Lloyd A. Fry Roofing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1963

142 N.L.R.B. 1327 (N.L.R.B. 1963)

LLOYD A. FRY ROOFING CO., INC., ETC. 1327
3. Respondents Oneonta and Sherwood are a single employer for the purposes of
this case and are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
4. Lillian Creighton is an agent for Respondents Ravena, Oneonta, and Sherwood,
and said Respondents are jointly and severally responsible for any unfair labor prac-
tices committed by her.
5. John St. George is a common officer , director, and agent of Sherwood and
Oneonta, and controls both.
6. By coercively interrogating his employees concerning their membership in,
activities on behalf of, and sympathies for, the Union through Supervisor Bishop,
Respondent Isolino has engaged in unfair labor practices as defined in Section 8
(a) (1) of the Act.
7. By discriminatorily discharging employees Cornwell and Morrell , Respond-
ents have engaged in unfair labor practices comprehended by Section 8(a)(3)
and (I) of the Act.
8. By threatening Ravena's employees with discharge and with termination of
operations if said employees became or remained members of the Union or gave
it any assistance or support , and by warning Ravena's employees not to become
or remain members of the Union or give it any assistance or support, Respond-
ents have engaged in unfair labor practices proscribed by Section 8(a)(1) of
the Act.
9. By discriminatorily discontinuing Ravena's finishing department, transferring
it from Ravena to Oneonta , and by discharging the employees of said department,
Respondents have engaged in unfair labor practices within the contemplation of
Section 8 (a) (3) and (1) of the Act.
10. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
11. Respondents have not committed any other unfair labor practices within
the meaning of the Act as alleged in the complaint.
[Recommended Order omitted from publication.]
Lloyd A. Fry Roofing Co ., Inc., and Volney Felt Mills, a Divi-
sion Thereof and Oil , Chemical and Atomic Workers Inter-
national Union, AFL-CIO. Case No. 11-CA-2056. June 19,
1963
DECISION AND ORDER
On April 10, 1963, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending dismissal of the complaint in its
entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the entire record, including the exceptions and
142 NLRB No. 139.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board hereby adopts as its Order the Recommended Order
of the Trial Examiner to dismiss the complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A hearing before Trial Examiner Thomas A. Ricci was held in the above-entitled
proceeding at Morehead City, North Carolina , on March 7, 1963, on complaint of
the General Counsel against Lloyd A. Fry Roofing Co., Inc., and Volney Felt Mills,
a division thereof, herein called the Respondent or the Company. The issue litigated
was whether the Respondent had violated Section 8 (a)(1), (3), and (4) of the Act.
After the close of the hearing , a brief was received from the Respondent.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Delaware corporation, has an office and place of business
located at Morehead City, North Carolina, where it is engaged in the manufacture of
asphalt roofing and allied products. During the last 12-month period it manu-
factured, sold, and shipped finished products valued at in excess of $50,000 from
its Morehead City operation to points located outside the State of North Carolina.
I find that the Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union , AFL-CIO, herein called
the Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The sole issue to be decided in this case is one of fact . In the month of November
1962, the Respondent told Melvin Gillikin, a laborer , to cease working , and sent him
home. Early that month, on November 7, he had appeared as a witness at a hear-
ing before another Trial Examiner in support of another complaint (Case No
11-CA-1978) [142 NLRB 673], in which the Respondent was charged with
having practiced illegal coercion upon its employees in violation of Section 8 (a) (1)
of the Act. The present complaint now alleges that Gillikin was sent home from
work because he had so testified, the Respondent thereby violating Section 8(a) (4)
of the Act, and because of his activities on behalf of the Union, whereby the Re-
spondent violated Section 8(a)(3). In defense , the Respondent asserts that Gillikin
was not discharged , that he was sent home because his physical condition made it
unsafe for him to continue working, and that the Respondent's purpose was to
protect him from permanent injury and to have him receive statutory payments
under applicable industrial accident workmen's compensation laws until such time
as he should be able to resume his regular work duties . The question to me is
whether the preponderance of the evidence as a whole supports the allegation that
Gillikin suffered a discrimination in employment proscribed by either Section 8(a) (3)
or 8(a)(4).
The truly material facts are not in dispute . Gillikin is classified a laborer and
his work requires lifting materials weighing about 100 pounds. On September 10.
