ACF Industries

National Labor Relations Board - Board Decisions

Jan 14, 1993

310 N.L.R.B. 115 (N.L.R.B. 1993)

115
30X NLRB No. 22
ACF INDUSTRIES
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.
Where, as here, the judge has evaluated the employer’s expla-
nation for its actions and found that the reasons it has advanced ei-
ther 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 Ap-
parel 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 pe-
riods of unlawful reassignment shall be computed in the manner pre-
scribed 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.
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 sup-
porting 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order, as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, ACF Indus-
tries, Inc., Milton, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order except that the attached notice is sub-
stituted 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 or-
dered us to post and abide by this notice.
WE WILL NOT retaliate against our employees be-
cause 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 reinstate-
ment 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 Oper-
ator Truckdriver–Trackmobile’’ to ‘‘134-27 Truck Operator–
Pick Up’’; that about March 21, 1989 the Employer elimi-
nated the ‘‘134-27’’ classification and laid off unit employee
Charles F. Dreisbach from that position; and that the Em-
ployer 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 Na-
tional 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,
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The record principally consists of the formal pleading file and
joint exhibits which include the transcript of and documents adduced
in an earlier arbitration proceeding. Counsel for General Counsel
called no additional witnesses and counsel for Respondent supple-
mented this record with the testimony of two witnesses.
2 As Dreisbach’s doctor wrote on January 5, 1989:
Because of the patient’s condition with his neck, he will no
longer be able to do a lot of lifting and pulling. He will be able
to be employed but I think he is at risk for developing a rupture
of a disc in his neck. . . . [He] is having difficulty with his
arms getting numb. He is having symptoms of dizziness when
he lifts or works. . . . [His] work will have to restricted and
limited.
1991, are time barred by Section 10(b) of the Act; and, fur-
ther, 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, includ-
ing 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 produc-
tion 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 Em-
ployer 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 al-
leged.
The facts in this case are essentially undisputed.1 The Em-
ployer 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 classifica-
tions . . . in order to accommodate Mr. Pursell, did
you take into consideration the ramifications of the con-
tractual agreement . . . as far as the [bidding or] bump-
ing 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 Em-
ployer ‘‘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-evalu-
ated’’ 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 occa-
sional heavy lifting.
The other doctor concluded:
I do not want [him] pushing or pulling pipe wrench-
es 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 com-
plaint 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 which
Dreisbach would have otherwise received. These grievances
were apparently ‘‘settled.’’ As Union Representative English
explained, the Employer ‘‘eventually put the 134-24 job up
for bid and awarded it to’’ another unit employee; and
Dreisbach ‘‘received two checks’’ for lost overtime from the
117ACF INDUSTRIES
3 Rosko, in his supplemental testimony, asserted that Dreisbach
was ‘‘laid off’’ ‘‘because of the cost of maintaining two incumbents
in a one man job’’ which was ‘‘a make work classification for Pur-
sell.’’ See Tr. 54–55.
134-26 job. In addition, on February 24 Dreisbach ‘‘was
transferred back to the maintenance department on the job
that he had been laid off from for physical reasons,’’ ‘‘the
pipefitter craft job,’’ ‘‘on a temporary assignment.’’ Manage-
ment explained to the Union that ‘‘we don’t want
[Dreisbach] to do any work . . . just to help us lay out a
job, the piping of a job . . . .’’
Thereafter, on March 2, 1989, the Employer notified
Dreisbach that he would be transferred back to the 134-26
job effective March 6. And, on March 6 Dreisbach returned
to the 134-26 job where he was permitted to operate the
trackmobile. Pursell, however, continued to perform the
truckdriving duties of that job. Then, on March 10, as Union
Representative English explained, the Employer reclassified
the 134-26 job into 134-27. The Employer thus eliminated
the trackmobile duties from the job and added the duties of
changing tires, work previously done by the maintenance de-
partment. The trackmobile duties were assigned to production
workers. Both Dreisbach and Pursell were assigned to this
new job classification. However, on the same day, March 10,
Dreisbach was again laid off because he was ‘‘unable to per-
form’’ the new job duties of 134-27 as a result of his ‘‘med-
ical restrictions.’’
