Teamsters Local 469 (Coastal Tank Lines)

44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of , America, Local Union No. 469, AFL-CIO (Coastal Tank Lines)' and Alex Carlucci. Case 22-CB-5466 July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT On October 30, 1986, Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief,-* and the General Counsel filed a brief in sup- port of the judge's decision, an answer to the Re- spondent's exceptions, and a cross-exception. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge 's rulings, findings,3 and conclusions only to the extent consistent with this Decision and Order. The complaint alleges, and we find , an arbitrary failure of the Respondent to inform employees it represents that it had agreed with their Employer that the employees were not covered by a pension plan. Although we agree with the judge's state- ment that the Respondent's conduct in secretly ex- empting the employees from pension coverage and allowing the employees to believe for 10 years that they were covered constitutes "an egregious breach of its fiduciary duty," we do not adopt the remedy provided by the judge. We find that the unlawful act was a failure to inform about pension coverage-not a failure to provide that coverage. The authority of the Board to fashion appropriate remedial orders pursuant to Section 10(c) of the Act does not extend to imposi- i On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The Respondent also filed a motion to reopen the record and motion for oral argument The General Counsel filed an opposition . The Re- spondent's motion for oral argument is denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties. The Respondent's motion to reopen the record to permit introduction of evidence not available at the time of trial is denied as there is no showing that the documents were previously unavailable nor is there an adequate explanation of why the documents could not have been located at the time of the hearing and , in any event, the documents do not alter our decision in this matter, ' The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings tion of punitive or penal remedies .4 In ordering the Respondent to provide pension coverage compara- ble to that which the employees thought they were being provided, the judge imposes a punitive order. Although punitive damages may be appropriate in some forum in the unique circumstances of this case, the Act does not designate the Board as the appropriate forum. Based on the Respondent's failure to inform em- ployees regarding their exclusion from pension coverage, we shall order the Respondent to reim- burse the effected employees the difference be- tween the actual cost to employees to obtain com- parable pension coverage individually had they been informed of the lack of coverage in April 1976 and the cost of obtaining such coverage cur- rently . This remedy is consistent with the Board's 10(c) authority to order a violator of the statute to "take such affirmative action . . . as will effectuate the policies of [the] Act." This remedy is also con- sistent with Section 10(c)'s "requirement that a proposed remedy be tailored to the unfair labor practice it is intended to redress." Based on the complaint and the issues that were litigated, the Respondent's only obligation was to inform em- ployees of its inability to negotiate pension cover- age for them-the General Counsel did not allege failure to provide that coverage itself. The judge cites OK, Machine & Tool Corp., 279 NLRB 474 (1986). In that case the Board reversed the judge's remedy requiring the respondent to re- imburse employees directly for pension contribu- tions unlawfully withheld . The Board required that these funds be directed to the pension fund rather than to the individual employees . The judge here recognized that O.K. Machine does not directly support the award herein, as he only provided a "cf." citation. We fail to see any analogy. Perhaps a more closely analogous case is Team- sters Local 282 (Transit-Mix Concrete), 267 NLRB 1130 (1983), enfd. 740 F.2d 141 (2d Cir. 1984), cited by the judge in his analysis section. The re- spondent union there arbitrarily failed to inform employees of an arbitrator's decision requiring that they contact their employer at least once a year while on layoff in order to maintain their seniority. The Board, with court approval, ordered the re- spondent to (1) request that the arbitrator reopen the proceedings to provide for notice to employees and a retroactive grace period for employees who were dropped from the seniority list; (2) post 4 Phelps Dodge Corp Y NLRB, 313 U.S. 177, 193-200 (1941 ); Republic Steel Corp v. NLRB, 311 U S 7, 10 (1940), Consolidated Edison Ca, v NLRB, 305 U.S 197, 235-236 (1938); see also Carpenters Local 60 Y. NLRB, 365 U S 651, 655 (1961). 