Lee Brass Co.

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1122 (N.L.R.B. 1995)

1122
316 NLRB No. 171
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find the Respondent’s contention that the judge denied it an
adequate opportunity to present its case to be meritless. Contrary to
the Respondent’s suggestion, the judge did not indicate that the hear-
ing was limited to 2 days. Moreover, before closing the hearing, the
judge asked the Respondent whether it wished to present any more
documents, witnesses, or evidence, and the Respondent answered
‘‘No, sir.’’ We also find no foundation in the record for the Re-
spondent’s claim that it received inadequate notice of the General
Counsel’s theory of the case. Indeed, the General Counsel’s opening
statement was consistent with a comparative experience theory, the
theory that the Respondent claims the General Counsel ‘‘switched
to’’ near the end of her case.
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.
The Respondent also excepts to the judge’s finding that employee
David Turner, who was transferred from shipping to the assembly
and test department, had no experience in assembly and test. Al-
though it appears that Turner had worked in this department (then
called ‘‘packing’’) in 1977–1978, we find this fact irrelevant, be-
cause Plant Manager Ed Gearhart never cited this experience in at-
tempting to explain why he transferred Turner to assembly and test
rather than reinstate Hogan to her former position in that department.
We further note that in adopting the judge’s finding that Turner and
Travis Bryant were transferred to assembly and test on March 1,
1993 (and not earlier as claimed by the Respondent), we place no
reliance on the Respondent’s failure to call these employees as wit-
nesses.
Finally, the Respondent excepts to the judge’s finding that its fail-
ure to find alternative work for Hogan when she developed a work
related disability, when it had done so for Steve Jones, constituted
disparate treatment. Because Hogan’s medical condition (unlike
Jones’) precluded any contact with brass, we find that the Respond-
ent had no alternative jobs that Hogan could perform, and therefore
did not engage in ‘‘disparate treatment’’ in placing her on disability
leave. We do, however, fully agree with the judge’s broader finding
that the Respondent’s initial failure to fill the assembly and test va-
cancy arising on July 2, 1993, and its subsequent transfer of Jones
into that department were discriminatorily motivated.
3 In adopting the judge’s conclusion that the General Counsel es-
tablished a strong prima facie case that the Respondent’s failure to
return Hogan to her former position in assembly and test was
discriminatorily motivated, we do not rely on his findings regarding
‘‘rollbacks’’ or on the finding that the General Counsel’s evidence
established that the Respondent’s past practice was to rely primarily
on comparative experience rather than seniority in awarding jobs.
We do, however, fully agree with the judge’s assessment of the Re-
spondent’s evidence regarding past practice. We find it significant
that in attempting to meet its rebuttal burden under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Respondent was unable to produce a single
bid in which an employee with relatively short-term experience in
the job prevailed on the basis of seniority over an employee with
years of experience in that job.
4 The judge also ordered that the Respondent compensate Hogan
for any medical expenses attributable to its unlawful conduct. Rather
than specifically order reimbursement of any medical expenses, we
shall provide the customary make-whole remedy and leave the ques-
tion of medical expenses to the compliance stage of this proceeding.
Pilliod of Mississippi, 275 NLRB 799 fn. 3 (1985).
Lee Brass Company and Jackie Hogan. Case 10–
CA–27044
March 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On May 25, 1994, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed 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 the
record in light of the exceptions and the briefs and has
decided to affirm the judge’s rulings,1 findings2 and
conclusions,3 and to adopt the recommended Order as
modified.
The judge concluded that the Respondent’s unlawful
failure to reinstate Hogan to her former position in the
assembly and test (a&t) department began on April 1,
1993, 2 days after she returned to work as an incentive
grinder pursuant to a settlement agreement. The Re-
spondent excepts to this conclusion. We agree with the
Respondent. The settlement agreement required Re-
spondent to reinstate Hogan to the position of incen-
tive grinder, not to her old position in the a&t depart-
ment. We recognize that there were no a&t vacancies
at that time because of a transfer of employees into
those positions shortly before the settlement. However,
no party seeks to set aside the settlement agreement.
Accordingly, there can be no attack on the presettle-
ment transfers, and the Respondent’s reinstatement of
Hogan was in compliance with the settlement. Thus,
the cognizable violation did not occur until July 2,
1993, the date on which the first postsettlement va-
cancy opened with the retirement of assembly and test
employee Earl Williamson. We shall modify the Order
accordingly.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lee
Brass Company, Anniston, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Make whole Jackie Hogan for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s unlawful refusal to transfer her to the as-
semble & test department as of July 2, 1993.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
1123LEE BRASS CO.
1 G.C. Exh. 2.
2 Stipulation of the parties, G.C. Exh. 2.
3 Northern California District Counsel, 154 NLRB 1384 fn. 1
(1965); Steves Sash & Door Co., 164 NLRB 468, 476 (1967); Proto
Plastics Co., 275 NLRB 1379, 1380 (1985).
4 The pleadings establish that Gearhart and Huddleston were super-
visors.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discourage membership in Glass,
Molder, Pottery, Plastics, and Allied Workers Inter-
national Union, or any other labor organization, by
failing to reinstate or transfer employees to their
former jobs, because of their union or other protected
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
WE WILL assign Jackie Hogan to her former job in
assemble & test on her request, and WE WILL make her
whole, with interest, for any loss of earnings and other
benefits she may have suffered because of our failure
to assign her to this position.
LEE BRASS COMPANY
Ellen Hampton, Esq., for the General Counsel.
Harry L. Hopkins Esq. and James C. Pennington, Esq.
(Lange, Simpson, Robinson & Somerville), of Birmingham,
Alabama, for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on September 30, 1993, by Jackie Hogan
(Hogan) and complaint issued on November 26, 1993. It al-
leges that Lee Brass Company (Respondent or the Com-
pany), since April 1, 1993, refused to allow Hogan to return
to the position she had held prior to May 22, 1992, including
its failure to award her a bid on such a position in September
1993, because of her membership in and leadership role on
behalf of Glass, Molders, Pottery, Plastics and Allied Work-
ers International Union (the Union). The complaint alleges
that this was violative of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act (the Act).
