Operating Engineers, Local 953

National Labor Relations Board - Board Decisions

Nov 29, 1972

200 N.L.R.B. 593 (N.L.R.B. 1972)

OPERATING ENGINEERS, LOCAL 953 593
International Union of Operating Engineers, Local
No 953 (Gardner-Bridge Company ) and David Er-
ven Case 28-CB-688
November 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Transportation Co 199 NLRB No 89 United Steelworkers of America Local
No 937 AFL-CIO-CLC (Magma Copper Co) 200 NLRB No 8 Cf John
Singer Inc 197 NLRB No 7
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
On August 11, 1972, Administrative Law Judge 1
Leo F Lightner issues the attached Decision in this
proceeding Thereafter, the General Counsel and the
Respondent filed exceptions and supporting briefs
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 2 of the Administrative Law Judge,
except as noted herein, and to adopt his recommend-
ed Order, as modified below
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
International Union of Operating Engineers, Local
No 953, its officers, agents, and representatives, shall
take the action set forth in the said recommended
Order, as modified below
1 Delete paragraph 2(b) of the Administrative
Law Judge's recommended Order and renumber the
following paragraphs accordingly
2 Substitute the attached notice marked "Appen-
dix" for the Administrative Law Judge's notice
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 The Administrative Law Judge included in his recommended Order a
provision that Respondent be ordered to pay to the Board and the Charging
Party reasonable costs and expenses incurred for counsel fees salaries
witness fees and costs for transcript record and printing travel per diem
and other expenses The General Counsel did not seek this remedy nor do
we find sufficient evidence to support the Administrative Law Judge s
finding that Respondents defenses were so insubstantial as to constitute
frivolous litigation within the meaning of Tndee Products Inc 194 NLRB
No 198 and 196 NLRB No 27 Accordingly we shall revise the
recommended Order by deleting par 2(b) thereof and conform the notice
thereto Marsal Transport Inc and Salvador Sisneros d/b/a International
WE WILL NOT fine or discipline supervisory
employees of Gardner-Bridge Company for en-
gaging in assigned work during a strike
WE WILL NOT, in any like or related manner,
restrain or coerce Gardner-Bridge Company in
the selection of its representatives for the purpos-
es of collective bargaining or the adjustment of
grievances
WE WILL rescind, and expunge from our
records, the charges, trial, and fine levied against
David Erven, a supervisory employee, for work-
ing during the November 1971 strike
INTERNATIONAL UNION
OF OPERATING
ENGINEERS , LOCAL No
953
(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, 7011 Federal Building and U S
Courthouse, P 0 Box 2146, 500 Gold Avenue, S W,
Albuquerque, New Mexico 87101, Telephone 505-
843-2507
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F LIGHTNER, Trial Examiner This proceeding was
heard before me in Albuquerque, New Mexico, on June 13,
1972, upon the complaint of General Counsel and the
200 NLRB No 91
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer, as amended, of International Union of Operating
Engineers, Local No 953, herein referred to as Respon-
dent i The complaint alleges violations of Sections
8(b)(1)(B) and 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, (61 Stat 136, 65 Stat
601, 73 Star 519, 29 U S C Sec 151, et seq ), herein called
the Act The parties waived oral arguments and briefs filed
by the General Counsel and the Respondent have been
carefully considered
Upon the entire record,2 and from my observation of the
witnesses, I make the following
FINDINGS AND CONCLUSIONS
whether David Erven was, at all times material, a
supervisor within the meaning of Section 2(11) of the Act
Respondent denies the commission of any unfair labor
practice
Agency
The complaint alleges, the answer admits , and I find,
that Bosco Powers, president , and John A Morce, business
representative for Respondent's El Paso area, at all times
material, have been and are agents of Respondent , acting
on its behalf within the meaning of Section 2(13) of the
Act
I BUSINESS OF THE EMPLOYER
Gardner-Bridge Company, herein Gardner-Bridge, is a
New Mexico corporation, maintaining its principal office
and place of business in the City of Albuquerque, New
Mexico, and at various construction sites in New Mexico,
including Anapra, where it has been engaged in the
business of erecting and constructing bridges and similar
structures During the calendar year preceding the issuance
of the complaint, a representative period, in the course and
conduct of its business operations, Gardner-Bridge re-
ceived gross revenues in excess of $500,000 During the
same period, Gardner-Bridge, in the course and conduct of
its business operations, purchased, transferred, and had
delivered to its places of business, goods and materials
valued in excess of $50,000, which were transported to said
places of business directly from states of the United States
other than the State of New Mexico
