Desks, Inc.

DESKS, INC. Desks, Inc. and Paul Poulos Teamsters Local Union No. 814, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America , AFL-CIO' and Paul Poulos. Cases 22-CA-14968 and 22- CB-5645 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN , CRACRAFT, AND HIGGINS On July 20, 1988, Administrative Law Judge Robert T. Snyder issued the attached decision. The Respondent Employer and the Respondent Union filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Respondent Desks, Inc., Clif- ton, New Jersey, its officers , agents, successors, and assigns, shall take the action set forth in the Order as modified , and Respondent Teamsters Local Union No. 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Long Island City, New York, its officers, agents, and representatives, shall take the action set forth in the Order except that the attached notices are substituted for those of the administrative law judge. ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended 2 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law ,fudge'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 re- versing the findings. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1 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 cause or attempt to cause Desks, Inc., or any other employer, to refuse to employ or otherwise discriminate against Paul Poulos, or any other employee, because he or she opposed the policies of Teamsters Local Union No. 814, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO, filed charges under the Act, or for any rea- sons other than the employees' failure to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in Local 814. 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 jointly and severally with Desks, Inc. make Paul Poulos whole, with interest, for any loss of earnings and benefits incurred by reason of having caused Desks, Inc. not to employ him in violation of Section 8(a)(3) of the Act. TEAMSTERS LOCAL UNION No. 814, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMER- ICA, AFL-CIO APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to employ or otherwise dis- criminate against employees in collaboration with, or in response to unlawful pressures from, Team- sters Local Union No. 814, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, of coerce you in the exer- 295 NLRB No. I 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Paul Poulos immediate and 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. WE WILL, jointly with Teamsters Local Union No. 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, or severally, make Paul Poulos whole, with interest, for any loss of earnings and benefits because of our unlawful refusal to employ him about May 1986. DESKS, INC. William Grant, Esq., for the General Counsel. Philip Elberg, Esq. (Medvin & Elberg, Esgs.), of Newark, New Jersey, for the Respondent Employer. Jay P. Levy- Warren, Esq. (Friedman, Levy- Warren & Moss, Esqs.), of New York, New York, for the Re- spondent Union. Paul Poulos, Charging Party, of Fly Creek, New York, appearing pro se. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. These consolidated cases were heard in Newark, New Jersey, on April 12 and 13, 1988, upon unfair labor practice charges filed against the Union and Employer on March 26 and April 9, 1987, respectively, and a consolidated complaint issued on July 31, 1987.1 The consolidated complaint alleges that the Respondent Union, Teamsters Local Union No. 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union or Local 814) violated Section 8(b)(1)(A) and (2) of the Act and the Respondent Em- ployer, Desks, Inc. (Desks) violated Section 8(a)(1), (3), and (4) of the Act by the Union's conduct in attempting to cause and causing the Employer to refuse to employ the Charging Party, Paul Poulos, because Poulos op- posed the policies of the Union, filed charges under the Act, and for reasons other than Poulos' failure to tender periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership in the Union. In their duly filed answers, Respondents denied that any unfair labor practices were committed and, at the outset of the hearing, amended their respec- tive answers to assert, as an affirmative defense, that the proceeding was time-barred under Section 10 (b) of the Act.2 Following close of hearing , briefs were filed on behalf of the General Counsel, Respondent Employer, and Respondent Union. Under the entire record in this proceeding, including consideration of the briefs filed on behalf of the parties, and after close observation of the witnesses and their de- meanor while testifying , I make the following FINDINGS OF FACT 1. JURISDICTION Respondent Desks (Desks), is a domestic corporation engaged in the business of the sale , distribution, and in- stallation of office furniture which has an office and place of business in Clifton, New Jersey (the Clifton fa- cility). The complaint alleges that during the period March 1 , 1986, to March 1 , 1987, Desks, in the course and conduct of its business operations, as described, sold and shipped from its Clifton facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of New Jersey. While Respondent Em- ployer denied this allegation and it is thus unclear to which portion of the allegation Desks took exception, Respondent employed a total complement of 60 employ- ees shortly after it commenced operations in late 1985, at the time of the hearing had a regular work force of 15 drivers, warehousemen , and helpers in the unit covered by the collective-bargaining agreement involved in the proceeding, has maintained a New York facility at all times material herein and has assigned employees regu- larly employed at its Clifton facility to work chores, in- cluding deliveries of furniture and related products, in New York City. Most significantly, the complaint al- leges, Respondent Employer's answer admits, and I ac- cordingly find that it is, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answers admit, and I find that Respondent Teamsters Local Union No. 814,. Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Collective-Bargaining Relationship and Agreement Between Desks and Local 814 For some years, Local 814 has represented as exclu- sive collective-bargaining agent a unit of chauffeurs and warehousemen/helpers, employed by Desks . In a collec- tive-bargaining agreement effective May 1, 1983, to April 30, 1986, a printed version of which was made part of the record (the new furniture agreement), wages of driv- 1 A portion of the charge filed against the Union alleging that the Union breached its duty of fair representation by, inter alia entering into an elicit, so-called vest pocket agreement with the Employer in or about May 1983, was dismissed as time-barred under Sec. 10(b) of the Act by letter dated July 31, 1987, from the Regional Director to the Charging Party. No appeal was taken from this dismissal. 3 Motions to amend the answer to claim the time -bar were granted after each Respondent counsel noted that General Counsel had been aware of the defense long before the hearing and General Counsel noted he had no objection, and over objection of Poulos. It is clear that the defense has been raised in timely fashion. DESKS, INC. 3 ers of trailers were $427.20, $441.20, and $455. 20 in May 1, 1983, 1984, and 1985, respectively, wages of drivers of straight trucks were $420.20, $434.20, and $448.20 on the same dates, the warehousemen wages were $414.20, $428.20, and $442.20, and those of helpers were $407.20, $421.20, and $435.20. New distribution work, defined as the fitting out of buildings, or part thereof, with new fur- niture, equipment, or machines, as distinguished from commercial moving jobs, was to receive a rate of almost a dollar per hour greater for each classification in each year of the agreement. Thus, e.g., trailer drivers for new distribution effective May 1, 1985, were to receive $12.33 an hour, as against $11.38 an hour for all other work. In addition, the agreement also contained a provision for a cost-of-living allowance, providing 1-cent-per-hour ad- justment for every .3-point increase in the Index. A seniority clause (sec. 11) provided, "The principle of seniority shall be strictly adhered to and the seniority rating of all employees shall, except in the case of the Shop Steward, be determined solely by the length of his employment and once established, shall remain in force unless his employment is terminated through resignation or dismissal. A lay off due to lack of work shall not effect such rating." In another clause of the agreement, the Union was provided the exclusive right to refer applicants for em- ployment for a 48-hour period following the Employer's notice to the Union of a need for additional employees. In a separate provision, the parties also recognized the existence of an Employer's Seniority List from which the Employer would first hire on a regular, daily, overtime, or any other basis before giving the Union the opportuni- ty to refer applicants. In practice, long-time union shop steward Tommy Walsh was delegated the authority by the Company to contact men from the list to refer them for employment, or to then obtain employees from the union hall. Testimony established that new employees achieved seniority status and, therefore , inclusion on the seniority list after working 30 or more days in covered employ- ment for Desks. B. The History of Poulos' Employment by Desks and His Dissident Status in the Union For a period of 15 years preceding the instant hearing, Paul Poulos has been engaged in dissident activities seek- ing to reform and democratize the I.B.T. For 2 years during the late 1970s Poulos was the organizing director of the Professional Drivers Council (P.R.O.D.), a nation- al teamsters reform group headquartered in Washington, D.C. Since 1979, upon his relocation and return to the New York City metropolitan area, Poulos has continued his efforts to democratize the Teamsters Union in general and Local 814, in particular. Years ago, during the 1960s, Poulos had lived in the New York City area and had been a member of Local 814 and was employed in the moving and storage indus- try. In the spring of 1982, Poulos was hired by Desks as a warehouse employee, worked 32 days by the summer and thereby completed his probationary period and was placed on the Desks seniority list. Poulos was then termi- nated from his job. Upon making inquiry of Louie Russo, Desks' then dispatcher and warehouse manager , Poulos was informed shortly after his discharge that the Union had contacted Russo and told him to fire Poulos. This had occurred right after Poulos, with Russo's approval, had gone to the Union to get his membership book and told the union officials that he had worked 30 days and was on the seniority list. Shortly after Poulos had made the list, he had also ap- proached union shop steward Tommy Walsh for work at a jobsite in Manhattan . Walsh later testified that he abruptly cut off Poulos' entreaty in a profane manner disputing Poulos' claim to being on the list, informing him if he did not have a union book he could not work, and subsequently contacted the Union to inform it of Poulos' claim. According to Walsh, only book men (union members) were eligible for assignment from the list through him but that when he contacted the hall, the Union could refer men without a book. Walsh later became aware that Poulos had run against Bracco for union office and he knew then that Poulos and Business Agent