K-Mart Corp.

National Labor Relations Board - Board Decisions

Aug 22, 1979

244 N.L.R.B. 547 (N.L.R.B. 1979)

K-MART CORPORATION
K-Marl Corporation (formerly S. S. Kresge Company)
and Ronda Miller, and Truck Drivers and Helpers
Local Union No. 696. Cases 17-CA-7060 and 17-
CA 7121
August 22, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On April 18, 1977, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding finding that Respondent had en-
gaged in and was engaging in certain unfair labor
practices in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, by, inter
alia, discriminatorily discharging employee Ronda
Miller and ordering Respondent to take certain affir-
mative action to remedy such unfair labor practices.
Subsequently, on June 27, 1977, Respondent filed a
petition for review of the Board's Decision and Order
in the United States Court of Appeals for the Ninth
Circuit and the Board then cross-applied for enforce-
ment of its Order. Thereafter, on October 6, 1977,
Respondent moved the court for leave to present ad-
ditional evidence that the discriminatee herein suf-
fered a permanent disability which rendered compli-
ance with the Board's Order of reinstatement
impossible. On October 13, 1977, the Board filed an
opposition to this motion. Thereafter, on May II,
1978, the court granted Respondent's motion and re-
manded the case to the Board for the taking of addi-
tional evidence on the discriminatee's disability. On
June 15. 1978, the Board advised the parties that it
accepted the court's remand. Subsequently, on Au-
gust 2, 1978, the Board issued an Order reopening the
record and remanding the case for a hearing before
an administrative law judge for the purpose of taking
evidence in accordance with the court's remand. In
addition, the Board's Order directed that upon the
conclusion of the hearing the administrative law
judge should prepare a Supplemental Decision.
On March 30, 1979, Administrative Law Judge
Donald R. Holley issued the attached Supplemental
Decision in which he concluded that the discrimi-
natee, Ronda Miller, is presently physically able to
perform her former job of stock picker at Responent's
distribution center, and therefore that Respondent
should be required to offer Miller reinstatement to
that job. The Administrative Law Judge further
found, however, that Miller was incapable of working
i229 NLRB 10.
at the job in question from the date of her discharge.
February 23, 1976. until late March 1977. when she
successfully performed an even more physically de-
manding job. He therefore recommended that the
Board reaffirm its Order of April 18, 1977, requiring
reinstatement, but that the remedy therein be modi-
fied to provide that Miller be made whole only for the
period beginning in late March 1977 until the date
Respondent offers to reinstate her. Thereafter, on
April 20, 1979, the Charging Parties filed exceptions
to the Administrative Law Judge's determination re-
garding the appropriate backpay period, and on May
2, 1979, Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) 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 as a whole,
the decision of the United States Court of Appeals for
the Ninth Circuit remanding the proceeding, and the
attached Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative aw
Judge and to reaffirm its original Order except as
modified below.
We are in agreement with the Administrative Law
Judge's conclusion, stated above, that Miller is pres-
ently physically fit to perform her previous job as a
stock picker. We do not, however, agree with the Ad-
ministrative Law Judge's determination regarding the
appropriate backpay period.
There is no dispute that Miller sustained an injury
on her job on February 20, 1976, shortly before her
discharge. This injury resulted in Respondent's mak-
ing voluntary workmen's compensation payments to
Miller until August 17, 1976, at which time Respon-
dent informed Miller by letter that "[w]e understand
that you are physically able to work, therefore, we are
terminating your workmen's compensation benefits."
Miller then filed a claim for compensation which re-
sulted in hearings. Subsequently, the hearing exam-
iner issued his award wherein he ruled in favor of
Respondent and found that Miller was able to work
as of September 13, 1976. Neither Miller nor Respon-
dent appealed this decision.
Notwithstanding these facts, in his Supplemental
Decision the Administrative Law Judge recommend-
ed that backpay be tolled from the date of discharge
to March 1977, based on Miller's own assertions to
doctors treating her for her back problems of her in-
ability to work at her former job and her testimony to
the same effect at the two workmen's compensation
hearings. In reaching the conclusion that the appro-
priate starting date would be March 1977, the Ad-
ministrative Law Judge relied on the fact that at that
244 NLRB No. 76
547
L)E(ISIONS OF NATIONAL. LABOR RELATIONS BOARD
time Miller secured a comparable job, thus conclu-
sively demonstrating her ability to do the work in
question.
