Operating Engineers Local 675 (Multi-Craft Installation)

National Labor Relations Board - Board Decisions

Aug 23, 1984

271 N.L.R.B. 1227 (N.L.R.B. 1984)

OPERATING ENGINEERS LOCAL 675 (MULTI-CRAFT INSTALLATION)
International Union of Operating Engineers, AFL-
CIO, Local Union 675 (Multi-Craft Installation
Services, Inc.) and Thomas 0. Flowers. Case
12-CB-2438
23 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 23 September 1983 Administrative Law
Judge David S. Davidson issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The 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 recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Union of Operating Engineers, AFL-CIO, Local
Union 675, its officers, agents, and representatives,
shall take the action set forth in the Order, except
that the attached notice is substituted for that of
the administrative law judge.2
L The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 We have modified the notice to conform to the judge's recommended
Order.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause, or attempt to cause, Multi-
Craft Installation Services, Inc., or any other em-
ployer, to discriminate against Thomas O. Flowers
or any other employee, because such employee has
engaged in activities in connection with an internal
union election which are protected by the National
Labor Relations Act.
WE WILL NOT restrain or coerce Thomas O.
Flowers or any other employee in the exercise of
271 NLRB No. 190
his rights guaranteed by the Act by threatening
him with loss of employment in retaliation for his
failure to support an incumbent officer's reelection
campaign or promising him employment in return
for such support.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act,
except to the extent that such rights may be affect-
ed by an agreement requiring membership in a
labor organization as a condition of employment as
authorized by Section 8(a)(3) of the Act.
WE WILL make Thomas O. Flowers whole for
any loss of wages and benefits suffered by reason
of the discrimination against him with interest
thereon.
WE WILL notify Thomas O. Flowers and Multi-
Craft Installation Services, Inc., in writing, that we
have no objection to Flowers' employment by
Multi-Craft, and WE WILL request that Multi-Craft
rehire Flowers.
WE WILL expunge from our files any references
to the termination of Thomas O. Flowers and
notify him in writing that this has been done and
that the incident involving the unlawful termina-
tion will not be used as a basis for future actions
against him and WE WILL request that Multi-Craft
do the same.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, AFL-CIO, LOCAL
UNION 675
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge. The
charge in this case was filed on September 9, 1982, by
Thomas O. Flowers. The complaint issued on October
22, 1982, alleging that Respondent violated Section
8(b)(1)(A) and (2) of the Act by causing Multi-Craft In-
stallation Services, Inc. to discriminate against Flowers
because he failed to support Respondent's business man-
ager Dennis Walton in an internal union election and by
threatening loss of employment and promising continued
employment based on employees' support of Walton in
the union election.' In its answer Respondent denied
committing any unfair labor practices.
The hearing in this case was held before me in Miami,
Florida, on January 6, 1983. Briefs have been received
from the General Counsel and Respondent.
Initially this case was consolidated with Case 12-CA-10334 in which
Multi-Craft Installation Services was the Respondent Before the hearing
opened Case 12-CA-10334 was settled, the portion of the consolidated
complaint based on that charge was withdrawn, and the cases were sev-
ered
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record in this case including my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Multi-Craft Installation Services, Inc. (Multi-Craft) is a
Delaware corporation, with an office and place of busi-
ness in Port Everglades, Florida. It furnishes labor and
administrative support in connection with the business of
mechanical contracting, including the mechanical erec-
tion and installation of a container crane at Port Ever-
glades, Florida. During the 12 months preceding issuance
of the complaint, Multi-Craft received materials at its
Port Everglades, Florida facility valued in excess of
$50,000 directly from points outside the State of Florida.
I find that Multi-Craft is an employer engaged in com-
merce within the meaning of the Act and that it will ef-
fectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Flowers' employment on the Multi-Craft job
Thomas Flowers has been a member of Respondent
Union for a number of years. Shortly before June 1,
1982,2 Flowers visited Respondent's hall and spoke to
Business Manager Dennis Walton. He told Walton that
he had been out of work, that he did not condone some
of the activities of some of Respondent's members, and
that he had supported the Union for many years. Walton
asked Flowers for his support and said that he had a job
available at Port Everglades working for Multi-Craft on
the construction of a gantry crane. He said that he was
trying to set a precedent on the job and that if Flowers
were there he would be working as a "compositor" with
the Ironworkers Union in the hopes of establishing a
precedent for manning future jobs calling for the con-
struction of gantries. Walton also said that he wanted
Flowers' friendship and support in the field and asked
Flowers to police the job and to make sure that other
operating engineers on the job were supporting Walton
as well. Walton told Flowers that he wanted to know if
there was anyone on the job who did not support him
because he did not want anyone working there who did
not support him with an election for officers coming up.3
2 All dates which appear herein occurred in 1982 unless otherwise in-
dicated.
