Operating Engineers Local 925 (Sims Crane Co.)

National Labor Relations Board - Board Decisions

Feb 24, 1995

316 N.L.R.B. 441 (N.L.R.B. 1995)

441
316 NLRB No. 81
OPERATING ENGINEERS LOCAL 925 (SIMS CRANE CO.)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 Jurisdiction is based on commerce data related to Sims Crane and
Equipment Co. (Sims) a corporation with an office and place of
business located in Tampa, Florida, where it is engaged in the busi-
ness of renting cranes and other construction equipment to various
construction firms. During the year preceding issuance of the com-
plaint herein, a representative period, Sims purchased and received
goods and materials valued in excess of $50,000 directly from sup-
pliers located outside the State of Florida. I find Sims is engaged
in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act. At times material herein, the Union and Sims were parties to
a collective-bargaining agreement.
2 I specifically find the Union is a labor organization within the
meaning of Sec. 2(5) of the Act.
International Union of Operating Engineers, Local
925, AFL–CIO (Sims Crane and Equipment
Company) and Ray O. Worley. Case 12–CB–
3787
February 24, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On August 5, 1994, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Union of Op-
erating Engineers, Local 925, AFL–CIO, Tampa, Flor-
ida, its officers, agents, and representatives, shall take
the action set forth in the Order.
Peter J. Salm, Esq., for the General Counsel.
Richard P. Siwica, Esq. (Egan, Lev, & Siwica), of Orlando,
Florida, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is an
unfair labor practice prosecution brought by the National
Labor Relations Board’s (the Board) General Counsel, acting
through the Acting Regional Director for Region 12, in the
form of a complaint and notice of hearing (complaint) issued
on February 25, 1994, against the International Union of Op-
erating Engineers, Local 925, AFL–CIO (the Union) based
upon an unfair labor practice charge filed by Ray O. Worley,
an individual (Worley) on December 15, 1993. I heard the
case in trial in Tampa, Florida, on May 9 and 10, 1994.
Specifically, the complaint alleges that on or about August
4, 1993, the Union, through its Business Manager Ronald
Horne (Business Manager Horne), refused to provide its local
bylaws revision committee with office assistance and meet-
ing times and threatened the committee’s chairman (Worley)
with unspecified reprisals. It is also alleged that on or about
August 27, the Union, through its President William Piper
(President Piper), threatened to, and did, call police to re-
move and thereafter excluded Worley from a meeting of the
executive board of the Local Union and that President Piper
removed Worley from his elected position as an auditor for
the Local Union. It is further alleged that the Union on or
about September 1993 by its president, Piper, removed
Worley from the Union’s bylaws revision committee. It is al-
leged the Union took the action it did because Worley pre-
viously filed an unfair labor practice charge against the
Union with the Board. The above is alleged to violate Sec-
tion 8(b)(1)(A) of the National Labor Relations Act (the
Act).
The Union stipulated at trial that the Board’s jurisdiction
is properly invoked.1 It is undisputed the Union is a labor
organization within the meaning of the Act.2
The Union admits that Business Manager Horne and Presi-
dent Piper are its agents within the meaning of Section 2(13)
of the Act; however, the Union denies having violated the
Act in any manner alleged in the complaint. All parties were
afforded full opportunity to appear, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to file
briefs.
On the entire record, and my observation of the demeanor
of the witnesses, I will, as hereinafter more fully explained,
conclude the Union violated the Act substantially as alleged
in the complaint.
FINDINGS OF FACT
I. THE FACTS
A. Worley’s Account of Events
In attempting to establish or defend against the allegations
set forth in the complaint, the parties called four witnesses
and presented various documents.
Worley has been a member of the Union since 1969 and
for a number of years worked in the trade as a crane opera-
tor. Worley suffered an on-the-job injury in 1982 and re-
mained on workmen’s compensation until 1988 when he
reached a settlement of his claim by payment of 10 years of
wage losses. Worley successfully filed a disability claim with
the Social Security Administration approximately 2 months
before he settled the above-referenced workmen’s compensa-
tion claim and was awarded 100 percent disability. Worley
did not seek work in the trade other than as a nonworking
foreman and/or elected union official until 1991 when the
Social Security Administration established a ‘‘trial work pe-
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The ‘‘trial work period’’ of the Social Security Administration is
fully explained in the record. In its simplest form, an individual on
Social Security disability may return to work on a trial basis for a
fixed time without a loss of benefits.
