248 N.L.R.B. 1335 (N.L.R.B. 1980)

Operator Engineers, Local 12

National Labor Relations Board - Board DecisionsApr 22, 1980

248 N.L.R.B. 1335 (N.L.R.B. 1980)

OPERATING ENGINEERS, LOCAL 12 1335 International Union of Operating Engineers, Local Union No. 12; Operating Engineers Health and Welfare Trust; Operating Engineers Pension Trust; Operating Engineers Vacation-Holiday Savings Trust; Operating Engineers Apprentice Training Trust; Southern California Operating Engineers Benefits Administration, Inc.; and Leo A. Majich and Maas & Feduska, Inc. Case 21-CB-5409 April 22, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On March 8, 1978, the National Labor Relations Board issued a Decision and Order' in this pro- ceeding. The Board found that the General Coun- sel had failed to establish that Respondents violated Section 8(b)(3) of the Act and dismissed the com- plaint in its entirety. Thereafter, on August 1, 1979, the United States Court of Appeals for the Ninth Circuit issued a de- cision2 in which it granted the Charging Party's petition for review and remanded the case to the Board to fashion an appropriate remedy for the 8(b)(3) violation found by the court. As more fully explicated in its decision, the court found that the evidence failed to establish that the Charging Party's minimum contribution to the trust funds for Maas and Feduska caused sufficient damage to the funds to bring the Charging Party's conduct within the area of mandatory bargaining. Thus, the court concluded that Respondents' action to obtain the payments violated Section 8(b)(3) of the Act. The Board, having accepted the remand, respect- fully recognizes the court's opinion as binding for the purpose of deciding this case. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record as a whole, including the decision of the United States Court of Appeals for the Ninth Circuit to remand the proceedings. As indicated above, the remand to the Board is for the limited purpose of considering what relief is appropriate. We adopt as our remedy and Order the recommended remedy and Order of the Ad- ministrative Law Judge in this proceeding, dated September 21, 1976. 3 234 NLRB 1256. 2 102 LRRM 2185, 87 LC 11,615. a Member Truesdale, who did not participate in the Board's underlying Decision and Order, neither adopts nor rejects the Board's holding there- 248 NLRB No. 175 THE REMEDY It having been found that Respondents failed to bargain in good faith by threatening to engage in a strike and shut down all Maas & Feduska, Inc., construction jobs in order to force that Employer to make payments to the various Respondent trust funds on behalf of nonunit executives and supervi- sors 0. R. Maas and J. N. Feduska, it will be or- dered that Respondents cease and desist from such conduct and, in order to effectively remedy the unfair labor practices found to have been commit- ted, to reimburse Maas & Feduska, Inc., for all moneys paid to Respondent Trusts on or about August 25, 1975, on behalf of O. R. Maas and J. N. Feduska, with interest to be computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondents, International Union of Operating Engineers, Local Union No. 12; and its agents Operating Engineers Health and Welfare Trust; Operating Engineers Pension Trust; Operating Engineers Vacation-Holi- day Savings Trusts; Operating Engineers Appren- tice Training Trust; Southern California Operating Engineers Benefits Administration, Inc.; and Leo A. Majich, their officers, agents, and representa- tives, shall: 1. Cease and desist from refusing to bargain with Maas & Feduska, Inc., by threatening to strike and shut down all Maas & Feduska, Inc., construction projects in order to force said Employer to make payments to Respondent Trusts on behalf of non- unit executives and supervisors. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify Maas & Feduska, Inc., in writing, that they will not threaten to strike and/or shut down all construction projects in order to force said Em- ployer to make payments to the various Respon- dent Trusts on behalf of nonunit executives or su- pervisors. (b) Reimburse Maas & Feduska, Inc., for all moneys paid to Respondent Trusts on or about August 25, 1975, on behalf of nonunit executives and supervisors O. R. Maas and J. N. Feduska, in the manner set forth above in the section entitled "The Remedy." in. Rather he concurs with his colleagues that at this time the ourt's opinion remanding the case to the Board is the law of the case and that. therefore, the remedy for the 8(b)(3) violation is appropriate. 1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at their respective offices and usual membership meeting places copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by authorized representatives, shall be posted by them immediate- ly upon receipt thereof and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Direction for Region 21, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 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 Pursl- ant to a Judgment of the United States Court of appeals enforcing an order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Re- lations Act, and has ordered us to post this notice. WE WILL NOT refuse to bargain with Maas & Feduska, Inc., by threatening to strike and shut down all of Maas & Feduska, Inc., con- struction projects in order to force said Em- ployer to make payments to any of the Operat- ing Engineers Trust Funds on behalf of non- unit executives and supervisors. WE WILL reimburse Maas & Feduska, Inc., for all moneys paid into said funds as a result of our unlawful conduct, with interest. INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, LOCAL UNION No. 12 OPERATING ENGINEERS HEALTH AND WELFARE TRUST; OPERATING ENGI- NEERS PENSION TRUST; OPERATING ENGINEERS VACATION-HOLIDAY SAVINGS TRUST; OPERATING ENGI- NEERS APPRENTICE TRAINING TRUST; SOUTHERN CALIFORNIA OP- ERATING ENGINEERS BENEFITS AD- MINISTRATION, INC.