Local 825, Intl. Union of Operating Engineers

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 825, International Union of Operating Engi- neers, AFL-CIO and Michael Harvan and Building Contractors Association of New Jersey, Party to the Contract. Cases 22-CB-2681 and 22-CB-3044 February 17, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On July 22, 1976, Administrative Law Judge John M. Dyer issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief,' and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order except as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below, and hereby orders that the Respon- dent, Local 825, International Union of Operating Engineers, AFL-CIO, Newark, New Jersey, its offi- cers, agents, and representatives, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph 1(b) of the recommended Order: "(b) In any other manner interfering with, restrain- ing, or coercing any referral applicants in the exercise of their guaranteed rights under Section 7 of the Act." 2. Insert the following as paragraph 2(c) and reletter the subsequent paragraphs accordingly: "(c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN MURPHY, dissenting: Unlike my colleagues, I find merit in Respondent's contention that this proceeding is barred by Section 10(b), and I would dismiss the complaint. For the allegations based on the charge in Case 22-CB-3044, filed August 15, 1975, cannot stand on their own and rest upon a finding of unlawful conduct in 1973 and 1974. That alleged conduct was the subject of the charge in Case 22-CB-2681 filed and withdrawn in May 1974. The Administrative Law Judge found that the reopening of the earlier case was proper on the ground that it was withdrawn because of a deliberate falsehood by Respondent at that time. But this finding is time-barred and in any event is erroneous in fact. Here Harvan was denied referral by the Union's hiring hall in 1973 and 1974. He filed the charge in May 1974 and was told that he was ineligible to use the hiring hall because he was an "owner-operator." He was, in fact, an employer and an officer of a trucking company which had a contract with the Union. Harvan thereupon withdrew that charge. He then took steps to divest himself of any interest in that company, and followed up with various additional steps required by the Union. Finally in August 1975, Harvan was told that if he submitted his 1974 income tax form there would be no further problem as to his reinstatement. He did not send the form, and filed the charge in Case 22-CB-3044. The falsehood that is supposed to have occurred was the asserted existence of Respondent's rule against referring owner-operators. But to find that it was a sham and a pretext, the General Counsel must necessarily look to what occurred at that time. Nothing has occurred to justify that except that Harvan still had not been referred; there is no showing of any later events which cast doubt on the asserted existence of Respondent's rule. The General Counsel and the Administrative Law Judge have therefore looked to precharge events to justify re- opening the very charge that was withdrawn.3 I Respondent's request for oral argument is hereby denied, as the record, including the briefs, adequately presents the issues and positions of the parties. 2 We disagree with the portion of the Administrative Law Judge's remedy which provides that the Respondent should pursue the issue as to the amount of money possibly due Michael Harvan for his employment at a job in Leonia, New Jersey, and that if the amount is not collectible that the 228 NLRB No. 34 Respondent pay Harvan any amount due with interest running from November 8, 1973. This issue was not alleged in the complaint not fully litigated at the hearing, and accordingly we delete that paragraph of the remedy. 3 Cf. Northern California District Council of Hodcarrrers and Common Laborers of America, AFL-CIO, et al (Joseph 's Landscaping Service), 154 NLRB 1384(1965). LOCAL 825, INTL. UNION OF OPERATING ENGINEERS This case is totally unlike the situation in Don Burgess Construction Corporation 4 in which the Em- ployer clearly misstated that it intended to discontin- ue the carpentry portion of the business. The rule applied there was that Section 10(b) runs from the date of discovery of a "fraud." 5 Here there was no showing of any date when the Charging Party became aware of such a "fraud." Rather, the majority relies only on the equities,8 and if the merits be considered, Respondent in fact did not misstate its restriction against registering and referring owner-operators. The General Counsel concedes its existence and the Board recognized this rule in Local 825, International Union of Operating Engineers (Daniel F. Flynn, etc.), 187 NLRB 50 (1970). The Administrative Law Judge's finding cannot stand in the face of this holding and the unrefuted testimony herein that this rule was vigorously and consistently applied. Accordingly, I would reverse the Regional Direc- tor's action in reopening Case 22-CB-2681 and would remand this proceeding to the Administrative Law Judge for a determination in Case 22-CB-3044 alone. 4 227 NLRB No. 119 (1977). 5 E.g., Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 211 NLRB 222,227 (1974). 6 N.L. R. B. v. Silver Bakery, Inc., of Newt on, Massachusetts, et al, 351 F.2d 37 (C.A. 1, 1965). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against applicants for work by refusing to refer them for work because they file charges against union officers or officials or support others in union elections. WE WILL operate the referral system in a nondiscriminatory manner and will properly and fairly represent all who use our services. WE WILL place Michael Harvan on the "out of work" list and refer him to work in a nondiscrimi- natory manner and WE WILL make him whole for the loss of pay and other benefits he sustained as a result of our discrimination against him since November 8, 1973. WE WILL NOT in any other manner coerce or restrain union members or applicants for referral. LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO DECISION STATEMENT OF THE CASE 277 JOHN M. DYER, Administrative Law Judge: Michael Harvan filed a charge against Local 825, International Union of Operating Engineers, AFL-CIO, herein called Local 825, the Union, or Respondent, on May 8, 1974,. in Case 22-CB-2681 and filed the charge in Case 22-CB- 3044, on August 15, 1975, alleging in both charges that the Union had violated Section 8(b)(1)(A) and (2) by its treatment of him. The Regional Director for Region 22 issued a complaint and notice of hearing in Case 22-CB- 3044 on November 13, 1975, which alleged that the Building Contractors Association of New Jersey, herein referred to as BCA, had contracts with the Union. In addition to the jurisdictional and commerce allegations it was alleged that certain officers were agents of the Union and that the Union ran an exclusive hiring hall system. The complaint alleged that the Union violated the Act by refusing to refer Harvan for jobs with BCA, or its affiliated employers because Harvan had complained about Union Business Agent Arthur Mazzarella and because Harvan had engaged in an election campaign supporting persons opposed to the incumbent union officers. Respondent's answer denied violating the Act and stated it had insufficient knowledge to answer most of the other complaint allegations except that it admitted it was a labor organization representing employees with BCA. The hearing in this matter was held on January 14 and 15, March 29 and 30, and April 26 and 27, 1976, in Newark, New Jersey. Respondent amended its answer at the beginning of the hearing and admitted receipt of the charge in Case 22-CB-3044, the jurisdictional and commerce allegations, that the individuals named in the complaint held union positions alleged and that it had an exclusive job referral system with BCA and contractual agreements with that organization. At the conclusion of the direct testimony of General Counsel's principal witness, a union motion to dismiss the complaint on the basis of Section 10(b) was taken under advisement and, after submission of briefs, the motion was denied and the case set for resumption on March 29. At the resumed hearing General Counsel introduced in evidence the charge in Case 22-CB-2681 along with the document verifying the service of it and a letter from the Regional Director withdrawing his approval of the withdrawal request filed by Harvan on that charge in 1974. General Counsel then moved to consolidate the two cases and to amend the complaint to allege the filing and service of that charge and that the discriminatory acts against Harvan occurred on and after November 8, 1973, rather than the February 15, 1975, date in the original complaint. The documents were received in evidence and the motions to consolidate the cases and amend the complaint were granted over Respondent's objections. Simultaneously Respondent was informed that if it needed time to prepare its defense or for more extended cross-examination because of the granting of these motions a motion in that regard would be entertained. On the basis of all the evidence I have concluded that Respondent violated Section 8(b)(l)(A) and (2) of the Act 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by its treatment of Michael Harvan in and after November 1973, and that under the circumstances in this case Section 10(b) did not run to bar the claim. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses , and to argue orally at the hearing in this matter. General Counsel and Respondent have filed briefs which have been considered. On the entire record in this case, including my evaluation of the reliability of the witnesses based on the evidence received, the claims which were made and not supported, and on the totality of the evidence, I make the following: FINDINGS OF FACT 1. COMMERCE FINDINGS AND UNION STATUS BCA is a New Jersey corporation which is an affiliated association of employers engaged as contractors in the building and construction industry in New Jersey and other states. Annually the employer-members of BCA purchased and received directly from out-of-state goods valued in excess of $50,000. The parties admit and I find that BCA is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties agree and I find that Local 825 is a labor organization within the meaning of Section 2(5) of the Act. If. THE UNFAIR LABOR PRACTICES A. Background and Facts Although Respondent agreed that the persons named in the complaint held the listed jobs, with Hank Legowski alleged as recording secretary, Fred Macco as office manager, Art Mazarrella as a business agent, Bob Illario as business agent, and Matty Bukowsky as a dispatcher, during the hearing their jobs were listed as follows: Robert Illario, vice president; Legowski, recording-corresponding secretary; Macco identified himself as the dispatcher; and Bukowsky referred to himself as an office clerk . Respon- dent took no position as to whether these persons were union agents or not. Respondent maintains an exclusive hiring hall referral system under its contracts with BCA and with others. It was stated it had some 10,000 members on its rolls and about 6,000 of them use the hiring hall for referrals to work in the construction industry. In describing how the referral system operates, Macco testified that people who are out of work or laid off, call the union office and tell the operator or office clerks that they are out of work, give their names, and ask to be put on the out-of-work list. Macco said that, as the dispatcher, he decides who* on the out-of-work list are referred to jobs. When he receives calls from contractors for referrals, he has the out-of-work list in front of him and the referral cards for the individuals on the out-of-work list and consults those cards to see what pieces of heavy equipment the individual can operate. With that information he decides who to refer on the basis of which person was out of work the longest, the person's ability, and considers where the job is located and where the individual lives . When he decides who to refer, the individual is called and told where and when to report for work. Although Bukowsky said he was merely an office file clerk he admitted that part of his duties were answering the telephone and taking messages from