Operating Engineers, Local 139

National Labor Relations Board - Board Decisions

Jun 12, 1981

256 N.L.R.B. 535 (N.L.R.B. 1981)

OPERATING ENGINEERS, LOCAL 139 535
International Union of Operating Engineers, Local
No. 139, AFL-CIO (C. F. Kalupa, Inc.) and
George F. Reif. Case 30-CB-1514
June 12, 1981
DECISION AND ORDER
On September 30, 1980, Administrative Law
Judge Karl H. Buschmann issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions, and the General Counsel filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
In this proceeding, the Administrative Law
Judge found that Respondent's failure to consider
and process certain grievances of Charging Party
George Reif constituted a breach of its fiduciary
duty to deal fairly with Reif, and that Respondent
thereby violated Section 8(b)(l)(A) of the Act. In-
cluded in the grievances which Respondent refused
to consider or process was a grievance related to
Reifs June 5, 1979, discharge by C. F. Kalupa, Inc.
To remedy this particular aspect of the violation
found, the Administrative Law Judge ordered Re-
spondent to cease and desist from its unlawful con-
duct and to post an appropriate notice. The Ad-
ministrative Law Judge, however, did not recom-
mend that Respondent be ordered to make Reif
whole for his losses caused by Respondent's refusal
to process his grievance over the discharge. While
he found that Respondent had "tacitly concurred"
in Kalupa's discharge of Reif and had thereafter il-
legally refused to consider or process Reif's timely
grievance over the discharge, the Administrative
Law Judge found that the record did not contain
"hard evidence" that Reifs discharge would have
been averted had Respondent objected to it. The
General Counsel has excepted to the Administra-
tive Law Judge's failure to include a make-whole
order against Respondent regarding its refusal to
process Reifs grievance over his discharge, and we
find merit in this exception.
In the first place, the record establishes that
before Kalupa discharged Reif it consulted Re-
spondent, in effect seeking Respondent's sanction
for the discharge. And Respondent obliged, for, as
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings.
256 NLRB No. 89
found by the Administrative Law Judge, Respond-
ent left Kalupa "with the clear impression that it
was free to discharge Reif without a challenge by
the Union .... " Furthermore, after Kalupa took
action against him, Reif filed a timely grievance
over the discharge but was wholly ignorant of the
fact that Respondent's official who received the
grievance and was charged with pursuing it was
the same official who earlier gave tacit approval to
Kalupa's proposal to fire him. Given these circum-
stances, it is not surprising that Reif, who expected
and was entitled to an investigation of his griev-
ance, received no satisfaction from Respondent
until he contacted Respondent's president. Even
then, as is clear from the record, Respondent's fail-
ure to prosecute the grievance was caused by its
hostility toward Reif for seeking to enforce the col-
lective-bargaining agreement and by its animus
toward Reif personally because of his opposition to
Respondent's leadership. From the foregoing it is
clear, and we find, that Respondent's conduct con-
tributed to Reifs discharge and that its failure to
process his grievance was for proscribed reasons. 2
Accordingly, we shall order that Respondent
make Reif whole for any loss of pay he may have
suffered as a result of its refusal to consider or
process his grievance concerning his June 5, 1979,
discharge from C. F. Kalupa, Inc., to the extent
Reif has not already been made whole. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
2 Cf. Sargent Electric Company, 209 NLRB 630 (1974); King Soopers,
Inc., 222 NLRB 1011 (1976); Warehouse Union, Local 860 International
Brotherhood of Teamsters. Chauffeurs, Warehousemen & Helpers of America
(The Emporium), 236 NLRB 844 (1978).
In passing, we note our agreement with the Administrative Law
Judge's observation that on the face of it there is every indication that
Reirs grievance was meritorious. In any event, if there is uncertainty
over whether the grievance would have been found to be meritorious if
fairly and timely pursued by Respondent, that uncertainty is a direct
result of Respondent's unlawful conduct. When resolution of such uncer-
tainty is required to determine monetary responsibility, it is proper to re-
solve the uncertainty in favor of the injured and innocent employee
rather than the wrongdoer In such circumstances, a backpay remedy is
clearly appropriate. See, e.g.. Laborers International Union of North Amer-
ica, Local 24 AFL-CIO (Centex Homes of California. Incorporated), 234
NLRB 367 (1978).
