Farrens Tree Surgeons, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farren's Tree Surgeons, Inc. and Stephen F. Parr. Case 12-CA-9828 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On July 15, 1982, Administrative Law Judge Richard J. Linton issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. In its exceptions and brief, Respondent requests that it be awarded attorney's fees pursuant to Tiidee Products, Inc., 194 NLRB 1234 (1972), and the Equal Access to Justice Act.' Under Tiidee Products, the Board may order certain extraordi- nary remedies, such as the payment of attorney's fees, if it determines that a party has engaged in frivolous litigation. See also Heck's Inc., 215 NLRB 765, 767-768 (1974). We cannot conclude that the present case constitutes frivolous litigation. We note that the Administrative Law Judge's ultimate conclusion that Respondent did not violate the Act was based, in part, on his credibility resolution with respect to the testimony of Stephen Parr. If the Administrative Law Judge had viewed the evi- dence differently or had made contrary credibility findings, a violation of the Act may have been es- tablished. As for Respondent's request for attorney's fees under the Equal Access to Justice Act, we find that it is premature and otherwise not in compli- ance with the procedural requirements for applying for an award of fees and expenses as set forth in Sections 102.143 through 102.155 of the Board's Rules and Regulations, Series 8, as amended. 2 Ac- cordingly, Respondent's request for fees and ex- penses under the Equal Access to Justice Act is not properly before us and we will not consider it at this time. 5 U.S.C. § 504. 2 For example, Sec. 102.148(a) of the Board's Rules and Regulations states that an application for an award of fees and expenses must be filed within 30 days after the entry of the Board's final order in a proceeding 264 NLRB No. 90 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge: This case was heard before me in Jacksonville, Florida, on April 1, 1982, pursuant to the October 9, 1981, complaint issued by the General Counsel of the National Labor Re- lations Board through the Acting Regional Director for Region 12 of the Board. The complaint is based upon a charge filed August 25, 1981, by Stephen F. Parr (Parr or the Charging Party) against Farrens Tree Surgeons, Inc. (Respondent or Farrens).' In the complaint, the General Counsel alleges that Re- spondent violated Section 8(a)(1) of the Act by unlawful- ly interrogating employees through a certain question on its employment application form, by threatening employ- ees with unspecified reprisals if they elected to pursue protected activities, and violated Section 8(a)(1) of the Act by discharging Parr on August 16, 1981, because he filed a workmen's compensation claim. 2 By its answer, Respondent admits certain factual mat- ters, but denies that it has violated the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the brief filed by Respondent, and the General Counsel's motion to dismiss the complaint, I make the following: FINDINGS OF FACT I. JURISDICTION A Florida corporation headquartered in Jacksonville, Florida, and doing business in De Land, Florida, and in various States outside Florida, Farrens is engaged in the business of providing tree removal and tree cutting serv- ices to public utilities and other customers. During the past 12 months, Respondent furnished services valued in excess of $50,000 to customers at points located outside the State of Florida. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. TIHE ALLEGED UNI AIR LABOR PRACTICES A. Procedural M.atters At the close of the hearing, the due date for briefs was set for May 4, 1982. Thereafter, counsel for the General Counsel requested that the time in which briefs could be Sua sponte, I have spelled "Farrens" as shown, thereby deleting an apostrophe, in order to conform the spelling of Respondent's pleadings and the documentary evidence. 2 All dates are for 1981 unless otherwise indicated. 668 FARRENS TREE SURGEONS, INC. filed be extended until June 4, 1982, because of "recent developments." Respondent had no objection. By order dated April 28, 1982, the due date for briefs was ex- tended to June 4, 1982. In his May 28, 1982, motion, counsel for the General Counsel requests that I "Approve Withdrawal of Charge, Dismiss Complaint and Terminate Proceeding." Attached to the motion is a withdrawal request signed by Parr on May 16, 1982. In his motion to dismiss, and after summarizing the complaint allegations, counsel for the General Counsel asserts: 3. The Complaint allegation (par. 4)3 relative to interrogation through the use of questions on the employment application concerning the exercise of the right to file Worker's Compensation for an on the job injury was predicated upon the theory that an Employer inquiry into an employee's past exer- cise of concerted, protected activity on an applica- tion form without a legitimate and substantial busi- ness justification is a violation of Section 8(a)(1). On April 13, 1982, just 13 days after the hearing closed in the instant proceeding, the Board issued its decision in Ohio Brass Company, 261 NLRB No. 18 in essence holding that an inquiry into an appli- cant's history of personal injury was one the em- ployer was privileged to ask. Accordingly, General Counsel is bound by the decisions of the Board and this allegation of the Complaint cannot be sustained. 