Local 1437, Carpenters

LOCAL 1437, CARPENTERS 359 Local 1437, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Associated Gener- al Contractors of California, Inc.; Engineering and Grading Contractors Association , Inc.; and Build- ing Industry Association of California, Inc.) and Matt A. Bragg. Case 21-CB-4553 April 30, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 7, 1973, Administrative Law Judge Henry S. Sahm issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The charge herein was filed by the alleged discriminatee, Matt A. Bragg, on February 28, 1973; therefore the 10(b) period began on August 28, 1972. The complaint alleged as violative of Section 8(b)(1)(A) and (2) of the Act, only that: Since in or about September 1972, Respondent through its agents Fred Burlin and Albert Home, has refused and continues to refuse to refer Bragg, I At the hearing, counsel for the General Counsel indicated that in addition to Bragg's affidavit she had in her possession a note from Bragg concerning the emotional stress he was under. She further indicated that it was not a sworn statement or affidavit and was not relevant to Bragg s testimony or the subject matter of the complaint. Counsel for Respondent on numerous occasions requested an opportunity to review the document. The Administrative Law Judge after examining the statement in camera ruled that the statement was not of such relevance as to require its examination by Respondent. In its exceptions and brief Respondent contends the Administrative Law Judge's ruling was prejudicial to Respondent in that it could have been used to test Bragg 's credibility and that therefore it was an error to refuse Respondent's counsel to review such document. In support of its contention Respondent relies on Sec. 102.118(bx1 ) of the Board's Rules and Regulations which states in part: ... after a witness called by the General Counsel or by the charging party has testified in a hearing upon a complaint under section 10(c) ... the Administrative Law Judge shall, upon motion of the respondent, order the production of any statement . . of such witness in the possession of the general counsel which relates to the subject matter as to which the witness has testified. . The rule clearly indicates the document must relate to the subject matter testified to by the witness. Bragg's emotional state obviously did not so relate except, at best, tangentially. We reject Respondent's contention since we find that the Administrative Law Judge did not abuse his discretion in an applicant for employment, for employment under the terms of the collective bargaining agreement . . . because of his failure to pay a fine levied against him by Respondent... . Notwithstanding the 10(b) limitation and the narrow, specific allegation of the complaint, the Administrative Law Judge relied on unnecessary pre- 10(b) evidence to find the violation alleged in the complaint and found other violations based on incidents which not only occurred prior to the 10(b) period, but were not alleged as violations in the complaint.2 In addition, his recommended backpay remedy commences on June 20, 1972, more than 2 months prior to the commencement of the 10(b) period. We find it unnecessary to pass on the Administrative Law Judge's factual and legal find- ings based on events prior to the 10(b) period, and specifically disavow his numerous gratuitous com- ments predicated on pre-10(b) evidence.3 On the basis of the Administrative Law Judge's credibility findings with respect to 10(b) conduct,4 the narrow allegation of the complaint, and relying only on pre- 10(b) evidence to the extent that it may properly be considered as background evidence, we find as follows: Bragg became a member of Respondent in June 1968, and from that time until July 1972, was dispatched from Respondent's hiring hall at various times when he sought employment. In April 1972, he filed written charges with the Los Angeles District Council of Carpenters against Burlin, the hiring hall dispatcher, alleging that the job referral system was being operated in a discriminatory manner and that Burlin had discriminated against other members (not himself) while dispatching members to jobs. Bragg's refusing Respondent's request to examine the statement. 2 The General Counsel, aware of the 10(b) limitation period, not only made no attempt to amend the complaint to allege additional violations but specifically stated, "The complaint, your Honor, is narrowly drawn considering the incidents of refusal to dispatch out of the Local." During the course of the hearing the General Counsel objected to all pre-10(b) evidence relating to why Bragg was fined on the ground that it was irrelevant to the case. The General Counsel further stated that while the reason for the fine was violative of the Act, it was not alleged as such since it was based on pre- 10(b) evidence. 3 For example, we note that one of the Administrative Law Judge's discussions of Bragg's credited testimony (fn. 11) not only is based solely on pre-10(b) events but includes in part evidence that was stricken from the record by the Administrative Law Judge himself on Respondent's motion. 4 Notwithstanding the inconsistencies and contradictions in Bragg's testimony, and the contradictions and inconsistencies between his affidavit and his testimony, the Administrative Law Judge was persuaded to accept Bragg's version of the events occurring on and after August 28 , 1972. These findings are based almost wholly on his observation of the demeanor of Bragg, whom he credited, and Respondent's witnesses, whom he discredit- ed. With respect to Bragg, he stated, "he appeared not only to be a sincere, straightforward and truthful witness, but as one whose character was exemplary...... We are therefore constrained to find that his findings and conclusions are not contrary to the preponderance of all the relevant evidence. Accordingly, we accept his credibility resolutions herein . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). 210 NLRB No. 45 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge was dismissed after investigation by the Executive Council of the District Council. Shortly thereafter, Burlin filed charges against Bragg with the District Council alleging Bragg was creating dissension in the Union; this charge was held in abeyance. On June 26, Burlin filed a second charge against Bragg with the District Council alleging a violation of section 55A(13) of the Union's constitution. Specifically, the charge was that Bragg had falsified his union applications in 1962 and 1965 by misstating his journeyman status and his birth- date. A trial was held on this charge on July 31, 1972, at which Bragg testified before a panel of journey- men carpenters selected by the Executive Committee of the District Council. Bragg was found guilty, and on August 28 the delegates to the District Council of Carpenters upheld the finding. On August 28, by letter which he did not receive until August 31, Bragg was notified that he had been found guilty and fined $300. He neither appealed the decision nor paid the fine within the 30 days alloted him. On October 27, 1972, Bragg was notified that his membership was "suspended." According to testimony credited by the Adminis- trative Law Judge, Bragg went to the hiring hall to pay his dues and sign the out-of-work list on August 29, 1972. Home, Respondent's financial secretary, told Bragg he could not accept his dues and that it would be futile for him to sign the out-of-work list until he had paid the $300 fine. Bragg further testified that when he returned to sign the out-of- work list on September 27, 1972, Home again told him that he would not accept his dues or let him sign the out-of-work list until he paid the $300 fine. On February 28, 1973, Bragg filed charges against Respondent at the Board's Regional Office and went to the hiring hall and signed his name to the out-of- work list. On March 2, 1973, Bragg returned to the hiring hall and noticed that his name had been crossed out. By letter dated April 13, 1973, signed by Burlin, Bragg was notified that "you may enter the union offices at any time during the business hours to sign on the out-of-work list." Bragg signed the list on April 9, 1973, and was dispatched to a job on April 16, 1973. We agree that, as alleged in the complaint, since August 28, 1972, Respondent violated Section 8(b)(1)(A) and (2) by refusing to refer Bragg for employment because of his failure to pay a fine levied against him by Respondent. When a union prevents an employee from being hired by refusing to 5 Radio Officers' Union [A H. Bull Steamship Co.] v. N.LR.B., 347 U.S. 17 (1954). 