Intl. Brotherhood of Painters, Local 1066

INTL BROTHERHOOD OF PAINTERS, LOCAL 1066 International Brotherhood of Painters and Allied Trades, Local Union 1066, AFL-CIO and W. J. Sie- benoller, Jr., d/b/a W. J. Siebenoller, Jr., Paint Company and Benjamin D. DeMatteo . Cases 6- CB-2198 and 6-CB-2199 August 22, 1973 DECISION AND ORDER On May 18, 1972, Administrative Law Judge 1 George J. Bott issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only insofar as they are consistent herewith. The Employer, W. J. Siebenoller, Jr., a painting contractor engaged in the construction industry, and working on a project funded by the United States Department of Housing and Urban Development (HUD), decided at the urging of that Department, to hire a qualified Black as an apprentice painter. On March 15, 1971, the Employer hired John Young for this position. On or about February 10, Strausbaugh, the Respondent's business representa- tive, in a conversation with employees DeMatteo, Harlan, and Kneram, learned of Siebenoller's inten- tion to hire a Black apprentice. Disparaging the idea, Strausbaugh asked the men to try to persuade Siebe- noller not to go forward with his plan because there would be "trouble" and he could make it "damn tough." Strausbaugh visited the Employer's paint store near the end of February and questioned Siebenoller as to his intentions regarding hiring minorities. After Siebe- noller stated that he would comply with HUD's direc- tives, Strausbaugh argued that "nobody else" on that project was complying and there was no reason for the Painters Union to do so. He stated that it was Siebenoller's decision to make, but added that all he "could get out of it was a lot of trouble from the Union." Around March 1, 1971, Bodendorfer, the Union's shop steward, told Siebenoller that he ought to speak The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge ►t is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 651 with Strausbaugh before he hired Young because union members were laid off at the time and "the Union and Union members were not going to be hap- py about the situation." Bodendoerfer added that, if Young were hired, it would create "friction" in the Union and Siebenoller would more than likely "have a lot of Union problems." After Siebenoller interviewed Young and decided to hire him, he telephoned Strausbaugh and told him what he intended to do. Strausbaugh asked him if he were "really going to go ahead with it," and Siebenol- ler replied that he "was going to go along with a law passed by Congress." Around April 1, when Strausbaugh visited the Riv- erside project where Young had been employed since March 15, Siebenoller asked him if he intended to take Young's application for membership in the Union. Strausbaugh asked if he intended to retain Young and when he indicated he did, Strausbaugh stated there was nothing the Union could do about it, but he "could have a lot of trouble out of this situa- tion." The Union, the Employer, and other area contrac- tors are parties to a labor agreement which established a Joint Trade Board, consisting of three representa- tives from the Union and three from the contractors, to hear and determine complaints concerning alleged violations of the contract. On April 28, 1971, Straus- baugh notified Siebenoller that he had filed a com- plaint with the Joint Trade Board alleging that Siebenoller had violated the contract by spray paint- ing metal door bucks (frames) on April 20, 1971, at the Riverside apartments, and later that day notified Sie- benoller of an additional complaint about the Employer's spraying structural steel at St. Francis Hospital and the interior block walls at the New Cas- tle Battery Company building. On May 1, 1971, Siebe- noller was informed by Strausbaugh in writing that the Joint Board has been notified "of additional viola- tions by your pointing company, which have occurred over the past two years," namely, failure to pay a premium rate when painting was done by roller, and double time for overtime work. As soon as Siebenoller received Strausbaugh's charges, he telephoned Strausbaugh about them and asked what was going on. Strausbaugh replied that he, Siebenoller, knew what was going on for he had been warned that, if he hired Young, he would have trouble and now the price was his to pay. Siebenoller protest- ed that this was a "hell of a way for a business agent to act," but Strausbaugh suggested that he tell his trouble to the Joint Trade Board. At a hearing before the Joint Trade Board on May 27, 1971, evidence was presented with respect to im- permissible spraying at the Riverside high rise apart- 205 NLRB No. 110 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments, the New Castle Battery Company building, and St. Francis Hospital, and on the charge that the Company over the past 2 years had failed to pay the required contractural overtime rate. There was testimony that Strausbaugh had inspect- ed the work at St. Francis and approved it, advising Siebenoller not to "spread it around" because other contractors might find that too much structural steel had been spray painted. With regard to the spray painting at New Castle, there was testimony that the walls were sprayed in violation of the contract, but the Administrative Law Judge also found that Straus- baugh had granted permission to spray the walls after Siebenoller had shown him a letter from the owner requesting that the walls be sprayed. To support the charges that the Employer had not paid the appropri- ate premium rates, Strausbaugh presented "work per- mits." By dividing the hours into wages paid over a long period of time, Strausbaugh determined that the Company had not been paying the roller, spray, or overtime rate to its employees. Two former employees testified that they had not received overtime pay, had been paid in cash on occasion, and had not been paid the premium rate for using a roller or spraying. Em- ployees Kneram, DeMatteo, and Harlan testified that they had always been paid for overtime and were properly compensated if they entered the amount or kind of work done on their timecards. On May 29, the Joint Trade Board levied a fine against the Employer based on the Respondent's charges. On June 12, Strausbaugh preferred internal union charges against DeMatteo, Harlan, and Kneram, who had testified for the Employer at the hearing, against two former employees who had testified against Sie- benoller, and against a sixth employee. The charges related to the same violations with which Siebenoller had been charged before the Joint Trade Board. A hearing was held on July 15 before the Respondent's executive board at which DeMatteo, Kneram, and Harlan appeared, represented by Siebe- noller. After considering the evidence, all six members were found guilty and fines of $1,000, with $500 sus- pended, were assessed against DeMatteo and Kner- am, and a fine of $500, with $250 suspended, was assessed against Harlan. The two former employees who testified against Siebenoller and gave evidence against DeMatteo and Kneram before the Respondent's executive board pleaded guilty to all charges and were fined $500. Their fines were sus- pended and they were placed on probation for 6 months. The sixth employee was apparently fined $100. Although the Union's constitution requires that charges must be brought within 45 days of the viola- tion and these allegations were based on charges filed in excess of 100 days after the actions alleged, this provision was not raised by these employees before the executive board or in their appeals to the Interna- tional Union. The Administrative Law Judge stated that he was foreclosed by decisions of the Board and the courts from considering Respondent's argument that a breach of the duty of fair representation is not an unfair labor practice.' He then found that the Respon- dent Union violated Section 8(b)(2) and (1)(A) of the Act by attempting to cause the Company to discharge the Black apprentice, John Young, by preferring charges against Siebenoller before the Joint Trade Board; he also found that the Union attempted to cause the Company to deny employment to Young and to thereafter discharge him by threatening em- ployees and the Company with reprisals, in violations of Section 8(b)(1)(A) and (2) of the Act. In so finding, he relied upon Strausbaugh's state- ments to employees and to Siebenoller forecasting trouble "from the Union" if a Black were hired, his subsequent statements to Siebenoller attributing the Joint Board hearing to Siebenoller's disregard of his earlier warnings, and the fact that Strausbaugh, not long after Siebenoller had hired Young, went all out against Siebenoller in his prosecution to the extent of including condoned or stale matters in his charges. The Administrative Law Judge further found that the Union is legally responsible for the result reached by the Joint Trade Board since it illegally initiated the proceeding, and his remedy for the violation provided that the Union pay the Employer's fine assessed by that board. We agree for the reasons stated by the Administra- tive Law Judge. It is clear that Strausbaugh not only threatened Siebenoller with trouble from the Union if Young were hired, but he also brought the charges before the Joint Trade Board either to consummate that threat or as