Local 520, International Union Of Operating Engineers, Afl-Cio

National Labor Relations Board - Board Decisions

Jun 11, 1990

298 N.L.R.B. 768 (N.L.R.B. 1990)

768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local 520 , International Union of Operating Engi-
neers , AFL-CIO and Mautz & Oren, Inc.
Cases 14-CB-6839 and 14-CP-461
June 11, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 17, 1990, Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
Respondent filed exceptions and moved to dismiss
the complaint, and the General Counsel filed a
reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Local 520,
International Union of Operating Engineers, AFL-
CIO, Granite City, Illinois, its officers, agents, and
representatives, shall take the action set forth in the
i The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are^mcorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge found, and we agree, that the Respondent violated Sec
8(b)(1)(A) of the Act by imposing fines on employee/members Burgess
and French because they refused to honor an unlawful picket line The
proviso to Sec 8(b)(1)(A) provides that restrictions on union conduct
shall not impair "the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of membership " None-
theless , a union 's fining members is unlawful if, as here, that fining im-
pairs a policy that Congress has imbedded in the labor laws Compare
Scofield v NLRB, 394 U S 423 (1969). Here, the Respondent's fines un-
paired the policy set forth in Sec. 8(b)(7)(C) against picketing for recog-
nition without a petition being filed within a reasonable period of time
Thus, in adopting the judge , we rely additionally on the reasoning ad-
vanced in analogous cases such as NLRB v. Stationary Engineers Local 39,
746 F 2d 530 (9th Car 1984), enfg. 268 NLRB 115 (1983), in which the
court affirmed the Board 's finding that a union had unlawfully threatened
and fined members who had crossed another union's unlawful picket lines
at a hospital See also Plumbers Local 444 (Hanson Plumbing), 277 NLRB
1231 (1985)
In light of our decision to adopt the recommended Order, we deny the
Respondent 's motion to dismiss the complaint
a In adopting the judge 's recommended remedy , we make it clear that
the make-whole award to employees French and Burgess set forth by the
judge shall be paid with interest to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987)
The Respondent contends for the first time in its exceptions that its
picketing fell within the protection of the second proviso to Sec.
8(b)(7)(C) We reject this contention as untimely raised
Order except that the attached notice is substituted
for that of the administrative law judge.
APPENDIX
NOTICE To MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten to picket or cause to be
picketed Mautz & Oren, at any and all locations in
the State of Illinois where an object is to force or
require Mautz & Oren to recognize or bargain with
us as the collective-bargaining representative of
certain of its employees.
WE WILL NOT threaten to impose fines, and levy
fines against our member/employees because they
refuse to cross an illegal picket line and because
they refuse to illegally picket.
WE WILL NOT cause our members who were em-
ployees of Mautz & Oren to resign their employ-
ment with Mautz & Oren as a consequence of our
illegal picketing and unfair labor practices.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL rescind the fines levied against Greg
Burgess and David A. French, and return the fines
we collected from them, and reimburse them for all
earnings and other benefits they lost because they
resigned their employment as a consequence of our
illegal picketing and unfair labor practices and WE
WILL reimburse them for all travel and other ex-
penses which they incurred in connection with ap-
pearing before our executive board to defend them-
selves against the internal union charges which we
filed against them. WE WILL expunge any records
of their fines.
WE WILL pay Burgess and French all of the
moneys referred to in the paragraph above with in-
terest.
LOCAL 520, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-
CIO
Stephen B. Smith, Esq., for the General Counsel.
Harold Gruenberg, Esq., for the Respondent.
Michael J Bobroff, Esq., for the Charging Party.
298 NLRB No. 109
OPERATING ENGINEERS LOCAL 520 (MAUTZ °& OREN) 769
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This
case was tried at St. Louis, Missouri, on April 27, 1988.
The charge in Case 14-CB-6839 was filed by Mautz &
Oren, Inc. (the Charging Party), on February 12, 1988.
The charge in Case 14-CP-461 was filed by the Charg-
ing Party on February 12, 1988. The order consolidating
cases, consolidated complaint, and notice of hearing
issued on March 9, 1988.
