Stationary Engineers, Local 39

National Labor Relations Board - Board Decisions

Mar 2, 1979

240 N.L.R.B. 1122 (N.L.R.B. 1979)

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stationary Engineers, Local 39, International Union
of Operating Engineers, AFL-CIO (The San Jose
Hospital and Health Center, Inc.) and Robert Da-
vis. Case 32 CB-103 (formerly 20 CB 4376)
March 2. 1979
DECISION AND ORDER
On May 26, 1978, Administrative Law Judge Da-
vid G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the Charging Party filed a
brief in opposition to Respondent's exceptions, and
the General Counsel filed a brief in support of the
Decision of the Administrative Law Judge.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs.
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
The relevant and essentially undisputed facts are
as follows: In August 1976 Respondent Union en-
tered into negotiations for a new contract with The
Association of Hospitals of Santa Clara C('ount. a
multiemployer group of health care institutions, here-
inafter referred to as the association. The San Jose
Hospital and Health ('enter. Inc., hereinafter re-
ferred to as the Employer, at all times material herein
has been a member of the Association. From late
October 1976 to about the middle of January 1977,
engineers of the members of the association engaged
in an economic strike. During the strike the im-
ployer, as did other members of the association
hired various individuals to do the work ordinarily
performed by the striking engineers.
During the course of the strike Respondent and
the association continued negotiations on a new con-
tract. At a bargaining session on January 12, 1977.
Respondent's representative presented a proposed
amnesty agreement covering its members for the
strike period to the association's negotiator and
asked if the association would be willing to enter into
such an agreement. The association's negotiator, af-
ter reading Respondent's document, replied that the
proposal for amnesty looked like a "one-way street"
to him and demanded that amnesty run as a two-
way" street. Later that day the association's negotia-
tor submitted a counterproposal on the amnesty lan-
guage.
On March 7 1978. after more than 20 bargaining
sessions and assistance from the Federal Mediation
and Conciliation Service, Respondent and the associ-
ation entered into a collective-bargaining agreement.
effective from January 20, 1977, through October 14,
240 NLRB No. 131
1979. Attached to and included within the compre-
hensive collective-bargaining agreement is a letter
agreement with respect to amnesty, the pertinent part
of which reads:
The International Union of Operating Engi-
neers, Stationary Local No. 39. AFL-CIO, and
The Association of Hospitals of Santa Clara
(ounty mutually agree not to institute any
Board or court action of any kind or nature
against each other in connection with any activi-
ties of either side during the strike period com-
mencing October 28, 1976 to and including Jan-
uary 19, 1977. The foregoing shall not preclude
anyl union member or any individual Hospital or
Hospital employees from instituting Board or le-
gal proceedings against each other.
The UnIion, the UInion members, The Associa-
tion of Hospitals, individual Hospital members
of he Association and Hospital employees
shall not interfere with. threaten, harass or ques-
tion any employee with regard to activities re-
lated to the strike, including but not limited to
working at the Hospitals during the strike, pick-
eting, leafleting, boycotting. demonstrating or
any other activities connected with said strike.
The language of the amnesty agreement is virtually
unchanged from that proposed by the association's
negotiator at the January 12 bargaining session.
Ihe record additionally discloses that Charging
Party Robert Davis had been a member of Respon-
dent since April 1976. On March 6, 1977, the day
before the amnesty agreement, included in the collec-
tive-bargaining agreement, was signed, Davis com-
menced work at the Employer's facility as a mainte-
nance operating engineer. Shortly thereafter,
Respondent's business representative, along with sev-
eral others, questioned Davis about his activities dur-
ing the strike. Davis subsequently received a letter,
dated March 22, from Respondent's business manag-
er requesting his appearance before the executive
board at its March 26 meeting. for the stated purpose
of inquiring into his conduct during the strike. Davis,
by telegram dated March 25, advised Respondent
that he would not appear at the March 26 meeting of
the executive board based on his understanding that
the aimnesty agreement precluded questioning of any
employee regarding activities related to the strike.
Thereafter, by letter dated March 29, Respondent's
president "cited" Davis to appear before the execu-
tive board at its April meeting and advised him that
at that time he would "be required to explain his]
actions during the recent hospital strike in Santa
STATIONARY ENGINEERS, LOCAI. 39 1123
Clara County." Davis appeared at the April meeting
of the executive board, but when questioned con-
cerning his conduct during the strike he refused to
answer on previous advice of counsel. A motion was
made and carried that Davis be tried by Respondent.