a reprisal for Siebenoller's failure to acquiesce to Strausbaugh's arbitrary demand. In af- firming the Administrative Law Judge's Decision, we do not rely upon his finding that Strausbaugh brought the charges to force Siebenoller to discharge Young. Instead, we find that Strausbaugh's object, inter alia, was to cause Siebenoller not to hire more Black ap- prentices.4 3 The Administrative Law Judge in a footnote cited Miranda Fuel Co, 140 NLRB 181, enforcement denied 326 F 2d 172 (C A 2); Houston Maritime Association, Inc, and Its Member Companies, 168 NLRB 615, enforcement denied on other grounds 426 F 2d 584 (C A 5), International Longshoremen's Association, AFL-CIO, South Atlantic and Gulf Coast District and Local 1368 (Galveston Maritime Association, Inc), 148 NLRB 897; Independent Metal Workers Union, Local No I (Hughes Tool Company), 147 NLRB 1573; Local Union No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO [Goodyear Tire & Rubber Co of East Gadsden, Ala I v N.L.R B., 368 F.2d 12 (C A 5), Vaca v Sipes, 386 U S 171 4In joining his colleagues in finding these violations, Member Fanning relies on Planet Corporation, 144 NLRB 798, and International Union of INTL. BROTHERHOOD OF PAINTERS , LOCAL 1066 The Administrative Law Judge found the evidence too tenuous to support the General Counsel' s conten- tion that the internal union charges and fines levied against DeMatteo, Harlan, and Kneram violated Sec- tion 8(b)(1)(A). We disagree. In our view, the facts warrant the inference that the Union disciplined DeMatteo, Harlan, and Kneram because of their failure to assist Strausbaugh in his efforts to force Siebenoller to give up on his an- nounced intention to hire Young and for their appear- ance on Siebenoller's behalf in the Joint Trade Board hearings Strausbaugh initiated against Siebenoller. Thus, these three employees were warned by Straus- baugh that there could be "trouble" and he could make things "damn tough" if Siebenoller hired Young. These statements were found by the Adminis- trative Judge to be threats violative of Section 8(b)(1)(A) and they were obvious attempts to enlist these employees' support in Strausbaugh's attempt to cause their employer not to hire Young. The employ- ees failed to assist Strausbaugh in these efforts and, after the Joint Trade Board hearings at which they had testified in their employer's behalf, he pointedly told them that he had "got" Siebenoller and the "rest of you guys better look out." This warning was given just 3 days before a hearing was to be held on charges that the employees had violated internal union rules. Those charges had been filed against them just 2 weeks after their appearance at the Joint Trade Board hearing on their employer's behalf, despite the fact the evidence had been in the Union's possession for months, and were brought on stale matter clearly bar- red by the Union's own rules limiting the time within which such charges could be made. Though it is true, as the Administrative Law Judge observed, that the Union did not single out DeMat- Operating Engineers, Local 18, AFL-CIO (William P Murphy) 204 NLRB No 112, to the extent that these cases recognize that evidence that a union has caused or attempted to cause an employer to discharge or refuse to hire an employee gives rise to an inference that such conduct operates to encour- age union membership , and that the employer in such circumstances may be presumed to have intended this natural and foreseeable consequence of such action when he acts at the Union's behest However, he construes Local357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America (Los Angeles- Seattle Motor Express) v N L R B, 365 U S 667, as holding that not all such encouragement of union membership is pros- cribed by Sec 8(b)(2) and (a)(3) of the Act and that such encouragement flowing from legitimate union action , i e, that necessary to the performance of the union 's role as the exclusive bargaining representative is lawful encour- agement. Respondent here has offered no evidence, and Member Fanning perceives none that could be offered, which would demonstrate that advoca- tion and enforcement of a racially discriminatory hiring policy serves in any statutorily cognizable way to further the Union's performance of its statutory representative function Accordingly, he finds that, by threatening Siebenol- ler and Siebenoller's employees with union troubles if Siebenoller persisted in his intention to hire Young and by visiting such troubles on Siebenoller and his employees , Respondent Union attempted to cause Siebenoller to discriminate in the hire and tenure of employees in violation of Sec 8(a)(3) thereby violating Sec 8(b)(2) and (1)(A) of the Act 653 teo, Harlan, and Kneram but proceeded against other employees of Siebenoller as well, we do not consider this circumstance as rebutting the inference we have drawn. For we regard the fact that DeMatteo, Harlan, and Kneram received significantly higher fines than did the other employees for the same violation of union rules as demonstrating that these three employ- ees were the real target and focus of the disciplinary proceedings.' Accordingly, we find that the Union fined DeMatteo, Harlan, and Kneram for their failure to support Strausbaugh in his efforts to prevent the hiring of Young and for testifying on behalf of their employer in the Joint Trade Board proceedings, and that such discipline restrained and coerced them in the exercise of Section 7 rights in violation of Section 8(b)(1)(A) of the Act .6 THE REMEDY Inasmuch as we agree that Respondent brought charges against the Employer for discriminatory rea- sons, we shall order Respondent to reimburse the Em- ployer for the amount of the fine, with interest. In the circumstances of this case, we think such action will adequately effectuate the purposes of the Act. Ac- cordingly, we shall delete from our Order that part of the Administrative Law Judge's Order requiring Re- spondent to make the Employer whole for lost profits. As we have found that the fines were imposed upon the above three employees, at least in part, for discri- minatory reasons and as a pretext for violating union rules, we shall order the Respondent to expunge all records of the disciplinary proceedings against De- Matteo, Harlan, and Kneram, and actions taken therefrom, rescind the fines levied against the mem- bers involved, reimburse them any moneys paid plus interest, notify them, in writing, when the above remedial action has been taken, and post an appropri- ate notice? 5 DeMatteo and Kneram received fines of $1 ,000, of which half was sus- pended on appeal Harlan was fined $500, of which half was suspended on appeal Two other employees, Calvert and Shaftic, who had testified on behalf of the Union at the Joint Trade Board hearings, were fined $500, all of which was suspended on appeal A sixth employee, who apparently did not testify at the Joint Trade Board hearing, was fined $100. e Chairman Miller finds that the Union discriminated in the discipline meted out to DeMatteo, Harlan, and Kneram , and that meted out to other members for violation of the same internal rules, because of their failure to support Strausbaugh 's efforts to force Siebenoller not to hire Young and for their testimony in support of Siebenoller at the Joint Trade Board hearing. 7 Chairman Miller and Member Fanning agree that the discriminatees should be reimbursed for all moneys paid , but would limit the remedy in all other respects so as to accord equal treatment to the discriminatees with the other three members who were also found guilty of the intraunion charges but are not here before us. They would so limit the remedy , not because the charges were discriminatorily brought against the discriminatees , but be- cause the fines imposed upon them were discriminatorily higher than those imposed upon the other three members. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 4 and 5 and substitute the following, adding Conclusion of Law 6: "4. By filing charges of contract violations against the Company with the Joint Trade Board in order to attempt to cause the Company to discriminate against an employee , Respondent engaged in an unfair labor practice within the meaning of Section 8 (b)(1)(A) of the Act. "5. By filing intraunion charges and/or fining union members for failing to aid Respondent in dis- criminatory acts and/or for testifying on behalf of the Employer Company at hearings before the Joint Trade Board, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. "6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of that Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Interna- tional Brotherhood of Painters and Allied Trades, Local Union 1066, AFL-CIO, New Castle, Pennsyl- vania, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Attempting, on the basis of race or any other irrelevant, invidious, and unfair considerations, to cause the Company to discriminate against any em- ployee. (b) Filing charges of contract violations against the Company with the Joint Trade Board in order to at- tempt to cause the Company to discriminate against any employee. (c) Filing intraunion charges and/or fining union members for failing to aid Respondent in discrimina- tory acts and/or for testifying on behalf of their Em- ployer Company at hearings before the Joint Trade Board. (d) In any like or related manner restraining or coercing employees in the exercise of their rights guar- anteed by the National Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Reimburse W. J. Siebenoller, Jr., d/b/a W. J. Siebenoller, Jr., Paint Company, in the amount of $2,060, with interest at 6 percent, the amount of the fine imposed on him as a result of the charges improp- erly filed against him by the Respondent with the Joint Trade Board. (b) Expunge all records of disciplinary proceedings against Benjamin DeMatteo, Charles Harlan, and Thomas Kneram, and actions taken therefrom; res- cind all fines levied against said members arising out of said proceedings; reimburse them any moneys paid, with interest at 6 percent; and notify them, in writing, when the above remedial action has been taken. (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Sign and mail sufficient copies of said notice to the Regional Director for Region 6 for posting by the Company at all locations where notices to its employ- ees are customarily posted, if said Company is willing. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 8 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT attempt to cause W. J. Siebenol- ler, Jr., Paint Company to discriminate against any employee or applicant for employment be- cause of his race or any other irrelevant and un- fair consideration in violation of the National Labor Relations Act. WE WILL NOT file charges of contract violations against said Company with the Joint Trade Board in order to attempt to cause said Company to discriminate against employees or applicants for employment. WE WILL NOT file intraunion charges and/or discriminatorily fine members for failing to aid INTL. BROTHERHOOD OF PAINTERS, LOCAL 1066 us in discriminatory acts and/or for testifying in behalf of said Company at hearings before the Joint Trade Board. WE WILL reimburse said Company $2,060, the amount of the fine imposed on the Company as a result to the charges which we improperly filed against the Company with the Joint Trade Board. WE WILL expunge all records of disciplinary proceedings against Benjamin DeMatteo, Charles Harlan, and Thomas Kneram, and ac- tions taken therefrom ; rescind all fines levied against said members arising out of said proceed- ings; reimburse them any monies paid, with in- terest at 6 percent; and notify them, in writing, when the above remedial action has been taken. WE WILL NOT, in any like or related manner, restrain or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act. INTERNATIONAL BROTHER- HOOD OF PAINTERS AND AL- LIED TRADES, LOCAL UNION 1066, AFL-CIO (Labor Organization) Dated By (Representative) (Title) 655 amended, herein called the Act. Respondent filed an answer and a hearing was held before me at Pittsburgh , Pennsylva- nia, on March 8 and 9, 1972, at which Respondent and General Counsel were represented . Subsequent to the hear- ing, General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in the case and from my observa- tion of witnesses, I make the following:' FINDINGS OF FACT I JURISDICTION OF THE BOARD The Company, a sole proprietorship with his place of business in New Castle, Pennsylvania, is engaged as a paint- ing contractor in the construction industry. During the 12- month period preceding the issuance of the consolidated complaint, the Company performed services valued in ex- cess of $50,000 for companies which themselves are directly engaged in interstate commerce. Respondent admits, and I find that the Company is an employer engaged in commerce within the meaning of the Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue 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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BoTr, Trial Examiner: Upon a charge of unfair labor practices filed on August 31, 1971, by W.J. Siebenol- ler, Jr., d/b/a W.J. Siebenoller, Jr. Paint Company, herein called the Company, in Case 6-CB-2198, against Interna- tional Brotherhood of Painters and Allied Trades, Local Union 1066, AFL-CIO, herein called the Union or Respon- dent, and upon a charge of unfair labor practice filed on August 31, 1971, by Benjamin D. DeMatteo, an individual, against the Union, in Case 6-CB-2199 the General Counsel of the National Labor Relations Board issued a consolidat- ed complaint alleging that Respondent had violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as The basic issue is whether the Union engaged in reprisals against the Company and three of its employees because the Company, at the urging of the United States Department of Housing and Urban Development , hired a black apprentice painter to work on the Riverside housing project in New Castle, Pennsylvania, a project funded by HUD. B. The Facts 1. Respondent's alleged threats of reprisal when it learned that the Company intended to hire a black apprentice After attending a meeting of all contractors working on HUD's Riverside Housing development, called by HUD to urge compliance with its minority hiring policies, Siebenol- ler decided to hire his first black painter, and on March 15, 1971, he hired John Young as an apprentice painter. Strausbaugh, the Union's business representative, learned of Siebenoller's plan when he spoke with three of the Company's painters who were working on the New Castle Battery Company job on or about February 10. Employees DeMatteo, Kneram, and Harlan testified that after some conversation about spray painting without a permit, a sub- ject which figures prominently in their later problems with 1 General Counsel's unopposed motion to correct the transcript is hereby granted 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union after Young was hired, Siebenoller's intention to hire a black was mentioned. Strausbaugh disparaged the idea and argued that since none of the other crafts working on the Riverside job had blacks there, the Painters Union should not be the first. He asked the men to try to persuade Siebenoller not to go forward with his plan because there could be "trouble" and he could make it "damn tough." In his conversation with the employees at the New Castle Battery job, Strausbaugh indicated that he intended to talk to Siebenoller and asked where he could find him. De- Matteo told him that Siebenoller was at his paint store. According to Siebenoller, Strausbaugh visited his paint store near the end of February and asked him what his intentions were regarding hiring minorities . Siebenoller re- phed that he was going to comply with HUD's directive, but Strausbaugh argued that "nobody else" on the Riversidejob was complying and there was no reason for the Painters Union to do so. He stated that it was Siebenoller's decision to make, but he added that all he "could get out of it was a lot of trouble from the Union." After Siebenoller interviewed Young, a black, in early March and decided to hire him, he telephoned Strausbaugh and told him what he intended to do. Strausbaugh asked him if he were "really going to go ahead with it." and Siebenoller replied that he "was going along with a law that was passed by Congress," and if Strausbaugh had any ques- tions about it he should contact HUD. Strausbaugh denied that he had had any conversation with Siebenoller at his paint store about hiring minorities, and although he agreed that he had been at the New Castle Battery job on February 10 and discussed spray painting with the painters, he denied that the hiring of blacks was mentioned. I do not credit Strausbaugh's denials. First of all, his testimony that he had only visited Siebenoller's paint store once on some uncertain date in early 1971 on some completely unrelated matter seemed wholly contrived and he also impressed me as attempting to conceal any interest in or knowledge of Siebenoller's plans regarding hiring a black. Second, Siebenoller's father, William Siebenoller, Sr., testified that he was present when Strausbaugh was in his son's store in February and heard him tell his son to "forget the idea of hiring a black person." He also recalled that Strausbaugh indicated that such an action would "be a mistake and cause him nothing but problems," and "they could get nothing but trouble out of it ." Siebenoller, Sr.'s testimony appeared unexaggerated and sincere. Third, the employees' versions of what Strausbaugh stated when he came to the New Castle Battery site, although differing in some unimportant details, were consistent in their essential elements. They too appeared to be telling an unembellished story, and having taken into consideration the feelings of resentment they must have had against Strausbaugh for bringing charges against them and their employer, as ap- pears fully below, and despite serious reservations I have about the accuracy of their testimony about spray painting and payment for overtime work, as also will appear in a subsequent section of this decision, I credit them over Strausbaugh in regard to his expressions of opposition to the Company's hiring of a black and his prediction of "trouble" if it occurred. On or about April 1, when Strausbaugh visited the River- side project where Young was now employed, Siebenoller asked him if he intended to take Young's application for membership in the Union. According to Siebenoller, Straus- baugh asked if he