer shall
not be required to hire those referred by the Local Union.”
Wolfe routinely sought referrals through the Union as a ready
source for quickly obtaining qualified employees.
Thereafter, on April 27, Larry Brandowsky, the Employer’s
terminal manager at a nearby facility, called Granello, and re-
quested that Granello send four employees to the new terminal,
at 8 a.m. the next day. Granello, in an effort to avoid a later
dispute concerning seniority rights, suggested that the person
that he proposed as the “union spokesman” arrive earlier than
the rest, and that the times for the other employees be stag-
gered, so that they arrived about 1 hour apart. Brandowsky
agreed to have the spokesman arrive at 7 a.m., but insisted that
the other workers arrive at 8 a.m.
Granello told Brandowsky that the union spokesman was
Raymond Doyle, Granello’s son-in-law. The function of a un-
ion spokesman was to serve as the “eyes and ears” in behalf of
the Union, with the duties of a shop steward, but without the
title or such benefits as superseniority. Jobs having less than 10
employees do not have a shop steward. Doyle was given four
authorization cards and told to have his three coworkers sign
them. Three other employees were contacted by the Union and
told to report before 8 a.m.
Unknown to the Employer officials who dealt with Granello,
on the same day, April 27, Noweski, a union member, was
contacted by Don Burr, a sales representative for the Employer.
Burr asked Noweski if he wanted to work at Respondent’s new
Parsippany facility. Noweski expressed concern that he would
actually have a job at the new terminal, and would have to re-
sign from his current position at Kramer Chemical, which was a
Local 560 job as well. Burr assured him that he would have a
job there, and Noweski agreed to begin work the next day. Burr
and Noweski had worked together at a prior job.
Burr told Noweski that the job was scheduled to begin at 8
a.m., but that he should arrive earlier so that his paperwork
would be completed, and he could begin work.
The following day, April 28, Noweski resigned from his job
at Kramer Chemical, and arrived at the Employer’s terminal at
about 6:45 a.m. He completed an application for employment,
and was assigned to sweep the dock area, which he did at about
7:15 a.m. Noweski began work before any other employee.
Noweski saw Doyle arrive at about 7:25 a.m.
That evening, Doyle told Granello that, rather than the 4
workers expected by the Union, up to 11 employees worked
that day. The next day, Granello visited the terminal and asked
Burr what “these individuals were doing here,” and told him
that this was a Local 560 job. Burr replied that the company has
the right to hire who it chooses.
When the terminal opened, a nationwide freight strike which
apparently the Employer was not involved in, caused a great
amount of work to be available at the Parsippany terminal. Burr
was in charge of the facility for about 2 weeks, at which time
Rex Madsen became the manager for about 1 month, until late
NATIONSWAY TRANSPORT SERVICE 1039
May. Thereafter, Nelson Broaddus took over as terminal man-
ger.
During the tenure of Burr, and for part of Madsen’s service,
the employees were told the night before whether they would
be working the next day. From the opening of the terminal until
mid-May, when the strike ended, everyone who appeared at the
terminal worked. Madsen changed the method of assignments
to a shape system, where workers would appear at 8 a.m. and
would be selected for employment by the terminal manager.
When the strike ended, there was less work, and only five or six
employees worked regularly.
Doyle worked for the first 3 or 4 weeks the terminal was
open, but was not thereafter selected for employment by Burr.
It was reported to Granello by employees that Noweski was “in
bed” with Burr, and that Noweski was selecting the men who
would work, and that members of Local 560 were not being
picked.
Although less work was available, due to the end of the
strike, pursuant to a plan suggested by Noweski, Broaddus
permitted all the employees to work a couple of days per week,
so that all of them would receive 8 days of work per month,
rather than have fewer employees work steadily. Once an em-
ployee works 8 days per month, he is entitled to health and
welfare coverage for the following month.
Granello requested a meeting with Wolfe, and on about May
20 they met. Wolfe testified that the entire meeting concerned
why Doyle was not working, and when he would be put to
work. Granello told him that Burr started off improperly by
hiring the “wrong people,” and that there were “good guys” and
“bad guys” at the terminal. Wolfe asked him to identify the
“bad” workers, but Granello refused. Granello did not ask him
not to work Noweski, whose name did not come up in that
meeting. Granello said that Doyle should have been hired.
Wolfe told Granello that he heard that Doyle was lazy. Granello
disputed that, and asked that Doyle be given a chance to see
how he performed.
After the meeting, Wolfe called George Roberge, the Em-
ployer’s regional manager. Roberge said he heard that Doyle
was lazy, slowed the operation, and he did not want to try out
Doyle. Wolfe called Granello and told him of his conversation
with Roberge, and that he would not be able to work Doyle.
Granello was disappointed.
A few days later, however, Wolfe spoke to Broaddus, and
asked him to give Doyle a chance, saying their poor reports
about him were based only upon hearsay. Broaddus agreed, put
Doyle to work, and later called Wolfe and told him that he was
“pleasantly surprised” and believed that he would be “all right.”
Broaddus testified that he had not heard any unfavorable re-
ports concerning Doyle, who had not been working when he
arrived at the terminal. Broaddus put him to work upon
Roberge’s orders, who said that he should be treated as any
other casual employee.2
Granello testified that his meeting with Wolfe concerned
Doyle as only one of its topics. He conceded asking Wolfe why
Doyle was not working, and when told the reason, denied that
Doyle was lazy. He also told Wolfe that before any employee

2 I reject the Employer’s argument that the Board agent who inter-
viewed Broaddus improperly did so without the Employer’s attorney
being present. The interview was arranged during Broaddus’ employ-
ment, but did not actually occur until after he resigned. Broaddus asked
the Employer for legal representation at the interview, but was encour-
aged by Wolfe to attend alone.
was placed on the seniority list, the Employer should do a
“good background check.” Granello was also concerned that
many Local 560 members were unemployed as a result of the
closing of a nearby trucking company.
In late May, immediately after Broaddus became terminal
manager, Granello visited him, and mentioned certain contrac-
tual issues that should be addressed, such as the absence of a
timeclock, and the fact that the work was being spread among
all employees in order to secure 8 days of work for the purpose
of their welfare coverage. Thereafter, about two or three meet-
ings between Broaddus and Granello were held between May
and mid-June, at the request of Broaddus.3
A meeting between Broaddus and Granello was held on May
26. According to Broaddus, the purpose of the meeting was to
establish a rapport and business relationship, and to review
Broaddus’ concerns concerning problems at the terminal.
Broaddus sought help from Granello in establishing a seniority
list. He showed Granello a list of 10 workers currently em-
ployed at the terminal, and asked if he would recommend any-
one on the list. Granello mentioned Doyle and Barnes. Granello
told Broaddus that there were some bad people on the list, and
that the Employer should be “cautious” and do its “homework”
concerning some on the list. He did not mention who they were
or ask that he not work any employees. That list was prepared
by Burr, and was used by Broaddus when he took over as man-
ager.
