Pacific Intermountain Express Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Intermountain Express Co. and Ronald G. Sizelove. Case 32-CA-1319 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On September 17, 1980, Administrative Law Judge David P. McDonald issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions 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 only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent discharged Ronald G. Sizelove be- cause of his protected activities, thereby violating Section 8(a)(1) of the Act. Respondent has except- ed to that finding arguing that Sizelove was dis- charged for cause and not because of his protected activities. We find merit in Respondent's excep- tions. 2 As more fully set out in the Administrative Law Judge's Decision, Sizelove began working for Re- spondent in 1961. With the exception of a 5-month period, from February 14 to July 5, 1978, during which he worked on the company dock, he was employed as a truckdriver up to the date of his dis- charge on August 9, 1978.3 On February 17, Sizelove was made a member of Respondent's safety committee. As such he so- licited complaints from the other drivers regarding safety defects at the worksite. These complaints were passed on to either Gordon MacKenzie, the terminal manager, or Dan Knowles, the freight op- I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In reaching our conclusion that Sizelove's discharge did not violate Sec. 8(aX)1), we find it unnecessary to pass on the Administrative Law Judge's findings and conclusion with respect to Sizelove's appeal to and the decision of the California Department of Industrial Relations, Divi- sion of Labor Standards Enforcement, regarding his discharge. In addi- tion, we note that, although Sizelove's discharge was grieved by the Union and apparently presented to an arbitrator, the parties in this case did not develop a record of any consequence concerning that arbitration and its result, nor did they litigate the issue of whether deferral to such arbitration was appropriate. s All dates are in 1978, unless otherwise noted. eration supervisor, for correction. Dissatisfied by what he considered to be Respondent's failure to correct the safety hazards at the terminal, Sizelove looked to the California Department on Industrial Relations, Division of Industrial Safety (CAL- OSHA), for assistance. On March 1, Sizelove filed a list of 21 complaints with that agency. A CAL- OSHA compliance safety engineer inspected Re- spondent's terminal on March 8. Seven safety cita- tions were issued. Sizelove filed a second complaint with CAL-OSHA on April 24 alleging that Re- spondent had not corrected the previous defects. A second inspection took place at the terminal on April 26 after which the compliance safety engi- neer issued four citations. MacKenzie expected safety problems at the ter- minal to be handled in-house and was angry that complaints were being filed with CAL-OSHA. In early March, after the first CAL-OSHA inspection, he remarked to shop stewards Durham and Quintal that he could not tolerate CAL-OSHA complaints and wanted to know who made the complaints. By late April, after the second CAL-OSHA inspection, MacKenzie discovered that Sizelove was the em- ployee who had filed the complaints. He sum- moned Durham and Quintal to his office and yelled that he was not going to tolerate Sizelove going to CAL-OSHA and that he was going to get "the dirty son-of-bitch" if it was the last thing he did. About this time Quintal also had a conversation with Knowles in which Knowles stated that the Company could not tolerate the CAL-OSHA com- plaints. Sizelove was not a model employee. His work record with Respondent is replete with incidents of insubordination, vehicle accidents, and issuances of intent to discharge and intent to discipline for vehi- cle accidents. In addition, Sizelove's numerous in- juries on the job (for which workmen's compensa- tion claims were filed) required treatment and in some instances physical therapy. After an injury while working on the loading dock in 1969, lie began a regimen of physical therapy that lasted almost 9 years. For many years the physical ther- apy sessions took place three times a week in the afternoon. This interrupted Sizelove's work and af- fected his productivity. The sessions were then re- duced to once a week in the early morning thereby allowing Sizelove to work without interruption for the remainder of the day. Respondent's policy required that an employee injured on the job could return to work only after he received a doctor's release. However, for rea- sons not made clear by the record, Sizelove contin- ued to work without receiving a release. MacKen- zie attempted to resolve what he considered to be a 264 NLRB No. 47 388 PACIFIC INTERMOUNTAIN EXPRESS CO. blatant misuse of disability benefits. He contacted Jeanette Joyce, Respondent's claims manager, in Jacksonville, Florida, for assistance. On August 22, 1977, MacKenzie received a memorandum from Joyce in which she alluded to Sizelove's extended therapy as a "big hoax" and talked of making "some strong effort to do something about the case and see if I can get Sizelove settled." Sometime later Respondent consolidated all of Sizelove's pending workmen's compensation cases and a hearing was held before Judge John D. Watt of the Workmen's Compensation Appeals Board for the State of California. The judge's award was issued on July 18 and covered Sizelove's on-the-job injuries from July 23, 1969, to May 9, 1978. The award included a proviso that "Dr. McDavid indi- cates that further treatment should be awarded on a precautionary basis." 4 Charles Shea, Respond- ent's workers' compensation counsel, informed Joyce that this provision meant that Sizelove no longer needed physical therapy. Joyce contacted MacKenzie on August 4 and told him to inform Sizelove that Respondent would no longer pay for physical therapy on company time. MacKenzie, in turn, instructed Knowles to pass this message on to Sizelove. That afternoon, Sizelove was contacted by radio and told to call the office. When Sizelove returned the call, Knowles told him that he would no longer be enti- tled to physical therapy on company time. Sizelove asked for a letter which stated this. On August 7 Knowles prepared the following letter: Dear Mr. Sizelove: Due to the recent awards made on your workmen's Compensation claim, our attorneys have advised us that P.I.E. is no longer re- sponsible to provide you with physical ther- apy. This letter is to advise you that effective today, August 7, 1978, you are no longer au- thorized to take physical therapy on company time. This will also advise you that P.I.E. will no longer pay for any physical therapy that you choose to take on your own time. Sizelove consulted with his attorney who ad- vised him that the workmen's compensation award did not preclude treatment for injuries sustained after May 9 and that Sizelove should keep his Wednesday (August 9) appointment for physical therapy since it represented followup treatment for his most recent injury of July 28. At 8 a.m., on August 9, Knowles called Sizelove and Quintal, the union steward, into his office. He read them the 4 A medical report had been prepared in connection with this case by Dr. Morrison McDavid and submitted to Judge Wallt by Sizelove's attor- ney. August 7 letter and then handed it to Sizelove asking him if he understood. Sizelove answered, "Yeah," or something like that. Knowles then said, "Do you understand that you can no longer take therapy on Company time, and that if you continue to take therapy it is at your expense? If you do take therapy, if you go to your doctor to take ther- apy on Company time, you will be terminated for gross insubordination." Sizelove did not respond directly to Knowles' warning but repeated several times that he had a doctor's appointment. At that point Quintal called the union hall and said, "Dan is going to fire Ron if he goes to therapy ... ." He then hung up and said, "Go ahead." Sizelove then asked Knowles why he did not send him home. Knowles answered, "No, you haven't done nothing yet." Sizelove responded, "Well, then you give me no choice, do you?" Knowles replied, "That's right." Sizelove left the office, hooked up his truck, and drove to his doctor's with Knowles following