Dayton Tire & Rubber Co.

D)AYTO(N IRt & RI tBBFR CO Davyton Tire & Rubber Co. and United Rubber, ('ork. iinoleum & Plastic Workers of America, AFI[- CIO-CLC. Case i6 CA 7164 June 25. 1979 D[)ECISION AND ORDER BY CHAIRMAN FANtN(; ANt) MI!MlBiWRS JNKINS AND) NIIRPIIY On February 14. 1979. Administrative Law Judgce John M. Dyer issued the attached Decision in this proceeding. Thereafter. the Charging Party filed ex- ceptions and a supporting briefi and Respondent tiled an answering brief. Pursuant to the provisions of Section 3(bh) 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 and the at- tached Decision in light of the exceptions and briclk and has decided to affirm the rulings. findings. and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 complaint be. and it hereby is, dismissed in its entirety. DECISION SIAIMENI ()F tlil ( CASI JoHlN M. DYI)R. Administrative Law Judge: On April 21. 1977. United Rubber. Cork. inoleum & Plastic Workers of' America. AFI.CIO CLC. herein called the Union. filed a charge against Dayton Tire & Rubber ('o.. herein called the Company or Respondent. alleging that Respondent had ter- minated Geary Myers because of his union actliities in vio- lation of Section 8(a)(1) and (3) of the Act. The Regional Director. on November 3. 1977. issued a complaint alleging the discharge of Myers as violative of Section 8(a)( I) and (3) of the Act. Respondent's timely answer admits the alle- gations of the complaint. including the termination of Myers. hut denies thai it violated the Act bhy an of' its actions. stating that Myers was terminated for proper cause. All parties were aflbrded full opportunity to appear. to examine and cross-examine witnesses, and to) argue orallk at the hearing held in Oklahoma ('its. Oklahoma on March 17 and 18. 1978. Respondent and the General Counsel sub- mitted briefs which have been considered. he question here is whether Myers' known union activilt played a part in Respondent's decision to terminnte him. here is insufli- cient eidence to demonstrate that any unlion activities or procliities ol' Myers entered into the decision it) terminate him and. consequently. I will dismiss the complaint. On the entire record in this case. including the exhibits and testimoni. and on nmy evaluation of' the reliahility oft the witnesses based on the evidence and testilmons. I make the following: FINI)IN(s ()I At I I. ( O)MINR1i I I NIIN(iS ANI) I sI()N SIA IS Respondent is a corporation with its principal headquar- ters in Ohio and maintains and operates a plant in Okla- homa ('Is. Oklahoma. where it manufactures and distrib- utes tires. During Ille past ear it recei ed goods and materials valued in excess of $50.000 directls fronl outside the State of' Oklahoma at its Oklahoma ('its plant. and shipped from that plant goods and materials alucd in ex- cess ofi $50.000 directl to customers outside the State of' Oklahoma. Respondent admits. and I find. that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) o' the Act. 11. 111 Al ili) t Ni AIR I AltIR P'RA( I I A. Background and/ I'r/mdipulcd Faluxr Respondent's Oklahoma C(itx plant enmplos. according to the charge. over 1.0(X) employees. Automobile and truck tires are made ;it the plant and the ,ast mnijority of employ- ees are hourly paid. Tires are individuall b built bh tire builders and then in- spected before they are cured or cooked hby green tire in- spectors. Respondent attempted to align the green tire in- spectors more closely with management by placing them in a salaried category and giving them somewhat different benefits from the hourly-paid employees in the production and maintenance unit. Respondent felt that if they were more closely aligned with management their judgment in inspecting green tires might he more independent and their decisions would be hetter ior the ('ompany's interests in the long run. Despite Respondent's efforts to have green tire inspectors set apart from the production and maintenance unit, the Board decided in 1973 that they were properly a part of he P & M unit despite the differences in method of pai and fringe benefils. At the relevant times 0. A. Jones was the plant manager: Robert Bates was the personnel manager: Jerry Reber was the salaried personnel representative in the personnel de- partment: Philip McC(owan was the manager of saf'ty and plant protection: and Dr. R. R. Dugan. who was in the Department of Occupational and Industrial Medicine of McBride Clinic, was Respondent's physician. In his oh. a green tire inspector such as Gieary M!ers would inspect more than I ,XX) tires during a shift. ilting the tires. checking them. putting them in another machine. and later onto racks. It w as while placing a green tire in a rack on June 9. 