Granello testified essentially consistently with Broaddus, ex-
cept that he denied telling Broaddus that there were bad people
on the list, and that the Employer should be careful who it
hired. Granello further told Broaddus that there was still a
“problem” with Doyle, in that he was not working, and as a
result the Union had no representation at the terminal. Broad-
dus requested help in selecting employees for the seniority list,
telling him, according to Broaddus’ testimony, that he had ap-
plications of 10 workers who had been approved for hire, 1 of
whom was Noweski.4 Granello said that the Company did not
accept his suggestion of April 27, which was to start Doyle, and
stagger the employment of the rest of the workers. Granello
advised Broaddus to check the timecards, and establish senior-
ity based upon the employee who was first to punch in, or had
his time marked on the card.
Broaddus testified that, although the timecards were not
available, he learned from the employees the days and times
they started. He told Granello that it appeared that Noweski had
started first on April 28. Granello told him that he had a “prob-
lem” with that. Granello testified that no one other than Doyle
was supposed to have been at the terminal at 7 a.m., and that
his reference to a “problem” concerning Noweski was that the
agreement between the Union and Brandowsky, pursuant to
which Doyle would be the first to be employed, and would start
at 7 a.m., had been violated.
Granello also rebuked Broaddus for agreeing to the arrange-
ment for sharing the work so that the men would receive 8 days
of employment per month so that their welfare benefits would
be covered. Granello told him that such manipulation of days of
work for insurance purposes was not permitted.
3 The precise dates of the meetings are not clear, and certain state-
ments testified about may have occurred at different meetings.
4 Broaddus testified that those 10 men had been picked by himself
and Roberge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040
Broaddus testified that about 1 week after he became em-
ployed at the terminal, Noweski told him of the arrangement
between himself and Burr. Noweski said that a deal had been
made pursuant to which Noweski would start work early on
April 28, and would accordingly be number one on the senior-
ity list when one was established, and in exchange, Noweski
would keep out of the terminal the “riff raff” that the Union
would send. Noweski denied having that conversation with
Broaddus.
B. The Events of June 24
On June 24, Broaddus met with Granello at the union hall.
Broaddus testified that they discussed several matters, includ-
ing Noweski. Granello told Broaddus that he was told that
Noweski called the pension and welfare fund, misrepresented
himself as the shop steward at the terminal, and obtained in-
formation concerning other employees to which he was not
entitled.5 Broaddus replied that that was a union problem, hav-
ing nothing to do with the Employer. Granello answered that he
would bring it to the “council” and prefer charges against Now-
eski. Broaddus repeated that it was a union problem and not a
company problem, and he offered to relay a message that Now-
eski should contact Granello.
Granello also mentioned that he objected to Noweski’s sen-
iority based upon his starting time of 7 a.m. since the Union
had not been given an equal opportunity to have employees
begin work at the agreed-upon time, and that the agreement
between he and Brandowsky was that the job was supposed to
open at 8 a.m.
Broaddus testified that Granello was “quite upset” that the
Union did not have an equal opportunity to have workers repre-
sented by it start work at the same time, and were not now
given an opportunity to work.
Broaddus told Granello that he was not at the terminal when
this occurred, and asked for advice on what to do now. Granello
replied that the timecards should be used to base decisions on
seniority.
Granello also objected to Noweski’s allegedly maintaining
seniority on two jobs, Nationsway, and at Kramer Chemical,
which was not permitted. Broaddus again responded that that
was a union problem, and not a company problem. Broaddus
told him that other people might be guilty of dual seniority,
naming McNamara and one other.
Granello testified that he told Broaddus that Noweski mis-
represented himself as the steward, and obtained information to
which he was not entitled, and that he was the “ringleader”
behind the effort to spread the work among all the employees
so that they could obtain welfare benefits. He also told Broad-
dus that he suspected that Noweski “blackballed” certain em-
ployees.6 He also believed, which he did not mention to

5 Ellen Kaplan, fund administrator, testified that prior to June 1994,
she was told by Granello that his son-in-law would be shop steward at
the new Nationsway terminal. Thereafter, she received a call from
Noweski who identified himself as the steward at the terminal. He
asked for, and Kaplan gave him information concerning the eligibility
for benefits of several employees employed at the terminal. Kaplan
stated that such information concerning others may be given to stew-
ards, but not members. The following day she told Granello that she
spoke to his son-in-law, Noweski. Granello replied that Noweski was
not his son-in-law. Kaplan then told him that Noweski had called, rep-
resenting himself as the steward.
6 Broaddus believed that Noweski and Burr had been involved in the
selection of applicants. Noweski told Broaddus that employee Quirk
Broaddus, that Noweski maintained seniority with two compa-
nies. Granello was told by Broaddus that Noweski was behind
the scheme to share the work so that all employees would re-
ceive 8 days work per month.
Following the meeting, Broaddus called his supervisor,
Roberge, and told him that he met with Granello, and there
appeared to be much confusion at the terminal, including the
fact that employees started work at the same time. He told
Roberge that he learned that Noweski started work at 7 a.m.
with the approval of the Employer. Broaddus called Bran-
dowsky, who told him that he was instructed to begin the job at
8 a.m. Broaddus then called Burr, and was told that Noweski
began work at 7 a.m. because he directed him to clean the dock.
Broaddus testified that following his discussion with em-
ployer officials that day, he had not made any decision concern-
ing Noweski’s employment the next workday, June 27. He
stated that he had a lot of “homework” to do—and a lot was
“going on” which he was not aware of, or knowledgeable
about, which he wanted to investigate further, including deter-
mining whether the information he received was accurate be-
fore he “went forward.”
C. The Events of June 27
Noweski shaped on June 27. When he was not selected for
work, he asked Broaddus for an explanation. Noweski testified
that Broaddus told him that he had a meeting with Granello 3
days before, and that Granello told him that Noweski had cer-
tain problems, including maintaining seniority on another job,
representing himself as the shop steward, attempting to defraud
the pension and welfare fund, and blackballing other union
members.
Noweski protested that the allegations were false, informing
Broaddus that he resigned from his prior job before beginning
work at Nationsway; that he called Fund Administrator Kaplan
and asked about his own benefits, and told her that others
wanted to ask her about their benefits, but not representing
himself as the steward; that he had no input as to which em-
ployees were hired, and did not blackball anyone.
Noweski further testified that Broaddus said that those were
not his problems, but the Union believed that they were prob-
lems that Noweski needed to resolve. Noweski stated that
Broaddus flatly told him that he would not be put back to work
until he “straightened out [his] problems with the union,” and
suggested that he see Granello and “get it straightened out,” and
that Noweski should let him know “how I made out.”
Noweski stated that he immediately visited Granello at the
union office, and asked “what are you doing to me? I’m with-
out a job now. Because you’re making accusations to the com-
pany that don’t have anything to do with the company. Broad-
dus told me he couldn’t work me until [you] and I straightened
our problems out.”
Noweski and Granello discussed each of the issues, with
Noweski giving explanations for each alleged wrongdoing.
