Electrical Workers Local 2321 (Verizon)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 29 258 International Brotherhood of Electrical Workers, Local 2321, AFL–CIO and Gregory Burns. Case 1–CB–10559 July 18, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On April 11, 2007, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief to the Respondent’s exceptions. The National Labor Relations Board has delegated 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 briefs1 and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified and set forth in full below.2 ORDER The National Labor Relations Board orders that the Respondent, International Brotherhood of Electrical Workers, Local 2321, AFL–CIO, Lawrence, Massachu- setts, its officers, agents, and representatives, shall 1. Cease and desist from (a) Enforcing an overtime rule at the Verizon Law- rence garage that provides that employees who collec- tively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods are charged for the overtime hours worked. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the overtime rule at the Verizon Lawrence garage that provides that employees who collectively pull their overtime availability are not charged for refus- ing to work overtime, while employees who do work overtime during these periods are charged for the over- time hours worked. 1 The Respondent has requested oral argument. The request is de- nied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. In light of the findings herein, the Employer Verizon New England’s Motion for Leave to File Answering Brief is denied as moot. 2 We have modified the Order to conform to the judge’s recommen- dation that the overtime rule be rescinded and to conform to the Board’s standard remedial language. We have attached a new notice to conform to the Order. (b) Make whole Gregory Burns for the overtime hours that he lost due to the Respondent’s failure to charge employees of Verizon New England for the overtime hours that they refused to work on November 25, 26, and 27, 2005. (c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its union office copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Sign and return to the Regional Director sufficient copies of the notice for posting by Verizon New Eng- land, if willing, at all places at the Lawrence garage where notices to employees are customarily posted. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union 3 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ELECTRICAL WORKERS LOCAL 2321 (VERIZON) 259 Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT enforce an overtime rule at the Verizon Lawrence garage that provides that employees who col- lectively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods are charged for the overtime hours worked. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights set forth above. WE WILL rescind the overtime rule at the Verizon Law- rence garage that provides that employees who collec- tively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods, are charged for the overtime hours worked. WE WILL make whole Gregory Burns for the overtime hours that he lost due to our failure to charge employees of Verizon at the Lawrence garage for the overtime hours that they refused to work on November 25, 26 and 27, 2005. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2321, AFL–CIO Karen Hickey, Esq., for the General Counsel. Harold Lichten, Esq. and Maydad Cohen, Esq. (Pyle, Rome, Lichten, Ehrenberg & Liss-Roirdan, P.C.), for the Respon- dent. Gregory Burns, Pro Se. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by Administrative Law Judge Lawrence W. Cullen on February 5, 2007, in Boston, Massachusetts. The amended complaint herein, which issued on December 5, 2006, and was based upon an unfair labor practice charge that was filed on January 6, 2006, by Gregory Burns, an individual, alleges that from about November 21, 2005,1 until at least about November 26, International Brotherhood of Electrical Workers, Local 2321, AFL–CIO (the Respondent and/or the Union), engaged in a refusal to perform voluntary overtime work requested by Verizon New England (the Employer), and that on November 24, 25, and 26, Burns volunteered for, and worked, overtime for the Employer. The amended complaint further alleges that the Respondent maintains and administers an overtime work list which offers the overtime to the person with the lowest number 1 Unless indicated otherwise, all dates referred to relate to the year 2005. of overtime hours for that calendar year, and that on about No- vember 27, the Respondent charged Burns for these overtime hours worked, i.e., it credited him for the overtime hours that he worked during that period, while failing to charge employees who engaged in the concerted refusal to perform voluntary overtime and who refused to work overtime hours during this period, even though under Respondent’s normal rules, an em- ployee who refuses to work overtime will be “charged” (cred- ited) with having worked those hours. The complaint con- cludes that the Respondent engaged in this conduct because Burns refused to participate in the refusal to perform overtime work, and refused to engage in a work stoppage in violation of the contract between the parties, and therefore the Respondent violated Section 8(b)(1)(A) of the Act. Subsequent to the closing of the hearing Judge Cullen devel- oped a serious medical condition and is not expected to return to work before July 2007. Administrative Law Judge William Cates, the Associate Chief Judge in the Atlanta office of the Division of Judges, notified the parties of Judge Cullen’s condi- tion, and they all agreed that a new judge should be assigned to this matter to prepare and serve upon the parties a decision utilizing the existing record in this matter. By Order Designat- ing a Replacement Administrative Law Judge dated March 7, 