Dreisbach, upon the advice of Union Representative
English, again went back to his doctor who now certified
that
Samuel Dreisbach is physically capable of per-
forming the job of a truckdriver, even though it requires
occasional heavy lifting, pushing, pulling and changing
tires.
The Employer thereupon put Dreisbach back on the 134-27
job although he was not assigned any pickup truckdriving
duties which were still being performed by Pursell.
Union Representative English testified:
Q. [A]fter Mr. Dreisbach bumped into that 134-27
position, after being laid off for physical limitations,
did you have occasion to talk to Mr. John Bower, the
plant manager, to have a discussion on this situation on
or about March 17, 1989?
A. Yes I did. By this time, after going through all
of this, I was getting highly agitated . . . and I went
in to talk to Mr. John Bower . . . about it. . . . I told
him I felt that . . . Mr. Dreisbach had a contractual
right to the job, to bump it, and he should be placed
on the job. Mr. Bower . . . conceded that . . . Sam did
in fact have a contractual right to it, but he wanted Mr.
Pursell to be on the job. . . . He asked me to talk to
Mr. Dreisbach and see if he would back off wanting the
job . . . .
Q. [D]id you talk to Mr. Dreisbach about this situa-
tion?
A. I did. I went right up and talked to Mr. Dreisbach
. . . . He told me in so many words that he felt that
he was right and he wanted the job. He wanted to be
placed on the job and do the duties of the truckdriver
. . . .
Q. And did you go back and relate your conversation
with Mr. Dreisbach to the plant manager, Mr. Bower?
A. I did. I went back and told Mr. Bower that Sam
Dreisbach wanted the job . . . he wasn’t going to back
off . . . . Mr. Bower told me that if that was the case
the job was history.
Dreisbach and Pursell were notified that they would be
laid off effective March 21, 1989. And, on March 21 the
Employer eliminated the 134-27 job.3 On March 23
Dreisbach filed two grievances pertaining to this layoff and
the fact that the work was being performed by salaried
nonunit and unit employees. On April 10 Pursell was re-
called to another job as a material expeditor. On April 26
Dreisbach filed a third grievance complaining that a nonbar-
gaining unit employee was performing the claimed work. On
May 1 Dreisbach was recalled as a crane operator pendant
control and still holds that position. On May 5 the
trackmobile duties were added to the job which Pursell still
holds.
On June 3, 1991, Arbitrator Theodore High issued his de-
cision involving Dreisbach’s three outstanding grievances.
The issues before the arbitrator, as stated in his decision,
were whether the Company had violated the collective bar-
gaining agreement by the elimination of the 134-27 pickup
truck job and by assigning the duties of the eliminated job
to nonbargaining unit personnel. The Arbitrator, although
noting that ‘‘it appears that the Company’s action in laying
off [Dreisbach] and abolishing the job was the direct result
of [Dreisbach] bumping Pursell,’’ concluded that ‘‘the Com-
pany’s actions . . . complained of created no violation of the
collective bargaining agreement’’ and he therefore denied the
grievances.
Discussion
Section 7 of the National Labor Relations Act guarantees
employees ‘‘the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as ‘‘the right to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice ‘‘to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7.’’ Section 8(a)(3) of the Act forbids
‘‘discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or dis-
courage membership in any labor organization . . . .’’
In NLRB v. City Disposal Systems, 465 U.S. 822 (1984),
the United States Supreme Court stated:
The NLRB’s decision in this case applied the
Board’s longstanding Interboro doctrine, [157 NLRB
1295 (1966), enf’d 388 F.2d 495 (C.A. 2, 1967)], under
which an individual’s assertion of a right grounded in
a collective bargaining agreement is recognized as con-
certed activity and therefore accorded the protection of
Section 7. . . . As the Board first explained in the
Interboro case, a single employee’s invocation of such
rights affects all the employees that are covered by the
collective bargaining agreement. . . . The invocation of
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 I reject the Employer’s assertions that its response here was for
lawful economic reasons alone or that such action would have oc-
curred in any event for lawful economic reasons. On the contrary,
I find and conclude on this record that Respondent Employer took
such drastic action for the statutorily proscribed retaliatory reasons
as explained above. Specifically, on this record, I reject as incredible
Rosko’s assertions to the effect that the Employer’s reclassification
and elimination of the claimed job was for economic and nonretalia-
tory reasons.
