Bechtel Construction Co.

National Labor Relations Board - Board Decisions

Aug 31, 1993

312 N.L.R.B. 34 (N.L.R.B. 1993)

34
312 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel excepts only to the judge’s inadvertent fail-
ure to provide explicitly that the Respondents shall be ‘‘jointly and
severally’’ liable to make whole Michael R. Sterba, Russell C. Wil-
liams, and Henry Dolleman for any loss of earnings due to their un-
lawful layoff. We modify the judge’s remedy and order accordingly.
Bechtel Construction Company and Henry
Dolleman and Russell C. Williams and Michael
R. Sterba
Millwrights, Piledrivers, Divers, and Highway Con-
structors Local Union 1026, United Brother-
hood of Carpenters and Joiners of America,
AFL–CIO and Henry Dolleman and Russell C.
Williams and Michael R. Sterba and James H.
Riddle. Cases 12–CA–14543–1, 12–CA–14543–2,
12–CA–14710, 12–CA–14856, 12–CB–3483–1,
12–CB–3483–2, 12–CB–3513, 12–CB–3522, and
12–CB–3528
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 3, 1993, Administrative Law Judge Low-
ell M. Goerlich issued the attached decision. The Gen-
eral Counsel filed limited exceptions and a supporting
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order as modified.1
AMENDED REMEDY
Having found that Respondent Bechtel Construction
Company has engaged in unfair labor practices in vio-
lation of Section 8(a)(1) and (2) of the Act, and that
Respondent Union has engaged in unfair labor prac-
tices in violation of Section 8(b)(1)(A) of the Act, we
shall order them to cease and desist and to take certain
affirmative action designed to remedy their unfair labor
practices and to effectuate the policies of the Act.
Having found that Respondent Bechtel Construction
Company laid off Michael R. Sterba, Russell C. Wil-
liams, and Henry Dolleman in violation of Section
8(a)(1) and (2) of the Act, we shall order it to offer
them immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges previously enjoyed,
dismissing, if necessary, any employee hired since
their layoffs to fill their positions.
As we have found that Respondent Union caused
Respondent Bechtel Construction Company to lay off
Sterba, Williams, and Dolleman, we shall order that
the Respondent Union and the Respondent Employer
jointly and severally make Sterba, Williams, and
Dolleman whole for any loss of pay they may have
suffered as a result of the unfair labor practices against
them by paying to them a sum of money equal to the
amount they would have earned from the date of their
unlawful layoffs to the date of valid offers of reinstate-
ment, less their net interim earnings to be computed on
a quarterly basis in the manner established by the
Board in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Bech-
tel Construction Company, Florida City, Florida, its of-
ficers, agents, successors, and assigns, and Millwrights,
Piledrivers, Divers, and Highway Constructors Local
Union 1026, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Substitute the following as paragraph A,2(a).
‘‘(a) Offer Michael R. Sterba, Russell C. Williams,
and Henry Dolleman immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to a substantially equivalent position, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, and jointly and severally with Re-
spondent Union make them whole for any loss of earn-
ings and other benefits suffered as a result of the un-
fair labor practices against them, in the manner set
forth in the remedy section of the decision.’’
2. Substitute the following as paragraph B,2(b).
‘‘(b) Jointly and severally with Respondent Bechtel
Construction Company make Michael R. Sterba, Rus-
sell C. Williams, and Henry Dolleman whole for any
loss of earnings and other benefits they may have suf-
fered by reason of the unfair labor practices found
against Local 1026.’’
3. Substitute the attached notices for those of the ad-
ministrative law judge.
APPENDIX A
NOTICE TO EMPLOYEES
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unlawfully lay off employees because
they have engaged in internal union activities and/or in
35BECHTEL CONSTRUCTION CO.
order to discourage employees from engaging in such
activities.
WE WILL NOT unlawfully assist and support a union
by permitting a union officer to serve as our supervisor
within the meaning of the Act.
WE WILL offer Michael R. Sterba, Russell C. Wil-
liams, and Henry Dolleman immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL, jointly
and severally with Respondent Union, make them
whole for any loss of earnings and other benefits re-
sulting from these layoffs, less any net interim earn-
ings, plus interest.
WE WILL notify the above-named employees that we
have removed from our files any reference to their lay-
offs and that the layoffs will not be used against them
in any way.
BECHTEL CONSTRUCTION COMPANY
APPENDIX B
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unlawfully cause the layoffs of em-
ployees because they engaged in internal union activi-
ties and in order to discourage employees from engag-
ing in such activities.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL advise Bechtel Construction Company that
we have no objection to its reinstatement of Michael
R. Sterba, Russell C. Williams, and Henry Dolleman
and WE WILL, jointly and severally with Respondent
Bechtel Construction Company, make them whole for
any loss of earnings or benefits which they suffered by
reason of the layoffs.
MILLWRIGHTS, PILEDRIVERS, DIVERS
AND HIGHWAY CONSTRUCTORS LOCAL
UNION 1026, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
AFL–CIO
Eduardo Soto, Esq. and Shelley Plass, Esq., for the General
Counsel.
Williams F. Hamilton, Esq. and Kenneth R. Cass, Esq. (Hol-
land & Knight), of Miami, Florida, for Respondent Bech-
tel.
Joseph Kaplan, Esq., of Miami, Florida, for Respondent
Local 1026.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
charge in 12–CA–14543–1 was filed by Henry Dolleman on
June 21, 1991, and a copy thereof was served by certified
mail on Respondent Bechtel Construction Company (Bechtel)
on that same date. The charge in Case 12–CA–14543–2 was
filed by Russell C. Williams on June 24, 1991, and a copy
thereof was served by certified mail on Respondent Bechtel
on that same date. The first amended charge in Case 12–CA–
14543–2 was filed by Williams on July 8, 1991, and a copy
thereof was served by certified mail on Respondent Bechtel
on that same date. The second amended charge in Case 12–
CA–14543–2 was filed by Williams on September 23, 1991,
and a copy thereof was served by certified mail on that same
date. The original charge in Case 12–CB–3483–1 was filed
by Dolleman on June 21, 1991, and a copy thereof was
served by certified mail on Respondent Millwrights, Pile-
drivers, Divers, and Highway Contractors, Local Union 1026,
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO (the Union or Local 1026) on the same date. The
amended charge in Case 12–CB–3483–1 was filed by
Dolleman on August 28, 1991, and a copy thereof was
served by certified mail on Respondent Local 1026 on that
same date. The original charge in Case 12–CB–3483–2 was
filed by Williams on June 24, 1991, and a copy thereof was
served by certified mail on Respondent Local 1026 on that
same date. The amended charge in 12–CB–34483–2 was
filed by Williams on September 23, 1991, and a copy thereof
was served by certified mail on Respondent Local 1026 on
that same date.
An order consolidating cases, consolidated complaint and
notice of hearing was issued on September 24, 1991. Among
other things it was alleged in the consolidated complaint that
Bechtel violated the National Labor Relations Act (the Act)
by permitting James Flanagan to serve as its general foreman
while treasurer of Local 1026 and that Respondent Local
1026 and Respondent Bechtel caused the layoffs of
Dolleman and Williams of the Act.
The original charge in Case 12–CA–14710 was filed by
Sterba on October 8, 1991, and a copy thereof was served
by certified mail on Respondent Bechtel on October 9, 1991.
The original charge in Case 12–CA–14732 was filed by John
H. Riddle on October 22, 1991, and a copy thereof was
served by certified mail on Respondent on that same date.
The original charge in Case 12–CB–3528 was filed by Wil-
liams on November 4, 1991, and a copy thereof was served
by certified mail on Respondent Local 1026 on that same
date.
An order further consolidating cases, amended consoli-
dated complaint and notice of hearing was issued on Decem-
ber 18, 1991.
Among other things, it is alleged in the complaint that
Local 1026 had charged member Williams and imposed upon
him a collectible fine because he had engaged in internal
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The amended consolidated complaint filed by the General Coun-
sel listed a fourth charging party, James H. Riddle. On July 22,
1991, Riddle signed a withdrawal request. Riddle did not attend the
hearing in this matter nor did he respond to a subpoena directing
him to attend. After the hearing was concluded the General Counsel
moved to withdraw the following allegations from the amended con-
solidated complaint. Par. 10(a) as to the Respondent Bechtel and par.
10(b) and 11(b) entirely. Said motion is granted.
2 On September 1, 1992, an order to repoen record was entered on
Respondent Bechtel’s motion.
The General Counsel withdrew the charges as they related to
James H. Riddle, to sever Cases 12–CB–3522 and 12–CB–3523, to
dismiss said cases, and amend the caption accordingly. The motion
was granted. The caption has been amended.
3 The facts found are based on the record as a whole and the ob-
servation of the witnesses. The credibility resolutions have been de-
rived from a review of the entire testimonial record and exhibits,
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962). As to those witnesses testifying in contradiction of
the findings, their testimonies have been discredited either as having
been in conflict with the testimonies of credible witnesses or because
the testimony was in and of itself incredible and unworthy of belief.
All testimony has been reviewed and weighed in the light of the en-
tire record. No testimony has been pretermitted.
4 Andrew Ray Wells was the business manager and financial sec-
retary of the Local. Randall Wilds was the President and Assistant
Business Manager of the Local.
5 Belliveau did not testify at the hearing.
6 Wells had received a phone call from James Dever Flanagan, an
executive board member, that he had heard on the job that Russell
has said that ‘‘Randy and [Wells] were embezzling Union funds.’’
union activities and that Respondent Local 1026 caused
Bechtel to also lay off Michael R. Sterba.
The charge in Case 12–CA–148576 was filed by Dolleman
on February 8, 1992, and a copy was served by certified mail
on Respondent on that same date.
A complaint and notice of hearing was issued on February
21, 1992. In the complaint it was alleged that Bechtel unlaw-
fully refused to recall its employee, Dolleman.
On February 25, 1992, a second order further consolidat-
ing cases and scheduling order was issued.1
The Respondents filed timely answers denying that they
had engaged in the unfair labor practices alleged.
The consolidated cases appearing in the caption came on
for hearing in Miami, Florida, on March 9, 10, 11, 12, and
13, 1992.2
All parties were afforded full opportunity to be heard, to
call, to examine and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and con-
clusions, and to file briefs. All briefs have been carefully
considered.