The hearing opened before me by telephone on February
3, 1994, was continued to February 28, 1994, in Anniston,
Alabama, and concluded on March 1, 1994. Thereafter, the
General Counsel and the Respondent filed briefs. Based on
the entire record, including my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with an office
and place of business in Anniston, Alabama, where it is en-
gaged in the manufacture of valves and fittings. During the
year preceding issuance of the complaint, a representative pe-
riod, the Respondent sold and shipped goods valued in ex-
cess of $50,000 directly to customers located outside the
State of Alabama. The Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Board has previously conducted an election involving
the Union. Based on this, Hogan’s testimony describing her
activities on behalf of the Union, and a settlement agreement
entered into between the Respondent and the Union,1 I con-
clude that the latter is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Representation Case
The Union filed a petition to represent certain of the Re-
spondent’s employees on April 14, 1992, and a Board elec-
tion was held on June 12, 1992. Challenged ballots were de-
terminative, and an Order issued on December 11, 1992,
combining the representation case (Case 10–RC–14238) with
a complaint alleging unfair labor pratices (Case 10–CA–
26130). Thereafter, the unfair labor practice case was settled,
the representation case was severed, and a hearing on chal-
lenged ballots was held in April 1993. The hearing officer
issued a report on challenged ballots, and exceptions to this
report are presently before the Board.2
B. Hogan’s Presettlement Union Activities
The General Counsel elicited evidence of Hogan’s union
activities for the purpose of establishing the Company’s
postsettlement animus. Receipt of such evidence for this pur-
pose is appropriate.3
Early in 1991, Hogan asked the Union for authorization
cards. She received them, and obtained signatures on 20 or
25 cards. Others were submitted, and a union campaign fol-
lowed.
In February 1992, Hogan had a conversation with Plant
Manager Ed Gearhart and Personnel Manager Andy Huddle-
ston.4
Huddleston told Hogan that she had been threatening em-
ployees about crossing picket lines and not signing union
cards, and that the next time it happened she would be fired.
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Hogan’s uncontradicted testimony concerning these events is
credited.
6 G.C. Exh. 3.
7 R. Exhs. 1 and 12.
8 Id.
9 Id.
10 In discussing one of the seniority lists, G.C. Exh. 15, McLeroy
testified specifically that ‘‘the supervisor’’ said one of the applicants
was ‘‘not qualified.’’
11 G.C. Exh. 22.
Hogan denied the accusation and said that they would have
to have a reason for firing her. Gearhart replied that he could
fire her without a reason, that he could fire everybody and
hire new employees, and that he was going to fight the
Union with everything that he had. Hogan responded that she
was for the Union ‘‘hook, line, and sinker.’’
Gearhart testified that he had a conversation with Hogan
and Huddleston, and had statements from employees about
Hogan. Later, the Company posted a notice on a bulletin
board stating that an employee had been threatening other
employees, and that the Company wanted to be notified if
it happened again.5
In May 1992, about 160 employees, including Hogan,
were terminated in what the Company called a reduction in
force. Hogan at that time was assigned to the assemble &
test department.
In June 1992, Hogan was a union observer at the Board
election. Thereafter, Region 10 issued a complaint alleging
that Hogan and several other employees had been
discriminatorily discharged. On March 3, 1993, the parties
entered into a settlement agreement. By its terms, some of
the alleged discriminatees received backpay, while Hogan
and two others were reinstated with backpay, and were grant-
ed 18 months of their original seniority date.6
C. Posting New Jobs and Selecting Employees
1. Background
The General Counsel’s position is that the Respondent ma-
nipulated its assignments so as to prevent Hogan from being
reinstated to the assemble & test position which she had be-
fore her discharge. In order to assess the evidence, the Com-
pany’s method of choosing employees for job openings must
be determined.
The Company’s handbook specifies the procedure for fill-
ing available job openings. Such openings ‘‘will be made
available’’ by this procedure.7
The Company is divided into various groups, and employ-
ees within each group get a first opportunity to bid on a job.
In a section entitled ‘‘Plant Wide Job Openings,’’ the hand-
book further provides:
In the event no employee bids the job vacancy from the
group posting, the job vacancy will be made available
plantwide for forty-eight (48) hours . . . . An em-
ployee will not be awarded more than one (1) plantwide
job opening in a twelve (12) calendar month period.
The handbook also bars awards of jobs if the employee is
in a training period or a disciplinary ‘‘step,’’ unless waived
by management. With respect to both group and plantwide
bids, the handbook specifies that the factors considered are
(1) seniority; (2) attendance, work habits, ability, and experi-
ence; (3) physical condition; and (4) entrance qualification
requirements (for skilled trades only). The job will be award-
ed to the ‘‘senior most qualified’’ employee. When factors
2, 3, and 4 are ‘‘substantially equal,’’ seniority shall govern.8
Company Personnel Supervisor Patricia McLeroy receives
requests from department supervisors for job postings. She
normally checks with Plant Manager Gearhart, and then pre-
pares the posting, stating the date it was put up, and the date
it will come down. This is posted on bulletin boards. The bid
sheet is kept in the personnel office, and interested employ-
ees must come to the office and sign it. ‘‘Individuals wishing
to be considered must sign the required form. No oral bids
will be considered.’’9 These names are then typed on a list
by seniority, the most senior employee at the top of the list.
According to McLeroy, the departmental supervisor then de-
termines whether the most senior employee has experience in
the job, utilizing personal interviews and personnel records.
The evidence of the supervisor’s ratings of the bidders ap-
pears on the left side of the seniority lists. Although not all
of them are signed by the supervisors, McLeroy’s testimony
establishes that these ratings were made by the departmental
supervisor.10
The parties advanced conflicting interpretations of the
Company’s use of the criteria in the handbook—the job is
to be given to the ‘‘senior most qualified’’ employee, but se-
niority is to govern when the other factors are ‘‘substantially
equal.’’ There are numerous exhibits where a more senior
job applicant is rejected because he has ‘‘no’’ experience.
The issue is whether an applicant with more experience, e.g.,
having held the job previously as a regular position, is
‘‘more’’ qualified than one who held it only temporarily.
2. The General Counsel’s evidence
a. Jackie Hogan
Hogan testified that 90 days of experience were required
before transfer to a new job and that she was denied a trans-
fer to a machine shop opening because she did not have that
experience.
b. Donald Vinson
Donald Vinson was hired in 1976. He was working in the
Wrot department at the time of the May 1992 reduction in
force, but was not laid off. Instead, Vinson went to the
cleaning room as an incentive buzzer. In August 1993, he
was awarded a plantwide bid on a job in the machine shop.
On November 30, 1993, two machine operator level VI
jobs were listed in a ‘‘plantwide’’ posting. The posting stated
that the employee must be able to read blueprints and run
a lathe. Donald Vinson testified that he had read blueprints,
had run a lathe for about a month, and that the supervisors
knew this. The supervisor told Vinson that the employees
who had done the work previously would get the jobs. One
of them, Mike Rogers, had less seniority than Vinson.
The seniority list says nothing about Vinson’s qualifica-
tions. Opposite his name in the listing is the legend: ‘‘P/W
(plantwide) job bid Aug 8-12-93.’’11 Vinson testified that he
was assigned to the machine shop at the time of the Novem-
ber posting.
1125LEE BRASS CO.
12 G.C. Exh. 19.
13 G.C. Exh. 15.
14 Mark Watts (G.C. Exh. 16).
15 R. Br. 14.
16 R. Exhs. 2–3.
As described above, the handbook limits awards resulting
from plantwide job bids to one in a consecutive 12-month
period. However, there is no such restriction in the section
of the handbook dealing with bids from within a group. Vin-
son was within the machine shop at the time of the bid.
