Local 1437, Carpenters

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 359 (N.L.R.B. 1974)

LOCAL 1437 , CARPENTERS 359
Local 1437, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Associated Gener-
al Contractors of California, Inc.; Engineering and
Grading Contractors Association , Inc.; and Build-
ing Industry Association of California , Inc.) and
Matt A. Bragg. Case 21-CB-4553
April 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 7, 1973, Administrative Law Judge
Henry S. Sahm issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering brief.
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 , and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The charge herein was filed by the alleged
discriminatee, Matt A. Bragg, on February 28, 1973;
therefore the 10(b) period began on August 28, 1972.
The complaint alleged as violative of Section
8(b)(1)(A) and (2) of the Act, only that:
Since in or about September 1972, Respondent
through its agents Fred Burlin and Albert Home,
has refused and continues to refuse to refer Bragg,
I At the hearing , counsel for the General Counsel indicated that in
addition to Bragg 's affidavit she had in her possession a note from Bragg
concerning the emotional stress he was under . She further indicated that it
was not a sworn statement or affidavit and was not relevant to Bragg s
testimony or the subject matter of the complaint. Counsel for Respondent
on numerous occasions requested an opportunity to review the document.
The Administrative Law Judge after examining the statement in camera
ruled that the statement was not of such relevance as to require its
examination by Respondent. In its exceptions and brief Respondent
contends the Administrative Law Judge's ruling was prejudicial to
Respondent in that it could have been used to test Bragg 's credibility and
that therefore it was an error to refuse Respondent's counsel to review such
document. In support of its contention Respondent relies on Sec.
102.118(bx1 ) of the Board's Rules and Regulations which states in part:
... after a witness called by the General Counsel or by the charging
party has testified in a hearing upon a complaint under section 10(c)
... the Administrative Law Judge shall, upon motion of the
respondent, order the production of any statement . . of such witness
in the possession of the general counsel which relates to the subject
matter as to which the witness has testified. .
The rule clearly indicates the document must relate to the subject matter
testified to by the witness. Bragg's emotional state obviously did not so
relate except , at best, tangentially . We reject Respondent's contention since
we find that the Administrative Law Judge did not abuse his discretion in
an applicant for employment, for employment
under the terms of the collective bargaining
agreement . . . because of his failure to pay a fine
levied against him by Respondent... .
Notwithstanding the 10(b) limitation and the
narrow, specific allegation of the complaint, the
Administrative Law Judge relied on unnecessary pre-
10(b) evidence to find the violation alleged in the
complaint and found other violations based on
incidents which not only occurred prior to the 10(b)
period, but were not alleged as violations in the
complaint.2 In addition, his recommended backpay
remedy commences on June 20, 1972, more than 2
months prior to the commencement of the 10(b)
period. We find it unnecessary to pass on the
Administrative Law Judge's factual and legal find-
ings based on events prior to the 10(b) period, and
specifically disavow his numerous gratuitous com-
ments predicated on pre-10(b) evidence.3 On the
basis of the Administrative Law Judge's credibility
findings with respect to 10(b) conduct,4 the narrow
allegation of the complaint, and relying only on pre-
10(b) evidence to the extent that it may properly be
considered as background evidence, we find as
follows:
Bragg became a member of Respondent in June
1968, and from that time until July 1972, was
dispatched from Respondent's hiring hall at various
times when he sought employment. In April 1972, he
filed written charges with the Los Angeles District
Council of Carpenters against Burlin, the hiring hall
dispatcher, alleging that the job referral system was
being operated in a discriminatory manner and that
Burlin had discriminated against other members (not
himself) while dispatching members to jobs. Bragg's
refusing Respondent's request to examine the statement.
2 The General Counsel, aware of the 10(b) limitation period, not only
made no attempt to amend the complaint to allege additional violations but
specifically stated, "The complaint , your Honor , is narrowly drawn
considering the incidents of refusal to dispatch out of the Local." During
the course of the hearing the General Counsel objected to all pre-10(b)
evidence relating to why Bragg was fined on the ground that it was
irrelevant to the case. The General Counsel further stated that while the
reason for the fine was violative of the Act, it was not alleged as such since it
was based on pre- 10(b) evidence.
3 For example , we note that one of the Administrative Law Judge's
discussions of Bragg's credited testimony (fn. 11) not only is based solely on
pre-10(b) events but includes in part evidence that was stricken from the
record by the Administrative Law Judge himself on Respondent's motion.
4 Notwithstanding the inconsistencies and contradictions in Bragg's
testimony , and the contradictions and inconsistencies between his affidavit
and his testimony , the Administrative Law Judge was persuaded to accept
Bragg's version of the events occurring on and after August 28 , 1972. These
findings are based almost wholly on his observation of the demeanor of
Bragg, whom he credited , and Respondent's witnesses , whom he discredit-
ed. With respect to Bragg , he stated, "he appeared not only to be a sincere,
straightforward and truthful witness, but as one whose character was
exemplary...... We are therefore constrained to find that his findings and
conclusions are not contrary to the preponderance of all the relevant
evidence . Accordingly, we accept his credibility resolutions herein . Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951).
210 NLRB No. 45
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge was dismissed after investigation by the
Executive Council of the District Council.
Shortly thereafter, Burlin filed charges against
Bragg with the District Council alleging Bragg was
creating dissension in the Union; this charge was
held in abeyance. On June 26, Burlin filed a second
charge against Bragg with the District Council
alleging a violation of section 55A(13) of the Union's
constitution. Specifically, the charge was that Bragg
had falsified his union applications in 1962 and 1965
by misstating his journeyman status and his birth-
date. A trial was held on this charge on July 31, 1972,
at which Bragg testified before a panel of journey-
men carpenters selected by the Executive Committee
of the District Council. Bragg was found guilty, and
on August 28 the delegates to the District Council of
Carpenters upheld the finding. On August 28, by
letter which he did not receive until August 31, Bragg
was notified that he had been found guilty and fined
$300. He neither appealed the decision nor paid the
fine within the 30 days alloted him. On October 27,
1972, Bragg was notified that his membership was
"suspended."
According to testimony credited by the Adminis-
trative Law Judge, Bragg went to the hiring hall to
pay his dues and sign the out-of-work list on August
29, 1972. Home, Respondent's financial secretary,
told Bragg he could not accept his dues and that it
would be futile for him to sign the out-of-work list
until he had paid the $300 fine. Bragg further
testified that when he returned to sign the out-of-
work list on September 27, 1972, Home again told
him that he would not accept his dues or let him sign
the out-of-work list until he paid the $300 fine.
On February 28, 1973, Bragg filed charges against
Respondent at the Board's Regional Office and went
to the hiring hall and signed his name to the out-of-
work list. On March 2, 1973, Bragg returned to the
hiring hall and noticed that his name had been
crossed out. By letter dated April 13, 1973, signed by
Burlin , Bragg was notified that "you may enter the
union offices at any time during the business hours
to sign on the out-of-work list." Bragg signed the list
on April 9, 1973, and was dispatched to a job on
April 16, 1973.
We agree that, as alleged in the complaint, since
August 28, 1972, Respondent violated Section
8(b)(1)(A) and (2) by refusing to refer Bragg for
employment because of his failure to pay a fine
levied against him by Respondent. When a union
prevents an employee from being hired by refusing to
5 Radio Officers' Union [A H. Bull Steamship Co.] v. N.LR.B., 347 U.S.
17 (1954).
