Ohio Brass Company

National Labor Relations Board - Board Decisions

Apr 13, 1982

261 N.L.R.B. 137 (N.L.R.B. 1982)

OHIO BRASS COMPANY
Ohio Brass Company and Ricky Hillyer. Case 8-
CA-1339-1
April 13, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge duly filed on November 6, 1979,
by Ricky Hillyer, an Individual, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 8, on May 29, 1980,
issued and served on the parties a complaint and
notice of hearing. In substance, the complaint al-
leges that Ohio Brass Company, herein called Re-
spondent, interrogated an employee in violation of
Section 8(a)(1) of the National Labor Relations
Act, as amended, by inquiring about "the employ-
ee's protected concerted activities in processing in-
dustrial compensation claims." On June 2, 1980,
Respondent filed an answer admitting in part, and
denying in part, the allegations of complaint, and
requesting that the complaint be dismissed.
Thereafter, on various dates in November 1980,
the parties entered into a stipulation of facts in
which they petitioned the Board to approve the
transfer of this proceeding to the Board and
waived a hearing before an administrative law
judge, the making of findings of fact and conclu-
sions of law by an administrative law judge, and
the issuance of an administrative law judge's deci-
sion. The parties further stipulated that the entire
record in this proceeding shall consist of the
charge, the complaint and notice of hearing, the
answer, and the stipulation of facts with accompa-
nying exhibits. On December 11, 1980, the parties
filed the stipulation of facts and a motion to trans-
fer the proceeding with the Board. On February
20, 1981, the Board granted the motion, approved
the stipulation, transferred the proceeding to the
Board, and advised the parties that they could file
briefs with the Board in Washington, D.C. There-
after, the General Counsel and Respondent filed
briefs.
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.
Upon the basis of the stipulation, the briefs, and
the entire record in this proceeding, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with its
principal office located in Mansfield, Ohio, and a
facility located in Barberton, Ohio, is engaged in
the manufacture of high voltage porcelain insula-
tors. Annually, in the course and conduct of its
business, Respondent ships finished products valued
in excess of $50,000 to points directly outside the
State of Ohio.
The parties stipulated, and we find, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts I
Respondent's standard application for employ-
ment form, which has been in use continuously
since June 1, 1979, and which must be, and has
been, completed by all applicants for employment
at Respondent's Barberton, Ohio, facility, asks,
inter alia, whether the applicant has ever "filed an
industrial claim." The application includes other
questions about the applicant's health, safety back-
ground, and physical limitations, if any, Specifical-
ly, it questions whether the applicant has ever been
hurt in an industrial accident, has ever had spinal
injuries or complaint of bad back, or has any physi-
cal limitations. The application 2 also notes that all
employment is dependent upon the applicant's sat-
isfactorily passing a physical examination.
B. Contentions of the Parties
The General Counsel contends that Respondent
violated Section 8(a)(1) of the Act by asking its ap-
plicants for employment, on Respondent's standard
application form, whether they have filed prior in-
dustrial, i.e., workers' compensation, claims. The
General Counsel argues that such an inquiry, unless
justified by a legitimate and substantial business ne-
cessity, violates Section 8(a)(1) of the Act because
it asks about an applicant's past involvement in
protected concerted activity. In support of his posi-
tion, the General Counsel relies, inter alia, on
'Respondent's brief to the Board set forth a number of alleged facts
which were not included in the parties' original agreed-upon stipulation.
On March 17, 1981, the General Counsel filed a motion to strike portions
of Respondent's brief which contained alleged facts not included in the
stipulation. We grant the General Counsel's motion and consider herein
only those facts included in the parties' original stipulation of facts.
'The relevant portion of the application is attached to this Decision as
an appendix [omitted from publication].