The complaint alleges violations within the purview of
Section 8(b)(7)(C) and (1)(A) of the Act. Specifically the
Union [Respondent] is alleged to have engaged in picket-
ing for the purpose for securing from the Charging Party
a collective-bargaining agreement without filing a valid
petition under Section 9(c) of the Act. Also alleged is
coercive conduct by Respondent for fining two employ-
ees who crossed the picket line, and causing them to
resign their employment.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the motion to dismiss and the opposition to the motion to
dismiss, and the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, the Charging Party, a cor-
poration with an office and place of business in Ef-
fingham, Illinois (the Effingham facility) and jobsites at
Vandalia, Illinois; Centralia, Illinois; Salem, Illinois; and
Wamac, Illinois, has been engaged as a contractor in the
construction industry.
During the 12-month period ending January 31, 1988,
the Charging Party, in the course and conduct of its
business operations, purchased and received at its jobsite
located within the State of Illinois products, goods and
materials valued in excess of $50,000 directly from points
outside the State of Illinois.
The Charging Party is now, and has been at all times
material , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION
Respondent is now, and has been at all times material,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Charging Party is engaged in the construction of
bridges, highways, waste wal.er facilities, and like
projects. It has had contractual relationships with- Re-
spondent going back at least as far as 1961. The parties
most recent collective-bargaining agreement was of the
duration period August 1, 1984,1 to July 31, 1987.
All of the contracts recognized in the building and
construction industry as prehire agreements are permit-
ted under the proviso of Section 8(f) of the Act. The Re-
i The contract was executed on March 20, 1985
spondent concedes that it has never been certified in a
Board-conducted election.
The most recent contract involved a bridge construc-
tion project on route 45 south of Mt. Vernon, Illinois.
The contract was executed at a conference prior to when
any individuals had been employed as equipment opera-
tors. After the contract was signed, it was several
months before work commenced. The Charging Party
only executed the highway segment of the contract, not
the building and heavy construction section. At the expi-
ration of the most current collective-bargaining agree-
ment, both parties gave timely notice.
Prior to expiration of the last contract, on June 19,
1987, Charging Party's president Tom Arnold received a
telephone call from Respondent's business agent Jim
Chapman. Chapman inquired what Arnold intended to
do regarding renewal of the contract. Arnold responded
that he did not know, but he would make a notation on
his calendar and he suggested that Chapman do the
same.
On July 21, 1987,2 Arnold attended a prejob confer-
ence relating to a project involving construction of a
sewage treatment plant in Womac, Illinois. In attendance
at the meeting was Chapman who asked Arnold what
the Employer's intentions were concerning a contract.
Arnold replied that he did not know what the Company
was going to do.
On August 7, 1987, at another prejob conference in
Vandalia, Illinois, Respondent's president Elmer Weber,
who was in attendance, tendered two contract proposals
to Arnold for his review. Arnold told Weber he did not
know what the Employer was going to do but the con-
tract that he had been under was "repugnant" and he felt
changes needed to be ' made. According to Arnold,
Weber responded that if he makes too many changes and
he, Weber, takes it back to the membership for ratifica-
tion and if they fail to ratify it, Local 520 would have to
strike. Arnold responded that he was a reasonable
person.
Record testimony by Arnold reflects that historically
the geographical jurisdiction of Respondent has included
16 counties in southwest Illinois. The bulk of these coun-
ties, roughly 12, ,would be in Highway District 8. Three
counties, Fayette, Marion, and Jefferson, are in Highway
District 7. Perry County would be in Highway District
9. There has been a multiemployer bargaining history en-
compassing this area between Respondent and the South-
ern Illinois Builders Association (SIBA) and the South-
ern Illinois Contractors Association (SICA).
The Associated General Contractors of Illinois
(AGC), another multiemployer group,3 also has con-
tracts with the Operating Engineers, different locals,
covering counties other than three in Highway District
7. -
Arnold is also labor committee chairman for AGC.
Bill Ragenhardt is either president or a member4 of
2 All dates are in 1987, unless otherwise indicated
8 The Charging Party is a member of AGC
4 Arnold's testimony is not clear regarding Ragenhardt's status
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Southern Illinois Asphalt and Wabash Valley Contrac-
tors Association , another multiemployer group.