1962, he hurt his back on the job and the next day, because of the pain he was
suffering, Plant Superintendent Nichols told him to go to the doctor; Gillikin chose to
go to Dr. Webb, his personal physician. Dr. Webb told him to say in bed for 4
or 5 days; instead Gillikin returned to the plant. Nichols said to him: "If you feel
like it come in and stand around , keep moving or go home; if you want to." Gillikin
did stay home but returned to the plant on Thursday the 13th; he tried some light
work putting labels on the products , found that the twisting hurt his back and again
went home . This time he returned on the 17th. He stayed on about a week, still
LLOYD A. FRY ROOFING CO., INC., ETC. 1329 ,
doing work of a light nature , not his regular assignments . On September 28 he was
again in Dr. Webb's office; this time the doctor gave him a note which he delivered
to Nichols. The physician's note reads : "In my opinion he is not yet ready for heavy
httmg. Return 10 days for examination."
Gillikin continued to perform special light tasks and on October 8 returned to
Dr. Webb who placed hum in a hospital for treatment, where he remained for 17
days. On October 29 he was back at the plant with a second note from Dr. Webb,
who last saw him on October 27. The note reads: "Mr. Gilhkm was discharged
from hosiptal 10/25/62. His diagnosis was a herniated intervertebral disc at L 4-
L 5 on left. We have fitted him with a back support. It looks now that heavy work
will be out of the question for a while longer."
With him Gillikin also brought to the office manager, Davis, a $245 hospital bill.
Davis asked did the employee want this bill processed through the workmen's com-
pensation insurance (an industrial accident policy with Royal Globe Indemity In-
surance Company, carried by the Company under applicable North Carolino work-
men's compensation laws), or through the group hospitalization policy (group in-
surance for which Company and employees contribute premiums and which applies
to medical expenses resulting from normal, nonindustrial accidents or injuries).
Gillikin said he was hurt in the plant and wanted the bill treated as an incident
thereto. Davis forwarded the bill to the claims examiner of the Royal Globe In-
demity Insurance Company in Raleigh, North Carolina. Because Gillikin's original
injury occurred in the plant Davis had at that time sent to the State industrial com-
missioner a form report of the accident as required by law.
Gilhkin resumed the temporary assignments to special light duties intended to
keep him busy as an interim arrangement. Two weeks later, on November 12,
Nichols sent him to be examined by Dr. Morey, the physician who treats most of
the employees injured in this plant at the Respondent's request and who charac-
terized himself at the hearing as the "Company Doctor." After examining Gillikin
and having X-rays taken, Morey reported in writing to Nichols. His concluding
opinion reads: "Impression is that this man has sacroiliac strain, chronic and in
my opinion will not be able to do heavy work in the future without reinjuring
his back." Morey also telephoned Edwards, the plant manager over Nichols, and
told him that on the basis of Gillikin's statements to him and his examination of
the man, standing, sitting, or twisting the body could aggravate his condition
After receiving Dr. Morey's report on November 19, Nichols read it to Gillikin
and told him to go home There is a slight variance between the testimony of
these two men as to precisely what words Nichols used. According to Gillikin,
he said that because the regular lifting work could hurt Gillikin "worse" than be-
fore "I'm going to have to lay you off." According to Nichols he told the man
"go draw your industrial insurance till you can bring a slip from the doctor stat-
ing that you can resume the responsibilities." Nichols insisted he did not discharge
Gillikin. However he may have phrased his thoughts, I think it clear the superin-
tendent gave Gillikin to understand he was being sent home until such time as he
might be fully recovered. Gillikin himself recalled Nichols saying at that moment:
"If you ever get able to work, I'll hire you back." Gillikin left; he has not since
visited any doctor or attempted to return to work. He said at the hearing that
he was still unable to do regular work.
In support of the complaint allegation that Gillikin was not released because of
his physical condition, but rather because he gave testimony under the Act and to
discourage his prounion activities, the General Counsel points to three other facts
which also appear clearly established. The first, and chief of these, is that the
Respondent has already been shown to be opposed to the employees' union activities
generally and has in fact resorted to illegally coercive measures to prevent them.