On the entire record in these cases and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT,3 CONCLUSIONS OF LAW, AND
REASONS THEREFOR
I. THE BUSINESS OF RESPONDENT BECHTEL
At all times material herein, Respondent Bechtel, a Ne-
vada corporation, with offices and places of business
throughout the United States, including a facility in Cape Ca-
naveral, Florida, has been engaged in the engineering and
construction business.
During the 12-month period preceding the date of this con-
solidated complaint, Respondent Bechtel, in the course and
conduct of its business operations described above purchased
and received at its Cape Canaveral, Florida facility products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Florida.
Respondent Bechtel is now, and has been at all times ma-
terial herein, an Employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material Millwrights, Piledrivers, Divers and
Highway Constructors Local Union 1026, United Brother-
hood of Carpenters and Joiners of America, AFL–CIO (the
Union) has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Trial of Russell C. Williams
On February 20, 1991, Martin Belliveau, the union record-
ing secretary, committed to writing the following statement
which was communicated to Wells and Wilds:4
March 20, 1991
TO WHOM IT MAY CONCERN:
On or about February 20, 1991, in the mid afternoon,
Russell C. Williams came by where I was working and
made the following statement to me ‘‘ I fell that Andy
Wells and Randy Wilds are stealing money and grossly
mismanaging union funds, and they are taking trips to
exotic places at the Unions expense.’’ I told him that
this was a serious allegation unless he had proof.
Martin Belliveau
Recording Secretary5
Williams’ version of the incident was that on February 14,
1991, he engaged in a discussion with Belliveau to whom
Williams said in reference to the upcoming Union meeting,
‘‘Well, I guess we’ll see how much was squandered this
month.’’ Belliveau replied, ‘‘—that’s pretty harsh accusa-
tion.’’ Williams responded, ‘‘Well, I didn’t mean it. I mean
I’m just joking around with you.’’6
Thereafter on February 15, 1991, Wells wrote Williams
the following letter:
It has been brought to my attention that you have
questions concerning the operation and questions con-
cerning the way I bought the union vehicle, and that the
tax status of this union. The questions you are inter-
ested in do not belong on the job. These are questions
to be asked of me or the trustees at the Union Hall.
May I remind you to listen carefully to the President
when he closes the meeting.
In order to answer your questions I am asking that
you attend the next Executive Board at 7:30 PM with
your questions. I do not want the private business of
this Union on jobs. I am asking you t attend, to once
37BECHTEL CONSTRUCTION CO.
7 James Dever Flanagan was the treasurer of the Local, its delegate
to the District Council, a member of the executive board and general
foreman for Bechtel. Flanagan had been union treasurer about 7
years.
8 Wilds remembered that the executive board meeting, when Wil-
liams was asked the question about stealing Williams said that
‘‘when he said that we were stealing, that Andy and myself were
stealing, that he had said it in jest.’’
9 Flanagan testified that he asked Williams whether he had said
that Wells and Wilds were ‘‘embezzling money.’’ Williams an-
swered ‘‘yes.’’
and for all, answer you questions. If you continue to di-
vulge the private business of this Union on job sites I
will do whatever necessary to correct it.
I am looking forward to your questions and giving
you correct and honest answers. See you March 14,
1991 at 7:30 PM.
Williams appeared at the executive board meeting on
March 14, 1991. Among others, Wilds, Belliveau, and Flana-
gan were present. According to Williams, Wells inquired
about the accusation he had allegedly made Williams replied
that he had said the word ‘‘squandering money’’ but did not
direct the word at Wells or anybody personally, that he had
said it in ‘‘jest.’’ Williams further testified that Wells ex-
plained the details of the Union’s truck purchase and in re-
spect to the ‘‘exotic’’ trip to Hawaii Wells told him that
‘‘they were required to attend a meeting and be informed to
know how to handle health and welfare issues that were per-
taining to the Local.’’
Flanagan7 confirmed that at the executive board meeting
Williams made ‘‘the remark that he was kidding about what
he said.’’8
Wilds testified that Williams said that he did use the word
‘‘squandering’’ at the board meeting, whereupon Wilds
pointed out to Williams that it had been reported to him that
the word was ‘‘embezzling’’9 and that Belliveau had said
‘‘stealing.’’ Williams answered ‘‘I might have made a re-
mark like that but it was a joke.’’ Of the trip to Hawaii
Wells explained that no local union funds were used for the
trip but the expenses were paid by the Trust Fund for attend-
ance at a meeting of trustees of which International Founda-
tion conducted a seminar, ‘‘more of a schooling. . . . you
have to attend 18 [classes] for the fund to pick up money
for the cost of [the] trip.’’
After listening to the discussion it was the unanimous
opinion of the board that charges be lodged against Williams,
however, it was agreed that it was the individuals involved
who should take the action, if any. According to Wilds ‘‘[i]t
seemed at the time that Russell was satisfied with those an-
swers.’’ In fact Wilds testified that when they left the execu-
tive board meeting they did not ‘‘particularly’’ harbor the
idea of filing charges against Williams.
Shortly after the executive board meeting a union member-
ship meeting was held. The main issue considered at the
meeting was whether the Union should increase its dues as-
sessment. Williams was opposed to the increase which point
of view he had expressed to other members.
At the meeting Williams requested permission to read a letter
to the membership of which some copies had already been
distributed. By a membership vote Williams was allowed to
read the letter which he did. A copy of the letter is as fol-
lows:
March 12, 1991
Dear Brothers and Sisters:
This is a letter to the membership to express my point
of view in and organized, concise manner. My intent is
not to persuade or impose my philosophy on anyone
that does not agree with me, but I feel it is not only
my God-given right but a constitutional guarantee to
exercise my freedom of speech.
The following points are questions direct not only to
the current governing Executive Board but to all mem-
bers, active and retired:
1. Dues and assessments are in direct correlation to
the ‘‘Gross Income Salary’’ of every working member
of this Local. If our income is being reduced to insure
the operation of the Local and the assessments on our
income it is not enough to cover expenses, who’s fault
is it? Should we be penalized for the failure to sign
contracts and insure a reasonable wage to work for, if
the representatives we elected are not producing the in-
come of which the Local receives a percentage of to
operate on?
2. If we are willing to take cuts in pay to sustain our
Local, why is not our body of representatives willing
to make the same sacrifices temporarily in order to pre-
serve the Local. Example: North Dade Trash, Turkey
Point, Bridge Job, NISCO.
3. According to the March 4, 1991 Newsletter our
membership has not been significantly reduced, mean-
ing the contributing body has not been reduced by
nothing more than a lack of work being created out of
this Local.
4. I am not insinuating that I could do a better job
or that I am interested in pursuing any position in the
operation of this Local, I am merely stating as a mem-
ber we should become more involved in the disburse-
ments of the funds to operate this Local.
5. Why is it that we as members do not have any
written record of the expenditures of this Local? I want
to remind you that any view can be substantiated de-
pending on the facts and figures or the presentation of
these figures. It it is hard for me to present exact num-
bers on the spending of monies because after several at-
tempts to get this information, it has been brushed off
as too much work for the secretary or met with other
excuses.
It is my view that considering that it is our money
being spent we should be able to receive full account-
ability upon request for all expenditures through this
Local. I am not insinuating there is misappropriation of
funds, I am merely bringing it to the attention of the
members that there are some areas where improvement
in spending practices could help elevate [sic] our finan-
cial bind we are no facing.
6. What kind of financial wisdom is being expressed
when we by a new truck and go on meetings in Hawaii
during a period of financial dire straits? This kind of
activity tends to give the impression of prosperity at the
expense of the working stiffs that make up the support
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The Union’s constitution and laws states:
OFFENSES AND PENALTIES
A Section 55. Any officer or member found guilty after
being charged and tried in accordance with Section 56, for
any of the following offenses, may be fined, suspended or
expelled only by a majority vote of the members of the
Local Union District Council having jurisdiction of the of-
fense. In case of Industrial Councils, fines or suspensions
of membership rights may be imposed by majority vote of
the Executive Committee. Expulsions may be ordered only
by majority vote of the delegates to the Industrial Council.
(1) Causing dissension among the members of the United
Brotherhood.
(5) Willful slander or libel of an officer or any member of the
United Brotherhood.
(13) Violating the Obligation.
11 Local 1026 is an autonomous local affiliated with the District
Council to which its sends delegates as do other locals. ‘‘. . . where
of this Local. I would like to ask how many members
can afford a late model car with most of the accessories
available, trips to distant resort areas, and a guaranteed
income with overtime compensation through the term
of office after election?
7. If this assessment is passed, what guaranteed [sic]
does the membership have that spending will not in-
crease at the present rate of spending which has lead
us into this predicament were are faced with now.
I would like to say that I supported both Andrew R.
Wills and and Randy Wilds in their bids for election to
represent this Local. I feel that it is their responsibility
to examine their conscience and to review their past
policies of conducting business and spending funds
with not only their private interests at heart but maybe
look for ways to cut back and not put the burden of
sustaining this Local on the shoulders of the already
heavy load supported by the working members.
Fraternally Yours,
Russell C. Williams
Wilds testified, upon cross-examination, that in his opin-
ion, the letter contained slander pointing to No. 1, No. 2, No.
5, and No. 6. In the testimony of Wells the following ap-
pears:
THE WITNESS: What do I think in the letter is slander
on myself?
MS. PLASS: Correct.
As you view the Constitution as an office of the Union.
THE WITNESS: I believe that accusations and statements
that I have done things that are untrue about the money
of the Union is slander against me. And the other
things about the exotic trips and all that were using
Union funds and all is untrue.
Thereafter the following charges were filed against Wil-
liams:
The undersigned hereby prefers charges against the fol-
lowing Brother:
NAME Russell C. Williams L.U. 1026
ADDRESS 17800 DE 296th Street
Homestead, FL Zip 33030
For violation of (List Section, Paragraph and Page):
(Constitution and
Laws):
D.C. By-Laws: Trade Rules:
Sec. 55, 1,5 and 1310 llllllllllll
lllllllll llllllllllll
lllllllll llllllllllll
Specifically: (Brief statement of facts upon which
charges are based):
On or About February 20, 1991, the accused [sic] stat-
ed to Brother Martin Belliveau that I and Randall
Wilds were stealing Union Monies and grossly mis-
managing Union Fund [sic]. He also stated that I and
Randall Wilds took unnecessary trip to exotic places at
this unions expense. This all took place on jobsite. He
also verified he made this statement before the Execu-
tive Board of this Union on March 14, 1991 and read
a statement that I will address at the trial.