Respondent argues that Vinson did not get the job because
of his previous plantwide bid. However, this was not the rea-
son given to Vinson by the supervisor, according to Vinson’s
uncontradicted testimony. As indicated, that testimony was
that the supervisor said the employees who held the jobs pre-
viously would get them again.
c. Henry McRath
Henry McRath had worked in the Wrot department, which
the Company decided to discontinue at about the time of the
May 1992 reduction-in-force. McRath was not laid off, how-
ever, and continued to work. The factual issue is whether he
worked in the ‘‘Hays Water Works,’’ and thus acquired ex-
perience for that work, or continued to do unrelated work.
On cross-examination, McRath testified that the Hays de-
partment was ‘‘in’’ the Wrot department. McRath stated that
he spent some time tearing down Wrot machinery, but also
spent about 2 months putting valves together. This, the Gen-
eral Counsel contends, was Hays department qualifying
work.
A posting for an assembler job in the Hays department
was put up on July 10, 1992, and was awarded to Samuel
Richey, who was junior to McRath on the seniority list. Ac-
cording to Supervisor J. D. Hamm, Richey was ‘‘fully quali-
fied.’’12 Richey then started doing the same work McRath
had been doing, i.e., assembling valves.
The seniority listing shows McRath as having ‘‘no experi-
ence’’ in the posted job. He protested to Supervisor Hamm,
and asserted his experience in the work. According to
McRath, he had been doing the work ‘‘right in front of
Hamm’s face.’’ The supervisor said that McRath did not
have ‘‘enough experience.’’
The Company argues that McRath’s testimony is inconsist-
ent with his personnel record, from which Respondent read
during cross-examination. I perceive no inconsistency. Nei-
ther Hamm nor Richey was called as a witness. I credit
McRath, and conclude that he had about 2 months of experi-
ence in the Hays department work, which was ‘‘not enough’’
to win the job from the ‘‘fully qualified’’ Richey, who was
junior to McRath in seniority.
d. Geraldine Bradford
Geraldine Bradford started working for the Company in
1979. She started in the assemble & test department, and re-
mained there about a year as a regular employee. Although
there is no documentary evidence of this, Bradford described
the jobs and asserted her capacity to perform them. Bradford
was later transferred to other departments, but continued to
help out in the assemble & test department about three times
per month. Supervisor Wayne Haynes was aware of this
work.
On January 3, 1991, two jobs in the assemble & test de-
partment were posted. Bradford applied, but the jobs went to
employees who were junior to her, one of whom was Jackie
Hogan. Bradford was said to be ‘‘not qualified.’’13 Hogan
testified that Bradford had performed weekly in assemble &
test, but that 90 days there were required. Hogan got the job.
Two more postings in the same department went up in Oc-
tober 1991, and another employee who was junior to Brad-
ford in seniority was selected.14
Bradford protested to Personnel Manager Huddleston, who
told her that she was not qualified. She then went to Wayne
Haynes, in the assemble & test department. He also told
Bradford that she was ‘‘not qualified.’’ ‘‘Wayne,’’ Bradford
replied, ‘‘you know that I have done that job before; you
know I worked in this department.’’ Haynes responded that
she had to have been a ‘‘permanent person’’ in order to be
qualified, and that he did not recall that she had permanent
status. Haynes did not testify, and I credit Bradford.
3. The Company’s evidence
a. Tony Vinson
The Company submitted documents and testimony which,
it claims, lead to a conclusion opposite from that suggested
by the General Counsel’s evidence. Thus, Tony Vinson is
said to have been awarded a material handling job in August
1993, despite the fact that he had less experience than an-
other employee, Ronnie Langley.15
Unlike other seniority lists, this one does not give the rea-
sons other bidders were not selected, e.g., ‘‘not qualified,’’
and Vinson’s name is merely circled. The supervisor was
‘‘W. Robertson.’’16 Personnel Supervisor McLeroy testified
that Vinson got the job.
Langley’s personnel record shows that he was hired in
1977. There is no detailed record of his specific job duties
from that date to 1984. Thereafter, he was continuously em-
ployed in the machine shop. Personnel Supervisor McLeroy
identified a third page to Langley’s personnel record as a
copy of the ‘‘payroll master maintenance form for August 4,
1981.’’ This page states that Langley was incorrectly classi-
fied as material handler ‘‘direct labor,’’ and was changed to
material handler ‘‘in-direct labor.’’ There is no evidence that
the supervisor who selected Vinson in 1993, W. Robertson,
ever saw this sheet from a 1981 payroll maintenance form.
Robertson did not testify. As indicated, there is no notation
on the 1993 seniority sheet as to Langley’s qualifications or
the absence thereof.
b. Shirley Lloyd
The Respondent next submits the case of Shirley Lloyd,
who applied for and received a job as a material handler
posted on August 30, 1993. Lloyd was fourth on the senior-
ity list. One of the three senior applicants was stated ‘‘never
to have done’’ the job before, while the other two were dis-
qualified because they had made a plantwide job bid within
the previous year.
The next applicant was Lloyd, who was stated on the se-
niority list to be ‘‘already qualified.’’ The supervisor who
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 R. Exh. 9.
18 R. Exh. 10.
19 Id.
20 Id.
21 R. Br. 14.
22 The beginning date of Robinson’s second CNC assignment is
not completely legible. I conclude that it is January 13, 1992. R.
Exh. 6.
23 R. Exh. 5.
24 Id.
25 R. Exh. 7. 26 R. Exh. 12.
made this determination is unknown.17 Although Lloyd was
hired in 1955, the only jobs listed on her personnel record
are from 1990 through September 1993, and these show con-
tinuous assignments in the Cleaning Room.18 The Company
introduced documents that Personnel Supervisor McLeroy
identified as Lloyd’s payroll slips. They indicate pay on nine
different dates, beginning on June 13, 1993, and ending on
August 15, 1993. Some of the documents have the initials
‘‘MH’’ on them, and all bear the pay rate of ‘‘$6.95.’’ The
total hours worked exceed 160.19 Personnel Supervisor
McLeroy testified that ‘‘MH’’ meant ‘‘material handler,’’
and that this classification was the only one in ‘‘that depart-
ment,’’ which paid $6.95. It may be noted that Lloyd’s per-
sonnel record shows that she was employed as ‘‘Level V
Wheelabrator’’ in the cleaning room, at $6.95, from Septem-
ber 17, 1990, until she was laid off in a reduction in force
on September 17, 1990.20
There is no evidence of the experience of those individuals
who were below Lloyd in seniority. The Respondent argues
that Lloyd was awarded the job after ‘‘only’’ 24 hours of ex-
perience.21 This is clearly erroneous.
c. William Gary Robinson
The Company contends that the case of William Gary
Robinson supports its position. A job as ‘‘CNC Operator
Level VIII’’ was posted on March 20, 1992. There were nu-
merous applicants, and Robinson was third on the seniority
list. The most senior applicant refused the position, and the
next applicant was deemed to be ‘‘disqualified.’’ Robinson,
next in line on the seniority list, got the job.