4 Pomco and the Union were parties to a collective-bargaining
agreement applicable at all times material herein.
5 Worley testified Business Manager Horne told him he had a good
case.
6 The Pomco/Union collective-bargaining agreement contained a
grievance and arbitration procedure.
7 Worley testified his name was properly listed on the union main-
tained out-of-work list.
8 Worley said the committee had discussed with Business Manager
Horne about contacting other unions in the region to obtain copies
of their bylaws to see if anything useful could be adopted by the
committee in its revision work.
9 As noted elsewhere, the Union settled a prior unfair labor prac-
tice charge filed by Worley by a $2000 payment to Worley.
riod’’3 program. Worley thereafter sought employment
through the Union’s hiring hall and was referred in Decem-
ber 1991 to work for Pomco and Associates, Inc. (Pomco)4
at the Coolant Tower Project in Crystal River, Florida,
where, with the assistance of an oiler, he operated a
manitowoc crane setting precast concrete. Worley worked the
Pomco job for 7 months until he was fired.
Worley testified he spoke with Business Manager Horne
about his discharge5 and asked Horne to file a grievance6 on
his behalf relating to his discharge. According to Worley,
Business Manager Horne never filed a grievance on his be-
half. On September 4, 1992, Worley filed an unfair labor
practice charge with the Board in Case 12–CB–3628 which
formed the basis for the Board’s October 20, 1992 complaint
against the Union in which it was alleged the Union had,
since on or about July 1, 1992, failed to process a grievance
related to Worley’s discharge from Pomco. On or about De-
cember 22, 1992, the Union settled Case 12–CB–3628 by a
payment of $2000 to Worley.
Worley testified he met with President Piper on July 28,
1993, because he needed to make a decision whether to con-
tinue paying union dues and seeking work or to retire from
the trade and take disability retirement. After some discus-
sion with Piper about the potential for upcoming work,
Worley decided to continue seeking employment in the trade.
Worley told President Piper his limitations required him to
seek employment only as a nonworking foreman or operating
a large crane with assistance from ‘‘an oiler’’ who could
‘‘operate the crane [for him] for a while and do any climbing
or anything like that.’’ Worley testified he brought his union
dues current on that same occasion and checked to insure his
name was still on the out-of-work list.7
Worley attended the Union’s regular general membership
monthly meeting on July 30, 1993.
Worley testified that among other business conducted at
the meeting, two local auditor positions were filled by a vote
of the general membership. Worley said he asked President
Piper at the meeting what the qualifications for seeking an
auditor’s position were and added ‘‘I was told that all you
had to do was have your dues current and have your name
on the out-of-work list.’’ It is undisputed Worley was elected
to one of the two local auditor positions filled that evening.
According to Worley, the membership decided at the July
30, 1993 meeting to establish a bylaws revision committee
inasmuch as the Local’s bylaws had not been updated since
1960. It is undisputed Worley was one of five members
elected by the membership to serve on that committee. Im-
mediately following the general membership meeting the by-
laws revision committee met and elected Worley chairman.
Business Manager Horne, who also met with the committee,
offered full support to the committee including space at the
union hall for the committee to meet 1 hour prior to the
monthly general membership meetings.
Worley testified that on July 31, August 1 and 2, 1993,
he began to formulate a plan of action for the bylaws revi-
sion committee. During this same time, Worley spoke via
telephone with President Piper about the Committee’s work
in progress and attempted to fax the committee’s plan of ac-
tion to the union hall on August 3, 1993. Worley stated the
fax equipment was not functioning so he took the commit-
tee’s plan of action to the union hall on August 4, 1993.