1975. that MNlers iound himself in an awk- a;lrd] position a lnd heard sollmelhing pop n his hback When 243 NLRB No. I DECISIONS OF NATIONAL I.ABOR REL.ATIONS BOARD) it happened, he was bent over and said he could not straighten up for more than a half hour. When he did, he went to the dispensary where heat was applied to his back and he thereafter went home. Myers had been working for the Company since 1970. starting as a maintenance store clerk. He moved to the sala- ried position of a green tire inspector several years prior to 1975. Myers was active in a union campaign which culmi- nated in an election in June 1975 and was also active in a second campaign which ended in a union election in No- vember 1976. The union was unsuccessful in both cam- paigns. Respondent stipulated that it knew Myers was ac- tive in the union. His name was one of 44 names which were given to the Company by the Union on June 20, 1975. as being voluntary organizers for the Union with the state- ment that there were other unnamed voluntary organizers in the plant. There was no evidence offered of any independent 8(a)( I) violations. In regard to animus, the General Counsel cited 206 NLRB 614 (1973), in which the Board found that Re- spondent violated Section 8(a)(1) and (3) at this plant. Re- spondent pointed to the fact that since that time there have been some charges filed but, with one exception, only one complaint issued and that case was dismissed so that there have been no findings of unfair labor practices at this plant in the interim. On June 10, 1975, Myers called the dispensary from his home, saying his back was hurting and asked for an ap- pointment with Dr. Dugan. At the McBride Clinic Myers was X-rayed and examined by Dr. Dugan who told him that he was wearing his back out, that he needed to slow down. Myers stated he asked Dr. Dugan about light duty and that Dr. Dugan replied that the Company did not like light duty, and he was not put on it. Myers received some muscle relaxants to be taken orally at bedtime and went back to work on his regular shift that afternoon. He told his supervisor, Hollis, that he was going to take it a little easy for a week or two until he got rid of' the pain and his stiff- ness. Hollis made no comment. Myers said that about 4 weeks later he was called to Safety Manager McCowan's office where he was shown a letter diagnosis of his condition by Dr. Dugan. This docu- ment noted his pains and stated that he had progressive lumbosacral narrowing when his X-rays taken when he started with Respondent were compared to the recent X- rays. To the doctor this suggested chronic degenerative lumbosacral disc disease in a particular area since the disc space had narrowed. McCowan suggested that since there was a disease prob- lem Myers should file a regular insurance claim and not file a claim for workmen's compensation. When Myers dis- cussed the procedure with another person in the personnel department. he was told he would have to say the occur- rence of the injury was away from work. Myers went back to McCowan, said he could not say that the injury hap- pened away from the plant, and asked for a copy of' Dr. Dugan's report for his personal physician, a I)r. I)enton. but was not given one. Myers said he tried a number of different times thereafter to get a copy' of' Dr. Dugan's diag- nosis sent to his personal physician, but was turned down. Myers continued to work at his job. In May or June 1976. Myers consulted attorney Soko- losky and a workmen's compensation claim was filed for him with the State Industrial Commission. In the interim Myers said he learned to work around the problem with his back and was lifting tires properl). Sokolosky made an apointment for Mvers with Dr. S. J. Polk who examined Myers on June 23, 1976. and on June 29 sent a letter to Sokolosky giving his evaluation. After detailing his examni- nation and X-ray studies. I)r. Polk's summary and conclu- sions were as follows: This 35 year old male patient shows slight degenerative joint disease of his lower spine. hips, and also shows a subluxation at the lumbosacral joint which may be a developmental weakness of the lower back or may be traumatic. He also shows signs of chronic sprain to the lower back. Based upon the history presented, this has either been caused or aggravated by the injury of June 9, 1975. 