W3 e note that Reifs June 5, 1979, discharge was also the subject of an
unfair labor practice charge filed against C. F. Kalupa Inc. That charge
resulted in an informal bilateral settlement by which Kalupa agreed to
pay Reif a certain sum of backpay The make whole order we enter here
should be construed as making Reif whole to the extent Kalupa has not
already done so. Interest thereon shall be computed in the manner pre-
scribed in F: ' Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation. 231 NLRB 651 (1977). See, generally, Isis Plumbing d
Heating Co., 138 NLRB 716 (1962).
Member Jenkins would award interest on backpay in accord with his
dissent in Olvmpic Medical Corporation, 250 NLRB 146 (1980)
..
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled below, and hereby orders that the Respondent,
International Union of Operating Engineers, Local
No. 139, AFL-CIO, Appleton, Wisconsin, its offi-
cers, agents, and representatives, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph (b):
"(b) In any like or related manner restraining or
coercing employees in the exercise of their right to
engage in or refrain from engaging in concerted ac-
tivities guaranteed in Section 7 of the Act."
2. Add the following as paragraph 2(a) and re-
number succeeding paragraphs accordingly:
"(a) Make George F. Reif whole for any loss of
pay he may have suffered as a result of its unlawful
refusal to consider or process his grievance con-
cerning his June 5, 1979, discharge from C. F.
Kalupa, Inc., to the extent he has not already been
made whole."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT fail or refuse to fairly repre-
sent any employees represented by us or arbi-
trarily fail or refuse to file and process any
employee's grievance on a fair basis or refuse
to inform employees of the status of their
grievances.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their right to engage in or refrain from engag-
ing in concerted activities guaranteed by Sec-
tion 7 of the Act.
WE WILL make George F. Reif whole for
any loss of pay he may have suffered as a
result of our unlawful refusal to consider or
process his grievance concerning his June 5,
1979, discharge from C. F. Kalupa, Inc., to the
extent he has not already been made whole.
WE WILL request C. F. Kalupa, Inc., to pay
George F. Reif the shortage in his pay check
of $5.20 and, if the Employer refuses, WE
WILL promptly pursue the matter through the
remaining stages of the grievance procedure.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL No. 139,
AFL-CIO
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge:
This matter arose upon the filing of an unfair labor prac-
tice charge by George F. Reif on October 12, 1979.1 On
November 26, a complaint was issued by the Regional
Director for Region 30 of the National Labor Relations
Board. The complaint was subsequently amended on
April 24, 1980, and during the hearing on May 21, 1980.
The complaint alleges that the International Union of
Operating Engineers, Local No. 139, AFL-CIO (herein
Respondent), by its refusal and/or failure to process the
grievances of the Charging Party, has engaged in unlaw-
ful conduct violative of Section 8(b)(1)(A) of the Nation-
al Labor Relations Act, as amended, herein called the
Act. The complaint further alleges that Respondent en-
gaged in this conduct arbitrarily because of the Charging
Party's internal union activities and/or his participation
in other protected concerted activities. A timely filed
answer denied the substantive allegations of the com-
plaint.
All parties have been afforded full opportunity to
appear, 2 to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Based upon the entire
record, the briefs filed on behalf of the General Counsel
and Respondent, and my observation of the demeanor of
the witnesses, I make the following findings of fact and
conclusions of law.
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
C. F. Kalupa, Inc., is a Wisconsin corporation engaged
in sewer and water main installation primarily for mu-
nicipalities. During 1979, C. F. Kalupa, Inc., received in
excess of $200,000 from the city of Appleton, Wisconsin,
for sanitary and sewer construction performed. During
1979, the city of Appleton, Wisconsin, purchased and re-
ceived goods and services valued in excess of $50,000 di-
rectly from outside the State of Wisconsin. C. F. Kalupa,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Respondent, International Union of Operating Engi-
neers, Local No. 139, AFL-CIO, is admittedly a labor
organization within the meaning of Section 2(5) of the
Act.
All dates hereinafter are in 1979 unless otherwise specified.
2 At the hearing held on May 21, 1980, Respondent moved to dismiss
the complaint on grounds that the General Counsel had failed to establish
a prima facie case. Respondent's motion is denied.