Subsequently, at a regular business meeting held in
May 1977, Davis was tried, fined, and expelled from
membership. Davis appealed the disciplinary action.
which as of the time of the instant proceeding was
pending before the International Union.'
The Administrative Law Judge found that by vir-
tue of the amnesty agreement. Respondent clearl
and unequivocally waived its right to discipline, or
even question. any employee with regard to an,
strike-related activity. In so finding, he rejected Re-
spondent's contention that the amnesty agreement
should not apply to Davis as Respondent did not
know Davis was an employee when it signed the
agreement. We agree with these findings. The Ad-
ministrative Law Judge concluded, relying primarily
on his finding that the disciplinary action imposed
against Davis was in contravention of the parties' ne-
gotiated agreement. that Respondent violated Sec-
tion 8(b)(1)(A) of the National Labor Relations Act.
as amended. While we agree with the conclusion of
the Administrative Law Judge, we find it necessary
to set forth our reasons therefor.
Section 8(b)(1)(A) of the Act makes it an unfair
labor practice for a union to "restrain or coerce . . .
employees in the exercise of the rights guaranteed in
Section 7." The proviso to Section 8(b)( 1)(A) pro-
vides that that section "shall not impair the right of a
labor organization to prescribe its own rules with re-
spect to the acquisition or retention of membership
therein." In Scofield et a, v. . .R.B.. 2 the Supreme
Court considered the scope of the proviso to Section
8(b)( )(A) and the extent to which the proviso af-
fords immunity to a union in the enforcement of its
rules. As an initial matter the Court. citing. inter (iall,
its opinion in N. L. R. B. v. .41lis-Chahlmers .lantufaltur-
ing Co. et al.,3 referred to the distinction between in-
ternal and external enforcement of union rules the
former type of enforcement being within the proviso
and the latter being beyond the proviso. The C(ourt
further stated that:
I he s)ciallion filed .i grieanre. pur.liT 1to the colltract. clnernllln
Respondenl's alleged oIolati.n of the amnest .igreenlenl A l olf the tlle of
the hearing herein. the a liation' . rieianice had 1no1 beetn p ro.e.led tI
arbltratlon
Member PenelIlo w.uld not defer thl cae to I he e nlrl iu. l l grile'.alce
and arbitration proced ure siolel, bhca,il the intereist of the .soci.ll.
which filed the grievance. and he interests of the Ind* Idual ( h;rgingE I'1it\
who has never been a part Ito the gries;nce proceeding. allhough erl.ap
ping, are not hoimogeneous I hu. the epo emp e' po,\m on ould he puil ied
onl where it Incidentall oerlaps with the .Ixoi.oiatlionll littresl hut ot at
all where the\. might differ
394 S. 423 1969)
388 S 175. 19s (19t71
§ 8(b)( 1) leaves a union free to enforce a proper-
ly adopted rule which reflects a legitimate union
interest, impairs no policy Congress has imbed-
ded in the labor laws, and is reasonably en-
forced against union members who are free to
leave the union and escape the rule.4
In applying this test to the facts in Scofield, the Court
focused its inquiry on the legitimacy of the union
interest sought to be encouraged by the rule and the
extent to which the rule contravened any policy of
the Act. In concluding that the union's rule, and its
enforcement against its members, was not violative
of Section 8(b)(1)(A). the Supreme Court emphasized
that the union's rule "left the collective bargaining
process unimpaired" and "breached no collective
contract. s
Thus, the principle that a union may impose inter-
nal discipline on its members without running afoul
of Section 8(b)( 1)(A) is not without exception. In ap-
plying this section of the Act, the Board and the
courts, both prior to and after Scofield, have recog-
nized that the proviso of Section 8(b)(l)(A) affords
no immunity to a union when it imposes disciplinary
action, even though enforced internally, that "in-
vades or frustrates an overriding policy of the labor
laws." In this regard, the internal enforcement of a
union rule has been found to violate Section
8(b)( I )(A) where discipline is imposed against union
members for filing or encouraging others to file
charges with the Board.6 or for refusing to cross an
unlawful picket line,7 or for the purpose of coercing
members to participate in conduct violative of the
Act.' In addition, the use of discipline or threat of
discipline to compel union members into acting in
contravention of a collectively bargained-for agree-
ment has been recognized as falling beyond the
scope of permissible internal union discipline under
the proviso to Section 8(b)( )(A).9
194 t S a 430
Id i 436
' I R. B Ilndwrtial ,niain of Marine & Shiphuilding orLrA io 4 ler
,a. -411. (10, t al / ntied Sltaic Line ( , /391 1. S 418 (1968,. Local
/ , Inticrnimnl t nin of ()Oprrtting Enijneer (hrl .5 .5 Aurtl) 148
N RB 79 ( 19641: Philadelphia Alioiing Picture a, hine m Op(.rtir-' nion.