1 do not believe that treatment at this time will significantly reduce his degree of permanent disability. He should by way of further treatment be on work that would involve a minimum of heavy lifting and avoid work requiring prolonged bending. Hie should he on anti-inflammatory arthritis drugs and he should engage in a loss of weight program lowering his weight to a more ideal level which would also help. Other than these procedures, I don't know of anything that would be of value. In conclusion, he has in my opinion, twenty per cent (20 ';) permanent partial disability to the body as a whole, based upon his capacity to per- form ordinary manual labor and arising out of injury sustained on the job on June 9. 1975. Myers testified Respondent informed him that he had an appointment with Dr. Dugan on July 22. Dr. Dugan exam- ined Myers at the plant dispensary and said he had received a copy of Dr. Polk's report and basically it was the same as his except that Polk had attached a disability to the injury'. According to Myers, Dr. Dugan said that if the Company took Dr. Polk's report rather than his, there was a good chance that Myers would be out on the street and he hated to see that happened to someone at Myers' age. Following his examination by Dugan. Jerry Reber talked to Myers about signing an insurance form which stated that the injury happened off-plant. According to Myers, Reber said Myers could then draw disability insurance which the salaried employees had. When Myers refused, he was told that he was on sick suspension without pay at that point. Myers contacted his attorney. Sokolosky. and informed him of the events and Sokolosky filed fr a hearing date with the state industrial court. Reber later told Myers that he had sick leave and vacation coming which would carry his pay through August 23. The state industrial court hearing was held on August 25. Prior to the hearing, Myers had been directed by Respon- dent's insurance carrier to [)r. Edwin Rice for a physical examination in the Orthopedic Department of McBride Clinic. Dr. Rice's examination and conclusions were that there were no paricular problems with Mers and he thought Myers could continue working. Also, prior to the state industrial court hearing. Myers sought to return to work by telling l)r. Dugan and I)r. Rice's conclusions and asking D)r. l)ugan for a release to return to work. I)r. I)u- 2 )\Y I()N I RI & RI: BBR (CO() gan rote a release ,C saying ers coutId sarl back to) ork (on lightll dut: r 2 weeks and glradualll get ack to his regular work. Myers gave the mnedical release to Salel D)i- rector lMcC(owan who refused to pt Msers ba;ck to work priol to the olrknle n's comlpensation hearllIg. On October 7 the state industrial court issued its order determining that Myers had sustained a 1() percent permia- nent partiial disaility to his hody a:s a whole alnd was enti- tled to coompensation fr 50 weeks at $50() per week for total )f $2.500. Sometime after the parties receied the rul- Ing. Myers received a check for $2.60() front the ('onlpanll lie contacted Mc('owan who said that the extra $10()0 ;as for releasing the C'ompany from an y further liabilit due to the injury. Myers refused to accept the check and a subse- quent check in the proper amount was issued to him. Mers thereafter contacted the ('ompany and asked Re- her whether he could return to work. Reber said he was not sure and Myers was put in touch with MNc(Couall who told him that they could mnake o decision at tht time, hutl would want a release from l)r. Polk before lie could come hack to work. Myers testified that he conitacted Dr. Polk's office and was told that l)r. Polk onlk offered opinions on in juries and that it would be up to the attending physician whether he should return to work or not. lie contacted Respondenl and Personnel Manager Bates told Myers to get a explanation of what )r. Polk meant b "prolonged bending and hefty lilfting." it was not until December 7 1976, that Myers got [)r. Polk to write on the bottom of his June 29. 1976. letter the following: "'Minimum hefty lifting' avoid lifting weight in excess of 30 pounds. 'Prolonged bending' work that would involve bending in excess of one-fifth of the time." In the interim Myers had been to Dr. I)enton and [)r. Rice and had secured from each of them releases so he could go hack to work. These were presented to McCowan who said he would only accept a release from Dr. Polk. When My!ers presented the copy of the letter with Dr. Polk's handwritten definitions to Dr. Dugan, Reher, and Brooks, he asked them to make a decision on whether he could return to work under company policy 1.15.1.' Myers stated he told them he felt the state industrial court's finding of a 10 per- cent disability was not the same as Dr. Polk's finding of a I Company policy 1.15 I states he following: ('asc Decrided by the Industrial Court. AN EiMPI OYF WOM TF STAll' IDI SIRIAI ( RI D)l IRIiNI S O( lAX I SSIAINUiD A JOB RE AtD PIIYSI AI I IMI IIN INJi RY R 11 NESS THAT RSIt trD IN A PERMANENI PARIIAI I)ISABII.IIY 111I AGAIN I FAI