6 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v. NLRB, 365 U.S. 667 (1961); Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America AFL-CIO (Planet Corporation) 144 refer him, the union has demonstrated its influence over the employee and its power to affect his livelihood in such a significant way that it is presumed the effect of its action is to encourage union membership on the part of all employees who perceive that exercise of power.5 However, this presumption may be rebutted, not only when the interference with employment was pursuant to a valid union-security clause but also when the evidence shows that the union action was necessary to the effective performance of its function of representing its members.6 Thus, in cases where the union's actions, while incidentally encouraging union membership, are essential to its effective representa- tion of employees no violation of Section 8(b)(1XA) or (2) lies. In this case the Union neither contended nor presented evidence to show that its actions were necessary to its effective function in representing employees. It defended solely on the ground that Bragg never appeared at the hiring hall or attempted to sign the out-of-work list between the dates in question. Its witnesses denied that they ever told Bragg he could not pay his dues or sign the out-of- work list until he paid the $300 fine. The Administra- tive Law Judge discredited Respondent's witnesses and credited Bragg. We therefore find that Respon- dent violated Section 8(b)(1)(A) and (2) of the Act as alleged in the complaint. CONCLUSIONS OF LAW 1. Local 1437, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Associated General Contractors of California, Inc., Engineering and Grading Contractors Associa- tion, Inc., and Building Industry Association of California, Inc., are employers as defined in Section 2(2) of the Act. 3. By refusing to refer Matt A . Bragg because of his failure to pay a fine levied against him Respon- dent engaged in a discriminatory hiring hall practice in violation of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in NLRB 798; Houston Typographical Union No. 87 (Houston Chronicle Publishing Company), 145 NLRB 1657; Philadelphia Typographical Union No. 2 (Triangle Publications), 189 NLRB 829; International Union of Operating Engineer; Local 18, AFL-CIO, 204 NLRB No. 112. LOCAL 1437, CARPENTERS unfair labor practices we shall order that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. Inasmuch as the record indicates that Bragg was allowed to sign the out-of-work list on April 9, 1973, and was shortly thereafter referred to a job, we shall order Respondent to make him whole for any loss of earnings he may have suffered by not being allowed to sign the out-of-work list and therefore not being referred to jobs in proper rotation between the dates of August 28, 1972, and April 9, 1973, in accordance with the principles set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board, hereby orders that Respondent, Local 1437, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Compton, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to allow Matt A. Bragg to sign the out- of-work list or refusing to refer him for employment in his rightful order of priority on that list for reasons unconnected with his failure to tender and pay periodic dues, registration fees, and initiation fees uniformally required as a condition of acquiring or maintaining membership in the Union, or as a condition required for using the Respondent's exclusive hiring hall system. (b) In any like or related manner , restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Notify Matt A. Bragg that it has no objection to his signing the out-of-work list at the hiring hall and being referred by it in his rightful order of priority. (b) Make whole Matt A. Bragg for any loss of earnings suffered because of the discrimination against him in accordance with the above section entitled "The Remedy." (c) Post at its offices, meeting halls, and hiring halls copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- 361 dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to refer Matt A. Bragg for employment in his rightful order of priority on the out-of-work list for discriminatory reasons. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their Section 7 rights guaranteed them under the Act. WE WILL reimburse Matt A. Bragg for all pity he lost as a result of our discriminating against him when we did not dispatch him to available jobs. LOCAL 1437, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, Room 600, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. DECISION HENRY S. SAM, Administrative Law Judge: This proceeding was heard at Los Angeles, California, on July 19 and 20, 1973, pursuant to a charge filed on February 28, 1973. A complaint which issued June 20 presents two 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues: whether Respondent Union violated Section 8(b)(1)(A) by restraining or coercing employees,' and whether it violated Section 8(b)(2) of the Act by unlawfully discriminating against Matt Bragg, a journeyman carpen- ter and member of Local 1437 since June 1968, by refusing to refer him for employment from its exclusive hiring hall because of his failure to pay a $300 fine levied against him by the Union in August 1972, and by fining and suspending him from union membership allegedly for falsifying an employment application in 1965 when he joined Local 710 of the Carpenters Union. Bragg joined the Respondent Union in October 1962, then transferred to Local 710 of the Carpenters in July 1965, and was readmitted to membership in Respondent Local 1437 in 1968 as a journeyman carpenter.2 There are no indications in this proceeding of racial overtones against Bragg, who is black. It is not contended by the General Counsel that the contractual provisions for this exclusive hiring hall or its general method of operation were defective but only that its operation was discriminatory with respect to Bragg, the Charging Party. The Respondent's answer denied the commission of any unfair labor practices and alleged that from September 1972 to April 13, 1973, Bragg, the alleged discriminatee, refused to make himself available as an applicant for employment. Upon the entire record, including observation of the demeanor of the witnesses, and after due consideration of the briefs filed by all of the parties, there are made the following: FINDINGS OF FACT The Business of the Employer and the Labor Organization Involved It is conceded and found that: Associated General Contractors of California, Inc., Engineering and Grading Contractors Association, Inc., and Building Industry Association of California, Inc., are, and at all times material herein have been , associations comprised of various employers which exist for, and do engage in, collective bargaining for, and negotiate collec- tive-bargaining agreements on behalf of, themselves and their respective employer-members with various labor organizations, including the United Brotherhood of Car- penters and Joiners of America , AFL-CIO. The above-named employer-members, who participate in multiassociation bargaining, are engaged in business in southern California as contractors in the building and construction industry; have their principal offices and places of business in the State of California; and furnish services valued in excess of $50,000 to customers in the State of California, each of whom, in turn, purchases and receives goods valued in excess of $50,000 directly from points located outside the State of California. 