Frank Mascali Construction

FRANK MASCALI CONSTRUCTION Frank Mascali Construction G.C.P. Co.; Frank Mas- cali Construction Co., Inc. and John Kuebler Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Frank Mascali Construction G.C.P. Co.; Frank Mascali Construction Co., Inc.) and John Kuebler Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Willets Point Contracting Corp.) and Charles Curd Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Allied Used Truck Exchange, Inc.) and Charles Curd. Cases 29-CA-5975, 29-CB- 3075, 29-CB-3115, and 29-CB-3235 August 15, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On October 19, 1979, Administrative Law Judge George F. Mclnerny issued the attached Decision in this proceeding. Thereafter, Respondent Em- ployers and Respondent Union filed exceptions and supporting briefs, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision and a reply brief in opposition to the brief of Respondent Union.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ' The General Counsel also filed a motion to strike Respondent Union's Exh A and all references thereto in ils brief Subsequently. Re- spondent Union ftiled a motion to reopen the hearing to introduce an ad- ditional exhibit. and the General Counsel filed an opposition therelo The evidence which Respondent Unllion attached as Exh. A to its brief and seeks to have admitted into the record purportedly shows that its shop steward. Worhacz. testified truthfully at the hearing with respect to cer- tain referrals made on August 29. 1977 Based on this additional eidence Respondent Union argues that the Administrative Law Judge erred in discrediting Worhacz lo Cever, tile proffered ceidence was available at the time of the hearing and could he been offered then Additionall it is well established that the Board wili not reopenl a record to) admit evi- dence which merely ttacks credibilit Ai 4Ar Serc, Ilc., d' h/u Knau II/rlihplcrs, 235 NI. R II (1978) F-or these reason,l vwe herchr, deny Respondenl't ,tolioni In eic of this resolution, we find it 1ineces- sar t pais upon the (lenteral Couniel's otiion to strike 251 NLRB No. 32 ings, 2 and conclusions3 of the Administrative Law Judge, as modified herein. i. Respondent Employers except to the Adminis- trative Law Judge's finding that they violated Sec- tion 8(a)(1) and (3) of the Act by discharging John Kuebler on September 2, 1977, and Respondent Union excepts to the Administrative Law Judge's finding that it violated Section 8(b)(1)(A) and (2) of the Act by causing the discharge of Kuebler. We find merit in these exceptions. At all times relevant herein, Respondent Frank Mascali Construction Co., Inc. (FMC), was en- gaged in repaving portions of the Grand Central Parkway and the Long Island Expressway under a contract with the State of New York. This oper- ation was conducted through a separate corpora- tion, Respondent Frank Mascali Construction G.C.P. Co. (GCP). 4 GCP did not employ regular drivers of its own, and there is no evidence that it maintained a seniority list. Instead, it filled its needs by obtaining drivers on a daily basis first from FMC and then, pursuant to an arrangement with Respondent Union, from the Willets Point Con- tracting Corp. (Willets Point) s and Edenwald, an- Respondent Emploers and Respondenlt Union ha% e xcepted to cer- tain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolulions are incor- rectl Sanda rd Dry Wall Products. Inc.. 91 NLRB 544 1950). enfd 188 F.2d 362 (d Cir 1951). We have carefully examined the record and filnd no basis lfor reversing his findings In discrediting Worhacz' testimony that he changed the August 29, 1977. starting time for three employees on August 26. the Administrative Law Judge stated that although Worhacz testified that he changed the time on the shape sheet in response to a phone call from Respondent Em- ployer,' job superintendent. 'aternostro, the shape sheet sho ed no sign of an erasure lHowever Worhacz testified that he had not yet prepared the shape sheet when Paternostro called. In view of the other reasons stated by the Administrative Law Judge for discrediting Worhacz. with which we agree, we find no basis for disturbing his credibilit) finding In describing the involvement of discriminatee Katsaros with the union dissident group (FORE) the Administrative Law Judge stated that earls in 1978 Katsaros appeared on a local television show airing the differ- ences between FORE aid the incumbentit officials of Respondent Union Respondent Employers contend that there is no record eidence orf this appearance They assert that the only television appearance insvolving Katsaros of which they are aware was a segment of the nationwide show 6(0 Minutes.," which was broadcast on December 4 1978, more than 2 months after the close of the hearing in this case They therefore contend that the Administrative Law Judge must have viewed this program and they suggest that as a result he became biased against Respondent Em- ployers and Respondent Union. There is no record evidence supporting the finding that Katsaros appeared on any television program However. after carefully considering the record and the Administrative I.aw Judge's Decision. we reject as unsupported Respondent Eniployers' alle- gations that the Admitistratise Law Judge was biased a In adopting the Administrative Law Judge's conclusion that Re- spondent Union violated Sec. 8(bXI)MA) and 2) of the Act b causing the discharges of John Kuebher and Charles Curd from 'l'dletl Point Conlractilg Crp, we find it nnecessary to pass on his relialnce on .Mir- undu I-,l (- o npun'.l Inc. 140( NI. Rt 181 (' 1'2) T'he parties stlpulalied that FM C and GCP constitute a single inte- graed;ll hbillCs ellterprise : During the reles ant period. Wl let, Point did not have sufficlent wiirk I0 priivide its drlers with full-tinme emplonlnient BH) arrangement ('Conirued 219 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other contractor. Under this arrangement, each afternoon Joe Paternostro, the GCP job superin- tendent, would determine his needs for the next working day, and then call Steve Costa, the gener- al superintendent at FMC, to obtain all the drivers FMC could furnish. If Costa could not supply enough drivers, Paternostro first would contact Robert Worhacz, the Union's steward at Willets Point, and, if necessary, Edenwald. If these sources were unable to fill GCP's needs for the next day, it was free under the arrangement with the Union to seek drivers from whatever source it desired. The Administrative Law Judge found, and we agree, that this arrangement constituted a collective-bar- gaining agreement between the Employers and the Union. Sometime in mid-August 1977, Robert Agnew, the night superintendent at GCP and a black, asked Frank Daves, a black owner-operator employed by GCP at night, if he knew a minority driver who would be available for fill-in work 2 or 3 days a week. Agnew also said that the GCP project would be continuing for an additional 5 or 6 months. Daves replied that he had a friend who needed work. Agnew, however, did not pursue the matter.6 On September 1, Paternostro, after obtaining all the available drivers from FMC, still needed two drivers for the next day, the Friday before Labor Day. Pursuant to the arrangement with the Union, he contacted Worhacz, who told him he could promise to supply only one driver because of the impending holiday weekend. He then contacted Edenwald, which could not supply any drivers. Pa- ternostro was then free under the arrangement to look for a driver from any available source. Sometime that afternoon, while talking to Agnew, Paternostro mentioned that he was still seeking a driver for the next day. Agnew said he might be able to get one, and Paternostro told him to try to get a minority driver if possible. Agnew then called Daves. After learning that his friend was unavailable, Daves contacted the shop steward at Hendrickson Brothers, another contractor. The latter was unable to supply or refer Daves to a mi- nority driver, but gave Daves the phone numbers of Charles Curd and Kuebler, two Willets Point drivers who occasionally shaped and worked at Hendrickson. (Curd and Kuebler are white.) Daves was unable to reach Curd. Although there is con- flicting testimony as to whether Daves personally contacted Kuebler and had him call Agnew, or with the Union. Willets Point drivers for whom Willets Point did not have work were referred to other contractors. 6 This conversation occurred as a result of problems FMC and GCP had been experiencing in meeting affirmative action requirements cn- tained in the contract for the project only gave Kuebler's number to Agnew, as a result of Daves' efforts Agnew ultimately talked to Kuebler and told him to come to work. Agnew then told Paternostro that he had obtained a driver for him. Kuebler reported for work at GCP the next day and greeted Paternostro, whom he knew because Paternostro had previously been a superintendent at Willets Point. After filling out the required forms, Kuebler went to work driving one of the Employers' trucks. He did not ask, nor did Pater- nostro tell him, how long he would be working for the Employers. At the end of the day, Kuebler came to the office and asked what the schedule was for the next working day, Tuesday, September 6. Accord- ing to Paternostro, he told Kuebler that he had to deal with Costa with regard to the Employers' trucks, that on Tuesday FMC might have an abun- dance of drivers, and that he did not know who would be driving the truck Kuebler had driven that day on Tuesday. Kuebler then said, "I'll see you Tuesday" and Paternostro replied, "Okay, see me Tuesday." He stated, however, that he did not tell Kuebler to come to work or to the site on Tuesday. According to Kuebler, whom the Admin- istrative Law Judge credited, Paternostro said that he did not have the schedule, would have to check with Costa, and that if the starting time was before 8 o'clock he would call him but otherwise he would see him Tuesday. At some point that afternoon, Paternostro called Costa as usual to arrange for drivers for Tuesday. As was true the previous day, Costa was able to supply all but two of the needed drivers, so Pater- nostro called Worhacz. This time Worhacz said he was able to supply both drivers. Worhacz also mentioned that he had seen Kuebler working at GCP that day, to which Paternostro replied that Kuebler was the driver Agnew sent him. Accord- ing to Worhacz, he then told Paternostro that Kuebler would have ended up at GCP anyway if he had shaped at Willets Point, that he could supply enough drivers for Tuesday, and that Kuebler on Tuesday would shape at Willets Point in his regular position. On Tuesday morning, September 6, Kuebler ap- peared at the GCP office and discovered that Fitz- patrick, a Willets Point driver senior to him, was driving the truck which Kuebler had driven on Friday. He asked Paternostro why he had not been assigned to that truck. Paternostro explained the ar- rangement with the Union for obtaining drivers and said he could not put him to work ahead of drivers referred from Willets Point. When Kuebler protested, arguing that because he had been hired FRANK MASCALI CONSTRUCTION 221 on Friday he was now on GCP's seniority list, Pa- ternostro said there was nothing he could do. Sub- sequent efforts by Kuebler to obtain further em- ployment at GCP, including several visits with Charles Mascali, the treasurer and asphalt plant su- perintendent of FMC, were unsuccessful. In concluding that Respondent Employers vio- lated Section 8(a)(l) and (3) and that Respondent Union violated Section 8(b)(1)(A) and (2) in the discharge of Kuebler, the Administrative Law Judge found that Kuebler was hired by Paternostro and Agnew as a permanent employee for the dura- tion of the GCP project. He further found that Worhacz, as part of his discriminatory pattern of conduct against Kuebler, reminded Paternostro on September 2 of his obligation to obtain employees through Worhacz at Willets Point, and thereby caused him to terminate Kuebler. Contrary to the Administrative Law Judge, we find, for the reasons set forth below, that the General Counsel has failed to establish that Respondents have violated the Act as alleged. As previously noted, GCP employed no regular drivers of its own, but instead filled its needs on a daily basis from FMC and through its arrangement with the Union. Only when these two sources were insufficient to meet GCP's needs for a particular day did it hire drivers from other sources. It was precisely the latter situation which led to the hiring of Kuebler by GCP on September 2. The mere fact that Kuebler worked 1 day did not make him a permanent employee of GCP.7 And, since GCP had not previously employed regular drivers, it would have been a clear departure from its past practice to have hired Kuebler as a permanent em- ployee. Further, although GCP apparently was seeking a minority driver to fill in regularly when FMC and the Union were unable to fill its needs and to help meet certain affirmative action requirements, on September I its immediate need was for a driver for September 2 only, whether or not that driver was a member of a minority group.8 Additionally, there is no evidence that GCP or its job superin- tendents, Agnew and Paternostro, ever told Kuebler that he was being hired as a permanent employee. Agnew, whom the Administrative Law Judge credited, testified that he never told Daves how long the driver he was seeking would work, nor did he tell Kuebler how long he would work. I Sec. 32 of the contract between the Union and Respondent Employ- ers provides that an individual must work 30 days before gaining senior- ity rights. Furthermore, as noted above, there is no evidence that GCP maintained a seniority list. a The Administrative Law Judge recognized that on September I Pa- ternostro was "concerned about covering the work for the next day" and that Kuebler was hired because the Union was unable to promise him the driver he needed for the next day. Furthermore, although Kuebler himself testified that Daves told him there would be about "six months' work" on the job if he was hired, 9 he also testified that he did not think that he had a com- mitment by GCP to employ him for 6 months and that the reference to "six months' work" concerned the project, not the job he was being offered. Kuebler also admitted that he never asked Pater- nostro how long the job would last, and that nei- ther Agnew nor Paternostro, who did the actual hiring, told him this was a permanent job. Finally, we note that according to Kuebler's credited testimony, when he came into Paternos- tro's office after work on September 2, Paternostro told him that he would see him Tuesday unless there was a change in the starting time. The Ad- ministrative Law Judge concluded that this com- ment occurred after Paternostro had talked to Worhacz and the latter told him that Kuebler would be shaping at Willets Point on Tuesday. Pa- ternostro's statement can be interpreted to mean that at that point Paternostro still intended to use Kuebler on Tuesday, thereby supporting the con- clusion that Kuebler was hired as a permanent em- ployee. However, as the Administrative Law Judge recognized, Paternostro merely may have thought that Worhacz would explain the situation to Kuebler at the Willets Point shape on Tuesday morning, thereby enabling Paternostro to avoid a troublesome confrontation. In that context, Pater- nostro's statement is not inconsistent with a conclu- sion that Paternostro never had any intention of using Kuebler on Tuesday. Such a conclusion is supported by Paternostro's action on September 2 in scheduling his drivers for September 6. As noted above, after obtaining all the drivers available from FMC, he called Worhacz to obtain two more driv- ers. Assuming, arguendo, that Kuebler had been hired as a permanent employee, these two drivers would have been in addition to Kuebler. If Pater- nostro subsequently had decided not to continue I The Administrative Law Judge based his conclusion that Kuebler was hired as a permanent employee in part on his finding that Daves told Kuebler either that the job would last 4 or 5 months, or that the job would last until the end of the season. In light of Agnew's credited testi- mony that he never told Daves how long the driver he was seeking would work, it appears Daves in his September I conversation with Kuebler combined Agnew's earlier remarks in mid-August about seeking a minority driver to do fill-in work over the duration of the project with the immediate need for a driver for the next day, and as a result may have communicated to Kuebler that the job being offered was for more than I day. Nonetheless, even if he did indicate that a permanent job was being offered, there is no evidence that Daves had the authority to hire Kuebler; to the contrary, the record shows that the actual hiring was done by Paternostro and Agnew, who never indicated to Kuebler that the job was for more than I day. Therefore, any indication Daves may have made to Kuebler regarding the length of the job cannot be attribut- ed to Respondent Employers. Accordingly, we find Daves' statement to Kuebler does not support the conclusion that Respondent GCP hired Kuebler as a permanent employee 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kuebler's employment, he would then have had to obtain a driver to take his place, or operate one driver short. However, there is no evidence that Paternostro did either. Thus, it seems apparent at that the time Paternostro called Worhacz he had no plans to use Kuebler, and therefore that Kuebler had not been hired for a permanent job. In light of the above factors, particularly the am- biguity of Paternostro's statement to Kuebler after work on September 2, the fact that GCP employed no regular drivers of its own and hired drivers from sources other than FMC only to the extent necessary to fill its needs for a particular day, and the lack of any evidence that GCP ever told Kuebler that he was hired as a permanent employ- ee, we find the evidence insufficient to establish that Kuebler was hired as a permanent employee. Rather, we find that Kuebler was hired by GCP only for 1 day's work as a result of the failure of GCP's normal sources to furnish the drivers it needed for September 2. Accordingly, we find that Respondent Employers' failure to employ Kuebler after September 2 was unrelated to union consider- ations and therefore not discriminatory. We further find that because Respondent Employers hired Kuebler for 1 day only, and because Paternostro had no plans to use Kuebler when he talked to Worhacz on September 2, Respondent Union did not cause the Respondent Employers to discharge him. Therefore, we conclude that Respondent Em- ployers did not violate Section 8(a)(l) and (3) by discharging Kuebler and that Respondent Union did not violate Section 8(b)(l)(A) and (2) by caus- ing Respondent Employers to discharge Kuebler. ' 2. The Administrative Law Judge found, and we agree, that from July 25, 1977, to October 21, 1977, Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by operating its referral arrangement with Respondent Employers in a discriminatory manner. The Administrative Law Judge further found that Respondent Employers violated Section 8(a)(1) and (3) of the Act by accepting and con- doning the arrangement. In so doing, the Adminis- trative Law Judge limited the Employers' liability to the period beginning September 2, 1977, based on his finding that prior to that date the Employers had no actual knowledge of the Union's discrimina- tory practices and no reason to make inquiries about a possible discriminatory manipulation of the referral system. Although we agree with these fac- 1' Accordingly, we reject the Administrative Law Judge's findings that Worhacz' statements to Paternostro on September 2 caused Pater- nostro to discharge Kuebler, and that sometime after their conversation Paternostro decided to terminate Kuebler. "' The General Counsel did not allege, nor did the Administrative Law Judge find, that Respondent Union violated Sec. 8(bXIXA) and (2) by attempting to cause Kuebler's discharge. In any event, we conclude that the record is insufficient to establish such a violation. tual findings, we disagree with the Administrative Law Judge's conclusion that they operate to limit the Employers' liability. Thus, the Board has con- sistently held that when an employer delegates hiring to a union by utilizing a union referral- system to obtain its employees, it is responsible if the union operates the system in a discriminatory manner. This is so even if the employer has no actual knowledge of the Union's discrimination. See, e.g., General Cinema Corporation and its wholly owned subsidiary, Gentilly Woods Cinema, Inc., 214 NLRB 1074, 1076 (1974); Motor City Electric Com- pany, 204 NLRB 460, 463 (1973); Morrison-Knudsen Company, Inc., Walsh Construction Company, and Perini-Quebec, Inc., d/b/a Robinson Bay Lock Con- structors, A Joint Venture, 123 NLRB 12, 24 (1959), enfd. 275 F.2d 74 (2d Cir. 1960), cert. denied 366 U.S. 909 (1961). In the present case, the Adminis- trative Law Judge found, and we agree, that the Employers and the Union entered into a collective- bargaining agreement whereby the Employers dele- gated to the Union the authority to hire drivers for them when FMC was unable to fill GCP's needs, and that the Union, through its agent, Worhacz, regularly supplied GCP with drivers but discrimin- atorily did not refer Curd or Kuebler. According- ly, we find that Respondent Employers are jointly and severally liable with Respondent Union for the discriminatory operation of the referral arrange- ment with the Union from July 25, 1977, to Octo- ber 21, 1977. However, we find that, even if Respondent Em- ployers had investigated the Union's operation of the referral system, they would not have discov- ered the discriminatory practices because the Union falsified the shape records. Therefore, we conclude, contrary to the Administrative Law Judge, that Respondent Union should be held pri- marily, and Respondent Employers secondarily, liable for any backpay due Kuebler and Curd be- cause of discriminatory referrals to Respondent Employers from July 25, 1977, to October 21, 1977. See Union Boiler Company, 245 NLRB No. 93 (1979); Wismer and Becker, Contracting Engi- neers, 228 NLRB 779 (1977). Finally, the Administrative Law Judge found Respondent Employers and Respondent Union jointly and severally liable for backpay shown to be due any employee because of discriminatory re- ferrals to Respondent Employers. However, there is no evidence in the record showing a general pat- tern of discrimination by the Union in the oper- ation of the referral system or that any employee other than Kuebler and Curd was the victim of the Union's discriminatory referrals. Accordingly, we FRANK MASCALI CONSTRUCTION shall limit backpay liability for the Union's discrim- inatory referrals to these two discriminatees. AMENDED CONCI.USIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusions of Law 9, 10, and 11, and renumber the subsequent Conclusions of Law accordingly: "9. Respondents Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., violated Section 8(a)(1) and (3) of the Act by accepting and condoning an arrangement with Re- spondent Union for referral of employees on and after July 25, 1977, because that agreement unlaw- fully discriminated against such employees." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondents Frank Mascali Construction G.C.P. Co., and Frank Mascali Construction Co., Inc., Flushing, New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Accepting and condoning an arrangement with the Respondent Union for referral of employ- ees that unlawfully discriminates against such em- ployees because they exercise their Section 7 rights. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) In conjunction with Respondent Union, with Respondent Union primarily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of the discriminatory implementation of their arrangement with Respondent Union from July 25, 1977, to October 21, 1977, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)).12 Further, in conjunction with Respondent Union, with Re- spondent Union primarily liable, make whole the above-named employees by making contributions 12 Member Jenkins would compute the interest due on backpay in ac- cordance with his partial dissent in Olympic Medical Corporation. 