Dayton Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Jun 25, 1979

243 N.L.R.B. 1 (N.L.R.B. 1979)

D)AYTO(N IRt & RI tBBFR CO
Davyton Tire & Rubber Co. and United Rubber, ('ork.
iinoleum & Plastic Workers of America, AFI[-
CIO-CLC. Case i6 CA 7164
June 25. 1979
D[)ECISION AND ORDER
BY CHAIRMAN FANtN(; ANt) MI!MlBiWRS JNKINS
AND) NIIRPIIY
On February 14. 1979. Administrative Law Judgce
John M. Dyer issued the attached Decision in this
proceeding. Thereafter. the Charging Party filed ex-
ceptions and a supporting briefi and Respondent tiled
an answering brief.
Pursuant to the provisions of Section 3(bh) of' the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briclk
and has decided to affirm the rulings. findings. and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be. and it hereby is, dismissed
in its entirety.
DECISION
SIAIMENI ()F tlil ( CASI
JoHlN M. DYI)R. Administrative Law Judge: On April 21.
1977. United Rubber. Cork. inoleum & Plastic Workers of'
America. AFI.CIO CLC. herein called the Union. filed a
charge against Dayton Tire & Rubber ('o.. herein called the
Company or Respondent. alleging that Respondent had ter-
minated Geary Myers because of his union actliities in vio-
lation of Section 8(a)(1) and (3) of the Act. The Regional
Director. on November 3. 1977. issued a complaint alleging
the discharge of Myers as violative of Section 8(a)( I) and
(3) of the Act. Respondent's timely answer admits the alle-
gations of the complaint. including the termination of
Myers. hut denies thai it violated the Act bhy an of' its
actions. stating that Myers was terminated for proper cause.
All parties were aflbrded full opportunity to appear. to
examine and cross-examine witnesses, and to) argue orallk
at the hearing held in Oklahoma ('its. Oklahoma on March
17 and 18. 1978. Respondent and the General Counsel sub-
mitted briefs which have been considered. he question
here is whether Myers' known union activilt played a part
in Respondent's decision to terminnte him. here is insufli-
cient eidence to demonstrate that any unlion activities or
procliities ol' Myers entered into the decision it) terminate
him and. consequently. I will dismiss the complaint.
On the entire record in this case. including the exhibits
and testimoni. and on nmy evaluation of' the reliahility oft
the witnesses based on the evidence and testilmons. I make
the following:
FINI)IN(s ()I At I
I. ( O)MINR1i I I NIIN(iS ANI) I sI()N SIA IS
Respondent is a corporation with its principal headquar-
ters in Ohio and maintains and operates a plant in Okla-
homa ('Is. Oklahoma. where it manufactures and distrib-
utes tires. During Ille past ear it recei ed goods and
materials valued in excess of $50.000 directls fronl outside
the State of' Oklahoma at its Oklahoma ('its plant. and
shipped from that plant goods and materials alucd in ex-
cess ofi $50.000 directl to customers outside the State of'
Oklahoma.
Respondent admits. and I find. that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) o' the Act.
11. 111 Al ili) t Ni AIR I AltIR P'RA( I I
A. Background and/ I'r/mdipulcd Faluxr
Respondent's Oklahoma C(itx plant enmplos. according
to the charge. over 1.0(X) employees. Automobile and truck
tires are made ;it the plant and the ,ast mnijority of employ-
ees are hourly paid.
Tires are individuall b built bh tire builders and then in-
spected before they are cured or cooked hby green tire in-
spectors. Respondent attempted to align the green tire in-
spectors more closely with management by placing them in
a salaried category and giving them somewhat different
benefits from the hourly-paid employees in the production
and maintenance unit. Respondent felt that if they were
more closely aligned with management their judgment in
inspecting green tires might he more independent and their
decisions would be hetter ior the ('ompany's interests in the
long run. Despite Respondent's efforts to have green tire
inspectors set apart from the production and maintenance
unit, the Board decided in 1973 that they were properly a
part of he P & M unit despite the differences in method of
pai and fringe benefils.
