Aluminum Casting & Engineering Co.

ALUMINUM CASTING & ENGINEERING CO. 1 Aluminum Casting & Engineering Co., Inc. and United Electrical, Radio and Machine Workers of America (UE). Cases 30–CA–12855, 30–CA– 12902, 30–CA–12943, 30–CA–12944, and 30– CA–12949 May 16, 2001 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND WALSH On April 9, 1999, the Board issued a Decision and Or- der in the above-captioned case.1 Subsequently, the United States Court of Appeals for the Seventh Circuit issued a decision in which the court enforced in part and remanded in part for the Board to conform its Order to the court’s opinion.2 The court enforced the Board’s findings that the Respondent violated the National Labor Relations Act by (1) discontinuing the Company’s prac- tice of conducting annual wage surveys, and based thereon, granting annual wage increases, because em- ployees voted to select the Union as their collective- bargaining representative; (2) failing to announce a wage increase, telling employees that there will not be an an- nual wage increase, and telling employees that the Union is to blame for the failure to grant an annual wage in- crease, all because employees voted to select the Union as their collective-bargaining representative; (3) main- taining a rule restricting employee solicitation that does not clearly indicate that employees are permitted to en- gage in solicitation during nonworking times; (4) solicit- ing reports of employees who “pressure” employees into supporting the Union; and (5) paying for damage to ve- hicles for those employees who claim that the damage was caused by union supporters. Contrary to the Board, however, the court found that the Respondent did not violate Section 8(a)(1) of the Act by including in its em- ployee handbook the statement that it was the Respon- dent’s “intention to do everything possible to maintain our company’s union-free status for the benefit of both our employees and [the Company].” In accordance with the court’s opinion, we will delete that violation from our prior Order and notice. Before the Seventh Circuit, the Respondent also chal- lenged the Board’s remedial backpay Order. That por- tion of the Board’s Order states that the Respondent must “[m]ake whole all employees who were not granted an- nual wage increases in 1995 to date. . . .”3 The Respon- dent argued that the Order is “inherently overbroad” in that “the Board did not have before it the question of any wage increases for years following 1995. . . . At most . . . the order should address only the contested 1995 an- nual increase.”4 The court noted that the Board’s Order 1 Aluminum Casting & Engineering Co., 328 NLRB 8 (1999). 2 NLRB v. Aluminum Casting & Engineering Co., 230 F.3d 286 (7th Cir. 2000). 3 328 NLRB 8, 11 (emphasis added). did not bind [the Company] to a perpetual practice of granting this particular kind of wage adjustment. To the contrary, it provided that “[t]he exact amounts of the wage increases due employees shall be determined in compliance proceedings, and shall be computed to the extent appropriate. . . . At the compliance stage, [the Company] shall be given the opportunity to estab- lish that even if it had followed its normal practice con- cerning annual wage increases, no increase would have been given in a particular year.”5 The court also noted that it was unequivocally assured at oral argument by Board counsel that “[the Company] would have the opportunity during compliance proceedings to show that it had completely abandoned across-the-board adjustments as a tool of company policy, in favor of the targeted merit, incentive, training, and development raises it has touted in its briefs.”6 With that understanding, the court found “that the Board’s order is entitled to enforcement.”7 We agree with the court’s interpretation of the Board’s Or- der. By letter dated February 15, 2001, the Board solicited statements of the parties on the issues raised by the Sev- enth Circuit’s remand. In statements of position filed March 7 and March 1, 2001, respectively, both the Gen- eral Counsel and the Company agreed that, in response to the remand, “the Board need only modify its Order and Notice consistent with the Court’s denial of enforcement of the Section 8(a)(1) finding regarding the handbook . . . [and that the] remedy will be addressed in compliance in accordance with the understanding of the Court. . . .” The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the Seventh Circuit’s re- mand and the General Counsel’s and the Respondent’s statements of position, and has decided to substitute the attached Order and notice for those issued on April 9, 1999. ORDER The National Labor Relations Board conforms the Or- der to NLRB v. Aluminum Casting & Engineering Co., 230 F.3d 286 (7th Cir. 2000), and orders that the Re- spondent, Aluminum Casting & Engineering Co., Inc., 4 230 F.2d at 295. 5 Id. at 296. 6 Id. 7 Id. 334 NLRB No. 3 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discontinuing the Company’s practice of conduct- ing annual wage surveys, and based thereon, granting annual wage increases, because employees voted to se- lect the Union as their collective-bargaining representa- tive. (b) Failing to announce a wage increase, telling em- ployees that there will not be an annual wage increase, and telling employees that the Union is to blame for the failure to grant an annual wage increase, all because em- ployees voted to select the Union as their collective- bargaining representative. (c) Maintaining a rule restricting employee solicitation that does not clearly indicate that employees are permit- ted to engage in solicitation during nonworking times. (d) Soliciting reports of employees who “pressure” employees into supporting the Union. (e) Paying for damage to vehicles for those employees who claim that the damage was caused by union support- ers. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National La- bor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the unlawfully broad rule restricting em- ployee solicitation. (b) Make whole all employees who were not granted annual wage increases in 1995 to date in the manner set forth in the remedy section of the judge’s decision, as modified by the Board’s decisions, and consistent with NLRB v. Aluminum Casting & Engineering Co., 230 F.3d 286 (7th Cir. 2000). (c) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, necessary to analyze the amount of backpay due under this Order. (d) Within 14 days after service by the Region, post at its facility in Milwaukee, Wisconsin, copies of the at- tached notice marked “Appendix.”8 Copies of this no- tice, on forms provided by the Regional Director for Re- 8 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” gion 30, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since October 14, 1994. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. 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 protection To choose not to engage in any of these protected concerted activities. WE WILL NOT discontinue our practice of conducting annual wage surveys and, based thereon, granting wage increases, because employees voted to select the United Electrical, Radio and Machine Workers of America (UE) as their collective-bargaining representative. WE WILL NOT fail to announce an annual wage in- crease, tell employees that they will not receive an an- nual increase, or tell employees that the Union is to blame for the failure to grant an annual wage increase, all because employees voted to select the Union as their collective-bargaining representative. ALUMINUM CASTING & ENGINEERING CO. 3 WE WILL NOT maintain a rule restricting employee solicitation that does not clearly indicate that employees are permitted to engage in solicitation during nonwork- ing times. WE WILL NOT ask that you report employees who “pressure” employees to support the Union. WE WILL NOT pay for damage to vehicles for em- ployees who claim that the damage was caused by union supporters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the unlawfully broad rule that re- stricts employee solicitation. WE WILL make employees whole for the annual wage increases that were unlawfully withheld from them. ALUMINUM CASTING & ENGINEERING CO., INC.