Cranston Print Works Co.

National Labor Relations Board - Board Decisions

May 31, 1957

117 N.L.R.B. 1834 (N.L.R.B. 1957)

1834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the challenges. The only items of additional evidence adduced to
show that Arnold Severino enjoys a special status allying him to
.management is an affidavit of the director of organization of the
Union that he has observed Severino enter the Employer's offices
unannounced on several- occasions, and he was once permitted to
-enter the plant's working area by Severino. These isolated items do
not, in our opinion, outweigh the undisputed findings of the Re-
gional Director that both Severinos have production jobs in the
plant for which they receive a typical hourly rate for hours actually
worked. We are satisfied that there is no significant difference be-
tween their jobs and those of other production workers in the plant.
As the status of daughter-in-law could, in no event, qualify under,
the exclusions provided for in Section 2 (3), we find that Anna
.Severino was an eligible employee entitled to vote in the election.
As her ballot and that of Rita Bassett, when counted, may be deter-
minative of the election, we shall direct the Regional Director to open
and count their ballots. If it then appears that the challenge to the
ballot of Arnold Severino must still be resolved, the Regional Di-
rector will conduct a further investigation into the stock ownership
of the Employer for the purpose of determining whether James and
Jessie Severino, parents of Arnold Severino, are the owners of the
corporate Employer,' and will issue' a supplemental report based
-thereon.
[The Board directed that the Regional Director for the First
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots of Rita Bassett and Anna Severino, and
serve upon the parties a revised tally of ballots and take such action
as is provided for in this Decision.]
See American Steel Buck Corporation , 107 NLRB 554, 556.
,Cranston Print Works Company and Textile Workers Union of
America , AFL-CIO. Case No. 11-CA--830. May 31, 1957
DECISION AND ORDER
On July 30,1956, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
-and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that Respondent had not engaged 'in certain other unfair labor prac-
tices alleged in the complaint and recommended that these allegations
117 NLRB No. 250.
CRANSTON PRINT WORKS COMPANY 1835
,of the complaint be dismissed. Thereafter Respondent filed excep-
tions to the Intermediate Report and a supporting brief.' Re-
spondent's request for oral argument is hereby denied as the record
and brief adequately present the issues and positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this case
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations with the following modifications and additions.
The principal events which gave rise to the complaint in this case
are these : During the Charging Union's organizational campaign,
which culminated in an election won by the Union in April 1954, Evans
Hamilton was one of the Union's most active leaders in the plant.
Among other unfair labor practices committed by Respondent both
before and after the election, Respondent unlawfully discriminated
against Hamilton in reprisal against his union membership and
.activity 2
While at work in February 1954, Hamilton injured his back. Be-
tween that time and the following September, Hamilton received
medical treatment for his injury which caused him to be absent from
work at various times. Early in September, Hamilton was involved
in an automobile accident which aggravated his back injury. During
the 3-month leave of absence which followed he was hospitalized
briefly for treatment, he testified in the prior unfair labor practice
case against Respondent, and he participated in the Union's negotia-
tions with Respondent which culminated in the execution of a contract
in December. Late in November 1954, Respondent notified Hamilton
of the imminent expiration of his leave of absence and granted him a
3-month extension of his leave at Hamilton's request.
On January 10, 1955, Hamilton contacted Hardee, Respondent's
personnel director, and requested reinstatement.' The following day
I Respondent has moved the Board to reopen the record in this proceeding and admit
into evidence an award of the North Carolina Industrial Commission , issued in January
1956, in which the commission ruled that after July 29, 1954, Hamilton suffered no
wage loss compensable under the workmen's compensation laws of that State . This award
contains no evidence relevant to this proceeding which is not already before us. Nor is
the commission 's decision , contained in the award, relevant to this proceeding. Our
decision herein turns on the issue of Respondent 's motives in refusing to reinstate Hamilton
and terminating his employment . As this award was handed down in 1956 , it could not
have affected Respondent's decision not to reinstate him early in 1955. Even if the award
contained a determination of the cause of Hamilton's termination of employment, which
it does not , that determination would not be binding upon this Board . Accordingly, Re-
spondent 's motion to introduce the award in evidence is hereby denied. Cf . Cadillac Ma-
r1ne & Boat Company, 115 NLRB 107.
® Cranston Print Works Company, 115 NLRB 537
8 The Trial Examiner inadvertently indicates that Hamilton 's interview with Hardee
on January 10, 1955, took place at the plant, rather than at a lunchroom about one-
half mile from the plant . We do not believe , however, that his misdesignation of the
locale of this interview materially affects his resolution of the conflict of testimony con-
-cerning this conversation and his conclusions based thereon.
1836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton and two representatives of the Union not in the employ of
Respondent were'arrested, on Respondent's complaint, while passing
out union literature in Respondent's parking lot. On January 13
Respondent notified Hamilton by letter that to be eligible for rein-
statement he was required by the collective-bargaining agreement to
pass a physical examination and asked him to contact the personnel
office to make arrangements for an appointment with a physician.
Hamilton did so and was thereafter examined by Respondent's physi-
cian , Dr. Lutz. The latter found no present evidence of a back injury,
but in view of Hamilton's history of back pain and a ruptured disc,
he recommended that Hamilton be hired only for light work which
required no lifting. When Hamilton telephoned Hardee a few days
later, Hardee informed him of Lutz' recommendation and stated that
Respondent had no light work for him but that he would be notified if
any showed up.
On January 31, 1955, representatives of Respondent met with the
Union's grievance committee to discuss, among other things, Hamil-
ton's reinstatement. At that meeting Respondent refused to recognize
the validity of the work clearance certificate Hamilton had ob-
tained from a chiropractor. Respondent's representatives also de-
clined to offer Hamilton light work, claiming that none was available.
However, Respondent acquiesced in the Union's assertion that
Hamilton had a right to select a reputable physician of his own choice
to determine his physical capabilities, provided the physician was
furnished a record of Hamilton's medical history. Dr. Watts, whom
Hamilton consulted for this purpose shortly thereafter, indicated in
a written report to Respondent that Hamilton's herniated disc con-
dition had improved to the point where Hamilton could return to
light work but that he should avoid strenuous activity and heavy lift-
ing for an indefinite period. He also expressed the opinion that
Hamilton had a 25-percent permanent disability of a general nature.
At a second meeting of Respondent's and the Union's represent-
atives on February 10, Respondent's representatives explained that
Respondent had no light work and expressed the fear that Hamilton's
disability, as revealed in Dr. Watts' report, was so severe that his
assignment to any job would involve a serious risk of reinjury to
Hamilton. Respondent declined to arbitrate the matter, or to extend
Hamilton's leave or to agree to reinstate Hamilton if, in the Work-
men's Compensation proceeding then pending, Hamilton's, injury was
found to have resulted from the plant accident.
On March 7 Respondent informed Hamilton that his leave of ab-
sence had expired and that he was being dropped from Respondent's
records. On March 28 Hamilton informed Respondent by letter that
he was still available for employment.
CRANSTON PRINT WORKS COMPANY 1837
I. We ,agree with the Trial Examiner that on and after January 31,
1955, Respondent refused to offer Hamilton light work, and that on
March 7, 1955, Respondent discharged Hamilton, because of Hamil-
ton's union membership and activities and in order to discourage
membership in the Union in violation of Section 8 (a) (3) and (1) of
the Act.4
The Trial Examiner found, and we agree for the reasons he cites,
that Respondent's refusal to reinstate Hamilton was not caused by
the alleged absence of light work in the plant. He also rejected Re-
spondent's claim that after Hardee became personnel director in
March 1954, Respondent instituted and maintained a policy against
employing individuals for whom light work had been recommended
for medical reasons.' Respondent contends that the Trial Examiner
erroneously described the Respondent's alleged policy on light work
transfers and that he failed to consider one of the reasons Hardee
cited as justifying and demonstrating the existence of this alleged
policy.,
Respondent argues that the Trial Examiner ignored Hardee's testi-
mony that it was not economical to transfer to lighter work injured
employees who were not physically fit to perform their regular work
and that if such employees were to suffer reinjury when utilized in
other assignments, Respondent would be subjected to extraordinary
liability. It was for this reason, Respondent asserts, that when a
physician recommended that an employee be restricted to light work,
it was Respondent's practice to lay him off, rather than transfer him
to lighter work, and to reinstate him only at such time as he was physi-
cally qualified to return to his former job. Pursuant to this policy,
Respondent contends, Hamilton was denied reinstatement because he
was admittedly unable to resume the duties of his former job when
he sought reinstatement early in 1955.
4 The Trial Examiner found that Respondent's discharge of Hamilton also violated Sec.
tion 8 (a) (4) of the Act Respondent excepts to this finding As the policies of the Act
will as well be effectuated by a remedial order based upon our finding herein that Re-
spondent violated Section 8 (a) (3) and (1) of the Act, we find it unnecessary to review
the Trial Examiner's findings and recommendations respecting the Section 8 (a) (4)
allegations of the complaint and shall dismiss the complaint to that extent. Apex Toledo
Corporation, 101 NLRB 807, footnote 3
5 The Trial Examiner also found that before Hardee became personnel director in March
1954 Respondent customarily transferred employees to lighter work upon a physician's
recommendation while Respondent denies it did so, it introduced no evidence to support
its contention or to rebut the evidence upon which the Trial Examiner relied in making
this finding
"when asked whether he had ever returned an employee who had sustained an injury
to light work, Haidee replied that he had not, allegedly because there was no light work
available in the plant and because the collective-bargaining agreement covering the plant
required hun to post job openings It is apparent that in so testifying, Hardee purported
to explain why he had never transferred employees to light work, rather than why, as
Respondent contends, Respondent currently maintained such a policy Therefore, this
testimony is obviously implausible, as found by the Trial Examiner, because the record
amply refutes the claim that Respondent had no light work in the plant and because the
agreement referred to by Haidee was executed in December 1955, and could hardly have
accounted for a policy allegedly initiated the preceding March.
1838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Hardee testified that when a physician restricts an employee
to light work, Respondent sends him out "until such time as he is fit
and able to come back to his job ," his testimony does not substantiate
Respondent 's claim that it is contrary to Respondent 's interest to
transfer injured employees to lighter work . Hardee testified that
Respondent's workmen 's compensation insurance premiums are re-
duced by, among other things, the wages an injured employee is paid
while entitled to compensation . He also testified that Respondent's
liability might be multiplied were an injured employee returned to
work in the absence of a physician 's clearance to perform "his full
duties" and he received further injury . He did not claim, however,
nor does it otherwise appear, that Respondent would be subjected to.
such a risk in the event of reinjury if a physician had certified the
employee as fit to perform the job to which he was reinstated , whether
it was his former job or a different and easier one. It would seem,,
therefore , that it would be to Respondent 's advantage-in that it
would reduce its compensation insurance premium without subjecting
itself to unusual liability in the event of reinjury-to place an injured
employee entitled to compensation in any job he was capable of
performing , providing only that a physician had certified him as
physically qualified to perform that job. We are of the opinion,
therefore , that this testimony fails to substantiate Respondent 's claim
that it was contrary to Respondent's interests to transfer injured
employees to light work.' Rather , we believe , it tends to establish the
contrary.'
