Operating Engineers Local 501 (Mgm Grand)

OPERATING ENGINEERS LOCAL 501 _(MGM, GRAND) . International Union of Operating Engineers Local 501, AFL-CIO (MGM Grand Hotel) and Nevada Resort Association . Case 31-CB-5606 21 June, 1985 - DECISION AND ORDER BY CHAIRMAN DOTSON AND.MEMBERS HUNTER AND DENNIS On 12 March .1985 Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed her. brief to the judge in opposition to the Respondent's exceptions. The Board has considered • the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and, to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative 'law judge and.orders that the Respondent, International Union of Operating Engineers Local 501, AFL- CIO, Las Vegas, Nevada, its officers, agents, and representatives, shall take the action set forth in the Order. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing with respect to this matter was held before me in Las Vegas, Nevada, on December 6, 1984. The initial charge was filed on May 9, 1984, by the Nevada Resort Association. A first amended charge was filed on June 6, 1984. Thereafter, on June 29, 1984, the Regional Director for Region 31' of the National Labor Relations Board (the Board) issued a complaint and notice of hearing al- leging a violation by International Union of Operating Engineers Local 501, AFL-CIO (Respondent) of Section 8(b)(1)(B) of the National. Labor Relations Act (the Act). 1, The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to introduce relevant' evidence. Since the close of the hearing, briefs have been received from the General Counsel and counsel for Respondent. On the entire record, and based on my observation of the witnesses and consideration of the briefs submitted, I make the following • - i The instant case was originally consolidated with a related case (Case 31-CB-5607) involving a different employer At the hearing herein the parties entered into a settlement of Case 31-CB-5607, which, matter was severed from the instant proceeding FINDINGS OF FACT,., I. JURISDICTION 735 . MGM Grand Hotel, Inc. is now,'and'has been at all times 'material herein, 'a -corporation` duly organized under and existing by' virtue of the laws-'of the'State of Nevada, with 'an office and place of business located in Las Vegas, Nevada, where it is engaged in the operation of a hotel and casino. : " . ` - - In the course and conduct of its 'business operations, the MGM Grand Hotel annually purchases. acid receives goods or services valued in `excess'of $5,000 directly from suppliers. located outside the State bf Nevada; and annually derives gross revenue's iri'excess of $500,000. -It is admitted, and 'I "find, that MGM' Grand Hotel, Inc. is an employer engaged in commerce within the meaning of Section 2(2), ,(6),' and '(7)'of the 'Act. II. THE LABOR ORGANIZATION INVOLVED It is --admitted, that the. Respondent Union is and has been ; at all times material., herein, --a labor.-organization within, the meaning of Section 2(5) of_the Act-, III. THE ALLEGED UNFAIR LABOR PRACTICES.., ' 'A:The Issues aL) The principal' issue raised- by the. pleadings -is whether the-.Respotident''unlawfully- expelledi,certain- individuals from= membership and -unlawfully levied a court collect- ible fine against one 'individual for,-performing ; superviso- ry- duties during the course of picketing activity against their employer. - B. The Facts The material facts are not in dispute. - The Respondent represents the approximately 42 oper- ating engineers employed by the MGM Grand Hotel who are responsible for the maintenance and operation of all equipment in the facility, including air-condition- ing, heating, boiler room, electrical; and plumbing and refrigeration equipment. John Fairclough has been the chief 'engineer of the en- gineering department since February 1981. There are two assistant chief engineers , Bill Hunter and John Bu- choltz. Respondent has admitted that Fairclough, Hunter, and Bucholtz are supervisors within the meaning of Section 2(11) of the Act and- are representatives of the MGM Grand Hotel- for purposes, among others, of col- lective bargaining, including the adjustment of griev- ances' within the meaning of Section 8(b)(1)(B) of the Act. The collective-bargaining agreement between the par- ties expired on April 1, 1983. Commencing about May 15, 1983, and continuing until about June 1 , 1983, the MGM Grand Hotel locked out the engineers in the unit in connection with the ongoing failure of the parties to reach a new agreement , and Respondent established and maintained a -picket line at the premises . During this period of time in question the aforementioned chief engi- neer, Fairclough, as well as the assistant chief engineers, 275 NLRB No. 108- 736 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD Hunter and Bucholtz, pursuant to instructions by man- agement, continued to perform their supervisory duties. Thereafter, following the filing of intraunion charges and subsequent trials, Respondent expelled Hunter and Bu- choltz from membership and imposed a court collectible fine of $1000 on Fairclough. The aforementioned individ- uals testified that, they, performed only their supervisory duties during the- lockout and performed no bargaining unit work. According - to article 1 of the expired contract, the chief and assistant chief- engineers are "employees" and are thereby included in the "bargaining unit." The con- tract defines bargaining unit as the "aggregate of.all em- ployees [as such-term is defined above] employed by the Employer." An "employee," according to the contract, is defined as a person who "performs work covered by the classifications set forth' in Article 16." The duties of the chief engineer are succinctly set out in article 16, and the contract provides, at article 15, that when there are 10 or more operating engineers the employer shall desig- nate an assistant-chief engineer. Moreover, the contract provides