6 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v. NLRB,
365 U.S. 667 (1961); Millwrights ' Local Union 1102, United Brotherhood of
Carpenters and Joiners of America AFL-CIO (Planet Corporation) 144
refer him , the union has demonstrated its influence
over the employee and its power to affect his
livelihood in such a significant way that it is
presumed the effect of its action is to encourage
union membership on the part of all employees who
perceive that exercise of power.5 However, this
presumption may be rebutted, not only when the
interference with employment was pursuant to a
valid union-security clause but also when the
evidence shows that the union action was necessary
to the effective performance of its function of
representing its members.6 Thus, in cases where the
union's actions , while incidentally encouraging union
membership , are essential to its effective representa-
tion of employees no violation of Section 8(b)(1XA)
or (2) lies.
In this case the Union neither contended nor
presented evidence to show that its actions were
necessary to its effective function in representing
employees. It defended solely on the ground that
Bragg never appeared at the hiring hall or attempted
to sign the out-of-work list between the dates in
question. Its witnesses denied that they ever told
Bragg he could not pay his dues or sign the out-of-
work list until he paid the $300 fine. The Administra-
tive Law Judge discredited Respondent's witnesses
and credited Bragg. We therefore find that Respon-
dent violated Section 8(b)(1)(A) and (2) of the Act as
alleged in the complaint.
CONCLUSIONS OF LAW
1. Local 1437, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
2. Associated General Contractors of California,
Inc., Engineering and Grading Contractors Associa-
tion, Inc., and Building Industry Association of
California, Inc., are employers as defined in Section
2(2) of the Act.
3. By refusing to refer Matt A . Bragg because of
his failure to pay a fine levied against him Respon-
dent engaged in a discriminatory hiring hall practice
in violation of Section 8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2 (6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in
NLRB 798; Houston Typographical Union No. 87 (Houston Chronicle
Publishing Company), 145 NLRB 1657; Philadelphia Typographical Union
No. 2 (Triangle Publications), 189 NLRB 829 ; International Union of
Operating Engineer; Local 18, AFL-CIO, 204 NLRB No. 112.
LOCAL 1437, CARPENTERS
unfair labor practices we shall order that it cease and
desist therefrom and that it take certain affirmative
action necessary to effectuate the policies of the Act.
Inasmuch as the record indicates that Bragg was
allowed to sign the out-of-work list on April 9, 1973,
and was shortly thereafter referred to a job, we shall
order Respondent to make him whole for any loss of
earnings he may have suffered by not being allowed
to sign the out-of-work list and therefore not being
referred to jobs in proper rotation between the dates
of August 28, 1972, and April 9, 1973, in accordance
with the principles set forth in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board , hereby orders that Respondent,
Local 1437, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, Compton , California,
its officers , agents, and representatives , shall:
1. Cease and desist from:
(a) Refusing to allow Matt A. Bragg to sign the out-
of-work list or refusing to refer him for employment
in his rightful order of priority on that list for reasons
unconnected with his failure to tender and pay
periodic dues , registration fees , and initiation fees
uniformally required as a condition of acquiring or
maintaining membership in the Union, or as a
condition required for using the Respondent's
exclusive hiring hall system.
(b) In any like or related manner , restraining or
coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Notify Matt A. Bragg that it has no objection to
his signing the out-of -work list at the hiring hall and
being referred by it in his rightful order of priority.
(b) Make whole Matt A. Bragg for any loss of
earnings suffered because of the discrimination
against him in accordance with the above section
entitled "The Remedy."
(c) Post at its offices , meeting halls , and hiring halls
copies of the attached notice marked "Appendix." 7
Copies of said notice , on forms provided by the
Regional Director for Region 21, after being duly
signed by Respondent 's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places , including all
places where notices to members are customarily
posted . Reasonable steps shall be taken by Respon-
361
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to refer Matt A. Bragg for
employment in his rightful order of priority on
the out-of-work list for discriminatory reasons.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their Section 7 rights guaranteed them under the
Act.
WE WILL reimburse Matt A . Bragg for all pity
he lost as a result of our discriminating against
him when we did not dispatch him to available
jobs.
LOCAL 1437, UNITED
BROTHERHOOD OF
CARPENTERS AND
JOINERS OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5254.
DECISION
HENRY S. SAM , Administrative Law Judge: This
proceeding was heard at Los Angeles, California , on July
19 and 20, 1973, pursuant to a charge filed on February 28,
1973. A complaint which issued June 20 presents two
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues : whether Respondent Union violated Section
8(b)(1)(A) by restraining or coercing employees,' and
whether it violated Section 8 (b)(2) of the Act by unlawfully
discriminating against Matt Bragg, a journeyman carpen-
ter and member of Local 1437 since June 1968, by refusing
to refer him for employment from its exclusive hiring hall
because of his failure to pay a $300 fine levied against him
by the Union in August 1972, and by fining and
suspending him from union membership allegedly for
falsifying an employment application in 1965 when he
joined Local 710 of the Carpenters Union. Bragg joined the
Respondent Union in October 1962, then transferred to
Local 710 of the Carpenters in July 1965, and was
readmitted to membership in Respondent Local 1437 in
1968 as a journeyman carpenter .2 There are no indications
in this proceeding of racial overtones against Bragg, who is
black.
It is not contended by the General Counsel that the
contractual provisions for this exclusive hiring hall or its
general method of operation were defective but only that
its operation was discriminatory with respect to Bragg, the
Charging Party. The Respondent 's answer denied the
commission of any unfair labor practices and alleged that
from September 1972 to April 13, 1973, Bragg, the alleged
discriminatee , refused to make himself available as an
applicant for employment.
Upon the entire record , including observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by all of the parties , there are made the
following:
FINDINGS OF FACT
The Business of the Employer and the Labor
Organization Involved
It is conceded and found that:
Associated General Contractors of California, Inc.,
Engineering and Grading Contractors Association, Inc.,
and Building Industry Association of California , Inc., are,
and at all times material herein have been , associations
comprised of various employers which exist for, and do
engage in, collective bargaining for, and negotiate collec-
tive-bargaining agreements on behalf of , themselves and
their respective employer-members with various labor
organizations, including the United Brotherhood of Car-
penters and Joiners of America , AFL-CIO.
The above-named employer-members , who participate in
multiassociation bargaining, are engaged in business in
southern California as contractors in the building and
construction industry; have their principal offices and
places of business in the State of California; and furnish
services valued in excess of $50,000 to customers in the
State of California, each of whom , in turn, purchases and
receives goods valued in excess of $50 ,000 directly from
points located outside the State of California.
1 Frito Company, Western Division v. N.L R.B., 330 F.2d 458 (C.A. 9,
1964); Preiser Scientific, Inc., 158 NLRB 1375, 1376 , 1377; Frank B. Smith
d/bla Little Lump Coal Co., 144 NLRB 1499, 1500 ; Martel Mills
Corporation, 118 NLRB 618, fn. 3. Cf . The Colonial Press, Inc., 204 NLRB
No. 126.