l,/ \- A , i1-4 1. 4IE (cwho lacohuctii. 159 NRI.B 1614 (19661
Rili / ( hrA I nii . l 1/ I I '9. Reial ( rA Intern titonll 4 ,o ilation,
4 fl ( lI I-t pha Hviz -1( It, l tarAel. 2 11 N RB 4 1974). efd 52 I 2d
142 9th ( r 197,.
S lnl riato,,n/ll 4halle ! Iheiarul aSiie Einplm ee RAKO (Genral. Inm
I )OR I I I)itilmi. 223 N RB 959 (1976): (nlmuniatrion H$orner of
4inrin i. 1,, i.l 122 ( ii, } orA Telephone (Cmpaunl ). 226 NLRB 97 ( 1976).
i See Irn A l)rtir. ('haiuflliurs and elpers lanai I ni"n) NI MOtM , in affili-
it' ,q Ih, lon - ll B l reithilrod of Teancuters. hitfeurs 14 arehouintlen
and 1.l//rer, . 4ernilla M,tainc W tlerniat.i (Compan,. 214 NLRB 1094
(19741. .IIid ( ...l tilniallnl, [lfrker of 4nierita, A.FI (10, Losl 1170
IR, hli,- l ihih,,ll ( r/,irrlonL 194 N RB 872 (1972). where the Boa;rd
found slol;lltn ,n if Sec 8{b)( l) and (1)(A) for the unilaterl prmniulgation if
a rule bh the union in contraseniln of the collectle-h.rg.ling .Igreelilenll
and for the illpoitioi oIf discipline pursuant it Ihe ntio11 rule See also
( 'onttrnle,
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these latter cases, the Board has repeatedly em-
phasized that it is the express and fundamental poli-
cy of the Act to encourage the practice and proce-
dure of collective bargaining as an important means
for achieving industrial peace and stability. See also,
Section I of the Act. And, furtherance of this policy
necessarily includes the encouraging of adherence to
the provisions of collective-bargaining agreements.
Thus, as the Board stated in National Grinding
Wheel, to permit a union, in derogation of its con-
tract, to impose discipline against its members with
impunity would be to "provide incentive to [a] union
. . . to violate contracts," a result that runs counter
to a basic policy of the Act. °
In the instant case, Respondent's conduct with re-
spect to Davis was clearly in derogation of the am-
nesty agreement, which was the product of the par-
ties' negotiations. The discipline imposed against
Davis therefore was in contravention of the basic
policy of the Act of encouraging the practice and
procedure of collective bargaining. Furthermore, Re-
spondent's actions in derogation of a strike amnesty
agreement run counter to the overriding national
policy of favoring the peaceful resolution of labor
disputes. Thus, notwithstanding Respondent's asser-
tion here that its conduct served its legitimate interest
in maintaining union solidarity during a lawful
strike, such interest must give way to national policy.
Accordingly, we find that Respondent's disregard for
and violation of its collectively bargained-for amnes-
ty agreement impairs congressional policy embedded
in the labor laws and that, under the principles of
Scofield, its disciplining of Davis is not protected by
the proviso to Section 8(b)(1)(A). We therefore con-
clude that Respondent has violated Section
8(b)(1)(A) as alleged."
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 modified
herein, and hereby orders that Respondent, Station-
I.,(. II 1 2419 I ti'rlnarIIonal / Ln i, o/ I) l Iri, t 50, I rted ine f' rers n,
.ilnwri ( Vari,lnal/ Grinding 7l?/ ('onlnrin. Inc . 176 NI.RB 628 (I 969).
and (i/ricr Lmoil Union o 1162. afffliared l/ I the Brotherhoodl if Paint-
er., l)c r,r.Irrn Plprhangers. (lazirrsv and G(it orkc'rs ! .4 ru lril, 4 FI.
(/0 (ili r, l (ih. Inm . 177 NLRB 393 (1969). in which although ino viola-
lions of Sec. 8(h)(3) were alleged. the Board found violations f Sec
(hb)( 1 )() in the disciplining of members in contrasention f no-strike cla-
Mslseh in collective-bahrgaining agreements.
