Schreiber Materials Co.

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1457 (N.L.R.B. 1984)

SCHREIBER MATERIALS CO.
Schreiber Materials and Cartage Company and
Local 150, International Union of Operating
Engineers, AFL-CIO. Case 13-CA-19857
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 September 1981 Administrative Law
Judge J. Lee Benice issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,1 and
conclusions only to the extent consistent with this
Decision and Order.2
The judge found that the Respondent violated
Section 8(a)(1) of the Act by discharging employee
Jose Oliva because he filed and would not relin-
quish a workmen's compensation claim.
The judge found, and we agree, that Oliva acted
alone and for his own benefit in filing his work-
men's compensation claim. Relying on the Board's
decisions in Alleluia Cushion Co., 221 NLRB 999
(1975), and Krispy Kreme Doughnut Corp., 245
NLRB 1053 (1979), enf. denied 635 F.2d 304 (4th
Cir. 1980), the judge found that the Respondent's
discharge of Oliva violated the Act.
In our recent decision in Meyers Industries, 268
NLRB 493 (1984), we held that the activities of a
single employee will not be found to be "concert-
ed" within the meaning of the Act, unless they are
engaged in with or on the authority of other em-
ployees. In so doing, we overruled Alleluia Cushion
and its progeny and cited the Fourth Circuit's
opinion in Krispy Kreme in which the court held
that the filing of an individual workmen's compen-
sation claim was not concerted activity within the
meaning of the Act. Accordingly, for reasons fully
set forth in Meyers, we shall dismiss the complaint
in its entirety.
I Respondent has excepted to some of the judge's credibility findings.
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In view of our decision herein, the General Counsel's motion to
strike portions of the Respondent's brief and the Respondent's motion to
reopen the record are moot and are hereby denied.
268 NLRB No. 225
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
J. LEE BENICE, Administrative Law Judge: The
charge in this case was filed on April 28, 1980, by Local
150, International Union of Operating Engineers, AFL-
CIO. On June 20, 1980, the complaint issued alleging
that Respondent violated Section 8(aXl) of the Act by
discharging an employee, Jose Oliva, because he engaged
in protected concerted activities. Respondent, in its
answer, denies that it has committed any unfair labor
practices.
A hearing was held before me in Chicago, Illinois, on
January 26-28, 1981. Posthearing briefs have been filed
by the General Counsel and Respondent.
The case presents these issues: whether Oliva was dis-
charged because he filed (and refused to withdraw) a
workmen's compensation claim and, if so, whether his
prosecution of the claim was protected concerted activi-
ty.
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is engaged in the distribution and sale of
construction materials at a facility at Chicago, Illinois.
During a representative 1-year period it purchased and
received at its Chicago facility goods and materials
valued in excess of S50,000 directly from points outside
the State of Illinois. I find that Respondent is an employ-
er engaged in commerce within the meaning 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 Facts
1. In general
Oliva was employed by Respondent as an operator of
a front-end loader. On October 10, 1979, he filed a work-
men's compensation claim alleging that his back, legs,
and arms had been injured on September 13. A notice of
this claim reached the Company on November 6 and was
handled (as all such claims are) by E. Gauthaman, the
personnel manager. Gauthaman was suspicious of the
claim and investigated the matter because it appeared at
the time that Oliva had never reported any injury to the
Company or lost any time from work. In the course of
the investigation, which he worked at, off and on, for a
number of days, Gauthaman checked with Oliva's two
supervisors, with the dispatcher, and with the company
president, John Grafft.
On November 11, 5 days after Gauthaman received
the notice of the suspicious-looking claim, Grafft ap-
1457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proached Oliva in the yard, accused him of urinating on
the front-ernd loader, and sent him home. Each of the
principals has his own version of this incident, and there
were no other witnesses.
Grafft testified that he observed Oliva from a distance
of 500 feet, as the employee stood up in the loader,
placed one foot outside the cab onto the machine, and
urinated toward the ground. According to Grafft, he
could see from where he sat how the wind was deflect-
ing the stream of urine onto the side of the loader and
into the cab where Oliva would later have to sit, and
Grafft was sickened by what he saw. He claims thats
Oliva continued to urinate in this manner for more than
a minute, and was still at it when Grafft drove up to the
spot and interrupted him. Grafft claims that he then
scolded Oliva for not using the washroom, asked him to
"Please clean the machine and get out of here," then
changed his mind and said "Punch out and get out of
here."
Oliva testified that he urinated directly onto the
ground while standing with one foot on the ground and
one on the very high bottom step of the loader (because
he was in a hurry to get back to work), 2 then returned
to the cab, looked into his rear view mirror before back-
ing up, and saw Grafft approaching. According to
Oliva's version, Grafft accused him of urinating on the
machine, Oliva denied it, and Grafft told him to park the
machine and go home.
