Carpenters Local Union No. 22

CARPENTERS LOCAL UNION NO. 22 Carpenters Local Union No. 22, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (William Graziano, d/b/a Graziano Construction Company) and Bernard Shanley . Case 20-CB-2280 January 24, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 17, 1971, Trial Examiner Leo F. Lightner issued the attached Decision in this proceeding. There- after, the General Counsel filed exceptions and a sup- porting brief, and the Respondent Union filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in the light of the exceptions and briefs and has decided to affirm only such of the Trial Examiner's rulings, findings, and conclusions as are consistent with the following. The issue in this case is whether the Respondent Union cited and fined Shanley because he violated cer- tain legitimate union rules, as the Trial Examiner found, or whether, as the General Counsel contends, the Union, utilizing the rule violations as a pretext, cited and fined Shanley because of Shanley's intraunion activities in opposition to the incumbent union officials. Contrary to the Trial Examiner, we agree with the General Counsel's contention. On the basis of the facts as found by the Trial Exam- iner and set forth in his Decision, it is clear that Shanley not only opposed the incumbent officials, including Business Manager O'Sullivan, for the position of dele- gate to the International convention, but that Shanley's conduct was in large part responsible for the fact that the results of the initial election for delegate were nul- lified and a second election required. It is also clear that Shanley's conduct was resented by both O'Sullivan and his assistant, McPartland, as evidenced by the state- ments which they made to Shanley during the course of the events here involved; particularly O'Sullivan's statement to Shanley that O'Sullivan was running the election and Shanley should leave him alone; McPart- land's threat to have Shanley kicked out of the Union if he persisted in his activities; and O'Sullivan's state- ments to Shanley that he was going to bring him up on charges, that Shanley had a lot of proving to do, and that O'Sullivan would "think of something" to charge him with. 1 In his concluding findings, the Trial Examiner found evidence of pretext only in the timing of the filing of the charges against Shanley and in O'Sullivan's remarks that he would think of something to charge Shanley with. He concluded that this evidence was insufficient, in the light of other evidence that Shanley had in fact violated union rules, to establish the General Counsel's pretext theory. In our opinion, however, this analysis gives insufficient weight to the Trial Examiner's own factual findings concerning O'Sullivan's irritation at Shanley's conduct in connection with the initial ballot- ing, McPartland's threats at the time of Shanley's efforts to secure signatures on a protest petition, and the fact that no inquiry was made with respect to one of the matters covered in the charges against Shanley until after O'Sullivan had told Shanley he would think of something to charge him with. The latter statement by O'Sullivan is virtually an admission by Respondent of the pretextual nature of the charges. In view of all these circumstances, and even assum- ing as the Trial Examiner found that Shanley violated the Union's rules as charged, we are satisfied that the General Counsel has established by a preponderance of the credible evidence that Shanley's violation of the union rules was utilized as a pretext to disguise the true motivation for the Union's reprisal against Shanley and that Shanley's fines were motivated in substantial part by his conduct with respect to the intraunion election. Our finding as to motive requires consideration of the General Counsel's contention that a union, in levy- ing a fine so motivated, violates Section 8(b)(1)(A) of the Act. We are satisfied that this contention has merit. It is by now well settled that although Section 8(b)(1)(A) "leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest" and "impairs no policy Congress has imbedded in the labor laws,"' it does not permit enforcement, by fine or expulsion, of a rule which "invades or frustrates an overriding policy of the labor laws.... "Z Cases decided to date, holding that union enforcement of a rule by fining a member violates Section 8(b)(1)(A) of the Act, have involved the protection of important policies em- bodied in the Act itself, such as the right of employees to gain access to the processes of the Board to seek to remedy union conduct violative of the Act,' or the right of employees who sought to observe contractual re- sponsibilities to protection against union efforts to pun- ish them for refusing to breach such responsibilities.4 The policies which the Union's conduct here seeks to Scofield v NL.R B, 394 U S 423, 430 ' Id at 429 NLR.B. v. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U S. 418 See also Local 138, International Union of Operating Engineers, AFL-CIO, 148 NLRB 679. ' Local 12419, International Union ofDistnct 50, United Mine Workers ofAmerica (National Grinding Wheel Company, Inc), 176 NLRB No 89 195 NLRB No. 5 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frustrate are embodied in the Labor-Management Re- porting and Disclosure Act of 1959, rather than specifi- cally in the National Labor Relations Act. This differ- ence does not, however, impel a different conclusion. As the above-quoted language from the Supreme Court's decision in Scofield implies, the Board is charged with considering the full panoply of congres- sional labor policies in determining the legality of a union fine.' Here the Union, in the guise of enforcing internal discipline, has sought to deprive its members of the right, as guaranteed by the Labor-Management Reporting and Disclosure Act, to participate fully and freely in the internal affairs of his own union. A fine for that purpose not only in our opinion fails to reflect a legitimate union interest but rather in fact impairs a policy that Congress has imbedded in the labor laws. For these reasons, we conclude that the Respondent Union's conduct in fining Shanley because of his in- traunion activity violated Section 8(b)(1)(A) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occur- ring in connection with the operations of the Employer described in section I of the Trial Examiner's Decision, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. THE REMEDY Having found that the Respondent engaged in and is engaging in certain unfair labor practices, we shall or- der that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully cited and fined Bernard Shanley the sum of $75 because of his intraunion activity, we shall order that said fine be rescinded, that all references and other evidence in Re- spondent's records and files relating to the proceeding against Shanley be expunged, and that Shanley be reim- bursed for any, sums paid toward said fine with interest ' Teamsters Local 663, a/w International Brotherhood of Teamsters, etc. (Continental Oil Company), 193 NLRB No 84 Cf. Southern Steamship Company v. NL.R B, 316 U S 31, compare Local 1976, United Brother- hood of Carpenters, etc. [Sand Door & Plywood Co.] v N.L.R.B., 357 U.S 93 We are not unmindful of the fact that the Department of Labor, and not this Agency, is directly charged with the administration of the requirements of the Landrum-Griffin Act We traditionally respect this differentiation. See, e g, Desert Palace, Inc., d/b/a Caesar's Palace, 194 NLRB 140, fn 5 In this area, however, as we understand it, we have been specifically charged by the Supreme Court with the duty of determining the overall legitimacy of union interests , and must therefore take into account all Federal policies and not limit ourselves to those embodied in our own Act. thereon at the rate of 6 percent per annum from the time said sums were paid. Upon the basis of the foregoing and the entire record in this proceeding, the Board rejects the Trial Ex- aminer's conclusion of law number 3 and instead makes the following: ADDITIONAL CONCLUSIONS OF LAW 3. By citing Bernard Shanley to appear before the trial board of the district council, on or about July 10, 1970, and by the district council's action in disciplining Bernard Shanley by fining him, the Respondent has restrained and coerced Bernard Shanley in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Carpenters Local Union No. 22, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Citing or threatening to cite any member to ap- pear before a trial board, or fining or threatening to fine any member, because of his lawful activities in connec- tion with an intraunion election. (b) In any like or related manner restraining and coercing members in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Revoke and rescind the fine levied upon Bernard Shanley because of his intraunion activities and reim- burse Bernard Shanley in the manner set forth in the section hereinabove entitled "The Remedy." (b) Completely expunge and excise from its records all reference and other evidence in its files to fine and the threat to fine Bernard Shanley because of his in- traunion activities and notify Bernard Shanley, in writ- ing, of such action. (c) Post at its offices and meeting places in and about San Francisco, California, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 20, after 6 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " CARPENTERS LOCAL UNION NO. 22 being duly signed by Respondent 's authorized repre- sentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Forward signed copies of said notice to the Re- gional Director for Region 20 for posting by William Graziano, d/b/a Graziano Construction Company, if willing, at its construction sites in and about San Fran- cisco, California, at locations where notices to em- ployees are customarily posted. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER FANNING, dissenting: The Trial Examiner found that Shanley was in fact disciplined because of his violations of the union rules, and that such violations were not utilized as a pretext to discipline him for other reasons . I would not reverse the Trial Examiner on this pretext finding and would, therefore, dismiss the complaint in its entirety without reaching the further legal issue decided by my col- leagues. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cite or threaten to cite any mem- ber to appear before a trial board of our Local No. 22 or of the district council because he participates or has participated in the internal affairs of his union. WE WILL NOT fine or threaten to fine any of our members because they participate or have par- ticipated in the internal affairs of his union. WE WILL revoke and rescind all fines levied upon Bernard Shanley for participating in the in- ternal affairs of our union. WE WILL reimburse Bernard Shanley for any sums paid toward fines levied upon him with inter- est at the rate of 6 percent per annum from the dates when said sums were paid. WE WILL completely expunge and excise from our records all reference and other evidence in our files to the fines and the threat to fine Bernard Shanley and will notify him, in writing , that such action has been taken. CARPENTERS LOCAL UNION No. 22, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) 3 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 compliance with its provisions may be directed to the Board's Office, 13018 Federal Building , Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Tele- phone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner : This proceeding was heard before me in San Francisco , California, on March 30 and 31, 1971, on the complaint of General Counsel, as amended, and the answer, as amended, of Carpenters Local Union No . 22, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein referred to as Respondent.' The complaint alleges violations of Section 8(b)(1)(A) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, (61 Stat. 136; 65 Stat. 601; 73 Stat. 519; 29 U.S.C. Sec. 151, et seq.), herein called the Act. The oral argument of Respondent and briefs filed by the General Counsel and Respondent have been carefully considered. Upon the entire record,' and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE EMPLOYER William Graziano, herein referred to as Graziano, at all times material, has been an individual proprietor, d/b/a Graziano Construction Company and d/b/a Acme Carpen- ter and Cabinet Company , engaged in the commercial build- ing and construction industry, as a general contractor in San Francisco, California. During the year preceding the issuance of the complaint, a representative period, Graziano per- formed services valued in excess of $50,000 for various iden- tified businesses and Federal government agencies, all located in the State of California. These businesses include: Crocker Citizens National Bank, a national banking association, which purchased securities valued in excess of $50,000 di- ' A charge was filed on July 13 and an amended charge was filed on December 10. All dates herein are 1970, except where otherwise noted A complaint was issued on January 4, 1971, an amended complaint was issued on March 12, 1971, an amendment to the amended complaint was issued on March 15, 1971, and the complaint was further amended by what is styled a second amended complaint at the opening of the hearing herein. ' The obvious errors in the transcript are hereby corrected 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rectly from the United States Government; A. Levy and J. Zentner Co., a California corporation, engaged in the whole- sale distribution of fresh food products, with an inflow of goods, valued in excess of $50,000, from suppliers located outside the State of California, during the same time period; Union Offset, a California corporation, engaged in retail and wholesale commercial printing with gross revenues in excess of $500,000 from sales of its services to customers located in the State of California, and with an inflow of goods originat- ing in states other than the State of California in the amount of $10,000 during said period; Konel Corporation, a Cali- fornia corporation, and a manufacturer and wholesale dis- tributor of marine electronic equipment which shipped goods valued in excess of $50,000 to customers located outside the State of California, during said period; United Air Lines, a common carrier, licensed by the Civil Aeronautics Board, with offices and terminals at the San Francisco International Airport, which received in excess of $50,000 for services per- formed in transporting cargo by air from said facilities to destinations in States other than the State of California, dur- ing said period; MJB Company, a California corporation, engaged in the processing of coffee products, shipped goods valued in excess of $50,000 directly to customers located outside the State of California, during said period; SCM Cor- poration, a New York corporation, with a place of business in San Francisco, California, engaged in the wholesale distri- bution of business machines, with an inflow of goods valued in excess of $50,000, during said period; and branches of the United States Government identified as General Services Ad- ministration, United States Forest Service, and United States Department of Agriculture. The complaint alleges, the answer denies, and I find that Graziano is, and at all times material has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II RESPONDENT IS A LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent, at all times material , is and has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Issues The principal issues raised by the pleadings and litigated at the hearing are whether the Respondent engaged in conduct in contravention of the provisions of Section 8(b)(1)(A) by: (a) on or about July 10, 