1 Frito Company, Western Division v. N.L R.B., 330 F.2d 458 (C.A. 9, 1964); Preiser Scientific, Inc., 158 NLRB 1375, 1376, 1377; Frank B. Smith d/bla Little Lump Coal Co., 144 NLRB 1499, 1500; Martel Mills Corporation, 118 NLRB 618, fn. 3. Cf. The Colonial Press, Inc., 204 NLRB No. 126. 2 When Bragg transferred from Local 710 to Local 1437 in 1968, his I. is found, accordingly, that the said associations and their constituent employer-members are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and subject to the jurisdiction of the Board. Respondent Union, which has approximately 500 to 600 active members, is a labor organization within the meaning of Section 2(5) of the Act. Background The United Brotherhood of Carpenters constitution and laws provide for the chartering of local affiliates such as 1437 (sec. 29), and in cities where two or more exist for their organization into regional bodies such as the District Council (sec. 26). The district organizations and their constituent locals are subject to the constitution which, inter alia, provides that dues of members of the locals are payable on the first of each month, but that a member "does not fall in arrears until the end of the month in which the member owes three months' dues" (sec. 44). Section 55 lists "offenses" for which members of locals may be disciplined by fine, suspension, or expulsion.3 Section 56 vests in the district bodies jurisdiction to process and hear charges brought against such members and provides for an appeal from discipline imposed to the Brotherhood's general executive board, and from that body to the Brotherhood 's general convention, subject to a requirement, among others, that where a fine exceeds $50 no appeal "can be entertained" by the general executive board unless the appellant first pays that sum to the relevant local or district body "on account, to be held until the appeal is decided by the General Executive Board," and that if the decision is adverse to the appellant he pay the full amount "before a further appeal can be taken" (sec. 57C). A time limit of 30 days after imposition of the penalty is specified for the filing of an appeal, and, in case of a fine in excess of $50, an appeal must be accompanied by a receipt showing the payment required as a condition of the appeal (sec. 57D). Fines must be paid within 30 days after imposition to entitle the fined member "to a privilege, rights or donations," but this is subject to provisions governing appeals (sec. 45). The District Council consists of local affiliates, including Local 710 and Local 1437, which do business in the Los Angeles area. The locals are represented in the District Council by delegates they elect for that purpose, and are subject to the District Council's bylaws. These, among other things, prescribe the monthly dues required of members of the locals (sec. 30, bylaws); specify that no member shall receive a "working card" from his local unless "all his arrearages for dues, fines and assessments are paid in full" (sec. 26, bylaws), and that while at work he carry a prescribed card "showing dues paid for the current month" (sec. 42M, bylaws); and provide for the selection and procedures of trial committees to hear charges against "union book" which was examined by the financial secretary stated his dues status, the date he originally joined Local 1437, his date of birth , and the date when he was promoted from an apprentice to a journeyman. Both locals are affiliated with the Los Angeles District Council of Carpenters. 3 Sec. 55, subdivision (13) is particularly pertinent as Bragg , the Charging Party and alleged discriminatee , was cited for violating "The Obligation." LOCAL 1437, CARPENTERS 363 members of the constituent locals, and, upon a finding of guilty, to recommend the penalty to the delegates to the District Council who have the "final decision" thereon subject to prescribed limitations set forth in the bylaws (secs. 34 and 36, bylaws). The procedures entitle an accused member to charges in writing; a hearing with notice thereof and the right to appear in person ; reading of the charges and arraignment thereon ; confrontation of witnesses ; representation by counsel; and an opportunity for the presentation of evidence and cross-examination of witnesses. The Facts4 There is ample evidence that Bragg was refused job referrals because of hostility toward him by Home, financial secretary-treasurer, and Burlin, business repre- sentative and dispatcher of Respondent Union.5 This hostility was engendered by Bragg when he filed in the spring of 1972 written charges with the District Council of Carpenters against Burlin, the union dispatcher, alleging that the job referral system was being operated in a discriminatory manner and also that Burlin had discrimi- nated against other union members by referring a member to a job who was not present in the union hall where jobs were being assigned. Burlin then filed a charge against Bragg alleging he was creating dissension in Respondent Union. Both Burlin's and Bragg's charges were dismissed by the executive council of the District Council. When Bragg's charge was dismissed by Respondent , he traveled to Washington, D.C., and voiced his complaints regarding the discriminatory procedures of Burlin, the dispatcher, and Home, financial secretary-treasurer, to the president of the Carpenters International Union and other national representatives. Bragg testified that he "tried so hard to make it known to [these officials ] as to the dispatching procedures of Mr. Burlin and Mr. Home and how they had done so many men so wrong and so many of my friends had been wronged and I have notarized publications of that." Thereafter, Bragg was persona non grata with the union hierarchy as evidenced by Burlin filing a written countercharge against Bragg alleging he was "causing dissension" in the Union. On June 10, Bragg complained about Burlin and Home to Gordon McCulloch, executive secretary of the Los Angeles District Council of Carpenters and president of the California State Council of Carpenters . McCulloch's • All data are 1972 unless otherwise indicated. s Home testified that in April, Bragg had called him a vile name, whereupon Home told him to retract it, which Bragg did. Bragg testified that he was unable to sign the register from June 20, 1972, to April 16, 1973, as he feared for his life, citing the following incidents: On June 19, while at the union hall, Burhn warned him not to return there if "I didn't want to be carried out feet first." Bragg testified that, when he went to the union hall to pay his dues on July 5, Home "told [him ] that he had heard what Fred Burlin had told me on the 19th of June and he wanted to reiterate that I wasn't wanted around there and it would be in my best interests that I didn't come back.. ." Also, during a period of time when Bragg was no longer receiving referrals, he spoke to Home on July 5, and he testified he was intimidated and frightened because , when he complained to Home that Home was preventing him from accepting odd jobs by reporting him to California State Department of Employment, Home's response, according to Bragg, was to warn him : "that ain't all we are going to do to you. You will be damned near dead when we get through response to his complaint, according to Bragg, was that he "told me to go on back to the hall and be a good boy, keep my mouth shut, and as a reminder, remember what happened to the Yablonski's." " Because of what McCulloch told him and threats which had been made against him by both Burlin and Home, delineated immediately below, Bragg testified he was so scared and frightened that he was unable to sign the out-of-work register, as detailed later in this Decision.6 Bragg continued that he came to the union hall on August 29 and September 27, when he spoke to Home who told him he could not sign the out-of-work register until he paid a fine levied against him by the Union, as described below. On June 26, Burlin filed a second charge against Bragg with the Los Angeles District Council of Carpenters, charging Bragg with "violat[ing Sec. 55A, 13 of ] the Union Constitution and his Obligation by falsifying his applica- tion [for transfer to] Local 710 on May 17, 1965.."7 Although it does not appear in Burlin's written