"' 176 NlRB at 632
i n view of our decision herein, we find it unnecessary to pass upon the
(iener.l ('ounsel's contention made in his brief to the Board that Respon-
dent's disciplining of [)avis viilates Sec. 8(b)(I )(A) as a breach of the duty
of fair representa;tion
ary Engineers, Local 39, International Union of Op-
erating Engineers, AFL-CIO, San Francisco, Cali-
fornia, its officers, agents, and representatives, shall
take the action set forth in said recommended Order.
as modified below:
I. Substitute the following for paragraph (a):
(a) Fining Robert Davis $500 and expelling him
from membership in contravention of the amnesty
agreement contained in our collective-bargaining
agreement with The Association of Hospitals of San-
ta Clara County."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
Noill('t To MI:I1BLRS
Pos'l t) BY ORDI)R OF 1I i
NAIIONAIL LABOR REAIIONS BOARD
An Agency of the United States Government
WI: Wll . NOI fine Robert Davis and expel him
from membership in contravention of the am-
nesty agreement contained in our collective-bar-
gaining agreement with The Association of Hos-
pitals of Santa Clara County.
W It vm.1 NotI in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed in Section 7 of the Act.
Wi. wll expunge all record of action taken
heretofore which resulted in imposition of a
$500 fine against Robert Davis and his expul-
sion from membership.
Wi: wii . notify Robert Davis and The Inter-
national Union of Operating Engineers, AFL
CIO, in writing, that we have voided the $500
fine of May 1977 and restored Robert Davis to
full membership without prejudice to any privi-
leges that would have obtained from uninter-
rupted status.
SIAIIONARY EN(INt IRS,
IN I RNA I IONAI. UNION
EN(;INI ERS, AFL -CIO
LO(,1. 39,
OF: OPIERAING
DECISION
STAI EMENI O- IE CASE
DAVID G HEILBRUN. Administrative Law Judge: This
case was heard at San Jose, California, on March 14, 1978,
based on a complaint alleging that Stationary Engineers.
Local 39. International Union of Operating Engineers,
AFL CIO, herein called Respondent, violated Section
8(b)( I )(A) of the National Labor Relations Act, as
STATIONARY ENGINEERS. LOCAL 39 1125
amended, by fining Robert Davis and expelling him from
membership.
Upon the entire record, my observation of witnesses.
and consideration of post-hearing briefs, I make the fol-
lowing:
FINDINGS OF FA(tI AND RsuLrTANT CONct usION OF LAW
Respondent maintains a collective-bargaining relation-
ship with The Association of Hospitals of Santa Clara
County, one member of which is the San Jose Hospital and
Health Center, Inc., called the Employer.' Engineers em-
ployed by member hospitals engaged in economic strike
action from October 28, 1976, until January 20, 1977. Dur-
ing this span of time Respondent's business representative.
William Bemis, heard rumors that various individuals were
working at hospitals in functions covered by Respondent's
traditional recognition. He acquired no specific informa-
tion on the point and expressly denied ever knowing that
Robert Davis was so employed.
Davis testified that following preliminary contact with
functionaries of the Employer. he started work as a mainte-
nance operating engineer on Sunday, March 6, 1977. On
the basis of "grapevine" information filtered to Respon-
dent's shop steward, Jay Gifford, Davis received the fol-
lowing communication dated March 22, 1977, from Busi-
ness Manager-Secretary Art Viat.
You are requested to appear at the next Executive
Board Meeting on March 26. 1977, at the Union head-
quarters 337 Valencia Street, San Francisco. Califor-
nia. The reason for the appearance is to inquire into
your conduct during the San Jose Hospital strike.
The Meeting begins at 12:00 Noon, if for any rea-
son you cannot appear. it is imperative that you con-
tact me immediately.
An exchange of correspondence followed, the upshot of
which was Davis' being tried before a regular district meet-
ing in May 1977, at which he was fined $500 and expelled
from membership. Davis' membership in Respondent had
commenced April 1976. He appealed this action in pro-
ceedings that are still pending.