The violation charged took place on February 20, 1991
(date)
Turkey Point Power Plant Florida City
(Location and name of job)
Witnesses: (Name &
Address):
Martin A. Belliveau James Flanagan
10511 SW 54th Street 12810 N E 9th Avenue
Miami, Florida 33165 North Miami, Fl. 33161
lllllllllll
(Member filing charge)
Date received: Name and Address
lllllllll Andrew R. Wells
lllllllll 2727 South Park Road
(Secretary) Hallandale, Fl. 33009
lllllllllll
Randall Wilds
2727 S. Park Road
Hallandale, Fl. 33009
Wilds explained why the charges were filed:
A. Because previously, he said that I was stealing
money and all, and I mean, that’s not something you
say about somebody that’s in a business, you know—
especially, I mean, it was a well know fact that I was
running for reelection and at that time, for him to make
those accusations that were untrue within any proof or
whatever on a job site was wrong in my opinion.
On March 21, 1991, a letter was addressed to Williams by
the recording secretary of the South Florida Carpenters Dis-
trict Council, United Brotherhood of Carpenters and Joiners
of America (the Council)11 on April 3, 1991. Williams ap-
39BECHTEL CONSTRUCTION CO.
a District Council exists, the District Council will conduct any trials
of individual members.’’ The Council meets once a month.
12 According to Eugene S. Perodeau, business manager for the
Council, ‘‘This is a preliminary hearing for the purpose of establish-
ing whether there is enough merit to the charges to warrant giving
it to a trial committee.’’
13 In the minutes Williams is referred to as the defendant and
Wells and Wilds as the prosecutor.
14 ‘‘Squander’’ has been defined (The American Heritage Diction-
ary) as ‘‘1. To spend wastefully or extravagantly; dissipate.’’
15 All witnesses were under oath.
peared before the executive board committee of the Council
as notified. After hearing the parties, Williams, Wells, and
Wilds, the executive committee voted to process the
charges.12 According to Perodeau at the meeting, Wells said
he thought he had been slandered by Williams’ comments
about him and Wilds. Williams was asked if he said ‘‘these
things.’’ His response was something to the effect of, ‘‘
Well, I may have said that but it wasn’t meant the way its
coming out.’’ And that’s why we voted to let the trial com-
mittee hear everything that was aid and let them decide
whether their was guilt or innocence.’’
The next step in the process was the selection of the trial
committee took place on May 1, 1991, at a District Council
meeting Perodeau described the selection of the trial commit-
tee as follows:
When the trial committee is selected, we have a box
with numbered balls similar to bingo type balls. The
numbers on the balls correspond to the list of the dele-
gates to the counsel and they shake the box up, they
pull the balls out one at a time and I read off the—
or the warden reads the number. I check the number
against attendants list. If the person is present, I an-
nounce his name, and if he’s eligible to serve on a trial
committee, his name is written down.
When we get eleven people, then they put the—they
put those eleven balls in the other side of this small box
and then the conductor picks five balls from those elev-
en and those are the five people that are on the trial
committee.
At that point, the chairman asks the defendant, the
person changed, if he has any objection to any of the
people that are on the trial committee, and he has the
opportunity at that point to challenge any three of those
five. He doesn’t have to give a reason why he’s chal-
lenging them, he just doesn’t want those people to
serve on the committee, and at that point, we would
pick other names from the eleven.
The prosecutor is then given the same opportunity to
challenge any three of those five names and the same
thing would happen if he challenged somebody, we
would pick someone else.
Neither the prosecutor nor the defendant challenged
any of the five people that were named.
Williams approved the trial committee. None of the com-
mitteemen were members of Local 1026. The trial was con-
vened on May 15, 1991, at the District Counsel in Hialiah.
Minutes of the trial were taken by a 68-year old office sec-
retary, Ella Wallace. Williams’ testimony indicates that the
minutes are fairly accurate. He took issue with nothing of
great significance.
The minutes reveal that defendant13 Williams plead, ‘‘I
fell [sic] I am not guilty.’’ The defendant read the letter of
March 12, 1991. The minutes also reveal Williams said, ‘‘As
far as a certain comment I made to Martz, this was after
work. I said, ‘Let’s see how much money was squandered
this month.’ I never said embezzled or fraud. I did say
squandering to Martz. I then said I was joking. If expressing
your opinion is creating dissension, then I was guilty of
that.’’
Wells commented on the truck purchase and trip to Hawaii
indicating that the cost of the latter did not come out of the
union fund. There was much discussion on these points. He
also reviewed other matters in the March 12 letter defending
his position, ending with the statement, ‘‘I think his letter is
very defamatory towards us.’’
The dictionary definition of libel and slander was re-
viewed:
Several words in the dictionary . . . willful . . . done
deliberately.
slander . . . the utterance of false charges or mis-
representations which defame and damage another’s
reputation. 2. a false and defamatory oral statement
about a person.
libel . . . A handbill esp. attacking or defaming
someone. b. written statement in which a plaintiff in
certain courts sets forth his cause of action or the relief
he seeks. 2. a written or oral defamatory statement or
representation that conveys an unjustly unfavorable im-
pression b. a statement of representation published
without just cause and tending to expose another to
public contempt (2) defamation of a person by written
or representational means.14
Belliveau and Flanagan were called as witnesses. Belliveau
testified15 that Williams had said ‘‘stealing’’; Williams in-
sisted it was squandering. Belliveau also testified:
MARTY: I did not feel he was joking. Four or five
hours later he came by and said he was joking. I said
that was nothing to joke about. It was very disruptive
and took energies away from the Local and I did not
feel it was funny.
The trial committee rendered the following unanimous ver-
dict:
We, the Trial Committee, in the case of RUSSELL C.
WILLIAMS, find him guilty [sic] of violation of Sec-
tion 55 Paragraph 5 and recommend he be find [sic]
$150.00, and also find him guilty of violation of Sec-
tion 55 Paragraph 13 and recommend he be fined
$150.00 plus the cost of Trial ($35.00) for a total of
$335.00.
The Trial Committee also recommends that he attend
all or if not possible, the majority of the meetings of
his Local in order to be better informed.
llllllllll
Paul Cyman
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Flanagan also testified:
Q. As General Foreman, you were the boss of the Foreman
correct?
A. Yes.
Q. And, you supervised the decisions that the Foreman was
making?
A. Yes.
Q. Did you have overall responsibility for making the assign-
ments, with respect to the work list that was provided to you
by Mr. Lohrke?
A. Yes.
Q. And, how did you go about making the determination as
to who would work which job, and which assignment?
A. No formula, or nothing. Just picked out the men to do the
work.
Q. Did you take into consideration the ability of each one of
your workers, as with respect to the task that was being as-
signed.
A. On some assignments, yes.
MR. HAMILTON: No further questions, Your Honor.
llllllllll
Edd Holladay
For 31 llllllllll
Against 0 Joe Burnside
llllllllll
Mark Essick
llllllllll
Mark Polis
The verdict was upheld by the District Council. Williams
did not appeal. Williams failed to pay his fine and was sus-
pended from membership in Local 1026 and December 19,
1991.
As full review of the events which touch on the charges
filed against Williams and his trial show that he was denied
due process nor was he denied the safeguards provided to
union members who are charged with offenses under the
constitution. That the trial committee found that Williams
had slandered and libeled officers of the Union can not be
gainsaid if credibility and inference is with the committee.
There is no credible evidence that they did not fulfill there
function in an impartial manner. Had I been on the trial com-
mittee, my vote might have been for Williams, however, I
do not think it is my function to substitute my judgement for
that of a union trial committee where it appears that trial
committee had functioned according to the union constitution
and rules and with impartiality. Since the charges against
Williams were found to be well taken and affirmed by an
impartial trial, the complaint is dismissed as to this issue.
The Supervisory Status of James Dever Flanagan
During the material time herein James Dever Flanagan
worked for Bechtel as a general foreman at the nuclear
power plant of the Florida Light and Power Company on the
Turkey Point jobsite. He was assigned to the turbine deck,
an area of around 250 by 50 feet. He was in charge of mill-
wrights who worked under the general president’s project
maintenance agreement out of Local 1026. The employees
were engaged in dissassembling and reassembling turbine
equipment utilized by the nuclear power plant. His imme-
diate supervisor was Werner H. Lohrke, the mechanical su-
perintendent for Bechtel. Richard LeRoy Bibber also worked
on the site. He was the turbine construction supervisor for
the Florida Light and Power Company. Bibber described his
duties:
I was providing technical information as far as the
technical expertise which was required to disassemble,
reassemble, and do any maintenance work on the tur-
bine generators.
Also as a construction supervisor, I was assigned to
the turbine deck to ensure that the work was being car-
ried out in a safe manner, in an efficient manner, a
proper manner . . . .’’
Bechtel employees who were doing the contracting work
were not under his direct supervision.
Martin Belliveau worked as a foreman under Flanagan.
Lohrke, Bibber, and Flanagan carried radios by which they
sometimes communicated. According to Bibber, Flanagan
was involved with him and Lohrke, ‘‘. . . we would lay out
the basic jobs we wanted to do.’’ Bibber testified that he did
his communicating with Lohrke but ‘‘there was an under-
standing that if he were not there, that I could talk directly
with Jim [Flanagan].’’ Bibber also discussed the way jobs
were to be done with Flanagan. ‘‘If I had a better way—his
may not necessarily have been wrong, but if I felt that I had
a better way due to the fact that I have had a number of
years of turbine experience, I would make the recommenda-
tion.’’
According to Lohrke he told Flanagan to tell millwright
Henry Dolleman that if ‘‘he didn’t do better he [would] be
fired. . . . First I told him to get his work better.’’ ‘‘Get
him to work.’’ Further testifying, Lohrke said, ‘‘I usually
don’t talk to the men myself about performance . . .
[b]ecause that’s the foreman’s job, that’s part of his job.’’
When Lohrke was asked who made the decision to lay off
on June 17, 1991, he answered, ‘‘I made a decision, with
Flanagan too.’’ Flanagan chose the employees be assigned to
the night shift, including employee Russell Curtly Williams.
According to Flanagan when he saw a jurisdictional viola-
tion he would approach Stover, the project manager of Bech-
tel who was the ‘‘man ultimately responsible for making the
assignment of work to [the] various crafts.’’ Flanagan de-
scribed his ‘‘typical’’ workday:
. . . I would go in, in the morning, and sit with Werner
Lohrke, and Dick Bibber, and they would give me a list
of work items that need[ed] to be completed that day.
