Dayton Tire and Rubber Co. v. N.L.R.B.

• Decision Date: 17 January 1979
• Docket Number: No. 77-1106,77-1106
• Citation: 591 F.2d 566
• Parties: 100 L.R.R.M. (BNA) 2549, 85 Lab.Cas. P 11,062 The DAYTON TIRE AND RUBBER COMPANY, a Division of Firestone Tire and Rubber Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 566

591 F.2d 566

100 L.R.R.M. (BNA) 2549, 85 Lab.Cas. P 11,062

The DAYTON TIRE AND RUBBER COMPANY, a Division of Firestone Tire and Rubber Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1106.

United States Court of Appeals Tenth Circuit.

Argued Aug. 11, 1978.

Decided Jan. 17, 1979.

Edward E. Soule, Oklahoma City, Okl., and Thorley C. Mills, Jr., Akron, Ohio, and Lytle, Soule & Emery, of counsel, Oklahoma City, Okl., for petitioner.

Paul J. Spielberg, Joseph A. Oertel, John S. Irving, John E. Higgins, Jr., Carl L. Taylor, Elliott Moore, attorneys and counsel, N. L. R. B., Washington, D. C., for respondent.

Before McWILLIAMS and BARRETT, Circuit Judges, and COOK, District Judge. ^*

H. DALE COOK, District Judge.

The petitioner in this case, The Dayton Tire & Rubber Company (Dayton) seeks review of an order of the National Labor Relations Board (Board), 227 NLRB No. 128, requiring it to reinstate, with back pay, Paul Grammont (Grammont), an employee of Dayton's found by the Board to have been discharged in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (29 U.S.C. §§ 158(a)(1) and 158(a)(3)). The respondent Board has cross-petitioned for enforcement of its order.

The administrative record before us reveals the following sequence of undisputed facts. On January 2, 1974, Grammont injured his back during the course of his employment with Dayton as a tire builder, a job that requires rather strenuous physical exertion. Grammont was hospitalized for a short time and was unable to return to work until the following May. On Friday, May 3, Grammont was examined by an orthopedic surgeon, who concluded that he was capable of returning to work. Grammont was advised by his attorney not to report for work until he received a medical report from the examining physician. The physician notified Dayton of his conclusions on May 3, but his report was not received by either Grammont or his attorney until May 10. Pursuant to his attorney's instructions, Grammont did not return to work on Monday, May 6. At the end of the day on May 8, Grammont was discharged by Dayton, allegedly for violating a company rule prohibiting three days of unreported absence. Unfair labor practice charges were subsequently filed against Dayton, based in part upon Grammont's discharge. A hearing on those charges was held before an administrative law judge on July 9-11, 1974, at which one of the issues for determination was whether Grammont was discharged because he failed to return to work or because of his union activity.

On July 15, 1974, prior to the decision of the administrative law judge, the State Industrial Court of Oklahoma conducted a hearing on Grammont's claim for benefits under the Oklahoma Workmen's Compensation Law, arising from his injury of January 2, 1974. On July 17, the State Industrial Court trial judge found that Grammont had sustained a 27.5 per cent permanent partial disability to his body as a whole and awarded him compensation for a total of 137.5 weeks. (R. 1102) That order was affirmed on August 28, 1974 by the State Industrial Court, sitting en banc. (R. 1104)

The decision of the Board's administrative law judge was issued on September 4, 1974. The judge found that Grammont was the leading union adherent among the voting unit employees and that Dayton knew of his involvement with the union. For that reason, Dayton was hostile toward Grammont and entertained a strong desire to discharge him because of his union activities. The judge concluded that Grammont's discharge was motivated in significant part by Dayton's animus toward him because of his union activities and was therefore in violation of 29 U.S.C. §§ 158(a)(1) and 158(a)(3). The administrative law judge recommended that the Board order Dayton to make Grammont whole for any loss of earnings suffered by reason of the discrimination against him and to offer him immediate and full reinstatement to his former position, or to a substantially equivalent one. (R. 1274-1275) On March 13, 1975, the Board affirmed the findings of the administrative law judge and adopted his recommended order as its own. (R. 1302-1303)