250 NLRB No. 11 (1980). on their behalf to the Union's health and welfare and pension funds. ' (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at their place of business in Flushing, New York, copies of the attached notice marked "Appendix."' 4 Copies of said notice, on forms pro- vided by the Regional Director for Region 29, after being duly signed by Respondents' representa- tives, shall be posted by them immediately upon re- ceipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Forward signed copies of said notice to the Regional Director for posting by Local 282, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, it being willing, at all locations where notices to members are customarily posted. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. B. Respondent Local 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Elmont, New York, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening, restraining, or coercing its mem- bers because they exercise their Section 7 rights. (b) Maintaining its seniority list at Willets Point Contracting Corp. in such a manner as to unlawful- ly discriminate and retaliate against its members. (c) Maintaining attendance records at Willets Point Contracting Corp. on a false and fraudulent basis. ] Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicator! stage of a proceeding for the addition of interest at a fixed rate on pa!- ments which are required to be made to such funds as a result of a make- whole remedy We therefore leave to the compliance stage the question whether Respondent Employers and/or Respondent Union must pay an additional amounts into the health and welfare and pension funds in order to satisfy our make-whole remedy See M.errvweather Optical Company, 240 NLRB 1213 (1979) I4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted hs Order of the National Labor Relations Board" shall read "Posted Pursul- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 22 1 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Causing or attempting to cause the discharge of employees by Willets Point Contracting Corp. in retaliation for exercising their Section 7 rights. (e) Refusing to process grievances filed by its members because they filed charges with the Na- tional Labor Relations Board. (f) Failing and refusing to refer members to work assignments in retaliation for exercising their Sec- tion 7 rights. (g) Implementing its referral system arrangement with Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., in a discrimi- natory manner. (h) Bringing false and fraudulent intraunion charges against its members and expelling or sus- pending them from union membership based there- on. (i) In any other manner restraining or coercing any employee members in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Correct the seniority lists and attendance rec- ords at Willets Point Contracting Corp. in accord- ance with this Decision. (b) Request Willets Point Contracting Corp. to immediately and fully reinstate John Kuebler and Charles Curd to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (c) Make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's dis- criminatory action in causing their discharge from Willets Point Contracting Corp. and its discrimina- tory failure and refusal to refer them to work as- signments. In the event that that employer reinstate the above-named employees as requested, pay them backpay for all days they would have worked be- tween October 21, 1977, and the date of their rein- statement. In the event that that employer will not reinstate them, continue to pay them backpay until such time as they have found substantially equiva- lent employment. Backpay with interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)).' 5 Further, make whole the above-named employees by making contributions on their behalf to the Union's health and welfare and pension funds.' 6 ' See fn. 12, upra. See fn 13, upra (d) In conjunction with Respondent Employers, with Respondent Union primarily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's discriminatory implementation of its referral system arrangement with Respondent Employers from July 25, 1977, to October 21, 1977. Backpay shall be computed in the manner set forth above. Further, in conjunction with Respondent Employers, with Respondent Union primarily liable, make whole the above- named employees by making contributions on their behalf to the Union's health and welfare and pen- sion funds. 7 (e) Make whole John Kuebler, Charles Curd, Ted Katsaros, and Lawrence Kudla for any loss of pay and other benefits they may have suffered due to the false and fraudulent intraunion charges brought against them and by expelling or suspend- ing them from membership in the Union. Backpay with interest shall be computed in the manner set forth above. Further, make whole the above-named employees by making contributions on their behalf to the Union's health and welfare and pension funds. 8 (f) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all seniority lists, attendance records, or rec- ords showing starting times, job assignments and hours worked, and all other records necessary for the determination of the amount of backpay due under the terms of this Order. (g) Post at its business offices, union halls, meet- ing halls, all barns of employers with whom it has collective-bargaining agreements, and any other places where it customarily posts notices to mem- bers, copies of the attached notice marked "Appen- dix B."19 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of Respondent Union, shall be posted by Respond- ent Union immediately upon receipt thereof in the manner provided above. Notices are to be posted for 60 consecutive days, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that the notices are not altered, defaced, or covered by any other mate- rial. (h) Forward signed copies of said notice to the Regional Director for posting by Frank Mascali Construction G.C.P. Co. and Frank Mascali Con- struction Co., Inc., they being willing, at all loca- 7 See fn. 13, supra. " Ibid. Iu See, fn. 14. upra. FRANK MASCALI CONSTRUCTION tions where notices to employees are customarily posted. (i) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT accept and condone an ar- rangement with Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, for referral of employees that unlawfully discriminates against such employees because they exercise their Section 7 rights. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of any rights guaranteed them by the National Labor Relations Act. WE WILL, in conjunction with the Union, with the Union primarily liable, make whole John Kuebler and Charles Curd for any loss of wages or other benefits they may have suf- fered because of the discriminatory implemen- tation of our arrangement with the Union, with interest. FRANK MASCAII CONSTRUCTION G.C.P. Co.; FRANK MASCALI CON- STRUCTION Co., INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain union members because they exercise their Section 7 rights. WE WILL NOT maintain seniority lists or at- tendance records in a false or fraudulent manner, or in such a manner as to discriminate unlawfully and retaliate against union mem- bers. WE WILl NOT cause or attempt to cause the discharge of employee members by Willets Point Contracting Corp. in retaliation for exer- cising their Section 7 rights. WE WILI. NOT refuse to process grievances filed by union members because they filed charges with the National Labor Relations Board. WE WILL NOT implement our arrangement with Frank Mascali Construction Co., Inc., and Frank Mascali Construction G.C.P. Co. in a discriminatory manner. WE wIl.l. NO fail and refuse to refer union members to work assignments in retaliation for exercising their Section 7 rights. WE Wll.l. NOT bring false or fraudulent in- traunion charges against our members and expel or suspend them from union membership based thereon. WE WIl.L. NOT in any other manner restrain or coerce our members in the exercise of any rights guaranteed them by the National Labor Relations Act. WE WILL correct the seniority lists and at- tendance records at Willets Point Contracting Corp. WE WI.L request Willets Point Contracting Corp. to reinstate John Kuebler and Charles Curd. WE WILL make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of our discriminatory actions in causing their dis- charge from Willets Point Contracting Corp. and by reason of our discriminatory failure and refusal to refer them to work assignments, with interest. WE WI., in conjunction with Frank Mas- cali Construction G.C.P. Co. and Frank Mas- cali Construction Co., Inc., with ourselves pri- marily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered because of our discriminatory implementation of our arrange- ment with these employers, with interest. WE WILl. make whole John Kuebler, Charles Curd, Ted katsaros, and Lawrence Kudla for any loss of pay and other benefits they may have suffered because of the false and fraudulent intraunion charges brought against them and their expulsion or suspension from membership based thereon. LOCAl. 282, INTERNATIONAI BROThI- ERHOOI) OF TEAMSTERS, CIIALI- FlIURS, WARIHIOUSIEM N \NI) HI P- IERS 01 ANI.RICA 2 2 226 I)ECISIONS OF NATIO()NAl I.ABOR RELATIONS BO()AR) DECISION S A IT MI(N'I OF 1111 CASI GLOR.Il! F. MCINERNY, Administrative Law Judge: The charge in Case 29-CA 5975 was filed on October 14, 1977, against Frank Mascali Construction G.C.P. Co.,.' herein referred to as Mascali GCP, by John Kuebler, an individual. The charge in Case 29-CB-3075 was also filed on Oc- tober 14, 1977, by Kuebler against Local 282, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, herein referred to as Local 282, or the Union. The charge in Case 29-CB 3115 was filed on Novem- ber 11, 1977, against the Union by Charles Curd, an indi- vidual. On December 30. 1977, the Regional Director for Region 29 of the National Labor Relations Board, herein referred to as the Board, issued an order consolidating these cases, together with a complaint alleging that Mas- cali GCP had refused to employ the Charging Parties, and later discharged Charging Party Kuebler because the Charging Parties had been engaged in concerted activi- ties protected by the National Labor Relations Act, as amended, herein referred to as the Act; and, further, that the Union had unlawfully refused to refer the Charging Parties to employment by Mascali GCP, because of their participation in protected concerted activity, and refused to process grievances presented by the Charging Parties because of those protected concerted activities, and be- cause they had filed charges against the Union with the Board. The Union and Mascali GCP filed answers deny- ing the commission of any unfair labor practices. Pursuant to notice contained in the Regional Direc- tor's order consolidating cases and complaint a hearing was held at Brooklyn, New York, beginning on March 22, 1978. On that day counsel for the General Counsel moved to amend the complaint to allege that an agent of the Union engaged in unlawful threats to the Charging Parties. The amendment was allowed. The charge in Case 29-CB 3235 was filed by Charles Curd on March 7, 1978, alleging that the Union suspend- ed him from membership and expelled members John Kuebler, Ted Katsaros, and Lawrence Kudla because they filed charges and gave testimony under the Act. On April 19, 1978, the Regional Director for Region 29 issued a complaint alleging that the Union had suspended or expelled these members because they filed charges and gave testimony under the Act, and because they had engaged in protected concerted activities, all in violation of the Act. The Union filed an answer denying the com- mission of these alleged unfair labor practices. Thereafter, on June 19, 1978, during the hearing, coun- sel for the General Counsel moved to consolidate Case 29 CB-3235 with the cases then being heard. This motion was allowed, and the hearing continued at var- ious dates until concluded on September 25, 1978. z ' 1 c I,, m li l iiii .wittctided .11 Ile hearitg to s d ld ilh M.I.yi I rl .)tititil ll (t ;:i illlC . t i Re lllc t ICl t I C .t i il I I illnl ll;lela Il illl I' I th Ir. 'l prt tl yII lit' 2: 1 )7,i . I , ht) lth ;i,,l t eIlttctid tlo tI tc III tILi~lht'T tit 0 th pgt' t'I<om 1850 ,- 1 I I1 1 1185O.' it, '9 IIA l t'!. ' t .,' Following the close of the hearing briefs were filed by the General Counsel and by counsel for Mascali GCP. The Union has filed a letter in the form of a memoran- dum brief. These have been carefully considered. Upon the entire record in the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINI)IN(GS () FACT I. IHI. I.MPLOYERS' BUSINESS A. Frank Mascali Construction G.C.P. Co. is a New York corporation having its principal office in Flushing, New York, from which headquarters it performs road building and related services. During the calendar year prior to the issuance of the complaint herein, Mascali GCP purchased and caused to be transported and deliv- ered to its place of business goods and services valued in excess of $50,000 directly from points outside the State of New York. The complaint alleges, the answer admits, and I find that Mascali GCP is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. Frank Mascali Construction Co., Inc., is a New York corporation having its principal office in Flushing, New York, where it is engaged in the manufacture, sale, and distribution of asphalt and related products, and in providing and performing road building and related serv- ices. In the calendar year prior to the issuance of the complaint Frank Mascali Construction Co., Inc., pur- chased and caused to be transported and delivered to its place of business goods and services valued in excess of $50,(0() directly from points outside the State of New York. The complaint alleges, the answer admits, and I find that Frank Mascali Construction Co., Inc., is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. C. Willets Point Contracting Corp.,: herein referred to as Willets Point, is a New York corporation having its principal office in Flushing, New York, from which headquarters it is engaged in the manufacture, sale, and distribution of asphalt and related products, and in the providing of road building and related services. In the calendar year prior to the issuance of the complaint Wil- lets Point purchased and caused to be transported and delivered to its place of business goods and services valued in excess of $50,000 directly from points outside the State of New York. The complaint alleges, the answer admits, and I find that Willets Point is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. FIlllvrlil, I!l)p gr;l: lliill rl.~l, lld IIli'.spli liigs ill Ihls trailncript Ir hc ah. crlC t1f i ll n rcllctlst l h ) ;initmIdi. tlon d slyit" Ills . rLading of l ht rC)lt rt' 't'i,% II~ pilvc snoIT t irt ' l' 11 I t LIt'l IIsltllt'lllt'l It ri o place sM erc [tic rllt.il lig I.ititlt It i cIII ' 11,ll t Iff rlce I Il c t l l xltlx, tih Irai crile i s Alt( [titltt'l trrcdi ' Alkos rul'crt' to I n lic crtlllll L1b11 VIIIcl' 1oin ( nslrtl, ilg ('(err FRANK MASCALI CONSTRUICTII(N 227 D. Allied Used Truck Exchange, Inc., herein referred to as Allied, is a New York corporation having its prin- cipal office in Flushing, New York, where it is engaged in the purchase and sale of used trucks. During the cal- endar year prior to the issuance of the complaint herein, Allied has sold trucks valued in excess of $50,000 direct- ly to customers located outside the State of New York. The complaint alleges and I find that Allied is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THF ABOR ORGANIZAI ON INVOI.VEI) The complaint alleges, the answers admit, and I find that Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Ill. IHE Al .EFE.D UNFAIR l.ABOR PRACIICIS A. Background 1. Willets Point Willets Point Contracting Corp. is the successor to a company called Columbia Asphalt, Inc., which, in turn, was the successor to Tully and DiNapoli.4 For some years, the company was one of the largest employers in the asphalt supply and paving industry in New York City. By the time that the events in this case begin to unfold the company had suffered severe financial re- verses. In April 1975, 25 of the company's 48 pieces of equipment were repossessed and sold. The Company's seniority list for truckdrivers, which at one time had in- cluded 60 to 65 names, was reduced to 40 by the middle of 1974 and in October of that year to 15 names. This list was subsequently raised to 17, and, during the time mate- rial to this case, it included 16 names on a permanent basis, with I or 2 people listed intermittently. In Decem- ber 1975 another 5 trucks were sold, leaving Willets Point with 10 trucks available for its Teamsters employ- ees to drive. Willets Point has for some years been part of a mul- tiemployer group which in turn has negotiated collec- tive-bargaining agreements with Local 282 covering chauffeurs engaged in the hauling of concrete, sand, gravel, asphalt, and bulk cement under one contract, re- ferred to herein as the ready-mix agreement, and en- gaged in heavy construction and excavation under an- other. Coverage under these contracts depends on which function the chauffeur is engaged in at any particular time. The most recent of these dual agreements covered the period for July , 1975, to June 30, 1978. The ready-mix agreement provided in section 3 that: Eight (8) hours shall constitute a day's work. The day shift shall be 8:00 a.m. The employer has the right to have men shape s at 7:00 a.m. and at 7:30 T Thu' there are references t hroughout Ile record 1I1 lullk whlch nla he taklen I l mtiall Willet l Point snceptl vhcre rcferellnce .lre tITad I onrl or anollther of the Tull brothers ho are the oiL tcrs f Willets I'lin t " Ih( Iialltlllilig Ihl Clt ermll .id tih .Igll titi.lCC Oe t IhCe hl.ipe sstenl *ill he discu-sse hl,, before the close of the preceding work day and men will shape at the time for which they are posted. The only other contractual reference material to the issues in this cases occurs in section 15 where it appears that there is understood between the parties a need to "shape regularly" which need may be averted by proce- dures outlined in section 15 for layoff in times when work is not regularly available 2. The shape system Willets Point, together with all of the employers in the asphalt and paving business operating under the agree- ment with Local 282, assigns work to its employees under a set of rules and practices known as the shape system. While these rules and practices are nowhere written down, all of the witnesses who testified in this proceeding had worked with the system for many years and were all in agreement on its general outlines and function. The shape system is based primarily on seniority. Each employer, including Willets Point, maintains a seniority roster of its employees. Under the contract the shop steward's is the first name on the list, the other employ- ees following in order of seniority. At Willets Point, the list, containing 16 names, is re- produced on a sheet of paper which also has spaces op- posite the names of the employees for the day of the week, and for assignments of work, including the truck number, reporting time, and the job to which the em- ployee is assigned. Each afternoon, between 3:30 and 4 o'clock, the super- intendents of the jobs on which Willets Point trucks are being used call the dispatcher's office and indicate the type of equipment they need, the reporting time, and the location of the job. The dispatcher,7 together with the shop steward, then makes the assignments for the next day. Under the shape system, assignments should be made according to seniority with the senior man accord- ed the privilege of taking the earliest start in the morning in order to assure him the most contractual overtime. In practice, however, the senior man can waive this re- quirement for personal convenience, or any other reason. When it has been determined which men are to go to what jobs, the assignment is written on the copy of the seniority list in the spaces provided. This sheet is re- tained in the dispatch office for the later use of Willets Point management another copy of the same list is then prepared and posted in a trailer located outside the dis- patch office. This is required to be done before 4:30 in the afternoon so that drivers coming in at the end of their workday will know the time of their next day's as- signment. If the list is not posted by 430 the employer will be liable for overtime pay to drivers who must remain after that hour to learn of their next assignment. ` Sec '4 dealing w ith menlritl. stale, that eh mploecr hall apply "Barnt snIolto with ia Matcr [ ist ()ther ro isons deail w, ilt lualions II1 t ITIl;ttrlial here It \s.1p stiptlilJttedi ! I tl pit tehit Richard N1 oore illd Fl.llnk [)ilkeNy. Ic it .. ,I s t; I . cht.rs 1l \A1 ilclts I)lilnt drilig times mlleatii liIt, S prI I rt'l iX r is pi iri ,,, , l t.rit1 , 1' he, A.t 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The times at which drivers are posted to go out are called "shape times" and may be set at any time. 8 If trucks are scheduled for 7 a.m., that is then referred to as a "7 o'clock shape" meaning that 7 a.m. is the hour when the men scheduled for that hour must report, ready for work. The latest time when trucks are sched- uled to depart is 8 a.m. and 8 o'clock is referred to as the "last shape of the day."9 Throughout the period covered by this case, work was slow at Willets Point. Aside from the financial reverses suffered by the company, the industry generally had slowed down with a general decline in construction in the city of New York. With the sale of five more trucks in December 1975, Willets Point had only 10 vehicles for its seniority list of 16 names. Thus, the lists posted in the trailer each evening would have no assignments opposite the names of some of the employees. Historically, the ob- ligation of these employees was to report, or shape, every morning before the 8 o'clock shape, ready to go to work. Failure to shape in these circumstances could result in their removal from the seniority list. At least it left them vulnerable to a challenge by another employee, or by the employer, that they were not reporting, or shaping, and that they had forfeited their right to main- tain their positions on the list. Shaping on a daily basis, under the traditional standards and practices of the shape system, was required even under circumstances where, as in this case, months went by without work opportunities for the shapers. The physical act of shaping is accomplished by walk- ing into the trailer, variously described as the "shape trailer," the "shape shack," or the "shape room," 10 or 15 minutes before the time of the shape, and then just sit- ting down and waiting. There is no signup, and no place to initial or indicate in any permanent manner that anyone has been there at any particular time. If work is available either the dispatcher' 0 or the shop steward'" will come from the office to the shape trailer and give assignments to the senior employees who are shaping, along with their time cards and any documents necessary for their job. These employees then punch the timeclock in the trailer and leave. At that point the shape is over and, if any other employees are left over, they may leave. If it is the last shape of the day, they go home. If no work is available, the steward or the dispatcher may visit the shape trailer or they may not. The sheet posted in the shape trailer showing the assignments is then taken 8 Since this case deals only ith circumstances which occurred in the morning, it is not necessary to discuss afternoon or evening practices 9 However, if the latest departure time posted is earlier than 8 o'clock then that earlier departure time becomes the last shape of the day. 