The complaint alleges, the answer admits, and I find,
that Gardner-Bridge is, and at all times material, has been
an employer engaged in commerce and in activities
affecting commerce within the meaning of Section 2(2), (6)
and (7) of the Act
II THE RESPONDENT IS A LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Respondent, at all times material, is and has been a labor
organization within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
The Issues
The principal issue raised by the pleadings and litigated
at the hearing is whether the Respondent engaged in
conduct in contravention of the provisions of Section
8(b)(1)(B) by and through its president, Bosco3 Powers,
charging, and Respondent trying, finding guilty, and
assessing a fine of $750 against David Erven, because
Erven, on and after November 10, 1971 worked for
Gardner-Bridge behind a picket line authorized and placed
by Respondent against Gardner-Bridge on a construction
site near Anapra, New Mexico, pursuant to its strike
against Gardner-Bridge A subsidiary issue, in dispute, is
Supervisory Capacity of Erven
The facts set forth under this subsection are undisputed
Calvin Harold Hasse is job superintendent and vice
president of Gardner-Bridge Hasse credibly related that
Erven has been employed by Gardner-Bridge for approxi-
mately 7 years, and was foreman of the pile driving crew,
at a project at Gallup, New Mexico, commencing in late
June or early July, 1971, continuing until mid-October,
when Erven was transferred, in the same capacity, to the
project at Anapra, continuing in that capacity until
January, 1972 Hasse described the crew as being com-
prised of an operator, a welder, and one or two laborers
Hasse asserted that Erven did have the right to hire and
fire, and in fact hired Augusta Smith, at Gallup, and Smith,
thereafter, was transferred to Anapra, with Erven Hasse
also related that Erven had discharged a member of his
crew When Hasse was on vacation, some 2-1/2 years ago,
Erven laid the crew off, at the completion of the work,
substituting for Hasse as superintendent
Hasse described Erven's duties as foreman included
making certain that each piling was set in the right spot
and driven plumb in the right position Hasse related that
Erven did train members of his crew to perform the various
requisite functions Hasse asserted that Erven, alone,
decided when it was necessary to work overtime Hasse
explained that in January, 1972, they were driving pilings
at the end of the runway at Sunland Airport, and it was
necessary to take the leads out of the air each night, and
make certain the piling was down, to eliminate any
possible hazard for aircraft using the airport Hasse
asserted that Erven did have authority to grant employees
time off for personal reasons, and to obtain replacements,
and did so at Anapra Erven also kept the time records of
his crew, which were turned over to the timekeeper, and
signed termination slips
Hasse described the Anapra project as the building of
approaches to a bridge, including fencing, guard rail, and
planting of grass Hasse identified five individuals as
foremen at Anapra, namely Andy Means and Fred
Merritt, labor foremen, Claude Berry, dirt foreman, Ken
Hill, carpenter foreman, and Erven, pile foreman Hasse
related that at the time of the hearing, on June 13 Erven
was employed as foreman on what he identified as the San
Jon project at Tucumcari, New Mexico Hasse recited the
i A charge was filed on March 28 and an amended charge on May 8 the transcript No objection thereto has been filed The motion is granted
1972 A complaint was issued on May 10 1972 3 Incorrectly spelled Boscoe in the complaint
2 General Counsel in his brief has moved for the correction of er' ors in
OPERATING ENGINEERS, LOCAL 953 595
hourly rates of the pile crew, including fringe benefits, as
$4 50 for an operator, $2 90 for a laborer, $4 38 for a
welder, $3 75 for a motor operator, and $4 85 for the
foremen
Erven corroborated the recitation of Hasse Erven
described his duties, as foreman, as setting the stakes,
measuring from the string line to plumb the piling, and to
make certain that everything is safe After starting the
driving, it is shut off so the foreman can check it again and
make certain it is in plumb position Erven acknowledged
instructing his crew relative to their various duties Erven
credibly related that he did discipline employees, if they
came to the job with a hangover, which happened on more
than one occasion Erven related that while he normally
did not perform any manual labor, he did help if the crew
got in a bind Erven dewed ever greasing the crane or
performing any oiling Erven described the tools he
normally used as three batter boards, one ruler, and a tape
He acknowledged he might have used a shovel to get dirt
out of a stake, on occasion 4
Section 2(11) provides
The term "supervisor" means any individual having
authority in the interest of the employer to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances,
or effectively recommend such action, if in connection
with the foregoing the exercise of such authority is not