for minimum wages for the chief and assistant chief engineers, but the employer is privileged to pay above the minimum. Article 16.02(b) of the expired contract is as follows: Senior Watch Engineer. Has charge of the shift, supervises all work and engineer employees on that particular. shift. He shall work with the tools of the trade. There shall be a Senior Watch Engineer on duty at all times when any equipment is in oper- ation. A Senior Watch Engineer is to be replaced on his days off. While the Senior Watch Engineer has responsibility for the effective performance of engineers assigned to his shift, he will not issue warning notices or termination - slips. The Senior Watch Engineers will be-expected to report unsatis- factory performance or conduct of engineers on his shift to the, Assistant Chief or Chief Engineer, who will review the merits of the case before imposing disciplinary measures. All warning notices, discipli- nary suspensions and termination - slips must be signed by the Assistant Chief Engineer, Chief Engi- neer or management official. Each of the three shifts has a senior watch. engineer who. is in charge: ,of.the shift. The senior, watch engi- neers, who. report to the, chief and; assistant chief engi- neers, hand out work orders and preventive maintenance orders to rank-and-file engineers, and insure that the as- signed work is performed properly. They carry and also work with the tools of the trade. On occasion, the assist- ant- chief engineers;' who- do not carry, or work with the tools of the trade, also assign particular written work orders to rank-and-file engineers. The.record shows that during the. lockout and picketing the MGM' Grand Hotel hired replacements for-the senior watch engineers, and that the duties of the chief and assistant chief engineers did not materially differ from their regular routine. C. Analysis and Conclusions Respondent contends that, since the chief engineer and assistant chief engineers are included within the bargain- ing unit, it follows that all the work they perform is bar- gaining unit work; and that by agreeing to include these supervisors within the bargaining unit the Employer has bargained away its right to insulate them from union dis- cipline. . Contrary to Respondent's contentions, I find the record devoid of evidence that the Employer, by its agreement to include the chief, engineer and, assistant chief engineers in the bargaining unit description, there- by agreed that the supervisory functions they perform, including the hiring and firing of employees, is bargain- ing unit work. Respondent proffered no evidence what- soever that this was -the intention of the parties to' the contract, and to imply this intent under the instant- cir- cumstances is clearly unwarranted. - •- It appears that the duties -of the chief, and assistant chief engineers overlap to a limited extent with - the duties of senior watch engineers whose duties, as defined by the contract, include the directing of all work and en- gineering employees on the shift. Thus, individuals within either of these 'classifications may assign work orders to employees and direct and inspect their work, 'the difference being that the senior watch engineers per- form this work on a regular routine'basis, while the chief and assistant chief _ engineers have occasion to exercise such -authorization on a more limited basis. During the course of the lockout and picketing, the Employer locked out the senior watch engineers, thus treating them as rank and file employees rather than supervisors. The work of senior watch engineers, who are consid- ered to have "charge-of the shift;" certainly seem ss to be more, than of. a typically leadman nature. There seems to be no clear line of. demarcation between the "superviso- ry" duties of 'the senior watch engineers and similar duties performed,,to a lesser extent, by the assistant chief engineers. Because of this amorphous middle ground, the Respondent maintains that these supervisory duties of the assistant chief engineers constitute unit work. Similarly, however, it may be argued that the "supervisory" duties of the senior watch engineers do not constitute bargain- ing_unit work. - The practice, of the parties appears to have established a rule of the shop regarding the definition of bargaining unit work. Thus, despite the fact that senior watch engi- neers appear to perform supervisory functions, the, Em- ployer considers them to be unit employees and locked them out along with the, rank-and-file engineers. And while the chief and assistant chief engineers also on occa- sion perform some of the supervisory duties performed by senior watch engineers,- these particular' functions are not considered'-by the Union to be'bargaining unit work. Thus; the record shows that at the intraunion trial of the individuals involved herein, they were simply, accused and found guilty of being in the Employer's facility during the period of lockout, and picketing. Each denied performing bargaining unit work and no contention was made by union representatives or witnesses that any type OPERATING ENGINEERS LOCAL 501 (MGM GRAND) of supervisory function they admittedly performed was bargaining unit work. From the foregoing I conclude that the parties have established in practice a clear line of demarcation regard- - ing bargaining unit work, namely, work performed with the tools of the trade. Senior watch engineers perform such work; the chief and assistant chief engineers do" not. The fact that the'contract provides that senior watch en-, gineers may possess certain. supervisory authority does not thereby make such duties- bargaining unit work. Simi- larly, the contract's language at article 16.02(a) describ- ing that-the chief engineer shall be in charge of the oper- ation and maintenance in the plant does not make such work unit work. • As specified in the General Counsel's comprehensive