Delco Electronics Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1998

325 N.L.R.B. 653 (N.L.R.B. 1998)

653
325 NLRB No. 107
DELCO ELECTRONICS CORP.
1 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.
2 We find merit in the General Counsel’s exceptions to the judge’s
inadvertent failure to require that the Respondent offer the Charging
Party reinstatement to the shift and department in which he worked
at the time of the transfer. We amend the remedy and shall modify
the Order accordingly.
Consistent with Excel Container, Inc., 325 NLRB No. 14 (Nov.
7, 1997), we have also revised the triggering date of the Respond-
ent’s notice-mailing obligation to the date of the first unfair labor
practice.
Delco Electronics Corporation, a Division of Gen-
eral Motors and Gary Mannies. Case 25–CA–
24251
April 14, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On November 21, 1997, Administrative Law Judge
Michael O. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions and
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 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 rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Delco
Electronics Corporation, a Division of General Motors,
Kokomo, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Within 14 days from the date of this Order,
offer Gary Mannies full reinstatement to the shift and
department he was on at the time of his transfer or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.’’
2. Substitute the following for paragraph 2(d).
‘‘(d) Within 14 days after service by the Region,
post at its facility in Kokomo, Indiana, copies of the
attached notice marked ‘‘Appendix.’’13 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since May 1,
1995.’’
Joanne C. Mages, Esq., for the General Counsel.
Mark Pieroni, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Indianapolis, Indiana, on September 8 and
9, 1997, based on a charge which was filed by Gary
Mannies, an individual, on October 4, 1995, and a complaint
which issued on July 15, 1996. The complaint alleges that
Delco Electronics Corporation, a Division of General Motors
(Delco or the Respondent) threatened an employee with
transfer to another shift or other reprisals and transferred an
employee to the second shift because he sought the assist-
ance of his collective-bargaining representative, in violation
of Section 8(a)(1) and (3) of the Act. Delco’s timely filed
answer denies the commission of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the manufac-
ture, sale, and distribution of radios and related products at
its facility in Kokomo, Indiana, where it annually sells and
ships goods valued in excess of $50,000 directly to points
outside the State of Indiana. The Respondent admits and I
find and conclude that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that Amalgamated Local Union No. 292, United
Automobile, Aerospace and Agricultural Implement Workers
of America (the Union or Local 292) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
From mid-1990 until May 1995, Gary Mannies was em-
ployed as a machine builder on the first shift in Respondent’s
department 1417. In that department, equipment used in the
production of the Respondent’s products is designed and fab-
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654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereinafter are 1995 unless otherwise indicated.
2 Mannies’ testimony on this point was credibly offered and is
uncontradicted.
3 A record of this call would have been made in Witt’s depart-
ment. Miller did not know if that record had been retained and it
does not appear in this record.
4 I find that Anthony’s credibly offered testimony is more accurate
than that of Smith. Smith initially claimed that he could not recall
having discussed the hours with the Union. He then conceded that
‘‘[t]hey may have found something on the outside that I wasn’t
aware of and forced us to do that, yes. That’s possible.’’ When sub-
sequently cross-examined in Respondent’s case-in-chief, he recalled
the conversation with Anthony and defended his actions by claiming
that, as the employees were already working more than 56 hours per
week, (presumably including Sundays) he did not believe he was in
violation of the agreement. He further acknowledged that he had
made an agreement with the Union that, when employees were
working under document 59, they would begin the first shift at 4:30
a.m. and that he changed the starting time as a result of this discus-
sion with Anthony. He also admitted that, as he didn’t ‘‘like giving
away the company’s money, [he didn’t feel] overjoyed about it.’’
5 In so finding, I have considered, in addition to their relative de-
meanors, that Smith would have known of Mannies’ interest in the
document 59 issue from his having discussed the hours question
with Miller and Mannies several days earlier. I have also considered
certain evidence discussed below. Thus, I note that, when Anthony
asked Smith whether he had had any ‘‘bad words’’ with Mannies,
ricated. Until his transfer to the second shift, which is the
subject of this action, he was the least senior employee on
the first shift. His immediate supervisor while on that shift
was Rusty Miller; Miller’s superior was Hal Smith, the oper-
ations manager who is alleged to have threatened and
discriminatorily transferred Mannies.
The Respondent’s machine builders, and certain other em-
ployees, have long been represented by Local 292, UAW.
The Locals’ representatives with whom Mannies primarily
dealt were Franklin Witt, district committeeman, and George
Anthony, zone committeeman. Collective-bargaining agree-
ments, on the national and local levels, governed the relation-
ship between the parties.