merely of a routine or clerical nature, but requires the
use of independent judgment
The court in the Beaver Meadow case,5 said We quite
agree that Section 2(11) must be read disjunctively, that the
possession of any one of the Section 2(11) powers will
make one a supervisor, and that it is the fact of possession
of the power regardless of its nonexercise that is determina-
tive
The Board has held It is well settled that the mere title
of supervisor as applied to certain positions does not
establish supervisory status under the Act Rather, it is the
functions, duties, and authority of the individual which
must be determinative according to statutory standards
And the power or authority bestowed must not "be
`routine' in the natural sense of that word " Nor may the
discretion accompanying the duties be so circumscribed by
limitations, either in the authority granted or in the specific
conditions placed upon the exercise of such authority, as to
negate the use of independent judgment Further, it may
not be a sporadic assumption of a position of command
and responsibility On the other hand, the real existence
within an individual's regularly assigned duties of any of
the powers enumerated in Section 2(11) will make a man a
supervisor even though the necessity for the exercise of
such power is infrequent But where the issue is the actual
existence of a supervisory power, the absence of any
4 Respondents sole witness Joseph Kowbel related that he worked,
inferentially an extremely short period before picketing commenced To
the extent Kowbel related that he saw Erven do manual labor I do not
consider it to be evidence in conflict with the recitation of Hasse and Erven
relative to Erven s duties as foreman Similarly, the fact that Kowbel was
referred to Hasse by Erven when Kowbel sought employment is of no
consequence Kowbel was hired as a mechanic It is reasonable to infer that
his work was not under the jurisdiction of the pile foreman It is also
exercise of authority may negate its existence Thus, there
is precedent for the position that frequency or infrequency
of the exercise of authority becomes irrelevant only where
there is no question that the authority conferred is
supervisory Capitol Transit Company, 114 NLRB 617,
618-619
Accordingly , on the basis of the foregoing undisputed
evidence , I find that David Erven , at all times material,
was a supervisor within the provisions of Section 2(11),
and, as such , had authority to adjust grievances 6
The Picketing and Related Evidence
It is undisputed that Erven has been a member of the
Respondent since 1956 , and was a member in good
standing through the month of June, 1972 7
Erven credibly related that , on November 9, 1971, Morce
approached him at the Anapra jobsite and advised him
that Max Burgess had instructed Morce to ask Erven to
help get a contract with Gardner -Bridge Burgess was
identified as business manager of the International Umon
Erven related that he responded that he had started driving
a pile and didn't have time to talk to him
Erven related that, the following day, November 10, the
Union established a picket line The picket sign read
"Gardner-Bridge has no contract with the International
Umon of Operating Engineers , Local 953 " The picketing
continued for approximately 31 days Each work day,
Erven crossed the picket line and continued to work
Under date of December 9, 1971, by letter, Powers
advised Erven, inter aha, that charges had been filed
against him, under article XXIII , subdivision 7, article
[section] (e), based on the fact that he continued to work
"contrary to a declared strike, by working behind the
picket line placed by Local Union No 953 against
Gardner-Bridge Company's operations near Sunland Park,
New Mexico " Erven was advised of his rights to defend
under article XXIII , subdivision 7, Section (m)
The constitution of the International Union of Operating
Engineers , article XXIII , subdivision 7, section (e), relates
to "Other Causes for Fines, Suspensions or Expulsion",
and provides for disciplining a member for , inter aka, an
offense discreditable to the International Union or its
subdivisions , or violating rules, edicts, and ritual of the
International Union, or refusing to acknowledge or
perform the lawful command of those authorized to issue
the same
Under date of February 4, 1972, by letter, Powers
advised Erven that the trial date, for the charges filed
against him, would be at a regular meeting , on February
25 Erven did not appear
Under date of March 3, by letter, Powers advised Erven
that he had been found guilty, and that Powers, as
president , was assessing a fine of $750 The letter also
advised that the fine must be paid within 30 days, and that
reasonable to infer that Erven had no openings at the time of Kowbel s
inquiry I find accordingly
5 N L R B v Beaver Meadow Creamery (C A 3 1954) 215 F 2d 247
251
6 The fact that there may have been no grievances to adjust is of no
consequence
7 Respondents assertion in its brief that Erven s membership was
voluntary is of no consequence
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after that time no dues owed by such members can be