charge, it appears that it was based on Bragg's allegedly falsely claiming on his written application when he joined Local 710 in 1965, that he had 4 years' experience as a journeyman, and that his birthdate was March 2, 1935, whereas his application to join the Respondent Union in 1962 inconsistently declares he was born October 26, 1937. A trial was held July 31, 1972, on Burlin's charges, by a panel selected by the executive committee of the District Council of Carpenters. Bragg was found guilty by the trial panel and on August 28 the delegates to the District Council of Carpenters concurred, and Bragg was notified on August 31 that he was fined $300. He did not appeal the decision nor pay the $300 fine within the 30 days alloted him. Home, Respondent's financial secretary-treasurer, testified he sent Bragg a letter on September 27, notifying him that if the fine was not paid by October 27 "his name will be removed from the list of membership." His union membership was "suspended" on October 27, 1972.8 Brag, however, did not receive until August 31 the "official notification" which was dated August 29 of the $300 fine levied against him by the Los Angeles District Council of Carpenters. On August 29, 2 days before he had received this notice, he went to the hiring hall to pay his dues and to sign the out-of-work list, at which time he was told by Home that he could not accept his dues and that it would be futile for him to sign the dispatch book until he had paid the $300 fine.9 Bragg testified he was told the same thing by Home with you." When Bragg returned to the hall on July 14 to attend a union meeting, Bragg testified that Home said: "Don't come back to another meeting. We don't even want you around the hall." Both Burlin and Home denied these conversations occurred or that they ever threatened Bragg. See fn. 10. r See Reap. Exh. 13, pp. 37(I), 44(L)(N), and p. 53, sec. 55, subdivision 13, which states that "violating the Obligation " may result in a member being "fined, suspended or expelled ...." Subdivision 13, which is "The Obligation," is stated in United Brotherhood of Carpenters and Joiners of America, Local # 1913, AFL-C10[ 189 NLRB at 524, to be "a promise made in a prescribed ritual by each member of a Brotherhood Local at the time he becomes a member, committing him, among other things , 'to abide by the [Brotherhood's ] constitution and laws' and to 'observe the local trade rules of this order.' " a Bragg testified he received a letter on October 4 from Home notifying him that he "was no longer a member." tl On cross-examination, Bragg testified that, although he did not receive (Contimied) 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he returned to the hall on September 27 to sign the register, at which time Home told him that he had made it perfectly clear to him earlier that he would not accept dues from him until he paid the $300 fine. When Respondent's counsel asked Bragg on cross-examination "what was the substance of [his] conversation with Home" on September 27, he answered: He merely told me that he thought Fred Burlin and himself had stated perfectly clear to me that they were not going to accept any dues money from me and I could not sign the out-of-work list until I had paid that $300 fine. Margaret Bragg, the wife of the Charging Party, testified that due to the Union's refusal to refer her husband to jobs for approximately 10 months and his consequent inability to obtain employment they went through bankruptcy proceedings in September and their home was foreclosed in October. The last employment obtained by Bragg through the hiring hall was June 19, and it was not until April 16, 1973, 10 months later, that the union dispatched him to a job.10 On February 28, 1973, Bragg signed a charge against Respondent at the Board's Regional Office and then went to the union hiring hall, at the suggestion of a representa- tive of the General Counsel, and signed his name on the out-of-work register.11 He returned to the hall on March 2, 1973, and noticed that his name which he had signed on the register February 28, 1973, had been "crossed" out by a line being drawn through it. By letter dated April 3, 1973, and signed by Burlin, the dispatcher, Bragg was notified, inter alia, "that you may enter the union offices any time during the business hours to sign on the out-of-work list." Bragg signed the out-of- work list on April 9, -and was dispatched to a job on April 16, 1973, his first union referral in 10 months. Bragg was a candidate for business agent of Respondent Local 1437 in an election held on June 8, 1973, although he was no longer a union member. He testified that he had election material printed at his own expense in May, which he distributed to members. Bragg continued that it was not until some time later that he learned before the election that he was ineligible to run for office upon reading at the union hall a posted notice to members that he was not a member of Respondent Local 1437. -It is uncontroverted that Bragg signed the out-of-work the Union's notification until August 31 that he was fined $300, Home "apparently had already known" of the fine when Bragg requested of Home on August 29 at the union hall that he permit him to sign the 6ut-of-work list, which request Home denied. 10 Bragg testified that his attempt to obtain odd carpentry jobs during the 10 months the Union refused him job referrals was thwarted by Home, who not only threatened him if he did such work but also reported him to the California State Department of Employment for accepting a job to remodel a home on June 28. This testimony stands uncontradicted in the record. See fn. 6. 11 Bragg testified that he asked for Home on February 28, but Home's secretary stated he was not in , whereupon Bragg "went on and signed the book anyhow, since no one was there." " On cross-examination, when asked if Home's presence or absence would have prevented him from signing the out-of-work list, he answered: "I knew what the consequences could possibly have been from prior dealings with Mr. Home .... You are asking me why could Mr. Home possibly prevent me from signing the book without doing anything physically and I am trying to tell you .... When I list on February 28, 1973 , and that later a red line was drawn through his signature. Bragg testified that he did not know who drew the line through his name . It is the testimony of Lurene Coffield, who has been secretary for the Respondent Union, working in Home's office, that she saw Bragg on March 2, as she stood 10 feet away from Bragg, "walk to the Out-of-Work List.12 He was writ- ing.... I observed that he drew a line on the book. At the time I did not know what the line was . . . . About five minutes later Mr. Home came in . . . . We both walked out"and discovered there was a red line on his name in the book." Albert Home, financial secretary-treasurer of Respon- dent, denied that he ever intimidated or threatened Bragg with grievous bodily injury "if he did not go along with the policies and procedures of Local 1437." Home denied he ever saw or spoke to Bragg during the months of July, August, and September, testifying it was not until March 2, 1973, that he saw him. On that date, testified Home, he examined the register and saw a line drawn through Bragg's name. Home denied that it was he who drew the line through Bragg's name. Fred Burlin, who has been the Union's dispatcher since July 1966, denied he ever threatened Bragg directly or implicitly with bodily injury or death. When asked on cross-examination if there was any "animosity" between Bragg and him, he answered: "The only-other than he was harassing me on, the charges he was putting against me . . . . We had differences in the respect that he felt that I was discriminating against him on a job." On cross-examination by Bragg, the Charging Party, Burlin was asked when he first learned that Bragg had falsified his 1962 application for membership in Respon- dent Local 1437, and a second time when he transferred in 1968 from Local 710 to Respondent Union. Burlin's answer reads as follows: Upon the time I received notice that [Bragg's] trial had been held in abeyance and I was checking through and I couldn't understand why. I came upon [Bragg's] record and checked them out and found out that there were wo different birthdates on [his] record . . . . I was hecking back through the records when I received a notice that the trial was held in abeyance and then it dawned on me that he had been an apprentice and dropped out of the program.... [When Burlin was appeared for trial on [July 31 ], the trial committee told me, 'Listen, Mr. Bragg, Fred [Burlin ] and Al [Home] are furious at you and it is best you stay away from the hiring hall:.... They advised me to stay away from the hall for awhile; 'You go back after things simmer down.'