On the basis of testimony received in the earlier proceeding (Case No. 11-CA-1978)
Trial Examiner Wellington Gillis found that officials of this plant-among them
Edwards and Arthur, plant manager and assistant plant superintendent, respectively,
over the operations in which Gillikin worked, interrogated employees concerning
their union activities, threatened them with loss of benefits, threatened to "let go"
union adherents, and kept a union meeting under surveillance. The second per-
tinent fact urged for consideration by the General Counsel is that Gillikin was one
of the nine employees who testified on November 7 in support of the earlier com-
plaint . And the last important fact is that the Respondent has a longstanding
policy of placing injured employees, who are capable of performing it, on light
work until such time as they are physically able to resume their regular duties.
And this practice was followed both in the case of injuries received on the job and
when employees were hurt off the premises. Nobles, another laborer, suffered
what was described on the record as a "back injury" or "slipped disc." He under-
went an operation , was away from work 2 months, and when he returned in a brace
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was given light work-like labeling. He did such work for about 9 months, when
he was again well enough to do his regular heavy lifting duty. Lawrence, also
an ordinary production worker, broke his arm on the job, and had it in a cast for
5 or 6 weeks. It appears he never lost a day's work; first he watched the "heater,"
like an ordinary watchman, and then for 5 or 6 months did light labeling work,
before resuming his regular duties. York, another employee, fell off the porch
at home and broke three bones in his back. He was in the hospital 11 weeks, and
when he returned spent about a year doing light, temporary work until he was fully
recovered.
The General Counsel did not submit a brief to explain his theory of the com-
plaint. As I understand his reasoning , however , it rests upon the following suc-
cessive factual assertions: Between September 10, when Gillikin was injured, and
November 7 the Respondent was perfectly satisfied to have him do light work,
notwithstanding his weakened condition; the only intervening development, prior
to November 12, which distinguished Gillikin's case from the several other injured
persons who had been accorded opportunity to do light work for extended periods,
is that he testified in the Board proceeding; prior to that time the Respondent deemed
Dr. Webb's certificate indicating Gillikin could do light work sufficient medical
advice; the decision to have him reexamined by another doctor was therefore a
departure from past practice. These facts, coupled with the further fact that the
Respondent was opposed to the Union and had already in other ways resorted to
illegal conduct to implement its resolve, requires a conclusion, as the General
Counsel then argues, that it was the fact of Gillikin giving testimony that caused
both the reexamination by Dr. Morey and the decision to require Gillikin, unlike
other employees, to be fit for regular lifting work in order to remain in the plant
at all. It is not contended that the act of having Gillikin examined by Dr. Morey
was in itself illegal; the complaint pinpoints the unfair labor practice as the act
of sending him home on November 19. And, of course, it is conceded that
Gillikin still cannot perform his regular duties.
The precise discrimination in employment charged to the Respondent is the refusal
to permit Gillikin to do the light, temporary work. It follows that the remedy
which the General Counsel seeks now is that Gillikin be restored to such light
work, and, I suppose, that the Respondent be ordered to keep him in such a limited
position until he is fully recovered, whenever that may be.
That Gillikin was deprived of an opportunity to earn his wages is clear; the
record as a whole indicates that while doing the temporary work, he, like the other
injured employees who testified, were paid their regular wages. The fact of dis-
crimination in employment is clear, whether it be called an outright discharge or
a temporary layoff during a period of physical incapacity.
The heart question of the case is one of motivation, and it turns on circumstantial
evidence. In the record before me there is no direct evidence indicating that Gillikin
was released because he testified or because he favored the Union. Nor does it
appear, from the facts as found by Trial Examiner Gillis on the record made in
the earlier proceeding, that the Respondent's union animus was directed to Gillikin
individually. None of the coercive statements, or threats, uttered by company
representatives were voiced to him. His testimony covers only five pages of the
transcript of testimony, and all he said was that with two other employees he was
called to the office of Plant Manager Edwards, who lectured them on the importance
of putting an end to the disturbances that were still disrupting production in the
plant after the election had been held. Trial Examiner Gillis found no evidence
of antiunion purpose or effect in that incident. Moreover, there is no evidence,
in either of the record transcripts, showing that Gillikin engaged in any activity to
help the Union, or, indeed, that he favored it at all.'
