Apollo Plating

National Labor Relations Board - Board Decisions

May 31, 1994

313 N.L.R.B. 1348 (N.L.R.B. 1994)

1348
313 NLRB No. 247
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s rejection of the Respondent’s motion for
dismissal on 10(b) grounds, Member Stephens notes that he finds
this case distinguishable from Redd-I, Inc., 290 NLRB 1115 (1988),
in which he filed a partial dissent. In Redd-I, a charge particularly
addressing the layoff of employee Kelley was filed and then with-
drawn, and Member Stephens concluded that the attempt to revive
the charge on a ‘‘closely related’’ theory after the 10(b) period had
run violated what he regarded as a ‘‘notice’’ function of Sec. 10(b).
Id. at 1120–1121. In the present case, however, although the Sep-
tember 27 refusal-to-rehire allegation is closely related to the timely
filed charge alleging an earlier discriminatory discharge, the rehire
allegation was not specifically alleged and withdrawn or dismissed
prior to the running of the 10(b) period, as was the case in Redd-
I. Rather, it was added as an amendment to the timely charge alleg-
ing the discharge while that was still pending, and then only the dis-
charge part of the charge was dismissed. Thus, the refusal-to-rehire
allegation could not be viewed as an attempted revival, outside the
10(b) period, of a dismissed or withdrawn charge.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 All subsequent dates are in 1991 unless otherwise indicated.
4 The Respondent contends that the word ‘‘This’’ is ambiguous,
and could have referred to an earlier event, for example, Powser’s
walking off the job 6 days earlier. We note, however, that the word
‘‘This’’ is followed by the word ‘‘just,’’ which strongly suggests
that a contemporaneous event was the motivating factor in the Re-
spondent’s decision to deny the grievance. We find that the only
contemporaneous event that could give Taylor’s statement meaning
was Powser’s filing of the second grievance.
5 New York Telephone, 300 NLRB 894 (1990), relied on by the
Respondent, is distinguishable on its facts. There, unlike here, the
company was able persuasively to demonstrate that the alleged
discriminatee had a poor attitude that would have precluded his re-
hire, entirely apart from his filing of the single grievance that the
Board assumed was one factor in the decision not to rehire him. In
this case, unlike in New York Telephone, the Respondent was con-
Apollo Plating, Inc. and Denton Powser. Case 7–
CA–33045
May 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 14, 1993, Administrative Law Judge Robert
T. Wallace issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rul-
ings,1 findings,2 and conclusions and to adopt the rec-
ommended Order.
We agree with the judge’s rejection of the Respond-
ent’s defense that Charging Party Denton Powser was
not rehired because of his poor work record. In doing
so, we agree with the judge’s finding, based on the Re-
spondent’s response to an inquiry from the Michigan
Employment Commission, that on September 26,
1991,3 the question of Powser’s reemployment, which
was the subject of a September 23 grievance, was still
open. On September 27, Union Steward Bovee pre-
sented a second grievance on Powser’s behalf, again
protesting the Respondent’s determination that Powser
was a voluntary quit. The judge found that 2 hours
later Personnel Manager Taylor returned the grievance
to Bovee, commenting that, ‘‘This just cost Denton
Powser any chance of coming back to work for Apollo
Plating.’’ The Respondent’s president, James Grimes,
had noted on the grievance: ‘‘Employee walked off the
job. Automatic quit. Company not interested in rehir-
ing this troubled employee.’’ Grimes admitted that as
of the time he wrote those words he had not referred
to Powser’s disciplinary record specifically, but that he
‘‘was familiar with a number of times there were con-
frontations and/or subsequent grievances.’’ Grimes tes-
tified that he did refer to Powser’s record prior to an
October 15 grievance meeting with the Union. Based
on these facts, the judge concluded that Grimes made
the decision not to rehire Powser on September 27,
after Powser’s second grievance, and that Powser
would have been rehired but for his engaging in var-
ious protected activities set out in the judge’s decision.
The Respondent defends its refusal to rehire Powser
in part on the basis of Powser’s poor work record.
However, Respondent did not specifically consult
Powser’s work record until after September 27. In rec-
ognition of this fact, Respondent asserts that the deci-
sion not to rehire was made on October 15. In this re-
gard, Respondent vigorously argues that its September
27 response to the grievance was no more than a rou-
tine denial at the first step of the grievance procedure.
The Respondent thus contends that the question of
Powser’s rehire was left open until the October 15
grievance meeting, by which time Grimes supposedly
was familiar with Powser’s record.