I would go on the Turbine Deck, and get with Mary
Belliveau, and we would split up the work assignments,
and then we would designate who would go do them
[sic] work assignments.
Throughout the day we would be doing back and
forth to each set of millwrights, usually partners, and
making sure the work was being done; make sure it
was being done correctly. If they had any questions;
that we would try to resolve them. If we couldn’t re-
solve them, then we could go back Werner Lohrke, or
Dick Bibber, for assistance in getting each project com-
pleted.16
According to Flanagan he suggested to Lohrke and Bibber
‘‘about going to three shifts on the oil flush instead of two
. . . [s]o we can keep three more millwrights working in-
stead of laying them off.’’ His suggestion was accepted.
41BECHTEL CONSTRUCTION CO.
Additionally, Flanagan signed timesheets as foreman, he
received $1.75 an hour above scale, he could require and
chose employees for overtime, he could request material with
which to work, he could caution employees about their work
habits, he signed termination forms, and he instructed new
employees.
A supervisor is defined in Section 2(11) of the Act as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The law on the subject is well summarized by Judge Itkin
in the case of Amperage Electric, 301 NLRB 5 at 13 (1991):
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical, or rule book au-
thority. It is well established that a rank-and-file em-
ployee cannot be transformed into a supervisor merely
by investing him or her with a ‘‘title and theoretical
power to perform one or more of the enumerated func-
tions.’’ NLRB v. Southern Bleachery & Print Works,
257 F.2d 235, 239 (4th Cir. 1958), cert. denied 359
U.S. 911 (1959). What is relevant is the actual authority
possessed and not the conclusory assertions of wit-
nesses. And while the enumerated powers listed in Sec-
tion 2(11) of the Act are to be read in the disjunctive,
Section 2(11) also ‘‘states the requirement of independ-
ence of judgment in the conjunctive with what goes be-
fore.’’ Poultry Enterprises v. NLRB, 216 F.2d 798, 802
(5th Cir. 1954). Thus, the individual must consistently
display true independent judgment in performing one or
more of the enumerated functions in Section 2(11) of
the Act. The performance of some supervisory tasks in
a merely ‘‘routine,’’ ‘‘clerical,’’ ‘‘perfunctory’’ or
‘‘sporadic’’ manner does not elevate a rank-and-file
employee into the supervisory ranks. NLRB v. Security
Guard Service, 384 F.2d 143, 146–149 (5th Cir. 1967).
Nor will the existence of independent judgment alone
suffice; for ‘‘the decisive question is whether [the indi-
vidual involved] has been found to possess authority to
use [his or her] independent judgment with respect to
the exercise [by him or her] of some one or more of
the specific authorities listed in Section 2(11) of the
Act.’’ See NLRB v. Brown & Sharpe Mfg. Co., 169
F.2d 331, 334 (1st Cir. 1948). In short, ‘‘some kinship
to management, some empathetic relationship between
[supervisor] and employee, must exist before the latter
becomes a supervisor of the former.’’ NLRB v. Security
Guard Service, supra.
The following factors convince me that while working as
general foreman for Bechtel, Flanagan was a supervisor with-
in the meaning of the Act:
1. Belliveau, a foreman, worked under Flanagan whose de-
cisions Flanagan supervised. 2. Flanagan carried a radio
hookup with Lohrke and Bibber. 3. Flanagan was involved
in the layout of jobs. 4. If Lohrke was not present Bibber
communicated directly with Flanagan. 5. Bibber discussed
the way jobs ought to be done with Flanagan. 6. Flanagan
delivered warnings to employees in respect to the work hab-
its. 7. Part of Flanagan’s job was to talk to employees about
work performance. 8. Lohrke made decisions to lay off em-
ployees (‘‘with Flanagan too’’). 9. Flanagan chose employees
for the night shift. 10. Flanagan alleged jurisdictional viola-
tions to the project manager.’’ 11. Flanagan, taking into con-
sideration the worker’s ability, assigned work to the mill-
wrights based upon his judgment as to which employee was
to receive the assignment. 12. Flanagan monitored the work
of the millwrights. 13. Flanagan suggested a third shift which
was accepted. 14. Flanagan signed two sheets and chose and
assigned employees for overtime. 15. He instructed new em-
ployees. 16. He received more wage than employees working
under him. 17. He was designated the General Foreman. An
employee could not escape the conclusion that Flanagan was
a supervisor to whom they looked to as their boss.
I find that Flanagan was a supervisor within the meaning
of the Act. See Clark & Wilkins Industries, 290 NLRB 106
(1988); MacDonald Miller Co., 277 NLRB 701, 703 (1985);
and Amperage Electric, supra.
In regard to Martin Belliveau, there is not sufficient evi-
dence in the record to determine whether he is a supervisor
within the meaning of the Act or not.
The Union Election—June 13, 1991
At the May 9, 1991 meeting of Local 1026 candidates for
union officers were nominated. The election was held on
June 13, 1992; the results of the election were as follows:
BALLOTS CAST VOTING POSITION
PRECINCT
163
POSN. COUNT.
PRESIDENT (No OPPOSITION)
RANDALL WILDS 20 20 133
BUSINESS MANAGER & FINANCIAL SECRETARY
HENRY DOLLEMAN 24 24 40
ANDREW WELLS 25 25 120
VICE PRESIDENT
CHARLES BROOKS 29 29 49
RICHARD MATTHEWS 30 30 94
TREASURER
JAMES FLANAGAN 31 31 78
MARCOS VERA 32 32 70
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 After Respondent Bechtel’s motion to reopen the record was
granted, Bechtel offered the testimony of Roger F. Paddock. Pad-
dock described his duties as follows:
My responsibilities as construction supervisor was helping Flor-
ida Power and Light Maintenance Department formulate the
contract; advise Florida Power and Light in the award stage; and
also after the award of the contract to be responsible for the
schedule, safety, and quality control aspects of whatever particu-
lar contract that was involved.
18 Paddock described an oil flush as ‘‘very similar to changing the
oil in your automobile . . . the reason that you perform high veloc-
ity oil flush is to take those impurities, water, moisture, out of the
oil.’’
19 Flanagan testified that ‘‘it was said that’’ after the oil that they
would lay off the six people that came in.’’ This testimony certainly
raises doubts since the layoffs were before the oil flush commenced.
BALLOTS CAST VOTING POSITION
PRECINCT
163
POSN. COUNT.
CONDUCTOR
RAY HENDY 33 33 45
GERALD WIERSMA 34 34 99
RECORDING SECRETARY (No OPPOSITION)
MARTIN BELLIVEAU 36 36 137
WARDEN (No OPPOSITION)
MARK BELLIVEAU 38 38 134
TRUSTEE
JOHN SERENCKO 59 59 44
JOSEPH SCHIRO 60 60 93
RUSSELL WILLIAMS 61 61 12
DISTRICT COUNCIL DELEGATE & ALTERNATE (VF 2)
MARTIN BELLIVEAU 62 62 103
JAMES FLANAGAN 63 63 71
JAMES KETNER 64 63 37
NORBERT McLAUGHLIN 65 65 41
STATE COUNCIL CONVENTION (VF 2)
MARTIN BELLIVEAU 67 67 93
JAMES FLANAGAN 68 68 60
FRANCIS HALGAS 69 69 19
JAMES KETNER 70 70 18
NORBERT McLAUGHLIN 71 71 21
CARL SLOAN 72 72 35
RUSSELL WILLIAMS 73 73 9
Alleged discriminatee Henry Dolleman, who was running
for business manager and financial secretary, and alleged
discriminatee Williams, who was running for trustee and
State Council Convention, opposed the election of Wells and
his slate. Alleged discriminatee Michael R. Sterba nominated
Williams.
Wells ran on a slate of candidates, which was referred to
as the team. In opposition a leaflet was distributed which
stated ‘‘Let this be your voting ticket.’’
Business Agent Henry Dolleman
Vice President Chuck Brooks
Treasurer Marco Veara
Trustee John Schrenko
Conductor Ray Hendy (‘‘Six Pack’’)
All these candidates were defeated. (R.U. Exh. 4.)
As noted above, Dolleman and Williams both lost. The
Wells team won. The salary of Wells, against whom
Dolleman was running, was approximately $67,000 in the
years 1989 to 1990. Flanagan who had been nominated by
Wells was also elected District Council delegate and to the
State Council Convention as well as treasurer.
Creation of Second and Third Shifts
As of May 30, 1991, 30 millwrights were on Bechtel’s
payroll, all on the day shift. On June 3, 1991, a second shift
was commenced with seven millwrights. On June 4, 1991, an
eighth millwright was added and on June 10, 1991, a total
of 11 millwrights were assigned to work the second shift
while 19 millwrights were assigned to work the day shift.
According to Lohrke, Bechtel created the second shift be-
cause ‘‘we didn’t have enough time to do all the work.’’
Roger F. Paddock, a contract construction supervisor for
Bechtel,17 testified, ‘‘The reason was to maximize the utili-
zation of our turbine gantry crane.’’
On June 18, 1991, a third shift was established to handle
an oil flush.18 According to Paddock three millwrights and
a foreman worked on each shift who were taken from the
‘‘millwright pool’’ of employees. The third shift was discon-
tinued on June 27, 1991.
The Layoff on June 17, 1991
On June 17, 1991, four employees were laid off among
whom were the alleged discriminatees, Dolleman, Williams,
and Sterba. According to Bibber, he, Ralph Crawford, and
Paddock, Florida Light and Power employees, ‘‘let [Phil
Dyson of Bechtel] know that there was going to be a reduc-
tion in our manpower needs . . . that we would talk with
Werner [Lohrke] and it would be up to Werner Lohrke to
make the decision as to who was going to be laid off.’’ Pad-
dock testified that the decision to layoff was make ‘‘the first
week of June.’’ Six employees were to have been laid off.19
Later this number was reduced to four. The number
43BECHTEL CONSTRUCTION CO.
20 Paddock does not point to this as a reason for the layoffs.
21 ‘‘. . . dual unit outage is the term used for all the work that
was basically going in and at Turkey Point.’’ The dual outage com-
menced in ‘‘December of 1990.’’
22 The oil flush equipment was rented to Bechtel by Westinghouse.
23 Lohrke testified that ‘‘some new hires’’ were put on the night
shift.