5 Sure Tan. Inc v. NLRB, 467 U.S 883, 900 (1984) 290 NLRB No. 9 TEAMSTERS LOCAL 469 (COASTAL TANK LINES) copies of the arbitration award at its meeting halls and publish them in its newspaper; and (3) make whole those employees who lost work by payment of an amount equal to that which they would have earned. In our view the monetary award in Transit- Mix was properly "designed to recreate the rela- tionships that would have been had there been no unfair labor practice."6 The judge's remedy in the present case goes one step further than recreating what "would have been." Given the way the General Counsel drafted the complaint, there is no basis for finding that the Respondent should have provided pension cover- age. Had the Respondent satisfied the alleged duty of fair representation, there would still have been no pension coverage. No violation of the Act oc- curred when the Employer and the Respondent agreed to exclude the affected employees. Employ- ees affected by this lack of coverage would have had to find alternative coverage. The judge's remedy requires the Respondent to go beyond the consequences of its unlawful action and is thus pu- nitive. In contrast, in Transit-Mix the consequences of the union's unlawful act was to deprive employ- ees of benefits to which they had an affirmative en- titlement.7 ORDER The National Labor Relations Board orders that the Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 469, AFL-CIO, Newark, New Jersey, its officers, agents, and rep- resentatives, shall 1. Cease and desist from (a) Inducing employees to become members or to change their employment status by assuring them of contractual pension coverage while per- mitting their Employer to avoid such coverage for them. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Reimburse the owner-drivers of Coastal Tank Lines who were employed at its Woodbridge 6 Franks v Bowman Transportation Co, 424 U S 747, 769 (1976) 7 The judge also cites Service Employees Local 3036 (Linden Mainte- nance), 280 NLRB 995 (1986), in which the Board ordered a make-whole remedy for the failure to process a grievance As we have explained, however, the judge's remedy here made the employees more than whole for the failure to inform Member Cracraft notes that she would find a remedy such as the one given in Local 3036, supra, to be speculative and punitive, unless the General Counsel showed the grievance was meritorious 45 (Avenel) terminal in the manner set forth above in this decision. (b) Post at their business office, meetings halls, and at all places where notice to members are cus- tomarily posted copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (c) Mail to each owner-driver a copy of the at- tached Appendix. Copies of the notice shall be pro- vided by the Regional Director for Region 22, and shall be signed by the Respondent's authorized rep- resentative. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the allegation in paragraph 12 of the complaint is dismissed. a 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 Nation- al 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 - APPENDIX 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT induce employees to join our union or to change their employment status by as- suring them that they are covered by a pension fund under a collective-bargaining agreement when, in fact, they are not. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reimburse all owner-drivers of Coastal Tank Lines who were employed at its Woodbridge (Avenel), New Jersey terminal for the difference between the actual cost to employees to acquire comparable pension coverage individually had they 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been informed of the lack of such coverage in April 1976 and the cost of obtaining such coverage currently. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMER- ICA, LOCAL UNION No. 469, AFL- CIO Gary A. Carlson, Esq., for the General Counsel. Timothy R. Hott, Esq. (Hott. Margolis & Hernandez), of Jersey City, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The complaint alleges that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 469, AFL-CIO (Respond- ent), has engaged in unfair labor paractices in violation of Section 8(b)(1)(A) of the National Labor Relations Act (the Act). Specifically, Respondent is alleged to have arbitrarily failed, for almost a 10-year period, to inform employees it represents that it had agreed with their employer that they were no longer to be covered by a pension plan. Respondent is also alleged to have ar- bitrarily failed to process a grievance of one of those em- ployees over the failure of their employer to contribute to the pension fund on behalf of the grievant. Respond- ent's answer placed those allegations in issue and averred, inter alia, that the provisions of Section 10(b) of the Act bar further proceedings in this case. I heard this case in Newark, New Jersey, on 4 and 5 August, 1986. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and by Respond- ent, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS The pleadings establish , and I find, that Coastal Tank Lines, Inc. (Coastal) is engaged in the business of trans- porting freight. Its operations meet the Board's standard for the assertion of jurisdiction. The pleadings also disclose that Respondent is a labor organization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In or about 1969, Coastal had a freight terminal in Woodbridge, New Jersey. Drivers on its payroll were represented by Respondent. Coastal also used the serv- ices there of about 24 owner-operators who were unrep- resented. It is this latter group of drivers who are in- volved in the instant case. In early 1976, Coastal expanded its operations at the terminal by its purchase of a competitor, P. B. Mutrie Motor Transportation , Inc. and by adding Mutrie drivers to the unit represented by Respondent . Coastal also took steps then to restructure the arrangement it had with the owner-operators. B. Initial Contract Covering the Owner-Operators Coastal posted a notice at the Woodbridge terminal in- forming those owner-operators that it would meet with them in late January of that year to discuss the impact of the Mutrie merger. That meeting was held at a restau- rant close to the Woodbridge terminal . Present at that meeting for Coastal were its area supervisor, Don Woods, and its terminal manager , Glen Austin. No one from Respondent was at the meeting. The Charging Party, Alex Carlucci, testified about what transpired at that meeting; no one from Coastal testified. Carlucci's ac- count, Which I credit, describes that meeting, as follows. Woods told the approximately 24 owner-operators present then that, when the merger with Mutrie took place in about March 1976, all the owner-operators would be required to become members of Respondent. Carlucci and many other owner-operators voiced objec- tions to joining Respondent. They asked what they were going "to get out of it." Woods responded that they would be covered by the health, welfare, and pension plan provided for in Coastal's and Mutrie's contracts with Respondent and that they would enjoy job security and all the other benefits provided for in those contracts. About a week later, Coastal's terminal manager in- formed the owner-operators that William Johnson, Re- spondent's recording secretary then, wanted to meet with them at his office. Virtually all the owner-operators went to Respondent's offices in early February 1976. Ac- cording to the testimony of the Charging party, Car- lucci, Johnson assured them then that, on their becoming members, they would be covered under the drivers' col- lective-bargaining agreement for all benefits, including health, welfare, and pension. Johnson testified that he could have had six or eight conversations with Carlucci about the merger but he did not "remember what the substance of them [was]." In response to clearly leading questions, Johnson indicated by his answers that the owner-operators had agreed then to be represented by Respondent; he denied that he made any promises to them to induce them to become members of Respondent. I credit Carlucci's testimony over the vague, conclusory account offered by Johnson. Carlucci's further testimony as to a meeting at the Woodbridge terminal on 16 or 17 February 1976, which testimony I credit , discloses that various Coastal officials, including Woods, met with Respondent's recording sec- retary, Johnson, and with about 13 owner-operators. The owner-operators informed Woods and Johnson that they were reluctant to become members of Respondent but that they would join , provided they were guaranteed a contract, the same as that covering the "company driv- ers." Several days later, according to Carlucci, a meeting was held at Respondent's office . Present then were TEAMSTERS LOCAL 469 (COASTAL TANK LINES) Woods and other Coastal officials, Carlucci as temporary steward for the owner-operators, the steward for the company drivers, John Maxwell, and lastly, Johnson, who conducted the meeting. The first item of business had to do with the dovetailing of the Coastal and Mutrie company drivers onto one seniority roster and details of a contract covering them . When those matters were re- solved, the participants addressed the concerns of the owner-operators. As to those, Woods stated that Coastal had had a change of mind and decided that it would not give the owner-operators the health, welfare, and pen- sion benefits provided for in the contract covering the company drivers. Carlucci further testified that he then informed Johnson that the owner-operators would not become members of Respondent and that they might, in- stead, picket the Woodbridge terminal when the merger took place. As noted above, no Coastal official testified. Johnson's testimony was vague, and did not directly con- trovert Carlucci's account. I credit Carlucci's testimony. Carlucci filed an unfair labor