LAIEI) BY O I R NI)NISRIAI. PIIYSI [AN. HIIS FIN)IN(IS 11 I Rl- RE- D [i) 10 W'SRiiN¢ AND W I IN( I I D I IMI IIN I-A( IORS i)ITLERMINID BY TIE MPI OY S M-DI AlL. FOI DER AND ()OPIS DISIRIBI rFi) AS PR-[:I- OlS Y SATFDI I NDER rl(l- PARA(iRAPHi DAI IN(i kIltt t il INII SIRI I PHYSICIAN S RI SPONSIHI IiTY. Industriral Relations Deparlment Responsibilitie.. (I) THIE INDUSTRIAI. REI.AIIONS MANAG(-MENI 55A11 R I:' 1111 RE- SIRI(TION SPECIFIED BY TIlE INDUSIRIAI PIIYSI( IAN. NI) AY)NI Fl- S DEEMII) Nt ESSARY 10 AS(EFRAlIN WHAI WORK. IF ANN'. IN TIH PANT W Hl( 11 ( AS BE PERFORMEI) BY HE EMPI OYFIE. A SAR( I1 WH L TIIEN REF(iN TO D-IERMIN i WHETHER OR NOT TIIE INV()I it) I-MPI OYEF (AN PRF)RM ANY W'ORK THAT IS AVAII ABlE Al rl IE Iill PIIYSI( Al I IMI- TATIONS ARE DEII:RMINIt). (2) IF NO 'ORK IS TEN A :AILABIE 'HIi( I itI- MPI.(YEE (AN PER- FORM. Ills EMPI(OYMENI 'WILI BE S SPENDED. PENI)IN(; IHF AVAII ARII- I1Y OF A JOB Wll( II lH ( AN PRFORM. IF NO St (ll JOB BE(OMIS AVAII - ABLE WAITIIIN SIX MONIIIS AFIER HE SU:SPNSION ()F HIS FMIt IOYMINI. AIl REINS'IAIIMNI RHIE;lrs WILI. TiRMINATIE. 20) percent disabilit. Nlers was inlilmailig to t them that the restrictions placed hy l)r. 'Polk were too low and that he felt that he was better than that. Brooks told him that the pol- icy did not sai which doctor's opinion the Company would considel. that such wits a lmatter of policy. Responldent. through testimony and by a lumber of nlemoran;da. indicated that in a number of contacts with Mxers it had told Myers that it needed a medical upidate lt'f his status from Dr. Polk and a definition ofl "prolonged hbenlding and heli lillting.''" On )eceniber 14, Mc('owan NWrote Myers, attaching a copy of a letter front [)r. [)ugan suggestiig that Myers be reexamined by [)r. Polk to get a current opinion of' his medical restrictions. he letter con- tilnued: This apparently is being recommended as you do not feel the restrictions imposed hb Dr. Polk aire up to date. By copy of this letter. I a authorizing )r. Polk to provide at Cornpany expense the exaination as re- quested b [)r. I)ugan. Please contact )r. Polk's office and make necessary arrangements to get this exammnina- tion. M sers stiated that he contacted Dr. Polk's office aid wasth told that he would not be reexamlned unless there was a further aggrax ation of' his injury. lie reported this to the C('olpain and was told that answer wais not good enough. but that if this was Dr. Polk's policy, Myers should get his attlorney to intercede with D)r. Polk and if the doctor contin- ued to refuse, that Sokolosky should so inform Respondent by a letter. Myers called Sokolosky who apparently told him a letter was being prepared. When the Company had not received it. Myers went by Sokolosky's office and got a typed letter which stated that it was Sokolosky's under- standing that )r. Polk would not reexamine a claimant un- less there was some aggravated injury. McCowan told Myers this letter did not provide what he had asked for. Mc('owan. 4 days later on January 28. 1977. wrote Dr. Polk requesting a re-examiiation of Myers. The letter sta ted: I am requesting you to examine one of our employ- ees. Mr. Geary Myers. noting any physical condition which would restrict his employment. If there are re- strictions, please be specific as to lifting over specific weights, repeated bending. stooping. squatting, climb- ing or any activity that could aggravate his pre-existing back condition. Dayton Tire & Rubber Company will be responsible for any reasonable charges involved in this examination. Please notify me in writing regarding when you will conduct this examination as we cannot permit Mr. Myers to return to work in our factory until we are assured he can be properly placed. On January 31. Dr. Polk replied to McCowan. setting an appointment fior Myers on February 21. Respondent called Myers to notify him of this appointment and confirmed it by letter on February 1. Myers was examined by Dr. Polk on February 21 and, on March 7 Dr. Polk wrote a report to McCowan. The report noted that Myers continued to have pain in his lower back which radiated to his hips but not into his legs and that Myers said if he worked bent over for 3 I)I.( 'ISI()NS ()1 NA ItNAI A.()R RIl Al IO()NS BO()ARI) as long as 25 to 30 minutes, lie had dilliculty straightening up and has hack pains for I or 2 days. In the doctor's report, Myers had said he could carefully lilt a weight of 5s) pounds from floor level to waist level and set it down with- out trouble. The report went into the X-ray studies and physical examination and the fllowing summar was given: Sl'ttnntarl v and ( 'olc11r.siolsv. My opinion regarding the degree of dlisabhility and rec- ommendations on Mr. Meyers remains the same as re- flected in my report dated June 29. 