24 Lohrke testified that Bibber wanted the layoffs because of ‘‘the
lack of work. . . . Westinghouse parts didn’t come back to the
job.’’ However, Westinghouse parts did come back to the job by the
time of the layoffs.
‘‘dropped’’ to four ‘‘when two people were unable to be em-
ployed.’’
Bibber testified that as June 1, 1991, Bechtel had not an-
ticipated a layoff on June 17, 1991. He further testified:
The layoff had occurred due to a number of reasons.
First of all, some of the bearings, the Number 7 and 8
bearings on the Unit 3 generator which is primarily
where we’ve been spending most of our time was
shipped out and revamped and rebored, and they came
back from Westinghouse and they had bored them
wrong.
So that basically brought to an end all work on [the]
Unit 3 generator for the time being because we needed
the bearings in place to do that. So that was a big re-
duction in workload right then and there.
Also I had mentioned earlier that Westinghouse was
doing a large amount of machining work for us. We
had installed what they call new blade rings in the
high-pressure turbine which was located up at this end.
I pointed that out.
And that stainless steel blade rings had to go back
to the factory for additional machining. Once again, this
reduced the amount of workload that we had antici-
pated.20
And so due to the fact of parts coming back or having
[been] sent back for rework—I mentioned Mr. Roger Pad-
dock and Ralph Crawford—we sat down, we determined
what our work loads were, we looked at our manpower load-
ing at the time, and the two just did not add up. And we
knew we had to get rid of some people.
Paddock’s testimony was somewhat similar.
According to Paddock, at the beginning of the dual unit
outage21 the tasks which were assigned to the millwrights
(the three alleged discriminatees were millwrights) were the
removal of the Unit Three generator rotor, the ‘‘problem of
what caused the vibration on Unit Four,’’ the ‘‘five-year in-
spection on the high pressure turbine, which involved remov-
ing the H.P. cover, removing the H.P. rotor, taking it out and
sitting it aside, performing non-destructive testing on [unit]
N.D.E. . . . and the high velocity oil flush.’’ Millwright
manpower was initially based on those needs by consultation
between Paddock, Bibber, and Lohrke.
Continuing the testimony of Paddock, ‘‘The first project
that was encountered was removal of the Unit Three genera-
tor rotor.’’ The removed generator rotor was ‘‘taken to the
construction barge slip and sent off to Westinghouse for re-
furbishing.’’ It was anticipated that the rotor generator would
be returned around the end of May. As of this date the mill-
wrights became ‘‘actively involved in pursuing the generator
vibration problem.’’ In about the first part of June work was
commenced on setting up the ‘‘high velocity oil flush.’’ This
work had been scheduled ‘‘probably the middle of May.’’
The equipment for the oil flush which arrived about the first
of June was furnished by Westinghouse.22 It took about 3
weeks to set up the equipment. ‘‘[I]t took us approximately
two weeks to satisfy the requirement to clean up the oil.’’
‘‘[I]f it took us two and a half to three weeks to get set up
for it, it would take us almost an equal number of time to
disassemble it, because we not only had to disassemble it, we
had to clean it and package it up, and inventory it.’’ At the
time the oil flush job was set up, Respondent Bechtel was
aware of the time it would take to complete the job.
As noted above according to Paddock the decision to lay
off employees was first discussed in the first week in June.
On June 3, 1991, as noted a second shift of millwrights was
established. According to Paddock, ‘‘There were millwrights
hired for [the] second shift.’’23
Paddock further testified that certain bearings which had
been sent to Westinghouse to be bored or drilled were re-
turned to the site around the first of June. These had been
bored or drilled ‘‘to the wrong diameter.’’ They were re-
turned to Westinghouse. The bearings were ‘‘re-babbitted, re-
drilled, [and] re-bored.’’ Paddock testified that the return of
the bearings to Westinghouse for reboring around the first of
June ‘‘was in essence a major decision in making the deter-
mination to lay off the millwrights.’’24 Which decision was
‘‘initially’’ discussed among Paddock, Bibber, and Lohrke
around the first of June. If Paddock is credited on this point
it would appear that millwright work decreased when the
bearings were returned to Westinghouse and increased when
Westinghouse again returned the bearings to Bechtel. Thus,
millwrights were retained by Bechtel at a time when mill-
wright work decreased and were laid off when millwright
work increased.
The General Counsel points out:
The total hours worked by millwrights per week in-
creased from about 50 per week between June 2 and
June 22 to 58.1 (June 23–29), 60.8 (June 30–July 6)
and 56.0 (July 7–13).
This post-layoff increase in overtime work averages
8 hours per week per millwright. As there were 25
millwrights working after June 23, the increase in over-
time work after the June 17 layoff averages 200 per
week. Significantly, four millwrights were laid off on
June 17 and one was fired on June 23; assuming each
of those five millwrights worked 40 hours per week,
they would have worked 200 hours of regular time be-
tween June 23 and July 13. Instead, the remaining 25
millwrights worked an average of 200 hours of addi-
tional overtime each week.
Paddock attributed this additional time as overtime re-
quired by the oil flush, a continuous operation; a problem
with hydrogen seal rings, support for Westinghouse ‘‘in their
work on the high pressure turbine,’’ and ‘‘to restore the unit
and get the Westinghouse [oil flush] equipment out of the
site.’’ Paddock further testified that he first became aware of
the problem with the hydrogen seal rings ‘‘right around the
first week of June’’ and at that time he knew it would re-
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Respondent Bechtel points out in its ‘‘Brief of Employer, Bech-
tel’’ p. 16:
A review of the job description portion of the relevant CWOs
establishes that oil flush preparatory work (CWO 500554-00-
00001) began as early as May 30, 1991; the actual oil flush
using three shifts began on June 18, 1991; the third shift ended
on June 26, 1991, with the actual oil flush ending on June 27,
1991; and that post-oil flush disassembly, cleaning, packing and
shipping work continued through the July 16, 1991 layoff. Hy-
drogen seal work on unit 4 (CWO 500533-00-00001) was re-
corded in mid-June. On June 13 hydrogen seal brackets were
taken to the warehouse for shipping to Westinghouse. On June
15 readings were taken of other hydrogen seal brackets until
June 22 when millwrights began installing the lower hydrogen
seal support brackets. Unit 4 hydrogen seal work continued until
July 8, 1991.
Hydrogen seal work on unit 3 (CWO 200009-00-3231586) is first
noted on June 29 when the brackets were moved from the warehouse
to the turbine deck. Thereafter, until July 10, 1991, the daily work
records reveal repeated installations and removals of bearings, bolts
and brackets.
26 Williams, whom Sterba had nominated, ran against Flanagan
and Belliveau and for State Council Convention.
27 This testimony is undenied.
28 There is an inference in Lohrke’s reply that Flanagan was in-
strumental in choosing Sterba for layoff which jells with Lohrke’s
testimony that he made the layoff decision with Flanagan.
quire additional millwright man hours. The high pressure tur-
bine problem occurred July 2 or 3.
Paddock was asked:
Q. As of the first week of June, when the initial de-
cision was [made] to lay off some millwrights, you
knew at that point that the nature of the business is
such in that type of work that problems are very likely
to come up that will require additional work by mill-
wrights.
A. That’s not only true of millwrights, that problem
is inherent with every craft, every situation, every sys-
tem at Turkey Point.25
According to the foregoing testimony around the first
week of June, Bechtel and Florida Light & Power employees
discussed the layoff of millwrights considering as a ‘‘major
decision’’ for such action the return of certain bearings to
Westinghouse for reboring. At the time of these discussions
Bechtel knew that the bearings would be returned in around
2 weeks, which was about the date the alleged discriminatees
were laid off on June 17, 1991. The bearings were returned
on June 14 or 15, 1991. Moreover, on June 2, 1991, also in
the first week of June, a second shift was set up and accord-
ing to Paddock ‘‘[t]here were millwrights hired for the sec-
ond shift’’ if Paddock is believed, Bechtel was adding em-
ployees at the same time it was considering laying off em-
ployees. Moreover, incongruously, Bechtel retained the lay-
offs during a period when work was alleged to have been di-
minished because of the return of certain bearings to Wes-
tinghouse and laid them off when the work was returned.
Additionally, Bechtel was aware of the problem with the hy-
drogen seal rings around the first week of June and it new
that such circumstances would require additional millwright
man hours. Thus, it would appear that lack of work as ad-
vanced by Bechtel was not the real motive for the layoffs
and its claims in this respect are false.
Such conclusion is buttressed by the fact that after the lay-
offs Bechtel utilized a substantial amount of overtime which
would have been sufficient to have furnished work for the
layoffs. While the claim is that the overtime work was unan-
ticipated, overtime work, Bechtel knew the time of the lay-
offs that the overtime used to dismantle and pack the oil
flush equipment was in the offering. Apparently overtime
was anticipated which could have been avoided if the layoffs
had not occurred.
I conclude therefore that the layoffs effected were not for
the reasons advanced by Bechtel, but that Bechtel’s reasons
were false and fabricated as a defense in this action and that
the real reason for the layoffs was because Bechtel, in collu-
sion with the Union, illegally laid off the employee in that
they had engaged in internal union activities to the displeas-
ure of the Respondents.
The Layoffs of Michael R. Sterba, Russell Williams,
and Henry Dolleman
First: Michael R. Sterba was refused through Local 1026
to work for Bechtel at the Turkey Point site on April 10,
1991, where he was employed as a journeyman millwright
on the day shift. As noted, he had nominated Williams for
union office and opposed to the assessment increase.
At the end of the May nominating meeting Belliveau said
to Sterba, ‘‘I thought we were friends. Why did you go
against me?’’ Sterba replied, ‘‘I didn’t go against you, I went
against Jim Flanagan.’’26 Belliveau remarked in leaving, ‘‘I
hope you have a lot of money saved up.’’27
Sterba engaged in conversation with Flanagan and
Belliveau on several occasions at the jobsite in March, April,
and May. In these conversations Sterba told them that he was
opposed to the dues increase, which they favored. At the
time Flanagan was treasurer of the Union. During the con-
versation they also discussed the upcoming election. Flana-
gan asked Sterba whether he was for Williams; he answered,
‘‘yes.’’
