Painters Local Union No. 585

1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX • NOTICE TO ALL EMPLOYEES Pursuant to,the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act by coercively interrogating them concerning their union activities, or threatening economic reprisals in the event that the Union wins the election. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their rights to self-organization , to form, join or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America , AFL-CIO, or any other labor organization to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named or any other labor organization. THE MORSE INSTRUMENT CO., Employer. Dated-------- ----------- By------------------------------------------- (Representative ) ( Title) 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115 , Telephone 621-4465. The Brotherhood of Painters , Decorators and Paperhangers of America, Local Union No. 585, Galveston, Texas, AFL-CIO and Yndalecio Louis Narvaez. Case 23-CB-593. June 24,1966 DECISION AND ORDER On June 30, 1965, Trial Examiner Sydney S. Asher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed lim- ited exceptions to the recommended remedy, and a supporting 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 powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 159 NLRB No. 98. PAINTERS LOCAL UNION NO. 585 1363 The rulings are hereby affirmed. The Board has considered the Deci- sion, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. The Trial Examiner concluded in essence that in expelling Nar- vaez from membership in the Respondent on November 25, 1963, the members of Respondent's Trial Board were motivated "in substan- tial part" by the fact that he had filed unfair labor practice charges against the respondent. The record reveals, and we find, that Nar- vaez' filing of these charges was in fact the motivating factor for his expulsion. As found by the Trial Examiner, and in accordance with our decision in Van Camp,l we conclude that the Respondent thereby violated Section 8(b) (1) (A) of the Act. We do not, 'however, agree with the Trial Examiner's recom- mended remedial order, i.e., that Narvaez either be offered reinstate- ment retroactively upon his tender of all back dues and assessments from the date of his expulsion, or be permitted to elect to forgo retroactive reinstatement in favor of his resumption of membership upon tender of dues from the date of his reinstatement. For the rea- sons stated in our Van Camp decision, we find, in agreement with the General Counsel, that the most effective means of restoring the status quo ante is to order Narvaez' full reinstatement upon his payment of only that portion of his dues which compliance shows to be regularly allocable to the cost of certain accrued benefits, as more fully set forth in "The Remedy." THE REMEDY Having found that the Respondent has engaged in unfair labor practices we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because the Respondent unlawfully expelled Narvaez from its membership on November 25, 1963, we shall order the Respondent to reinstate Narvaez to the full membership rights in Respondent which he would have enjoyed since the date of his unlawful expulsion. Moreover, we shall order that Narvaez be reinstated, upon his request, without requiring the payment of all back dues for the period of his expulsion, except for that portion of his dues which is shown at the compliance stage to be regularly allocable to the cost of insurance premiums, pension contributions, and other welfare benefits accruing to Respondent's members, to the extent they can be reinstated retro- actively to the date of Narvaez' expulsion; to the extent that benefits such as life insurance, health and medical insurance and benefits and Cannery Workers Union of the Pacific, affiliated with the Seafarers International Union of North America, AFL-CIO (Van Camp Sea Food Co., Inc.), 159 NLRB 843. 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the like cannot be made effective retroactively for Narvaez, Respond- ent shall be required to reimburse Narvaez, with interest at 6 percent per annum, for any expenses or losses suffered because of the absence of such benefits, less the proportion of Narvaez' dues which would have been allocable to the payment of premiums for or other pur- chases of such benefits. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Paragraph 2(a) shall be changed to read as follows : [ (a) Upon application, offer to Yndalecio Louis Narvaez imme- diate and full reinstatement to membership in its organization without prejudice to any rights and privileges to which he may be entitled as of, and since, November 25, 1963, the date of his expulsion from membership, and reimburse him with 6 percent interest per annum, for any losses or expenses suffered because of the absence of certain benefits during the period of his expulsion, in accordance with the section of this Decision entitled "The Remedy." [2. The third indented paragraph in the notice shall be changed to read as follows : [WE WILL offer to Yndalecio Louis Narvaez, upon application, immediate and full reinstatement to membership in our organi- zation, without prejudice to any rights and privileges to which he may be entitled as of, and since November 25, 1963, the date of his expulsion from membership, and reimburse him with 6 percent interest per annum, for any losses or expenses suffered because of the absence of certain benefits during the period of his expulsion, in the manner required by a Decision and Order of the National Labor Relations Board.] TRIAL EXAMINER'S DECISION On January 14, 1964, Yndalecio Louis Narvaez, Galveston, Texas, filed charges against The Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 585, Galveston, Texas, AFL-CIO, herein called the Respondent. On October 28, 1964, the General Counsel' issued a complaint, to which the Respondent thereafter filed an answer. On November 17, 1964, the General Coun- sel issued an amendment to complaint and on November 23, 1964, a second amendment to complaint: Thereafter the Respondent filed an amended answer to second amended complaint. The complaint, as amended, alleges that on or about November 25, 1963, the Respondent expelled Narvaez from its membership because he filed with the Board unfair labor practice charges against the Respondent. It is alleged that this conduct violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. The answer, as amended, admits that Narvaez was expelled from membership on or about Novem- ber 25, 1963, denies that this was done because he filed unfair labor practice charges, and denies the commission of any violation of the Act. 1 The term General Counsel refers to the General Counsel of the National Labor Rela- tions Board and his representative at the hearing. PAINTERS LOCAL UNION NO. 585 1365 Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher from February 25 to March 1, 1965, both dates inclusive, at Galveston, Texas. All parties were represented and participated fully in the hearing. After the close of the hearing, the General Counsel and the Respondent each filed a brief. Both briefs have been fully considered. Upon the entire record in this case,2 and from my observation of the witnesses, I make the following: FINDINGS OF FACT A. The jurisdiction of the Board The complaint alleges, the answer admits, and it is found that the Respondent is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. The Respondent represents in collective bargaining various of its members and other persons employed by numerous employers engaged in the building and construction industry in the State of Texas, including the Painting and Decorating Contractors of America (Galveston chapter); Gene Nelson, Inc., a member of said employers' association; Todd Shipyards, Inc., of Galveston, Texas; and other employers. Gene Nelson, Inc., is and at all material times has been a Texas 'corporation having a place of business in Galveston County, Texas, where it is engaged in the business of painting and sandblasting. During the 12-month period immediately preceding October 28, 1964, it purchased goods from outside the State of Texas valued at more than $50,000, which were shipped into the State from sources out- side the State. Todd Shipyards, Inc., is, and at all material times has been, a New York corporation having a place of business in Galveston County, Texas, where it is engaged in the business of ship construction, repair, and conversion. During the 12-month period immediately preceding October 28, 1964, Todd Shipyard, Inc., purchased goods from outside the State of Texas valued at more than $50,000, which were shipped into the State from sources outside the State. In view of these facts it is clear, and I find, that Gene Nelson, Inc., and Todd Shipyards, Inc., each is and at all material times has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. In the light of the above findings I conclude that, at all material times, the oper- ations of the Respondent have affected commerce, and that it would effectuate the purposes of the Act for the Board to assert jurisdiction over the Respondent's activities .3 B. Background 1. Narvaez Narvaez is a painter, and joined the Respondent in 1942., From time to time, he held various offices in the Respondent, including an unexpired term as president. Narvaez' conduct at meetings of the Respondent was often unruly. As one wit- ness described it "he would rise to the floor and speak without permission. He would continue on with his conversation after he had been called out of order." Another witness testified "he had disrupted union meetings -at various times over a period of years ... he would get up at meetings when the Chairman ordered him to sit down. At various times, why, he would get up .... and start kicking chairs around when things weren't going his way, and the president would ask him to be seated." Sometime between 1958 and 1961, at the union hall in the presence of other