still intended to hire Young and when he indicated that he did, stated that there was nothing the Union could do about it, but he "could have a lot of trouble out of the situation." Strausbaugh denied making the re- mark, but I credit Siebenoller. Siebenoller credibly testified that sometime around March 1, 1971, before he had hired Young, Bodendorfer, the Union's shop steward, told him that he ought to speak with Business Representative Strausbaugh before he hired Young because union members were laid off at the time and "the union and union members were not going to be happy about the situation." According to Siebenoller, Bodendorfer also said that he had learned from Strausbaugh that "no- body else" on the Riverside job was complying with HUD's directive to hire members of minorities and therefore it was not the Painters Union's obligation to do so. If Young were hired, it would create "friction" in the Union and Siebenol- ler would more than likely "have a lot of union problems," Bodendorfer concluded. Bodendorfer denied making any reference to the hiring of blacks or any racial minorities in talking with Siebenoller. I do not credit Bodendorfer's deni- als. Like Strausbaugh, he impressed me as covering up any interest or concern he had about the Company's hiring poli- cies and as being on guard not to admit anything that might possibly involve Strausbaugh, his business representative, in any conversations touching on minorities and employment. 2. The Union files charges with the Joint Trade Board which resulted in the imposition of a fine against the Company a. Events prior to the hearing Article 19 of the labor agreement to which the Union, the Company, and other contractors in the area are parties established a Joint Trade Board, consisting of three repre- sentatives from the Union and three from the contractors, to hear and determine complaints concerning alleged viola- tions of the contract. In a letter dated April 28, 1971, Business Representative Strausbaugh notified Siebenoller that he had filed a com- plaint with the Joint Trade Board alleging that Siebenoller had violated the contract by spray painting all metal door bucks 2 on the third floor of Riverside Apartments, New Castle, on or about April 20, 1971. On the same day, in a separate communication, Strausbaugh notified Siebenoller that he had also complained to the Joint Trade Board about the Company spraying structural steel at St. Francis Hospi- tal, New Castle, and the interior block walls at the Battery Company building. On May 1, 1971, Siebenoller was in- formed by Strausbaugh in writing that the Joint Board had been notified "of additional violations by your painting company, which have occurred over the past two years," namely failure to pay a premium rate when painting was done by roller, and double time for overtime work. 2 The metal door frames INTL. BROTHERHOOD OF PAINTERS, LOCAL 1066 A heanng on the Union's charges against the Company was held before the Joint Trade Board on May 27, 1971, at which time each side presented oral and written evidence, examined and cross-examined witnesses, and was given full opportunity to be heard. Subsequent to the hearing, the members of the Board deliberated in private and, after con- sidering the charges, unanimously found the Company guil- ty on all of them and fined it $2,060. It is the Union's position that the Joint Trade Board proceeding was commenced because a contractor com- plained to it about the Company's contract violations and was completely unrelated to the hiring of a black appren- tice, but General Counsel, contending that the charges were pretextual and used as a pressure device to cause the Com- pany to discharge Young, points to certain evidence which he claims leads to that conclusion. Because of these conflict- ing positions, a review of the facts surrounding the claimed contract violations and of the hearing itself is necessary. Painting Contractor Carungi testified without contradic- tion that having learned from other craftsmen that door bucks and structural steel had been sprayed by the Compa- ny at the Riverside and St. Francis Hospital jobs, he made a personal inspection of the Riverside work and found that the door bucks had been sprayed. He did not check the St. Francis Hospital work, but he transmitted his information to Strausbaugh, and did nothing further. Strausbaugh said he received a telephone call from Carungi complaining about spraying. He investigated the charges and found them to be true, and as a result, he said, he filed charges with the Joint Trade Board. I find that Carungi told Strausbaugh about the apparent contract violations as he said he did, but whether this information was news to Strausbaugh and mo- tivated his actions in filing charges against the Company, is something else. There is no question about the door bucks on the third floor of the Riverside project having been sprayed, and this was a clear violation of contract if the Company did it. Although Siebenoller testified that he did not know who sprayed the door bucks, he was the only painting contractor on thejob, and I find that he or one of his men did the work. According to the labor agreement, certain materials or areas may be sprayed, but a permit must first be obtained from the Union. Permission to spray is sometimes obtained by the contractor from the Union's business representative by telephone and the permit is then mailed to the contrac- tor. The Company had a permit to spray structural steel at St. Francis Hospital, but Strausbaugh claimed that the per- mit covered the spraying of a few inaccessible steel beams only and that the Company sprayed practically all of the steel . Although I find that the Company did spray much more than a few steel beams at St. Francis, I also find that Strausbaugh inspected the work after it was finished, on or about April 21, 1971, and approved it. According to the credited testimony of employees DeMatteo and Siebenoller, Siebenoller telephoned Strausbaugh for permission to spray "inacessible steel" at St. Francis, and it was granted by him. The next day he and Siebenoller sprayed steel for 7 hours, and on the following day they did brush work. While they were working, Strausbaugh arrived, and Siebenoller showed him what they had done the previous day. Both Siebenoller and DeMatteo testified that after viewing the sprayed steel, 657 Strausbaugh made no complaints about contract violation, but instead advised Siebenoller not to "spread it around," because other contractors might complain that too much structural steel had been spray painted. With respect to spray painting at the New Castle Battery Company job, I find that the spraying of block walls which the Company did in February and March 1971, as observed by Strausbaugh and testified to by him, was a violation of the labor agreement, but I also find on the basis of Siebenoller's testimony that he told Strausbaugh that he had a letter from the owner requesting that the walls be sprayed and that Strausbaugh then granted him permission to spray the walls. I also find that Strausbaugh subsequently present- ed the letter which Siebenoller had obtained from the owner to the Union's executive board for consideration and, on February 22, 1971, notified all contractors that such letters could not be used in lieu of permission from the Union to spray. I also find that Strausbaugh visited the Battery Com- pany site again on March 7 and found employee Kneram spray painting. It is impossible to determine on this record whether this work was a new violation or included in Strausbaugh's tacit consent to continue spraying under the letter authority given when he visited the job on February 10. It is not clear that the Union's letter to all contractors was a revocation of Strausbaugh's previously granted per- mission to spray, which, indeed, the Union's executive board may not even have been aware of. I do find, however, on the basis of the entire record, that the Company and some of its employees and Strausbaugh, the Union's busi- ness representative, were giving a very loose construction to their various obligations, contractual and otherwise, in re- gard to spray painting in this particular instance. As soon as Siebenoller received Strausbaugh's notifica- tion of filing of charges with the Joint Trade Board, he telephoned him about them and asked him what was going on. I credit his testimony that Strausbauch replied that he knew what was going on for he had been warned that if he hired Young he would have trouble, and now the pnce was his to pay. Siebenoller protested that this was a hell of a way for a business agent to act, but Strausbaugh suggested that he tell his troubles to the Joint Trade Board. Strausbaugh's testimony that Siebenoller did call him after he got the charges and discussed certain unrelated matters, but merely mentioned receiving the charges without additional com- ment was unbelievable. Strausbaugh had occasion to visit the Company's River- side job again after the Company had received the charges filed against it with the Joint Trade Board. Although the date of the conversation is not clear, I find, on the basis of the credited testimony of employees DeMatteo, Harlan and Kneram that Kneram questioned Strausbaugh about the meaning of the numerous charges against Siebenoller and