There seems to be no evidence , other than Hardee 's testimony re-
ferred to above, which credibly supports Respondent's claim that it
has maintained a policy since March 1954 against transferring em-
ployees to lighter work upon a physician 's recommendation .9 But
substantial evidence of the nonexistence of Respondent 's alleged policy
is found in the following facts :
'While we believe that the evidence demonstrates that Respondent benefited by trans-
ferring disabled employees entitled to compensation to lighter work, we do not thereby
intend to suggest that Respondent confined such transfers to only those employees who
were receiving compensation. See footnote 11, below.
fi Respondent's retention of employees McCrain and Ruth in lighter jobs to which they
had earlier been transferred by reason of job -incurred disabilities and its reinstatement
of employees Goode and Garrett while they were restricted to light work by Respondent's
physician is also inconsistent with Respondent's alleged policy of avoiding liability for
the reinjury of employees for whom light work had been recommended.
9 Lisk, the Union's international representative, testified that Gregory, Respondent's resi-
dent manager since 1948, said in one of the meetings early in 1955, at which Hamilton's
reinstatement was discussed, that Respondent had never given employees light work on a
physician's recommendation. We do not consider this testimony reliable because the record
definitely establishes that between 1948 and 1954 such transfers were made and because
this statement is not reflected in the testimony of either Gregory or the other two wit-
nesses who attended these meetings. Accordingly , we find merit in Respondent 's excep-
tion to the Trial Examiner 's finding that Respondent's representatives , in saying that
Respondent had no light work for Hamilton , cited "as reason therefor a practice not to
honor light work orders."
CRANSTON PRINT WORKS COMPANY 1839
A. Hamilton was never notified that he was being denied reinstate-
ment to lighter work by reason of such a policy. Thus, Hardee never
mentioned the policy to Hamilton when the latter sought reinstate-
ment at various times. Nor did Respondent's representatives inform
the Union or Hamilton of this alleged policy when they refused to
offer Hamilton any job other than his former job during the meetings,
at which Hamilton's reinstatement was sought by the Union.
B. In denying Hamilton reinstatement at various times, Hardee,
made statements which are evidently inconsistent with the existence
of such a policy. Hardee testified that when Hamilton reported to,
work on May 18, 1954, with a light-work certificate from Dr. Lutz,,
he told Hamilton "that we did not have any light work that he could
do, but-we did not have any other place that we could put him, and
that we would have to send him out until such time as the doctor said
he was able to physically resume the duties of his job." On January
17, 1955, Hardee told Hamilton, according to Hardee, that "Dr. Lutz
had advised that he was-that he could not do anything but light
work and we did not have any light work available and therefore I
could not give him work." If anything, Hardee's testimony in this
regard lends support to the Trial Examiner's conclusion that Re-
spondent followed a policy of transferring partially disabled em-
ployees to lighter work wherever possible.
C. Not only were two of Respondent's supervisors apparently
unaware of the existence of Respondent's alleged policy, as observed'
by the Trial Examiner, but so was Respondent's plant nurse, the indi-
vidual other than Personnel Director Hardee most likely to be cogni--
zant of Respondent's practices relating to disabled employees. On a
form dated May 18, 1954, which she used to report Hamilton's injury
to the North Carolina Industrial Commission, the plant nurse made:
the following notation :
Employee reported to work 5-18-54 and worked 3 hrs. There,
was no light work available. Started to lose time again at
10: 00 A. M. 5-18-54. [Emphasis supplied.]
D. Respondent contends that the reinstatement of Goode and"
Garrett conformed to, and indicates the existence of, its alleged policy
of reinstating employees with known physical disabilities only to-
their former jobs; both employees were returned to their former jobs
while confined to light work. The inadequacy of this contention is
revealed by the fact, more fully described below, that before finally-
reinstating these employees to their former jobs, Respondent offered
each of them two other jobs despite knowledge of their physical'
disabilities.
In sum, Respondent's contention-that in refusing to offer-
Hamilton work at a lighter job it was acting pursuant to a policy,,
1840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uniformly applied, against making such transfers-is unsupported by
the record and conflicts with evidence which establishes the contrary.
Respondent's practices in reinstating employees with known physical
disabilities and its discrimination against Hamilton are even more
clearly established when Respondent's treatment of employees Goode
and Garrett is considered.10 Before the strike in the summer of 1954,
Garrett worked as a case nailer and handler, having been earlier trans-
ferred to that position because of an injury to his knee. For a short
while after the strike Garrett tried a different job which both aggra-
vated his previous knee injury and caused an allergic reaction to the
coloring pigments with which the job brought him into contact. It
does not appear that Respondent even sought medical clearance before
placing Garrett in this job. Finally, after Garrett was offered, and
declined, a second job because it involved contact with pigments, and
after he lost his employee status, Respondent hired him as a new
employee in the job he held before the strike, Respondent's physician
having recommended against climbing, squatting, or heavy lifting for
him. In Goode's case , his heart attack occurred on the picket line
during the strike. Respondent also offered Goode three jobs. The
first Goode declined. The second was ruled out after Respondent's
doctor advised against any heavy work for Goode, recommending that
he be allowed only "light to moderate work." However, he also ad-
vised that Goode could safely assume the duties of the job he held
before his heart attack.ll Respondent later reinstated Goode to the
latter job.12
In contrast to its treatment of Goode and Garrett, Respondent
made no similar effort to find Hamilton a job for which he was
physically qualified. Instead of offering him one or more light jobs
10 Unlike the Trial Examiner, we do not consider the transfer of employees McCrain
and Ruth to light work relevant to the issue of Respondent's light work transfer policy
in effect when Hamilton was denied employment as their transfers took place before
Hardee became Respondent's personnel director and allegedly established a new policy
on such transfers . Nor do we believe that Respondent 's denial of overtime work to em-
ployee Justice because of his physical disability bears upon Respondent 's alleged policy of
light-work transfers.
11 Unlike the Trial Examiner , we do not find that in reinstating Goode to his former job
Respondent acted contrary to, or in the absence of , medical advice or that Respondent
relied on advice given in ignorance of Goode's coronary sclerosis and thrombosis. Nor do
we rely upon his finding that the 9 -month leave of absence which Respondent granted
Goode retroactively was entirely unsolicited , Respondent having acted to reinstate Goode
only upon the insistence of the Union.
1a As it neither appears, nor seems likely , that either Goode or Garrett were receiving
workmen's compensation at the time they were reinstated , Respondent was apparently not
attempting , in offering them these various jobs , to reduce its workmen 's compensation insur-
ance premiums
The Trial Examiner considers significant Gregory's testimony that he told Hamilton
that he would be reinstated if a physician would certify him as "perfectly fit" to do his
job, while Goode was required , before reinstatement , to secure a physician 's certificate
stating only that "he was able to work." we do not rely upon this apparent difference
in Respondent 's treatment of Hamilton and Goode , first, because Gregory's use of the word
"perfectly" may have been a mannerism of speech and, second , because the word may
have been inaccurately transcribed , Gregory having elsewhere testified that he said Ham-
ilton would be required to be "physically fit" to do his job.
CRANSTON PRINT WORKS COMPANY 1841
and permitting him to seek a ph isician 's clearance to accept them,
Respondent took the position that there was no job in the. plant
which Hamilton could perform and which would not prove unduly
hazardous to him and that its judgment in the matter was final. At
that time, Respondent 's physician had recommended that Hamilton
be hired only for light work with no lifting . Dr. Watts had advised
that he should avoid strenuous activity and heavy lifting for an
indefinite period, and reported that Hamilton had a 25-percent per-
manent disability of a general nature. We do not believe that the
differences between these recommendations and those made concern-
ing Goode and Garrett are sufficiently substantial to account for the
disparity of treatment Respondent accorded Hamilton and Goode
and Garrett . And Respondent 's claim that it acted, in denying light
work to Hamilton, upon a belief that Hamilton 's 25-percent disability
gave rise to a risk of grave reinjury is rendered untenable, as the
Trial Examiner points out , by the fact that Respondent reinstated
Goode, for whom the consequences attendant upon aggravation of
his coronary condition were at least as serious . We concur , therefore,
in the Trial Examiner's conclusion that . in refusing Hamilton rein-
statement , Respondent was not motivated by a fear of further injury
to Hamilton.
Apart from the validity of the various explanations Respondent
has advanced for its refusal to offer Hamilton reinstatement , we think
that Respondent 's belated reliance upon its alleged policy against
light-work transfers further demonstrates that these explanations
do not reflect Respondent 's real motives for its treatment of Hamil-
ton. As pointed out above , Hamilton and the Union were never
advised of Respondent 's alleged policy. In its brief to the Trial
Examiner Respondent places its reliance on other contentions and
,only vaguely and incidentally refers to a policy against employing
employees restricted to light work . Respondent did not once, in its
argument to the Trial Examiner, distinguish between its alleged
practice of reinstating such employees to their former jobs and its
alleged policy against reinstating them to different and lighter jobs.
Nor did Respondent argue before the Trial Examiner, as it has at
length in its brief to this Board, that its reinstatement of employees
Goode and Garrett and its refusal to reinstate Hamilton could be
explained by making this distinction . Having waited until after the
issuance of the Intermediate Report to explicate the policy it now
alleges it maintained and to offer it as an explanation for its refusal
to reinstate Hamilton, Respondent has demonstrated to our satisfac-
tion that its alleged policy is but an afterthought which played no
real part in Respondent's decision not to reinstate Hamilton.
For the foregoing reasons, and the additional reasons discussed by
the Trial Examiner, we find that Respondent discriminated against
4237 84--57-v o1 117-117
1842 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton by refusing to offer him light work and thereafter by dis-
charging him and that the various explanations Respondent has of-
fered for this discrimination are implausible , belatedly raised, and
unsupported by the record . We find them, therefore , to be mere
pretexts employed by Respondent to conceal its motives . Respond-
ent's antiunion animosity in general and its animosity toward Ham-
ilton in particular , born of his prominent role in the organization and
administration of the Union in Respondent 's plant, has been estab-
lished by the Board's decision in the previous proceeding against
Respondent wherein Respondent was found to have deprived its em-
ployees generally of rights guaranteed by the Act and to have dis-
criminatorily laid off Hamilton and two other employees in unlawful
reprisal against their union activities . 13 In the absence of any other
plausible explanation for Respondent 's discrimination against Ham-
ilton, we are constrained to agree with the Trial Examiner, and we
find, that Respondent 's real motive in refusing to reinstate Hamilton
on and after January 31, 1955, and in discharging him on March 7,
1955, was to rid itself of Hamilton because of his union activities.
II. Respondent contends that for the purpose of determining his
right to distribute union literature on Respondent 's parking lot,
Hamilton should not be considered an employee because he was on
leave of absence at that time and was not , therefore, on Respondent's
premises in connection with the duties of his employment. In ruling
recently on the right to distribute union literature on an employer's
property , the Supreme Court distinguished only between employees of
an employer and nonemployee organizers , saying, with certain limita-
tions not here relevant , that "no restriction may be placed upon the
employees' right to discuss self-organization among themselves." 14
In determining to whom this right to distribute union literature ex-
tends, we believe that the mutuality of employment interests of all
employees of a single employer-whether they are working, on strike
or leave of absence or sick leave or temporary layoff or temporary
transfer , or have been discriminatorily discharged or are about to
quit-is no less determinative of this right than it is of the right to
engage in other self -organizational activities fostered and protected
by the Act. We find, therefore , that Hamilton's right to engage in
union activities among his fellow employees, of which the right to
distribute union literature was one, was in no way diminished by the
fact that he was on leave of absence at the time . Accordingly, we
agree with the Trial Examiner that Respondent unreasonably im-
peded and interfered with the rights of self-organization guaranteed
its employees by the Act, in violation of Section 8 (a) (1), by refusing
to permit Hamilton to engage in this activity and by causing his arrest
Cranston Print Works Company , supra.
is N L P l3 v Babcock . Wilcox Company , 351 U S 105
^' 1x3
CRANSTON PRINT WORKS COMPANY 1843
for having done so. We also agree that Respondent did not violate
the Act by similarly preventing Hamiltion's two companions, who
were not in Respondent's employ, from distributing union literature
at the parking lot.