2007, Judge Cates designated the undersigned to replace Judge Cullen in this matter. FINDINGS OF FACT I. JURISDICTION Respondent admits, and I find, that the Employer has been an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS Respondent admits, and I find, that it has been a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE FACTS The Union, together with other locals of the international un- ion, has been the exclusive collective-bargaining representative for certain of the employees of the Employer for a number of years. The most recent collective-bargaining agreement be- tween the parties is effective for the period August 3, 2003 through August 2, 2008. The unit employees involved in the instant matter are splice service technicians (SST) employees employed at the Employer’s facility in Lawrence, Massachu- setts (the Lawrence garage and/or the facility). Prior to the opening of the hearing, the parties agreed to the following stipulations: From at least about November 21, 2005 until at least about November 27, 2005, with the exception of Novem- ber 24, 2005, Union members employed in Verizon’s Lawrence, Massachusetts garage, with the knowledge and support of union president Kelly and union steward Kierce, engaged in a concerted refusal to perform volun- tary overtime work requested by the Employer. In or about November 27, 2005, Respondent credited Burns for the overtime hours that he worked on November DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260 24, 25 and 26, 2005, pursuant to the overtime system that is maintained and administered by the Union. About November 27, 2005, the Respondent did not charge employees who engaged in the concerted refusal to perform voluntary overtime, as described above. The Employer initially determines if it will need employees to perform work on an overtime basis; however, the Union maintains the overtime list that the Employer employs in select- ing employees for the work involved. The Employer will first ask employees at the top of this list and then work its way down the list. This is voluntary overtime. If the Employer cannot obtain sufficient volunteers, it has the right to invoke manda- tory overtime, up to a maximum of 10 to 12 hours per week per employee, depending on the weather. The Employer has the further right to declare an emergency and suspend the overtime rules entirely and to force employees to work an unlimited number of overtime hours. The contract between the parties, at P3.04, states: The Company will distribute overtime in as fair and equitable a manner as circumstances and the job requirements will per- mit. Records of overtime distribution will be maintained lo- cally. Overtime distribution procedures cannot be designed to encourage or foster payment of overtime at two (2) times the straight time rate. The overtime rules are established and voted on by the em- ployees in each of the Employer’s facilities. The Lawrence Garage overtime list rules and guidelines states, inter alia: 2. Distribution of overtime: Overtime will be distrib- uted in a fair and equitable manner as outlined in the con- tract. The person with the lower hours will be given the first opportunity to work. Job continuity and specialized skills will be considered where applicable by management when making this determination. 3. Tracking overtime. Overtime hours will be kept on a daily basis Monday through Friday. Charged hours will be recorded by a designated person acceptable by the Un- ion. 4. Availability. The overtime availability will run from Monday through Sunday. All hours will be calcu- lated daily Monday through Thursday, with Friday morn- ing’s list representing the order of technicians to work the weekend depending on their availability. Employees will make themselves available at the start of their normal tour of duty for that day’s overtime. Weekend availability will be taken Friday morning and will stand for the weekend and Holiday if applicable. (If you later choose to make yourself available, you must notify the Duty Foreman, Maintenance Center, and the person handling the overtime list by 2 p.m. that Overtime day, or you will be placed at the bottom of the list.) It will be the employee’s responsi- bility to give their manager or Duty Foreman their avail- ability. [Emphasis supplied.] 5. Vacation. No charge Friday and Saturday before the vacation week and the Sunday after the vacation week, except when vacation is taken on a “day at a time” basis. No charge for any vacation day. Full E.W.D. or any 1/2 E.W.D. in the second half of the workday. No charge for Saturday or Sunday if combined with 5 vacation days (or 4 vac. Days + HOL), i.e. (vac Thur.–Fri. and Mon.–Wed., or Wed.–Fri.+ Mon.–Tue. Etc.) 6. All hours of overtime worked will be charged. 7. Incidental Overtime. Only those who work will be charged, providing there is no overtime scheduled for that evening. 8. Charging. During the week if you are asked to work overtime and refuse, you will be charged the mini- mum 2 hour bogey when the maximum forced hours are 10 per week, and 3 hours when the maximum forced hours are 12 per week. If you work 1 hour of O.T. and are asked to work and refuse, you will be charged the additional hours. . . . On weekends and Holidays, you will be charged a flat rate of 8 hours. . . . Lawrence Lumia Jr., a union member and an SST employee at the facility, has administered and maintained the overtime list at the facility for in excess of 5 years. This overtime list rules and guidelines is posted in the employees’ breakroom at the facility. The employees at the facility meet in December every year to propose and vote on changes to these overtime rules, although these changes have not been put in writing. Although the rules and application are somewhat complicated, the purpose of the rules and list is simple: the employee with the least amount of accumulated overtime should be