a right rooted in a collective bargaining agreement is
unquestionably an integral part of the process that gave
rise to the agreement . . . beginning with the organiza-
tion of a union, continuing into the negotiation of a col-
lective bargaining agreement and extending through the
enforcement of the agreement . . . . [T]he principal
tool by which an employee invokes the rights granted
to him in a collective bargaining agreement is the proc-
essing of a grievance . . . . No one doubts that the
processing of a grievance in such a manner is concerted
activity within the meaning of Section 7. Indeed, it
would make little sense for Section 7 to cover an em-
ployee’s conduct while negotiating a collective bar-
gaining agreement, including the grievance mechanism
by which to protect rights created by the agreement, but
not to cover an employee’s attempt to utilize the mech-
anism to enforce the agreement.
The Court concluded:
The NLRB’s Interboro doctrine recognized as con-
certed activity an individual employee’s reasonable and
honest invocation of a right provided for in his collec-
tive bargaining agreement. We conclude that the doc-
trine constitutes a reasonable interpretation of the Act.
The essentially undisputed facts in the instant case show
that the Union had negotiated and secured for the Employer’s
unit employees, including Dreisbach, a collective-bargaining
agreement which contained, inter alia, seniority bidding and
bumping rights for unit jobs and a grievance mechanism by
which to enforce these rights. The Employer, with full
knowledge of these contractual obligations, created unit job
134-26 in May 1988 solely for the benefit of unit employee
Pursell. Pursell, as recited above, had sustained a severe
work-related injury and this job would enable the employee
to return to work despite his physical limitations and thus
avoid a substantial workman’s compensation liability on the
part of the Employer.
The Employer, as noted, was well aware of its contractual
obligations at the time. As former labor relations manager
Rosko testified:
Q. . . . When you set up these new job classifica-
tions . . . in order to accommodate Mr. Pursell, did
you take into consideration the ramifications of the con-
tractual agreement . . . as far as the [bidding or] bump-
ing 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 Dreisbach thereafter sustained a nonwork-
related injury which resulted in physical limitations. The Em-
ployer laid off Dreisbach from his pipefitter job because of
these limitations. Dreisbach, who had greater seniority than
Pursell, decided on January 16, 1989 to ‘‘bump’’ into the
134-26 job pursuant to the collective bargaining agreement.
The Employer at first ‘‘reluctantly’’ recognized Dreisbach’s
‘‘contractual right’’ and ‘‘accepted Dreisbach’s bump’’ into
the 134-26 job. However, about 3 days later, the Employer
laid off Dreisbach from the 134-26 job citing his medical re-
strictions. Dreisbach went back to his doctors and obtained
certification that he could perform the duties of the 134-26
job. Dreisbach again ‘‘bumped’’ into the 134-26 job pursuant
to the collective-bargaining agreement. He was, however, in-
stead assigned another job and Pursell continued to perform
the 134-26 job.
Dreisbach thereupon complained to Union Representative
English, and Dreisbach and the Union filed grievances.
These grievances were resolved and, ultimately, on March 2
Dreisbach was notified by the Employer that he would be re-
turned to the 134-26 job effective March 6. On March 6
Dreisbach returned to the 134-26 job where he was permitted
to operate the trackmobile. Pursell, however, continued to
perform the truckdriving duties of that job.
Then, 4 days later, on March 10, the Employer reclassified
the 134-26 job into 134-27. The Employer eliminated the
trackmobile duties from this job and added the duties of
changing tires. Both Dreisbach and Pursell were assigned to
this new job classification. However, on that same day,
March 10, Dreisbach was again laid off because he was ‘‘un-
able to perform’’ the new job duties of 134-27 as a result
of his ‘‘medical restrictions.’’ Dreisbach, upon the advice of
his union representative, again obtained medical certification
that he could perform this job. The Employer again put
Dreisbach back on the 134-27 job although he was still not
assigned any pickup truckdriving duties which were being
performed by Pursell.
