Kanakis Co., Inc

National Labor Relations Board - Board Decisions

Mar 24, 1989

293 N.L.R.B. 435 (N.L.R.B. 1989)

KANAKIS CO
Kanakis Company , Inc and Charles D Franken-
field Case 4-CA-12997
March 24, 1989
DECISION AND ORDER REMANDING
PROCEEDING
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN, CRACRAFr, AND HIGGINS
On June 27, 1986, Administrative Law Judge
Michael 0 Miller issued the attached decision The
General Counsel filed exceptions and a supporting
brief, and Kanakis Company, Inc, the Respondent,
filed a brief in reply to the General Counsel's ex-
ceptions The Respondent also filed a motion to
dismiss, and the General Counsel filed an opposi-
tion to the motion
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order i
In this case, the judge declined to reinstate a dis
missed charge outside the 6-month limitations
period of Section 10(b) of the Act, finding no
fraudulent concealment even though the Respond-
ent's president procured the dismissal of a timely
filed charge by giving a perjured affidavit under
oath during the Board's investigation We cannot
condone such a flagrant abuse of the Board's proc-
esses by a respondent seeking to avoid liability
under the Act Therefore, we reverse the judge's
ruling that prosecution of the complaint against the
Respondent is barred by Section 10(b) of the Act
The facts are undisputed The Respondent and
the Union were parties to a collective bargaining
agreement requiring the Respondent to use the
Union s hiring hall as its exclusive source for paint
ers In November 1981, the Union referred Charg-
ing Party Frankenfield to the Respondent He
worked for the Respondent as a painter at several
jobsites until January 8, 1982, when the Respond-
ent's president and owner, Pelekanakis, called him
into the office and fired him Pelekanakis told
Frankenfield that Union Business Agent Delker
had insisted the Respondent fire Frankenfield,
threatening not to refer any more painters to the
Respondent unless it did so Pelekanakis suggested
that Frankenfield call Delker and straighten out the
matter
' The case was originally consolidated with Case 4-CB-4460 which
was severed and remanded to the Regional Director pursuant to an un
published Board Order dated September 18 1986 Accordingly the por
tion of the judge s Order relating to Case 4-CB-4460 is no longer out
standing
435
On June 4, 1982, Frankenfield filed the charge in
this proceeding and gave an affidavit stating the
above facts During the investigation, Pelekanakis
met with a Board agent and later signed a sworn
affidavit, which stated that he had specific econom-
ic reasons for laying off Frankenfield and denied
that the Union had requested Frankenfield's layoff
or that he had told Frankenfield it had 2 On July
19, 1982, the Regional Director dismissed the
charge for lack of evidence
In 1985, Union Business Agent Delker was tried
and convicted in a United States district court of
multiple criminal charges involving extortion and
fraud The Respondent's president, Pelekanakis,
testified at the trial about various times when
Delker had extorted money from him During his
testimony, Pelekanakis stated under oath that
Delker had insisted he fire Frankenfield and con-
fessed that he had lied about this incident in his af-
fidavit to the Board When Frankenfield learned of
this testimony from a February 22, 1985 newspaper
article, he requested the Board to reopen this
charge On April 17, 1985, the Regional Director
reopened the charge for further investigation, on
November 13, 1985, he revoked the earlier dismis
sal letter, and on November 27, 1985, he issued this
complaint
At the trial on this complaint, Pelekanakis testi-
fied that during the first week of January 1982
none of his painters showed up for work except
Frankenfield He testified that, when he asked
Delker why, Delker said the problem was Fran-
kenfield and told him to fire Frankenfield Accord-
ing to Pelekanakis, Delker also threatened that,
unless he fired Frankenfield, the Union would not
refer any more painters to him and the health and
safety of his family and business would be in jeop-
ardy Pelekanakis corroborated Frankenfield's testi-
mony about their conversation on the day Franken-
field was fired and admitted he had no other reason
for terminating Frankenfield Finally, Pelekanakis
testified that he had denied all this in his Board af-
fidavit because Delker had told him not to impli-
cate the Union and that he had shown his affidavit
to Delker before signing and returning it to the
Board
The judge found the complaint in this case was
barred by Section 10(b) because there had been no
fraudulent concealment of the operative facts from
the Charging Party, even though the Respondent
had presented perjured evidence to the General
Counsel to induce dismissal of the charge The
2 On brief the General Counsel represents that during this investiga
tion Delker also denied requesting the Respondent to terminate Franken
field
293 NLRB No 50
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
judge interpreted statements in Ducane Heating
Corp 3 and Winer Motors,4 describing examples of
special circumstances where the 10(b) period
would be tolled, such as fraudulent concealment
from a charging party, to require dismissal of the
complaint S Neither Ducane nor Winer Motors,
however, involved fraudulent concealment Thus,
the references to fraud on a charging party in those
decisions were clearly dicta Further, before
Ducane issued the Board had interpreted the Act as
allowing the General Counsel `virtually unlimited"
discretion to reinstate dismissed charges outside the
10(b) period,6 so there was no reason for earlier
cases to discuss the fraudulent concealment excep
tion as it applied to the General Counsel The only
reference in Ducane itself even arguably limiting
the fraudulent concealment exception to a charging
party is contained in language lifted virtually un-
changed from Winer Motors, and this limitation is
not repeated when fraudulent concealment is dis-
cussed later in the Ducane decision
Courts that have considered special circum-
stances alleged to warrant tolling the 10(b) period
have not specifically limited the fraudulent con
cealment exception to a charging party 7 One court
has applied the fraudulent concealment analysis to
a Regional Director's decision to solicit withdrawal
of a charge, indicating that, if proven, fraud against
the General Counsel could toll the 10(b) period 8
There is no question that the Respondent here
perpetrated a fraud against the General Counsel by
giving perjured evidence during the investigation
with the intent of inducing the General Counsel to
dismiss the charge This fraud was carried out by
the Respondents highest official and involved the
central operative facts being investigated Further,
the Respondents fraud succeeded in accomplishing
its goal-the dismissal of the charge here 9 Such
3 273 NLRB 1389 1390-1391 ( 1985) enfd mem 785 F 2d 304 (4th Cir
1986) The judge twice inadvertently referred to Ducane Heating Corp as
Ducane Motors
4 265 NLRB 1457 1459 (1982)
5 Member Cracraft agrees that fraudulent concealment is a special cir
cumstance that warrants tolling the 10(b) limitations period but she does
not pass on the statements in Ducane and Winer Motors implying that
fraudulent concealment is the only such exception
8 See Ducane supra at 1391 citing California Pacific Signs 233 NLRB
450 (1977)
7 See e g NLRB v Burgess Construction 596 F 2d 378 (9th Cir 1979)
cert denied 444 U S 940 ( 1979) speaking only generally of fraudulent