practice charge in early 1976 against Coastal alleging that the dispatch system at Woodbridge, when` the merger was to take effect, would unlawfully discriminate in favor of drivers represented by Respondent On 11 March 1976 according to Car- lucci, the approximately 24 owner-operators met with Johnson who informed them that he had been in contact with Woods. The owner-operators insisted that they had to have a "confirmed agreement that [Coastal] would pay for health, welfare and pension." Johnson made sev- eral telephone calls to Woods and then informed the owner-operators that they "have a contract." Carlucci was elected permanent steward and he'indicated that the owner-operators had to get written "specific language" on the whole contract. Carlucci requested withdrawal of the unfair labor practice charge he had filed and his re- quest was approved. Johnson testified for Respondent that Coastal did not agree to Respondent's bargaining demand that the owner-drivers be covered by a pension plan. If, by that testimony , Johnson meant that he never had any of the discussions as related above by Carlucci, I do not credit it. His testimony was conclusory and was given in the form of a summary response to a leading question. I credit Carlucci's account. In early June 1976, Carlucci obtained from Respond- ent a copy of the collective-bargaining agreement cover- ing the regular drivers at Woodbridge. Under that con- tract, Coastal agreed to contribute to a pension plan on behalf of those "company drivers." Carlucci also secured from Respondent then a copy of an addendum to that contract which provided that the owner-operators would be covered by the terms of the contract. That contract, by its terms, was scheduled to expire on 31 October 1976. The owner-operators at Woodbridge since mid-1976 have been referred to as "owner-drivers" to reflect that, insofar as their driving duties were concerned , they were carried on Coastal's regular payroll as its employees. C. The, Implementation of the Pension Plan for the Owner-Drivers On 21 April 1976, Carlucci received a computer print- out sheet from Coastal which showed the Coastal had 47 made a payment of $27.60 to a health and welfare plan and another payment of $98.61 to a pension plan The printout sheet also disclosed that those moneys were de- ducted from Carlucci's wages. Carlucci immediately pro- tested to Johnson and to Coastal 's terminal manager. Johnson, in Carlucci's presence, telephoned Woods and then informed Carlucci that the deductions had been made in error because Coastal had ageed in its contract with Respondent to absorb the full costs of these plans. Johnson assured Carlucci that he would have his money back in a week. A week later, Carlucci received reim- bursement for the sums deducted. Since then and until December 1985, Carlucci and other owner-drivers regularly received from Coastal computer printouts reflecting that payments were being made on their behalf for health, welfare, and pension coverage. The February 1979 issue of Coastal's employee newsletter contained an article that stated that its owner- drivers receive the same wages and benefits as its regular drivers. Coastal's regular drivers at Woodbridge were covered by the pension plan. D. The Termination of Pension Coverage Johnson, who was Respondent's recording secretary in 1976, testified that Coastal had never agreed to provide pension coverage for the owner-drivers and thus he of- fered no explanation as to the circumstances under which that coverage could have ended. For the reasons set out above, I do not credit Johnson's testimony. No one from Coastal testified as to the negotiations govern- ing pension coverage for the owner-drivers. Counsel for the General Counsel stated at the hearing that he had no knowledge as to the circumstances under which Coastal and Respondent had agreed not to provide pension cov- erage for the owner-drivers. The General Counsel ac- knowledges that there was such an agreement ; the com- plaint alleges that , on an unknown date in April 1976 Re- spondent entered into an agreement whereby the owner- drivers would not be covered by the pension plan provi- sions. To establish that the owner-drivers were not covered by the pension plan, the General Counsel placed in evi- dence various letters, copies -of which had been furnished to Carlucci when he had first inquired shortly before he filed the unfair labor practice charge in this case, as to the status of his pension account. The first letter, dated 2 September 1977, was signed by Coastal's vice president of administration, Woods, and was addressed to Johnson , as president of Respondent. Woods wrote that he wished to clarify the negotiated labor agreement to reflect that Coastal had agreed "that no pension contributions were to be made by [Coastal] for owner-operators." The second letter, dated 16 November 1977, was signed by the attorney for the pension fund and was