Worley testified President Piper, Business Manager Horne,
and secretary/bookkeeper, Delores Frost were present at the
union hall on August 4. Worley showed Business Manager
Horne the committee’s plan of action and wanted the Union
to mail copies of the plan to all members of the committee.8
Worley said Business Manager Horne was ‘‘a little bit
upset’’ and:
He told me that he had changed his mind about the By-
Laws Revision committee. That as far as he was con-
cerned, he was not going to help us, the secretary was
not going to help us, and Bill Piper was not going to
help us. He was not going to open up the office any
more. He was not mailing out anything for us. And that
I had always been a little bit squirrely, as of ten years
in the past, and as far as he was concerned I would al-
ways be a little bit squirrely. We ended up arguing
about it, and me trying to point out to him that he was
the Business Manager and that he had an obligation to
do what the membership had asked him to do in the
prior meeting.
According to Worley, Horne:
informed me that he was upset because of that two
thousand dollars9 that I had gotten from them in the
past and that it was going to come back to haunt me,
and that he was going to get it back one way or the
other.
Worley said he again told Business Manager Horne that was
not right, that it was his (Horne’s) job to do what the mem-
bership wanted. According to Worley, Horne left the union
hall and he did likewise but they met again in the parking
lot. Worley said Business Manager Horne again told him he
was ‘‘going to get that $2,000 back one way or the other.’’
Worley asked if he was threatening him and Business Man-
ager Horne replied he could take it anyway he wanted to.
Worley said they then got in each other’s face and Worley
asked if Horne was going to sue him, take him to court, or
shoot him. According to Worley, Horne wanted Worley to
hit him first so he could sue him and get the $2000 back
that way. Worley told Horne: ‘‘You’ve got the same option.
You hit me first. If you hit me, I will stomp a mudhole in
your you know what.’’ Worley said they were speaking loud-
ly as they left the parking lot.
443OPERATING ENGINEERS LOCAL 925 (SIMS CRANE CO.)
10 Worley said he told the other committee members what had
transpired at the union hall on August 4, 1993.
11 The executive board did not conduct any official business while
Worley was present.
12 President Piper explained the Union has two types of pensions,
the first being a disability pension and the other being regular retire-
ment from the trade.
13 President Piper said it was illegal under the Union’s constitution
for Worley or anyone else to hold union office while drawing a pen-
sion.
14 Piper stated that Worley, as chairman of the bylaws revision
committee, wanted to do some research and have a mail out.
15 Union Secretary Frost and Business Manager Horne corrobo-
rated President Piper’s testimony essentially as outlined above.
The members of the bylaws revision committee met imme-
diately before the general membership meeting on August
27, 1993.10 On that same date, Worley attempted to attend
the executive board meeting in his capacity as one of the
duly elected local auditors. All executive board members
were present including President Piper and Business Manager
Horne. Worley testified:
Before the meeting was convened, [President Piper] in-
formed me that he didn’t think I should be in the meet-
ing and that I should get out. That he had decided ac-
cording to a provision in the constitution, that I had not
actively been seeking work at the trade and, therefore,
I was ineligible to hold office on the Executive Board,
or run for an election for office on the Executive
Board.
Worley told President Piper he was wrong, that he had
asked about the qualifications for office before the election.
Worley insisted he met all qualifications for office namely
that he had actively been seeking work in the trade as re-
flected on the out-of-work list and he was a member in good
standing of the Union in that his union dues were paid. Ac-
cording to Worley, President Piper said he didn’t care that
he (Piper) had made the decision and that if Worley didn’t
get out of the meeting, he would have the guard remove him.
Worley told President Piper he would just have to have the
guard remove him. The guard asked Worley to leave but
Worley refused saying it should be left to the Executive
Board whether he stayed or left. Worley testified President
Piper said it was his decision alone to remove him from the
Executive Board, that he was the one ‘‘making the call on
it.’’ and if Worley did not leave he would call the sheriff’s
department. Worley told President Piper to go ahead and call
the sheriff’s department—which Piper did. Worley walked
out of the executive board meeting room prior to the sheriff’s
representative arriving on the scene. Worley testified Presi-
dent Piper told the sheriff’s department representative that
the person involved in the conflict had gone and the sheriff’s
department was no longer needed. Worley testified he did
not attend the Executive Board meeting held that evening.11
According to Worley, the bylaws revision committee met
1 hour before the regularly scheduled monthly union general
membership meeting on September 24, 1993. Worley also at-
tended the regular membership meeting that evening. Ac-
cording to Worley, the general membership wanted to know
what was going on with the bylaws revision committee.