him. When they arrived Knowles asked him if this was his doctor's office. When Sizelove replied that it was, Knowles said, "Okay, Ron, you are fired. Give me your keys, your bills, lock it up." The Administrative Law Judge concluded that Sizelove was discharged for filing complaints with CAL-OSHA-a protected concerted activity, and not for insubordination, and thus found that Size- love's discharge violated Section 8(a)(1) of the Act. We disagree. In Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), the Board set forth a test of causation to be applied in cases alleging dis- charges in violation of Section 8(a)(3) or (1) in which the employer had a dual motive for effect- ing the discharge. First, it required that the Gener- al Counsel make a prima facie case sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. If this was established, the burden then shifted to the employer to demonstrate that the discharge would have taken place even in the absence of the pro- tected conduct. In the instant case, the General Counsel, in pre- senting his prima facie case of wrongful motive, demonstrated that Respondent was aware that it was Sizelove who had filed the complaints with CAL-OSHA; specifically MacKenzie, Respondent's terminal manager, asserted shortly after the CAL- OSHA inspection that he was not going to tolerate Sizelove's going to CAL-OSHA and that he was going to get that "dirty son-of-bitch" if it was the last thing he did. Moreover, although Sizelove's employment record throughout the years he worked for Respondent was filled with instances of 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gross insubordination it was only after he filed the complaints with CAL-OSHA that an instance of insubordination became the reason for his dis- charge. We conclude, therefore, that the General Counsel has made a prima facie showing that Size- love's protected activity was a motivating factor in Respondent's decision to discharge him. However, we also find that Respondent has met its requisite burden of proof and has demonstrated that it would have taken the same action against Sizelove whether or not he had filed the com- plaints with CAL-OSHA. As stated above, Sizelove had received physical therapy at Respondent's expense for close to 9 years. The therapy was administered during the workday depriving Respondent of Sizelove's serv- ices during this time. This was a difficult situation for Respondent. About 6 months before Sizelove joined Respondent's safety committee in February 1978, Respondent's claims officer attempted to con- solidate all of Sizelove's workmen's compensation claims so that during one final hearing a determina- tion could be made which might end the "endless therapy." This attempt by Respondent to end once and for all the expense and inconvenience caused by Sizelove's therapy had no connection with Size- love's filing of CAL-OSHA claims. Neither did the events following the workmen's compensation award. Respondent's decision to discontinue Size- love's therapy was based entirely on the award, with no reference to his membership on the safety committee or his filing CAL-OSHA complaints. MacKenzie had nothing to do with this decision, which was made by Respondent based on its coun- sel's advice. MacKenzie's role was limited to in- forming Sizelove that he would no longer receive therapy on Respondent's time and at Respondent's expense. MacKenzie turned this task over to Knowles. A confrontation ensued between Knowles and Sizelove with Sizelove asserting that he was going to therapy and Knowles stating that if he did he would be fired. When Sizelove disre- garded Knowles' admonition and proceeded to the doctor's, he was fired on the spot by Knowles who had followed him there. In these circumstances, we find, contrary to the Administrative Law Judge, that Sizelove was dis- charged because he had brazenly flouted Knowles' direction to cancel his appointment and continue working. Here was the ultimate challenge to Re- spondent's authority. There was nothing in Knowles' conduct to lead Sizelove to believe that Knowles did not mean what he said. Thus, Size- love acted at his peril and lost. We find, therefore, that Respondent has met its burden or proving that Sizelove would have been discharged even if no complaint had been filed with CAL-OSHA. Ac- cordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER ZIMMERMAN, concurring: I agree that Sizelove's discharge did not violate Section 8(a)(l) of the Act, but for reasons that differ from those stated by my colleagues. I find merit in Respondent's assertion that Spielberg Man- ufacturing Company, 112 NLRB 1080 (1955), ap- plies to the facts here and that the Board should not have considered the facts of this case, but in- stead should have deferred to the prior decision of the California tribunal. On August 9, 1978, under section 6310 of the California Labor Code,5 employee Sizelove filed a complaint with the California Department of In- dustrial Relations, Division of Industrial Safety (CAL-OSHA), claiming that he was discharged be- cause he had filed two complaints with CAL- OSHA which alleged safety violations at Respond- ent's terminal. An adversary hearing was held before a CAL-OSHA hearing examiner. Respond- ent was represented by counsel while Sizelove rep- resented himself. Respondent contended that Size- love was discharged for gross insubordination and not because he had filed the complaints. The deputy commissioner who presided as hearing ex- aminer at the hearing found that . . . Claimant [Sizelove] was notified on 8/7/78 that he could no longer take physical 5 Sec. 6310, subtitled "Retaliation for filing complaint prohibited: of- fenses," reads as follous: (a) No person shall discharge or in any manner discriminate against any employee because such employee has .. either (I) made any oral or written complaint, to the division, other governmental agen- cies having statutory responsibility for or assisting the division with reference to emploee safety or health, his employer. or his'repre- sentative, or (2) instituted or caused to be instituted any proceeding under or relating to his rights or has testified or is about to testify in any such proceeding or because of tile exercise by such employee on behalf of himself or others of any rights afforded him (b) Any employee who is discharged, threatened with discharge, de- moted, suspended, or in any other manner discriminated against in the terms and conditions of such employment by his employer be- cause such employee has made a bona fide oral or written complaint to the division, other governmental agencies having statutory respon- sibility for or assisting the division with reference to employee safety or health, his employer or his representative, of unsafe working con- ditions, or work practices, in his employment or place of employ- ment shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer. Any employer who willfully refuses to rehire, pronmote, or otherwise re- store an employee or former employee who has been determined to be eligible for such rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor. 390 PACIFIC INTERMOUNTAIN EXPRESS CO. therapy on company time. Claimant did take a company truck on 8/9/78 and take a physical therapy treatment. Defendent [Respondent] discharged him. Claimant does not deny that he went for physical therapy in violation of defendant's direct orders but contends the dis- charge was made because he filed complaints with DIS. [Division of Industrial Safety]. There is insufficient evidence to support the claimant's position and therefore no violation is found of Section 6310 of the Code. In Spielberg, the Board said that in order to en- courage the voluntary settlement of labor disputes which are cognizable under the Act, it would in the exercise of its discretion accept an arbitrator's award as dispositive of unfair labor practice allega- tions "where the proceedings appear to have been fair and regular, all parties agreed to be bound, and the decision of the arbitration panel is clearly not repugnant to the purposes and policies of the Act." Over the years, Spielberg has been followed by the Board and the courts of appeal have approved. 