On June 17, 1991, Lohrke, without prior notification, in-
formed Sterba that he was going to be laid off. Sterba said
‘‘‘Well don’t I have a say in the matter’ because I’ve been
there the longest. I was one of the first ones besides Flana-
gan on the job.’’ Lohrke replied that ‘‘. . . it wasn’t up to
him, to go see Flanagan because he didn’t want any prob-
lems on the job with Jim Flanagan.’’28 Thereupon Sterba
asked Flanagan why he was getting laid off, and Flanagan
answered, ‘‘After you screwed me and the Union, there’s no
way. . . . You’re gone.’’ At the time Sterba was laid off
there were four travelers working on the site.
Bibber testified that Sterba was a ‘‘hard worker.’’ He also
testified that Lohrke said Sterba laid off ‘‘because he wanted
the layoff.’’ According to Bibber, Sterba had told him that
‘‘he had plans in August and that if the job was still going
in August, he was going to request a layoff.’’ Nevertheless,
Sterba was laid off in June.
Sterba testified that he first requested a 2-week vacation
from Lohrke which was not granted to him. Then he asked
for a leave of absence from Lohrke, which was also refused.
Sterba testified,
Then I asked for a layoff, because I was gonna move
my family, and they would not give it to me.
45BECHTEL CONSTRUCTION CO.
29 ‘‘Brass’’ was an employee medallion that each employee has
with an employee number, which employees are required to pick up
in the morning and turn in when they leave the job.
30 There was less supervision on the night shift.
31 According to Lohrke, Bibber told him to ‘‘get him off the job,
I don’t want him to work on my machine.’’
So then I moved my family before I got laid off; I
went back and told them I do not want a layoff.
Sterba was moving his family to Gainesville.
Sterba also made a request to be transferred to the Local
in Jacksonville. The transfer did not go through until Sep-
tember. Sterba moved his family to Newberry, Florida, near
Gainesville in June. Sterba testified he moved because:
Well, it was mainly the school systems down here in
South Florida. I thought my family would have a lot
better . . . my kids would have a lot better chance, and
I thought that I was gonna get some repercussions with
the Union, and I would have a better chance through
Jacksonville of getting work.
. . . .
Well, my plans were to move my family and then
come back down here to work. I have family down
here in Miami, and I could have stayed down here to
work.
Sterba is now working in Miami.
Sterba testified that he changed his mind about the layoff
because he ‘‘worked it out’’ where he could still work and
move his family; he had a job at Turkey Point and he was
uncertain about Jacksonville.
According to Sterba about 3 weeks before the layoff
Lohrke asked him whether he still wanted to be laid off. He
answered ‘‘No.’’
Lohrke also testified that when he told Sterba of the layoff
he ‘‘ask Sterba if he likes to stay I can change that lay-off.’’
Lohrke testified that Sterba answered ‘‘It don’t make any dif-
ference anyhow, anymore.’’ I credit Sterba’s version.
Sterba also testified that he told Foreman Belliveau that he
had changed his mind about his layoff.
Lohrke also testified that Sterba was a ‘‘hardworker’’ and
that if Sterba had not requested a layoff he would not have
included him in the layoff.
Second: Russell Curtly Williams was also laid off on June
17, 1991. According to Bibber Lohrke told him that Wil-
liams had been chosen for layoff ‘‘because I wanted them
(Williams & Dolleman) off site.’’ Williams was the same
person who opposed the union assessment increase, ran for
union office against his boss (Flanagan) and the Wells team,
read a letter that offended Wells and Wilds, at a union meet-
ing allegedly libeled or slandered Wells and Wilds, and was
tried for the latter before a trial committee upon charges filed
by Wilds and Wells.
On June 13, 1992, the election date, at about 5 o’clock
Wells addressed Williams as follows, ‘‘I guess you learned
your lesson, motherfucker. I’m going to get you; you’re
through, George.’’ Williams replied, ‘‘I don’t know what
you’re talking about. What are you getting at?’’ During the
election campaign a letter had been circulated to which the
name ‘‘George Washington’’ was appended. The letter urged
the election of Marcos Vera who was running against the
‘‘Team Choice’’ for treasurer, James Flanagan.
On June 17, 1991, Williams came to the plant as usual.
He went to the time shack to pick up his ‘‘brass’’;29 he was
advised by the timeclerk that his ‘‘brass wasn’t there.’’ The
clerk then ‘‘went through some files on his desk and had
found [Williams’] layoff slip and [his] last check.’’
Flanagan who had transferred Williams to the night shift
on June 10, 1991, shortly before he was laid off, testified,
‘‘Russell was a fair millwright at the time. If he’s instructed
and kept an eye on he did a good job. So, I just figured he
[would] be good for the night shift.’’ Further testifying,
Flanagan said that he had ‘‘fair’’ confidence in Williams’
work.30
According to Flanagan after Bibber and Lohrke had
brought to his attention that Williams was not putting out
enough work Flanagan said to him, ‘‘they [are] keeping an
eye on you, we need to work a little smarter. . . .’’ Wil-
liams admitted that he was told by Lohrke that he had ‘‘bet-
ter pick up the pace.’’ He denied that he had been cautioned
by Flanagan or Belliveau. Bibber testified that he had talked
to Lohrke31 about Williams’ performance after which Bibber
thought Williams’ ‘‘performance improved.’’ Lohrke also
testified that Williams’ ‘‘picked up speed.’’ ‘‘He was im-
proving.’’
Williams testified that sometime after he was nominated
for trustee said to Lohrke that
if there was a problem with my work performance or
anything, that I would like to be made aware of it, be-
cause I knew that there was an issue involved here with
the Union and the problems that were being involved
with the Union, and that if there was a problem with
my performance, that if he would be fair enough to
come or tell me if there was anything I could do to im-
prove my performance or if there was an issue of some-
thing I always do that I could improve, because I knew
that they were looking for reasons to get rid of me.
Lohrke replied, ‘‘. . . he was not involved in any of that
business with the Union; it didn’t have anything to do with
him; that my work performance was adequate and he would
let me know if there was a problem with my performance.’’
A rotor incident occurred involving Williams which appar-
ently teed Bibber off. Flanagan testified, ‘‘I instructed Rus-
sell Williams to take a [certain] 50 ton Portopower and push
on [a] generator coupling and move [a] rotor 50/1000ths for-
ward.’’
Williams described the rotor incident as follows: Flanagan
assigned the job to him and directed him what to do. Wil-
liams recognized that Flanagan’s directions were in error. ‘‘I
went and got Jim which brought Werner Lohrke and Dick
Bibber.’’ Bibber was ‘‘upset’’ that the generator had been at-
tempted to be moved in this manner.
Williams testified:
We never attempted to move it. We set up the way
the foreman instructed us to set it up, at which time I
considered it a real problem, and I went to my super-
visor about it, to clarify what was instructed to me to
do.
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Apparently the answer was that Williams was not at fault.
33 Bibber testified that he first spoke to Lohrke about Dolleman’s
performance around March 1991. (Dolleman started working for
Bechtel on May 6, 1991.)
34 ‘‘Flanagan called the Union Hall and the business agent ask[ed]
him if we can wait until after the election.’’
Williams explained the error to Flanagan, Lohrke, and
Bibber, which had it occurred would have been very costly.
Later in the presence of Lohrke, speaking to Flanagan, Wil-
liams said, ‘‘Look, Jim you know that you did it; you told
me to do it this way.’’ Flanagan replied ‘‘Well, maybe I did,
but you know better than that to do it that way.’’ Williams
responded, ‘‘ . . . that’s why I came and got you.’’
According to Flanagan he asked Williams why he was
‘‘pushing it there.’’ Williams replied, ‘‘That’s where he
thought he wanted me to push it.’’
Lohrke’s version of the rotor incident follows: ‘‘I walked
to it and heard Flanagan talking to Williams.’’ Flanagan said
that Williams ‘‘could have done lots of damage to it . . .
you guys been told before, if you got any question, not sure,
see Flanagan . . . or Bibber.’’ Of Bibber, Lohrke testified,
‘‘He didn’t say much. He just throw his hard hat on the floor
and walked away.’’
There were no measurement at the time. Lohrke could not
explain why he did not fire Williams on the spot.32
After the rotor incident, according to Bibber, he told
Lohrke that he wanted Williams removed from the site.
Lohrke did not accommodate.
When Williams was transferred to the night shift Lohrke
testified that he said to Flanagan ‘‘I want some people on
nights. We had some new hires, we put them on some nights
too.’’ (Italics hired.) Williams had worked for Bechtel sev-
eral times before. On one occasion he had been employed as
a foreman for about 6 months. Williams had been laid off
four or five times at Turkey Point. Williams testified the
only time while working for Bechtel that anything had been
said about his work was when Lohrke said, ‘‘Put some
elbow grease into what you’re doing.’’ He complied.
Third: In the union election of June 13, 1991, Henry
Dolleman, who at the time was employed by Bechtel at the
Turkey Point site, was running against incumbent Wells for
his $67,000-a-year job as business manager and financial
secretary. Dolleman had run against Wells in a prior election.
Dolleman was first employed by Bechtel May 6, 1991. He
was laid off on June 17, 1991. Dolleman worked for a period
of about 6 weeks. Dolleman was assigned to cleaning nuts
and bolts. He used a bench grinder ‘‘with a grinder wheel
. . . on one end a wire brush . . . on the other end.’’
On June 17, when Dolleman reported for work he asked
Flanagan if he could be given a new assignment where he
could learn more about turbines. Flanagan replied that he
needed Dolleman for cleaning nuts and bolts. During that
day several people told Dolleman that he was being laid off.
In the afternoon about 1 o’clock Flanagan directed Dolleman
to get his lunchbox; that he was being laid off. Flanagan
said, ‘‘things were a little slow right now.’’ The explanation
on Dolleman’s notice of termination was ‘‘Reduction in
Force’’ (G.C. Exh. 12). It was signed by Flanagan.
Bibber apparently considered Dolleman a very unsatisfac-
tory employee and complained to Lohrke about his work
habits three times.33 Some of the habits of which Bibber was
critical were: he cleaned nuts and bolts slowly; he engaged
in conversation when he should have been working; and he
spent too much time smoking. Finally Bibber demanded of
Lohrke that Dolleman be put off site that ‘‘very same day.’’