Robinson’s personnel record shows jobs in the machine
shop at Level VIII beginning in 1989, including about 2
months as a ‘‘CNC Operator’’ beginning March 11, 1992,
and about 6 months in the same job beginning January 13,
1992, and ending in June 1992, when Robinson resigned.22
An interdepartmental memo states that Robinson ‘‘did have
machine shop experience.’’23 There is no evidence whatever
of the experience of others on the list, except a supervisor’s
comment that the applicant who was 2lst in seniority had no
experience.24
d. William McMichael
Another CNC job was posted in September 1992, and Wil-
liam McMichael, who was third on the seniority list, was
awarded the job. The first two applicants were deemed to
have ‘‘no experience.’’25 Personnel Supervisor McLeroy tes-
tified that the CNC equipment had been in the plant for
about 5 years, and that McMichael had trained on it for
‘‘several months.’’ There is no evidence of the experience of
any applicants below McMichael on the seniority list.
e. Billy Gaddy
Finally, the Company relies on Billy Gaddy’s assignment
as a material handler in August 1992, in preference to the
only other and senior applicant, Henry McRath, who was
deemed to be ‘‘not qualified.’’
Gaddy’s personnel record indicates that he was given a
temporary assignment as a material handler on July 28, 1992,
and was classified in the same job a month later as the result
of a ‘‘plantwide job bid.’’26 There are no other listings on
this record. McLeroy testified that Gaddy had only a tem-
porary assignment. However, the second listing in the same
job, as the result of a plantwide bid, suggests that the job
was then made permanent. As indicated, the only other appli-
cant was McRath, who was ‘‘not qualified.’’
4. Factual analysis
The Company’s evidence suffers from the general defect
that, when allegedly minimum experience by the winning ap-
plicant is cited, there is no evidence of the experience of the
losing applicants. Obviously, even minimum experience is
better than no experience, and the employee with this experi-
ence in a field of applicants with none would be the ‘‘most
qualified.’’ This, however, does not decide the case when
there is an applicant with more experience.
The second general defect is that the Company’s evidence
is sketchy. Old documents not included in the employee’s
personnel record are produced, and are deemed to have been
considered by supervisors who did not testify, or who were
not even identified.
The General Counsel, on the other hand, produced live tes-
timony from the employees themselves, together with docu-
mentary evidence. That evidence shows that, when assessing
employee qualifications, the Company compared the extent
of one employee’s experience with that of another and ig-
nored seniority when one employee had more experience.
Thus, Donald Vinson, who could read blue prints and run a
lathe, lost out to Mike Rogers, junior in seniority, because
Rogers had done the work previously. Henry McRath lost
out to Samuel Richey, his junior in seniority, because
McRath did not have ‘‘enough’’ experience. Bradford’s bid
failed because the supervisor did not know that she had pre-
viously been ‘‘a permanent person’’ in the job—said by the
supervisor to be a requirement. I credit Jackie Hogan’s testi-
mony that she was denied a machine shop job because she
did not have 90 days of experience.
I conclude that the Company’s policy was to compare an
applicant’s experience with that of another applicant, and,
when it was superior, to ignore seniority and grant the job
to the ‘‘most qualified’’ applicant, in the language of the em-
ployee handbook.
D. The Availability of Jobs in the Assemble & Test
Department
1. Summary of the evidence
Hogan’s reinstatement took place at the same time that
various transfers were made relating to the assemble & test
and shipping departments, the former of which had been Ho-
gan’s assignment, and which she wanted.
1127LEE BRASS CO.
27 The testimony of Personnel Supervisor McLeroy establishes that
Gearhart’s first name was ‘‘Edward,’’ that he was known as ‘‘Ed,’’
and that there were no other ‘‘Ed’s’’ or ‘‘Eddie’s’’ in management.
28 G.C. Exh. 9.
29 G.C. Exhs. 26, 29, and 30.
30 G.C. Exh. 32.
31 G.C. Exh. 31.
32 G.C. Exh. 42.
33 G.C. Exh. 30.
34 G.C. Exh. 29. Only the first name of ‘‘David’’ appears on this
exhibit, and the last name is blocked out. However, the employee
number ‘‘350’’ appears on this exhibit. This is the same number
which appears before Turner’s name on the departmental roster for
March 2, 1993. G.C. Exh. 42. R. Exh. 14 is the first page of Turn-
er’s personnel record, with his last name appearing there, and the
same ‘‘350’’ employee number.
During the negotiations which began in February 1993,
and which led to the settlement agreement and Hogan’s rein-
statement, Plant Manager Gearhart told Hogan that there
were no openings in the assemble & test department, and
that there were no employees there who were junior to
Hogan in seniority. The General Counsel contends that both
of these statements were false.
On February 23, 1993, the Company posted a job in the
assemble & test department. The posting was signed by John
David Hamm, supervisor. It stated that it was posted by
order of ‘‘Ed,’’27 and was necessary ‘‘to increase manning.’’
Travis Bryant had been on loan from the shipping depart-
ment, but was needed back in that department.28
Personnel Supervisor McLeroy testified that she received
an instruction to make this posting from the department man-
ager. Thereafter, Plant Manager Gearhart told her to take it
down. She did so. McLeroy testified that Gearhart sounded
‘‘flustered.’’ Gearhart denied authorizing the posting, and
testified that he told McLeroy to take it down after he spoke
with a Board attorney.
On March 1, 1993, Travis Bryant and David Turner were
transferred to the assemble & test department.29 There is no
evidence that these transfers were in response to any bid.
On the same date, a job as a shipper was posted in the
shipping department. It states that the reason was that David
Turner and Travis Bryant had been assigned to assemble &
test. The shipping job was awarded to Marvin Curvin.30 At
about the same time, Gary Thomas was also transferred to
the Shipping department.31
Plant Manager Gearhart asserted that he had a ‘‘plan’’ to
transfer Bryant and Turner to assemble & test, that they were
actually being moved ‘‘back and forth’’ between Shipping
and assemble & test, and were already in the latter depart-
ment on a temporary basis. However, the Company keeps a
weekly roster of employees by department. The roster shows
that Bryant and Turner first appear in the listing of assemble
& test employees during the week of March 2, 1993.32 As
appears hereinafter, this was one day before the Company
signed the settlement agreement with Hogan.
Travis Bryant’s personnel record shows that he had experi-
ence in the ‘‘Finishing’’ department (one of the names for
assemble & test) in 1983.33 David Turner had no experience
in this department.34 All their personnel records show is that
they were assigned to the shipping department immediately
prior to the March transfer to assemble & test, and there is
no evidence of temporary experience, or ‘‘back and forth,’’
between shipping and assemble & test.