Worley testified President Piper announced ‘‘that not only
was I off the Executive Board, but I could not serve on the
By-Laws Committee as well, it being a membership-elected
committee.’’ Worley testified ‘‘I was questioning everything.
How come I couldn’t even appeal to the Executive Board
about my being removed.’’
B. President Piper’s and Business Manager Horne’s
Accounts of Events
President Piper testified Worley came to the union hall on
July 28, 1993, and the two of them discussed the availability
of work in the trade in the Union’s jurisdiction. Piper said
Worley was exploring the possibility of taking his union pen-
sion12 but was concerned there might be extended work in
the trade upcoming in the area.
President Piper attended the general membership’s regular
monthly meeting on July 30, 1993. He said he and Worley
did not discuss eligibility requirements for seeking union of-
fice either before or at that meeting.
As noted elsewhere, it is undisputed that Worley was
elected as an auditor for the Local Union and to serve on
the Union’s bylaws revision committee at the July 30, 1993
meeting. It is likewise undisputed that Worley was elected by
the bylaws revision committee to serve as its chairman.
According to President Piper, a former member (Robert
Vick) who had been on disability of some sort was seeking
at the July 30 meeting to be reinstated as a member of the
Union with the understanding he couldn’t, for health reasons,
work in the trade but just liked being a member of the
Union. Piper testified Worley explained at the meeting how
Vick could work ‘‘through the system’’ on ‘‘Social Security
disability.’’ Piper said that after Worley spoke about Social
Security disability, he began to think maybe Worley was on
Social Security disability and as such was not actively seek-
ing work in the trade.13 President Piper said he decided to
look into Worley’s status.
President Piper testified Worley came to the union hall on
August 5, 1993. Piper said he, secretary Frost, and Business
Manager Horne were all present at the time. Piper said
Worley was talking about a mail out14 but he paid little at-
tention to him. Piper said there was a heated exchange be-
tween Worley and Business Manager Horne about when the
committee could meet. According to President Piper, Worley
pointed his finger in Horne’s face and with a raised voice
and in an upset manner told Horne ‘‘Well, you have no
choice but to do as—I say.’’ Business Manager Horne re-
sponded that Worley had just said the magic words that he
(Worley) could take all his paperwork with him and do it
himself because neither he nor President Piper or secretary
Frost was going to do his work for him. President Piper said
Business Manager Horne walked out at that time.15
President Piper testified Worley and Horne continued their
exchange in the parking lot where the two were ‘‘nose-to-
nose.’’ Piper even thought the two were going to engage in
fisticuffs. Piper testified that although he is hard of hearing,
he heard Worley tell Business Manager Horne ‘‘I’m going
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Business Manager Horne testified Worley ‘‘screamed’’ at him
from across the parking lot and told him he would beat him to death
and ‘‘stomp a mudhole in [his] ass.’’
17 President Piper told Worley he was removing him pursuant to
article XXIV of the Union’s constitution.
18 Worley testified President Piper told him at the September meet-
ing that he could not attend the executive board meeting and his ap-
peal would not be heard. Worley testified on rebuttal that he waited
outside the door at the September 1993 executive board meeting to
present his appeal but was never allowed to do so.
19 Worley’s appeal was denied at the International level as being
untimely.
20 President Piper acknowledged on cross-examination the Union’s
constitution does not address Social Security disability.
21 Piper acknowledges the meeting took place and that Worley
spoke of retirement but then decided that there was going to be
some work in the area in the trade for the next 20 years.