callers and in that position he had talked to Michael Harvan on several occasions. While claiming that it had a specific bylaw which forbids the placing of a contractor or "owner-operator" on the out- of-work list for referrals and that such policy had existed for a long time and had been an issue in a previous NLRB proceeding (187 NLRB 50), Respondent never produced the bylaw. As to the definition of an "owner-operator" Bukowsky stated it meant a person who owns and operates heavy equipment such as is listed on the back of the individual's referral cards maintained by the Union. According to Respondent it had two types of contracts, one for regular construction work and it is only in this area that the referral system is used and the other a shop contract where engineer related work is performed in a plant. Plant employees as such do not use the referral system. The F. E. Harvan Trucking Company came into exis- tence in 1968, with Frances Harvan the treasurer of the Company and owning 1 share of stock, Edward Harvan, her husband, the president of the Company and owning 51 shares of stock, and their son Michael Harvan the vice president and treasurer of the corporation with 48 shares of stock. The three also constituted the board of directors. The Company owned two dump trucks and contracted to haul truck loads of material in the construction field. Trucks are not considered heavy equipment and are not in the jurisdictional area of the engineers . Michael Harvan and Edward Harvan were members of the Teamsters Union at the time they operated the trucks, although Michael Harvan joined Respondent in January 1971. During that year for about 6 months he operated a leased front loader which does come within Respondent's claimed jurisdiction- al area and Respondent and F. E. Harvan Trucking Company were signatories to a 2-year construction agree- ment ending in 1973. The evidence is that the loader was only used for 6 months and that the Company only operated under its contract with Respondent for that 6- month period. There is no contrary testimony. In 1972 work became slack and Michael Harvan sought work referrals from Respondent and was referred to various jobs after May 1972. There is no evidence that Michael Harvan performed any physical work for the F. E. Harvan Trucking Company after May 1972 although he did act as an officer and director until 1974. In November 1972, Edward Harvan became a member of Respondent and was referred for work up through January 1975. Mrs. Harvan testified that the Company became unpro- fitable and ceased doing business in late 1973 or early 1974 and had succeeded in disposing of its trucks and some of its other assets. The Company has some apparently uncollect- able bills owed to it and remained in corporate existence to complete its efforts to collect such bills so that it might sue or defend any suits in the corporate name. In 1973 the F. E. Harvan Trucking Company negotiated for a contract with B. F. Goodrich that would have them change tires on heavy equipment on construction jobs in New Jersey. This particular job came under the claimed LOCAL 825, INTL. UNION OF OPERATING ENGINEERS jurisdiction of Local 825 in their shop agreements and on June 1, 1973, the Harvan Trucking Company signed a shop contract with the Union. At that time it intended hiring an individual named Becker to change the tires and the Company gave a check for $550 to Local 825's welfare fund to take care of the contributions for this employee for 1,000 hours' work. Harvan acknowledged that the Union had said the contribution could be made in advance or monthly as the work progressed. According to Harvan the form he signed showed that the work was to begin June 1, 1973, and the form received in evidence shows that this date was stricken and a prior date inserted. Harvan testified this insertion was not on the document when he signed it. In any event there was a strike at Goodrich and the arrange- ment between the Company and Goodrich never became operable and Becker was never employed by the Company to work under this agreement. Becker had worked previous- ly for the Company in 1971. Although Respondent sought to cast doubt on this testimony, there is no countervailing evidence and I credit that the events occurred as the Harvans described it. Respondent's referral cards for Michael Harvan show him reporting on the out-of-work list on May 2, 1972, and being dispatched for a job on May 19, 1972. This first card also has beside his name "F. E. Harvan Trucking Corp." Harvan's referrals are shown on three cards with a referral shown on October 14, 1973, and his reporting back for a referral on November 8, 1973. Harvan testified that he was not referred for work after that date but his referral card states he was referred out on that same date and reported back as out of work on December 10, 1973. There is an indication that he refused a referral in December and next reported as out of work on May 24, 1974. Michael Harvan testified that he checked a job operated by Blanford Land Clearing Company about the beginning of August 1973 and, on fmding that the bulldozer operator had not been referred by the Union, filed a report with the Union and sought the job for himself. After several weeks' inquiry he was referred to the job in Leonia, New Jersey, on August 15. Harvan said he stayed on that job until August 24, 1973, and the union referral card shows that he was dispatched on August 15 and reported out of work on August 28, 1973, and was referred out on September 4. B. Events Through the First Charge After starting on the Leonia, New Jersey, job, Harvan worked several days and discovered that the bulldozer was being operated for 10 or more hours, after he left work, by someone not referred from Local 825. Harvan complained to Business Agent Arthur Mazaarella that a nonunion operator was operating the bulldozer and under the contract he was entitled to be paid for the time that the bulldozer was operated. After complaining several times, Mazzarella finally arranged a meeting with the job superin- tendent, Harvan, and Mazzarella at which the grievance was discussed. Harvan said the superintendent offered to pay him