Tony Cantatore did not get along. As a consequence of this series of events resulting in Poulos' earlier termination, he filed companion unfair labor practice charges against Desks and Local 814 in Cases 22-CA- 11987 and 22-CB-4798 and brought suit in Federal District Court for the Eastern District of New York in Civil Action No. 82-3390 against J. Vincent Bracco, individually and as president of Local 814, Charles Martelli, a trustee of Local 814, and Local 814, seeking damages. The Board proceedings resulted in companion infor- mal settlement agreements approved by the Regional Di- rector on November 30, 1983 , in which Desks and Local 814 agreed to make Poulos whole by paying him, jointly, $2403 and by posting notices in which Desks agreed, inter alia, it would not refuse to employ him because he was not a member or opposes the policies of the leader- ship of Local 814 and agreed to employ him in accord- ance with his place on its seniority list, and Local 814 agreed, inter alia, it would not cause or attempt to cause Desks not to employ him for the same reasons and it would advise Desks it had no objection to his continued employment in accordance with his place on the seniori- ty list, and in accordance with its union shop agreement with Desks. Both settlement agreements contained non- admission clauses in which the Government agreed that the charged parties, by executing the agreements , did not admit they had violated the Act. The district court suit resulted in the entry of a judg- ment after trial before the court and a jury in favor of Poulos and against the defendants in the total amount of $44,603, comprising $2403 backpay already paid by Desks and Local 814, $4200, including $1600 against Local 814, $1600 against Bracco, and $1000 againsts Martelli, and punitive damages in the amount of $12,000 with respect to Local 814, $ 14,000 with, respect to Bracco and $12,000, with respect to Martelli. The civil suit had originally included Desks as another defendant but that portion of the suit was severed and dismissed, and the dismissal was sustained on appeal. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Poulos was subsequently recalled from the seniority list to employment in August 1983 and worked 30 days between August and October 1983, before he was laid off admittedly for lack of work. At the time of this layoff and continuing to the date of the hearing Poulos was and continued to be a member of Local 814, eligible to participate fully in the affairs in the Union . He attend- ed periodic membership meetings and actively pursued efforts to reform the procedures and administration of the Local. Thus, for example, by open letter dated Sep- tember 27, 1984, addressed to Joseph Trerotola, presi- dent of Teamsters Joint Council #16 in New York City and First Vice President of the International Union, Poulos protested that the Local 814, Desks 1983-1986 collective-bargaining agreement, which he noted was agreed to in May 1984, was entered by Local 814 offi- cials without consulting members of the bargaining unit as to its terms and conditions and without offering them an opportunity to accept or reject the Employer's pro- posals in a secret ballot as prescribed in the IBT constitu- tion, the relevant section of which Poulos quoted . Poulos went on to request Trerotola in his official capacities to direct Local 814 officials to schedule a meeting of Desks' unit employees within 20 days to discuss the agreement and provide each such employee an opportunity to vote on its terms by secret ballot at its conclusion . No reply was forthcoming. In the fall of 1985 Poulos ran for president of Local 814 with a slate of other independent candidates. In a piece of campaign literature paid for by the 814 Commit- tee to Re-Elect the Unity Administration, which includ- ed incumbents Vinney Bracco, president and Charles Martelli, secretary-treasurer, among other officers, Poulos was characterized, inter alia, without being named, as someone who "In the past . . . has been ac- tively involved with organizations which are out to DE- STROY UNIONS. He has been Director of PROD and an active member of TDU-which speaks for itself. They are antiunion organizations." Poulos was also de- scribed as "Vinny's opponent [who] has taken Local 814 to Court several times and has cost our Local Union over $100,000 in legal fees and costs over the past few years." The piece stressed that this candidate has worked only a total of 39 hours in the last 23 months for a local 814 employer and after being a member of Local 814 in the 1960s, was later suspended for nonpayment of dues and did not become a member again until September 1983. On January 21, 1986, Poulos and three other members signed their names to a muultipage petition which they submitted to the Local 814 executive board on the same date, demanding that the executive board members move to recover membership moneys which were expended and converted to advance the unlawful acts and interests of certain principal officers, agents, and legal representa- tives of the Union as described in two charges spelled out in accompanying pages . In charge A, Poulos and the other member charged that union funds were expended and converted in support of union officers and agents who were indicted for labor racketeering . Some of the funds were salaries and other benefits drawn from the Union's general treasury and paid to principal union offi- cers while they were engaged in the practice of labor racketeering . Other funds were paid to the law firm of Cohen, Weiss and Simon on retainer as the legal repre- sentative of the Union while it advised, aided, abetted, and supported the union defendants in defending against the labor racketeering charges . These moneys, like the officers salaries and benefits, were drawn from the Union's treasury, derived from membership dues and ini- tiation fees. In charge B, the petitioners charged that the Union President Bracco and Secretary Treasurer Martelli knowingly and willfully engaged in unlawful acts result- ing in the damage award in the U.S. district court previ- ously described and which acts served to personally ben- efit the named officers at the expense of union members. The petitioners further charged here that the Union's law firm acted as the officer 's co-conspirators in'advanc- ing their illegitimate aims and interests, in return for which services it received in excess of $100,000, thereby advancing its own interests above those of the Union and its members. The acts and conduct described were al- leged to have breached the IBT constitution and Local 814 bylaws and the position of trust and fiduciary obliga- tion the union defendants and law firm owed to the members and the Union. The charges were accompanied by documents upon which they were based , including the criminal indict- ment returned against the union defendants and others in the U.S. District Court, Eastern District of New York in June 1985, newspaper clippings, formal documents in both the Board and court proceedings previously de- scribed, election campaign literature, and Local 814's LM-2 reports and financial records and the trial tran- script in Poulos' court proceeding, were incorporated by reference but not attached . The petitioners demanded that the executive board sever its relationship with the law firm, remove Bracco, Martelli, and two other offi- cers as officers and fiduciaries of the Local and its funds, recover all union funds converted and lost by partici- pants in the various funds owing to the acts of racketeer- ing, and all fees, costs, and retainers paid or still owed to the law firm. The petition to the Union and the charges it contained were publicized in a news release also dated January 21, 1986, listing Poulos, with his address , as the contact on the matter, and headed "Teamsters Reformers Charge Their Union Officials And Law Firm With Misuse of Union Funds." By certified letter dated February 28, 1986, the Union's executive board responded to the four Petition- ers, concluding that with respect to the demand for re- moval of four of its members it could not respond by the minority not named, the four named having not taken part in its consideration , and as to the other demands, concluded that they lacked merit. The indictment referred to in the petition resulted in the conviction in October 1986 of Bracco , Martelli, and other members of the Union's executive board of various labor racketeering crimes in U.S. v. Phily Rostelli, et al., 85 Cr. 354 (E.D.N.Y.). Pursuant to Title 29 U.S.C. 504, the convicted members were automatically prohibited by DESKS, INC. 5 law from serving on the executive board. Bracco was succeeded as president of the Local by Ignatus Bracco, his brother. The Union's earlier discriminatory and improper con- duct against Poulos, which resulted in the district court judgment against it on Poulos' action and the settlement of the unfair labor practice complaints by the Union and Desks also became one of the predicate acts relied on by the U.S. attorney for the Eastern District of New York in commencing and pursuing a RICO3 civil action No. 87-2974 in 1987 by a verified complaint of 70 pages against Bracco and others, including the Bonanno Orga- nized Crime Family of LaCosa Nostra, Local 814 and its executive board and its various funds, in which the U.S. Government alleged, inter alia, that the defendants had unlawfully, willfully and knowingly engaged in a pattern of racketeering activity as defined in Title 18, United States Code, §§ 1961(1) and (5) through various, enumer- ated activities, including, as Act of Racketeering #195, a conspiracy to deprive Poulos, a member of Local 814, and others, known and unknown, from obtaining rightful employment and from exercising labor contractual rights and union membership rights. Relief sought in this action included, inter alia, an order divesting the defendants from any position on the Local 814 executive board or as trustees of the Local 814 funds and from dealing with either and any partici- pation in the moving, trucking, and storage business or union representing workers in the industry, the recovery of all assets of the Union and its funds dissipated or mis- appropriated pursuant to the alleged racketeering activi- ties, and the appointment of a trustee to oversee the op- erations of Local 814. By Order to Show Cause made re- turnable in the district court on September 21, 1987, the Government sought a preliminary injunction and expe- diated discovery. The complaint in this civil action was resolved by a consent decree that included a nonadmission clause con- cerning any of its allegations. During the course of the hearing, it was disclosed that its officers and executive board had resigned and since the entry of the consent decree, Local 814 has been operating under the supervi- sion of a trustee, Arthur Eisenberg, Regional Director of Region 22 until his recent retirement. The Local also has in place an executive board consisting of a successor president and secretary-treasurer. As recently as 3 months before the hearing in this case, at a Local 814 membership meeting attended by some 300 members, Poulos took the floor to urge that a proposed lengthy set of new union bylaws which were being presented apparently without prior notice, be mailed to the membership for their considered review before being put to the members for their approval on notice. The next speaker, a member of the Union 's exec- utive board who had resigned from office