Regarding the dual seniority matter, Granello told Noweski that
his pension and welfare records showed that contributions were

had an accident with a truck which he did not report, implying, but not
saying that Broaddus should not employ him. Broaddus was told by
Burr to consult Noweski if he had any questions or concerns about
anyone, and applicants came to the terminal asking to see Noweski
about a job. Nevertheless, Broaddus did not accept at face value what
Noweski told him, and evaluated employees on their own work per-
formance. Noweski denied speaking to Burr about other drivers.
NATIONSWAY TRANSPORT SERVICE 1041
made in his behalf by Kramer through mid-May, and he there-
fore believed that Noweski was still employed by that com-
pany. Noweski told Granello that he resigned from Kramer on
April 28, and that those contributions represented payments
upon sums for accrued vacation, sick, and personal leave, and
days worked during the last week in April. Granello made in-
quires of the Union’s business agent who serviced Kramer, and
Kramer’s terminal manager and bookkeeper who confirmed
Noweski’s explanation. With that, Granello said this matter was
“resolved.” Granello testified, conceding that that issue was no
longer a problem.
Noweski also told Granello that he did not represent himself
as the shop steward in his conversation with Kaplan. Granello
replied that Kaplan told him that he did, and Granello chose to
believe her. Noweski testified that he asked that Kaplan meet
with them, and Granello refused.
Noweski further told Granello that he did not blackball any
employees, and that the terminal manager had no reason to
listen to him. Granello said that he received information from
employees that Noweski did so, and that he and Burr had dis-
criminated against members of Local 560.
Granello also told Noweski that he devised a “scam” with
Broaddus to work 10 employees when there was only work for
5 so that all the employees would be eligible for welfare bene-
fits. Granello said he would not condone that practice. At hear-
ing, Noweski admitted doing so.
Noweski testified that at the end of their discussion, he asked
Granello to call Broaddus and tell him that they resolved their
differences so that he could return to work. Granello testified
that he was just asked to tell Broaddus that Noweski had no
union problems. Granello replied that he wanted to take the
matters to the Union’s executive board which was meeting that
afternoon. Granello testified that he told Noweski that as far as
Granello and the Union were concerned, he did not have any
union problems, but that he wanted to take it to the board.
Noweski asked to be present at the meeting, but the request
was denied as it was a closed meeting. Noweski testified that he
told Granello that if he did not get the matter resolved, he was
not working and had no job. Granello replied that he had to take
it to the executive board, and he would be guided by its deci-
sion.
At the executive board meeting that day, it was decided that
Noweski was a probationary or casual employee since he did
not have 30 days of seniority at the Employer, and since he was
in that category, the Union would not call the Employer on his
behalf, and it did not. Granello testified that, as a casual or pro-
bationary employee, the worker is an at-will employee until he
attains seniority. Accordingly, the contractual grievance proc-
ess is not available to him since the Employer can refuse to
employ him for any reason before he attains seniority.
Granello denied telling Broaddus not to work Noweski, or
not to permit him to attain seniority. Indeed, Broaddus does not
claim that Granello told him to take any action against Now-
eski.
Noweski testified that following the meeting, he returned to
the terminal and told Broaddus that he “justified” all the accu-
sations against him by Granello, and had “straightened” them
out. He informed Broaddus that Granello said he would take the
matter to the Union’s executive board. Broaddus then told
Noweski that he could not work until he had his union problem
straightened out. Noweski, angered, replied that Broaddus was
“rolling over” under the pressure that Granello placed upon
him, and that he believed that Granello would do whatever he
could to ensure that his son-in-law Doyle had number one sen-
iority. Broaddus asked him what difference did it make if he
was number two, three, or four? Noweski, angered during this
“heated” conversation, replied that he would not stand for it,
would not get “fucked” by the Employer or anyone else, that he
had done everything asked to resolve his union problems, and
that he would go to every agency he could to seek redress.
Noweski further stated that Broaddus then told him that he
would not put him back to work until he heard from Granello
that his union problems were resolved, and that Broaddus told
him that “as soon as he heard something from Granello he
would be in touch with me.”
Broaddus’ version of their conversations were that he told
Noweski, at the June 27 morning shape, that it was in his “best
interest” to contact Granello to straighten out “some union mat-
ters.” Broaddus denied telling him that he could not work until
the union matters were resolved. At that point, Noweski be-
came “quite upset” and accused Broaddus of “screwing” him
out of 8 days’ employment for the month, and thus from health
and welfare benefits for the following month.
Broaddus conceded asking Noweski why he would not ac-
cept the number two, three, or four position. Noweski replied
that he had won the first spot “fair and square.” At the hearing,
Broaddus explained that at that time he was aware of the ar-
rangement between the Employer and the Union that employ-
ees would open the job at 8 a.m., and that the plan between
Noweski and Burr, pursuant to which Noweski would appear at
7 a.m. was improper and not authorized by the responsible
officials, Roberge and Brandowsky.
Broaddus testified that Noweski’s accusation that he “rolled
over” to Granello’s pressure implied that he had to accept the
improper arrangement between Noweski and Burr that Noweski
would begin work first. Broaddus stated that he would not do
so, since he knew that Noweski had not properly won the first
place for employment.
Broaddus stated that Noweski threatened him by saying that
he would go to the Federal authorities, and bring a lot of “heat”
on him. At the end of the conversation, Noweski asked if he
should appear for the shape the next morning, and Broaddus
told him that it was an 8 a.m. shape. Broaddus did not tell his
superiors of his confrontation with Noweski because he did not
want to jeopardize Noweski’s future employment possibilities
with the Employer.
Broaddus stated that on June 27, he was aware that Noweski
was very close to attaining seniority—that he needed only 1 or
2 days to make the list. Noweski shaped from June 27 to Sep-
tember 12, and was not selected for employment by Broaddus.
Broaddus gave the following reasons for not picking Now-
eski for work after June 27 (a) he had “homework” to do to see
if the responsible employer representative had authorized
someone to start work earlier than 8 a.m.; (b) Noweski’s em-
ployment references had not been completed, his being the only
application which was not complete7; (c) he refused to be “in-
timidated” by Noweski’s threats; (d) he would try out other
employees; and (e) he wanted to give some time to Noweski to
“cool down.” Broaddus also understood that until an employee

7 In this connection, Wolfe stated during the period May through
September, several employees were approaching 30 days of employ-
ment, at which point the Employer is obligated to place them on a
seniority list, but that their required documents had not yet been re-
ceived.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
worked 30 days in a 90-day period, he was a probationary em-
ployee, and the manager had no obligation to put him to work if
he did not choose to.
On June 27, Broaddus did not tell Noweski that his refer-
ences were not complete, or that one of the reasons for his not
working was that his references were not finalized. His refer-
ences became complete in September, after he returned to
work, and had worked a few days. Broaddus conceded, how-
ever, that in late June, everyone was shaping and working as
their applications were being completed.