that Strausbaugh told the employees not to worry because he was not after them, but was out "to get" or "to hang" Siebenoller.3 Siebenoller also testified that he overheard Strausbaugh's remarks to the employees. Strausbaugh con- ceded that he could have been at Riverside shortly after 3 Two of the employees thought the conversation took place after Siebenol- ler was fined, but I think this is unlikely Two of the employees used the word "hang" and one said "get " 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges were filed against Siebenoller and probably did talk with the employees , but he denied telling them that he was out to get Siebenoller. Bodendorfer , the shop steward, who Kneram and DeMatteo said was present when Strausbaugh spoke with them, testified that he had no recollection of being present during such a conversation . Although I have previously found that he impressed me as knowing more than he wanted to admit, I find it unnecessary to decide whether he was present or not, for as indicated, I believe the testimony of the employees , the thrust of which is that Sie- benoller and not the employees was Strausbaugh's objec- tive. b. The Joint Trade Board Hearing At the hearing on the charges on May 27 , 1971, evidence was presented with respect to spraying at Riverside High Rise, New Castle Battery Company , and St. Francis Hospi- tal, all of which have been described in some detail above, and on the charge that "over the past two years" the Com- pany had failed to pay the required contractual overtime rate . Painting contractor Carungi testified that he inspected the Riverside Apartment project on April 24 and found that the door bucks were sprayed . Siebenoller accepted the res- ponsibility for the fact that the job was sprayed without Union permission, and I find that it was done by him or his employees, despite General Counsel's contention that there is no evidence as to who actually did it. Siebenoller presented evidence regarding Strausbaugh's grant of permission to spray at New Castle Battery and St. Francis Hospital , as set out earlier. Strausbaugh maintains a record of spray permits issued, and he testified that he had issued no permits for Riverside or the New Castle Battery job. The spray permit for St. Francis Hospital only allowed the spraying of a few "inac- cessible" beams, he said, but when he inspected the work he found that the Company had sprayed most of the steel. To support the charge that the Company had not paid the appropriate premium rates as required by its contract with the Union , Strausbaugh presented "work permits," which employers are required to obtain from the Union before doing Saturday and Sunday work and which list the names of employees authorized to perform the work; spray per- mits; and health and welfare remittance forms, which em- ployers send to the Union with their health and welfare payments . The latter forms show the number of hours each employee has worked in a month and his gross earnings. Strausbaugh testified that by dividing the hours into the wages paid over a long period of time , he determined that the Company had not been paying the roller , spray, or overtime rate to its employees. Fulkerson, an employer member of the Joint Trade Board, testified that Strausbaugh presented documentary evidence at the hearing indicating that the Company had not paid its employees the proper scale wages required by the contract. He also stated that Calvert and Shaftic, former employees of the Company , testified that they had not re- ceived double time for working overtime and had been paid in cash on occasion. Calvert testified in the instant hearing that he had told the Joint Trade Board that he had worked overtime for Siebenoller , but had not been paid double time. He had also used a roller and had sprayed , but had not been paid the premium rate for it, and, in addition, he had been paid in cash at times, and appropriate health and welfare deductions had not been made from his wages. Employee Kneram, DeMatteo, and Harlan testified for the Company before the Joint Trade Board and in the in- stant hearing . Kneram said he told the Joint Board that he had not worked every weekend that the Union had author- ized him to work and that Siebenoller had always paid him on the basis of the correct rate . He and the other employees filled in their own timecards , he said, and if a mistake was made, it was their fault . DeMatteo testified that he told the Joint Trade Board that he had been paid properly. He re- called being questioned about how many times he had worked on Saturdays and Sundays , but he said he could not remember what he answered . Harlan testified that he told the Joint Board that he had always received the appropriate spray or roller rate and that he had never worked overtime on Saturdays and Sundays. Siebenoller testified that Kneram, DeMatteo, and Harlan told the Joint Trade Board that they had received their proper wages from him . He also said that he told the Board that Strausbaugh entered the names of a number of employ- ees in overtime work permits to insure that an employee would be in the clear if Siebenoller used him, but that not all employees listed work . He said Strausbaugh agreed that this was so. He also testified that former employees Calvert and Shaftic, who had not worked for him since August 1970, admitted at the hearing under his questioning that they had been paid sufficiently more than their apprentice rate to compensate them for roller or spray work . In the hearing before me, Siebenoller testified that, as far as he knew, his employees never worked overtime without being paid for it and that if they entered the amount or kind of work done on their timecards they were paid for it . He said he had some but not all of his records at the Joint Trade Board hearing. Fulkerson, one of the employer members of the Joint Trade Board, testified that Siebenoller had some timecards with him at the hearing , but since they showed only the number of hours worked and not the rates paid, it was impossible to determine from them whether the employees had been properly paid . He said that Siebenoller did not produce pay stubs or pay records as evidence that double time was actually paid for the periods in question even though he asked him to do so. According to his uncontrad- icted testimony , addressing Siebenoller: I said, how come you didn't bring your books, your checks and stuff, I said if he had something like that, we could check it over and there would be no question about it, I said, and his answer to me was , and to the Joint Trade Board was , nobody is going to see my books. I credit Strausbaugh's, Fulkerson's, and Calvert's ac- counts of what evidence was presented to the Joint Trade Board, and I find that the Union at the hearing before the Board established a strong primafacie case that the Compa- ny had on a substantial number of occasions paid its em- ployees less than they were entitled to receive under the INTL BROTHERHOOD OF PAINTERS, LOCAL 1066 labor contract for roller and spray painting and for overtime work and that the Company failed to rebut that case. The matter is not as clear as far as spraying without a permit is concerned except with respect to the door bucks at River- side. There was no defense to that charge at all. In regard to New Castle Battery and St. Francis Hospital, apparently the Joint Board chose to believe the Union's business agent rather than Siebenoller about whether Strausbaugh had au- thorized the work at these sites, but aside from the credibili- ty issue, it was not unreasonable for it to have found that the Company, in DeMatteo's words, may have "overdone it" in spraying all the steel at St. Francis Hospital. I also find nothing significant in the amount of the fine levied for the offenses found. Although only one other con- tractor had been fined over $560 since the Joint Board was established in 1969, I credit Fulkerson's testimony that he and the other Joint Board members considered the Company's violations of the wage provisions of the contract to be more serious than the violations of other sections of the contract engaged in by other employers in the past. I also find that at no time during the Joint Trade Board proceedings did the Company or any of its witnesses con- tend or offer evidence to show that the Union's charges of contract violation were connected in any way with the Company's hiring of a black employee. On May 29, the Company was notified of the fine, but Siebenoller did not pay it immediately and sought an appeal in which he again did not contend that the charges against him were racially motivated. On July 8, 1971, the Trade Board wrote to the Union requesting that proceedings be started to cancel the contract between the Company and the Union. Sometime in July, Strausbaugh spoke to the Union stew- ard at the Company's jobsite. Bodendorfer, the steward, told the employees that Strausbaugh said they could com- plete the week, but were liable for a fine if they continued to work for the Company thereafter. The employees caught Strausbaugh before he left the project and questioned him about their futures. DeMatteo testified that Strausbaugh explained that he was following Joint Trade Board instruc- tions, but added that he had "got" Siebenoller and "the rest of you guys better look out." Later he said that the remark was "look out or you're next," which he said meant the same to him. According to Harlan, Strausbaugh's last words were, "I warned you guys, now you will all hang." Kneram's version is more like Harlan's than DeMatteo's, but stronger in its implications that the employees were next on Strausbaugh's list. He said Strausbaugh said that "Bill got hung and he is going to get us next." Strausbaugh denied stating that he had "got" Siebenoller and the employees were next or making any remarks like or to that effect when he met the employees after speaking with the job steward. In this instance, although I do not credit Strausbaugh's blanket disavowal, I am more inclined to accept DeMatteo's more restrained account, for I consid- ered him the least emotional and most objective of the employee witnesses. I find that Strausbaugh stated that he had gotten Siebenoller and cautioned the employees to be careful in the future. 