(dissenting):
The majority, by holding that the unfair labor practice charge filed by Local 333 in February, 1977, was time-barred by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), unfortunately reaches an unjust result. It does this by drawing unwarranted formalistic differentiations between closely affiliated members of the “Berman Family” — General Marine Transport Corp. (General Marine) and Berman Enterprises Inc. (Berman) — rather than by looking to the substance of their status as subsidiaries of one Berman holding company which constitutes one family enterprise engaged in operating sludge vessels. It disregards the fact that Local 333’s earlier unfair labor complaint against General Marine, admittedly timely, could not be resolved until the Regional Director identified the vessels represented by Local 333 as distinguished from those represented by the Marine Engineers Beneficial Association (MEBA), which did not finally occur until December 10,1976, when the representation proceedings instituted by the Berman Family were concluded. Lastly, it gives no effect to the fact that when Local 333 withdrew its timely-filed complaint in August 1976 after Berman moved to dismiss because of the pending representation proceedings, Local 333 was induced to refrain from further action pending those proceedings by Berman representations that the “corporations” (including General Marine) were considering the Union’s demands but were “precluded” from bargaining until conclusion of the pending Board proceeding that would resolve which vessels were represented by Local 333 and which by MEBA.
Under the circumstances, fairness dictates (1) that General Marine be estopped from asserting a statute of limitations defense, and (2) that its refusal to bargain upon conclusion of the representation proceedings be held to constitute a new unfair labor practice. For these reasons I would enforce the Board’s order with respect to the two vessels operated by General Marine.
The facts are simple and straight-forward. In March, 1976, Local 333 reached a collective bargaining agreement with the New York Marine Towing and Transportation Association (the Association). On April 13,1976, General Marine, a member to the Association, made known its objections to the agreement in a letter to Local 333, complaining primarily on the ground that it purported to bind the parent and affiliates of General Marine (i. e., Berman Enterprises), for whom the Association was not authorized to bargain.
On April 23, 1976, Local 333 filed charges with the Board claiming that General Marine and its affiliates in the Berman Family had, by the April 13 letter, refused to bar*190gain in violation of the National Labor Relations Act. On May 18, the Union filed a second complaint, charging that General Marine and Berman had induced employees to join a different union, the Marine Engineers Beneficial Association (MEBA). On June 11, Berman commenced a proceeding to determine whether MEBA or Local 333 was the proper employee bargaining representative. On August 6, Local 333 filed another set of charges naming Berman and General Marine and alleging that they had refused to bargain with respect to employees working on several named vessels. Ber-man argued that these charges were dupli-cative of the charges already filed and that it was precluded by representation proceedings pending before the Board, to which it had agreed in settlement of the earlier charges, from entering into an agreement with any union until representation would be resolved. General Marine was inextricably involved in these proceedings, since it had claimed to have only one vessel, the Susan Frank, represented by Local 333, and that Local was claiming more vessels. (Eventually it was found to represent two vessels.) As a result, Local, 333 withdrew its complaint.
On August 18, 1976, Local 333 sent a letter to Berman and all its affiliates, including General Marine. The letter was addressed to Jared Stamell, Esq., who represented both Berman and General Marine together as members of the Berman Family. The letter demanded collective bargaining with respect to employees working on two vessels run by General Marine, the Susan Frank and the Rebecca K, as well as two others which proved not to be in service. Stamell responded that he was “reviewing the demand on behalf of the corporations” and added that “the companies will respond directly to the union concerning the demand shortly.” In a letter dated October 26, 1976, Berman’s controller Susan Frank (presumably the namesake of General Marine’s ship Susan Frank) responded that the company was precluded from dealing with the demand by the pendency of representation proceedings before the NLRB. She did not specify whether she was speaking solely for Berman or for its subsidiaries as well.
On December 10, 1976, the Regional Director of the Board resolved the confusion as to which employees were represented by Local 333, determining that only those employed on the Susan Frank and the Rebecca K were so included. Each of these vessels had been named in Local 333’s August 6 charges. In the three months following the NLRB determination, Local 333 demanded that General Marine adhere to the terms of the March 1976 agreement insofar as it applied to the two vessels. General Marine refused, and on February 28, 1977, Local 333 filed the unfair labor practice charge from which this proceeding arises.
General Marine now argues that the six-month statute of limitations of § 10(b) began running on April 13, 1976, the day it made known its initial refusal to comply with the contract, and that neither its conduct subsequent to that date nor intervening developments (especially the December 1976 Board determination) justify a conclusion that the statute of limitations is inapplicable. I cannot agree. In my view the conduct of General Marine and its representatives estops them from raising the statute of limitations defense and the December 1976 Board determination sufficiently changed the circumstances to render General Marine’s subsequent refusal to comply with the agreement in its revised scope a new alleged unfair labor practice, restarting the limitations period.
General Marine’s conduct should deprive it of the right to raise the statute of limitations defense because it put off Local 333’s demands by relying on the pendency of the representation proceeding before the Board. The Administrative Law Judge and the NLRB so found, but the majority differs with them.
The April 1976 charges of Local 333 sought to compel General Marine to adhere to the collective bargaining agreement. General Marine was clearly put on notice of the union’s demands. Yet because of the dispute over the extent to which General Marine’s affiliates were bound, General Marine was able to avoid complying with the agreement even to the extent of those employees undisputedly within the bargaining *191unit. By the time the confusion as to the scope of the agreement was cleared up (in December 1976), more than six months had passed since General Marine’s initial repudiation of the contract.