22 President Piper does not believe he had any one-on-one discus-
sions with Worley at the July 30 meeting and Piper specifically de-
nies having any eligibility for office discussions with Worley either
before or at the July 30 meeting. I credit Worley’s testimony that
he discussed eligibility for office requirements with President Piper
at the July 30, 1993 meeting. Worley impressed me as an individual
who checked every angle on any matter that might impact on any-
thing which could inure to his advantage such as retirement possi-
to stomp a mudhole in your back.’’16 Business Manager
Horne testified he pointed his finger at Worley and told him
‘‘and another thing, the little $2000 deal isn’t over with
yet.’’ Horne explained he was referring to the settlement of
the earlier unfair labor practice case of Worley and he added
he mentioned it because ‘‘he just wanted to aggravate the
hell out of [Worley].’’
President Piper testified that sometime after August 5 but
before August 27, 1993, he telephoned the Social Security
Administration and after providing that agency with
Worley’s social security number, was told Worley was on
social security disability and had been for 2 years. President
Piper testified that based on that information he decided
Worley was not eligible to run for and/or hold office in the
Union.
President Piper testified that just before the executive
board went into session on August 27, 1993, he removed
Worley from membership on the Board.17 Piper explained to
Worley that according to the Union’s constitution it was ille-
gal for him (Worley) to hold office in the Union because he
was on Social Security disability. Piper testified Worley did
not want to leave the executive board meeting and suggested
if he wanted him removed to call the law which Piper said
he did. Piper stated Worley thereafter left the executive
board meeting and filed an appeal with the Local regarding
his removal from office. President Piper testified Worley did
not show up for his appeal at the September executive board
meeting.18 Piper thereafter advised Worley to take his appeal
to the International Union.19
Article XXIV of the constitution reads in pertinent part as
follows:
The terms of all Local union officers shall be three
years, except that when and if permitted by applicable
law, the terms of Local Union office may be four (4)
years. No member shall be eligible for election, be
elected, nor hold office unless he shall have been a
member continuously in good standing in the Local
Union electing him for one (1) year preceding the
month of nominations; and provided that no member
shall be eligible for election, be elected, nor hold office
unless he shall also have been a member of the organi-
zation for two years immediately prior to election.
. . . .
No member shall be eligible for election, be elected
nor hold office who has not during the year, and in the
case of one seeking the office of Business Manager two
years, immediately prior to the month of nominations,
been continuously employed at the trade, or who has
not actively sought continuous employment at the trade.
. . . .
If no member fulfills the foregoing conditions of eli-
gibility for a particular office, any member currently in
good standing in the Local Union, and otherwise eligi-
ble, shall, upon being nominated, be eligible to be
elected to, and to hold, that office.
Notwithstanding any other provision of this Constitu-
tion, no member retired from work at the trade shall be
eligible for election , be elected nor hold office in any
Local Union.
President Piper testified he not only reviewed the Union’s
constitution before removing Worley but also reviewed nu-
merous decisions and opinions of the Union’s general presi-
dent.20
President Piper testified that in September 1993, he re-
moved Worley from his elected position on the bylaws revi-
sion committee. Piper said he did so because
A member retired should not be setting policy for the
people that are working. He was not a member seeking
continuous work at the trade. He should not sit on the
committee making policy for the people that are work-
ing . . . at the trade.’’
Piper said he removed Worley from both his elected posi-
tions for the exact same reason, namely he ‘‘wasn’t actively
seeking work in the trade.
2. Analysis and conclusions
The central question simply stated is, did the Union re-
move Worley from his elected positions of auditor and mem-
bership on the bylaws revision committee because he pre-
viously filed and settled an unfair labor practice charge
against the Union. I am persuaded the answer is yes. First,
Worley filed a prior unfair labor practice charge that resulted
in a Board complaint against the Union. That complaint was
settled by the Union paying Worley $2000. The check was
signed both by President Piper and Business Manager Horne
and noted it was a ‘‘nuisance value settlement.’’ Second, on
July 28, Worley asked President Piper about work in the
trade and reminded Piper of his limitations. Worley asked
Piper to inform him of any jobs similar to the one the Union
had referred him to at the Pomco jobsite where he operated
a heavy duty crane.21 Worley also brought his union dues
current at that time. Third, on July 30, 1993, Worley asked
President Piper what the eligibility requirements for holding
office were. President Piper told Worley ‘‘all [he] had to do
was have [his] dues current and have [his] name on the out-
of-work list.22 It is undisputed Worley’s name was on the
445OPERATING ENGINEERS LOCAL 925 (SIMS CRANE CO.)