659 3. The Union files intraunion charges against DeMatteo, Kneram, and Harlan On June 12, 1971, after the Joint Trade Board hearing, the Union preferred charges against DeMatteo, Kneram, and Harlan, who had testified for Siebenoller at the Joint Board heating, and against two other of Siebenoller's former em- ployees, who had testified against him at the hearing.' The charges, which involved various violations of the Union's bylaws and constitution and the collective-bargaining con- tract, related to the same violations of contract Siebenoller had been charged with before the Joint Board. A hearing on the charges was held on July 15 before the Union's executive Board at which DeMatteo, Harlan and Kneram appeared and were represented by Siebenoller. Af- ter considering the evidence, the Trial Board found all six members charged guilty on all counts and assessed fines against them. DeMatteo and Kneram were fined $1,000 with $500 suspended, and Harlan was fined $500 with $250 suspended. Calvert and Shaftic, who pled guilty to all charges and who testified against Siebenoller before the Joint Board and gave evidence involving DeMatteo and Kneram in violations before the Union Trial Board, were fined $500. Their fines were suspended, but they were placed on probation for 6 months. The evidence presented against the members was essen- tially the same evidence used against Siebenoller before the Joint Trade Board. Strausbaugh had his work permits, spray permits, and health and welfare payment records available and presented them to the trial board. Calvert's and Shaftic's testimony basically was that they worked with De- Matteo, Kneram, Volpe, and former member Coates as part of Siebenoller's crew and did not receive overtime pay for time worked. They also said they did not get the roller rate. Coates testified essentially to the same effect as Shaftic and Calvert.5 DeMatteo, Kneram, and Harlan testified and de- nied all the charges. General Counsel contends that there "was absolutely no evidence presented to the Union Trial Board" against De- Matteo, Kneram, and Harlan, but I disagree. Strausbaugh's records and the testimony of the former employees estab- lished a strong prima facie case against the employees, as it had in Siebenoller's hearing, but they failed to rebut it with any kind of convincing evidence. Hassel, the Union's finan- cial secretary who acted as temporary recording secretary at the hearing, testified credibly that he took minutes and faithfully transcribed them shortly after the hearing. The minutes are in evidence, and I rely on them in part in concluding that the evidence against the employees prepon- derated in favor of a finding against them. The Union's constitution provides that charges against members must be brought within 45 days of the violation. Since the employees were notified on June 12 that charges had been preferred against them, anything that occurred prior to the last week in April 1971 would appear to have 4 Shaftic and Calvert Charges were also preferred against Volpe who has continued to work for Siebenoller Thus all the charges related to work performed by employees for Siebenoller 5 Coates, a former Siebenoller employee, was no longer a member of the Union at the time of the hearing 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been barred by the Union's own statute of limitations. Since I find no evidence in the record that Kneram, DeMatteo, or Harlan violated any provisions of the Union's laws or of the labor agreement in May, it would appear that practically all of their offenses were barred. Strausbaugh admitted that he was aware of the statute of limitations, but brought the charges anyway. Hassel, the Union's financial secretary ad- mitted that he knew there was such a provision in the Union's constitution, but he denied that DeMatteo men- tioned it to him prior to the hearing, as DeMatteo testified. Regardless of whether the provision of the constitution was raised in conversations with Hassel outside of the hearing room, and I am inclined to the belief that it was not, at least not clearly, it is conceded by all that it was not raised by the employees before the trial board or in their appeals to the International Union. It is also a fact that the Union, through Strausbaugh, knew about spraying the New Castle Battery Company walls without a permit in February, 100 days or more before he filed charges in regard to thatjob. Much of the evidence used to establish the overtime violations concerned painting in the year 1970, and most of the evidence to support this charge was physically in the Union's hands in the health and welfare remittance forms for that year, 5 to 17 months be- fore charges were filed. Strausbaugh testified, however, that he did not become aware of these violations until Siebenoller's hearing before the Joint Trade Board in May 1971. I find that the Union had constructive knowledge with respect to wage scale contract violations subsequently charged against the Company and the employees long be- fore the constitutional statute of limitations began to run and that Strausbaugh suspected at least that such irregulari- ties were occurring, but chose to ignore them until Carungi, a painting contractor, compalined that Siebenoller was being accorded more favored treatment. I also find that DeMatteo, Kneram, and Harlan did not raise as a defense to the charges against them, either at the trial board or in their appeals to the International Union, the claim that the proceeding was initiated because they had failed to cooperate with Strausbaugh in having the Compa- ny deny employment to Young and because they had testi- fied on Siebenoller's behalf at the joint trial board hearing. C. Analysis, Additional Findings, and Conclusions 1. The Union's threats of reprisal and initiation of proceedings before the Joint Trade Board The General Counsel contends that the Union threatened the Company and its employees with economic reprisals and thereafter preferred charges against Siebenoller, the Company's owner, with the joint trade board in order to cause the Company not to hire John Young and thereafter discharge him because of his race in violation of Section 8(b)(1)(A) and (2) of the Act. It is the Union's position that the version of events related by Siebenoller and his employ- ees, DeMatteo, Kneram, and Harlan, is an afterthought fabricated in order to retaliate against the Union and its business representative because they enforced the collec- tive-bargaining agreement, and that, in any case, even if their testimony is credited, the facts would not prove a violation of law. The case is clearly complicated by credibility problems arising out of diametrically opposed versions of what hap- pened as well as by seemingly inconsistent positions taken by the chief protagonists, Siebenoller and Strausbaugh. Al- though I was not completely satisfied with Siebenoller's testimony in all instances, such as his insistence that all three employees told thejoint trade board that Strausbaugh had asked them to talk with him and try to persuade him not to hire a black, because it would create trouble, which I find did not happen, because the race issue was not raised at that hearing, as between him and Strausbaugh, based both on their demeanor and recollection, I found Siebenol- ler the more credible, and he was corroborated in certain areas by the testimony of other witnesses as well as by circumstances.6 Kneram, Harlan, and DeMatteo, on the other hand were not always reliable, particularly with respect to chronology or detail, which was not too surprising since the events took place a year or so before the hearing and the facts were complicated. Kneram obviously had no use for Straus- baugh, and I have not overlooked this bias. None of the three was completely candid, in my view, about the amount of overtime he worked and how much he was paid for it, but on the other hand their accounts of Strausbaugh's reactions when he found them spraying appeared very logical and believable, and their indignation at Strausbaugh's using it as an issue against the Company and themselves long after he had condoned it appeared sincere. Basically, their stories hung together, and I have accepted their versions of their conversations with Strausbaugh in their essentials as against Strausbaugh's unrealistic description