2 When Bragg transferred from Local 710 to Local 1437 in 1968, his
I. is found , accordingly, that the said associations and
their constituent employer-members are engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act, and subject to the jurisdiction of the Board.
Respondent Union, which has approximately 500 to 600
active members , is a labor organization within the meaning
of Section 2(5) of the Act.
Background
The United Brotherhood of Carpenters constitution and
laws provide for the chartering of local affiliates such as
1437 (sec . 29), and in cities where two or more exist for
their organization into regional bodies such as the District
Council (sec. 26).
The district organizations and their constituent locals are
subject to the constitution which , inter alia, provides that
dues of members of the locals are payable on the first of
each month , but that a member "does not fall in arrears
until the end of the month in which the member owes three
months' dues" (sec. 44). Section 55 lists "offenses" for
which members of locals may be disciplined by fine,
suspension, or expulsion .3 Section 56 vests in the district
bodies jurisdiction to process and hear charges brought
against such members and provides for an appeal from
discipline imposed to the Brotherhood's general executive
board, and from that body to the Brotherhood 's general
convention , subject to a requirement , among others, that
where a fine exceeds $50 no appeal "can be entertained"
by the general executive board unless the appellant first
pays that sum to the relevant local or district body "on
account , to be held until the appeal is decided by the
General Executive Board," and that if the decision is
adverse to the appellant he pay the full amount "before a
further appeal can be taken" (sec. 57C ). A time limit of 30
days after imposition of the penalty is specified for the
filing of an appeal , and, in case of a fine in excess of $50,
an appeal must be accompanied by a receipt showing the
payment required as a condition of the appeal (sec. 57D).
Fines must be paid within 30 days after imposition to
entitle the fined member "to a privilege , rights or
donations," but this is subject to provisions governing
appeals (sec. 45).
The District Council consists of local affiliates , including
Local 710 and Local 1437, which do business in the Los
Angeles area . The locals are represented in the District
Council by delegates they elect for that purpose, and are
subject to the District Council 's bylaws . These, among
other things, prescribe the monthly dues required of
members of the locals (sec. 30 , bylaws); specify that no
member shall receive a "working card" from his local
unless "all his arrearages for dues, fines and assessments
are paid in full" (sec. 26 , bylaws), and that while at work he
carry a prescribed card "showing dues paid for the current
month" (sec. 42M , bylaws); and provide for the selection
and procedures of trial committees to hear charges against
"union book" which was examined by the financial secretary stated his dues
status , the date he originally joined Local 1437, his date of birth , and the
date when he was promoted from an apprentice to a journeyman. Both
locals are affiliated with the Los Angeles District Council of Carpenters.
3 Sec. 55, subdivision ( 13) is particularly pertinent as Bragg , the Charging
Party and alleged discriminatee , was cited for violating "The Obligation."
LOCAL 1437, CARPENTERS 363
members of the constituent locals, and, upon a finding of
guilty, to recommend the penalty to the delegates to the
District Council who have the "final decision" thereon
subject to prescribed limitations set forth in the bylaws
(secs . 34 and 36, bylaws). The procedures entitle an
accused member to charges in writing ; a hearing with
notice thereof and the right to appear in person ; reading of
the charges and arraignment thereon ; confrontation of
witnesses ; representation by counsel ; and an opportunity
for the presentation of evidence and cross -examination of
witnesses.
The Facts4
There is ample evidence that Bragg was refused job
referrals because of hostility toward him by Home,
financial secretary-treasurer, and Burlin , business repre-
sentative and dispatcher of Respondent Union.5 This
hostility was engendered by Bragg when he filed in the
spring of 1972 written charges with the District Council of
Carpenters against Burlin, the union dispatcher , alleging
that the job referral system was being operated in a
discriminatory manner and also that Burlin had discrimi-
nated against other union members by referring a member
to a job who was not present in the union hall where jobs
were being assigned . Burlin then filed a charge against
Bragg alleging he was creating dissension in Respondent
Union . Both Burlin 's and Bragg's charges were dismissed
by the executive council of the District Council. When
Bragg's charge was dismissed by Respondent , he traveled
to Washington, D.C., and voiced his complaints regarding
the discriminatory procedures of Burlin, the dispatcher,
and Home, financial secretary-treasurer, to the president
of the Carpenters International Union and other national
representatives . Bragg testified that he "tried so hard to
make it known to [these officials ] as to the dispatching
procedures of Mr . Burlin and Mr. Home and how they had
done so many men so wrong and so many of my friends
had been wronged and I have notarized publications of
that." Thereafter, Bragg was persona non grata with the
union hierarchy as evidenced by Burlin filing a written
countercharge against Bragg alleging he was "causing
dissension" in the Union.
On June 10, Bragg complained about Burlin and Home
to Gordon McCulloch , executive secretary of the Los
Angeles District Council of Carpenters and president of
the California State Council of Carpenters . McCulloch's
• All data are 1972 unless otherwise indicated.
s Home testified that in April , Bragg had called him a vile name,
whereupon Home told him to retract it, which Bragg did.
Bragg testified that he was unable to sign the register from June 20,
1972, to April 16, 1973, as he feared for his life, citing the following
incidents : On June 19, while at the union hall, Burhn warned him not to
return there if "I didn't want to be carried out feet first. " Bragg testified
that, when he went to the union hall to pay his dues on July 5, Home "told
[him ] that he had heard what Fred Burlin had told me on the 19th of June
and he wanted to reiterate that I wasn't wanted around there and it would
be in my best interests that I didn't come back.. ." Also, during a period
of time when Bragg was no longer receiving referrals , he spoke to Home on
July 5, and he testified he was intimidated and frightened because , when he
complained to Home that Home was preventing him from accepting odd
jobs by reporting him to California State Department of Employment,
Home's response , according to Bragg, was to warn him : "that ain't all we
are going to do to you. You will be damned near dead when we get through
response to his complaint, according to Bragg , was that he
"told me to go on back to the hall and be a good boy, keep
my mouth shut , and as a reminder , remember what
happened to the Yablonski's." " Because of what McCulloch
told him and threats which had been made against him by
both Burlin and Home, delineated immediately below,
Bragg testified he was so scared and frightened that he was
unable to sign the out-of-work register, as detailed later in
this Decision.6 Bragg continued that he came to the union
hall on August 29 and September 27, when he spoke to
Home who told him he could not sign the out-of-work
register until he paid a fine levied against him by the
Union, as described below.
On June 26, Burlin filed a second charge against Bragg
with the Los Angeles District Council of Carpenters,
charging Bragg with "violat[ing Sec. 55A, 13 of ] the Union
Constitution and his Obligation by falsifying his applica-
tion [for transfer to] Local 710 on May 17, 1965.."7
Although it does not appear in Burlin's written charge, it
appears that it was based on Bragg's allegedly falsely
claiming on his written application when he joined Local
710 in 1965, that he had 4 years' experience as a
journeyman, and that his birthdate was March 2, 1935,
whereas his application to join the Respondent Union in
1962 inconsistently declares he was born October 26, 1937.