members, Narvaez threatened to whip Campbell, the Respondent's pres- ident, an older man. Thomas H. Glover, a member who heard this threat, warned Narvaez that if Narvaez fought with Campbell "he [Narvaez] was going to have to fight me [Glover] first." Narvaez' relations with other members of the Respondent was sometimes less than placid. In February 1963 at the union hall, in the presence of two officials of the Respondent, Narvaez called fellow member P.: M. {Gonzales a "rat" to his face. During March of the same year; while working on a .job, Narvaez cursed fellow member H. E. Bogue, who complained about Narvaez's behavior to' an On June 15, 1965, the transcript was corrected in certain' specified. respects. $Local 138, International Union o f Operating Engineers, AFL-CIO ( Charles S. Skura), 148 NLRB 679 ; -and H. B. Roberts, et al: ( Wellman-Lord. Engineering, Inc.), 148 NLRB 674. See also Decision of Trial Examiner David London In Philadelphia-Moving Picture Machine Operators' Union, Local No. 307, I.A.T.S.E., Case 4-CB-902, issued June 11,.1965. 1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD official of the Respondent. In June 1963 Narvaez got into a heated argument with one of the Respondent's trustees 4 at the union hall and used profanity; this was overheard by Glover. And in late 1962, while on a job at Falstaff Brewing Com- pany, Narvaez threw a lunch kit at Frank Aguilar, a fellow member- of the Respondent, which incident was reported to officials of the Respondent. From about 1948 on, Hoy F. Hughes has been the Respondent's business agent, an elective job. Narvaez and Hughes did not always see eye-to-eye on union matters. For example, Hughes favored reducing the union dues of members working on an FHA pioject, but Narvaez opposed it. From time to time, Nar- vaez urged members to vote Hughes out of office, and this was known to Hughes. On a number of occasions in 1962 and 1963, in Hughes' presence, Narvaez told other members of the Respondent that in operating the Respondent's job referral system Hughes discriminated against members of Mexican descent and showed favoritism toward members of Anglo-Saxon descent. During the same years Narvaez accused Hughes, to Hughes'. face, of accepting bribes from contractors. Narvaez's relationships with his various employers were not always happy. He worked at Falstaff Brewing Company for about a month in the fall of 1962. Dur- ing that period Jesse A. Roege, Falstaff's construction superintendent, complained to M. D. Wright, the Respondent's steward on the job, that there were "too many complaints . . . from the other painters about Mr. Narvaez's activities" and that Narvaez had called him (Roege) a liar. Wright reported to Hughes "that Mr. Narvaez wasn't trying to get along with the other workmen. He was very arrogant to them. He would not take orders from the foreman . . . that Mr. Narvaez had been very insulting with Mr. Roege and went so far as to shake his finger in Mr. Roege's face and call him a liar." J. D. Jordan, a foreman at Falstaff, told Hughes that "Mr. Narvaez would not do what he was told to do. He resented being told what to do and how to do it." When Hughes confronted Narvaez with these reports, Narvaez admitted that he had shaken his finger in Roege's face and called Roege a liar. In 1963 Fred Becker, personnel manager of Falstaff's local plant, called Hughes and asked him to refer three painters, but added that "they would not use Mr. Narvaez and please don't send him." Hughes testified generally that, in operating the Respondent's referral system, he experienced difficulty in placing Narvaez on jobs, and that he frequently received complaints from employers to whom he had referred Narvaez that Narvaez was an unsatisfactory workman. 2. Other members who filed charges From March 4, 1960, to April 7, 1964, both dates inclusive, four individual members of the Respondent have each filed with the Board unfair labor practice charges against the Respondent, Cases 23-CB-329, 380, 501, and 532. None of the members who filed these charges has been disciplined by the Respondent for doing so. C. Events in the fall of 1963 prior to the expulsion On October 4, 1963, Narvaez's name was on the Respondent's out-of-work list. On that date (a Friday),5 Narvaez went to the union hall and complained to Hughes about Hughes' failure to refer him to a job at Mundett Cork Company. A heated argument ensued which developed into a fight, Hughes striking Narvaez. According to Hughes "he hit at me and when he hit at me I defended myself. I swung at him . . . I hit Mr. Narvaez twice." According to Narvaez, Hughes hit him with a procelain coffee cup in his hand, flooring him, and then "stomped" him. inflicting injuries.6 On the following Monday, October 7, Narvaez went to the District Attorney's office and filed criminal charges against Hughes for aggra- vated assault ( a misdemeanor ) and aggravated assault with intent to murder -(a felony).? A Under Section 194 of the Respondent's parent International's constitution, the trustees have supervision of all funds and property of the Respondent. 