Operating Engineers Local 501 (Desert Inn)

National Labor Relations Board - Board Decisions

Sep 10, 1986

281 N.L.R.B. 419 (N.L.R.B. 1986)

OPERATING ENGINEERS LOCAL 501 (DESERT INN) 419
International Union of Operating Engineers Local
501, AFL-CIO and Summa Corp. d/b/a Desert
Inn Hotel, Country Club and Spa. Case 31-CB-
6380
10 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 12 March 1986 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The General Counsel and the Respondent filed ex-
ceptions and supporting briefs.
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Union of Operating Engineers Local 501, AFL-
CIO, Las Vegas, Nevada, its officers, agents, and
representatives, shall take the action set forth in the
Order.
' The General Counsel has excepted to the judge's failure to include in
his recommended Order certain remedial provisions including a "visitor-
ial clause" authorizing the Board, for compliance purposes, to obtain dis-
covery from the Respondent under the Federal Rules of Civil Procedure
under the supervision of the United States court of appeals enforcing this
Order. We have concluded that under the circumstances of this case the
requested provisions are not warranted.
Bernard Hopkins , for the General Counsel.
Gordon K Hubel (Levy, Ansell & Goldman), for the Re-
spondent.
Gregory J. Kamer, on behalf of Nevada Resort Association,
for the Charging Party. ,
DECISION
STATEMENT OF THE CASE
JERROLD H . SHAPIRO, Administrative Law Judge.
This proceeding in which a hearing was held on January
14, 1986, is based on an unfair labor practice charge filed
September 24, 1985 , by Summa Corp . d/b/a Desert Inn
Hotel, Country Club and Spa (the Employer), and a
complaint issued November 27, 1985 , by the General
Counsel of the National Labor Relations Board alleging
that international Union of Operating Engineers Local
501, AFL-CIO (Respondent), has engaged in unfair
labor practices within the meaning of Section 8(b)(1XB)
281 NLRB No. 65
of the National Labor Relations Act (Act). The com-
plaint alleges that Weston B . White (White), who is em-
ployed by the Employer as an assistant chief engineer, is
a supervisor within the meaning of Section 2(11) of the
Act and a representative of the Employer for the pur-
poses of collective bargaining or the adjustment of griev-
ances, and further alleges Respondent violated Section
8(bXl)(B) of the Act on May 16, 1985, by expelling
White from membership in Respondent because he
crossed Respondent's picket line to perform supervisory
or managerial work for the Employer. Respondent filed
an answer denying the commission of the alleged unfair
labor practice.1
Based on the entire record , from my observation of
the demeanor of the only witness , Weston B. White, and
having considered the parties' posthearing briefs, I make
the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Evidence
The Employer owns and operates a hotel and gam-
bling casino in Las Vegas, Nevada. Its engineering de-
partment , the department involved in this case , employs
an undisclosed number of workers who include carpen-
ters, electricians, painters, upholsterers , gardeners, and
operating engineers. The operating engineers are respon-
sible for the facility's maintenance and upkeep , including
the maintenance and upkeep of all mechanical and elec-
trical equipment.
The Employer's chief engineer acts as a liaison be-
tween management and the engineering department and
decides which projects the department will do. He is
also repsonsible for the supervision of all the workers
employed in the department, other than the operating en-
gineers. Assistant Chief Engineer White , one of two as-
sistant chief engineers , is responsible for the overall su-
pervision of the approximately 20 operating engineers
employed in the engineering department . The other as-
sistant chief engineer is primarily responsible for the Em-
ployer's preventive maintenance program.
White is admittedly a supervisor within the meaning of
Section 2(11) of the Act. Besides being responsible for
the overall supervision of the work of the 20 operating
engineers employed in the engineering department,
White interviews and hires applicants, has the authority
to fire employees, purchases the tools and materials used
by the operating engineers, schedules the maintenance
work, determines the best way to perform the scheduled
work, inspects the work in progress, and issues daily
work orders to the department's senior watch engineers,
who relay them to the other operating engineers.