concealment from a party
8 In NLRB v Silver Bakery 351 F 2d 37 (1st Cir 1965) the First Cir
cuit noted that the Regional Directors decision to recommend withdraw
al was based on the Region s inadequate investigation but that the re
spondents had in no way contributed to the regional director s mistake
Id at 38 The court therefore refused to reinstate the withdrawn charge
outside the 10(b) period finding that the Board could not rely upon
any misrepresentation misconduct or even silent bad faith on the part of
respondents which might have created an estoppel as none had been
shown Id at 39
9 Contrary to the suggestion of our dissenting colleague the General
Counsels original decision to dismiss the charge in this case was not
conduct demonstrates a contempt for the Board's
processes that cannot be condoned Refusing to toll
the 10(b) period here would simply allow the Re-
spondent to profit from its perjury and misconduct
in deceiving the Board and encourage others to
similarly abuse the Board's processes Further, we
are unwilling to penalize the Charging Party by de-
priving him of any remedy in this situation where
he has complied with the procedural requirements
for filing a charge and then supported it with evi-
dence that makes out a violation 10
We cannot accept that result We do not permit
parties to profit from perjured testimony at hear-
ings Instead, we reopen the record to receive
newly discovered evidence showing perjury as to a
material fact 11 We should do no less here
based solely on a credibility determination Not only did the Respondent
specifically deny the Charging Party s version of the termination inter
view thus creating a credibility conflict with the Charging Party s evi
dence but the Respondent also set forth detailed economic reasons for
laying off the Charging Party in its false sworn statement As so aptly
stated by our dissenting colleague by swearing to these false economic
reasons the Respondent thus offered to the General Counsel a nondis
crimmatory business reason for its action against the Charging Party
Even if the General Counsel had credited the Charging Party s version
of the termination interview (or simply left the credibility determination
for a hearing as suggested by our dissenting colleague) under Wright
Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert
denied 455 U S 989 (1982) this still left the question of whether the Re
spondent would have laid off the Charging Party regardless of its illegal
motive as expressed during the termination interview The General Coun
sel may well have decided in reliance on the false economic reasons set
forth in the Respondent s perjured affidavit that the Charging Party
would have been laid off for economic reasons even in the absence of the
Respondents illegal motive Therefore the Respondent s perjury certain
ly did conceal operative facts from the General Counsel the absence of
any legitimate economic reasons for the Charging Party s layoff Track
ing our dissenting colleagues test for fraudulent concealment the Re
spondent proffered to the General Counsel false evidence about the eco
nomic justification for its layoff (evidence to which the Charging Party
was not privy) that seemed inherently trustworthy that was not contra
dicted by any other evidence and that dispelled any reasonable basis for
proceeding against it This was fraudulent concealment
Our dissenting colleagues partial reliance on one provision of Sec
10060 of the Casehandling Manual is misplaced because as noted above
the Respondent submitted other evidence in addition to the flat denial of
the statement attributed to Pelekanakis Nor do we have access to all the
evidence adduced in the investigation and considered by the Regional
Director Regional Directors are charged to consider all the evidence ad
duced in the investigation in making their decision Indeed the sentence
immediately preceding that quoted from Sec 10060 by our dissenting col
league states The best indications of truthfulness lie in the probabilities
inherent in a given story (as opposed to another story ) viewed in the
light of the entire pattern of available evidence (Emphasis in original )
Because experience indicates that Casehandling Manual Sec 10060 ap
plied in its entirety has served this statute well we see no purpose in
second guessing the exercise of prosecutorial discretion in circumstances
where admittedly perjured testimony was given by a respondent as part
of its defense
10 Our dissenting colleague points out that the Boards investigative
processes can be protected by prosecution of Pelekanakis under 18 U S C
§ 1001 for making false statements to the Board in the course of its inves
ligation of this matter However prosecution and even imprisonment of
Pelekanakis would be of little comfort to the unlawfully discharged
Charging Party in this case who under our dissenting colleagues view
would be effectively stripped of his recourse to the Board s remedial
processes by Pelekanakis perjury
ii Inland Container Corp 273 NLRB 1856 1857 (1985) 274 NLRB
887 (1985) 275 NLRB 378 (1985) Electrical Workers IUE Local 745
Continued
KANAKIS CO
The reinstatement of this charge does not offend
the purpose of Section 10(b), which is to protect
respondents from the litigation of stale claims
Indeed, here the Respondent's main witness had
preserved his recollection by testifying about the
events involved only a year before the trial in this
case Nowhere in the legislative history of Section
10(b) is there any support for the proposition that a
charged party may perjure itself during the investi-
gation of an unfair labor practice charge and then,
on discovery by the General Counsel of that per-
jured testimony, successfully invoke the affirmative
defense of Section 10(b)
We find that the Respondent's fraud here tolled
the 10(b) period Accordingly, we shall reinstate
the dismissed charge and remand the case to the
judge for a decision on the merits 12
ORDER
It is ordered that this proceeding is remanded to
the administrative law judge for further action con-
sistent with the above
IT IS FURTHER ORDERED that the judge shall pre-
pare and serve on the parties a supplemental deci
sion containing such resolutions, findings, conclu
sions, and recommendations as found necessary
consistent with this remand Copies of the supple-
mental decision shall be served on all parties, after
which the provisions of Section 102 46 of the
Board's Rules and Regulations shall be applicable
CHAIRMAN STEPHENS, dissenting
This case presents the important and apparently
novel question of whether the General Counsel
may invoke the equitable doctrine of fraudulent
concealment to toll the running of the limitations
period under Section 10(b) despite the fact that the
charging party was on notice of unlawful conduct
such that the latter would not otherwise be able to
avail himself of the tolling rule My colleagues con
elude that the General Counsel is entitled to have
the limitations period tolled where, as here, the Re
gional Director decides not to issue a complaint on
the basis of a false statement (contradictory to the
charging party's) provided to the Board by the re-
spondent during an investigation of a charge Al-
though this result has a certain equitable appeal, in
the sense it prevents a wrongdoer from benefiting
from its own dissembling, I believe that today's de
(McGraw Edison) 268 NLRB 308 (1983) enfd 759 F 2d 533 (6th Cir
1985) See also Auto Workers Local 259 (Atherton Cadillac) 276 NLRB
276 (1985)
12 The Respondent contends in its motion that the complaint should be