We do not agree with the Administrative Law
Judge's recommendation on the issue of Respondent's
backpay liability. Contrary to the Administrative
Law Judge we find that Miller's own testimony at
both hearings is apparently somewhat inconsistent as
to when she felt fit. We find it critical, however, that
Respondent, having produced medical evidence at
the compensation hearings to establish Miller's fit-
ness, produced at the hearing in this case medical evi-
dence to establish fitness. In our view. Respondent
should not be able to argue that Miller is fit or unfit
depending on which forum it is in. Further, Respon-
dent successfully argued for the ruling in the compen-
sation hearing which established that as of September
13, 1976, Miller was no longer disabled and could
work. Thus, we would hold Respondent to that date
and find that its backpay obligation commenced on
September 13, 1976.
Accordingly, on the basis of the discussion above
and the entire record in the case, we reaffirm the find-
ings, conclusions, and Order provided in the Board's
original Decision, with the modification that we now
provide that Miller be made whole from September
13, 1976, until the date Respondent offers to reinstate
her.
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 Respondent, K-Mart Corporation,
Lawrence. Kansas, its officers, agents, successors, and
assigns, shall take the action set forth in the original
Decision and Order of April 18, 1977, as modified
herein:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Ronda Miller immediate and full re-
instatement to her former position or. if such position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make her
whole from September 13, 1976, until the date Re-
spondent offers to reinstate her for any loss of pay or
other benefits suffered by reason of the discrimination
against her in the manner described in the Board's
original Decision and Order in the section entitled
'The Remedy.'"
2. Substitute the attached notice for that notice or-
dered to be posted in our original Decision and Or-
der.
APPENDIX
No ll(c}- To EMPIOYEES
PosTE1) BY ORI)ER 01 1T1E
NA ()ONAI. LABOR RILA II()NS BOARI)
An Agency of the United States Government
Wi wInL. NOT discharge or otherwise discrimi-
nate against employees in regard to hire or ten-
ure of employment, or any term or condition of
employment because of their union or protected
concerted activities.
Wl Wil.1l NOI create the impression of surveil-
lance of our employees' union activities.
WI WILL NO! threaten employees with dis-
charge or other reprisals, or issue warning no-
tices because of their union activities or pro-
tected concerted activities.
Wi: WIl.L NOi in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in Section 7 of the
Act except to the extent that such rights may be
affected by lawful agreements in accordance
with Section 8(a(3) of the Act.
WE wiliE offer to Ronda Miller immediate and
full reinstatement to her former position or if
such position no longer exists, to a substantially
equivalent position. without prejudice to her se-
niority or any other rights or privileges previ-
ously enjoyed. and w W Il.l make her whole
from September 13. 1976, until the date we offer
to reinstate her for any loss of pay or other bene-
fits suffered by reason of the discrimination
against her.
Wi w llI reinstate Jon Lowe to his position as
a back order M- I I person if it still exists, and/or
if not, treat him in a nondiscriminatory manner
in employment without prejudice to his seniority
or any other rights or privileges previously en-
joyed, and make him whole for any loss of pay or
other benefits suffered by reason of the discrimi-
nation against him.
Wv WIll, remove from Jon Lowe's personnel
file the reprimand slip and any other record
thereof pertaining to a reprimand given him on
April 23, 1976, for "intimidation."
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent provided by
Section 8(a)(3) of the Act.
K-MART CORPORAl ION
SUPPLEMENTAL DECISION
SrAILMINI O()F- i: CASEI
DONA.) R. HoIl.iy, Administrative Law Judge: On
April 18. 1977, the National Labor Relations Board issued
548
K- AlR (()RP() PRAI()ON
its Decision and ()rder (229 NI.RI 1I0) af;irining Adnlinis-
tratie l.a .ludgie .lerr\ B. Stonlle's. findin. i'lrI f/,,, that
Respondent hiad discriminatorils discllharged emnploee
Ronda Miller on February 23. 1976. andi ordering that
Miller he reinstated with hackpa. I hereafter. on Junre 27.
1977. Respondent filed a petition for revie olf the Board's
D)ecision and Order in the t nited States (ourt of Appeals
ftr the Ninth Circuit. O()n October 6. 1977. Respondent
moved the court for leave to adduce additional evidence
that Miller suffered a permanent disabilit w\hich rendered
compliance with the Board's Order in this case impossible.