OPERATING ENGINEERS, LOCAL 139 537
III. RESPONDENT AND EMPLOYER COLLECTIVE-
BARGAINING RELATIONSHIP
At all times material, Respondent and the Employer
were parties to two collective-bargaining agreements.
These agreements were negotiated by Respondent and
two separate employer associations. The Employer has
never bargained individually with Respondent. Rather,
the Employer authorized the Wisconsin Association of
Public Works Contractors to negotiate with Respondent,
and upon agreement the Employer became a signatory to
the contract. Also, the Employer authorized the Wiscon-
sin Chapter Associated General Contractors to negotiate
an agreement with Respondent, but the employer did not
separately sign this agreement.
I find that at all times relevant the operative collec-
tive-bargaining agreement was the master agreement ne-
gotiated by the Wisconsin Association of Public Works
Contractors.3
IV. REIF'S EMPLOYMENT WITH C. F. KALUPA, INC.
George F. Reif is an operating engineer who has been
for the past 10 years a member of Respondent. 4 During
the fall of 1978 and again during the spring of 1979, Reif
worked for C. F. Kalupa, Inc. He obtained employment
with Kalupa on both occasions on referral by Respond-
ent. This was done through Respondent's practice of dis-
patching unemployed operating engineers through the
use of the local's out-of-work book. Respondent's prac-
tice was to fill requested job orders of various contrac-
tors by matching an unemployed operator's capabilities
with the requested job description. The qualified opera-
tor nearest the top of the list would then be dispatched.
Pursuant to this practice, Reif was hired by the Employ-
er on April 23.
While working for the Employer, from April 23 until
his discharge on June 5, Reif operated a combination
tractor and backhoe endloader. 5 During his first 2 weeks
of employment, Reif received compliments from the Em-
ployer's supervisors for his job performance. The record
indicates that Reif never personally received a complaint
regarding his job performance. However, Stewart
Nitzke, the Employer's superintendent, did testify that
"they would have [complained], but he was the kind of
man you couldn't tell anything to."
On May 11, Reif was told by his supervisors, Louis
Kalupa and Stewart Nitzke, "to bank" his time; i.e., to
adjust his hours worked that week to reflect a 40-hour
week.6 Reif refused to fill in his timecard in this manner,
3 This finding is supported by G.C. Exh. 8(c) In a report to the union
president concerning ReiFs discharge by the Employer. Business Agent
Wirth cited the WAPWC labor agreement. In any case, for purposes of
this case, the relevant provisions of both agreements are either identical
or virtually identical.
4 Members of Respondent comprise two categories: Those who work
for the same employer year after year, and, those who work for different
employers anywhere from a half day to a year or longer. Reif is in the
latter category.
s It is disputed as to whether or not Reif was contractually assigned to
this particular machine. However, since this issue is part of the gravamen
for one of Reirs grievances, suffice it to say that Reif certainly believed
he was contractually assigned to his machine.
^ Although Nitzke denied ever instructing Reif to adjust his hours, I
credit Reifs testimony in this regard.
saying he would not "bank" hours but would fill in the
timecard according to the contract. Louis Kalupa then
said that Reif knew nothing about banking hours. Reif
replied, "[D]on't be surprised when you have overtime
on the time card." According to the collective-bargain-
ing agreements, operating engineers receive wages for a
full 8 hours after working in excess of 4 hours during the
day.' Reif had worked some "short" days that week, but
on those days he had worked more than 4 hours. Had he
adjusted his timecard, as requested by his Employer Reif
would have lost $50.04 in overtime pay that week. The
Company ultimately paid that amount.
On the morning of June 4, Nitzke telephoned Reif at
home and instructed Reif not to report for work at the
Berlin, Wisconsin, jobsite because he was not needed for
that day. During the course of June 4, however, the ma-
chine normally operated by Reif was operated by Nitzke
and possibly by Louis Kalupa and some laborers. When
reporting to the jobsite on June 5, Reif saw two laborers
fueling his machine. He also noticed mud on it and asked
the laborers who had operated the machine the day
before. They did not respond, so Reif confronted Nitzke
and asked him who had operated the machine. Nitzke re-
plied that he had. Reif responded if he had a union card
to which Nitzke said, yes. Reif then told Nitzke, "[I]t
didn't make any difference because we had assignment in
our contract that I was entitled to run that machine any
time the machine was run or I was entitled to the time
that the machine was run." Nitzke told Reif that man-
agement runs the Company the way they saw fit and
that he (Nitzke) could run the machine as much as he
wanted. Reif replied, "[Y]ou run the company but within
the confines of the agreement." Reif then proceeded to
work.
