Operating Engineers, Local 953

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