5. Charging Party has now been made aware of the Board's decision in Ohio Brass, supra, and does not wish to pursue the matter further and has re- quested withdrawal of the Charge. Counsel for General Counsel, in view of the limited impact of the case and the fact that organizational rights are not involved, would recommend approval of the withdrawal request tendered and attached to this Motion. Counsel for the General Counsel concludes by request- ing that I approve the request to withdraw the charge, "Dismiss the Complaint and Terminate Proceeding." In addition to its 42-page brief of June 3, 1982, ad- dressing the merits of the case, Respondent has filed its motion, dated as its brief, responding to the General Counsel's motion to dismiss. Farrens contends that the 3 Complaint par. 4 reads: "Since on or about February 26, 1981, Re- spondent, acting through David O'Quinn, has interrogated employees about their concerted protected activities by maintaining and enforcing an employment application which questions employees about their past protected concerted activities." Respondent's employment application form (G.C. Exh. 2; Resp. Exh. 2a) contains, as question 15 (Have you ever) "Drawn Workmen's Com- pensation? -- If yes, descnbe --. " After the General Counsel rested, counsel for the General Counsel ad- vised that his evidence in support of complaint par. 4 is question 15 of Respondent's employment application form. complaint "should be dismissed in its entirety with preju- dice" and that such dismissal, based upon the arguments set forth in its brief, "should constitute a complete and final adjudication upon the merits .... "Finally, Re- spondent asserts: 4. By agreeing to a post-hearing dismissal of the Complaint in its entirety, Respondent does not waive and hereby preserves its right to recover the substantial costs and attorneys fees incurred in de- fending this matter. Respondent concludes its response with the request that I dismiss the complaint in its entirety "and award costs and attorneys fees to Farrens." I deny Respondent's motion that I grant costs and at- torneys fees. To the extent that such is based upon this proceeding, neither the facts nor the law warrants such an award. If the request is based upon other authority, it is premature. I hereby grant the General Counsel's motion to dismiss the complaint-but only as to paragraph 4. As for the balance of the complaint (par. 5, threat of reprisals, and par. 6, discharge of Parr), I shall dispose of them as to the merits. B. Complaint Dismissed Complaint paragraph 5 alleges that on or about May 28, 1981, "Respondent, acting through David O'Quinn, at the Charging Party's residence, threatened an employ- ee with unspecified reprisals if its employees elected to engage in concerted protected activities." Complaint paragraph 6 alleges that on or about August 16, 1981, Respondent "discharged Charging Party because he filed a Worker's Compensation claim." The General Counsel's only witness was Parr. Re- spondent called Parr, Director of Safety Gene Osborne, Claims Manager George Mecke, General Foreman David O'Quinn, and Foreman Grady Alan McGhee. At the hearing, I observed the witnesses closely. The demeanor of Parr was unsatisfactory and unpersuasive, and I find him to be an unreliable witness. In contrast, the demeanor of Respondent's witnesses was persuasive and I credit them.4 The gist of Parr's testimony regarding complaint para- graph 5 is that on May 28, 1981, O'Quinn came to Parr's home, where Parr was resting in bed following his having sustained an on-the-job injury to his right knee, and asked Parr if there was any way Parr could return to work and just flag traffic so O'Quinn would not have to fill out the workmen's compensation forms. O'Quinn denies making such a request. Because of O'Quinn's more persuasive demeanor, and based upon the record evi- dence, I credit O'Quinn. Finding that O'Quinn did not make the statement, I shall dismiss complaint paragraph 5. Respecting Parr's discharge, it is undisputed that on August 16 Parr telephoned O'Quinn and advised that the 4 This is not to say that I credit every minor detail of their testimony over Parr. But I do credit them in all substantial and material respects over Parr. 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doctor had released him (following surgical repair of Parr's knee) to return to work on August 17. O'Quinn told Parr that his services would no longer be needed and that he was terminated for having falsified his em- ployment application by stating therein that he had never incurred a prior back injury. Parr admits he answered the application question (number 16, "Ever injured your back?") in the negative, and testified: Q. Well, have you ever had a back injury? A. Nothing I never considered an injury, no, sir. Q. Did you ever have any-have you ever had any problem with your back at all? A. No, not really, no. Parr then testified that he did not consider a back strain, incurred while working for the Florida Highway De- partment in 1975, to be a back injury, and that the doctor on that occasion simply told him to apply a hot pack to his back and rest. Respondent contends that, as of Parr's August 16 ter- mination, it had received a report (Resp. Exh. 12a) from an insurance adjusting company that Parr had sustained a back injury in December 1978 and was "again seen in April 1979 for his back." Osborne and Mecke testified that the decision was made that Parr be terminated for falsifying his employment application (as to no prior back injury), a dischargeable offense, and for in fact having a history of back injuries. The record reflects that these grounds are supported by a consistent past prac- tice. Osborne credibly testified that Parr would never have been hired had Respondent known of his prior back injury. Although it could be argued that the report Respond- ent had received on Parr which led to the decision to terminate was less than substantial, and the decision to terminate therefore in bad faith (i.e., because Parr had filed a workmen's compensation claim), I credit Osborne and Mecke that the decision was based solely on the two considerations listed above. Moreover, the record re- flects that Respondent's decision is consistent with Re- spondent's past practice. Finally, the testimony makes clear that the nature of Respondent's work performed by employees such as Parr is very heavy and very danger- ous. It therefore is understandable why Respondent has an absolute rule not only against hiring anyone with a history of back problems, but also firing someone already on the payroll when it discovers that he has such a histo- ry.5 In light of the foregoing, I shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent has not violated the Act as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The complaint is dismissed in its entirety. 5 As Farrens did with employee Jimmy K Haggard on April 11, 1981 (Resp. Exh. 9c; Mecke). e In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 670