. . . . I knew because of prior occasions with Mr. Home and Mr. Burlin what they could do to me. I could be killed and they would say that I raised a hand and it would be self defense and there would be nothing done about it. That's how I felt in my mind." It was elicited that Home never physically prevented Bragg from signing the register, but, as Bragg stated, he was so prevented by Horne's "tongue" and by "words." Bragg continued that he "felt [Horne] could have me disposed of, shall we say." When asked by Respondent's counsel if he "felt" that Home would kill him, Bragg answered in the affirmative, referring to a conversation he had with Home on July 5. See fn. 6. Home denied these assertions of Bragg. 12 Before he signed the register, Bragg attempted to pay his dues, but Coffield refused to accept them, stating he would first have to pay the $300 fine. LOCAL 1437, CARPENTERS asked what he meant by the word "dawned," he answered: ] When I came upon the dates that he come in as an apprentice in 1962. When Burlin was then asked, that inasmuch as the first of these applications was filed 10 years ago and the second in 1968, how did he remember these two incidents in 1972, he answered: "I was on that apprentice program." When he was again asked what impelled him to look into Bragg's file regarding an application in 1962, when Bragg signed up for an apprenticeship program, Burlin answered: "Upon checking through the records when I received notice about the trial in abeyance, it dawned on/me he had been in the Brotherhood as an apprentice and had dropped out for noncompliance with the apprenticeship program." When he was asked what he meant by that, he answered: "They have to go to school one night a week. When they don't, they are brought up before the Board and when they don't comply the third time, they are dropped from the program." Bragg did not comply, added Burlin, as he did not attend classes in 1962 and about a year and a half later "he dropped out in 1964" of both the apprenticeship program and Local 1437. Burlin continued that after Bragg "dropped out," he later reapplied for admission to the Respondent Union which required him to file another written application, whereup- on Bragg was readmitted to, the Union in 1965. Burlin explained that the falsification charge had to do with the application which Bragg made out for readmission after he was dropped from the apprenticeship program in 1964. On this second application which he filed in 1965 for readmission, Burlin stated that Bragg had falsely claimed he had 4 years' previous experience as a journeyman, which was untrue. Burlin, however, did not state the facts upon which he based this conclusion. The second charge of falsification which Burlin imputed to Bragg was that his birthdates did not correspond. This was determined, explained Burlin, by comparing the application that Bragg made out in 1962 when he came in as an apprentice in Respondent Local 1437, as compared with the birthdate he gave when he became a journeyman member in 1965 of Local Affiliate 710 of the Carpenters Union. Burlin recapitulated with respect to this phase of his testimony by stating that Bragg falsified as to his journeyman status and also by misstating the date of his birth, namely, that one application stated he was born on October 2, 1937, and the other application gave his birthdate as March 2, 1935. When Burlin was cross-examined by Bragg, he was asked why he waited until June 1972 to prefer these falsification charges, inasmuch as he was aware of them in 1965. Burlin replied that he did not become a dispatcher until 1966. When Burlin was reminded by Bragg that he had made written application in 1968 to transfer from Local 710 to Respondent Local 1437 as a journeyman carpenter, at which time Bragg's application and union book were in Local 1437's possession, and asked why, with this informa- tion available to him, he had waited until June 1972, 4 13 See fn. 2. 14 Universal Camera Corp. v. N.LR.B., 340 U.S. 474,494-496 (1951). 365 years later, to file charges against Bragg, Burlin answered as follows: I am hired as a representative and as a dispatcher to represent the Carpenters and dispatch them. I have nothing to do with the records as a rule until something specific comes up, which at this time this came up .... Upon the receipt at this trial that he was held in abeyance on the charges, I immediately got to checking back into the trial and the dates on it. Upon this, as I say, I realized that he came in as an apprentice and I thought how in the world ....there is something screwy. I started checking dates. He came into Long Beach [Local 710] as a journeyman and he wasn't. However, Burlin admitted that, when Bragg transferred in 1968 from Local 710 to Respondent Union as a journeyman, union rules required Bragg to make written application which would have revealed these alleged falsif}iccaations. Burlin answered that Bragg "had to get a clearance from the Local he is in, 710. He takes his book out with a clearance to deposit it in the Local 1437 [to ,which he is transferring]." The "book" explained Burlin, "is a record of his name and his record and states his dues and payment of dues. This book is taken from the Local that he is paid up with, a clearance to go in and put in another Local within 30 days.... They have [the members' ] dates and birthdates in the book," including when he joined and when he was elevated from apprentice to journeyman.13 Burlin concluded this phase of his testimony and Respondent's case by stating that when the charge, which Bragg filed against him in the spring of 1972 alleging Burlin was discriminating in job referrals, was "held in abeyance," "I further checked them back and I discovered on the dates that that's when [Bragg] falsified his application." Resolutions of Credibility This is a case where Bragg has been contradicted on all the salient issues by the witnesses for the Respondent. Nevertheless, after observing the witnesses, analyzing the record and the inferences to be drawn therefrom, these conflicting stories are resolved in favor of Bragg's version which it is concluded merits belief.14 He appeared not only to be a sincere, straightforward, and truthful witness, but as one whose character was exemplary as evidenced by his courage in going to Washington to plead for reform in the referral system, knowing he would antagonize Respon- dent's officials. This impression became a conviction when his testimony was found to be both consistent with the attendant circumstances in this proceeding and not appreciably shaken by able counsel for the Respondent who vigorously and thoroughly cross-examined him. Although there is some variance between Bragg's affidavit and his testimony at the trial, such differences exhibited "no more confusion as to details than is not uncommon in . entirely honest and reliable witnesses." 