On May I1. 1978. the court granted Respondent's motion
and remanded the case to the Board for the taking of addi-
tional evidence on Miller's disability. On August 15, 1978.
the Regional Director for Region 17 issued a notice of re-
opened hearing. and on October 3. 1978. further hearing
was conducted before me in this matter at l.awrence. Kan-
sas. All parties appeared and were affored full opportunit
to participate. to introduce and to meet material ecidence.
and to engage in oral argument. Each of the parties filed
post-hearing briefs which have been carefully considered.
Upon the entire record. the briefs. and rom m ohbseration
of the witnesses I make the tfollowing:
FDINI)I(;S AND CN I SONS
I. IA( IS
Prior to her discharge on February 23. 1976. Ronda
Miller was employed as a stock picker by Respondent. er
testimony and that of the general manager of Respondent's
distribution center. Richard Fisher. reveal that stock pick-
ers lift boxes of merchandise on and off of the platforms of
man-lift type fork lifts which are used to retrieve. transport.
and place merchandise within the distribution center. It is
undisputed that the boxes or cartons physically handled by
stock pickers vary in weight from several pounds to ap-
proximately 80 pounds. Miller testified without contradic-
tion that her normal job assignment in section A of the
distribution center required her to lift and otherwise handle
boxes of merchandise which averaged 20-30 pounds. with
an occasional box of 50 60 pounds.
On February 20, 1976. Miller was temporarily working at
the distribution center in section D. where hardware and
kitchen items were handled. While moving a box which she
estimated to weigh 80 pounds on the date indicated Miller
claims that she hurt her back.
Miller testified that she was examined by the Company's
doctor. Dr. Jones.' on the day she was injured. Dr. Jones
gave her a prescription for a muscle relaxer and told her to
return to work. When she reported back to work she fell
asleep on the job, as described in Administrative Lasw Judge
Stone's Decision, and was fired by Respondent.
After Miller was unlawfully discharged she continued to
see Dr. Jones twice a month until August 10. 1976. On the
latter date Dr. Jones arranged for her to be examined by
Dr. Sutton. 2 an orthopedic specialist in Topeka. Kansas.
I Resp. Exh 4 reveals Dr. Jones' full name is 11t Penfield Jones. M.D
2 G.C. Exh. 8 reveals Dr. Sutton's full name i R. O. Sutton. M.D.
Subsequeintl. . hb letter da ted \ugustl 17. 1976. Respondlent
tertinaliedl the Ip.ia meit of orknel'mc s clllperlation betne-
lil i lih aount of $103.101 petr eek x, hicll it had .olun-
taril paid. to Miller lonm I-ebru.ar 2. 1976, to A\liust 6.
1976. h sending her a letter statin: "We understaiid that
o ,i are plisic.all able to work. therefore. we are ermnlilll-
ing our xorklmen's compensallaon benetits."i
()n Septembher 13. 197(. [)r. Sutton xamined MIiller. Ilis
lindiigs and conchsions xe rc fs llo' (C. Ixi. 8):
23 ,ear old , lhite female who rep rl that he inured
her back hcile A orking at Kresge's inl I.a.i lccc in
Februar, and has beenh l o)I orkicln's comIllIpen.IIion
since that time. She xkas not hospitalized for thie in iur
and no fractures nor dislocations were nioted when x-
rays were taken. She states that it has been felt that she
has a lusculir pec of ijtur that a;is prcretited her
from going ack to work. She has had no loss o hbo el
nor bladder sphincter control She has had no radi-
atioti of' pin down into the legs or into the arms.
The patient walks without lean. list or limp. orward
flexion. lateral bending and h!perexlension are xtilhin
normal limits with forward fexion completely revers-
ing the curve in her normal lordotic lumhosacral
spaine. There is some levoscoliosis noted in the lumber
area and this is noted also on x-rnas. [)eep tendon re-
flexes, knee jerks and ankle jerky. are 3 over 4+
bilaterally equal and active. Heel walking and toe
walking are easily accomplished Straight-leg raising
and aseque's test are negative. The patient is able to
do a sit-up without difficulty
[X-rays] Are felt to be within normal limits.