' In its answer Respondent admits it is a labor organization within the
meaning of Sec. 2(5) of the Act and admits the Employer is engaged in
commerce within the meaning of Sec . 2(6) and (7) of the Act and meets
the National Labor Relations Board 's applicable discretionary jurisdic-
tional standard . I therefore find that the assertion of the Board's jurisdic-
tion in this case will effectuate the policies of the Act.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The senior watch engineers, of whom there is one em-
ployed on each shift,2 are working foremen and are su-
pervised by White. They are in charge of the other oper-
ating engineers employed on their respective shifts and
supervise their work. 3 But, unlike Assistant Chief Engi-
neer White, they work with the tools of the trade.
Respondent is the collective-bargaining representative
of the Employer's operating engineers . The Employer
and Respondent are signatories to a collective- bargaining
contract covering these employees, effective from April
2, 1983, through April 1, 1987. The contract expressly
covers the chief engineer and the assistant chief engi-
neers, except for the provisions which require the Em-
ployer to hire its operating engineers through Respond-
ent's hiring hall facility and which place limitations on
the Employer's right to discipline or discharge operating
engineers . Otherwise the chief engineer and the assistant
chief engineers, including White, are covered by all the
contract's provisions including the ones dealing with
union security, hours of work, wages, fringe benefits, the
limitation on the right to strike during the term of the
contract, and the contractual grievance and arbitration
machinery. In addition, the contract requires the Em-
ployer to designate someone as assistant chief engineer if
it employs 10 or more journeymen operating engineers.
Also, article 16.02 of the contract provides: "Functions.
(a) Chief Engineer and Assistant Chief Engineer. The chief
engineer shall be in charge of the Operations and Main-
tenance of the plant." (Emphasis added.)
White was not involved in the collective-bargaining
negotiations which resulted in the Employer's current
and past contracts with Respondent and there is no evi-
dence that his job duties require that he interpret any of
the current contract's provisions. Likewise he is not in-
volved in the processing or adjustment of employees'
grievances filed under the contract's grievance and arbi-
tration procedure. These grievances, which must be in
writing, are handled by the Employer's labor relations
department. White testified that if prior to the filing of a
written grievance, the employee or union steward ap-
proaches him in an effort to resolve the grievance, that
White has the authority to resolve the grievance before
it is formalized into a written contractual grievance (Tr.
34).4 And, although the usual practice is for the operat-
ing engineers to take their verbal grievances to their im-
mediate supervisor, the shift's senior watch engineer,
White, testified that "a certain amount of men come di-
rectly to me [with their problems] although they
shouldn't, but they do." More specifically, he testified
2 There are three work shifts of operating engineers : day, swing, and
graveyard.
3 The collective-bargaining contract between Respondent and the Em-
ployer covers the senior watch engineers and defines the "Functions" of
a senior watch engineer as- "Has charge of the shift, supervises all work
and engineer employees on that particular shift "
* White's testimony that he possesses this grievance adjustment author-
ity is substantiated by White's position in the supervisory hierarchy; he is
responsible for the overall supervision of all the department 's operating
engineers including the senior watch engineers . The fact that none of the
operating engineers has ever specifically informed White that the reason
they had approached him with their verbal grievances was to avoid
having to file a formal contractual grievance, does not detract from
White's grievance adjustment authority.
that during an average month he is personally confront-
ed by employees between six to eight times a month with
complaints which White characterized as "very minor
things" and which he divided into three categories: (1)
complaints about incorrect paychecks, i.e., checks alleg-
edly not reimbursing employees for all the hours they
had worked during the pay period; (2) complaints about
the lack of safety equipment, i.e., the lack of eye protec-
tion when using chemicals or grinders and the lack of
ear protection when operating emergency generators;
and (3) requests that White buy tools needed by employ-
ees to perform their work. 5 White resolves these com-
plaints by personally contacting the payroll department
and by purchasing the necessary safety equipment and
tools.
About April 30, 1984, Respondent directed the Em-
ployer's operating engineers it represented to stop work
and engage in a strike in support of another union's
strike against the Employer. 6 Respondent maintained a
picket line at the Employer's premises from April 30,
1984, until mid-June 1984. All the Employer's operating
engineers honored the picket line except for the chief en-
gineer and the two assistant chief engineers, including
White, who continued to work.