Yard Superintendent Adell Haynes testified that he
saw the machine shortly afterward, did not smell any-
thing, but did see some spots of water on the side.
According to Oliva's further testimony, after the
above incident in the yard, as he was walking out of the
company garage on his way off the site after having de-
layed his depature for a time, Grafft again drove up,
opened his vehicle door, said that he had heard that
Oliva was suing him, demanded that Oliva sign a paper
relinquishing his workmen's compensation claim, and
then, without more, drove off. Grafft denies that the in-
cident ever took place.
Oliva took no action which in any way suggested that
he would be withdrawing his claim, and a certain ambi-
guity remained for a time concerning his employment
status since, under any version of the initial incident in
the yard, Graift had not made it altogether clear wheth-
er the employee was suspended or discharged. So, short-
ly after the incident, Carl Davis, the business representa-
tive who services the contract between Oliva's union and
Respondent, spoke to Grafft about it, 3 over the tele-
phone, and was told that Oliva had not been fired and
would be called back. However, shortly after that,4 in a
He also stated earlier in his testimony that the distance was "certain-
ly not less than three hundred fifty, four hundred feet."
s Respondent contended that a person would have to be a contortionist
to be able to do this because the step was more than 3 feet above the
ground. However, the record is not that clear concerning the height of
the step. It could have been somewhat lower, but not so low as to make
such a position anything but awkward. Jt. Exh. 2.
s Davis was uncertain about the date, but certain that it was shortly
after the incident in the yard.
4 Again, the precise time is not of record.
conversation in Grafft's office, Grafft told David that
Oliva was discharged. The company records show a dis-
charge on November 11. 5
From the fact that Grafft, at the time he sent Oliva
home, did not make it clear that Oliva was fired, and
from the fact that he later told the union representative
that Oliva was not fired and would be called back, I find
that Oliva was not fired on the spot, but was suspended,
only to be discharged shortly afterward.
On November 23, his investigation complete, and
having reported his conclusions about the claim to
Grafft, Gauthaman sent a letter to the insurance carrier
expressing his view that Oliva's workmen's compensation
claim was "blatantly false" and "worth fighting." After
that, and at least 3 weeks after the incident in the yard,6
Oliva and Grafft had a conversation in the parking lot
next to the company office building, witnessed from a
distance by Gauthaman, who could not hear what was
said. Again, their versions vary.
Oliva had gone there to try to get his job back. Ac-
cording to his testimony, he went about it by asking
Grafft about his status; Grafft then accused him of dis-
loyalty in filing a false workmen's compensation claim;
and, later in the conversation, Grafft said "you wanted
the reasons and this is the reason that I am firing you."
According to Oliva, Grafft became very loud and angry.
In Grafft's version of the conversation, he portrayed
himself as calm throughout, even cordial, at first, and
sympathetic, but also firm. He stated that he patiently ex-
plained that he was firing Oliva because of the employ-
ee's lack of respect for machinery; that he mentioned
earlier problems he had with Oliva; and that then, al-
though sympathetic, he turned Oliva down, whereupon
Oliva asked if he was being fired because of the work-
men's compensation claim. Grafft maintains that this was
his first knowledge of the claim. Gauthaman testified that
the conversation was neither calm not cordial, but that
both parties were loud and used "heated" words and ges-
tures.
After the conversation ended, Gauthaman approached
Oliva and asked what had happened. Oliva then asked
him whether the Company had opposed his unemploy-
ment insurance claim.7 Gauthaman answered affirmative-
ly. Oliva then stated, in effect, that if they were going to
give him a hard time on his unemployment insurance
claim, he would give them a hard time before the Na-
tional Labor Relations Board or any other agency that
s At the Schreiber site, urinating in the yard was frowned upon and
was never knowingly done in front of supervisors. Urinating within sight
of the women in the office (which Oliva did not do) was regarded much
more seriously. Urinating upon machinery had no precedent. Other types
of abuse of equipment were handed by discussion with the operator.
Except for Oliva, the only operators ever fired were probationary em-
ployees.
6 Gauthaman testified that it came at the end of November or begin-
ning of December; Oliva remembered it as I to 1-1/2 months after No-
vember I 11; and Grafft could only remember that it was before the end of
the year. Respondent, on brief, takes the position that it was "a few
weeks" after November II. There can be little doubt that it was after
November 23.
7 Apparently, when Oliva learned earlier he had been fired, he filed an
unemployment insurance claim.
1458
SCHREIBER MATERIALS CO.
would entertain the matter. He said that he would make
them spend a lot of money for lawyers.