of his complete igno- rance of and disinterest in the Company's plan to hire the first black apprentice in this Local Union's history. On the basis of these credibility resolutions, therefore, it has been found that Union Business Representative Straus- baugh, as soon as he learned from Siebenoller's employees that Siebenoller intended to hire a black, ridiculed and op- posed the idea and urged the employees to try to persuade Siebenoller against it, stating that such a plan would cause "trouble" and that he could make it "damn tough." Shortly thereafter, Strausbaugh, making the same arguments as he had used with the employees, told Siebenoller that if he hired a black nothing but "trouble from the Union" would result. In a similar conversation with Siebenoller, Boden- dorfer, the Union's job steward, mentioned "friction" and predicted "a lot of union problems" if Siebenoller went through with his plan to hire a person from a minority group. The Company had not previously been charged with con- tract violations nor had the Union's shop steward made any 6 DeMatteo testified that Strausbaugh asked him, when he visited the Battery company job in February and made derogatory remarks about hiring a black, where he could find Siebenoller to talk with him about his plans, and the employee told him Siebenoller was at his paint store Thereafter, Straus- baugh appeared at the store, according to Siebenoller and his father, and spoke against hiring a black, yet Strausbaugh denied having been in the store at the time or having any conversations about minorities then or at any other time with Siebenoller or anyone else INTL. BROTHERHOOD OF PAINTERS, LOCAL 1066 complaints to the Union about its practices, but less than 2 months after Young, the black apprentice, applied for mem- bership in the Union, Strausbaugh notified Siebenoller that he had filed charges against him with the joint trade board. The timing, therefore, taken with the previous expressions of opposition and predictions of unpleasantness, is very strong evidence that Young's hiring and the charges were connected, unless there is another explanation for them. I have found, however, that a legitimate complaint about the Company's spraying practices was made to the Union by another contractor shortly before the charges were filed, and this makes the timing less significant. Nevertheless, after Siebenoller received the charges, Strausbaugh an- swered his inquiry about their meaning by reminding him that he had warned him that Young's employment would mean trouble and now he had to pay the price. If the case were to end there, I would have no hesitancy in finding that the charges were discriminatorily motivated, especially in the light of Strausbaugh's statement to the employees after the charges were filed that he was not after them but was out "to hang" Siebenoller, a harsher and more vindictive expression than one would expect in a matter of ordinary contract enforcement. On the other hand, the joint trade board hearing was fair and regular on its face, and I have found that the Union established a case of serious contract violations. In examin- ing the asserted pretextual nature of any claimed basis for a union's or an employer's reaction, the degree of the reac- tion in the light of the severity of the offense is relevant. Although I have found that there is nothing in the amount of the fine assessed against Siebenoller indicating discrimi- nation, I have also found that the Union had previously condoned many of his offenses, knew or should have known about others, and dredged up as a basis for proceeding against him the previously condoned and stale incidents. Conventionally, this leaves a cloud over the actions of a respondent charged with discrimination and indicates that the true reason for his action may be found elsewhere. The only unusual event occurring at the time the charges were filed was the Company's hiring of a black apprentice, an action which the Union opposed. But if the Union never seriously complained about the Company's practices or wage scales before Young was hired, Siebenoller never raised the question of his hiring someone from a minority race as the cause of his troubles at the Joint Board hearing or in his appeal from its decision, and this is some evidence that he knew the case against him was not entirely specious. I do not agree with the Union's contention, however, that it is inconceivable that if Siebe- noller thought that the charges against him were based on racial considerations he would not have raised the issue, especially since half of the members of the Board were contractors, one of whom had been appointed when Siebe- noller was president of the employer's association. Siebenol- ler may have felt that he had troubles enough without airing the emotional racial issue and chose to await the outcome of his hearing on the merits. Moreover, as early as February 12, 1971, he telephoned HUD in Philadelphia to complain about meeting union opposition to hiring someone from a minority race. Thomas, an employee of HUD who had earlier addressed the meeting of contractors in New Castle 661 and laid down the governments hiring policy, so testified, and I credit his testimony. Although Siebenoller put his complaint to Thomas in writing, as Thomas directed, he did not forward the letter to HUD until early June, after he had been fined by the joint board, but, nevertheless, his contacts with HUD are an indication that he believed that his prob- lems with the Union were based at least in part on racial considerations. Finally, the Union points out that there is uncontradicted evidence indicating a union policy of nondiscrimination againt blacks, because in the 5 or 6 years since the Union was created by merger, of the approximately 45 new mem- bers admitted to membership, 7, including Young were black. In addition, there is evidence that Strausbaugh was business representative during the period and did not object to their admission. The Union's statistics have not been overlooked, but Young was the first black apprentice the Union reluctantly enrolled and the statistics are not impres- sive enough to overcome Strausbaugh's and Bodendorfer's expressed opposition to recruiting an apprentice, especially one from a minority race, at a time when journeymen were not working full time.7 The case concerning the Union's charges against Siebe- noller is not free from doubt, but on the basis of the above considerations and particularly because of Business Repre- sentative Strausbaugh's statements to employees and to Sie- benoller forecasting trouble if a black were hired, his subsequent statement to Siebenoller attributing the joint board hearing to Siebenoller's disregard of his earlier warn- ings, and also because Strausbaugh, not long after Siebenol- ler had hired Young, went all out against Siebenoller in his prosecution to the extent of including previously condoned or stale matters in his charges, I find and conclude that General Counsel has established by a preponderance of the evidence that the Union, by reason of Strausbaugh's agen- cy, was motivated in significant part in proceeding against Siebenoller before the Joint Board by Siebenoller' s disre- gard of the Union's advice not to hire a black. I do not find that the members of the joint trade Board were parties to the Union's actions, but since the Union illegally initiated the proceeding, it is legally responsible for the result of the Joint Trade Board reached, for it is impossi- ble to know what would have occurred in regard to the complaint about Siebenoller spraying door bucks, made to Strausbaugh by Carungi, another painting contractor, if Strausbaugh had not been improperly motivated. I am foreclosed by decisions of the Board and the courts from examining Respondent's interesting but not novel ar- guments that a breach of the duty of fair representation is not an unfair labor practice and that, in any case, the Board is not the proper forum to hear civil rights cases and should defer to the Equal Employment Opportunity Commission established in Title VII of the Civil Rights Act of 1964 (78 Stat. 255) as amended by the Equal Employment Opportu- nity Act of 1972.8 7 Bodendorfer has been a union painter for 35 years, but Young is the first black painter he has worked with on a union job So much for statistics 8 Miranda Fuel Company, Inc, 140 NLRB 181, enforcement denied 326 F 2d 172 (C A 2, 1962), Houston Maritime Association, 168 NLRB 615, Continued 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find and conclude that Respondent Union by attempt- ing to cause the Company to discharge John Young by preferring charges against Siebenoller, the Company's own- er, before anoint trade board, resulting in the imposition of a fine, violated Section 8(b)(2) and (1)(A) of the Act. I also find and conclude that Respondent Union attempt- ed to cause the Company to deny employment to Young, and to thereafter discharge him, by threatening employees and the Company with reprisals, in violation of Section 8(b)(I)(A) and (2) of the Act.' 2. The Union's intraunion charges against DeMatteo, Kneram, and Harlan It is the General Counsel's theory that the Union pressed charges against and fined DeMatteo, Kneram, and Harlan because they failed to take action to cause the Company not