with all others as a consequence of the consent decree and the establish- ment of the trusteeship, verbally attacked Poulos, charac- terizing him as an outsider not working in the industry, consistent with its criticism of him made in the union ad- ministration's 1985 election literature. C. Poulos' Attempt to Seek Employment at Desks Following the Settlement of his Earlier Charges, Including Filing of a Grievance and its Disposition By letter dated July 14, 1984, addressed to Desks' then distribution manager, Joe Hordnes, Poulos sought to go on record as to his status on the Employer's seniority list and Desks' obligation to recall him when work became available. Although the charged parties had settled the charges filed by Poulos by the fall of 1983, he had not been called back to work thereafter. In the letter Poulos confirmed a recent telephone conversation with Hordnes. He noted his proper place on the Desks' se- niority list immediately behind fellow union member Joe Byczek and trusted that his place appeared on the senior- ity rosters posted at the warehouse. He also set forth his understanding that Desks would call him for work em- braced by the collective bargaining when it becomes available, and in the order of his seniority. Poulos quoted section 16 (Subcontracting) of the agreement prohibiting supervisors from performing unit work or Desks from subcontracting it. He then asked whether Desks had "carved out" work which it felt was exempt from the clause or which released it from the obligation to use Desks' employees from their seniority list or the Union's referral hall to perform such work. Poulos closed by re- questing a prompt response and confirmation of his un- derstanding of their telephone conversation as stated in his letter. A copy was forwarded to Local 814 Business Agent Tony Cantatore. Poulos received no reply from Desks. Then by letter dated December 17, 1985, Poulos set forth in writing to Cantatore a grievance against Desks for end running the seniority roster in violation of the agreement. Poulos wrote that it had come to his atten- tion that Desks used men to perform work covered by the agreement who were not on the company/union se- niority roster, without first contacting him or other em- ployees senior to him to perform such work as called for by the agreement. He demanded contract wages and benefits for each day worked by a man junior to him at work for which he was available and entitled under the contract and asked to be advised as to the time, date, and place of hearing. Copies were sent to Desks, Bracco and Cohen, Weiss, and Simon. Shortly after February 3, 1986, Poulos received a copy of the Employer's response on his and a companion grievance filed by Joe Byczek,4 from Michael T. Kee- vins, vice president/operations, to Cantatore. As to Poulos' claim that men had been hired by Desks, that he was on its seniority list and was never notified, Keevins gave both a "yes" and "no" answer. Two men, whom Keevins identified had been put to work for a number of weeks from mid-November to early December 1985. Given these facts plus Keevins' later explanation, it is evident they were not on the seniority list referred to in 8 An acronym for the Racketeer Influenced and Corrupt Organizations Act, under which the suit was brought * Erroneously spelled in Poulos' July 14, 1984 letter to Desks as "Bychek," but clearly the same individual. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the agreement and by Poulos . Keevins then explained that Desks shop steward, Tommy Walsh, told him he had been notified by Joe Gurevicz5 that additional men were needed and both of them tried to contact Poulos and Byczek but to no avail. As to the men's grievances that the hire of the two employees by passing the seniority list breached the agreement, Keevins rejected them as invalid. He ex- plained (there were two contracts between Desks and Local 814-one a New York'to New York contract (the new furniture agreement) and the other a New Jersey to New Jersey contract. The New Jersey contract was in existence since 1983 but nobody had ever used it. Kee- vins' interpretation was that personnel hired during its term should only be on this contract. It was manage- ment's discretion which contract to go under; it was also their interpretation that all New Jersey work, either warehouse or deliveries, falls under the New Jersey con- tract and its rates. Keevins continued that the New Jersey contract stated that "Jersey to Jersey work shall not apply to any employee or the Employee's Seniority List this date, but only to employees on a separate Jersey to Jersey Seniority List established by employer." The so-called New Jersey contract between Desks and Local 814 was introduced into evidence . It covered the same unit of employees as in the new furniture agree- ment under which Poulos attained his seniority standing and was signed by the same representatives-Desks president and the Union's president and secretary-treas- urer. Surprisingly, it was made effective for the same period of time, May 1, 1983, to April 30, 1986. The wages it provided were substantially less than the new furniture agreement earlier described and under which Poulos had worked . In each of the 3 years, wages for chauffeurs and helpers were close to $90 a week less and the disparity was even greater for new distribution work. It contained the same seniority clause, 48-hour exclusive union referral arrangement , and generally, the same or similar clauses on all other subjects covered by the new furniture agreement, relating to benefits, union security, grievance-arbitration, and the like. Subparagraph (b) of the wage clause, SECOND, provided: (b) When the Employer performs work in the New York Metropolitan area, the Employer shall pay the employees according to the wage rates of the New York Moving and Storage Contract (com- mercial rates and/or otherwise). According to Poulos, this is the first time he was made aware of another contract with a separate seniority roster. By letter dated February 26, 1986, copy to the Union's executive board; Poulos now wrote Cantatore and sought the Union's position in connection with the status of his grievance and the issues Desks raised in its re- sponse. He asked for the Union's written assurance that it had set in place a verifiable mechanism through which list men can ascertain whether they are being called by Desks when work becomes available and for the Union 5 Warehouse foreman who had succeeded Louis Russo in this job. to advise him of his responsibility in this process. He also asked for a copy of the "1983 New Jersey Contract" and expressed special interest in its evaluation in terms of its ratification and approval by the members of the bargain- ing unit. Poulos concluded by expressly reserving his right to broaden his grievance after examining the infor- mation he requested. By letter dated March 11, 1986, Cantatore responded that he had thoroughly investigated Poulos' claim, re- ceiving a written reply from the Company, and also spoke with Steward Walsh and member Gurevicz who both said they witnessed calls and made calls to him and he was not available . He concluded the Company was within its rights to then seek employees to perform the work. Cantatore then ended by noting if Poulos had similar claims in the future he should include the dates so if a violation occurred , the Union could have a better claim for pay. This letter did not lead Poulos to doubt that, according to the Union, he still had employment rights at Desks as a laid-off employee on its seniority list. On its face, the Union had not adopted a position that the seniority list established under the new furniture agreement was abrogated, or was not applicable to work available at the Company's New Jersey facility. As for Desks, while Keevins referred to its discretion to use a separate New Jersey seniority list in the future, he also referred to the efforts, albeit unsuccessful, that had been made to contact Poulos to come to work, originating with Desks Warehouse Manager Gurevicz, contacts which would only have been attempted by virtue of Poulos' status on Desks' seniority roster . Thus, while Desks' response was ambiguous, it did not foreclose ir- revocably Poulos future employment rights as a laid-off employee on its seniority list. For all Poulos could then determine, in February and March 1986, he had been simply denied relief under his grievance because efforts had been made to call him in off the seniority list, and being unavailable, the company had looked elsewhere when it had needed workers in November and Decem- ber 1985. At the end of March 1986, Bracco forwarded to Poulos by certified mail a copy of the Local 814/Desks contract which he described in a covering letter as "cov- ering New Jersey to New Jersey work only." In this letter Bracco assured him of "the Union 's position that the New Jersey contract will not apply to any employee on the employer's seniority list as of June 25, 1984 and may only be applied to employees on a separate New Jersey to New Jersey seniority list." The significance of the date indicated was not explained , but Poulos was on the seniority list as of that date, so he should have had no reservations about the Union 's support for the princi- ple of seniority governing rights to future employment. As will be seen, infra, Poulos had extreme doubts about the Union's practice under the seniority clause in at- tempting to notify him of work opportunities . Further- more, the Union ignored Poulos' reguest for a mecha- nism so he could verify if he had been called for work off the seniority list. According to uncontradicted testi- mony about the list, Joe Byczek's preceded Poulos' name which was at the bottom of the list. That is to say, since DESKS, INC. the Company had suffered economic setbacks, Poulos had been the last employee under the original 1983 agreement to work at least 30 days and achieve seniority standing under its terms. As to the Union's attempts to contact him for the work which became available in late 1985, Poulos at first denied that he had received any calls from anyone at Desks offering him employment, particularly after the resolution of his charges in November 1983. Later, on cross-examination, Poulos acknowledged that Walsh may have tried to reach him at home, but that he never re- ceived any messages on his telephone answering ma- chine. But Poulos added that he did talk to Walsh on two occasions and he supposed their conversations con- cerned the availability of work at Desks. Walsh, called by the Union, later testified credibly that after Byczek, Poulos, and two others had been laid off in October 1983 because there was no work for them, the Company was in bad shape, a point came where the Company needed a few more men for a period of time. This was apparently between August and November 1985 when work was available for a short period. He tried to contact Poulos, after he learned that Byczek would not be available because of his wife's illness. He called numerous times but got him in only a few times about 9 :30 a.m. Poulos had prior committments and so was unavailable . One time, when Walsh explained the work available was at the warehouse , Poulos declined because of the time required, up to 1-1/2 hours to get there. By this time Desks had been sold and Joe Hordnes, distribution manager, had been let go by the new man- agement. Earlier Hordnes had told Walsh, he was going to send Poulos a letter removing him from the seniority list because he had not worked for the Company in over a year. 6 Apparently Hordnes never sent the letter before his discharge . Joe Gurevicz, a long time union member at the top of the seniority list, who knew the location of the furniture in the warehouse and how to route the trucks was assigned to do dispatching and run the ware- house. When additional employees were needed for some weeks in November and December, Gurevicz first called Byczek and Poulos but told Walsh he could not reach them. To cover himself, as steward Walsh next attempt- ed the contact . Walsh first tried to reach Byczek, with- out success, and then called Poulos numerous times. Most of the time he got an answering machine but left no messages. Walsh later acknowledge that on those calls he made to Poulos' telephone number, when he got his answering machine, he never left a message . In this period he never reached Poulos. At this point the Com- pany called in two men who were not on the "New York" contract seniority list for some weeks work into December 1985. On the witness stand, Poulos expressed the views that Walsh's efforts to reach him had been perfunctory and 6 Neither of the 1983 agreements contained a provision restricting recall to employees on layoff a year or less. It was claimed that the master multiemployer moving and storage collective -bargaining agree- ment between an Employer Association and the Union contained such a provision. A successful demand was made by the Union for such a provi- sion for inclusion in the 1986-1989 agreement, see infra. 