'i For 20 years until his termination in April 1976 the dispatcher was Richard Moore After Moore left, his place was taken by Paul Tull, de- scribed as one of the owners of Willets Point. In 1977 a new dispatcher was hired whose name is Frank Daley. Paul Tully apparently is the nian- agement official primarily responsible for the operation of the dispatch of employees The original copy of the shape sheet is marked. and referred to in the record, as "Paul's Copy" hut the record does not reveal what Paul does with it, if anything " The shop steward throughout the times material to this case is Robert Worhacz. down and filed. 2" Other than listing the assignments this sheet does not show who shaped (and did not work) on a particular day, and who did not. Naturally, in a system such as this there are bound to be changes. In construction, where the work of the var- ious crafts employed must be dovetailed one with the other, changes in assignments and starting time are inevi- table. When orders were received from superintendents or foremen in the field, Richard Moore testified that he made the changes on the assignment sheet in the office and sent Shop Steward Worhacz out to change the shape sheet. At that time Moore was primarily responsible for the maintenance of the records.' 3 With Moore's depar- ture in April 1976 this function was taken over by Wor- hacz who continued to keep the records submitted in this case. Worhacz apparently continued the same practice although admittedly there were times when the starting times given on the shape sheet and on Paul's copy did not match up. There is no problem where the changes are received and noted before 4:30 p.m., and no difficulty with changes in equipment or location which are ordered after that time. The difficulty comes with an order for a change in time after 4:30. The driver checks his report- ing time when he punches out in the shape trailer around 4:30 p.m. If that time is later changed to an earlier start, and he reports as originally scheduled, he will lose the additional overtime pay provided in the contract for an earlier start. On the other hand, if the start is postponed to a later time, and he reports as originally scheduled, the employer is responsible for overtime pay from the time of the original start. In Moore's time, Worhacz would call the drivers if the changes came in before those two left for the day, but Worhacz testified that this practice was discontinued after Moore left. If the change came in in the morning the seniority system was not flexible enough to allow for substitutes at that time, al- though if a scheduled driver did not show up, the senior shaper would take his assignment. Another change occurred in the late summer or early fall of 1974 when it was decided that the shape require- ment at Willets Point would be reduced to I day a week.' 4 This action was decided upon at a meeting of the Willets Point employees and their shop steward, 12 This document is referred to ill the record a the shape sheet, as opposed to the other copy which stas in the dispatch office and is known as Paul's copy. "' As well as the responsibility for dispatching aid maintaining records of other employees of Willets Poinit who were represented by the Operat- ing Engineers Union and are Ilot ivol.ed here ' t is not clear from the record in this case just when this happened In another case involving this Uion and Willets Point, Administrative ltaw Judge Irwin Kaplanl fiiund that it occurred in the fall of 1974. Since there is nothing i this record inconsistelit with that finding, I accept it as a fact See ocal 282. International Brotherhrd of lamvl-r. Chaujlj'urs, 14archousemn and Ilelpcr, of'.-Imerricu I ('illri I',nlt (onlrtrcting Corp.), Case 29 CBH-2624. ALJD May 31. 1977. adopted pro forra in the ab- sencel fI excepting. by the Board on July 14, 1977. unpublished Since the charging party ii that case ss as one Frederick C Brudie. Ihe case is re- ferred to i the record of this case, and in this Decision, as the tHrudie case FRANK MASCALI CONSTRUCTION 229 Worhacz. 5 The lack of work at Willets Point, the gaso- line shortage, and the fact that many of the men had to drive long distances in order to shape and protect their seniority were the reasons for the change. Under the modified shape system, a man could protect his seniority by shaping I day a week, on any day he chose, or irregularly if that suited him.' 6 On the other days he was free to seek work elsewhere. On those days when it became apparent that a man's name would be reached on the list for the next day, the steward would call him on the telephone and tell him what time to report. 7 If, however, work became available in the morning, either because an assigned driver reported off for some reason, or if, as frequently happened, a call came in from another employer looking for a driver,' 8 the procedure in these situations was to assign the work to the senior man actually shaping on that day, as it was manifestly impossible to make telephone calls and have a man report from his home in time to satisfy the primary obligation which, all parties agreed, was owed to the em- ployer. However, it is also manifest in the record that the accepted reporting time for unassigned employees to shape was 8 a.m. Thus, in a situation where the last shape of the day was at 8 a.m., if a call came in from an outside employer for a man for a 7:30 start, or if one of Willets Point's own employees scheduled for a 7:30 start called in sick, the senior man shaping could be given the assignment. If a man with more seniority came in at 7:45 for the 8 a.m. shape, he would be in a position to claim a day's pay from the employer. There is some difference in the testimony about this circumstance. Worhacz stated that men shaping and looking for work should and did report at 6:30 or earlier, and that his practice was to send out the senior man shaping as calls came in. Richard Moore, on the other hand, testifying about a situation similar to that given in this previous paragraph, stated that it was within the dis- cretion of the steward and the dispatcher to send out the senior man present, or to hold the truck until the 8 o'clock shape to see if a more senior man would shape. Contrary to Worhacz' assertion, Business Agent Edward McFarland testified that at one time the practice referred to by Worhacz of shaping early and picking up casual as- signments had resulted in a rash of complaints and claims. McFarland stated that he had come down to Wil- lets Point and ordered unassigned employees not to shape before 8 o'clock. This was confirmed by other em- ployee witnesses, and I find that this was in fact the practice. '5 This was apparently done without the knowledge or approval of higher union officials; although Worhacz did state at one point that a business agent was present, he later denied this. 16 This is consistent with the record in this case and with the findings of Administrative Law Judge Kaplan in the Brudie case I" As Worhacz expressed it to the men, "If you keep in touch with the job, the job will keep in touch with you." '8 There is evidence that other companies, identified in the record only by their names, Colletti, Edenwald Grace, Custom (or Kustom) called the Willets Point dispatch office with some regularity looking for extra help. Worhacz testified that these employers frequently asked for drivers by name, in which case he referred the requested individual. As noted below, I have doubts as to Worhacz' credibility. Thus, I do not find the facts to be as reported by him even though his statement is un- contradicted in the record Thus I find that under the -day-a-week system an em- ployee with seniority was obliged to shape on that I day at 8 o'clock, and that if the last shape of the day was at 8 o'clock on that day, and if work became available that day, the senior man appearing for the 8 o'clock shape would be entitled to the work assignment, or a claim for a day's pay, if a junior man had been dispatched ahead of him. This was the situation at least up to January 27, 1977. At that time, according to Worhacz, McFarland came to Willets Point and spoke to the employees, including Charging Parties John Kuebler and Charles Curd, ex- pressing his displeasure with the -day-a-week shape, or- dering that it be discontinued and directing further that there be no more telephone calls. Despite the fact that this testimony was corroborated to some extent by em- ployees Alfred Nicolai and Frank Fitzpatrick,'9 1 do not believe it. McFarland himself did not corroborate Wor- hacz' version of his talk to the employees, although as- serting that he had spoken to them in that vein on Janu- ary 6, 1976. But both Worhacz and McFarland had testi- fied on February 8, 1977, in the Brudie case before Ad- ministrative Law Judge Kaplan that the -day-a-week shape was still in effect. Worhacz' own testimony reveals that he continued the I-day-a-week shape at Willets Point without consulting either McFarland or the man- agement of Willets Point. At another point in his testi- mony Worhacz admitted that telephone calls continued to be made after January 27, and this was corroborated by the credible testimony of employee Arthur Christ- man, who related that he had received a number of calls from Worhacz assigning him to work after January 1977. Further, Charles Curd testified credibly that at the Janu- ary 27 meeting McFarland stated that if they shaped once a week they held their seniority. Finally, Worhacz' records in evidence here show that the daily shape re- quirement was universally disregarded. Accordingly, I find that the I-day-a-week shape continued through the period covered by this case. 3. Kuebler and Curd, background and relations with Local 282 John Kuebler had at the time of this hearing been a member of Local 282 for 37 years. He had also been em- ployed as a driver for Willets Point and its predecessors, Columbia Asphalt and Tully and DiNapoli, since 1968. Despite this length of service the extent and depth of the cuts in the Willets Point seniority list left Kuebler in 1977 in the 15th position, next to the last name on the list. Charles Curd has been a member of Local 282 since 1964, and a driver for Willets Point since 1966. During 1977 Curd was number 12 on the Willets Point seniority list. Because of their positions on the seniority list, during 1977, and the sporadic and desultory amount of work available, it is evident from the employment records in I9 Neither of these witnesses could remember anything about the meet- ing except that McFarland said they had to shape every day. Based on their faulty memory, as well as their demeanor while testifying, I do not credit their testimony in this regard - - - 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence, the shape sheet and Paul's copy, as well as a third, more complete, document maintained by Worhacz primarily for the purpose of checking on the payroll de- partment, that work opportunities were rare for Curd and almost nonexistent for Kuebler. This circumstance naturally engendered an atmosphere in which the compe- tition for work was intense and the motives and actions of those responsible for the assignment were subject to suspicion or misinterpretation by those to whom assign- ments were not made. I have tried to keep this factor in mind throughout my consideration of the facts in this case. The record shows that Curd and Kuebler, particularly the latter, vigorously, even relentlessly, pursued viola- tions of the contract or the seniority system through whatever channels were available for such pursuit. In October 1974, with the reduction of the Willets Point seniority list to 15 names, Kuebler found that he was number 17 and, therefore, off the list. He protested and the Union managed to persuade the employer to add two names, leaving Kuebler still number 17, but on the list. Kuebler then proceeded to challenge the seniority of two employees who were above him on the list, securing their removal from the list and his advancement. He se- cured also the admitted resentment and anger of Business Agent McFarland who bitterly recounted in his testimo- ny that one of those men removed from the list was "a sick man just trying to work a few days for his pension" and the other was dead within 2 weeks of his removal from the list. Despite this there is no indication prior to the end of 1976 that the Union failed in its duty to proc- ess Kuebler's or Curd's grievances even though the end results may have seemed unsatisfactory to them. Kuebler also had his troubles with Worhacz. There is no evidence of particular or exaggerated problems be- tween the two before November 1976.20 Kuebler did testify that he had opposed Worhacz' selection as shop steward in April 1974, but the record reveals no counter- measures taken before 1976 by Worhacz because of Kuebler's opposition. In any event there was very little that Kuebler, as an individual, could do about the selec- tion of the shop steward.2 Worhacz did, however, show his animus and hostility toward Kuebler in his testimony. Worhacz maintained that he and other employees of Wil- lets Point bitterly resented Kuebler's employment by a neighboring employer, Allied Used Truck Exchange (of which more later), during 1976. How much of the anger which showed through clearly in his testimony was a sham, I cannot say. In September of that year, Kuebler and John Poulos approached Worhacz to complain about his handling of grievances. According to Kuebler's credi- ble testimony, Worhacz responded by telling Kuebler to "buzz off"' and stop making claims or Worhacz would beat him up. Then, on November 28, Curd had shaped and had an opportunity to work. He and John Poulos, 'o Other than a couple of allegations that Worhacz had neglected to process grievances filed by Kuebler and Curd which I do not consider significant. " See Administrative Law Judge Kaplan's discussion in the Brudie case of the Union's procedures in selecting and removing shop stewards. See also Building Materials, Truck Drivers, Chauffeurs, and Helpers, Local Na 282, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Explo, Inc.), 229 NLRB 347 (1977). both of whom were senior to Kuebler, agreed with Kuebler that he could take out the run so that he would qualify for unemployment benefits. They went to Wor- hacz with this proposal. Worhacz demurred, saying he would have to call Konzelmann, the only other employ- ee between Curd and Kuebler on the list, to see if he wanted to come in and take the job. He did so, Konzel- mann did not want it, so Kuebler worked on that day, the last day, incidentally that he ever worked for Willets Point. After Kuebler left, Worhacz, according to Curd's credible testimony, turned on Curd and berated him, stating that Kuebler was a troublemaker and that he, Worhacz, wanted to hurt Kuebler "in his pocket." Wor- hacz denied these statements but, for reasons given below, I do not credit this denial. In any event, the requirement asserted by Worhacz that he had to call senior men at the morning shape is inconsistent with what I have found to be the practice under the -day-a-week shape. That practice allowed the most senior man present to take an assignment at 8 o'clock, or at the last shape of the day, and did not pro- vide for telephone calls in the morning. I thus find that this action was taken by Worhacz to inconvenience Kuebler, and, possibly to cost him a day's pay and hurt him "in his pocket," if he could. Curd cited another example of disparate application of the practice in two incidents which occurred a day apart in January 1977. On January 24, Curd and two other em- ployees shaped Willets Point. Later that day it snowed and Worhacz received a call from the Aqueduct race- track for trucks to help remove the snow. According to the practice, Worhacz called three men senior to Curd who had protected their seniority by the -day shape. Curd did not work. On the next day Worhacz called Curd and asked if he wanted to work. Curd said that he did, and Worhacz replied that there might be a problem because Konzelmann, a man junior to Curd, had shaped that morning, and that he would call back. He never did call back. 2 2 In January or February 197723 Kuebler again asked Worhacz to get him a layoff slip from Willets Point. 24 He did not get it, asked McFarland and got no results, then, in May called the new business agent, Mike Car- bone, and received a slip of paper which did not satisfy him. 25 He took the slip to Worhacz together with copies of slips others had received from other employers. Wor- hacz told him that he was not going to get a layoff slip and that Worhacz would keep him shaping. While there 22 It was as a result of this incident that Curd called McFarland to the job and a meeting took place on January 27. The content of that meeting is discussed above. 23 From this point on all dates are in 1977 unless otherwise specified. 14 In the Brudie case Administrative Law Judge Kaplan commented on Kuebler's previous request for such a slip in July 1975., which was thwarted by the company's refusal to agree to it under the then existing contract provisions. 0s This is a little, official-looking slip of paper which seems to verify that Kuebler worked for Willets Point and states that "it does not neces- sarily mean you are qualified to receive benefits " It certainly does not look like any layoff letter or notice that I have ever seen, but I cannot make any finding on it one way or another FRANK MASCALI CONSTRUCTION 231 is no evidence that anyone else got a layoff slip, there is no evidence that anyone else requested one. Further, the Ready-mix contract provides in section 15 that, When regular employment is not available for an employee he shall be laid off for lack of work. During such layoff the employee shall retain senior- ity without the need to shape regularly. Under this provision it would seem clear that, unlike the situation in the Brudie case, the employer had no choice but to grant a layoff upon request. This incident, while it may have occurred within the 6-month period prior to the filing of the charge, is not alleged by the General Counsel as an unfair labor practice, so I can make no finding of a violation of law based on these facts. How- ever, the effect of Worhacz' decision will be seen as the facts continue to develop. 4. The FORE association In January 1977 Kuebler joined an organization called FORE. 2 6 FORE had been founded sometime in 1974 or prior thereto by members of Local 282 who were dissat- isfied with the Union's leadership, and membership was and is restricted to people who are also members of Local 282. It does not appear that the purposes of FORE are other than the reform of Local 282, but in pursuit of these goals, FORE has engaged in organizing members through personal visits to various work locations, distri- bution of leaflets, preparation and publication of a news- letter sharply critical of Local 282's current leadership, and the fielding of slates of candidates for office in Local 282's elections. The most prominent and active adherents of FORE are Ted Katsaros and Lawrence Kudla. 27 Katsaros has been a member of Local 282 since the spring of 1960. He primarily worked for a company called Colonial Sand and Stone, but also for other employers. Katsaros was always interested in union affairs but, apparently dissatis- fied with the manner in which those affairs were con- ducted, he joined FORE in January 1974. By the spring of 1975 he had assumed an active role in FORE, coordi- nating clerical work, writing the newsletters, and trying to work out an accommodation with another dissident group within Local 282. Then, in the fall of 1975, Kat- saros headed the slate of candidates for office in Local 282, running for president of the Local. He campaigned through the fall and, after the election on December 8, when the FORE slate was badly defeated, led a protest of the election through the procedures provided by the Union's constitution and bylaws, and when that proved fruitless, to the United States Department of Labor. After this protest failed Katsaros continued his active role in FORE, speaking out at general membership meet- ings of Local 282, a28 and was again a candidate for presi- 2 The letters stand for the words "fear of reprisal ends," an optimistic sentiment not warranted by the facts of this case. FORE is also associat- ed with a national dissident Teamsters group known as PROD, for pro- fessional over-the-road drivers. a7 Known variously in the record as Cutler, Kudler, and Kuedler. 26 At one of these meetings in October 1976 Katsaros was assaulted by another member. There is no evidence to show that the assault was pro- dent of the Local in the election scheduled for Decem- ber 1978. Kudla has been a member of Local 282 since March 1970. He became a member of FORE in the latter part of 1974. He also assumed an active role in its affairs, became its recording secretary, worked on the newslet- ter, and passed out literature to other members of Local 282. In the election campaign of 1975 Kudla nominated Katsaros for president of Local 282 and his father, Walter Kudla, acted as a checker at the election for the FORE slate and helped to prepare the election protest and the appeals from the successive denials of that pro- test. After he joined FORE, Kuebler joined in the organi- zational activities of the other FORE members including visiting other job locations and passing out FORE litera- ture. In June, Curd also joined FORE. At the end of that month Curd, Kuebler, Kudla, and Katsaros were in a restaurant located near Willets Point when Worhacz came in and saw them. A few days later Curd shaped at Willets Point. Worhacz told him, "You are hanging out with some pretty bad guys at McDonald's. Those are all FORE guys." Curd replied that he had joined FORE. Worhacz shook his head and walked away. During the early part of 1978 Katsaros and FORE managed to generate some local publicity for themselves in the New York area. Katsaros was interviewed by a Long Island newspaper, and appeared on a local televi- sion show airing the differences between FORE and the incumbent officers of Local 282. 5. The Poulos petition In January also, but apparently unconnected with the FORE activity, an employee of Willets Point named John Poulos 29 was dissatisfied with the treatment he was receiving from Worhacz. 3 0 Poulos prepared a petition directed to Local 282 and asking for the removal of Worhacz as shop steward. He also prepared a letter in opposition to Worhacz which he sent to all of the driv- ers in the Willets Point list. Kuebler signed the petition but he was the only driver, other than Poulos himself, who did sign it. In turn, Worhacz prepared and circulat- ed a petition supporting his stewardship. Curd did not sign Poulos' petition because, as he testified, he was afraid of Worhacz, but he refused to sign Worhacz' peti- tion. During the time when both petitions were being circu- lated, Arthur Christman, the 11th man on the Willets Point list, initially signed Worhacz' petition, then crossed his name out. Later, Carmine Tufano 1131 the assistant voked by any responsible officer of Local 282. Indeed, the fight as broken up by Secretary-Treasurer Robert Sasso. '9 Variously referred to in the record as Polis. Pollis. Poulous, or Plulos. 30 Poulos was number 14 on the Willets Point seniority list, between Konzelmann and Kuebler. 