Ilmpression] Is a normal exanination.
I see no reason wh the patient should not be able to
resume her fu ll emploxnment. I feel this is a normal
exa;minaltion of the lower back in a white feam;le. Re-
turn to clinic p.r.n.
Signed /S. R. O. Sutton, M.D
R. (). Sutton. M.D.
At some undisclosed time Miller iled a claim for conm-
pensation ith the dix ision of' worker's compensation. State
of Kansas. After she filed her claim she visited the office of
L. E. Riller. M.D.. at the request of her attorney. Robert W.
Harris. After examining Miller. Dr. Riller. by letter dated
October 28. 1976. reported his observations and conclusions
to attorney Harris. In his letter [)r. Riller stated, inter /hit,.
"I would estimate that patient [Miller] to haxe bet een 5
10` disabililty based on the body as a w hole. I expect this
patient to have after a reasonable period for recovery
around 7.5q( based on the body as a whole."4
Hearings were held in Miller's worker's cLompesation
case, designated as docket no. 76.543. on September 14.
1976. and on Fehruary 15. 1977. The above-named doctors
and Miller's personal doctor, Carl L. Olson. M.D.. each
gave depositions for use in the proceeding. On July 12.
1977. examiner James R. Ward issued an award in the case
finding. inter o/la (Resp. Fxh. 4):
I Infer that Respion denit ok such action on the adise o) Dr Jones
' See Resp Fxh
49
I)I:('ISIONS ()1: NATIONAL, ABOR REl.ATIONS BOARI)
I. ('lail;l sulffered an accidental injury arising out of
and in the course of' her employnient with respondent
on ch.ruary 20. 1976.
2. ('laimant was temporarily totally disabled due to
her accidental injury from Fehruary 20. 1976. to Sep-
tenlher 13. 1977. a period of 29.43 weeks.'
3. Claimant has a 3 permanent partial disahility to
the body s a whole.,
9. The evidence is not persuasive that claimant is in
need of future medical treatment in connection with
her injury received February 20. 1976, therefore, none
is being awarded at this time.
The record reveals that the above-described award was
not appealed by Miller or Respondent.
Having apparently convinced examiner Ward that he
should accept Dr. Sutton's September 13. 1976. conclusion
that Miller was then abie to resume her full employment.
Respondent appeared at the instant hearing with a doctor
unconnected with the worker's compensation case. George
R. Learned. M.D., a physician and surgeon who specializes
in orthopedics.' After stating his qualifications, Dr. earned
testified that in preparation for the instant hearing he re-
viewed the report of Dr. L. E. Riller dated October 28,
1976, concerning Ronda S. Miller and the award of the
division of worker's compensation for the State of Kansas
in Miller's case. He was then asked b counsel:
Q. Now Doctor, I would like you to assume the fol-
lowing, assume that Miss Ronda Miller held until Feb-
ruary 23, 1976, the position of stock picker at the K-
Mart Lawrence. distribution center and that the posi-
tion of stock picker requires an employee to engage in
frequent and repetitive standing, bending, stooping.
and squatting and it also requires the pushing, pulling.
and lifting of warehouse stock in excess of 50 pounds.
many weight 20 to 30 pounds but some weight as much
as 80 pounds, now Doctor, based on that job descrip-
tion which I've asked you to assume and referring to
the medical report of Dr. Riller and the decision of the
Kansas Division of Worker's Compensation, do you
have an opinion as to whether or not Miss Miller is a
physically qualified candidate to perform the duties of
a stock picker at the K-Mart Lawrence distribution
center?
5The latter date is clearly erroneous and should be September 13. 1976.
which would be 29.43 weeks after February 20 1976.
6 General Counsel's witness William F. Morrissey. assistant director of the
division of worker's compensation. State of Kansas, testified without contra-
diction that permanent partial disability is the degree that a person's ability
to obtain and retain work of the same type and character has been dimin-
ished. He indicated that a finding of 3 percent disability "is almost a finding
of no disability."
I Dr. Learned graduated from the University of Kansas Medical School in
1955: he served a 2-year surgical preceptorship with several general surgeons
and orthopedists thereafter. He was an instructor in anatomy at the Univer-
sity of Kansas Medical School from 1958 to 1960 and was a consulting
surgeon to the United States Health Service from 1958 to 1964. He is a
fellow of the International College of Surgeons. the American Medical Asso-
ciation. the Doubts County Medical Society, and the National Rehabilita-
tion Examiner's Association.