7 his failure and refusal to leave messages confirmed his and the Union's discriminatory motivation toward him. Walsh confirmed that under the predecessor Company he was delegated by the warehouse manager or foreman to refer employees to Desks as needed . In doing so, he would contact men he used to work with who had mem- bership books in the Union , and if he could not recruit the number requested by the Company he would call the union hall to refer the rest. When Mike Keevins took over operations for the new company in or about De- cember 1985, Walsh ceased making calls to bring in em- ployees. However, Walsh was asked by the Company to contact Byczek to come in to work in May 1986, follow- ing the Company's agreement to reemploy him. D. Desks is Sold to a Successor in 1985 and the New Jersey Agreement is Discovered Following a period of business losses stretching for over a year, and on the verge of bankruptcy, the assets of Desks were finally sold to a successor corporation in August 1985 . The new corporation retained the same name, facilities, rank-and-file employees, and business. Gary Reynolds, called as a witness by General Counsel and examined under Rule 611(c) of the Federal Rules of Evidence, testified that he was initially employed as a consultant to the prospective buyers to aid in the transi- tion for a few months prior to the purchase. Two months after the closing, by October, he was hired as vice president of finance and operations. At the time of the purchase, there were approximately six employees in the warehouse and six drivers covered by the collective- bargaining agreeement with Local 814. It was Reynolds' understanding that at the closing the sellers represented the new furniture agreement as the agreement then in effect with Local 814. By either December 1985 or January 1986, the new corporation had hired Michael Keevins as vice president for operations with responsibility for physical distribu- tion, including receiving, warehousing, delivery, installa- tion, and service. It was around this time, according to Reynolds, that Keevins discovered the so-called Jersey contract containing the substantially lower wage rates and that Reynolds learned about it . All bargaining unit employees were then employed under the new furniture agreement. It was after the discovery of the New Jersey contract that Keevins wrote his response to Byczek and Poulos' grievance in which he first denied their griev- ances on the merits because of their unavailability but also referred to the New Jersey contract and the Compa- ny's interpretation and intent to apply it and a separate Jersey to Jersey seniority list for all Jersey to Jersey work. As to the Jersey contract, Walsh also confirmed that after Keevins was brought in to run the warehouse he found the contract cleaning out Joe Hordnes' office. His discovery threw the place into complete turmoil. Walsh explained that Keevins exhibited a negative attitude toward the Union that was reflected in the way he dealt with him. Keevins also took the position that anybody hired was going to be employed under the Jersey con- tract. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After Walsh failed to reach Byczek and Poulos from the list for the work available in November and Decem- ber, Byczek called him, they discussed his complaint, and Byczek wrote his grievance letter to the Union. Walsh told him he had a proper grievance . Poulos did not con- tact him directly about a grievance , but he, Walsh, heard that Poulos had grieved by letter to the Union. Walsh had conversation with Keevins about Poulos' grievance, following which Keevins wrote the letter de- nying his and Byczek's grievances earlier described. Walsh also informed Keevins that if he was to hire any- body back, Byczek was the next man on the seniority list followed by Poulos . Keevins had told Walsh he needed a driver and Walsh's comments related to hiring of help- ers, the category in which both Byczek and Poulos were employed. Keevins took the position that he had the Jersey contract and that's the way its going to work. As to the seniority list, Walsh testified the list used to be posted in the warehouse office . It included both Byc- zek's and Poulos' names. After Keevins took over, the list was changed to include only those employees work- ing at the time . Walsh objected to Keevins about this practice, of excluding the two, but to no avail. According to Reynolds, Desks planned to hire addi- tional full-time employees leading into the summer of 1986. When asked how the Company came to decide who to hire and what contract to apply to them, he testi- fied "We had already had an understanding as far as ne- gotiating a new contract' in terms of the interpretation of what is [sic] Jersey people, what aren't, and despite not actually executing a new contract, it was clear as long as we protected, and we readily agreed to this, as long as we protected the people that were employed, that the new hires could be hired under the New Jersey rate which was significantly to our benefit at a time when our costs were totally out of control relative to revenue." (Tr. 179-180.) Reynolds then explained that this agreement was reached at a meeting with the Union held in April 1986 at Desks' New York office. E. The April 1986 Meeting Resulting in Byczek's Recall, Termination of the Seniority List, and Poulos' Rights Thereunder and a Single Agreement with Dual Wage Scales Reynolds testified that the meeting was mutually ar- ranged in April 1986 after correspondence between the parties in an attempt to reach agreement on a successor to the contracts expiring at the end of the month. At- tending for Desks were the owner, Ted Burke, Reyn- olds, and Keevins. Present for the Union were Vinny Bracco, Tony Cantatore, Tommy Walsh, and assistant steward Leon Thomas . The main spokesmen were Burke and Bracco. The major portion of the meeting was taken up with discussions of wages and benefits . These ex- changes went on for 2-1/2 hours. No firm agreements were reached but movement was being made towards re- solving the differences on economic terms. Near the con- clusion of the meeting, Bracco brought up Joe Byczek's 9 For both the regular New York and New Jersey contracts, expiring by their terms on April 30, 1986. name. He said there seems to be a problem with Byczek and we feel he should be hired back by the Company. Reynolds recalled that a general conversation regard- ing Byczek then took place in which Bracco , Walsh, and Keevins participated and exchanged views . Reynolds' recollection was hazy . Reynolds' maintained that Byc- zek's name had never appeared on any list. Yet his nane had been brought up within the Company 2 to 3 weeks prior to the meeting, possibly by Keevins. In the discussion at the April meeting , "somebody may have said he should be on the list, but really it really centered around we want you to hire Joe Byczek back and we said we don't want to hire anybody back and then a conversation ensued as to why ." (Tr. 185.) The company representatives stated the view they did not want to hire anybody for any reason on New York rates. As Reynolds put it, "we had too many people and we were paying them relative to the volume too much as it was. It was in our economic interest to say no. We did." As Reynolds saw it, the issue then simply became a bargaining point. The union side was interested in Byczek. The Company wanted to put any issues to bed because their side had been pressing a wage freeze and cutting back on benefits during the prior 3 hours. At some point, Reynolds asked , "if we hire him back, that's it, right? There are no other skeletons in the closet , that's it." This issue is over with. And the answer was yes. Reynolds did not recall whether the Company commit- ted itself at that point or the next day, but Byczek was hired back the next week. When asked about his use of the phrase "skeletons," Reynolds said since Byczek's name came up all of a sudden out of the blue, had never been on a list, never was brought to management's attention , the Company, which had enough problems, did not want any more they were unaware of. Later, Reynolds acknowledged that he had heard about the name Byczek sometime before the meeting, but could not recall from whom. Reynolds could not recall whether Poulos' name had been raised at the meeting, but later stated his name had not come up. He had become aware of the name Paul Poulos in the period 30 to 60 days prior to the meeting. Philip Elberg, Esq., company counsel, had informed him of a matter involving Poulos that was finally resolved in favor of the Company. That was the Second Circuit Court of Appeal's order affirming the District Court's dismissal of Poulos' joining of the Company as defendant in his suit against the Union and Company for actions re- lating to his dismissal from employment in 1983. But Reynolds also reported that while he had learned that Poulos had been an employee he did not learn that he had been a dissident member of Local 814. He claimed he had not gone into any detail regarding Poulos when he had only a perfunctory discussion with counsel. Ftir- thermore, Keevins had not mentioned to him that Poulos had complained about not being called to work . Later, Reynolds did acknowledge that in discussion with Kee- vins just prior to April 1986, in which Keevins informed him of the existence of grievances, he might have learned about Byczek and his filing of a grievance claim- ing entitlement to work. No mention was made of DESKS, INC. 9 Poulos in this connection even though the grievance filed by Byczek had been substantially similar to the one filed by Poulos. Earlier, Reynolds had noted that Kee- vins dealt personally with the stewards and the Union re- garding administration of the contract. Also, while Kee- vins attended the April meeting,8 he did not say any- thing about Poulos. Reynolds further testified that 2 to 4 months before the April meeting a seniority