31 There are two employees on the Willets Point list named Carmine Tufano (also spelled Taffano or Defano in the record). They are not father and son, but are cousins so, in order to distinguish them. they are designated on the list, and referred to, appropriately enough, by the Continued FRANK MASCAL CONSTRUCTION 231 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shop steward, 3 2 approached Christman and asked why he had crossed his name off the list. Christman replied that he and Worhacz had to have a talk. When Worhacz returned from vacation in March they had their talk. Worhacz told Christman, according to the latter's credible testimony, that he should stop hanging around with the crowd he was hanging around with and urged him to "sign the petition and get on my team." He assured Christman that he took care of the men on his team. Later Tufano II came around with Worhacz' peti- tion and Christman signed it. In late May or early June, Worhacz told Christman that he had gotten Konzelmann a job at Grace, another employer of drivers. Worhacz, in yet another conversa- tion in late May or early June, again warned Christman about his associations, saying, "if you hang around with squares, you get the name of a square, and if you hang around with thieves, you get the name of a thief." Christman told Worhacz that he could not pick Christ- man's friends, that Charlie (Curd) was his friend and Worhacz could not tell him who to hang around with. According to Worhacz, Poulos' petition was with- drawn by Poulos himself, accompanied by a public apol- ogy on the floor of a union meeting.3 3 6. The Mascali arrangement Frank Mascali Construction Co., Inc., has been in busi- ness since 1969, primarily in road construction for the city of New York, New York State, and the Port of New York Authority. Early in 1977 the Mascali compa- ny bid on and was awarded a contract by the State of New York for almost $14 million for reconstruction and repairing of a portion of the Grand Central Parkway on Long Island. Mascali had neither the men nor the equip- ment to handle a job of this size, but it was decided not to operate as a joint venture with one or more other con- tractors but to hire personnel and equipment from other companies. Job Superintendent Joseph Paternostro 34 was hired from Willets Point, and possibly others,3 5 and a separate corporation, Frank Mascali Construction G.C.P. Co., was set up to conduct the operation. After the contract was awarded, but before construc- tion actually began, Business Agent Edward McFarland went to see Mascali's asphalt plant superintendent and treasurer, Charles R. Mascali.3 6 There are three different versions of how he came to go there. McFarland himself testified that he read of the award of the contract in the Dodge Reports, a trade paper. Charles Mascali testified Roman numerals I and It, I being number 2 on the list and II being number 5. s2 This must have been in February as Worhacz was in Florida on va- cation at that time in 1977. 3a Despite the length of this case, and the size of the record, there are still unanswered questions. One of these is wby Poulos, who was present at several of these early incidents, and was the central figure in this peti- tion, seems to drop out of sight completely. Worhacz' records show that he shaped regularly down to July 12, 1977, and worked occasionally, but he is not mentioned as a participant in any activities after the petitrion was withdrawn, and was not called upon to testify in this proceeding. 4 Described in the record as Patnostro. Jr The record does not reveal what other supervisory personnel or equipment operators were assigned to Mascali from Willets Point. This case concerns only the drivers. 36 Known as Bo or Beau and sometimes as Paul Mascali. that after he had already decided to use Willets Point drivers, as well as their supervisory people and equip- ment, McFarland showed up. Worhacz testified that a meeting was held at Willets Point concerning the Mas- cali job between himself, McFarland, and Gerald (or Jerald) Tully, one of the owners of Willets Point. Tully explained that they would supply materials, foremen, and superintendents to the GCP job but he had no responsi- bility for drivers. After this meeting McFarland told Worhacz that he would see if he could do something (about the drivers) on his own. He then went over to Mascali's office. I do not have to resolve these three versions. In fact, all could be more or less correct, but in any event McFarland arrived in Charles Mascali's office and they talked about the use of Willets Point drivers on the GCP job. Charles Mascali testified that this was a business ar- rangement, pure and simple, which Mascali had worked out ahead of time and presented to McFarland. The latter made no rebuttal to the arrangement, and in fact he was happy about it. McFarland, on the other hand, asserted that it was he who proposed the arrangement to Charles Mascali that when they needed drivers they would go first to Willets Point and then to Edenwald for men. Whatever the motivation, or from whence came the impetus, is not important, although I generally credit McFarland's testimony in this as well as in other areas. The result was agreed between Charles Mascali and McFarland, and on this there is no difference in the testi- mony, that Mascali's day superintendent, Paternostro, would call Worhacz at Willets Point first, when drivers were needed, then Edenwald, then Grace, and then wherever he could get drivers. McFarland considered this arrangement a victory in his 30 years' war against "gypsy" trucks and, while he did not consider the arrangement to be in the same cate- gory as a written collective-bargaining agreement, he did consider it binding on Mascali, and if it was not honored he "would have struck him." Charles Mascali considered it binding as well, as will be shown by his treatment of Kuebler on and after September 2. It may be noted that the employees at Willets Point were not notified of this arrangement in any formal way. However, Christman testified that he was aware of it in May and Kuebler also stated he found out that employees were going to Mas- cali in that month. The GCP project got underway in March 1977. The hiring arrangements for the day shift were in the hands of Joseph Paternostro. His procedure was first to call one Steve Costa at Mascali Construction each afternoon to see how many of Mascali's own employees would be available the next day. If Mascali could not fill his needs, Paternostro would then call Worhacz at Willets Point, then Edenwald and Grace. Other employees would then be called until enough employees were secured. The first referral from Willets Point took place on May 2. FRANK MASCALI CONSTRUCTION 233 7. Credibility During the course of this discussion of the background to the events alleged in the complaint to constitute unfair labor practices, I have made certain findings based on the credibility of witnesses for the General Counsel and the Respondent Union. In making these findings I have first relied on undisputed facts agreed upon between the parties by stipulation or consistent testimony. Second, I have relied on documents, records, or letters, where those are available, to establish the truth between incon- sistent assertions. Third, when evaluating the testimony of the three major witnesses, Kuebler, Curd, and Wor- hacz, 3 7 I have weighed their assertions against the testi- mony of others, the documentary evidence, and the in- herent probabilities of the particular situation. Fourth, I have considered the demeanor of the witnesses, weighing my impressions and feelings in this regard together with the logic of the other standards to arrive at my findings in matters which are disputed. Using these standards, then, I have generally credited the testimony of Kuebler and Curd in material areas, and have not credited the testimony of Worhacz in those areas. Worhacz' credibility is flawed in the first, and perhaps most important, instance by his inconsistent testimony in the Brudie case concerning the 1-day-a-week shape. He said, while testifying on February 8, 1977, that the I-day- a-week shape was still in effect. Administrative Law Judge Kaplan believed him and found that the -day shape was in effect and that Brudie was properly re- moved from the seniority list because he had not shaped for 2 years. I have read the transcript in the Brudie case, an exhibit in this case, and find no reason to disagree with Administrative Law Judge Kaplan's findings. But Worhacz testified in this case that the I-day-a-week shape was terminated on January 27, 1977, and, while he took a tolerant view of the continuing practice, the prac- tice of telephone calls to alert employees of available work ceased at that time. In these circumstances Wor- hacz lied either in the Brudie case or in this case. Fur- ther, his testimony as to the telephone shapes, as tele- phone calls, was directly contradicted by Arthur Christ- man, whom I find to be a credible witness. Christman told of repeated telephone calls from Worhacz when work began to pick up in the late spring and summer of 1977. This I find and conclude that Worhacz did not tes- tify truthfully about the end of the -day-a-week shape in January 1977. Further, while Worhacz' shape records were carefully maintained, and relatively free from inadvertent error, reference to his record for August 25, showing that Curd did not shape, is belied by the fact that Curd not only shaped, but, while in the shape trailer, stole the shape sheet off the wall. Considering Worhacz' demeanor, his hostile and de- fensive attitude, whether on direct or cross-examination, and his arrogant and openly contemptuous responses 37 The term "major" is merely used to indicate the lengthy time these witnesses spent on the witness stand, as opposed to "minor" witnesses. some of whose testimony is equally as important. but who spent less time in actually testifying while the General Counsel was attempting to adduce in- formation on the shape system and Kuebler's relation to Allied Used Truck Exchange, tend to convince me that he would not have responded or acted as he said he did toward Kuebler and Curd, but rather that their descrip- tions of his arrogance, contempt, and hostility more ac- curately reflect the actual events, given the character of the people involved. Curd's testimony also presents difficulties. If he had not kept a diary, he might have presented less of a prob- lem, but he did. He kept a diary showing his day-to-day activities, but prior to this hearing, he had expunged the bulk of the entries, leaving only cryptic references to ac- tivities or numbers. His stated reason for this, that he feared reprisal from the Union against people and em- ployers listed is plausible, but his assertions that he could not remember what any of the entries were, or stood for, is plainly incredible. Curd showed otherwise that his memory was not that bad. In addition to this credibility problem, Curd at one point simply refused to answer questions posed on cross- examination which concerned his relations with Govern- ment agencies other than the National Labor Relations Board. Although he later returned to the witness stand, and did answer the kinds of questions he had refused previously to answer, counsel for the Union moved to strike all of his testimony. I reserved ruling on this motion at the hearing. Certainly, if Curd had persisted in his refusal to answer proper questions, it could have resulted in ren- dering all of his testimony incompetent, and in such cir- cumstances I would have been justified in striking all of his testimony.3 8 However, there are two distinguishing factors here. First, Curd did return to the witness stand and did answer all questions put to him, and, second, it does not appear to me that the particular questions, con- cerned with Curd's contacts and dealings with repre- sentatives of other governmental agencies, are really rel- evant to the issues in this case. The questioning is too remote from those issues to be relevant even for the pur- pose of impeaching credibility. Therefore, I deny the motion to strike all of Curd's testimony. I do not feel, however, that this lapse requires that I disregard those parts of the diary that Curd did testify about, nor the remainder of his testimony concerning events unconnected with the diary. In his direct testimo- ny, and on cross-examination concerning incidents with Worhacz, McFarland, and other union officials, his testi- mony is corroborated by Christman, as noted above, and by McFarland and Robert Sasso with regard to the August 31 meeting and its aftermath. I further find that Curd's demeanor while testifying was open and candid, to the extent that the lies about the diary were tele- graphed by his face, his voice, and his manner. I did not receive similar messages from his demeanor while testify- :` Wigmore. Evidence, §1391 (3d ed 1940).With respect to the credihil- ily of that testimony, he lied about the contents of hli diarN in the sense that he testified that the deleted portions concerned only the names of persons he did not anl identified for fear of reprisal and other refer- ences t his priv;ate bhusiess I behe se, l i fact, that the diary shosed jobs and income wshich he received during the )car which, for sme reason. he did ot uanlll Ihe Union. or anfwone else, to know, about 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing about other issues. Thus I find Curd to be a generally truthful witness, except in the areas noted, and I deny the motion to strike all of his testimony. John Kuebler presented less of a problem. In Kuebler's case, he told a straightforward story in a manner which was simple and candid. While I suspect that he played down the closeness of his relation with Allied and the frequency of his associations with that company, his de- meanor and the corroboration of significant portions of his testimony by Charles Mascali, Katsaros, Kudla, and Robert Sasso and by reference to Worhacz' records compel me to credit Kuebler's testimony. I will make additional findings on credibility as other incidents are discussed, but the conflict between the testi- mony of Kuebler and Curd, on the one hand, and Wor- hacz, on the other, is critical to all of the substantive issues in the case. 8. Summary and background This extensive treatment of the background of this case is, I think, necessary for an understanding of the issues, the alleged violation of Section 8(a)(1) and (3) and Section 8(b)(l)(A) and 8(b)(2) of the Act by the Re- spondents. Thus an understanding of the employment sit- uation at Willets Point and the operation of the shape system tend to explain the mutual obligations of the Charging Parties, Kuebler and Curd, and the Union; a recounting of the relationships between Kuebler and Curd, FORE, and Worhacz and the Union seems to point up the conflicts and animosities which influenced those relationships from the mid-1970's on; and the histo- ry of the Mascali company, the GCP job, and the ar- rangement with the Union set the stage for the later dealings between Mascali and Kuebler. B. The Alleged 8b)(l)(4) Conduct As has been noted, Willets Point had suffered severe financial problems resulting in the forced sale or repos- session of much of its rolling stock and a consequent re- duction of its seniority list from a high of about 60-65 employees to 15. At the time of the events in this case, the list contained the following names, in the order of their seniority: There was testimony that the availability of work is low during the winter months, and then picks up in the spring. While no records for times before April 18, 1977, were introduced in this case, there was no disagreement on the lack of work in cold weather. Indeed, the shape sheets for the period from April 18 until after Memorial Day show that posted work (work called for the night before it was to be performed and posted at 4:30 that evening on the bulletin board in the shape trailer) for the weeks of April 18, and 25 and May 2 and 9 was available only through number 7 on the list, William Alberti. In the week of May 16 only six names were posted for Monday, May 16, and Friday, May 20, with an indica- tion that several more were posted for May 17, 18, and 19. Similarly in the week of May 23 only 6 names were posted for May 23, 24, and 25, but 10 names for May 26 and 9 for May 27. Beginning on May 31, the average is 9 names posted, and beginning in the week of June 20 the posting of 10 or 11 names is fairly consistent through the week of October 31 which ends the series of records in evidence here. Although there were 6 weeks in this period when II names were posted for the whole week, and a small number of days when this was so, there was no time through the whole period that 12 names were posted. Thus Curd, who was number 12, was never posted in ad- vance to work during this season. It goes without saying that none of the names below Curd's, including Kuebler's, was posted. Since at no time during this period were Curd and Kuebler posted with a starting time for the next day they were obligated to shape once a week in order to main- tain their seniority. As both Curd and Kuebler stated, as verified by McFarland, and as I have found, the obliga- tion to shape included the obligation to be in the shape trailer at or just before 8 a.m., not before and not after. However, the shape sheet does not itself contain any place where a man shaping can indicate that he has done so, and there was no other practice whereby a shaper could punch the timeclock in the shape trailer, or signal the dispatch office, or in any way establish proof, by mutual understanding between the shaper and those in the dispatch office, that he was really there on any par- ticular morning. In the case of Willets Point the only record of who shaped and who did not was kept initially on what was referred to in this case as "Paul's copy," a duplicate original of the shape sheet, but which was maintained in the dispatch office. 43 The only thing a shaper could do was to maintain his own records or some notation of his shaping. Kuebler and Curd both kept such records. A compari- son between Kuebler's records (and his testimony) of the dates he shaped and Paul's copy showing the dates 4a The shape information was transcribed by Worhacz onto another sheet, which he described as, and will be referred to herein as, Worhacz' personal records. This record also recorded the hours each man worked, in order to check on the payroll department, along with other informa- tion on jobs worked and the doings of employees Worhacz is a careful and meticulous recordkeeper, and his records appear to contain few inad- vertent errors. Whether they contain intentional errors, or misrepresenla- tions f fact, is another question which will be discussed below. 1. Robert Worhacz 3 9 2. Carmine Tufano I 3. Alfred Nicolai 4. James O'Regan 5. Carmine Tufano 114 ° 6. Rodney Mohr4 1 7. William Alberti 8. Manuel Hernandez 9. Frank Fitzpatrick 10. Robert Procida 11. Arthur Christman 12. Charles Curd 13. Jerry Konzelmann 14. John Poulos 15. John Kuebler Buster Holmes 4 2 3e As shop steward he was ex officio the first name on the list. 40 The assistant shop steward. His union functions gave him no prefer- ence on the seniority list. 41 Mohr is sometimes confused with Richard Moore, the dispatcher for Willets Point until April 1976. l Holmes had no number on the list, but his name appeared there on all the records maintained by Worhacz. FRANK MASCALI CONSTRUCTION 235 Kuebler shaped follows, listed by month and date for the period between April 18 and October 21: Kubler's Records April 18, 25 May 2, 9, 16, 23, 31 June 6, 7, 13, 20, 27 July 5, 12, 18, 25 August 1, 8, 15, 22, 29, 31 September 9, 12, 19, 26 October 3, 11, 17 Paul's Copy April 18, 25 May 2, 9, 16, 23 June 6, 7 July-None August-None September 12 October-None Thus, these records agree up to June 7 (with the ex- ception of May 31) but are totally inconsistent (with the exception of September 12) from that point until Kuebler's termination by Willets Point in October. Curd also kept records, about which there has already been some discussion, and the portions of these records which refer to shaping were stipulated by the parties to reflect his testimony if he were asked when he shaped at Willets Point. An analysis of Curd's records and testimo- ny compared to Paul's copy shows the following in the period from April 18 to October 21, by month and day: Curd's records April 18, 28 May 2, 9, 16, 23, 24, 25 June 1, 6, 7, 9, 13 20, 27 July 5, 12, 21, 25, 28 August 1, 8, 15, 2531 29, 31 September 7, 8, 12 15, 22, 27 October 3, 11, 17 Paul's copy April 18, 25, 28 May 2, 9, 23 June 1, 6, 7, 9 July 5 August 15, 29 September 1, 7, 12, 15, 21, 27 October 11 involvement apparently was merely to pass information on to Worhacz, who actually prepared the records. Thus it appears, and I conclude, that Willets Point has in fact delegated the power to keep work records and make as- signments of work to the union shop steward on the job. It is then necessary to determine whether, as alleged in the complaint, Worhacz used this power to discriminate against Kuebler and Curd. and to deprive them of work to which they would otherwise have been entitled, or whether, as the Union maintains, Kuebler and Curd lost work opportunities because of their failure to shape regu- larly and in a timely fashion. To make this determination I must first decide wheth- er Kuebler and Curd did in fact shape on the dates when their testimony or their records indicated that they did. Since there was no mutually understood method by which confirmation of a person's shaping could be ascer- tained, verification of that fact from the employer's point of view depended on personal observation by the dis- patcher or the steward. But Worhacz and Daley both testified that they did not check the shape trailer every day. They would thus be unable to say with certainty whether or not Kuebler and Curd shaped on any particu- lar day. Further, it is totally illogical that Kuebler and Curd, whose vigor and militancy in pursuit of their con- tractual and seniority rights is amply documented above in the background to this case, would, all of a sudden in June 1977, imperil these very rights by discontinuing shaping on a weekly basis. Because of the essentially il- logical conclusion which would result from VWorhacz' records, and in view of my previous findings on credibil- ity as between Kuebler, Curd, and Worhacz, I conclude that Worhacz' records were not accurate in noting whether Kuebler and Curd shaped, and, rather, were in- tentionally falsified to show that they did not shape when in fact I find that they did. The motive for this appears in part in the background of this case outlined above. Worhacz admitted his hostil- ity and dislike of Kuebler ostensibly because of the lat- ter's association with Allied, and his comments to Curd concerning the latter's connections with FORE have al- ready been noted. Then in May of 1977 Kuebler and Curd, as well as Christman, became aware that junior employees were being referred to Mascali. Kuebler asked Worhacz about it and was told that Mascali or Custom, or others, had asked for employees by name and there was %qthing he could do about it.4 4 4' I credit Kuebler's version of this incident. but I cannot believe hat Worhacz. with his total command of the assignment process, would permit assignments out of seniority unless it suited him to do so Take note of McFarland's reaction on August 31 to out-of-seniorily assign- ments discussed below I find that, contrary o Worhac7' testimony. no one was referred to any outside job from the Willets Point list, including unlisted employees who were shaping Willets Point. wilhout the knowl- edge and approval of Worhacz. His care in keeping records so as o record everyone's whereabouts, his instructions to Alberti and Hernandez concerning their employment by Allied, and his remarks o Christmani concerning Konzelmannl, and his ability to take care of people on his "team" show the degree to which he controlled the employment process at Willets Point. Again, as in Kuebler's situation, the records agree fairly well up to the first week in June, then show quite different facts, although the disparity is not as great as in Kuebler's case. There was testimony, mostly from Worhacz, that the recordkeeping function at Willets Point was a joint obli- gation of the dispatcher and the shop steward. Richard Moore testified that this was so at the time he was the dispatcher at Willets Point and its predecessors from 1956 to 1976. He testified, credibly, that he devised the forms used, even for the records which Worhacz de- scribed as his personal records. It seems apparent, how- ever, that following Moore's departure in April 1976, and during the period when Paul Tully was filling in as dispatcher, Worhacz took over the recordkeeping func- tion completely. The records themselves, the shape sheet, Paul's copy, and Worhacz' personal records, are maintained almost entirely in his hand. In his rare ab- sences, at least for the period covered by this case, the records were kept by the assistant shop steward, Car- mine Tufano 11. Frank Daley, who was hired as the dis- patcher about July 1977, did testify that he was involved in the preparation of Paul's copy, but admitted that "for the most part" Worhacz made up the records. Daley's 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 12, Kuebler and Curd had shaped and were talking to Worhacz in the shape trailer.4 5 They asked Worhacz why Buster Holmes was going over to Mascali on a truck that he owned,4 6 and about another truck which they had heard belonged to Worhacz.4 7 Worhacz replied: "I will bury you. You keep hanging out with those rebels, with FORE, you will get yours." Worhacz denied making this statement but I do not credit his denial. Even apart from the background and other cir- cumstances of this case, it is clear, and I find, that this statement is a clear threat of reprisal against Kuebler and Curd because they were engaging in protected concerted activity, and constitutes a violation of Section 8(b)(l)(A) of the Act. Turning back to the question of whether Kuebler and Curd were discriminated against in the spring and summer of 1977, I have now determined that they shaped on the days they claimed they did so, and I have found that an unlawful discriminatory motivation did exist. I have, further, examined the records for each day Kuebler and Curd shaped to determine whether Kuebler and Curd shaped in a timely fashion, that is before the last shape of the day, and, if they did, whether junior employees worked on that day. This determination is made more difficult, first, because I have found these records to be less than honest, reflecting what Worhacz wanted to record, rather than showing what had actually happened; and, second, the fact that employees who were unassigned and then dispatched in the morning were not generally paid by Willets Point, so that the most complete records, Worhacz' personal records, would not show any hours, and would not necessarily show the place to which an employee was dispatched, or whether he was dispatched at all. Therefore, I have had to supplement these records with the testimony of Kuebler and Curd as to whom they may have seen working on particular days during this period. In this connection I have considered only the days when the evidence shows that Kuebler and Curd shaped. My findings and conclusions in respect to those days are as follows: 45 Note: Paul's copy shows that neither Kuebler nor Curd shaped on July 12, or at any time during that week. The documents referred to as Worhacz' personal records show that Kuebler shaped on July II11 but not on July 12, and that Curd did not shape at all in that week. 46 The evidence shows that Holmes, who was junior to Kuebler. was part owner, together with Paul Tully, of a truck which operated under the name of "Ker-Pau." This truck worked 180 hours for Mascali during 1977. There is no record on the shape sheet of this truck, or of Holmes going out on assignment Paul's copy and Worhacz' personal records do show Holmes shaping and being assigned to it, but there is no record of hours. 