Dayton refused to reinstate Grammont, taking the position, which it maintains to this date, that the determination of disability made by the State Industrial Court of Oklahoma relieved it of the obligation of complying with the Board's order, for the reason that Grammont's physical condition was such that he was incapable of performing his job adequately. The Board responded by issuing a Notice, on March 5, 1976, (R. 1304-1305) and Amended Notice, on March 10, 1976, (R. 1306-1307) of a hearing to determine the merits of Dayton's reasons for refusing to reinstate Grammont. That hearing was held on May 25, 1976. On August 23, 1976, the administrative law judge found that the Industrial Court award was not determinative of the issues before the Board and that, under the circumstances of the case, Grammont should be given an opportunity to attempt the performance of his former job. The judge also found that, in view of Grammont's disability, Dayton's liability for back pay should not begin until July 17, 1974, the date of the Industrial Court award, and recommended that the Board reaffirm its order of March 13, 1975, modifying only the commencement date of back pay liability. (R. 1311-1318) On January 11, 1977, the Board affirmed and modified its prior order as recommended by the administrative law judge. (R. 1326-1327) It is that order of the Board which is now before this Court for enforcement and review.

In its petition for review, the petitioner does not challenge the validity of the Board's underlying finding of a discriminatory discharge in violation of 29 U.S.C. §§ 158(a)(1) and 158(a)(3), and that issue is therefore not before us. Petitioner challenges only the remedy ordered by the Board, contending that neither the reinstatement order nor the date selected for commencement of back pay liability is supported by substantial evidence on the record considered as a whole. Dayton's primary argument is, as it was throughout the administrative proceedings, that the order of the State Industrial Court of Oklahoma relieves it of the obligation of complying with the Board's reinstatement order.

In reviewing a final order of the National Labor Relations Board, this Court has the authority to " . . . enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board. . . . " 29 U.S.C. §§ 160(e) and (f). See also N. L. R. B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). The findings of the Board with respect to questions of fact are conclusive if supported by substantial evidence on the record considered as a whole. 29 U.S.C. §§ 160(e) and (f); N. L. R. B. v. Pipefitters Local 638, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1 (1977).

Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," (citation omitted) and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. (citations omitted)

N. L. R. B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939). See also Singer Company v. N. L. R. B., 480 F.2d 269 (10th Cir. 1973). Substantial evidence is evidence furnishing a substantial basis in fact from which the fact in issue can reasonably be inferred. N. L. R. B. v. Okla-Inn, 488 F.2d 498 (10th Cir. 1973). While the substantial evidence test controls our review of the Board's factual determinations, we also have the responsibility of assuring that the Board's decisions are reasonable and fair. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); St. John's Hospital & School of Nursing, Inc. v. N. L. R. B., 557 F.2d 1368 (10th Cir. 1977); Pioneer Drilling Co. v. N. L. R. B., 391 F.2d 961 (10th Cir. 1968).

Upon a finding of an unfair labor practice, the Board has the authority " . . . to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act . . .." 29 U.S.C. § 160(c). The Board's power to select a remedy is a broad discretionary one, subject to limited judicial review. Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). The Board's remedial order should not be disturbed unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act. N. L. R. B. v. Rutter-Rex Manufacturing Co., Inc., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969), Rehearing denied 397 U.S. 929, 90 S.Ct. 895, 25 L.Ed.2d 109 (1970); Fibreboard Paper Products Corp. v. N. L. R. B., supra; Love Box Co. v. N. L. R. B., 422 F.2d 232 (10th Cir. 1970). The policies subserved by the National Labor Relations Act include the promotion of industrial peace, the prevention of unfair labor practices and protection for victimized employees. Golden State Bottling Co., Inc. v. N. L. R. B., 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); N. L. R. B. v. Warren Company, Inc., 350 U.S. 107, 76 S.Ct. 185, 100 L.Ed. 96 (1955); Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). In furtherance of those policies, an order requiring reinstatement and back pay is aimed at restoring the economic status quo which would have existed but for a company's unlawful discharge. Golden State Bottling Co., Inc. v. N. L. R. B., supra; Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718 (1946); Phelps Dodge Corp. v. N. L. R. B., supra.

REINSTATEMENT

The...