the first one chosen to work overtime. The most important category on the overtime list is the year-to-date total for all overtime hours worked and charged. The employee with the lowest number of hours year-to-date is at the top of the list and as you go down the list the number of hours increases to the last name on the list, the employee with the highest number of overtime hours worked or charged, and this is the employee who would be called last for overtime. Robert Antonelli, a first-line supervisor for the Employer at the facility, testified that each morning the managers at the facility ask the SSTs working under their supervision if they would be available for overtime that day should their services be needed. This information is recorded, and given, together with a listing of the employees who worked overtime the prior day and the number of hours worked, to Lumia, or another union representative. Lumia then updates this list, charging, or crediting, employees who worked overtime, and charging em- ployees who refused overtime work, although he testified that there are some exceptions where employees are not charged for refusing overtime work, such as if they are in training, on vaca- tion, a sick day, union business, or a blood donor. On those occasions they would not be charged for refusing overtime. After assembling this information, Lumia then informs An- tonelli of the priorities, or gives him the updated list, and the Employer then calls employees for overtime pursuant to the priorities, and qualifications, on the list. The dispute herein is not about the exceptions set forth above, but to another excep- tion alleged by the Union; that when the employees at the facil- ity collectively vote to pull their overtime for a certain period, they are not charged for refusing overtime during that period. Lumia testified that the rule is that when all the employees at ELECTRICAL WORKERS LOCAL 2321 (VERIZON) 261 the garage collectively pull their overtime, “no one will be charged if someone is forced to work overtime.” Burns testi- fied that he is not aware that the Union had a practice of not charging anyone who refuses to work overtime as a result of a vote of the employees to pull their overtime. He also testified that he is not aware of any situation other than the instant situa- tion where an employee worked voluntary overtime at a time when the other employees had pulled their overtime. In the past, when the employees voted to pull their overtime, none of the employees voluntarily accepted overtime and the Employer was forced to order mandatory overtime. In that situation, Burns agrees, the other employees would not be charged for refusing overtime. The events occurred during the Thanksgiving week of 2005, from Monday, November 21, through Sunday, November 27. Because of the nature of the Employer’s operation, the employ- ees at the facility work a Monday through Saturday workweek, and must be available for overtime work when needed. Those employees who are scheduled to work on Saturday do so at a straight-time basis and are given one other day off that week, plus Sunday. The day off is known as “Day Unassigned” or DU, and a DU schedule is posted weekly where the employees’ assigned DUs are listed. The past practice at the facility has been that there would be no DU postings for the Thanksgiving or Christmas weeks. However, on November 16, the Employer announced that there would be a DU schedule for the week of Thanksgiving, and that employees who were asked to work on their DU day, would do so at straight time rather than at the overtime rate. So, for example, all employees who were sched- uled to have their day off on Monday, Tuesday, or Wednesday that week (all the employees at the facility took the Friday after Thanksgiving as their floating holiday) could be asked to work on Saturday at straight time. The employees at the facility were unhappy with this decision by the Employer and at a meeting of the unit employees on November 17, a majority voted to with- hold, or “pull” their availability for overtime for the week, ex- cept for Thursday, November 24. Burns participated in this action with the other employees until Friday, November 25, when he made himself available for voluntary overtime begin- ning on that day, and worked 14 hours of overtime on Friday, November 25, 17 hours of overtime on Saturday, November 26, and 6 hours on Sunday, November 27. He was charged, or credited, for these overtime hours while none of the other em- ployees were charged for refusing to work overtime during this period. As a result, his position on the overtime list went from number 10 of 52 on November 23, to number 46 as of Novem- ber 28. Burns testified that when he arrived for work on Monday, November 28, Union Steward Brian Kierce told him that it was wrong for him to go against the Union and that he was helping the Employer by working, and that he was going to be charged all the hours that he worked. Burns answered that was fine, the Union could charge him for all the hours that he worked, “but he has to charge everybody the hours they refused to work.” On the following day, after he saw that the overtime list had charged him for the hours that he worked, but had not charged the other employees who had pulled their availability for that period, he approached Kierce and told him that “he can’t charge me the hours I worked without charging the people the hours that they declined, and he says there was a work action so he has every right to do it and he pointed towards the overtime rules.” Burns said that the overtime rules didn’t say that and what the Union was doing violated the National Labor Rela- tions Act. Kierce testified that on about November 17, he was told that some of the employees, including Burns, wanted ex- planations for why the employees were pulling their overtime. Since he was very friendly with Burns he