6 Moreover, like the doctrines of res judicata and col- lateral estoppel, Spielberg was intended to promote economy of litigation. A party having had the op- portunity to litigate an issue in one forum and who lost ought not to be permitted to try the same issue in another forum. It is clear from that portion of the commission- er's decision quoted above that in dismissing Size- love's complaint the primary elements that com- prised the later unfair labor practice case before the Board were considered. Thus, Sizelove alleged that he was fired for filing the CAL-OSHA claims. Re- spondent denied the charge and asserted that Size- love was discharged for gross insubordination. To support their opposing claims Sizelove and Re- spondent presented witnesses (most of whom testi- fied at the subsequent Board hearing) who were subject to examination and cross-examination. The hearing was conducted in accordance with the California Labor Code, was fair and regular, and met the requirements of due process. The Administrative Law Judge did not contend that the hearing before the commisssioner did not meet the Spielberg criteria but asserted that (1) the commissioner who presided at the CAL-OSHA hearing was not qualified to review a case involv- ing an unfair labor practice charge, "the 'State's ex- pertise' in this case [being] in the area of industrial safety not violations dealing with Sizelove's pro- tected activity"; and (2) that it was not the intent 6 E.g., Banyard v. N.L.R.B., 505 F.2d 342 (D.C. Cir. 1974); Associated Press v. N.LR.B., 492 F.2d 662 (D.C. Cir 1974); N.LR.B. v. Auburn Rubber Company. Inc., 384 F.2d (10th Cir. 1967), of the Board to extend the principles of Spielberg to the "decisions of the various State boards." Under section 6312 of the California Labor Code, the labor commissioner is authorized to in- vestigate complaints arising under section 6310 and in the process of investigating such complaints has built up a body of specialized knowledge and expe- rience in this area which makes him eminently qualified to hear cases involving such complaints. That the labor commissioner is expert in the area of industrial safety should not disqualify him to hear cases involving alleged unfair labor practices which arise out of the same statute. The Adminis- trative Law Judge has produced no evidence to support his thesis and I suspect that if his criteria were applied to arbitrators many would have no better qualifications to determine unfair labor prac- tice issues. In Adolph Coors Company, 208 NLRB 676 (1974), the Board was asked to consider a complaint in which an employee alleged that discipline imposed by his employer, i.e., suspension and subsequent discharge, was racially motivated in violation of Section 8(a)(1) of the Act. The issue was first con- sidered by an arbitrator (provided for under the contract which the employer had with the employ- ee's union). The arbitrator found that the employee had been suspended and discharged for cause. Thereafter the employee filed a complaint with the Colorado Civil Rights Commission under the Colo- rado Antidiscrimination Act alleging discriminato- ry motive illegal under that act. A hearing was conducted before a hearing examiner who reached the same conclusion as the arbitrator. On appeal the commission found, contrary to the hearing offi- cer, that race was one of the motivating factors or reasons for the employee's discharge. The commis- sion's decision was, in turn, reviewed by the re- gional district court which set aside the decision. The district court was affirmed by the Colorado Court of Appeals and the Colorado Supreme Court refused to grant certiorari. The Board, in Coors, dismissed the complaint and applied Spielberg, holding: In all the circumstances, we conclude that it will best effectuate the purpose of the Act to defer and give conclusive effect to the deci- sions in the proceedings before the arbitrator and under the Colorado Antidiscrimination Act. We rely particularly on the grounds that the discharge sought here to be litigated has already been the subject of extraordinarily lengthy proceedings before numerous tribunals in which it was found that the discharge was properly imposed without pretext, that these 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceedings appear to have been fair and regu- lar, and that the decisions therein were not clearly repugnant to the policies and purpose of the Act. The deference which the Board paid to the Colorado tribunals in Adolph Coors is equally appli- cable to the decision of the deputy labor commis- sioner in this case. 7 The hearing was fair and regu- lar and the commissioner's decision was not repug- nant to the Act. The Board has an obligation under the circumstances of this case to defer to the deci- sion of the state tribunal. To do otherwise would be to inhibit the voluntary settlement of labor dis- putes and the economy of litigation which was the purpose of Spielberg to promote. 7 The Administrative Law Judge acknowledged "that the effect of the Board's decision [in Adolph Coors) was to give deference to the decision of the Colorado tribunals under the Colorado Anti-discrimination Act" but concluded that it was notl the intent of the Board to extend the prin- ciples of Spielberg to the decisions of various state boards where an arbi- trator was not involved. tie does not cite cases to support this proposi- tion and, in the absence of proof that hearings under state auspices are less fair and regular (or competent) than those presided over by an arbi- trator. I conclude that they are equally acceptable and believe that the Board should so find DECISION STATE Mt NT OF THE CASE DAVID P. McDoNAI.l), Administrative Law Judge: This case was heard before me on April 26 and August 9, 1979, in San Jose, California.' The charge was filed by an individual, Ronald G. Sizelove, and a complaint was issued against Pacific Intermountain Express Co., herein called the Respondent or the Company, on December 15, 1978, by the Regional Director for Region 32. The complaint alleges that the Respondent violated Section 8(a)(l) of the Act by its discharge of Sizelove. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file briefs.2 Based on the entire record, on the briefs filed on behalf of the parties, and on my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material herein, Pacific Intermountain Ex- press Co. was a corporation duly organized under and existing by virtue of the laws of the State of Nevada, with an office and principal place of business located in Oakland, California, and a facility in Milpitas, California, where it is engaged in the interstate transportation of goods and materials by truck. Its Milpitas terminal is also referred to as the San Jose terminal. During the past 12 months, the Respondent, in the course and conduct of its All dates are in 1978, unless otherwise noted 2 All parties submitted their briefs by the deadline of October 12, 1979. business operations, received gross revenues in excess of $50,000 from the interstate transportation of goods. Therefore, I find, as admitted in the answer to the com- plaint, that at all times material the Respondent has been an employer engaged in commerce and in a business af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. I. THE ALLEGED UNFAIR L ABOR PRACTICES A. Background Ronald Sizelove commenced his employment with the Respondent as a truckdriver beginning in 1961. He re- mained in that capacity during his entire employment, with the exception of a 6-month period from February 14 to July 5 when he worked on the company dock. The motivation and reason for the transfer is disputed. Size- love testified he simply decided to volunteer to work on the docks and the transfer was solely his decision. Management questions his motivation and his recollec- tion of the facts which led to the transfer. Sizelove was involved in an accident in January, for which he was suspended for I week and informed that if he received another chargeable accident he would then be subject to discharge. When he returned from the suspension, Dan Knowles3 asked him to complete a required Department of Transportation (DQT) form, listing all moving viola- tions during the previous 6 months. Under the Depart- ment of Transportation regulations, this form must be completed by all truckdrivers. Their failure or refusal to comply results in the suspension of their right to drive. Sizelove contends he neither failed not refused to