The insurance carrier eventually settled Oliva's work-
men's compensation claim. The terms of that settlement
are not of record.
2. Credibility findings
Concerning the urination incident itself, both of the
principals appear to have distorted the facts somewhat in
support of their positions,s but even in Oliva's own ver-
sion of the incident, he conceded that he was in contact
with the machine when he urinated. Since he was admit-
tedly in contact with the machine, but almost certainly in
some position less favorable to his case than the ridicu-
lous one he professed to have assumed, it is likely that he
was standing somewhere on the tractor when he urinat-
ed. And Haynes, who testified that he saw spots of water
on the side of the loader, gave every impression that he
was a truthful witness. So I am persuaded that Haynes
did see spots of water on the side of the loader, and that
those spots were Oliva's urine. I find that Oliva urinated
on the machine, and that Grafft, seeking him, reacted by
sending him home. I note that, under such a finding,
Grafft's conduct during this incident appears far more
natural, rational, and easy to comprehend than under a
finding which gives more credit to this position of
Oliva's testimony.
Turning next to the alleged second incident in the
yard, which Grafft denies ever occurred, but in which
Oliva claims that Grafft drove up, demanded that Oliva
sign a paper relinquishing his claim, and then drove off
without further explanation and without waiting for a re-
sponse of any kind, I find that the event as recounted by
Oliva is a bizarre one, but that his story is, upon reflec-
tion, not so implausible that it may be rejected on that
basis alone. The actions which Oliva's testimony at-
tributes to Grafft could well have been part of a precon-
ceived strategy to pressure Oliva into seeing his lawyer
about dropping the claim. Or they could easily have
been triggered by Grafft's having consulted promptly
with Gauthaman (in order to report Oliva's suspension)
only to learn that Oliva had filed a fraudulent-appearing
workmen's compensation claim. Likewise not altogether
implausible, although very odd, was Oliva's testimony
about Grafft's having referred to a "paper" to be signed
without Grafft having expressly indicated where or
when Oliva was to execute the document, and without
having waited for a response. Grafft might well have
said it approximately as Oliva related it; or Oliva's testi-
mony might simply reflect his subsequent recollection or
interpretation of a simple demand from Grafft to the
effect that Oliva take the necessary steps to see that the
claim was released. Oliva's spoken English was very
poor-he cannot read English at all-and his ability to
understand and, at a much later date, restate accurately,
8 Oliva's claim that he chose so awkward a position, with one foot on
an extremely high step, because he was so anxious to return to work,
goes beyond anything I can accept as credible. Likewise, it seems im-
probable that Grafft could have discerned as much detail, at a distance of
500 feet, as he claims, or that (as Grafft insisted) Oliva, a young man,
would have urinated for so long a time before Grafft interrupted him.
certain expressions that had legal ramifications, was pre-
sumably limited.
Because I am persuaded that this portion of Oliva's
testimony may not be rejected out of hand, and because
there is no other testimony to shed light on what hap-
pened, a determination as to whether the alleged second
incident was fabricated by Oliva or falsely denied by
Grafft must depend heavily on the credibility of the two
individuals. And an assessment of their credibility first
requires an analysis of the evidence relating to their final
encounter in December.
Grafft's testimony about the December meeting ap-
pears to be false in two important respects. Grafft testi-
fied that he had no knowledge of the claim prior to this
meeting. However, the meeting took place after the
Company's November 23 letter declaring the claim to be
"blatantly false," and Gauthaman testified that he had
consulted with Grafft about the claim as a part of the in-
vestigation which led to the letter and had told Grafft
about his conclusions before he sent the letter. I credit
this portion of Gauthaman's testimony. It makes sense
and, because Gauthaman was employed in the manage-
ment of Respondent when he testified, it is all the more
likely that his adverse testimony was truthful. Thus, it is
clear that Grafft was made aware of Oliva's claim before
the December meeting. And the Company did not see so
many workmen's compensation claims that Grafft could
have so quickly forgotten about one that appeared to be
fraudulent.9 So he was testifying falsely when he stated
that he was unaware of the claim until Oliva brought it
up at the December meeting.
I also credit Gauthaman's testimony where it conflicts
with Grafft's over the character of the meeting and the
nature of Grafft's conduct at the meeting.'0 Here I find
that, contrary to Grafft's testimony, his conversation was
not calm, but loud and angry.