A trial was held July 31, 1972, on Burlin's charges, by a
panel selected by the executive committee of the District
Council of Carpenters. Bragg was found guilty by the trial
panel and on August 28 the delegates to the District
Council of Carpenters concurred, and Bragg was notified
on August 31 that he was fined $300. He did not appeal the
decision nor pay the $300 fine within the 30 days alloted
him. Home, Respondent's financial secretary-treasurer,
testified he sent Bragg a letter on September 27, notifying
him that if the fine was not paid by October 27 "his name
will be removed from the list of membership." His union
membership was "suspended" on October 27, 1972.8
Brag, however, did not receive until August 31 the
"official notification" which was dated August 29 of the
$300 fine levied against him by the Los Angeles District
Council of Carpenters . On August 29, 2 days before he had
received this notice , he went to the hiring hall to pay his
dues and to sign the out-of-work list, at which time he was
told by Home that he could not accept his dues and that it
would be futile for him to sign the dispatch book until he
had paid the $300 fine.9
Bragg testified he was told the same thing by Home
with you." When Bragg returned to the hall on July 14 to attend a union
meeting, Bragg testified that Home said: "Don't come back to another
meeting. We don't even want you around the hall." Both Burlin and Home
denied these conversations occurred or that they ever threatened Bragg. See
fn. 10.
r See Reap. Exh. 13 , pp. 37(I), 44(L)(N), and p. 53, sec. 55, subdivision
13, which states that "violating the Obligation " may result in a member
being "fined, suspended or expelled ...." Subdivision 13, which is "The
Obligation ," is stated in United Brotherhood of Carpenters and Joiners of
America, Local # 1913, AFL-C10[ 189 NLRB at 524, to be "a promise made
in a prescribed ritual by each member of a Brotherhood Local at the time he
becomes a member, committing him, among other things , 'to abide by the
[Brotherhood's ] constitution and laws ' and to 'observe the local trade rules
of this order.' "
a Bragg testified he received a letter on October 4 from Home notifying
him that he "was no longer a member."
tl On cross-examination , Bragg testified that, although he did not receive
(Contimied)
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he returned to the hall on September 27 to sign the
register, at which time Home told him that he had made it
perfectly clear to him earlier that he would not accept dues
from him until he paid the $300 fine. When Respondent's
counsel asked Bragg on cross-examination "what was the
substance of [his] conversation with Home" on September
27, he answered:
He merely told me that he thought Fred Burlin and
himself had stated perfectly clear to me that they were
not going to accept any dues money from me and I
could not sign the out-of-work list until I had paid that
$300 fine.
Margaret Bragg, the wife of the Charging Party, testified
that due to the Union' s refusal to refer her husband to jobs
for approximately 10 months and his consequent inability
to obtain employment they went through bankruptcy
proceedings in September and their home was foreclosed in
October. The last employment obtained by Bragg through
the hiring hall was June 19, and it was not until April 16,
1973, 10 months later, that the union dispatched him to a
job.10
On February 28, 1973, Bragg signed a charge against
Respondent at the Board's Regional Office and then went
to the union hiring hall, at the suggestion of a representa-
tive of the General Counsel, and signed his name on the
out-of-work register.11 He returned to the hall on March 2,
1973, and noticed that his name which he had signed on
the register February 28, 1973, had been "crossed" out by a
line being drawn through it.
By letter dated April 3, 1973, and signed by Burlin, the
dispatcher, Bragg was notified, inter alia, "that you may
enter the union offices any time during the business hours
to sign on the out-of-work list." Bragg signed the out-of-
work list on April 9, -and was dispatched to a job on April
16, 1973, his first union referral in 10 months.
Bragg was a candidate for business agent of Respondent
Local 1437 in an election held on June 8, 1973, although he
was no longer a union member. He testified that he had
election material printed at his own expense in May, which
he distributed to members. Bragg continued that it was not
until some time later that he learned before the election
that he was ineligible to run for office upon reading at the
union hall a posted notice to members that he was not a
member of Respondent Local 1437.
-It is uncontroverted that Bragg signed the out-of-work
the Union's notification until August 31 that he was fined $300, Home
"apparently had already known" of the fine when Bragg requested of Home
on August 29 at the union hall that he permit him to sign the 6ut-of-work
list, which request Home denied.
10 Bragg testified that his attempt to obtain odd carpentry jobs during
the 10 months the Union refused him job referrals was thwarted by Home,
who not only threatened him if he did such work but also reported him to
the California State Department of Employment for accepting a job to
remodel a home on June 28. This testimony stands uncontradicted in the
record . See fn. 6.
11 Bragg testified that he asked for Home on February 28, but Home's
secretary stated he was not in , whereupon Bragg "went on and signed the
book anyhow, since no one was there ." " On cross-examination , when asked
if Home's presence or absence would have prevented him from signing the
out-of-work list, he answered : "I knew what the consequences could
possibly have been from prior dealings with Mr. Home .... You are
asking me why could Mr. Home possibly prevent me from signing the book
without doing anything physically and I am trying to tell you .... When I
list on February 28, 1973 , and that later a red line was
drawn through his signature. Bragg testified that he did not
know who drew the line through his name . It is the
testimony of Lurene Coffield, who has been secretary for
the Respondent Union, working in Home's office, that she
saw Bragg on March 2, as she stood 10 feet away from
Bragg, "walk to the Out-of-Work List . 12 He was writ-
ing.... I observed that he drew a line on the book. At the
time I did not know what the line was . . . . About five
minutes later Mr. Home came in . . . . We both walked
out"and discovered there was a red line on his name in the
book."
Albert Home, financial secretary-treasurer of Respon-
dent, denied that he ever intimidated or threatened Bragg
with grievous bodily injury "if he did not go along with the
policies and procedures of Local 1437." Home denied he
ever saw or spoke to Bragg during the months of July,
August, and September , testifying it was not until March 2,
1973, that he saw him . On that date , testified Home, he
examined the register and saw a line drawn through
Bragg's name. Home denied that it was he who drew the
line through Bragg's name.
Fred Burlin, who has been the Union's dispatcher since
July 1966, denied he ever threatened Bragg directly or
implicitly with bodily injury or death. When asked on
cross-examination if there was any "animosity" between
Bragg and him, he answered: "The only-other than he
was harassing me on , the charges he was putting against
me . . . . We had differences in the respect that he felt that
I was discriminating against him on a job."
On cross-examination by Bragg, the Charging Party,
Burlin was asked when he first learned that Bragg had
falsified his 1962 application for membership in Respon-
dent Local 1437, and a second time when he transferred in
1968 from Local 710 to Respondent Union. Burlin's
answer reads as follows:
Upon the time I received notice that [Bragg's] trial had
been held in abeyance and I was checking through and
I couldn't understand why. I came upon [Bragg's]
record and checked them out and found out that there
were wo different birthdates on [his] record . . . . I
was hecking back through the records when I received
a notice that the trial was held in abeyance and then it
dawned on me that he had been an apprentice and
dropped out of the program.... [When Burlin was
appeared for trial on [July 31 ], the trial committee told me , 'Listen, Mr.