3 Flowers so testified, and added that Assistant Business Manager
Gagne was present during parts of the conversation. Although both
Walton and Gagne were called as witnesses and contradicted Flowers in
a number of other respects, neither was asked about this conversation.
Indeed Walton, who testified that he normally left the day-to-day oper-
ation of the referral system to Gagne, testified that he sent Flowers to the
Multi-Craft job but did not otherwise describe his conversation with
Walton referred Flowers to the job and he started to
work on June 1.
2. Flowers' arrangement for a replacement on the
job
On the night of July 4, Flowers' younger brother was
killed in an automobile accident. Flowers was due to
report back to work on July 6. He attempted to contact
the union hall on Monday, July 5, in order to obtain a
replacement but the office was closed, and on July 6 he
reported back to the jobsite, more than 200 miles from
his home. On that day he asked his supervisor, Reggie
Caouette, who was field coordinator for Multi-Craft, if
he could take the following Friday off in order to attend
his brother's funeral. Caouette said there would be no
problem. Flowers asked whether Caouette wanted him
to arrange for another operator to replace him for the
day, and Caouette replied that he would rather pay
Flowers for the day than go through all the paperwork
required for a 1-day replacement. Caouette said that
Flowers could take Friday off as long as he returned the
next day.
On the next day, Flowers spoke by telephone with Re-
spondent's business agent, Randy Coston, who serviced
the Port Everglades jobsite. Flowers told Coston that he
needed to take time off to attend the funeral, and Coston
told him that he should call the union hall to arrange for
a replacement and that there should be no problem. 4
That afternoon Flowers spoke by telephone to Dennis
Walton's secretary, Shiela Brown. He left a message for
Walton that his brother had been killed, that he was in
bad financial trouble, that he had the funeral to pay for,
that he had not had work for very long, that he had
always contributed to any collection of funds for any op-
erator with a financial problem, and that he would like
to have a little help himself if he could get it. Brown
told him that she would talk to Walton when he came in
and would relay the message to him.5
On Thursday, July 8, Flowers again spoke to Caoutte
about taking the following day off for his brother's fu-
neral. Caouette again said that he would prefer that
Flowers merely take the day off without obtaining a re-
placement. With Shop Steward Lee Browns present, at
around 2 p.m., Flowers telephoned Coston and told him
of Caouette's proposal. Coston said that he would prefer
to have a man sent from the local hall to cover the job,
and Flowers obtained Caouette's approval to obtain a re-
placement for the day. Flowers then gave Coston the in-
Flowers at the time of his referral. Respondent contends that Flowers'
testimony as to this conversation should be discredited as improbable be-
cause he was the first operating engineer employed by Multi-Craft on the
jobsite. There were, however, operating engineers employed by other
contractors at the jobsite when Flowers was sent there, and two addition-
al operating engineers were added by Multi-Craft before Flowers left the
job. In these circumstances and in the absence of contradiction I have
credited Flowers.
4 Flowers and Coston both testified to this conversation. There are
minor variations in their testimony which are not material.
I Flowers testified to this conversation without contradiction. Walton
denied any knowledge of the information conveyed by Flowers to
Brown until Monday. July 12.
6 Brown worked for another contractor at the jobsite but had been
designated to serve as shop steward for Multi-Craft as well as his own
employer.
1228
OPERATING ENGINEERS LOCAL 675 (MULTI-CRAFT INSTALLATION)
formation about the replacement, and Coston transferred
the call to Candida Cacciatore, the secretary who nor-
mally took requests for job referrals. 7
Flowers told Cacciatore that he wanted to place a job
order, and she proceeded to fill out a job-referral form,
asking him questions as she filled in each blank. She
asked who the contractor was, where the jobsite was,
what type of equipment would be run, who the operator
was, and who was placing the order. In response to the
last question, Flowers told her his name and said that he
was replacing himself on the job. Flowers did not tell
her the reason for the replacement or that it was for a
single day. 8
3. Coston's resignation as business agent
On the same day that Flowers called to arrange for his
replacement, Respondent had scheduled an evening
membership meeting for the purpose of receiving nomi-
nations for the election of officers and trustees. Earlier
that morning at about 10:30, Coston had met with
Walton and Assistant Business Manager Gagne. At that
time, Gagne asserted that Coston had never supported
Walton and was not going to support him in this elec-
tion. Coston replied that he supported Walton but, if Gus
Chandler ran for business manager, he would support
Gus Chandler. According to Coston, Walton and Gagne
did not know at the time whether Chandler would run
for the office of business manager and expressed doubt
that he would.