explained the situa- tion to him and told him that it affected all of them. Burns told him that although he didn’t agree with what they were doing, “for you, I’ll do it.” On November 28, he and Burns had “a stupid argument.” Kierce told him that he shouldn’t have worked, that it meant a lot to a lot of people he was friends with, and Burns told him why he made himself available. After the initial discussion, Burns returned and told Kierce, “You can’t charge me for those hours” and Kierce said that he wasn’t charging him anything, that he didn’t run the list. There have been situations in the past where the employees at the facility have pulled their overtime in protest of the Em- ployer’s actions. Burns testified to two other occasions when the employees at the facility pulled their availability for over- time work. In 2003, at a time when negotiations for a new contract appeared to be stalled, the employees at the facility collectively agreed to not be available for voluntary overtime work. On another occasion, to protest a fellow employee’s suspension, the employees at the facility again pulled their availability for overtime work. Burns participated in this action with his fellow employees on both of these occasions and was not charged for refusing overtime on either of these occasions. He testified that on both these occasions, after the Employer was unable to obtain employees for voluntary overtime, they assigned employees (from the top of the list) mandatory over- time. Kierce, who has been employed by the Employer at the facility for 9 years, also testified about these two situations where the employees voluntarily pulled their overtime avail- ability, and those employees who did not work overtime during those periods were not charged for the time. IV. ANALYSIS The gravamen of this case is that the Union failed to charge its members for their refusal to work voluntary overtime on November 25, 26, and 27, while charging, or crediting, Burns the overtime hours that he worked on those days. This case has already been before the Board on a Motion for Summary Judg- ment, which was filed by counsel for the General Counsel on June 22, 2006, and is reported at 348 NLRB 869. This Deci- sion, which denied the motion, states that the complaint essen- tially alleges that the Union charged Burns for the overtime worked in retaliation for his failure to participate in a concerted refusal to perform voluntary overtime work: “Assuming that the charges referred to in the complaint were internal union fines, we note that such fines, within certain limitations, are permissible,” citing Scofield v. NLRB, 394 U.S. 423, 430 (1969). The Board stated further, “Thus, for a union to fine one of its members for refusing to participate in such protected concerted activity would not impair [any] policy Congress has imbedded in the labor laws. Absent some other limiting cir- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262 cumstances under Scofield, a labor organization does not vio- late Section 8(b)(1)(A) by imposing a reasonable fine on its members for declining to participate in a concerted refusal of voluntary overtime.” I should initially note that I found some of the evidence herein irrelevant to the ultimate determination in this matter. For example, all the Union’s rules determining how many hours employees would be charged for refusing voluntary over- time has little, if any relevance to this matter, nor is there any relevance to the discussions between Burns and Kierce on No- vember 28 and 29. Additionally, I should also note that my careful reading of the transcript convinces me that Burns, who appeared to be unwilling to make any admissions that might appear to be favorable to the Union, was the least credible of the witnesses herein, although that also has no bearing on the ultimate determination herein. Office Employees Local 251 (Sandia Corp.), 331 NLRB 1417 (2000), involved a dispute between officers of the union, dueling impeachment charges, and the removal of the vice president from her position, as well as her expulsion from the union, although, the Board noted, that her employment was not affected by this action. In dismissing the complaint, the Board stated, inter alia: What is of critical significance in our judgment is that the only sanctions visited on the Charging Parties by the victorious in- traunion faction were internal union sanctions, such as re- moval from union office and suspension or expulsion from union membership. The relationship between the Charging Parties and their Employer, Sandia, was wholly unaffected by the discipline. Nor are any policies specific to the National Labor Relations Act implicated by the union discipline at is- sue . . . we find that Section 8(b)(1)(A)’s proper scope, in un- ion discipline cases, is to proscribe union conduct against un- ion members that impacts on the employment relationship, impairs access to the Board’s processes, pertains to unaccept- able methods of union coercion, such as physical violence in organizational or strike contexts, or otherwise impairs policies imbedded in the Act. The Board further stated that Section 8(b)(1)(A) “was not en- acted to regulate the relationship between unions and their members unless there was some nexus with the employer- employee relationship and a violation of the rights and obliga- tions of employees under the Act. In Healthcare Employees Local 399 (City of Hope Medical Center), 333 NLRB 1399, 1401 (2001), the union threatened employees who were circu- lating decertification petitions that it could agree to outsourcing of their department’s work. The Board found that the employ- ees’ decertification activities were protected under Section 7 of the Act and that the union’s threat violated Section 8(b)(1)(A) of the Act: “While Respondent may discipline employees for circulating or supporting a decertification petition, it may not