6 All dates hereafter refer to the year 1963, unless otherwise noted. 6I deem it unnecessary to determine who struck the first blow, to find whether a coffee cup was employed in the scuffle, or to decide the extent, if any, of the physical harm done to either participant. 7 Hughes was apparently arrested and put under bond. A hearing was held before a justice of the peace on these charges on October 12. I consider it unnecessary to make any finding regarding the ultimate disposition of the criminal charges. PAINTERS LOCAL UNION NO. 585 1367 On October 9 the Respondent referred Narvaez to a job at Gene Nelson, Inc. He worked there that day but at the end of the workday was either laid off or discharged. For some time Narvaez had been employed by the Respondent's trustees as janitor of the union hall, a part-time job. On about October 11 the trustees dis- charged Narvaez as janitor. On October 14 Narvaez filed with the Board three unfair labor practice charges as follows: 23-CA-1696: alleging that Gene Nelson, Inc. had violated Section 8(a)(1) and (3) of the Act by discharging him on or about October 9 "because of his membership and/or activities within and in behalf of" the Respondent. 23-CA-1697: alleging that the Respondent had violated Section 8(a)(1) and (3) of the Act, as an employer, by discharging him on or about October 11 "because of his lack of good standing" in the Respondent. 23-CB-512: alleging that the Respondent "by its officers, agents and representatives" had violated Section 8(b)(1)(A) and (2) of the Act by causing Gene Nelson, Inc. to discharge him on or about October 9 in viola- tion of Section 8(a)(3) of the Act, and by unlawfully refusing to refer him for employment since October 4. On November 4 Hughes preferred charges against Narvaez with the Respondent, alleging violation of the following sections of the parent International's constitution: Section 267(2)-Violation of the oath of membership. Section 267(4)-Disloyalty to the Brotherhood. Section 267(5)-Conduct unbecoming a member of this Brotherhood. Section 267(9)-Fostering secession; creating dissension among the mem- bers; destroying peace and harmony within the Local Union. Section 267(10)-Libeling, slandering or in any other manner abusing fellow members and officers of this local union. Section 267(11)-Abusing fellow members and officers in the meeting hall, and disrupting union meetings. Section 267(13)-Engaging in activities which tend to bring the local union of this Brotherhood into disrepute, which tends to reflect upon its good' name, standing and reputation Section 289 of Constitution & Article XX-By-Laws-No member shall resort to any court or agency outside of the International Union until all forms of relief and avenue of appeal as provided by the Brotherhood Con- stitution have been exhausted. Hughes accompanied these charges with a recitation of specific conduct in which he stated Narvaez had engaged. These include: On October 14, 1963, Brother Narvaez filed charges through the N.L.R.B. against me and other officers of this Local Union and the Local Union itself. Charges which were unfounded in truth.' The charges were served on Narvaez a few days later, with notice that the trial had been set for November 25. On November 12 Hughes wrote to Narvaez, and sent a copy to an agent of the Board. His letter, in pertinent part, reads: This is to advise that you have the right and privilege of seeking employment wherever and whenever you can, and that Painters Local Union No. 585, its officers and members will in no way interfere with this right to seek employment. Further, when you are next out for employment on our "out-of-work" lisi, and a job comes in that you are qualified to perform, you will be referred to such job from this local union. On about November 14, with the approval of the Board's Regional Director, Narvaez withdrew the charges which he had previously filed in Cases 23-CA- 1696, 1697, and 512, referred to above .8 8 The General Counsel, in his brief, contends that an agent of the Board "obtained with- drawal requests in each of the three unfair labor practice charges in eochenge for Hughes agreeing to supply the, letter to Narvaez dated November 12" (emphasis in original). I consider the matter immaterial to the issue herein , and decline to make any such finding. 