dismissed because of a release signed by Charging Party Frankenfield in a
civil action in which the Respondent was a defendant The General
Counsel filed an opposition to this motion As this case is being remanded
to the judge the judge shall consider the Respondents motion and the
General Counsel s opposition on remand
437
cision extends the doctrine of fraudulent conceal
ment to an unprecedented, and in my view unwar
ranted, extent Accordingly, I dissent from the re
fusal to dismiss the complaint
I
On January 8, 1982, the Respondent's president,
Pelekanakis, terminated Charles Frankenfield, the
Charging Party, who had been employed as a
painter With remarkable candor, Pelekanakis ex
plained to Frankenfield that he was forced to do
this at the behest of the Union's business agent,
who evidently harbored some personal animosity
against this employee and who had refused to refer
other painters to the Employer as long as it re-
tained Frankenfield Coupled with the discharge
itself, Pelekanakis' statements to Frankenfield,
which were essentially admissions against interest,
clearly put the latter on notice as to facts that com-
menced the running of the limitations period under
Section 10(b) Unquestionably, if Frankenfield had
waited more than 6 months beyond January 8 to
file with the Board a charge alleging a discrimina-
tory discharge under Sections 8(a)(3) and
8(b)(1)(A) and (2), the General Counsel would
have been barred from issuing a complaint Con-
versely, on the filing of a timely charge, the Gene-
al Counsel could have issued a complaint and pro-
ceeded to hearing Had an administrative law judge
credited Frankenfield's testimony of what he was
told by Pelekanakis, the evidence would have been
sufficient to support a violation of the Act i
As it happened, Frankenfield did file a timely
charge Following routine procedure,2 the Region
al Office commenced an investigation of the allega
tions, including an interview with Pelekanakis He
not only agreed to the interview, but also submit
ted a sworn statement that Frankenfield was termi-
nated because of lack of work This explanation, of
course, flatly contradicted the latter's account of
Pelekanakis' previous admissions to him
Faced with this conflicting evidence, the Region-
al Director on July 19, 1982, opted, within his stat-
utory discretion, not to prosecute the case 3 How-
' Cf Property Resources Corp Y NLRB 863 F 2d 964 (D C Cir 1988)
enfg 285 NLRB 1105 (1987) (Board was entitled to rely on circumstan
teal evidence of discriminatory layoffs as against respondent employers
mere assertion that it had lawful business reasons for such layoffs)
2 Board s Statements of Procedure Sec 101 4 See also NLRB Case
handling Manual (Part One) Unfair Labor Practice Proceedings Secs
10050-10064
3 In this regard it is noteworthy that the Casehandling Manual which
of course does not purport to be a statement of law but is intended as a
guide of practice and procedure for the Regional Offices states at Sec
10060 (emphasis in the original)
In the infrequent case in which (1) applying all relevant principles
the Region is unable to resolve credibility and (2) the resolution of
the conflict means the difference between dismissal and issuance of
complaint a complaint should be issued
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever, in 1985 Frankenfield brought to the Regional
Office's attention the fact that Pelekanakis, in an
unrelated, criminal action against the Union's busi-
ness agent, had just admitted that 3 years before he
had given false statements to the Board regarding
Frankenfield's discharge The Regional Office
eventually revoked its earlier dismissal letter and
issued the complaint on which this case was tried
The administrative law judge, however, on the
basis of 10(b), recommended dismissal of the com-
plaint
II
Congress added Section 10(b) to the Act in 1947
for a twofold purpose-"to bar litigation over past
events `after records have been destroyed, wit-
nesses have gone elsewhere, and recollections of
the events in question have become dim and con
fused,' H R Rep No 245, 80th Cong , 1st Sess , p
40, and of course to stabilize existing bargaining re-
lationships "4 Just as the first reason enhances the
integrity of the factfinding process, the second
ground serves an equally important purpose of es
tablishing a sense of repose over disputes among
employers, employees, and unions Because, in the
main, employment as well as bargaining relation
ships tend to be ongoing, Section 10(b) reflects a
policy judgment that it is better for these relation
ships (and for industrial peace in general) to bring
the disputes to a head in fairly short order rather
than to have an extended period in which to vindi
cate a statutory right 5
Opponents of the amendment complained that
the relatively short period of 6 months would "en
courage employer unfair labor practices of a kind
which cannot be readily detected,"6 such as sur-
veillance and espionage, and, indeed, no specific
exceptions were included in the statute to cover
such situations Yet, in keeping with what the
courts have done with respect to other unrestricted
limitations statutes, the Board encountered little
difficulty in engrafting onto 10(b) a tolling princi-
ple that takes into account a charging party's lack
of knowledge as to facts constituting a violation 7
This is true especially where the charging party's
ignorance can be traced to either the respondent's
prevarication or its mute concealment of relevant
information 8 Significantly, the common thread
4 Machinists Local 1424 (Bryan Mfg) v NLRB 362 US 411 419
(1960) (footnote omitted)
See United Parcel Service v Mitchell 451 U S 56 70-71 fn 7 (1981)
(Stewart J concurring in judgment ) quoted in part in DelCostello v
Teamsters 462 US 151 171 (1983)
6 H R Rep No 245 80th Cong 1st Sess 90 (1947) (minority views)
7 Danzansky Goldberg Memorial Chapels 264 NLRB 840 843 (1982)
and cases cited therein
8 See ACF Industries 231 NLRB 83 90-91 (1977) enfd 592 F 2d 422
430-431 (8th Cir 1979)
running through the reported case law is that it is
the knowledge (or the lack thereof) of the charging
party, not that of the General Counsel, that triggers
the running and the tolling of the statute 9
Given Frankenfield's knowledge of the relevant
facts here, which did prompt him to file a timely
charge with the Board, our decisions provide no
basis on which to toll Section 10(b) Because the
Regional Director, as the agent of the General
Counsel, decided to dismiss the charge, notwith
standing that his decision was based on an errone-
ous resolution of the conflicting testimonial evi-
dence, the judge correctly read Winer Motors10 as
supporting a dismissal of the complaint
III
As our institutional experience well confirms, un-
lawful discharge cases are frequently the most
problematic for the Board, as well as the General
Counsel, because their resolution most often turns
on whether to believe the charging party's allega-
tion of animus or the respondent's assertion of a
nondiscriminatory, business justification The Re
gional Offices, which ably process literally thou-
sands of charges each year within administratively
prescribed time guidelines, are expected to resolve
these factual conflicts and, to do this, the field in
vestigators must make judgments based on an array
of factors, including demeanor 11
Yet a critical fact remains that it is the Board
that Congress designated as the ul*imate arbiter of
not only questions of law but also questions of fact
The 1947 amendments are most commonly remem