the regular wages but not the overtime rate which was due under the contract terms and when Mazzarella said that he would have to pay it, the superintendent of the job told him that he would not do so, using vulgar language to enforce his statement. Harvan said he was paid properly for 279 part of the time but was then offered a check at a lower rate for the second period and, under instructions from the Union, refused to accept it. Harvan said the job was in a tunnel which boosted the hourly rate and at the overtime rate he estimated that the amount due him for the 5-day period would have been around $2,000. He then continued to call Mazzarella complaining about the lack of pay, and, receiving no satisfaction or encouragement from Mazzarel- la, lodged a complaint with the Union by letter on September 6, 1973, that Mazzarella had failed in his duty to properly represent him and effect a proper resolution of the matter. Harvan's request to appear before the Union's executive board was granted and he was directed to appear on Monday, September 10, 1973. According to Harvan, during the meeting which lasted about 30 minutes he was asked about the particulars and was told by the committee that he would be paid and they would figure out the full amount. As he was leaving, Illario told him to stay off Mazzarella's back. Neither Illario nor Mazzarella testified during the hearing and their absence was not explained. Bukowsky and Macco stated they did not recall any such statement by Illario. Following the executive board meeting Harvan was referred for work several times but did not receive any referrals after his last job in October. He called the union hall about twice a week and in late November asked to speak to Macco about not being referred for work. In either November 1973 or early in 1974 he asked Matty Bukowsky why he was not getting any work and Bukowsky told him he was on the "s- list" and they were just finishing up work before wintertime. Despite this Harvan continued to call the union hall about twice a week until May 1974. Starting with October 1973, Harvan received unemploy- ment and supplemental unemployment benefits from Respondent's supplemental unemployment benefit fund. This weekly payment of supplemental benefits to Harvan continued through February 16, 1975. When the payments were discontinued Harvan asked why and was told that the employer had not made contributions, and as soon as the Union straightened it out, he would again be receiving his union supplemental unemployment benefits. Hank Legow- ski from whom Harvan got this information is the adminis- trator of this fund in addition to his other union posts. On May 6, 1974, Harvan wrote to Legowski complaining that he had not yet received the wages due him despite the executive board's assurances and the announcement of such assurances during a general membership meeting. He concluded the letter that he hoped that prompt attention would be paid to his claim so it would not be necessary for him to get the help of outside agents. On May 8,1974, Harvan filed the charge in Case 22-CB- 2681 alleging that the Union for the previous 6 months had refused to refer him for work because he had invoked internal union procedures against Union Business Agent Arthur Mazzarella. This charge was investigated by the Region and then counsel for the Union, Earl Aronson, since deceased, responded to the Region that the charge was baseless because there had been a great deal of unemployment and Harvan did not have a right to use the hiring hall because he was the president of F. E. Harvan Trucking Company which had a collective-bargaining 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relationship with the Union. Aronson's letter claimed that the Union had no knowledge of Harvan's employer status when they were referring Michael Harvan for work and that Harvan was being removed from the referral list as of that date because he was an employer. According to the Union, Legowski, upon receiving this letter from Union Counsel Aronson, instructed Macco to remove Michael Harvan's name from the referral list. The Region advised Michael Harvan that he was being refused referrals because he was an employer and an officer of F. E. Harvan Trucking Company, which organization had contracts with the Union. Upon receiving this advice Harvan withdrew the charge in Case 22-CB-2681 and the withdrawal was approved by the Regional Director. C. Events From May 1974 Through the New Charge Michael Harvan then sought to divest himself of any interest in the Company and together with his parents met with a corporate lawyer . Papers were drawn up relieving Michael Harvan of any responsibility for the Company; he resigned his directorship and officership in the Company; sold his stock to his mother and the minutes of the meeting of the board of directors reflected these proceedings. Donald Hetchka, the attorney for F . E. Harvan Trucking Company sent Michael Harvan conformed copies of: (1) the stock certificates surrendering his stock to Frances Harvan ; (2) the certificate of change of registered agent filed with the secretary of the State of New Jersey ; (3) his corporate resignation; (4) the minutes of the special meetings for the board of directors of F. E. Harvan Trucking Company ; (5) the agreement of sale; (6) the general release for Michael Harvan to F. E. Harvan Trucking Company ; and (7) the general release from F. E. Harvan Trucking Company to Michael Harvan. These documents seem to constitute a full release of Michael Harvan from any responsibility or interest in F. E. Harvan Trucking Company. Michael Harvan took these documents with him to the union hall and gave them to Legowski since Legowski had told him the documents were needed before he appeared at an executive board meeting. Harvan attended the executive board meeting in September 1974 and was questioned by a number of the members of the executive board including Attorney Aronson. Among other things he was told that there were a lot of people out of work and finally was told that they would get in touch with him in the future about putting him back on the out-of- work list. In the interim, beginning at the end