ad- dressed to Coastal's attorney. That letter stated that the pension fund cannot accept any payments made by Coastal on behalf of the owner-drivers because there is no written agreement therefor and, further, that contri- butions previously received on their behalf by the pen- sion fund will be returned. There is nothing in the record 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD before me which explains the circumstances under which this letter or those pertaining to the first letter was writ- ten. The third letter, dated 8 February 1978, was signed by the pension fund's administrator and was addressed to Coastal at its terminal, since removed to Avenel, New Jersey. In that letter, Coastal was advised that its "over- payments" to the pension fund, by reason of its contribu- tions on behalf of owner-operators, would be returned. Coastal was also informed that it was delinquent as to certain contributions for the owner-operators to the sepa- rate health and welfare fund. The next letter is dated 21 February 1978 and was written by Coastal's vice president, Woods, to the ad- ministrator of the pension fund. In it he stated that Coastal erroneously paid pension contributions for the owner-drivers and that, "as negotiated . . . [they] were not to participate in the Pension program." The next letter is dated 2 March 1978 and is addressed to Respondent and to attorneys. It is signed by the pen- sion fund administrator and states that 11 owner -opera- tors, named therein, were being informed that day by separate letters that pension credits for them were being removed based on the 16 November 1977 letter from counsel. Carlucci was not one of those 11 . Attached to that 2 March letter was a form letter , also dated 2 March. This form letter had a blank space for the ad- dressee. The body of the letter recited that a copy of the 16 November 1977 letter (described above) was enclosed, that that letter sets forth the reasons why the pension fund cannot accept contributions made by Coastal on behalf of the owner-drivers, and that accrued pension credits were rescinded. No evidence was proffered that that letter was sent to any of the owner-drivers. No at- tempt was made by Respondent to explain why the names of only 11 of the approximately 24 owner-drivers then were contained in the body of the 2 March letter addressed to Respondent. For that matter, no evidence was proffered that Coastal ever made the contributions referred to therein. The pension fund's records were not proffered to show that it ever credited that account of any owner-driver of Coastal for contributions made by Coastal. No evidence was offered by Respondent to show that Carlucci, until December 1985, had been informed by it that he was not covered by the pension plan. E. The Renewal Agreements The General Counsel offered testimony to show that, in all the negotiations for the collective-bargaining agree- ments that succeeded the first one covering the owner- drivers, the Respondent led Carlucci to believe that he and the owner-drivers continued to be covered by the pension plan. Respondent offe red testimony to show ex- actly the opposite. The testimony bearing on this matter is now set out. On the expiration of the first contract on 31 October 1976 covering the owner-drivers via the addendum thereto, as discussed above, a renewal contract was en- tered into for a 3-year period, 1976-1979. An addendum thereto provided for coverage thereunder for the owner- drivers. The only significant change from the first con- tact was that the owner-drivers agreed to pay 40 percent of the health and welfare premiums . Carlucci testified, and I credit his account, that the principal negotiators, including himself, had agreed that all provisions of the prior contract, which were unchanged, continued in effect. As noted above, he and other owner-drivers con- tinued to receive regular computer printouts from Coast- al which disclosed health, welfare, and pension coverage. On the expiration of the 1976-1979 contract, another 3- year renewal agreement, 1979-1982, was entered into along virtually identical lines. When the 1979-1982 contract was about to expire, Coastal made it known that it was considering closing its Avenel terminal . However, a contract for 1982-1985 was reached. It provided that all wages, hours, and other conditions of employment of owner-drivers were set forth therein . There was no express reference to pension coverage; there was a provision that Coastal would pay $139.33 for health and welfare and that each owner- driver would contribute the balance of the cost of that plan. Article 12 of the 1982-1985 agreement provides that: Employees who are covered by this contract and who are receiving either wages or benefits more ad- vantageous than provided for by this Agreement, shall continue to pay such benefits during the terms of this agreement. The word "pay" in this extract is, from the context, obviously