Bragg, Fred [Burlin ] and Al [Home] are furious at you and it is best you
stay away from the hiring hall:.... They advised me to stay away from
the hall for awhile ; 'You go back after things simmer down.'. . . . I knew
because of prior occasions with Mr. Home and Mr. Burlin what they could
do to me. I could be killed and they would say that I raised a hand and it
would be self defense and there would be nothing done about it. That's how
I felt in my mind." It was elicited that Home never physically prevented
Bragg from signing the register , but, as Bragg stated , he was so prevented by
Horne's "tongue" and by "words." Bragg continued that he "felt [Horne]
could have me disposed of, shall we say ." When asked by Respondent's
counsel if he "felt" that Home would kill him , Bragg answered in the
affirmative , referring to a conversation he had with Home on July 5. See fn.
6. Home denied these assertions of Bragg.
12 Before he signed the register, Bragg attempted to pay his dues, but
Coffield refused to accept them , stating he would first have to pay the $300
fine.
LOCAL 1437 , CARPENTERS
asked what he meant by the word "dawned," he
answered : ] When I came upon the dates that he come
in as an apprentice in 1962.
When Burlin was then asked, that inasmuch as the first of
these applications was filed 10 years ago and the second in
1968, how did he remember these two incidents in 1972, he
answered: "I was on that apprentice program." When he
was again asked what impelled him to look into Bragg's file
regarding an application in 1962, when Bragg signed up for
an apprenticeship program, Burlin answered: "Upon
checking through the records when I received notice about
the trial in abeyance, it dawned on/me he had been in the
Brotherhood as an apprentice and had dropped out for
noncompliance with the apprenticeship program." When
he was asked what he meant by that, he answered: "They
have to go to school one night a week. When they don't,
they are brought up before the Board and when they don't
comply the third time, they are dropped from the
program." Bragg did not comply , added Burlin , as he did
not attend classes in 1962 and about a year and a half later
"he dropped out in 1964" of both the apprenticeship
program and Local 1437.
Burlin continued that after Bragg "dropped out," he later
reapplied for admission to the Respondent Union which
required him to file another written application, whereup-
on Bragg was readmitted to, the Union in 1965. Burlin
explained that the falsification charge had to do with the
application which Bragg made out for readmission after he
was dropped from the apprenticeship program in 1964. On
this second application which he filed in 1965 for
readmission, Burlin stated that Bragg had falsely claimed
he had 4 years' previous experience as a journeyman,
which was untrue . Burlin, however, did not state the facts
upon which he based this conclusion.
The second charge of falsification which Burlin imputed
to Bragg was that his birthdates did not correspond. This
was determined, explained Burlin, by comparing the
application that Bragg made out in 1962 when he came in
as an apprentice in Respondent Local 1437, as compared
with the birthdate he gave when he became a journeyman
member in 1965 of Local Affiliate 710 of the Carpenters
Union. Burlin recapitulated with respect to this phase of
his testimony by stating that Bragg falsified as to his
journeyman status and also by misstating the date of his
birth, namely, that one application stated he was born on
October 2, 1937, and the other application gave his
birthdate as March 2, 1935.
When Burlin was cross-examined by Bragg, he was asked
why he waited until June 1972 to prefer these falsification
charges , inasmuch as he was aware of them in 1965. Burlin
replied that he did not become a dispatcher until 1966.
When Burlin was reminded by Bragg that he had made
written application in 1968 to transfer from Local 710 to
Respondent Local 1437 as a journeyman carpenter, at
which time Bragg's application and union book were in
Local 1437's possession, and asked why, with this informa-
tion available to him, he had waited until June 1972, 4
13 See fn. 2.
14 Universal Camera Corp. v. N.LR.B., 340 U.S. 474,494-496 (1951).
365
years later, to file charges against Bragg , Burlin answered
as follows:
I am hired as a representative and as a dispatcher to
represent the Carpenters and dispatch them. I have
nothing to do with the records as a rule until something
specific comes up, which at this time this came up
.... Upon the receipt at this trial that he was held in
abeyance on the charges , I immediately got to checking
back into the trial and the dates on it . Upon this, as I
say, I realized that he came in as an apprentice and I
thought how in the world ....there is something
screwy . I started checking dates . He came into Long
Beach [Local 710] as a journeyman and he wasn't.
However, Burlin admitted that, when Bragg transferred
in 1968 from Local 710 to Respondent Union as a
journeyman , union rules required Bragg to make written
application which would have revealed these alleged
falsif}iccaations. Burlin answered that Bragg "had to get a
clearance from the Local he is in , 710. He takes his book
out with a clearance to deposit it in the Local 1437 [to
,which he is transferring]." The "book" explained Burlin,
"is a record of his name and his record and states his dues
and payment of dues. This book is taken from the Local
that he is paid up with, a clearance to go in and put in
another Local within 30 days.... They have [the
members' ] dates and birthdates in the book," including
when he joined and when he was elevated from apprentice
to journeyman . 13 Burlin concluded this phase of his
testimony and Respondent's case by stating that when the
charge, which Bragg filed against him in the spring of 1972
alleging Burlin was discriminating in job referrals, was
"held in abeyance," "I further checked them back and I
discovered on the dates that that 's when [Bragg] falsified
his application."
Resolutions of Credibility
This is a case where Bragg has been contradicted on all
the salient issues by the witnesses for the Respondent.
Nevertheless, after observing the witnesses, analyzing the
record and the inferences to be drawn therefrom, these
conflicting stories are resolved in favor of Bragg's version
which it is concluded merits belief .14 He appeared not only
to be a sincere, straightforward , and truthful witness, but
as one whose character was exemplary as evidenced by his
courage in going to Washington to plead for reform in the
referral system, knowing he would antagonize Respon-
dent's officials . This impression became a conviction when
his testimony was found to be both consistent with the
attendant circumstances in this proceeding and not
appreciably shaken by able counsel for the Respondent
who vigorously and thoroughly cross-examined him.
Although there is some variance between Bragg's affidavit
and his testimony at the trial, such differences exhibited
"no more confusion as to details than is not uncommon in
. entirely honest and reliable witnesses." 15
Witnesses are frequently demonstrably in error in parts
15 N.LR.B. v. Regal Knitwear Company, 140 F.2d 746 (C .A. 2,1944). See
N.LR.B. v. Warrensberg Board & Paper Corp., 340 F.2d 920, 922 (C.A. 2,
(Condoled)
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their testimony, but nevertheless believed by the trier
of fact in other respects . It is just such judgments that
the trier of fact must make.... It is not so unusual
for a person to be very positive-and honestly
positive-about an event as to which other evidence
shows that he cannot be right.16
On the other hand , the demeanor of Coffield and Home
while on the witness stand left much to be desired and their
recital of what occurred when it was claimed Bragg drew a
line through his name on the register was not only
improbable but also lacks plausibility and strains one's
credulity . Moreover , both of them were, at times, evasive
and displayed an inadequate memory.17
Burlin did not impress the trier of these facts as an
honest and forthright witness as he seemed not only to be
seeking to color his testimony but also to be concealing
facts. Moreover, Burlin's fragmented testimony and appar-
ent display of uneasiness when testifying, coupled with his
unresponsive and incomprehensible answers, examples of
which are cited above , as well as his ambiguous , confusing,
vague, and evasive replies to crucial questions , militates
against ascribing credence to his denial that he was
improperly motivated in preferring charges against Bragg
for alleged falsifications which occurred 7 to 10 years
before this trial and were condoned until 1972.