THE REMEDY
Respondent has been found to have unlawfully discriminated
against Hamilton by refusing, on and after January 31, 1955, to offer
reinstatement to Hamilton and by discharging him on March 7, 1955.
The Trial Examiner recommends that Respondent be required to rein-
state Hamilton to his former or a substantially equivalent position.
We shall modify this recommendation for the following reason. The
record establishes that Hamilton's former job required greater activity
and exertion than that to which reputable physicians had recom-
mended that he be limited at the time he sought reinstatement. It is
clear that where a reputable physician recommended that an employee
be restricted to work requiring no more than a certain degree of
physical effort and exertion, it was Respondent's policy not to reinstate
such an employee to a job requiring greater physical activity than,
that recommended by the physician. Even in the absence of its dis-
crimination, therefore, Respondent would not have, at that time, rein-
stated Hamilton to his former position or to one requiring comparable
physical qualifications. We are unable, however, to ascertain at this
time the particular job to which Respondent would have reinstated
Hamilton, and the job or jobs to which he would have been subse-
quently transferred or promoted, had Respondent not discriminated
against him in the manner found herein. For this reason we shall
order Respondent to offer Hamilton immediate and full reinstatement
to the job he would now occupy had Respondent not unlawfully, dis,
criminated against him by refusing to offer him light work, without,
prejudice to his seniority and other rights and privileges, and to make
him whole for any loss of wages he may have suffered by reason of that
discrimination, leaving to the compliance stage of this proceeding the
determination of the job he would now hold and the loss of wages
he has suffered, the latter to be computed in accordance with the
Board's customary formula, set forth in F. W. Woolworth Company,
90 NLRB 289.
The unfair labor practices found to have been committed by Re-
spondent in this proceeding, particularly when considered in - con-
nection with the unfair labor practices Respondent has previously,
committed," convince us that the commission by Respondent of
similar and other unfair labor practices in the future may be reason-
ably anticipated. The preventive purposes of the Act will be thwarted
unless the remedial order is coextensive with the threat. In order,
15 Cranston Print Works Company, supra
1844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, to make effective the guarantees of Section 7 of the Act, to
prevent the recurrence of unfair labor practices in the future, and to
effectuate the policies of the Act, we shall order that Respondent cease
and desist from infringing in any manner upon the rights guaranteed
employees by Section 7 of the Act.
ORDER
Upon the entire record in this case, and pursuant'to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Cranston Print Works Com-
pany, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, AFL-CIO, or in any other labor organization of its employees, by
discriminatorily discharging or refusing to reinstate employees, or
by discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of employment, be-
cause of their membership in, leadership, or activity on behalf of any
such organization, except to the extent permitted by Section 8 (a) (3)
of the Act.
(b) Preventing employees from distributing union literature in
the Respondent's parking lot. The Respondent may, however, if neces-
sary, establish reasonable nondiscriminatory regulations governing
such distribution.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Textile Workers Union of Amer-
ica, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Evans S. Hamilton immediate and full reinstatement
to the job he would now occupy had Respondent not unlawfully dis-
criminated against him in-the manner found herein, without prejudice
to his seniority and other rights and privileges, and make him whole
for any loss of wages he may have suffered by reason of that dis-
crimination, in the manner set forth in the section above entitled
"The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
CRANSTON PRINT WORKS COMPANY 1845
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due.
and the rights of employment under the terms of this Order.
(c) Post at its plant at Fletcher, North Carolina, copies of the notice
attached hereto marked "Appendix." 16 Copies of said notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by a representative of the Respondent, be
posted by Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent committed unfair labor practices by
preventing nonemployee Union Agents Cosgrove and Prestwood
from distributing union literature in and about the Respondent's
parking lot, in violation of Section 8 (a) (1) of the Act, and by dis-
criminating against Evans S. Hamilton because he gave testimony
under the Act, in violation of Section 8 (a) (4) of the Act.
MEMBERS RODGERS and JENKINS took no part- in the consideration
of the above Decision and Order.
io In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Textile Workers
Union of America, AFL-CIO, or in any other labor organiza-
tion of our employees, by discharging or refusing to reinstate
employees, or by discriminating in any other manner in regard
to their hire or tenure of employment, or any term or condition
of employment because of their membership in, leadership of, or
activity on behalf of, any such organization.
WE WILL NOT prevent employees from distributing union liter-
ature on our parking lot.
1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other mannel', interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist Textile
Workers Union of America, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Evans S. Hamilton immediate and full rein-
statement to the position he would now occupy had we not dis-
criminated against him, without prejudice to his seniority and
other rights and privileges, and make him whole for any loss of
pay he may have suffered as a result of that discrimination.
All our employees are free to become or refrain from becoming
members of the above-named Union or any other labor organization,
except to the extent that this right may be affected by an agreement
in conformity with Section 8 (a) (3) of the Act.
CRANSTON PRINT WORKS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges timely filed by Textile Workers Union of
America, AFL-CIO, the Union herein , the General Counsel of the Board issued a
complaint on June 21 , 1955, against Cranston Print Works Company, Fletcher,
North Carolina , the Respondent herein. The complaint alleged that the Respondent
had engaged in unfair labor practices affecting commerce , in violation of Section 8
(a) (1), (3), and (4) of the National Labor Relations Act, 61 Stat 136. More
specifically , the complaint alleged that the Respondent : ( 1) About January 11, 1955,
arrested and discriminatorily prevented employee Evans S. Hamilton and Union
Agents Thomas J. Cosgrove and James N. Prestwood from distributing union
literature in and about the Respondent 's parking lot; and ( 2) about January 13,
1955, refused to reinstate Hamilton to any position after a leave of absence, and
about March 7, 1955, discharged him, because Hamilton had engaged in concerted
and union activities and because he had, about October 13, 1954, given testimony
under the Act in an unfair labor practice proceeding against the Respondent.
The Respondent duly filed its answer denying the commission of the aforesaid un-
fair labor practices . The answer affirmatively averred that the reason Hamilton was
not reinstated as an employee was that he could not physically qualify for the
work.
A hearing was held at Hendersonville , North Carolina, on September 27, 28, 29,
and 30, 1955 , before the duly designated Trial Examiner . All parties were repre-
sented at the hearing , were afforded full opportunity to be present and to meet
relevant evidence , to examine and cross -examine witnesses , to present oral argument,
CRANSTON PRINT WORKS COMPANY 1847
and to file briefs and proposed findings of fact and law. The Respondent filed a
brief, which has been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Cranston Print Works Company is a Rhode Island corporation which maintains
a plant at Fletcher, North Carolina, where it is engaged in the bleaching, printing,
and dyeing of cotton goods. In the course and conduct of its business operations
at the Fletcher plant during the year 1954, the Respondent manufactured products for
which it received payments in excess of $650,000. More than 98 percent of such
products was shipped to customers outside the State of North Carolina. During the
same period the Respondent purchased supplies and equipment valued in excess
of $240,000, more than 40 percent of which, in value, originated outside the State
of North Carolina, and was shipped to the Fletcher plant.
It is found that the Respondent is engaged in commerce, and further found that
its activities affect commerce.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO, is a labor organization admitting
to membership employees of the Respondent at the Fletcher plant.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to reinstate Hamilton
1. Background
On February 27, 1956, following the issuance of a complaint by the General
Counsel, hearing thereon, and the usual statutory proceedings in connection there-
with, the Board issued its Decision and Order in Cases Nos. 1 1-CA-706 and i 1-CA-
765 involving this Respondent (115 NLRB 537). In its Decision the Board made,
inter alia, the following findings of fact and law, of which I hereby take judicial
notice.'
On April 22, 1954, following unsuccessful attempts in similar elections in 1951
and 1953, the Charging Union won a Board-conducted collective-bargaining election
at the Respondent's Fletcher plant and, as a consequence, was duly certified as the
bargaining agent of the employees. Prior to that election the Respondent engaged
in unfair labor practices. These practices included coercive interrogation of em-
ployees concerning their union sympathies; threats that, and the sponsoring of
rumors to the effect that, the plant would be closed or moved if the Union came
in; and the making of threats of discharge, of other reprisals, and promises of bene-
fits to employees in connection with the union activity. Participating in these acts
on behalf of the Respondent were Plant Manager Gregory and Foremen Gambrell
and Parker. The Respondent also prohibited union solicitation by employees on
their own time.
One of the Union's most active leaders in the plant was employee Evans S.
Hamilton. In the week after the election-on April 29, 1954-the Respondent,
on a pretext, laid off Hamilton and employees Stepp and Higgins for a period of
1 week, in order to discourage union membership and concerted activities of em-
ployees.
After the election-in reprisal for the employees having selected the Union-the
Respondent unilaterally instituted changes in plant rules. In negotiations which
followed the Union's certification the Respondent failed and refused to bargain in
good faith with the Union. A strike, economic in origin, began on July 17, 1954.
During the strike the Respondent replaced some of the striking employees. This
strike ended on July 27, at which time the employees made an unconditional offer
to return to work.
1 At the hearing upon the instant complaint, held in September 1955, though requested
to by the General Counsel, I declined to accept specified findings of the Tual Examiner in
Cases Nos. 11-CA-706 and 765 as evidence in the instant case, my reason theiefoi being
that such findings had not yet been reviewed and adopted by the Board However, I ap-
prized the parties that, in the event the Board, prior to the issuance of this Intermediate
Report, issued its Decision and Order in the prior case, making findings relevant to the
present issues, I would feel fiee-indeed bound-to note such findings The findings in
the four following paragraphs of this report are in accordance with that ruling
1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allegations of other unfair labor practices were found by a majority of the Board
to be unsubstantiated.
Hamilton was a color mixer in the Respondent's color shop, which is heavy work.
After the .strike Hamilton was reinstated to his job, but on the third shift, rather
than on the first, where he previously had been, presumably because the first shift
had been assigned to someone else during the strike. In September 1954, Hamilton
was involved in an automobile accident, sustaining injuries restricting him to light
work for an indefinite period. The Respondent declined to reinstate him to any
job. The General Counsel asserts that this refusal was discriminatory and moti-
vated by Hamilton's union activity and leadership; the Respondent asserts that it
was solely because of Hamilton's physical condition. The circumstances of the
refusal and the facts concerning Hamilton's physical condition are as follows.
2. Hamilton's injury to his back in February 1954
On February 3, 1954, Hamilton injured his back when he fell while lifting a color
tub in the course of his work. The injury did not disable him, however: he lost
no time from work, and apparently sought no immediate medical treatment. On
February 9, however, he went to the Respondent's dispensary, where he was evi-
dently treated or examined without referral to the Respondent's medical doctor,
James D. Lutz. He then returned to work, again without loss of time. From then
until May 1954, there is no indication in the evidence of any disability attributable
to that accident, although Hamilton continued to take diathermy treatments. Dur-
ing some of this time, from April 30 to May 10, 1954, Hamilton was in layoff status
as a result of his discriminatory suspension?