A meeting was arranged for August 14, at Heidi Ho,
Carlyle, Illinois, between Respondent and the contrac-
tors. The contractors aimed to explore the feasibility of a
three-county agreement covering the counties of Fayette,
Marion, and Jefferson. In the words of Arnold, by way
of explaining his purpose ; "The traditional multi-employ-
er bargaining group of the Southern Illinois Builders As-
sociation and the Southern Illinois Contractors Associa-
tion ended with this particular contract and because of
that it became apparent that there was an opportunity
for those contractors who worked in Highway District 7
to regain some control over their destinies and, there-
fore, they thought it might be desirable to explore that
agreement, or that concept to determine whether it was
feasible to develop a contract for it."
In attendance at the meeting were Arnold , his son, Ra-
genhardt, and Eric Fields, director of labor relations for
AGC. Present for Respondent were President Elmer
Weber and Business Agent Jim Chapman.
Arnold testified that at the meeting he specifically
stated to union representatives that they (the contractors)
were not there to negotiate a contract, rather "we were
there to explore a new concept to develop whether it
was feasible and desirable to have a new multiemployer
bargaining unit that could cover the counties of Fayette,
Marion and Jefferson , Illinois." Moreover , Arnold ad-
vised that he was speaking for AGC and Ragenhardt
would be speaking for the Wabash Valley Contractors
Association.
The union representatives gave the employer repre-
sentatives a contract proposal which had been agreed
upon by other contractors and would be voted upon by
the employees that evening. It was understood at the
conclusion of the August 14 meeting that the Union's ex-
ecutive board would meet to consider the possibility of
the three-county agreement and the Respondent would
give its answer on August 17.
Union witness Weber testified that he thought he at-
tended the August 14 meeting to negotiate a contract
with the 'Charging Party and Ragenhardt. He concedes
that there was discussion relating to the Charging Party's
interest in a three county agreement . Weber responded
to a question as to whether Arnold or Fields made the
statement that they were not there to negotiate a con-
tract for the Charging Party, that if that statement was
made he was going to have to get a hearing aide, be-
cause he certainly didn't hear it. He testified , additional-
ly, that he did not think it was said, because he didn't
hear anybody say anything like that.
In a letter dated September 21, 1987, Respondent's
business manager Daniel Ellis advised Carl Moore, busi-
ness manager for the Southern Illinois Laborers District
Council , inter alia , that Respondent was informed at the
August 14 meeting that the Charging Party did not
intend to negotiate at that time, but wanted to establish
certain preconditions before they would agree to negoti-
ate.
Ellis, who furnished an affidavit in the presence of Re-
spondent's attorney to support an 8(a)(5) charge stated,
inter alia, "Chapman and Weber informed me that
Arnold purported to represent the AGC; that Ragen-
hardt was purportedly representing the Wabash Valley
Contractors Association and Fields was serving as
spokesman . As I understand , neither of the three would
agree to negotiate a contract , which Chapman said was
the purpose of the August meeting. Instead , they pur-
portedly wanted to explore the possibility of negotiating
a three county agreement."
On August 17, Arnold telephoned Chapman to find
out Respondent 's response to the three county idea.
Chapman initially seemed not to know what Arnold was
talking about, but finally replied that the Union was not
interested in such an agreement . Chapman then asked
Arnold whether the Charging Party intended to sign the
Union's contract. Arnold replied that it was not interest-
ed. Chapman did not testify in this proceeding.
Commencing September 1, 1987, the Union picketed
various jobsites of the Charging Party using signs which
stated , "Mautz & Oren On Strike , Local 520 Operating
Engineers." Thereafter on September 21, 1987, the
Union filed an unfair labor practice charge alleging that
the Charging Party, had refused to bargain in violation
of Section 8(a)(5) of the Act. Simultaneously therewith,
the Union changed their picket signs , and has continued
picketing using signs stating "Mautz & Oren Is Refusing
to Bargain with Operating Engineers, Local 520 In Vio-
lation of the National Labor Relations Act."
The 8(a)(5) charge was dismissed by the Regional Di-
rector for Region 14 and the dismissal was upheld on
appeal.