47 This truck was later identified as belonging to a company called TWT, the initials representing the initials of Mrs. Carmine Tufano I, Mrs Robert Worhacz, and Mrs. Paul Tully. Worhacz denied that he had any financial interest in it, but did admit that he was an officer of the corpo- ration. There is no record of the TWT truck either on the shape sheet or on Paul's copy. The only references are in Worhacz' personal records showing the TWT truck assigned to Hernandez on the GCP job during the weeks of July 18 and August I, weeks, incidentally, when this record is kept in a handwriting different from that of Worhacz. For the weeks before and after these weeks, Hernandez is described as driving a "flat truck." The TWT truck does not appear again in these records until Oc- tober II and 18, when it is shown on Worhacz' personal records as as- signed to Martucci, then on October 25 and 26 to Alfred Nicolai. On April 18 both Kuebler and Curd shaped. There is no indication on that day either from the records or from testimony that any junior employees worked on that day. On April 25, Kuebler shaped, and there is again no in- dication that anyone junior to him worked. On April 28, Curd shaped at 8 a.m.,4 8 but the last shape on that day was 7:30 a.m. John Poulos, who was junior to Curd, was referred to Grace. See the discussion on this issue below. Both Kuebler and Curd shaped on May 2. Again the last shape of the day was 7:30 a.m. However, Buster Holmes drove the Ker-Pau truck that day. 49 On May 9, the last shape of the day was at 7 a.m. Both Kuebler and Curd shaped. On May 16, they shaped, but the last shape of the day was 7:30 a.m. On May 23, they shaped, but again, the last shape was at 7:30 a.m. Curd alone shaped on May 24 and 25, but the last shape was at 7:30 on those days. On May 31, Kuebler shaped. The last shape was 8 a.m., but there is no evidence that anyone junior to Kuebler went out on that day. On June 1, Curd shaped, the last shape was at 8 o'clock, but there is no evidence of junior men working. Despite the size of the record, and the exhaustive discus- sion of the issues, there are no answers to some questions raised by the facts. For example, why did Paul Tully, one of the owners of Willets Point, have interests in Ker- Pau, and, through his wife, in TWT, since those two trucks could be considered competitive with Willets Point. On May 2 the records show that only six Willets Point trucks were dispatched, along with the Ker-Pau truck. There is no explanation of why Holmes, the lowest man on the seniority list, was dispatched from Willets Point on the Ker-Pau truck. Even though Holmes owned a percentage of the truck, and if he had wished he could have gone around himself looking for work, the records show that he was dispatched on the truck from Willets Point. Carmine Tufano II, whose wife was a part of the TWT deal, never was assigned to that truck, so Holmes' case seems to be something of an anomaly. The only logical explanation appears to be the minority hiring problem at Mascali, discussed below, but this does not relieve the Union from the burden, if the Ker-Pau truck were dispatched from Willets Point, of as- signing to it the senior driver who shaped on that day. Holmes would, in any case, be entitled to his share of the rental of the truck. Nor would the fact that the driver would be paid by someone else make any difference, since this was the practice in most outside assignment. On June 6, both men shaped and the last shape was at 8 a.m. Paul's copy shows that Konzelmann did not shape, but Worhacz' personal records show that he worked at Edenwald on that day. Kuebler testified that Dennis Nourry,5 0 worked for Coletti, another employer, and Buster Holmes worked for Custom on that day. us Kuebler and Curd testified that they always shaped at 8 a.m. 4u The Ker-Pau situation is one of the unsolved mysteries of this case 50 Nourry is not on the Willets Point list. Worhacz described him as a "shape bum" who moves around from one location to another looking for work. FRANK MASCALI CONSTRUCTION 237 Kuebler testified further that Nourry was in the shape trailer, got a telephone call from the office, left, and did not return. Kuebler later testified that he saw Nourry that day driving a Coletti truck. Further, Christman testi- fied, credibly, that Worhacz had told him that he, Wor- hacz, had arranged for Konzelmann to work for Eden- wald. In these circumstances, I infer and find that Wor- hacz in fact referred Nourry to Coletti on that day, and had referred Konzelmann to Edenwald in a position which would otherwise have been available for a more senior employee. Since Curd had more seniority than Konzelmann this action discriminated against him,5 ' and since Konzelmann did not shape that morning, Kuebler, as the next senior man, would have been entitled to the referral which was given to Nourry, who had no senior- ity at all. Thus Kuebler, too, was discriminated against on June 6. On June 7, both Kuebler and Curd shaped and the last shape was at 8 a.m.5 2 Again Konzelmann did not shape, as noted on Paul's copy, but he is shown on Worhacz' personal records as working at Edenwald. There is no evidence that any other junior employee worked that day. Thus I find that Curd should have been assigned. On June 9, Curd shaped again; in the same fact situa- tion as on June 7, Curd was again the victim of discrimi- nation. On June 13, both Kuebler and Curd shaped. This situa- tion duplicates the situation of June 6 and I find that both Curd and Kuebler would have worked that day but for the discrimination against them On June 20, Kuebler and Curd shaped. Konzelmann again worked for Edenwald, Holmes worked for Ker- Pau, and Kenneth DeVincent, another person not on the list, is shown on Worhacz' personal records as working for Custom. Here, again, if seniority had been followed, Kuebler and Curd would have worked. On June 27, Kuebler and Curd shaped. Holmes is shown on Paul's copy as not shaping, but is marked as having shaped on Worhacz' personal records. However, he did not drive the Ker-Pau truck that day. That truck is shown as assigned to Konzelmann, with DeVincent as- signed to Custom. I find this to be another instance of discrimination against Kuebler and Curd. On July 5, Kuebler and Curd shaped. However, the last shape of the day was 7:30 a.m. On July 12 Kuebler and Curd shaped. Worhacz' per- sonal records show that Konzelmann did not shape, but was still assigned to Edenwald. DeVincent was assigned to the GCP job for Mascali. Thus, Kuebler and Curd would have worked on that day also. On July 18 Kuebler shaped. Konzelman was still at Edenwald, and Holmes at Ker-Pau, but the records for that day show that Christman also shaped and did not 51 I view Worhacz' action in referring Konzelmann to a job. even though that job may have been more or less permanent, as violative of his duty to refer by seniority. Curd was senior to Konzelmann, and, in the absence of discrimination. should have been referred first. s2 Note: The records show that up to the week beginning June the last shape was at 7 or 7:30 a.m. on most days. On June 6 and thereafter down through August 26, with the exception of June 17 and July 5. the last shape was at 8 am. This later starting time seems to be due to the fact that the shape time for employees assigned or sent to the GCP job was consistently at 8 am. work. Christman is senior to Kuebler, so I canlnot find that Kuebler lost the day due to discriminatory assign- ments. On July 21 Curd shaped. Konzelmann was at Eden- wald, DeVincent at Custom, and Holmes at Ker-Pau. Thus Curd would have worked on that day. On July 25, Kuebler and Curd shaped. On this day the number 9 driver, Frank Fitzpatrick, was on vacation and the shape sheet showed all the drivers senior to Curd posted for that morning. Kuebler and Curd were aware that some rearranging of trucks had taken place, al- though they were mistaken about the details. They ap- proached Worhacz about the assignments to Mascali, and Worhacz, as he had in May, told them he had nothing to do with those assignments since it was Mascali's job. However, Worhacz' personal records show that Konzel- mann was still at Edenwald, DeVincent at Custom, Holmes on the Ker-Pau truck, and Joseph Martucci,5 3 who had begun shaping Willets Point sometime in the middle of June, was assiged to Mascali. Under the se- niority rules and the practice of the shape system, both Kuebler and Curd should have worked on the day. On August 1, Kuebler and Curd shaped. Konzelmann was at Edenwald, DeVincent at Custom, Holmes at Ker- Pau, and Martucci at Mascali. Both Kuebler and Curd should have worked on August 1. On August 8, Kuebler and Curd shaped. Konzelmann was at Edenwald, Holmes at Ker-Pau, and Martucci at Scalamandre, another employer. DeVincent is shown as shaping but he did not work. Kuebler and Curd should have worked. On August 15 Kuebler and Curd shaped. Christman also shaped and did not work on that day. However, the records show that Konzelmann was at Edenwald, Holmes at Ker-Pau, and DeVincent at Custom on a night job. Thus, by operation of the seniority system, Christman, Kuebler, and Curd all should have worked on August 15. On August 22 Kuebler shaped. The records show that the GCP job was rained out on that day so that Alberti and Hernandez, the two employees regularly assigned to Mascali, and Robert Procida, number 10 on the list, did not work. The records also show that Konzelmann, Holmes, DeVincent, and Martucci did not work on that day. In the circumstances, I cannot find that Kuebler would have worked on August 22. On August 25 Curd shaped. Konzelmann did not shape and did not work, but DeVincent was at Custom and Martucci at Mascali. I find that Curd should have worked on that day. On August 29 and 31 Kuebler and Curd shaped. The incidents which occurred on these days will be described below. On September 7 and 8 Curd shaped, but the records show that no one junior to him worked on either of those days. I cannot find that Curd would have worked on these days. sg Also referred to is the record as Matucci. Martocci, or Matocci. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 9 Kuebler shaped, but again no junior men worked on that day so that there is no evidence that he should have been assigned. On September 12 both Kuebler and Curd shaped. The last shape of the day was 7:30 a.m., but the records show that no one junior to Curd worked on that day. On September 15 Curd shaped; the last shape of the day was at 8 a.m., but no junior employees worked. On September 19, Kuebler shaped. The last shape was at 7:30 a.m., and Martucci was assigned to Scalamandre. On September 22 and 27 Curd shaped. The last shape of each day was at 8 a.m., but no junior employees worked. On September 26, Kuebler shaped, the last shape of the day was at 8 a.m., but no junior employees worked. On October 3, both men shaped, the last shape of the day was at 8 a.m., but no junior employees worked. On October 11, both Kuebler and Curd shaped, but the last shape of the day was at 7:30 a.m. Martucci was assigned to a Willets Point truck. On October 17 both shaped. Again, the last shape of the day was at 7:30 a.m. Worhacz' personal records show that Martucci shaped, but did not work. However. Paul's copy shows that he was assigned on a Willets Point job. On October 21 Willets Point sent letters to Kuebler, Curd, Konzelmann, Holmes, and Poulos, informing them that they were discharged for refusing to shape on a daily basis. Leaving aside for the moment the matter of the dis- charges, I have found a pattern and practice of discrimi- nation going back at least to June 6 where junior em- ployees were referred by Worhacz in a manner contrary to the usages of the shape system and the practice under the Willets Point seniority list. The complaint in this case, however, alleges that the Union violated the law only on and after July 25. Therefore my findings and conclusions as to violations of Section 8(b)(1)(A) and (2) of the Act will run from that date and I find, according- ly, that the Union violated those sections by failing to refer both Kuebler and Curd on July 25 and August 1, 8, and 15. The Union further violated the law by failing to refer Curd on August 25 and by failing to refer Kuebler on August 22. There remain to be considered two sets of circum- stances, the first of which involves those days when Kuebler or Curd, or both, shaped at 8 a.m. and the last shape of the day was prior to that time, as on September 19 and October I1, and the second set of circumstances concerns those days between July 25 and October 21 when neither Kuebler nor Curd shaped and junior em- ployees worked. Both of these situations can be considered together as, in my opinion, they are variations on the same theme. I have found that the operation of the shape system re- quired that employees must shape, before the last shape of the day, in order to be eligible for referral. Kuebler and Curd had both worked in this industry and under the shape system for many years, so there is no question that they were aware of the system's fundamental re- quirements. However, they were misled, as I have found, by Worhacz' insistence on November 16, 1976, that he had to call Konzelmann on that morning in order to clear the seniority question and allow Kuebler to work. They were misled further when, in May and in July 1977, Worhacz insisted that he had nothing to do with the referrals of employees to Mascali when in fact he had total and absolute control over such referrals. Fur- ther, there is no credible evidence that Worhacz ever ad- vised Kuebler and Curd to shape earlier, or more often, because of work opportunities. 5 4 There is no evidence at all that Worhacz advised them of increasing work oppor- tunities in the summer of 1977. 55 This failure to advise Kuebler and Curd is a logical result of Worhacz' ex- pressed hostility toward their complaints, their griev- ances, and their association with the dissidents in FORE. It flows naturally from this that Kuebler and Curd were not referred when they did shape according to the rules and junior men were referred. Likewise it is apparent that they did not shape earlier, or more frequently, not only because they were not advised to do so, but were positively discouraged from doing so because of Wor- hacz' verbal deception and the lack of information on the shape sheets concerning the use of nonlist employees. Finally, it follows from all this, and I conclude, that they would not have been referred by Worhacz no matter how early or often they shaped. Shaping in these circumstances would have been entirely futile on their part. Accordingly, I cannot find that, in this case, and on these facts, Kuebler and Curd were obliged to shape every day, or prior to the last shape of the day, on any day between July 25 and October 21 when men junior to them on the Willets Point seniority list were assigned to work as shown on Paul's copy of the shape records, or on Worhacz' personal records. In view of these findings and conclusions, I find that the Union, by refusing to refer Kuebler and Curd to work in the period from July 25 to October 21, 1977, violated Section 8(b)(1)(A) and (2) of the Act. Local Union 675, International Brotherhood of Electrical Work- ers, AFL-CIO (S & M Electric Co.), 223 NLRB 1499 (1976); United Industrial Workers of North America of the Seafarers International Union of North America, AFL-CIO (Sea-Land Service Inc.), 207 NLRB 958 (1973). C. The August 29 Incident It is clear that Kuebler and Curd were suspicious through the spring and summer of 1977 that something was going on at Willets Point. They were aware that the Ker-Pau and TWT trucks were being used. They ob- served employees junior to then driving trucks belonging to other employers such as Custom, Coletti, and Melita. 5 6 They were aware, also, that two Willets Point drivers, Alberti and Hernandez, were more or less per- s i do not believe Worhacz' statement that he told Kuebler and Curd many times" to report earlier when they shaped as Kuebler and Curd testified that they saw junior men working during this period, but they were put ff by Worhacz' dissembling ex- cuses. In this, they may have been naive, but not negligent. or Two trucks belonging to Melita were garaged at Willets Point, and Willets Point drivers were sometimes assigned to them according to Worhacz' personal records. During the summer of 1977, these trucks were moved and were no longer used. FRANK MASCALI CONSTRUCTION 239 manently assigned to Mascali throughout this period. While they may indeed have been naive, they were put off the track and misied by Worhacz until the morning of August 29. On the morning of August 29 Kuebler was sitting in his car on the street which borders the adjoining proper- ties of Willets Point and Allied. He had arrived early and was reading his newspaper when he observed Worhacz driving in to Willets Point about 7:20 a.m. Next he saw Martucci driving out of the Willets Point yard at 7:28 a.m. driving a Willets Point truck. Curd arrived about 7:40 or 7:45 and the two of them went into the shape trailer. There they observed the fact that men were posted for 8 a.m. They then left and went to the Willets Point jobsite where they observed Martucci working. Curd spoke to him about his assignment and Martucci re- plied that he did not make the rules. At this point, Curd contacted Business Agent Mike Carbone. 57 Carbone agreed to come down to discuss Curd's grievance on August 31. Because of his lack of familiarity with the industry, Carbone asked McFarland, who was at home recuperating from an operation, to join him. McFarland agreed. Meanwhile, on August 30, Worhacz heard of some work, possibly 2 weeks, with an employer named Delman. He called Curd's home three times on that eve- ning in order to offer him the opportunity to work. Curd was not home and did not return the calls. On the morning of August 31, Curd arrived about 7 a.m. Worhacz came out of the office to where Curd was sitting in his car and asked why he had not returned the telephone calls the night before. Curd replied that he had come home too late and, besides, he wanted to present his grievance to the business agent. Worhacz then said that Curd would rather fight him for a day's pay than work for 2 weeks. Curd asked Worhacz for the address and said he would go to the job the next day. He also asked Worhacz why he had not called him all summer. Worhacz replied to this by saying that Curd would never get any work from him, that he would hurt him in his pocket. He began screaming at Curd, saying he would "bury" him, and that he was working,58 and that Curd would never work. Carbone and McFarland arrived at 8:05 a.m. on August 31. McFarland had recently undergone surgery on his legs and was unable to get out of the car, so the discussions took place beside the car. Curd had asked Kuebler and Lawrence Kudla, the recording secretary of FORE, to join him. Curd presented his grievance to the business agent, al- leging that he had shaped on time for the 8 o'clock shape posted on the shape sheet; that Martucci had been sent 57 Worhacz testified that Curd called him on August 29 and com- plained about Martucci's assignment. He was not satisfied with Worhacz' explanation and accused the steward of being unfair and not giving Curd the work that he should Curd denied this, but I do not find it necessary to resolse this conflict although Worhacz' story seems more logical in the circumstances. Carbone was a new business agent and at that time was relatively unfamiliar with the asphalt industry since his experience had been exclusively in the soft-drink industry 5s Worhacz' description of his own duties is somewhat hazy but his personal records show that he worked generally 10 hours or more each day during the period from April to October. out at 7:25 on a truck; and that the truck should have been held until 8 and assigned to Curd by seniority. Worhacz. however, maintained that the last shape of that day was at 7:30. He went in and got the shape sheet from the shape trailer, but McFarland declined to look at it. Instead, he accepted Worhacz' explanation and told Curd that since he was late for the last shape of the day he was not entitled to the day's pay and his grievance was denied. Curd then raised a question about the assignment of Alberti and Hernandez on a permanent basis to the GCP job for Mascali. He maintained that they were not shap- ing at Willets Point; that they had thereby forfeited their seniority; and that they should be removed from the Wil- lets Point seniority list. McFarland declined to do this, but did instruct Worhacz to order Alberti and Hernan- dez to shape in accordance with their place on the Wil- lets Point list. Kuebler then raised another matter. He claimed he was being blacklisted by Custom because Barkley, the owner of Custom, had referred to him as a troublemaker. Carbone suggested that they go over and confront Bark- ley, but McFarland told Kuebler that, if Barkley were discriminating against him, Kuebler should "go to American Civil Liberties." Kuebler then left. Curd was not satisfied with the adverse decision on his grievance and appealed the matter to the executive board of Local 282. The board met on December I to consider this appeal. 