At the relevant times 0. A. Jones was the plant manager:
Robert Bates was the personnel manager: Jerry Reber was
the salaried personnel representative in the personnel de-
partment: Philip McC(owan was the manager of saf'ty and
plant protection: and Dr. R. R. Dugan. who was in the
Department of Occupational and Industrial Medicine of
McBride Clinic, was Respondent's physician.
In his oh. a green tire inspector such as Gieary M!ers
would inspect more than I ,XX) tires during a shift. ilting
the tires. checking them. putting them in another machine.
and later onto racks. It w as while placing a green tire in a
rack on June 9. 1975. that MNlers iound himself in an awk-
a;lrd] position a lnd heard sollmelhing pop n his hback When
243 NLRB No. I
DECISIONS OF NATIONAL I.ABOR REL.ATIONS BOARD)
it happened, he was bent over and said he could not
straighten up for more than a half hour. When he did, he
went to the dispensary where heat was applied to his back
and he thereafter went home.
Myers had been working for the Company since 1970.
starting as a maintenance store clerk. He moved to the sala-
ried position of a green tire inspector several years prior to
1975. Myers was active in a union campaign which culmi-
nated in an election in June 1975 and was also active in a
second campaign which ended in a union election in No-
vember 1976. The union was unsuccessful in both cam-
paigns. Respondent stipulated that it knew Myers was ac-
tive in the union. His name was one of 44 names which
were given to the Company by the Union on June 20, 1975.
as being voluntary organizers for the Union with the state-
ment that there were other unnamed voluntary organizers
in the plant.
There was no evidence offered of any independent 8(a)( I)
violations. In regard to animus, the General Counsel cited
206 NLRB 614 (1973), in which the Board found that Re-
spondent violated Section 8(a)(1) and (3) at this plant. Re-
spondent pointed to the fact that since that time there have
been some charges filed but, with one exception, only one
complaint issued and that case was dismissed so that there
have been no findings of unfair labor practices at this plant
in the interim.
On June 10, 1975, Myers called the dispensary from his
home, saying his back was hurting and asked for an ap-
pointment with Dr. Dugan. At the McBride Clinic Myers
was X-rayed and examined by Dr. Dugan who told him
that he was wearing his back out, that he needed to slow
down. Myers stated he asked Dr. Dugan about light duty
and that Dr. Dugan replied that the Company did not like
light duty, and he was not put on it. Myers received some
muscle relaxants to be taken orally at bedtime and went
back to work on his regular shift that afternoon. He told his
supervisor, Hollis, that he was going to take it a little easy
for a week or two until he got rid of' the pain and his stiff-
ness. Hollis made no comment.
Myers said that about 4 weeks later he was called to
Safety Manager McCowan's office where he was shown a
letter diagnosis of his condition by Dr. Dugan. This docu-
ment noted his pains and stated that he had progressive
lumbosacral narrowing when his X-rays taken when he
started with Respondent were compared to the recent X-
rays. To the doctor this suggested chronic degenerative
lumbosacral disc disease in a particular area since the disc
space had narrowed.
McCowan suggested that since there was a disease prob-
lem Myers should file a regular insurance claim and not file
a claim for workmen's compensation. When Myers dis-
cussed the procedure with another person in the personnel
department. he was told he would have to say the occur-
rence of the injury was away from work. Myers went back
to McCowan, said he could not say that the injury hap-
pened away from the plant, and asked for a copy of' Dr.
Dugan's report for his personal physician, a I)r. I)enton.
but was not given one. Myers said he tried a number of
different times thereafter to get a copy' of' Dr. Dugan's diag-
nosis sent to his personal physician, but was turned down.
Myers continued to work at his job.