At the time picketing commenced, the Charging Party
was working on a bridge at Vandalia, Illinois, a street
improvement project at Centralia, Illinois, a sewage
treatment plant at Womac, Illinois, and a railroad under-
pass project at Salem, Illinois.
Work on the sewage treatment project began on Sep-
tember 15. Work on the other projects began before the
expiration of the contract between the Charging Party
and Respondent.
On September 8, Chapman called Arnold and asked
whether he would execute the Union's contract. Arnold
asked what he would have to do to get rid of the pickets
and Chapman replied that the Charging Party would
have to sign Respondent 's agreement . Arnold responded
by refusing.
On September 16, the Charging Party and Respondent
met at the Comfort Inn in Vandalia, Illinois. The meet-
ing was arranged by Respondent 's International repre-
sentative Bob Moore , who telephoned Arnold requesting
a meeting to discuss their "problem." In attendance at
this meeting were Ellis, Chapman, and Moore represent-
ing the Respondent . The employer representatives were
Arnold and Fields.
At the beginning of the meeting Moore remarked that
he had called the meeting to try and resolve the problem
and negotiate a contract . Fields responded that the Em-
ployer was not there to negotiate and would not negoti-
ate, that they were there to resolve a problem insofar as
the Charging Party was concerned, and the problem was
the strike and picketing . During the meeting union repre-
sentatives requested repeatedly to negotiate a contract
OPERATING ENGINEERS LOCAL 520 (MAUTZ & OREN) 771
saying that if they were not there to negotiate, they
didn't understand what the meeting was for.
Ellis averred that the Charging Party brought the
strike upon itself by refusing to negotiate on August 14,
and refusing to sign Respondent's contract. Ellis further
asserted resolution of the stnke required negotiation by
the Charging Party. Fields stated he would not negotiate
during the strike and picketing. Moreover, even after
cessation of the strike and removal of pickets, the Re-
spondent must offer compensation for damages.
According to Fields, Arnold stated he did not believe
the Respondent represented any of his employees, cer-
tainly not a majority. Moreover, according to Fields,
Arnold stated that under recent changing law he,
Arnold, had no obligation to negotiate a prehire agree-
ment. Arnold also testified that he didn't feel or think
that Respondent represented his employees and he was
no longer obligated to sign a prehire agreement. He testi-
fied that at this meeting he specifically communicated
this to Respondent's representatives. As the meeting
closed, union representatives requested the names of re-
placement employees but the Charging Party refused
this. Thereupon the Union announced that the pickets
would not be removed and the Charging Party declared
that the meeting was over.
Ellis acknowledged in his testimony, that Fields stated
at the September 16 meeting that he was not there to ne-
gotiate a contract.
On September 17, Arnold attended a prejob confer-
ence in Centralia, Illinois. Prior to this he had received a
telephone call from a business representative of Local
841, Pearson, of the Operating Engineers, stating that
Respondent's International representative, Bob Moore,
had spoken with him that day. Pearson asked Arnold
whether he would be willing to negotiate concerning a
three county 'agreement for Local 520 if Bob Moore con-
ducted the negotiations on behalf of Local 520. Later
that day at the prejob conference in Centralia, Arnold
told Laborers business manager, Carl Moore, about the
conversation. Arnold did not offer any guarantee, to
either union representative, that the employer would ne-
gotiate an agreement on this basis. Arnold did tell Carl
Moore that if it were done this way, that he probably
could come up with something.
Following this meeting, Carl Moore, of the Laborers
Union sent a telegram to Respondent Local 520. The
telegram was not authorized by the Charging Party nor
is there any,evidence that it was sent at the Charging
Party's request. Perusal of the telegram reflects that the
writer attempts to speak for the Charging Party.
The response from Carl Moore , business manager of
the Laborers District Council, to Ellis dated September
21, is reflected in General Counsel's Exhibit 20.
The 8(b)(1)(A) Allegations
Employee David French began working for the
Charging Party on October 6, 1987, and employee Greg-
ory Burgess worked for the Charging Party for from 10-
12 years. Both employees were members of,sister locals
of the Respondent. It is undisputed that they worked for
the Charging Party, crossing the picket line, during the
strike (and picketing) at the various jobsites within Re-
spondent's jurisdiction.