brief, the Board has consistently held that a union vio- lates Section 8(b)(1)(B) of the Act when it fines a super- visor-member for working behind a union's picket line, unless the work performed by the individual consists of more than a minimal amount of rank-and-file work. Oper- ating Engineers Local 501 (Peterson Mfg. Co.), 269 NLRB 685 (1984); Bricklayers Local 28 (Sal Masonry Contrac- tors), 265 NLRB 744 (1982); Typographical Union 101 (Washington Post), 242 NLRB 1079, 1080 (1979). The Board has also consistently held that the suspen- sion or expulsion of a supervisor from union membership constitutes restraint or coercion within the meaning of Section 8(b)(1)(B) of the Act. Operating Engineers Local 501 (Peterson Mfg. Co.), supra; Carpenters Local 14 (Robert L. Guyler Co.), 234 NLRB 186, 191 (1978). In the instant case, Respondent admitted that Fair- clough, Bucholtz, and Hunter were, and are, supervisors within the meaning of Section 2(11) of the Act. Further- more, Respondent has stipulated that during the lockout the chief engineer and assistant chief engineers per- formed the same duties they performed at other times, which, as the record discloses, were all supervisory in nature. Therefore, it is clear, and I find, that Respondent has unlawfully imposed a fine on Fairclough, and has un- lawfully expelled Bucholtz and Hunter from member- ship, as alleged in the complaint. CONCLUSIONS OF LAW 1. MGM Grand Hotel, Inc..is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. - 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has violated Section 8(b)(1)(B)_ of the Act, as alleged.. - 'THE'REMEDY - Having, found that Respondent violated and is violat- ing Section.8(b)(1)(B) of the Act, I recommend that it be required to cease and desist therefrom and from in any like or related manner interfering with, restraining, or coercing its members in the exercise of their rights under Section 7 of the Act. Moreover, Respondent shall be re- quired to rescind the fine and expulsion from member- ship imposed on the individuals herein, reimburse Fair- clough _ for any portion of the fine he may , have -paid, 737 with.interest,2 and also shall be required to post an ap- propriate notice. On these findings of fact and conclusions of law and - on the entire record, I issue the following recommend- ed3 ORDER The Respondent, International Union of Operating En- gineers Local 501, AFL-CIO, Las Vegas, Nevada, its of- ficers, agents, and representatives, shall 1. Cease and desist from (a) Preferring charges against, fining, expelling from membership, or otherwise disciplining John Fairclough, -Bill Hunter, and John Bucholtz or any other supervisors employed' by the MGM Grand Hotel, Inc for having crossed or worked behind the Union's picket line during - the dispute between the parties from May 15 to June 1, 1983. - (b) In any like or related manner restraining or coerc- ing MGM Grand-Hotel, Inc. in the selection of its repre- sentatives for the purposes of collective bargaining or ad- justing grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind and expunge all records of the charges, trials, fine, or expulsion from membership levied against John Fairclough, Bill Hunter, and John Bucholtz for crossing or working behind the Union's picket line. (b) Refund to John Fairclough any money that may have been paid to Respondent as a result of such fine, together with interest at the appropriate interest rate. (c) Reinstate Bill Hunter and John' Bucholtz as mem- bers of Respondent in good standing upon the tender of regular membership dues, including any amounts due for past periods. (d) Notify the aforementioned individuals and the MGM Grand Hotel, Inc. that' it has taken the aforesaid remedial action and that it will in the 'future comply' with the cease-and-desist provisions of this Order. (e) Post at Respondent's offices and meeting halls copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all' places 'where notices to members are customarily posted.°Reasonable steps shall be taken by the Respond- - 2 Interest shall be computed in the manner pioiided in Florida Steel Corp., 231 NLRB 651 (1977) See also generally Isis Plumbing Co,'138 NLRB 716 (1962) 8 If no exceptions are filed as, provided by Sec 102 46 of the .Board's Rules and Regulations, the findings, conclusions, and recommended Order shall;'as provided in Sec 102 48 of the Rules, be adopted by the Board and all 'objections to them shall be deemed' waived for all pur- poses - ., ., * 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 Judgment of the United States Court of Appeals, Enforcing an Order of the Nation- al Labor Relations Board " 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent to ensure that the notices are not altered;' defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of, this. Order what steps- the Re- spondent has taken to comply. APPENDIX - NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States, Government The, National Labo Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. ' 1 ,i:} r. 1 )!- , . _L )?= _.:t'" 4.f, `.t_ •S i ?v!7: {•a.. i.= WE WILL NOT charge, fine, expel from membership, or otherwise discipline Chief Engineer , John Fairclough, Assistant Chief Engineers Bill: Hunter and John Bucholtz for performing supervisory duties behind our picket line. WE WILL NOT-in any like or related manner restrain or coerce the • MGM Grand Hotel, Inc. in its selection of representatives- for the purpose of-,collective bargaining or the adjustment of grievances. _ WE WILL rescind the fine levied against John Fair- . Clough and remove all- records from, our files of the charges, fine, or trial against the aforementioned individ- uals 'and will reinstate them to membership in good standing, with all the rights and privileges thereof, upon, their tender of regular membership dues and fees. -INTERNATIONAL UNION OF - OPERATING ENGINEERS LOCAL 501, AFL-CIO ,: ;%1