com- plete the document, he simply transferred to a job that did not require its completion. Initially, Knowles testified that Sizelove refused to fill out the form and based on this refusal he reassigned him from the driving depart- ment to the dock. Upon cross-examination, he admitted he did not have the authority to transfer Sizelove to the docks; however, he could forbid him to drive without the completed form. After consultation with the Union, it was agreed by all parties to allow Sizelove to work on the docks. On February 17, Sizelove was selected to serve as a member of the Company's safety committee, along with Paul Gaudreau, Pat Hurd, and Manny Silva. As a member of the safety committee he collected complaints from the drivers which they deposited in a box. After re- viewing these complaints he would approach either Mac- Kenzie or Knowles and request that the Company cor- rect the safety deficiency. Sizelove complained that the results from following this procedure were very poor. The Respondent argued that it provided a long-estab- lished safety procedure at the San Jose terminal by which an employee was encouraged to report all safety problems to the safety committee. MacKenzie testified that during his 3 years as terminal manager this method of reporting safety problems was utilized successfully in 3 Dan Knowles started working for the Respondent as the freight op- eration supervisor in April 1977, under Terminal Manager Gordon Mac- Kenzie. When MacKenzie left, Knowles was promoted to terminal man- ager in September. 392 PACIFIC INTERMOUNTAIN EXPRESS CO. hundreds of cases. Both Knowles and MacKenzie stated that all complaints were carefully investigated and the hazards were corrected. Since Sizelove had concluded that the Company did not always correct the hazards which were reported as prescribed by the safety policy, he decided to seek the assistance of the State of California. On March 1, he filed a list containing 21 complaints with the California De- partment of Industrial Relations, Division of Industrial Safety, which was referred to as CAL-OSHA through- out the hearing. As a result of these complaints, a com- pliance safety engineer inspected the Company's terminal on March 8 and issued seven safety citations. On April 24, Sizelove made a second complaint to CAL-OSHA, alleging that the Respondent had not remedied the previ- ously cited problems. A second inspection was conduct- ed by CAL-OSHA on April 26, which again resulted in the issuance of four citations. Gerald Durham and Edward M. Quintal have both served as shop stewards for the Teamsters Local 287, during the previous 7 years.4 In the summer of 1978, Quintal served as shop steward, while Durham assisted him as his alternate. In this capacity, they met with Mac- Kenzie, the terminal manager, and Knowles, the freight operations supervisor, on almost a daily basis to discuss problems which were of mutual interest to both manage- ment and the Union. Quintal recalled he had participated in two conversa- tions with MacKenzie, concerning the filing of CAL- OSHA's complaints. Early in March, MacKenzie called both Quintal and Durham into his office. No one else was present and the conversation lasted only 5 minutes. Quintal testified that Mackenzie said he could niot toler- ate. CAL-OSHA's complaints and he wanted to know who made the complaint. Quintal told him he did not know. Although he was certain Durham also spoke at this meeting, he could not recall what he had said. The second conversation lasted less than 5 minutes and also occurred in MacKenzie's office in the latter part of April, after a CAL-OSHA inspection. Both Durham and Quintal were summoned to his office. MacKenize was yelling and was very irate. Workers in the outside office turned around when he yelled. MacKenzie told them that he was not going to tolerate Ron going to CAL- OSHA and filing a claim and he was going to get the ". dirty son-of-a-bitch if it was the last thing he did." Durham reiterated that he had many conversations with MacKenzie in his role as a steward or alternate. He recalled one conversation in particular when MacKenzie spoke to both Quintal and himself concerning CAL- OSHA's violations. He could not recall the date of this meeting.5 As he entered he observed MacKenzie was 4 Quintal had been employed as a truckdriver for 12 ycars and Durham for I1 years. I Durham stated the meeting occurred I to 2 months before MacKen- zie left, however, he was uncertain as to the exact date. Since MacKcnzie left in September, this would place Ihe meeting in July or August. How- ever, he also stated the meeting was held the day after a CAL-OSHA inspection and he thought Sizelove was still working on the dock The CAL-()StHA inspections sere held on March 8 and April 26 and Size- love worked w,1 the dock from February 14 tor July 5. very upset. MacKenzie began to question him as to who had filed the CAL-OSHA complaint. When Durham re- sponded he did not know, MacKenzie said he knew it was Ron Sizelove and that, "I am going to get that son- of-a-bitch if it is the last thing that I ever do." He contin- ued that he wanted to know the reason for filing the complaints. Both Durham and Quintal voiced the same opinion that if the Company would have corrected the safety problems, which had been brought to their atten- tion by the safety committee, no one would have gone to CAL-OSHA. MacKenzie denied that he had ever ques- tioned the shop stewards as to who filed the CAL- OSHA complaints, nor did he ever state he knew it was Sizelove or that he would get the "son-of-a-bitch." Durham also recalled a prior meeting with MacKenzie in which the subject of CAL-OSHA complaints arose.6 In fact, they both testified that during one of their fre- quent meetings the policy for handling safety inspections was discussed. MacKenzie testified: I told Jerry, as I told him before on many occa- sions, was that there is a proper way to get things corrected in our facility, and number one is if you see something wrong, you go to your supervisor and tell him. You've got a Safety Committee, you go to the Safety Committee and tell the Safety Committee. If you can't get any thing done with that, then you walk into my office and you tell me, and if I don't get it done, then go to any place you can to get it fixed. But let's follow those proce- dures. Durham acknowledged that MacKenzie had made state- ments urging the men to follow company policy and sought the stewards' assistance in having the men "back off." However, each time he was given these instruc- tions, he reminded management that when the men raised the safety violations directly with the supervisors, the Company's response was inadequate. Both Durham and Quintal related conversations they had with Knowles concerning the filing of CAL-OSHA complaints. Quintal felt the conversation occurred I or 2 days after the second conversation with MacKenzie. He was uncertain whether Durham was standing outside Knowles' office when the latter stated they could not tolerate the CAL-OSHA complaints. Durham related a similar conversation to which he answered, that if the Company would correct the safety problems there would be no need to file the CAL-OSHA complaints. The record is unclear as to whether there were two separate conversations or one. In either case, Knowles denies that he ever said, "they could not tolerate the CAL-OSHA complaints." A review of Sizelove's employment reveals an exten- sive list of physical injuries, vehicle accidents, and the is- suance of intent to discharge and intent to discipline for vehicular accident letters. He was suspended in January for I week due to an accident which was classified as a preventable accident. The warning letters which had I Again. Durham was unable to pinpoint the date of this meeting, other than that it occurred I to 4 weeks prior to the CAL-OSHA inspec- tion of April 26. 