Gearhart contended that Curvin and Thomas were placed
in the Shipping department in order to handle the ‘‘Houston
Shipping department,’’ which was being transferred to An-
niston. Asked why he did not use Bryant and Turner for this
purpose, Gearhart said that he did not know. Although
Gearhart said he had documentary ‘‘plans’’ for staffing of
departments, none was introduced.
2. Factual analysis
There are contradictions in the Company’s evidence. Thus,
Gearhart’s testimony that Bryant and Turner were already in
the assemble & test department is not corroborated by the
departmental roster or the personnel records. The records
also contradict the February 23 posting for the assemble &
test job, which asserted that Bryant had been on loan from
the shipping department, while Turner is not even mentioned.
Although there may be some explanation for these seeming
inconsistencies, Respondent did not offer any.
Although Gearhart denied ordering the February 23 post-
ing, in the absence of any testimony from Supervisor Hamm,
I conclude that the ‘‘Ed’’ referred to in the posting was Plant
Manager Edward Gearhart, and that it was he who ordered
the posting. As Gearhart agreed, he later ordered it taken
down, after talking with a Board attorney at the time of the
Company’s settlement with Hogan.
There is thus no documentary evidence of Bryant’s and
Turner’s temporary experience in the assemble & test depart-
ment immediately prior to March 1, 1993, when they were
transferred there. It is also evident that they were transferred
without submitting a bid, contrary to the established proce-
dure for transfers. Although Gearhart spoke of staffing plans,
he did not submit any, and did not articulate how such plans
could bypass the bidding requirements. Gearhart admittedly
had no explanation for not using Bryant and Turner for the
asserted new ‘‘Houston Shipping department’’ requirements.
Instead, he transferred Curvin and Thomas into Shipping to
fill the gap caused by the departures of Bryant and Turner.
The Respondent did not call as witnesses either the super-
visors of assemble & test, and shipping, nor employees Bry-
ant and Turner. I conclude that their testimony, if elicited,
would have been adverse to the Company’s interest. Master
Security Services, 270 NLRB 543, 552 (1984).
On the basis of Bryant’s and Turner’s personnel records
and the roster of assemble & test employees, I conclude that
they were transferred there on the indicated date of March
1, 1993. It follows that Gearhart’s statements to Hogan in
February that there were no vacancies in assemble & test
were false.
E. ‘‘Rollback,’’ and the Issue of Junior Employees in
Assemble & Test
1. The rehiring of Virgil Brown in 1992
With respect to the issue of whether there were any em-
ployees in assemble & test who were junior to Hogan, the
Company’s records show that Virgil Brown held jobs for
many years in the Finishing department (listed as department
12), and in assemble & test (also listed as department 12).
In September 1989, he returned to a former job in the found-
ry as a ‘‘rollback,’’ and in July 1991 was returned to assem-
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 G.C. Exh. 27.
36 Id.
37 R. Br. 20.
38 G.C. Exh. 7.
39 G.C. Exh. 17.
40 R. Br. 29.
41 Id. at 30. 42 G.C. Exh. 3.
ble & test, ‘‘the job held before rollback,’’ according to his
personnel record.35
Brown was discharged in the May 22 reduction in force,
but was rehired on July 27, 1992, and given a temporary job
for 1 month in the cleaning room. He was assigned as ‘‘as-
semble & test V’’ on August 28, and was given permanent
status 2 months later. On this occasion, the department was
listed as ‘‘Hays,’’ but the ‘‘assemble & test V’’ classification
remained the same. On January 1, 1993, the assemble & test
and Hays departments were consolidated.36
It is clear that Brown did not obtain the 18-month exten-
sion of original seniority which Hogan obtained pursuant to
the settlement agreement. Accordingly, he was junior to her.
The Company argues that Hogan did not know what Brown
was doing in the department at the time of the hearing.37 The
point is that he was put into assemble & test, his former de-
partment, 1 month after being rehired. Although the depart-
ment was momentarily listed as ‘‘Hays,’’ the departments
were consolidated in January 1993. It follows that Gearhart’s
statement to Hogan in February—that there were no employ-
ees junior to her in assemble & test—was erroneous.
2. The ‘‘Rollback’’ of Jackie Hogan in 1991
Jackie Hogan testified that, prior to 1991, an employee
wishing to return to a former job had to bid for it. This pol-
icy changed in 1991, however, so as to allow an employee
to return to his or her last department without filing a bid.
This was called a ‘‘rollback.’’ In support of this position,
Hogan asserted that she had been in assemble & test in the
first half of 1991. In June of that year, there was a reduction
in force. Hogan was not laid off, but was compelled to trans-
fer to the cleaning room. A month later, in July 1991, she
bid on a job in the machine shop, and received it.38 In Octo-
ber 1991, the Company posted two openings in assemble &
test, one for the first shift and another for the second. Hogan
was fifth on the seniority list, but was awarded the job. The
seniority list has a notation reading: ‘‘Must allow Jackie to
rollback to AT&T [sic]. Posting for second shift was a mis-
take.’’39 The parties stipulated that ‘‘AT&T’’ meant assem-
ble & test. Hogan testified that at least one other employee,
whom she identified, was ‘‘rolled back’’ to her former job.
The Company argues that Hogan was not entitled to the
same treatment in 1992 that she received in 1991. In the ear-
lier year, she had merely been bumped to another job, where-
as in 1992, she had been laid off. The Company attempts to
discount the example of Virgil Brown by arguing that there
is nothing in his personnel file to indicate that his return to
assemble & test was the result of a ‘‘rollback.’’40 Further,
the Company argues, its ‘‘policy ’’ in 1992 was not nec-
essarily its policy in 1993. In addition, Hogan came back in
1993 pursuant to a settlement agreement, and prior policy is
irrelevant.41
3. Factual analysis
It is undisputed that an employee bumped to a different
job as the result of a reduction in force was entitled to the
next opening in the prior job in 1991, without filing a bid.
The case of Virgil Brown shows that the same policy was
applied in 1992 to a case where the employee had been laid
off, not merely bumped to a different job. Respondent’s ar-
gument that the magic word ‘‘rollback’’ does not appear in
Brown’s personnel record is inaccurate, and in any event,
does not alter the reality of what happened. Brown went
back to his former job after being laid off.
The Company’s argument that Hogan was returned to a
different job pursuant to a settlement agreement is weakened
by the fact that the Company misrepresented that there were
no openings in assemble & test.
Finally, the argument that 1992’s ‘‘policy’’ was not nec-
essarily 1993’s ‘‘policy’’ suggests that the Company could
evidence a change in policy merely by doing something dif-
ferent—after a union campaign, the filing of an unfair labor
practice charge, and the issuance of a complaint.
I conclude that the Company’s last-known policy in 1991
was to return employees to their former positions after a re-
duction in force, whether they had been bumped to another
job or actually laid off, without requiring a bid.