bered for restructuring the Agency so that the Judi
cial role of the Board was enhanced while the in-
dependent office of the General Counsel was cre-
ated to fulfill the prosecutorial role Under this
scheme, if the twin purposes of the limitations
period-encouraging the prompt filing of claims
and providing final repose against not only outdat-
ed but also disposed-of claims-are to be achieved,
then doubtful cases like the instant one should be
submitted to the Board for determination Here
there was a reasonable basis for believing that a co-
lorable claim existed against the Respondent Only
The doctrine of fraudulent concealment does not grant the aggrieved
party a license to be oblivious As a principle designed to do equity it
must necessarily take into account the actions and inaction of the ag
grieved party Thus the tolling effect of the concealment ceases where
the aggrieved party either actually discovers or by reasonable diligence
could have discovered a factual basis for filing a charge See ACF Indus
tries v NLRB supra 592 F 2d at 430-431 and cases cited therein
9 The rare occasion on which fraud practiced on the General Counsel
after the filing of a charge might toll the limitations period is discussed
infra
10 265 NLRB 1457 (1982)
11 See NLRB Casehandling Manual (Part One) Unfair Labor Practice
Proceedings Sec 10060
KANAKIS CO
in the crucible of an administrative hearing, where
evidence is examined and cross-examined before a
neutral factfinder, is the truth most likely to
emerge 12
Moreover, it should be noted that Section 10(b)
itself is structured in such a way as to give the
General Counsel every opportunity to make a thor-
ough investigation before disposing of the charge
Only the filing and service of the charge are sub-
ject to the 6 month limitation 13 Thus, the General
Counsel does not confront a statutory deadline that
might on occasion pose the dilemma of being
forced to cut short an investigation and make a
precipitous decision not to file a complaint In such
a situation the Board might well be justified in
adopting a more lenient standard of equitable toll-
ing 14 But given the opportunity of wide investiga-
tion, it seems not only fair, but also in keeping with
the finality afforded by a limitations statute, that in
cases like this one, once an investigation is com
pleted, an evaluation of the evidence is made, and
the case is closed, the General Counsel should not
be allowed so easily to revisit the matter
The effect of today's holding on such cases, I
fear, is to provide the Regional Office essentially
an open-ended option of reassessing its previous
credibility determinations It will now be able to
dismiss a case where it feels that its ability to
mount a successful case against a respondent is im
paired by relatively weak, testimonial evidence,
safe in the knowledge that it can resurrect the case
should it uncover evidence of culpability not previ-
ously admitted by the respondent on investigation
In my view, however, the fraudulent concealment
rule was never intended to provide a second bite
because the General Counsel initially believed the
wrong witness
IV
The majority develops two justifications for re-
suscitating this case I find neither especially per-
suasive
12 See Sec 10(b) which provides in pertinent part that such a pro
ceeding shall so far as practicable be conducted in accordance with the
rules of evidence applicable in the district courts of the United States
13 The statute of limitations as passed by the House of Representatives
in the Taft Hartley legislation had contained a 6 month limit on the issu
ance of a complaint as well as a 6-month limit on the filing of the charge
H R Rept No 245 80th Cong 1st Sess 40 (1947) reprinted in I Leg
Hist 331 (LMRA) However the House and Senate conferees agreed to
eliminate the former limitation H R Rept No 510 80th Cong 1st Sess
53 (1947) reprinted in I Leg Hist at 557
14 Cf EEOC Y Gladieux Refinery 631 F Supp 927 935-936 (N D
Ind 1986) (in Age Discrimination in Employment Act case in which
complaint must be filed within prescribed limit the EEOC can obtain a
judicial order tolling the statute where in the course of investigation the
agency issued to the employer a valid subpoena duces tecum with which
the employer has refused to comply)
A
439
My colleagues make a preliminary point that is
not so much a legal argument as an observation
that the applicable Board and court precedents-in
particular, Ducane Heating Corp ,15 Winer
Motors,18 NLRB v Burgess Construction, 17 and
NLRB v Silver Bakery,' 8-do not foreclose the
result here because they do "not specifically [limit]
the fraudulent concealment exception to a charging
party "
With all respect, I think my colleagues give
these precedents short shrift It is true that the
court in Silver Bakery acknowledged the possibility
of reinstating, after the 10(b) period, charges that
were dismissed as a result of a respondent's "mis-
representation, misconduct, or even silent bad
faith "19 But that case cannot be viewed as leaving
the door ajar for the majority's position today
Given the facts of Silver Bakery, the court simply
had no occasion to define the parameters of the
fraudulent concealment doctrine
Further, contrary to the majority's description,
the court's opinion in Burgess Construction did not
speak "only generally" on the subject of fraudulent
concealment In Burgess, the court upheld the
Board's finding that the statute had been tolled
until the charging party union discovered the evi-
dence of the respondent employer's unlawful con-
duct, which the employer had deliberately with-
held from the union The court said "If the Union
actually knew, or by the exercise of due diligence
should have known about the alleged unfair labor
practice, the statute would not be tolled "20 The
opinion, like other Board precedent cited above, is
devoid of any qualifying principle that would war-
rant the disregard of a charging party's knowledge
in a case such as this one
Finally, the majority dismisses as dicta the dis-
cussions of fraudulent concealment in Ducane Heat-
ing and Winer Motors, even as they relate to a
charging party However, I would submit that the
analysis of the rule in both cases was neither gratu
itous nor fundamentally flawed In both cases, the
General Counsel had argued that "newly discov-
ered evidence," which called into question the Re
gional Director's initial view of the facts at the
time of the charge withdrawal (Winer) and charge
dismissal (Ducane), justified reviving the matters
beyond the 10(b) penod The Board disagreed in
Winer, holding that the failure of the respondent to
i5 273 NLRB 1389 (1985) enfd mem 785 F 2d 304 (4th Cir 1986)
19 265 NLRB 1457 (1982)
i 596 F 2d 378 (9th Cir 1979)
18 351 F 2d 37 (1st Cir 1965)
19 351 F 2d at 39
20 596 F 2d at 383
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
confess to a violation during the original investiga-
tion could not overcome the charging parties
knowledge of the relevant facts surrounding their
layoffs, in short, the respondent's statements to the
Board agents during their investigation did not
constitute fraud as traditionally understood Simi-
larly, in Ducane, the Board held that the Region's
bare assertion of the discovery of new evidence,
the substance of which was never proffered to the
administrative law judge, was insufficient to sustain
the General Counsel's burden of proving how op-
erative facts germane to the alleged violation were
concealed from the Regional Office 21
It is true that, unlike Ducane Heating, the Gener