In May or June 1976. Myers consulted attorney Soko-
losky and a workmen's compensation claim was filed for
him with the State Industrial Commission. In the interim
Myers said he learned to work around the problem with his
back and was lifting tires properl). Sokolosky made an
apointment for Mvers with Dr. S. J. Polk who examined
Myers on June 23, 1976. and on June 29 sent a letter to
Sokolosky giving his evaluation. After detailing his examni-
nation and X-ray studies. I)r. Polk's summary and conclu-
sions were as follows:
This 35 year old male patient shows slight degenerative
joint disease of his lower spine. hips, and also shows a
subluxation at the lumbosacral joint which may be a
developmental weakness of the lower back or may be
traumatic. He also shows signs of chronic sprain to the
lower back. Based upon the history presented, this has
either been caused or aggravated by the injury of June
9, 1975. 1 do not believe that treatment at this time will
significantly reduce his degree of permanent disability.
He should by way of further treatment be on work that
would involve a minimum of heavy lifting and avoid
work requiring prolonged bending. Hie should he on
anti-inflammatory arthritis drugs and he should engage
in a loss of weight program lowering his weight to a
more ideal level which would also help. Other than
these procedures, I don't know of anything that would
be of value. In conclusion, he has in my opinion,
twenty per cent (20 ';) permanent partial disability to
the body as a whole, based upon his capacity to per-
form ordinary manual labor and arising out of injury
sustained on the job on June 9. 1975.
Myers testified Respondent informed him that he had an
appointment with Dr. Dugan on July 22. Dr. Dugan exam-
ined Myers at the plant dispensary and said he had received
a copy of Dr. Polk's report and basically it was the same as
his except that Polk had attached a disability to the injury'.
According to Myers, Dr. Dugan said that if the Company
took Dr. Polk's report rather than his, there was a good
chance that Myers would be out on the street and he hated
to see that happened to someone at Myers' age.
Following his examination by Dugan. Jerry Reber talked
to Myers about signing an insurance form which stated that
the injury happened off-plant. According to Myers, Reber
said Myers could then draw disability insurance which the
salaried employees had. When Myers refused, he was told
that he was on sick suspension without pay at that point.
Myers contacted his attorney. Sokolosky. and informed
him of the events and Sokolosky filed fr a hearing date
with the state industrial court. Reber later told Myers that
he had sick leave and vacation coming which would carry
his pay through August 23.
The state industrial court hearing was held on August 25.
Prior to the hearing, Myers had been directed by Respon-
dent's insurance carrier to [)r. Edwin Rice for a physical
examination in the Orthopedic Department of McBride
Clinic. Dr. Rice's examination and conclusions were that
there were no paricular problems with Mers and he
thought Myers could continue working. Also, prior to the
state industrial court hearing. Myers sought to return to
work by telling l)r. Dugan and I)r. Rice's conclusions and
asking D)r. l)ugan for a release to return to work. I)r. I)u-
2
)\Y I()N I RI & RI: BBR (CO()
gan rote a release ,C saying ers coutId sarl back to) ork
(on lightll dut: r 2 weeks and glradualll get ack to his
regular work. Myers gave the mnedical release to Salel D)i-
rector lMcC(owan who refused to pt Msers ba;ck to work
priol to the olrknle n's comlpensation hearllIg.
On October 7 the state industrial court issued its order
determining that Myers had sustained a 1() percent permia-
nent partiial disaility to his hody a:s a whole alnd was enti-
tled to coompensation fr 50 weeks at $50() per week for
total )f $2.500. Sometime after the parties receied the rul-
Ing. Myers received a check for $2.60() front the ('onlpanll
lie contacted Mc('owan who said that the extra $10()0 ;as
for releasing the C'ompany from an y further liabilit due to
the injury. Myers refused to accept the check and a subse-
quent check in the proper amount was issued to him.
Mers thereafter contacted the ('ompany and asked Re-
her whether he could return to work. Reber said he was not
sure and Myers was put in touch with MNc(Couall who told
him that they could mnake o decision at tht time, hutl
would want a release from l)r. Polk before lie could come
hack to work.