Thus, I find that while the December conversation be-
tween Oliva and Grafft was an angry one at which
Grafft knew from the beginning that Oliva had filed a
workmen's compensation claim, Grafft falsely testified
that he remained calm throughout, never angry, and that
he was ignorant of the claim until Oliva mentioned it
there for the first time. Such behavior on Grafft's part
strongly suggests that he also lied about the remainder of
the conversation and was concealing his knowledge of
the claim because the claim was the real reason Oliva
was fired. It is certainly difficult to devise any other ex-
planation for his false testimony concerning his knowl-
edge of the claim. In addition, such false testimony con-
vinces me that, between Oliva and Grafft, the latter is by
far the less credible witness. Even though both witnesses
have shown a willingness to slant and distort the facts
concerning small but important details (Grafft, for exam-
ple, with his claims to have seen details beyond the limits
of normal vision, and Oliva, for example, by revising his
true position on the loader in order to place himself
closer to the ground where he would have been less
9 R. Exh. 4 shows a total of eight claims filed dunng 1979 and 1980.
'O Again, it is very unlikely that this management employee would tes-
tify untruthfully against his superior. Grafft, on the other hand, had
reason to testify falsely and has shown himself willing to do so.
1459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
likely to get any urine on the machine) only Grafft is
shown ever to have resorted to a complete falsification
of such major proportions, when he totally misrepresent-
ed the entire character of his last conversation with
Oliva as well as his all-important knowledge of Oliva's
claim. Nowhere in the hearing was it demonstrated that
Oliva had a proclivity for fabrication on so large a scale.
Accordingly, with respect to the alleged second incident
in the yard (where one of the two witnesses has neces-
sarily provided totally false testimony about a major
event) and with respect to the last conversation between
Grafft and Oliva (in which Oliva claimed, and Grafft
denied, that Grafft gave, as the reason for firing Oliva,
Oliva's disloyalty in filing what Grafft considered to be a
false workmen's compensation claim) I find Oliva to be
the more credible of the two witnesses, and I credit his
version of those events.
B. Concluding Findings
Based on the foregoing findings, the following picture
emerges of the events at the Schreiber site.
Oliva, caught in the act of urinating on a front-end
loader, was summarily suspended and sent home by
Grafft, who did not tell Oliva clearly whether he had
been suspended or discharged, but instead left the matter
unclear. Oliva delayed his departure from the site and
was met again by Grafft who shouted a warning that
Oliva should withdraw his workmen's compensation
claim. Oliva never indicated to Grafft what response, if
any, he would make to that demand, and never did any-
thing to relinquish the claim. Shortly afterward, he was
discharged. Later, at their December meeting outside the
office building, Grafft told Oliva that he had been fired
for the disloyal act of filing a workmen's compensation
claim judged by management to be false.
From the foregoing findings, I conclude that Respond-
ent suspended Jose Oliva for the act of urinating on a
front-end loader, then discharged him because he had
filed, and would not relinquish, his workmen's compensa-
tion claim.
In filing his claim, Oliva was admittedly alone and
acting for his own benefit. However, the Board has
treated the activities of individuals as being concerted,
9ven where undertaken alone and for the immediate ben-
efit only of the individual himself, if undertaken pursuant
to a statute which benefits all employees. Alleluia Cush-
ion Ca, 221 NLRB 999 (1975) (involving a complaint
under the California Occupational Safety and Health
Act); Santa's Bakery, 249 NLRB 1058 (1980) (a claim
with a state agency for back overtime wages); Self Cycle
d Marine Distributor Co, 237 NLRB 75 (1978) (claim for
unemployment compensation); and King Scoopers, Inc.,
222 NLRB 1011 (1976) (claim with the Equal Employ-
ment Opportunity Commission and Colorado Civil
Rights Commission). This Board policy was specifically
applied to protect an individual filing a workmen's com-
pensation claim in Krispy Kreme Doughnut Corp., 245
NLRB 1053 (1979), enf. denied 635 F.2d 304 (4th Cir.
1980). The Board in Krispy Kreme noted that, by refusing
to withdraw a workmen's compensation claim, an em-
ployee refuses to be denied (and, by example, refuses to
permit other employees to be denied) access to work-
men's compensation which is provided for the benefit of
all employees. Thus it is clear that Oliva's prosecution of
his workmen's compensation claim was protected con-
certed activity and that, by discharging him because of
it, Respondent violated Section 8(aX1) of the Act.
III. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that Respondent be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
As I have found that Respondent unlawfully dis-
charged Jose Oliva, I shall recommend that Respondent
be ordered to offer him immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent job, without prejudice to his seniori-
ty or other rights and privileges. I shall further recom-
mend that Respondent be ordered to make him whole
for any loss of earnings he may have suffered as a result
of his discharge by payment to him of the amount he
normally would have earned from the date of his dis-
charge until the date of Respondent's offer of reinstate-
ment, less net earnings, to which shall be added interest
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977)."
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By discharging Jose Oliva because of his protected
concerted activities, Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Sections 8(a)(l) and 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
II See generally Isis Plumbing Co., 138 NLRB 716 (1962).
1460