bilities, social security disability requirements, workmen’s compensa-
tion benefits or settlements, and the like. Worley seemed to take
pride in his ability to utilize ‘‘the system’’ to his advantage. It is
against this backdrop that I am persuaded he checked with Piper
about eligibility requirements for office in the union.
23 I credit Worley’s testimony that Horne twice mentioned the
$2000 on August 4, once in the union hall where President Piper
and secretary Frost were and once outside where just Worley and
Horne were. Horne only denies mentioning the $2000 payment in-
side the union hall. I find, as alleged in the complaint, that Horne’s
latter comments as outlined above constitute a threat of unspecified
reprisals against Worley in violation of Sec. 8(b)(1)(A) of the Act.
24 The credited testimony establishes President Piper told Worley
if he did not leave the Executive Board meeting on that date, that
he would call the local sheriff’s department and have him removed.
Inasmuch as I conclude President Piper removed Worley from his
elected auditor’s position because he filed unfair labor practice
charges against the Union, I also conclude he unlawfully threatened
Worley with physical removal in violation of Sec. 8(b)(1)(A) of the
Act.
25 The Union contends Business Manager Horne did not make the
decision to remove Worley that President Pipe alone made that call.
Even if President Piper made the decision without consulting Busi-
ness Manager Horne, which I consider unlikely, Piper had signed the
check settling Worley’s prior unfair labor practice charge and he was
present at the union hall when Horne announced the Union was still
upset with Worley over the prior unfair labor practice charge and
settlement payment and the Union was going to settle the matter to
its satisfaction one way or the other. There is no showing President
Piper tried, or wanted, to distance himself from Business Manager
Horne’s stated views toward Worley’s prior unfair labor practice
charge and settlement.
26 It was Worley’s being fired from that job that lead to his filing
the prior unfair labor practice charge against the Union.
out-of-work list and his dues were current. Worley was elect-
ed to two union positions at the July 30, 1993, meeting.
Fourth, it is clear Business Manager Horne told Worley on
August 4, both inside and outside the union hall, that he was
upset about the $2000 Worley had received from the Union
and such would haunt him (Horne) and he was going to get
it back one way or the other.23 Fifth, Worley was removed
from his elected position as auditor on July 27, 1993,24 and
his membership on the bylaws revision committee in Sep-
tember assertedly because he was not eligible to hold office.
I note Worley’s removal came approximately a month after
President Piper told Worley what the qualifications for office
were, which qualifications Worley met and to which Presi-
dent Piper raised no immediate objections, but only a few
days after Business Manager Horne in President Piper’s and
secretary Frost’s presence told Worley the Union was still
‘‘upset’’25 with him and was going to settle things out with
him one way or the other. In light of all the above, it is clear
the Government established a strong prima facie showing
that Worley’s filing the prior unfair labor practice charge and
thereafter obtaining a settlement of that charge was ‘‘a moti-
vating factor’’ in the Union’s decision to remove him from
his elected positions.
Having concluded the Government established a prima
facie showing that Worley’s prior unfair labor practice
charge and subsequent settlement was a motivating factor in
the Union’s decision to remove him from his elected posi-
tions, the burden shifts to the Union to establish it would
have removed him had he never filed and settled the prior
unfair labor practice charge. I am persuaded the Union failed
to meet its burden. First, President Piper, who asserts he
alone made the decision to remove Worley, had difficulty
stating exactly why he removed him. When called as an ad-
verse witness by the Government, Piper stated he removed
Worley because he was not continuously seeking active work
at the trade. At yet another point he stated it was because
Worley was not seeking continuous work at the trade. In the
Union’s case-in-chief, President Piper testified he removed
Worley because he checked on Worley’s status and found he
was on Social Security disability and removed him because
it was illegal to hold office and draw a pension at the same
time. Piper said the latter fact alone was ‘‘enough’’ to decide
Worley was ineligible to run for or hold office in the Union.