A. I would not recommend a patient of mine be sent
back to an), type of manual labor such as you have
described.
Q. What are the reasons for that opinion?
A. Because this patient based on the reports which I
reviewed indicates the possibility that she may have
had rickets at an early age. Secondly, primarily be-
cause the x-ray reports of' Dr. Harris indicates that she
has a pelvic tilt to the right with a compensatory curve
to the left which means that she has lordosis of her
lumbar spine which is a developmental anomaly and
may well be associated with her previous rickets. The
report indicates that she also has subluxation of several
of her cervical vertebra which would indicate that she
has had some developmental problem in her bones and
while it is possible that her back might improve tempo-
rarily, she obviously is going to be subject to reoccur-
rent back strain at any time.
Q. Now Doctor, based on the report of Dr. Riller
and the decision of the Kansas Division of' Workmen's
Compensation would you as a physician approve Miss
Miller's return to work as a stock picker'?
A. No, sir.
Q. I)octor, in your opinion, when an individual who
has an possible history of' rickets. x-ray evidence of
lordosis of the spine, and a prior on the job back injury
which resulted in both a temporary total disability and
a permanent partial disability ever be a qualified can-
didate for the position of' stock picker as I have de-
scribed it to you?
A. Yes, sir I would say that she is not.
To buttress Dr. Learned's testimony, Respondent called
Miller as a witness during the presentation of its case. Early
in the interrogation Miller indicated that she felt she was
physically unable to perform as a stock picker from Febru-
ary 20. 1976. until the end of August 1976. When Respon-
dent's counsel observed that she testified at the compensa-
tion hearing held in September 1976 that she was physically
unable to perform such duties at that time. Miller claimed
that she recovered to the point that she could have resumed
stock picker duties in September 1976 and indicated that
she looked for employment at several places during that
month. Counsel for Respondent then moved to the Febru-
ary 1977 compensation hearing and asked, inter lia, the
following questions. receiving the replies indicated:
Q. (By Mr. Fredericks) You testified at your hearing
in February of 1977 that you were still having the same
problems "I have had since the injury". How were you
having the same problems then as you had when you
had the injury or were you having less problems?
A. I was having the same problems.
Q. Isn't it a fact that you did testify in February of'
1977, "I'm still having the same problems I have had
since the injury which are lower back pain and a real
stiff neck. severe headaches"?
A. Correct.
55s()
K-MART CORPORATION
*
Q. In February of 1977 did you testified. "I can't
bend or do any lifting which I was able to do before"?
A. Yes. I testified to that.
*
Q. In February 1977 again where you were asked.
"have you made any effort at all to find any employ-
ment." your answer was "no." The question was, "I
don't feel that I am physically able to work, what I am
used to doing, that is."
The next question was, "are you qualified to do an!
kind of gainful employment that doesn't involve man-
ual labor, not really, no" was the answer.
Is that correct, that was the testimony?
A. Yes.
Q. Again this is February of 1977. you were asked
this question, "are any of these symptoms that you
have described to us. are any of them getting any bet-
ter?", the answer was, "no." Is that correct?
A. Correct.
The foregoing indicates and I find that Miller repeatedly
claimed until at least February 15, 1977, that she was physi-
cally unable to perform strenuous work such as the work
performed by a stock picker.
In late March 1977 Miller obtained employment in a res-
taurant called the "Cafe." She testified that the job required
that she frequently carry tubs of dishes and silverware
weighing'40-50 pounds to accomplish her waitress and bus
person tasks. In August 1977 she went to work for the Uni-
versity of Kansas in the catering department and as a su-
pervisor in a club called the Victory Club. In the catering
job she regularly lifted 10-gallon containers of coffee. In
March 1978 Miller was hired to work in the physics and
astronomy department of the University of Kansas as a
grade three clerk. In this position she was a supervisor who
distributed the workload. did payroll. and did personal cor-
respondence for the people in the department. Miller indi-
cated that she has had no physical problems in any of the
jobs described. When asked at the time of the hearing
whether she still experiences back pain she stated, "No
more than anyone else my age. It is hard for me to judge."