Absent any evidence that the Respondent was aware of union activity by Gillikin,
or indeed that he was a union man at all, a finding of illegal motivation must be a
pure inference based on the fact that the layoff came after Gillikin testified on
November 7. But , as in all cases resting upon circumstantial , or indirect evidence,
all facts that have any bearing upon the act in question must be considered , includ-
ing those which tend to negate the conclusion of wrongdoing . Gillikin was not well,
and the Respondent sent him to its own doctor . It is suggested, although not ex-
1 The only testimony in the earlier record suggesting that a supervisor might have
believed Melvin Gillikin to favor the Union is that given by Edward Willis, who said that
as he was leaving a union meeting with "Gillikin," Rose , another plant superintendent,
saw them and said : "I got you now " There were two Gillikins in the plant, Melvin and
his brother , Ralph ; which of the two accompanied Willis is nowhere clarified . Moreover,
Trial Examiner Gillis discredited Willis on this point . I therefore can make no finding
that the Respondent knew Melvin Gillikin as having attended a union meeting.
LLOYD A. FRY ROOFING CO., INC., ETC. 1331
plicitly alleged in the complaint, that at that very moment the Respondent either
planned to make a record of outright physical incapacity or at least hoped that a
new medical check would provide a solid basis for sending Gillikin home. There
could as well have been perfectly proper motive for this step. Even at that date,
2 months after his accident, Gillikin still felt pain while doing the so-called light
work on the labeling machine, for he testified that he told this to Dr. Morey, to
whom the Company sent him. Nichols testified that before sending him to the
doctor he asked Gillikin how he felt and Gillikin replied: "I still feel it, worse when
I carry this machine back and forth, this bending, twisting, back and forth." Gil-
likin's testimony on this rather important point was equivocal. "Henry
[Nichols] might have asked me how I was getting along, and I told him it was still
bothering me, but I thought I was getting along pretty well. I wouldn't even say
that he asked me." Moreover, whether the Company continued him on the payroll,
despite his limited capacity, or sent him to receive workmen's compensation benefits
under its insurance policy, he represented a financial burden. A decision to have him
reexamined, therefore, could as well have been intended to improve Gillikin's con-
dition, and, in the long run, limit the Company's monetary loss.
I must also consider the testimony of Dr. Morey who said that on the basis of
his November examination he believed there was no way of telling when, if ever,
Gillikin would be able to do regular work; it was also his opinion, and it appears that
he passed it on to the Respondent before Gillikin was sent home, that the man was
in danger of incurring permanent damage if he continued even the light work. I do
not agree with the General Counsel's contention that Dr. Morey's testimony is ir-
relevant to the entire issue. The fact is that the only medical evidence in the record
requires a finding that Gillikin was in danger of permanent and perhaps more serious
injury if be continued at any work at all. If Dr. Morey's medical finding and testi-
mony is really irrelevant in this case, it necessarily means that the Respondent was
obligated to rest only on the last note received from Dr. Webb on October 29. But
this is virtually the same as saying that the very act of sending Gillikin for re-
examination suffices to prove the unfair labor practice, and that regardless of what
his condition may have been at that time, the Company still had no choice but to
retain, the employee. I wonder would the General Counsel have maintained such
a position if Dr. Morey had found that in fact Gillikin's condition had so deteriorated
as to endanger his life on any kind of work. If his theory of the case does not
require that logical extension, I do not see how I can replace Dr. Morey's profes-
sional opinion with my own.
It was to support this rather extreme assertion that the testimony of Nobles,
Lawrence, and York was introduced. As a layman I think of Lawrence's broken
arm and York's backbone fractures as frightening and severe injuries. I cannot say
with authority, however, that after Lawrence's arm had been in a cast, and after
Nobles had undergone corrective surgery for his slipped disc, these men were in
no worse condition than Gillikin was in November. York was 11 weeks in the
hospital, and I have no notion what was done to him, or how his condition there-
after compared with Gillikin's. For such significant analogies I would have to have
expert medical testimony. Certainly I am not qualified to assess the relative severity
and disabling effects of these injuries after medical treatment as against Gillikin's
"herniated intervertebral disc." The Respondent called Dr. Webb as its witness,
but the General Counsel, speaking as Gillikin's attorney, claimed the doctor-patient
privilege and" thus made it impossible to weigh whatever expert opinion Dr. Webb
might have offered against that of Dr. Morey. I accept, therefore, the fact that
Gillikin was unable to do even whatever light work might have been available,
except at the risk of more serious damage to his back. Viewing the situation of
the moment in this posture, the Company's request that Gillikin settle for work-
men's compensation payments until he could reassure the Company with further
medical advice, appears, on its face at least, as a reasonable thing to do.