59 At the December 1 meeting, Kuebler and Curd were accompanied by Kudla and Katsaros. The board mem- bers present were Secretary-Treasurer Sasso, Argento, Baggia, Bai, Carbone, and McFarland. Sasso, who pre- sided, opened the meeting by announcing that the board would not consider any matters which were before the National Labor Relations Board. 60 Thereupon Worhacz asked that Kuebler be excluded from the meeting be- cause he had filed charges with the National Labor Rela- tions Board. This Sasso declined to do and the meeting continued. Curd presented his grievance, but on the basis of the shape sheet produced by Worhacz showing that the last shape of the day was 7:30 a.m., the grievance was denied. The executive board disregarded statements by Kuebler and Curd that this shape sheet had been altered, and that they had seen a shape sheet in the shape trailer on the morning of August 2961 showing an 8 o'clock start. There was some additional discussion about Alberti s9 There had been a meeting scheduled for October 20 on this matter. but Curd did not get the opportunity to appear. There is considerable tes- timony on this meeting. but I can discern no evidence that the failure to hear Curd's grievance on that date was due to any culpable action or lack of action by the executive board 60 By this time Kuebler and Curd had filed a number of charges against Local 282 and both had filed charges against Willets Point be- cause of their discharges All of these cases except the charges in the n- stant consolidated complaint were withdrawn or dismissed, but several, including the instant charges. ere still pending on December 1 61 Curd had taken a photograph of the shape sheet on September . and offered this to the hoard, but the board refused to examine it In any evenl, a comparison of the photograph with the shape sheet submitted in evidence in this case shows that they are exactly the same, through Sep- lember I FRANK MASCAL CONSTRUCTION 239 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Hernandez and the Mascali arrangement, but the meeting ended without a resolution on Curd's grievance which was satisfactory to him. It is evident that the key to this incident is in whatever actions were taken by Worhacz on the morning of August 29. As background, it may be noted that, from May 23 until August 29, William Alberti was posted for the GCP job at 8 a.m. and Manuel Hernandez was posted for the same time on the same job from June 13 to August 29. On those days when Christman or some other driver was posted for Mascali up to August 29 the time was invari- ably 8 a.m. Worhacz testified that Mascali's job superin- tendent, Paternostro, frequently changed the starting time for those employees assigned to the GCP job, but there is no indication in the records that this 8 a.m. schedule varied during the summer. After August 31, when McFarland ordered Alberti and Hernandez off the Mascali job and back to Willets Point, the records con- tinue to show an 8 o'clock posting for the GCP job until September 12, when the time moved back to 7:30 for a week. Thenceforward the starting time varied between 7:30 and 8 a.m. 62 Worhacz testified that the shape sheet and its dupli- cate, Paul's copy, were made out around 4 p.m. on August 26 for Monday, August 29, showing Alberti, Hernandez, and Christman posted for 8 a.m. at Mascali's job. He then stated that Paternostro called about 4:30 on August 26 and changed the starting time to 7:30. Wor- hacz went out and changed the times on the shape sheet, 63 but neglected to do so on Paul's copy, which is retained in the dispatch office. Thus Paul's copy for August 29, which is in evidence, shows a starting time of 8 o'clock for the three drivers assigned to the GCP job. Worhacz explained this inconsistency by claiming a mere lapse of memory. However, Worhacz' personal records which, as described by Richard Moore, are prepared from the shape sheets which are made up at the begin- ning of the day, and the hours worked, which are taken from the employees' timecards at the end of the day, show that Alberti, Hernandez, and Christman worked at GCP from 8 a.m. to 4:30 p.m. on August 29. Now it is true that Alberti and Hernandez were not paid by Willets Point during this time. They did not return to the Willets Point payroll until after McFar- land's order to bring them back on August 31. They did not reappear on Willets Point's payroll until September 4. To show the hours worked, and to attempt to recon- cile this inconsistency in Worhacz' story and his records, 62 A 7:30 or earlier posting would require the payment of overtime. See discussion of the shape system above. There is no indication in the record of why this was done, but the reason is not material to the issues here. Worhacz testified that both Alberti and Hernandez agreed to give up the overtime work to which their seniority would have entitled them. for the benefits of steady assignments to Mascali, thus indicating that the Mascali job was strictly an 8 hour job and Worhacz was aware of that fact. 63 This was a simple task as the shape sheet is written in pencil and he would merely have to erase one time and write in another. However, the original shape sheet for that date is in evidence, and while it shows clear- ly an erasure opposite the name of Carmine Tufano I. who called in sick that morning, and in the "location" column opposite Christman's name, it shows absolutely no sign of an erasure, or rewriting of times, opposite the names of Alberti. Hernandez, and Christman. the Union called Mascali's timekeeper on the GCP job, Al King, to try to ascertain through Mascali's time rec- ords what hours the three Willets Point employees worked at the GCP job on August 29. King testified, credibly, that the records showed that Hernandez and Christman had worked 8-1/2 hours on August 29. But only in Hernandez' case had his foreman put down the hours, 7:30 to 4:30. In Christman's case the records did not reveal whether he started at 7:30 and worked until 4:30 for his 8-1/2 hours total, or whether he started at 8 a.m. and worked until 5 p.m., or worked through his lunch hour, thereby picking up the half hour of over- time. However, even assuming that Christman had a 7:30 start, there is still Alberti's case to consider. In his situa- tion every record, except for the shape sheet, agrees that he worked 8 hours, from 8 a.m. to 4:30 p.m. on that day. The weight of this evidence-taking Alberti's situa- tion; the testimony of Kuebler and Curd that they saw a shape sheet in the shape trailer on August 29 with 8 o'clock starts posted; the fact that both Paul's copy and Worhacz' personal records show 8 o'clock starts; and the fact that the shape sheet itself, the physical document- shows that no erasures or changes were made in the starting times for Alberti, Hernandez, and Christman for August 29, and convinces me that Worhacz lied about changing the starting times; and that while there may have been changes in the starting times of Hernandez and Christman, there was none in Alberti's starting time. It follows then that Worhacz, sometime after the shape in the morning, took down the shape sheet and wrote a new one showing 7:30 starts for all three employees. 64 By August 31 the new document was available for McFarland's inspection, and was used at the executive board hearing on December 1,6 5 then introduced into the record in this case. By September 1, when Curd took a picture of it, the substituted sheet had 3 more days of entries on it. In these circumstances I view Worhacz' calls to Curd on the evening August 30 with an offer of work to be merely a ploy, to get Curd off the premises when the business agents arrived, even though he had covered his tracks with the substitute shape sheet. His suggestion to Curd on the morning of August 31 that he, Worhacz, could just as well present the grievance to the business agents must be based on his assumption that Curd was even more naive than I have found him to be. Thus I find an additional violation of Section 8(b)(1)(A) in Worhacz' threats to Curd on the morning of August 31, and a further violation of Section 8(b)(1)(A) and (2) in the assignment of Martucci out of seniority, and the falsification of the shape records to insure the denial of Curd's grievance after he became 64 As noted above, this would have been a very simple matter. Since August 29 was the first day of the week all Worhacz would have to do would be to recopy the original sheet and repost it in the shape trailer 65 The December I hearing seemed to me to be openly and fairly run by Sasso. All parties were given the opportunity to speak and to present their positions, but based upon what I have found to be manufactured and fraudulent evidence, the executive board had very little choice. This does not. of course. mean that the Union can escape the consequences of such actions by its agent, Worhacz. FRANK MASCALI CONSTRUCTION 241 aware of and threatened to expose Worhacz' duplicity to the Union's business agents. D. The Discharges of Kuebler and Curd On October 21, Willets Point, by Paul Tully, superin- tendent, maintenance division, addressed letters to Kuebler and Curd (also to Poulos, Konzelmann, and Holmes) pointing out that "A review of the Company records" showed that they had been consistently absent and stating further that "These absences were caused in large measure by your failure to physically shape your job each day." They were notified that they were dis- charged as of that date. Worhacz testified that Tully's interest in the shape rec- ords was prompted by the incidents of August 29 and 31, and that, following the meeting between the business agents and the employees, Tully became upset and began checking through the shape records. As I have already found, the only shape records which existed were those which had been prepared by Worhacz himself. I have found, further, that these records intentionally misstated the number and frequency of shapes by Kuebler and Curd, in part to deny them referrals to work, but another reason may have been just this eventuality. I have also found that, despite anything McFarland may have said about shaping once a week, Worhacz continued the prac- tice, concealing the practice, by his own admission, both from McFarland and the Company. When Tully went through the records he could reach only one conclusion, that these men were not shaping, but such conclusion was based on a calculated and deliberate fraud. Worhacz testified that he had a conversation with Tully before the discharges when the latter told him that the men were not shaping even though there was work available. Worhacz replied that he had no argument for that, and the discharge letters were sent. Following their discharges Kuebler and Curd filed charges with the National Labor Relations Board against Willets Point, Kuebler on October 27 and Curd on No- vember 11 (Cases 29-CA-6011 and 6011-2). Following investigation the charges were dismissed by the Regional Director for Region 29 because, . . .the evidence tends to show that your discharge was based upon the Employer's reliance on shape records maintained by the Union that indicated you have failed to physically shape for a sustained period of time. Inasmuch as there was insufficient evidence to es- tablish that the Employer had reason to doubt the validity of the shape records submitted to it by the Union, I am refusing to issue a complaint against the Employer. The dismissal letters were dated December 30, 1977, the same day that the complaint issued in this case. Kuebler received his copy of the discharge letter on Saturday, October 22. On Monday October 24 he went to Willets Point and spoke to Worhacz about it. Wor- hacz said he had not yet received the letter but he would get back to Kuebler. He did not, so on October 26 Kuebler called Business Agent Carbone. 66 Carbone told him that the shape records indicated that he had not been shaping, but he would look into it. On October 27 Kuebler filed his charge with the Board. Later, not having heard from Carbone, Kuebler called him again. Carbone told him that, since he had taken the case to the Board, to let it handle it. Curd apparently did not contact Worhacz about his discharge, but did call Carbone, with substantially the same results Kuebler had obtained. Curd, however, said that he had his own records, to which Carbone replied that he had not known that. As the result of these con- versations Curd arranged to bring his records down to the Union's offices on November 10. Kuebler and Curd met with Carbone at the Union's of- fices on November 10.67 Carbone at first asked them to wait for McFarland, then when he arrived suggested that they all go to Sasso's office. When they got there they found Sasso, together with Union Officials Gesualdi and Dee. Sasso testified that he told Kuebler and Curd that the Union would not get involved in this matter since there were charges before the Board. He told them that this was his final word, on advice of counsel, 6 8 and that this was a longstanding procedure. He added that Carbone had gone down to Willets Point and had checked the employer's records and the shop steward's records. As a result, there was no basis for arbitration. They refused to look at Curd's records and the meeting concluded. On the basis of the facts I have previously found, the I-day-a-week shape was still in effect in October; Kuebler and Curd had satisfied their obligations to shape once a week through October 21; the employer, Willets Point, had delegated total responsibility for the mainte- nance of shape records to the Union's shop steward; and those records, through deliberate falsification and manip- ulation, showed that Kuebler and Curd had not shaped. Thus I find and conclude that the discharges of Kuehler and Curd were caused by the Union as a further manifes- tation of the discriminatory scheme devised and imple- mented by Worhacz in retaliation to the protected con- certed activity of Kuebler and Curd in violation of Sec- tion 8(b)(l)(A) and (2) of the Act. Miranda Fuel Compa- ny, Inc., 140 NLRB 181 (1962). In addition, the Union violated Section 8(b)(l)(A) by Worhacz' threats to Curd on the morning of August 31 that he would "bury" Curd and that Curd would never work. Further, the Union violated Section 8(b)(1)(A) by its admitted refusal to process the grievances of Kuebler and Curd from October 24 on because they had filed charges with the National Labor Relations Board. N.L.R.B. v. Industrial Union of Marine and Shipbuilding Workers of America and its Local 22 [United States Line Company], 391 U.S. 418 (1968). 66 The cllective-bargaining agreements in his industr, call for arhi- Iration of any discharge within 2 days of its xcurrence I was in preparation for this meeting that Curd had scratched out large portiotns of his diary See the discussion of that diary. above " Not the same counsel who represented the Union in this proceeding aware of and threatened to expose Worhacz' duplicity to 242 DECISIONS OF NATI()NAL LABOR RELATI()NS BOARD E. Kuebler and Mascali The specifications for the Grand Central Parkway project required bidders to certify that they had adopted certain minimum goals and timetables designed to in- crease minority manpower utilization, and affirmative action programs directed to that end. "Minorities" are defined in the specification as "Negroes, Spanish Sur- named Americans, Orientals and American Indians." Specific percentages for such minority employment are listed in the specifications. Mascali, as the successful bidder on this project, had been experiencing difficulties in meeting these quotas.6 9 As one result of these problems, Robert Agnew, the night superintendent of the GCP job, who was black,7 t1 spoke to Frank Daves, a black owner-operator of a truck employed on the job at night, in mid-August, asking Daves if he knew of a minority driver to fill in for a couple of days. He also mentioned to Daves that the job might last 5 or 6 months. Daves replied that he had a friend who needed work. The matter rested there until the afternoon of Septem- ber 1. At that time Agnew had a conversation with Joseph Paternostro, the day superintendent, in which Pa- ternostro said that he needed a driver.7 i Agnew recalled his prior talk with Daves, and said to Paternostro that he might be able to get someone for him. Agnew then called Daves. Daves apparently checked with his friend, found he was already working, then called Ed Savera,7 2 the shop steward at a company called Hendrickson Brothers. Savera had no minority driver available, but it so happened that Curd and Kuebler had been shaping off and on at Hendrickson Brothers that summer, and occa- sionally working. Savera thus gave Daves their names and telephone numbers. Daves called Curd, who was not at home, then called Kuebler, who was home and who expressed an interest in working. Daves called Agnew and gave him Kuebler's name and number. Agnew then called Kuebler and arranged for him to report to the GCP job on the morning of September 2. Agnew com- pleted the circle by informing Paternostro that Kuebler was coming in the next morning. There is some confusion in the testimony as to how long Kuebler's job was going to last. It is clear from the testimony of Kuebler and Daves, which I find to be credible, that Daves paraphrased Agnew's remark that the job would last 4 or 5 months or that it would last until the end of the season.7 3 s6 A listing of the names of his employees by Charles Mascali shovs that this requirement would indeed present difficulties. 70 Racial identification, while ordinarily irrelevant, is important to an understanding of this particular set of facts. In making these findings of fact, I rely on the credible testimony (of Agnew, a professional engineer, and Daves. who is also a credible witness " Paternostro had previously called Worhacz, who was unable o supply him with enough drivers. He was thus concerned about coxering the work for the next day. 7Z Variously spelled Silvera, Silvero, and Silvara in the record, I am informed in Respondent Union's brief that Savera, who is black, was elected a business agent of Local 282 on December 10, 1978 7a The job continued until mid-December 1977, when it as shut down because of the weather, then resumed in the spring of 1978, and was still in progress in midsummer. Kuebler reported to work at Mascali on September 2 and greeted Paternostro as he came in. Paternostro knew Kuebler because he had been a superintendent for Wil- lets Point for some years and was only on loan to Mas- cali for the duration of the GCP job. Kuebler filled out the required forms and went to work. At the end of the day Kuebler came in to the office and asked about the situation for the next working day, Tuesday, September 6. Paternostro testified that he told Kuebler that he had to check with Steve Costa to see whether Mascali's own drivers were available, or wheth- er there might be a surplus of Mascali drivers. He said that Costa would know. Kuebler, on the other hand, tes- tified that he arrived back in the office about 4:30 p.m. He further testified that he asked Paternostro what time he should report on Tuesday, and that Paternostro re- plied that he would call him if the starting time was before 8 a.m. If not, Paternostro said, "I'll see you Tues- day." I credit Kuebler's version of this incident, first because I found Paternostro to be rather sly and evasive, wishing to avoid trouble from any direction, and, second, because of the timing of the conversation. By 4:30 in the after- noon, Paternostro, by his own testimony, would already have called Costa, and, indeed, would already have called Worhacz to arrange for the next workday's driv- ers. Thus Paternostro's alleged statement to Kuebler that he had to call Costa is obviously untrue. He also testified that he spoke to Worhacz on September 2, at one point in his testimony saying that he told Worhacz that Kuebler was on the job, at another point saying that Worhacz had remarked to him that Kuebler was on the GCP job. Worhacz testified that Paternostro mentioned on September 2 that Kuebler was on the job. Worhacz further said that he told Paternostro that Kuebler would have been at Mascali anyway if he had shaped at Willets Point and, further, that he had enough drivers to send Paternostro on Tuesday, and that Kuebler would shape in his regular position on the Willets Point list on Tues- day. I find that this conversation took place, probably pretty much as described by Worhacz, although logically I could infer that Wohacz' end of the conversation was more forceful and positive with respect to Kuebler's obli- gations to Willets Point. But, from my observations of Paternostro, this gentle admonition would have been suf- ficient to remind Paternostro that he was obliged to obtain employees through MWorhacz at Willets Point, and not through the individual initiative of Kuebler or anyone else. I cannot speculate as to why Paternostro did not inform Kuebler of the hiring arrangement Mas- cali had with the Union, or the results of his telephone call with Worhacz on that Friday afternoon. The only reason which has any logic is that Paternostro may have thought that Worhacz would speak to Kuebler at the shape on the morning of September 6, and Paternostro could avoid a troublesome confrontation. On the morning of September 6, however, Kuebler ap- peared at the GCP job office. Both Kuebler and Pater- nostro agree that the latter said that he could not put Kuebler to work because he had to obtain his drivers FRANK MASCALI CONSTRUCTION 243 from Worhacz at Willets Point. When Kuebler protested, Paternostro said there was nothing he could do. On September 7 Kuebler spoke to McFarland on the telephone and told him what had happened. McFarland replied that he had made the arrangement whereby, if Mascali needed men, they would get them from Willets Point. On that same day Kuebler went to see Charles Mascali who then called Worhacz at Willets Point and was informed that Kuebler was on their list, and that he was lower in seniority than the people who had been sent to the GCP job.74 Worhacz must have mentioned something to Charles Mascali about Kuebler jeopardizing his seniority at Willets Point by shaping and working at the GCP job, because this was mentioned by Charles Mascali to Kuebler at one of their later meetings. They did have several more meetings but those meetings pro- duced no results satisfactory to Kuebler and produced no change in the situation. On September 12 Kuebler met Daves and told him what had happened to him at Mascali. Daves said he would see Agnew and find out. A few days later Daves met Kuebler and told him that Agnew had said Kuebler was a troublemaker and they had to get rid of him. Agnew agreed that he had talked to Daves about Kuebler, but asserted that he told Daves that Kuebler was going to put in a claim against Mascali and that he, Agnew, was not looking for any trouble because of the claim. He said that he had done someone a favor and it was now causing him trouble. I credit Agnew and find that, in all probability, either Daves or Kuebler got the remarks mixed up in the transmission. There is really no indication that Kuebler was dis- charged by Mascali because he was considered a trouble- maker or agitator. Rather, the record shows that he was hired on September 2 at the end of a curious and highly fortuitous chain of events which led up to his employ- ment. All of these oddly assorted circumstances would not have coalesced in the hiring of Kuebler if it were not for the fact that the arrangement between Mascali and Worhacz broke down on September I and Worhacz was not able to promise Mascali the man it needed for the next day. There is another circumstance, however, which also may have influenced Mascali in the hiring of Kuebler. This is the fact that both Charles Mascali and Paternos- tro were concerned about the unfamiliarity of some of the drivers supplied by Worhacz with the geography of the GCP project. The job was some eleven miles from one end to the other. Paternostro had complained to Worhacz about sending over people who were