list had appeared . He could not recall whether all of the people on the list were em- ployed at that time. At some point he examined the list and neither Byczek nor Poulos was on it. Under further examination, Reynolds disclaimed any knowledge of rights arising under the new furniture agreement of former employees to recall, even though he was aware of the contract reference to a seniority list. Company efforts were being geared in the period of time when the meeting with the Union was held in April 1986, to limiting any continuing obligation of the Com- pany to pay the higher, new furniture agreement wages, to those employees then working under that agreement. Reynolds conceded that as a result of the deal worked out at the conclusion of the meeting, the Company made no effort to notify Poulos (or Byczek) that Poulos' place on a seniority list had been abrogated . In its view, it had no obligation to review prior employment records, before its purchase of assets, to determine employment histories, and obligations inasmuch as the list it located did not include Poulos (or Byczek's) names. Neither was it Reynolds' understanding that by agreeing to Byczek's rehire the Company had reached an agreement with the Union to abrogate the seniority of Paul Poulos as an in- dividual at the time . As far as he was concerned, Byc- zek's call back was the last issue the Union was going to raise in the negotiations. When the Union assented that there was no one else in Byczek's category, with seniori- ty claims but not employed, the Company agreed to Byczek's return to close out the issue . Reynolds claimed it was solely the Union's obligation to protect employees with claims to seniority rights. The corollary of this posi- tion was that so long as Poulos' name was not raised or pressed by the union representatives at the meeting, the Company had no obligation to independently consider Poulos' status and interests to future employment assert- ed under the new furniture agreement. On redirect examination by General Counsel, Reyn- olds agreed that Byczek was both the first and last person whose claim to employment based on seniority under the higher wage new furniture agreement had been presented. There could then have been no consider- ation of Byczek's claim being traded off for another's. Reynolds' had emphasized in his earlier recital , and re- peated it, that he had pressed the Union to disclose whether there was any other person out there who fitted into Byczek's category (as a laid-off employee who had previously worked under the higher rates). Yet, he also testified that in agreeing to take back Byczek, Desks was not hinging its decision on a waiver of any claim on behalf of Poulos. When asked finally, however, whether, 8 Keevins became deceased sometime after the meeting and before the hearing he had any reason to believe that there may be someone else of this nature (i.e., in Byczek's category), Reynolds revealed now in an apparent contradiction , that he was aware of both Poulos and Byzcek at that time and he had admitted that (Tr. 247). Walsh also testified about his participation in the April negotiation meeting. Near the end of the meeting he, Walsh, spoke to what he understood was a company plan to hire another driver. Walsh said, "that's fine, hiring a driver, we need a driver, but the next man to come back as a helper is Joe Byczek." Walsh referred to Byczek having filed a grievance about the Company hiring out of seniority. The company representatives took the position that they could not afford another New York man. At the end of the meeting Keevins, for the Company, said they would think about it. Walsh did not recall Reynolds, in responding to the request for Byczek, asking if the Union had any other requests of a like nature, any other skeletons in the closet. Three days later Keevins told Walsh the Company agreed to take Byczek back and 2, he, Walsh, was to call him. Walsh testified he then told Keevins he had another man on the seniority list, Paul Poulos. Keevins' response was, "we'll deal with that down the road." Walsh denied that he or any one else for the Union negotiated an agreement with the Company to remove Paul Poulos from the seniority list. Subsequently, Byczek resumed employment for Desks, starting in the week ending May 13, 1986. Company pay- roll records show he continued working on a fairly regu- lar basis thereafter at least through the week ending March 24, 1987. Some of the weeks show lesser regular earnings than others . For example, for the week ending March 3, 1986, Byczek's regular earnings were $268.32, while other weeks before and after show him earning as much as $447.20. Thereafter, following Byczek's return, the Company hired additional employees , including two helpers, one in spring of 1987 and another a month before the hearing, but did not recall Poulos.9 Walsh did not file a grievance on Poulos' behalf when new helpers were hired because, in his own words, "It's not my job to. He's supposed to come to me." (Tr. 112.) Walsh had earlier explained that his longstanding practice as steward was to process grievances that are presented to him by employees but not to initiate grievances on his own , even if he observes a breach of the contract affecting an employee. The first helper hired by the Company after Byczek, was obtained directly by Keevins after the Union was unable to supply anyone to work at substantially lower wage rates provid- ed for Jersey to Jersey work. A successor agreement to commence May 1, 1986, and terminating April 30, 1989, was negotiated over a period of time in April and May 1986, including the April ses- 8 A seniority list accompanying the new collective -bargaining agree- ment and therefore current only to spring of 1986 contains , as the name of the last helper, J. Byczek, receiving the N .Y rate, with seniority date of 5/16/82. Other names below Byczek's included a driver hired under N.J rates as of 11/25/85, and an office employee hired 2/1/86 and three mechanics hired in 1986, since terminated , none of whom were within the bargaining unit. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion described. A document embodying terms negotiated was drawn up by the Company but has never been signed although the Company is operating under it. The Union has not agreed to the total substance of all provi- sions of the contract, but its execution has now been de- layed by the fact that Poulos has asked the independent trustee of the Union to review its validity and the review is presently pending. The Union has held off finalizing contract language pending his study. One provision significantly different in this successor agreement changes the seniority clause by limiting recall rights of employees laid off due to lack of work to those laid off for no more than a year; employees laid off for more than 1 year shall be removed fron the seniority list. The only employee adversely affected was Poulos. Ac- cording to Walsh, this change was one among others sought by the men in the unit with whom he met three or four times shortly after the April meeting to solicit their views on provisions to include in the new agree- ment. But Walsh also indicated that he wanted to see the seniority clause conform to the one contained in the in- dustrywide agreement which limited recall rights in a similar manner. Walsh said he had heard at the time of the pendency of Poulos' lawsuit against the Union that the industry agreement did not pertain to the Desks agreement. Walsh had brought the issue up at that time by asking if a man has not worked for a company in over a year how can he remain on the seniority list when the industrywide agreement has such a limitation. It was then he learned that that provision did not govern se- niority rights under the Desks agreement. The successor agreement combined both prior agree- ments, and contained dual wage rates , retaining the sub- stantially lower New Jersey rates along with the New York rates for both chauffeurs and warehousemen. The wage clause provided each employee will be designated in the payroll records as a "New York rate" or "New Jersey rate" employee. The current seniority list showing this designation was attached . All new employees hired after May 1, 1986, were to be hired at the New Jersey rate. No distinction was made between these groups for purposes of holidays, vacations, or contributions to the Union's funds except for the pension fund, where contri- butions were to be at the rate of $11.25 per hour per man, or $50 weekly for New York rate employees, and $7.05 per hour per man, or $28.20 weekly for New Jersey rate employees. Under cross-examination by the General Counsel, Walsh disclosed that he had informed Keevins that Byczek had a legitimate grievance and he is going to get paid for it. Walsh continued that Byczek got paid by the Company for having been bypassed, in settlement of his grievance. Walsh could not explain why Poulos, whose earlier grievance along with Byczek's had been denied, was not also paid. Then Walsh explained that he did not get a grievance from Poulos. Since Poulos did not give his grievance to him, Walsh did not get involved. As Walsh put it, "he went over my head." (Tr. 432.) Under questioning, Walsh went on to report that on one occa- sion, Tony Cantatore happened to mention to him that he got Poulos' grievance. When asked what Cantatore said about it, Walsh answered that because he, Poulos, did not go through Walsh, he was not going to respect it. When asked whether he told this to Keevins, Walsh at first said he did not think so. However, when the Gener- al Counsel reminded him that he had earlier testified that Keevins had shown him Poulos' grievance, Walsh, in a change of testimony, now testified that he just told Kee- vins that as far as he was told, the Union was not paying because he did not put it through the proper channel. Walsh further testified that because Keevins was such a procrastinator and dragged the grievances out to such an extent, Byczek told him that he had not gotten any relief and its been so long , he was going to have to go to Poulos. Later Walsh learned from Byczek that he had filed a charge with the Labor Board . Walsh happened to see Ted Burke at the Desks facility and he told Burke about Byczek's claim. Apparently, as related by Walsh, Byczek also filed a second grievance before the April 1986 meeting when Desks hired a permanent helper who did not work out and Byczek found out about it. Subse- quently, Walsh learned that Burke brought Byczek in and personally settled his claim , for $2500. To Walsh's knowledge Poulos was not offered either of the helper's openings at the lower wage rate. Walsh learned from Byczek that Keevins offered him a helper's job in April after the meeting at the lower rate but when he refused he was put on at the higher rate. Walsh also now testified , contrary to his earlier asser- tion, which he later repeated on redirect examination that shortly after the April meeting, he reminded Kee- vins of Poulos' standing on the seniority list, that after they took Byczek back, he never asked the Company to take Poulos back (compare Tr. 411 and Tr. 497 with Tr. 464). I credit this version . He did not press Poulos' claim because Poulos had gone over Walsh's head with the grievance he filed with Cantatore.' o Walsh also confirmed that while Bracco and Cantatore were aware that he was making a demand at the April meeting that the Company reinstate Byczek based on the seniority list, neither at the meeting; nor at any other time to his knowledge , did they ever tell the Company that it should follow the seniority list for Poulos as well. Neither did either of them ever inform Walsh that Poulos has no more rights to be recalled . Walsh ac- knowledged that he became aware that Poulos was always giving the Union trouble in one way or another, including his lawsuit against the Union, and his running against Bracco for union office. Finally, Walsh could not explain while undergoing cross-examination by the Charging Party, the discrepan- cy between his testimony as to Cantatore's comment to Walsh that he was not going to process Poulos' griev- ance because he did not go through Walsh, and his March 11 , 1986 letter to Poulos refusing to pursue his grievance on the merits. 