1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Narvaez' expulsion Narvaez' trial took place as scheduled on November 25'. The presiding officer was C. J. Ashworth, the Respondent's president . The other members of the trial board were Thomas H. Glover, the Respondent's vice president, Harry D. Stehr, the Respondent's recording secretary, Florence Vanecek, the Respondent's acting treasurer, and James G. Collins, a member of the Respondent. Vanecek took minutes, but not verbatim. After certain preliminaries, Narvaez was asked how he pleaded to the charges, and he replied not guilty. Hughes asked Narvaez if he (Hughes) had ever dis- criminated against him , and a discussion ensued regarding why Narvaez had not been referred to the Mundett Cork job. Stehr asked Narvaez: "Do you admit you filed unfair labor practice charges against Brother Hughes, these officers and this local?" Narvaez replied in the affirmative. Hughes then suggested that there be no further discussion of the charges filed by Narvaez with the Board, pointing out that Narvaez as a citizen had the right to do so.9 Hughes asked Narvaez if he (Hughes) had ever had him discharged, and there followed a discussion regard- ing a job at American Industrial Painters, to which Hughes had referred Narvaez on October 21. This led to a statement by Narvaez regarding the circumstances under which he had been discharged by Gene Nelson, Inc., and a reply by Hughes as to what report he (Hughes) had received from Gene Nelson, Inc. Narvaez remarked that any citizen has a right to seek relief, and he did what he thought was best for himself, to which Stehr responded: "Yes and you had procedures to follow under the Constitution and Bylaws if you wanted to take them, which are there to protect members." Next, Ashworth asked Narvaez whether he (Ashworth) had ever kept him from a job. Narvaez replied that he assumed Ashworth was referring to the charges he (Narvaez) had filed with the Board, and that he had filed charges against Hughes, not the other officers. Ashworth stated: "Well, I couldn't understand these charges against the officers. I personally don't even know Gene Nelson. How could I tell him to lay any man off?" Glover then asked Narvaez: "Why did you file against the officers? Why didn't you come to the Executive Board for help?" Narvaez answered that he "didn't have any faith in the Board." Glover replied that as long as he was an officer of the Respondent he "would make a fair decision." Hughes again asked Narvaez whether he (Narvaez) recalled any instance in which Hughes had discriminated against him. Narvaez answered that he could not prove it, ,and admitted that certain contractors would not work him and that he was not qualified to do paperhanging and certain other specialized work. Ashworth inquired if Narvaez were in good standing, and Hughes replied in the affirmative. The trustees were then called in, and each stated that Narvaez had been discharged as janitor because he had failed to perform his duties in a satisfactory manner., At this point the trustees, Hughes, and Narvaez were excused from the room. However, shortly after this Hughes was called back into the room and asked by Glover whether he (Hughes) considered Narvaez a qualified painter; Hughes replied in the negative and was excused again. Collins then moved that Narvaez be found guilty of the first seven charges and be expelled and that the eighth charge be dropped. Glover seconded the motion. Glover, Stehr, Vanecek, and Collins voted in favor of the motion; Ashworth abstained. On November 27 Stehr, as secretary of the Respondent, mailed to Narvaez a notice which reads as follows: 10 In regards to your trial which was held on Monday, November 25, 1963, in accordance with the Constitution and By-Laws of this Brotherhood, the fol- lowing is the decision of the Trial Board: "Motion was made, seconded and carried unanimously that member is guilty as charged and that he be expelled from the Local Union." • 9 This finding of fact is based upon Hughes' testimony, corroborated by Vanecek's min- utes. Narvaez denied that Hughes made such a statement during the trial. While Narvaez impressed me as a truthful witness generally , in this instance I consider his testi- mony inaccurate. - 10 No seal was affixed to the notice At the hearing, Narvaez stated that "any letter that's supposed to be official . . . must have the seal of the organization," and argued that documents lacking the seal ""don't mean a thing." • I decline to rule on this matter of intraunion procedure. PAINTERS LOCAL UNION NO. -585 • • 1369 For reasons not here material, Narvaez did not actually read this notification for some period of time. On December 6 the Respondent refused to accept dues from Narvaez. On December 27 the Respondent wrote to- its parent International as follows: This is to advise that a trial was held on November 25, 1963, for charges preferred against Brother Y. L. Narvaez, card No. 138082 by Brother H. J. Hughes, card No. 195279. - The decision of the Trial Board was as follows: - "Member guilty as charged and voted unanimously that member be expelled from the Local Union." On January 13, 1964, Narvaez read the notice which Stehr had mailed to him on November 27. On the next day, January 14, 1964, Narvaez filed the instant charges. E. The issue The General Counsel does not contend that -the Respondent discriminated against Narvaez with regard to referral or employment. Nor does he maintain that Nar- vaez' expulsion affected any employer-employee relationship.ll Thus, discrimina- tion because of membership or nonmembership