15 Witnesses are frequently demonstrably in error in parts 15 N.LR.B. v. Regal Knitwear Company, 140 F.2d 746 (C.A. 2,1944). See N.LR.B. v. Warrensberg Board & Paper Corp., 340 F.2d 920, 922 (C.A. 2, (Condoled) 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their testimony, but nevertheless believed by the trier of fact in other respects . It is just such judgments that the trier of fact must make.... It is not so unusual for a person to be very positive-and honestly positive-about an event as to which other evidence shows that he cannot be right.16 On the other hand, the demeanor of Coffield and Home while on the witness stand left much to be desired and their recital of what occurred when it was claimed Bragg drew a line through his name on the register was not only improbable but also lacks plausibility and strains one's credulity. Moreover, both of them were, at times, evasive and displayed an inadequate memory.17 Burlin did not impress the trier of these facts as an honest and forthright witness as he seemed not only to be seeking to color his testimony but also to be concealing facts. Moreover, Burlin's fragmented testimony and appar- ent display of uneasiness when testifying, coupled with his unresponsive and incomprehensible answers, examples of which are cited above, as well as his ambiguous, confusing, vague, and evasive replies to crucial questions, militates against ascribing credence to his denial that he was improperly motivated in preferring charges against Bragg for alleged falsifications which occurred 7 to 10 years before this trial and were condoned until 1972. Burlin's enmity and hostility toward Bragg originated when Bragg had gone to Washington , D.C., and com- plained to officials of the International , including the president, that Burlin operated the hiring hall job referrals in a discriminatory manner. This was further aggravated when Bragg preferred charges against Burlin protesting to Respondent Union and the District Council of Carpenters, as well as complaining to McCulloch, president of the California State Council of Carpenters, regarding Burlin's alleged discriminatory job referral practices. These various actions by Bragg caused Burlin , in turn, to retaliate by filing charges alleging Bragg was creating dissension in the 1965); Kalof Pulp & Paper Corporation, 123 NLRB 1623, 1628-29, enfd. 290 F.2d 447 (C.A. 9,196 1). is Lozano Enterprises v. N.LRB., 327 F.2d 814, 816 fn. 2 (C.A. 9, 1964). IT Bragg's testimony that he did not draw the ]me through his name is credited and Coffield's assertion that she saw Bragg do so is discredited, as it is believed her story was contrived. Although Coffield was speaking to a union member when she alleged the incident in question occurred, this member was not called as a witness by Respondent, because Coffield claims she could not remember his name. Although the Union has over 500 members, she testified she recognized Bragg when he came into the hall on March 2, and was even aware of how many months he had not been in the union hall, yet she was unable to remember the name of the member with whom she was conversing when Bragg drew a line through his name. Noteworthy in this regard is the occurrence of the same situation , i.e., the drawing of a line through a registrant's name, in Carpenters Local 1913, supra at 526, where Local 1913, like Respondent herein, is affiliated with the Los Angeles District Council of Carpenters. Also significant is McCulloch, president of this council, whom Bragg testified threatened him with serious consequences if he continued to complain about Burlin and Home, who was not called as a witness, to deny the threats imputed to him by Bragg and stands uncontradicted in the record. The failure to produce not only McCulloch who was under its control, but also the union member who was present when it is claimed Bragg drew a line through his name, both of whom were presumably available to testify, justifies an inference that the evidence, if produced, would have been adverse to Respondent . Interstate Circuit v. U S. , 306 U.S. 208, 225-226; Kirby v.Talbnadge, 160 U.S. 379, 383 (1896); N.LRB. v. Waiick & Schwalm Company , 198 F.2d 477, 483 (C.A. 3, 1952); N.L.R.B. v. Oluo Calcium Co., 133 F.2d 721 , 727 (C.A. 6, 1943); Union and falsifying his age and journeyman status. It is found, for the reasons hereinafter explained, that the reason for Burlin initiating these charges was a subterfuge to conceal his real motivation, namely, to rid the Union of Bragg because of his charging Burlin with discrimination in job referrals, and complaining to the union hierarchy in Washington and also to McCulloch, an official of the Los Angeles District Council. Burlin's aim was to suppress Bragg's protected right to protest and to punish him for exercising this right and not because of Bragg allegedly violating "The Obligation," a nebulous and ambiguous charge, the meaning of which is neither clear nor pertinent in the context of Bragg charging Burlin with discriminatory job referrals which has no relevancy to "Me Obliga- tion." is Such conduct, under the circumstances here present, it would not be too unreasonable to infer, was part of a preconceived scheme to rid the Union of Bragg, and it is so found, for the reasons hereinafter explained. Discussion and Conclusions'9 Section 7 of the Act provides in pertinent part that "employees shall have the right to self-organization, to form, join, or assist labor organizations . . . [and) to refrain from any or all of such activities...." Clearly encompassed within the guarantees of Section 7 is the protected right of a union member to file, without fear of reprisal by his union, a grievance, petition, or charge on behalf of a dissident group alleging that its dispatcher is discriminating in referring job applicants registered on the out-of-work lisL20 Well-settled law establishes the principle that it is a violation of the Act for a union to retaliate against or punish one of its members for seeking redress of perceived grievances or complaints concerning the manner in which its referral system is being administered. In this context, the mandate of Section 8(bx1XA) of the Act which makes it an unfair labor practice for a union "to restrain or coerce" its members "in the exercise of the rights guaranteed in Section 7," is of prime importance in Concord Supplies & Equipment Corp., 110 NLRB 1873, 1876; Texas Coro- Cola Bottling Co., 146 NLRB 420, 433, fn. 14. The absence of these two witnesses "not only strengthens the probative force" of the contention that Burlin and Home were discriminatorily motivated, "but of itself is clothed with a certain probative force." Paudler v. Paudler, 185 F.2d 901, 903 (CA. 5,1950), cert. denied 341 U.S. 920 (1951). 's See fn. 7. Ie The relevant provisions of Sec. 8 of the National Labor Relations Act, as amended (61 Star. 136, 65 Star. 601, 72 Stat. 945, 29 U.S.C., Sax. 151, et seq. ) are as follows: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provides; That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; ... for the purpose of collective bargaining or the adjustment of grievances; (2) ... to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. 20 Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N.LRB., 347 U.S. 17; Top of Waikikb Inc. v. N.LR.B., 429 F.2d419, 419,421 (C.A. 9, 1970); Morrison-Knudsen v. N.LRB., 358 F.2d 411, 413-414 (C.A. 9, 1966); Local 138, International Union of Operating Engineers v. N.LRB., 321 F.2d 130 (C.A. 2, 1963); Local 138, International Union of Operaft Engineers (A. Cestone Company,; 118 NLRB 669. LOCAL 1437, CARPENTERS safeguarding these rights of union members to engage in concerted activities looking towards redress of grievances. Any restraint or coercion used to restrict or defeat that right is beyond the legitimate interests of a labor organization.21 Where the motive for union-caused discrimination is based on grounds such as anger, enmity, or personal hostility toward a member asserting a complaint against union officials which is protected activity-even though provoked by insulting or obnoxious behavior on the part of the complaining member-this motive is nevertheless unlawful for it also "encourages membership in [the Union] and stands as a warning to employees that the favor and good will of responsible union officials is to be nurtured and sustained." 