Broaddus testified that after June 27, based upon a conversa-
tion with Burr, Broaddus believed that he was being intimi-
dated by Burr. Burr told Broaddus that he owed Burr his job
because Burr recommended him. Burr asked “why are you
doing this to me?” according to Broaddus, a reference to him
refusing to employ his friend Noweski. From this, Broaddus
believed that unless he continued to support the arrangement
between Noweski and Burr, pursuant to which Noweski would
be employed in the number one position, and keep the union
“riff raff” out, it would be “difficult” for Broaddus at work.8
Broaddus stated that when he became aware that if he did not
go along with the arrangement things would be difficult for
him, he “blamed” whatever had happened on the Union. He
told Burr that he had nothing to do with what had occurred, but
rather it was a “union problem,” and that he told Noweski that
he had to straighten out certain matters with the Union, and told
Burr about Granello’s complaints concerning Noweski’s dual
seniority, his representation of himself as the steward, and other
issues.
Thus, Broaddus testified that the reasons that he refused to
work Noweski were as set forth above, that he had to learn
whether Noweski was authorized to begin work at 7 a.m., his
application was not complete, he refused to be intimidated by
Noweski’s threats, he wanted to work other employees, and
because he wanted him to cool down. However, when con-
fronted by Burr, he blamed his refusal to work Noweski on the
Union.
Broaddus explained that he blamed Noweski’s situation on
the Union because he would not surrender to intimidation, and
would not be a party to the clandestine arrangement between
Burr and Noweski. In support of this, Broaddus stated that
when Noweski accused him of “rolling over,” and said that he
won the first position “fair and square,” Broaddus believed that
Noweski was demanding that he go along with the arrangement
between Noweski and Burr, which he refused to do because he
would not be part of a plan which did not have the authoriza-
tion of company representatives Wolfe and Roberge, and he
knew that Noweski obtained the number one spot by subter-
fuge. Further, Broaddus refused to be intimidated by Noweski’s
threats to seek help from government authorities.
Broaddus added that Noweski had the “ability to clear up”
the matters that concerned Broaddus—that Noweski and Burr
had to acknowledge that their arrangement was without au-
thorization by the Employer.
Broaddus conceded that on the morning of June 27, he knew
about the plan between Burr and Noweski, was also aware that
Roberge and Brandowsky were not aware of the plan, and un-
derstood that Noweski’s application had not been completed,
and had “homework” to do, all of which had to be completed

8 The first time Broaddus revealed his knowledge of this plan to the
Employer or Board was during the week that this hearing took place.
before Noweski could return to work. Nevertheless, the only
thing he told Noweski that morning was that it was in his “best
interest” to straighten a few matters out with Granello.
D. The Grievances and Arbitrations
On July 8, Noweski complained to Edwin Stier, the court
appointed trustee for the Union, that he did not receive credit
for 2 days in which he trained other drivers, and which would
have resulted in him obtaining seniority, having met the 30
days’ requirement. Noweski also told Stier that Broaddus re-
fused to select him for work because of his union problems.
Noweski stated that the Departments of Justice and Labor con-
ducted investigations and found that Granello did not violate
his duty to the union membership.
On July 13, Noweski filed a grievance, claiming that he was
entitled to 2 days’ pay for work performed, including 1 day as a
driver-trainer. Ernie Soehl, the Union’s business agent, met
with Noweski and learned the details of the grievance. Soehl
determined that the grievance had merit, and discussed the
matter with employer officials Roberge and Wolfe. They told
Soehl that Noweski was not being worked because he cursed at
Broaddus.
A union executive board meeting was held on July 15, which
concerned Noweski’s representation as the steward, at which
Noweski and Kaplan testified. Union Business Agent Soehl,
who was also an executive board member, testified here that
Noweski asked the Union to call the Employer and “order” it to
work him. The executive board decided that it would not do so
since he was a casual employee, and had no rights under the
contract. Broaddus told Soehl that it would not work him be-
cause he cursed him.
Wolfe testified here that sometime thereafter, Stier told him
that his investigation concerned whether Noweski’s rights were
violated by the Employer or the Union, and that one way the
matter could be resolved was if he was returned to work. Wolfe
spoke to Soehl. Soehl argued that Noweski was entitled to the
day’s pay toward his seniority, explaining that when a driver
starts the engine of a truck, he is entitled to be paid for that day.
The Employer argued that Noweski’s agreement to train other
drivers was voluntary. A settlement was agreed to pursuant to
which Noweski was paid for the one day in which he trained
and evaluated other drivers, resulting in him obtaining seniority
status.
Pursuant to that agreement, Noweski returned to work on
September 12. A question was raised as to where Noweski
belonged on the seniority list. Union Agent Soehl testified that
he was asked by the Employer for guidance as to where to
place Noweski on that list. Soehl advised that Noweski should
be in the number two position, after Doyle, and ahead of
McNamara. Accordingly, a seniority list, dated September 12,
listed Doyle first, Noweski second, and McNamara third.
Upon being shown that list, Noweski told Broaddus and
Soehl that he should be number one since he began work first,
and was entitled to 11 weeks’ backpay. Soehl suggested that he
file grievances as to those matters.
Noweski filed two grievances. The first, on September 14,
claimed that he was deprived of work between June 24 and
September 9, because of the Employer’s refusal to recognize
his seniority. Noweski’s argument was that since the previous
settlement gave him retroactive seniority to April 28, he was
entitled to pay for work he was not permitted to perform before
his reinstatement. The second grievance, filed on September
NATIONSWAY TRANSPORT SERVICE 1043
14, asserted that the seniority list of September 12 improperly
placed him in the number two seniority position, instead of
first.
As a result of Noweski’s being given the number two posi-
tion, employee James McNamara, who had been number two,
and was thus placed in the number three position, filed a griev-
ance on September 22, which asserted that he should have been
placed in the number two seniority position on the seniority list
of September 12. His argument was that inasmuch as he was
“ordered in” by the Union, and Noweski was not, he had
seniority over Noweski. Apparently Union Agent Soehl
supported that position. Soehl testified here that someone sent
from the union hall was guaranteed a starting time over
someone not sent from the Union, reasoning that by such an
order, the Employer was guaranteeing, and was obligated to
pay for, a day’s work for the person sent, even if he did not
work. Soehl stated that it was his position before the arbitration
committee that the men sent from the Union were guaranteed a
starting time over someone not so sent.

Soehl explained the collective-bargaining agreement’s provi-
sion giving the Union an equal opportunity to refer employees
as not being applicable here, where the Union and the Em-
ployer agree to employ certain union personnel. In such a case,
the persons sent are guaranteed work, and if they do not work,
they are entitled to be paid.
The three grievances were scheduled for hearing on Novem-
ber 17 before the New Jersey/New York Regional, Contract,
Specialty, Private and Railhead Carrier Joint Area Committee.
The committee is comprised of representatives of the local
unions and employers who are signatories to collective-
bargaining agreements in the area covered by the committee.
Noweski requested a postponement of his two grievances,
which was granted over the Employer’s objection, since its
witness was en route from Colorado at the time of the request.
The committee, which is comprised of an equal number of
employer and union representatives, hears and decides griev-
ances which cannot be settled on the local level. Of the three
union representatives who heard the grievance, one was Car-
men Pizzuto, who is the vice president of the Union. Inasmuch
as the Union was a party to the case, Pizzuto was recused from
the discussion or vote on the outcome of the grievance. How-
ever, he was present at, but did not participate in, the executive
session during which the grievance was discussed and decided.