261 NLRB No. 18
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boatel Alaska, Inc., 236 NLRB 1458 (1978), and
Krispy Kreme Doughnut Corp., 245 NLRB 1053
(1979). Admitting that an employer has a legitimate
and substantial business interest in the health and
physical capabilities of his employees, as well as an
interest in avoiding hiring employees who present a
potential for industrial risk, the General Counsel
nevertheless contends that the questions on Re-
spondent's application which directly relate to an
applicant's physical condition, coupled with the re-
quired physical examination, supply Respondent
with the necessary information concerning such
matters. Accordingly, there is no necessity to ask
whether an applicant has filed an industrial claim.
Respondent, on the other hand, contends that by
asking applicants for employment whether they
have filed an industrial claim it is seeking informa-
tion that is relevant to the safe and efficient oper-
ation of its business. Respondent further contends
that asking whether an applicant has ever filed an
industrial claim does not interfere with employees'
ability to engage in protected concerted activities.
In support of its position, Respondent relies, inter
alia, on Buck Kreihs Company, Inc., 227 NLRB 352
(1976), and Daniel Construction Company, a Division
of Daniel International Corporation, 240 NLRB 1254
(1979). Finally, Respondent contends that, even if
the Board decides that Respondent's employment
application form is unlawful, Respondent should
not be found guilty of an unfair labor practice in
this proceeding because it was allegedly acting in
compliance with existing law when it formulated
and used its employment application form. In es-
sence, Respondent argues that any decision finding
a violation here should be applied prospectively
only.
C. Discussion
It is well settled that it is unlawful for an em-
ployer to inquire into employees' past exercise of
protected concerted activity unless the employer
has a substantial and legitimate business justifica-
tion for doing so.3 It is also well settled that appli-
cants for employment enjoy the protection of Sec-
tion 7 of the Act.4 In Krispy Kreme Doughnut,
supra, the Board found that the filing of a workers'
compensation claim by an individual employee
constituted protected concerted activity and that
the discharge of an employee because of his ex-
pressed intent to file such a claim was unlawful.
We now must determine whether it was unlawful
for Respondent simply to inquire of an applicant on
I Rochester Cadet Cleaners Inc., 205 NLRB 773 (1973); Boatel Alaska,
supra
' Lucy Ellen Candy Division of F & F Industries; Inc., 204 NLRB 121,
123 (1973).
its employment application form whether the appli-
cant had previously filed an industrial or workers'
compensation claim. For the following reasons, we
find no violation of the Act in such inquiry.
Unlike employer inquiries into an employee ap-
plicant's prior union experiences or affiliations, for
which there is no legitimate business justification,
Respondent, in the instant case, has a legitimate
and substantial business justification for its inquiry,
i.e., the health and safety of its work force. Its
knowledge that an applicant has filed a prior indus-
trial claim may alert Respondent to the fact that
the employee applicant may once have been in-
jured on the job, raising the possibilities of a con-
tinuing injury. At the least, the information may be
of aid to the physician conducting the entry physi-
cal, and the information is relevant to the decision
to hire an applicant.5 Thus, Respondent is entitled
to be aware of any possible physical limitations of
prospective employees to determine whether it is
advisable to hire them, and, if they are hired, to
avoid placing them in situations potentially danger-
ous to themselves and their fellow workers. Inquir-
ing into an applicant's past history of industrial
claims does not, as the General Counsel would inti-
mate, per se, interfere with the applicant's ability to
engage in protected concerted activity. We see no
"inherently coercive" effect on such protected ac-
tivity where, as here, and unlike those cases where
inquiry is made of an applicant's prior union activi-
ty, Respondent has a legitimate reason for such in-
quiry. Moreover, there is no evidence in the instant
case that Respondent has ever refused to hire any
applicant simply because of that applicant's prior
filing of industrial or workers' compensation
claims.
As noted, in Krispy Kreme, supra, the Board
found that an employer had violated the Act when
it discharged an employee solely because of his ex-
pressed intent to file a workmen's compensation
claim. The Board found that the employee's "refus-
al to forebear from filing a claim opposes [the em-
ployer's] attempt to deny him and other employees
access to workmen's compensation benefits," which
were benefits that arose out of the employment re-
lationship and which were of common interest to
employees. 6
Here we find no attempt by Respondent to
"deny employees access to workmen's compensa-
tion benefits" by its simple inquiry into whether an
applicant had ever filed for such benefits. We also
note that the Administrative Law Judge in Krispy
Kreme indicated that the discharge of the employee
'Cf. Daniel Construction, supra; Buck Kreihs, suprs
6 245 NLRB at 1053.