On that very same day, according to Wells, Flanagan men-
tioned to him during a telephone conversation about 10 days
before the election that ‘‘Dick Bibber had gone nuclear, was
his words, about Henry Dolleman. He was going to fire him
on the spot.’’ ‘‘This is really playing into their hands. It’s
going to look like [we] had something to do with it.’’ Wells
explained that ‘‘there had been mention on the floor of the
meeting that people were putting their livelihoods on the line
to run against me and my team that I nominated. . . . in
fact, he had put it in a letter three years previously when he
ran against me.’’ Flanagan asked Wells whether he should
try to stop the discharge. Wells replied ‘‘ . . . if you can
suggest . . . keep him on, it would be better.’’ Wells testi-
fied he made this suggestion because ‘‘it wouldn’t look like
there was hanky panky played before the election, and it
wouldn’t look bad towards myself [and] Jim.’’
Flanagan testified that about 10 days before the election
Bibber told him he wanted Dolleman fired. Shortly after-
wards Flanagan called Wells and discussed Dolleman’s firing
with him. Flanagan further testified
When Dick Bibber came and he—Dick Bibber—was
screaming and hollering about getting [Dolleman] off
the job.
I had a discussion with Werner Lohrke about the
elections we were having at the time, that if we laid
him off at the time, and if he somehow became busi-
ness agent, he might have it out for Bechtel for firing
him on the job. . . . And the elections and something
like this coming out of it, and then believing that it was
all done for policies.
Flanagan asked Lohrke to keep him ‘‘if it would be pos-
sible.’’
Lohrke testified that Bibber had asked him to ‘‘get’’
Dolleman ‘‘off of the job.’’ Lohrke told Flanagan that he
was going to let Dolleman go.34 According to Lohrke, Flana-
gan ‘‘come back to [him] and asked [him] to keep him until
after the election.’’ Flanagan advised Lohrke he wanted him
to keep Dolleman ‘‘because he didn’t want to stir up any
problems with the—they say it was because the election
coming up, or something. That’s what he said. He told me
he was running for office.’’ Lohrke then took the matter up
with Bibber. Bibber agreed to keep Dolleman and said
‘‘we’ll do it then after the election.’’ Lohrke testified, ‘‘Right
after election I was supposed to fire Mr. Dolleman. I talked
to Bibber again and he agreed just lay him off, instead of
fire him.’’
Bibber testified that Lohrke came to him and presented the
union problems connected with Dolleman’s discharge. Bibber
thought about it and near the end of the day he told Lohrke
that he was ‘‘receptive to his request,’’ but Dolleman should
not continue in employment beyond the first scheduled lay-
off. At that time according to Bibber no layoff was sched-
uled.
Dolleman was laid off on June 17, 1992. Dolleman testi-
fied that Flanagan had never spoken to him about his work
performance and Lohrke told him once that he should use a
47BECHTEL CONSTRUCTION CO.
35 Dolleman suggested that dues be reduced.
36 ‘‘Under Board precedent, a prima facie case may be established
by the record as a whole and is not limited to evidence presented
by the General Counsel. . . . The Board’s precedent allows the
judge to analyze the prima facie case based on all record evidence.’’
Greco & Haines, Inc., 306 NLRB 634 (1992).
37 The General Counsel has pointed out:
The layoff took place on Monday, June 17. Thereafter, for the first
and only time since at least May 31, employees had to work at dou-
ble time rates on the Sunday following the layoff (June 23), when
they worked over 100 hours. Put another way, there was plenty of
work for Dolleman and the others who were laid off on June 17.
In fact, so much work that other millwrights had to work the follow-
ing Sunday in order to make up the work the four laid-off employees
would have performed had they not been laid off. Also, by the sec-
ond week after the June 17 layoff, the total number of hours mill-
wrights worked exceed the hours worked before the layoff. Addition-
ally, the average number of daily overtime hours worked escalated
from 49 the week before the layoffs to 75 the week after the layoffs.
Indeed the average number of hours worked per employee per week
increased 17 percent the week after the layoff and 22 percent 2
weeks after the layoff. It is also significant that Bibber, Lohrke, and
Flanagan gave inconsistent reasons for layoffs.
bigger wire wheel. Bibber never spoke to Dolleman at all
about his work. When asked why he did not, Bibber replied
‘‘That’s a good question; I don’t know. I just didn’t.’’
Lohrke testified that he had never spoken to Dolleman
about his work performance. Flanagan testified that he had
spoken to Dolleman once about his performance.
Dolleman worked on Saturday and was laid off on Mon-
day. No one had told him of his forthcoming layoff.
During the election campaign, Dolleman campaigned with
zeal. He issued a campaign letter a week before the election
very critical of his opponent. One paragraph read:
My opponent’s experience speaks for itself. Dues are
up,35 Representation is down and he is a tyrant. Do we
need his kind of experience? It hasn’t done us any good
during the last three years. [G.C. Exh. 14.]
Later on November 18, 1991, Dolleman went to work for
Bechtel on the Dania site. His work there was deemed satis-
factory.
Fourth: In Wright Line, 251 NLRB 1083 (1980), the Board
established that if the General Counsel makes a prima facie36
showing sufficient to support inference that protected con-
duct was the ‘‘motivating factor’’ in the employer’s decision
to discharge or lay off, the burden shifts to the employer to
demonstrate that the discharge or layoff would have taken
place even in the absence of protected conduct.
In the case of the three alleged discriminatees, Sterba, Wil-
liams, and Dolleman, the General Counsel’s prima facie case
is supported by the following credible evidence.
1. Bechtel’s daily timesheets reveal that at the time of the
layoffs on June 17, 1991, there was not a lack of work suffi-
cient to justify the alleged reduction of force.37
2. Shortly before Bechtel effected the layoff it had estab-
lished a second shift and was in the process of establishing
a third shift to service the oil flush.
3. The three employees, all of whom were active in their
opposition to the union administration and the Wells team in
the union election, were laid off 3 days after the election.
4. Bechtel was aware of the identify of the Union’s offi-
cers and that they had run for election in the union election.
5. The knowledge of Flanagan, as a supervisor within the
meaning of the Act, under the circumstances here is imputed
to Bechtel.
In the case of Sterba, the General Counsel’s prima facie
case is supported by the following credible evidence:
1. Sterba had opposed the dues increase which was fa-
vored by his general foreman, Flanagan, and the union ad-
ministration.
2. Sterba nominated Williams for a union office which
Sterba’s general foreman, Flanagan, was seeking.
3. Belliveau, a part of the union administration, lodged a
threat of reprisal against Sterba after he had nominated Wil-
liams.
4. When Sterba inquired why he was laid off Lohrke stat-
ed that ‘‘it wasn’t up to him, to go see Flanagan because he
didn’t want any problems on the job with Jim Flanagan.’’
5. When Sterba asked Flanagan why he was laid off
Flanagan answered, ‘‘After you screwed me and the Union,
there’s no way . . . [y]ou’re gone.’’
6. At the time Sterba was laid off there were four travelers
working.
7. Lohrke viewed Sterba as a hard worker and otherwise
he would not have been laid off.
8. Sterba stated that although he had asked for a layoff,
which had been denied, he changed his mind which he had
communicated to Lohrke and Belliveau.
9. Sterba had been cleared for layoff by Lohrke with
Flanagan.
In the case of Russell C. Williams the prima facie case is
supported by the following credible evidence.
1. Williams was laid off on the same day as Sterba who
was discriminatorily discharged because of his internal union
activities.
2. Williams had criticized and displeased Wilds and Wells
to the point where they had filed charges with the Union
against him in order to insulate their election campaigns
against Williams’ claims.
3. Williams had opposed the dues increase favored by the
administration.
4. Williams had run against his boss, Flanagan, and the
Wells team for a union office.
5. Wells threatened Williams with reprisals. ‘‘I [am] going
get you; you’re through, George.’’
6. Williams shortly before he was laid off was transferred
to the night shift because he was a ‘‘fair millwright’’ and
‘‘would be good for the night shift,’’ which negates his al-
leged incompetency as a millwright.
7. After being told to use more elbow grease Williams’
performance improved.
8. Williams had previously satisfactorily worked for Bech-
tel and on occasion filled the job as foreman.
9. There was a ‘‘large amount’’ of work to be done when
Williams was laid off.
In the case of Henry Dolleman the General Counsel’s
prima facie case is supported by the following evidence:
1. Dolleman was opposed to a dues increase which was
favored by the Union’s Administration.
2. Dolleman was running against Wells $67,000-a-year job
business manager and financial secretary.
3. Dolleman was laid off 3 days after he lost the union
election.
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 Lohrke and Bibber each admitted that they had never spoken to
Dolleman about his work habits. Dolleman denied that Flanagan had
spoken to him.
39 As stated by the Board in Roadway Express, 108 NLRB 875
(1954):
[C]redibility findings may rest entirely upon evidence through
observation which words do no [sic] and could not preserve or
describe.
40 ‘‘[T]he ‘real motive’ of the employer in an alleged § 8(a)(3)
violation is decisive.’’ NLRB v. Brown Food Store, 380 U.S. 278,
287 (1965). ‘‘It is the ‘true purpose’ or ‘real motive’ in hiring or
firing that constitutes the test.’’ Teamsters Local 357 v. NLRB, 365
U.S. 667 (1961). ‘‘Section 8(a)(3) prohibits discrimination in regard
to tenure or other conditions of employment to discourage union
membership. . . . It has long been established that a finding of vio-
lation under this section will normally turn on the employer’s moti-
vation.’’ American Ship Building Co. v. NLRB, 380 U.S. 300, 311
(1965).
4. Dolleman had never been criticized for bad work habits
or threatened with discharge.38
5. No one in management had advised Dolleman he was
slated for layoff until the day of the layoff. His layoff was
precipitous; he worked on Saturday and was laid off on
Monday.
6. Dolleman was rehired by Bechtel at Dania where his
work was rated satisfactory.
7. Dolleman’s job was a lesser skilled job which did not
appear to warrant the close scrutiny which Bibber claims he
gave it.
Apparently the Respondent’s positions is that the layoffs
were effected because Bibber had determined that there was
a lack of available work; and that Williams and Dolleman
were laid off because Bibber wanted them off site; and that
Sterba was laid off because he asked to be laid off. To sup-
port the Respondent’s position, except as to Sterba, Bibber
must be found to be a credible witness. I do not find Bibber
to be a credible witness. I have carefully considered de-
meanor39 Bibber’s testimony was tailored to benefit Bechtel
and the Union and to afford them pretense for their unlawful
action; he assumed the blame for their misconduct. Several
factors no doubt caused the slanting of his testimony. One
may have been fear of union reprisals or a desire to court
union favor. According to Bibber’s testimony both he and
Lohrke yielded to the Union’s demand to help the Wells’
slate from facing the charge in the election that members
who ran against the incumbent administration would put their
jobs in jeopardy. Thus according to Bibber, he and Lohrke
assisted the incumbents in their election bid and performed
for them a favor. Moreover, Lohrke said he wanted no prob-
lems with Flanagan whom he knew to be a union officer.
