Local 825, Intl. Union of Operating Engineers

National Labor Relations Board - Board Decisions

Feb 17, 1977

228 N.L.R.B. 276 (N.L.R.B. 1977)

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