Painters Local Union No. 585

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1362 (N.L.R.B. 1966)

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