al Counsel here has disclosed to the Board what
was "newly discovered"-Pelekanakis' admission
made during the 1985 criminal proceeding Yet, the
substance of his admission was not really new in-
formation Moreover, the General Counsel fails to
come to grips with the clear implications of Winer
Motors For in Winer, just as in this case, the re
spondent offered to the General Counsel a nondis
criminatory business reason for its action against
the charging parties, that the General Counsel sub-
sequently decided that the asserted reason might be
pretextual was not sufficient to toll 10(b) Neither
should it be sufficient in this case, which is less
compelling for the General Counsel in light of Pe
lekanakis' earlier and open disclosure to Franken-
field of the real reason for terminating him
B
Because, as the foregoing discussion shows, the
most directly relevant case law offers no support
for overturning the dismissal of the complaint, my
colleagues advance a second line of argument that
is predicated on analogizing this case to cases in
which, after decision, the record is reopened on
discovery that testimony was perjured A similar
argument might also be made that a refusal to rein-
state the case here would be inconsistent with
Board precedents holding that the discovery of
fraud or perjury will support reopening settlement
agreements
In the abstract, there is something to be said for
cultivating logical consistency in our law It is cer-
tainly consonant with notions of fairness and even-
handedness Moreover, at first blush it seems to
make little sense that the Board's ability to respond
to the discovery of fraud or perjury should turn on
the particular stage at which the dissembling oc
curred, whether it be at the charge stage, during a
hearing, or in conjunction with a settlement How-
ever, I do not believe that Congress has given the
21 273 NLRB at 1390 1391
Board unrestricted latitude to synchronize the
grounds for tolling Section 10(b) with those for
granting a new trial or setting aside a settlement
With respect to the conduct of our administrative
hearings, the Act grants the Board unquestionably
broad discretion to reopen a matter 22
Similarly, although there is nothing in the statute
that speaks directly to the issue, the Supreme Court
long ago confirmed in Wallace Corp v NLRB 23
the broad authority of the Board to set aside a set-
tlement agreement where the respondent fails to
comply with its terms Thus, Norris Concrete Mate
rials24 is but a variation of that rule, fortified by
the additional rationale that, where a party having
no intent to comply with it enters into a settlement
agreement that disposes of a complaint, the misrep-
resentation is sufficient not only to nullify the
agreement but also to toll the running of Section
10(b) 25 That the Board in Norris also indicated
that it would not countenance the respondent's
`contempt for the Board and its processes," which
as my colleagues suggest may in a sense aptly de
scribe Pelekanakis' earlier statements to the Board
investigators here, should not be disassociated from
the Board's overriding concern for protecting the
efficacy of settlements in Board litigation
In contrast, as shown above in part II, Congress
spoke quite directly on the timeliness of charges
And although the Supreme Court in Bryan Mfg,
362 U S at 429 fn 19, did reserve on the issue of
fraudulent concealment in the context of Section
10(b), the Court's opinion is nevertheless instruc
tive The question in Bryan was whether the Board
could entertain beyond the 10(b) period a charge
against an illegal bargaining agreement with a mi-
nonty union It was urged to the Court that the
public character of the statutory right being vindi-
cated (employee self-determination) outweighed the
competing interest of barring stale claims and that
the theory of a continuing violation thus could be
adopted to circumscribe Section 10(b) The Court,
however, disagreed, observing that the accommo-
dation between these competing factors has already
been made by Congress " 26 In making that accom-
22 Sec 10(d) provides Until the record in a case shall have been filed
in a court as hereinafter provided the Board may at any time upon rea
sonable notice and in such manner as it shall deem proper modify or set
aside in whole or in part any finding or order made or issued by it See
also Sec 10(e) which authorizes the court to grant leave to a party to
adduce further evidence before the Board on a showing that such evi
dence is material and there were reasonable grounds for the failure to in
troduce such evidence earlier
22 323 US 248 (1944)
24 282 NLRB 289 (1986)
25 Cf Ott V Midland Ross Corp 600 F 2d 24 32 (6th Cir 1979) (mis
representation in connection with negotiation of consultation agreement
that purported to settle age discrimination claim renders agreement void
able and may also toll the statute of limitations until defrauded party dis
covers or should have discovered misrepresentation)
26362US at 428
KANAKIS CO
modation, Congress was not leaving the Board's in
vestigatory processes totally without protection
against perjury and other fraud Although Section
10(b) may require that the Board give repose to
Frankenfield's discrimination claim, protection of
the Board s investigatory processes may be
achieved by pursuing a course established by Con-
gress-recommending criminal prosecution of Pele
kanakis under 18 U S C § 100127 27
C
Despite my disagreement with the majority, I am
not unmindful of the origins of the fraudulent con
cealment doctrine As a creature of equity, it does
not lend itself to broad pronouncements Rather, its
application must turn on the unique facts of a given
case 28 I do not rule out the possibility that there
may be cases in which the General Counsel should
be allowed to toll Section 10(b) where a fraud is
perpetrated on her office For example, a different
case may be presented where the respondent prof-
fers to the General Counsel false evidence (to
which the charging party has not been privy) that
seems inherently trustworthy, that is not contra-
dicted by any other evidence known to the Gener
al Counsel or the charging party,29 and that dispels
27 This provision was the basis for the prosecution of a witness who
gave false testimony in a Board proceeding US v Krause 507 F 2d 113
(5th Cir 1975)
28 Cf Bowen v City of New York 476 U S 467 479-481 (1986) (equita
ble tolling of limitations period upheld as consistent with congressional
intent and called for by the facts of the case )
29 Additional facts however may come to the attention of the General
Counsel that would prompt a person in the exercise of reasonable dill
gence to pursue a further investigation which if done would likely un
cover additional evidence that discredits the respondents defense This
obviously would weigh against tolling the statute
My colleagues suggest that this case does fall within the hypothetical
exception described in the accompanying text in that supposedly more
than questions of the credibility of testimony were involved in the original
investigation of the charge in the present case However neither the posi
tion of the General Counsel nor the record supports this counterargu
ment First the General Counsel argues simply that Pelekanakis engaged
in fraudulent concealment by proffering perjured testimony about his rea
sons for laying off Frankenfield The General Counsel had believed Pele
kanakis statement that the layoff was for economic reasons rather than
the result of union pressure The Respondents defense thus resembled