Over the weekend of May 15, 1954, however, Hamilton's discomfort from the
injury became pronounced. He then notified his foreman, McCullom, that he
could not do the heavy work. Hamilton's testimony is undenied that McCullom
directed him to see whether Dr. Lutz would give him a light-work order. McCullom
further said that in the meantime he would see whether he could find something for
Hamilton to do.
Hamilton did not report for work on May 17. Either on that day, or sometime over
that weekend, Hamilton apparently saw Dr. Lutz, for under date of May 17 Lutz
notified the Respondent in writing that:
Mr. E. S. Hamilton should be restricted to light work until his back improves,
which will probably be several days.
On the following day, May 18, Hamilton reported for work at 6:55 a. in. with
a light-work slip from Dr. Lutz, which he gave to Foreman Parker. The latter
made no comment, and Hamilton proceeded to clean instruments and equipment and
to scour the floor. Later in the morning, around 9:30, Foreman Parker telephoned
Thomas Hardee, the Respondent's personnel director, and told him that Hamilton
had a light-work order. Parker further told Hardee that he did not have any light
work, and asked what he should do. Hardee directed Parker to send Hamilton to
the personnel office. When Hamilton arrived there Hardee told him, in sum, that
the Respondent had no light work for him to do, and would have to send him '
home, Hardee testified, "until such time as the doctor said he was able to physically
resume the duties of his job." Hamilton was paid until 10 a. in. and sent home.
As has been seen, this was only 8 days after Hamilton had returned to work following
his discriminatory suspension.
On the next day, May 19, Hamilton again saw Dr. Lutz for treatment. On this
occasion Dr. Lutz asked Hamilton whether he had been given a job. When
Hamilton responded negatively, Dr. Lutz expressed wonderment, saying, "I don't
know why . . . they have been giving them . this will probably run their insur-
ance up. . . Dr. Lutz further told Hamilton that he had had a call from
Personnel Director Hardee informing him "not to issue any more light-work
orders." 3
2 The Respondent's attendance calendar for Hamilton also shows that he was warned
on June 11, 1954, and "sent out" (laid off) until June 17, 1954. Since the record does
not indicate the reason for that action, it is not concluded that it was discriminatory
3 The findings as to Dr Lutz' statements on this occasion are based upon Hamilton's
testimony. The Respondent asserts in its brief that that testimony is incredible for two
reasons : first, because it was denied by Dr. Lutz, and secondly, because light-work orders
by the doctor were issued later, one to Hamilton
As to the Respondent's first point, I do not find a denial in Dr Lutz' testimony. The
doctor, a witness for the Respondent, was asked whether he had made a statement to
CRANSTON PRINT WORKS COMPANY 1849
During the next several days Hamilton underwent diathermy treatments with
no apparent improvement so, on May 22, Dr. Lutz referred him to Dr. Henry
Severen, an orthopedist. On May 25, Hamilton was examined by Dr. Severen,
who diagnosed his condition as a sprain of the lower back. Dr. Severen was of the
opinion that the use of a belt support for a few weeks would provide relief, and
that until the support was received Hamilton should "remain on extremely limited
activities." On May 27, Dr. Lutz, who had not yet received Dr. Severen's report
on the May 25, examination, wrote to Personnel Director Hardee, advising the latter
that, though there was no suggestion of anything serious, he had referred Hamilton
to Dr. Severen for consultation as to the advisability of a support. He further
stated that he anticipated that Dr. Severen would advise the use of such a device,
and that Hamilton should be able to return to work in a few days. Within the next
several days Hamilton received the support, was cleared by Dr. Severen, and on
May 31 he returned to his job.
During the succeeding month, however, Hamilton's back seemingly continued to
be bothersome-though not to the extent of causing him to lose work or to be
disabled-for on July 6, during his vacation, he entered the hospital for traction and
X-rays under the supervision of Dr. Severen. He remained in the hospital until
July 14, with apparent good results, and on July 18 Dr. Severen authorized his
return to work. The testimony of Dr. Lutz is that about the same time Dr. Severen
rated Hamilton as having a 5-percent disability of a general nature, presumably with
reference to the back condition.4
At the time Dr. Severen cleared Hamilton's return to work, the Union was on
strike. This strike ended on July 27 and Hamilton returned to work in due course
thereafter, though not on the same shift. Presumably his first-shift job had been
given to someone else during the strike.
Hamilton to the effect that he "didn't know why Cranston had been giving jobs down
there to people, but probably it was because it would run their insurance rates up."
Dr. Lutz answered "No, sir." I do not construe that testimony as a denial of Hamilton's.
Nor do I think that Hamilton' s testimony is made incredible by the fact that Dr. Lutz
thereafter issued medical reports certifying that the physical condition of injured em-
ployees was such that they should be restricted to light work. Personnel Director Hardee's
testimony was that since his appointment to that office on March 27, 1954, the Respondent
has consistently followed a policy of not giving effect to light-work certificates, and that
when employees reported with such documents they have uniformly been sent home until
they were able to present unqualified certificates. Mr Hardee ascribed two reasons for
this • (1) There is no such work available in the Respondent's plant; and (2) a collective-
bargaining contract executed between the Company and the Union on December 1, 1954,
provides for posting of any vacant jobs Concededly this was a change from prior policy,
and evidently of such recent origin that even the supervisors were not aware of it It
has been seen that Foreman McCullom suggested that Hamilton get such a certificate,
indicating that he would try to find some light work for him. It has also been seen
that on May 18, Foreman Parker reported to Hardee, according to the latter's testimony,
that he had no light work for Hamilton, and asked Hardee for instructions. Both these
incidents indicate an unawareness on the part of Foremen McCullom and Parker that
there was no light work available in the plant, or of a policy of sending home employees
who presented light-work certificates. The December 1954 contract could scarcely be the
basis for an asserted policy existing in May 1954
I therefore conclude that it is not incredible that Hardee spoke to Dr Lutz about light-
work certificates, and that Lutz in turn spoke to Hamilton about it; though possibly not
in precisely the same words that Hamilton recalled over a year later, and possibly not
even in the precise words that Hardee used Obviously whatever comment Hardee made
to Lutz did not obviate the need for a medical estimate as to an employee's physical
capabilities What the Respondent would do with the estimate thereafter was for the
Respondent's policymakers, and not for the doctor, to resolve.
In sum , I see no inconsistency between Hardee's statement to Lutz and the doctor's
continuance in the practice of rating employees as to physical capabilities
4 This rating was contained in a report by Dr Severen to Dr Lutz-whether in writing
or verbally is not clear fiom Dr. Lutz' testimony Documents identified by Personnel
Director Hardee as constituting the Respondent's complete medical file on Hamilton do
not include 'a written copy of such a report However, in the absence of specific denial,
I infer that the existence of Dr. Severen's disability rating was conveyed to the Respond-
ent in some manner-perhaps verbally-either by Dr Severen or by Dr. Lutz. It was
simply too important a medical fact not to have been communicated to the Respondent
by one of the doctors Dr Lutz' testimony, and the exhibits, disclose that information
supplied the Respondent respecting medical matters was sometimes oral in nature
1850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the time of his return in July or August until Labor Day Hamilton continued
to work at his job and, so far as the record reveals to the contrary, without difficulty.
He still continued to wear his support, however. But on Labor Day 1954, Hamilton
was involved in an automobile accident which precipitated the series of events
leading to the present complaint. He has not worked for the Respondent since the
accident.
Immediately after the accident Hamilton was taken to the hospital but was
discharged after 1 hour, without treatment, presumably for the reason that none
appeared to be required.
On the following day, however, Hamilton-now on leave from his employment-
went to Dr. Lutz, who treated him for a week or 10 days. Dr. Lutz diagnosed the
condition as "a mild lumbrosacral strain . . . an aggravated condition previously
present."
In mid-September, on the recommendation of his family physician, Dr. King,
Hamilton went to Dr. Walter Watts, an orthopedic surgeon, for treatment Under
Dr Watts' care Hamilton was hospitalized for 8 to 10 days in early October. While
in the hospital he testified as a witness in the prior complaint proceeding by the
Union against the Respondent, the hearing of which was held from October 11 to
20, 1954.
After being discharged from the hospital Hamilton continued on leave of
absence. During part of that time contract negotiations, which had begun in May,
were going on between the Respondent and the Union. Hamilton participated in
those negotiations as chairman of the Union's negotiating committee. A contract
was finally executed on December 1, 1954.
In the meantime, on November 22, 1954, the Respondent notified Hamilton that
"your leave of absence for the 3-month period preceding [sic] your illness will
expire December 3, 1954." However, the letter further informed Hamilton that
upon application his leave might be extended for not to exceed an additional 3
months Upon his written application therefor, the Respondent then extended
Hamilton's leave until March 7, 1955.
In granting the extension the Respondent notified Hamilton that if he failed to
report for work on March 7, 1955, he would be immediately dropped as an
employee.
During December 1954, Hamilton also received treatment from Dr. Arthur Beck,
a chiropractor.
3. Hamilton's request for reinstatement; the arrests; the denial of reinstatement
On January 10, 1955, Hamilton presented himself at the plant and told Personnel
Director Hardee that his doctor had released him, that he was ready to go back to
work, and that he would like to go on the second shift. There is some variation-
discussed in footnote' 6-in the testimony of Hamilton and Hardee ' as to this
conversation.
In the meantime , on January 6, 1955, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the prior unfair labor practice case, finding adversely to
the Respondent. The Union prepared a printed summary of Whittemore's findings,
in which it claimed "full victory," and called upon the Respondent to comply with
the law.
On January 11, the day after his request for reinstatement, Hamilton, in the
company of Union Representatives Thomas J. Cosgrove and James N. Prestwood,
attempted to distribute copies of this literature on the Respondent's parking lot at
the time of the afternoon shift change. Ordered by the chief guard to leave, they
refused and were arrested. As they were waiting for the sheriff's deputies to arrive
to transport them, Hamilton was told that, being an employee, he could proceed,
but a few minutes later this was countermanded by Plant Manager Gregory after
discussion with Personnel Director Hardee, and Hamilton was put under arrest
again The trio was taken to the courthouse in Hendersonville, where they posted
bond and were released.5
Two days thereafter, on January 13, 1955, the Union filed unfair labor practice
charges against the Respondent, based on the distribution incident On the same
day, January 13, Hardee wrote Hamilton a letter informing him, in substance,
that a medical examination would be required in connection with Hamilton's request
for reinstatement. The text of this letter is as follows'
Early this week you advised me the Doctor had stated you were able to return
to work and accordingly I refer you to Article X, Section 4 of the, [collective
bargaining] agreement which states
6 The actions (trespass) were subsequently nonsuited with the consent of the parties.
CRANSTON PRINT WORKS COMPANY 1851
An employee who has been out because of a serious illness, accident or
operation may be required, at the discretion of the Company, to success-
fully pass a physical examination by a reputable physician at Company
expense, prior to his being reinstated.
We suggest that you contact the Personnel Office as soon as possible so that
an appointment may be made with the Doctor for this physical examination.