The rules of procedure of the committee provides that “no rep-
resentative of a local union or the employer party to a grievance
shall be permitted to act as a member of the panel hearing the
case.” In order to equalize the number of representatives, Em-
ployer Representative Ernest Salvino also recused himself.9
Union Business Agent Soehl presented the case in behalf of
McNamara, stating McNamara’s position, and seeking “guid-
ance” and a decision on the seniority issue. The Union also
stated that Doyle was not part of the grievance. Rather, the
grievance was between McNamara and Noweski. Employer’s
representative, Wolfe, stated that he had an agreement with the
Union whereby the Union would provide personnel to open the
terminal, and that Burr’s arrangement with his “friend” Now-
eski was not authorized by the Employer, and that the Em-
9 Salvino is not affiliated with the Employer. He heads Salvino Man-
agement Services, Inc., a private company providing labor relations
services to trucking companies. His company prepares the files in
grievances arising on the East Coast, and arranges hearings of the
grievances.
ployer intended that the Union would provide all the employ-
ees.
The committee decided that McNamara was denied permis-
sion to punch in at 7 a.m. on April 28, and that he should have
been in the number two position. Noweski’s position was
dropped to number three. The decision was final and binding
upon the parties pursuant to the terms of the collective-
bargaining agreement. Soehl told Noweski that the committee
decided that the Union referred employees, Doyle and McNa-
mara were entitled to preference over Noweski, who was not
referred by the Union.
On January 13, 1995, Noweski’s grievances were heard by
the committee, which included Pizzuto. Although the minutes
do not so reflect, Salvino testified that Pizzuto and he recused
themselves from the decision making process. The Union ar-
gued that Noweski was entitled to the number one position, and
56 days’ backpay. Noweski addressed the committee. It should
be noted that in his pretrial affidavit, Soehl stated that he did
not care who the Employer worked, but he believed that the
men sent to work by the Union should have been put to work
first. Soehl also stated that Burr refused to permit Doyle to sign
in for work until after his friend Noweski had signed in. At the
arbitration, Soehl’s position statement set forth that Doyle was
first on the seniority list because “this Local Union felt that a
man sent from the union Hall and the Company was guaranteed
starting time over someone who was not sent from the Union
Hall. We are asking this Committee for guidance on the senior-
ity order for the men involved at this facility.”
It should be noted that the Employer’s position on the griev-
ances of McNamara and Noweski, as stated by Wolfe, mistak-
enly referred to the contract as requiring the Employer to give
the Union “first opportunity” to provide applicants, rather than
“equal opportunity.” Wolfe also stated that Burr had no author-
ity to make an arrangement with Noweski to report to work,
when complete arrangements had been made between him,
Brandowsky, and Granello.
The committee denied the grievances without opinion, and
upheld the seniority list as previously decided.
III. ANALYSIS AND DISCUSSION
A. The Termination of Noweski
The complaint alleges that on June 24, the Union requested
the Employer to terminate Noweski, and on June 27, it did so.
Section 8(b)(2) of the Act makes it an unfair labor practice
for a labor organization to cause or attempt to cause an em-
ployer to discriminate against an employee to encourage or
discourage membership in any labor organization. Section
8(b)(1)(A) makes it an unfair labor practice for a union to re-
strain or coerce employees in the exercise of their Section 7
rights. As the Supreme Court stated in Radio Officers v. NLRB,
347 U.S. 17, 40 (1954):

The policy of the Act is to insulate employees’ jobs from their
organizational rights. Thus, [Sections] 8(a)(3) and 8(b)(2)
were designed to allow employees to freely exercise their
right to join unions, be good, bad, or indifferent members, or
abstain from joining any union without imperiling their liveli-
hood.

Respondents argue strenuously that no request to terminate
has been proven. I agree that there is no evidence of an express
request by the Union to the Employer that it terminate Now-
eski. However, “direct evidence of an express demand by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044
Union is not necessary where the evidence supports a reason-
able inference of a union request.” Avon Roofing & Sheet Metal
Co., 312 NLRB 499 (1993). In addition, a union “may be held
accountable for results triggered by what on the surface appears
an innocent act which the union well knew would produce a
desired result.” Teamsters Local 331 (Statewide), 315 NLRB
10 fn. 2 (1994). Further, the relationship of cause and effect, an
“essential feature” of Section 8(b)(2) “can exist as well where
an inducing communication is in terms courteous or even
precatory as where it is rude and demanding. It is essentially a
question of fact in each case what has caused an employer to
discriminate unlawfully against organized or unorganized em-
ployees.” NLRB v. Jarka Corp. of Philadelphia, 198 F.2d 618,
621 (3d Cir. 1952).
The question to be decided is whether Granello’s conduct
amounted to a request—whether by his conduct he caused the
termination of Noweski. Although Granello may not have de-
manded Noweski’s discharge, a discharge may be caused by
less than an express demand. It may be caused by conduct
which from the circumstances of the case can only be construed
as intended to cause a discharge, Food & Commercial Workers
Local 454, 245 NLRB 1295. 1297 (1979).
Here, it is necessary to evaluate the motivation of the Union
in transmitting information to the Employer. “If a union, for an
improper motive, even without a demand or request of any
kind, communicates information to an employer as a means of
inducing the employer to terminate that employee, a violation
may be found.” Graphic Arts Local 280 (Balzer-Shopes), 274
NLRB 787, 792 (1985), citing Yellow Freight System, 197
NLRB 979, 981 (1972). Those cases involved the union’s
bringing to the attention certain company rules that were alleg-
edly violated by the employees. Here, the transgressions
brought to Broaddus’ attention involved either breaches of
union rules—misrepresentation as a shop steward, blackballing
members of the Union, or possibly union-employer rules, hold-
ing of dual seniority, and alleged defrauding of the welfare
plan.
I first find that Noweski was terminated on June 27. Broad-
dus refused to select him when he shaped, and admitted that he
did so for various reasons.
In order to determine whether the Union caused the Em-
ployer to terminate Noweski, the context of the crucial conver-
sation between Granello and Broaddus on June 24 must be
examined. Prior to the meeting, Granello was admittedly upset
that Noweski had apparently subverted an agreement between
him and the Employer pursuant to which Doyle, Granello’s son
in law, would arrive first at the terminal’s opening day.
First, I find that although the Union and Employer believed
that their arrangement was binding upon them, and they may
have believed that it was, such an arrangement could not upset
the hiring of Noweski, once made.
Wolfe testified that Burr, as a salesman, had no authority to
promise Noweski a job, and had little or no operational respon-
sibility with the Employer. Brandowsky was supposed to open
the Parsippany terminal, but could not do so. Burr was given
the assignment, according to Wolfe, to simply open the facility,
provide basic security, see that nothing was stolen, and begin
the paperwork for the new employees. Wolfe noted that Burr
had no authority to change or depart from the arrangement
made with Granello that four employees sent by the Union
would open the terminal. It must be noted, however, that the
complaint’s allegation that Burr was the regional sales man-
ager, and a supervisor and agent of the Employer was admitted,
with the notation that such status was limited in scope and con-
straint by the collective-bargaining agreement. I find nothing in
the contract to limit a supervisor’s ability to hire. As the termi-
nal manager, Burr had actual, if not apparent authority to hire.