10 The grievance and arbitration clause of the new furniture agreement does not provide for any particular procedure or steps in grievance proc- essing, only that they shall be discussed between the Union and the Em- ployer DESKS, INC. 11 F. Poulos Files the Current Charges Poulos acknowledges that there was no particular event which triggered his filing of the instant charges against the Union and Desks on March 26 and April 9, 1987, respectively. By that time, learning that Byczek had been recalled and not hearing anything for quite a while from the Union or Company he had reached the point where it now seemed apparent that he would not be called for work even though he had received no notice of either the revocation of the seniority list or his status on it. Over • the time between their 1983 layoff and Poulos' filing charges, Poulos had about four conversations with Byczek. One occurred when they accidentally saw each other while working for other moving companies. Byczek informed Poulos he had also been laid off by Desks and work there continued slow. On another occa- sion between April 1986 and March 1987 about which Poulos' recollection was hazy, Byczek informed him by telephone that Desks was using the Jersey contract to deprive him of recall and he was seeking the Union's help. Poulos recalled accompanying Byczek to the Board to file an unfair labor practice charge after this call. He later got the sense that the Union was supporting Byc- zek's position and still later, about a month before his own filing, learned that Byczek's charge had been set- tled. This account is confusing, not the least because company counsel used a document to refresh Poulos' recollection, which was apparently a copy of Byczek's undocketed charge dated in February 1987, without identifying or offering it in evidence. This may have been another charge which Byczek filed, following the one which Walsh referred to in his testimony as having been pending in April or May 1986, prior to Byczek's recall at that time. Yet, Byczek was continuously em- ployed by Desks from May 1986 through March 1987, although lesser hours show up for him in late February. Poulos states that Byczek's call confirmed his own sus- picions about the Company's use of the Jersey agree- ment. However, since Byczek was above him on the se- niority roster, his working alone would not be determi- native of a hiring depriving Poulos of available work; only the hiring of those with less seniority than Poulos would show that. Furthermore, the Union's support of Byczek's claim did not demonstrate that the Union had agreed to deprive Poulos of recall opportunities, particu- larly since Bracco's March 31, 1986 letter to him present- ed a contrary position supporting his continuing status on the new furniture agreement seniority list. Analysis and Conclusions The threshold issue is whether Poulos' charges are time barred by Section 10(b) of the Act. That section provides, in pertinent and relevant part, that no com- plaint shall issue based upon an unfair labor practice oc- curring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. Given the filing date on the face of the charges, the earliest date upon which the General Cousnel could rely to show unfair labor practice conduct forming a basis for the complaint, is October 26, 1986. Thus, paragraphs 8 and 10 of the complaint allege October 26, 1986, as the earliest date on which the Union caused Desks to refuse Poulos employment and Desks acceded to the Union's request. The facts developed during trial and the General Counsel's statement of position shows, however, that it was agreements arrived at during the April 1986 meeting between the Respondents' representatives which consti- tuted the alleged discriminatory conduct depriving Poulos of future employment by Desks. If such conduct occurred at this meeting and if Poulos did not receive either actual or constructive notice of it, in clear and un- equivocal terms, the running of the 6-month limitation period would be tolled until Poulos acquired such knowledge. Furthermore, the burden falls upon the Re- spondents to show such notice. Neither would the statute of limitations commence to run simply because Respond- ents had carried out their unlawful activity openly. Don Burgess Construction Corp., 227 NLRB 765 (1977). As noted by Adminstrative Law Judge Nelson, with Board approval, in Crown Cork & Seal Co., 255 NLRB 14, 22 (1981): The Board, with the agreement of reviewing United States courts of appeal, has held that the 6-month limitations period does not begin to run until the party affected by unfair labor practices is on actual or constructive notice of the material events giving rise to a charge, thus effectively estopping a wrong- doer who has engaged in fraudulent concealment of his unlawful conduct from using such concealment to permit a 10(b) defense. The respective decisions of the Board and the Eighth Circuit in the AMCAR series of cases16 including the analysis of Administrative Law Judge Plaine in Board AMCAR I, supra,17 effectively support the state- ment in Board AMCAR 1118 that: "the 10(b) limita- tion period would commence to run at the time that the Unions had actual or constructive notice of the [complained-of act] . . . [and that] notice . . . must be clear and unequivocal.... [s]ince Section 10(b) is a defense, the burden is on Respondent to estab- lish notice." '6AMCAR Division, etc., 231 NLRB 893 (1977) (Board AMCAR 1), enfd 592 F.2d 422 at 429-431 (1979) (Court AMCAR I); AMCAR Division, etc, 234 NLRB 1063 (1978) (Board AMCAR II), enfd. as modified 596 F 2d 1334 at 1351-52 (1979) (Court AMCAR II). See also Strick Corporation, 241 NLRB 210, fit. 1 (1979). 17 231 NLRB at 90-92 la 234 NLRB at 1063. Accord: Al Bryant Inc., 260 NLRB 128, 133-135 (1982); Strick Corp., 241 NLRB 210, 214-215 (1979); Ala- baster Lime Co., 194 NLRB 1116, 1118 (1972); L. C Cas- sidy & Sons, 185 NLRB 920, 926 (1970). While Poulos had some suspicions about Respondent Desks' utilization of the 1983 agreement it discovered to defeat his claim to recall rights under the new furniture agreement and the seniority list implementing that agree- ment, it remains true that in later February 1986, less than 2 months prior to the April bargaining session, 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Desk's response to Poulos was equivocal and ambiguous. Further, in the Union's March 31, 1986 response to Poulos, a few weeks before the Respondents' meeting, Poulos was assured that as far as the Union was con- cerned the seniority list containing his name remained viable for future employment opportunities . See Stone Boat Yard v. NLRB, 715 F.2d 441, 445 (9th Cir. 1983). Under the General Counsel's theory of the case, it was not until the conclusions of the April meeting that Poulos' fate was sealed and both the list and any seniori- ty recall rights of the last employee on it, ceased to exist by agreement of the contracting parties . The record is clear that Poulos was never notified by either Company or Union that his rights were extinguished and that future hires would only be made from the New Jersey seniority list at the lower wage rates without any union objection. The Respondent Union makes much of Poulos' later contacts with Byczek as serving to alert him to the Com- pany's rejection of the new furniture agreement seniority roster, thereby imposing upon him a duty of diligent in- quiry to learn the facts comprising the Company decision and the Union's acquiescence in its conduct . Yet the cases make plain that no such duty devolved upon Poulos; rather, it was the Respondents' burden to dem- onstrate clearly that Poulos was in possession of the facts comprising the contracting parties alleged conspiracy. No such demonstration was made. Indeed , by virtue of the Union's assistance rendered to Byczek, Poulos would not have had any reason to know that he would be treat- ed differently. Byczek was, in Poulos' words, an "ally," who, although not one of the four dissidents who peti- tioned the Union for extensive relief, was, nonetheless, in Poulos' view of the matter , associated with him in the eyes of the Local. Since Byczek was also above him on the list, neither would his hire have alerted Poulos to the extinguishment of the list containing his name, below Byczek's as the last entry. Even Desks' later hire of two helpers other than Byczek is not sufficient to show notice to Poulos of the parties' alleged April understanding . The hires would not by themselves show union agreement and the record is devoid of any awareness of them on the part of Poulos at the time they were made . See Lehigh Metal Fabrica- tors, 267 NLRB 568, 576 (1983). Neither does Bowen Products Corp., 113 NLRB 731 (1955), nor NLRB v. Pennwoven, Inc., 194 F.2d 521 (3d Cir. 1952), cited by the Union in its brief, lead to a dif- ferent conclusion. Bowen only confirms that the discrimi- natory conduct, if any, occurred at the April meeting, and not when Poulos was later denied referral pursuant to any improper understanding previously arrived at. Bowen denied continuing violation treatment to a later layoff where the Charging Party knowingly sustained an immediate injury by having been placed at the bottom of the seniority roster because of unlawful union causation and failed to file a charge within 6 months of the event. The General Counsel here does not claim the continuing violation theory should apply to Respondent conduct taking place more than 6 months after the triggering un- lawful conduct, but does claim that for the period Re- spondents deceitfully withheld from Poulos knowledge of their April 1986 dealing, the 6-month limitation period was properly tolled. Similarly, in Pennwoven the court, in reversing the Board's order of reinstatement of three em- ployees, concluded that when the three initiated griev- ance proceedings against their respondent employer more than 6 months prior to the filing of their charges, they were fully conscious of the facts comprising the acts of discrimination against them in failing to recall them after a plant shutdown in accordance with their se- niority under the contract because of their activity on behalf of a rival labor organization . The discriminatory failure to reinstate them could not be deemed a continu- ing violation, actionable beyond the 6-month limitation period. Here in contrast, Poulos was not fully conscious of the understanding arrived at in April 1986 and so is not barred from his later filing of his charges in March and April 1987 . Poulos' grievance was also filed before the contracting parties met at the fateful April meeting. Were this case to have presented an issue of violation revolving around execution of the New Jersey