The Employer replaced the striking operating engi-
neers, including the three senior watch engineers, with
replacement employees most of whom had been em-
ployed by the Employer in other positions in its gam-
bling casino . Because the replacements were for the most
part unskilled and inexperienced in performing the oper-
ating engineers' work, the Employer employed more
than its prestrike complement of workers to do the oper-
ating engineers' work, and discontinued doing preventive
maintenance work for the duration of the strike.
White's hours of employment changed due to the
strike. Previously he worked on the day shift, whereas,
after the second or third day of the strike, he was trans-
ferred to the graveyard shift where he worked for the
remainder of the strike. There were no changes in
White's job duties during the strike. He performed the
same duties during the strike as he had performed before
the strike. During the strike he did not work with the
tools of the trade or otherwise do any of the work usual-
ly performed by the senior watch engineer or other op-
erating engineers. Admittedly, White personally assigned
"a few" work orders to the operating engineers, which is
work normally done by the shift's senior watch engineer.
Even before the strike, however, White normally person-
ally assigned work orders to operating engineers to the
same degree as he did during the strike. Likewise, al-
though during the strike White showed the replacements
around the premises where they would be working,
which was normally the job of the shift's senior watch
engineer, even prior to the strike White personally
showed new hires around the premises where they
would be working.
5 White testified, "I don't know whether this [referring to the employ-
ees' requests for tools] would really be a grievance."
6 There is no contention in this proceeding that Respondent 's strike,
which occurred during the term of its collective-bargaining contract with
the Employer, was in violation of the contract's no-strike provision.
OPERATING ENGINEERS LOCAL 501 (DESERT INN)
When the strike ended, one of Respondent 's members
filed a charge with Respondent against White , who was
a member of Respondent , alleging that White had violat-
ed Respondent 's constitution and bylaws by crossing Re-
spondent's picket line and/or performing bargaining unit
work during the strike . On April 22 , 1985, a hearing was
held before Respondent 's membership concerning this
charge. The only evidence presented to the membership
in support of the charge was the statement of Richard
Miller, the member who brought the charge , that he had
personal knowledge White performed bargaining unit
work behind the picket line during the strike , although
he did not personally observe White perform the work.
White responded by telling the membership that the only
work he had done behind the picket line was supervisory
work and that he had not done any bargaining unit
work. One of the members remarked that if White had
performed any work at all behind the picket line, that it
was bargaining unit work . The membership , by a sub-
stantial majority, voted that White was guilty as charged
and expelled him from membership. On May 16, 1985,
the Union, by letter, officially notified White of his ex-
pulsion.
B. Discussion
The record establishes and Respondent admits it ex-
pelled from membership Weston White , the Employer's
assistant chief engineer , because he worked for the Em-
ployer behind a picket line sanctioned by Respondent.
The complaint alleges in substance that by expelling
White from membership for crossing Respondent 's sanc-
tioned picket line to perform his regular supervisory
duties, Respondent violated Section 8(b)(1)(B) of the
Act.
Section 8(b)(1) provides that "It shall be an unfair
labor practice for a labor organization ... to restrain or
coerce ... an employer in the selection of his represent-
atives for the purposes of collective bargaining or the ad-
justment of grievances ." A union violates Section
8(b)(1)(B) when it disciplines supervisor-members for
crossing union picket lines to perform their regular su-
pervisory duties , including the adjustment of griev-
ances,' so long as the disciplined supervisor -members
performed no more than a minimal amount of rank-and-
file work during the period of the employer -union dis-
pute.8
In the "Introduction" to its posthearing brief, Re-
spondent admits it expelled White for working behind a
picket line sanctioned by Respondent, but contends that
White's expulsion was not proscribed by Section
8(b)(1)(B) because: (1) "Mr. White was not an 8(b)(1)(B)
supervisor because he had no power to adjust grievances
or represent the Employer in collective bargaining"; (2)
"Mr. White is, by definition, a member of the bargaining
unit covered by the terms of the collective -bargaining
agreement between the Employer and the Union"; and
(3) "[Respondent] has a constitutional right to expel Mr.
