Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Jan 11, 1977

227 N.L.R.B. 873 (N.L.R.B. 1977)

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 -