1976, that is, he has, in my opinion, twenty per cent (2 0 %() permanent partial disability to the body as a whole: that his work assignment should require a minimum of' heav lifting. that is. avoiding lifting weights in excess of thirty to thirty-five pounds: should eliminate duties that would require prolonged bending, that is, working in a stooped position in excess of' ten to ifi'teen minutes per hour and not in excess of three minutes at a time. Fur- ther management should include weight reduction to approximately 180 to 190 lbs. and the use of' anti-in- flammatory arthritis drugs to delay or prevent arthritic changes at the site of his injury. Thank you for letting me see this patient again. On receiving Dr. Polk's letter report. McC(owan said he reviewed the green tire inspector's job and knew that some of the tires weigh in excess ofl 35 pounds, that the job re- quired prolonged working on the line lifting the tires, and determined that Myers could not do the job based on the restrictions. McCowan indicated to the personnel depart- ment that Myers was disqualified from employment by rea- son of the restrictions on his ability to work. This recom- mendation was sent first to Reber. Personnel Manager Bates testified that after receiving Dr. Polk's letter and discussing it with McCowan, he discussed it further with Reber as to whether there was any salaried position open in the plant that Myers could perform. Reber reported to him that there were no such positions open. On April 13, 1977, Bates wrote Myers, stating that Dr. Polk had continued the restrictions on Myers' ability to work and that under those restrictions it was obvious that Myers could not perform the work of a green tire inspector and since they did not have any job opening which he was physically able to perform, they were terminating his em- ployment and he was eligible for a severance award. Upon receiving this letter, Myers asked for a review of his dismissal by Respondent and was given such a hearing on May 3, 1977. In the interim, on April 21, the Union filed the instant charge. According to a memoranda prepared by Plant Manager Jones of the discharge review procedure, two green tire inspectors, Keller and Bohn, were present as advisors from that department, along with the Company's controller and the secretary who taped the session, and they heard from Myers, Reber, and Bates. Myers told the group his story, and Bates and Reber amplified it from their knowledge of the problems. Jones summarized the testi- mony that the physical restrictions were kept on Myers and that after Dr. Dugan reviewed Dr. Polk's report, he advised that under those restrictions Myers should not be permitted to work at the green tire inspector's job because the work requirements were more demanding than would he allowed by those restrictions. Alter the commiittee heard rom Myers Bates and Reber. they were excused and the group discussed the matter. Myers testified that he understood that the Iwo green tire inspectors constituted part of'a committee and that the vote had been 2 to I against him. lie further testified that one of' the two green tire inspectors had been ver, much antiunion. Bates testified that the green tire inspectors were present merely to assist and give their opinions, hut that there was no voting procedure since the decision was solely thai o(f the plant manager. The memorandum prepared by Jones states that the green tire inspectors agreed with Jones that the job restrictions were too severe to allow (ieary Myers to con- tinue in that job. Myers was inflrmed of that decision. B. Parlie.vi' Po viion., ,.> alv.s., inld ( 'ot Ch.IsitolS The (;eneral ('ounsel claims that Respondent's histor of being found guilty of an unfair labor practice, plus the fact that Myers was a union adherent and protagonist whom the ('ompany knew to be active for the Union, provides suftli- cient animus together with some claimed discrininatory ac- tion to show that his termination was, at least in part. caused by Respondents' antipathy toward the Union. Respondent denies animus toward the Union, pointing to the fact that there has been no finding of any violation committed by it since 1973 despite the fact that there were other charges filed in the interim. Respondent notes that there are no allegations that it has violated Section 8(a)( ) and no allegations of other discriminatory conduct to indi- cate that it had any animus toward employees' union activi- ties. As part of its claim, the General Counsel states that Re- spondent treated Myers disparately since he was not as- signed light duty as hourly employees were when they were recuperating from