On the question of whether there was light work available there is only generally
vague and conflicting testimony. Gillikin said that the labeling machine is used
"practically every day." It also appears, however, that there were other employees
who at that time were unable to perform regular work ("seven or eight with back
injuries" according to Nichols) and whom the Respondent was trying to accom-
modate. Further, while conceding the company policy of doing all it could to keep
injured workmen on the payroll, Plant Manager Edwards also said that the Com-
pany acts "in accordance with the doctor's wishes." And Plant Superintendent
Nichols added: "That mill has got to run. I'm allowed so many men; we run
behind if we're on light duty." Other partially disabled workmen besides Gillikin
were sent to Dr. Morey about the same time for physical checkups.
712-548-64-vol. 142-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS
In most instances an employee 's appearance as a General Counsel witness in a
Board complaint proceeding against an employer is in furtherance of activities on
behalf of the Union . In others he may be an unwilling witness under subpena, and
therefore possibly reveal himself as opposed to the Union . Section 8 (a) (4) of the
Act makes it illegal to discriminate against an employee because he has "given testi-
mony under this Act." In distinction, Section 8 (a)(3) proscribes discrimination
"to encourage or discourage membership in any labor organization ." It follows that
before a finding of violation of Section 8 (a) (3) can be made something more need
be shown on the record than the mere fact of the employee having given such testi-
mony. Restated : a violation of Section 8(a) (4) is not ipso facto also a violation of
Section 8 ( a)(3). In the case before me if the fact of Gillikin 's having testified at
the November 7 hearing were excised from the record , there would be no affirmative
evidence whatever of any . union activities by Gillikin, or, of necessity , of any knowl-
edge by the Respondent of such behavior . I cannot find , therefore , that the evidence
as a whole supports the complaint allegation that there occurred a violation of
Section 8 (a) (3) on November 19 when Gillikin was sent home.
I also find that the evidence in its entirety, including those facts which tend to
favor the allegation of illegality urged in the complaint and those which offset the
proposed inference , does not satisfy the burden resting upon the General Counsel
to prove the case with a preponderance of the evidence . The most incriminating
fact appearing is that the Respondent decided to have Gillikin reexamined anew
only 5 days after he testified . While it is true his testimony was relatively innocuous,
he was at that time the beneficiary of the Company 's largesse and the officers could
well have felt that his was an act of ingratitude , and therefore deliberately set out to
find a way to cut him off from the Respondent 's generosity . It is still true, how-
ever , that he was in fact disabled , that the only medical evidence received shows
that his continued employment , even in so-called light work , would have made
possible permanent or more serious injury to his back , that others were sent for
examination by the company doctor at the same time , and that all this establishes
affirmatively , at least prima facie , a reasonable explanation of the Respondent's
actions. Of greatest significance , in my opinion, on the question of whether an
illegal motive may be inferred , is the total absence of any mention of dissatisfaction
or resentment by company representatives over Gillikin 's appearance as a witness
or any statement which might be construed , even indirectly , as revealing animosity
towards him for such conduct . And I also think it only fair , in this as well as
any unfair labor practice case , to consider the fact that of the many employees in
the plant the only one said to have suffered illegal discrimination at the hands of
the employer was not shown to be a union adherent at all ; indeed , so far as this
record shows, he may have been completely indifferent to its success or failure.
I am unable to conclude , in the total circumstances , that the Respondent chose to
have him prove his claim for compensation through the regular channels of work-
men's compensation procedures because he gave testimony under the Act. Accord-
ingly, I shall recommend dismissal of the complaint in its entirety.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions , I recommend that the
complaint herein be dismissed in its entirety.
Jay's Food Center, Inc., d/b/a Jay's Sparkle Market and Retail
Store Employees Union Local 880, AFL-CIO. Case No. AO-59.
June 19, 1963
ADVISORY OPINION
This is a petition filed on May 14, 1963, by Retail Store Employees
Union Local 880, AFL-CIO, herein called the Petitioner, for an
Advisory Opinion in conformity with Sections 102.98 and 102.99 of
the Board's Rules and Regulations, Series 8, as amended.
142 NLRB No. 142.