Extract
Dico Tire, Inc., 1252 (2000)
Cases 10-CA-28843, 10-CA-29109, and 10-RC- 14650
April 17, 2000 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND HURTGEN On June 4, 1997, Administrative Law Judge Lawrence E. Cullen issued the attached decision. The Respondent filed exceptions, a supporting brief, and an affidavit. The General Counsel filed a motion to strike the Respondent's affidavit.1 The Respondent filed a response to the General Counsel's motion. 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 briefs and has decided to affirm the judge's rulings,2 findings,3 and conclusions4 as modified below and to adopt the recommended Order. 1. The Respondent excepts to the judge's finding that the discharge of Charles Long violated Section 8(a)(3) and (1) of the Act. The Respondent contends that Long simply quit his job in a fit of rage and that Long never sought to be rehired by the Respondent. Contrary to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARDRespondent and for the following reasons, we agree with the judge that Long was unlawfully discharged. 1 In light of our disposition of this case, we find it unnecessary to pass on the General Counsel's motion to strike the Respondent's affidavit. We note, however, that the affidavit does not support the Respondent's implication in its brief that any impropriety occurred during the settlement conferences in this proceeding. 2 Contrary to the Respondent's contentions, we find that the amended complaint allegations are all closely related to the general legal theory and substance of the original charges, and therefore are not barred under Sec. 10(b) of the Act. See Fiber Producers, 314 NLRB 1169 (1994), enfd. sub nom. FPC Holdings Inc. v. NLRB, 64 F.3d 935, 938-942 (4th Cir. 1995); and Nickles Bakery of Indiana, 296 NLRB 927, 928 fn. 5 (1989). 3 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. 4 No exceptions were filed to the judge's findings that the Respondent violated Sec. 8(a)(1) by prohibiting employee Kyle Mitchell from discussing his suspension and by requiring him to waive his statutory right to Board access or to the judge's dismissal of an 8(a)(3) allegation regarding Mitchell's suspension. We also note that the judge's finding that the Respondent violated Sec. 8(a)(1) by prohibiting employees' distribution of union literature in its parking lots was based solely on the Sec. 7 rights of the Respondent's employees. The judge did not rely on any impact that this prohibition may have had on union representatives who were also present. We also agree with the judge's overall finding that the Respondent engaged in disparate treatment of Faye Rainey when she was directed to remove her bag of union literature from the disconnect switch on her machine and to put it in her locker. We rely on the fact that other employees were allowed to keep personal belongings on levers located on the base of their machines, but Rainey was not offered this option. The judge found that the General Counsel established that the Respondent knew that Long was a union sup-porter, that it harbored animus against the Union and its supporters, and that these factors substantially motivated the Respondent's decision to terminate Long. The judge further found that the Respondent failed to carry its Wright Line5 burden of proving that it would have termin...See the full content of this document
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