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been issued over many years included infractions such as gross insubordination, failure to report, taking company equipment off route, and other preventable accidents. In 1969, Sizelove fell off of a loading dock and sus- tained physical injuries. Subsequently, he was involved in several accidents which aggravated the original injuries. Although his injuries varied, they normally dealt with the neck, back, and shoulder. From the inception of the initial injury in 1961 to August 1978, he received physi- cal therapy which was paid for by the Respondent. As late as 1977, he received therapy three times a week, on company time and at company expense. The record is unclear as to when therapy was reduced to once a week. Both MacKenzie and Knowles testified that in their years of experience with the trucking industry they had never seen a disability case where a man had received therapy for such an extended period. The company policy requires an employee to present a doctor's release before he returns to work. In the case of Sizelove, he never received a release and yet he continued to work. This condition existed prior to the arrival of MacKenzie and Knowles. Both men felt that it was extremely impor- tant to correct what they perceived as a blatant misuse of disability benefits. At some point, the visits to the therapist were reduced from three to one visit per week. Then MacKenzie persuaded the therapist to change the appointment from afternoon to earlier in the morning. The original afternoon schedule rendered him unproduc- tive since it interrupted Sizelove's workday. The earlier appointment allowed him to work the remainder of the day without further interruptions. In an effort to resolve Sizelove's endless therapy treat- ment, MacKenzie sought the advice and assistance of Jeanette Joyce, the Company's workers' compensation claims manager, in Jacksonville, Florida. She expressed her belief in a letter to MacKenzie, dated August 22, 1977, that Sizelove's need for therapy was a "big Hoax." Based on this premise, she determined that every effort should be made to finalize all of his worker's compensa- tion claims in a final hearing. Apparently the Respond- ent's expense for 9 years of therapy had been consider- able. Finally, all of Sizelove's pending workers' compensa- tion cases were consolidated in a hearing before Judge John D. Watt, of the Worker's Compensation Appeals Board for the State of California. A stipulation with re- quest for award was filed by the parties. It indicated the award covered injuries from July 23, 1969, to May 1978. The Respondent's attorney, Charles A. Shea, testified that the parties had reached a stipulated settlement which covered all aspects of the claims except for the question of further medical treatment. Judge Watt re- solved this question by relying on Dr. McDavid's medi- cal report. He found: 4. There may be need for medical treatment to cure or relieve the effects of said injury. Future medical to be decided by WCAB Judge. (E). Dr. McDavid indicates further treatment should be awarded on a precautionary basis. Attorney Shea explained that he felt the award of further medical treatment on a precautionary basis simply meant that he was not currently in need of medical treatment; however, in the future his condition may change and re- quire medical assistance. The phrase "precautionary basis" was used by Dr. McDavid in his medical report and was submitted to Judge Watt by Sizelove's attorney, Stephen D. Sprenkle. Dr. McDavid also commented: Overall though, one is left with the feeling that his situation is relatively stable and, as a consequence, can be considered essentially permanent and station- ary, in no need of any further immediate medical treatment. Shea recommended to Joyce through correspondence and telephone conversations that the Respondent should terminate the physiotherapy treatment. He advised her to notify Sizelove and his doctors that they would no longer pay for the therapy treatment. He denied that he ever advised Joyce to forbid Sizelove from taking addi- tional therapy at his own expense. At the time he ren- dered this advice he did not know that Sizelove had filed CAL-OSHA complaints. Acting on the advise of counsel, Joyce contacted Mac- Kenzie on August 4 and instructed him to advise Size- love that the Company would no longer pay for therapy on company time. MacKenzie then instructed Knowles to transmit these instructions to Sizelove. That afternoon, Sizelove was contacted by radio and instructed to call the office. When he called, Knowles informed him of the Sizelove's request to provide him with a letter concern- ing the termination of the therapy, but he denies that he said it would take 1-1/2 weeks. The following letter from Knowles was prepared on August 7: Dear Mr. Sizelove: Due to the recent awards made on your work- men's Compensation claim, our attorneys have ad- vised us that P.I.E. is no longer responsible to pro- vide you with physical therapy. This letter is to advise you that effective today, August 7, 1978, you are no longer authorized to take physical therapy on company time. This will also advise you that P.I.E. will no longer pay for any physical therapy that you choose to take on your own time. On the following Monday, Sizelove took a day off to confer with his attorney. After he related the conversa- tion concerning the termination of his therapy, his attor- ney advised him to keep his Wednesday appointment since it represented the followup treatment for the inju- ries he had sustained in the July 28 accident and also be- cause the compensation award allowed for further medi- cal treatment and cure.7 On Wednesday, August 9, ' In an attempt to clarify the Respondent's responsibility for the pay- ment of Sizelove's therapy, he filed a petition for enforcement of award and for penalty. before the Workers' Compensation Appeals Board of the State of California, Workers' Compensation Judge Alvin L. Dove held on March 27, 1979: Continued 394 PACIFIC INTERMOUNTAIN EXPRESS CO. Knowles requested that Sizelove and his union steward, Ed Quintal, come to his office at approximately 8 a.m. He read the letter to them and then handed it to Sizelove and asked him if he understood the letter. Sizelove an- swered, "yeah," or something to that effect. There was no response when he reiterated, "Do you understand that you can no longer take therapy on Company time, and that if you continue to take therapy it is at your ex- pense. If you do take therapy, if you go to your doctor to take therapy on Company time, you will be terminat- ed for gross insubordination." Sizelove repeated several times that he had a doctor's appointment. Quintal then called the union hall and said, "Dan is going to fire Ron if he goes to therapy, uh huh, okay, yeah, good bye." As he hung up, he said, "Go ahead." Knowles then gave him a direct order not to go to therapy, on company time. Sizelove testified that after the letter was read to him he asked Knowles why he did not just send him home. He replied, "No, you haven't done nothing yet." To which Sizelove said, "Well, then you give me no choice, do you?" Knowles replied, "That's right." Sizelove then hooked up his truck and drove to his doctor with Knowles following him. When they arrived, Knowles asked him if this was his doctor's office. When he replied that it was, Knowles then said, "Okay, Ron, you are fired. Give me your keys, your bills, lock it up." The termination was grieved by Local 287 before joint council 7 labor-management committee, which resulted in a deadlock decision. The matter was then presented to an arbitrator in October. He ruled that Sizelove had not been grossly insubordinate and therefore the discharge could not be sustained. Sizelove testified that the arbitra- tor said, ". . I was not to receive that pay because I went to my attorney. Therefore, I violated procedures. Therefore, I get no back pay." Before the Respondent al- lowed Sizelove to return to work as a truckdriver, he was required to obtain a medical release for the alleged injuries sustained on July 28. The Pacific Industrial Medical Clinic provided the release based on their exam- ination on October 11. Sizelove filed a complaint on August 9 with the Cali- fornia Department of Industrial Relations, Division of Labor Standards Enforcement. He charged that the Company had fired him because he had previously filed complaints with CAL-OSHA. A hearing was held before Henry Dodson, senior deputy labor commissioner of San lose. Although these hearings are recorded, Commission- er Dodson was unable to find the tape. He explained that it is standard procedure to clean the tapes after 6 months in order to use them in other hearings. Therefore, neither a transcript nor the tape was available. However, he was FINDINGS OF FACT I. The evidence does not support Applicant's allegation of need for further physiotherapy to cure to relieve the results of his injuries herein after August, 1978. 