Among the relevant provisions of the local agreement is
one, referred to as Document 59, which governs subcontract-
ing from department 1417. In essence, it provides that there
must be full utilization of the Respondent’s employees before
work may be subcontracted. Full utilization is defined as all
employees working 56 hours per week. By practice, when
the employees are to be fully utilized, they work five 10-
hour days and one 8-hour day rather than seven 8-hour days
so that they may enjoy Sundays off. In order to equalize
what they would make on the 6-day schedule with what their
earnings would be with Sunday premium pay (double time),
they start work at 4:30 a.m. and work until 3 p.m. By start-
ing at 4:30 a.m., they earn third-shift premium (10 percent)
for the entire shift. If they were to start later than 4:30 a.m.,
they would only earn the third-shift premium until 7 a.m.
The contract also provides for shift preferences by senior-
ity, allowing a more senior employee on one shift to bump
a less senior employee from another shift.
And, the contract provides a grievance procedure. Among
the issues subject to that procedure are allegations of retalia-
tion for employee participation in union activities or recourse
to the collective-bargaining agreement.
Department 1417 has long worked just two shifts, first and
second. This permits around-the-clock operations (with over-
time) when necessary, interaction between the skilled trades
employees and engineers who may be working outside of
normal shift hours and full utilization of the department’s
equipment. Generally, the majority of department 1417 work-
ers, including about 22 machine builders, work on the first
shift and 5 to 8 employees, including 4 to 6 machine build-
ers, work on the second.
B. Protected Activity and the Alleged Threat
In late April 1995,1 Mannies heard his supervisors, Miller
and Smith, discussing placing department 1417 on full utili-
zation. He learned from them that their intention was to start
the employees’ workdays at 5 a.m. in order that the Re-
spondent not have to pay the third-shift premium for the full
workday.2 Mannies subsequently asked Miller to call in his
union representative, District Committeeman Franklin Witt.
Miller complied, placing a call to the department in which
Witt worked.3
When Witt came to department 1417, Mannies told him
what Miller and Smith intended for the employees’ hours.
Witt stated that there was nothing he could do and referred
Mannies to George Anthony, the zone committeeman.
Mannies repeated what he had said to Witt and Anthony as-
sured Mannies that he would talk to Smith and straighten the
matter out.
Anthony spoke with Smith that same day. Smith explained
his understanding that, as long as the employees worked 56
hours prior to any outsourcing, management had met its re-
sponsibilities to them. Anthony told Smith that he would
have to either start the employees at 4:30 a.m., so that they
got the third-shift premium, or go back to the original agree-
ment and work them 7 days so that they would get both the
Saturday and Sunday overtime rates, time and one-half, and
double time, respectively. Smith didn’t like it; Anthony told
him to think it over and discuss it with his superiors or with
personnel in the Labor Relations Department. On the follow-
ing day, Smith told Anthony that the department would work
the 4:30 a.m. to 3 p.m. schedule and fulfill the full utilization
requirement in 6 days.4
About May 1, as Mannies recounted it, Smith approached
him at his tool cart and stated, ‘‘You know, we . . . bent
over backwards to keep you on first shift.’’ Mannies asked
what that had to do with the issue of the starting and stop-
ping times and was told, ‘‘I’m going to put your ass on sec-
ond shift for calling the Union.’’ Mannies accused Smith of
threatening him for standing up for his rights and, as he was
walking away from Mannies’ cart, was heard by Mannies to
say, ‘‘I’m going to get you.’’ There were no other witnesses
to this alleged threat.
When Mannies told Miller of this conversation, Miller as-
sured him that Smith ‘‘was just mad about the third-shift pre-
mium and was just bulling off.’’
Smith denied knowledge of Mannies’ role in complaining
to the Union and he denied making any such statements to
Mannies. Miller denied telling Smith of Mannies’ call to
Witt and further denied both that Mannies had told him of
Smith’s alleged threat and that he had told Mannies that
Smith was annoyed about the third-shift premium and was
just ‘‘bulling off.’’
I credit Mannies’ version of the events described above.5
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655DELCO ELECTRONICS CORP.
Smith’s reply made the connection between the alleged ‘‘bad
words’’ and the document 59 issue. Nothing in Anthony’s query had
suggested that there had been any discussion between Mannies and
Smith about that issue. I note, also, the disparate treatment accorded
Mannies, which leads me to conclude that Smith made good on his
threat. That Mannies did not tell everyone of the threat, or, if he did,
not everyone recalled him doing so, does not convince me that the
threat was not voiced. Neither am I persuaded of that by the Union’s
failure to grieve either the threat or the transfer. The Union’s refusal
to proceed on grievances it deems unwinnable is understandable.
6 Mannies had a family situation requiring that he be there when
one of his children came home from school. Suffice it to say that
the situation was both real and serious.