1970, disciplining Bernard Shanley, an employee of Graziano, by citing him to appear before the trial committee of District Council for engaging in protected, concerted activity in protesting irregularities in Respondent's internal union elections; or (b) on or about September 14, 1970, by the District Council disciplining employee Bernard Shanley by fining him for engaging in protected, concerted activity in protesting irregularities in Respondent's internal union elections. Respondent, by answer, denies the commission of any un- fair labor practice. Agency The complaint alleges, the answer admits, and I find, that at all times material Anthony De Young, president, Clement Clancy, recording secretary, Joe O'Sullivan , financial secre- tary and business representative, and James McPartland, as- sistant business representative, were the duly elected or ap- pointed officials holding each of the described offices. The complaint alleges, the answer denies, and I find, that said individuals were a ents of the Respondent, within the meaning of Section 2(13) of the Act, to the extent this record reflects their activities, which I find it reasonable to infer were in fulfillment of their normal course of assigned duties. The complaint alleges, the answer denies, and I find that Respondent is and at all times material has been, a member of Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, herein identified as District Council.' The complaint alleges, the answer denies, and, for reasons explicated infra, I find it unnecessary to determine if the District Council is in fact an agent of Respondent within the meaning of Section 2(13) of the Act. Background The facts set forth under this section are undisputed. Bernard Shanley, Charging Party herein, has been a jour- neyman carpenter for 21 years. He was a member of Re- spondent Local for a brief period during 1959 and 1960, then for a lengthy period commencing in the latter part of 1963 and continuing until an unspecified date, inferentially after the occurrence of all of the events herein. He asserted he was not a member at the time of his testimony. Each 4 years, four members of Respondent are elected to the office of delegate to the International convention. Such an election was scheduled for May 8, 1970. Eleven individuals were nominated, with four to be elected. Shanley identified O'Sullivan, Clancy, and McPartland as included among the nominees. Shanley also identified other members nominated from the floor as Robertson, Shallebaum, O'Shea, and Shan- ley. The election was scheduled to be conducted from 7 a.m. to 5 p.m. Shanley asserted that he and O'Shea arrived at the balloting site, with mechanical counters, prior to 7 a.m., but the balloting had already commenced. Shanley asserted his counter indicated a total of 347 members voting, while the ballot box revealed a total of 448 ballots. Shanley heard O'Sullivan request members to wait to assist in the counting of ballots. Shanley related that he advised O'Sullivan to keep his hands off the ballots, when O'Sullivan was engaged in taking ballots out of the ballot box, assertedly because the constitution provided that no business representative or nom- inee can be part of an election committee. Shanley asserted that O'Sullivan advised "I'm running this election. Why don't you leave me alone?"4 Shanley asserted that he and O'Shea prepared a letter, addressed to Anthony De Young, president of Respondent, protesting the election.' Shanley asserted that he and O'Shea The documentary evidence includes the bylaws & trade rules of the District Council which contains a list of the local unions who comprise the District Council. Respondent's membership appears undisputed. I am crediting this part of Shanley's testimony because it was not disputed by O'Sullivan, who was present in the courtroom throughout the hearing, but was not called as a witness. The letter asserts, inter alia, that the election did not conform to the requirements of section 31, paragraph G of the constitution which states in part All elections shall be conducted by an Election Committee appointed by the President of the Local Union. No nominee for office or Business Representative shall be eligible to serve on such committee -The Elec- tion Committee shall tabulate the vote and report to the Local Union. The chairman of the Election Committee shall declare the result of the balloting and announce the name of the elected candidates The letter asserts that the president did not appoint an election committee and that O'Sullivan, business representative and nominee, conducted the election by opening and closing the balloting and conducting the tabulation and announcing the result The letter requested that the election be declared null and void CARPENTERS LOCAL UNION NO. 22 5 obtained the signatures of approximately 34 members to the letter, on various dates between May 19, the date appearing on the letter, and June 26. Shanley asserted that while he was engaged in obtaining signatures, in late May or early June, in the parking lot adjacent to the union hall he was approached by McPartland who inquired : "What the hell have you got there? Are you a Philadelphia lawyer or something? If you don't stop bringing that stuff around here, we will have you kicked out of the Union." Shanley asserted that he responded "You go ahead and try it."6 Under date of June 3, M.A. Hutcheson, general president of the International , advised O'Shea by letter, that in view of a grievance filed by O'Shea, and five other unidentified mem- bers of Respondent, that the Local Union had been requested to file an answer.' On June 8, by letter, signed by Clancy, recording secretary, the membership of Respondent was advised that a new elec- tion would be held on June 26. On June 11, by letter, eight members of Respondent, in- cluding Shanley and O'Shea , requested De Young to call a special meeting prior to the new election for delegates to the general convention, which had been rescheduled for June 26. It follows that this action was taken pursuant to directions form the International. It is undisputed that neither Shanley nor O'Shea were elected as a result of the subsequent election. Events of June 17 Shanley asserted that he went to the union hall about 7:15 a.m., on June 17. Upon arrival, he noted O'Sullivan in con- versation with a member of the Local. Shanley described the individual as young and Mexican-American, whose name he did not know. Shanley asserted the discussion related to a job being closed down by reason of some threats of riots. As Shanley approached, O'Sullivan advised this individual to tell the story to Shanley. O'Sullivan went into the union office. Shanley asserted, after hearing the story, he inquiried of the individual whether he was aware of the "irregularities of the election." Shanley then asked him to sign the protest letter [dated May 19]. The Mexican-American declined! Shanley asserted he remained at the union hall until 7:45 a.m. and then proceeded to Graziano's shop at Seventh and Branon Streets.' Graziano sent Shanley to a job on Fillmore In view of the assertion of Shanley that he was still obtaining signatures to the letter on June 26, it appears questionable that the letter to De Young was ever, in fact, delivered to him There is no evidence the union officers were ever apprised of the context of the letter The fact that the original letter, with all of the signatures, apparently remained in the possession of Shanley requires the foregoing conclusions. The first signature is purportedly that of O'Shea, while that of Shanley is the sixth 7 Shanley was uncertain if his name appeared on the telegram which this letter answered There is no evidence to establish that Shanley did or did not sign it Why Shanley would be seeking signatures to a letter to the president of the Local, dated May 19, the subject of which was a protest of the May 8 election, at least a week after the International had advised the Local to set aside the election and conduct a new election , and nine days after the membership was adivsed a new election would be held on June 26, is unexplained Accordingly , I do not credit this selfserving declaration of Shanley Shanley acknowledged he had been previously dispatched by the Re- spondent to work for Graziano at a job identified as DiMaggio 's Restaurant He was laid off, by Graziano , on Friday, June 12. His effort to deny he was laid off was unimpressive , particularly in view of his admission that he was dispatched to a different job, upon being rehired on June 17 Shanley's effort to assert that he was reemployed by Graziano on Tues- day, June 16 , conflicts with his pretrial sworn statement , of August 7, that: "After I was hired back by Graziano, on June 17, 1970, I worked for him until about June 30, 1970 He laid me off again for lack of work " Street, in the Marina. Shanley drove there in his pickup truck. Shanley left the Fillmore Street job around 10:30 or 11 a.m., on the instruction of Jim Fox, whom he identified as a super- visor for Graziano. According to Shanley, Fox advised him to proceed to a job on Downey Street in the Haight Ashbury district, and Shanley arrived there at approximately lunch- time. This job involved repair of apartment steps. When he was ready to commence work, at approximately 12:30 p.m., Shanley related a helper, named Thomas Hunter, had arrived." Shanley related that about 2 or 2:30 p.m. he was visited by O'Sullivan and McPartland. O'Sullivan inquired what Shan- ley was doing. Shanley responded that he was working for Graziano. O'Sullivan inquired "where is your referral." Shanley asserted, "and I believe I told him that I didn't need one since I had been working with him [Graziano] the previ- ous Friday."' 'According to Shanley, O'Sullivan then asked "what did you say to that kid in the hall this morning." Shanley asserted he responded, "if he told you, I don't have to."12 Shanley asserted that O'Sullivan then advised him, "I'm going to bring you in on charges." Shanley asserted he responded, "You are going to have a lot of proving to do." Shanley then inquired what he would be charged with and asserted that O'Sullivan responded, "I'll think of something." O'Sullivan then inquired as to the ownership of the skill saw, the location of which is not specified, and some material which was on Shanley's truck. Shanley asserted that he re- sponded that the skill saw belonged to Graziano and the materials on the truck were his own personal property." Shanley asserted that as McPartland was leaving, McPart- land advised Shanley that he would be in on charges within 30 days. Hunter corroborated Shanley as to the substance of this conversation." On approximately July 10, Shanley was served with a copy of a charge that he had violated the Trade Rules of the Bay County's District Council of Carpenters. Specifically he was charged with going to work on the Graziano Construction Company job on Downey Street on June 17 without a referral and loaning a truck to be used for the purpose of hauling and/or delivering employers' material in violation of Section 17 and 38 of the Trade Rules of the Bay County's District Council of Carpenters and in violation of paragraph A of section 15 of the Carpenters agreement. A hearing date of Wednesday, August 5, at 8 p.m. at the office of the District I find Shanley was reemployed on June 17. 