Respondent filed internal union charges against these
employees. Respondent's executive board held hearings
on November 19 and 25 to determine the charges against
Burgess and French.
At these hearings both employees were asked to par-
ticipate, in the Union's picketing.
French testified that the executive board advised him
that if he continued to cross the picket line he would
lose his book, he'd be fined, and he would lose his pen-
sion. He further testified that he felt that if he quit work-
ing for the Charging Party he might save his card and
book (union membership). French was fined $1000 and
paid his fine pursuant to the Union's constitution and
bylaws, to his home local, which was then responsible
for forwarding this sum to the' Respondent. Throughout
his testimony French contended that the basis for quit-
ting the Charging Party's employ was that if he contin-
ued to cross the picket line, he would again be fined and
he was taking a chance of losing his book. Moreover, he
testified that he was planning to continue working for
the Charging Party, and he had been assured by the
bosses that he would be working all winter. He further
testified that Charging Party's jobs were 'still in oper-
ation, and as of the day of the hearing he would still
have been working.
At the Burgess hearing, Burgess was advised by Ellis
that if he agreed to picket he would not be fined. Bur-
gess would not agree to picket, and Ellis told him that if
he would picket for a short period of time his fine would
be reduced to $500. The executive board advised Ellis
that they would not start the process of taking his union
card if he agreed to walk the picket line for the duration
of the Centralia job. Burgess testified that as a key opera-
tor for the Charging Party, and having worked for them
for 10 or 12 years, it would be an embarrassment to him
and an embarrassment to the Company for their "key
hand" to be out there in the street carrying a picket sign
against them. Burgess testified that he was concerned
about protecting his 17 years in the Operating Engineers
Union and his retirement.
Burgess was fined $1000.
Both employees ceased working for the Charging
Party, although there is abundant record testimony from
both French and the Charging Party that work was
available for operators throughout the winter months.
Burgess returned to work on April 12, 1988, the
reason being that during the winter his wife had been
hospitalized and he needed the money. On April 25,
1988, 2 days before the hearing in this proceeding, Bur-
gess was again notified by the Union to appear before
the executive board to show cause why charges should
not be brought against him for working for a struck con-
tractor.
Conclusion and Analysis
Respondent filed a motion to dismiss, contending that
the Findings of Fact and Conclusions of Law entered by
a United States district judge, William L. Beatty, for the
Southern District of Illinois, are res adjudicata and bind-
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing upon the Board . The judge concluded in that case
that the Regional Director for Region 14, did not have
reason to believe that the Charging Party's allegations
had merit, and refused to grant 10(1) injunctive relief.
It is firmly established law that proceedings for prelim-
inary injunctive relief under Section 10 (1) of the Act are
interlocutory and do not preclude a hearing on the
merits. See NLRB v. Denver Building & Construction
Council, 341 U.S. 675.
Nor is there any collateral estoppel flowing from the
injunction proceeding . Ackee Industries, 184 NLRB 472.
I therefore deny the Respondent 's motion to dismiss
the complaint.
It is uncontroverted that the parties ' last contract ex-
pired on July 31. Thereafter, in my view, the Charging
Party disavowed its relationship with the Respondent.
Arnold , in- no uncertain terms, told Chapman from the
beginning , that the Charging Party was not interested in
signing a new contract . There was no equivocation on
Arnold's part.
Approximately 2 weeks later, picketing commenced,
and on September 8, Arnold reiterated his position, even
at the cost of continued picketing.
Although the Charging Party was desirous of looking
into the possibility of a three -county agreement , it con-
sistently refused to enter into any contract encompassing
the previous geographical areas.
At the September 16 meeting, the Charging Party con-
tinued to articulate and conduct itself in a manner con-
sistent with communicating to the Respondent that it, the
Charging Party, would not negotiate for a contract, and
that the old 8(f) contractual relationship was terminated.
Thus, the Respondent was sufficiently and legally put on
notice of the termination.