President Piper testified he told Worley on (August 27) he
was removing him from the executive board because he was
on Social Security disability, and that according to the
Union’s constitution, it was illegal for him to hold office. I
am persuaded, in agreement with the Government, that Pip-
er’s ambiguous and somewhat contradictory testimony as to
the reason or reasons for Worley’s removal from his duly
elected positions suggests pretext on the part of the Union
and indicates the real reason was something else which I am
persuaded was the fact Worley filed and settled a prior unfair
labor practice charge against the Union.
President Piper’s testimony he relied on the Union’s con-
stitution in removing Worley from his elected positions does
not withstand close scrutiny. First, the Union’s constitution
states that no member shall be eligible to seek or hold office
who (1) has not during the year—immediately prior to the
month of nomination—actively sought continuous employ-
ment at the trade—or (2) has retired from work at the trade.
Even if President Piper’s testimony is interpreted that he re-
lied on either or both of the above constitutional provisions,
the evidence tends to establish neither applied to Worley and
that the Union, President Piper in particular, knew so on Au-
gust 27, and in September when Piper took action against
Worley. In that regard, President Piper knew as of July 28,
that Worley was seeking employment in the trade because
they discussed such on that date. President Piper knew
Worley was on the out-of-work list inasmuch as the Union
maintains the list. President Piper knew Worley worked 7
months starting in 1991 at the Pomco jobsite.26 The Union
referred Worley to the Pomco job. President Piper acknowl-
edged Worley had been drawing Social Security Disability
since 1988. Piper acknowledges Worley asked him on July
28, about further work comparable to what he had performed
at the Pomco site. Thus on and after July 28 (including July
30, August 27, and September) President Piper knew Worley
was seeking continuous employment at the trade. President
Piper also knew on and after July 28, that Worley was not
retired from the trade because Worley was still actively seek-
ing employment on that date and the Union’s records do not
reflect Worley had ever taken retirement (disability or regu-
lar) from the Union’s pension funds. Furthermore, President
Piper’s testimony that he relied upon decisions and opinions
of the Union’s general president in removing Worley does
not withstand examination. The general president’s decisions
and opinions exclusively address questions arising where
members have retired from work at the trade or have taken
a union (disability or regular) retirement. In fact, one deci-
sion and opinion of General President Frank Hanley dated
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
July 21, 1992, (U. Exh. 9, pp. 15–16) pertains to the eligi-
bility of two members to hold office while receiving pension
benefits from former employers. General President Hanley
ruled the two were eligible to hold office notwithstanding the
fact they were drawing pensions from their previous employ-
ers. Thus, in the case sub judice, Worley was drawing Social
Security disability from the Government and was not, nor
ever had been, drawing a pension payable from the Union’s
pension funds. Thus, it is clear President Piper could not
have relied on the Union’s constitution to justify removing
Worley from his elected positions because Worley met the
constitutional requirements to seek and hold office.
In light of all the above, I am persuaded Worley met the
qualifications to seek and hold union office and the Union
knew so on and after July 28, 1993. Thus, I conclude and
find the Union failed to demonstrate it would have removed
Worley from his elected union positions even if he had not
filed his prior unfair labor practice charge against the Union.
The Board has consistently held that a union’s restriction
of members’ access to the Board is unlawful coercion that
violates Section 8(b)(1)(A) of the Act. The Union’s actions
removing Worley from his elected positions in retaliation for
his having filed and settled his prior unfair labor practice
charge against the Union clearly constitutes such unlawful
coercion, and I so find.
