Firestone Tire & Rubber Co.Download PDFNational Labor Relations Board - Board DecisionsJan 11, 1977227 N.L.R.B. 873 (N.L.R.B. 1977) Copy Citation THE DAYTON TIRE & RUBBER COMPANY 873 The Dayton T"Ire & Rubber Company, a Division of the Firestone Tire & Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC. Cases 16-CA-5385 and 16-CA-5573 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 216 NLRB 1003. SUPPLEMENTAL DECISION STATEMENT OF THE CASE January 11, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On August 23, 1976, Administrative Law Judge Melvin J. Welles issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Charging Party filed a brief in response to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommendations.' Accordingly, we affirm the Board's Decision and Order of March 13, 1975,2 adopting the Administrative Law Judge's recom- mended Order, which requires Respondent to rein- state Grammont and to make him whole for any loss of earnings suffered by reason of the discrimination against him, but we shall modify the remedy con- tained therein to provide that the backpay period shall run from July 17, 1974, the date of the State of Oklahoma Industrial Court's determination, to the date Respondent offers to reinstate'Grammont. SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts the recommendations of the Administrative Law Judge and hereby orders that the Respondent, The Dayton Tire & Rubber Company, a Division of Firestone Tire & Rubber Company, Oklahoma City, Oklahoma, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Board's Decision and Order of March 13, 1975, reported at 216-NLRB 1003, as modified above. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 227 NLRB No. 128 MELVIN J. WELLES, Administrative Law Judge: On March 13, 1975, the National Labor Relations Board issued its Decision and Order (216 NLRB 1003), affirming Administrative Law Judge Jerrold H. Shapiro, fording, among other things, that Respondent discriminatorily discharged employee Paul Grammont, and ordering that Grammont be reinstated with backpay. In so concluding, the Board denied a motion filed by Respondent after the issuance of Judge Shapiro's Decision requesting that the record be reopened to receive evidence concerning Gram- mont's physical condition, on the ground that such evi- dence had no bearing on whether Grammont's discharge violated Section 8(a)(3) and (1) of the Act. The Board added: "This evidence can, of course, be presented during the compliance stage of this proceeding." On March 5, 1976, the Regional Director issued an Order and Supplemental Notice of Hearing, amended March 10, 1976, directing a hearing before an Administrative Law Judge "on the allegations" raised by Respondent to the effect that Grammont's physical condition precludes his reinstatement , which I construe as being a hearing to resolve the "compliance question" left open by the Board in its decision. Respondent having filed an answer to the Regional Director's "Amended Order and Supplemental Notice of Hearing," a hearing was convened before me at Oklahoma City, Oklahoma, on May 25,_ 1976. All parties were represented and participated fully in the hearing, and all parties have filed briefs with me. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. TIlE EVIDENCE PRESENTED In brief summary, the General Counsel presented testi- mony from the discriminatee, Paul Grammont, to the general effect that he is able to perform the tasks of a tire- builder, the job from which he was discharged and to which he was ordered reinstated by the Board. Grammont testified to various forms of manual labor (performed since a determination that he had a "27.5 percent permanent partial disability") involving, according to him, the kind of lifting, turning, stretching, bending, etc., akin to that necessary to tire building.' The General Counsel also adduced testimony from employee (and tire-builder) Bill DeVaill to the effect that he was rated at 22 percent I I do not agree with Respondent that Grammont should be discredited as "a proven perjurer." Respondent bases this contention on a single question and answer, counsel for the Union having asked "At all times since your discharge have you been capable of performing those functions?, and Grammont having answered "Yes." The complete testimony of Grammont at the hearing before me, however, demonstrates to me that Grammont must have misunderstood this question , and was testifying to his ability since the industrial court's determination . This is not , in any event, the sort of case that really turns on credibility. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permanent partial disability to the right leg, and that the Company did not require him to take a physical examina- tion to return to work despite that rating. Respondent introduced the award of the State Industrial Court of Oklahoma issued July 17, 1974, the affirmation of that award by the State Industrial Court en banc issued August 28, 1974, and the transcript of the proceeding before the industrial court taken July 15, 1974, which resulted in that award: Respondent also adduced testimony, including the showing of a videotape, and the introduction of some 74 photographs, from Production Manager Dick Clarke, to demonstrate _ visually and orally, in graphic fashion, the steps necessary to tire building. For present purposes, it suffices to summarize these exhibits and the testimony as showing the considerable amount of lifting, bending, stooping, and twisting motions that go into building a tire. Respondent also introduced into evidence a letter dated August 5, 1975, to Company Counsel Edward E. Soule, signed by Drs. Marvin K. Margo and Robert R. Dugan, reading as