received or accepted by the local Umon The letter further
advised that members 60 days in arrears in the payment of
fines shall be barred from meetings and suspended from
membership, with expulsion from membership in the event
the fine is 6 months in arrears
Under date of March 28, by letter, John M Wells, as
attorney for Erven, filed an appeal to the General
Executive Board In the letter Wells advised the Interna-
tional Umon that at the time of the filing of the charge,
and for approximately 7 weeks prior thereto, Erven was
acting as a supervisor and that Respondent's action was
violative of Section 8(b)(1)(B) of the Act, citing Board
decisions The letter also requested the General Executive
Board to rescind the fine unposed, to expunge all reference
and other evidence relative to the proceeding from the
union records, and to notify Erven accordingly
Under date of April 7, by letter, Hunter P Wharton,
general president, advised Wells that the payment of the
fine was waived pending a decision by the General
Executive Board, that Erven could continue to pay his dues
to the local Union in order to maintain his good standing,
and that the local had 30 days in which to file an answer or
reply to the appeal, after which the appeal would be
processed It is undisputed that no further action had
ensued on the date of hearing herem, June 13, however,
there is no representation that action on the appeal would
be held in abeyance, pending the disposition of this
litigation
Concluding Findings
Section 8(b)(1)(B) provides It shall be an unfair labor
practice for a labor organization or its agents to restrain or
coerce an employer in the selection of his representatives
for the purposes of collective bargaining or the adjustment
of grievances
I have found, from undisputed evidence, that Respon-
dent, through its president, on approximately December 9,
1971, filed a charge against Erven, because, commencing
November 10, and thereafter, he worked "contrary to a
declared strike by working behind the picket line placed by
Local Union No 953 against Gardner-Bridge Company's
operations near Sunland Park, New Mexico " A subse-
quent trial resulted in a fine of $750 The fine has not been
paid, and Respondent's action is pending upon an appeal
to the General Executive Board of the International
No collective-bargaining agreement existed between the
Employer and Respondent It was purportedly for this
reason that Respondent established a picket line, and the
picket sign so indicated
During the hearing Respondent contended Erven was
not a supervisor In its brief, Respondent appears to have
abandoned this contention, referring to Erven as a working
foreman, however, in its summary, it renews the assertion
8 N L R B v Industrial Union of Marine and Shipbuilding Workers of
America AFL-CIO 391 US 418
9 San Francisco Oakland Mailers Union No 18 International Typographi
cal Union (Northwest Publications) 172 NLRB No 252
10 Accord New Mexico District Council of Carpenters and Joiners of
America (A S Horner Inc) 176 NLRB No 105 enfd 454 F 2d 1116 (C A
10) New Mexico District Council of Carpenters and Joiners of America (A S
Horner Inc) 177 NLRB 500 enfd 454 F 2d 1116 (C A 10) Sheet Metal
that Erven is not a supervisor I have found , for reasons
explicated supra, that Erven, at all times material, was and
is a supervisor, and had authority to adjust grievances
Respondent , in its brief, also asserts 2 Erven (sic)
admitting or conceding that Erven was a supervisor, the
disciplinary reactions (sic) were unconnected with his
supervisory functions He was disciplined as a workman
and umon member rather than a foreman 3 In construc-
tion , a different rule should be applied to regulate the
relationship between supervisors and unions 4 Erven's
discipline was an internal union matter protected by the
Act
I find no substance or meat to these contentions, for
reasons which follow , including numerous Board and court
decisions
Relative to points 2 and 4, Respondent asserts that it was
engaged in legitimate union activity within the meaning of
the decision in the Allis-Chalmers case 8 The Board rejected
this contention in the San Francisco-Oakland Mailers'
case,9 noting that the proviso to Section 8(b)(1)(A) is not
part of Section 8(b)(1)(B) The Board held that in the Allis-
Chalmers case the primary relationship was one between
the Union and its members, while in contrast, in the
present case, the relationship primarily affected is the one
between the Union and the Employer, since the underlying
question was the interpretation of the collective-bargaining
agreement between the parties The relationship between
the Union and its members appears to have been of only
secondary importance, used as a convenient, and, it would
seem, powerful tool to affect the employer-union relation-
ship, i e to compel the Employer's foremen to take
proumon positions in interpreting the collective -bargaining
agreement The purpose and effect of Respondent's
conduct literally and directly contravened the statutory
policy of allowing the Employer an unimpeded choice of
representatives for collective bargaining and the settlement