After lunch Business Agent Bob Peters was called into
Walton's office, and half an hour later he emerged telling
Coston and Business Agent Jimmy Hester that Walton
had fired him. Shortly after that, Hester was called in
Walton's office, and when Hester came out he told
Coston that he had told Walton he would turn in his
credit cards and keys and would leave. Coston was
called into Walton's office and was questioned again
about supporting Walton or Chandler in the election. He
again replied that if Chandler did not run, he would sup-
Flowers and Coston testified to their conversation and were in essen-
tial agreement. Brown and Caouette were not called as witnesses. While
both Coston and Flowers testified that Coston referred Flowers to Cac-
ciatore, Cacciatore testified that Flowers' call came directly to her. While
I generally credit Cacciatore's version of her conversation with Flowers,
in this respect the version of Flowers and Coston is more likely, and the
origin of the call is a detail Cacciatore could easily have forgotten.
a Cacciatore so testified. Flowers testified that in addition to the above
he told Cacciatore that the replacement would be for only I day and was
needed because of his brother's funeral. According to him, during the
conversation he gave the phone to Caouette who verbally authorized the
replacement, and Caouette returned the phone to him to complete the de-
tails. I credit Cacciatore whose testimony is corroborated by the job re-
ferral slip which shows only the information which she testified that
Flowers gave her. It is highly probable, as she testified, that if Caouette
had spoken to her or if Flowers had given her the additional information,
she would have noted the additional information on the referral slip.
While at first blush, it seems likely that Flowers would have mentioned
the duration if not the reason for the replacement, his failure to do so
becomes more likely when placed in the context of his prior conversation
with Coston. In the light of that conversation it becomes improbable that
Flowers on his own initiative would have put Caouette on the phone to
authorize what Coston had already approved. Flowers' further testimony
that he called Coston about an hour later to tell him that the starting time
had changed and that Coston again referred him to Cacciatore to take
the information, was denied by Coston as well as Cacciatore, who was
again corroborated by the job referral slip.
port Walton but if Chandler ran, he would support
Chandler. By then Coston knew that Chandler was
going to run for business manager. Sometime around 3
or 3:30 p.m., Coston decided that he would be next to be
fired and decided to quit to avoid further conversation
about it. He gave his credit cards and keys to secretary
Jane Harms and left saying nothing further to Walton or
Gagne. He did not brief anyone on the problems he was
currently handling and said nothing to anyone about
Flowers' replacement.
4. The referral of Flowers' replacement
After taking the job order from Flowers, Cacciatore
tried unsuccessfully to give it to Coston or another busi-
ness agent to fill, but none was there. Later in the after-
noon she brought it to Gagne. Gagne asked her why she
took a job order from an operator and told her it was
not the correct procedure. She replied that she did not
know that she could not take an order from an operator
who was replacing himself on a job. After he received
the job order, Gagne asked Walton if Walton knew any-
thing about it as Coston had already left. Walton did not,
and they tried to call the contractor at the number
which appeared on the job order but they were unable
to reach anyone.' At that point Gagne arranged for an-
other operating engineer to report to the Multi-Craft job
the next morning.
5. Respondent's nominations meeting
Respondent's nomination meeting was held that
evening and was attended by 500 or more members.
Flowers took an active role in the meeting, successfully
moving to dispense with all business other than nomina-
tions and nominating three candidates for the positions of
recording secretary, trustee, and guard. The last office
for which nominations were taken at the meeting was
business manager. Respondent's vice president Fritz Rob-
erts, who chaired the meeting, nominated Gus Chandler
for business manager, another member nominated
Walton, and nominations were closed. Roberts then so-
licited and obtained a motion to adjourn. He then, how-
ever, recognized a member who moved that the election
be held by mail ballot instead of by voting machine.
Roberts accepted the motion and called for a voice vote.
After ruling that the motion was defeated, he adjourned
the meeting. At that point a number of people were call-
ing for a division of the house and, when Roberts ad-
journed the meeting, there was considerable uproar.
Chandler's supporters rose and started to leave, while
Walton's supporters called for the meeting to continue in
order to divide the house on the mail-ballot issue.
Walton came to the microphone in an attempt to recon-
vene the meeting, but Roberts turned it off. There was a
9 Flowers' testimony that he had observed that the trailer where the
telephone was located was usually manned at the time of the call is not
sufficiently probative to warrant discrediting Walton or Gagne as to their
efforts to reach Multi-Craft.