F. Hogan’s Reinstatement
In mid-February 1993, following the complaint alleging
that Hogan had been discharged discriminatorily, Plant Man-
ager Gearhart called Hogan and offered her a job as an ‘‘in-
centive grinder.’’ Hogan replied that she wanted to return to
her former job in assemble & test. As indicated, Gearhart
told her that there were no jobs, and no employees junior to
Hogan. She accepted the incentive grinder position on Feb-
ruary 22, 1993, and reached an oral agreement with Gearhart.
The written settlement agreement was signed on March 3,
1993, and the Regional Director approved it on March 9.42
Hogan returned to work on March 29.
The incentive grinder position was in the cleaning room.
Judy Vinson, an incentive grinder, testified that there were
two incentive grinders and one incentive buzzer, while
Hogan asserted that there were three incentive buzzer jobs.
In any event, according to Vinson, there were no openings
in the cleaning room when Hogan returned to work. The one
buzzer grinder job was filled by Barbara Popham. The Com-
pany transferred Popham to ‘‘the regular grinding rock,’’ at
a reduction in pay. Popham was visibly angry about this
transfer, according to Judy Vinson. Hogan was then put in
the buzzer grinder job. The position had adverse environ-
mental conditions, and Hogan became ill working at this job,
as described hereinafter. Further, according to Hogan, the in-
centive buzzer work was much faster than that in the incen-
tive grinder job.
Crediting Judy Vinson, I conclude that there was no va-
cancy in the incentive grinder or buzzer grinder jobs. From
the fact that Popham was angry about this transfer to a lower
paying job, I find that it was involuntary on her part. Ac-
cordingly, I conclude, the Company created this vacancy and
reinstated Hogan in that job, at a time when there were va-
cancies in assemble & test.
1129LEE BRASS CO.
43 G.C. Exh. 40.
44 G.C. Exh. 40.
45 G.C. Exh. 7.
46 G.C. Exh. 37.
47 G.C. Exh. 36.
48 R. Exh. 17.
49 G.C. Exh. 36.
50 G.C. Exhs. 6, 11.
51 G.C. Exh. 37.
52 G.C. Exh. 4.
53 G.C. Exh. 35.
54 G.C. Exh. 36.
55 G.C. Exhs. 4–5.
56 G.C. Exhs. 16, 19; R. Exhs. 2, 5.
57 Seniority; attendance; work habits, ability and experience; and
physical condition. Supra, sec. C.
58 G.C. Exh. 39.
59 G.C. Exh. 7.
60 The record does not disclose Watts’ experience.
G. The July Vacancy and Hogan’s Disability
Earl Williamson, an employee in assemble & test, retired
on July 2, 1993,43 The Company did not post a job for the
vacancy thus created.
Six days later on July 8, Hogan was placed on disability.
She had developed a skin rash and welts, and was directed
to use a cream and have no contact with brass or nickel for
2 weeks,44 Hogan was 52 years of age,45 and also suffered
from arthritis. She described her working environment as a
buzzer grinder—it was nasty, dusty, and hot. The employees’
blood was tested for lead levels, and they were required to
take daily showers on their own time. Hogan showed the
welts she had acquired to Personnel Manager Huddleston.
Judy Vinson corroborated Hogan, referred to ‘‘brass dust,’’
stress, ‘‘a big wheel coming at you,’’ and called the job
‘‘dangerous.’’ Donald Vinson, who also worked in the de-
partment, said that the pressure he had to exert on the buzzer
bothered his back and elbow, while ‘‘that excess metal from
the fittin’ would fly all up in [his] face and all up [his]
nose.’’ Hogan said she turned green.
Hogan’s last job in assemble & test, by contrast, consisted
of testing parts for leaks by placing them in water and
watching for air bubbles. I conclude that the buzzer grinder
job was much more onerous than Hogan’s last job in assem-
ble & test.
Four days after the beginning of Hogan’s disability, i.e.,
on July 12, the Company, with Gearhart’s approval, gave
Steve Jones a 90-day temporary transfer from his job as a
molder in the foundry to the assemble & test department.
The asserted reason was that Jones had suffered a job-related
shoulder injury in December 1992, and was precluded from
remaining on a molding machine.46 Jones’ personnel record
shows that he returned to duty on May 3, 1993.47 At that
time, he had a 30-pound lifting restriction.48 Despite the re-
striction, he worked in the foundry until July 2, when his lift-
ing restriction was raised to 40 pounds.49 There is no evi-
dence of what Jones was doing in the foundry after his return
to duty. Personnel Specialist McLeroy testified that Foundry
Supervisor Johnny Greenwood would have known this. How-
ever, Greenwood was not called as a witness. Donald Vinson
testified that foundry employees with weight-lifting restric-
tions were put on a ‘‘breakoff’’ job, and that there were
other ‘‘light’’ jobs in other departments to which the Com-
pany assigned employees with impairments.
The Company’s published policies permit a 60-day trans-
fer of an employee to a different job ‘‘if necessary, due to
production requirements.’’50 As indicated, the asserted ra-
tionale for Jones’ transfer did not specify that it was because
of production requirements. Later, the 90 days on the transfer
were changed to 60 days.51
H. The First Unfair Labor Practice Charge, the August
Vacancy, and Hogan’s Renewed Union Activities
On July 20, 1993, the Union filed an unfair labor practice
charge, alleging that the Company had refused to allow
Hogan to return to the assemble & test department because
of her union activities, and had deviated from past practice
by not transferring her to another department while she was
recovering from a temporary disability.52
Hogan had been asking her supervisors for a transfer from
the first shift to the second shift because, she stated, it was
not as dusty as the first shift. The supervisors told her that
Gearhart would not approve it. Hogan then asked Gearhart.
He replied that she had to stay on the first shift until she
died, because he ‘‘had to watch her.’’ Gearhart later told her
that he was ‘‘just kidding,’’ but Hogan affirmed that he
looked serious.
During April, Hogan assisted the Union in a hearing on
challenged ballots, and, in August, she resumed handing out
union authorization cards.
The Company posted a job in the machine shop on August
6, and filled it with an assemble & test employee, Lummie
Battle53 No job in assemble & test was posted to fill the va-
cancy created by Battle’s departure.
On August 16, 1993, the Company allowed Hogan to
transfer to the second shift, at a lower rate of pay. Hogan
testified that she did so in order to avoid the excessive dust
on the first shift.
I. The September Posting and the Award of Jobs
Steve Jones completed his 60-day temporary assignment in
assemble & test on September 13, and was transferred back
to the machine shop.54 On September 21, 1993, the Region
dismissed the Union’s charge filed on July 20, 1993.55
Two jobs were posted for the assemble & test department
on September 16. There were 21 bidders, including Hogan
and Steve Jones.