2. No reimbursement is warranted 3. Defendant did not unreasonably refuse necessary medical care. ORDER IT IS ORDERED that Applicant take nothing by reason of his Petition for Enforcement filed herein. able to locate his own personal notes which consisted of four pages on I -inch paper. The notes were not verba- tim testimony, but he felt they adequately represented what he believed to be to the salient portions of testimo- ny. Commissioner Dodson readily admitted that he may have failed to take down all of the comments and he had no independent recollection of the facts in this case. In fact, his notes only contained those matters which he perceived to be significant at the time of the hearing. His notes did not reveal nor could he remember anyone stat- ing, "I know that Sizelove is the person who filed those CAl,-OSHA complaints" or, "I am going to get that Son-of-a-bitch." Dodson did feel he would have written those statements down since they would be very signifi- cant in such a case. The hearing lasted approximately 30 minutes and seven people testified. Sizelove represented himself without the assistance of an attorney. The Com- pany was represented by MacKenzie and Willard John- son, the regional manager. Commissioner Dodson did not accept Sizelove's contention that he was discharged because he filed CAL-OSHA complaints. He found, "There is insufficient evidence to support the claiment's position and therefore no violation is found of Section 6310 of the Labor Code." Both Durham and Quintal testified at this hearing. Neither could remember their exact testimony. During cross-examination, Quintal initially felt that he had testi- fied that MacKenzie said he would get that, "son-of-a- bitch"; however, later he said "He could not recall his prior testimony." B. .4nalysis The original complaint alleges that the Respondent in- terfered with Sizelove's protected concerted activities and engaged in unfair labor practices by: I. Threatening its employees, on April 28, with reprisals for having filed a complaint with the Cali- fornia Department of Industrial Relations Division of Industrial Safety, commonly referred to as CAL- OSHA. 2. By refusing to permit Sizelove, on August 9, to go to his regularly scheduled physical therapy ap- pointment; and, 3. By discharging him on August 9 and refusing to reinstate him to his former position of employ- ment until October 1. In his brief the General Counsel urges that Sizelove is entitled to a full Board remedy including backpay and that the testimony of the Respondent's witness, Gordon MacKenzie, be stricken from the record in its entirety for violation of the sequestration order. The Respondent denies the allegations found in the complaint. It admits the discharge, but argues the termi- nation was based on Sizelove's gross insubordination for refusing to obey Knowles' order to cease therapy treat- ment on company time. The Respondent further argues that the Board does not have jurisdiction in the present case by virtue of the State of California's exercise of the U.S. Department of Labor's jurisdiction herein and/or the Board is bound by the findings of Henry Dodson, 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor commissioner by reason of resjudicata. In the alter- native, the Respondent submits that the State's expertise in the area and principles of comity mandate that the Board accord those findings substantial deference and that they be left undisturbed. If the Board asserts jurisdiction, the Respondent con- tends that credible evidence fails to prove that the dis- charge was connected to or motivated by Sizelove's filing complaint with CAL-OSHA or any other alleged protected activity. Jurisdiction The Board's General Counsel and the U.S. Depart- ment of Labor executed a Memorandum of Understand- ing in June 1975, hereinafter referred to as the Memoran- dum. The language of the Memorandum provides, in pertinent part: B. PROCEDURAL AGREEMENT 1. Where a charge involving issues covered by Section I I(c) of the OSHA Act has been filed with the General Counsel and a complaint has been filed with OSHA as to the same factual matters, the General Counsel will, absent withdrawal of the matter, defer or dismiss the charge. The General Counsel will inform the Charging Party of its action and will send a copy of such letter to OSHA. "It appears that many employees" safety activities may be protected under both Acts. However, since an employee's right to engage in safety and health activities is specifically protected by the OSHA Act and is only generally included in the broader right to engage in concerted activities under the NLRA, it is appropriate that enforcement actions to protect such safety and health activities should primarily be taken under the OSHA Act rather than the NLRA!! On January 17, 1979, the General Counsel of the Board notified all regional directors, officers in charge, and resident officers of the interpretation which had been adopted of the Memorandum. The Memorandum states in relevant part: To clarify an ambiguity that may exist, please note that the memorandum of understanding was de- signed solely to deal with questions arising under Section 11(c) involving discrimination in retaliation for such conduct as an employee's filing OSHA complaints or testifying in OSHA proceedings. Ac- cordingly, the Memorandum of Understanding is to be followed only in such cases. When Congress enacted the Occupational Safety and Health Administration Act, it allowed each State the option to adopt its own OSHA laws, subject to the ap- proval of the United States Secretary of Labor. Califor- nia's plan was approved by the Federal Government and is administered by the State Labor Commissioner in the Department of Industrial Relations. Section 6310 of the CAL-OSHA Act is similar to the Federal law and pro- vides that, ". . . no person shall discharge or in any manner discriminate against any employee because such employee had . .. made oral or written complaints (to OSHA)." It further provides that such an employee is entitled to reinstatement and reimbursement. The Respondent reasons that since California adminis- ters its own OSHA plan that in essence it stands in the place of the Federal OSHA. Therefore, whatever under- standing existed between the General Counsel and the U.S. Department of Labor should apply to the approved state agencies. This argument ignores the simple fact that the Memorandum represents an agreement or under- standing negotiated between two Federal officials. There is no indication that the U.S. Department of Labor at- tempted to represent or bind CAL-OSHA to this Memo- randum; nor that CAL-OSHA ever entered directly into an understanding with the General Counsel. Indeed, in the present case, the General Counsel did not extend the provisions of the Memorandum to CAL-OSHA, nor was it willing to defer to the findings of Commissioner Dodson. Instead, it chose to pursue the alleged infraction under the provisions of the Act. I find that the provi- sions of the Memorandum were neither extended to CAL-OSHA nor are they applicable to the present case. If in fact the provisions of the Memorandum extended to the various state agencies, it would not be binding on the Board. Such a memorandum of understanding be- tween two Federal agencies does not rise to the level of agency rules and regulations, the breach of which may warrant the dismissal of the complaint Brown & Root, Inc., 246 NLRB 33 (1979). The Board and not the Gen- eral Counsel is charged with the duty to make, amend, and rescind such rules and regulations as may be neces- sary to carry out the provisions of the Act. It is within their discretion to interpret its oswn rules. Obviously, the Board is not bound by the General Counsel's Memoran- dum of Understanding of June 1975 and January 17, 1979. In the alternative the Respondent submits that "the State's expertise in the area and principles of comity mandate that the Board accorded those findings substan- tial deference and that they be left undisturbed." The findings of CAL-OSHA may have probative value, but are not conclusive. In arriving at my findings, I have