10 Hunter, who appeared as a witness, is a college student, and a part-time employee of Graziano, as a carpenter's helper ' 1 Shanley denied being laid off the previous Friday, admitted he did not work on Monday , asserted he worked on Tuesday, upon Graziano 's advice to "check his shop on Tuesday." I have found to the contrary. Shanley admitted knowledge of the union rules relative to referral slips, explicated infra. " The effort of Shanley to thus imply that O'Sullivan knew the substance of Shanley's earlier conversation , with the Mexican -American, is rejected 1' Shanley asserted that the material on his truck was comprised of some sheet rock, a couple of sheets of plywood , some loose gravel and a wheelbar- row He acknowledged the wheelbarrow was Graziano 's, asserting he had borrowed it from Graziano to do some foundation work at his own home He asserted the sheet rock and plywood was material left over from a job, which he had purchased from Graziano His precise answer, which raises serious doubts as to what he meant to convey , was "I had bought some of them and some of them were left over from Graziano And I had asked him permission to use them " Later he asserted, "I believe I bought it Some of it, one piece, I was giving to-it was given to me by Graziano " 11 I attach no importance to the inability of Hunter to identify O'Sullivan, whom he had seen only one time , and who was present in the courtroom 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council was specified. The charge was signed by Clancy, recording secretary.15 Shanley appeared before the Trial Board, which was com- prised of members from various locals, who were members of the District Council, but none of whom were members of Respondent. McPartland gave evidence in support of the charges, and Shanley testified in his own behalf. Under date of September 14, A. A. Figone, secretary of the District Council, by letter, advised Shanley that he had been found guilty of violation of sections 17 and 38 and not guilty of section 15(a) of the Carpenters agreement. The recom- mended fine was $25 for the violation of section 17 and $50 for the violation of section 38. The District Council con- curred in the findings and recommendation . Shanley was also notified of his right to appeal to the general president of the International. Subsequently, on October 27, Shanley was ad- vised by R. E. Livingston, secretary of general executive board of his right to appeal to the general executive board. Shanley exercised this right, by letter dated November 6. Under date of January 29, 1971, R. E. Livingston, by letter, advised Shanley that the decision of the District Council was sustained and the appeal dismissed." Concluding Findings General Counsel, in his brief, asserts that Respondent uti- lized the Carpenters agreement and District Council Trade Rules as a pretext for citing and fining Shanley, in retaliation for his exercise of rights under the Act. General Counsel asserts this action was without legitimate union purpose. It is true that on June 17, when O'Sullivan and McPartland confronted Shanley with the fact that Shanley had not ob- tained a referral slip to work for Graziano, and when they " The bylaws & trade rules provide, inter aha. Section 17-Whenever the applicable Collective-Bargaining Agreement requires that workmen be provided with a dispatch or referral slip such dispatch or referral slip shall be in triplicate, one copy to be delivered to the employer, one to be retained by the workmen at all times at work, and one to be retained by Local Union A Foreman member shall not hire or place any person on the Employer's payroll without such a slip or in violation of the appropriate hiring proce- dures. Any member duly tried and convicted of violating this section shall be fined not less than $25 for the first offense , and not more than $50 for the second offense. Section 38-No one but a Journeyman or a 3-year Apprentice of a union affiliated with the District Council shall be allowed to cut material on a power saw on outside work This shall not apply to shops and mills. No member shall be allowed to rent, loan or sell to any contractor a mitre box, power saw, machinery, or other equipment of any description where same is to be used on the job or in the shop where the member is working The Carpenter's Agreement, effective June 16, 1968, through June 15, 1971, provides, inter aim: Section 4-Union Security and Hiring. Subsection (b) Hiring (1)-the Local Unions shall establish and maintain open and non-dis- criminatory employment lists for the use of workmen desiring employment on work covered by this Agreement and such workmen shall be entitled to use such lists without charge (2)-The individual employer shall first call upon the appropriate Local Union having work and area jurisdiction for such men as he or it may from time to time need, and such Local Union shall furnish the individual em- ployer the required number of qualified and competent workmen and skilled mechanics of the classifications needed by the individual employer in ac- cordance with the provisions of this Subsection IV.