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
great deal of shouting, and Roberts and Walton had sev-
eral verbal exchanges as Roberts left. 0
Flowers, who had been sitting next to Chandler with a
group of Chandler's supporters, left the hall with Chan-
dler. According to Flowers, as they passed the podium
within a few feet of where Walton was standing, Walton
looked down at him and shouted that there were going
to be a lot of jobs available tomorrow and asked,
"Where are you you son-of-a-bitches going to be work-
ing tomorrow?" After Roberts left the podium and
Chandler's supporters left the hall, Gagne took the chair,
continued the meeting, and called for a division of the
house on the mail-ballot motion among the several hun-
dred members who remained.
6. The termination of Roberts and others from
union positions
With the exception of the business manager, Respond-
ent's elected officers are not paid for service in office.
However, the Union has several paid-staff positions, and
the business manager has the power to appoint and
remove those holding these positions. Roberts had held
paid positions as apprenticeship coordinator, trustee of
the union's pension fund, and owner's agent on a pension
fund construction project. On the day after the nomina-
tion meeting, Walton told Roberts that he was being ter-
minated from these positions because he was not support-
ing Walton and had "wronged him." Others who held
paid positions and did not support Walton were also ter-
minated, concededly for political reasons.
7. Flowers' termination
Flowers had been scheduled to work next on Satur-
day, July 10, the day after his brother's funeral. On July
9, Caouette telephoned him at home and told him that he
was calling to save Flowers the long trip to the jobsite
to learn that he had been terminated. According to
Flowers, Caouette told him that Walton had told
Caouette to terminate Flowers and to instruct him to go
to the union hall if he wanted to discuss the matter. Ac-
cording to Flowers, Caouette also said that Walton had
mentioned that Flowers did not support Walton,
Caouette said that he hated to terminate Flowers, that he
was a good worker, but that Walton told him there
would be problems on the job if he did not.
Caouette was not called as a witness by either side, but
Walton and Gagne testified that, after unsuccessfully at-
tempting to reach Caouette on the afternoon of July 8,
they spoke to him by telephone on July 9 utilizing a
speaker phone with both participating in the conversa-
tion. Their versions of that conversation are described
and discussed below.
On the following Monday, July 12, Flowers went to
the jobsite to pick up his check and again spoke with
Caouette. According to Flowers, Caouette said that
Walton had told him that if Flowers did not support
Walton, Flowers was not going to work there again.
10 These findings are based on the testimony of Roberts and Gagne
who were in basic agreement as to these events. While less complete or
differing in some details, the testimony of Coston, Cacciatore, and
Walton is consistent with their testimony.
After picking up his check Flowers went to the union
hall and spoke to Walton. Flowers testified that he asked
Walton why he was terminated from his job and said
that he did not think he should have been terminated for
taking time off to attend his brother's funeral. He testi-
fied that Walton replied that he was not terminated for
that reason, said that he knew nothing about his brother's
death, and continued, "I sent you out on that job to sup-
port me and to police that job, and to make sure that the
people on that job were supporting me .... I asked
you for your friendship and your support, and you told
me that you would support me. That's why I sent you
out there to work. .... you no good son-of-a-bitch.
You don't support me, you'll not work out of this hall."
According to Flowers, after further loud exchanges, re-
ferring to his request for a collection for his brother's fu-
neral, he told Walton that he had helped Walton's broth-
er when his brother was in a bind, that now he was in a
bind, that he had asked for Walton's help, that he had
gotten nothing, and that he therefore supported his oppo-
sition. According to him, he asked for his job back, and
Walton said that he would never work out of the local if
he did not support Walton. He testified that, after further
exchanges, Walton suggested that they calm down and
talk and then said "Hey you've always been stand up
union man. .... You've been respected in the field, and
I need guys like you in my corner .... I need your
support. I need you to go out into the field. I need you
to talk to these men, and I need you to put up stickers. I
need you to support me in the field .... I need you to
represent me out there. When you came in here and
asked me for a job, I gave you the job because you said
you supported me ... . If you don't support me, I'll see
to it that you never work out of this local again. In fact,
I can see to it that you are physically unable to work out
of this local .... If you support me go out in the field
and let the people get the word back that you are sup-
porting me, and I'll see to it that you have a nice cushy,
easy job when this is over with." He testified that
Walton gave him a handful of pro-Walton bumper stick-
ers, and he left without further argument or protest, but
he did not indicate that he was satisfied or that he would
support Walton. He testified that Walton said that he
would put Flowers' name on the out-of- work list.