When asked if she felt that she had any disability at the
time of the hearing she answered, "I feel that I am not as
physically adapt as say I was two years ago. I have a little
more restriction and that's about it."
The last witness to testify at the hearing was Jon K.
Lowe, currently an order filler at Respondent's Lawrence
distribution center. Lowe was also a discriminatee in the
underlying unfair labor practice case. Lowe testified that he
had an accident at Respondent's facility on May 16. 1976.
while he was working as a stock picker. At the time his
normal job title was back order and M- I person. He testi-
fied that his regular job involved keeping track of merchan-
dise into the repack department and maintaining paper-
work to assure that old merchandise went out first. He also
attempted to locate lost merchandise and handled paper-
work regarding lost merchandise. The back order and M- I
person job was 100Y, paperwork and involved no lifting.
Lowe testified that the injury he sustained kept him off
work until July 1976. When he returned to work he was
assigned to work as a stock picker on the third shift where
he worked until he was moved to the order filler job in mid-
April 1977.
Subsequent to his accident in May 1976 Lowe filed a
claim for worker's compensation with the State of Kansas.
An award in his case. designated docket no. 76.,582. was
issued on December 6. 1977. and was received in the instant
record as General Counsel Exhibit 10. In the award James
R. Ward. the examiner. found. inler alia
I. Claimant met with personal injury by accident on
or about May 18. 1976.
2. Claimant's accidental injurN arose out of' and ill
the course of his employment.
4. Claimant was temporarily totall5 disabled tor a
period of 8 weeks following the date of his injury.
5. Claimant has a 5 permanent partial disability to
the body as a whole.
8. There is no evidence that claimant is in need of
future medical treatment.
Lowe's injury. like Miller's. was to the lower back. When he
was released by the doctor for light duty work he was re-
quired to resume the full duties of stock picker.
II. I)IS( 'SSIO)N AND) ('t)N( ItUSIONS
General Counsel's position is that Miller was capable of
resuming her duties on September 14, 1976. The Charging
Party. citing MA.F,-1. Milling Compar'. 170 NLRB 1079
(1968), contends that Respondent intentionally, placed
Miller in a position where risk of injury was increased when
it transferred her from section A to section D of the distri-
bution center, and consequently it should be required to
pay her backpay from the date of her discharge until a
grod-faith offer of reinstatement is made.8 In the alterna-
'The Union bases its claim on the following actual findings made by
Administrative Law Judge Stone (S.S. Kresge Comparn 229 NL.RB 10
(1977). at 20-21):
On February the 20th. I had a hack injury at about 5 o'clock in the
morning. I was put in a roK' that I don't uualls' wor in. I went to b,,lth m
supervi.sors and told thenmi that the hores were oi hefti for n., and he
first supervisor or night manager. Mr. Petlengill. told me tol go ahead
and do the work, and the second one. Mr. Alev Vought told me to either
do the job or get fired. So I went back to work in the rows that I was
assigned to and I lifted five. 80 xpound boxes. and on the sixth one I was
thrown hack on a bar against my stock picker. which was about ten feet
in the air. and at that time I suffered a lower back injury I reported the
injury to my supervisors and they asked me which company doctor I
wanted to go to? I told them Dr. Jones and they also tried to get me to
go hack to work for the rest of the evening, and when I tried to do my
usual job. I found that I couldn't bend over, so they allowed me to lift
empty hoxes off shelves for the remainder if the shilt. On February
21st, I went in to see the company doctor. Dr. Jones. and I asked him if'
he would give me a release so that I could go and work overtime that
afteromxn. which he did. I went into work for about two and a hall'
hours, and I was in toto much pain, so I. at that time. left work and went
and got my prescription filled that )r. Jones had gisen me. Emphasls
supplied.)
551
.
r
DC ('ISIONS OF) NA I INAl. IABOR RLAl(IONS BOARDI)
tive, the Charging Party contends that I should find Miller
was able to resume her stock picker duties on August 17.
1976. the date that Respondent informed her by letter that
it was terminating her workmen's compensation benefits
because it understood that she was physically able to work.
Respondent, of' course, contends that Miller will never be
physically able to perform as a stock picker, and that, con-
sequently, the Board should delete those portions of its Or-
der requiring Respondent to ofer her reinstatement "to her
former position" and "make her whole for any loss of pay
or other benefits suffered by reason of the discrimination
against her."