White from membership since this action will have no
7 See American Broadcasting Companies v. Writers Guild, 437 U.S. 411
(1978).
8 Operating Engineers Local 501 (Peterson Mfg.), 269 NLRB 685 (1984).
421
effect on his employment and cannot restrain the Em-
ployer in its selection of a representative for collective
bargaining purposes." I have considered these conten-
tions and the several arguments advanced in Respond-
ent's posthearing brief in support of them , and for the
reasons set forth hereinafter find they are without merit.
1. White's representative status
White is in charge of the Employer 's approximately 20
operating engineers . He hires and fires them and is re-
sponsible for their overall supervision and work . Consist-
ent with his overall responsibility for the supervision and
work of the operating engineers , White has the authority
to adjust the operating engineers' grievances before they
are formalized into written grievances under the govern-
ing collective-bargaining contract's grievance procedure.
And, although the practice is for the operating engineers
to bring their verbal grievances to their immediate super-
visor, the shift's senior watch engineer , it is not uncom-
mon, as described in detail supra, for the operating engi-
neers to bring verbal grievances dealing with pay, safety,
and equipment problems directly to White , who adjusts
them.9 Under the circumstances I am persuaded that
White is, by virtue of his actual job duties , an employer
representative for the purpose of the adjustment of griev-
ances within the meaning of Section 8(b)(1)(B) of the
Act. See Toledo Lithographers Locals 15-P & 272 (Toledo
Blade), 175 NLRB 1072, 1078 (1969), enfd . 437 F.2d 55
(6th Cir. 1971) (supervisor's settlement of informal com-
plaints over employees ' job performance, pay, and over-
time assignment establishes status as employer grievance
adjuster); Detroit Newspaper Printing Pressmen's Union 13,
192 NLRB 106, 111 (1971) (supervisor's resolution of
noncontractual grievances over working conditions and
safety hazards demonstrates authority to adjust griev-
ances for the employer); NLRB v. Electrical Workers
IBEW Local 340, 780 F.2d 1489 , 1491 (9th Cir. 1986)
("[Supervisor] was a [Sec . 8(b)(l)(B)] representative be-
cause he occasionally handled employees ' personal prob-
lems on the job"). See also Newspaper Guild Local 187 v.
NLRB, 487 F .2d 416, 422 (3d Cir. 1973).
In any event, even if White does not actually adjust
grievances within the meaning of Section 8 (b)(1)(B) of
the Act, he is an employer representative within the
intent of Section 8(b)(1)(B) under the Board 's "reservoir
doctrine," that supervisor status alone is sufficient to
invoke Section 8(b)(1)(B)'s protection, regardless of
whether the particular supervisor normally is required to
perform collective-bargaining or grievance adjustment
duties. See Teamsters Local 296 (Northwest Publications),
9 The Supreme Court has stated that the terms "collective bargaining"
and "adjustment of grievances" encompass a wide range of activities, and
that grievance adjustment may occur without formal invocation of a con-
tractual grievance mechanism . See NLRB Y. City Disposal System, 465
U.S. 822 fn. 9 (1984). Likewise the Board has recognized that the fact
that such complaints are satisfactorily settled before they become formal
contract grievances does not detract from their classification as griev-
ances within the broad meaning of that term as used in the Act . Detroit
Newspaper Printing Pressmen's Union 13, supra.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
263 NLRB 778, 779 fn. 6 (1982); Teamsters Local 600
(Directory Distributing), 276 NLRB 1103 (1985).10
In summation, White, besides being a supervisor within
the meaning of Section 2(11) of the Act, is also an
8(b)(1XB) representative and in this capacity has the au-
thority to adjust employees ' grievances . And, as de-
scribed in detail supra, when White crossed the union
picket line to work for the Employer, he performed the
same supervisory work he had always performed in his
capacity as assistant chief engineer . 111 Therefore, the in-
evitable effect of Respondent 's discipline of White for
working during the labor dispute was to interfere with
White's normal performance of his supervisory duties, in-
cluding his grievance adjustment duties.