On the evening of June 5, Reif received a telephone
call from Nitzke. Nitzke informed Reif that he was being
laid off because he was no longer needed. Reif requested
a written layoff notice which he subsequently received
by mail on June 7.
V. EVENTS SURROUNDING THE ALLEGED UNFAIR
LABOR PRACTICES
Prior to notifying Reif of his discharge on June 5,
Nitzke had called the union hall and spoken to Edward
Wirth Respondent's business agent. 8 Nitzke said during
that conversation that he was thinking about laying off
Reif, because of different problems, such as Reif being
late, visting with other workers, and keeping them from
their work. Nitzke further explained that Reif was com-
plaining about the 1-1/2 hours during which the machine
had been operated, and that Reif was quoting the con-
tract to other workers, telling them what to do. Nitzke
then asked Wirth if Reif could be laid off. Wirth's
answer was that the decision to lay off was entirely up
to Nitzke. Wirth offered to dispatch another operator for
the job, if Nitzke effectuated the layoff of Reif.
The record indicates that Nitzke's decision to dis-
charge Reif was primarily influenced by Reifs firm insis-
7G.C Exh. 6, art. XVII, sec 17 2; G.C Exh. 7, art. XVII, Sec 17.2.
' This conversation is a composite of the testimony and exhibits relat-
ing to this issue (G C Exh 16 at par I I)
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tence that the Employer meticulously comply with the
provisions of the collective-bargaining agreement. More-
over, Wirth's comments to Nitzke during their telephone
conversation on June 5 left the Employer with the clear
impression that it was free to discharge Reif without a
challenge by the Union for violating the collective-bar-
gaining agreement.
On June 6, Reif telephoned the union office to "sign"
the out-of-work book and to speak with a business agent
about his discharge. Reif informed Respondent's business
agent, Mel Parker, that he had been laid off for defend-
ing and enforcing the union contract. Parker told Reif
that Edward Wirth handled matters for that geographi-
cal area of the union district. Parker said he would leave
a message for Wirth to return Reifs telephone call.
On the evening of June 7, Wirth returned Reifs tele-
phone call. Reif explained that he had been discharged
for defending the union contract. He told Wirth that his
machine had been run so he wanted 1-1/2 hours pay, his
job back, and to file a grievance.9 Wirth responded that
he would check into it and get back to Reif.
On June 9, Reif received two checks by mail from the
Employer. Reif noted that one of the checks was $5.20
too low under the new wage schedule effective June 1.
He also noted the other check did not reflect the 1-1/2
hours pay for the time his machine had been operated on
June 4. Within -week after receiving these checks, Reif
telephoned Wirth at the union office. Wirth not being
available, Reif left a message informing Wirth of the
$5.20 shortage.
On July 11, Reif called Wirth again and inquired
whether anything was being done regarding the Kalupa
grievance. Wirth replied that nothing was being done be-
cause he and another business agent were too busy with
negotiations. Reif asked whether Wirth had received his
telephone message about the $5.20 shortage, and Wirth
admitted that he had received the message.
Having heard nothing from his Union, Reif on August
19 drafted a letter to Respondent's business manager and
president, Donald Shaw, complaining that Wirth had
done nothing with regard to the Kalupa grievances. Reif
again explained his belief that his discharge was a result
of his attempt to enforce the union contract. Upon re-
ceipt of this letter, on August 22, Shaw immediately in-
structed Wirth to investigate the matters contained in
Reif's letter and to report back. '
On August 30, Wirth sent his report to Shaw in which
Wirth briefly explained the alleged events leading to
Reif's discharge, including Reifs assertion that he had
been fired for enforcing the union contract. Wirth con-
cluded, "[H]owever, I feel the operator is to run the ma-
chine and the business agent is to enforce the contract.