7 Witt only recalled being told that Mannies believed that Smith
had put him on second shift for some reason; he did not recall being
told of any threat. He did not preclude the possibility that he was
told of the threat, noting the number of calls he received each day,
and said that he would have recalled such a threat and reacted to
it if he had investigated it and found it to be true. Long did not tes-
tify. Anrthony confirmed that Mannies had told him of Smith’s
anger at having raised the issue of the hours and having threatened
him.
8 Anthony’s credibly offered testimony about this conversation is
uncontradicted.
9 After about a week, Mannies voluntarily transferred to another
department, purportedly out of fear for continued retaliation by
Smith. He remained on the second shift, thereafter, by choice due
to a change in his child’s school schedule.
10 Anthony recalled one instance, 1 or 2 years before these events,
when a bump of Mannies to the second shift had been proposed. He
intervened with Smith at that time and the involuntary transfer was
averted.
C. The Transfer to Second Shift
As earlier noted, department 1417 operates during the first
and second shifts. On April 28, two second-shift employees,
Douglas Anderson and William Perry, submitted applications
for shift preference, seeking to move to the first shift. Both
had greater seniority than Mannies. About May 4, Miller told
Mannies that, as the least senior employee on the shift, he
was being bumped to the second shift. The second least sen-
ior employee, Ron McColley, was also told that he was
being bumped.
Mannies appealed to Miller, Smith, and Michael Hill in
the Labor Relations Department, seeking to stay in the first
shift on the basis of a personal hardship.6 His request was
denied, although, pursuant to company policy, he was al-
lowed to remain on the first shift for 3 weeks to make nec-
essary arrangements for the change in his schedule. Simi-
larly, McColley was also allowed to remain on the day shift
for 3 weeks. When Mannies asked Hill, after the expiration
of the first 3-week stay, whether he could put in 1 day on
the second shift and then be given a temporary transfer back
to the first shift, and continue doing that every 3 weeks, he
was told ‘‘No.’’ That, Hill told him, would be ‘‘playing
games, that they wouldn’t do that for anybody and it
shouldn’t have been done in the past.’’
On May 4, after being told of his impending transfer,
Mannies spoke in succession with Will, Anthony, and Tony
Long, then shop chairman. He purportedly told each of
Smith’s threat and each declined to pursue a grievance on his
behalf.7
Anthony did, however, speak with Smith, in an attempt to
avert the transfer. Smith insisted that Mannies was being
transferred under the terms of the contract. When asked by
Anthony whether he had had ‘‘any bad words’’ with
Mannies, Smith replied he had told Mannies ‘‘what my posi-
tion was on the start/stop time,’’ that Mannies had told
Smith what his position was and they both knew how the
other felt.8 Anthony subsequently told Mannies that the
Local would not pursue a grievance it could not win and, in
this case, where there were no witnesses to the threat, and
the transfer was consistent with the contract, a grievance was
not winnable.
After a 3-week delay, Mannies was transferred to the sec-
ond shift.9
McColley, however, never went to the second shift for
more than a day or two at a time. Every 3 weeks, he would
technically be assigned to the second shift. He would work
there for a day, or possibly just take a day of leave, and then
be allowed to return to the first shift for another ‘‘tem-
porary’’ three week assignment. This ‘‘game’’ went on for
about 14 weeks, until he was in a position to transfer back
to the first shift on a permanent basis.
The Respondent explained that McColley was given the
repeated temporary transfers because he was working on a
successful project which was in the ‘‘de-bugging’’ stage,
wherein he was needed to work closely in conjunction with
the engineers. Mannies, on the other hand, was working on
a project which was ‘‘floundering,’’ the balance of which
could be, and was, assigned to someone else. There was, ac-
cording to Smith, no comparable reason to keep Mannies on
the first shift.
According to Smith, Mannies’ transfer was ‘‘simply an
automatic thing,’’ mandated by the collective-bargaining
agreement and the needs of the business, the result of being
lower in seniority than those who transferred on to the first
shift. While there was no requirement that there be any spe-
cific number of employees on either shift, Smith claimed that
he made it a rule to keep five to eight employees on the sec-
ond shift. This, he said, made the department more efficient,
cutting down on time lost while employees waited to use a
machine in use by another employee and permitting employ-
ees to work with engineers who might be working outside
the hours of a single shift. The record, however, does not
show how many people there were on the second shift when
Perry and Anderson exercised their shift preferences to come
to the first shift.
The record contains only generalized evidence concerning
the numbers of employees on each shift at any given time.
It also contains only testimonial evidence, essentially anec-
dotal, concerning the practice respecting transfers between
shifts. That testimony, however, is sufficient to establish that
bumping was not the rule when employees moved between
shifts in department 1417. Indeed, while Smith claimed that
there may have been ‘‘a few special instances’’ when some-
one transferred without affecting a bump, bumping appears
to have been more the exception.