Burlin's enmity and hostility toward Bragg originated
when Bragg had gone to Washington , D.C., and com-
plained to officials of the International , including the
president, that Burlin operated the hiring hall job referrals
in a discriminatory manner. This was further aggravated
when Bragg preferred charges against Burlin protesting to
Respondent Union and the District Council of Carpenters,
as well as complaining to McCulloch , president of the
California State Council of Carpenters, regarding Burlin's
alleged discriminatory job referral practices . These various
actions by Bragg caused Burlin , in turn, to retaliate by
filing charges alleging Bragg was creating dissension in the
1965); Kalof Pulp & Paper Corporation, 123 NLRB 1623, 1628-29, enfd. 290
F.2d 447 (C.A. 9,196 1).
is Lozano Enterprises v. N.LRB ., 327 F.2d 814 , 816 fn. 2 (C.A. 9 , 1964).
IT Bragg's testimony that he did not draw the ]me through his name is
credited and Coffield 's assertion that she saw Bragg do so is discredited, as
it is believed her story was contrived. Although Coffield was speaking to a
union member when she alleged the incident in question occurred, this
member was not called as a witness by Respondent , because Coffield claims
she could not remember his name . Although the Union has over 500
members , she testified she recognized Bragg when he came into the hall on
March 2, and was even aware of how many months he had not been in the
union hall , yet she was unable to remember the name of the member with
whom she was conversing when Bragg drew a line through his name.
Noteworthy in this regard is the occurrence of the same situation , i.e., the
drawing of a line through a registrant 's name, in Carpenters Local 1913,
supra at 526, where Local 1913, like Respondent herein, is affiliated with the
Los Angeles District Council of Carpenters. Also significant is McCulloch,
president of this council , whom Bragg testified threatened him with serious
consequences if he continued to complain about Burlin and Home, who
was not called as a witness, to deny the threats imputed to him by Bragg and
stands uncontradicted in the record. The failure to produce not only
McCulloch who was under its control, but also the union member who was
present when it is claimed Bragg drew a line through his name , both of
whom were presumably available to testify , justifies an inference that the
evidence, if produced , would have been adverse to Respondent . Interstate
Circuit v . U S. , 306 U .S. 208 , 225-226 ; Kirby v.Talbnadge, 160 U.S . 379, 383
(1896); N.LRB. v. Waiick & Schwalm Company , 198 F.2d 477, 483 (C.A. 3,
1952); N. L.R.B. v . Oluo Calcium Co., 133 F .2d 721 , 727 (C .A. 6, 1943);
Union and falsifying his age and journeyman status. It is
found, for the reasons hereinafter explained, that the
reason for Burlin initiating these charges was a subterfuge
to conceal his real motivation, namely, to rid the Union of
Bragg because of his charging Burlin with discrimination in
job referrals, and complaining to the union hierarchy in
Washington and also to McCulloch, an official of the Los
Angeles District Council. Burlin's aim was to suppress
Bragg's protected right to protest and to punish him for
exercising this right and not because of Bragg allegedly
violating "The Obligation," a nebulous and ambiguous
charge, the meaning of which is neither clear nor pertinent
in the context of Bragg charging Burlin with discriminatory
job referrals which has no relevancy to "Me Obliga-
tion." is Such conduct, under the circumstances here
present, it would not be too unreasonable to infer, was part
of a preconceived scheme to rid the Union of Bragg, and it
is so found, for the reasons hereinafter explained.
Discussion and Conclusions'9
Section 7 of the Act provides in pertinent part that
"employees shall have the right to self-organization, to
form, join, or assist labor organizations . . . [and) to
refrain from any or all of such activities...." Clearly
encompassed within the guarantees of Section 7 is the
protected right of a union member to file, without fear of
reprisal by his union, a grievance, petition, or charge on
behalf of a dissident group alleging that its dispatcher is
discriminating in referring job applicants registered on the
out-of-work lisL20 Well-settled law establishes the principle
that it is a violation of the Act for a union to retaliate
against or punish one of its members for seeking redress of
perceived grievances or complaints concerning the manner
in which its referral system is being administered. In this
context, the mandate of Section 8(bx1XA) of the Act
which makes it an unfair labor practice for a union "to
restrain or coerce" its members "in the exercise of the
rights guaranteed in Section 7," is of prime importance in
Concord Supplies & Equipment Corp., 110 NLRB 1873, 1876; Texas Coro-
Cola Bottling Co., 146 NLRB 420, 433, fn. 14. The absence of these two
witnesses "not only strengthens the probative force" of the contention that
Burlin and Home were discriminatorily motivated, "but of itself is clothed
with a certain probative force." Paudler v. Paudler, 185 F.2d 901, 903 (CA.
5,1950), cert. denied 341 U.S. 920 (1951).
's See fn. 7.
Ie The relevant provisions of Sec. 8 of the National Labor Relations Act,
as amended (61 Star . 136, 65 Star. 601, 72 Stat. 945, 29 U.S.C., Sax. 151, et
seq. ) are as follows:
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7: Provides; That this paragraph shall not impair
the right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein; ... for the
purpose of collective bargaining or the adjustment of grievances;
(2) ... to discriminate against an employee with respect to whom
membership in such organization has been denied or terminated on
some ground other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership.
20 Radio Officers' Union of the Commercial Telegraphers Union, AFL v.
N.LRB., 347 U.S. 17; Top of Waikikb Inc. v. N.LR.B., 429 F.2d419,,421
(C.A. 9, 1970); Morrison-Knudsen v. N.LRB., 358 F.2d 411, 413-414 (C.A.
9, 1966); Local 138, International Union of Operating Engineers v. N.LRB.,
321 F.2d 130 (C.A. 2, 1963); Local 138, International Union of Operaft
Engineers (A. Cestone Company,; 118 NLRB 669.
LOCAL 1437, CARPENTERS
safeguarding these rights of union members to engage in
concerted activities looking towards redress of grievances.
Any restraint or coercion used to restrict or defeat that
right is beyond the legitimate interests of a labor
organization.21
Where the motive for union-caused discrimination is
based on grounds such as anger , enmity, or personal
hostility toward a member asserting a complaint against
union officials which is protected activity-even though
provoked by insulting or obnoxious behavior on the part of
the complaining member-this motive is nevertheless
unlawful for it also "encourages membership in [the
Union] and stands as a warning to employees that the
favor and good will of responsible union officials is to be
nurtured and sustained." 22
Thus, where a union operates an exclusive hiring hall
under a collective-bargaining agreement with employers, as
is the situation in the case at bar, and pursuant to that
agreement refused to refer a job applicant in retaliation for
his having filed an intraunion grievance against one of its
officials for alleged discrimination, such conduct is
violative of Section 8(bX2).23
Section 8(bxl)(A) and (2) makes it an unfair labor
practice for a union, operating an exclusive hiring hall
under a valid agreement requiring union membership, to
refuse to refer an employee to employment because
membership has been denied to him, or his membership
terminated for reasons "other than his failure to tender the
periodic dues and the initiation fees uniformly required as
a condition of acquiring or retaining membership," 24 it
follows that union fines and other penalties "not being
periodic dues" may not be enforced by the Union through
a threat of loss of employment 25 Thus, by denying Bragg
referrals when he repeatedly requested job assignments to
which he was entitled, because he did not pay the $300
fine, the Respondent Union violated Section 8(bX2) and
(1XA) of the Act.