See Victor’s Cafe 52, 321 NLRB 504 fn. 1 (1996). Moreover,
Wolfe became aware of Noweski’s hire, and did nothing to
have him removed because of Burr’s alleged improper ar-
rangement, thereby condoning the hire.
Wolfe’s statement before the arbitration committee asserted
that he considered Burr’s arrangement with Noweski that Now-
eski arrive at the terminal first to be void since it violated arti-
cle 6, section 2 of the collective-bargaining agreement. That
section provides: “Extra Contract Agreements: The Employer
agrees not to enter into any agreement or contract with his em-
ployees, individually or collectively, which in any way con-
flicts with the terms and provisions of this Agreement. Any
such agreement shall be null and void.”
First, assuming that Burr and Noweski entered into an
agreement that Noweski begin work ahead of others referred by
the Union, such agreement did not conflict with any other terms
of the collective-bargaining agreement. The other term of the
agreement involved herein is that the Union be accorded equal
opportunity with all other sources to provide applicants. Burr’s
arrangement with Noweski did not violate that provision.
Even assuming the hire of Noweski was made in contraven-
tion of the agreement between the Employer and Union, the
question is the effect of that agreement upon Noweski. He did
not violate any apparent term of the collective-bargaining
agreement or established policy by obtaining the job from Burr
in the manner in which he did. First, the contract provides that
in hiring, the Employer must give the Union “equal opportu-
nity” to provide employees. That provision permits the Em-
ployer to hire on its own if it wishes. Here, Burr as the terminal
manager at the time, acted with the actual, if not the apparent
authority of the Employer in contacting Noweski and offering
him a job. Noweski did nothing improper in accepting the offer
and reporting to work when asked. Certainly when viewed from
Noweski’s perspective, he was offered a job, resigned from his
position at Kramer, and reported to work at the job offered.
Further, if Noweski had done something improper in obtain-
ing employment in contravention of the agreement between the
Employer and the Union, no action was taken against him or
Burr, until June 27, notwithstanding that Wolfe and Granello
were aware that Burr and Noweski had allegedly engineered his
early arrival at the terminal. Rather, the Employer continued to
work Noweski without incident or complaint until June 27.
Upon the facts set forth here, if Noweski was discharged be-
cause he was not referred by the Union, a violation would be
established. See Teamsters Local 331 (Statewide), 315 NLRB
10, 11 (1994); P.P.G. Industries, 229 NLRB 713, 715 fn. 17
(1977).
In the meetings between Broaddus and Granello prior to June
24, even according to Granello’s testimony, he said that he had
a “problem” with Noweski’s top seniority since Doyle was
supposed to have started first. Even if this related to, as Gra-
nello testified, the abrogation of the agreement between the
Union and Employer and not a problem with Noweski himself,
nevertheless, it became obvious to Broaddus that Granello was
not happy with Noweski securing the top seniority position.
That the effect was felt upon Broaddus appears obvious, when
during the final June 27 conversation, Broaddus asked Noweski
NATIONSWAY TRANSPORT SERVICE 1045
why he would not accept the number two, three or four posi-
tion.
I cannot give the credit urged by the Union to Granello’s
statements to Broaddus that, when determining seniority, he
should be guided by the timecards, and assign top seniority to
the person who signed in first. Although such a procedure
would clearly give the first position to Noweski, Granello had a
“problem” with Noweski’s receiving that spot. Thus, at first
blush, Granello’s suggestion of that procedure might appear to
be evidence of a lack of animus toward Noweski. However, his
objection to Noweski’s being first, even upon the application of
that method of determining seniority, underlies his true motive.
B. The Causation of Noweski’s Termination
At the June 24 meeting, Granello brought to Broaddus’
attention various complaints he had with Noweski—his alleged
misrepresentation as a shop steward and receipt of privileged
information, his upset that Noweski was first on the seniority
list, his alleged maintenance of dual seniority, and his effort to
spread the work to all employees for the purpose of their main-
taining welfare coverage.
All of these matters were not the Employer’s concern. In
fact, Broaddus properly told Granello that those were the Un-
ion’s, and not the Employer’s problems. Nevertheless, on the
next business day, June 27, Broaddus refused to work Noweski
and concededly told him that it would be in his best interest to
straighten out some union matters with Granello.
I credit Noweski’s testimony that Broaddus told him that he
would not be put back to work until he “straightened out” his
union problems. In Quality Mechanical, 307 NLRB 64, 66
(1992), the Board, in holding that the employer and union vio-
lated the Act, found that the employer conditioned the em-
ployee’s return to work upon his “straightening out his problem
with the union.” The speed with which Noweski addressed the
matter, visiting Granello immediately, indicates that there was
great urgency in his need to resolve the issues between he and
the Union. The importance which Noweski placed on the suc-
cessful resolution of the matter was clearly, as he testified,
because his job was dependent upon it. If Noweski believed
that his visit to Granello had no impact upon his employment,
he may have waited to see him.
In addition, Broaddus’ admitted testimony that he told Now-
eski that it would be in his “best interest” to straighten out his
Union problems adds support to a finding that Broaddus was
told not to work Noweski until such matters were resolved.
Why would it be in Noweski’s best interest to do so, especially
since Broaddus asserted that he told Granello that Noweski’s
alleged wrongdoings were the Union’s problems, and not the
Employer’s.
At their meeting, Granello and Noweski discussed each of
the alleged infractions committed by Noweski, and he asked
Granello to call Broaddus and tell him that their differences
were resolved so that he could return to work.
Granello conceded that Noweski asked him to call Broaddus.
What was the purpose of the call if not to clear Noweski for
work? Granello’s testimony was that he was just asked to tell
Broaddus that Noweski had no union problems. Of what con-
cern was that to Broaddus, especially where he was so insistent
that that was a matter of import only to the Union and not the
Employer?
Granello testified that although he told Noweski at the end of
their meeting that as far as he and the Union were concerned
Noweski had no union problems, he wanted to take the matter
to the executive board. If all he was being asked to do was to
call Broaddus and tell him that Noweski had no union prob-
lems, which he conceded he did not, why did he refuse to make
the call?
Based upon the above, an inference may properly be drawn
that Granello told Broaddus not to work Noweski because of
his upset at Noweski’s frustration of the plan to have Doyle
begin employment first at the terminal. Clearly, if, as Granello
admitted, Noweski no longer had any union problems, why
wasn’t a call made in his behalf.
The action of the executive board that day supports a finding
that the Union caused the Employer to terminate Noweski.
Thus, the executive board decided that since Noweski was only
a casual or probationary employee, the Union had no obligation
to call the Employer on his behalf. Nevertheless, as noted in
General Counsel’s brief, Granello interceded in behalf of pro-
bationary employee Doyle, who was not being worked by the
Employer. Such intercession included calls and a personal visit
with Wolfe to plead Doyle’s case.
