ACF Industries, 115 (1993)

ACF Industries, Incorporated and Samuel F.

Dreisbach. Case 4-CA-18015

January 14, 1993

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH

On June 30, 1992, Administrative Law Judge Frank

H. Itkin issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting 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 conclusions,2 and to adopt the recommended Order, as modified.3

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, ACF Industries, Inc., Milton, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order except that the attached notice is substituted fn. that of the adminidrative 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.

WE WILL NOT retaliate against our employees because they have engaged in Union or other protected concerted activities by eliminating job classification 134-26; by reclassifying job classification 134-26 to 134-27; and by eliminating job classification 134-27 and laying off employee Samuel F. Dreisbach.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them in Section 7 of the National Labor Relations Act.

WE WILL reinstate the 134-26 job classification; offer employee Dreisbach immediate and full reinstatement to this job without prejudice to his seniority or other rights and privileges; and make him whole for any loss of earnings he may have suffered by reason of our unlawful conduct, with interest.

WE WILL expunge from our files any reference to the laying off of Dreisbach as found unlawful by the Board, and notify him in writing that this has been done and that evidence of this unlawful layoff will not be used as a basis for future personnel action against him.

ACF INDUSTRIES, INCORPORATED

Lea F. Alvo, Esq., for the General Counsel. Charles J. McKelvey, Esq., for the Respondent.

DECISION

FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in this case on April 11, 1989; an amended charge was filed December 10, 1991; and a complaint issued on December 17, 1991. General Counsel alleges in his complaint that Respondent and United Steel-workers of America, Local 1928 were parties to a collective bargaining agreement covering the Employer's production and maintenance employees; that about March 10, 1989 the Employer reclassified the job classification of ''134-26 Operator Truckdriver-Trackmobile'' to ''134-27 Truck Operator- Pick Up''; that about March 21, 1989 the Employer eliminated the ''134-27'' classification and laid off unit employee Charles F. Dreisbach from that position; and that the Employer engaged in this conduct because Dreisbach had filed and pursued a grievance under the collective-bargaining agreement, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act.

Respondent Employer denies in its answer violating the Act as alleged. Respondent Employer also asserts that all issues raised in the amended charge filed on December 10,

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.

Where, as here, the judge has evaluated the employer's explanation for its actions and found that the reasons it has advanced either did not exist or were not relied on, we find that the judge's findings satisfy the analytical objectives of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). See Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).

2 We modify the judge's recommended remedy to provide that any backpay necessary to make the Charging Party whole during his periods of unlawful reassignment shall be computed in the manner prescribed in Ogle Protection Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).

3 We modify the judge's recommended Order to correct the name of the Charging Party to Samuel F. Dreisbach and include a revised notice as an Appendix to reflect that modification.

30X NLRB No. 22

1991, are time barred by Section 10(b) of the Act; and, further, that an arbitrator's decision issued on June 3, 1991, bars this proceeding under principles of res adjudicata, collateral estoppel and the ''Board's Collyer doctrine.''

A hearing was held on the issues raised in Lancaster, Pennsylvania, on April 8, 1992. On the entire record, including my observation of the demeanor of the witnesses, I make the following

FINDINGS OF FACT

Respondent Employer manufactures and leases railroad freight cars at its facility in Milton, Pennsylvania. Its production and maintenance employees have been represented by the Union for the past 50 years. The collective-bargaining agreement between the Employer and the Union during the time period pertinent to this case was effective from July 3, 1985, through July 2, 1991. The agreement provided for a three-step grievance procedure culminating in ''final and binding'' arbitration. (See Jt. Exh. 4, arts. 7 and 8.) The Employer and the Union executed a later agreement effective July 3, 1991, through July 2, 1994. (See R. Exh. 2.) It is un-disputed that Respondent Employer is an employer engaged in commerce and the Union is a labor organization as alleged.

The facts in this case are essentially undisputed.1 The Employer created job classification 134-26 in May 1988. This job consisted of operating a trackmobile and pickup truck. The trackmobile duties consumed about 1 hour's work on an 8-hour shift. The pickup truckdriving duties were previously performed by nonunit salaried personnel. Job 134-26 was created for unit employee Donald Pursell who had sustained a severe injury at work resulting in the loss of a portion of one heel and had been on workman's compensation leave for a number of months. As the Employer's former manager of labor relations, Edward Rosko explained:

This was created to find a job for Pursell to . . . be employed with his physical limitations . . . .

Rosko noted that the Employer was also trying to avoid a potential permanent workman's compensation disability award in excess of $350,000.

The 134-26 job was then put up for ''bid'' pursuant to the collective-bargaining agreement. Pursell ''bid'' on the job and, as the most senior employee ''bidding,'' was awarded the job. Rosko testified:

Q. Mr. Rosko, is it not a fact that the Company talked to Mr. Pursell about coming back to work after his injury as a salaried employee and he refused?

A. That was discussed, yes.

Q. . . . When you set up these new job classifications . . . in order to accommodate Mr. Pursell, did you take into consideration the ramifications of the contractual agreement . . . as far as the [bidding or] bumping situation?

A. Yes.

Q. Had you a contingency plan if a senior employee to Mr. Pursell would have bid [or bumped] on that job?

A. No, it was a crap shoot.

Unit employee Samuel F. Dreisbach was laid off by the Employer on January 12, 1989, because he ''was unable to perform'' his pipefitter job duties as a result of a nonwork related ''physical condition.''2 Dreisbach, who had greater seniority than Pursell, decided on January 16 to ''bump'' into the 134-26 job pursuant to the collective-bargaining agreement. As Union Representative Robert English testified, Dreisbach ''had a contractual right to do it'' and the Employer ''reluctantly'' ''accepted Dreisbach's bump'' into the 134-26 job. However, shortly thereafter, on January 19, the Employer laid off Dreisbach from the 134-26 job. Rosko then apprised Dreisbach that ''based upon [his] physician's certification of [his] physical abilities and/or restrictions'' the 134-26 ''job requires frequent lifting . . . in excess of [his] 50 pound lifting restriction.''

Later, on January 25, 1989, Dreisbach's doctors ''re-evaluated'' Dreisbach's condition. One doctor concluded:

[He] should refrain from activities of a pipefitter and it sounds like a job of truck driver/trackmobile operator is an ideal one for him even though it requires occasional heavy lifting.

The other doctor concluded:

I do not want [him] pushing or pulling pipe wrenches or climbing. There is no weight restriction as far as lifting.

Dreisbach was certified as ''able to return to work as truckdriver/trackmobile operator.''

Dreisbach returned to work and again ''bumped'' into the 134-26 job pursuant to the collective-bargaining agreement. Dreisbach, however, was instead assigned the ''receiving dock attendant's job'' which was classified as 134-24. Dreisbach then worked as a ''checker . . . at the receiving dock.'' Although job 134-24 paid less wages than 134-26, Dreisbach was given the rate he would have earned in the 134-26 job. In the meantime, Pursell continued to perform the 134-26 job.

Dreisbach complained to Union Representative English about not being permitted to perform the 134-26 job. The Union and the Employer were unable to resolve this complaint and on February 21, 1989, the Union and Dreisbach filed two grievances pertaining to this assignment and the fact that Pursell had earned overtime in job 134-26...