When made aware of the violations, the actions of
9 The record shows that Reif has only once before filed a grievance
against an employer. In that instance, Respondent represented Reif by
filing an unfair labor practice charge in 1977, prompting the issuance of a
complaint by Region 30. The parties have stipulated that this complaint
issued against Ed Gersek, Inc., involving Reifs discharge for allegedly
defending and enforcing the union contract was settled.
'O The record shows that Shaw had no knowledge of the events sur-
rounding Reifs discharge until receipt of Reifs letter on August 22.
Kalupa may be questionable but I don't feel it was a
gross violation of the contract .... " "
From July 11 until September 20, Reif had no commu-
nication with Wirth. On September 20, Wirth appeared
at the Wisconsin Bridge and Iron Jobsite in Greenbay,
Wisconsin, where Reif was employed. Reif asked Wirth
what was being done with the Kalupa grievances. Wirth
replied that he had taken it up with Nitzke and that he
would not do anything with it. Wirth further said that it
was terrible for him to have to represent Reif as a broth-
er member, and that people like him should not be in the
Union. Wirth stated that Reif was stupid and that he had
better wise up and did he not realize what the last elec-
tion was about.l2 When Reif responded by calling Don
Shaw a liar and expressed his opposition to the Don
Shaw regime, Wirth's parting remark was that the men
on the scaffolding above should drop something on
Reifs head.
Prior to leaving the Wisconsin Bridge and Iron jobsite
on September 20, Wirth went to the office trailer and
spoke to Allen Dombrowski, a company supervisor.
Wirth asked if Reif were doing his job, and whether he
was "doing any preaching on the job. Dombrowski's re-
sponse was that Reif was "doing a very good job for us
here . . . and that he also did a real good job for us [at
another jobsitel...." After hearing this, Wirth left the
trailer without saying another word.
On September 25, Wirth again appeared at the Wis-
consin Bridge and Iron jobsite. Reif asked if Wirth had
received the telephone message concerning the $5.20
shortage from Kalupa. Wirth assured Reif he had re-
ceived the message and that he was looking into the
shortage. Reif filed the unfair labor practice charge on
October 12.
Analysis
Extensive case law has established that under Section
8(b)(l)(A) of the Act the Union has a duty of fair repre-
sentation on behalf of all those for whom it acts without
hostile discrimination. A union's power must be exer-
cised fairly, impartially, and in good faith. A union
member has the right to be free from unfair or irrelevant
or invidious treatment by his exclusive bargaining agent.
A union's obligation in this regard is breached when its
conduct toward a member of the collective-bargaining
unit is arbitrary, discriminating, or in bad faith. While the
union may not arbitrarily ignore a meritorious grievance
or process it in a perfunctory manner, an individual em-
ployee does not have an absolute right to have his griev-
I G.C. Exh. 8(c).
In this report Wirth also referred to Reifs job referral on July 23 to
Theo. UTSCHIG & Sons, Inc.. Wirth explained that Reif had gotten into
a heated discussion with the supervisor and was sent home before per-
forming any work for the contractor. Wirth concluded with the opinion
that "[ilt seems that whenever George [Reifl has worked he has many
more problems than the other brothers of Local 139." Reif testified that
he had refused the job because the employer wanted Reif to cross craft
jurisdictional lines in violation of the Union's bylaws. Specifically, Reif
refused the job because the employer expected Reif to engage in labor
beyond the scope of those duties required of operating engineers. See
G C. Exh 5, art IX, sec. 3(p).
*2 The record shows that George Reif was antagonistic to Respond-
ent's present administration, in particular, to Don Shaw.
OPERATING ENGINEERS, LOCAL 139 539
ance taken through all steps of a grievance procedure. In
short, the union has an area of discretion in acting rea-
sonably and fairly.
In this regard, the General Counsel submits that Re-
spondent arbitrarily refused to assist Reif and deliberate-
ly kept him uninformed concerning his grievance. Re-
spondent, on the other hand, argues that Reif created his
own problems because he was quarrelsome with his su-
pervisors and personally hostile to the Union's leader-
ship. Respondent also asserts that Reifs layoff occurred
because the job was winding down and the Employer no
longer needed an operator.