It also must be further noted that Broaddus appeared to be
dependent upon Granello for assistance in setting up the senior-
ity list. Broaddus initiated meetings with Granello where they
spoke about the list, he asked Granello for recommendations
concerning the list, and they discussed Broaddus’ concerns
regarding problems at the terminal. Under such circumstances,
it is likely that Broaddus would be amenable to any suggestions
or requests made by Granello concerning the termination of
Noweski.
I accordingly find and conclude that Granello’s June 24 con-
versation with Broaddus which outlined the Union’s grievances
against Noweski establishes, when viewed in context with all of
the facts, that the Union caused the Employer to terminate
Noweski. Wenner Ford Tractor Rentals, 315 NLRB 964, 965
(1994).
There is a sufficient nexus between Granello’s June 24 con-
duct and Broaddus’ refusal to work Noweski on June 27 to
meet the test of 8(b)(2) causation. Even if Granello did not act
for the specific purpose of causing the Employer to refuse to
work Noweski, he nevertheless acted knowing that this particu-
lar result would follow. That is sufficient causation. Bricklayers
Local 1 (Denton’s Tuckpointing), 308 NLRB 350, 355 (1992).
C. The Employer’s Termination of Noweski
I find that the General Counsel has proven that Noweski’s
union activities was a motivating factor in the Employer’s deci-
sion to terminate him. Wright Line, 251 NLRB 1083 (1980).
Thus, on June 24, Noweski’s union activities became known
to Broaddus through Granello, who advised Broaddus of sev-
eral alleged improprieties by Noweski, including his misrepre-
sentation of himself as the shop steward, his improperly obtain-
ing first seniority, his maintenance of seniority on two jobs,
spreading of work among all the employees, and blackballing
other employees.
As set forth above, I have found that the Union unlawfully
caused the Employer to terminate Noweski, and it did so on the
next business day, June 27, following Granello’s conversation
with Broaddus.
Once a showing has been made that the employee’s union
activities were a motivating factor in his discharge, the burden
shifts to the Employer to prove that it would have terminated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046
him even in the absence of his union activities. Wright Line,
supra.
Broaddus gave several reasons for terminating Noweski. I
cannot find that any are supported by the evidence. First,
Broaddus stated that Noweski’s employment references had not
been completed, but it was conceded by him that at that time,
all employees were working as their applications were being
completed. Further, Wolfe conceded that employees were em-
ployed in that period of time whose documents were not re-
ceived by the personnel office. There was no evidence that any
one other than Noweski was discharged for that reason.
Broaddus further testified that Noweski was terminated be-
cause he refused to be a party to the alleged arrangement be-
tween Noweski and Burr whereby Noweski was called in ahead
of the Union personnel in exchange for his agreement to help
keep the union “riff raff” out of the terminal. First, Broaddus
became aware of this alleged arrangement 1 week after he be-
came terminal manager, approximately 1 month before Now-
eski’s termination, but never brought it to the Employer’s atten-
tion until the eve of trial. He also did not take any action
against Noweski because of this alleged arrangement until his
conversation with Granello on June 24. In addition, Noweski
had been approved for placement on the seniority list before
June 24. Further, there is no credible evidence that such an
arrangement was made. There was evidence that Noweski
spoke to Burr, and that he suggested to Broaddus that an em-
ployee may not be honest, but Broaddus insisted that Noweski
played no part in Broaddus’ decision as to who to work.
As to the above alleged improprieties, admittedly none of
them were mentioned to Noweski at the time of his termination
on June 27. The only matter raised with Noweski was that ac-
cording to Noweski’s credited testimony, Broaddus told him
that he would not be worked until he heard from Granello that
his union problems were resolved.
Broaddus also testified that he terminated Noweski because
Noweski intimidated him with threats. The threats, under-
standably, were Noweski’s upset at being discharged without
legal cause, and notwithstanding his visit to Granello, and Gra-
nello’s statement to him that he no longer had any union prob-
lems, he still would not be worked by Broaddus.
Noweski did not curse Broaddus. He stated that he would not
be “fucked” by the Employer, and threatened to seek legal re-
dress, and bring “heat” upon Broaddus. It cannot be found that
Noweski improperly threatened Broaddus by saying that he
would seek help at any agency he could. He was merely ex-
pressing his desire to obtain legal relief from his unlawful dis-
charge. That Broaddus felt intimidated by Noweski’s seeking
legal help does not make Noweski’s statement unlawful, or a
cause for discharge. To hold otherwise would make it permissi-
ble for an employer to discharge an employee for asserting his
right to seek governmental investigation of the employer’s
unlawful conduct in refusing to employ him.
In this connection, it is significant to note that Broaddus’ re-
fusal to work Noweski occurred at the morning shape on June
27, not upon Noweski’s return from meeting with Granello.
Thus, at the morning shape, Broaddus told Noweski that he
could not work until his union problems were resolved. Ac-
cordingly, whether or not Noweski was insubordinate to
Broaddus when he returned from his later meeting with Gra-
nello is irrelevant, since the refusal to select him for work oc-
curred prior to that time.
Broaddus’ explanation as to why he “blamed” his termina-
tion of Noweski on the Union is not credible. He stated that
after June 27, he was contacted by Burr who accused him of
taking action against Noweski, and suggested that Broaddus
owed his job to him. Broaddus, feeling intimidated by Burr’s
comments, and seeking to shift the blame, told him that he
(Broaddus) was not responsible, but that the Union was at fault
for asserting that union problems had to be straightened out by
Noweski.
Clearly, that the Union caused Noweski’s discharge was not
something that Broaddus created to shift the blame from him-
self, but as admitted by him, he told Noweski the same thing on
June 27, prior to his meeting with Broaddus, and was in fact the
reason for Noweski’s discharge.
On the contrary, Noweski had no problems at work prior to
June 27, and had even been used by Broaddus to train and
evaluate other drivers. In addition, no decision had been made
by Broaddus to discharge Noweski before Granello’s interven-
tion. Bricklayers Local 6 (Key Waterproofing), 268 NLRB 879,
883 (1984); Electrical Workers IBEW Local 441, 221 NLRB
214 (1975).
I accordingly find and conclude that the Employer has not
established that it would have discharged Noweski in the ab-
sence of his union activities. Wright Line, supra.
D. The Alleged Denial of Seniority to Noweski
The complaint alleges that on September 12, the Union re-
quested that the Employer deny seniority to Noweski, and that
on the same date, the Employer did so.
Upon awarding Noweski 1 day’s pay for work he did in
training employees, he thereby achieved 30 days’ work in a 90-
day period, thus receiving entitlement to placement on the sen-
iority list.
On September 12, upon Noweski’s reinstatement to work, a
question concerning his placement on the seniority list arose.
Such placement was determined based upon who began work
first. However, when asked for guidance as to placement by the
Employer, Union Agent Ernie Soehl stated that Doyle should
be placed first, and Noweski second because the Union “or-
dered in” Doyle, and not Noweski.