The employees were rated by Plant Manager Gearhart,
rather than by the departmental supervisor. Although
Gearhart claims that he had previously rated job applicants
when he was personnel manager, his rating of the applicants
for the September 16, assemble & test posting was the first
time he had done so as plant manager. This was contrary to
past practice, as established by the testimony of Personnel
Supervisor McLeroy, the experience of Judy Vinson, Geral-
dine Bradford, and Henry McRath protesting ratings, and
documentary evidence.56
Gearhart rated the employees in the categories required by
the handbook.57 He graded four employees—Marlon Green-
wood, Steve Jones, Mark Watts, and Jackie Hogan. Green-
wood had about 10 years of experience in assemble & test,58
Hogan over 4 years,59 and Steve Jones 60 days.60 Nonethe-
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 G.C. Exh. 13.
62 Id.
63 Id.
64 Id.
65 G.C. Exh. 14. Hogan testified that she declined because an
empoyee told her that the machine shop supervisor said it would be
‘‘a cold day in hell’’ before Hogan could work in his department.
I make no finding on whether the supervisor actually said this.
66 G.C. Exh. 42.
67 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
68 G.C. Br. 1.
less, Gearhart rated them as ‘‘substantially equal.’’ Since
Greenwood and Jones were the senior bidders, they were
awarded the jobs.
In assessing Hogan, Gearhart rated her as ‘‘good’’ in at-
tendance (‘‘ATT’’), while the other three top applicants were
rated as ‘‘good’’ or ‘‘good to excellent’’ in this category. No
evidence of absenteeism or tardiness by Hogan was submit-
ted, other than her 2-week period of disability. In determin-
ing relative work habits, Gearhart considered Hogan to be
‘‘fair to poor,’’ while the other applicants were considered
to be ‘‘good.’’61
Hogan had been rated previously by supervisors, at various
times, on ‘‘production,’’ ‘‘conduct,’’ ‘‘safety,’’ ‘‘quality of
work,’’ and ‘‘dependability.’’ She received six ratings by
four different supervisors between April 20, 1989, and July
29, 1991, and was given the top mark of ‘‘good’’ in all cat-
egories, except, on one occasion, her ‘‘conduct’’ was rated
as ‘‘fair.’’62 On July 22, 1993, a supervisor rated Hogan at
the top mark of ‘‘good’’ in production, safety, quality of
work, and dependability, but considered her ‘‘conduct’’ to be
‘‘fair.’’63 Hogan was then working as a buzzer grinder, and
protesting her assignment. On August 11, 1993, an unknown
supervisor rated her as ‘‘good’’ in production, safety, and
quality of work, but ‘‘fair’’ in conduct and dependability.64
As indicated, Hogan had renewed her union activities. On
cross-examination, Gearhart summarized his opinion of
Hogan as a ‘‘fair to poor’’ employee.
On September 30, 1993, Hogan filed the charge which re-
sulted in the complaint being litigated in the case at bar. As
indicated, complaint issued on November 26. Four days later,
on November 30, the Company posted a job in the machine
shop. Henry McRath, the senior bidder, was offered the job
but declined. It was next offered to Hogan, who also de-
clined.65
The Company’s personnel rosters show that assemble &
test had 15 employees at the end of January 1993, and 20
in January 1994, including 3 part-time employees.66 During
this period, Hogan was assigned to the jobs indicated above.
J. Legal Analysis and Conclusions
As indicated, the complaint alleges that Respondent re-
fused to return Hogan to her former job on April 1, 1993,
including its refusal to award her the assemble & test job in
response to the September 16, 1993 posting for discrimina-
tory reasons. In order to establish the alleged violation, the
General Counsel has the burden of establishing a prima facie
case that protected conduct was a motivating factor in the
Company’s failure to place Hogan in this job. Once this is
established, the burden shifts to the Respondent to dem-
onstrate that Hogan would not have been assigned the job
she wanted even in the absence of the protected conduct.67
Respondent contends that the General Counsel is attempt-
ing to set aside the settlement agreement. This is denied by
the latter, who argues merely that the Company committed
postsettlement unfair labor practices ‘‘after April 1, 1993, in-
cluding but not limited’’ to its refusal to award her a job in
the assemble & test department in September 1993.68 In light
of the General Counsel’s position, the issue of whether the
settlement agreement should be set aside is not before me.
Hogan was clearly the leader of the union movement. Her
confrontation with Plant Manager Gearhart in February 1992,
in which he told her that he could fire her without a reason,
that he could fire all the employees, and was going to fight
the Union ‘‘with everything that he had,’’ establishes Re-
spondent’s animus against the Union in general, and against
Hogan in particular.
Hogan was an observer for the Union during the election
in June 1992. After she returned to work following the settle-
ment, she assisted the Union on a hearing on challenged bal-
lots (April 1993). On one occasion, when she requested a
shift transfer, the plant manager told her that she would have
to stay there so that he could ‘‘watch’’ her.
During the negotiations leading to the settlement agree-
ment, the Company falsely told Hogan that there were no
openings in the assemble & test department, nor were there
any employees there who were junior to her. Relying on
these misrepresentations, Hogan accepted Respondent’s offer
to return Hogan to an ‘‘incentive grinder’’ position (with
backpay). The Board has concluded in another case that the
discharges of certain employees were unlawful, where they
were predicated on false statements by the employer that the
plant would soon be closed (in order to induce union accept-
ance of a severance plan). Sheller-Globe Corp., 296 NLRB
116 fn. 3 (1989). The same reasoning is applicable here. Re-
spondent’s misrepresentations to Hogan constitute evidence
that its failure to return her to the assemble & test depart-
ment was discriminatorily motivated.
The Company did not in fact return Hogan to the ‘‘incen-
tive’’ grinder job. Instead, she went to a ‘‘buzzer’’ grinder
position, which was ‘‘faster’’ than the other job. It was also
more onerous than the assemble & test job, and caused
Hogan to suffer the disability described above.
The Company created the buzzer grinder vacancy by trans-
ferring Barbara Popham out of that job. It has advanced no
business reason why it did not put Hogan into one of the as-
semble & test openings instead of transferring Bryant and
Turner into that department—without bids. There is no ap-
parent reason for the Company’s first posting a job vacancy
in assemble & test on February 23, 1993, taking it down as
the settlement was being negotiated, and then transferring
Bryant and Turner into the same department.
The Company’s failure to return Hogan to her former job
was contrary to its past practice, at least since 1991. Hogan
in that year was allowed to ‘‘rollback’’ to assemble & test
after previously being transferred to the cleaning room. Al-
though the Company argues that the policy was different
1131LEE BRASS CO.
69 See Handy Andy, Inc., 296 NLRB 1001 (1989).
70 G.C. Br. 27.
after a layoff, Virgil Brown was put back in the same assem-
ble & test job after having been laid off in 1992. This depar-
ture from past practice constitutes additional evidence of dis-
criminatory motivation. Felbro, Inc., 274 NLRB 1268, 1283
(1985), enfd. in part sub nom Garment Workers Local 512
v. NLRB, 795 F.2d 705 (9th Cir. 1986).