Another factor which may have inferenced Bibber’s testi-
mony, is that he may have been grateful that his on had been
accepted in the Union trainee program and employment at
Bechtel.
In regard to Dolleman, Bibber insisted that he wanted him
off site yet incongruously neither her nor Lohrke spoke to
Dolleman about his alleged work related deficiencies. Indeed,
if Bibber is to be believed, he, a busy man, spend what ap-
pears to be an inordinate amount of time watching Dolleman.
As I observed Bibber did not seem to be the kind of busy,
active manager with many responsibilities who would devote
so much time watching a low level employee. Moreover,
Bibber did not appear to be the kind of manager who would
allowed Dolleman to continue without bringing his objection-
able work habits to his attention. Nor did Bibber appear to
be the kind of person who would go ‘‘nuclear’’ over
Dolleman’s conduct. The motivating reason behind
Dolleman’s discharge was the same as that for Sterba and
Williams.
In regard to Williams, he was targeted for the same reason
as Dolleman. Contrary to the assertion of Bibber and the Re-
spondents, Williams was a good employee; his prior work
record with Bechtel was good; he was considered a fair mill-
wright when he was transferred to the night shift; in respect
to the rotor incident he was sharp enough to catch an erro-
neous instruction. Nevertheless, Respondent Bechtel claims
that it laid off Williams because Bibber wanted him fired be-
cause of the rotor incident. If that claim were valid there is
no explanation as to why Lohrke did not fire Williams on
the spot or as to why he was transferred to the night shift
where he would ‘‘be good’’ for the night shift. Considering
Williams’ length of service, his prior good work record, his
ability as a millwright, and his choice for the night shift it
appears that in the ordinary course of events he would not
have been chosen for layoff. No credible evidence has been
offered to support a finding that except for the discrimination
levied against him, he would not have stayed on the night
shift.
Since Sterba was a good employee with long seniority and
one whom Bechtel would have kept, and since he had ad-
vised Bechtel that he wanted to stay, no credible reason ob-
tains for his layoff if discrimination is not considered. Had
not Flanagan and the Union interposed hardworking Sterba
would have remained. Flanagan and the Union called the
shots.
The relationships between the three layoffs are inextrica-
ble. The nexus between the layoffs are obvious. The real mo-
tive40 of Bechtel, in laying off the three employees, was to
accommodate the Union which wanted Bechtel to lay off the
three employees in reprisal for their participation in inner
union activities. The message to the union membership obvi-
ously could not have been lost.
The General Counsel’s consolidated complaint alleging
that the Respondent, by the layoff of Sterba, Williams, and
Dolleman, on June 17, 1991, violated Section 8(a)(1) and (3)
of the Act and that Local 1026 violated Section 8(b)(1)(A)
by requestioning Bechtel to make such layoffs because of
said employees’ participation in internal union affairs is sup-
ported by a preponderance of the credible evidence in the
record as a whole, I so find. See Office Employees, 307
NLRB 264 (1992). I am convinced that Sterba, Williams,
and Dolleman would not have been laid off if they had not
engaged in activities protected by Section 7 of the Act.
According to the testimony of Wells, Flanagan, Lohrke,
and Bibber, Bechtel, upon the request of the Union through
Flanagan, in delaying the discharge of Dolleman, accommo-
dated the Union by removing any implication that, by dis-
charging Dolleman, jobs of candidates who ran against the
Wells team were in jeopardy. Thus Bechtel aided the pros-
pects of the incumbents including, of course, Wells and
Flanagan, who engineered the incident. Whether or not
Lohrke, Bibber, or Flanagan were telling the truth or lying,
the indication is that Bechtel was willing to accommodate
the union administration and placate it either by withholding
49BECHTEL CONSTRUCTION CO.
41 It would seem highly unlikely that Bechtel, having been charged
with discrimination against Dolleman on September 24, 1991, in the
consolidated complaint would have almost immediately committed
the same offense.
a discharge or fabricating testimony as a defense in this ac-
tion. The same persuasion that induced Bechtel to favor the
Union by not discharging Dolleman conditioned the layoffs
of Sterba, Dolleman, and Williams. It is again obvious that
Bechtel accommodated the Union and advanced its objective
to teach members who bucked the administration a lesson.
Conveniently, at the time the boom was lowered, Wells and
Flanagan were safely elected. None connected with the inci-
dent could be so naive as to not know the effect the layoffs
have in the union would have had on the union membership
following so closely on the heels of the election. It suggested
‘‘hanky-panky.’’ Indeed it is significant that Wells and his
team waited until the effect of their misconduct would not
adversely effect their own election prospects but would con-
vey a message to the union membership. Nevertheless, Bech-
tel acquiesced. It must have known what was occurring and
what the inferences were. The layoffs were in retaliation for
the employees’ exercise of their rights to engage in internal
union activities.
Even had I not found that the layoff was machinated I
would find that the choice of Sterba, Williams, and Dolleman
for layoff was discriminatory.
The Dual Status of James Flanagan
Flanagan, as I have found, was a supervisor within the
meaning of the Act. He also, during his period of
supervisorship, was the treasurer, District Council delegate,
State Council Convention, and member of the executive
board of the Union. He was present at the executive board
which considered accusation against Williams, participated in
Williams’ trial, and allegedly intervened in the Dolleman in-
cident. Flanagan, as a supervisor, also cleared the layoffs of
Sterba, Williams, and Dolleman, employees who were laid
off because of their internal union activities. Flanagan played
both ends; Bechtel did not demur.
‘‘Employees have the right to be represented in collective
bargaining negotiations by individuals who have a single
minded loyalty to their interests.’’ Nassau & Suffolk Con-
tractors Assn., 118 NLRB 174, 187 (1957).
Bechtel’s employment of Flanagan as a supervisor within
the meaning of the Act offended this well-established rule.
Under the circumstances appearing before me, Bechtel vio-
lated Section 8(a)(2) and (1) of the Act by employing Union
Officer James Flanagan as a supervisor within the meaning
of the Act.
The Failure to Recall Henry Dolleman at the Florida
Power and Light Company
Dolleman was referred to Bechtel’s Florida Power and
Light Company’s site on November 18, 1991, by the Union,
and was laid off on December 6, 1991. Although millwrights
were hired through the union hall, after the layoff Dolleman
was not recalled by name. The General Counsel claims that
the failure to recall Dolleman by name was discriminatory.
Dolleman asserts that the general foreman and union vice
president, Richard Matthews, told the laid-off millwrights
that they would be recalled. Matthews did not affirm
Dolleman’s testimony.
I do not find that the General Counsel has established a
prima facie case and, accordingly, I dismiss the complaint in
Case 12–CA–14856.41
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and it will effectuate the purposes of the Act for jurisdiction
to be exercised.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By permitting Respondent Local 1026’s treasurer, James
Flanagan, to serve as a supervisor within the meaning of the
Act in on or about January 1991 to July 16, 1991, Respond-
ent Bechtel rendered assistance and support to Respondent
Local 1026 in violation of Section 8(a)(1) and (2) of the Act.
4. By laying off Michael R. Sterba, Russell C. Williams,
and Henry Dolleman because they engaged in internal union
activities of Respondent Local 1026 and in order to discour-
age employees from engaging in such activities, Respondent
Bechtel violated Section 8(a)(1) and (2) of the Act.
5. By unlawfully causing Respondent Bechtel to lay off
Michael R. Sterba, Russell C. Williams, Henry Dolleman,
Respondent Local 1026 violated Section 8(b)(1)(A) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I recommend that they cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. Having also unlawfully
laid off Michael R. Sterba, Russell C. Williams, and Henry
Dolleman and has failed to reinstate them in violation of the
Act, it is recommended that Respondent Bechtel remedy such
unlawful conduct. In accordance with Board policy, it is rec-
ommended that Respondent Bechtel offer the above-named
persons immediate and full reinstatement to their former po-
sitions or, if such position no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights and privileges previously enjoyed, dismiss-
ing, if necessary, any employee hired on or since the date
of their layoffs to fill the positions, and make them whole
for any loss of earnings they may have suffered by reason
of Respondent Bechtel’s unlawful acts herein detailed, by
payment to them of a sum of money equal to the amount
they would have earned from the date of their unlawful dis-
charges to the date of valid offers of reinstatement, less their
net interim earnings during such periods, with interest there-
on, to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Local 1026 shall also be liable for any backpay owed
said discriminatees.
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
43 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’ 44 See fn. 43 supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended42
ORDER
A. The Respondent, Bechtel Construction Company, Flor-
ida City, Florida, its officers, agents, successors, and assigns,
shall
1. Cease and desist
(a) Unlawfully laying off employees because they engaged
in internal union activities and in order to discourage em-
ployees from engaging in such activities.
(b) Unlawfully assisting and supporting a union by permit-
ting an officer of a union to serve as its supervisor within
the meaning of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Michael R. Sterba, Russell C. Williams, and
Henry Dolleman immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to a substan-
tially equivalent position, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
layoffs of the above-named employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its Cape Canaveral, Florida establishment cop-
ies of the attached notice marked ‘‘Appendix A.’’43 Copies
of the notice, on forms provided by the Regional Director for
Region 12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. The Respondent, Millwrights, Piledrivers, Divers, and
Highway Constructors Local Union 1026, United Brother-
hood of Carpenters and Joiners of America, AFL–CIO, its
officers, agents, successors, and assigns, shall
1. Cease and desist
(a) Unlawfully causing the layoffs of employees because
they engaged in internal union activities and in order to dis-
courage employees from engaging in such activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Advise the Bechtel Construction Company that it has
no objection to its reinstatement of Michael R. Sterba, Rus-
sell C. Williams, and Henry Dolleman.
(b) Make Michael R. Sterba, Russell C. Williams, and
Henry Dolleman whole for any loss of earnings and other
benefits they may have suffered by reason of the unfair labor
practices found against Local 1026.
(c) Post at its Hallandale, Florida union hall copies of the
attached notice marked ‘‘Appendix B.’’44 Copies of the no-
tice, on forms provided by the Regional Director for Region
12, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the consolidated com-
plaint be dismissed insofar as it alleges violations of the Act
other than those found in this decision.