Myers testified that he conitacted Dr. Polk's office and
was told that l)r. Polk onlk offered opinions on in juries and
that it would be up to the attending physician whether he
should return to work or not. lie contacted Respondenl and
Personnel Manager Bates told Myers to get a explanation
of what )r. Polk meant b "prolonged bending and hefty
lilfting." it was not until December 7 1976, that Myers got
[)r. Polk to write on the bottom of his June 29. 1976. letter
the following: "'Minimum hefty lifting' avoid lifting weight
in excess of 30 pounds. 'Prolonged bending' work that
would involve bending in excess of one-fifth of the time." In
the interim Myers had been to Dr. I)enton and [)r. Rice
and had secured from each of them releases so he could go
hack to work. These were presented to McCowan who said
he would only accept a release from Dr. Polk. When My!ers
presented the copy of the letter with Dr. Polk's handwritten
definitions to Dr. Dugan, Reher, and Brooks, he asked
them to make a decision on whether he could return to
work under company policy 1.15.1.' Myers stated he told
them he felt the state industrial court's finding of a 10 per-
cent disability was not the same as Dr. Polk's finding of a
I Company policy 1.15 I states he following:
('asc Decrided by the Industrial Court.
AN EiMPI OYF WOM TF STAll' IDI SIRIAI ( RI D)l IRIiNI S O(
lAX I SSIAINUiD A JOB RE AtD PIIYSI AI I IMI IIN INJi RY R 11 NESS
THAT RSIt trD IN A PERMANENI PARIIAI I)ISABII.IIY 111I AGAIN I
FAI LAIEI) BY O
I
R NI)NISRIAI. PIIYSI [AN. HIIS FIN)IN(IS 11 I Rl- RE-
D [i) 10 W'SRiiN¢ AND W I IN( I I D I IMI IIN I-A( IORS i)ITLERMINID
BY TIE MPI OY S M-DI AlL. FOI DER AND ()OPIS DISIRIBI rFi) AS PR-[:I-
OlS Y SATFDI I NDER rl(l- PARA(iRAPHi DAI IN(i kIltt t il INII SIRI I
PHYSICIAN S RI SPONSIHI IiTY.
Industriral Relations Deparlment Responsibilitie..
(I) THIE INDUSTRIAI. REI.AIIONS MANAG(-MENI 55A11 R I:' 1111 RE-
SIRI(TION SPECIFIED BY TIlE INDUSIRIAI PIIYSI( IAN. NI) AY)NI Fl- S
DEEMII) Nt ESSARY 10 AS(EFRAlIN WHAI WORK. IF ANN'. IN TIH PANT
W Hl( 11 ( AS BE PERFORMEI) BY HE EMPI OYFIE. A SAR( I1 WH L TIIEN
REF(iN TO D-IERMIN i WHETHER OR NOT TIIE INV()I it) I-MPI OYEF (AN
PRF)RM ANY W'ORK THAT IS AVAII ABlE Al rl IE Iill PIIYSI( Al I IMI-
TATIONS ARE DEII:RMINIt).
(2) IF NO 'ORK IS TEN A :AILABIE 'HIi( I itI- MPI.(YEE (AN PER-
FORM. Ills EMPI(OYMENI 'WILI BE S SPENDED. PENI)IN(; IHF AVAII ARII-
I1Y OF A JOB Wll( II lH ( AN PRFORM. IF NO St (ll JOB BE(OMIS AVAII -
ABLE WAITIIIN SIX MONIIIS AFIER HE SU:SPNSION ()F HIS FMIt IOYMINI.
AIl REINS'IAIIMNI RHIE;lrs WILI. TiRMINATIE.
20) percent disabilit. Nlers was inlilmailig to t hem that the
restrictions placed hy l)r. 'Polk were too low and that he felt
that he was better than that. Brooks told him that the pol-
icy did not sai which doctor's opinion the Company would
considel. that such wits a lmatter of policy.
Responldent. through testimony and by a lumber of
nlemoran;da. indicated that in a number of contacts with
Mxers it had told Myers that it needed a medical upidate lt'f
his status from Dr. Polk and a definition ofl "prolonged
hbenlding and heli lillting.''" On )eceniber 14, Mc('owan
NWrote Myers, attaching a copy of a letter front [)r. [)ugan
suggestiig that Myers be reexamined by [)r. Polk to get a
current opinion of' his medical restrictions. he letter con-
tilnued:
This apparently is being recommended as you do not
feel the restrictions imposed hb Dr. Polk aire up to
date.