Walton in his testimony agreed that when Flowers
came to his office, Flowers was upset about being re-
placed and asked for the reason. Walton testified that he
explained that they had replaced Flowers pursuant to the
job order and that he refused a request by Flowers to be
sent back to the job. According to Walton, Flowers indi-
cated that he was upset with a statement by Coston that
Walton would not give him any money for transporta-
tion for his brother's funeral, and Walton replied that he
was unaware of Flowers' brother's funeral or his request
to Coston, but that union policy and the labor laws pre-
vented the Union from paying anyone treasury money
because one of his relatives passed away. Walton denied
that at any time during the meeting he threatened the
loss of Flowers' job for not supporting him or that he of-
fered to put Flowers' name on the out-of-work list, al-
though he testified that he suggested that Flowers do so.
1230
OPERATING ENGINEERS LOCAL 675 (MULTI-CRAFT INSTALLATION)
According to Walton, Flowers never mentioned that he
had talked to Coston and requested the day off before
obtaining a replacement. Walton denied telling Flowers
that if he would support him in the upcoming election he
would have a good job and made no promise about
future employment. According to Walton, when Flowers
left his office it seemed to him that the problem had been
resolved, they shook hands, and Flowers told him that
he supported him 100 percent and asked for some cam-
paign bumper stickers which Walton gave to Flowers.
He next realized that something was still going on when
Flowers wrote to the International and filed charges
with the Board.
Gagne testified in support of Walton's version that he
saw Flowers that morning as Flowers was leaving carry-
ing Walton bumper stickers and that Flowers simply
shook hands with him and said that he had been lied to
by some "sob's," that he had gotten it straightened out,
and that he was supporting Walton.
8. Walton's election day statement to Flowers
On August 14, the day of the election for union offi-
cers, Flowers drove past Walton who was standing out-
side the voting place. As Flowers passed Walton he
came to almost a complete stop before making a turn.
Walton spoke to him, saying, "You son-of-a-bitch. You
better burn your books, because you'll never work from
this goddam moment again."
Walton received a letter from International Union
President J.C. Turner dated July 23 which enclosed
Flowers' July 15 letter and asked Walton to investigate
the matter. Walton replied on September 30.
B. Concluding Findings
1. The alleged July 8 threat
I cannot credit Flowers that, as he was leaving the
nomination meeting, Walton shouted that there were
going to be a lot of jobs available the next day and asked
where those who were leaving were going to be work-
ing the next day. Despite the fact that Flowers left with
a group of others, no other witness who was called cor-
roborated Flowers, and Walton denied making the state-
ment. Flowers' testimony was also at variance with other
witnesses as to how the meeting ended and as to what
precipitated the disorder at the end of the meeting. I
credit Walton's denial that he threatened anyone with a
loss of jobs at this time and find that Respondent did not
violate the Act at this time as alleged in the complaint.
2. The termination of Flowers
The General Counsel contends that discrimination
against Flowers is shown by evidence of Walton's
animus against those who did not support him, by the
timing of Flowers' discharge, by Walton's statements to
Flowers, and by the pretextual nature of the reasons
given by Walton for not sending Flowers back to his
job.
" Flowers' testimony in this respect was uncontradicted.
Some of the evidence cited by the General Counsel I
find cannot be relied on to show Walton's animus. Thus,
I have not credited Flowers' testimony as to Walton's
threat at the nomination meeting. While Walton conced-
edly threatened to terminate paid staff of Respondent
and did not terminate Roberts and others when their sup-
port for Chandler was revealed, there is no allegation
that those discharges were unlawful. 12 The statements
attributed to Caouette by Flowers in their telephone con-
versation on July 8 and in their face-to-face conversation
on July 12 is hearsay as to Walton and Respondent; it is
neither evidence of an admission attributable to Respond-
ent nor of Respondent's animus.
Apart from the disputed evidence as to the July 12
conversation between Flowers and Walton, considered
below, there is undisputed testimony that Walton on two
occasions made threats to remove members from jobs or
to keep them from getting jobs with employers other
than Respondent. Thus, when Walton first referred
Flowers to Multi-Craft, he asked Flowers to support him
and to make sure that others on the jobsite were support-
ing him as well, telling him that he did not want anyone
on the jobsite who did not support him with the union
election coming up. After Flowers was terminated on
the day of the election, Walton told Flowers that he had
better burn his book because he would never work again.
While these statements are not alleged in the complaint
as independent violations of the Act, they establish that
Walton threatened retaliation against members in their
outside employment as well as retaliation against those
holding paid staff positions and erode his testimony that
based on advice of counsel he distinguished between
lawful political reprisals and unlawful interference with
members' outside employment.
The General Counsel would attach significance to the
fact that Flowers was told he had been permanently re-
placed the day after the nomination meeting in which he
took an active role. Respondent would discount the sig-
nificance of Flowers' role in the nominations process, re-
lying on Walton's testimony that Flowers made no nomi-
nations at the meeting which would lead him to believe
that Flowers opposed him, that there were 30 to 40
nominations made, paid no particular attention to Flow-
ers' nominations as opposed to others. However, Walton
did not directly deny awareness of Flowers' role in the
meeting, and his testimony is not convincing as a denial
of awareness of Flowers' support of the rival candidate.
Walton was aware that Chandler's supporters were sit-
ting in a group, and it is undenied that Flowers was with
them. Two opposing slates were formed, and the persons
that Flowers nominated were on the slate opposed to
Walton. Walton was not inexperienced in internal union
politics, and both before and after the meeting clearly
conveyed to Flowers and union staff the importance of
his having their support. I find it high,3 unlikely that
Walton, Gagne, and Walton's supporters did not pay
close attention to the identity of those who made nomi-
nations, particularly if, as Walton testified, he knew
before the meeting that Chandler would be nominated to
12 See Finnengan v. Lef4, 456 U.S. 431.
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
oppose him. I find the inference warranted that Walton
became aware on the night of the nomination meeting
that Flowers was supporting Walton's opposition and
therefore that the timing of the notification to Flowers
that he was permanently replaced in relation to his role
at the meeting the previous night is significant.
The testimony concerning the considerations which
led to Flowers' permanent replacement and the conver-
sation between Walton and Caouette present more sub-
stantial problems. First, it is the General Counsel's
premise that both as a result of what Coston knew and
what Flowers told Cacciatore, Respondent was aware at
the time the replacement for Flowers was sent to the
jobsite that Flowers intended to return on the following
workday. However, Coston conceded that he left the
union hall and his job shortly after his conversation with
Flowers and did not communicate what Flowers had
told him to any one else. While Coston was an agent of
Respondent at the time Flowers spoke to him, he was
clearly not a witness who was friendly to Walton and
the incumbent union leadership at the time he testified.
There is no reason to discredit his testimony in this
regard. In the light of his voluntary separation almost
immediately after he spoke to Flowers, I find that what
Flowers told Coston is not attributable to Walton or to
Respondent generally. Furthermore, I have found above
that Cacciatore's testimony, supported by the job referral
slip, is to be credited that Flowers did not tell her that
he wanted to be replaced for I day only.
Thus, I find that at the time Walton placed the call to
Caouette, he did not know that Flowers wanted a re-
placement for himself to attend his brother's funeral, that
he sought a replacement only for a single day, or that
Coston had approved his replacement. These findings
support Walton's testimony that he placed the call to
Caouette to find out why Flowers had left the job.
Walton's testimony as to his conversation with
Caouette is otherwise less convincing. Despite his reason
for calling Caouette, by his own version he did not ask
why Flowers left the job, and Caouette did not tell him.
Rather, according to Walton, Caouette asked if Flowers'
replacement would be permanent and said that he did
not want Flowers back on the job because he received
travel pay and did not cooperate with others on the job.
Yet in an affidavit given during the investigation of this
case on October 2, 1982, with his attorney present,
Walton stated that he was unaware of the subsistence
issue, that he received no complaints from the contractor
about Flowers, and that he could not recall speaking to
Caouette on the day Flowers was let go. Walton's expla-
nation for the inconsistencies between his testimony and
his affidavit was that Gagne was on vacation when he
gave his affidavit and that he gave the affidavit before
speaking with either Gagne or Caouette to refresh his
recollection.' 3 He testified that his recollection was re-
I3 Walton also testified that the statement was drafted by the Board
agent. However, both he and his attorney read it before he signed it. The
fact that the Board agent drafted it cannot explain inconsistencies like
these.
freshed when he later spoke with them. This explanation
is not convincing in the light of the facts that Flowers'
charge was filed on September 9 and that even earlier
Flowers had complained to the president of Respond-
ent's parent union, who, by letter dated July 23 had
asked Walton to conduct an internal investigation of
Flowers' complaint.
In addition to the conflict between Walton's testimony
and his affidavit, his testimony also is in partial conflict
with Gagne's, who testified that Caouette asked only if
the replacement was going to be permanent and said
nothing about whether Flowers was going to be rehired
or his desire to have Flowers back on the job. Moreover,
while Gagne testified that Caouette had complained to
him that Flowers had difficulty getting along with the
Ironworkers foreman, when he was asked if he had
asked Flowers for his side of the story, Gagne testified
that that was what the business agent was for and that he
assumed Coston had contacted Flowers, implying that
either he or Caouette had spoken to Coston. Yet Coston,
who was the business agent responsible for servicing the
Multi-Craft jobsite, testified that he received no com-
plaints about Flowers, although there were jurisdictional
disputes on the job with both unions claiming certain
work. Although Coston was clearly part of the faction
hostile to Walton, he did not tailor his testimony with re-
spect to the nonmination meeting or Flowers' alleged
second telephone call to conform to Flowers' version,
and he impressed me as essentially truthful.
In the light of the enumerated weaknesses in the testi-
mony of both Walton and Gagne, my overall impression
that Walton's testimony was colored by a strong desire
to prevail in this case, and Gagne's dependence upon
Walton's goodwill to retain his appointed position, I am
unable to credit their testimony as to their telephone
conversation with Caouette on July 9. I find that a con-
versation between Walton and Caouette occurred, but do
not find that its content was as testified to by Walton
and Gagne.
More difficult to resolve is the conflict between
Walton and Flowers as to the July 12 conversation in
Walton's office. As set forth above, I have discredited
each of them as to significant portions of their testimony:
Flowers as to his conversation and Cacciatore and the
nomination meeting, and Walton as to the conversation
with Caouette. Like Walton, Flowers had a clear interest
in the outcome of the proceeding.
Nonetheless, Walton's version is the less probable of
the two. Thus, although he agreed that Flowers started
the conversation by asking the reason why he was re-
placed, Walton testified that he replied that Flowers was
replaced pursuant to the job order and refused Flowers'
request to be sent back to the job, telling him that the
Company was unhappy with his performance and that he
had improperly left the job without notifying his business
agent. According to Walton, Flowers did not mention
that he had spoken with Coston before leaving the job,
but responded that he was upset because the Union had
not taken up a collection for his brother's funeral. Ac-
cording to Walton, after he told Flowers that he knew
nothing about his brother's death and explained the
1232
OPERATING ENGINEERS LOCAL 675 (MULTI-CRAFT INSTALLATION)
reason why no collection could be taken, Flowers was
satisfied and left indicating that he would support
Walton. According to Flowers, Walton told him he was
not terminated for taking time off to attend his brother's
funeral but was terminated for not supporting him. It is
likely that Flowers would have failed to mention his
conversation with Coston about leaving the job if
Walton attributed his removal from the job to nonsup-
port for him in the election, as Flowers testified. It is not
likely that Flowers would have failed to mention his
conversation with Coston if Walton attributed his termi-
nation to his leaving the job without notice to the Union.
Similarly, it is likely that Flowers would have raised the
matter of the collection for his brother's funeral, and at-
tributed to it his support for Walton's opposition if
Walton had attributed Flowers' termination to his sup-
port for the opposition. It is not likely that Flowers
would have accepted without protest Walton's explana-
tion that he was removed for cause unrelated to union
politics, and then would have volunteered his dissatisfac-
tion with Walton over the collection as the reason for his
nonsupport. Finally, in the light of Flowers' letter of
protest written to the president of Respondent's parent
international union only a few days after July 12, Flow-
ers' explanation that he merely gave up arguing with
Walton, accepted the proffered campaign materials, and
left Walton's office is more plausible than Walton's testi-
mony that Flowers seemed to be satisfied with Walton's
explanation and told him that he would support him in
the upcoming election. In sum, I credit Flowers rather
than Walton as to their July 12 conversation and find
that, when Flowers protested his removal from the job,
Walton, while denying awareness of his brother's funer-
al, told Flowers he would not work out of the union hall
if he did not support Walton and reminded Flowers of
what he had told him when he sent him to the job.
In the light of these findings, I conclude that Respond-
ent caused Flowers to be permanently replaced on the
Port Everglades job because of Flowers' active role in
nominating members of the slate running in opposition to
Walton the night before Flowers' brother's funeral.
While it is not known what was said between Caouette
and Walton, it was on July 9 that Flowers learned that
he was not to return to the job. Walton's denials that he
was unaware of Flowers' support of the opposition slate
is not persuasive. Walton was an experienced union offi-
cer who had been through other contests and was clear-
ly politically sophisticated. It is highly unlikely that he
and his supporters did not know precisely who the oppo-
sition was and who those who nominated them were,
particularly after Roberts had indicated earlier in the day
that Chandler might run, and the business agents were
terminated or quit after being questioned about their sup-
port by Walton. That Walton entertained animus against
Flowers for his nonsupport is shown clearly by his state-
ments to Flowers at the time of his hire, at the time of
their July 12 conversation, and on the day of the elec-
tion. Moreover, that Walton caused his removal from the
job because of his nonsupport was virtually stated by
Walton to Flowers on July 12. I reject Respondent's de-
fense that Flowers was removed because he left without
authorization, because Multi-Craft wanted a local man.
As for the first reason, had Walton inquired of Flowers
or had he told Flowers that reason, he would have un-
doubtedly have learned that Coston had been notified
and approved Flowers' day off. As for the remaining
reasons, I do not credit them for the same reasons that I
have discredited Walton and Gagne as to their July 9
conversation with Caouette. Accordingly, I conclude
that by causing Flowers to be permanently replaced by
Multi-Craft, Respondent violated Section 8(b)(2) and
(1)(A) of the Act. 14
Based on my findings above, I find further that on
July 12 Respondent further violated Section 8(b)(1)(A)
of the Act by Walton's threat that Flowers would not
work out of the hall again if he failed to support Walton
and his promise of employment to Flowers if he gave
Walton support.' 5
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) and (2)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent unlawfully caused
Thomas O. Flowers to be denied employment by Multi-
Craft Installation Services, Inc. since July 9, 1982, I shall
recommend that Respondent make him whole for any
loss of earnings suffered as a result of the discrimination
against him by payment to him of a sum of money equal
to that which he normally would have earned as wages
from the date of the discrimination against him until he is
reinstated to his former or a substantially equivalent job,
obtains similar employment elsewhere, or until such time
as his job with Multi-Craft Installation Services, Inc. nor-
mally would have ended, whichever first occurs, less net
earnings during such period, to be computed on a quar-
terly basis in the manner prescribed by the Board in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed by the Board in Florida Steel Corp., 231
NLRB 651 (1977).
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, AFL-
CIO, Local Union 675 is a labor organzation within the
meaning of Section 2(5) of the Act.
2. Multi-Craft Installation Services, Inc. is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
3. By causing Multi-Craft Installation Services, Inc. to
terminate Thomas O. Flowers on July 9, 1983, in retalia-
tion for Flowers support of candidates opposing Re-
spondent's incumbent business manager in an internal
union election, Respondent caused Multi-Craft Installa-
tion Services, Inc. to discriminate against Flowers in vio-
lation of Section 8(a)(3) of the Act, and Respondent en-
14 Carpenters Local 808 (Building Contractors Assn.), 238 NLRB 735,
741 (1978).
1s Carpenters Local 1281 (Raber-Kie.,. 152 NLRB 629, 635 (1965).
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
4. By threatening Thomas O. Flowers with loss of
future referrals if he failed to support Respondent's busi-
ness manager in an internal union election and promising
him employment in return for such support, Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 6
ORDER
1. Cease and desist from
(a) Causing, or attempting to cause, Multi-Craft Instal-
lation Services, Inc., or any other employer, to terminate
or otherwise discriminate against Thomas O. Flowers or
any other employee, in violation of Section 8(a)(3) of the
Act because such employee has engaged in activities in
connection with an internal union election protected by
Section 7 of the Act.
(b) Restraining or coercing Thomas O. Flowers or any
other employee in the exercise of rights guaranteed by
Section 7 of the Act by threatening him with loss of em-
ployment in retaliation for his failure to support an in-
cumbent officer's reelection campaign and promising em-
ployment in return for such support.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the purpose of the Act.
ls If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Make Thomas O. Flowers whole for any loss of
wages and benefits suffered by reason of the discrimina-
tion against him in the manner set forth in The Remedy
section of this decision.
(b) Notify Thomas O. Flowers and Multi-Craft Instal-
lation Services, Inc., in writing, that it has no objection
to Flowers' employment by Multi-Craft, and request that
Multi-Craft rehire Flowers.
(c) Expunge from its files any references to the termi-
nation of Thomas O. Flowers, and notify him in writing
that this has been done and that the incident involving
the unlawful termination will not be used as a basis for
future actions against him.
(d) Post at its office and other places where it custom-
arily posts notices to members copies of the attached
notice marked "Appendix."1 7 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by Respondent's authorized represent-
ative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Forward signed copies of said notice to the Re-
gional Director for Region 12, for posting by Multi-Craft
Installation Services, Inc. if willing, at all locations
where notices to employees are customarily posted.
(f) Request Multi-Craft Installation Services, Inc. to
expunge from its files any references to the termination
and to notify Thomas O. Flowers in writing that this has
been done and that evidence of the unlawful termination
will not be used as a basis for future personnel actions
against him, if it is willing.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
"' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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