follows: At the request of Dayton Tire Company we have again reviewed the files relative to the disability award that Paul Albert Grammont received from the Industrial Court. This was 27.5 percent permanent disability to the body as a whole for unrestricted manual labor, dated July' 15; 1974. Dr. Marvin K. Margo and I have reviewed the entire file provided to us by the employer which included: The employees first 'notice of injury filed by the insurance carrier; a temporary order of April 8, 1974, an order of July 17, 1974 which determined the disability to be 27.5 percent, the appeal to court en banc, the order on appeal affirming •the determination of disability. We also reviewed and discussed the transcript of the proceedings before the Industrial Court on July 15. Deposition taken from Paul Grammont on Febru- ary 22, 1974. We are advised that the order determining the disability has become final. It is binding on all parties as to all future proceedings before the Industrial Court, and to further injuries or aggravation of the existing disability. After careful consideration and review of the file information it is our, opinion that a person with a 27.5 percent disability to the body as a whole by reason of injury as clearly stated by the Industrial Court is not physically able to perform unrestricted heavy manual labor in an industry such as Dayton Tire Company. Dr. J. J. Maril rated him at 30 percent to the body for ordinary manual labor. It is our opinion that a man with this degree of disability to the body as a whole would pose an unnecessary calculated risk to himself for 2 The record herein does not clearly show how Dr. Brown's opinion came before the industrial court, for he was not a witness there, but all parties seem to agree that he so rated Grammont, and it appears that a report from him further injury or aggravation of the alleged back injury. It would be our opinion that this disability would restrict the individual from repeated lifting of over 25 pounds, constant or repeated bending, twisting, stoop- ing, turning or other activities which might further aggravate his back disability. Conceivably, unrestricted work could result in additional or even total disability. It is our opinion that Mr. Grammont should be considered as physically disqualified for unrestricted manual labor because of the high degree of permanent partial disability to the body determined by the Indus- trial Court in the order set forth on July 17, 1974. Both Margo and Dugan testified at the instant hearing; essentially each repeated what the letter contains. In fact, both doctors testified that their views were wholly based on the Industrial Court's determination, as neither had person- ally examined Grammont. As Dr. Margo ultimately put it on cross-examination, answering the question "What spe- cifically on this form tells you as a professional man that Paul Grammont cannot build tires?" - "Because he has been determined by the courts to be 27.5 percent perma- nently disabled and this means forever, this doesn't mean for a day or two. This is as a permanent partial disability to the body as a whole and it doesn't say anything about being for one day or one week, a year, five years, it says permanently." Dr. Dugan stated the basis for his recom- mendation that Grammont not be permitted to return to work, on direct examination, as follows: "The reason for my feeling ,is that I have reviewed a competent medical report from a,licensed and competent physician practicing in Oklahoma and I, agree with his findings and I base my opinion on his disability rating." It became clear, however, that Dr. Dugan was really relying on the courts determina- tion and not the opinion of a Dr. J. J. Maril (the person referred to in the above-quoted testimony), for Maril had testified at the industrial court hearing to a :;0-percent disability, and the court found, as noted above, 27.5- percent disability, obviously based largely on Maril's view, for the court did not,adopt the view of a Dr. Brown that Grammont had no permanent partial disability.? Stated otherwise, had the Industrial Court determined that Grammont had no permanent disability at all, on the basis of Brown's opinion, Dr. Dugan would perforce be accepting that conclusion, as would Dr. Margo. Dugan conceded that Brown "might have been right," and also agreed that a person with a particular degree of disability "might be able to make an adjustment to this particular disability . . . that would enable him to do it . . . despite the permanency of the disability." He added that, granting a disability of 27.5 percent, the calculated risk of reinjury would dictate that the man for his own sake not perform tire-building functions. II. THE POSITIONS OF THE PARTIES The General Counsel and the Union argue that the finding of the state industrial court is not binding upon the must have been in evidence before the court for the attorney for the Company said on the record, "We have the report of Dr Brown on the Form 16 that we will stand on." THE DAYTON TIRE & RUBBER COMPANY Board, and that the Board should not extend "comity" to that decision because to do so would deny Grammont his statutory rights. They also claim that Grammont's testimo- ny that he is physically able to perform the work must govern in this case, so as to requireRespondent to offer him reinstatement , even if Grammont is wrong, in that Board law requires that a discriminatee be permitted to "attempt performance at his former job." And the General Counsel argues that the treatment of employee DeVaill shows that Respondent really has no policy on physical limitations, so that Respondent is, in effect, engaging in "a last ditch effort .