Upon careful consideration of the entire record I con-
clude that Respondent has failed to prove by a preponder-
ance of the credible evidence that Ronda Miller is presently
physically disabled to the extent that she cannot pertornm
the duties required of a stock picker. We have in Ilis case a
situation wherein: I)r. Jones, who was hired by Respon-
dent, indicated after repeated examinations on or about
August 10 1976, that Miller was able to resume work: Re-
spondent's manager of' worker's compensation terminated
Miller's workmen's compensation benefits on August 17.
1976, because "{wle understand that you are physically able
to work": Dr. Sutton who was hired by Respondent, indi-
cated after examination of Miller on September 13, 1976. "I
see no reason why the patient [Miller] should not be able to
resume her full employment"; Miller testified without con-
tradiction that from late March 1977 until August 1977 she
worked as a waitress and bus person, regularly lifting and
carrying trays which weighed 40 50 pounds and experi-
enced no difficulty while performing such work: an award
was issued by the division of worker's compensation, State
of Kansas, on July 12, 1977, in which the examiner found
that Miller has a 3 percent permanent partial disability to
the body as a whole and has not been shown to be in need
of future medical treatment in connection with the injury
she sustained on February 20. 1976: and employee Jon
Lowe, who sustained an injury similar to that experienced
by Miller. was reinstated by Respondent on a stock picker
job after he had been found to have "a 5'7 permanent par-
tial disability to the body as a whole" on December 6. 1976.
While the factors enumerated above would appear to in-
dicate that Miller is, and has been for some time, physically
capable of performing her predischarge job of stock picker.
Respondent would have me ignore such facts as Dr.
Learned tells us that he does not think Miller will ever be
capable of performing stock picker work again. While I
have no doubt that Dr. Learned stated his sincere opinion
at the hearing I note that he based his opinion on Dr.
Riller's letter to attorney Harris and the worker's compen-
sation award concerning Miller only. Significantl. I)r.
I.earned did not consider Dr. Jones' report. Dr. Sutton's
report, the worker's compensation award concerning em-
ployee Lowe, or Miller's testimony which reveals that she
performed work involving similar lifting in April. May.
June, and July 1977 without physical difficulties. Moreover.
[)r. Learned did not personnally examine Miller or inspect
x-ray photos of her lower back. In the circumstances I re-
frain from attaching controlling weight to his opinion testi-
mony.
In sum. I conclude arid find that Respondent has not
proved that Ronda Miller is presently physically disabled
and therefore incapable of performing as a stock picker at
Respondent's distribution center. Consequentl', Respon-
dent should be required to ofler Miller reinstatement to her
former position of employment. However, it is clear that
Miller consistently indicated during the period February
23. 1976. to February 15. 1977. in her discussions with the
doctors treating her and in testimony given before the divi-
sion of worker's compensation, State of Kansas. that she
was then unable to perform the work in question. I he
Bo1ard's policy has long been to exclude the period a dis-
criminatee is unable to work in awarding backpay.' Miller
first demonstrated that she could once again perform work
involving lifting of 40 50 pound items in late March 1977.
when she successfully performed the waitress and bus per-
son duties while working at the "Cafe." In my vie,,. back-
pay should be tolled from February 23. 1976. to the date
Miller was first employed at the "Cafe." I reject the Union's
contention that she should receive backpay from February
23. 1976. foreward as she was not transferred to section )
of the distribution center for discriminatory reasons. Conse-
quently, the legal doctrine discussed and applied in M.F:A.
Milling ('Colmra'W, .supra, is not applicable here. I similarly
conclude that Respondent's backpay obligation should not
run frolm September 13, 1976. the date the division of work-
er's compensation chose as the end of her period of empo-
rary total disability because Miller continued to insist that
she was unable to resume her former type of work through
at least the February 15. 1977. worker's compensation pro-
ceeding.
For the reasons stated I recommend that the Board real-
firm its Order dated April 18. 1977. requiring Respondent
to reinstate Miller and that it modify its Order so as to
provide that she be made whole from the time she was
employed at the "Cafe" in late March 1977 until the date
Respondent offlers to reinstate her.
' See W Rowehraugh ('rnpal., 60 Nl.RB 787 (1945), nd Dtwlon 7ire
& Rubbher (ompalym. 227 NLRB 873 (1977.
552