an injury and as a green tire inspector named Denis was. Respondent asserts that there is no such thing as perma- nent light duty and agrees that it has given temporary light duty to hourly-rated employees. It states that it is not its policy to give temporary light duty to green tire inspectors or any other salaried employees and, though it appears that two weeks of light duty of' an hourly-rated job was given to green tire inspector Denis. that such was an error by the Company. There was no showing that any employee had permanent light duty, which Dr. Polk's restrictions would have meant. The General Counsel claims that there was disparate treatment in that company policy 1.15.1 provides that where an employee is physically disabled from a job, the Company is to suspend the employee for 6 nonths, pending the availability of a job he can perform, and if' none be- comes available, the employee's reinstatement rights are terminated. The General Counsel claims that this policy is applicable to salaried employees as well as hourly since when Myers told Respondent that he was seeking reinstate- ment under that policy, nothing was said about that policy being inapplicable to him. Respondent claims that policy 1. 15.1 is applicable only to hourly-rated employees and not to salaried employees. In 4 I)AYI()'ON IRI & RK BilR (. this regard, when this claiml wa;s made al tile beginning ot the Ihearini. .Responlldent's counsel said i hl ; Sel'ate' p11oll- cies tor sal;iriCd Cllpl,)\CCe whiCli h wIre Cntillll;i1ed i i sCIA;- ralle persolnnl i;ltial andll so labeled. Respolldent111 :ls ad- ised I to mike such ;isailhle sinice Ithis appeared to be ; crucial point. Respondent prosided polico I 8.4 ihrouh 1.8.9. stating hilla such cmill r11 111 ils lritd i'esioncl 1;111;11i. hilIt didl not provide the mnlual itself or ;i coVCIr hl,A ing hal; this was fronl suchl a n1a;iliI. 'Ihe docu iIent providedl h Re- spondenl does iolt sat;i oil its i'ce that it is froil such a manual. 'I'he title o the docuiment is '(' onliiutiot ('onl- pally Service ('redil and Pension Sevice ('redil" inil dloes not pro ide whelther it s applicable to hourl -rale;lCd eliplo- ees or salalried emplo)ees or holh. I'r Iron the titls ole the Is o documents. it is entiely possible thIa; the two policicis orer diflerent areas of' personnel policv alnd are not mtulllll exclusive. In this same regard the (ieneral ('ounsel c1;iillh that i1t 1 inconceivable that with tile large aInl(lt l0' lturnlover at Respondent's plant that a job woilid lot he ;ilai;lhle Ior Myers. Respondent points oui that its ala ried personneil are not such a large nlumber of persons tt ai the vasit l;ljor- ity of employees are hourly r;lted and tha the selioltl system in tle hourlY-rated secoti(,n souldi precil a salaried employee fromt humping int o such sections. Respondent maintains that all hourly -rated personlnel ire hilred in the lowest labor category and that if it attemptled to put lrs in any other category, it would have legitimnat protesla- tions from hourly-rated employees who hild scniorit in that system. It further maintains that the physical] restric- tions placed tin Myers would prevent himl from taking an entrance labor grade. The General C'ounsel had ni)thing to rebut Respondent's statements. It is clear that the ('om- pany, in its review of the medical limitations on Myers. did follow the policies laid out in 1.15.1. This is not to say thatl there might be the same or similar policy established for salaried employees i there is a different personnel manual provided for them. In her brief,: the General ('ounsel states: "The unrebutted evidence is that Myers was actually physicallyi capable of performing his job at all times material herein." Apparently this statement is based on the fact that Myers did perform his job for some 13 to 14 months alter his injury. tlowever. the performance of his job does not mean that Myers did not have any physical problems while performing the job. The medical evidence provided both by the General ('oun- sel and Respondent is that Myers had a progressive degen- erative disc disease and had pain and soreness as a result of his physical movements. Dr. Polk's March 7 1977. exami- nation states the following: "Patient states that he contin- ues to have pain in his lower back below the beltline radiat- ing to both hips but not into the legs." The report states that Myers had continued to exercise and hope to improve his back, but had back pain if he worked bent over for 25 to 30 minutes and had difficulty straightening up. It states that Myers said he could "carefully lift the weight of 50 pounds going from floor level to waist level then setting the load down without trouble." But [)r. Polk's conclusions state that with the 20 percent disability to the body which he found. that Myers should not lift in excess of 30 to 35 pounds anid should avoid benhing for mnore than 3 miinutes at a time or in excess of' 1) to 15 minutes per hour. I lhe indicatioi froim D)r. Polk's report is that the degenerative disc dlisea;se Is still presenl. 