of May, Michael Harvan served as a campaign coordinator for a slate of Officers opposed to the incumbent officers in the Union and ran an office for this slate in Harrison , New Jersey. Harvan testified that from the end of May through October he was active in the campaign, soliciting funds, coming to the union hall to inspect books, overseeing the use of the addressograph while campaign literature was mailed out etc., and that the incumbents were aware of his activities. Although somewhat disclaiming that they knew what Michael Harvan was doing, Legowski and Macco more or less acknowledged that they might have seen Harvan at union headquarters around the addressograph or on other occasions, and in essence admitted that they knew of his activities in opposition to the incumbents. However, they claimed that there were no reprisals taken against any of the people who ran against the incumbents and that some of the opposing leaders had thereafter been hired and em- ployed at union headquarters. Harvan testified that he continued to call the union office about twice a month after May 1974 seeking to clarify his status and some time after the executive committee meet- ing, Legowski told Harvan that the executive committee wanted an affidavit from him concerning his relinquishing his position with F. E. Harvan Trucking Company. An affidavit was prepared by Attorney Hetchka, and Harvan gave it to Legowski in either October or November 1974. According to Harvan Legowski said that Harvan would have to appear again before the executive board in November, but that there should not be any problem about getting him back on the list and this should be the final step. Harvan testified that he went to an executive board meeting held at a Holiday Inn in Newark but was left sitting in a hallway for some 3 hours. Legowski finally came out about 11:45 a.m. and said that they did not have time to get to him, but they wanted an affidavit from Robert Becker, the former employee, stating that he had not been working for the Company. According to Harvan, Legowski said that some of the people had seen Harvan trucks rolling on the roads and that was the reason they wanted an affidavit from Becker. Harvan testified that he took Becker to Attorney Hetchka and an affidavit was prepared in the form prescribed by Legowski, and on the following day he returned to the union hall and gave it to Legowski. According to Harvan, Legowski said there should not be any trouble and he should be back on the list shortly and the Union would contact him. Legowski testified that the Union sent a telegram to Harvan asking him to appear at the November 25, 1974, meeting but that Harvan never showed up and he recalled no such conversation as Harvan detailed . The affidavit from Becker is dated November 25, 1974. Harvan testified that thereafter he tried to reach Macco and Legowski on a number of occasions without success and continued to contact the union about twice a month. Finally in August 1975 he spoke to Legowski at the union hall and said he was going to file a charge against the Union. Legowski called back shortly and said that if Harvan submitted his 1974 income tax form and it showed that he had not received any money from Harvan Trucking Company, there should be no problem with his being reinstated. This was the first time Harvan had been asked to produce an income tax form . He did not send the form to the union but filed the charge in Case 22-CB-3044. At the hearing in this case the income tax form was produced for the perusal of Respondent's attorneys, and it had no entries for any compensation from F. E. Harvan Trucking Compa- ny. D. The 10(b) Issues In the original posture of this case General Counsel's theory was of a continuing violation, in that Respondent, by continuing to refuse to refer Michael Harvan to jobs, LOCAL 825, INTL. UNION OF OPERATING ENGINEERS 281 was continually violating Section 8(b)(1)(A) and (2) of the Act. Respondent took the position that if there was any illegal action it took place when Harvan was removed from the out-of-work list in 1974 and that the charge in August 1975 was barred by Section 10(b). A motion to dismiss the complaint on this basis was taken under advisement and the parties filed briefs on that point. On March 3, I issued a ruling denying the motion, noting that Harvan had filed a charge in May 1974 which he had withdrawn on the premise that his association with F. E. Harvan Trucking Company and their contracts with the Union had barred him as an "owner-operator" from being referred by the Union. In reliance on this claim by the Union, Harvan over a great many months submitted various documents in response to the Union's requests to establish that he was no longer associated with the trucking company and was not an owner-operator and should be returned to the out-of-work list. Since Harvan's testimony indicated that the "owner-operator" statement of the Union was a ploy to cover up the true reason for the refusal to refer him and that the Union's stretching out of the time by requesting additional "proofs" further demonstrated its falseness, then Respondent should- be estopped from claiming Section 10(b) had run against Harvan, because Respondent was in effect stating that Harvan having relied on the Union's premise that he must prove he was no longer an owner-operator had gone past the statute of limitations because if they had violated the law it occurred at the early point. Thus the Union would in effect create a "catch 22" because they in effect state that Harvan should not have believed them and operated on their "owner-operator" theory and because he did, it is now too late. It was noted that if the "owner-operator" allegation of Respondent is a subterfuge that the equities of the situation would forbid Respondent's capitalizing on its duplicity and forestall the running of a statute of limitations (Sec. 10(b)) and that a violation as far back as November 1973 might be found. Thereafter the Regional Director issued a letter to the Union dated March 26, 1976, stating that he was revoking his approval of the withdrawal of the charge in Case 22- CB-2681 on the grounds that the representations made by Respondent were pretextual and he was reinstating the unfair labor practice charge. Thereafter the motions to consolidate the charge with the charge in Case 22-CB-3044 and amend the complaint were granted. The amendment of the complaint consisted merely of amending the effective date of the violative allegation to November 1973. Respondent's objection to this consolidation and com- plaint amendment that the previous charge had not been investigated and all the procedures followed was considered to be insufficient since it was during the investigation of that earlier charge that the Union had responded and claimed Harvan was an "owner-operator" forbidden by its bylaws to be referred. Further, Respondent was assured that it would be given any time it needed to meet any different allegations or problems caused by the granting of these motions. Indeed, Respondent had nearly a month between the granting of these motions and the time it presented its defense. There were no further protests by the Union that it had been denied due process because of the granting of the motion nor that it lacked time to adequately prepare. I am again denying Respondent's renewed motion to dismiss the amended complaint on the basis of Section 10(b). Respondent's argument in its brief that the concealment of motive for a discharge by an employer would under this theory enable a General Counsel to circumvent the purpos- es of Section 10(b) does not meet the situation in this case. Here there was a timely charge filed which was withdrawn because of Respondent's defense to it. In reliance on this defense the Charging Party attempted to comply with the conditions laid down by Respondent until it became obvious that he was being strung along and he again filed a charge. Where, as is found below, Respondent's defense is false, then Respondent should not benefit by its falseness to the detriment of one who relied on Respondent as being truthful. Certainly Respondent has not been harmed in this case, since it was able to present all the defenses it ever had. Additionally, Respondent could have restored Harvan to the referral list long ago and should have done so if its "owner-operator" defense had been true. This situation is not a normal 10(b) situation, but is one in which the equities demand reinstitution of the original date and estoppel of the 10(b) claim. As was noted in the previous ruling, the Board in a somewhat different context in Silver Bakery Inc. of Newton, 150 NLRB 421 (1964), found on the basis of equity that Section 10(b) had not run against a complainant in that case. The United States Court of Appeals for the First Circuit disagreed with the Board feeling that without misrepresentation and misconduct being present, Section 10(b) had run. The question here is whether there was such misrepresentation and misconduct by Respondent as to prevent the running of Section 10(b) against the complain- ant. As will be discussed infra, I have concluded that Respondent's "owner-operator" claim against Michael Harvan is pretexual and is a misrepresentation of the circumstances, and amounts to misconduct which has prevented Section 10(b) from running against Harvan. E. The "Owner-Operator" and Other Defenses In assessing the evidence I credit Michael Harvan's testimony about his seeking work at the Leonia site where Blanford Land Clearing Company was working , checking the premises and discovering that the person operating the bulldozer had not been referred to the site by the Union. Harvan from the evidence had been working at another site for Blanford on a Bergen County golf course in Mahwah, New Jersey. His complaint to the Union concerning the lack of representation given him by Mazzarella and his testimony as to what was said at the executive board meeting is further credited. Respondent did not call Robert Illario to testify as to what he said at the September executive board meeting and no reason was given for his not being present. The testimony of Macco and Legowski that they did not recall Illario telling Harvan to get off Mazzarella's back was not convincing . Some of Legowski's and Macco's statements concerning other events were at odds with the evidence and they were not credible wit- nesses. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Undoubtedly it is true that construction work decreases to some extent during the winter, but, as was stipulated, referrals were made of people with skills similar to Harvan throughout 1974, 1975, and 1976 until the conclusion of the hearing. I do not credit Respondent's record which pur- ports to show that Harvan was given a referral in December 1973. It is clear that since November 1973 Harvan was on unemployment and was receiving supplemental unemploy- ment benefits from the Union. When Harvan finally threatened to take the matter to outside authorities and filed the first charge, there is a record entry that for the first time since latter 1973 Harvan was listed on the referral list and this was quickly followed by Respondent's defense that Harvan was the president of F. E. Harvan Trucking Company which had contracts with the Union and there- fore was an "owner-operator" who could not use the referral system. The original construction contract was a form contract with a 3-year period ending June 30, 1973, and was not signed by Harvan Trucking Company until March 1971. There is no dispute that the Company operated under that contract for a period of 6 months while Michael Harvan ran a rented front-end loader to load company dump trucks on a construction site in 1971. Clearly Harvan Trucking Company's dump trucks do not come under the asserted jurisdiction of Respondent, because they are not heavy equipment and it is noted that at the time the dump trucks were being operated previous to 1971 by Michael Harvan, he was a member of the Teamsters Union.' I credit Michael Harvan that in late 1973 or early 1974, when he called the union hall seeking a referral he was told by Matty Bukowsky that he was on the Union's "s- list" and that was why he was not receiving any referrals. Bukowsky's denial of this statement is not credited. The impression he sought to give of only being a file