Upon receipt of this letter Hamilton -went to the personnel office which then
arranged for Dr. Lutz to examine him.6 -
So far as material to their differences, the respective versions of Hamilton and Hardee
as to the January 10 conversation are as follows. Hamilton's testimony is that
I told him [Hardee] that I was ready to go back to work ; that my doctor had re-
leased nee ; and since then, I had found out that men under me was on the second
shift and I would like to be put on the second shift
And [Hardee] said, "\Vell, it will take about a week for me to place you " He
said, "I will switch things around, and I will notify you what shift, and when to come
back to work " I believe lie asked me if the doctor had said I was all right,
I told him yes I could come back to work
Personnel Director Hardee's version is
I told Mr Hamilton that he would have to take another physical examination, and
that if the doctor said he was okay to come to work, to notify us a week in advance
so that arrangements could be made to reinstate him, that I would have to shuttle
the employees in the department in order to put him back on his job And that was
the conveisation
Asked on cross-examination whether Di. Watts had at that time cleared him to return
to work, Hamilton ieplied that Dr. Watts had not Hamilton denied that Hardee made
any reference in the January 10 conversation to a doctor's "certificate" or "peimit,"
though admitting that he knew that a physical examination could be iequired The
Respondent adveits to those facts its apparently casting doubt upon Hamilton's testi-
mony Thus, the Respondent points to the fact that Hamilton had not secured a release
from Dr Watts, while telling Hardee that his doctor had released him Further, the
Respondent's brief argues that the letter of January 13, set out above, "confirms" the
January 10 conversation; and, moreover, that Hamilton did not piotest the requirement
for an examinatian Though I find hereafter that Hamilton's recollection was faulty as
to the meeting in the Skyland Hotel about February 9 (recounted hereinafter), the cir-
cumstances here appear to me to confirm, rather than contradict, Hamilton's version of
his January 10 conversation with Hat (lee
Thus, as to Hamilton's statement to Hardee concerning clearance by his physician, it
will be recalled that Hamilton was treated by a number of doctois after the Labor Day
accident Drs Lutz, Watts, Beck, King, and Haillard' In view of his medical history,
it does not seem reasonable to conclude that Hamilton sought to return to work without
first getting the approval of one o1 his doctors-not necessarily Di Watt, At the bear-
ing the General Counsel sought to prove what Dr. Beck had told Hamilton concerning his
return to work Upon objection by the Respondent that evidence was excluded In
view of this ruling supporting the Respondent's position as to the exclusion of this testi-
mony, I could not now find that Hamilton returned to work without approval of his
doctor
As to whether Peisonnel Director Hardee stated on January 10 that an examination
would be iequired, it will be noted that the January 13 letter does not confirns any such
statement There is no indication in that letter that the requirement for examination is
being asserted other than for the first time Indeed, if a conclusion should be drawn
merely from the wording of the letter, it seems less difficult to conclude that the subject
was not mentioned, than to inter that it was Furthermore, if the letter were in the nature
of a conflimation, it seems likely that it would have been Written before January 13.
Other considerations seem to support these conclusions Thus, as soon as Hamilton
received the January 13 letter, he came to the personnel office to arrange an appointment
for the examination It seems probable that if he had been told on January 10 about the
necessity for examination the airinngements would have been made at that time. Hamil-
ton's prompt response to the lettei and the Respondent's equally prompt at rangement for
examination strongly suggests that the prior mutual inaction in respect to the examina-
tion is to be ascribed to lack of knowledge on Hamilton's part, and lack of insistence on
the Respondent's part, that one would be requn ed
Finally, Hardee's version seems inconclusive, fiagmentaiy, and incomplete, whereas
Hamilton's version indicates that the conversation was definitive, conclusive, and complete.
As to Hamilton's failuie to protest the requirement for an examination, it is not evi-
dent upon what grounds lie could have protested it, in view of the contract provi-
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton was then examined by Dr. Lutz, who found no present evidence of
the back injury. Dr. Lutz' testimony is that he found "essentially a normal healthy
individual, except for an enlarged inguinal ring." The inguinal ring has no relation
to a back injury, and is apparently not considered a disability. However, the doctor's
written report to the Respondent, dated January 17, 1955, recommended that, in
view of Hamilton's medical history, Hamilton should be confined to light work.
Thus, under "Recommendations" and "Work Limitations," Dr. Lutz' report states
the following:
Employee has history of ruptured disc. Diagnosed by Dr. Watts. In view
of history of back pain this man should not be hired except for light work
although physical exam now is negative re the back. No lifting.
Dr. Lutz' testimony is that, following the written report, in conversations with
Hardee he "elaborated" on his findings. What he said in these elaborations is not
disclosed.
Several days later Hamilton telephoned Personnel Director Hardee with respect to
his reinstatement. Hardee told Hamilton that Dr. Lutz had recommended restric-
tion to light work. Hardee further told Hamilton that the Respondent had no light
work for him to do, and that Hardee would notify him "if any, shows up."
On January 31, 1955, there was a meeting at the Skyland Hotel in Hendersonville,
North Carolina, between the Union's shop or grievance committee and represent-
atives of the Respondent. Hamilton was also present. At this meeting the Union
brought up the question of Hamilton's reinstatement. Hamilton stated that he had
a certificate from Dr. Beck. This the Respondent declined to accept because Dr.
Beck was a chiropractor and not a medical doctor, "not licensed to practice medicine
in the State"; a position to which the union representatives acquiesced. The Union
suggested light work. The Respondent said that it had no light work available.
Local Union President Adger Sexton's suggestion that Hamilton be given a patch
developer's job, light work on which no pushing is required, was declined by the
Respondent. The union representatives then suggested that because Dr. Lutz was
a company doctor and familiar with Hamilton's medical background, these factors
might have influenced him to an unduly conservative opinion as to Hamilton's con-
dition and capabilities. They further asserted that under the contract Hamilton had
the right to select his own doctor. This contention apparently carried, for the
Respondent's representatives finally said that Hamilton could consult any reputable
physician he chose, provided that the doctor was furnished a record of Hamilton's
medical history. Plant Manager Gregory's testimony is that he said that if the
doctor "certified [Hamilton] perfectly fit to do his job, he would be put back
to work immediately."
Following this meeting Hamilton went back to his family doctor for a certificate,
and was referred to Dr. Watts. The latter examined Hamilton on February 4, and
under date of February 7, 1955, he made a written report to the Respondent in
which he stated, inter alia, that Hamilton's herniated disc resulting from his March
1954 plant injury has been exacerbated by the automobile accident. He further
said that Hamilton's condition had now improved to the *point where he could return
to light work but that he should avoid strenuous activity and heavy lifting for an
indefinite period. Dr. Watts further stated in the letter that he felt that Hamilton had
a 25-percent permanent disability of a general nature.7
sion and his testimony that he knew that the Respondent could require the examination.
In sum, the circumstances appear to me to corroborate, rather than controvert, Hamil-
ton's testimony as to the January 10 conversation This accords with my evaluation
based upon observation of Hamilton and his demeanor I therefore credit Hamilton's
testimony as to this conversation
7 The full text of Dr. Watts' letter is as follows
Mr E S Hamilton, 113 Gibbs Street, Hendersonville, N C has been under treat-
ment by me off and on since 9-16-54 It is felt that Mr Hamilton sustained a
herniated I V. disc, L5, S1, in March 1954, while working at the Cranston Print
Works It is further felt that he sustained an exacerbation of that injury in an auto-
mobile accident 9-7-54
He has been treated as an out-patient and also was hospitalized at Memorial Mis-
sion Hospital for several days for traction and other local treatments. He has been
wearing a Jumbo-sacral support As a result of the treatments, Mr Hamilton has
improved both subjectively and objectively, to the point that it is felt that he might
return to light work He should avoid strenuous activity and heavy lifting for an
indefinite'period. Because of this, it is felt that Mr Hamilton has a 25% permanent
disability of a general nature.
CRANSTON PRINT WORKS COMPANY 1853
About February 10, at the request of the Union, another meeting was held in the
Skyland Hotel between representatives of the Union and of the Respondent, for
the purpose of discussing the disposition of Hamilton's case. At this meeting the
Respondent stated that it had received a letter from Dr. Watts to the effect that
Hamilton had a disability of 25 percent and should be restricted to light work. In
view of that, the Respondent's representatives said, the Respondent had no work
to which it could assign him, citing as reason therefor a practice not to honor light-
work orders and fear of reinjury in the event Hamilton was reemployed. Union
Representative Lisk then asked if the Respondent would arbitrate the matter; the
Respondent declined to do so. Lisk then asked for an extension of Hamilton's leave
of absence; this also the Respondent declined. Lisk then asked whether the Re-
spondent would abide by the result of a Workmen's Compensation proceeding,
that is, agree to reinstate Hamilton if his condition was found to be a result of a
plant injury. Again the Respondent declined.8'
Under date of February 14, 1955, Dr. Lutz wrote a letter to Personnel Director
Hardee concerning the relationship between Hamilton's March 1954 industrial injury
and his present condition. In it Dr. Lutz stated, inter alia, that Hamilton should
not be permitted to do work requiring arduous or moderate exertion. The text
of this letter is as follows:
Following our conversation on February 8, 1955, I called Dr. Walter Watts
and discussed Mr. Evans Hamilton and his case at some length. Dr. Watts is
aware of the previous history and of Mr. Hamilton's seeing Dr. Severn and of
Dr. Severn's opinion at the time of his examination.
Dr. Watts' opinion is, and it is a correct one, that if one assumes the patient
is telling the truth, then the diagnosis of his having a ruptured intervertebral disk
in March of 1954 is a good one if it is established that he has one now. In
other words, I believe that Dr. Watts' diagnosis would be upheld before a
commission hearing if such ever came to pass.
I do not believe that any further action is necessary along these lines, unless,
of course, Mr Hamilton initiates it. Under no conditions, however, should
he be allowed to do any work that could be considered in any way arduous
or even of a moderate type of exertion.
Eleven days later, on February 25, 1955, the Union filed an amended unfair
labor practice charge alleging, inter aka, that the Respondent had discriminated
against Hamilton in violation of the Act.
On March 7, 1955, Hamilton's leave of absence having expired, he was sep-
arated by the Respondent. Under that date Personnel Director Hardee wrote him
a letter notifying him of the Respondent's action. The text of that letter is as
follows:
This is to advise you that your leave of absence with Cranston Print Works
expired on March 7, 1955 and we are therefore dropping you from our records
accordingly.
Under date of March 28, 1955, Hamilton wrote Hardee notifying him that Hamil-
ton was still available for employment: "This is to inform you that 1 am still available
for work at Cranston."
The Respondent apparently did not reply
Conclusions as to Hamilton's Discharge
As has been seen, the Respondent opposed the Union during the 1954 campaign.
Prior to the election of that year it sought by unfair labor practices to procure the
Union's defeat. Following the election the Respondent continued its unfair prac-
tices. Thus, it discriminatorily suspended Hamilton in April, and deprived him of
employment; and it refused to bargain in good faith with the Union. These facts
having been found by the Board, they are relevant, controlling, and binding here.
They constitute the background against which the instant issue is to be decided.