to hire Young and because they gave testimony in behalf of the Company and against the Respondent at the point trade board hearing. Although Siebenoller's and the employees fines rested on the same transactions essentially and in that sense were related, the Union's motivation in proceeding against the employees is not as clear as in Siebenoller' s case. The same evidence that was used against the Company at its hearing was used against the employees, but three other employees or former employees' of the Company who were involved in the same or very similar offenses were also found guilty by the trial board, and two of the four had testified against the Company. This is an indication that Business Representative Strausbaugh and the Union were primarily concerned with the widespread contract viola- tions disclosed at the Joint Trade Board hearing and not with DeMatteo's, Kneram's, and Harlan's philosophy about hiring minorities. In addition, I have found earlier that the Union established a case against the employees at their trials and that no one claimed during the proceeding or in subsequent appeals to the International Union that the pro- ceedings were a sham because they were based on racial considerations and were, in any case, barred by the statute of limitations found in the Union's constitution. This is enforcement denied on other grounds 420 F 2d 1248 (C A 5), Galveston Maritime Association, 148 NLRB 897; Independent Metal Workers Union, Local 1 (Hughes Tool Co), 147 NLRB 1573 In Local Union No 12, United Rubber Cork, Linoleum & Plastic Workers v N L R B, 368 F 2d 12 (C A 5, 1966) cert denied 389 U S 837, the court sustained the Board's holding that the Union's summary refusal to process grievances of Negro members violat- ed Section 8(b)(1)(A) of the Act In Vaca v Sipes, 386 U S 171, 186, the Court appeared to assume that unfair representation was within the Board's juris- diction, and in Truck Drivers and Helpers Local Union 568 [Red Ball Motor Freight] v N L R B, 379 F 2d 137, 142 (C A D C, 1967), the court, in holding that the Union's refusal to fairly represent all employees in the unit violated the Act, stated that in Vaca v Sipes, "A necessary premise of the majority's statement that Labor Board jurisdiction in such cases does not exclude court relief was its explicit assumption that unfair representation is an unfair labor practice " In Local Union No 12, United Rubber Workers, the court held that overlap- ping remedies for discrimination against employees in Title VII of the Civil Rights Act of 1964 and in the National Labor Relations Act did not detract from the basis of the court's determination that the breach of the duty of fair representation is an unfair labor practice Respondent has cited nothing in the legislative history of the 1972 amendments to the Civil Rights Act indicat- ing a congressional intention to narrow the Board's jurisdiction and, as indicated, the Board has not stayed its hand in these cases 9 Truck Drivers and Helpers Local Union 568, supra, In 8, at 144 evidence that the Union was proceeding fairly and not dis- criminatorily. As in the Company's case, there is some significance in the timing of the actions against the employees, coming as they did after Young was hired. But here again this factor is not as strong as in the Company's case, for not only is the timing element diluted by a competitor's complaint to the Union about the Company, as in the Company's case, but it is also explained by Strausbaugh's testimony that he dis- covered the alleged violations when he was investigating the charges against the Company. He is corroborated in this by former employee Calvert's testimony that Strausbaugh came to the place where he was working in late April or early May with his health and welfare records and ques- tioned him about payment for overtime when he worked for Siebenoller. Calvert stated that he was "caught" and, in effect, confessed all. It is likely that he and others implicated the three employees involved in this case at that time, but in any case it is clear that he and Shaftic did so at the joint trade board hearing. Whether or not Strausbaugh, an expe- nenced business representative, assisted by Bodendorfer, shop steward and longtime member of the Union, knew, or should have known, or even suspected that if the Company was violating the labor contract, the employees had to be a part of it, the extent of the violations disclosed by his investi- gation and spread on the record in a hearing participated in by contractors and other union officials, pretty much ex- plains why he would think it necessary to proceed even- handedly against all the employees for fear of being accused of conniving with them and the contractor if he did not. Strausbaugh's statements to DeMatteo, Kneram, and Harlan are less revealing of improper motivation than his reminder to Siebenoller after the joint trade board proceed- ing had been initiated that he had warned him about hiring Young. He did ask the men to attempt to persuade Siebenol- ler not to hire Young, indicating that it could cause "trou- ble" and stating that he could make things "tough," but although I have found a threat in these not too clearly expressed remarks of his, they do not reveal much about the charges he filed against the men when viewed in the light of his other conduct. All that he had asked the three to do was to talk with their superior, but after making this sugges- tion, he himself saw Siebenoller to make the same request, and he never raised the issue again with the employees, although he did with Siebenoller, even though DeMatteo countersigned Young's application for union membership. Lessening further the significance of Strausbaugh's earli- er statements to the three employees was his explanation to them on the jobsite when Kneram asked him what the charges against Siebenoller meant, that he was "not after" them, but was "out to get Siebenoller."10 Moreover, Boden- dorfer, the shop steward, who also opposed Young's hire in a conversation with Siebenoller, made no overtures to the men or put any pressure on them before or after Young was hired, an additional indication that Respondent considered 10 1 have not credited Kneram's and Harlan's versions that Strausbaugh said that he had hanged Siebenoller and they were next when he saw them after Siebenoller had been fined Instead, I have credited DeMatteo's less dramatic testimony that Strausbaugh warned them to be careful, but in neither case do I read into Strausbaugh's statements an implied admission that he intended to harass the employees on the basis of racial considerations. INTL. BROTHERHOOD OF PAINTERS, LOCAL 1066 Siebenoller and not the employees, who do not appear to have played a particularly significant role in Young's hire, to be the source of its discontent. Some of the factors which support a finding of violation of the Act in respect to the Union's actions in regard to Siebenoller are not present, or exist to a lesser degree in DeMatteo's, Kneram, and Harlan's cases. I find, therefore, on the basis of the above considerations , that the evidence to support General Counsel's theory of violation with re- spect to them is too tenuous and that he has not established by a preponderance of the evidence that the Union violated Section 8(b)(1)(A) of the Act by filing charges against them and imposing fines on the basis of the charges. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company, set forth in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead, and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, it shall be recommended that it cease and desist therefrom and take certain affirmative action designed to effecutate the policies of the Act. Having found that the bringing of charges against the Company before the point trade board resulting in a fine against the Company was an attempt to cause the Company to discriminate in violation of Section 8(b)(2) of the Act, it will be recommended that the Respondent reimburse the 663 Company $2,060, the amount of the fine, plus interest at the rate of 6 percent per annum. The Company lost several weeks work as a result of the fines and its temporary suspension as a union contractor, according to the uncontradicted testimony of Siebenoller, the owner of the Company, and as part of the remedy of making the Company whole for the losses it suffered by reason of the unfair labor practices, it will be recommended that the Respondent pay the Company for any losses of profits actually incurred during the period in question, a matter which may be more precisely resolved in a backpay proceeding. Upon the foregoing findings of fact and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of the Act. 2. Respondent is a labor organization within the meaning of the Act. 3. By attempting, on the basis of irrelevant, invidious, and unfair considerations of race, to cause the Company to discriminate against Young, an employee, in violation of Section 8(a)(3) of the Act, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce and are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act by imposing in- traunion fines on its members and employees of the Compa- ny, DeMatteo, Kneram, and Harlan, as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: [Recommended Order omitted from publication.]