clerk did not square with his duties. Fred Macco's description of the manner in which he runs the referral system demonstrates that it is not an automatic system because the dispatcher has discretion on referring individuals to jobs. Since it was stipulated that others with the same qualifications were being referred in the interim and noting that Harvan was calling for work twice a week and it is not possible that Respondent did not understand those requests I conclude that Harvan was not referred for work because Respondent, including Legowski, Macco, Mazzarella, and Illario, was angry with Harvan for charg- ing Mazzarella with not representing him properly in regard to the Blanford Leonia job. Their annoyance was further compounded by Harvan's support of a union slate opposed to the incumbents after the May charge and defense. RespG ident's defense that apparently Harvan did not call in to be put on the referral list from December to May as their referral record would show cannot be credited in the I Respondent procured weekly reports submitted for 1972 by F. E Harvan Trucking Company to the re ports Employees of Passaic & Bergen County Welfare Fund" located in Union City, New Jersey. These reports contained the names of Michael Harvan , Edward Harvan (Michael's father) and Ronald Parker (Michael Harvan's brother-in-law ) showing that they worked 2 to 3 days a week throughout that year. This amount of work and the payment of funds thereon would have been the minimum necessary for entitlement of these individuals for benefits under the welfare fund program run by the Teamsters Union light of Harvan's uncontradicted testimony of his regular telephone calls to the Union. The position the Union took in May 1974, that it was directing the removal of Michael Harvan's name from its out-of-work list because of his "owner-operator" status, is a subterfuge to mask Respondent's reasons for its treatment of Harvan. The 1971-73 construction contract between the Union and Harvan Trucking Company was operable only for 6 months in 1971 when Harvan ran a front-end loader and it had long since expired. The Union states that it ordinarily follows up expired contracts to determine if the Company is still operating but had not bothered to follow up on this one for over a year. In the interim Harvan Trucking Company had signed a shop contract with the Union for an employee named Becker. There is no contravening evidence to the testimony of the Harvans that their relationship with Goodrich in setting up a tire repair program had fallen through due to a Goodrich strike, and they never employed Becker for that business or started it. Becker had been employed by the Harvans in 1970-71 as a truckdriver. Since it was admitted that persons under shop contracts did not use the union referral system, it would seem doubtful that anyone connected with a company that had only a shop contract would come within the meaning of a heavy construction "owner-operator." The Harvan Trucking Company had no employees for most of 1973 on, so there would be no "owner-operator" relationship here as that term is commonly known and understood in this context. In any event Michael Harvan sought to meet the Union's test and remove the designation of "owner-operator" by divorcing himself completely from the F. E. Harvan Trucking Company. This was done with a series of documents (noted above) which were given to the Union by Michael Harvan in the late summer of 1974. No action was taken until the September meeting and then Harvan was told more proof was needed. He fulfilled this additional requirement by providing an affidavit that he was in no way associated with the F. E. Harvan Trucking Company and that the Company was dormant. When Harvan sought further assurances from the Union that he would be put on the out-of-work list he was told to appear at a November 25 meeting of the executive board. Harvan testified specifical- ly that he was at the designated place and was told to remain in the hall and did so for some 3 hours before Legowski came out and told them they had not been able to reach him and they needed one more thing from him, an affidavit from Becker. Although Legowski denied that Harvan was at that meeting, it is clear from the fact that the Becker affidavit was procured on that same date that Harvan's testimony is credible and Legowski's is not. I further credit Harvan that he was told by Legowski that he needed an affidavit from Becker that Becker had not been an employee of the Trucking Company. Respondent claimed that Michael Harvan's denial that he had not worked for F. E Harvan Trucking Company since May 1972, was shown false by these reports . But these reports do not establish that, since they are not work records as such and noting those covered by the reports, it is probable that the reports and funds were being submitted by Harvan Trucking Company to insure coverage of these individuals by the welfare fund. In any event this collateral attack is insufficient to destroy Michael Harvan's credibility. LOCAL 825, INTL. UNION OF OPERATING ENGINEERS 283 Legowski testified that in November 1974 someone in his office had called F. E. Harvan Trucking Company and had been informed by a woman who answered the telephone that Becker had been laid off only a short time before. This secondhand testimony is not credible since there would be no reason for Mrs. Harvan to have made such a statement, and she specifically denied that any such call had been made, since Becker had never been employed by the trucking company under the shop contract and the Compa- ny had not operated at all since the first part of 1974. It is commonsense that Harvan's opposition to the incumbents slate of officers and his help to an opposing slate of candidates during the Union's election campaign in the summer of 1974, would not have endeared him to those who were then and continued to be in control of Local 825. Harvan testified that his twice-a-week calls to the Union dwindled off to about twice a month in the summer of 1974 and that his attempts to talk to Macco and Legowski were constantly rebuffed by their not being available or being out of town. When Harvan again