On March 17 Union Representative English, ‘‘highly agi-
tated’’ over this apparent runaround, complained to Plant
Manager Bower. Bower acknowledged that Dreisbach ‘‘had
a contractual right’’ to the disputed unit job, but Bower
urged English ‘‘to talk to Mr. Dreisbach and see if he would
back off.’’ English later apprised Bower that Dreisbach
‘‘wanted the job’’ and ‘‘wasn’t going to back off.’’ Bower
responded: ‘‘If that was the case the job was history.’’ The
job was eliminated and both Pursell and Dreisbach were laid
off. Dreisbach filed further grievances protesting the Employ-
er’s action.
On this record, I find and conclude that Respondent Em-
ployer’s reclassification of the 134-26 job, the elimination of
the 134-27 job and the consequent layoff of Dreisbach were
solely in retaliation for employee Dreisbach’s persistence,
with the Union’s aid, in grieving and attempting to enforce
his rights under the collective-bargaining agreement. The
Employer’s drastic response to the employee’s and Union’s
attempt to thus enforce the collective-bargaining agreement
both impinged upon employee Section 7 rights and discour-
aged union activities, in violation of Section 8(a)(1) and (3)
of the Act.4
Counsel for Respondent Employer argues that Arbitrator
High’s decision ‘‘is res adjudicata as to ACF’s right under
the labor contract to create and abolish job classifications
134-26 and 134-27’’ and the ‘‘Board should defer . . . under
119ACF INDUSTRIES
5 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.
the principles enunciated in the Spielberg doctrine.’’ The
Board, however, has made clear that it will not defer to an
arbitration award where ‘‘the contractual and unfair labor
practice issues were not factually parallel’’ or where the arbi-
trator’s decision is ‘‘clearly repugnant to the purposes or
policies of the Act,’’ that is, the arbitrator’s decision ‘‘is not
susceptible to an interpretation consistent with the Act.’’ See
K-Mechanical Services, 299 NLRB 114 (1990), and Garland
Coal & Mining Co., 276 NLRB 963 (1985).
In the instant case, the issues before the arbitrator, as stat-
ed in his decision, were whether the Company had violated
the collective-bargaining agreement by the elimination of the
134-27 pickup truck job and by assigning the duties of the
eliminated job to nonbargaining unit personnel. The arbitrator
concluded that ‘‘the Company’s actions . . . complained of
created no violation of the collective bargaining agreement.’’
Under the circumstances, I find that the ‘‘the contractual and
unfair labor practice issues were not factually parallel.’’ The
arbitrator was only concerned with contractual authority for
the action taken. The propriety of Employer retaliatory con-
duct for Section 7 activities or Employer unlawful purpose
were not before him.
In any event, assuming that the ‘‘contractual and unfair
labor practice issues’’ were ‘‘parallel,’’ I find that the arbi-
trator’s decision—upholding the Employer’s actions in retal-
iation for employee Dreisbach’s and the Union’s persistence
in grieving and attempting to enforce rights under the collec-
tive-bargaining agreement—is ‘‘clearly repugnant to the pur-
poses or policies of the Act’’ and ‘‘not susceptible to an in-
terpretation consistent with the Act.’’ For, as recited above,
the Board and courts have long ‘‘recognized as [protected]
concerted activity an individual employee’s reasonable and
honest invocation of a right provided for in his collective
bargaining agreement.’’ The arbitrator, although reciting in
his decision,
[T]he Union representatives had a number of discus-
sions with the Company as to whether [Dreisbach] was
going to bump Pursell and that when the Union re-
ported that [Dreisbach] in fact wished to exercise his
rights to do so the Company representative replied that,
in that case, the job was ‘‘history’’ [and] . . . the Com-
pany’s action in laying off [Dreisbach] was the direct
result of [his] bumping Pursell . . . .
nevertheless concluded that the ‘‘Company’s actions . . .
complained of created no violation of the contract’’ because
the Company had the contractual ‘‘power to eliminate the
job’’ and the ‘‘power to lay off the incumbent of that job.’’