threaten to take any action to affect their employment except in cases of valid enforcement of a union-security provision.” It is clear that under Scofield, Sandia, City of Hope, and Electrical Workers Local 15 (Commonwealth Edison), 341 NLRB 336, 343–344 (2004), the Union could have fined Burns for volunteering for, and performing, overtime work on No- vember 25, 26, and 27; however, rather than fining him, the Union charged Burns for the voluntary overtime hours that he worked on these days, while not charging the other union members who collectively pulled their hours for those days. The issue is whether this constituted internal union fines or sanctions permitted by Scofield, Commonwealth Edison, and Sandia, or did it impact on Burns’ employment relationship which, the Board stated in Sandia, is proscribed by Section 8(b)(1)(A) of the Act. As counsel for the General Counsel states in her brief, both sides herein were engaged in protected concerted activities protected by Section 7 of the Act; the union members in collectively agreeing to pull their overtime avail- ability for the days in question in protest of the Employer’s posting of the DU list, and Burns in deciding that he would not participate in the refusal to work voluntary overtime, and nei- ther could have their employment relationship adversely af- fected by their actions. Yet, as a result of Burns’ refusal to participate in the Union’s concerted actions, and the Union’s failure to charge it members for the overtime hours that they refused to work, his opportunity to obtain future overtime work was greatly reduced. It is undisputed that the Union operates and controls the overtime list. Under Sandia, the critical issue is whether the Union’s action “impacted” (at p. 1418) or “had some nexus with the employer-employee relationship” (at p. 1424). I find that it did. On November 23, Burns was number 10 on the overtime list. By Monday, November 28, he was number 46. The union action in not charging its members who participated in the collective refusal to work voluntary overtime during this period, whether voted on by the union membership or not, clearly impacted Burns’ ability to later obtain overtime work from the Employer, and would therefore appear to violate Section 8(b)(1)(A) of the Act. Counsel for the Respondent, in his brief, argues that even if the Union’s overtime rules restrained Burns’ Section 7 rights to work voluntary overtime in contravention of the Union’s re- quest, that right is outweighed by the Union’s legitimate inter- est in maintaining solidarity and loyalty among its members for the common good of all the members, citing Service Employees Local 254 (Brandeis University), 332 NLRB 1118 (2000), and Steelworkers Local 9292 (Allied Signal Technical Services Corp.), 336 NLRB 52 (2001). In this situation that means that the Union should be given leeway to enforce solidarity among its members to heed the Union’s request to refuse to work vol- untary overtime. Although it is true the Union has a legitimate interest in maintaining the loyalty and solidarity of its mem- bers, such interest does not outweigh the interest of its mem- bers, and the Employer’s employees, to engage in their Section 7 rights to work voluntary overtime in contravention of the Union’s request. Brandeis and Allied Signal involved situa- tions that were, basically, intraunion matters, the removal of an employee from a union position (Brandeis) and the suspension from union membership (Allied Signal), but the Board for the sake of argument, assumed the nexus to the employer-employee relationship under Sandia. There is nothing “tenuous,” (Allied Signal at p. 54) about the employer-employee nexus in the in- stant matter. Because of the Union’s action herein, Burns’ ability to obtain overtime work was drastically reduced. While the Union would argue that it was caused by his greed which ELECTRICAL WORKERS LOCAL 2321 (VERIZON) 263 resulted in him obtaining 37 hours overtime during the week- end in question to the detriment of his fellow union members, it could also be referred to as his Section 7 right to refuse to par- ticipate in the Union’s protected concerted activities. On the basis of the above, I find that the Union’s right to the solidarity and the loyalty of its members does not outweigh Burns’ rights herein, and that by not charging its members for refusing volun- tary overtime on November 25, 26, and 27, while charging Burns for the hours that he worked on those days, the Union violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. The Employer has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union has been a labor organization within the mean- ing of Section 2(5) of the Act. 3. By charging Burns for the overtime hours that he worked on November 25, 26, and 27, 2005, while not charging other union members for the overtime hours that they refused to work during those days, the Union has been restraining and coercing employees in the exercise of their Section 7 rights, in violation of Section 8(b)(1)(A) of the Act. THE REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I recommend that it be ordered to cease and desist from engaging in these activities, and that it be ordered to take certain affirmative action designed to effectuate the poli- cies of the Act. In that regard, it is recommended that the Re- spondent rescind the overtime rule it relied upon in the instant matter that employees of the Employer at the facility who col- lectively pull their overtime availability, will not be charged for refusing voluntary overtime work during that period. I also recommend that the Respondent be ordered to reimburse Burns for the loss that he suffered as a result of its action in not charg- ing the Employer’s employees for their refusal to work volun- tary overtime for the period November 25 through 27, 2005, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]