those found in many of our 8(a)(3) cases in which complaints have issued
In some cases after a hearing an employers claims are believed in
others they are rejected as pretext and hence the Wright Line defense
falls I do not regard a respondents bare assertion of such claims at the
investigatory stage of a proceeding to be fraudulent concealment as
that concept is generally understood regardless of whether an adminis
trative law judge subsequently discredits the claims when the witnesses
testify A more apt view of an employer s uncorroborated testimonial de
fense may be found in the recent case of Property Resources Corp v
NLRB 863 F 2d 964 (D C Cir 1988) in which the question was wheth
er union employees were laid off for lawful economic reasons or for un
lawful retaliation in response to a dispute over wage increases The court
observed (863 F 2d at 968)
That an employer testifies that it had business reasons for laying
off union members during a head to head clash with the union is not
creditable in itself It would be a rare hearing before the National
Labor Relations Board in which an employer did not make such a
claim To establish that it would have laid off the painters even if the
union had backed down and renegotiated the increases Tnboro [the
441
any reasonable basis for proceeding against the re-
spondent 30 The resolution of this hypothetical, of
course, must await a future concrete case It is
enough to conclude that, on the facts of the instant
case, I do not believe the General Counsel has
made a compelling case for equitable relief from
Section 10(b)
employer] needed to assemble more than bare assertions or even
plausible reasoning it had to furnish proof This it failed to do Thus
the evidence relied on by the Board while circumstantial is suffi
dent [to sustain the violation]
Likewise the Respondent here apparently did not offer adequate proof
to the General Counsel or at least none of which the Board is aware for
as my colleagues concede we [do not] have access to all of the evi
dence adduced in the investigation and considered by the Regional Di
rector In short the General Counsel who has the burden in seeking to
avoid the 10(b) defense simply has not made a convincing case either le
gaily or factually
30 See Equal Access to Justice Act 5 US C § 504 (Supp IV 1986)
which allows reasonable attorney fees and costs to be assessed against the
Board for the General Counsels prosecution of cases that are without a
substantial justification in law and in fact By the same token it would
not be appropriate to assess EAJA fees and costs on behalf of a respond
ent where the General Counsels case falls simply because the administra
tive law judge discredited the prosecution witnesses whom the General
Counsel previously had reason to believe
Margaret M McGovern Esq for the General Counsel
Charles E Shoemaker Jr Esq, of Allentown, Pennsyl
vania, for the Respondent Company
Stephen C Richman Esq (Markowitz and Richman) of
Philadelphia, Pennsylvania for the Respondent Union
DECISION
STATEMENT OF THE CASE
MICHAEL 0 MILLER, Adminstrative Law Judge This
case was heard on 31 March 1986 in Bethlehem Penn
sylvania based on unfair labor practice charges filed by
Charles D Frankenfield an individual on 4 June 1982
and a consolidated complaint issued by the Regional Di
rector of Region 4 of the National Labor Relations
Board (the Board) on 27 November 1985 The console
dated complaint alleges that International Brotherhood
of Painters Allied Trades Local 1269 (the Union or
Local 1269) violated Section 8(b)(1)(A) and (2) of the
National Labor Relations Act (the Act) by causing and
attempting to cause Kanakis Company, Inc (the Em
ployer or Kanakis) to discriminate against its employees
in violation of Section 8(a)(3) of the Act It further al
leges that Respondent Employer discriminatorily dis
charged Frankenfield in violation of Section 8(a)(3) and
(1) of the Act Respondents timely filed answers deny
the commission of any unfair labor practices
All parties were afforded full opportunity to appear, to
examine and cross examine witnesses and to argue
orally Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and the Re
spondents
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on the entire record, i including my observation
of the witnesses and their demeanor, I make the follow
ing
FINDINGS OF FACT
I EMPLOYERS BUSINESS AND THE UNIONS LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
The complaint alleges , and Respondent Employer
admits , that the Employer is a Pennsylvania corporation
which is engaged in commercial and industrial painting
with its principal place of business located in Allentown,
Pennsylvania It is further alleged and admitted that,
during the past year , in the course and conduct of its
business, the Employer performed services outside the
Commonwealth of Pennsylvania which were valued in
excess of $50,000 I find and conclude that Respondent
Employer is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
The complaint alleges, Respondents admits and I find
and conclude that Respondent Union is a labor organiza
tion within the meaning of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
A Facts
1 Frankenfield's employment and discharge
Since 1981, Respondent Employer has been signatory
to a collective bargaining agreement with the Union
which establishes the Union as the Employers exclusive
source of painters Charles Frankenfield is a painter and
had been a member of the Union for more than two dec
ades In November 1981, the Union referred Franken
field to, and he began his employment with the Employ
er He worked on three different jobsites in late Decem
ber 1981 and the first week of January 1982, he was a
working foreman on Kanakis Fairmont Village jobsite
At various time the Employer had between two and
six painters on the Fairmont Village job In the first
week in January 1982 however he found that his paint
ers were failing to show up for work By the end of that
week, the only painter reporting for work was Franken
field In order to find out what the problem was Em
manuel Felekanakis, the Employers president called
Robert Delker, the Union s business agent, who ran its
hiring hall Delker came out to the Employers office
and Pelekanakis asked Delker why the painters were not
showing up Delker told him, The problem was Fran
kenfield Explaining to Pelekanakis that Frankenfield
and his son had vandalized Delker s truck 2 Delker re
ferred to Frankenfield as a no good son of a bitch" and
told Pelekanakis to fire him Unless he did so Delker
said, the Employer would get no painters Further
Delker threatened that unless Pelekanakis complied, his
i The General Counsels unopposed motion to correct the transcript is
granted and made a part of the record
2 There was no evidence other than this hearsay statement that such
an act had occurred
health and the safety of his family and his business were
in jeopardy
On 8 January 1982, Frankenfield went to the Employ
er s office where Pelekanakis told him that he was being
let go, that Delker had insisted that he be fired Pelekan
akis repeated Delker's threat that the Employer would
get no other painters unless it fired Frankenfield Pele
kanakis suggested that Frankenfield call Delker and
straighten the matter out After being told that he was
discharged, Frankenfield told Pelekanakis that he had
plans to run against Delker for the business agent's job in
next May s election 3 Pelekanakis admitted to Franken
field s son that he fired Frankenfield on Delker s insist
