The Metalloy Foundry Co., 416 (1976)
The Metalloy Foundry Company and Metalloy Workers Association. Case 7-CA-11949
March 29, 1976 DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
On October 10, 1975, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, the General Respondent filed a brief in answer to the General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge with the following addition and to adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge that Respondent discriminated against employee Dennis Frantz, by failing to recall him after layoff, in violation of Section 8(a)(3), and derivative 8(a)(1), of the Act.
We further agree with the Administrative Law Judge's dismissal of the independent 8(a)(1) allegation. At the hearing the General Counsel amended the complaint by adding the allegation that Respondent displayed threatening notices on bulletin boards, visible to employees.' The Administrative Law Judge found that in February 1975, when Respondent received Administrative Law Judge Bush's decision in Case 7-CA-11335, it removed the notice that had been on its front bulletin board but inadvertently failed to remove a similar notice from the back bulletin board .' He found ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings.
2 The notice, which Respondent originally posted July 16, 1974, read:
ANY UNAUTHORIZED WOII STWAOE WILL LEAD TO DISCIPLINARY ACTION UP TO AND INCLUDING
DISCHARGE FOR ANY EMPLOYEE WHO PARTICIPATES IN SUCH SrOPAGIL PM l The complaint in Case 7-CA- 11335 did not allege any violation concerning the notice nor was the notice itself the direct subject of litigation therein.
that the back board notice was not visible, being largely covered by a plant seniority list. The Administrative Law Judge also found that, when notified of the inadvertence in June 1975, Respondent promptly removed the notice. He thus concluded that the largely covered back board notice had not been conspicuously displayed and that failure to remove it was not coercive.
The General Counsel does not dispute the facts as found by the Administrative Law Judge. He argues in support of his exception to the conclusions that the criterion for judging whether conduct is violative of the Act is its predictable effect and that the effect of continued posting, after Respondent received the Administrative Law Judge's decision in the earlier case, was coercive.
Applying the criterion stated by the General Counsel, which we do, we find that the posting in the circumstances of this case was not coercive. We do not understand that the General Counsel is urging the Board to find a violation with respect to the front board notice that Respondent removed in February 1975. As to the back board notice, Respondent removed it as soon as the notice was called to its attention. Significantly, no meaningful part had been displayed. The record bears out the Administrative Law Judge's finding that it was largely covered 4 The record also establishes, contrary to the position of our dissenting colleague, that the back board notice was not 'observed by many of [Respondent's] employees.' Furthermore, in the context of the facts here, by removing the notice from the front bulletin board,
Respondent had indicated to its employees that the contents of the notice no longer reflected company policy. In these circumstances we find that there is insufficient basis for finding a violation of the Act.5 ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Employee Frantz testified that the back board notice 'was partially covered by the seniority list . . . about half of it was covered . . . just the last couple of words [showed]. You could not make out the whole thing ...
two or three words [were] visible .... Most of it would be blocked. The rest of it would be blocked out...... When Frantz was shown the notice at the hearing, he read these words as visible:
ACTION UP TO
Employee Wunsch testified that the notice could not be seen, that 'it was obscurred [sic] by the seniority list. . . . You could see there was a notice there but you couldn't see what it was.' The seniority list, pinned on top of the notice , had continuously covered the back board notice since January 1975 and for this reason , Respondent's personnel officer testified, the notice was 'frankly forgotten.' 5 Detroit Plastic Molding Co., 209 NLRB 763 (1974).
223 NLRB No. 44
THE METALLOY FOUNDRY COMPANY Order of the Administrative Law Judge as modified below and hereby orders that Respondent, The Metalloy Foundry Company; Hudson, Michigan, its- officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified.
In paragraph 1(b), substitute the words 'In any other manner' for 'In any like or related manner.' 6
Substitute the following for paragraph 2(a):
Offer Dennis Frantz immediate and full reinstatement to his muller operator job or, if it no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in the Remedy section.' 3. Substitute the attached notice for that of the Administrative Law Judge.
MEMBER JENKINS , dissenting in part:
To the extent that my colleagues conclude that Respondent's failure to remove a warning notice to its employees from the back bulletin board did not violate Section 8(a)(1) of the Act, I disagree. Here, after a work stoppage on July 12, 1974, Respondent posted the following notice, signed by its president, on two bulletin boards in the plant:
Any unauthorized work stoppage will lead to disciplinary action up to and including discharge for any employee who participates in such stoppage.
After an earlier proceeding against the Respondent wherein the Respondent was found to have violated Section 8(a)(3) of the Act by the discharge of employee Wunsch for engaging in organizing a protected work stoppage,' Respondent removed one of the foregoing posted unlawful notices from. its front bulletin board. However, Respondent kept the second copy of this unlawful notice posted on the back bulletin board. Respondent finally removed this notice in June 1975. I would find that the continued posting of this flagrantly unlawful notice until June 1975 violated Section 8(a)(1) of the Act whether considered as another example of Respondent's animus already found by my colleagues or as simply the result of carelessness on the part of the Respondent.
Clearly, -the Board and courts have long held that the criterion in...
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