The only agent of Respondent, Chapman, who attend-
ed the August 14 and September 16 meetings , and who
spoke to Arnold on several occasions, was not called as
a witness to testify on Respondent 's behalf. It is noted
that Chapman furnished an affidavit in support of Re-
spondent's 8(a)(5) charge.5 Considering that credibility is
an issue in this case , I question the omission of Chap-
man's appearance as a witness.
Ellis testified to the dynamics of the September 16
meeting.6 He denied that Arnold made any statements
related to Respondent 's representative standing. Weber
testified with respect to the August 14 meeting. He did
not attend the September 16 meeting.
Ellis' letter to Carl Moore dated September 21 is in
direct contradiction to his testimony . In the letter he
states, inter alia, that they (Charging Party) did not
intend to negotiate , but wanted to establish certain pre-
conditions.
Ellis' testimony is inconsistent with his affidavit and
the testimony of Chapman . Suffice it to say that his testi-
mony as a whole is obscure , concocted, and replete with
distortions. I note that Respondent 's attorney was
present when Ellis furnished an affidavit to the Board.
Although the affidavit would not win any prizes for pen-
5 The dismissal of this charge was upheld on appeal
6 Ellis did not attend the August 14 meeting . Ellis testified that neither
Chapman nor Weber told hun that Respondent refused to negotiate or
agree to a contract at the August 14 meeting
manship, Ellis was able to read it, understand it, sign
each page and initial corrections . Ellis is unworthy of
belief and I specifically discredit him.
By way of contrast, Arnold's testimony was clear cut,
unerring and unambiguous . I therefore credit Arnold.
I also consider Fields a credible witness. He testified in
an unequivocal exacting manner. He evidenced a confi-
dence and made an effort to be precise and detailed in
his testimony.
The Board recently, in Laborers Local 1184 (NVE
Constructors), 297 NLRB 1325 (1989), considered the ap-
plication of picketing under Section 8(b)(7)(C) of the
Act, with an object of 8(f) recognition. The Board deter-
mined that recognitional and organizational picketing by
a minority union in the construction industry is not pro-
hibited by Section 8(b)(7)(C) of the Act if the picketing
meets the time limitations set forth in that section. The
Respondent in the instant case has far exceeded those
time limitations by its protracted picketing.
Earlier, in John Deklewa & Sons, 282 NLRB 1375
(1987), the Board considered the principles involving the
rights and responsibilities of unions and employers who
are parties to 8(f) contracts. The pronouncements in that
case related to the 9 (a) context , and the application of
Section 8(a)(5). In my opinion Deklewa is the controlling
law of the instant case.
The Board no longer observes the "conversion doc-
trine." There is no presumption of majority after the
contract expires, and either party may repudiate the con-
tract. Here, the Charging Party unambiguously repudiat-
ed the contract.
Moreover, the Respondent has failed to show by any
manner or means a 9(a) bargaining relationship , past or
present.
Accordingly, I conclude that Respondent picketed un-
lawfully within the meaning of Section 8(b)(7(C) of the
Act and its 8(a)(5) defense must fall.
It necessarily follows that because Respondent picket-
ed unlawfully within the meaning of Deklewa and the
propositions it stands for, Respondent violated Section
8(b)(1)(A) of the Act, by imposing fines upon Burgess
and French.
The evidence is extensive and clear that Respondent
prevailed upon these employee/members to participate in
the illegal picketing . When Burgess and French refused
to picket, they were fined.
After returning to work on April 12, 1988, Burgess
was again notified by Respondent that he was being sum-
moned before the executive board for the same transgres-
sions he had participated in earlier, i.e., refusing to
picket. This effort by Respondent compounded the initial
violation, and as such is an additional violation of Sec-
tion 8(b)(1)(A) of the Act.
Moreover, by the imposition of these fines , it is clear
from the credited testimony of Burgess and French that
they were caused and coerced to cease working for the
Charging Party. In my view this is an independent viola-
tion of Section 8(b)(1)(A) of the Act.
On the basis of record testimony and the evidence as a
whole, work was available and they were eager to con-
tinue in the employ of the Charging Party.
OPERATING ENGINEERS LOCAL 520 (MAUTZ & OREN)
Union rules or bylaws do not permit the Respondent
to discipline these employees for refusing to participate
in unlawful picketing, not wilhstanding the 8(b)(1)(A)
proviso.