an error; the word intended has to be "re- ceive." F. The Closing of the Avenel Terminal In November 1985, Coastal locked out the drivers at the Avenel terminal. The owner-drivers there picketed for a short while but became disillusioned apparently be- cause Coastal was going bankrupt. It was then that Car- lucci first inquired about his status with the pension fund and when he was given copies of the letters discussed above. Carlucci filed a grievance with Respondent cov- ering Coastal's failure to make contributions on his behalf to the pension fund. Respondent presented the grievance to Coastal. Its vice president wrote on 6 Janu- ary 1986 to advise Respondent that the grievance was denied "as having no contractual support." Respondent wrote to request a meeting to discuss that grievance and two others. The meeting was held on 26 February 1986. At that meeting Coastal's representatives advised that Coastal had never agreed to contribute to the pension fund on behalf of the owner-drivers to Avenel ; Respond- ent informed Carlucci at that meeting that it had been agreed back in 1978 that there was no pension fund in effect for those owner-drivers. G. The Limitation of Actions Defense Respondent, by its answer, has averred that Carlucci knew, or in the exercise of reasonable diligence should have known, as early as 1982 and even before then, that there was no pension fund provided for owner-drivers in any agreements between Coastal and Respondent. In its TEAMSTERS LOCAL 469 (COASTAL TANK LINES) brief, Respondent relies on the copy of the form letter dated 2 March 1978, discussed above in subsection D. At the hearing, it proffered the testimony of an owner- driver, Wayne Langdon. He testified initially that, when he became an owner-driver in March 1977, he told the steward then (he stated he did not recall if it was Car- lucci or the assistant steward) that he thought he was covered by a pension plan but was informed, in response, that he had "no pension." Langdon was not asked to, and he did not, explain why he believed he was covered by a pension plan. Later in his testimony, he related that he received regular computer printouts from Coastal each of which had a printed statement thereon reflecting contributions by Coastal on his behalf to the pension fund. He testified that he asked Coastal why that state- ment appeared on his printouts and that he was told that the statement was 'there because of a clerical mistake. Langdon did not testify that he questioned Carlucci or the assistant steward about the statement being on his printout sheets. although that would seem most likely for him to do so because he had testified that he was of the belief initially that he had pension coverage and had been informed by one of them that he had no such cov- erage. Nor did Langdon testify why he did not pursue his initial inquiry to Coastal when he continued to re- ceive printout sheets with that statement . On cross-exam- ination, Langdon stated that he had crossed a picket line set up by the owner-drivers and that, as a result, Car- lucci threw him out of a union meeting being held con- cerning the owner-drivers Langdon's account is not persuasive. It appears to be improbable on critical aspects and inherently unlikely on others. Perhaps it is for those reasons that Respondent's brief makes no reference about Langdon's testimony. In any event, I do not credit Langdon's testimony H. Analysis The initial question to be decided is whether the com- plaint allegations are time barred under Section 10(b) of the Act. Respondent has the burden of supporting that position by affirmative evidence. See Harvard Folding Box Co., 273 NLRB 841 (1984). Respondent states in its brief that "at least a dozen owner-operators did receive" notice in 1977 that they were not covered by the pension plan. In support of the quote, Respondent referred only to an exhibit offered by the General Counsel, i.e., the let- ters furnished Carlucci in late 1985 by Respondent when he inquired about the status of the pension account. There is no probative evidence before me that any of the owner-drivers received such notice. As noted above, Re- spondent had offered the testimony of Wayne Langdon apparently in support of its contention there that Car- lucci was on notice in March 1977 that there was "no pension" for the owner-drivers at Avenel. That testimo- ny was not credited, as observed above. In the absence of any credible evidence in support of the 10(b) defense urged by Respondent. I reject it. The complaint alleges that Respondent, for unfair, ar- bitary, and invidious reasons, and in breach of the fiduci- ary duty it owed to the owner-drivers at Woodbridge (Avenel) whom it represents, failed to inform them it had agreed with Coastal that they would not be covered 49 by a pension plan. The credited evidence disclosed that the owner-operators at Woodbridge changed their status in 1979 to that of owner-drivers and became members of Respondent on the assurances of Respondent that they had contractual guarantees of pension coverage. The tes- timony also discloses that Respondent had then made an arrangement with Coastal whereby Coastal was exoner- ated from making contributions to the pension fund for those owner-drivers, called for by the contract; a con- tract that called for Coastal to make the same contribu- tions- for them that were being made for the company drivers at Woodbridge. Respondent, as the bargaining representative of the unit of owner-drivers at Woodbridge (now Avenel) is charged with a fiduciary responsibility to protect the in- terests of those employees, a duty it must discharge in complete good faith and honesty of purpose. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). Respondent, by having kept secret from these owner-drivers from virtu- ally the onset of their joining Respondent in 1976 until the end of 1985 its agreement with Coastal in 1976 to exempt Coastal from its contractual obligation to make pension contributions for those owner-drivers and there- by allowed them to continue for almost 10 years in the belief that they were covered by the contractual pension fund, has committed an egregious breach of its fiduciary duty. In Teamsters Local 282 (Transit-Mix Concrete), 267 NLRB 1130 (1983), enfd. 740 F.2d 141 (2d Cir. 1984), the labor organization there was found to have commit- ted an unlawful breach of its duty of fair representation by not having informed unit employees of a favorable se- niority award and by not having offered a rational basis for its conduct. In the case before me, the credited evi- dence establishes that Respondent, when the owner-oper- ators were at the bargaining table in 1976, negotiated a pension plan for them but, almost simultaneously and somehow away from the bargaining table, it privately forgave Coastal its duty to make the contractual contri- butions to that plan. The owner-operators, unaware of the latter arrangement, then joined Respondent as mem- bers and became owner-drivers of Coastal, accepting the attendant changes in their pay Respondent's conduct is more egregious than the conduct found unlawful in Transit-Mix, supra. See also Service Employees Local 3036 (Linden Maintenance), 280 NLRB 995 (1986), for another case where conduct, less egregious than that in the in- stant case, was held to be violative of the Act. Respond- ent's conduct, even without a showing that there was a sinister reason behind it, is patently unlawful. I find that Respondent's failure to disclose to the owner-drivers its agreement with Coastal whereby Coastal was relieved of the obligation to contribute to the pension fund constitut- ed a violation of Section 8(b)(1)(A) of the Act. The complaint further alleges that Respondent unlaw- fully failed to process Carlucci's grievance against Coast- al respecting the pension fund contributions. The Gener- al Counsel did not pursue this allegation in the brief filed with me. I find no merit in this allegation. Respondent's brief cogently observes "curiously" that the alleged re- fusal is "particularly odd in view of the . . . finding that Coastal had no such obligation," a reference to the dis- 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD missal of Carlucci's unfair labor practice charge against Coastal in Case 22-CA-14321. this remedial provision can be resolved at the compliance stage. REMEDY To remedy so patent a breach by Respondent of its fi- duciary obligations, I find it necessary to provide that the owner-drivers involved here shall be made whole by requiring Respondent to arrange to provide them, as closely as possible, with pension coverage equivalent to that which they would have enjoyed had contributions been made to the pension fund in accordance with the contract terms as the driver-owners knew them to be. Because it appears that the fund may not be able to accept contributions from nonemployers or employers not under contract, it may be necessary for Respondent to arrange for the owner-drivers to obtain coverage di- rectly or Respondent may provide coverage through a recognized institution . Cf. OX Machine & Tool Corp., 279 NLRB 474 (1986). Any controversy arising out of CONCLUSIONS OF LAW 1. Respondent is a labor organization as defined in Section 2(5) of the Act 2. By having committed a breach of its fiduciary re- sponsibility toward the owner-drivers of Coastal by lead- ing them to believe they had contractual pension cover- age while also exonerating Coastal from making the req- uisite contributions to the pension plan itself, Respondent has violated Section 8(b)(1)(A) of the Act. 3. The unfair labor practices found in paragraph 2 above affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent did not unlawfully fail or refuse to process Carlucci's grievance as alleged in paragraph 12, 14, 15, and 16 of the complaint. [Recommended Order omitted from publication.]