-to keep its most active employees union adherent out of the plant."" The -Union, -as the Charging Party, takes the same positions as the General, Counsel, advancing in part somewhat different arguments in support thereof. Thus, the Union argues that the industrial court's decision cannot be res judicata because there is no testimony as to whether an appeal from that decision was- taken, although such a procedure is provided by statute. The Union argues further that the court's decision, even if considered resjudicata, is determinative of Grammont's condition only at the time of the order, and that Grammont's present testimony of his ability to perform the work is therefore unrefuted, and does not even need to be reconciled with the Industrial Court's decision. Finally, the Union contends that assuming Grammont is 72.5 percent able (the reciprocal of 27.5 percent disabled), he could still produce much more than the Company's base rate of 110 tires per day, having performed at close to a 250 -daily rate prior to his discharge.3 Respondent relies on the industrial court's determination, claiming that the 27.5 percent permanent disability fording means j ust that; it is binding upon Respondent, Grammont, the Union, and the Board, and is properly relied on by Respondent. Respondent also claims that, in any event, Grammont's testimony should not be credited, thus leaving the industrial court's determination- "unrebutted ." Finally, as an alternative, Respondent claims that backpay to Grammont should not begin until May 25, 1976, the first day of the, hearing herein,, as not until then did Grammont first "notify" Respondent -of the alleged change in his permanent disability. IL DISCUSSION AND CONCLUSIONS General Counsel's position at the hearing was that he was "not attacking" the state industrial court's determination of a 27.5 percent disability.4 I read his primary position, therefore, as being essentially that he intended to show, by Grammont's testimony, that he is now qualified and able to perform the tire builder job, despite accepting the state court's findings, and, alternatively, that Respondent should "give him a try," assuming that it is "impossible to ascertain" Grammont's physical capabilities. The General Counsel's position as expressed at the hearing presents a 3 I must reject this argument , at this point , as fallacious, for 72.5 percent "able" does not translate into being able to do 72 .5 percent of the number of tires he could do without the disability To illustrate, the loss of one finger by a pianist would not mean he could perform 90 percent of the compositions he formerly was able to play; it could well mean he could perform only compositions for one hand. 875 seeming dilemma , for accepting the state court's fmding of permanent disability appears inconsistent with a fording of present ability. My own view of the matter is somewhat in between the positions taken by the parties. I accept the court's factual conclusion that as of the day of their decision, Grammont was 27.5 percent permanently partially disabled. I do not, however, in the light of Grammont's testimony as outlined above, accept ipso facto the conclusion Respondent draws from that decision, that it need not offer reinstatement to Grammont. As noted above, Dr. Dugan replied, "Yes, sir, that is possible" to my question whether it was possible,for someone to, make an adjustment to a particular, albeit permanent, disability so as to perform work that the disability would suggest he could not perform. Furthermore, the testimony shows that Grammont was one of the Company's highest producers, having built, as Production Manager Dick Clarke stated, up to 250 tires on a single shift , with the "base rate" being 110 tires. From a standpoint of ability to produce, - therefore, Grammont would be "reinstatable" doing less than one half the physical labor he was capable of prior to his injury and discharge. Given man's capacity to adjust to handicaps, the fact that here the adjustment would only have to be such as to permit less than 50 percent of overall efficiency on the job, and Granunont's own testimony as to the tasks he has been performing , it seems to me, that without at all going behind the court's award, I am fully justified in concluding that the chances are good that Grammont could perform satisfactorily on the job. Such a conclusion does not conflict with the award, either in terms of the percentage of disability or its permanency. To the extent that it conflicts with the views expressed by Drs. Margo and Dugan, the conflict is minimal, based on Dr. Dugan's answer referred to above; his concession that it is "possible" for a man to recover even from an adjudged "permanent disability," and the fact that both doctors based their view by accepting at full face value the Court's percentage, although each agreed that it could have been erroneous, that Dr. Brown, rather than Dr. Maril, might have been correct. In short, we do not have a real dilemma here at all-for it is not necessary to disregard or disagree with the industrial court's determination of a 27.5 percent permanent partial disability, or even to ignore the dictionary meaning of permanent, to conclude that Grammont seems able, based on his testimony, to perform the work in question. It must be borne in mind that Respondent has been found guilty of violating Section 8(a)(3) by discharging Grammont, and that the Board's reinstatement order was part of the Board's remedy for that violation, a matter of the public interest, not merely Grammont's interest. A requirement that Respondent put Grammont back to work is not to say that Respondent must keep Grammont on the job if in fact he proves unable to perform it satisfactorily. To be sure, as Respondent points out, there is a risk that Grammont might be reinjured, a risk to Grammont himself, and to the 4 Asked by me, "Do you accept the State Industrial Court's determina- bon of 27.5 percent or are you attacking that?" , counsel for the General Counsel Tephed, "We are not attacking that." And then, to "You are in effect saying that despite that finding Mr. Grammont is able to perform hislob?", he replied, "That is correct , Your Honor." 