contract and its subsequent adverse affect on Poulos' employment rights, then Respondents' attack on Poulos' delay in filing would have presented serious impediments to reaching the merits . See Machinists Local 1424 v. NLRB, 362 U.S. 411, 415 (1960). In fact, as earlier noted, the Region dismissed, without appeal, that portion of Poulos' charge relying on the agreement 's orginal alleged unlaw- ful execution to support a violation of the Act. Neither is the General Counsel required to establish the date on which Poulos' acquired actual knowledge of Respondents' scheme following the claimed October 26, 1986 cutoff date (the date 6 months prior to the filing of charge against the Union). As persuasively expressed by Administrative Law Judge Harmatz in Strick Corp., 241 NLRB 210, 215 (1979): Sensible application of precedent requires a conclu- sion that the General Counsel met his burden of es- tablishing that neither Respondent Unions nor Re- spondent Employer provided those adversely affect- ed by their action of September 19, 1975, formal or constructive notice of the impairment of the award. Beyond that, the General Counsel was not impelled to go further and prove that the date on which actual knowledge was acquired followed the afore- said cutoff date. Section 10(b) is a shield to protect charged parties against the consequences of delay rather than a shield by which wrongdoers may en- twine the 6-month limitations within a purposeful scheme to effect discrimination in a manner leaving the victims without statutory remedy. Accordingly, and based on the foregoing , I reject the affirmative defenses of time-bar. I now turn to an examination of the merits of the Gen- eral Counsel's allegation of discriminatory conduct toward the Charging Party at the April 1986 meeting and thereafter. Regarding the Union, it is abundantly clear that Local 814 harbored ill feelings toward Poulos for his extensive campaign seeking to reform its procedures and adminis- tration so as to provide a greater measure of involvement DESKS, INC. and control for the membership in the negotiation and execution of bargaining agreements and over the expend- iture of its funds comprising membership dues . Local 814 representatives exhibited just such hostility during Poulos' campaign for election as its president , in its re- sponse to his and his associates' petition seeking injunc- tive relief and financial remedy, and at membership meetings. Its earlier conduct causing Poulos' discharge in 1983 led to a judgment of liability and recovery of a sub- stantial monetary award from the Union and its then chief officer-the same officer who attended the April 1986 meeting-on his Federal lawsuit and in settlement of his Board charges. While on the witness stand , Shop Steward Walsh ex- pressed hostility toward what he perceived to be Poulos' criticisms of his association with the discredited leader- ship of the Local. It was also Walsh who pressed the employee committee and the union bargaining team to obtain a change in the seniority clause limiting recall rights to employees laid off less than a year, thereby ef- fectively eliminating any claim Poulos could assert under the new agreement as the only laid-off employee so ad- versely affected . I reject Walsh's protest that in so doing, he did not have in mind the adverse effect such a clause would have on Poulos' rights to employment under the seniority list. During the same series of negotiations that this provision was added to the successor agreement, Walsh testified it was he who championed Byczek's recall under the old seniority clause after a layoff ex- ceeding 2 years in length. I credit Walsh that it was he who initially raised Byc- zek's claim at the April meeting, as against Reynolds' unsure recollection in general that it was Bracco, but it also is apparent that Bracco joined in supporting the move. Prior to the meeting, by advising Keevins to disregard Poulos' grievance because he went over Walsh's head, and then at the meeting, by admittedly pressing the Company on Byczek while ignoring Poulos, the Union sent a clear message as to its discriminatory intent. When its conduct in this regard is coupled with Reynolds' forthright testimony that the Union affirmatively denied that there was any other employee in Byczek's catego- ry"' t the Desks' representatives could, and did, readily conclude that Poulos, the union dissident and trouble- maker against both their interests, could be permanently and jointly removed from any further standing as a laid- off or past employee who could assert any claim to recall. Such an understanding as may be reasonably inferred from the parties' conduct at the April meeting, and the period immediately following when Poulos' claim to any seniority rights under the new agreement was finally eliminated by the revision of the seniority clause, estab- lishes union causation and company acquiescence to the same extent as if their agreement had been explicitly stated. As noted by Administrative Law Judge Boyce, I I Walsh did not deny such an exchange, but rather, testified he could not recall Desks' representatives asking about any one else. Reynolds' frankness in acknowleding company concerns about any "skeletons," coupled with his belated understanding of Poulos' status , convinces me that the exchange did take place as Reynolds related it 13 with Board approval, in Carpenters Local 2205 (Groves- Granite), 229 NLRB 56, 64 at fn. 42 (1977): It is not necessary to violation that the precise dia- logue underlying the understanding be fleshed out. As stated in Northwestern Montana District Council of Carpenters' Union and United Brotherhood of Car- penters and Joiners of America, Local No. 911 (Gla- cier Park Co.), 126 NLRB 899, 897-893 (1960); "An express demand or request is not essential to a viola- tion of Section 8(b)(2) of the Act. It suffices if any pressure or inducement is used by the union to in- fluence the employer." Both the Union and the Company had been this way before, when, in 1983, the Union's causation had been far more direct and the Company , as its counsel then admit- ted in open court, on its appeal argued to the Second Circuit Court of Appeals, was led to accede to its wishes to discharge Poulos in order to appease the Union. The same union leadership was now more prone to somewhat more subtlety and indirection in its actions in an attempt to shield it from similar liability. While Poulos may have viewed Byczek as an ally, it is clear that the Union , in particular, was well able to dis- tinguish between a regular member unconnected with any formal organized opposition to its entrenched inter- ests and an ardent opponent committed to basic changes in its operations. If the Union was not already familiar with the differences between the two grievants, Byczek dramatized the point when he informed Walsh that be- cause of the Company's delay in responding to his most recent grievance he had been obliged to enlist Poulos' support. The stark differences in union treatment of Byczek, ac- tively pressing his return and a monetary remedy for his grievance, as against its treatment of Poulos, letting the Company know that it did not support his grievance, ig- noring and affirmatively disregarding his status as the re- maining employee on the seniority list, pushing through contract language extinguishing his prior rights, and fail- ing to object to the Company or inform Poulos of later company hires in derogation of his claim , makes clear the Union's retaliatory motivation toward Poulos. These facts are further supported by the evidence of Walsh's systematic refusal to leave any messages for Poulos on his machine, application of his systematic policy by re- fraining from objecting to company conduct adverse to an employee on lay off who would have no reasonable opportunity of receiving notice of a failure of recall, and the union business agent's shifting of the burden to Poulos to assert future claims which only the shop stew- ard would be in a position too verify. I therefore conclude that the General Counsel has es- tablished by a preponderance of the evidence that Local 814 has caused the Company to refuse to employ Poulos in violation of Section 8(b)(2) and (1)(A) of the Act. I also conclude that by removing Poulos from any possibility of future employment at the Union's behest, the Company yielded to improper union influence, and thereby violated Section 8(a)(3) and (1) of the Act. Inas- much as I conclude that Desks was influenced, as well, 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by Poulos' previous filing of an unfair labor practice charge against it, in succumbing to union pressure, its conduct in this regard has also violated Section 8(a)(4) of the Act. The Company urged, at trial, and later, in its brief, that the evidence of record establishing its precarious economic position, independently justified its decision to apply the newly discovered 1983 agreement and deny to Poulos any future employment opportunities . Futher- more, it argues, it was the Union's obligation to represent and defend Poulos' interests and not the Company's. The full import of Reynolds' testimony undercuts both de- fenses. If one were to believe Reynolds' assertions, Byczek's name came out of the blue, and the Company's assent to his employment merely represented a resolution of an outstanding issue. As to the first assertion, Reynolds cannot be credited . Byczek was surely known well to the company bargaining team, including Burke, and especial- ly Keevins. Keevins had taken pains to deny him and Poulos' dual grievances on two separate grounds and Byczek had again confronted Keevins on his new griev- ance seeking relief from company reliance on the New Jersey contract and separate seniority list. Burke had been approached by Walsh to settle financially Byczek's claim. Of the three, Keevins was also well aware of the inclusion of both Byzcek and Poulos on the seniority list the successor Company inherited along with the new furniture agreement . Keevins was also the recent recipi- ent of information from Business Agent Cantatore that the Union would not press Poulos' grievance because Poulos had gone directly to him over the steward, Walsh. And Reynolds acknowledged that the three of them debated and finally resolved favorably the union demand on behalf of Byczek. As to Reynolds' knowledge of Poulos, his final answer on cross-examination inferred his familarity with Poulos as a former employee seeking reinstatement . His earlier conversation with Counsel Elberg had to provide him with information, at minimum, which established Poulos as an antagonist pursuing relief against Desks through the Courts for breaches of his rights as an employee. That lawsuit had incorporated against both parties, the allegations and results of Poulos charges and the com- plaints issued in the Board proceeding . The Company's files also most certainly contained Poulos' July 1984 de- tailed statement of position regarding his rights of refer- ral from the seniority list addressed to the then distribu- tion manager. Reynolds accurately summarized the parties' agree- ment in April as permitting company use of the "New Jersey" agreement so long as the present complement of employees hired under the "New York" agreement were protected. Yet, when Local 814 exerted pressure on behalf of Byczek, who had not worked in over 2 years, Reynolds and the other acquiesced. When Reynolds ex- plained they did so as a bargaining point he was being