Apollo Plating, 1348 (1994)

Apollo Plating, Inc. and Denton Powser. Case 7-

CA-33045

May 31, 1994

DECISION AND ORDER

BY MEMBERS STEPHENS, DEVANEY, AND COHEN

On July 14, 1993, Administrative Law Judge Robert

T. Wallace issued the attached decision. The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,1 findings,2 and conclusions and to adopt the recommended Order.

We agree with the judge's rejection of the Respond-ent's defense that Charging Party Denton Powser was not rehired because of his poor work record. In doing so, we agree with the judge's finding, based on the Respondent's response to an inquiry from the Michigan Employment Commission, that on September 26, 1991,3 the question of Powser's reemployment, which was the subject of a September 23 grievance, was still open. On September 27, Union Steward Bovee presented a second grievance on Powser's behalf, again protesting the Respondent's determination that Powser was a voluntary quit. The judge found that 2 hours later Personnel Manager Taylor returned the grievance to Bovee, commenting that, ''This just cost Denton Powser any chance of coming back to work for Apollo Plating.'' The Respondent's president, James Grimes,

had noted on the grievance: ''Employee walked off the job. Automatic quit. Company not interested in rehiring this troubled employee.'' Grimes admitted that as of the time he wrote those words he had not referred to Powser's disciplinary record specifically, but that he ''was familiar with a number of times there were confrontations and/or subsequent grievances.'' Grimes testified that he did refer to Powser's record prior to an October 15 grievance meeting with the Union. Based on these facts, the judge concluded that Grimes made the decision not to rehire Powser on September 27, after Powser's second grievance, and that Powser would have been rehired but for his engaging in various protected activities set out in the judge's decision.

The Respondent defends its refusal to rehire Powser in part on the basis of Powser's poor work record. However, Respondent did not specifically consult Powser's work record until after September 27. In recognition of this fact, Respondent asserts that the decision not to rehire was made on October 15. In this regard, Respondent vigorously argues that its September 27 response to the grievance was no more than a routine denial at the first step of the grievance procedure. The Respondent thus contends that the question of Powser's rehire was left open until the October 15 grievance meeting, by which time Grimes supposedly was familiar with Powser's record.

On this record, however, we are persuaded that Grimes made an irrevocable decision not to rehire Powser on September 27, after receiving Powser's second grievance, and that Grimes' decision was in retaliation for Powser's protected activity. Most significantly, when Taylor returned the grievance, he candidly informed Bovee that ''This just cost Denton Powser any chance of coming back to work.''4 While the Respondent continued to process the grievance after September 27, it was bound to do so under the contract. Thus, we find that the Respondent's processing of the grievance after September 27 was pro forma, and that the Respondent violated Section 8(a)(3) and (1) of the Act when it decided on September 27 not to rehire Powser because of his protected activities.5

1 In adopting the judge's rejection of the Respondent's motion for dismissal on 10(b) grounds, Member Stephens notes that he finds this case distinguishable from Redd-I, Inc., 290 NLRB 1115 (1988), in which he filed a partial dissent. In Redd-I, a charge particularly addressing the layoff of employee Kelley was filed and then withdrawn, and Member Stephens concluded that the attempt to revive the charge on a ''closely related'' theory after the 10(b) period had run violated what he regarded as a ''notice'' function of Sec. 10(b). Id. at 1120-1121. In the present case, however, although the September 27 refusal-to-rehire allegation is closely related to the timely filed charge alleging an earlier discriminatory discharge, the rehire allegation was not specifically alleged and withdrawn or dismissed prior to the running of the 10(b) period, as was the case in ReddI. Rather, it was added as an amendment to the timely charge alleging the discharge while that was still pending, and then only the discharge part of the charge was dismissed. Thus, the refusal-to-rehire allegation could not be viewed as an attempted revival, outside the 10(b) period, of a dismissed or withdrawn charge.

2 The Respondent has excepted to some of the judge's credibility findings. 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.

3 All subsequent dates are in 1991 unless otherwise indicated.

4 The Respondent contends that the word ''This'' is ambiguous, and could have referred to an earlier event, for example, Powser's walking off the job 6 days earlier. We note, however, that the word ''This'' is followed by the word ''just,'' which strongly suggests that a contemporaneous event was the motivating factor in the Respondent's decision to deny the grievance. We find that the only contemporaneous event that could give Taylor's statement meaning was Powser's filing of the second grievance.

5 New York Telephone, 300 NLRB 894 (1990), relied on by the Respondent, is distinguishable on its facts. There, unlike here, the company was able persuasively to demonstrate that the alleged discriminatee had a poor attitude that would have precluded his re-hire, entirely apart from his filing of the single grievance that the Board assumed was one factor in the decision not to rehire him. In this case, unlike in New York Telephone, the Respondent was con-

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Apollo Plating, Inc., Rose-ville, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Joseph P. Canfield and Catherine L. Dubay, Esqs., for the

General Counsel.

Robert C. Stone, Esq., for the Respondent.

DECISION

STATEMENT OF THE CASE

ROBERT T. WALLACE, Administrative Law Judge. The charge was filed March 16, 1992, the complaint issued May 4, 1992, and the trial was in Detroit, Michigan, on September 10-11, 1992.

At issue is whether Respondent failed to rehire Denton Powser because he filed grievances and engaged in protected activities in violation of Section 8(a)(3) and (1) of the National Labor Relations Act.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the brief filed by the Respondent, I make the following

FINDINGS OF FACT

Respondent, a corporation, chrome plates automobile parts at its facility in Roseville, Michigan, where it annually performs services valued in excess of $50,000 for customers located outside the State of Michigan. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the General Industrial Employees, Local Union No. 42 is a labor organization...