ence At hearing, Pelekanakis also admitted that he had
no other reason, as of 8 January 1982, to terminate Fran
kenfield 4
Over the next few weeks, Frankenfield returned regu
larly to the Employer, seeking reemployment He also
tried to talk with Delker Both efforts were unsuccessful
2 Charges filed, dismissed, and reopened
Frankenfield filed the instant unfair labor practice
charges in June 1982 and supported his charges with the
same evidence which he gave in this hearing In the
course of the investigation, a Board agent interviewed
and took an affidavit from Pelekanakis Pelekanakis,
however, had spoken first with Delker and had been told
by Delker not to implicate the Union in Frankenfield s
discharge Pelekanakis even showed Delker his affidavit
before signing and returning it to the Board In that affi
davit, Pelekanakis falsely denied that the Union had re
fused to furnish painters because of Frankenfield that
Delker had requested him to lay Frankenfield off, that
the Union had anything to do with Frankenfield s termi
nation, or that he told Frankenfield that he had been laid
off on Delker's request He asserted economic reason for
Frankenfield's layoff
On 19 July 1982 the Regional Director dismissed
Frankenfield s unfair labor practice charges for lack of
evidence
In 1985 Delker was tried in United States district
court on multiple criminal charges including racketeer
ing, extortion, conspiracy and fraud In the course of
that trial Pelekanakis testified that he had fired Franken
field on Delker s insistence and admitted that he had lied
in his NLRB affidavit This evidence came to Franken
field's attention via a newspaper article dated 22 Febru
ary 1985 On 17 April 1985 the Regional Director re
opened Frankenfield s charges for further investigations,
on 13 November 1985, he revoked the 19 July 1982 dis
missal letter and on 27 November 1985 he issued the
consolidated complaint 5
3 Frankenfield had told some other painters about these plans while
working on another jobsite before he started to work for Kanakis He
had taken no formal steps toward this end and there was no evidence es
tablishing that either Delker or Pelekanakis knew of his intentions before
the discharge
* Whether or when Frankenfield would have been laid off for lack of
work had he not been discharged on 8 January 1982 is a compliance
issue
s On 29 April 1985 Delker was found quilty of the criminal charges
and sentenced to 35 years in prison He was still in Federal custody at
the time of this trial
KANAKIS CO
B Analysis and Conclusions
I Section 10(b)
(a) The Employer
Respondent Employer, citing Ducane Heating Corp,
273 NLRB 1389 (1985), argues that the complaint against
it must be dismissed pursuant to Section 10(b) of the Act
This statutory limitations period, it asserts, begins to run
when the charging party knows or should have known
of the basis for his charge In this case, that knowledge
existed from the time Pelekanakis told Frankenfield the
reason for his discharge The General Counsel, similarly
citing Ducane Heating, argues that the Respondents
fraudulent concealment of the operative facts bars oper
ation of the limitations period
In Ducane Heating, the Board reversed California Pa
cific Signs, 233 NLRB 450 (1977), and Winer Motors, 265
NLRB 1457 (1982), to the extent that they were incon
sistent with Ducane Motors" and held
A dismissed charge may not be reinstated outside
the 6 month limitations period of Section 10(b)
absent special circumstances in which a respondent
fradulently conceals the operative facts underlying
the alleged violation Where there is a fraudulent
concealment, the limitations period begins to run
when the charging party knows or should have
known of the concealed facts [273 NLRB at 1390]
The Board went on to state
[A] respondent has the right under the statute to be
assured that absent the existence of a properly
served charge on file, it will not be liable for con
duct occurring more than 6 months earlier To
permit the General Counsel to resurrect either with
drawn or dismissed charges is inconsistent with this
principle and should be permitted only where a re
spondent, in effect forefeits its right to such assur
ances by engaging in fraudulent concealment [273
NLRB at 1391 ]
In this case, the Employer did not hide from the
Charging Party those facts which if proved, would es
tablish the violations Rather, together with the Union, it
concocted a fradulent defense and denied to the Regional
Director that which it had admitted to the Frankenfields
Thus, it prevented the Charging Party from convincing
the Boards Regional Director that there was sufficient
evidence on which to proceed to complaint Is this, then,
the kind of fraudulent concealment that tolls a statute of
limitations? Harsh as the result unquestionably is, I be
lieve that the answer is no In that portion of Winer
Motors, supra at 1458-1459, which was not reversed in
Ducane Heating, supra the Board noted that the fraudu
lent concealment rule
6In those cases a distinction for 10(b) purposes had been drawn be
tween dismissed and withdrawn charges with respect to whether they
might be reinstated The Board in Ducane Motors eliminated that distinc
lion
443
clearly has no application to the case before us
where the alleged discriminatees were not ignorant
of the alleged violation within the limitations period
It is a rare case where a respondent agreed
with a charging party's assessment that respondent
engaged in conduct violative of the Act Rather, in
most cases, respondent denies the misconduct al
leged or proffers an explanation, and the General
Counsel must decide if the evidence is sufficient to
sustain the charging party s position If so, the Gen
eral Counsel issues a complaint, if not, [she] dis
misses the charge
Further, the Board stated, in footnote 12,
That the Respondent did not confess to unfair labor
practices during the original investigation but,
rather, denied the allegations or proferred an eco
nomic defense, does not constitute the type of
`fraud" warranting reinstitution of a charge in spite
of the 6 month limitation of Sec 10(b)
The Board law, it appears, draws a distinction between a
putative respondents withholding of information from
one who would be a charging party, thereby preventing
that individual from filing a timely charge, and either
withholding information from, or misleading, the Gener
al Counsel, thereby causing her to dismiss the charge or
solicit its withdrawal Reexamination of this distinction,
whether holding' or dicta," is for the Board, not the
administrative law judge I am constrained to follow
Board law The Board's rule, I would further note, is
consistent with the approach to fraudulent concealment
as found in other Federal and state jurisdictions Dryco
Corp v Firestone Tire & Rubber Co, 386 F Supp 546,
549 (D C Ohio 1980), 51 Am Jur 2d Limitations of Ac
tions, § 148, and cases cited there Although not condon
ing the misconduct I shall therefore recommend that the
charge against Respondent Employer be dismissed 7
(b) The Union
A statute of limitations, such as Section 10(b), is a
matter of affirmative defense If not pleased it is waived
Chicago Roll Forming 167 NLRB 961, 970 (1967) Re
spondent Union has not pleaded this defense either in its
answer at hearing or in its brief Accordingly I shall
treat the CB case on its merits
2 Robert Delker s agency status
Although admitting in its answer that Delker was the
Union s business agent at the appropriate times Respond
ent Union denied that he was its agent The record re