As detailed above, the record shows that Reif properly
communicated his grievance to the Union on June 7, and
that it challenged his discharge or layoff because of his
efforts in enforcing the union contract. The Union not
only failed to process that grievance, but it also tacitly
had given its approval to the Employer's action. More-
over, Reifs subsequent grievance about a shortage of
$5.20 in his paycheck was similarly disregarded, even
though both, the Employer as well as the Union, ad-
mitted that this grievance had merit. Not until Reif had
repeatedly contacted Respondent and sent a letter did it
act when on August 30 Wirth submitted a report to
Union President Shaw. In the report the Union conceded
that the Employer's practices may have been "question-
able" but it concluded that it did not amount to "a gross
violation." Wirth also expressed his opinion that "the op-
erator is to run the machine and the business agent is to
enforce the contract." Obviously critical of Reifs efforts
in enforcing the union contract, Respondent apparently
resented such conduct by any of its members.
While it is arguable whether Reifs grievance concern-
ing the shortage in his paycheck can be considered a
minor matter, Reifs discharge as a result of his dispute
with the Employer over the contract interpretation can
certainly not be dismissed with a simple comment that
the violation was insignificant. To the contrary, the Em-
ployer's conduct would be regarded as a serious interfer-
ence with an employee's right protected by Section 7 of
the Act. Of particular arbitrary and hostile discrimination
was the Union's conduct on June 5, when Nitzke at-
tempted to obtain the Union's reaction to the layoff.
Wirth merely stated that Reifs layoff was up to the Em-
ployer and that the Union would simply send someone
else. This conversation also disproves Respondent's
notion that Reif was laid off because the "job was wind-
ing down" and "the employer no longer needed the
man."
The record shows that Respondent perceived Reif to
be a troublemaker who wherever he worked had "many
more problems than the other brothers of Local 139"
(G.C. Exh. 8(c)). Reif had persistently insisted upon an
employer's meticulous adherence to the union contract.
He also had repeatedly voiced his strong opposition to
the Local's leadership of Donald Shaw. This explains
Respondent's failure to give serious attention to Reif's
grievances and the Union's obvious attempt to ignore
these grievances.
CONCLUSIONS OF LAW
1. Respondent International Union of Operating Engi-
neers, Local No. 139, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. C. F. Kalupa, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
3. By its failure to process the grievances of George
Reif and its deliberate attempt to ignore the grievances,
Respondent breached its duty of fair representation and
thereby violated Section 8(b)(l)(A) of the Act.
4. These violations are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(b)(l)(A) of the Act, I
recommend that Respondent be ordered to cease and
desist from its unlawful practices. I further recommend
that Respondent be ordered to post an appropriate notice
and take certain affirmative actions in order to effectuate
the policies of the Act. In addition, I recommend that
Respondent be ordered to proceed promptly with the
processing of the grievances, including that challenging
the shortage in Reifs paycheck.
While the record shows that the Union tacitly con-
curred with the Employer's discharge of Reif, the record
does not show that the discharge would have been avert-
ed had the Union objected to it. One could speculate
that-but for Respondent's cooperation with the Em-
ployer-Reif would have kept his job with Kalupa, but
the record does not contain hard evidence to support
that proposition. Accordingly, I do not recommend that
a make whole order be issued, as requested by the Gen-
eral Counsel. Since Reifs discharge has been the subject
of a settlement by the Employer, it will be unnecessary
to order Respondent to act on this matter.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, I recommend the
issuance of the following recommended:
ORDER' 3
The Respondent, International Union of Operating En-
gineers, Local No. 139, AFL-CIO, Appleton, Wisconsin,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act by
failing to process a grievance fairly and by arbitrarily re-
fusing to consider and process a grievance fairly and by
failing to inform employees of the status of their griev-
ances.
'a In the event no exceptions are filed as provided bh Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, 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 he deemed waived for all purposes
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Restraining or coercing employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Request C. F. Kalupa, Inc., to pay George Reif the
shortage in his paycheck of $5.20 and, if the Employer
refuses, promptly to pursue the matter through the re-
maining stages of the grievance procedure.
(b) Post at its business offices and meeting halls and at
all places where notices to its members and other em-
ployees in the bargaining unit are customarily posted
copies of the attached notice marked "Appendix."' 4
'4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Copies of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by an of-
ficial of Respondent, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material. Respondent shall also sign
copies of the notice which the Regional Director shall
make available for posting by C. F. Kalupa. Inc., if it is
willing.
(c) Notify the said Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.