On this record, however, we are persuaded that
Grimes made an irrevocable decision not to rehire
Powser on September 27, after receiving Powser’s sec-
ond grievance, and that Grimes’ decision was in retal-
iation for Powser’s protected activity. Most signifi-
cantly, when Taylor returned the grievance, he can-
didly informed Bovee that ‘‘This just cost Denton
Powser any chance of coming back to work.’’4 While
the Respondent continued to process the grievance
after September 27, it was bound to do so under the
contract. Thus, we find that the Respondent’s process-
ing of the grievance after September 27 was pro
forma, and that the Respondent violated Section
8(a)(3) and (1) of the Act when it decided on Septem-
ber 27 not to rehire Powser because of his protected
activities.5
1349APOLLO PLATING
sidering rehiring Powser even after he voluntarily quit, until the Re-
spondent received the second grievance. Thus, the second grievance,
and not Powser’s prior work record, was the precipitating factor in
the Respondent’s decision not to rehire Powser. We also note that
this case is distinguishable from New York Telephone in that, as the
judge found, the Respondent’s belief that Powser was a ‘‘troubled
employee’’ was predicated in substantial part on other protected con-
duct, not just the filing of one grievance, and that President Grimes,
who made the no-rehire decision, could not offer specific instances
of claimed deficiencies in Powser’s record.
1 All dates are 1991 unless otherwise indicated.
2 Citing Sec. 10(b) of the Act, Respondent moves for dismissal of
the complaint because the claim of wrongful failure to rehire was
first raised on May 6, over 7 months after the date (September 27,
1991) of the event. I find no time bar. The alleged unlawful refusal
to rehire occurred shortly after and otherwise appears sufficiently re-
lated to the admittedly timely filed charge of wrongful discharge as
to be encompassed thereby. Pankratz Forest Industries, 269 NLRB
33 (1984); Redd-I Inc., 290 NLRB 1115 (1988).
3 Taylor denies making the statement. He claims that while in his
office on September 27 talking to Grimes, Bovee entered and handed
the grievance to Grimes, and that the latter, after writing something
on the grievance, immediately returned it to Bovee. Grimes agrees
with Taylor. I have credited Bovee’s account, finding it consistent
with other undisputed facts of record.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Apollo Plating, Inc., Rose-
ville, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Joseph P. Canfield and Catherine L. Dubay, Esqs., for the
General Counsel.
Robert C. Stone, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. The
charge was filed March 16, 1992, the complaint issued May
4, 1992, and the trial was in Detroit, Michigan, on September
10–11, 1992.
At issue is whether Respondent failed to rehire Denton
Powser because he filed grievances and engaged in protected
activities in violation of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed
by the Respondent, I make the following
FINDINGS OF FACT
Respondent, a corporation, chrome plates automobile parts
at its facility in Roseville, Michigan, where it annually per-
forms services valued in excess of $50,000 for customers lo-
cated outside the State of Michigan. Respondent admits and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
General Industrial Employees, Local Union No. 42 is a labor
organization within the meaning of Section 2(5) of the Act.
At all pertinent times, Respondent’s production and main-
tenance employees (approximately 122) were represented by
Local 42 and covered by a collective-bargaining agreement.
Charging Party Denton Powser was employed by Re-
spondent in 1989 as a HiLo driver and continued in that ca-
pacity until September 21, 1991,1 when, apparently dissatis-
fied with a job assignment, he walked off the job without
permission.
Powser filed two grievances protesting Respondent’s deter-
mination that he was a voluntary quit, one presented on Sep-
tember 23 and the other on September 27. Both were consid-
ered at a contractual grievance session on October 15. Re-
spondent maintained its position, and no appeal was filed.
In the charge filed with the Board on March 16, 1992,
Powser alleged he was discharged because of his union sup-
port and activities; and, in an amendment filed on May 6,
he added a claim that Respondent, on September 27, 1991,
unlawfully refused to rehire him.
As noted, the complaint issued on May 14, 1992, cites Re-
spondent only for failing to rehire Powser; and on that date
the charge of wrongful discharge was dismissed.2
There is substantial evidence that Respondent indeed failed
to rehire Powser because he engaged in protected activities.
In a response to an inquiry from the Michigan Employ-
ment Commission (MEC) dated September 26, Respondent’s
personnel manager, Earl Taylor, stated that Powser had ‘‘ac-
knowledged to the union and this company that he made an
error and requested his job back, which is currently under
consideration through negotiations with the bargaining unit.’’
Clearly, the question of Powser’s return was an open ques-
tion as of that date.