in a labor organization is not in- volved.12 The issue here is neither the truth of the unfair labor practice charges filed by Narvaez with the Board, nor what motivated Hughes to prefer charges against Narvaez,13 nor whether the Respondent's trial board afforded Narvaez a fair and impartial hearing.14 The sole issue before me is whether the General Counsel has shown by a fair preponderance of the evidence that the vote of the members of the trial board to expel Narvaez from membership in the Respondent was motivated in substantial part by the fact that Narvaez had previously filed with the Board unfair labor practice charges against the Respondent. On this issue, the General, Counsel contends that, notwithstanding the trial board's vote which on its face ,did not embrace Narvaez' unfair labor practice charges, "the real and only motivation for finding Narvaez guilty and expelling him from his union was because he filed charges with, the National Labor -Relations Board" (emphasis in original). Conversely, the Respondent, in its brief, urges "that the expulsion of Narvaez was not related to his filing of Board charges against [the] Respondent " 15 u On October 21, 1963, after Narvaez had filed with the Board unfair labor practice charges against the Respondent in Cases 23 -CA-1697 and 23-CB-512, Hughes referred Narvaez to a job with American Industrial Painters . On November 15, 1963, after Hughes had preferred charges against Narvaez, Hughes referred Narvaez to a job at Todd Ship- yards, Inc., where he remained continuously employed through March 31 , 1964, long after his expulsion from membership in the Respondent. " The Respondent urges in its brief as an alternative position that "a necessary factor ,or element to show a violation of the Act is proof that [the] Respondent in enforcing-its rule entered the area of employer-employee relationships." However the Board has held to the contrary In the so-called S'kura case. Local 135, International Union of Operating Engineers, AFL-CIO, supra. See also H. B. Roberts, supra. 1s The Respondent, in its brief, notes: "Candidly, Hughes admitted that one of the, reasons he filed charges against Narvaez was because Narvaez filed unfair labor practice charges against [the ] Respondent with the Board." 14 In his brief the General Counsel comments with respect to certain charges of miscon- duct allegedly leveled against Narvaez by members of the trial board for the first time after Narvaez had left the room : "Narvaez was never confronted with any such charges In his presence, nor was he given an opportunity to respond to same." However, r do not conceive it to be my function , or that of the Board , to act as an appellate tribunal sitting to determine the fairness of the trial board's conduct. - • 'b During the hearing the General Counsel introduced into evidence Vanecek's minutes of the proceedings before the trial board, which contain corroboration of the. testimony of several of the Respondent's witnesses that the trial board did not vote to find,Narvaez guilty on the eighth charge ( resort to the Board). In its brief` the Respondent states: "The General Counsel . Is bound by such documentary evidence and cannot impeach it. The effect of [the minutes] is to disprove the' General Counsel 's case. Therefore, the complaint should be dismissed." I do not agree with the last two quoted sentence's, ;because I think they misconstrue the General Counsel's position: In my opinion ; the Gen- eral Counsel has not attempted to impeach Vanecek's minutes either as to authenticity or accuracy. On the contrary, as I view the General Counsel's position , he recognizes in his brief that "The Trial Board voted unanimously that Narvaez was guilty on 7 charges"- the exact wording of the minutes. But he urges that the formal - adoption of this motion by the trial board was merely a pretext to mask the trial board 's true motive.: , ., 1370 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD F. Conclusions Both Glover and Stehr denied that the fact that Narvaez had previously filed with the Board unfair labor practice charges against the Respondent had any influence whatsoever on their vote to expel him.ls Such generalized and conclu- sionary 'self-serving testimony, incapable of direct contradiction, is in my opinion unconvincing and entitled to little weight.17 It is to the proceedings before the trial board that we must turn for guidance in determining what was in the minds of the trial board members when they voted to expel Narvaez. , Even after Hughes suggested that the trial board should not consider the unfair labor practice charges filed with the Board by Narvaez, the trial board's members continued to conduct themselves in a manner which indicates that they ignored this suggestion. The questioning of Narvaez and other witnesses during .the hearing concentrated heavily upon the truth or falsity of the unfair labor practice charges. This is the logical explanation, for example, of Ashworth's in- quiry if Narvaez