(b) I find it unnecessary to set forth the provisions of paragraph A of section 15 of the Carpenters agreement, which covers the matter of use of tools, in view of the finding of the Trial Board There is no dispute that Graziano was 8 party to the Carpenters agree- ment Shanley acknowledged awareness of the requirement of a referral slip, but disputes the appropriateness of the application of the provision 1° Upon further consideration , I am reversing my ruling rejecting G C Exh. 11, 12(b), and 12(d), and these exhibits are received accused Shanley of transporting some of Graziano' s materials on Shanley's truck, this was at a time when the election was pending. However, the effort of Shanley to establish that he was obtaining signatures on a protest letter, dated May 19, to obtain a new election, 9 days after the Respondent had notified its membership that a new election would be held on June 26, is implausible. So also is the assertion of Shanley that O'Sullivan knew the nature of Shanley's conversation that morning with the Mexican-American member. There is no evidence in this record that referral slips were not regularly required." The fact that Shanley engaged in a concerted, protected activity, in the matter of union elections, in my view, does not invest him with a right to flaunt the well-established union hiring procedures, of which he ac- knowledged being well informed. O'Sullivan did not testify. His remark that, "I'll think of something," when asked by Shanley to specify what charges would be made against him, thus stands undenied . This re- mark coupled with the timing of the filing of the charges are the only evidence in this record which could support a finding of pretext. The charges were filed on July 10, after the results of the election of June 26 were known to everyone. O'Shea, not Shanley, appears to have been the prime mover in the contesting of the validity of the May 8 election. Cer- tainly, Shanley does not appear to have been any more active. There is no evidence that O'Sullivan, who allegedly threat- ened Shanley, McPartland, who testified against Shanley, or Clancy, who filed the charges against Shanley, had a pen- chant or proclivity to foreclose the right of members of Re- spondent to exercise Section 7 rights. There is no evidence of any retaliatory action against any other protestor. Similar to a finding of pretext in the matter of a discharge, under Section 8(a)(3), there must be more than a mere suspi- cion of motive. I find no evidence of sufficient probative value to support a finding of mixed motive. A finding of mixed motive would be essential in view of the evidence that the charges against Shanley were not without substance. The Board has held in numerous cases that where a fine is imposed to implement a legitimate union rule which is not in conflict with any policies of the Act, the Board is without authority to set the amount of the fine or otherwise to evalu- ate the fairness of the discipline meted out." Accordingly, absent evidence to sustain a finding of viola- tion of the provisions of Section 8(b)(1)(A) of the Act, I will recommend dismissal of the complaint. CONCLUSIONS OF LAW 1. Carpenters Local Union No. 22, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. " Shanley acknowledged that every time he was dispatched to a job he was given a referral slip His assertion that he believed on one occasion that he went down and was told he didn't need one, by O'Sullivan, is unworthy of credence Respondent urges that the justification for the rule relative to referral slips is that some members could be sitting patiently, in the hiring hall, awaiting dispatch, which would not occur if others were permitted , without register- ing or obtaining a dispatch slip, to hustle or use the back door in obtaining jobs 11 Passaic, Morris, Sussex & Bergen Counties Newspaper Printing Press- men's Union No 60, affiliated with International Printing Pressmen and Assistants' Union of North America, AFL-CIO, and James Schofield, 190 NLRB No 38; International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No 504 (Arrow Devolopment Co.), 185 NLRB No 22 CARPENTERS LOCAL UNION NO. 22 7 2. William Graziano is, and at all times material herein has been, an employer, engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondent has not engaged in conduct constituting unfair labor practices by citing Bernard Shanley to appear before the Trial Board of District Council, on or about July 10, 1970, or by the District Council disciplining Bernard Shanley by fining him, and said conduct did not constitute restraint or coercion of Bernard Shanley in the exercise of rights guaranteed in Section 7, in violation of the proscrip- tions of Section 8(a)(1)(A) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety.