Operating Engineers Local 675 (Sims Crane)

National Labor Relations Board - Board Decisions

Jun 26, 1984

270 N.L.R.B. 1407 (N.L.R.B. 1984)

OPERATING ENGINEERS LOCAL 675 (SIMS CRANE)
International Union of Operating Engineers, Local
675, AFL-CIO (Sims Crane Service, Inc.) and
Huey E. Nance. Case 12-CB-2503
26 June 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 26 September 1983 Administrative Law
Judge Leonard N. Cohen issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed limited
cross-exceptions as well as a supporting brief. The
Respondent also filed an answering brief to the
General Counsel's cross-exceptions.
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as set forth in full below.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge, as modified, and orders that the Respondent,
International Union of Operating Engineers, Local
675, AFL-CIO, Pompano Beach, Florida, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Coercing or restraining Sims Crane Service,
Inc. to remove Huey E. Nance from the position of
craft foreman.
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.
In the absence of exceptions, we adopt the judge's dismissal of the
8(b)( IXA) allegations.
2 In addition to notifying the Employer that it does not object to Huey
Nance's reinstatement to the craft foreman position, as required under the
judge's recommended remedy and Order. The Respondent shall be re-
quired to affirmatively request of the Employer that he be reinstated. The
Respondent shall also be liable for any loss of wages and benefits Nance
may have suffered by reason of its unlawful conduct until such time as
Nance is reinstated to his former or substantially equivalent position or
obtains substantially equivalent employment elsewhere. See Sheet Metal
Workers Local 355 (Zinsco Electrical), 254 NLRB 773, 774 (1981).
The judge's recommended Order shall further be modified to include a
provision requiring the Respondent to expunge from its records any ref-
erence to Nance's unlawful removal from the craft foreman position. R.
H. Macy & Co., 266 NLRB 858, 861 fn. 19 (1983). Also, par. I(b), L. 2 of
the judge's recommended Order should read "or any other employee"
rather than "or any other employees." We shall accordingly correct this
inadvertent error.
270 NLRB No. 200
(b) In any like or related manner restraining or
coercing Sims Crane Service, Inc. or any other em-
ployer in the selection of its representatives for the
purpose of collective bargaining or the adjustment
of grievances.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Immediately notify Huey E. Nance and Sims
Crane Service, Inc. in writing that it has no objec-
tion to the reemployment of Huey Nance as craft
foreman or in any other supervisory position and
that it will not restrain or coerce said employer to
remove him from such position.
(b) Immediately request, in writing, that Sims
Crane Service, Inc. reinstate Nance to his former
position of craft foreman or to a substantially
equivalent position of employment.
(c) Make Huey Nance whole for any loss of
wages or benefits suffered by reason of the Re-
spondent's unlawful conduct until such time as
Nance is reinstated to his former or substantially
equivalent position or until Nance obtains substan-
tially equivalent employment elsewhere. Backpay
shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977).
See generally Isis Plumbing Co., 138 NLRB 716
(1962).
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Expunge from its records any reference to
the unlawful removal of Huey Nance from his po-
sition of craft foreman and notify him, in writing,
that this has been done and that evidence of his un-
lawful removal shall not be used as a basis for
future action against him.
(f) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 3
Copies of the notice, on forms provided by the Re-
gional Director for Region 12, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
s 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."
1407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to ensure that the notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Union has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coerce or restrain Sims Crane
Service, Inc. to remove Huey E. Nance as craft
foreman.
WE WILL NOT in any like or related manner re-
strain or coerce Sims Crane Service, Inc. or any
other employer in the selection of its representa-
tives for the purposes of collective bargaining or
the adjustment of grievances.
WE WILL notify Huey Nance and the Employer,
Sims Crane Service, Inc., in writing, that we do
not object to Nance's reinstatement to the craft
foreman position or to any other supervisory posi-
tion and shall ask Sims Crane Service, Inc. to rein-
state Nance to his former or substantially equiva-
lent position.
WE WILL make Huey Nance whole for any loss
of wages or benefits, with interest, that he may
have suffered by reason of our unlawful conduct in
removing him from the craft foreman position,
until such time as Nance is reinstated to his former
or substantially equivalent position or until Nance
obtains substantially equivalent employment else-
where.
We will expunge from our files any reference to
the unlawful removal of Huey Nance from the
craft foreman position and shall notify him, in writ-
ing, that this has been done and that evidence of
this unlawful removal will not be used as a basis
for future action against him.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL 675, AFL-
CIO
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge. This
case was tried before me on June 30, 1983, in Miami,
Florida. Pursuant to a charge filed on March 18, 1983,
by Huey E. Nance, an individual, a complaint was issued
on April 28, 1983, by the Regional Director for Region
12 of the National Labor Relations Board. The com-
plaint alleges that the Respondent, International Union of
Operating Engineers, Local 675, AFL-CIO, violated
Section 8(b)(1)(A) and (B) of the Act by replacing
Nance as craft foreman while he was employed by Sims
Crane Service, Inc.
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to examine and cross-
examine witnesses, to argue orally, and to file written
briefs. Both counsel filed posthearing briefs which have
been carefully considered. From the entire record in this
case and from my observation of the demeanor of wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Sims Crane Service, Inc. (Sims) is a Florida corpora-
tion with an office and place of business in Pompano
Beach, Florida, where it is engaged in the business of
leasing and selling cranes. During the past calendar year
ending December 31, 1982, Sims provided services
valued in excess of $50,000 to a Florida corporation en-
gaged in the construction industry which in turn pur-
chased and received at its Miami, Florida facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly form points outside the State of Florida. Respond-
ent admits and I find and conclude that Sims is now and
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits and I find and conclude that it is
now and has been at all times material herein a labor or-
ganization within the meaning of Section 2(5) of the Act.
IIll. CONTENTIONS OF THE PARTIES
The General Counsel alleges that Nance, a member of
Respondent, was a statutory supervisor and representa-
tive of his employer Sims for the purpose of collective
bargaining or the adjustment of grievances. He further
alleges that because of Nance's opposition to the reelec-
tion of Respondent's business manager Dennis Walton,
Walton replaced Nance as craft foreman. This removal,
he argues, not only restrained and coerced Sims in viola-
tion of Section 8(b)(l)(B) but also coercively impacted
on unit employees/members in violation of Section
8(b)(l)(A).
While Respondent on brief concedes that Nance was
in fact a statutory supervisor, she argues that Nance
cannot be considered as a representative of Sims within
the purview of Section 8(b)(1)(B). Further, Respondent
contends that in any event Sims, and not Respondent,
was responsible for Nance's being replaced as craft fore-
man. Further, she argues that in no event can Respond-
ent's treatment of Nance, a statutory supervisor, be
found to violate Section 8(b)(l)(A).
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OPERATING ENGINEERS LOCAL 675 (SIMS CRANE)
IV. THE UNFAIR LABOR PRACTICES
A. Uncontested Background Evidence
In August or September 1979, Nance was dispatched
by Respondent through its hiring hall to Allied Power
Crane, a subsidiary of Sims, where he worked as a crane
operator until February 1980.1 In early 1980, Dennis
Walton, Respondent's business manager, asked Nance if
he was interested in working for Sims at its Pompano
Beach yard as an assistant craft foreman. Nance agreed
and apparently immediately thereafter, Nance was shift-
ed over to Sims to work in the assistant craft foreman
capacity. 2 In late 1980, when Sims' craft foreman Robert
Sheely was made part of management, Walton asked if
Nance was interested in moving into Sheely's position.
Nance indicated that he was and again almost immediate-
ly thereafter Nance was promoted to the craft foreman
position where he remained until September 23, 1982.
As craft foreman, Nance was directly responsible for
for overseeing virtually all facets of the employment of
the approximately 40 to 60 crane operators and oilers
who may have been employed by Sims at various south
Florida construction sites at any given time. While sta-
tioned at Sims' Pompano Beach yard, Nance spent con-
siderable amount of his time traveling to and visiting
with crane operators and oilers at these construction
sites. His duties, which were set forth in the most current
collective-bargaining agreement which was executed in
June 1982 and covers the period June 1, 1982, through
May 31, 1983, included: assigning operators and oilers to
particular cranes at particular locations and generally di-
recting them in the performance of their work, preparing
monthly safety reports, keeping time records, and being
responsible for assuring that Sims employed the appro-
priate number and type of operators and oilers for each
job on hand. In this latter regard, Nance on being in-
formed by Sims' dispatcher as to the number of cranes
that would be needed for the next day's work would, on
a daily basis, either notify employees that they would no
longer be needed or call the hiring hall and request addi-
tional help. On many occasions, Nance, knowing the
abilities of the crane operators working out of this local,
would "name" request employees from Respondent's
out-of-work list. In carrying out all of these duties, in-
cluding the selection of those employees to be laid off,
Nance operated without prior approval of the branch
manager, his immediate supervisor.-
In his official capacity as craft foreman, Nance neither
participated in the collective-bargaining negotiations nor
signed any agreements on behalf of Respondent. Nance
did, however, deal directly with the Union on Sims'
behalf. These contacts were on two different levels, one
I For many years Respondent and Sims have been parties to a series of
collective-bargaining agreements which provide, inter alia. for the oper-
ation of an exclusive hiring hall.
a The subject of selection and replacement of craft foreman and assist-
ant craft foreman as well as their duties, will be discussed infra.
3 From the time Nance assumed the position of the craft foreman until
late spring of 1982, Robert Sheely was employed as Pompano Beach
branch manager. In the late spring or early summer of 1982, Sheely was
replaced by Terrence O'Duggan who was in turn replaced in mid-Sep-
tember by Burt Kolleda.
with Respondent's shop steward Rene Lopez at the yard
and/or construction sites and two with Walton at the
union hall. In regard to the first, on several separate oc-
casions Lopez complained to him about the operators
having to work in the rain without appropriate rain gear.
Nance rejected Lopez' request that the men be issued
rain gear and instead, on his own, simply instructed the
men not to work in the rain. Lopez also complained to
him on four to five other occasions about allegedly
unsafe equipment. One each of those occasions, Nance,
again on his own, instructed the chief mechanic to check
out the complaints and fix the problem if necessary. The
final complaint lodged with him by Lopez involved the
poor quality of drinking water supplied to the employees
at the Sims' yard. Nance simply instructed Lopez to send
a man out every morning while on the clock to get the
needed ice and/or drinking water.
During Nance's term as craft foreman he was instruct-
ed by the branch manager on approximately six different
occasions to go to the union hall and seek permission
from Walton or the other assistant business agents for
permission for Sims to operate in noncompliance with
strict requirements of the collective-bargaining agree-
ment. On only one such occasion did Walton grant the
requested variance. While Nance did not participate in
the processing of any formal grievance, the record does
not disclose whether any such formal grievances had
been filed during Nance's term as craft foreman.
On the evening of July 8, Respondent convened a spe-
cial membership meeting for the purpose of nominating
officers for the upcoming year. Two different slates of
candidates were nominated. One headed by Walton, the
incumbent business manager, and one headed by Gus
Chandler, a Sims employee working out of Sims' head-
quarters in Tampa, Florida. Nance was nominated as a
candidate for the trustee position on Chandler slate.
On August 14, the election was held. Walton was re-
elected by a margin of only some 27 votes out of ap-
proximately 1200 to 1300 votes cast. Nance was also
elected as trustee. Apart from Walton himself, only one
other candidate from Walton's slate was elected.
B. Events Leading to Nance's Replacement as Craft
Foreman
1. The General Counsel's evidence
Thomas Sims Sr., chairman of the board of Sims, testi-
fied that about September 22, after O'Duggan had al-
ready been replaced by Burt Kolleda as the Pompano
Beach branch manager, 4 he made a trip from Tampa to
Pompano Beach for the purpose of meeting with Walton.
He met with Walton and Walton's assistant business
manager Joe Gagne at the union hall in the morning.
After pleasantries were exchanged Sims told Walton and
Gagne that he wanted to make peace with Walton. Sims
Sr. explained that a lot of people who had been opposing
Walton's reelection including Gus Chandler worked for
Sims and that his company had somehow gotten in-
4O'Duggan's last day was Friday, September 17. Kolleda started work
on the following Monday.
1409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved in the election because Chandler bumper stickers
had been placed on all his equipment. Sims added that,
even though he had instructed his people not to do this,
there seemed to be a little feud developing between him-
self and Walton because it had been done,6 and that
straighening out that situation was the purpose for his
trip.
Walton then asked if Chandler was still working for
Sims. When Sims Sr. acknowledged that he was, Walton
responded that he should keep that "s.o.b." in the Tampa
area. Walton then added that he was going to replace
Nance as craft foreman. In response, Sims Sr. merely
commented that Nance had done a good job for Sims.
At hearing, Sims Sr. explained that he did not protest or
pursue Walton's pronouncement further since those types
of personnel decisions were matters solely within the
area of responsibility of his son Thomas Sims Jr. and that
a meeting between Sims Jr., Walton, and Burt Kolleda,
the new branch manager, was scheduled to take place
that same afternoon.
Later that day, the meeting took place as scheduled at
the union hall.6 After Sims Jr. and Kolleda were intro-
duced and shown around, they went into Walton's office
and had the following conversation. Walton stated that
he was not happy with the people who had run against
him. He specifically referred to Chandler and repeated to
Sims Jr. what he had earlier told Sims Sr. about keeping
Chandler in the Tampa area. Walton next brought up the
subject of Nance. He stated that he had decided to re-
place Nance as craft foreman. Kolleda responded by stat-
ing that while he did not know Nance well, he seemed
to be doing a good job. Kolleda added that Nance knew
all the customers and he would like to see Nance remain
at least long enough for him to familiarize himself with
both the customers and the terrain. Walton responded
that he could not since Nance did not share his "political
philosophy." Walton stated that he, as business manager
of Respondent, had the authority and the discretion
under the collective-bargaining agreement and Respond-
ent's bylaws to appoint and/or replace craft foremen and
that the Company had noting to say or do about it. 7
a Sims Sr. did not explain the meaning of his reference to "a little feud
developing" between himself and Walton.
6 The following account is based on a composite of the basically mutu-
ally corroborative testimony of Sims Jr. and Kolleda. Their respective
testimony differs in only one material resect, i.e., whether the individual
who was going to replace Nance as craft foreman was identified by
name.
I The collective-bargaining agreement does not specify as to how the
selection of craft foremen is made. It only provides that when an employ-
er employs a given number of operating engineers, the employer shall
employ a craft foremen and if that number increases further to another
specified level, it shall employ an assistant craft foreman. Respondent's
bylaws do, however, specifically provide that the business manager "shall
appoint all foreman and stewards."
Sims Jr. testified that it was always his understanding that Respondent
had the right to name and replace craft foremen and that this understand-
ing controlled the manner in which Sims operated in the Nance affair.
Respondent, on the other hand, contends that the selection of craft
foremen is a mutual decision between the employer and the Union. In
view of the manner in which Walton asserted his authority to replace
Nance and the manner in which Sims choose to accede to such an asser-
tion, I need not resolve the legal question of whether the selection proc-
ess was a matter exclusively left to the business manager or was a matter
for "mutual agreement."
Walton then added that he had someone already in mind
to replace Nance. According to Sims Jr., Walton identi-
fied this individual by name as Don Moylan, a former
craft foreman for B & W Crane Service, a company run
by Walton's brother. According to Kolleda, Walton
never specifically identified the individual to whom he
was referring.
The following day Nance was given a message by a
secretary at Sims' yard to call Walton. When he reached
Walton about noon on Thursday, September 23, Walton
asked him to come in the following morning. Nance indi-
cated that he could not make it then but could stop by
the union hall after work that afternoon. Walton agreed
to meet Nance at 5:30 p.m. on September 23 at the union
hall.
Shortly after his phone conversation with Walton,
Nance arrived at the Sims office at the Pompano Beach
yard. Whe he got there Sims Jr. met him in the hallway
and told him that he was being replaced as craft foreman
by Dennis Walton. When Nance asked why, Sims Jr. an-
swered that it was because of his "political philosophy"
which was different than Walton's. Nance told Sims that
Walton could not do that legally. Sims Jr. merely re-
sponded that he had done it.
At 5:30 that same afternoon, Walton and Nance met in
the union office. At the start of the conversation, Walton
stated that it had been a tough election and that he was
replacing Nance. When Nance asked, "You mean I'm
through, I'm no longer employed with Sims?" Walton
answered, "You're through. You can put your name on
the out of work list on your way out." During the
course of this conversation, Walton told Nance that he
was being replaced by Don Moylan. Nance then left
Walton's office and prior to leaving the union hall signed
the out-of-work list.
The following day he arrived for work at 7 a.m.
Moylan was already there talking to the men. Nance
went into the office and sat there waiting for Moylan
who did not come into the office until about 8. When
Moylan asked Nance what he was waiting for, Nance re-
sponded that Moylan could go ahead and turn Nance's
time in and get him his money. Moylan then went to the
office and had the secretary prepare Nance's final check
and layoff slip. When the secretary asked Moylan what
reason she was to put down for Nance's leaving, Moylan
answered by telling her merely that "Dennis Walton had
said so."
2. Respondent's evidence
Walton testified that he had two, not just one, meet-
ings with Sims Sr. where the subject of Nance was dis-
cussed. Both took place at the union hall and both were
at the request of Sims Sr. The first, and apparently the
longest, of these two meetings, both of which were at-
tended by Walton's assistant, Joe Gagne, took place just
a few days after the August 14 election. Sims Sr. started
the meeting by indicating that he wanted to have a good
relationship with Respondent and wanted to have peace.
Sims Sr. explained that he wanted to get the other law-
suits and litigation involving the trusts out of the way
1410
OPERATING ENGINEERS LOCAL 675 (SIMS CRANE)
and that he hoped that this would be a good start.8 Sims
Sr. then commented that his Company had gotten in-
volved in the middle of the union election and had been
compromised as a result of bumper stickers being placed
on all his equipment. Sims Sr. added that it had been his
instructions to Branch Manager O'Dugggan to avoid in-
volving the Company in partisan politics, but that
Nance's activities had, nonetheless, placed them in an
awkward position.
At this point Walton, after first indicating that he was
receptive to Sims' offer of the olive branch, indicated
that he was not satisfied with Nance's conduct as craft
foreman on several different grounds. First, Walton in-
formed Sims Sr. that Nance had previously operated his
own trucking company and although not a signatory to
the union contract had nonetheless accepted money for
an apprenticeship program. Walton explained that this
practice allegedly violated the Landrum Griffin Act and,
as a result thereof, Nance was forced to resign from his
trusteeship position to which he was elected in 1980.
Next Walton indicated that he had received complaints
from several of Sims employees during the election cam-
paign that Nance was harassing them and discriminating
against them by laying them off. Walton noted that these
items added to his general dissatisfaction with Nance.
Sims Sr. after hearing Walton's comments, observed that
he did not want that type of person in a supervisory ca-
pacity. Sims Sr. further stated that he intended to fire
Branch Manager O'Duggan within a few weeks and that
he wanted to delay action on replacing Nance until he
had an opportunity to hire a new branch manager.
According to Walton's somewhat disjointed testimony,
he met with Sims Sr. for a second occasion on the morn-
ing in September about 2 weeks after the first meeting.
During this conversation, Walton submitted to Sims Sr.
the name of Don.Moylan as a replacement for Nance.
Sims Sr. indicated that he knew of Moylan who had
been out of work after being laid off from Walton's
brother's company and that he was acceptable to Sims.
Sims Sr. added that all Sims wanted was to have a good
relationship with Respondent. Sims Sr. told Walton that
he would take care of informing Sims Jr. and Kolleda of
this decision prior to Walton's meeting that afternoon
with the two.
Walton's account of the afternoon meeting with Sims
Jr. and Kolleda was brief and incomplete. According to
Walton, he merely informed the two that Nance was
being replaced and that, despite Kolleda's protestations,
the matter already had been decided on and approved by
Sims Sr. Walton denied ever telling either Sims Jr. or
Kolleda at this or any other time that Nance was being
replaced because of his "political philosophy."
Walton's account of his subsequent meeting with
Nance is, not surprisingly, at variance with Nance's ac-
count as to most material respects. Walton testified that
at the start of the conversation he simply told Nance that
he had already discussed the matter and gone over the
reasons with Sims Sr. for Nance's being replaced.
Walton then told Nance that neither Respondent nor
Sims had any objection to his staying on as a crane oper-
H There was no explanation as to what these other lawsuits were about
ator. Nance indicated that he was not interested in stay-
ing on as a crane operator and that he was disappointed
with Sims for their failure to back him up on his remov-
al. Nance added that he was going to take time off and
go north and run his trucking company. Walton then
told Nance to sign the out-of-work list before Nance left
the union hall. Walton specifically denied ever telling
Nance that he was being removed for political reasons.
Joe Gagne, who was present at both of Walton's con-
versations with Sims Sr. as well as the Walton meeting
with Sims Jr., and Kolleda, did not testify. No explana-
tion was offered as to why he was not called as a witness
by Respondent to corroborate Walton's testimony.
Moylan testified that several days before he was to
commence work as Sims' new craft foreman he had a
meeting at the union hall with Burt Kolleda and Walton.
During the course of this meeting, Kolleda allegedly
asked him what he was going to do with Nance. Moylan
answered that it was not up to him that it was up to Kol-
leda. Kolleda then asked Moylan if Nance could operate
a crane and that Moylan replied that he was a good
crane operator. Kolleda then said, "Well, put him on a
crane then." Neither Kolleda nor Walton was questioned
regarding this conversation.
Moylan further testified that when he reported to the
Sims' yard to commence employment as craft foreman,
Nance was already there waiting in the office. When
Nance asked him what Moylan was going to do Moylan
answered that he was going to be the new craft foreman.
Nance responded, "What am I to do?" Moylan replied
that he could operate a crane if he wanted to. Nance did
not respond but instead just walked away. Moylan spe-
cifically denied telling Nance that he was being terminat-
ed from his employment.
3. Walton's November 15 letter
Sometime shortly following his removal, Nance wrote
to General President Turner of the International Union
of Operating Engineers to protest Respondent's actions.
General President Turner requested a response from
Walton and on November 15 Walton submitted to
Turner the following letter:
On July 8, 1982, I had occasion to speak to Mr.
Terry O'Duggan. Mr. O'Duggan was the manager
for Sims Crane Service in South Florida. He ad-
vised me that on several occasions, he had warned
Mr. Nance about his position in the election and not
to intimidate any employees under his supervision
as a result of his own personal philosophies. Mr.
O'Duggan stated that Nance continued to insist on
asserting himself to the operating engineers in this
company by placing bumper stickers and slogans on
all cranes and vehicles owned by Sims' Crane Serv-
ice. It was Mr. O'Duggan's specific statement that
Sims did not wish to get involved in the middle of a
union election and that he felt that Huey Nance was
placing them in precisely that posture. He requested
that Mr. Nance be replaced immediately subsequent to
the election. [Emphasis added.]
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also had been contacted immediately after the
nominations by several operating engineers em-
ployed by Sims. Brothers Terry Lewis, George
Danielides, Jose Arechavaleta, and John Lewis met
with me and requested my assistance in that pres-
sure was being directly applied to them by Nance
who was attempting to force them to display
bumper stickers adverse to my administration. These
operators refused to comply with his requests and they
stated they were being discriminated against as a result
of their position in the election. Mr. O'Duggan request-
ed that Nance be tranferred pursuant to Article VII,
Section 9 of the contract in order to avoid further con-
flict with the operating engineers employed by his com-
pany. [Emphasis added.]
It is obvious to me that Brother Nance was dis-
turbed with me in relation to another matter that
had previously taken place in August of 1981. I had
discovered that he owned a trucking company that
was hauling boom for Sims, as well as other em-
ployers, without benefit of having a signed agree-
ment with the Local Union. After investigation of
the matter, I had a meeting with Nance and advised
him that he would have to relinquish his position on
the Executive Board or sell his company. Brother
Nance chose to resign from the Executive Board. I
have enclosed the information on this matter for
your edification.
Subsequent to the election, I spoke directly with
Mr. Tommy Sims, Sr. in relation to the Nance situa-
tion. Mr. Sims stated emphatically that his specific
instructions were that none of his cranes or vehicles
were to display bumper stickers or slogans promot-
ing either party in the union election. He advised
me that he had instructed his manager, Mr. Terry
O'Duggan in this matter, and that he now felt that
as a result of Nance's partisan politics, his company
had been compromised. I informed Mr. Sims of the
allegations of some of his employees in relation to
Brother Nance's intimidation of them subsequent to
which both Mr. Sims and myself agreed that it
would not be proper for Nance to continue to be
employed in that capacity.
On September 24, 1982, I informed Brother
Nance of my findings in this matter and my deci-
sion, such decision being to relieve him of his fore-
man's duties in light of the facts that had surfaced.
Sims extended to Nance the opportunity for em-
ployment in a position other than Craft Foreman.
However, Nance declined stating that he intended
to run his trucking business in northern Florida.
Paragraphs one and two of this letter raise certain mat-
ters which when viewed in contrast to Walton's own tes-
timony before me, as well as the entire record, severely
test his credibility.
Despite Walton's clear reference in paragraph one of
his letter to O'Duggan's making a request to him that
Nance be replaced immediately subsequent to the elec-
tion and his subsequent reference in paragraph two to
O'Duggan's requesting that Nance be transferred during
the election campaign, I am unable to find any support
for either of these statements in the record. In his testi-
mony before me, Walton specifically retracted these ref-
erences and explained that, with regard to the first,
O'Duggan merely stated that Nance's removal was a de-
cision that would be made by Sims Sr. and that, with re-
spect to the second, that sentence should have read "Mr.
Sims" instead of O'Duggan. Walton did not explain how
either Sims could have made any such request to him
during the campaign when the record indicates that
Walton had no communication with either Sims prior to
the election. Moreover, it seems abundantly clear that, if
either Sims had made that type of request to him during
the campaign, it would have received an enthusiastic
welcome and immediate favorable action on his part.
Walton did testify at hearing as to one rather signifi-
cant conversation he had with O'Duggan during the
campaign. On this occasion, O'Duggan allegedly told
him that Sims had directed him to pass a thousand dol-
lars on to Nance for use in Chandler's campaign. While
O'Duggan was not specifically asked about this conver-
sation, I note that Walton apparently never notified any
governmental agency regarding this report which, if sub-
stantiated, would clearly constitute a violation of Federal
law. Moreover, this report was never mentioned by
Walton in his various frank and open conversations with
representatives of Sims or in his letter to Turner. I find
this implausible.
Paragraph two of Walton's letter recites that four em-
ployees of Sims complained to him about Nance's activi-
ties during the election campaign and further accuses
Nance of discriminating against them because they re-
fused to comply with his request to display Chandler
bumper stickers. Other than in allegedly making a pass-
ing reference to this in his first conversation with Sims
Sr., Walton did not testify regarding any conversations
he had with any employees/members during the union
campaign. Respondent did call one of the four mentioned
employees/members, John Lewis, as a witness. Lewis te-
sified that on the day following the union nominations he
arrived at the Sims' Pompano Beach yard with his truck
covered in Walton's stickers. Huey Nance walked over
to his truck and ripped off the Walton stickers. When
Lewis protested stating that Nance had Chandler stickers
pasted all over the equipment, toolboxes, toilets, and ev-
erywhere else, Nance merely responded that he would
not permit Lewis to have Walton stickers on his own
truck. Lewis testified that while Nance continued to
campaign during the election by speaking to employees
and attempting to convince them to vote for his slate, he
did not observe Nance on any other occasions remove
Walton stickers from his or anyone else's truck and re-
place them with Chandler stickers. Lewis did testify that
during the campaign he went to the union hall and com-
plained to Walton about the Chandler bumper stickers
placed throughout Sims' yard. On that occasion, Walton
responded by stating that there was nothing he could do
about it, that it was merely campaign time, and that
Lewis should "just hang in there." Lewis further testified
that on at least one occasion he complained to O'Duggan
regarding the campaign stickers. O'Duggan told him
there was nothing he could do about it.
1412
OPERATING ENGINEERS LOCAL 675 (SIMS CRANE)
O'Duggan testified that no employee of Sims com-
plained to him specifically about Nance harassing them
during the union campaign and he had no such knowl-
edge of any harassment or discrimination practiced by
Nance. Nance, for his part, denied ever putting Chandler
stickers on Lewis' or any other Walton supporter's
trucks or vehicles during the union campaign.
No evidence whatsoever was offered with regard to
the allegation that Nance, in any way, discriminated
against Lewis or the other three employee members
named in the paragraph two of Walton's letter. In fact,
at least Lewis and two of the other three of these named
employees did not work directly under Nance and
Nance did not and could not have controlled any of
their working conditions.
Conclusions
The testimony of the four major witnesses called by
the General Counsel, Thomas Sims Sr., Thomas Sims Jr.,
Burt Kolleda, and Huey Nance, was in all material re-
spects both internally consistent and mutually corrobora-
tive. This testimony was both specific and detailed. With
the exception of Nance's limited denial that he replaced
Chandler bumper stickers on John Lewis' truck at the
beginning of the campaign, each appeared to be testify-
ing in an open, complete, and honest fashion. Moreover,
in crediting their accounts, I particularly note that Sims
has no stake in this litigation and, therefore, its officials
have no apparent reason to intentionally fabricate their
testimony to Respondent's detriment.
Walton's testimony, on the other hand, was not nearly
so impressive. Glaring inconsistencies appear between his
account given before me and his account supplied to the
International general president less than 2 months after
the events in question. Without belaboring this point, I
merely note that despite the clear statement in the appar-
ently carefully drawn letter, no evidence was offered to
support his assertions that either any member of manage-
ment requested Nance's transfer during the campaign or
that Nance, as a supervisor, discriminated against any
employees who opposed Nance's position in the election.
In this latter regard I note that Nance was not even the
supervisor of at least three of the four employees named
in that letter.
Respondent had the opportunity to call Joe Gagne, the
assistant manager, both then and now, to corroborate
Walton's testimony that he did not inform Sims manage-
ment that he was replacing Nance's craft foreman be-
cause of his political philosophy. Without explanation
Respondent did not call Gagne as a witness. In these cir-
cumstances I infer that Gagne's testimony would not
have been favorable to Respondent if in fact he had testi-
fied. 9
Finally, I specifically do not credit Moylan's testimony
that first he received permission from Kolleda to retain
Nance as an operating engineer and second that he made
just such an offer to Nance on the morning of September
24. This testimony, which is unsupported by any reliable
evidence, is specifically denied by Nance. I find Moy-
lan's testimony on these points to be convenient and self-
9 Martin Luther King, Sr. Nursing Center, 231 NLRB 15 fn. 1 (1977).
serving afterthoughts and instead I chose to credit, in
full, Nance's account of his brief encounter with Moylan.
Having resolved all credibility issues, I now turn to an
examination of whether these actions fall within the pur-
view of Section 8(b)(1)(B) of the Act.
The General Counsel contends that Nance was at all
times a supervisor within the meaning of the Act. De-
spite the positions set forth in its answer and taken at
hearing, Respondent, on brief, readily concedes the
point. The record clearly and overwhelmingly estab-
lishes Nance's supervisory status. Nance, who received a
dollar an hour more than the highest paid member of the
bargaining unit under his supervision, operated no equip-
ment himself. He had broad independent authority which
he regularly exercised to "name" request employees from
the hiring hall, select particular employees for economic
layoff, and assign employees based on his evaluation of
their skill to particular pieces of equipment at different
locations. Accordingly, I find, in agreement with the
parties, Nance to have been a supervisor within the
meaning of Section 2(11) of the Act.
Respondent contends that, despite Nance's supervisory
status, his lack of authority to either negotiate or to
adjust grievances on behalf of Sims does not confer on
him the status of employer representative under Section
8(b)(1)(B). I find this argument to be without merit. As
set forth, supra, Nance exercised the authority to adjust
grievances in the working conditions of employees work-
ing under him. Admittedly these "grievances" were oral
in nature and could best be described as minor employee
problems in a pregrievance stage. However, as Adminis-
trative Law Judge Left observed in Typographical Union
101 (Washington Post), 207 NLRB 841, 847 (1973):
The fact that the grievances with which she dealt
were relatively minor can be of no controlling sig-
nificance. The employer's bargaining obligation
under the Act is as much applicable to minor em-
ployee grievances as to major ones. So, too, is man-
agement's need for representation in their consider-
ation and adjustment.' 0
Here, Walton, Respondent's chief executive officer,
informed members of Sims' management that he
was removing Nance from his position as craft fore-
man. When they protested this action by indicating
that they were entirely satisfied with Nance's per-
formance, Walton responded that Sims' satisfaction
was unimportant and that he and he alone would
make the decisions on who could serve as craft
foreman. In these conversations Walton made no at-
tempt to disguise his reason for making this
change-Nance did not share his own "political
philosophy." No explanation of this statement was
sought. It was clear to all that Nance was being
punished for his active opposition to Walton's re-
election. While there was no reference to Nance's
staying on as a crane operator in these conversa-
'° See also Iron Workers Local 46 (Cement League), 259 NLRB 70, 76
(1981); Typographical Union 529 (Hour Publishing), 241 NLRB 310, 315
(1979).
1413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions with Sims' management, Walton did, accord-
ing to Nance's credited account, make it clear to
Nance that Nance's employment with Sims was ter-
minated. Moylan's brief discussion with Nance at
the Sims' yard on the morning of September 24 did
not change this perception. In any event, Nance
was well aware that there were no job openings for
crane operators at Sims. Thus, on being informed
by Walton that he was being replaced as craft fore-
man, Nance signed the Union's out-of-work list.
The Supreme Court in Florida Power & Light Co. v.
Electrical Workers IBEW Local 641, 417 U.S. 790, 804-
805 (1974), found that a union's discipline of a member
who also serves as an employer's representative within
the meaning of Section 8(b)(1)(B) violates that section
only when it "may adversely affect the supervisor's con-
duct in performing the duties of, and acting in his capac-
ity as, grievance adjustor or a collective bargainer on
behalf of the employer." It is difficult to imagine how a
union's discipline could have a more adverse effect on a
particular supervisor's conduct than the total removal of
that supervisor from the work force. Respondent's dic-
tating to Sims who it could and could not employ as
craft foreman constitutes an unwarranted and unlawful
intrusion on an employer's concerns specifically protect-
ed by Section 8(b)(1)(B).' l
The General Counsel further alleges that Nance's re-
moval by Respondent because he had engaged in pro-
tected activities coercively impacted on all unit employ-
ees by causing them to fear similar retaliation for engag-
ing in infra Section 7 activity and, as such, violated Sec-
tion 8(b)(1)(A). In advancing this argument the General
Counsel relies on two recent cases Iron Workers Local
46, supra, and ITO Corp. of Rhode Island, 246 NLRB 810
(1979). Both of those cases hold that a respondent
union's discipline of supervisors/members created an
impact on other employees, the natural consequence of
which was to restrain and coerce them with respect to
their Section 7 rights in violation of Section 8(b)(1)(A).
These cases, as well as those relied on therein by the
Board as precedent for such conclusions are factually
distinguishable from the situation presented here. 12
In each of those cases the union's actions against the
supervisor/member, as well as the reason for taking such
underlying action were well publicized to nonsuperviso-
ry employees. The opposite is true here. Walton neither
consulted with nor communicated his decision to replace
Nance to nonsupervisory employees. Based on this
record, it appears that all Sims' operating engineer em-
ployees knew was that on one day Nance was their craft
foreman and that on the next Moylan held that position.
Absent such knowledge or awareness on the employees'
' Metallic Leathers Local 46, supra.
" Stage Employees IATSE Local 659 (Y-A Productions), 197 NLRB
1187 (1972); Alberici-Fruin-Colon, 226 NLRB 1315 (1976).
part, the impact argument must fail. Accordingly, I rec-
ommend this allegation be dismissed. 13
CONCLUSIONS OF LAW
1. Sims is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor orgainzation within the mean-
ing of Section 2(5) of the Act.
3. By removing Huey E. Nance about September 24,
1982, from the position of craft foreman for Sims, Re-
spondent restrained and coerced Sims in the selection
and retention of its representative for the purpose of col-
lective bargaining and the adjustment of grievances and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(B) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not engaged in any other unfair
labor practice not specifically found herein.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act, I shall recommend that it be re-
quired to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes of
the Act, including the posting of an appropriate notice.
Having found that Respondent was responsible for the
unlawful removal of Nance from the position of craft
foreman, I recommend that Respondent be ordered to
notify Sims in writing that it does not object to Nance's
reinstatement as craft foreman or his employment in any
other supervisory position and that it will not coerce or
restrain Sims to remove him from such position. It is fur-
ther recommended that Respondent be ordered to make
Nance whole for any loss of earnings he may have suf-
fered by reason of his unlawful removal from the craft
foreman position. 14
Contrary to the General Counsel's contention, I do not
find that a broad order is warranted because there has
been no showing that Respondent has a proclivity to vio-
late the Act nor is the misconduct so egregious or wide-
spread as to demonstrate a general disregard for its mem-
bers' fundamental statutory rights. See Hickmott Foods,
242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]
'3 In view of this conclusion, I do not reach Respondent's argument
advanced on brief that, by analogy, the "impact" holdings of those cases
referred to above do not survive the Board's recent decision in Parker-
Robb Chevrolet, 262 NLRB 402 (1982), in which the Board concluded
that the discharge of a statutory supervisor under an "integral part or
pattern of conduct" theory no longer is deemed to unlawfully interfere
and adversely impact upon the exercise of employees' Sec. 7 rights.
:4 Backpay shall be computed in the manner set forth in F W Wool-
worth Co., 90 NLRB 289 (1950), and interest thereon as set forth in Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co.,
138 NLRB 716 (1962).
1414