'Hamilton could not iccall specific reference to the Watts letter, though admitting
that his disability was discussed I find his recollection faulty in that respect. The Re-
spondent additionally asserts, and Hamilton denied, that Hamilton also told Union Rep-
resentative Lisk at this meeting that if Dr Watts declared that he (Hamilton) had a
25-percent disability, then "they don't have any woik at Cranston that I can do" It
seems to me unlikely that at the same time Lisk was seeking his reinstatement, Hamilton
should be asserting publicly that the Respondent had no,iob for him On this point I
conclude that the Respondent's witnesses must have misconstrued something Hamilton
said.
1854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been seen, Hamilton was a prominent union leader. Twice he had acted
as an observer in representation elections. Twice the Union was defeated. On the
third occasion , in April 1954 , the Union finally won an election. Hamilton was
then discriminatorily laid off. He returned to work on May 10, worked 1 week, and
then saw Dr. Lutz on May 17. He was given a light -work order which the Re-
spondent declined to honor-though the policy had previously been to the contrary-
and again sent home.
Hamilton was then out of work for 8 days, returning on May 31 with medical
clearance . He worked for 9 days, and on June 11 was warned and given a dis-
ciplinary layoff through June 16. He worked uninterruptedly until July 6, when
he entered the hospital . Sometime after the termination of the strike on July 27,
he returned to work. He worked thereafter until Labor Day, at which time he
was involved in the automobile accident . He has not been employed by the Re-
spondent since. At the time of hearing he held other employment.
In addition to his leadership in the campaign effort of the Union , and his participa-
tion in the elections-detailed previously-Hamilton was chairman of the union
negotiating and grievance committee . In that capacity he actively participated in
negotiation and grievance meetings with the Respondent 's officials in 1954. In
October 1954 , while in the hospital, he testified as a witness for the General Counsel
in support of the complaint against the Respondent in the prior unfair labor practice
proceeding.
On January 10, 1955 , Hamilton presented himself at the plant and asked for rein-
statement . Personnel Director Hardee told him that it would require a week to make
the necessary department reshuffling . As I have previously indicated , I do not
believe that anything was said at that time respecting a medical examination. On the
following day , January 11 , when Hamilton and Union Representatives Prestwood
and Cosgrove sought to distribute union literature summarizing the Intermediate
Report of the Trial Examiner in the prior proceeding , they were prevented from
doing so and arrested Though the Respondent states that the rule does not apply
to employees, and though it is clear that Hamilton's employee status had not yet
been terminated , the reason now given for application of the rule to him is that he
was on leave of absence . In the words of Plant Manager Gregory , Hamilton was
not "what you might call a direct employee in there working ." And as counsel ex-
plained it , Hamilton "had no business there at all . for all practical purposes
was an outsider." The significance of the treatment of Hamilton on this occasion
lies not merely in whether in legal contemplation the Respondent was right or wrong
in its assessment of Hamilton 's legal status, as in the fact that on January 11 it appar-
ently no longer considered him as a full-fledged employee , entitled to all the rights
and privileges of other employees , despite the fact that it had recognized in writing,
by granting him leave of absence, his right to that status until March 7.
Two days after his attempted distribution of literature the Respondent wrote
Hamilton to inform him that he must undergo a physical examination Under the
circumstances , and in the light of the antecedent events, the conclusion is warranted,
and I find , that the incident of January 11 was a factor in the January 13 decision
Viewed against the background of the Respondent's unfair labor practices, some
of them consisting of discrimination directed specifically against Hamilton, and as
yet unremedied , the General Counsel has presented a case with strong possibilities
that any subsequent refusal by the Respondent to employ Hamilton was discrim-
inatorily motivated.
But strong possibilities are not the equivalent of proof of unfair labor practices
However tainted the background or suspect the motive, it must still be rationally
established , either by direct evidence or by reasonable inference , that the Respond-
ent's refusal to reemploy Hamilton was based upon his union membership or
activities
Discrimination in the statutory sense-as I understand the term-consists in sub-
stance of treating or regarding an employee differently in his employment relationship
from the way other employees are, or presumably would be , treated or regarded
under similar circumstances.
- Insofar as the problem can be capsuled , the issue here is simply one of determining
whether Hamilton 's physical condition was utilized by the Respondent as a pretext
for his separation . In the context of prior unfair labor practice treatment of him
by the Respondent , a showing that he was treated differently from employees in
comparable circumstances , resulting in loss of his job, would provide a situation
requiring persuasive explanation to avoid the conclusion that Hamilton 's physical
condition was in fact a pretext.
It is clear that , so far as the Respondent was informed by the doctors, it had
reasonable ground for declining to reinstate him. The difficulty , however , is that
CRANSTON PRINT WORKS COMPANY 1855
the Respondent 's denial of discrimination in this particular instance must be evaluated
in a context of fact indicating quite singular treatment of Hamilton in comparison
with other employees , and also against an established record of discrimination-
likewise originally denied-involving this very individual . That is to say, the Re-
spondent previously discriminated against Hamilton because of his union activities
and denied it. Its present denials are therefore understandably not as weighty as
they might otherwise have been.
We begin with a number of hypotheses , the most important of which is that, up
to March of 1954-coincident with the union activity-the Respondent honored light-
work orders to the extent that it sought to give employees lighter work where med-
ically recommended . But after that time it assertedly ceased to do so. That it so
ceased as to Hamilton there is no doubt. That it did so as to others is not so clear.
The reasons ascribed by the Respondent for such a change of policy are two in
number: first , there is no light work in the Respondent 's plant; and second, the col-
lective-bargaining contract prevents giving such preference , because it has a require-
ment for posting of all vacant jobs. Neither of these explanations is supportable.
Thus, the collective -bargaining agreement was not executed until December 1, 1954.
It was therefore obviously not responsible for a change of policy in the spring of
1954. Moreover , no reason appears why Hamilton could not be considered an appli-
cant for any such vacancies in view of his reiterated desire for employment . As to the
argument that there is no light work: this is, first , something of a non sequitur.
However they be described , there were previously jobs or work which the Respondent
sought to provide for holders of light-work certificates . This work the Respondent
assertedly ceased to provide. To say that there was no light work is therefore either
in the nature of a dialectic , or an assertion that the jobs have ceased to exist. But
there is neither claim nor indication that the Respondent 's operations have changed.
I cannot therefore credit the reasons advanced by the Respondent for the policy
which it instituted against Hamilton of declining to attempt to provide light employ-
ment where medically recommended.
Moreover , despite the Respondent 's assertion that this contended policy has been
uniformly followed since the early spring of 1954, the evidence , in my judgment,
establishes the opposite.
Thus, on April 18, 1955, 5 weeks after Hamilton was dropped from the rolls
supposedly because of a limited work order, Kenneth Garrett was hired although he
had a similar order. Garrett had been previously employed by the Respondent. He
had a bad knee, and in 1953 his job had been changed from roll boy to case nailer
and handler-lighter work-in order to provide him with easier employment. After
the strike in July 1954 , a preferential hiring list , expiring March 1 , 1955, was set up
for employees who had been replaced during the strike . All strikers rehired after
March 1, 1955, of whom Garrett was one, were new employees . Garrett was
rehired in his former job-that of case nailer and handler-after being given a phys-
ical examination by -Dr. Lutz . Garrett's uncontradicted and credited testimony is
that at the conclusion of that examination Dr. Lutz gave him a slip to take back
to the plant , in which it was stated that Garrett should "stay out of color [ and] do no
climbing , no squatting or heavy lifting ." Despite this certificate, Garrett was put
to work without any apparent question .9
Russell Goode , a lift truck operator who had a heart attack in July 1954 , during
the strike , was returned to his job on April 25, 1955. In connection with Goode's
return, employee Berlin Buckner, who had replaced Goode, was bumped to provide
a place for Goode. Buckner's undenied and credited testimony is that on that
occasion Personnel Director Hardee gave as a reason for bumping Buckner that
° Garrett 's testimony was not denied , and Dr Lutz ' medical report of April 1955 on him
was not produced The Respondent argues in its brief that Gairett' s testimony should be
considered incompetent I find no merit in this argument The bargaining contract re-
quires new employees to pass a medical examination If the medical report on Gariett dif-
fered from Garrett's description-or if there were no such report-Gariett's testimony
could have been easily refuted The General Counsel ' s request of the Respondent to pro-
duce Garrett ' s medical file was not complied with-indeed it was resisted-by the Re-
spondent. That the Respondent might not have been required by the Trial Examiner
to produce the file has no bearing on the evidential significance of the Respondent 's failure
to produce it voluntarily.
The Respondent further argues in its brief that the job of case nailer and handler is "a
heavy job " If that is the case it establishes that the Respondent employs people in dis-
iegaid of medical opinion as to their physical capabilities The Respondent ' s testimony-
indeed the crux of its defense as to Hamilton-is to the contraiy
1856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goode must have light work . Buckner's testimony in that connection is as
follows:
Mr. Hardee called me to his office a little while before Goode came back. He
told me that Goode .. .
... had been out sick and he had had a heart attack and the doctor had
permitted him to go back to work provided they gave him a light job, and
they would have to pull me off of the truck and put him on the truck.
Goode's case is further discussed at a later point.10
The evidence also indicates that job requirements have been modified to meet
decreased physical capabilities of employees. Thus, open frame operators are
sometimes required to work on white frames in tasks requiring the climbing of
ladders. Work on the white frames is also a source of overtime for open frame
operators. Employee William Justice is an open frame operator who walks with a
limp. When Union Steward James Stepp asked Foreman Hayden, a supervisor, to as-
sign Justice overtime work on the white frames, Hayden declined, saying that Justice
was not capable of handling the job because he could not climb ladders and get up
on the bins."
Employee Ray McCrain sustained an arm injury in December 1952, which kept
him out of work for several months. In the spring of 1953, McCrain was sent back
to work by the doctor, still unable to use his right arm, with a request from the
doctor that he be given light work. McCraw was given a job as a napper, working
with only one hand. After some 2 months on that job McCrain injured his hip
in lifting a roll.ra McCrain was hospitalized for about a week from this injury and
out of work for some time, returning to the plant about February 1954. Upon his
return, the adjuster for the Respondent's insurance carrier informed Plant Super-
intendent Cooney that McCrain would "have to have some kind of light work."
McCrain was then given a job as patch developer.
At the time of the hip injury, McCrain had no use at all of his right arm. At the
time of hearing, almost 3 years after the original injury, the arm had improved to
the point where he could use it "some," "considerably," but it was still "not back to
where it was before "
Employee Willard Ruth has a 15-percent disability resulting from a broken back,
and was given light work thereafter. Ruth incurred this injury about March 1952,
in a fall from a platform in the plant. At that time Ruth was recuperating from an
appendicitis operation as a consequence of which he had been given a light job-
sweeping. The doctor rated his disability from the back injury at 15 percent.
Ruth returned to work about October, wearing a brace and unable to bend, and
with instructions from the doctor (Dr. Atkins)-which Ruth relayed to his super-
visor, Ray Smith-that he should have easier work until he got his strength back.
Ruth was given a job as spare hand. His testimony is that his back is now "some
better than it was," but that he is not able to do everything that he could prior to the
injury.13
is At page 349, lines 16-17, the transcript erroneously shows a motion to strike Buckner's
testimony as having been granted, when it was in fact denied The transcript is hereby
corrected
ii The findings as to this are based on Stepp's undenied and credited testimony.