2. White's inclusion in the contractual bargaining
unit
The collective-bargaining contract between Respond-
ent and the Employer, as I have found supra, expressly
covers the classification of assistant chief engineer and,
except for the contract's provisions which require the
Employer to hire its operating engineers through Re-
spondent 's hiring hall facility and which place limitations
on the Employer 's right to discipline or discharge oper-
ating engineers, all the assistant chief engineer's terms
and conditions of employment are governed by the terms
of the contract . If under these circumstances there is a
doubt that the work performed by Assistant Chief Engi-
neer White is work covered by the contract, '2 this doubt
is removed by the fact that article 1 of the contract pro-
vides for the Employer's recognition of Respondent as
the exclusive collective-bargaining representative of all
persons employed by the Employer who perform operat-
ing engineers' work, including the work performed by
the operating engineers ' classified as assistant chief engi-
neer. Thus, article 1 provides , in pertinent part , for the
Employer's recognition of Respondent as the exclusive
10 The Second Circuit Court of Appeals in NLRB v. Rochester Musi-
cians Assn. Local 66, 514 F.2d 988, 992 (2d Cir. 1975 ), stated that the Su-
preme Court's decision in Florida Power & Light, 417 U.S . 790 (1974) "ef-
fectively undermined [the reservoir doctrine's] conceptual basis," and in
NLRB v. Electrical Workers Local 340, 780 F.2d 1489, 1491-1492 (9th Cir.
1986), the Ninth Circuit Court of Appeals , in whose jurisdiction the in-
stant case arose , indicated its agreement with the view of the Second Cir-
cuit. However , the Board requires that its administrative law judges
follow Board precedent when a conflict exists between Board and court
decisions . See, for example, Insurance Workers (Prudential Insurance), 119
NLRB 768, 772-773 (1957). In any event, as discussed supra, the
8(bX1XB) violation herein does not depend on the applicability of the
"reservoir doctrine."
11 As I noted supra , there is a certain limited overlapping of White's
supervisory duties and the supervisory duties of the senior watch engi-
neers . However , when viewed in the context of the overall amount of
worktime White spends performing his supervisory duties, the amount of
time he spends performing supervisory duties similar to those performed
by the senior watch engineers is de minimis . Also, as I have noted supra,
White, during the labor dispute , did not perform the supervisory duties
performed by his shift 's senior watch engineer to a greater extent than he
had done prior to the labor dispute . All the supervisory duties performed
by White during the labor dispute had previously been performed by hun
to the same extent.
18 Collective-bargaining contracts usually do not specifically describe
the work covered by the contract , but merely set out the job classifica-
tions covered by the contract . There is normally a presumption that the
work performed by the persons employed in the covered classifications is
the work covered by the contract.
collective-bargaining representative of "all persons di-
rectly employed by the Employer to perform work cov-
ered by the classifications set forth in Article 16" [empha-
sis added]. The contract, at article 16, specifically in-
cludes the classification of assistant chief engineer.
Respondent in its posthearing brief contends:
By including the . . . Assistant Chief Engineers in
the bargaining unit, the Employer has agreed to
allow the Union to represent those employees in ne-
gotiations and to permit those employees to benefit
from any contractual gains obtained for other unit
employees . This is not to say that the . . . Assistant
Chief Engineers are not supervisors; rather, the par-
ties simply have agreed to include them in the unit
and to allow them the benefits of the collective-bar-
gaining agreement . Under these circumstances, the
Union has a right to demand that these bargaining
unit employees respect its picket line and not per-
form work which is defined by the contract as
being bargaining unit work.
The General Counsel contends that the Board in Operat-
ing Engineers Local 501 (MGM Grand), 275 NLRB 735
(1985), addressed this precise issue and rejected Respond-
ent's contention. I reject Respondent's contention for the
following reasons.