flects that Delker was an elected official of the Union
and ran its hiring hall In Electrical Workers IBEW Local
453 (National Electrical) 258 NLRB 1427 1428 (1981)
the Board stated
7 Although this may seem to encourage respondents to proffer false de
fenses if they are willing to risk the penalties for purjury it may also en
courage the issuance of complaints consistent with the General Counsel s
guidelines and Board law (McCauley Associates 269 NLRB 791 (1984)) in
which credibility questions best resolved at hearing have been raised
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board regularly finds elected or appointed offs
cials of an organization to be agents of that organs
zation While the holding of elective office does not
mandate a finding of agency per se, such status is
persuasive and substantial evidence which will be
decisive absent compelling contrary evidence
See also Penn Van Express, 274 NLRB 449 (1985) No
contrary evidence was offered here, accordingly, I find
that Robert Delker was Respondent Union s agent
Respondent further argues that the Union was as much
a victim of Delker's criminal activities as was Franken
field and, as such, should not be held responsible for his
activities Also asserted is the contention that Delker s
actions were neither authorized nor foreseeable, that
those actions were outside the scope of his agency
These arguments are without merit In NLRB v George
town Dress Corp, 537 F 2d 1239 (1976), the Fourth Cir
cult stated that the test of whether a principal is respon
sible for the illegal acts of an agent is whether those acts
were clearly inappropriate to or unforeseeable in the ac
complishment of the authorized result In that case, a
union was held responsible for the acts of an in plant or
ganizing committee whose members threatened employ
ees with a knife, made other death threats, and threat
ened to damage employees homes and cars The court
held that such acts did not so far exceed the organizing
committees authority as to make obvious to the persons
coerced that the union would not ratify that conduct
Clearly the same can be said here A business agent s
demand that an individual be removed from the jobsite
as a condition of furnishing other employees does not so
far exceed the agent s authority as the person in charge
of its hiring hall as to put the employer on notice that
the union would not ratify it
3 Union causation and liability
The Respondent Union, while not denying that Delker
caused Kanakis to discharge Frankenfield, contends that
the General Counsel has failed to sustain her burden of
establishing that Delker's demand was in any way related
to union activities It asserts, therefore that the com
plaint must be dismissed The Union s position is without
merit Whether Delker caused Frankenfield s discharge
because of Frankenfield s stated intention to challenge
Delker for the business agent s position because he had
damaged Delker s truck or for some unknown reason
that action violates Section 8(b)(1)(A) and (2) of the Act
Clearly, if Delker had Frankenfield fired because of
his intention to seek union office, that action would have
been unlawfully motivated Similarly if Delker merely
had a personal dispute going with Frankenfield and took
his pique out on Frankenfield by way of his employment,
that action would violate the law And, if Delker had no
reason at all but was merely flexing his muscle, that
discharge and the Union s causation of it would have
been unlawful As the Board stated in Glaziers Local 558
(PPG Industries), 271 NLRB 583 585 (1984) 8
8 Enf denied 787 F 2d 1406 (10th Cir 1986)
The Board presumes that a union acts illegally
any time it prevents an employee from being hired
or causes an employee to be discharged because by
such conduct a union demonstrates its power to
affect the employees livelihood in so dramatic a
way as to encourage union membership among em
ployees A union may, however, rebut his presump
tion by evidence of a compelling and overriding
character showing that the conduct complained of
was referrable to other considerations, lawful in
themselves, and wholly unrelated to the exercise of
protected employee rights or to other matters with
which the Act is concerned
Neither of the two reasons alluded to in the record
would make Delker s actions lawful and the Union had
proffered no other reasons to justify his conduct Ac
cordingly I find that by attempting to cause and causing
Kanakis to discharge Charles Frankenfield Respondent
Union had violated Section 8(b)(1)(A) and (2)
CONCLUSIONS OF LAW
1 Respondent Union violated Section 8(b)(1)(A) and
(2) by attempting to cause and causing Kanakis Compa
ny, Inc to discharge Charles Frankenfield, its employee
on or about 8 January 1982
2 The aforesaid unfair labor practice has a close, inti
mate, and substantial effect on commerce between the
several States and is an unfair labor practice affecting
commerce within the meaning of Section 2(2), (6) and
(7) of the Act
3 Prosecution of the complaint against Kanakis Com
pany Inc in Case 4-CA-12997 is barred by Section
10(b) of the Act
THE REMEDY
Having found that Respondent Union has violated the
Act by certain conduct, I shall recommend that it be re
quired to cease and desist from such conduct and post
appropriate notices
Having found that Respondent Union unlawfully at
tempted to cause and caused Kanakis Company Inc to
discharge Charles Frankenfield I shall recommend that
it be required to made Charles Frankenfield whole for
any loss of earnings or other benefits suffered as a result
of the discrimination against him by paying to him a
sum equal to the amount he would normally have earned
from the date of his discharge until he is reinstated by
Kanakis Company Inc to his former or a substantially
equivalent position or until he obtains or obtained sub
stantially equivalent employment elsewhere, less interim
earnings 9 The loss of earnings shall be computed in the
manner prescribed in F W Woolworth Co 90 NLRB
289 (1950), with interest as prescribed in Florida Steel
Corp, 231 NLRB 651 (1977) 10 I shall also recommend
that Respondent Union be ordered to notify Kanakis
Company Inc the Employer in writing with a copy to
9 Glaziers Local 558 (PPG Industries) supra Sheet Metal Workers Local
355 (Zinsco Electrical) 254 NLRB 773 774 (1981)
10 See generally Isis Plumbing Co 139 NLRB 716 (1962)
KANAKIS CO
Charles Frankenfield that it has no objection to his em
ployment and to request the Employer to reemploy him
Further I shall recommend that Respondent Union be
required to remove from its files any references to Fran
kenfield s unlawful discharge and notify him in writing,
that such action has been taken and that the discharge
will not be used against him in any way
The General Counsel additionally seeks a visitatorial
clause to be included in the Order in order to ensure
compliance with the Boards Order As defined by the
General Counsel , a visitonal [sic] clause permits an
agency to examine the books and records of a respond
445
ent and to take statements from its officers and employ
ees and others for the purpose of determining or securing
compliance with a court s judgment The instant case
involves the operation of a hiring hall and the Employ
er s requirements for painters over a nearly 4 year period
of time Computation of the backpay remedy may there
fore be quite complex and the visitatorial clause appears
to be appropriate to facilitate compliance Accordingly, I
shall recommend inclusion of a visitatorial clause in the
remedy and Order
[Recommended Order omitted from publication ]