I shall now examine the remaining issue, namely, did the
Union on or about August 4, 1993, acting through Business
Manager Horne, unlawfully refuse to provide its Local’s by-
laws revision committee with office assistance and meeting
times. I conclude it did. The credited testimony establishes
that when Worley (who was chairman of the committee) met
with Business Manager Horne at the union hall on August
4, 1993, Horne told Worley that neither he nor other union
staff members were going to help or assist the committee any
further with its project. Horne told Worley he had for the
past 10 years been, ‘‘a little bit squirrelly’’ and in an
‘‘upset’’ manner told Worley that the payment of $2000 to
him would come back to haunt him. It is reasonable to con-
clude, as I do, that Horne’s displeasure with Worley over his
prior unfair labor practice charge caused Horne to withdraw
assistance to the committee in retaliation against Worley as
the committee chairman. Horne’s action violates Section
8(b)(1)(A) of the Act, and I so find.
CONCLUSIONS OF LAW
1. Sims Crane and Equipment Co. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Sims Crane and Equipment Co. and the Union have at
all times material herein been parties to a collective-bargain-
ing agreement.
3. International Union of Operating Engineers, Local 925,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. By engaging in the following conduct, the Union vio-
lated Section 8(b)(1)(A) of the Act:
(a) Refusing to provide the Local bylaws revision commit-
tee with office assistance and meeting times.
(b) Threatening members with unspecified reprisals.
(c) Threatening, removing, and excluding Ray O. Worley
from the executive board meeting on August 27, 1993.
(d) Removing Ray O. Worley from his elected positions
as auditor and from membership on the bylaws revision com-
mittee.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the Union has engaged in violations of Sec-
tion 8(b)(1)(A) of the Act, I shall recommend it be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Union discriminatorily removed Ray
O. Worley from his elected positions of auditor and member-
ship on the bylaws revisions committee, I shall recommend
he be reinstated to those positions. It is recommended his re-
instatement to the auditor position be for the term he was
elected to serve. It is recommended he be reinstated to mem-
bership on the bylaws revision committee until that commit-
tee has concluded its assigned tasks and has been disbanded
by a vote of the union membership. I also recommend the
Union be ordered to post an appropriate notice to members,
copies of which are attached as appendix for 60 days in
order that members may be apprised of their rights under the
Act and the Union’s obligation to remedy its unfair labor
practices.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended27
ORDER
The Union, International Union of Operating Engineers,
Local 925, AFL–CIO, Tampa, Florida, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Refusing to provide the bylaws revision committee
with office assistance and meeting times.
(b) Threatening members with unspecified reprisals.
(c) Threatening, removing, and excluding Ray O. Worley
from Local executive board meetings during his elected term
as auditor.
(d) Removing Ray O. Worley from his elected positions
as auditor and membership on the bylaws revision commit-
tee.
(e) In any like or related manner interfering with, restrain-
ing, or coercing members in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reinstate Ray O. Worley to his elected position as
local auditor for the remainder of the term for which he was
elected, and reinstate Ray O. Worley to membership on the
bylaws revision committee until such time as that committee
has completed its assigned tasks and has been disbanded by
a vote of the local membership.
447OPERATING ENGINEERS LOCAL 925 (SIMS CRANE CO.)
28 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Post at its offices copies of the attached notice marked
‘‘Appendix.’’28 Copies of the notice on forms provided by
the Regional Director for Region 12, after being signed by
the Union’s authorized representative shall be posted by the
Union immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Union to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(c) Forward to the Regional Director for Region 12 signed
copies of the notice sufficient in number for Sims Crane and
Equipment Co, if willing, to post at its Tampa, Florida facil-
ity.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for mutual aid and protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to provide the bylaws revision com-
mittee with office assistance and meeting times.
WE WILL NOT threaten our members with unspecified re-
prisals.
WE WILL NOT threaten to remove or exclude Ray O.
Worley from executive board meetings during his elected
term as auditor.
WE WILL NOT remove Worley from his position as a mem-
ber on the bylaws revision committee.
WE WILL reinstate Ray O. Worley to his elected position
of auditor for the remainder of the term for which he was
elected and WE WILL reinstate Ray O. Worley to membership
on the bylaws revision committee until that committee has
finished its tasks and has been disbanded by a vote of the
membership.
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL 925, AFL–CIO