It is not uncommon for union discipline of supervisor-
members, which is proscribed by Section 8(bXl)(B) of
the Act, to occur in the context of the disciplined super-
visor-members being covered by a collective-bargaining
contract and thereby being members of the contractual
bargaining unit . See, e .g., Metallic Lathers Local 46
(Cement League), 259 NLRB 70, 76 (1981); Teamsters
Local 296 (Northwest Publications), 263 NLRB 778 (1982);
Operating Engineers Local 501 (Peterson Mfg.), 269 NLRB
685, 686 (1984); Operating Engineers Local 501 (MGM
Grand), supra. The essential question raised by this class
of cases is whether by entering into a collective-bargain-
ing contract with the respondent-union, which included
certain supervisor-members as a part of the contractual
bargaining unit, that the employer waived its statutory
right, guaranteed by Section 8(bXl)(B) of the Act, to
select those supervisor-members as the employer's repre-
sentatives for the purposes of collective bargaining or the
adjustment of grievances, free from the respondent-
union's restraint or coercion.
As a general rule, to establish a waiver of a statutory
right, there must be a clear and unmistakable relinquish-
ment of that right. Whether there has been such a relin-
quishment is to be decided on the basis of all the facts
and circumstances surrounding the making of the con-
tract in question . Rose Arbor Manor, 242 NLRB 795, 798
(1979). More precisely , waivers of statutory rights "must
be clearly and unmistakably evidenced either in the
terms of the parties ' bargaining contract or in the nature
of the prior contract negotiations ." Stotler Hilton Hotel,
191 NLRB 283, 288 (1971), and cases cited therein.
By these standards, it is clear that the Employer in the
instant case did not clearly and unmistakably waive its
right under Section 8(bXIXB) of the Act to be free from
Respondent's restraint or coercion in selecting Assistant
OPERATING ENGINEERS LOCAL 501 (DESERT INN)
Chief Engineer White as its representative for either col-
lective-bargaining or grievance adjustment purposes.
Such a waiver is not established by the literal language
of the contract and no other evidence was presented to
shed any further light on this particular issue. In its
posthearing brief Respondent argues , "[i]n a case such as
this one, where the Employer has permitted the Union to
negotiate on behalf of the supervisors, it must be as-
sumed that the Employer accepted the possibility that
the Union would call on those supervisor -members to
honor the picket lines established to obtain a new collec-
tive-bargaining agreement." I disagree . It does not follow
that the Employer by agreeing that Assistant Chief Engi-
neer White should be included in the contractual bar-
gaining unit, also agreed that the Union , party to the
contract , has the right to discipline Assistant Chief Engi-
neer White for performing his usual supervisory duties,
including the adjustment of grievances , during a labor
dispute.
3. Restraint and coercion
The Board has consistently held that a supervisor-
member's suspension or expulsion from a union consti-
tutes restraint and coercion within the meaning of Sec-
tion 8(bxl)(B) of the Act, and has also consistently rem-
edied violations of Section 8(bxl)(B) involving suspen-
sions or expulsions by ordering the offending unions to
rescind the suspensions or expulsions. See Operating En-
gineers Local 501 (Peterson Mfg.), 269 NLRB 685, 689
fns. 6 and 7 (1984), and Operating Engineers Local 501
(MGM Grand), 275 NLRB 735 (1985). Accordingly, I
reject Respondent's contentions that its suspension of
White does not constitute restraint or coercion within
the meaning of Section 8(b)(1)(B) and that the first
amendment's "right of association " would be violated if
Respondent was compelled to retain White as a member
after the membership had told it to expel him.
II. ULTIMATE CONCLUSION
Having found that White is a supervisor within the
meaning of Section 2(11) of the Act and a representative
of the Employer within the meaning of Section
8(b)(1XB) of the Act; having further found that Re-
spondent expelled White from membership for crossing a
union picket line to perform his regular supervisory
duties, including the adjustment of grievances; I there-
fore find that by White's expulsion, Respondent has re-
strained and coerced the Employer in the selection of its
representatives for the purposes of collective bargaining
or the adjustment of grievances, and has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
CONCLUSIONS OF LAW
1. Summa Corp. d/b/a Desert Inn Hotel , Country
Club and Spa is, and at all times material has been, an
employer within the meaning of Section 2 (2) of the Act.