13 McCrain's description of this incident is that he "felt something tear in my right hip,"
in lifting a roll
11 In its brief the Respondent contends that there is no showing that Dr Atkins was an
agent of the Respondent, or that Ruth's disability rating was communicated to the Re-
spondent I find this contention not supported After his fall, Ruth was taken initially
to the Hendersonville Hospital under the care of Dr Lutz, the Respondent's doctor He
was then transferred to the Mission Hospital in Asheville, under the care of Dr Atkins
Ruth's testimony is that lie had nothing to do with the transfer and did not know who
arranged it I infer that it was arranged by Di Lutz, or by someone else acting for the
Respondent The Respondent introduced no evidence or testimony in denial of Dr Atkin's
agency, or denying its awareness of his disability rating I infer that that rating was
communicated to the Respondent, a fact also not evidentially denied by the Respondent.
It is also to be noted that in Ruth's case, as in that of Garrett, the General Counsel
requested the Respondent to produce Ruth's medical file, without success I conclude
that if the Respondent's records had contained-or its officials were aware of-evidence
favorable to the Respondent, or unfavorable to the General Counsel, the records or evi-
CRANSTON PRINT WORKS COMPANY 1857
The case of employee Russell Goode has been adverted to before. Goode went
on strike in July 1954. While on the picket line he suffered a heart attack. When
he was unable to report for work after the strike, Goode was placed on a preferential
hiring list, expiring March 1, 1955, for employees whose jobs had been filled during
the strike. Employees on this list were recalled to work in the order of seniority as,
vacancies occurred. In December 1954 Goode was offered a job by the Respondent,
but he refused it. In January 1955 another job was offered him, which he accepted.
This job required heavy lifting, "strenuous activity." On January 15 he was exam-
ined by Dr. Lutz, who reported that Goode should be permitted to do only light to
moderate work, in view of his medical history of thrombosis. The Respondent
refused to place Goode on that job. Personnel Director Hardee testified that "We
didn't feel that we could take the responsibility of putting him on the job where he
might suffer another heart attack and maybe kill or injure him for life." It will
be noted that this event took place at the same time that Hamilton was seeking
reinstatement and being examined by Dr. Lutz.
Goode's case was discussed at the same January 31 meeting at which Hamilton
sought the return of his job. Plant Manager Gregory there said that if Goode's
doctor "would furnish him with a slip saying he was able to go back to work, that
he would be reinstated." Goode apparently did nothing further, and on March 1,
1955, the expiration date of the preferential list, the Respondent dropped Goode as
an employee. The Union submitted a grievance in that regard on March 22, which
the Respondent rejected, pointing out that Goode was no longer an employee.
Subsequently, however, Plant Manager Gregory informed the Union that the
Respondent would consider Goode as having been on sick leave, and if he would
present "a certificate from his doctor saying that he was able to go back to work,"
he would be reinstated. On April 14, 1955, Goode procured a letter from another
doctor to the following effect:
April 14, 1955.
Mr. TOM HARDEE,
Personal [Sic] Manager,
Cranston Print Works,
Fletcher, N. C.
DEAR SIR: I hereby certify that this man, Russell Goode, is able to return
to work. His Posterior Myocardial Infraction [Sic] is under medical control.
Sincerely,
CHARLES T. LENTON, Jr.
(Signed) C. T. Lenton, Jr., M. D.
CTL: mw
Eleven days later, on April 25, Goode was restored to work. In the meantime
employee Berlin Buckner had taken Goode's former job by bid when a vacancy had
been posted. As has been seen, when Goode returned, Buckner was bumped to
make room for Goode, Hardee telling Buckner, in sum, that Goode's medical con-
dition required a light job.
Though the Respondent disputes their similarity, I see little distinction between
the cases of Goode and Hamilton. If one begins with the assumption-as the Re-
spondent asserts or implies that it did-that the Respondent sought only to avoid
the possibility of injury to Hamilton, and that it could do this only by denying him
employment, the question remains substantially unanswered as to why it did not per-
sist in that view toward Goode. It will be recalled that the Respondent's demand
of Hamilton was that he be certified as "perfectly fit to do his job"; of Goode that
he secure a certificate stating that he was "able to go back to work." With Hamilton
the Respondent also said that the examining physician must be given the medical
history; with Goode the evidence indicates no such requirement. What history, if
any, Goode supplied Dr. Lenton is not disclosed. His examination report by Dr.
Lutz discloses no objective physical or symptomatic characteristics of malady or
disability. If Dr. Lenton's opinion was based upon what was uncovered by his
dence would have been produced voluntarily , regardless of whether the Respondent was
required , of even requested , to do so
It will be further observed that in at least two instances-those of Russell Goode and
]Evans Ham ilton-whir e the Respondent apparently intei preted the medical files as slip-
porting its defense, it produced either all or excerpts from them in the presentation of its
own case Pinor to that the Respondent had declined to produce these files upon request
of the General Counsel , and then successfully resisted the General Counsel 's attempt
to secure them by subpena
42378 -1-57-v01 117-118
1858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examination and by observation, he would presumably have found Goode to be in
apparent good health, with no evident abnormalities, despite the fact that Goode
had a history of chronic coronary sclerosis and at least one, or more, coronary
thrombosis of which the Respondent knew.
And when Dr. Lenton's letter is further examined it discloses other significant
facts. Thus, there is no indication, even assuming that the doctor was aware of
the medical history, that he had any knowledge as to what type of job Goode could
safely perform. His certification is merely that Goode was "able to return to work":
a literal compliance with the Respondent's requirement. But Drs. Lutz' and Watts'
report on Hamilton and Lutz' prior report on Goode said the same thing, either
expressly or substantially. No doctor said that either man was unable to work.
All said that they were. Nowhere in Dr. Lenton's letter is there any evaluation of
Goode's physical competence to perform any particular kind of work or job-
the matter on which the Respondent was supposedly concerned. I do not interpret
Dr. Lenton's certificate as being any more assurance to the Respondent that Goode
could be safely employed than was Dr. Lutz' report: I do not understand how the
Respondent could have done so; and I do not believe that it did. Nevertheless the
Respondent proceeded to treat the letter as if it were such an assurance. In my
opinion, if the Respondent could so readily ignore Dr. Lutz' evalution of Goode's
physical capabilities without persuasive evidence to the contrary, it could as readily
have done so in the case of Hamilton, if it were really actuated by the same and
legitimate motivation in both cases. That Hamilton's disability was permanent
is scarcely a distinguishing characteristic; Goode's was permanent too. Nor is
Hamilton's rating of disability (25 percent) helpful to the Respondent. That is
obviously merely an estimate of the degree of impairment of unimpeded movement,
a factor unquestionably and substantially present in Goode's case also, but not so
readily measurable. And, finally, if evalution be made on the basis of risk to the
Respondent and to the individual in his continued employment, the balance would
seem to be in Hamilton's favor. In his case industrial aggravation of his condition
would at most increase the impairment in movement; in Goode's case it could be
fatal. I would not ascribe to the Respondent lesser concern for Goode than for
Hamilton.
All this is not to suggest that Goode should not have been hired. All the doctors
were of the opinion that he could safely be. But so were Lutz and Watts of similar
opinion with respect to Hamilton.
Personnel Director Hardee's statement to employee Buckner when displacing
Buckner to make room for Goode suggests that the Respondent did not really
consider Dr. Lenton's letter as a demolishment of Dr. Lutz' evaluation. Thus
Hardee gave Buckner as a reason for his displacement, not that Goode was entitled
to the job by reason of seniority or the operation of the preferential list, but that,
in substance, Goode had to have a light job because of his physical condition.
Other circumstances indicate discrimination in the Respondent's treatment of
Hamilton as compared to its treatment of other employees. Thus, Hamilton asked
for, and was refused, an extension of his leave of absence. On the exact day after
his second leave expired, March 7, Hamilton was dropped as an employee. How-
ever, as has been seen, employees Garrett and Goode, whose employee status had
also expired, were recalled-Garrett as a new employee. The significance of these
cases is that neither any longer had any employee status, yet for the purposes of
reemployment they were treated as if they continued to be employees. Goode, in
fact, was retroactively given a leave of absence when he was no longer an employee,
on the initiative of the Respondent and without request on his part. The effect
of this was to give Goode an unsolicited leave of absence of 9 months, while re-
fusing Hamilton any extension beyond 6 months. Indeed, in the apparent con-
templation of the Respondent, Hamilton evidently ceased to be an employee even
before his leave had expired. Thus, he was arrested and refused permission to
distribute union literature in the parking lot on January 13 because, according to
Gregory, he was not considered to be an employee within the meaning of the plant
rules respecting literature distribution.
The Respondent contends that it has no light work in the plant, and that it has
not honored light-work certificates since Hardee's appointment as personnel di-
rector in March 1955. Yet since that date at least two persons, Garrett and Goode,
have, for medical reasons, been hired in or assigned to jobs characterized by repre-
sentatives of the Respondent at the time as "light"; at least one person, Justice, has
been denied overtime in his job because of an asserted physical inability to perform
all the requirements of it. Two others, McCrain and Ruth, have been given light
CRANSTON PRINT WORKS COMPANY 1859
jobs over a period of several years and continue to perform in them today, even
though still not physically completely effective. One of the latter 2, Ruth, had
a, broken back and a 15-percent disability.
In view of these demonstrable contradictions of the Respondent's asserted policies,
I cannot credit its tender of them as justification for its refusal to reinstate Hamilton
At the time of hearing, the employees named above had either filled or had
worked at the following jobs described by the Respondent as light work when
assigning the employees to them:
Patch developer, lift truck operator, napper, case nailer and handler, sweeper,
and spare hand. Descriptions given by the employees in their testimony comport
with such a characterization. The Union specifically asked at the January 31 meet-
ing that Hamilton be given a patch developer job, but the request was refused.
Admittedly the Respondent has hired new employees since refusing Hamilton. As
recently as the Thursday prior to the hearing a patch developer job was posted,
but it was not offered to Hamilton, despite Hardee's assurance to Hamilton that if
any light work was available the Respondent would call him.
It seems an unavoidable conclusion from the foregoing facts that the Respondent
declined to accord Hamilton treatment similar to that it accorded to other employees
or applicants for employment; that is to say, it discriminated against him under what
appear to be comparable, if not exact, circumstances. The only remaining question
then is why it did so. The conclusion seems warranted, indeed inescapable, that
the reason for the discrimination was Hamilton's union activities.
Hamilton was a leader in the union activity. He had been active'in the 1951,
1952, and 1954 campaigns on behalf of the Union, wore a union button, arranged
and attended organizational meetings, and acted as a union observer in at least two
of the elections. After the 1954 election he was chairman of the Union's negotiat-
ing committee and grievance committee, and attended negotiating and grievance
sessions with representatives of the Respondent. In the week after the election, as
the Board has found, he was discriminatorily laid off by the Respondent on a pre-
text in an action directed at him because of his union activity or leadership. In
October 1954, while hospitalized because of his injuries, he was a witness against
the Respondent in the prior unfair labor practice proceeding. Thereafter, while
still on leave of absence, he participated in contract negotiations as chairman of the
Union's negotiating committee. On January 10, 1955, he informed Hardee that he
had been released by his doctor to return to work Nothing was said to him at that
time indicating that the Respondent would require him to undergo a physical exam-
ination. On the following day, January 11, Hamilton and two other union repre-
sentatives attempted to distribute leaflets summarizing the Trial Examiner's.holdings,
adverse to the Respondent, in the prior unfair labor practice case. Two days later,
Hamilton was informed by Hardee that he would be required to undergo a physical
examination prior to being reinstated When the doctor recommended his con-
finement to light work, the Respondent told Hamilton that it had no such kind of
work, though the evidence is to the contrary.