The evidence shows that the Company failed to transfer
Hogan to assemble & test as additional vacancies were cre-
ated by the departures of other employees, in July
(Williamson), and in August (Battle). The timing of the
events in July is significant. Williamson left assemble & test
on July 2. The Company made no move to fill the vacancy
at that time. Hogan’s disability started on July 6, and the
Company promptly transferred Steve Jones into that position,
first for 90 days, which was contrary to the handbook (later
corrected to 60 days). Although the handbook specified that
such transfers were to be made for production reasons, Jones
was transferred because he had a ‘‘disability.’’ He had al-
ready worked in the foundry for several months, his lifting
restriction had been reduced, and there is evidence that the
foundry had light jobs for employees with lifting restrictions.
Hogan, who also had a disability, was not given similar con-
sideration. This constituted disparate treatment, and is further
evidence of discriminatory motivation. Pilliod of Mississippi,
275 NLRB 799, 816 (1985).
Respondent continued to depart from past practice in its
handling of the September 16, 1993 posting of two jobs in
assemble & test. For the first time, Gearhart, as plant man-
ager, rated the applicants. The Company advances no reason
for not letting the departmental manager do the ratings.
In the important category of prior experience, Gearhart
rated Marlon Greenwood, with 10 years of experience, Jackie
Hogan, with over 4 years, and Steve Jones, with 60 days, as
‘‘substantially equal.’’ This is implausible on its face, and is
contrary to the Company’s past practice of giving weight to
greater experience. Since Gearhart knew that Greenwood and
Jones were senior to Hogan, all he had to do was rate Hogan
and Jones as ‘‘substantially equal,’’ and let seniority be de-
terminative.
In addition to Gearhart’s taking over for the departmental
manager in making these determinations, his discriminatory
motivation is evidenced by the fact that he gave Hogan lower
grades than the other supervisors who had rated her. His
written determination states that her work habits were ‘‘fair
to poor.’’ No other supervisor had ever rated her as ‘‘poor’’
in any category. Finally, on cross-examination, Gearhart re-
vealed his bias—Hogan was simply a ‘‘fair to poor’’ em-
ployee. The only explanation for the disparity between
Gearhart’s assessment of Hogan and that of various super-
visors is that he had animus against her because of her union
activities. The combination of (1) Gearhart’s first-time and
unexplained evaluation of applicants, (2) unlikely rating of
applicants with wide disparities in experience as ‘‘substan-
tially equal,’’ contrary to past practice, and (3) rating Hogan
lower than other supervisors had done, constitutes persuasive
evidence that Respondent’s failure to select Hogan was un-
lawfully motivated.
Finally, the Company had five more employees in assem-
ble & test at the beginning of 1994 than it had a year earlier
and three of them were part-time employees.
I conclude that the General Counsel has established a
strong prima facie case that Respondent’s refusal to return
Hogan to her former job in assemble & test was
discriminatorily motivated. The same evidence shows that the
Company would have returned Hogan to this job, absent its
antiunion animus, and, accordingly, that it has not rebutted
the prima facie case.
The complaint alleges the beginning date of discrimination
as April 1, 1993. Hogan had returned to work on March 29.
In February, during her settlement discussions with Plant
Manager Gearhart, she made known her desire to return to
her former job, and I conclude that this constituted an appli-
cation for this job. The settlement did not invalidate this ap-
plication, since it was based on false statements made by Re-
spondent. Accordingly, the application survived the settle-
ment.69 On April 1, 1993, Hogan would have already been
placed in assemble & test absent Respondent’s assignment of
two employees to the department for which she had applied.
I conclude that the discrimination against her began on the
alleged date of April 1, 1993. It was repeated each time a
vacancy occurred during the summer of 1993, again in Sep-
tember after the two postings, throughout the remainder of
1993 (which ended with more employees in the department
than had been there previously, including part-timers), and
continues to date.
By engaging in the foregoing conduct, Respondent has
violated and is violating Section 8(a)(3) and (1) of the Act.
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. Lee Brass Company is an employer engaged in com-
merce within the meaning of Section (2), (6), and (7) of the
Act.
2. Glass, Molders, Pottery, Plastics, and Allied Workers
International Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Beginning April 1, 1993, and continuing to date, Re-
spondent has refused and is refusing to return Jackie Hogan
to her former job in the assemble & test department, because
of her leadership role in and activities on behalf of the afore-
said labor organization, in violation of Section 8(a)(3) and
(1) of the National Labor Relations Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The General Counsel has requested an ‘‘appropriate’’ rem-
edy.70
I shall recommend that Respondent, on Hogan’s request,
forthwith transfer her to her former job in the assemble &
test department.
It is unclear whether Hogan suffered any loss of wages be-
cause of Respondent’s unlawful refusal to assign her to as-
semble & test. However, she may have incurred medical ex-
penses because of her assignment as a buzzer grinder, and
I shall recommend that Respondent be ordered to compensate
for any such expenses. Pilliod of Mississippi, supra at 820.
Such issues can be resolved in a supplemental proceeding.
Any backpay due shall be paid in the manner established
by the Board in F. W. Woolworth Co., 90 NLRB 289
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 Under New Horizons, interest is computed at the short-term Fed-
eral rate for the underpayment of taxes as set out in the 1986 amend-
ments to 26 U.S.C. § 6621. Interest accrued before January 1, 1987,
(the effective date fo the amendment) shall be computed as in Flor-
ida Steel Corp., 231 NLRB 651 (1977).
72 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.
73 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.’’
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).71
Respondent presented evidence that it had filed a petition
to be adjudicated bankrupt, and is currently under the juris-
diction of the Bankruptcy Court. It is well settled that Re-
spondent’s status in this respect does not bar a make-whole
order from the Board. Hiysota Fuel Co., 285 NLRB No. 17
(1987) (not reported in Board volumes).
On these findings of fact and conclusions of law and on
the entire record, I issue the following72
ORDER
The Respondent, Lee Brass Company, Anniston, Alabama,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Glass, Molders, Pottery,
Plastics and Allied Workers International Union, or any other
labor organization, by failing to reinstate to or transfer em-
ployees to their former jobs, because of their union or other
protected activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On Jackie Hogan’s request, transfer her forthwith to
her former job in the assemble & test department.
(b) Make whole Jackie Hogan for any loss of wages she
may have suffered because of Respondent’s unlawful refusal
to transfer her to the assemble & test department, in the
manner described in the Section of this Decision entitled the
Remedy. In addition, Respondent shall compensate Hogan
for any medical expenses she may have incurred because of
her disability at the Respondent’s plant subsequent to her re-
turn to work.
(c) Preserve and, on request, make available to the Board
or its agents, for copying, all payroll records, social security
payment records, timecards, and all other records necessary
to analyze the remedial action necessary under the terms of
this Order.
(d) Post at its plant, at Anniston, Alabama, copies of the
attached notice marked ‘‘Appendix.’’73 Copies of said notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and e maintained for 60 consecutive days in conspicu-
ous 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.