The majority argues that as early as June 1976 Local 333 should have known to make its demands solely with respect to the vessels ultimately found to be within the bargaining unit. The record clearly demonstrates that Local 333 attempted to do just that, but fell prey to the representations of General Marine. First, General Marine argued that the August 6 complaint (filed within the limitations period), which properly named the Susan Frank and the Rebecca K, was duplicative of the earlier charges, and Local 333 obligingly withdrew the charges, relying on the earlier charges. Second, the responses to the August 18 letter gave an unmistakable indication that General Marine sought to postpone consideration of the union’s demands until the pending Board proceedings were resolved. In my view, each of these actions by General Marine suffices to estop it from advancing the statute of limitations defense.
The majority, parsing the nuances of the Frank letter, concludes that it was meant as the statement of only Berman, not General Marine. In effect, then, Berman is permitted to make Local 333 the unknowing and unwilling participant in a high-stakes shell game, forced to guess which letter conceals the representations of which member of the Berman Family. Since the underlying demand by Local 333 pertained to General Marine’s vessels, the correspondence was with the counsel representing both General Marine and Berman, Berman was closely affiliated to General Marine as part of the Berman Family enterprise and the letter was so ambiguous that only the most distrusting and sensitive reader would have suspected that only Berman itself was responding, General Marine should not be permitted to take advantage of the confusion it created.
Even if there were no such estoppel, I would conclude that the resolution of the dispute over which employees were covered by the contract changed the circumstances sufficiently to render General Marine’s subsequent refusal to execute the agreement grounds for a new unfair labor practice charge. I recognize that absent a change of circumstances the statute of limitations begins running with the first refusal to execute an agreement, and not with subsequent refusals. See NLRB v. Serv-All Co., 491 F.2d 1273, 1275 (10th Cir. 1974); NLRB v. McCready and Sons, Inc., 482 F.2d 872, 874-76 (6th Cir. 1973). Cf. Local Lodge 1424 v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960). Here, however, there was such a change of circumstances.
The Board’s determination in December 1976 definitively resolved the question of applicability of the contract to the Susan Frank and the Rebecca K. With the contract thus narrowed to eliminate the extension to all Berman vessels, Local 333 properly made a new demand for compliance with the contract as now revised by the Board. General Marine’s refusal constituted a new alleged unfair labor practice because of ¿his intervening change in circumstances. Cf. NLRB v. McCready and Sons, Inc., supra, 482 F.2d at 875-76 & n.3 (action barred after six months absent a change in position in the interim).
A contrary conclusion would compel a union, under such circumstances, to file separate sets of charges covering every possible combination of employees it claims to represent. Hearings on these charges would presumably be stayed until the Board determined which employees the union was actually entitled to represent. Once this determination was made, the union would be able to pursue whichever of its earlier-filed charges named the correct group of employees. This, it seems to me, is unnecessarily wasteful. Much, more sensible is the course of events which actually occurred here. Local 333 made its charges with respect to all of the employees it claimed to represent, the Board determined which of those employees the union did in fact represent, and Local 333 promptly made a demand as to only those employees. When the employer refused the demand, the union immediately filed its charges. The process is entirely consistent with the policies of the statute of limitations. It would not lead to litigation “after records *192have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused,” H.R.Rep. 245, 80th Cong., 1st Sess. 40, quoted in Local Lodge 1424 v. NLRB, supra, 362 U.S. at 419, 80 S.Ct. at 828; see also NLRB v. Auto Warehousers, Inc., 571 F.2d 860, 863 (5th Cir. 1978), because there was a full Board proceeding within six months of the time the charge was filed. Given the unchallenged good faith of Local 333,1 would therefore conclude that the statute of limitations began running at the time of the Board determination in December 1976, and thus that this action was timely.
I find no merit in the other arguments raised by General Marine on appeal. The Administrative Law Judge acted properly when he precluded General Marine from relitigating the issue of which employees were covered by the agreement. See 29 C.F.R. § 102.67(f). “It is well established that the Board will not permit litigation at an ünfair labor practice proceeding of matters which were, or could have been, litigated in the underlying representation proceeding.” NLRB v. Horn & Hardart Co., 439 F.2d 674, 683 (2d Cir. 1971). General Marine took no appeal from the representation proceeding and was therefore bound by its results.
The presence of the unlawful hot cargo clause in the agreement did not invalidate the entire agreement as to General Marine. See Chattanooga Mailers Union v. Chattanooga News-Free Press Co., 524 F.2d 1305, 1313 (6th Cir. 1975). The clause was not “so basic to the whole scheme of a contract and so interwoven with all its terms that it must stand or fall as an entirety.” NLRB v. Rockaway News Supply Co., 345 U.S. 71, 78, 73 S.Ct. 519, 523, 97 L.Ed. 832 (1953). Indeed, the clause had no effect whatever on General Marine since its vessels did not tow vegetable oil barges.
Similarly, the presence of the “affiliated companies” clause did not relieve General Marine of its obligations, since that clause had been removed in the representation proceeding.
Finally, I find no merit in General Marine’s argument that the denial of its motions for reconsideration and to reopen the record before the Board (after the Administrative Law Judge’s decision) was impermissible. It is clear that no new arguments or relevant evidence were being advanced. The motion was “denied as lacking in merit.”
There was no improper delegation in having the order signed by the Associate Executive Secretary of the Board. Unlike the situation in KFC National Management Corp. v. NLRB, 497 F.2d 298 (2d Cir. 1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 879, 47 L.Ed.2d 98 (1976), there was no evidence here that the motion was not considered by three members of the Board, as required; indeed, at oral argument we were advised that it was so considered.
I therefore conclude that the order of the Board should be affirmed and enforced, and must respectfully dissent.