22 Thus, where a union operates an exclusive hiring hall under a collective-bargaining agreement with employers, as is the situation in the case at bar, and pursuant to that agreement refused to refer a job applicant in retaliation for his having filed an intraunion grievance against one of its officials for alleged discrimination, such conduct is violative of Section 8(bX2).23 Section 8(bxl)(A) and (2) makes it an unfair labor practice for a union, operating an exclusive hiring hall under a valid agreement requiring union membership, to refuse to refer an employee to employment because membership has been denied to him, or his membership terminated for reasons "other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership," 24 it follows that union fines and other penalties "not being periodic dues" may not be enforced by the Union through a threat of loss of employment 25 Thus, by denying Bragg referrals when he repeatedly requested job assignments to which he was entitled, because he did not pay the $300 fine, the Respondent Union violated Section 8(bX2) and (1XA) of the Act. When Burlin refused to refer Bragg for employment because Bragg incurred his enmity by charging Burlin with discrimination, he committed an unfair labor practice.26 Burlin, in turn, retaliated by preferring charges with Respondent accusing Bragg of falsely misstating his age and job experience in filling out certain union applications. Bragg was found guilty by a trial board of the Union and notified on August 31 that he was fined $300, which he claimed he was unable to pay. Thereafter, when Bragg attempted on several occasions to pay his dues, his tender 21 See N.L R. B. v Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 424 (1968). u Local 1070 of the United Brotherhood of Carpenters and Joiners of America (B W. Horn Company), 137 NLRB 439, 442. Accord : Lunumrs, infra 21 Local 138, Operating Engineers v. N LR.B, supra; N.LR.B. v. A & B Zinman, Inc., 372 F.2d 444 (C.A. 2, 1967) 24 See Radio Officers Union v. N.LR.B, 347 U.S. 17, 31-33, 41-42. % N.L.R.B. v. Spector Freight System, 273 F.2d 272, 276 (C.A. 8, 1960), tart denied sub nom. Local 600 Highway & City Freight Lines Dockmen & Helpers V. NLRB, 362 U.S. 962; Eclipse Lumber Co, Inc, 199 F.2d 684, 685 (C.A. 9, 1960) (payment of a fine "in no event" may be made a condition of employment). See N.LR.B. v. Fisherman & Allied Workers Union, Local 33, 448 F.2d 255, 257 (C.A. 9,197 1) (union may not condition employment upon payment of "reinstatement fee ') 26 Whenever mention is made hereafter of the basis for Burhn's and Home's animosity toward Bragg, this includes, in addition to the charge of 367 was refused at different times by Burlin, Home, and Coffield,27 who told him as recently as March 1973 that they could not accept dues from union members who had fines outstanding. This repeated refusal to accept Bragg's dues tender caused him to become involuntarily delinquent and thus ineligible for referral. Moreover, his inability to pay the $300 fine was not a valid reason for refusing to refer him to available jobs 28 It appears that Bragg had no trouble in obtaining referrals from 1968, when he transferred to Respondent Local 1437 from Local 710, until June 1972, when the accusation of discrimination in job referrals was made by Bragg against Burlin, who retaliated by preferring charges against Bragg which eventuated in his being refused referrals until he paid the $300 fine. This constituted an unfair labor practice as it breached the wall erected by the Act between organization rights and job opportunities,29 and, when the Union fined Bragg under the circumstances here present, it also restrained and coerced him within the meaning of Section 8(bXlXA), as a fine is by nature coercive. Under Section 8(bX2), a union which has entered into a valid union-security agreement may lawfully expel a member because of his failure to pay dues. It may not, however, invoke such sanctions on some other ground, as, for example, where the member engages in concerted protected activities, such as charging a union official with discriminatory operation of its job referral system. Nor may a union assign an otherwise lawful reason as a pretext to justify discrimination based upon unlawful considera- tions.30 If the members' expulsion results from anything other than nonpayment of dues and initiation fees uniformly required of members, it is a violation of the Act. Motivation is controlling and the existence of a lawful basis for expulsion is no defense to a union where the true reason is a prohibited one.31 The Respondent Union contends, however, that Burlin refused to refer Bragg, not because of animosity created when Bragg accused him of discriminating against job applicants but because he misstated his age and job experience resulting in the levying of a fine which he refused to pay, thereby making him ineligible for job referrals. The issue thus presented is one of fact, i.e., what was the true purpose or real motive behind the actions of Burlin and Home in initiating charges against Bragg. 32 In deciding the question of these two union officials' motives in the context of the circumstances here present, reliance discrimination in job referrals, Bragg's complaining to International officials in Washington, D.C., and also to McCulloch, the California state president of the Carpenters. 27 Coffield, who was Horne's secretary, refused to accept Braggs dues when he proffered them at the union hall on March 2, 1973. 23 N.LR.B. v. Eclipse Lumber Co., supra; N.LR.B. v. Spector Freight Co., supra. 29 Lummus Company v. N.L.R.B., 339 F.2d 728, 733-734 (C.A.D.C., 1964). Accord: N.LR.B. v Local 490, International Had Carriers, Building and Construction Laborers, 300 F.2d 328, 332 (C.A. 8, 1962). 30 See N.LR.B v Local 57, International Union of Operating Engineers, 201 F.2d 771, 775 (C.A. 1, 1953). 31 N.L.R.B. v. I.A.M., Local 504, 203 F.2d 173 (C.A. 9, 1953); N.LR.B. v. L Ronney & Sons Furniture Co., 206 F.2d 730, 731 (C.A. 9), cert. denied 346 U.S. 937 (1953). Cf. N.LR.B. v. Wal ick, supra at 484. 32 Lummus Company v. N.LR.B., supra at 734. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may be had on circumstantial as well as direct evidence and the reasonable inferences to be drawn therefrom.33 In finding Respondent engaged in proscribed conduct, it was incumbent to look behind Respondent's defenses and analyze the allegations of unfair labor practices against the background of Local 1437's activities and the record as a whole. Such analysis leads to the inescapable conclusion that Respondent Union discriminated against Bragg in order to discourage him from exercising his Section 7 rights and to discourage other members from similarly doing so. Moreover, the background of Bragg's relationship with Respondent Union's hierarchy during 1972 and the demonstrated animus against Bragg cannot be ignored in seeking meaning for the Respondent's conduct 34 The sequence of events detailed above supports the inference that Burlin's motive in filing charges against Bragg was in retaliation for Bragg's protected activity in filing charges against Burlin . To hold otherwise would be tantamount to disregarding the fundamental purpose of the Act to protect union members from retaliation for asserting their prerogative to petition their union to redress a grievance. The deep hostility which Burlin and Home felt toward Bragg is evidenced by the serious threats, supra, which they made against Bragg after he had charged them with discriminating against members in not adhering to the union provisions regulating the operation of the job referral system and complaining to officials of the International Union in Washington, D.C., and also McCulloch, of these derelictions.35 It was shortly thereafter that Burlin filed charges alleging that Bragg had misstated his age and job experience in filling out various union applications . It is not too unreasonable to infer, and it is so found, that Burlin upon being accused of operating the Union's hiring hall in a discriminatory manner was so incensed that he decided to retaliate by charging Bragg with some infraction of union provisions regulating the conduct of members. In an effort to find some such union rule that he could charge Bragg with having violated, the attendant facts and circumstances herein imply that Burlin checked the Union's records and also examined Bragg's file which contained various applications and forms Bragg had filed over the past 10 years since he originally became a member of Respondent Union in 1962. In his hunt for a discrepancy, the only inconsistency Burlin's search re- vealed was a difference of 20 months in two birthdates on Bragg's applications and a misstatement in 1965 of the number of years' job experience he had as a journeyman when he transferred to Local 710, a constituent local affiliate of the Los Angeles Carpenters District Council. Bragg's records, which were on file with the Respondent and upon which Burlin based his charge of false state- ments, were available to Burlin since 1968 when Bragg transferred from Local 710 to Respondent Local 1437. It was not until Bragg aroused the animosity of Burlin by filing charges that Burlin suddenly evinced an interest in 33 Universal Camera Corp v. NLRB , supra at 488 ; NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (C A. 8, 1965). 