were in good standing, followed by calling in the trustees to explain why they had discharged Narvaez as janitor. (The charges in Case 23- CA-1697 allege that he was discharged "because of his lack of good standing.") Any questions or remarks directed at Narvaez by Ashworth and Hughes regarding possible discrimination against Narvaez in job referrals also indicate interest in the unfair labor practice charges. (The charges in Case 23-CB-512 allege that the Respondent unlawfully refused to refer Narvaez on or after October 4.) Sig- nificantly the discussion between Narvaez and Hughes concerning the reason why Gene Nelson, Inc., discharged Narvaez also related to the charges in Case 23- CB-512. Finally Ashworth's statement that he could not understand "these charges against the officers" (in Case 23-CB-512 the charges allege that the Respondent "by its officers, agents and representatives" violated the Act); Glover's question to Narvaez "Why didn't you come to the Executive Board for help?"; and Stehr's reminder that Narvaez "had procedures to follow under the [union] Constitution and By-Laws" indicate a concern with Narvaez's conduct vis-a-vis the charges which he had filed with the Board. In sum, I am convinced that the members of the trial board exhibited a deep resentment of Narvaez' resort to Board proceedings due, in part, to their conviction that Narvaez' unfair labor practice charges were untrue, indeed constituted deliberate falsehoods, and in part to his failure to exhaust his available intraunion remedies. It is true that in four other instances members who had filed unfair labor prac- tice charges against the Respondent escaped punishment. But that fact does not conclusively establish the purity of the Respondent's motives in Narvaez' case. In view of the timing of Narvaez' expulsion and the deep resentment shown by the trial board members against Narvaez during his hearing because he filed unfair labor practice charges, I do not believe that the members of the trial board completely erased all consideration of that fact from their minds when they acted on the expulsion. I therefore am convinced that the vote to drop the eighth charge was a mere pretext to cloak the fact that the members of the trial board did, in reality, take into consideration the eighth charge and the evidence regarding it. I conclude that the • General Counsel has established, by a fair preponderance of the evidence, that the members of the trial board, in voting to expel Narvaez from membership in the Respondent, were motivated in sub- stantial part by their belief (whether right or wrong) that the unfair labor practice charges filed by Narvaez contained statements known by him at the time to have been false and/or their desire to enforce the Respondent's rule prohibiting resort to courts and agencies until after all intraunion remedies have been,exhausted. As Narvaez was an employee,18 and as one of the reasons for his expulsion was unlawful under the Act,19 it follows that the Respondent violated Section 8(b)(1) (A) of the Act by illegally expelling him from membership. 1e Neither Vaneeek nor Collins testified. 11 The testimony of Stehr generally was evasive and contained self-contradictions. He did not impress me as a candid witness. >e The broad definition of "employee" in Section 2(3) of the Act includes any member of the working class generally. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177; Briggs Manu- facturing Company, 75 NLRB 569, 570; and Texas Natural Gasoline Corporation, 116 NLRB 405, 406, enforcement denied 253 F.2d 322 (C.A. 5). 19 Where conduct is motivated in part by a reason unlawful under the Act and in part by lawful reasons, there is nonetheless a violation of the Act. N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2) ; and N L R.B. v. Hudson Pulp & Paper Corpo- ration, 273 F.2d 660, 662, 666 (C.A. 5). PAINTERS LOCAL UNION NO. 585 1371 Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 585, Galveston, Texas, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 2. Yndalecio Louis Narvaez is, and at all material times has been, an employee within the meaning of Section 2(3) of the Act. 3. By expelling Yndalecio Louis Narvaez from membership in its organization because he filed unfair labor practice charges against it, the Respondent has restrained and coerced and is restraining and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and con- stitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, I make the following: RECOMMENDED ORDER It will be recommended that the Respondent cease and desist from the unfair labor practices found and from any like or related manner of restraint or coer- cion of employees in the exercise of the rights guaranteed in Section 7 of the Act. Affirmatively it will be recommended that the Respondent offer to Yndalecio Louis Narvaez immediate and full reinstatement to membership in its organiza- tion without prejudice to any rights and privileges to which he would have become entitled