Federal Screw Works, 1131 (1993)

Federal Screw Works and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case 7-CA-31379

April 19, 1993

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT

On May 14, 1992, Administrative Law Judge Richard H. Beddow Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief in response to the exceptions. The Respondent then filed replies to the other parties' briefs.

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, findings,1 and conclusions2 and to adopt the recommended Order as modified.3

The Respondent excepts to the judge's findings that it unlawfully issued ''poor'' evaluations to 13 employees and then discharged or caused their employment to terminate. We adopt his findings, which are fully supported by the credited evidence, but only with respect to the seven employees actually named in the complaint: Dan Durst, Jack Fike, Joe Hamilton, Larry

Hinsley, Bill Jones, Vaughn Schoen, and Ron Sharp. We agree with the Respondent's exception regarding the other six employees. The record shows that the charge allegations regarding these six were dismissed on February 26, 1991, and thereafter the General Counsel never sought to amend the outstanding complaint to include these six allegations and never attempted to revive or litigate them at the hearing. In fact, in his brief to the judge, the General Counsel consistently referred to the seven employees named in the complaint as the discriminatees at issue and never indicated that he sought to include any additional discriminatees. Contrary to the judge's erroneous finding, the record clearly shows that the General Counsel's motion to conform the pleadings to the evidence specifically addressed unrelated matters. Cf. Sonicraft, Inc., 295 NLRB 766 (1989), enfd. 905 F.2d 146 (7th Cir. 1990) (no denial of due process where the General Counsel moved to amend the complaint to include allegations closely related to the outstanding timely filed charge). In these circumstances, we find that the 8(a)(3) allegations involving Linda (Lucht) Bromlee, John Lange, Tim Mills, Jack Pfaff, David Schied, and Don Sims are barred by Section 10(b) of the Act and are not properly before the Board for determination on the merits. Accordingly, we shall modify the Order to delete any reference to employees Bromlee, Lange, Mills, Pfaff, Schied, and Sims.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Federal Screw Works, Big Rapids, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Insert the following as paragraphs 2(a) and (b) and reletter the subsequent paragraphs.

   ''(a) Offer Dan Durst, Jack Fike, Joe Hamilton, Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron Sharp immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

   ''(b) Make Dan Durst, Jack Fike, Joe Hamilton, Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron Sharp whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision; provided that such amounts shall be offset by the amounts of the severance payments that these individual employees received, to the extent that such backpay amounts exceed the severance payments; provided further that those employees not entitled to back-pay shall retain the severance payments they received.''

   1 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.

   We also find without merit the Respondent's allegations of bias and prejudice on the part of the judge. On our full consideration of the record and the decision, we perceive no evidence the judge prejudged the case, made prejudicial rulings, or demonstrated a bias against the Respondent in his analysis or discussion of the evidence.

   2 In adopting the judge's conclusion that the Respondent violated the Act regarding the seven named discriminatees, we find it unnecessary to pass on his discussion concerning whether the Respondent may have violated any other Federal law or statute.

   3 The judge stated that the discriminatees, who were unlawfully evaluated, should be awarded $2000 which represents the lower bonus payment. We decline to pass on the specific dollar amount, but leave this issue to compliance. We conclude that the correct remedy is to order the Respondent to make the discriminatees whole by paying them what they would have been paid without the discrimination against them. We amend the remedy section of the judge's decision accordingly.

   The Respondent excepts to the judge's refusal to classify as interim earnings the severance pay given to the terminated employees. We find merit to the Respondent's exception and shall modify the recommended Order accordingly. See Sheller-Globe Corp., 296 NLRB 116 (1989).

2. Substitute the attached notice for that of the administrative law judge.

   APPENDIX

   NOTICE TO EMPLOYEES

   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.

   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 other mutual aid or protection

   To choose not to engage in any of these protected concerted activities.

   WE WILL NOT issue ''poor'' evaluations and discharge or otherwise cause the termination of any employees because of activity protected by Section 7 of the Act.

   WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

   WE WILL offer Dan Durst, Jack Fike, Joe Hamilton, Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron Sharp immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

   WE WILL make Dan Durst, Jack Fike, Joe Hamilton, Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron Sharp whole for any loss of earnings and other benefits resulting from their terminations, less net interim earnings, plus interest. Such amounts shall be offset by the amounts of the severance payments that these individual employees received, to the extent that such backpay amounts exceed the severance payments; provided further that those employees not entitled to back-pay shall retain the severance payments they received.

   WE WILL expunge from our files any reference to their unlawful terminations and their underlying evaluations and notify them in writing that this has been done and that evidence of the unlawful discharge and evaluation will not be used as a basis for future personnel actions against them.

   FEDERAL SCREW WORKS

   Joseph P. Canfield, Esq. and Sherrie E. Voyles, Esq., for the

   General Counsel.

   Frank S. Galgan, Esq., of Troy, Michigan, for the Respondent.

   Nancy Schiffer, Esq., of Detroit, Michigan, for the Charging

   Party.

   DECISION

   STATEMENT OF THE CASE

   RICHARD H. BEDDOW, JR., Administrative Law Judge. This matter was heard in Big Rapids, Michigan, on June 17- 21 and September 16-19, 1991. Subsequent to several extensions of the filing date, briefs were filed by all parties. The proceeding is based on the charge filed January 9, 1991,1 by

   the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL- CIO. The Regional Director's complaint dated February 28, 1991, alleges that Respondent, Federal Screw Works, of Big Rapids, Michigan, violated Section 8(a)(1) and (3) of the National Labor Relations Act by issuing written evaluation ratings of ''poor'' to seven named employees and then discharging them or causing their termination because of their union or other protected concerted activities.

   On a review of the entire record2 in this case and from my observation of the witnesses and their demeanor, I make the following

   FINDINGS OF FACT

   1. JURISDICTION

      Respondent is engaged in the manufacture, distribution, and sale of fasteners for the automotive industry. It annually ships goods valued in excess of $50,000 from its Big Rapids location to points outside Michigan and it admits that at all times material is has been an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act.

   2. THE ALLEGED UNFAIR LABOR PRACTICES

      Respondent has operated a manufacturing facility in Big Rapids since about 1976, and currently employees approximately 100 production employees. It has other, older facilities at Chelsea and Romulus, Michigan, that have been represented by the Union for decades and it has a 4-year-old Brighton, Michigan facility where the employees are unrepresented. The employees at the...