of grievances In our view it fell outside the legitimate
internal interest of the Union, and constituted a violation
of Section 8(b)(1)(B) of the Act 10
Relative to point 3, of Respondent , the Board has held
the condition related is not peculiar exclusively in the
construction industry, but exists in the printing trades and
entertainment industry Congress has had before it the
peculiar problems of the building and construction
industry on many occasions Hearings have been conduct-
ed and considerations advanced to remove the trades from
the Act in various respects, but Congress has not seen fit to
do so If a distinction is to be made it must be made in the
text of the law rather than in the decisions based
thereupon Sheet Metal Workers, Local 49, supra, at
141-142
I have found , supra, and it is patent, that Erven, as
foreman, was a representative of his employer for the
purpose of adjustment of grievances within the meaning of
Workers International Association Local Union 49 (General Metal Products
Inc) 178 NLRB 139 enfd 430 F 2d 1348 (CA 10) Toledo Locals Nos
15-P and 272 Lithographers etc (Toledo Blade Inc) 175 NLRB 1072 enfd
437 F 2d 55 (C A 6) Local Union No 2150 International Brotherhood of
Electrical Workers AFL-CIO (Wisconsin Electric Power Company) 192
NLRB No 16 International Brotherhood of Electrical Workers AFL-CIO
and Local 134 International Brotherhood of Electrical Workers AFL-CIO
(Illinois Bell Telephone Company) 192 NLRB No 17
OPERATING ENGINEERS, LOCAL 953 597
Section 8(b)(1)(B) of the Act Local 423, Laborers'
International Union of North America, AFL-CIO, (Mans-
field Flooring Co, Inc, d/b/a Columbus Cement Floors), 195
NLRB No 35, Local Union No 2150, International
Brotherhood of Electrical Workers, AFL-CIO, supra
The Board has held that fining a supervisor for crossing a
picket line and doing struck work was conduct violative of
Section 8(b)(1)(B) of the Act Local Union No 2150,
International Brotherhood of Electrical Workers, AFL-CIO,
supra, Shp opinion, International Brotherhood of
Electrical Workers, AFL-CIO, and Local 134, etc, supra
Where the Board has found disciplinary action against
supervisors proscribed, by reason of the provisions of
Section 8(b)(1)(B), it has held that the act of preferring
charges against them, citing them to appear for trial, as
well as the imposition of a fine, constituted conduct
proscribed by said Section San Francisco Mailers, supra
Accordingly, having found that Respondent, by filing a
charge against Erven, citing him to appear for trial, and
imposing a fine in the amount of $750, because he crossed
a picket line and engaged in work, on and after November
10, 1971, during a period when Erven was employed by the
Employer as a supervisor, and was selected by the
Employer for the purposes, among others, of collective
bargaining or the adjustment of grievances, it follows, and
I find that Respondent has restrained and coerced the
Employer in the selection and retention of its representa-
tives, for the purpose of collective bargaining or the
adjustment of grievances, and that said conduct was, and
is, violative of the proscriptions of Section 8(b)(1)(B) of the
Act
court dockets is available To discourage future frivolous
litigation, to effectuate the policies of the Act, and to serve
the public interest, the Board found it to be just and proper
to order Respondents to reimburse the Board and the
Union for their expenses incurred in the investigation,
presentation, and conduct of these cases Tudee Products,
Inc, 194 NLRB No 198 ii
Finding that Respondent's purported defenses constitute
frivolous litigation, and having found that Respondent has
engaged in a flagrant violation of the Act, to imprint on the
Respondent the fact that when there is no defense it has no
right, in good morality or good law, to impose on the
Board's processes and litigate a matter when the Union is
clearly in the wrong and has no defense, and to teach the
Respondent that it cannot ignore the legal rights of
members or Employers with impunity, or with nothing
more than a mild slap on the wrist, I will recommend that
Respondent be ordered to pay the following costs and
expenses incurred by the Board and the Charging Party
Reasonable counsel fees, salaries, witness fees, transcript
and record costs, printing costs, travel expenses and per
diem, and other reasonable costs and expenses 12
In view of the nature of the unfair labor practices
committed, the commission of like and related unfair labor
practices reasonably may be anticipated I shall therefore
recommend that Respondent be ordered to cease and
desist from in any like or related manner restraining or
coercing the aforesaid Employer in the selection of its
representative for the purposes of collective bargaining or
the adjustment of grievances
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operation of the
Employer, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several states, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged, and is
engaging, in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the
Act