Thus, when Mannies came in to department 1417 in 1990,
he was told that assignment to the second shift was vol-
untary. Thereafter, while he was almost always the least sen-
ior machine builder on the first shift, he was never bumped
to second shift until the transfer in question10 notwithstand-
ing that moves between shifts were not uncommon. In recent
years (since 1993 or 1994), employees Tilley, Kelly, Gierke,
and Kaiser have all moved back and forth between the first
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656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
12 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.
and second shifts; there was no evidence of anyone being
bumped in either direction. When Perry and Anderson trans-
ferred to the second shift in late 1994, no one was bumped
from that shift to the first shift. Since they had not filled any
vacancies on the second shift when they went there, it seems
logical to assume, in the absence of some contrary x. evi-
dence, that they created no vacuum when they left it.
Subsequent to Mannies being bumped, when McColley re-
turned to the first shift on a permanent basis, and when em-
ployees Sprang and Crawford also transferred to the first
shift, no one was bumped. Since that time, service on the
second shift has been deemed voluntary.
D. Analysis and Conclusions
No citation of authority is required to find that Mannies
was engaged in protected activity when he brought the start
time issue to the Union’s attention. Neither are any required
to find Smith’s threats to ‘‘put [Mannies’] ass on second
shift’’ and to ‘‘get’’ Mannies for having called in the Union,
violative of Section 8(a)(1) as interference, coercion, and re-
straint of such protected activity.
Similarly, no lengthy discussion of the 8(a)(3) issue is re-
quired. Application of the Wright Line11 mode of analysis
mandates a finding of a violation. Thus, Mannies was en-
gaged in protected activity. As I have found, the General
Counsel has shown that Smith was both aware of that activ-
ity and angered by it. He voiced his animosity toward
Mannies expressly for having sought out the assistance of the
Union; that expression of animosity took the form of a threat
to do exactly what he did do, transfer Mannies to the second
shift. And, the General Counsel’s evidence and the record as
a whole reveals that there were no hard and fast requirements
mandating that Mannies be bumped off of the first shift. In-
deed, it shows that Mannies was treated differently this time
from how he had been treated in the past and differently
from other employees in that department under like cir-
cumstances. This evidence raises a strong inference (or prima
facie case) that Mannies’ transfer was discriminatorily moti-
vated.
Under Wright Line, the burden then shifts to the Respond-
ent to show that Mannies would have been transferred even
if he had not engaged in any protected activity. The Re-
spondent’s evidence fails to rise to this level. It did not show
that anyone had been bumped in department 1417 when an
employee in the other shift (be it first or second) exercised
a shift preference. It did not show that, with the transfer of
Perry and Anderson to the first shift, there was an imbalance
even under Smith’s loose manpower standards. It did not
show that retention of Mannies on the first shift would have
impeded the use of any of the department’s many machines.
Thus, I find that, on the record as a whole, the General
Counsel has shown, by a preponderance of the evidence, that
the Respondent both threatened and discriminated against
Gary Mannies in violation of Section 8(a)(1) and (3).
CONCLUSIONS OF LAW
1. By threatening an employee with reprisals for having
engaged in union and other protected activity, the Respond-
ent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. By discriminatorily transferring an employee to the sec-
ond shift because that employee had engaged in union and
other protected concerted activities, the Respondent violated
Section 8(a)(3) and (1).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily transferred an em-
ployee to another shift, it must offer him reinstatement to the
shift he was on at the time of the transfer and make him
whole for any loss of earnings, computed on a quarterly
basis from date of transfer to the date of a proper offer of
reinstatement, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Delco Electronics Corporation, a Divi-
sion of General Motors, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with reprisals because they en-
gage in union or other protected concerted activities.
(b) Transferring employees to other shifts or otherwise dis-
criminating against them because of their union and other
protected concerted activities.
(c) 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) Within 14 days from the date of this Order, offer Gary
Mannies full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make Gary Mannies whole for any loss of earnings
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(c) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its
facility in Kokomo, Indiana, copies of the attached notice
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657DELCO ELECTRONICS CORP.
13 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.’’
marked ‘‘Appendix.’’13 Copies of the notice, on forms pro-
vided by the Regional Director for Region 25, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 4, 1997.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that 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 threaten reprisals against employees who
engage in union or other protected concerted activities.
WE WILL NOT transfer you to other shifts or otherwise dis-
criminate against any of you for engaging in union or other
protected concerted activities.
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, within 14 days from the date of the Board’s
Order, offer Gary Mannies full reinstatement to his former
job on the first shift in department 1417 or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Gary Mannies whole for any loss of earn-
ings resulting from his discriminatory transfer, plus interest.
DELCO ELECTRONICS CORPORATION, A DIVI-
SION OF GENERAL MOTORS
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