Operating Engineers Local 501 (Mgm Grand)

National Labor Relations Board - Board Decisions

Jun 21, 1985

275 N.L.R.B. 735 (N.L.R.B. 1985)

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