The arbitrator’s decision, to the extent it would thus permit
such retaliatory conduct, is ‘‘clearly repugnant’’ to well-ac-
cepted principles under the Act.
Finally, counsel for Respondent Employer argues that the
8(a)(3) issue raised by the complaint is not supported by a
timely charge under Section 10(b) of the Act. Charging Party
had filed timely 8(a)(1) charges on April 11, 1989. (See G.C.
Exh. 1(a).) Later, on December 10, 1991, Charging Party
filed an amended charge to allege that Respondent Employ-
er’s conduct was also a violation of Section 8(a)(3) of the
Act. (See G.C. Exh. 1(c).) A complaint issued shortly there-
after alleging that the Employer’s conduct was both violative
of Section 8(a)(1) and (3) of the Act. (See G.C. Exh. 1(e).)
Under the circumstances, I find that the challenged complaint
allegation was ‘‘factually related to the allegation in the un-
derlying charge’’ and amply satisfied the Board’s ‘‘closely
related test.’’ See Harmony Corp., 301 NLRB 578 (1991).
Accordingly, I reject this argument.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in com-
merce as alleged.
2. The Union is a labor organization as alleged.
3. Respondent Employer and the Union were parties to a
collective-bargaining agreement covering the Employer’s
production and maintenance employees; about March 10,
1989 the Employer reclassified the job classification of
‘‘134-26 Operator Truckdriver–Trackmobile’’ to ‘‘134-27
Truck Operator–Pick Up’’; about March 21, 1989, the Em-
ployer eliminated the ‘‘134-27’’ classification and laid off
unit employee Charles F. Dreisbach from that position; and
the Employer engaged in this conduct because Dreisbach,
with the assistance of the Union, had filed and pursued a
grievance under the collective-bargaining agreement, in vio-
lation of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act.
4. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in the conduct found unlawful or like or related
conduct and to post the attached notice. Affirmatively, Re-
spondent Employer will be directed to reinstate the 134-26
job classification; offer employee Dreisbach immediate and
full reinstatement to this job without prejudice to his senior-
ity or other rights and privileges; and make him whole for
any loss of earnings he may have suffered by reason of the
Employer’s unlawful conduct by making payment to him of
a sum of money equal to that which he normally would have
earned from the date of Respondent’s unlawful conduct to
the date of its offer of reinstatement, less net earnings during
such period, with backpay to be computed as prescribed in
F. W. Woolworth Co., 90 NLRB 651 (1977), and interest as
provided in New Horizons for the Retarded, 283 NLRB 1173
(1987). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
Further, Respondent Employer will be directed to preserve
and make available to the Board or its agents upon request
all payroll records and reports and all other records necessary
to determine backpay under the terms of this decision. Re-
spondent Employer will also be directed to expunge from its
files any reference to the laying off of Dreisbach found un-
lawful herein, in accordance with Sterling Sugars, 261
NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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.’’
ORDER
The Respondent, ACF Industries, Incorporated, Milton,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Retaliating against its employees because they have en-
gaged 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 clas-
sification 134-27 and laying off employee Charles F.
Dreisbach.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reinstate the 134-26 job classification; offer employee
Dreisbach immediate and full reinstatement to this job with-
out 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 the Employer’s unlawful conduct, with
interest, as provided in this decision.
(b) Expunge from its 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 per-
sonnel action against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination or copying all payroll records,
social security payment records, timecards, personnel records
and reports, as well as all other records necessary or useful
in analyzing and computing the amount of backpay and com-
pliance, as provided in this decision.
(d) Post at its Milton, Pennsylvania facility copies of the
notice attached marked ‘‘Appendix.’’6 Copies of said notices,
on forms provided by the Regional Director for Region 4,
shall, after being signed by Respondent, be posted imme-
diately upon receipt thereof in conspicuous places, including
all places where notices to employees are customarily posted,
and be maintained for 60 consecutive days. Reasonable steps
shall be taken to ensure that notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date what steps have been taken to comply.