Following strike cessation, the bargaining parties final-
ized new contract terms and various side letters in a com-
prehensive agreement entered into Marvh 7. 1977. Includ-
ed was an "amnesty" agreement which read:
The International Union of Operating Engineers,
Stationary Local No. 39. AFL CIO, and The Associa-
tion of Hospitals of Santa Clara County mutually
agree not to institute any Board or court action of any
kind or nature against each other in connection with
any activities of either side during the strike period
commencing October 28, 1976 to and including Janu-
ary 19, 1977. The foregoing shall not preclude any
tI he mployer operates a hospital anid heallh care facllhw In San .Iose
California. annually receiving gross revenues in excess of S250,0.( of which
in excess of $10.000 was receied from the Medicare Program of the I S
Government. I find that the Emploer s engaged In commerce iihiln the
meaning of Sec 2(6) and 71 of the Aci. and that Respondent is 1 Ilhor
orgainl/ation uithin the eilrling f Sec. 2(5)
union member or any individual Hospital or Hospital
employees from instituting Board or legal proceedings
against each other.
The Union, the Union members, The Association of
Hospitals. individual Hospital members of The Asso-
ciation and Hospital employees shall not interfere
with, threaten, harass or question any employee with
regard to activities related to the strike, including but
not limited to working at the Hospitals during the
strike, picketing, leafleting. boycotting, demonstrating
or any other activities connected with said strike.
This language had evolved from a mediated bargaining ses-
sion on January 12, 1977. at which Respondent proposed
amnesty language for its members relative to the strike pe-
riod. The Employer's negotiator countered with a demand
that amnesty run as "a two-way street," and himself re-
drafted the original proposal into phraseology now appear-
ing.
The issue is thus cast as whether the amnesty clause
constitutes a full and unequivocal waiver of power Respon-
dent would otherwise have under governing case law to
discipline its members for working during progress of a
strike.2 I first deal with whether the amnesty language was
"clear and unequivocal" as that phrase has been applied in
numerous cases. Considering the passage of time between
origin of the subject and formal execution of a contract
document nearly 8 weeks later, I hold that it is. The lan-
guage is quite specific, precise, and readable, saying with
reasonable clarity that slates were wiped clean other than
between union members, individual hospitals, or hospital
employees in any combination thereof. Given the context
of this subject, the word "question" appearing in the sec-
ond paragraph of the amnesty agreement must be broader
than any literal interrogative meaning. and must embrace a
prohibition against even perpetrating any concern for
strike-related activities. Stated otherwise, the language re-
stricts Respondent not merely from questioning a person.
but in the larger sense questioning that person's activities if
the activities so focused upon related to the hospital strike.
A subsidiary point dealing with application of the amnesty
language is whether Respondent should have known that
Davis was an employee at the time of entering into this
agreement. It has disclaimed such knowledge. but I see no
significance to the distinction as plainly' the agreement
must be read to apply for any person employed at the time
it was signed. This holding vitiates Respondent's conten-
tion, as argued in its brief, that the record is left "without
proof of Mr. Davis' status." Contrarily, it is readily seen he
was an employee before March 7. The fact even appears in
Respondent's Exhibit I, although typically this labor-man-
agement communication item was received well after com-
mencement of the employment relationship.
The more fundamental and perplexing question is
Re.spondent as precluded from educing testimony about whether in
faTcl )a.x i worked for the Fmploer in an occupation covered under contin.
in hrasic recognition f he collective-bargaining relationship during the
appi.o'inat.e -month strike perrod The record does establish that, during
internal trial proceedings of Dav i, he faced "evidence" produced b Vial
relalixc to the "charges that were levied" against him as they pertained to a
foriall demanded requirement that Davls explain his actions during the
icni h .pil strie "
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether this language ma serve to waive a labor
organization's ordinary statutory entitlement to prescribe
its own rules for acquisition or retention of membership as
declared in the proviso to Section 8(b)I)(A).
3 Consistent
with my ruling that precluded testimony respecting Davis'
actual activities during the strike I believe the issue has
been joined by three factors present in the record. These
are amnesty language clearly addressed to activities gener-
ally related to the identified strike, internal charges pressed
against Davis which alluded to this type of conduct, and
his testimony that evidence on the subject was presented
against him during internal trial proceedings. It follows
that the matter left directly for decision is whether or not
this amnesty agreement serves to reverse ordinary authori-
ty possessed by a labor organization in such instance. See
N.L.R.B. v. Allis-Chalmer Manufacturing Co., 388 U.S. 175
(1967): Scofield v. N.L.R.B., 394 U.S. 423 (1969) Booster
Lodge No. 405, International Association of Machini.vrs and
Aerospace Workers lBoeing 'Co. . / VN.I.R.B.. 412 U.S. 84
(1973).