By copy of this letter. I a authorizing )r. Polk to
provide at Cornpany expense the exaination as re-
quested b [)r. I)ugan. Please contact )r. Polk's office
and make necessary arrangements to get this exammnina-
tion.
M sers stiated that he contacted Dr. Polk's office aid wasth
told that he would not be reexamlned unless there was a
further aggrax ation of' his injury. lie reported this to the
C('olpain and was told that answer wais not good enough.
but that if this was Dr. Polk's policy, Myers should get his
attlorney to intercede with D)r. Polk and if the doctor contin-
ued to refuse, that Sokolosky should so inform Respondent
by a letter. Myers called Sokolosky who apparently told
him a letter was being prepared. When the Company had
not received it. Myers went by Sokolosky's office and got a
typed letter which stated that it was Sokolosky's under-
standing that )r. Polk would not reexamine a claimant un-
less there was some aggravated injury. McCowan told
Myers this letter did not provide what he had asked for.
Mc('owan. 4 days later on January 28. 1977. wrote Dr.
Polk requesting a re-examiiation of Myers. The letter
sta ted:
I am requesting you to examine one of our employ-
ees. Mr. Geary Myers. noting any physical condition
which would restrict his employment. If there are re-
strictions, please be specific as to lifting over specific
weights, repeated bending. stooping. squatting, climb-
ing or any activity that could aggravate his pre-existing
back condition. Dayton Tire & Rubber Company will
be responsible for any reasonable charges involved in
this examination.
Please notify me in writing regarding when you will
conduct this examination as we cannot permit Mr.
Myers to return to work in our factory until we are
assured he can be properly placed.
On January 31. Dr. Polk replied to McCowan. setting an
appointment fior Myers on February 21. Respondent called
Myers to notify him of this appointment and confirmed it
by letter on February 1. Myers was examined by Dr. Polk
on February 21 and, on March 7 Dr. Polk wrote a report to
McCowan. The report noted that Myers continued to have
pain in his lower back which radiated to his hips but not
into his legs and that Myers said if he worked bent over for
3
I)I.( 'ISI()NS ()1 NA ItNAI A.()R RIl Al IO()NS BO()ARI)
as long as 25 to 30 minutes, lie had dilliculty straightening
up and has hack pains for I or 2 days. In the doctor's
report, Myers had said he could carefully lilt a weight of 5s)
pounds from floor level to waist level and set it down with-
out trouble. The report went into the X-ray studies and
physical examination and the fllowing summar was
given:
Sl'ttnntarl v and ( 'olc11r.siolsv.
My opinion regarding the degree of dlisabhility and rec-
ommendations on Mr. Meyers remains the same as re-
flected in my report dated June 29. 1976, that is, he
has, in my opinion, twenty per cent (2 0 %() permanent
partial disability to the body as a whole: that his work
assignment should require a minimum of' heav lifting.
that is. avoiding lifting weights in excess of thirty to
thirty-five pounds: should eliminate duties that would
require prolonged bending, that is, working in a
stooped position in excess of' ten to ifi'teen minutes per
hour and not in excess of three minutes at a time. Fur-
ther management should include weight reduction to
approximately 180 to 190 lbs. and the use of' anti-in-
flammatory arthritis drugs to delay or prevent arthritic
changes at the site of his injury.
Thank you for letting me see this patient again.
On receiving Dr. Polk's letter report. McC(owan said he
reviewed the green tire inspector's job and knew that some
of the tires weigh in excess ofl 35 pounds, that the job re-
quired prolonged working on the line lifting the tires, and
determined that Myers could not do the job based on the
restrictions. McCowan indicated to the personnel depart-
ment that Myers was disqualified from employment by rea-
son of the restrictions on his ability to work. This recom-
mendation was sent first to Reber.