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, which could well be required to pay additional compensation if such reinjury eventuates .5 But this risk, on balance , is a burden that I believe the Company should bear, rather than the discnminatee 6 As to the risk to Grammont, he is the best judge of that; it is not really up to me, or the Company, to deny him reinstatement "for his own good." I wish to emphasize what I am not deciding in this case. I do not decide that the industrial court's decision was in any way wrong. I do not decide, or suggest, that the Respon- dent's presently asserted reasons for not having reinstated Grammont , or offered him reinstatement, are or were in bad faith. And I do not decide that Grammont is in fact now capable of doing the work in question (a decision I could hardly make even as to someone who had never been adjudged disabled, or suffered any injury at all). I decide only that on all the evidence before me, and for the reasons set forth by me, the question left by the Board to the "compliance stage" is now answered, and Respondent should be required to offer reinstatement to Grammont in accordance with the terms of the Board's order issued March 13, 1975.7 The General Counsel requests, by way of a "remedy," that I order Respondent not only to offer Grammont reinstatement , but also that he be made whole for any wages lost . Respondent, as an alternative to its primary position that Grammont should not be ordered reinstated, requests that he be deemed medically unemployable as a tire builder until May 25, 1976, when he "first claimed to be physically able to return to work as a tire builder," and therefore that backpay should not begin until that time. 5 In this connection , the Company cites to me the following provision of the Oklahoma Workers Compensation Act, 85 O.S, Sect. 22 , par. 6: "The fact that an employee has suffered previous disability or received compensa- tion therefor shall not preclude him from compensation for a later injury; but in determining compensation for the later injury his average weekly wages shall, be such sum as will reasonably represent his earning capacity at the time of the later injury." It appears to me that , the latter portion of this provision might well minimize , if not completely remove, the Company's risk in case of Grammont 's reinjury , for a subsequent reinjury would tend to show that the Company was correct all along, and that Grammont 's "earning capacity" as a tire-builder was really zero , particularly in light of the Company reinstating Grammont only by compulsion of a Board order. I Although the onus is-upon Respondent, as the tort-feasor herein, and it has not to date offered reinstatement- to Grammont, I believe both policy considerations and fairness require that the period between Grammont's discharge and the date of the Industrial Court's decision be tolled, insofar as backpay is concerned. It is clear from the testimony of Grammont before the Industrial Court that he was not able to perform the work in question up to that time, and the Boards policy has long been to exclude the period a discriminatee is unable to work in awarding backpay. See, e.g., W. W. Rosebraugh Company, 60 NLRB 787 (1945), and literally hundreds of cases since. I reject, however, Respondent's contention that backpay should not begin until May 25, 1976. There was never a burden upon Grammont to apply for his job, or to notify Respondent that he was available. The Board-having ordered Respon- dent to reinstate him, it was Respondent's obligation to offer reinstatement to Grammont. Ascertainment of the precise date that Grammont became physically able to perform the work is no more possible than it has been for me to decide that he is in fact now able to do so. For, as noted above, I am concluding only that Respondent should still be required to offer Grammont reinstatement. But I do not think I would be doing the parties a service by deferring this question to still' another "compliance stage." And "rough justice" impels me to seize upon the date of the industrial court's decision as the cutoff date. For all the foregoing reasons , I recommend that the Board reaffirm its order of March 13, 1975, requiring Respondent to reinstate Grammont, and that it modify its order so as to provide that he be made whole from July 17, 1974, to the date Respondent offers to reinstate him. know of no case on the latter point, nor has counsel adverted to any, possibly because the potentials of the present situation are unique. 6 As said by the Fifth Circuit, in N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 572-573, "the Board has, as a matter of policy-one that seems reasonable-consistently taken the view that when an employer's unlawful discrimination makes it impossible to determine whether a discharged employee would have earned backpay in the absence of discrimination, the uncertainty should be resolved against the employer." r To the extent that I have not specifically discussed particular arguments made by any of the parties at the hearing or in briefs, those arguments have been considered and are deemed unnecessary, to my determination of irrelevant to the basis upon which I am making that determination - Copy with citationCopy as parenthetical citation