2. Summa Corp . d/b/a Desert Inn Hotel , Country
Club and Spa is, and at all times material has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
423
3. Respondent International Union of Operating Engi-
neers Local 501, AFL-CIO is, and at all times material
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. Weston B. White is, and at all times material has
been, a supervisor within the meaning of Section 2(11) of
the Act and a representative of Summa Corp. d/b/a
Desert Inn Hotel , Country Club and Spa, within the
meaning of Section 8(bXl)(B) of the Act.
5. By expelling Weston B. White from membership for
crossing a union picket line to perform his regular super-
visory duties, including the adjustment of grievances, Re-
spondent has restrained and coerced Summa Corp. d/b/a
Desert Inn Hotel , Country Club and Spa, in the selection
of its representatives for the purposes of collective bar-
gaining or the adjustment of grievances and has engaged
in an unfair labor practice within the meaning of Section
8(b)(1)(B) of the Act.
6. The aforesaid unfair labor practice is an unfair labor
practice within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in the
above-described unfair labor practice, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action which will effectuate the policies of the Act.
I shall, inter alia, recommend that Respondent rescind
White's membership expulsion and make him whole for
any loss of benefits or moneys he may have suffered by
reason of his expulsion from membership , with interest
computed in the manner provided in Florida Steel Corp.,
231 NLRB 651 (1977).13
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed14
ORDER
The Respondent , International Union of Operating En-
gineers Local 501 , AFL-CIO, Las Vegas, Nevada, its of-
ficers, agents , and representatives, shall
1. Cease and desist from
(a) Preferring charges against, expelling from member-
ship, or otherwise disciplining Weston B. White or any
other supervisor of Summa Corp . d/b/a Desert Inn
Hotel, Country Club and Spa, who is a supervisor within
the meaning of Section 8(b)(1)(B) of the Act, for per-
forming their supervisory duties behind a union picket
line.
(b) In any like or related manner restraining or coerc-
ing Summa Corp. d/b/a Desert Inn Hotel, Country Club
and Spa in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of griev-
ances.
" See generally Isis Plumbing Co., 138 NLRB 716 (1962).
14 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-
Ios
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind and remove all records of the charge and
expulsion levied against Weston B. White for performing
his supervisory duties behind a union picket line.
(b) Reinstate Weston B. White as a member in good
standing of Operating Engineers Local 501.
(c) Make Weston B. White whole for any loss of bene-
fits or money he may have suffered by reason of Operat-
ing Engineers Local 501 's action in expelling him from
membership , with interest as computed in the manner
provided in the remedy section of this decision.
(d) Advise Weston B. White in writing that it has
taken the action required in (a) through (c) above.
(e) Post at its business office, union hall, or any places
where notices to its members are customarily posted,
copies of the attached notice marked "Appendix." 16
Copies of the notice, on forms provided by the Regional
Director for Region 31, after being signed by the Re-
spondent 's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees and members are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Furnish the Regional Director for Region 31 signed
copies of such notice for posting by Summa Corp. d/b/a
Desert Inn Hotel, Country Club and Spa, if willing, at
their Las Vegas, Nevada place of business where notices
to employees are customarily posted.
15 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."
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prefer charges against, expel from mem-
bership, or otherwise discipline Weston B. White or any
other supervisor of Summa Corp . d/b/a Desert Inn
Hotel, Country Club and Spa , who is a supervisor within
the meaning of Section 8(bXl)(B) of the Act, for per-
forming their supervisory duties behind a union picket
line.
WE WILL NOT in any like or related manner restrain or
coerce the above-named employer in the selection of its
representatives for the purposes of collective bargaining
or the adjustment of grievances.
WE WILL rescind and remove all records of the charge
and expulsion levied by us against Weston B. White for
performing his supervisory duties behind a union picket
line sanctioned by us.
WE WILL reinstate Weston B. White as a member in
good standing in our Union and make him whole for any
loss of benefits or money he may have suffered by reason
of his expulsion, with interest.
WE WILL advise Weston B. White in writing that we
have taken the above action.
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 501, AFL-CIO