Accordingly, for all the reasons I have set forth, I
conclude that the General Counsel has proved by a pro-
ponderance of the evidence that. Respondent has violated
Section 8(b)(7)(C) and (1)(A) of the Act.
CONCLUSIONS OF LAW
1. The Charging Party is an employer engaged in
commerce within the meaning of Sections 2(2), (6), and
(7) and 8(b)(7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent is not currently certified as the collec-
tive-bargaining representative of any of the employees of
the Charging Party.
4. Since on or about September 1, 1987, and all times
thereafter, Respondent has picketed and caused the
Charging Party to be picketed at various construction
sites within the State of Illinois.
5. On or about September 8, 1987, and continuing
thereafter, Respondent demanded that Charging Party
recognize and bargain with it as the representative of
certain of the Charging Party's employees, and execute a
collective-bargaining agreement as a condition of causing
the picketing to cease.
6. Respondent engaged in the activity described above
without a valid petition under Section 9(c) of the Act
being filed within a reasonable period of time from the
commencement of the picketing.
7. By the Acts and conduct described above, Respond-
ent has been, and is, engaging in unfair labor practices
within the meaning of Section 8(b)(7)(C) of the Act.
8. By imposing fines on employee/members Burgess
and French because they crossed Respondent's unlawful
picket line and because they refused to engage in unlaw-
ful picketing, Respondent violated Section 8(b)(1)(A) of
the Act.
9. By causing employee/members Burgess and French
to resign their employment with the Charging Party, al-
though work was available, Respondent violated Section
8(b)(1)(A) of the Act.
10. The unfair labor practices found above, occurring
in connection with the interstate operations of the
Charging Party, are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated Section
8(b)(7)(C) and (1)(A) of the Act, I shall recommend that
it cease and desist therefrom, and take certain affirmative
action necessary to effectuate the policies of the Act.
I will recommend further that Respondent be ordered
to rescind all fines levied against Burgess and French,
and to return all fines collected from these employees,
and to reimburse them for all earnings and other benefits
they lost because they resigned their employment as a
consequence of Respondent's unfair labor practices. Fur-
thermore, Burgess and French shall be reimbursed for all
773
travel and other expenses which they incurred in con-
nection with appearing before Respondent's executive
board to defend themselves against the internal union
charges which were filed against them. All references to
the fines shall be expunged from the records.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The Respondent, Local 520, International Union of
Operating Engineers, AFL-CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Threatening to picket, picketing, or causing to be
picketed, Mautz & Oren, Inc. at all locations in the State
of Illinois, where an object thereof is to force or require
Mautz and Oren to recognize or bargain with the Union
as the collective-bargaining representative of certain of
its employees.
(b) Threatening to impose fines, and levying fines
against employees/members because they refuse to cross
an illegal picket line and because they refuse to illegally
picket.
(c) Causing employee/members to resign their employ-
ment with Mautz Oren as a consequence of the illegal
picketing and unfair labor practices.
(d) In any like or related manner restraining or coerc-
ing employee/members in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind all fines levied against Burgess and French
and return all fines which were collected from them and
reimburse these employees for all earnings and other
benefits lost because they resigned their employment as a
consequence of the Union's unfair labor practices, and all
travel and other expenses which they incurred in con-
nection with appearing before the Union's executive
board to defend the internal union charges filed against
them. All references to the fines shall be expunged from
the records. All of the above shall be paid with interest
in accordance with current Board policy and the current
formula.
(b) Post at it offices and meeting halls copies of the at-
tached notice marked "Appendix."8 Copies of the notice,
on forms provided by the Regional Director for Region
14, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to members are customarily posted. Reasonable
° If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
8 If 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 Nation-
al 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 "
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
steps shall be taken by the Respondent to ensure that the Mautz & Oren facilities where the picketing occurred if
notices are not altered, defaced, or covered by any other Mautz & Oren chooses to post the notices.
material . (d) Notify the Regional Director in writing within 20
(c) Mail signed copies of the attached notice marked days from the date of this Order what steps Respondent
"Appendix" to the Regional Director for posting at has taken to comply.