Aluminum Casting & Engineering Company, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 2010

355 N.L.R.B. 1135 (N.L.R.B. 2010)

ALUMINUM CASTING & ENGINEERING CO.
355 NLRB No. 190
1135
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
September 22, 2010
FOURTH SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On April 9, 1999, in the underlying unfair labor prac-
tice proceeding, the National Labor Relations Board is-
sued a Decision and Order1 directing Aluminum Casting
& Engineering Company, Inc. (the Respondent) to make
its employees whole for any loss of earnings and other
benefits they may have suffered as a result of the Re-
spondent’s unlawful failure to grant them a planned an-
nual wage increase in 1995 in retaliation for their support
for the United Electrical, Radio and Machine Workers of
America (UE) (the Union). On October 13, 2000, the
United States Court of Appeals for the Seventh Circuit
enforced the Board’s decision in part and remanded it in
part, with instructions for the Board to conform its Order
to the court’s opinion.2 On May 16, 2001, the Board
issued a Supplemental Decision and Order, substituting a
new Order and notice for those previously issued on
April 9, 1999.3
On April 30, 2003, the Regional Director issued an ini-
tial compliance specification alleging that the amount of
the illegally withheld 1995 pay increase was 25 cents per
hour. The compliance specification sought reimburse-
ment for the discriminatees for the 25 cents per hour that
they should have received for each hour worked in 1995.
The specification also claimed that each discriminatee
was entitled to the 25 cents per hour that should have
been included in their base pay for work performed after
1995, notwithstanding that in 1996 the Respondent had
lawfully abandoned giving additional across-the-board
wage increases in favor of a wage adjustment system
based on merit and training.
Following a hearing, Administrative Law Judge Bruce
D. Rosenstein issued a supplemental decision on No-
vember 14, 2003, which adopted the compliance specifi-
cation in large part, but rejected its allegations about the
backpay period. The judge found that the appropriate
backpay period was limited to calendar year 1995 rather
than extending from 1995 “until such time as the Re-

1 328 NLRB 8 (1999).
2 NLRB v. Aluminum Casting & Engineering Co., 230 F.3d 286 (7th
Cir. 2000).
3 334 NLRB 1 (2001).
spondent permanently applies the appropriate across-the-
board wage increase to their hourly wages for the years
1996 through 2003.”
On January 31, 2007, in response to the parties’ excep-
tions to the judge’s Supplemental Decision, the Board
issued a Second Supplemental Decision and Order in this
proceeding.4 The Board affirmed the judge’s finding that
the backpay period for the discriminatees should be lim-
ited to calendar year 1995 and directed the Regional Di-
rector to amend the compliance specification accord-
ingly. The amended compliance specification that issued
on May 11, 2007, reflects this change.
On June 4, 2007 the Respondent filed an answer ad-
mitting all of the allegations in the amended compliance
specification. Thereafter, the parties entered into a stipu-
lation and amendment to the amended compliance speci-
fication (the stipulation). The Regional Director ap-
proved the Stipulation, with two attachments agreed to
by the parties, on September 20, 2007.5
On October 1, 2007, the General Counsel filed a Mo-
tion for Summary Judgment with the Board.6 On Janu-
ary 18, 2008, the Board granted the General Counsel’s
Motion for Summary Judgment, finding the Respondent
liable for backpay as alleged.7
Subsequently, the Union filed a petition for review of
the Board’s remedial Order with the Seventh Circuit, and
the Board filed a cross-application for enforcement. On
September 2, 2009, the court granted the petition for re-
view, set aside the Board’s Order, and remanded this

4 349 NLRB 178 (2007).
5 The Union later clarified its position that, in signing the Stipula-
tion, it agreed only to the accuracy of the backpay calculations and did
not waive its right to challenge the underlying Board decision with
regard to the backpay period.
6 The Board issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not be granted.
The Respondent and the Union filed responses to the General Counsel’s
motion. The Respondent requested that the Board grant the motion and
asserted that the allegations in the motion “are all correct and accurate.”
The Union requested that the Board deny the motion, modify its earlier
decision, and find that the backpay period in this case extends from
1995 to the present.
7 352 NLRB 1 (2008) (Third Supplemental Decision and Order).
Although this decision issued when the Board had only two members,
the Seventh Circuit’s grant of review and remand to the Board became
final prior to the Supreme Court’s decision in New Process Steel, L.P.
v. NLRB, 130 S.Ct. 2635 (2010), holding that two members cannot act
as a quorum of a three-member panel with delegated authority from the
Board once the panel no longer has three members. In these circum-
stances, we regard the matters finally resolved by the court of appeals
as res judicata in this proceeding. See Chicot County Drainage District
v. Baxter State Bank, 308 U.S. 371, 374–378 (1940); Nemaizer v.
Baker, 793 F.2d 58, 65 (2d Cir. 1986) (cited with approval in United
Student Aid Funds, Inc. v. Espinosa, 130 S.Ct. 1367, 1377 (2010)).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136
case to the Board “for proceedings consistent with [the
court’s] opinion.”8
On April 1, 2010, the Board notified the parties to this
proceeding that it had decided to accept the court’s re-
mand and invited the parties to file statements of position
with respect to the issues raised by the remand. The Un-
ion and the Respondent each filed a statement of posi-
tion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the court’s remand in light
of the parties’ statements of position and has decided to
accept the court’s decision as the appropriate application
of the remedial principles embodied in the Act to the
facts of this case, and to issue the appropriate remedial
order against the Respondent for the violations found.
Discussion
In granting the Union’s petition for review and setting
aside the Board’s underlying order, the court rejected the
Board’s determination that the Respondent’s backpay
liability was limited to calendar year 1995.9 The court
held that its prior decision did not excuse the Respondent
from carrying forward the 1995 pay increase because
doing so was necessary to make the discriminatees
whole.10 The court concluded that this interpretation of
its prior decision was “the only interpretation that is
compatible with the law governing remedial measures
under the Act,” which is intended to put each employee
in the position he would have been absent the Respon-
dent’s misconduct.11 The court then remanded this case

8 Electrical, Radio & Machine Workers (UE) v. NLRB, 580 F.3d 560
(7th Cir. 2009).
9 580 F.3d at 565.
10 Id.
11 Id.
to the Board for proceedings consistent with the court’s
opinion.
Consistent with that remand, we find that, in order to
make the discriminatees’ whole, the proper backpay
award in this case cannot be limited to 1995. It must also
reflect that the unlawfully withheld pay increase would
have been incorporated into the discriminatees’ “base
wage” for each year thereafter, continuing until each
discriminatee’s last day of employment with the Respon-
dent.
ORDER
It is ordered that the proceeding is remanded to the
Regional Director for Region 30 to prepare an amended
compliance specification, as follows:
The Regional Director will utilize the same calcula-
tions for the payment of the 1995 across-the-board in-
crease as set forth in the April 30, 2003 compliance
specification, for the employees listed therein. The pe-
riod of backpay will not be confined to calendar year
1995. Rather, the 1995 backpay award of 25 cents per
hour will be incorporated into the employees’ “base
wage” for 1995, and all subsequent pay raises are to be
added to a base wage that includes the 1995 increase,
with interest added thereon. The Regional Director will
compute the appropriate interest in accordance with New
Horizons for the Retarded, 283 NLRB 1173 (1987), mi-
nus tax withholdings required by Federal and State laws,
until the Respondent ultimately remits the 1995 across-
the-board increase, for the calendar year 1995 and all
subsequent years, to all employees who were eligible to
receive it. This shall include employees who terminated
their employment after the 1995 annual increase and any
discriminatees still employed by the Respondent.