Analogy may first be made to Section 8(d). where man-
datory subjects for bargaining can be waived when done in
clear and unequivocal manner. This analogy suggests a di-
rection, but does not dispose of the issue here, for Section
8(d) is a general declaration of bargaining subjects which.
in the course of labor-management negotiations, the par-
ties themselves are uniquely equipped to modify. This dif-
fers from the proviso to Section 8(b)(1)(A) in which a
strongly worded exception, well supported in legislative
history, was erected to retain common institutional con-
trols within labor organizations. Cases are rapidly forging
new dimensions on the subject of internal union discipline.
See Local Lodge No. 1994, IAM (0. K. Tool (olpanlv.,
Inc.), 215 NLRB 615 (1974). More importantly, the Su-
preme Court has in N. L. R. B. v. Granite State Joint Board.
Teile Workers of America, 409 U.S. 213 (1972). recently
emphasized that "events" must he under constant reap-
praisal by an individual during the course of his or her
employment. Should a labor organization partially renege
on a plain concession toward amnesty, this has the effect of
restraining and coercing employees in terms of whether or
not, and when, to consider ever resigning their noncore
membership in a labor organization for reasons good and
sufficient to themselves. Additionally, such overreaching is
destructive of the very collective-bargaining process the
Act serves to preserve. Amnesty is a well-settled term of art
in the field of labor law, one ordinarily arising when em-
ployers agree to forget all past unpleasantness, or worse., in
the interests of settling labor disputes that would otherwise
burden and obstruct interstate commerce. There is no rea-
son not to hold labor organizations to the same standard of
fulfilling what they voluntarily concede.
4
Accordingly, I render a conclusion of law that Respon-
Respondent correetlx llotes that i n 'i lmilentlll/ tl,tl,. ln l'id Anti,-
bile. A 'riletet In fl,4trilriiltrvl/ nqih'wni tee l e, e[ A It, atnd i 1,, ,4 -
(Generat( l ti E ierii ( tianrl 197 NLRB 608 () 1972). Ilhe BHoald t11ll1 It i1-
necessar: to, reach a cnomlparable issue.
)eferral under (iler Imlwl resr d H it, 192 Nl RB 837 1971 Is claell
inappropriate. because I)aiis is nilt pallt? to a pending giles;antce
iiiielcd
hb the tEmplo er. nor is this issue of statutli,r colstrucltllln
stilltble for the
arbilr.al process
dent, by fining and expelling Robert Davis in May 1977,
has engaged in unfair labor practices within the meaning of
Section 8(b)(l)(A) and Section 2(6) and (7) of the Act.
l)isposition
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The Respondent, Stationary Engineers. Local 39. Inter-
national Union of Operating Engineers. AFL CIO, San
Francisco, California, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Deeming Robert Davis fined $500 and expelled from
membership.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Expunge all record of action taken heretofore which
resulted in imposition of a $500 fine against Robert Davis
and his expulsion from membership.
(b) Notify Robert Davis and the International Union of
Operating Engineers, AFL-CIO, in writing, with a copy
furnished the Regional Director for Region 32, that it voids
the $500 fine of May 1977 and restores Robert Davis to full
membership without prejudice to any privileges that would
have obtained from uninterrupted status.
(c) Post the attached notice marked "Appendix" at its
San Francisco business office and all meeting halls wherev-
er located. Copies of said notice, on forms provided by the
Regional Director for Region 32, after being duly signed
by Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places. including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that notices are not altered, defaced, or
covered by any other material.
(d) Furnish the Regional Director signed copies of such
notice for posting by the San Jose Hospital and Health
Center, Inc., if it is willing, at places where it customarily
posts notices to employees.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order. what steps Respondent
has taken to comply herewith.
In tlle elenl no exceptions are filed s po vded h Sec. 102 46 oIf the
Rules andl Regulationls if the National I abor Relations Board. the findings.
co)ilistIil s. 1iand reelo lll ended ()Ode herein shall. as protided in Sec.
10248 of the Rules iand Reulitions. he adopted bh the ioa;rd and becomlie
Its lllll. ii . cL' lilU lo ll.s
.
n 1lls ()1end .i lllde d ill )hjectioni s hereto shall bhe
decniled .aicd for all purposcs
' In the esenrt thalt this Ordel is enforced hb .i Judgmellit f a Un;ited
States ( lort of Appeals. Ihe words in he notice reading "Posted h) Order
,f Ihe \.alltnall ahot Relations Board" shall read "Pstled Pursuant to a
Juidgnill t f the ilted Slates ( Court of Appeals Ltnlorcing lan Order OI the
Na.til.l I..tbor Reliio s Board"
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t