Extract
PCC Structurals, Inc., 868 (2000)
PCC Structurals, Inc., formerly named Precision Castparts Corp. and United Steelworkers of America, AFL-CIO-CLC. Cases 19-CA-24902, 19-CA-24905, 36-CA-7957-1, 36-CA-7957-2, 36-CA-7979-1, and 36-CA-7979-2
March 17, 2000 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN On November 13, 1998, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief, and the General Counsel filed an answering 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 briefs1 and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 For the reasons stated by the judge and for the additional reasons explained below, we find that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging Patrick Maloney, notwithstanding the Respondent's assertion that it took action against Maloney in order to protect a disabled employee from alleged harassment and to comply with the Americans With Disabilities Act (ADA). We also find that the Respondent violated Section 8(a)(1) by its previous issuance of three disciplinary warnings to Maloney and by its threat of adverse action when it warned another employee not to associate with Maloney. The material events occurred in the setting and after-math of a representation election, held on October 10-11, 1996, in which the Steelworkers unsuccessfully sought to become the bargaining representative for most of the Respondent's employees. This election was the second attempt by the Union to win certification; an earlier election, in which the Union was also unsuccessful, had been held in July 1995. The Union filed objections related to the second election (the October election), but these were overruled and the results of the election were officially certified on April 23, 1997. Maloney was suspended on April 4 and discharged on April 10, 1997, 13 days before the Board's final disposition of the Union's objections. 1 The Respondent has also requested oral argument with respect to the application of the Americans With Disabilities Act to this case. The request is denied as the record, exceptions, and briefs adequately pre-sent the issues and the positions of the parties. 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 We shall modify the judge's recommended Order in accordance with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container, Inc., 325 NLRB 17 (1997). We also correct an erroneous reference in the judge's decision to the date of "May 26, 1997," by which the judge was clearly referring to an investigatory interview which was alleged to have occurred on March 26, 1997. Prior to the 9-day hearing in this case, the parties reached a settlement agreement that disposed of most of the allegations in the General Counsel's amended complaint. The remaining allegations pertained to the disciplinary actions the Respondent took against Maloney and to a warning allegedly given by Bob Runyon, allegedly a PCC supervisor, to Grant Doty, another employee, against associating with Maloney.4 The settlement agreement also included a stipulation in which the parties authorized the judge to make certain assumptions of fact, as discussed below. On the basis of the stipulation and the evidence presented, the judge found that the Respondent enforced its no-solicitation policy against Maloney in a discriminatory manner prior to the election; that the Respondent, through Runyon, made an unlawful threat to Doty; and that the Respondent gave Maloney an unlawful discipli-nary warning on January 15, 1997, for engaging in a verbal exchange with another employee concerning the Union. With respect to Maloney's ultimate suspension and discharge, the judge found that the General Counsel had made an "exceedingly strong" prima facie case that the Respondent acted with discriminatory intent under the test established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The judge also found that the Respondent had failed to sustain its Wright Line burden of showing that Maloney would have been suspended and terminated even if he had not engaged in protected conduct. The Respondent f...See the full content of this document
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