I will also recommend that Respondent be ordered to
revoke the action of its Trial Board, in fining David Erven,
expunge from its files any record or other evidence of the
proceedings against Erven, and advise Erven and Gardner-
Bridge Company, in writing, that it has taken the aforesaid
action
As stated by the Board, the policy of the Act to insure
industrial peace through collective bargaining can only be
effectuated when speedy access to uncrowded Board and
11 See also Tudee Products Inc 196 NLRB No 27 N L R B v Ramada
Inns Inc 457 F 2d 512, (C A 1) Local Union 676 International Union of
North America AFL-CIO v NLRB 463 F 2d 953 (C A D C)
CONCLUSIONS OF LAW
1 Gardner-Bridge Company is an employer within the
meaning of Sections 2(2) and 8(b)(1)(B), engaged in
commerce and in activities affecting commerce, within the
meaning of Section 2(6) and (7) of the Act
2 Respondent is a labor organization within the
meaning of Sections 2(5) and 8(b) of the Act
3 David Erven, the Charging Party, is, and has been at
all times material, a supervisor of the Employer within the
meaning of Section 2(11) of the Act, selected by the
Employer for the purposes, among others, of collective
bargaining or the adjustment of grievances, within the
meaning of Section 8(b)(1)(B) of the Act
4 By preferring charges against Erven, citing him for
trial, imposing a fine against him, and attempting to collect
such fine, because of conduct engaged in as supervisor, the
Respondent restrained and coerced the Employer in the
selection and retention of its representatives for the
purpose of collective bargaining or the adjustment of
grievances, and has thus engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(b)(1)(B)
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce, within the meaning of
Section 2(6) and (7) of the Act
12 See also Rule 38 Federal Rules of Appellate Procedure Cf Sprague v
Ticonic National Bank 307 U S 161 166 Schauffler v United Association of
Journeymen 246 F 2d 867 (C A 3)
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER 13
On the basis of the foregoing findings of fact and
conclusions of law, upon the entire record in the case, and
pursuant to Section 10(c) of the Act, as amended, I
recommend that International Union of Operating Engi-
neers, Local No 953, its officers, agents, representatives,
successors, and assigns, shall
1 Cease and desist from
(a) Preferring charges, citing for trial or fining superviso-
ry employees of the Gardner-Bridge Company, whose
duties include representing that company in collective
bargaining or in the adjustment of grievances, for engaging
in assigned work during the course of a strike
(b) In any like or related manner, restraining or coercing
the aforesaid Employer in the selection of its representative
for the purposes of collective bargaining or the adjustment
of grievances
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Rescind, and expunge all records of the charges, trial,
and fine levied against David Erven, for having engaged in
assigned work during the November, 1971, strike
(b) Pay to the Board and the Charging Party, the costs
and expenses incurred by each in the investigation,
preparation, presentation, and conduct of this case before
the National Labor Relations Board, such costs to be
determined at the compliance stage of these proceedings
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions recommendations and recommended Order herein shall as
provided in Sec 102 48 of the Rules and Regulations be adopted by the
Board and become its findings, conclusions and Order and all objections
thereto shall be deemed waived for all purposes
14 In the event that the Board s Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading Posted by
(c) Post at its offices at Albuquerque, New Mexico,
copies of the attached notice marked "Appendix "14
Copies of said notice, to be furnished by the Regional
Director for Region 28, shall, after being duly signed by
the Respondent's authorized representative, be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted Reasonable steps shall be
taken to insure that such notices are not altered, defaced,
or covered by any other material
(d) Sign and deliver sufficient copies of said notice to the
Regional Director for Region 28, for posting by Gardner-
Bridge Company, at all locations where notices to its
employees are customarily posted, if said Employer is
willing to so post
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Trial Examiner's Decision
what steps the Respondent has taken to comply therewith
IT IS FURTHER RECOMMENDED that, unless on or before 20
days from the date of the receipt of this Trial Examiner's
Decision, the Respondent shall notify the said Regional
Director, in writing, that it will comply with the recom-
mended Order,15 the National Labor Relations Board issue
an Order requiring the Respondent to take the action
aforesaid
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
15 In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read Notify said Regional Director, in
writing within 20 days from the date of this Order what steps Respondent
has taken to comply therewith