Personnel Manager Bates testified that after receiving Dr.
Polk's letter and discussing it with McCowan, he discussed
it further with Reber as to whether there was any salaried
position open in the plant that Myers could perform. Reber
reported to him that there were no such positions open. On
April 13, 1977, Bates wrote Myers, stating that Dr. Polk
had continued the restrictions on Myers' ability to work
and that under those restrictions it was obvious that Myers
could not perform the work of a green tire inspector and
since they did not have any job opening which he was
physically able to perform, they were terminating his em-
ployment and he was eligible for a severance award.
Upon receiving this letter, Myers asked for a review of
his dismissal by Respondent and was given such a hearing
on May 3, 1977. In the interim, on April 21, the Union filed
the instant charge. According to a memoranda prepared by
Plant Manager Jones of the discharge review procedure,
two green tire inspectors, Keller and Bohn, were present as
advisors from that department, along with the Company's
controller and the secretary who taped the session, and they
heard from Myers, Reber, and Bates. Myers told the group
his story, and Bates and Reber amplified it from their
knowledge of the problems. Jones summarized the testi-
mony that the physical restrictions were kept on Myers and
that after Dr. Dugan reviewed Dr. Polk's report, he advised
that under those restrictions Myers should not be permitted
to work at the green tire inspector's job because the work
requirements were more demanding than would he allowed
by those restrictions. Alter the commiittee heard rom
Myers Bates and Reber. they were excused and the group
discussed the matter.
Myers testified that he understood that the Iwo green tire
inspectors constituted part of'a committee and that the vote
had been 2 to I against him. lie further testified that one of'
the two green tire inspectors had been ver, much antiunion.
Bates testified that the green tire inspectors were present
merely to assist and give their opinions, hut that there was
no voting procedure since the decision was solely thai o(f the
plant manager. The memorandum prepared by Jones states
that the green tire inspectors agreed with Jones that the job
restrictions were too severe to allow (ieary Myers to con-
tinue in that job. Myers was inflrmed of that decision.
B. Parlie.vi' Po viion., ,.> alv.s., inld ( 'ot Ch.IsitolS
The (;eneral ('ounsel claims that Respondent's histor of
being found guilty of an unfair labor practice, plus the fact
that Myers was a union adherent and protagonist whom the
('ompany knew to be active for the Union, provides suftli-
cient animus together with some claimed discrininatory ac-
tion to show that his termination was, at least in part.
caused by Respondents' antipathy toward the Union.
Respondent denies animus toward the Union, pointing to
the fact that there has been no finding of any violation
committed by it since 1973 despite the fact that there were
other charges filed in the interim. Respondent notes that
there are no allegations that it has violated Section 8(a)( )
and no allegations of other discriminatory conduct to indi-
cate that it had any animus toward employees' union activi-
ties.
As part of its claim, the General Counsel states that Re-
spondent treated Myers disparately since he was not as-
signed light duty as hourly employees were when they were
recuperating from an injury and as a green tire inspector
named Denis was.
Respondent asserts that there is no such thing as perma-
nent light duty and agrees that it has given temporary light
duty to hourly-rated employees. It states that it is not its
policy to give temporary light duty to green tire inspectors
or any other salaried employees and, though it appears that
two weeks of light duty of' an hourly-rated job was given to
green tire inspector Denis. that such was an error by the
Company. There was no showing that any employee had
permanent light duty, which Dr. Polk's restrictions would
have meant.
The General Counsel claims that there was disparate
treatment in that company policy 1.15.1 provides that
where an employee is physically disabled from a job, the
Company is to suspend the employee for 6 nonths, pending
the availability of a job he can perform, and if' none be-
comes available, the employee's reinstatement rights are
terminated. The General Counsel claims that this policy is
applicable to salaried employees as well as hourly since
when Myers told Respondent that he was seeking reinstate-
ment under that policy, nothing was said about that policy
being inapplicable to him.