as of and since November 25, 1963, the date of his expulsion from mem- bership. The Respondent urges that it should be permitted to condition its offer of reinstatement upon the payment by Narvaez "of all back dues and lawful assessments." At first the General Counsel agreed with this position. But in his brief the General Counsel maintains that the offer to reinstate Narvaez should be unconditional, and that Narvaez should not be required to pay any back dues or assessments. In this respect, I agree with the Respondent. It seems to me that to require the Respondent to reinstate Narvaez to full membership, retroactively, without requiring him in return to fulfill his obligations as a member would in effect penalize the Respondent for having committed an unfair labor practice 2c Accordingly, it will be recommended that the offer to reinstate Narvaez retro- actively shall be conditioned upon his tendering to the Respondent in cash, within 60 days after receipt of the offer of retroactive reinstatement, a sum of money equal to all dues and assessments uniformly required of the Respondent's mem- bers from November 25, 1963, the date of Narvaez's expulsion from membership, to the date of the offer of reinstatement. However, as Narvaez tendered dues to the Respondent during December 1963 and the tender was refused, he will not be required to pay any interest on the back dues and assessments. Alternatively, should Narvaez elect,' within 60 days after receipt of the offer of reinstatement, to forgo the retroactive feature, he may be reinstated to full current membership upon tender by him of only the current month's dues. It will also be recommended that the Respondent post appropriate notices. it is accordingly recommended that The Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 585, Galveston, Texas, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Expelling employees from membership in its organization, or taking other disciplinary action against them, because they file with the Board unfair labor prac- tice charges against it, or otherwise participate or cooperate in Board proceedings. m "The power to command affirmative action is remedial , not punitive." Con8olidated Edison Co. of New York, Inc. v. N.L.R.B., 305 U.S. 197,236. 1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner restraining or coercing employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Yndalecio Louis Narvaez immediate and full reinstatement to mem- bership in its organization without prejudice to any rights and privileges to which he may be entitled as of, and since, November 25, 1963, the date of his expulsion from membership, under the conditions outlined above. (b) Promptly upon receipt from the Regional Director for Region 23 of copies of the attached notice marked "Appendix," 21 cause such copies to be signed by a representative of the Respondent and posted in conspicuous places at its offices and meeting places in Galveston, Texas, including all places where notices to members are customarily posted. (c) Maintain such posting for 60 consecutive days, during which reasonable steps shall be taken to prevent such notices from being altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision,22 what steps it has taken to comply herewith. "In the event that this Recommended Order is adopted by the Board , the words "the Recommended Order of a Trial Examiner" shall be stricken from the notice , and the words "a Decision and Order" shall be substituted therefor . If the Board's Order is enforced by a decree of a United States Court of Appeals , the words "a Decision and" shall be stricken from the notice and the words "a Decree of the United States Court of Appeals, Enforcing an" shall be substituted therefor. 22 In the event that this Recommended Order is adopted by the Board , the words "20 days from the receipt of this Decision" shall be stricken, and the words "10 days from the date of this Order" shall be substituted therefor. APPENDIX NOTICE TO ALL MEMBERS OF THE BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL UNION No. 585, GALVESTON, TEXAS, AFL- CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board,' and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT expel employees from membership in our organization, or take other disciplinary action against them, because they file with the National Labor Relations Board unfair labor practice charges, against our organization, or otherwise participate or cooperate in the proceedings of said Board. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act. WE WILL offer to Yndalecio Louis Narvaez immediate and full reinstate- ment to membership in our organization, without prejudice to any rights and privileges to which he may be entitled as of, and since, November 25, 1963, the date of his expulsion from membership. _ THE BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL UNION No. 585, GALVESTON, TEXAS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone Capitol 8-0611, Extension 296. .