considered the testimony of Commissioner Dodson. The "State's expertise" in this case is in the area of industrial safety not violations dealing with Sizelove's protected activity. However, the primary issue is not industrial safety but whether Sizelove was terminated for having exercised his right to file CAL-OSHA complaints. The Respondent relies very heavily on the case of Adolph Coors Company, 208 NLRB 676 (1974), in arguing that the Board is bound by the findings of Commissioner Henry Dodson, by reason of res judicala. In the Coor, case, Booker T. Mays, the employee, was disciplined for spending an excessive amount of time away from his work station. On the following day, he filed a grievance under the collective-bargaining agreement between his employer and the union. Several days later Mays was in- formed that his discipline was a 5-day suspension, which would commence the next day. Mays responded that unless he received a written notice of his suspension or his name was removed from the posted work schedule, 396 PACIFIC INTERMOUNTAIN EXPRESS CO. he would report to work as usual. The Company warned him if he did so, he would be subject to discharge for insubordination. Mays reported to work and he was im- mediately discharged. On the following day he filed a second grievance. Mays argued in his grievance that the discipline was racially motivated. After a 4-day hearing, the arbitrator found that Mays was discharged for insubordination. The arbitrator further stated that if he had found evidence that the reasons assigned for the discharge were pretex- tual he would have upheld the grievant. Thereafter, an Il-day hearing with 75 witnesses was conducted before a hearing examiner of the Colorado Civil Rights Commission. The hearing examiner issued his decision and order, in which he found, independently of the arbitrator, that both the suspension and discharge were for cause. Thereafter, the Commission issued its own decision, in which it found contrary to its hearing examiner, that Mays' race was one of the motivating fac- tors or reasons for his discharge. However, the District Court of Jefferson County, Colorado, accepted the find- ings of the hearing examiner and set aside the Commis- sion's decision. On November 8, 1972, the lower court's decision was affirmed by the Colorado Court of Appeals and the Supreme Court of Colorado denied certiorari. In the interim, Mays also filed a complaint with the Board alleging he was discharged because of his protect- ed concerted activities in seeking to implement the terms of the collective-bargaining agreement and for filing a charge with the Civil Rights Commission. The employer urged the Board to defer to the decisions of both the ar- bitrator and the Colorado Civil Rights Commission by applying the standards of Spielberg Manufacturing Com- pany, 112 NLRB 1080 (1955). The Board held in Adolph Coors, supra at 677: In all the circumstances, we conclude that it will best effectuate the purposes of the Act to defer and give conclusive effect to the decisions in the pro- ceedings before the arbitrator and under the Colora- do Antidiscrimination Act. We rely particularly on the grounds that the discharge sought here to be litigated has already been the subject of extraordi- narily lengthy proceedings before numerous tribu- nals in which it was found that the discharge was properly imposed without pretext, that these pro- ceedings appear to have been fair and regular, and that the decisions therein were not clearly repug- nant to the policies and purposes of the Act. By applying the principles ennunciated in Spielberg, the Board would have deferred to the findings of the arbitra- tor in the Adolph Coors case, even if there were never a hearing before the Colorado Civil Rights Commission. It is true that the effect of the Board's decision was to give deference to the decision of the Colorado tribunals under the Colorado Antidiscrimination Act. However, was it the intent of the Board to extend the principles of Spiel- berg to the decision of various state boards where an ar- bitrator was not involved? I think not. It is also interesting to note that a few months after the Board issued its Adolph Coors decision the Supreme Court dealt with the question and the burdens created by multiple forums. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-48 (1974), the Supreme Court held: . . . legislative enactments in this [race discrimina- tion] area have long evinced a general intent to accord parallel or overlapping remedies against dis- crimination. . . in general, submission of a claim to one forum does not preclude later submission to another .... Moreover, the legislative history of Title VII mani- fests a Congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The Court quoted with approval from an interpretive memorandum introduced by Senator Clark, which states (415 LU.S. at 48 fn. 9): If a given action should violate both Title VII and the National Labor Relations Act, the National Labor Relations Board would not be deprived of jurisdiction (110 Cong. Rec. 7207 (1964)). Obviously, the Board was not required to give deference to the findings of the Colorado tribunals in the Adloph Coors case, nor must it defer to Commissioner Dodson in the present case. The principles of Spielberg apply to cases involving the decisions of an arbitrator and not to the decision of state boards or agencies. The Board is neither bound by the Memorandum nor the decision of Commissioner Dodson under a theory of resjudicata. Credibility A substantial portion of the evidence is not in dispute. The major discrepancies center around the alleged com- ments of Knowles and MacKenzie concerning Sizelove's activity with CAL-OSHA. It is essential that a determi- nation of the credibility of the various witnesses be re- solved in order to determine if the Respondent violated Section 8(a)(1) of the Act. In making the credibility find- ings, I have considered the demeanor of the witnesses, reviewed their testimony and the exhibits, weighed the established facts, and considered the reasonable infer- ences drawn from the record. The Respondent has urged me to discredit the testimo- ny of Durham and Quintal because ". . . both are union stewards and, therefore, witnesses who are clearly inter- ested in the outcome of the instant proceeding and biased." If I accepted this basic premise it would follow that I should discredit the testimony of MacKenzie and Knowles since they served as management and, "there- fore, witnesses who are clearly interested in the outcome of the instant proceeding and biased."8 Although ones a The Respondent argues that MacKenzie is no longer an employee and therefore that increases his credibility. His departure to a different trucking firm was a promotion. However, he is still within management in the trucking industry and it is possible future promotions will take him to other trucking companies and even possibly a return to the Respond- ent His position within management should not automatically discredit him. However, I do not believe he is as free and independent as the Re- spondent asserts. 