34 Local 294, Intl. Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America (Rubber City Express), 204 NLRB No 92. 35 Home, who it is found conspired with Burlm to "get even" with Bragg, was in charge of job referrals in the absence of Burltn. 36 See Seafarers International Union of North America AFL-CIO searching through the Union's files in an effort to find something with which to square accounts with Bragg. The only thing this quest unearthed were the two trivial misstatements made many years before and having no relevancy or probative value to the union trial board's finding that Bragg violated "The Obligation," the meaning of which is nowhere to be found in this record. Section 55, subdivision 13 of the Union's constitution provides that "violating The Obligation may result in a member being fined, suspended or expelled ....In Carpenters Local 1913, 189 NLRB at page 524, an affiliate of Respondent Union, "The Obligation" is stated to be "a promise made in a prescribed ritual by each member of a Brotherhood local at the time he becomes a member, committing him, among other things, 'to abide by the [Brotherhood's] constitution and laws' and to `observe the local trade rules of this order.' " (See fn. 7.) Not only are these picayune charges, after being condoned for so many years, found to be spurious, but it is also believed that they were pretextuous afterthoughts fabricated by Burlin, in which scheme Home collaborated, as a means of vengeance against a dissident, thus ridding the Union of the annoying and irritating presence of Bragg, whom they conceived to be an agitator. Inasmuch as the credited testimony supports the finding that Burlin and Home 's motives were not a lawful basis under the Act for discrimination, it is found that Respondent violated Section 8(b)(2) of the Act. Not only is the Respondent's contention that Bragg refused to make himself available as an applicant for employment without merit, but it has failed to sustain its burden of establishing this affirmative defense . Under the circumstances of this proceeding, it would have been of no use for Bragg to have made the nugatory and futile gesture of presenting himself weekly for referral at the union hiring hall in view of the serious threats of Burlin and Home, warning Bragg to stay away from the union hall. The law does not require a vain act where, as here, the Respondent Union's own conduct had rendered impossible any hope of Bragg being referred to a job.36 The credited testimony of Bragg reveals that Burlin, Home, and McCulloch directly and impliedly threatened Bragg with violence and reprisals thereby intimidating him. Such conduct is a violation of Section 8(bXIXA). Section 8(b)(1XA) was intended primarily to eliminate physical violence, threats, intimidation, or related conduct by labor organizations37 Where a member of a labor organization complained, inter alia, with respect to the conduct of his union, because the union sought to enforce a rule through "means unacceptable ... such as violence or .. . discrimination," such rule, the Supreme Court held, could not be lawfully enforced.38 It is now well established that conduct banned by Section 8(b)(IXA) includes "union tactics involving violence, intimidation, and reprisal or threats thereof." 39 The record in this case reveals that Burlin seemingly used (Isthmian Lines) 202 NLRB No. 91; NLRB v. Murphy's Motor Freight, Inc, 231 F 2d 654, 655 (C.A. 3, 1956). 37 Miami Copper Company, 92 NLRB 322 38 Scofielr4 et at. v. N.LR.B., 394 U.S 423, 430, 431 (1969). 39 N L R B v. Drivers, Chauffeurs and Helpers Local Union No. 639, IBT, 362 U.S. 274, 290 (1960). LOCAL 1437, CARPENTERS the referral system as a tool to discnminatorily deny job opportunities not only to Bragg but apparently to other members of Local 1437, not parties to this proceeding, on whose behalf Bragg filed charges of discrimination. Because Bragg had dared to charge Burhn with discrimina- torily operating the job referral system, Bragg was deprived for 10 months of the opportunity to earn a livelihood at the carpentry trade which resulted in him going through bankruptcy proceedings and losing his home. I am persuaded not only that Burlin's conduct was serious, as evidenced by Bragg's travail, but that he was "the" Union, insofar as the operation of the referral system was concerned, in that he used his power in that regard to punish Bragg because he opposed him. Therefore, to those members who, in earning a living as a carpenter, have to reckon with Burlin's exercising control over employment, discreteness would constrain them not to incur his displeasure by any actions which gave the appearance of dissidence. The inescapable effect of what occurred to Bragg because he dared question Burlin's operation of the referral system was to impress all union members that Burlin was a potent force whose opposition was to be avoided through fear of consequences for incurring his displeasure so that members were obliged to follow his dictates in order to preserve their opportunity for employ- ment as most, if not all of them, observed or learned what Bragg's fate was when he dared to question the fairness of Burlin's job referrals. By Burlin preferring charges against Bragg, which eventuated in Bragg being denied any referrals to jobs for 10 months, Burlin displayed to all members who might invite his resistance or hostility what power he possessed and the strong measures he was prepared to take against those who antagonized him. In the milieu in which Burlin operated the referral system and his economically encompassing relationship with the union members, it is quite apparent that all applicants for job referrals were being restrained or coerced within the 40 F. W. Woolworth Co, 90 NLRB 289, Isis Plumbing & Heating Co, 138 NLRB 716. 369 meaning of Section 8(b)(1)(A) of the Act when they were made aware of what might happen to them if they should oppose the union hierarchy as did Bragg. CONCLUSIONS OF LAW Respondent committed unfair labor practices within the meaning of Section 8(bXIXA) of the Act when it restrained or coerced employees in the exercise of rights guaranteed by Section 7 of the Act. Respondent also violated Section 8(bX2) when it discriminatorily and for proscribed reasons refused Matt A. Bragg referrals between June 20, 1972, and April 16, 1973. THE REMEDY It has been found that Respondent violated the Act. It shall be recommended, therefore, that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It shall also be recommended that Respondent be ordered to pay Matt A. Bragg for any loss of pay suffered as a result of the coercion, restraint, and discrimination against him in accordance with the Woolworth and Isis cases.40 It is further recommended that Respondent reimburse Bragg for the loss of his share of the jobs which were available between June 20, 1972, and April 16, 1973. To this end, it shall be recommended that Respondent give Bragg compensatory pay sufficient in amount to make up the difference between what Bragg earned and what he would have earned but for such unlawful discrimination. A suggested formula for reimbursing Bragg would be to reimburse him for the average earnings received by a group of representative applicants for job referrals from Respon- dent's hiring hall during the period of time stated above41 [Recommended Order omitted from publication.] 41 Cf. Local 925, Operating Engineers, 180 NLRB 759. See Local 513, Operating Engineers, 145 NLRB 554.