As discussed above, there has been no proof that such a fac-
tor, that one employee has seniority over another because he
was referred by the Union, is a valid consideration. Soehl may
be correct in stating that if an employee was ordered in by the
Union and not put to work, he has a valid claim for pay for the
day. However, that is not to say that the employee who was
ordered in has a preference in employment and placement on a
seniority list over one who obtained the job without the Union’s
referral.
I believe that such a preference would violate the Act as it
rewards the person for his union activities. Dairylea Coopera-
tive, Inc., 219 NLRB 656, 658 (1975). There is no contractual
provision which requires that employees be obtained through
the Union. The Union is only accorded an “equal opportunity”
in providing employees. Accordingly, the Union had no right to
insist upon a preference on the seniority list for those referred
by it. P.P.G. Industries, Inc., 229 NLRB 713, 715 (1977),
where, in the absence of an exclusive hiring hall, the union
violated the Act by refusing to process grievances of employees
who obtained jobs on their own, and not through the union; See
Teamsters Local 42 (Daly, Inc.), 281 NLRB 974, 976 (1986);
Key Waterproofing, supra, 268 NLRB at 884.
NATIONSWAY TRANSPORT SERVICE 1047
Rather, according to the evidence, the first position on the
seniority list must go to the person who arrived first at the ter-
minal, and was put to work first, and it is undisputed that Now-
eski was first. I accordingly find and conclude that the Union’s
placement of Noweski in the number two position on Septem-
ber 12 violated Section 8(b)(1)(A) and (2) of the Act.
The evidence establishes that the Employer acquiesced in
this placement of Noweski as second on the seniority list. By
doing so, the Employer knew that Noweski should have been
first on the list since he arrived first at the terminal and was put
to work first. Accordingly, the Employer abetted the Union’s
unlawful discrimination against Noweski, and was equally
responsible for the unlawful conduct.
E. Deferral to Arbitration
In December 1995, prior to the opening of the hearing, the
Employer and Union filed separate motions for summary
judgment with the Board, seeking deferral of the complaint
allegations to decisions which had been made by the arbitration
committee, set forth above. Counsel for the General Counsel
opposed the motions, asserting that deferral would be inappro-
priate. On February 21, 1996, the Board denied the motions,
stating that they would more appropriately be resolved follow-
ing a hearing before an administrative law judge. The motions
were renewed at the hearing, and I reserved decision on them.
Thereafter, also prior to this hearing, the Union filed a mo-
tion for bifurcation, requesting that the administrative law judge
first determine whether deferral was appropriate, and then de-
cide whether an unfair labor practice had been committed. The
General Counsel opposed that motion. On September 20, 1996,
the motion was denied by the Associate Chief Administrative
Law Judge.
As will be discussed infra, I deny the Motions for Summary
Judgment.
In Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955), the
Board stated that deferral to the award of an arbitrator is appro-
priate if the arbitration proceedings “appear to have been fair
and regular, all parties had agreed to be bound, and the decision
of the arbitration panel is not clearly repugnant to the purposes
and policies of the Act.”
Here, the General Counsel argues that inasmuch as the inter-
ests of Noweski are in apparent conflict with the interests of the
Employer and the Union, deferral is not appropriate. Kansas
Meat Packers, 198 NLRB 543 (1972).
The Union argues, and I agree, that it attempted to insulate
the grievance procedure from any influence that Granello might
have over it, by assigning its agent, Soehl, to the preparation
and presentation of the grievance.
However, although Soehl did meet with Noweski, and pre-
pared certain documentation, his presentation to the arbitration
committee was such that it made the apparent conflict very
apparent. First, he was the person who assigned Noweski to the
number 2 position on September 12, because he believed that a
person referred by the Union has preference in hire to someone
not referred by the Union. That position was repeated by Soehl
in his written presentation to the committee which heard Now-
eski’s grievance.
In addition, since McNamara also filed a grievance, Soehl
supported his grievance too, and consistently argued the Un-
ion’s position that McNamara was entitled to preference since
he was ordered in by the Union.
Unfortunately, Soehl was placed in the unenviable position
of attempting to support two inconsistent grievances. He could
not endorse one fully without doing damage to the other. I ap-
preciate that he presented the Union’s position and asked the
committee for guidance, but in presenting the Union’s position,
as the Union’s representative, he in fact, advocated the argu-
ment the Union had previously made—that McNamara was
entitled to preference since he was called in by the Union.
Noweski was in apparent conflict with the interests of the
Employer, because he was discharged, and denied his proper
seniority at the request of the Union, and because Wolfe mis-
takenly stated at the arbitration committee that the contract
provides that the Union has the “first opportunity,” and not
merely an equal opportunity to provide applicants for hire.
I accordingly find and conclude that inasmuch as the inter-
ests of the Employer and Union are adverse to those of Now-
eski with respect to the issues in the arbitration proceeding, that
deferral to the decision of that committee is inappropriate. Am-
sted Industries, 309 NLRB 860 fn. 3 (1992), Regional Import
Trucking Co., 292 NLRB 206, 231 (1988).
CONCLUSIONS OF LAW
1. Respondent Nationsway Transport Service is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Local 560, International Brotherhood of
Teamsters, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By requesting the Respondent Employer to terminate its
employee Gregory Noweski, for reasons other than the failure
to tender uniformly required initiation fees and periodic dues,
the Respondent Union has violated Section 8(b)(1)(A) and (2)
of the Act.
4. By requesting the Respondent Employer to deny the
proper seniority to its employee, Gregory Noweski for reasons
other than the failure to tender uniformly required initiation
fees and periodic dues, the Respondent Union has violated
Section 8(b)(1)(A) and (2) of the Act.
5. By terminating employee Gregory Noweski pursuant to
the Respondent Union’s request, the Respondent Employer
violated Section 8(a)(3) of the Act.
6. By denying employee Gregory Noweski his proper senior-
ity pursuant to the Respondent Union’s request, the Respondent
Employer violated Section 8(a)(3) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find it necessary to order the Respon-
dents to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Employer and the Union violated the
Act by causing the termination of Noweski, and denying him
his proper seniority, I shall recommend that the Employer be
directed to offer Noweski immediate and full reinstatement to
his former position of employment, and restore his proper sen-
iority, together with all seniority and other rights and privileges
enjoyed, and if there is no job available for him, to offer him a
substantially equivalent job. The Employer and the Union shall,
jointly and severally, make Noweski whole for any loss of earn-
ings he may have suffered because of the discrimination against
him, in the manner prescribed in F. W. Woolworth Co., 90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048
NLRB 289 (1950), with interest computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
I shall also recommend that the Union be ordered to advise
the Employer and Noweski, in writing, that it has no objection
to Noweski’s employment, or the restoration of his proper sen-
iority. I shall also recommend that the Employer be directed to
post appropriate notices directed to its employees and the Un-
ion post appropriate notices directed to its members.
I am aware that the Parsippany terminal was closed, and that
Noweski has been employed in another terminal of the Em-
ployer. Any matters concerning reinstatement and seniority
rights shall be considered in the compliance phase of this pro-
ceeding. The Employer shall post such notices in the terminal
to which the Parsippany drivers were transferred, and at which
Noweski is currently employed.

[Recommended Order omitted from publication.]