Limbach Company, 573 (2002)

Limbach Company and Sheet Metal Workers, Local Union No. 24, International Association, AFL- CIO. 9-CA-34663

May 30, 2002

DECISION AND ORDER

BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND BARTLETT

On March 31, 2000, Administrative Law Judge Nancy

M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief. The Charging Party filed an answering brief, and the Respondent filed a reply 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 briefs and has decided to affirm the judge's rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge, as modified below and orders that the Respondent, Limbach Company, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

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.

In addition, some of the Respondent's exceptions imply that the judge's rulings, findings, and conclusions demonstrate bias and prejudice. Specifically, the Respondent contends, inter alia, that the judge has found Sec. 8(a)(3) violations in all of the Sec. 8(a)(3) cases she has decided since January 1973, save one. On careful examination of the judge's decision and entire record, we are satisfied that the Respondent's contentions are without merit. Assuming arguendo that the Respondent's statistics regarding the judge's record on Sec. 8(a)(3) cases are accurate, they do not demonstrate bias. As the Fourth Circuit has stated, a judge should not be "rate[d] by the percentage of times he or she rules on a given side of a case. To evaluate an ALJ's impartiality in this way amounts to judging [his or her] record by mere result or reputation. In reality, such statistics tell us little or nothing." Field-crest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996). Accord: Eldeco, Inc. v. NLRB 132 F.3d 1007, 1010 (4th Cir. 1997). Significantly, such statistics "do not tell us whether the ALJ decided individual cases correctly. . . ." Fieldcrest Cannon, Inc. v. NLRB, supra.

2 We shall modify the judge's recommended Order in accordance with our recent decision in Ferguson Electric Co., Inc., 335 NLRB 142 (2001), and we shall substitute a new notice in accordance with our recent decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).

1. Substitute the following for paragraph 2(d).

   "(d) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel re-cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order."

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 Federal labor law and has ordered us to post and obey this notice.

   FEDERAL LAW GIVES YOU THE RIGHT TO

   Form, join, or assist a union

   Choose representatives to bargain with us on your behalf

   Act together with other employees for your benefit and protection

   Choose not to engage in any of these protected activities.

   WE WILL NOT threaten you that you will be discharged if you are not removed from the position of union steward.

   WE WILL NOT discourage membership in Sheet Metal Workers, Local Union No. 24, International Association AFL-CIO, by discharging you, or otherwise discriminating in regard to your hire or tenure of employment or any term or condition of employment.

   WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under the Act.

   WE WILL, within 14 days from the date of the Board's Order, offer Rosemary Taylor reinstatement to her former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.

   WE WILL make Rosemary Taylor whole, with interest, for any loss of earnings and other benefits she may have suffered by reason of her termination.

   WE WILL, within 14 days from the date of the Board's Order, remove from our files all reference to Rosemary Taylor's unlawful discharge, and WE WILL, within 3 days

   thereafter, notify her in writing that this has been done and the actions and matters reflected in these documents will not be used against her in any way.

   LIMBACH COMPANY

   Mark Mehas, Esq., for the General Counsel.

   James M. L. Ferber, Esq., of Columbus, Ohio, Scott Ferber, Esq., then of Columbus, Ohio, and Martin A. Keyser, Esq., of Pittsburgh, Pennsylvania, for the Respondent.1

   Jerry Spicer, Esq., of Dayton, Ohio, for the Charging Party.

   DECISION

   STATEMENT OF THE CASE

   NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Cincinnati, Ohio, on February 23-26, 1999, pursuant to a charge filed by Sheet Metal Workers, Local 24, International Association, AFL-CIO (the Union) on February 24, 1997, against Respondent Limbach Company, and a complaint issued on September 22, 1998, and amended on February 23, 1999. In its final form, the complaint alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, (the Act) by threatening an employee with discharge if that employee was not removed from the position of union steward; and violated Section 8(a)(3) and (1) of the Act by discharging employee Rosemary Taylor because of her union activities.

   On the basis of the record as a whole, including the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel (the General Counsel), the Charging Party, and Respondent, I hereby make the following

   FINDINGS OF FACT

   1. JURISDICTION AND THE UNION'S STATUS

      Respondent is a corporation which in Columbus, Ohio, manufactures sheet metal products for the building and construction industry. During the 12 months preceding the issuance of the complaint, Respondent sold and shipped from its Columbus, Ohio, facility goods valued in excess of $50,000 directly to points outside Ohio. I find that, as Respondent admits, Respondent is an employer engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the policies of the Act.

      The Union is a labor organization within the meaning of the Act.

   2. RESPONDENT'S MOTION TO DISMISS

      At all relevant times, Respondent has been a member of the Sheet Metal Contractors of Central Ohio (the Association). Through the Association, Respondent has at all relevant times been bound by a multi-employer collective-bargaining agreement with the Union, with respect to a contract unit which included Rosemary Taylor. With respect to grievances of the Union "arising out of interpretation or enforcement of this

      1 After the filing of R. Br., signed by James M. L. Ferber and Scott Ferber, Scott Ferber left the private practice of law.

      Agreement," the agreement called for a grievance procedure under which (1) the grievance is to be settled, if possible, between the employer and the Union; (2) an unsettled grievance may be appealed to the Local Joint Adjustment Board, which consists of an equal member of representatives of the Union and of the Association, with both sides having an equal number of votes; the Board's decision is "final and binding" except "in the case of a deadlock"; (3) a grievance which is still unsettled can be appealed to a panel consisting of one representative appointed by the Labor Co-Chairman of the National Joint Adjustment Board ("the NJAB") and one representative appointed by the Management Co-Chairman of the NJAB; the decision of the panel "shall be final and binding" except "in case of deadlock"; and (4) a grievance which is still unsettled can be appealed to the NJAB, on which the contractors and Local 24's parent International are equally represented; the NJAB's decision is "final and binding" except "in case of dead-lock." The bargaining agreement does not specify any subsequent steps in the grievance procedure, nor does the agreement include any arbitration provisions which can be invoked by one party without the other's consent.

      On February 25, 1997, the Union filed a written grievance which alleged, among other things, that Respondent "interfered with performance of [Union Business Agent Donald Stiltner's] duty in appointment of Steward, Rose Taylor [and discharged] Steward Rose Taylor after demanding Agent Stiltner replace Steward Taylor." The grievance alleged that Taylor's discharge violated, among other provisions of the collective-bargaining agreement, a clause which forbids the employer to "cause any retaliation or discrimination whatsoever because of the carrying out of [the steward's] duty." Thereafter, this grievance was processed through every step of the contractual grievance procedure, and was deadlocked at every step.2 By letter dated July 1, 1998, the NJAB advised Respondent and the Union that the NJAB had deadlocked as to this grievance.

      The Regional Office deferred the instant proceeding to the grievance proceeding until the deadlock...