Respondent claims that policy 1. 15.1 is applicable only to
hourly-rated employees and not to salaried employees. In
4
I)AYI()'ON IRI & RK BilR (.
this regard, when this claiml wa;s made al tile beginning ot
the Ihearini. .Responlldent's counsel said i hl ; Sel'ate' p11oll-
cies tor sal;iriCd Cllpl,)\CCe whiCli h wIre Cntillll;i1ed i i sCIA;-
ralle persolnnl i;ltial andll so labeled. Respolldent111 :ls ad-
ised I to mike such ;isailhle sinice Ithis appeared to be ;
crucial point.
Respondent prosided polico I 8.4 ihrouh 1.8.9. stating
hilla such cmill r11 111 ils lritd i'esioncl 1;111;11i. hilIt didl
not provide the mnlual itself or ;i coVCIr hl,A ing hal; this
was fronl suchl a n1a;iliI. 'Ihe docu iIent providedl h Re-
spondenl does iolt sat;i oil its i'ce that it is froil such a
manual. 'I'he title o the docuiment is '(' onliiutiot ('onl-
pally Service ('redil and Pension Sevice ('redil" inil dloes
not pro ide whelther it s applicable to hourl -rale;lCd eliplo-
ees or salalried emplo)ees or holh. I'r ron the titls ole the Is o
documents. it is entiely possible thIa; the two policicis orer
diflerent areas of' personnel policv alnd are not mtulllll
exclusive.
In this same regard the (ieneral ('ounsel c1;iillh that i1t 1
inconceivable that with tile large aInl(lt l0' lturnlover at
Respondent's plant that a job woilid lot he ;ilai;lhle Ior
Myers. Respondent points oui that its ala ried personneil
are not such a large nlumber of persons tt ai the vasit l;ljor-
ity of employees are hourly r;lted and tha the selioltl
system in tle hourlY-rated secoti(,n souldi precil a salaried
employee fromt humping int o such sections. Respondent
maintains that all hourly -rated personlnel ire hilred in the
lowest labor category and that if it attemptled to put lrs
in any other category, it would have legitimnat protesla-
tions from hourly-rated employees who hild scniorit in
that system. It further maintains that the physical] restric-
tions placed tin Myers would prevent himl from taking an
entrance labor grade. The General C'ounsel had ni)thing to
rebut Respondent's statements. It is clear that the ('om-
pany, in its review of the medical limitations on Myers. did
follow the policies laid out in 1.15.1. This is not to say thatl
there might be the same or similar policy established for
salaried employees i there is a different personnel manual
provided for them.
In her brief,: the General ('ounsel states: "The unrebutted
evidence is that Myers was actually physicallyi capable of
performing his job at all times material herein." Apparently
this statement is based on the fact that Myers did perform
his job for some 13 to 14 months alter his injury. tlowever.
the performance of his job does not mean that Myers did
not have any physical problems while performing the job.
The medical evidence provided both by the General ('oun-
sel and Respondent is that Myers had a progressive degen-
erative disc disease and had pain and soreness as a result of
his physical movements. Dr. Polk's March 7 1977. exami-
nation states the following: "Patient states that he contin-
ues to have pain in his lower back below the beltline radiat-
ing to both hips but not into the legs." The report states
that Myers had continued to exercise and hope to improve
his back, but had back pain if he worked bent over for 25 to
30 minutes and had difficulty straightening up. It states that
Myers said he could "carefully lift the weight of 50 pounds
going from floor level to waist level then setting the load
down without trouble." But [)r. Polk's conclusions state
that with the 20 percent disability to the body which he
found. that Myers should not lift in excess of 30 to 35
pounds anid should avoid benhing for mnore than 3 miinutes
at a time or in excess of' 1) to 15 minutes per hour. I lhe
indicatioi froim D)r. Polk's report is that the degenerative
disc dlisea;se Is still presenl.
'I lihe ieneral ('oiunsel's claim is rebhulled h, all the niedi-
cal esidence, including that of I)r. Polk who as Myers'
phlsici;ln r lie' sworknii'n's coinlpensation case.