On the following day, Union Steward George Bovee pre-
sented Powser’s second grievance to Plant Manager Todd
McNulty. About 2 hours later Personnel Manager Earl Taylor
returned it to Bovee and said ‘‘This just cost Denton Powser
any chance of coming back to work for Apollo Plating.’’3
The grievance bore a notation of Respondent’s president,
James Grimes, as follows:
Employee walked off the job. Automatic quit. Company
not interested in rehiring this troubled employee;
In that response Grimes went beyond the termination issue
and foreclosed the question of rehire. This, coupled with the
timing, his admitted awareness of Powser’s similar earlier
grievance, and Taylor’s comment on returning the second,
warrants an inference that Powser’s protected union activity
in filing grievances, and the decision not to rehire him were
causally related. That conclusion is reinforced by Grimes’
and Taylor’s use of the term ‘‘troubled employee’’ in refer-
ring to Powser’s subsequent recourse to appeal processes of
governmental agencies, including the Board. Thus, on Octo-
ber 3 in response to a further MEC inquiry and after citing
Powser for numerous ‘‘infractions,’’ Taylor wrote:
Claimant [Powser] also had a propensity to file griev-
ances (copies enclosed) and with which the bargaining
unit deemed to take no further action on. . . . Addi-
tionally, claimant has in the past filed charges with the
Labor Relations Board (Case withdrawn) and [Michi-
gan] Bureau of Employment Standards (Case dis-
1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Although Grimes offered a sedate version of the conversation, he
admits being ‘‘mad’’ amd shaking his finger at Powser. McNulty
made no reference to the incident in his testimony, and Saylor was
not called as a witness.
5 Personnel Manager Taylor presented a document listing six writ-
ten and two oral warnings issued over a 1-year period ending August
19. In light of Grimes’ disclaimer, however, I have no way of know-
ing which, if any, of those he relied on in deciding not to rehire
Powser.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
missed) as further proof that this indeed [is] a troubled
person.
And in minutes of the October 15 grievance meeting taken
by his secretary, Grimes is quoted as stating: ‘‘that Denton
walked off the job [on September 21] . . . has been to the
NLRB several times . . . [and] is a troubled person.’’
Further indicative of Respondent’s animus toward Powser
because of propensity to pursue perceived protected rights is
an incident which occurred in late August, just 3 weeks be-
fore the no-rehire decision. On learning that employees were
being asked to work overtime on Sunday at time and a half,
Powser posted on the bulletin board a copy of the applicable
collective-bargaining agreement, open to a page containing a
clause stating that ‘‘All work performed on Sundays shall be
paid for at the rate of double time.’’ When told about the
posting, President Grimes stormed over to Union Steward
Bovee demanding to know who had done it. After Bovee
disclaimed responsibility, he immediately went to Powser
and elicited an admission. With Plant Manager Todd McNul-
ty and Supervisor George Saylor present, Grimes proceeded
to dress him down. According to credited testimony of
Powser:
[He] cme [sic] to me and pointed at my face with a
page of the contract in his hand, yelling and screaming,
what are you, some kind of unofficial steward or some-
thing, you want to start trouble around here? You start
trouble and you will be out the fucking door and won’t
be coming back!4
The foregoing constitutes a strong prima facie showing
that Powser was not rehired because he engaged in protected
activities, i.e., filing grievances and otherwise supporting the
Union and its collective-bargaining agreement.
Citing Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
Respondent attempts to show that it would not have rehired
Powser even apart from his protected activities. I am not per-
suaded.
President Grimes made the ‘‘no-rehire’’ decision when he
denied Powser’s grievance on September 27. According to
Grimes, he made that decision without reference to Powser’s
protected activities and because:
Denton [Powser] has a problem getting along with
other people, he has a problem getting along with co-
workers, with supervision. He refuses to do work that
he does not like to do. He likes to pick and choose his
job assignment. He antagonizes other employees. He
does not cooperate with other employees or with super-
vision. I have had many complaints from co-workers to
please do something about Denton.
Grimes provided no specific instances of these claimed defi-
ciencies. Indeed, when asked if he was then familiar with
Powser’s disciplinary record, answered: ‘‘I was familiar with
a number of times there were confrontations and/or subse-
quent grievances [Tr. 229] . . . [but] I did not refer to his
record specifically [Tr. 259].’’ Even here, Grimes appears
preoccupied with Powser’s assertion of rights;5 and I con-
clude that he would have been rehired but for his engaging
in protected activities. In this respect, it is shown that Re-
spondent had in fact rehired some terminated employees and
that the question of Power’s rehire was an open question up
to the time of Grimes’ decision.
CONCLUSION OF LAW
Respondent violated the Act in the particulars and for the
reason stated above, and its violation has affected, and unless
permanently enjoined will continue to affect, commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
In addition to the customary cease-and-desist order and re-
quirement for notice posting my order will require Respond-
ent to offer permanent, immediate, and unconditional rein-
statement to Denton Powser and to make him whole for its
discriminatory and unlawful decision on September 27, 1991,
not to rehire him, with backpay and interest thereon to be
computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following6
ORDER
The Respondent, Apollo Plating, Inc., Roseville, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to rehire employees because they file griev-
ances and otherwise support General Industrial Employees,
Local Union No. 42 and its collective-bargaining agreement.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Denton Powser immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination practiced against
him, in the manner set forth in the remedy section of the de-
cision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
1351APOLLO PLATING
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility in Roseville, Michigan, copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to rehire or otherwise discriminate
against any of you because you file grievances and otherwise
support General Industrial Employees, Local Union No. 42
and its collective-bargaining agreement with us.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
We will offer Denton Powser immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
APOLLO PLATING, INC.