disingenuous. In order for the Company to have violated its own principles, all personnel efforts having been di- rected at lowering payroll, when it agreed to hire Byczek at a substantially increased wage more was at stake than Reynolds was willing to admit. He came close to revealing the Company's dilemma when he testified the matter was important to the Union . This statement revealed that Company agreement was induced by union pressure asserted for improper reasons . It was asserted for improper reasons because it ignored and rejected Poulos and resulted shortly in Poulos' elimination from the contract altogether . Finally, when Reynolds asked if anyone else was in Byczek's category and received a negative reply, it became crystal clear that the Union's demand represented the elevation of an employee at the expense of another for invidious reasons . See General Motors Corp., 272 NLRB 705 (1984). Shortly after Byc- zek's recall when another opening occurred for a helper, Poulos was ignored by both parties . The Union's rejec- tion of Poulos and company submission removed him from any consideration for what turned out to be a fairly expeditious opening. Meanwhile, the Company paid Byczek $2500 for having failed to recall him in a March or April 1986 opening for a helper. Thus, Desks engaged in disparate treatment between two employees, because the Union was seeking to punish the one who represent- ed a serious attack on its administration. Where the Company's rejection of both Byczek and Poulos would not have been a violation of the Act, the Company's agreement to restore Byczek alone, having been induced to do so, by the Union's discriminatory conduct, results in it having engaged in violation of Sec- tion 8(a)(1) and (3) of the Act. See Carpenters Local 2205 (Groves-Granite), supra; Operating Engineers Local 18, 204 NLRB 681 (1973), enf. denied 496 F.2d 1308 (6th Cir. 1974); Radio Officers Union (A. H. Bull Steamship) v. NLRB, 347 U.S. 17 (1954). Inasmuch as the Union was, at least in part, motivated in its improper conduct, by Poulos' prior charges filed under the Act, I also conclude that the Company's capit- ulation was induced by Poulos' use of the Act's process- es, matters about which Desks' labor counsel for both predeccessor and successor was fully aware and about which Reynolds had been informed, thus establishing that Desks refusal to employ Poulos has also been moti- vated by Poulos' filing of charges under the Act, in vio- lation of Section 8(a)(4). CONCLUSIONS OF LAW 1. Respondent Desks, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Teamsters Local Union No. 814, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing Desks to refuse to employ Paul Poulos because Poulos opposed the poli- cies of Local 814, filed charges under the Act, and for reasons other than Poulos' failure to tender periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership in the Union, Local 814 has restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and has caused an employer to discriminate against its employees in violation of Section 8(a)(3) of the Act, thereby having DESKS, INC. engaged in unfair labor practices with the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. By refusing to employ Poulos in response to im- proper union influence described above in paragraph 3, Desks has discriminated in regard to the hire or tenure or condition of employment of its employees, to encour- age membership in a labor organization and has discrimi- nated against an employee because he has filed charges or given testimony under the Act, thereby having en- gaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 5. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Union and Re- spondent Desks have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom , and take certain affirmative actions to remedy the unfair labor practices and to effec- tuate the policy of the Act. As I have found that the refusal to employ Paul Poulos violated Section 8(b)(1)(A) and (2) and Section 8(a)(1), (3), and (4) of the Act, I shall order the Respond- ents to take the following affirmative actions. As I have found that Respondent Local 814 unlawfully caused Re- spondent Desks to refuse employment to Poulos, I would normally recommend that Local 814 be required to notify Poulos and Desks that it no longer objects to his employment. See Sheet Metal Workers Local 355 (Zinsco Electrical Products), 254 NLRB 773 (1981), enfd. in part and remanded 716 F.2d 1249 (9th Cir. 1983). However, where, prior to a Board finding that a union has violated Section 8(b)(2), the union voluntarily provide such notice, the Board has held such notification constitutes compliance with the usual 8(b)(2) order and effectively terminates the Union's backpay liability 5 days after such notification. Westwood P. Plumbers, 131 NLRB 562, 562- 553 (1961). Accord: H. C. Macaulay Foundry Co., 223 NLRB 815, 818-819 (1976), enfd. 553 F.2d 1198 (9th Cir. 1977). Here, Bracco, for the Union, informed Desks by certified letter, dated September 3, 1987, copy to Poulos, that Local 814 does not have any objection to Desks, Inc. employing Paul Poulos. Poulos received a copy of this letter. I am persuaded that this notification was suffi- cient to toll Respondent Union's backpay liability. I therefore find that Local 814's backpay liability terminat- ed September 3, 1987. Accordingly, I shall recommend that Respondent Union make Paul Poulos whole, jointly with Respondent Desks, for any loss of wages and bene- fits suffered as a result of Respondent Union's discrimina- tion by payment to him of a sum of money equal to that which he normally would have earned as wages from the date in May 1986, or thereabouts, to be determined in the compliance stage of this proceeding , when Re- spondent hired its first helper following Byczek's recall to employment, to September 8, 1987, less his net earn- ings during the period , with interest thereon as computed 15 in New Horizons for the Retarded, 283 NLRB 1173 (1987).12 As I have found that Respondent Desks unlawfully re- fused to employ Poulos in response to the improper union influence described , I will recommend that Re- spondent Desks be reguired to offer Poulos immediate and full reinstatement to his former position of employ- ment, together with all seniority and rights and privi- leges previously enjoyed or, if that job is no longer avail- able, offer him substantially equivalent employment and jointly and severally with Respondent Union for the period described above, and thereafter severally,'3 make Poulos whole for any loss of earnings he may have sus- tained because of its discrimination against him by pay- ment to him of a sum of money equal to that which he would have earned as wages from the date specified above until it offers him such reinstatement or substan- tially equivalent employment, less his net earnings, if any, during that period with interest thereon as comput- ed in New Horizons for the Retarded, supra.14 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER A. Respondent Teamsters Local Union No. 814, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Desks, Inc., or any other employer, to refuse to employ or otherwise dis- criminate against Paul Poulos, or any other employee be- cause they opposed the policies of Local 814, filed 11 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest accrued before January 1, 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp, 231 NLRB 651(1977) 13 Contrary to Respondent Employer's claim , the rule of apportion- ment of liability set forth in Bowen v. Postal Service, 459 U.S 212 (1983), a case in which the employer violated the collective-bargaining agreement and the union breached its duty of fair representation, is not applicable to the instant proceeding , which presents a classic case of union causation of employer violation of employees' Sec. 7 rights and where the Board's usual remedy applied in such cases is applicable . See discussion of its ori- gins in Sheet Metal Workers Local 355 (Zinsco Electrical Products), supra. 14 By handwritten letter erroneously dated January 8, 1987 , but actual- ly prepared and forwarded on January 8, 1988, counsel Philip Elberg for Desks, Inc. wrote Poulos "on behalf of Desks, Inc. you are hereby of- fered reinstatement to your former position on the Desks, Inc. Teamsters seniority list effective January 18, 1987. Please report to work at 7:30 a.m. on January 18, 1987. You should report to Art Ravella, at the Desks' warehouse in Clifton, New Jersey " Poulos testified he responded to the offer by requesting he be given a leave of absence from the Com- pany until such time as these proceedings were concluded, in general terms. The record does not contain Desks reaction to this response. I am not persuaded that the present state of the record contains sufficient evi- dence to determine whether Respondent has satisfied its obligations to make whole and reinstate Poulos, and, accordingly, I leave to the compli- ance stage of the proceeding such determination. 15 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charges under the Act and reasons other than the em- ployees' failure to tender periodic dues and the initiation fees uniformly required as a condition of acquiring or re- taining membership in Local 814. (b) 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. Taking the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with Respondent Desks, Inc., make Paul Poulos whole for any loss of earnings and benefits incurred by reason of having caused Respondent Desks, Inc. not to employ said employee in violation of Section 8(a)(3) of the Act, as set forth in the remedy sec- tion of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its offices, meeting halls, and hiring halls, copies of the attached notice marked "Appendix A."116 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Re- spondent's authorized representative of Local 814, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Local 814 has taken to comply. B. Respondent Desks, Inc., Clifton, New Jersey, its of- ficers, agents, successors, and assign, shall 1. Cease and desist from (a) Refusing to employ or otherwise discriminating against employees in collaboration with, or in response 16 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 " to unlawful pressures from, Teamsters Local Union No. 814, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , or any other labor organization. (b) In any like or related manner mterfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Taking the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Paul Poulos immediate and full reinstate- ment to his former position of employment , together with all seniority and rights and privileges previously en- joyed or, if that job is no longer available, offer him sub- stantially equivalent employment. (b) Jointly and severally with Teamsters Local Union No. 814, for the period described in the remedy section of this decision and severally thereafter, make Paul Poulos whole for any loss of earnings and benefits suf- fered because of the unlawful refusal to employ him in or about May 1986, with backpay to be computed, and bear interest as provided for in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Clifton , New Jersey facility copies of the attached notice marked "Appendix B."17 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 Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Desks, Inc. has taken to comply. 17 See fn. 16, supra.