It was aellr the ltlding bh the tale induIstlrial court thillt
there sas a pernalltellt 1I) percent disability to M\\crs that
Respondent ollred M ers a check tor $2.(t)4 ). a stlit ot
$10 over the arnltill provided hby the court. When M'1 ers
asked what this was lotr. he was informled hb, Respondelt
that the extra $1S ( was In pay nment for and ;,1s lteaitn litr a
release h Mycrs of Resplondl t t'rllM amn f tirther- ;lhilit
ilue t) l;llt njur\. Mers relused to accept the extra $1(X).
in eftlec not relea;sing Responident froIln ;il trlhcr dlilal;ge
he ight sller as ;ii ag;vatiol to that ilntury alil Re-
spundent honoretd his request hb then givlng hl tl ;a check
lor the aou tlnt of' 2,5()
he discharge iICterierv Inlenorandullttill ritt h b I Plant
Mlanager Johnson recites that I)r. l)ugain studied I)r. Polk's
March 7. 1977. report and ;idvised Resp nlden that. he-
cause of' the restrictionls on Myers bh Polk. Mers not hbe
pctlilltted t dlo the green tire inspectilng joh hecause the
work was more lmandinig than would be pClrmlitted with
those physical restrictions. Iollowing this recolllnlenldatioln.
Respondent determined thlat there was nothing else avail-
able at that time and terminated il witli seerance pa;.
This is renminliscenlt (f Dr. l)ugatn's statement to Mers in
July 1976 alter the original assessmenlt (of Myers' physical
conldition hb) r. Polk..At that time Dr. Dugan said that
Polk's report wlas about the same as his except that Polk
attached disabhilit, to the injury and that i the ('ormpany
took Plk's report rather than his. there %was a good chance
that Myers would "bhe ut ot the street" and that he hated
to see suich a thing halilppen t)ll a person of MNers' age. This
stateent hb I)r. )ugan was hascd solely on the physical
inahility to perlorni wrork alnd permanent damnlage to the
person's hbtd, not on anllthing connected with union ac-
tisvity).
It is clear tha tlie only possibility where the ('ompan\
may not have treated Myers equally with tither employees
is in not providing a 6-nionth period in which he could he
reinstated to another position which he was physically able
to perfitrm. However. Respondent claims that this was not
available to Myers because it is not a provision enjoyed hy
salaried employees. but only by hourly-rated employees. It
stated that salaried employees are given severance pay-
ments whereas hourly-rated employees are not. There is
nothing to disprove Respondent's claim, as the General
Counsel offered no evidence to indicate that at any time
this 6-month provision was ever made available to a sala-
ried employee.
A finding of a violation made almost 4 years previous the
events in this case does not present a picture of Respon-
dent's animus towards unionism or such antipathy to the
union activities of its employees as would allow me to find
that the termination here was because of M'ers' union ac-
tivities. The evidence demtonstrates that Myers under the
state industrial court's deterniination. had a permanent
physical disability and under his doctor's testimlon on
Dt('ISIONS OF' NAI IONAI I.ABOR REI.A'IIONS BOARD
which such finding was at least based in part, Myers work
activities had to be restricted. Against the background of'
those restrictions, Myers could not physically perftirm the
task of' the job without violating those restrictions and pos-
sibly subjecting his body to further damage or which Re-
spondent would be liable. Under these circumstances,
Myers was terminated.
I am unable to find that this termination in these circum-
stances was because of Myers' union activities. Undoubted-
ly Myers has suspicions, as may the Charging Party. that
Myers' union activities played a part in that termination,
but such suspicions do not amount to evidence and. accord-
ingly. I will dismiss the complaint.
On the foregoing facts and conclusions, I make the li)l-
lowing recommended:
ORI)ER2
The complaint and charge in this matter are hereby dis-
missed.
2 In the event no exceplins are filed as provided h) Sec. 102.46 of the
Rules and Regulations of the National L.ahor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, he adopted hb the Board and become its
findings, conclusions, and Order, and all objections thereto shall he deemed
alived for all purposes.
6