138
OHIO BRASS COMPANY
there "because he manifested an intention to file a
workmen's compensation claim, if condoned,
would recognize a right in employers to create a
coercive aura with respect to this remedial proce-
dure and thereby to dampen the salutary impact of
workmen's compensation laws on job safety gener-
ally."7 Such a "coercive aura" is not involved in a
case, like the instant case, where the conduct com-
plained of is the mere inquiry about the filing of a
claim in the past, and where the General Counsel
has shown no untoward motive on Respondent's
part for such an inquiry.8 In such circumstances,
we find no violation in Respondent's asking such a
question on its application form, since we deem it a
pertinent question "bearing upon the applicant's
history of personal injury,"9 and one which we
find Respondent was privileged to ask.'
7245 NLRB at 1062.
In Krispy Kreme the Board found the employee's activity protected
because the matter of workers' compensation benefits arose out of the
employment relationship and was of common interest to other employees.
Accordingly, the discharge (for expressed intent to file a workers' com-
pensation claim) denied access to compensation to an individual employ-
ee and, by example, to other employees. Here, we are faced with a situa-
tion where an inquiry is made into an applicant's prior filing of industrial
claims. While applicants for employment are entitled to the protections of
the Act and we have held that it is per se unlawful for an employer to
inquire of an applicant's prior union activities, other inquiries may be
lawful if supported by a substantial and legitimate business justification.
Here, we have determined that Respondent has a substantial and legiti-
mate business justification for its inquiry, i.e., the health and safety of its
work force. Further, here, unlike Krispy Kreme, there is no showing that
any applicant or employee has been directly or "by example" denied
access to compensation by the employer's inquiry because no evidence
has been presented to show that Respondent has ever refused to hire any
applicant who had previously filed an industrial claim.
'Daniel Construction, supra, 240 NLRB at 1258.
'o Daniel Construction Company. supra, Buck Kreihs. supra; cf. Krispy
Kreme, supra at 1057-60.
Because we find that Respondent did not violate the Act by inquiring
of applicants for employment if they had filed industrial claims, we find it
unnecessary to reach Respondent's other contention that any decision
finding a violation should be applied prospectively only.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
MEMBER ZIMMERMAN, concurring:
I agree that Respondent's inquiry on a standard
application form as to whether the job applicant
had ever "filed an industrial claim"-the only issue
in this case-is not a violation of the Act. Unlike
my colleagues, however, I would find it unneces-
sary to examine Respondent's justification for the
inquiry.
They assert that no employer inquiry concerning
past exercise of protected activity is lawful unless
the employer has a substantial and legitimate busi-
ness justification for doing so. Requiring such justi-
fication is, of course, valid with respect to union
activity, which is expressely protected by Section 7
of the Act. Filing workers' compensation claims,
however, should be distinguished as an implied
Section 7 right. Such claims do arise out of the em-
ployment relationship, and are presumed to be of
common interest to other employees, absent evi-
dence of disavowal of concern by employees.'5
The filing of such claims is thus protected by the
Act only through a rebuttable presumption that the
activity is concerted, and, unlike union activity, it
is not covered per se by the Act. Accordingly, the
mere inquiry into the filing of past claims cannot
be found unlawful in the absence of evidence of
unlawful motive. No such unlawful purpose is in-
volved here, and I therefore join in dismissing the
complaint.
" Alleluia Cushion Coa. Inc, 221 NLRB 999 (1975); Self Cycle &
Marn'e Distributor Cao. Inc., 237 NLRB 75 (1978); Krispy Kreme Dough-
nut Corp., 245 NLRB 1053 (1979), enforcement denied 635 F.2d 304 (4th
Cir. 1980).
139