unfamil- iar with the job, pointing out to him that in those cases Mascali had to assign a laborer to act as a guide to the driver until he learned the various locations on the job. The General Counsel asserts that the removal of Alberti and Hernandez from Mascali by McFarland on August 31 made this problem more acute. He may be right, but I feel that Mascali's unhappiness with unfamiliar employ- ees existed before the removal of Alberti and Hernandez, and their removal, particularly the removal of Spanish- 74 I base this finding on the undenied and credible testimony of Charles Mascali. surnamed Hernandez, undoubtedly prompted Mascali to look for a minority employee on a permanent basis to help it with its minority quota problem, as well as the job familiarity issue. Mascali would encounter no prob- lems with the Union under the arrangement with McFar- land because it was understood that Mascali's own em- ployees took precedence on the GCP job, and then the arrangement would go into effect. In view of these facts, and from the conversation be- tween Agnew and Daves in mid-August, and between Paternostro and Agnew on September 1, I find that it was Mascali's intention to hire a permanent minority em- ployee for the length of time needed to complete the GCP project. Although he was unable to locate a minor- ity, Agnew went ahead anyway and hired Kuebler on the evening of September 1. Paternostro acquiesced in this on that same evening, even though he apparently was under the impression that the person being hired was not the same Kuebler he had known in his years at Willets Point. This last misunderstanding was, of course, removed when Kuebler walked in the next morning, but Paternostro raised no questions with him at that time. He raised no questions in the evening either but, by that time, as I have found, Paternostro had been made aware of Worhacz' views on where Kuebler was going to be on Tuesday morning. Paternostro was then in the posi- tion of having an employee who was also on the Willets Point list. At that point he could be accused by the Union of violating the arrangement Mascali had made with it. If Kuebler had been a member of a minority group, or if he had been anyone else but an employee on the Willets Point list, there is no question but that he would have continued to work. There is no evidence that Paternostro consulted with anyone else after his conversation with Worhacz, but I infer and find that sometime after that conversation he determined to terminate Kuebler. The arrangement between Mascali and Local 282 bears some resemblance to the kind of hiring arrange- ment considered in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961), or in Miranda Fuel Company, Inc., supra, but there are significant differences. The arrange- ment was not an exclusive hiring hall. Mascali was free to hire and place its own employees on the job, and free to hire owner-operators, and trucks and drivers from other employers.75 But the arrangement did require that, when Mascali needed flat truck, or 10-wheel dump truck drivers, it was required to obtain them first from Wor- hacz. I find, then, that the arrangement is not an exclu- sive hiring arrangement since it covers and affects only a small percentage of Mascali's work on the GCP job, and only a minor proportion of the work assigned to Willets Point employees. The arrangement itself is not unlawful in these circumstances, and may well have had a benefi- cial effect in providing work for Willets Point employees and others as asserted by McFarland. The agreement by 7 Apparently tractor-trailers and other specialized equipment were not covered by the arrangement. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mascali to the arrangement would not then constitute a violation of Section 8(a)(l) and (2) of the Act. However, the General Counsel maintains that Mascali knew, or should have known, of the discrimination against Kuebler and Curd 76 which was taking place at Willets Point. There is no evidence in this record to show that Mascali, or any official or supervisor of the companies which make up Mascali, ever had actual knowledge of any discriminatory practices at Willets Point, until Kuebler was terminated on September 2 and then mentioned his problems there to Charles Mascali sometime later in September. Even then, a review of Kuebler's testimony shows that he had only a limited view of the discrimination which I have found to exist at Willets Point during the late spring and summer. Thus I find no actual knowledge by Mascali of any discrimina- tory misuse of the arrangement by the Union. Whether Mascali should have known about the dis- crimination is a rather complicated question. The person in charge of implementing the arrangement at Mascali was Paternostro, a former longtime employee of Willets Point. However, Paternostro was a supervisory employ- ee, in charge of projects, and he testified that he was fa- miliar with individual drivers, but was not aware of their relative positions on the seniority list. In addition, a fur- ther review of assignments as shown on the Willets Point shape records shows that assignments to the GCP job, with the exception of the semipermanent status of Al- berti and Hernandez, were scattered throughout the list, with high seniority and low seniority people assigned to GCP from time to time. This is due to the fact that the first obligation of the employees was to their own em- ployer, Willets Point, and the fact of assignment first to senior employees of the jobs carrying the most overtime, with a right of refusal and consequent reassignment. Thus Paternostro, even if he were familiar with the Wil- lets Point seniority list, could not detect any discrimina- tion by the appearance of low-seniority employees at the GCP jobsite. To be sure, he had not seen Kuebler or Curd before September 2, but there is no evidence that he was aware that they were not assigned to a Willets Point job, or some other job, or were not assigned at all. This situation changed with the hiring of Kuebler on September 2. Certainly his conversation with Worhacz on that date should have alerted Paternostro to the fact that something was amiss in the referral system at Willets Point. If this incident did not warn Mascali, then Kuebler's conversations with Charles Mascali on Sep- tember 7 and subsequently should have done so. But there is no evidence that anyone from Mascali inquired any further into the operation of the system beyond the single telephone call made by Charles Mascali to Wor- hacz. Mascali continued to honor the arrangement, pre- sumably, down to the conclusion of the GCP project. I therefore find that Mascali should have known, or made inquiries about, the discriminatory manipulation of the referral system and the shape system at Willets Point on and after September 2, 1977. 76 Curd testified that he had shaped at Mascali during 1977 and was not hired. This is not significant since, if Curd did shape Mascali, he would have been acting outside of the arrangement in question here which required shaping at Willets Point. Having pointed out some of the similarities and dis- tinctions between the underlying facts here, and those in Miranda Fuel, supra, I note also that, while Mascali Con- struction is signatory to the same agreements with Local 282 as Willets Point, McFarland's uncontradicted testi- mony shows that the separate corporation set up to per- form the GCP contract signed these agreements. Howev- er, the arrangement under discussion here, while it cer- tainly is a collective-bargaining agreement, does not impose the whole panoply of rights and obligations which customarily accompany such a relationship. The arrangement called for the supply of labor called for on a daily basis in the light of daily needs. The employees who were referred to Mascali, while they were under the direction and control of, and were in some instances paid directly by, Mascali, yet remained employees of Willets Point, with their rights and obligations deter- mined by their position on the Willets Point seniority list. With the exception of Alberti and Hernandez, who were more regularly assigned by their own choice as well as for Mascali's convenience, the referrals, even when not made on a discriminatory basis, were not strictly in ac- cordance with seniority. Thus, although Mascali delegated and surrendered this aspect of its authority over hiring employees to the Union, and although the Union, as I have found, exer- cised this authority in an egregiously discriminatory fash- ion, I cannot find in these circumstances that Mascali must be held jointly responsible for the unlawful manner of the exercise of the Union's delegated authority during the period from May until September 1977. I therefore find that the Union, through its discriminatory adminis- tration of the arrangement with Mascali, which discrimi- nation had a foreseeable effect of encouraging union membership,77 and has been found to be in retaliation against the protected concerted activity of Kuebler and Curd, violated Section 8(b)(l)(A) and (2) of the Act; and that by continuing to honor the arrangement with the Union on and after September 2, 1977, Mascali accepted and condoned the unlawful activities of the Union, there- by violating Section 8(a)(l) and (3) of the Act. Miranda Fuel Company, Inc., supra. Further, by effecting the discharge of Kuebler on Sep- tember 2, 1977, for reasons not connected with the legiti- mate operation of its arrangement with Mascali, but in furtherance of its discriminatory pattern of conduct against him, the Union has further violated Section 8(b)(1)(A) and (2) of the Act. By acquiescing in this dis- criminatory act through the abandonment to the Union of its control over the hiring and retention of its own employee, Kuebler, Mascali has further violated Section 8(a)(l) and (3) of the Act. F. The Allied Connection Coming finally to the events which constitute the basis for that part of the consolidated complaint arising out of the charge in Case 29-CB-3235 the facts show that Allied Used Truck Exchange, Inc., is Willets Point's 7? Radio OfficerC Union of the Commercial Telegraphers Union. .4FL [A H. Sleamship Company A'.L.R.B.. 347 US. 17 (1954). FRANK MASCALI CONSTRUCTION 245 next-door neighbor. Its secretary-treasurer, Harold Horo- witz, testified7 8 that Allied's business is the buying and selling of heavy trucks. It obtains the trucks from a number of sources in the United States, and resells them either to other places in this country, or ships them to buyers overseas. Allied is responsible for the transporta- tion of the trucks it buys and, in the case of sales, the transportation may be handled by the buyer's own em- ployees, by contract carriers, by Allied's employees, 79 or by what Horowitz referred to as "itinerant" drivers, all at the option and expense of the buyer. The transporta- tion of the vehicles to their destination is a part of the selling price. Over the years, the people employed at Willets Point had observed the movement of trucks into and out of the Allied yard. Accordingly, early in 1976 after five Willets Point trucks had been sold in December 1975, Worhacz thought there might be some work opportunities for Wil- lets Point drivers idled by the sale of the trucks. He thereupon went over to see Horowitz, and asked him if he needed drivers. Horowitz expressed some concern over signing a contract with the Union, but Worhacz in- dicated that concessions could be arranged on hours and other matters which might be burdensome for Allied. He furnished Horowitz with copies of the union contracts and then left for a vacation in Florida. While Worhacz was away Richard Moore, then the dispatcher at Willets Point, received a call from Horo- witz asking if any drivers were available. Moore passed this request on to the drivers and, to his knowledge, some went over to Allied. One of the Willets Point drivers who had been con- tacted by Moore and went to Allied was William Al- berti.8 ° Alberti testified that I day during the summer of 1976 he was posted but did not go out. He then went next door to Allied and saw a shop foreman named John. He was assigned to drive a truck down to a pier in Brooklyn. After delivering the truck he returned to Allied where he was paid, in cash, with no deductions for taxes, social security, health and welfare, or anything, by Horowitz. Later he recalled an assignment to Brew- ster, New York, about 20 miles from New York City, where Allied had bought 20 trucks. He was accompanied on this trip by Kuebler, Curd, Curd's father, and Kat- saros. This required two or three trips and, again, they were paid in cash by Horowitz. Alberti made no other trips with Kuebler or Curd, but did make several trips with Poulos, and one trip with Poulos and Lawrence Kudla. ?8 While I do not credit some of Horowitz' testimony, I have credited and relied on his testimony for general descriptions of Allied's business and methods of operation. 7 Allied's mechanics are represented by the Operating Engineers. The office employees are apparently unrepresented. Both mechanics and office employees were described as having participated in driving trucks for Allied. 80 I found Alberti to be the most credible of the witnesses who testi- fied concerning the connection between Allied and the Willets Point drivers. He was open and candid, arid his demeanor appeared to be reli- able. Thus I have measured the testimony of others against Alberti's where possible, in order to arrive at my findings on this aspect of the case. When Worhacz returned from vacations8 he went back to see Horowitz, but the latter was unreceptive to the idea of signing a contract with Local 282. Worhacz threatened him with "problems," but apparently had no further contact with Horowitz or Allied, although he testified that he was in the Allied yard once or twice to borrow equipment. Worhacz returned to Willets Point and found out who the drivers were who had been driv- ing for Allied. These were Alberti, Hernandez, Poulos, Kuebler, and Curd. Worhacz then testified that he told "everybody" not to go "over there" (to Allied) because he felt by denying Horowitz access to drivers he could put pressure on him to sign the contract. Both Alberti and Hernandez testified that Worhacz had told them not to go over to Allied any more, but there is no evidence, other than Worhacz' general statement, that he told Kuebler or Curd the same thing. Kenneth DeVincent, who also had worked at Allied and who told Worhacz that he had, denied that Worhacz had told him not to go to Allied. I find that Kuebler and Curd were not told to stop going to Allied in 1976 and I do not credit Wor- hacz' statement that he had told everyone not to go there. Kuebler and Curd testified that they knew and were friendly with some of the employees at Allied and from time to time after shaping at Willets Point they stopped by the Allied property to have coffee with those em- ployees. Whether this familiarity grew out of their work- ing for Allied or whether the social aspect came first is not clear. Kuebler, whose testimony I found generally open, candid, and credible, was distinctly evasive in re- spect to his connections with Allied. He testified that he had never worked for Allied, nor had he ever driven equipment on the Allied property, but this is contradict- ed by Alberti, whose testimony I credit, as well as Wor- hacz, Fitzpatrick, and Nicolai, whose testimony I do not credit. It is illogical to suppose, as Kuebler would have me, that each time he picked up or delivered a truck for Allied, he left or picked up that truck in the street in front of Allied's yard, rather than on the premises. Then, too, Kuebler's story that, except on one occasion, he was paid directly by Allied's customers is in conflict with the logical and credible testimony of Horowitz that he, per- sonally, had to approve all arrangements for itinerant drivers, and that he personally handled all the financial transactions between customers and drivers. 8 2 Kuebler's assertion that he drove for customers of Allied five or six times between January 1976 and July I of 1977 is also doubtful, although I do not credit the general and sweep- ing statements by Nicolai and Fitzpatrick concerning the number of times they saw Kuebler (and Curd) working in and around Allied. In particular I discredit the testi- mony of Worhacz that Kuebler was at Allied 3 or 4 days a week during 1976 and 1977, and I discredit Worhacz' personal records which list Kuebler at "Allied" or some- 81 Worhacz places this in the winter. Alberti in the summer Alberti is a more reliable witness but the time is not really important s2 Hlorowitz' testimony that he keeps no records of trips by itinerant drivers, nor of ay moneys paid to them. strains credulity, but if such drivers are used as seldom as Horowitz says. the statement that the) are paid out of "petty cash" may be reasonable 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times at "Ailled" on many occasions from June to Octo- ber 1977. Even though the originals of those records are not in evidence, the copies reveal that references to Allied were sometimes interpolated at a different time and in a different hand than originally made. This at- tempt at overkill shows, first, that Worhacz' alleged anger at Kuebler's working for Allied, at a time when the Union was pushing for organization and when the unemployment fund was down from 26 weeks to 4, was a sham and a fraud; and, second, reveals that Worhacz' real reason for indicting Kuebler (as well as Curd) for his employment at Allied was in furtherance of his scheme to punish them for their complaints and their as- sociation with FORE. However, despite this, I think the record shows that Kuebler worked more often than he said. William Al- berti, whose testimony I do credit, stated that he had seen Kuebler driving trucks in or out of Allied five or six times in 1976 and three or four times in 1977. Alberti, of course, was working through most of this time but he testified that he came back to Willets Point three or four times a day to pick up equipment. Thus, his ability to ob- serve Kuebler at Allied was fairly good. I can really make no inference based on these facts, except to guess that the total number would have been somewhat more than the number seen by Alberti. There is not as much testimony concerning Curd's working at Allied but, based on the same reasoning, I find that Curd was there about half the times that Kuebler worked at Allied. This is quite different from the reports by Worhacz, Nicolai, and Fitzpatrick. On July 27, Kuebler and Curd had arranged to deliver trucks from Allied to a destination in Miami, Florida. Kuebler had called Katsaros and Lawrence Kudla on this job, and all four met in front of Allied sometime after noon on that day. Kudla was the first to get going, and he pulled up a couple of blocks away to wait for the others. While he was there, Worhacz drove by in a pickup truck. Worhacz stopped and passed the time of day with Kudla, then drove off in the direction of Allied and Willets Point. Worhacz testified that he had stopped and talked to Kudla and had found out that the four men were taking the trucks to Florida. He then saw Curd, Katsaros, and Kuebler at Allied and offered them pledge cards to assist him in organizing Allied. They all told him they were just trying to make some money. He returned to where Kudla was waiting and offered him a card. Kudla just stood there and looked at the card, so Worhacz gave up in disgust and left. Kuebler, Katsaros, Kudla, and Curd denied that this incident ever took place. I credit these denials. Worhacz' testimony is uncorroborated, and in view of my findings on his credibility I cannot rely on his unsupported word with respect to material issues in this case. I infer and find that he fabricated this story to support his version of the incident on November 22, when he did offer pledge cards to these employees. Katsaros testified that he went on the Florida trip but did not see Worhacz on that day. He was not asked whether he had worked for Allied before that time, al- though Alberti identified him as being on the Brewster, New York, trip. He did work at a number of other places during the summer. Worhacz' statement that Kat- saros had worked at Allied beginning in the winter months of 1977, and saw him on Allied vehicles 10 times after July, is preposterous and totally incredible.8 3 All of the four employees denied that they had driven for Allied after the Florida trip at the end of July, except for Curd, who took a truck to Ohio sometime between July 28 and August 16. Then, on November 22, Kuebler, Katsaros, Lawrence Kudla, and his father, Walter Kudla, met on the street in front of Allied's property.8 4 They then got into Law- rence Kudla's car and went off to various job locations to organize and campaign for FORE. They returned about 4 p.m., 85 got out of Kudla's car, and were prepar- ing to leave when Worhacz came out of Willets Point and approached the group. 86 He spoke first to Kuebler, telling him that he wanted to organize Allied, and asked Kuebler to sign a pledge card. Kuebler reminded Wor- hacz of a previous organizing effort they both had par- ticipated in, which fell through, according to Kuebler, due to Worhacz' mishandling. As a result, Kuebler said that had been enough, and that Allied was not his em- ployer. He refused to sign the card. Worhacz then ap- proached Katsaros, and told him about the organizational campaign. Katsaros replied that he had not work for Allied, and therefore could not sign a pledge card listing Allied because that would be a false statement. Worhacz told him just to sign the card and let it go at that. Kat- saros then asked Worhacz if he had contacted the busi- ness agent on this and, on receiving a negative reply, asked Worhacz to have Mike Carbone contact him or Kuebler. Worhacz finally asked him to sign and they would iron it out later. Worhacz' version of the incident begins with his asser- tion that Kuebler, Katsaros, and the Kudlas were seen driving trucks up to Allied. Both he and the dispatcher, Frank Daley, allege that Kuebler had license plates in his hand which he had taken off the trucks. Worhacz' ver- sion of the conversations with Kuebler and Katsaros is substantially in accord with theirs. Alfred Nicolai, who testified for the Union, merely stated, in conclusionary terms, that Worhacz gave them pledge cards and they refused to sign them. I find and conclude that the credible evidence shows that Kuebler worked at Allied a number of times during 1977. Curd worked there fewer times and Katsaros and Kudla fewer still. I find, further, that their employment at Allied, as well as the employment of Alberti and De- Vincent there in 1976, was of a sporadic and casual nature, as needed by Allied, and on a call-in basis.87 They were paid on a cash basis with no deductions for "8 Note his testimony to the Joint Council 16 executive board on March 14. 1978. that Katsaros and Kudla had been working for Allied only since July 1977. 84 Curd was not there. His diary carries the notation. "went hunting," for November 22 85 Kuebler testified that there were some trucks parked there in front of Allied. 