The Respondent now further asserts that it now has a policy, recently established,
of not honoring light-work certificates-indeed that it has no such work. Both these
assertions, it has been seen, are contrary to the evidence. The Respondent has
honored light-work certificates since it refused to honor Hamilton's and it has assigned
employees to lighter jobs or modified work requirements because of physical con-
dition. Hardee told Hamilton in late January that he would notify Hamilton if
there were any light work available,-and although such work has been available and
given to other employees since that time, it has not been offered to Hamilton.
It seems evident that the Respondent was determined not to employ Hamilton
under any circumstances. At the February 10 meeting the Union suggested a
number of alternative procedures to dispose of the problem, including arbitration,
all of which the Respondent declined.
On the basis of the record it must be concluded that the Respondent's refusal to
reinstate Hamilton was merely a continuation of the discrimination which the
Respondent visited upon him in April 1954, and that the motivation for the dis-
crimination was his continuance in his union activity and his testifying against the
Respondent in the unfair labor practice proceeding in October 1954.
Among the considerations urged by the Respondent as refuting a conclusion of
discrimination is its statement at the January 31 meeting that Hamilton would be
reinstated if he secured a medical certificate to the effect that he was "perfectly fit
to do his job " The significance of this requirement in contrast to Goode's has
been adverted to before. I think the circumstances of that proposal reinforce the
1860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion of discrimination , rather than negative it. In the first place, the contrast
between what was required of Goode, and what was required of Hamilton, in the
way of medical certificates has been pointed out previously. In the second place,
the Respondent had nothing to lose by such a statement . There was little likelihood
that a qualified practitioner, required to consult Hamilton's medical file, would give
him a certificate contradicting that of Dr. Lutz. Moreover, the statement is itself
refutation of the assertion that it was fear of reinjury that motivated the denial of
reemployment. For if that was the Respondent' s genuine concern, it would scarcely
have been banished by a medical opinion taking issue with Dr. Lutz. The incident,
it seems to me, requires one of two conclusions , neither favorable to the Respondent:
either the whole suggestion was a sham , or else the Respondent's medical require-
ments were mere matters of protocol which were satisfied once it had a proper
certificate, regardless of how the certificate comported with the facts. But if the
latter is the case, two other conclusions must follow: (1) the Respondent's assertions
that it was concerned about injury to Hamilton, and consequent cost to itself, were
not the fact at all; and (2) Goode never presented a proper certificate, or was
required to, as was Hamilton. In any event, I think the incident indicative, and
not refutative, of discriminatory treatment of Hamilton.
The Respondent also contends that the Union did not file a formal grievance
concerning Hamilton. It will be noted, however, that the matter was brought to
the Respondent's attention at two formal meetings between representatives of the
Union and of the Respondent, was discussed and disposed of, that the Union sug-
gested arbitration and other methods of disposition of the issue, all of which the
Respondent declined. This seems to me, if not in fact formal grievance litigation,
the undistinguishable equivalent of it.
It is found that on March 7, 1955, the Respondent discharged and that on and
since January 31, 1955, it has failed and refused to reinstate, Evans S. Hamilton,
and that it did these things because of Hamilton's union activity, and because he
gave testimony against the Respondent under the Act.
It is further found that the Respondent thus discriminated in regard to Hamilton's
hire and tenure of employment and discouraged membership in the Union; and
that it thereby interfered with, restrained, and coerced employees in the exercise
of rights guaranteed in Section 7 of the Act, and committed unfair labor practices in
violation of Section 8 (a) ,(1), (3), and (4) of the Act.
B. The distribution of union literature
On Jarluary 11, 1955, Evans Hamilton and Union Representatives James N.
Prestwood and Thomas H. Cosgrove were prevented from distributing union litera-
ture on the Respondent's parking lot and arrested by local police, at the request of
the Respondent, on a charge of trespass. The charges were later nonsuited. The
General Counsel contends that the Respondent thereby violated Section 8 (a) (1) of
the Act.
The Respondent's plant and adjacent parking lot are located on a 72.23-acre tract
of land lying on the east side of U. S. Highway No. 25, a main north-south 2-lane
highway. The tract is located near Fletcher, North Carolina, a town of about 500
population, some 10 to 12 miles from Hendersonville to the south and from Ashe-
ville to the north. The record does not disclose the location of the homes of the
employees. In January 1955 the Union had a hall in Hendersonville and a list of
names of employees, but not their addresses.
The plant sits back from the highway about 800 feet. Access to it is by way of
an entrance road, or drive, 24 feet in width, leading from the highway. Between
the plant and the highway, at a distance of about 60 feet from the latter, the drive
is crossed by a double-track railroad, one track being the main line, the other a spur
leading to the Respondent's plant.
The plant itself is surrounded by a fence. Outside the fenced area, near the
terminus of the drive and adjacent to the plant, is a parking lot. Access to the plant
is through two apertures in the fence, one a gate for vehicles, and the other a walkway
for pedestrians. Next to the walkway is a gatehouse, where there is a guard, a
telephone, and benches.
On the south side of the drive and the west side of the railroad there is a railroad
crossing sign regulating incoming traffic. On the north side of the drive near the
highway is a North Carolina highway stop sign, regulating outgoing traffic.
Since the plant was opened, in 1950, the Respondent has had a rule forbidding
solicitation and the distribution of literature at the gatehouse and the parking lot.
CRANSTON PRINT WORKS COMPANY 1861
The prohibition against literature had its inception in excess littering of the premises
during the period of plant construction. The rule applies to all literature, and has
been consistently and uniformly enforced. On two occasions, one involving some
educational literature, and the other some advertising stickers, distribution was begun
near the gatehouse, and some distributed before being observed, but as soon as the
guards became aware of it the action was promptly stopped.
Literature distribution is permitted, however, in the space between the highway
and the railroad tracks. The Union knew of and, until January 11, 1955, observed
the rule. Over the years it has distributed literature at the railroad tracks, on
numerous occasions.
On the day in question, Hamilton, Prestwood, and Cosgrove were prevented by the
guard, Aycoth, from distributing literature to employees at shift change. This action
took place on the parking lot near the plant gate. When the three declined to
retreat to the railroad area they were arrested upon charges of trespass, later
nonsuited. As has been seen , as they were waiting for sheriff's deputies to transport
them to the courthouse in Hendersonville, Hamilton was told by Aycoth that, being
an employee, he could distribute. However, this permission was revoked a few
minutes later by Plant Manager Gregory after discussion with Personnel Director
Hardee, and Hamilton was again put under arrest. The reason given by the Re-
spondent for the application of the rule to Hamilton was that he was on leave of
absence and "had he been working, would have been coming in on his shift at that
time."
Since the hearing in the instant case the United States Supreme Court has drawn
a distinction between the right of employees to distribute union literature on company
parking lots, and the right of nonemployees to do so. This the Court did in the
case of N. L. R. B. v. The Babcock & Wilcox Company, 351 U. S. 105.
As I interpret the law in this kind of situation, an employer may place a restriction
on literature distribution by employees in company parking lots only where necessary
to maintain production or discipline, but that he may be required to grant the right
of distribution to nonemployees only if the location of the plant and the living
quarters of the employees place the employees beyond the reach of reasonable union
efforts to communicate with them. Babcock & Wilcox, supra; N. L. R. B. v.
LeTourneau Company of Georgia, 324 U. S. 793, 54 NLRB 1253.
In the Babcock & Wilcox case the Supreme Court said, in part:
the Board failed to make a distinction between rules of law applicable to
employees and those applicable to nonemployees.
The distinction is one of substance. No restriction may be placed on the
employees' right to discuss self-organization among themselves, unless the
employer can demonstrate that a restriction is necessary to maintain production
or discipline. Republic Aviation Corp. v. Labor Board, 324 U. S. 793, 803.
But no such obligation is owed nonemployee organizers. Their access to com-
pany property is governed by a different consideration. The right of self-
organization depends in some measure on the ability of employees to learn the
advantage of self-organization from others.- Consequently, if the location of a
plant and the living quarters of the employees place the employees beyond
the reach of reasonable union efforts to communicate with them, the employer
must allow the union to approach his employees on his property. No such
condition are shown in these records.
-And where it is employees who are involved, the burden is on the employer to
establish the necessity for the interference; where nonemployees, the burden is on the
General Counsel to demonstrate inaccessibility or the ineffectiveness of available
modes of communication with employees. Peyton Packing Company, Inc., 49
NLRB 828; Ranco, Inc., 109 NLRB 998 at 1000, and Babcock & Wilcox, supra.
In the instant case the record does not demonstrate that a restriction upon em-
ployee distribution of literature was, in the particular place and under the particular
circumstances, necessary to maintain production or discipline. The asserted justi-
fication for the interference with Hamilton, namely, that the action occurred at a
time, when, had he not been on leave, he would have been coming to work, is
scarcely persuasive. Such a regulation would constitute a substantial interference
with organizing activity by a vacationing employee, or one otherwise on legitimate
leave. No operational or other rationale is suggested by the respondent in justifica-
tion of such a restriction.
1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is consequently found that the Respondent's refusal to permit Hamilton, an
employee, to distribute union literature at the gatehouse and parking lot, and his
arrest therefor, constituted an unreasonable impediment to, and an interference with,
self-organization in violation of Section 8 (a) (1) of the Act. LeTourneau Com-
pany of Georgia, 54 NLRB 1253, 324 U. S. 793.
But neither does the record demonstrate the inaccessibility of employees off the
premises, or the ineffectiveness of available methods of communicating with em-
ployees. Nor is there any substantial evidence of discriminatory application of the
rule against distribution. So far as appears, no literature distribution of any kind
has been knowledgably permitted by. the Respondent at the gatehouse or the park-
ing lot.14
It is consequently found that the Respondent did not commit unfair labor practices
by preventing nonemployees from distributing union literature at the gatehouse and
the parking lot. It will consequently be recommended that that allegation of the
complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with its
operations described in section I, above , have a close , intimate, and substantial re-
lation to trade , traffic , and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , it will
be recommended that it cease and desist therefrom , and take certain affirmative
and remedial action designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Evans S. Hamilton immediate
and full reinstatement to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges , and make him whole for any
wage losses incurred as a result of the discrimination against him , in accordance
with the Board 's usual remedial policies.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America , AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 ( a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Evans S.
Hamilton , thereby discouraging membership in a labor organization , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (3) of the Act.
4 By discriminating against Evans S Hamilton because he gave testimony under
the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
6. The Respondent did not commit unfair labor practices by preventing nonem-
ployee union agents Cosgrove and Prestwood from distributing union literature
in and about the Respondent 's parking lot.
[Recommendations omitted from publication.]
4Theie is testimony by Hamilton to the effect that when the guard , Aycoth , forbade
the distribution , Hamilton complained that the Respondent had permitted the educational
literature to be distributed Accoiding to Hamilton , Aycoth then said , in effect, that
this was different because it was union literature Aycoth denied Hamilton 's testimony.
I find it unnecessary to resolve the issue , for regardless of what Aycoth might have said,
there is no evidence of disci iminatorv enfoi cement of the rule Hamilton was one of those
who had been given the educational literature Presumably he was unaware that its dis-
tribution was later stopped