'I lihe ieneral ('oiunsel's claim is rebhulled h, all the niedi- cal esidence, including that of I)r. Polk who as Myers' phlsici;ln r lie' sworknii'n's coinlpensation case. It was aellr the ltlding bh the tale induIstlrial court thillt there sas a pernalltellt 1I) percent disability to M\\crs that Respondent ollred M ers a check tor $2.(t)4 ). a stlit ot $10 over the arnltill provided hby the court. When M'1 ers asked what this was lotr. he was informled hb, Respondelt that the extra $1S ( was In pay nment for and ;,1s lteaitn litr a release h Mycrs of Resplondl t t'rllM amn f tirther- ;lhilit ilue t) l;llt njur\. Mers relused to accept the extra $1(X). in eftlec not relea;sing Responident froIln ;il trlhcr dlilal;ge he ight sller as ;ii ag;vatiol to that ilntury alil Re- spundent honoretd his request hb then givlng hl tl ;a check lor the aou tlnt of' 2,5() he discharge iICterierv Inlenorandullttill ritt h b I Plant Mlanager Johnson recites that I)r. l)ugain studied I)r. Polk's March 7. 1977. report and ;idvised Resp nlden that. he- cause of' the restrictionls on Myers bh Polk. Mers not hbe pctlilltted t dlo the green tire inspectilng joh hecause the work was more lmandinig than would be pClrmlitted with those physical restrictions. Iollowing this recolllnlenldatioln. Respondent determined thlat there was nothing else avail- able at that time and terminated il witli seerance pa;. This is renminliscenlt (f Dr. l)ugatn's statement to Mers in July 1976 alter the original assessmenlt (of Myers' physical conldition hb) r. Polk..At that time Dr. Dugan said that Polk's report wlas about the same as his except that Polk attached disabhilit, to the injury and that i the ('ormpany took Plk's report rather than his. there %was a good chance that Myers would "bhe ut ot the street" and that he hated to see suich a thing halilppen t)ll a person of MNers' age. This stateent hb I)r. )ugan was hascd solely on the physical inahility to perlorni wrork alnd permanent damnlage to the person's hbtd, not on anllthing connected with union ac- tisvity). It is clear tha tlie only possibility where the ('ompan\ may not have treated Myers equally with tither employees is in not providing a 6-nionth period in which he could he reinstated to another position which he was physically able to perfitrm. However. Respondent claims that this was not available to Myers because it is not a provision enjoyed hy salaried employees. but only by hourly-rated employees. It stated that salaried employees are given severance pay- ments whereas hourly-rated employees are not. There is nothing to disprove Respondent's claim, as the General Counsel offered no evidence to indicate that at any time this 6-month provision was ever made available to a sala- ried employee. A finding of a violation made almost 4 years previous the events in this case does not present a picture of Respon- dent's animus towards unionism or such antipathy to the union activities of its employees as would allow me to find that the termination here was because of M'ers' union ac- tivities. The evidence demtonstrates that Myers under the state industrial court's deterniination. had a permanent physical disability and under his doctor's testimlon on Dt('ISIONS OF' NAI IONAI I.ABOR REI.A'IIONS BOARD which such finding was at least based in part, Myers work activities had to be restricted. Against the background of' those restrictions, Myers could not physically perftirm the task of' the job without violating those restrictions and pos- sibly subjecting his body to further damage or which Re- spondent would be liable. Under these circumstances, Myers was terminated. I am unable to find that this termination in these circum- stances was because of Myers' union activities. Undoubted- ly Myers has suspicions, as may the Charging Party. that Myers' union activities played a part in that termination, but such suspicions do not amount to evidence and. accord- ingly. I will dismiss the complaint. On the foregoing facts and conclusions, I make the li)l- lowing recommended: ORI)ER2 The complaint and charge in this matter are hereby dis- missed. 2 In the event no exceplins are filed as provided h) Sec. 102.46 of the Rules and Regulations of the National L.ahor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted hb the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed alived for all purposes. 6