86 My findings on this incident are based on the credible testimony of Kuebler and Katsaros. It was agreed by the parties that, if Lawrence Kudla testified about the incident, his testimony would be the same as that of Katsaros. Walter Kudla did not testify. s" See. e.g, Stouffer Management Fobod Service, 210 NLRB 119 (1974). FRANK MASCALI CONSTRUCTION 247 anything. I find that Worhacz did try to persuade Horo- witz to sign a contract early in 1976, with a view to pro- viding additional work for Willets Point drivers at Allied, and I find that he knew of the financial arrange- ments at Allied through his discussions with Alberti and Horowitz. I find that Worhacz warned Alberti and Her- nandez not to work at Allied because of those financial arrangements which were not compatible with union wages and working conditions, but he did not so warn Kuebler and Curd. Instead, he exaggerated the number of times he saw them working at Allied, taking care after June 1977 to enter these occasions in his personal rec- ords. G. The Union Discipline After the November 22 incident, Worhacz brought charges before Local 282 against Curd, Kuebler, Kat- saros, Walter Kudla, and Lawrence Kudla alleging viola- tions of article I1, section 10; article VI, sections A and C; and article I, section 2, of the International constitu- tion "by refusing to sign a union authorization card re- garding his employer Allied Equipment Mart, Flushing, New York, so that I could organize this non-union barn."8 8 Article II, section 10, of the constitution and bylaws of Local 282 provides that: Any member who engages in a course of conduct degrading of itself, or calculated to bring this Local Union or its members into disrepute, or who acts in a manner inimical to the interests, objects and pur- poses of this Union may, upon conviction by the Executive Board be fired, suspended or expelled. Artivle VI, section A, provides that: Every member by virtue of his membership in this Local Union is obligated to abide by these By-Laws and the International Constitution with respect to his rights, duties, privileges and immunities con- ferred by them. Each member shall faithfully carry out such duties and obligations and shall not inter- fere with the rights of fellow members. Each member shall take the oath of obligation. Article VI, section C, reads as follows: No member shall interfere with the elected officers or business agents of this organization in the per- formance of their duties and each member shall, when requested, render such assistance and support in the performance of such duties as may be re- quired by them, provided that this does not inter- fere with the individual rights of members. Each member and officer shall adhere to the terms and conditions of pertinent collective bargaining agree- ments and shall refrain from any conduct that would interfere with the performance by this Local Union of its legal and contractual obligations. 88 The charges against each employee were identical Article 1, section 2, of the International constitution sets forth the broad, general objects of the International Union. The charges were presented by Worhacz at an execu- tive board meeting on January 19, 1978, at 5 p.m. Secre- tary-Treasurer Sasso presided, with Members Argento, Boggia, Gesualdi, Carbone, Bai, and McFarland present. The evidence presented to the executive board as en- capsulated in the minutes of the meeting fairly echoes the material in the previous section of this decision. Wor- hacz and his witnesses, Nicolai and Fitzpatrick, with an- other, not previously identified in the record of this case. one Scappitone, stated that Kuebler, Curd, Katsaros. and Lawrence Kudla worked at Allied from time to time. Worhacz and his witnesses testified that Worhacz had of- fered cards to Katsaros in July and to Kuebler, Katsaros, and the Kudlas in November, but they had refused to sign. Katsaros presented the case for the charged parties, maintaining that they had never worked for Allied, but for Allied's customers. They admitted that they had re- fused to sign the cards in November, but pointed out that they had asked to see the "Delegate." There was no evidence that Curd was ever given a card to sign." 9 Following the meeting the executive board, on Febru- ary 8, 1978, ordered that Curd be suspended for 2 years based upon his "failure to report to the Union a non- union under-the-hat job where you were working." Also on February 8, Kuebler, Katsaros, and Lawrence Kudla were expelled from the Union because of their "failure to report to the Union a non-union, under-the- hat job where you were working and your failure to co- operate with a Union representative to organize the non- union, under-the-hat job where you were working." The charges against Walter Kudla were dismissed by the executive board because there was no testimony that he had ever worked for Allied.9 0 All of those who were disciplined were advised of their right to appeal these decisions to the executive board of Joint Council 16 under the provisions of article XIX of the International constitution. They appealed and the matter was heard by the execcu- tive board of Joint Council 16 on March 14. 1978. Joseph Tretotola, the president of Joint Council 16, pre- sided, the other members of the board being Joseph Konowe, Eugene Bennett, John DeLury, Anthony Dis- tinti, Daniel Levinger, and Charles Ulrich. A verbatim transcript of this hearing was made and introduced into the record of this case. The transcript shows that Trero- tola did a creditable and competent job in keeping con- trol of the passions and rages of the participants, but the record is full of references to events and to personalities which had little relevancy to the issues before the Ex- ecutive board. As in the report of the Local 282 execu- tive board hearing, Worhacz and his witnesses testified that the charged parties refused to sign cards and had "4 See Worhacz' testimon in this case concertling the Juls 2' encoul- ter, noted above. 90 Although Worhacz and Nicolai stated in this hearing that ll fur, Kuebler. Katsaros, and the two Kudlas. La.srenc and Walter, had driven trucks up to Allied before the cards ere offered oi Nxenther 22 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been seen driving trucks for Allied.9 ' The charged par- ties maintained their position with regard to Allied. A great deal of the material which fills the record in the instant case was also discussed, briefly, and all parties ex- pressed their satisfaction at the close of the hearing. Nonetheless, the Joint Council executive board sus- tained the action of Local 282's executive board and the matter was appealed further to the general executive board of the International Union. Under date of July 17, 1978, the International Union's general secretary-treasurer informed the parties that the general executive board, meeting on July 12, 1978, had voted to reverse the decisions of Joint Council 16 and Local 282. In a memorandum attached to this letter the general executive board found that: In view of the failure of Brother Worhacz to pres- ent sufficient substantive evidence to establish that the charged parties were employees of the Allied Equipment Mart on the date or dates that he re- quested them to sign authorization cards, it was de- cided that the decisions of Joint Council 16 and Local 282 be reversed. Kuebler, Curd, Katsaros, and Kudla were ordered re- instated upon payment of any financial obligations which may have accrued after their expulsion, and they were deemed to have continuous good standing from the ef- fective dates of the Local Union's expulsion. The general executive board did not comment on whether the charges were warranted at all in the light of article XIX, sections 6, 7, and 8, of the International con- stitution; or whether the proper 10-day notice was given under article XIX, section l(b); or whether the charges were stated with sufficient specificity under the same subsection. There is no question about the Union's right under Section 8(b)(l)(A) of the Act to prescribe "its own rules with respect to the acquisition or retention of member- ship therein." Nor is there any issue in the Union's free- dom to enforce a properly adopted rule which reflects a legitimate union interest and which impairs "no policy Congress has imbedded in the labor laws." Scofield v. N.L.R.B., 394 U.S. 423 (1969). The facts in this case show that the asserted legitimate union interest served as a pretext for another, unlawful, motive. The background of this case shows the animus and hostility of Shop Steward Worhacz and Business Agent McFarland to John Kuebler because of his vigorous and militant pursuit of his rights under the seniority system and the collective-bargaining agreements between the Union and Willets Point. I have not credited Worhacz' assertion that his resentment toward Kuebler derived from Kuebler's "employment" at Allied. In fact, I find that Worhacz' alleged observations of Kuebler at Allied on many occasions in 1976 and 1977 did not occur, and, indeed, are a result, rather than a cause, of Worhacz' l ( onllrary to his Iestinlt)rly ill the instant hearing that he saw Kuebler lhterall dozens of times working at Allied in 1977, and he himself had gone oiver to Allied on occasion to borrow things, Worhacz told the ex- ecutixe board that "I could never catch him in the process of working where I could offer them [sic] a pledge card " hostility. Worhacz' hostility extended to Curd as a result of Curd's joining in Kuebler's complaints and grievances. This generalized hostility was given a sharper focus when first Kuebler, then Curd, became affiliated with FORE. Worhacz' feelings toward FORE and its adher- ents are amply documented by the credible evidence in this record. Further documented in my findings are the several manifestations of that hostility directed against Kuebler and Curd during the spring and summer of 1977, in Kuebler's relations with Mascali, and culminat- ing in the discharge of Kuebler and Curd from Willets Point, all of which I have found to be unlawful, and all of which proceed from Worhacz' animus and hostility toward these two employees, and from the total control over the assignment of work delegated to Worhacz by Willets Point. The charges filed with the Union were based on the alleged refusal by the charged parties to cooperate with Worhacz in an effort to organize their employer. All of the charged employees except Walter Kudla had driven trucks for Allied, but they were aware that their connec- tion with Allied did not constitute an employer-employ- ee relationship. Worhacz, too, despite his relatively unso- phisticated and somewhat primitive concepts of labor law, had discussed the Allied situation with Horowitz and Alberti. It is neither logical nor believable that he was not aware of the fact that the people who did work for or at Allied were, at the most, casual, intermittent employees, even if it were necessary to obtain union au- thorization cards from people who had all been union members for many years. Moreover, I have found that the charged employees were not in fact driving trucks for Allied on the evening of November 22. The evidence is overwhelming that these charges were wholly pretextual and that the real reason was the fur- therance of Worhacz' campaign of retaliation against Kuebler and Curd because, in part, of their association with FORE. The opportunity on November 22 to rid the Union of Kuebler and Curd, and at the same time to eliminate the top leadership of FORE, must have been an opportunity too great for Worhacz to resist. The whole process thus is irrevocably stained with illegality from the outset. It is unnecessary to go further into the disciplinary process beyond noting my agreement with the findings of the general executive board, based on my own review of the minutes of the Local 282 executive board hearing, the transcript of the Joint Council 16 executive board hearing, and the testimony of the witnesses at this hear- ing. However, I have pointed out several other proce- dural deficiencies not mentioned in the decision of the general executive board. In addition, while there was much talk at the Joint Council 16 hearing about fairness and lack of prejudice, there was no evidence that the parties ever attempted to work out their differences; that there was ever any attempt by the local officers of Local 282 to contact the charged parties to assist in a legitimate organizing campaign;9 2 that Worhacz, as a steward, was not a business agent or an elected official within the 2" Kasaros stated, at the Joit Council Ih hearing, that he had never been asked to sign a card after the November 22 incident FRANK MASCALI CONSIRUCTION 2 49 meaning of article VI, section C, of the Local 282 bylaws; or that one of the reasons for the disciplinary action, the under-the-hat job, was not even mentioned in the charges. Further, the parties to this case stipulated that between January 1, 1970, and February 7, 1978, the date of the Local 282 executive board decision in this matter, there were no decisions rendered by Local 282's executive board against any other members which result- ed in expulsions or suspensions of any member from Local 282 and there were no discussions by the execu- tive board that might have resulted in such decisions during that period. In the light of all these circumstances I cannot escape drawing the inference that, instead of regarding these charges by Worhacz in an objective and judicious manner, or trying to work out a compromise solution, the executive board of Local 282 saw in this situation an opportunity to rid the Union of two of the leading dissi- dents, the president and the secretary of FORE. Thus I find that both the charges themselves and the disciplinary process were utilized as a pretext to disguise the Union's real motivation which was to retaliate against Kuebler, Curd, Katsaros and Lawrence Kudla because of their protected concerted activity in pressing complaints and grievances, their connection with FORE, and their having filed charges with the National Labor Relations Board against the Union.9 3 Carpenters Local Union No. 22, United Brotherhood of Carpenters and Join- ers of America. AFL-CIO (William Graziano, d/b/a Gra- ziano Construction Company), 195 NLRB 1 (1972). Counsel for the Union has cited Local 100, Transport Workers Union of America, AFL-CIO (Liberty Coaches Inc.), 230 NLRB 536 (1977), as standing for the proposi- tion that no violation of law can be found here because the expulsion and the discipline of the union members were nullified by the action of the general executive board. I think this case is distinguishable from Liberty Coaches, Inc., that, in the latter case Administrative Law Judge Herbert Silberman, whose Decision was affirmed by the Board, found that there was no evidence that the "intraunion proceedings brought against [the individual employee] were in any manner irregular or that he was denied any of his substantive or procedural rights under the constitution" of the union there involved.9 4 The in- stant case presents a wholly different picture since I have found the whole proceeding to be much more than irreg- ular, and since both the substantive and procedural rights of the charged parties were violated throughout the pro- ceedings by Local 282. I find and conclude that the Union, through the charges and discipline imposed on Kuebler, Curd, Kat- saros, and Lawrence Kudla, has violated Section 8(b)(l)(A) of the Act. Further, even the absence of any evidence that this action caused any employer to dis- criminate against these employees I find that a natural and foreseeable consequence of expulsion or suspension from the Union is the denial of employment. The record 93 The record sho.s hat Kalsairo, had also filed charges agalnlt the Union. 9' Belinger Shipyards, I.. 227 NLR h21() (19761. cited b Adminirsra- live Law Judge Silberman in support of his conclluion,, doe nit require a contrar) finding amply shows that the industry, or the unionized portion of it, operates exclusively through the shape system.c There is no evidence that anyone other than memrnhers of Local 282 ever shaped at any of the locations referred to in the voluminous record of this case. Thus I find thait. during the period that Kuebler. Katsaros, and Lawrence Kudla were expelled, and Curd was suspended, fromn February 7 to July 17, 1978 the lUnion violated Section 8(b)(2) of the Act. CON( I L:SIONS o Lxw 1. Respondent lIocal 282 is a labor organizalion ithin the meaning of Section 2(5) of the Act. 2. Respondent Frank Mascall Construction Co.. Inc and Frank Mascali Construction G.C.P'. Co.. Wiltlet Point Contracting Corp., and AllieLd Used Truck FIx- change, Inc., are employers within the meaning of Sec- tion 2(2) of the Act and are engaged in commerce wkithin the meaning of Section 2(6) and (7) of the Act. 3. The Respondent Union. by its shop steward. Robert Worhacz, violated Section 8(b)(l)(A) of the Act on Jul> 12 and August 31, 1977. by threatening union ntembersh because they had engaged in protected concerted actixi- ty for their mutual aid and protection, and because they had joined an organization called FORE in furtherance of such mutual aid and protection. 4. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer John Kuebler and Charles Curd to work assignments between July 25 and October 21, 1977, in retaliation for their exercise of the rights guaranteed under Section 7 of the Act. 5. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(l)(A) and (2) of the Act on August 29, 1977, by falsifying shape records and by failing to refer Charles Curd to employment because he had exercised his rights under Section 7 of the Act. 6. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) by falsify- ing shape records, thereby causing the discharge of John Kuebler and Charles Curd by their employer, Willets Point Contracting Corp., on October 21, 1977, in retali- ation for their exercising their Section 7 rights. 7. The Respondent Union, by its secretary-treasurer Robert Sasso, violated Section 8(b)(1)(A) by refusing to process grievances filed by John Kuebler and Charles Curd because they had filed charges with the National Labor Relations Board. 8. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer John Kuebler and Charles Curd to Frank Mascali Construction G.C.P., Co. and Frank Mascali Construction Co., Inc., under an arrange- ment to refer employees to these employers, because Kuebler and Curd had exercised their rights under Sec- tion 7 of the Act. 9. The Respondent Union, by its shop steward, Robert Worhacz, violated Section 8(b)(1)(A) and (2) of the Act by causing Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co.. Inc., to discharge their 2 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee, John Kuebler, in retaliation for his exercise of his rights under Section 7 of the Act. 10. Respondents Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., violated Section 8(a)(l) and (3) of the Act by accepting and con- doning an arrangement with the Respondent Union for referral of employees on and after September 2, 1977, be- cause that agreement unlawfully discriminated against such employees. 11. Respondents Frank Mascali Construction G.C.P. Co. and Frank Mascali Construction Co., Inc., violated Section 8(a)(l) and (3) of the Act by discharging their employee John Kuebler on September 2, 1977, under an arrangement with the Respondent Union which discrimi- nated against Kuebler because of his exercise of his rights under Section 7 of the Act. 12. The Respondent Union, by its shop steward, Robert Worhacz, and its executive board, violated Sec- tion 8(b)(l)(A) and (2) by the filing of false intraunion charges against John Kuebler, Charles Curd, Ted Kat- saros, and Lawrence Kudla, and by, on February 8, 1978, expelling Kuebler, Katsaros and Kudla from mem- bership, and suspending Charles Curd from membership in the Respondent Union in retaliation for the exercise of the rights guaranteed under Section 7 of the Act. 13. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Local 282, the Respondent Union, has engaged in certain unfair labor practices, I will rec- ommend that it cease and desist therefrom and take cer- tain action designed to effectuate the policies of the Act. I have found that the Respondent Union threatened and coerced union members Kuebler and Curd because of their exercise of their Section 7 rights. I shall recom- mend that it cease and desist from such conduct. I have found that Respondent Union failed and refused to refer Kuebler and Curd to assignments to which they were entitled because of their seniority at Willets Point because of their exercise of their Section 7 rights. I shall recommend that it cease and desist from such conduct. I shall further recommend that the Respondent Union compensate Kuebler and Curd for all days between July 25 and October 21, 1977, on which their seniority would have entitled them to be assigned to work together with all payments to health and welfare and pension funds necessary to their continuing eligibility to receive bene- fits from these funds, whether or not they shaped or shaped late on those days, with interest on any moneys due to be computed in the manner pescribed in Florida Steel Corporation, 231 NLRB 651 (1977). I have found that Respondent Union caused the dis- charge of Kuebler and Curd by their employer, Willets Point Contracting Corp., on October 21, 1977, through the maintenance of false and fraudulent attendance rec- ords. I shall recommend that Respondent Union cease and desist from compiling and maintaining records on that basis and take the following affirmative action: First, correct those attendance records for the period from June 6, 1977, to October 21, 1977, to reflect the facts found by me in this case. Second, request the employer, Willets Point Contract- ing Corp., to reinstate Kuebler and Curd to the places they held on the seniority list without prejudice to any rights or benefits they may have. Third, if the employer will reinstate Kuebler and Curd as requested, then pay them backpay for all days they would have worked between October 21, 1977, and the date of their restatement computed on a quarterly basis with interest thereon to be computed in the manner pre- scribed in W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, supra. 9Y Fourth, if the employer will not reinstate Kuebler and Curd as requested, then continue to pay them backpay computed in the same manner until such time as they have found substantially equivalent positions elsewhere. I have found that Respondent Union, through the im- plementation of its arrangement with Frank Mascali Construction G.C.P. Co. and Frank Mascali Construc- tion Co., Inc., caused the discharge of John Kuebler be- cause of his exercise of his Section 7 rights. I shall rec- ommend that the Union cease and desist from imple- menting its agreement in a discriminatory manner and that it notify Mascali that it no longer has any objection to Kuebler's employment by Mascali. I have found that Respondents Frank Mascali Con- struction G.C.P. Co. and Frank Mascali Construction Co., Inc., discharged John Kuebler as a result of its im- plementation of their arrangement with the Respondent Union and because of the Union's discriminatory en- forcement of that arrangement. I shall recommend that Mascali cease and desist from such conduct, and that Kuebler be offered reinstatement. I shall further recom- mend that Respondent Union and Mascali are jointly and severally liable for all backpay to Kuebler because of their discrimination against him, computed in the manner outlined above.9 6 I have found that the Respondent Employers con- doned and gave effect to the discriminatory hiring prac- tices implemented by the Union under its arrangement with Mascali. I shall not order the arrangement to be dis- continued since I believe that its discriminatory features will be adequately remedied by my recommended order to the Respondent Union. I will recommend, however, that the Respondent Employers together with the Re- spondent Union shall be jointly and severally liable for any backpay shown to be due to any employee because of discriminatory referrals to the Respondent Employers from on and after September 2, 1977, to the date of com- pliance with this order or to the date the arrangement terminates, whichever comes sooner. I have found that Respondent Union unlawfully brought charges against its members and expelled or sus- pended them from membership. I shall recommend that L'~ See, generally, Ihis Plumbing & Heaing Co., 138 NLRB 716 (1962). a Provlided that Kuebler should not receive any backpay fr any I day in an amount larger than a single day's pay Een though he may have suffered a double dose of discrimination, he is not entitled to double hackpay. FRANK MASCALI CONSTRUCTION .5 it cease and desist from this conduct, and I shall further recommend that it compensate these members for any lost wages they may have suffered as a result of this un- lawful action in accordance with the formula outlined above. In view of the serious nature of these charges. I shall recommend an order broadly prohibiting similar conduct by Respondent Union. [Recommended Order omitted from publication.]