When Burlin refused to refer Bragg for employment
because Bragg incurred his enmity by charging Burlin with
discrimination, he committed an unfair labor practice.26
Burlin, in turn, retaliated by preferring charges with
Respondent accusing Bragg of falsely misstating his age
and job experience in filling out certain union applications.
Bragg was found guilty by a trial board of the Union and
notified on August 31 that he was fined $300, which he
claimed he was unable to pay. Thereafter, when Bragg
attempted on several occasions to pay his dues, his tender
21 See N.L R. B. v Industrial Union of Marine & Shipbuilding Workers,
391 U.S. 418, 424 (1968).
u Local 1070 of the United Brotherhood of Carpenters and Joiners of
America (B W. Horn Company), 137 NLRB 439, 442. Accord : Lunumrs,
infra
21 Local 138, Operating Engineers v. N LR.B, supra; N.LR.B. v. A & B
Zinman, Inc., 372 F.2d 444 (C.A. 2, 1967)
24 See Radio Officers Union v. N.LR.B, 347 U.S. 17, 31-33, 41-42.
% N.L.R.B. v. Spector Freight System, 273 F.2d 272, 276 (C.A. 8, 1960),
tart denied sub nom. Local 600 Highway & City Freight Lines Dockmen &
Helpers V. NLRB, 362 U.S. 962 ; Eclipse Lumber Co, Inc, 199 F.2d 684,
685 (C.A. 9, 1960) (payment of a fine "in no event" may be made a
condition of employment). See N.LR.B. v. Fisherman & Allied Workers
Union, Local 33, 448 F.2d 255, 257 (C.A. 9,197 1) (union may not condition
employment upon payment of "reinstatement fee ')
26 Whenever mention is made hereafter of the basis for Burhn's and
Home's animosity toward Bragg , this includes , in addition to the charge of
367
was refused at different times by Burlin, Home, and
Coffield,27 who told him as recently as March 1973 that
they could not accept dues from union members who had
fines outstanding. This repeated refusal to accept Bragg's
dues tender caused him to become involuntarily delinquent
and thus ineligible for referral.
Moreover, his inability to pay the $300 fine was not a
valid reason for refusing to refer him to available jobs 28
It appears that Bragg had no trouble in obtaining
referrals from 1968, when he transferred to Respondent
Local 1437 from Local 710, until June 1972, when the
accusation of discrimination in job referrals was made by
Bragg against Burlin, who retaliated by preferring charges
against Bragg which eventuated in his being refused
referrals until he paid the $300 fine. This constituted an
unfair labor practice as it breached the wall erected by the
Act between organization rights and job opportunities,29
and, when the Union fined Bragg under the circumstances
here present, it also restrained and coerced him within the
meaning of Section 8(bXlXA), as a fine is by nature
coercive. Under Section 8(bX2), a union which has entered
into a valid union-security agreement may lawfully expel a
member because of his failure to pay dues. It may not,
however, invoke such sanctions on some other ground, as,
for example, where the member engages in concerted
protected activities, such as charging a union official with
discriminatory operation of its job referral system. Nor
may a union assign an otherwise lawful reason as a pretext
to justify discrimination based upon unlawful considera-
tions.30 If the members' expulsion results from anything
other than nonpayment of dues and initiation fees
uniformly required of members, it is a violation of the Act.
Motivation is controlling and the existence of a lawful
basis for expulsion is no defense to a union where the true
reason is a prohibited one.31
The Respondent Union contends, however, that Burlin
refused to refer Bragg, not because of animosity created
when Bragg accused him of discriminating against job
applicants but because he misstated his age and job
experience resulting in the levying of a fine which he
refused to pay, thereby making him ineligible for job
referrals. The issue thus presented is one of fact, i.e., what
was the true purpose or real motive behind the actions of
Burlin and Home in initiating charges against Bragg. 32 In
deciding the question of these two union officials' motives
in the context of the circumstances here present, reliance
discrimination in job referrals, Bragg 's complaining to International
officials in Washington , D.C., and also to McCulloch, the California state
president of the Carpenters.
27 Coffield, who was Horne's secretary, refused to accept Braggs dues
when he proffered them at the union hall on March 2, 1973.
23 N.LR.B. v. Eclipse Lumber Co., supra; N.LR.B. v. Spector Freight Co.,
supra.
29 Lummus Company v. N.L.R.B., 339 F.2d 728, 733-734 (C.A.D.C.,
1964). Accord: N.LR.B. v Local 490, International Had Carriers, Building
and Construction Laborers, 300 F.2d 328, 332 (C.A. 8, 1962).
30 See N.LR.B v Local 57, International Union of Operating Engineers,
201 F.2d 771, 775 (C.A. 1, 1953).
31 N.L.R.B. v. I.A.M., Local 504, 203 F.2d 173 (C.A. 9, 1953); N.LR.B. v.
L Ronney & Sons Furniture Co., 206 F.2d 730, 731 (C.A . 9), cert. denied 346
U.S. 937 (1953). Cf. N.LR.B. v. Wal ick, supra at 484.
32 Lummus Company v. N.LR.B., supra at 734.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may be had on circumstantial as well as direct evidence
and the reasonable inferences to be drawn therefrom.33 In
finding Respondent engaged in proscribed conduct, it was
incumbent to look behind Respondent 's defenses and
analyze the allegations of unfair labor practices against the
background of Local 1437's activities and the record as a
whole . Such analysis leads to the inescapable conclusion
that Respondent Union discriminated against Bragg in
order to discourage him from exercising his Section 7 rights
and to discourage other members from similarly doing so.
Moreover, the background of Bragg's relationship with
Respondent Union's hierarchy during 1972 and the
demonstrated animus against Bragg cannot be ignored in
seeking meaning for the Respondent's conduct 34
The sequence of events detailed above supports the
inference that Burlin's motive in filing charges against
Bragg was in retaliation for Bragg's protected activity in
filing charges against Burlin . To hold otherwise would be
tantamount to disregarding the fundamental purpose of
the Act to protect union members from retaliation for
asserting their prerogative to petition their union to redress
a grievance. The deep hostility which Burlin and Home felt
toward Bragg is evidenced by the serious threats, supra,
which they made against Bragg after he had charged them
with discriminating against members in not adhering to the
union provisions regulating the operation of the job
referral system and complaining to officials of the
International Union in Washington, D.C., and also
McCulloch, of these derelictions.35 It was shortly thereafter
that Burlin filed charges alleging that Bragg had misstated
his age and job experience in filling out various union
applications . It is not too unreasonable to infer, and it is so
found, that Burlin upon being accused of operating the
Union's hiring hall in a discriminatory manner was so
incensed that he decided to retaliate by charging Bragg
with some infraction of union provisions regulating the
conduct of members. In an effort to find some such union
rule that he could charge Bragg with having violated, the
attendant facts and circumstances herein imply that Burlin
checked the Union's records and also examined Bragg's
file which contained various applications and forms Bragg
had filed over the past 10 years since he originally became
a member of Respondent Union in 1962. In his hunt for a
discrepancy, the only inconsistency Burlin's search re-
vealed was a difference of 20 months in two birthdates on
Bragg's applications and a misstatement in 1965 of the
number of years' job experience he had as a journeyman
when he transferred to Local 710, a constituent local
affiliate of the Los Angeles Carpenters District Council.
