Operating Engineers, Local 139

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.