threatened to go for outside help in getting placed on the referral list, Respondent discovered it needed more information from him before it could act and asked for his income tax return. Harvan, who was some- what suspicious of the Union, decided this further request demonstrated that Respondent was playing him false and filed the charge in Case 22-CB-3044. Indeed Harvan's income tax refunds were made available to Respondent during the hearing of this matter. There has been no indication from Respondent that it has placed Harvan on the referral list after seeing his income tax returns and Respondent has not asked for any further proofs. Respondent went far afield in defending this case. It sought to intimate that a release by Harvan Trucking Company to Blanford Land Clearing was meant to be a release by Michael Harvan to Blanford for his wages from the Leonia job involving Mazzarella. The evidence clearly demonstrated that this was not the case. Respondent then sought to confuse the job which Michael Harvan had at the Mahwah, New Jersey, Bergen County Golf Course, with the job he checked and later was referred to in Leonia, New Jersey. These were two different jobs as the Respondent's documents and a look at a map will demonstrate. The Mahwah job employed a number of union personnel where there is nothing to show that anyone other than Harvan was a Local 825 man on the Leonia job. On the evidence in this case, there is no other conclusion possible than that Respondent has refused to refer Michael Harvan for work for invidious reasons and has dealt falsely with him in violation of Section 8(b)(1)(A) and (2) of the Act and I so find and conclude. It is clear that Harvan has never recovered the money which was due him from the Leonia, New Jersey, job and that Respondent has made no reasonable effort to secure that money from the contractor. If Respondent does not secure the funds properly due Harvan for that job; or has let the time run to secure it under the contract, then as part of the remedy in this case, I will recommend that Respondent act as a guarantor for that amount of money and provide it to Harvan, in addition to making him whole for the losses he has suffered as a result of Respondent's discrimination against him by not referring him to jobs since November 1973. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activity of Respondent as set forth in section II, above, and therein found to constitute unfair labor practic- es in violation of Section 8(b)(1)(A) and (2) of the Act, occurring in connection with the business operations of BCA as set forth in section I, above, have a close , intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent violated Section 8(b)(1)(A) and (2) of the Act by refusing to refer Michael Harvan for work for discriminatory and invidious reasons, I recommend that Respondent make Michael Harvan whole for the loss of pay and other benefits he sustained, by reason of the discrimination practiced against him from November 8, 1973, until Respondent returns him to the referral list and accords him equal treatment with others on the list in a nondiscriminatory manner. His name will be listed as applying for work on November 8, 1973. Backpay shall be computed as per F W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It is further recommended that Respondent pursue the matter of money due Michael Harvan from the Leonia, New Jersey, job and if that amount is not collectible at this time, that Respondent pay the sum to Harvan with interest running from November 8, 1973. This recommendation is based on Respondent not adequately representing Harvan and the discrimination practiced against him. It is further recommended that Respondent make available to the Board, upon request, such reports and records as will enable the Board to determine the amount of backpay and any other benefits due Michael Harvan. It is additionally recommended that Respondent cease and desist from violating Section 8(b)(1)(A) and (2) and notify its members that it will properly and fairly represent all who seek to use its referral system and will operate that system in a nondiscriminatory manner. On the basis of the foregoing findings and the record herein, I make the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. BCA is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By refusing to refer Michael Harvan for employment and not representing him fairly and in a nondiscriminatory manner, Respondent violated Section 8(bXl)(A) and (2) of the Act. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing fmdings of fact and conclusions of law, and upon the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The Respondent, Local 825, International Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to refer applicants for work and not properly and fairly representing them for discriminatory and invidi- ous reasons in violation of Section 8(bx1XA) and (2) of the Act. (b) In any like or related manner restraining any referral applicants in the exercise of their guaranteed rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Michael Harvan for any loss of pay and other benefits he may have suffered by reason of the 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. discrimination against him caused by Respondent in the manner set forth in the section of this Decision called "The Remedy." (b) Operate the referral system in a nondiscriminatory manner and properly and fairly represent all who use its services. (c) Respondent is to post at its business office, union hall, and any other places where it customarily posts notices to members, copies of the attached notice marked "Appen- dix." 3 Copies of the notice shall also be posted at the Employer's place of business if the Employer is willing. Notices on forms provided by the Regional Director for Region 22, after being signed by an authorized representa- tive of Respondent, shall be posted by Respondent immedi- ately upon receipt thereof in the manner provided above. Notices are to be posted for 60 consecutive days in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent and by the Employer to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."