Bragg's records, which were on file with the Respondent
and upon which Burlin based his charge of false state-
ments , were available to Burlin since 1968 when Bragg
transferred from Local 710 to Respondent Local 1437. It
was not until Bragg aroused the animosity of Burlin by
filing charges that Burlin suddenly evinced an interest in
33 Universal Camera Corp v. NLRB , supra at 488 ; NLRB v. Melrose
Processing Co., 351 F.2d 693, 698 (C A. 8, 1965).
34 Local 294, Intl. Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America (Rubber City Express), 204 NLRB No 92.
35 Home , who it is found conspired with Burlm to "get even" with
Bragg, was in charge of job referrals in the absence of Burltn.
36 See Seafarers International Union of North America AFL-CIO
searching through the Union 's files in an effort to find
something with which to square accounts with Bragg. The
only thing this quest unearthed were the two trivial
misstatements made many years before and having no
relevancy or probative value to the union trial board's
finding that Bragg violated "The Obligation," the meaning
of which is nowhere to be found in this record . Section 55,
subdivision 13 of the Union's constitution provides that
"violating The Obligation may result in a member being
fined, suspended or expelled ....In Carpenters Local
1913, 189 NLRB at page 524, an affiliate of Respondent
Union, "The Obligation" is stated to be "a promise made
in a prescribed ritual by each member of a Brotherhood
local at the time he becomes a member, committing him,
among other things, 'to abide by the [Brotherhood's]
constitution and laws' and to `observe the local trade rules
of this order.' " (See fn . 7.) Not only are these picayune
charges, after being condoned for so many years, found to
be spurious, but it is also believed that they were
pretextuous afterthoughts fabricated by Burlin, in which
scheme Home collaborated, as a means of vengeance
against a dissident, thus ridding the Union of the annoying
and irritating presence of Bragg, whom they conceived to
be an agitator . Inasmuch as the credited testimony
supports the finding that Burlin and Home 's motives were
not a lawful basis under the Act for discrimination, it is
found that Respondent violated Section 8(b)(2) of the Act.
Not only is the Respondent's contention that Bragg
refused to make himself available as an applicant for
employment without merit, but it has failed to sustain its
burden of establishing this affirmative defense . Under the
circumstances of this proceeding, it would have been of no
use for Bragg to have made the nugatory and futile gesture
of presenting himself weekly for referral at the union hiring
hall in view of the serious threats of Burlin and Home,
warning Bragg to stay away from the union hall. The law
does not require a vain act where, as here, the Respondent
Union's own conduct had rendered impossible any hope of
Bragg being referred to a job.36
The credited testimony of Bragg reveals that Burlin,
Home, and McCulloch directly and impliedly threatened
Bragg with violence and reprisals thereby intimidating him.
Such conduct is a violation of Section 8(bXIXA). Section
8(b)(1XA) was intended primarily to eliminate physical
violence, threats, intimidation, or related conduct by labor
organizations37 Where a member of a labor organization
complained , inter alia, with respect to the conduct of his
union, because the union sought to enforce a rule through
"means unacceptable ... such as violence or .. .
discrimination," such rule, the Supreme Court held, could
not be lawfully enforced .38 It is now well established that
conduct banned by Section 8(b)(IXA) includes "union
tactics involving violence, intimidation, and reprisal or
threats thereof." 39
The record in this case reveals that Burlin seemingly used
(Isthmian Lines) 202 NLRB No. 91; NLRB v. Murphy's Motor Freight,
Inc, 231 F 2d 654, 655 (C.A. 3, 1956).
37 Miami Copper Company, 92 NLRB 322
38 Scofielr4 et at. v. N.LR.B., 394 U.S 423, 430, 431 (1969).
39 N L R B v. Drivers, Chauffeurs and Helpers Local Union No. 639, IBT,
362 U.S. 274, 290 (1960).
LOCAL 1437, CARPENTERS
the referral system as a tool to discnminatorily deny job
opportunities not only to Bragg but apparently to other
members of Local 1437, not parties to this proceeding, on
whose behalf Bragg filed charges of discrimination.
Because Bragg had dared to charge Burhn with discrimina-
torily operating the job referral system, Bragg was deprived
for 10 months of the opportunity to earn a livelihood at the
carpentry trade which resulted in him going through
bankruptcy proceedings and losing his home. I am
persuaded not only that Burlin's conduct was serious, as
evidenced by Bragg's travail, but that he was "the" Union,
insofar as the operation of the referral system was
concerned, in that he used his power in that regard to
punish Bragg because he opposed him. Therefore, to those
members who, in earning a living as a carpenter, have to
reckon with Burlin's exercising control over employment,
discreteness would constrain them not to incur his
displeasure by any actions which gave the appearance of
dissidence. The inescapable effect of what occurred to
Bragg because he dared question Burlin's operation of the
referral system was to impress all union members that
Burlin was a potent force whose opposition was to be
avoided through fear of consequences for incurring his
displeasure so that members were obliged to follow his
dictates in order to preserve their opportunity for employ-
ment as most , if not all of them, observed or learned what
Bragg's fate was when he dared to question the fairness of
Burlin's job referrals. By Burlin preferring charges against
Bragg , which eventuated in Bragg being denied any
referrals to jobs for 10 months, Burlin displayed to all
members who might invite his resistance or hostility what
power he possessed and the strong measures he was
prepared to take against those who antagonized him. In the
milieu in which Burlin operated the referral system and his
economically encompassing relationship with the union
members, it is quite apparent that all applicants for job
referrals were being restrained or coerced within the
40 F. W. Woolworth Co, 90 NLRB 289, Isis Plumbing & Heating Co, 138
NLRB 716.
369
meaning of Section 8(b)(1)(A) of the Act when they were
made aware of what might happen to them if they should
oppose the union hierarchy as did Bragg.
CONCLUSIONS OF LAW
Respondent committed unfair labor practices within the
meaning of Section 8(bXIXA) of the Act when it restrained
or coerced employees in the exercise of rights guaranteed
by Section 7 of the Act. Respondent also violated Section
8(bX2) when it discriminatorily and for proscribed reasons
refused Matt A. Bragg referrals between June 20, 1972, and
April 16, 1973.
THE REMEDY
It has been found that Respondent violated the Act. It
shall be recommended, therefore, that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act. It shall also be
recommended that Respondent be ordered to pay Matt A.
Bragg for any loss of pay suffered as a result of the
coercion , restraint, and discrimination against him in
accordance with the Woolworth and Isis cases.40 It is
further recommended that Respondent reimburse Bragg
for the loss of his share of the jobs which were available
between June 20, 1972, and April 16, 1973. To this end, it
shall be recommended that Respondent give Bragg
compensatory pay sufficient in amount to make up the
difference between what Bragg earned and what he would
have earned but for such unlawful discrimination. A
suggested formula for reimbursing Bragg would be to
reimburse him for the average earnings received by a group
of representative applicants for job referrals from Respon-
dent's hiring hall during the period of time stated above41
[Recommended Order omitted from publication.]
41 Cf. Local 925, Operating Engineers, 180 NLRB 759. See Local 513,
Operating Engineers, 145 NLRB 554.