397 ODECISIONS OF NATIONAL LABOR RELATIONS BOARD position within management or labor should be consid- ered in weighing the veracity of the individual, I totally reject the proposition that it, in and of itself, is sufficient to automatically discredit testimony as biased or tainted. The test must be based on the surrounding facts and cir- cumstances as revealed by probative evidence. Both Durham and Quintal appeared to have testified in a clear and concise manner. I could not detect bias on their part either against the Company or for Sizelove. Indeed, the evidence revealed that a good working relationship exist- ed between them and management. They met almost on a daily basis, trying to resolve mutual management and personnel problems. If Durham and Quintal harbored a prejudice or bias toward the Respondent, the record is silent and does not substantiate such an allegation. There was never any evidence to allow an inference that these men had a motive to lie. Although cross-examined vig- orously, their testimony remained largely consistent, with only significant discrepancies being the type ex- plainable by the imperfections in human recollection of fleeting events. It is true that they could not recall every word that was uttered nor the exact date of these utter- ances. The lack of total recall is certainly understandable considering the length of time which transpired between the dates of the crucial conversations and the date of the hearing. The fact they met frequently also explains why it was difficult for them to remember who was present or what was said, with the exception of the belligerent threats which tend to stand out in ones' memory. Conse- quently, I credit Quintal and Durham where their testi- mony is in conflict with Knowles and MacKenzie. I find that MacKenzie did question the stewards and stated he could not tolerate CAL-OSHA complaints and he wanted to know who made the complaints. On another occasion, he remarked he knew Sizelove had gone to CAL-OSHA and he would get the ". . . dirty son-of-a- bitch, if it was the last thing he did." I further find that Knowles on a different occasion stated, "they could not tolerate the CAL-OSHA complaints." The Respondent argues that MacKenzie's testimony should be credited since, ". . . unlike the testimony of Quintal and Durham, there is not a single internal con- tradiction within the testimony of MacKenzie." Under normal circumstances such consistency is commendable. However, after reviewing the history of this testimony, his consistency must be questioned. On the first day of the hearing, April 26, 1979, the Respondent's motion to sequester the witnesses was granted. At the end of that day, over the vigorous objection of the General Counsel, I granted the Respondent's motion for a continuance in order to obtain the testimony of MacKenzie, who was unavailable to testify. The hearing was reconvened on August 9, 1979. During cross-examination, MacKenzie stated that on the previous day, during a 3-hour prepara- tion period with the Respondent's attorney, he read the prior testimony of Sizelove, Durham, and Quintal and re- viewed the exhibits. He further stated that he had dis- cussed with the Respondent's attorneys, what had oc- curred at the April hearing. He further testified that his testimony was based not on independent recollection but at least, in part, on the refreshing of his memory during the 3-hour preparation period. In particular, he stated he did not have an independent recollection concerning conversations with Durham and Quintal regarding CAL- OSHA complaints I fully recognize it is necessary for a trial attorney in his preparation for the hearing to meet with each of his witnesses and discuss and review their testimony. However, this preparation period must not be utilized in such a manner as to circumvent a sequestra- tion order. Under these circumstances, it is difficult to give weight to MacKenzie's testimony. It is impossible to determine how much is truly his independent testimony and what is based on knowledge gained from reading the transcript. In Unga Painting Corporation, 237 NLRB 1306, 1307 (1978), the Board in discussing Wigmore, held: The process of exclusion consists of preventing a prospective witness from being taught by hearing another's testimony.9 The less a witness hears of an- other's testimony, the more likely he is to declare his own unbiased knowledge, even though the wit- nesses have talked among themselves before the hearing and have discussed their testimony with counsel. Thus, the purpose of exclusion is preventa- tive; it is designed to minimize fabrication and com- binations to perjure as well as mere inaccuracy. At the hearing it deprives the witness from hearing suggestions, be they conscious or unconscious, from which testimony may be shaped falsely. It also aids in detecting inconsistent testimony among different witnesses and increases the efficiency of cross-exam- ination by preventing subsequent witnesses from learning from earlier cross-examination covering the same subject. The General Counsel has argued both at the hearing and in his brief that MacKenzie's testimony should be to- tally disregarded since he violated the sequestration order. It should be kept in mind that this order was re- quested by the Respondent's attorney who called Mac- Kenzie as a witness. MacKenzie freely admitted that during the 3-hour hearing preparation with the Respond- ent's attorney that he reviewed exhibits and read the tes- timony of Sizelove, Durham, and Quintal. This method of preparation is a flagrant disregard of the sequestration order and at a bare minimum lessens his credibility and the weight to be given his testimony. After considering all the surrounding circumstances preceding MacKen- zie's testimony, I have concluded his testimony must be stricken and disregarded. It should be noted that even if I had not stricken MacKenzie's testimony, I have already credited Durham and Quintal, wherever their testimony is in conflict with MacKenzie and Knowles. Neither Durham nor Quintal showed bias either for or against the Company or Size- love. The evidence did reveal Sizelove had an endless list of accidents, acts of insubordination, and costly ther- apy. His work history had been a thorn in the side of the Company. Joyce, MacKenzie, and Knowles had spent considerable time and money in an attempt to correct what they felt was an unfair use of disability benefits. The evidence indicates that both MacKenzie and 9 See Wigmore, Evidence, § 1837-1842 (Chadbourn rev. 1976). 398 PACIFIC INTERMOUNTAIN EXPRESS CO. Knowles were highly motivated to terminate Sizelove. When they learned of his activities with CAL-OSHA, this motivation heightened. They lost their objectivity when dealing with Sizelove. With all the foregoing crite- ria in mind, I have found the testimony of MacKenzie and Knowles not to be credible. Protected concerted activity Sizelove and his fellow employees at the Milpitas fa- cility are covered by a collective-bargaining contract be- tween the Respondent and Local 287 of the Teamsters Union. As a member of the safety committee, Sizelove did not act alone but on behalf of his fellow workers when he first reported safety hazards to the Company and then later filed complaints to CAL-OSHA. Under these circumstances, he was engaging in protected con- certed activity when he filed the complaint with CAL- OSHA, Jim Causley Pontiac, Division Jim Causley, Inc., 232 NLRB 125 (1977). Discharge It would be absurd to conclude Sizelove was dis- charged solely for the reason that he filed several com- plaints with CAL-OSHA. In reviewinq his past history for accidents and insubordination, it is clear his work his- tory would hardly endear him to an employer. Undoubt- edly the Company had numerous reasons and motives for terminating him. For many years he received costly therapy during working hours. Since the therapy was ad- ministered in the middle of the working day it greatly in- terfered with his productivity. Although the record is unclear as to the seriousness of accidents, it does reveal a very lengthy list of mishaps. Both Knowles and Mac- Kenzie were very unhappy when they discovered Size- love had twice reported unsafe working conditions to CAL-OSHA. Initially, they wanted to know who had filed the complaints and then they made it clear they would not tolerate this conduct. When MacKenzie final- ly realized it was Sizelove, he vowed to get the "son-of- a-bitch." Finally, when Sizelove disobeyed Knowles' order not to obtain therapy on company time, he was discharged. It is settled law that the Respondent could discharge Sizelove for good cause, or even no cause, and the only restriction on that right is that it not be motivated by employees' exercise of rights guaranteed by Section 7 of the Act. In fact, even if one argues that the Company's decision to discharge was unfair, the Board is "not neces- sarily concerned when a particular disciplinary action seems to us to be excessive, unfair, or otherwise." Ameri- can Thread Co., Sevier Plant, 242 NLRB 27 (1979); Col- letti's Furniture, Inc., 224 NLRB 1547 (1976), enfd. 550 F.2d 1292 (Ist Cir. 1977). In the present case it appears the employee may have been discharged for multiple reasons both proper and im- proper. In Youngstown Osteopathic Hospital Association, 224 NLRB 574 (1976), the employee had an admitted history of failing to perform her job properly. She ex- plained that her marital problems were interfering with her job performance. Although she continued to fall behind in the billing of 300 to 400 welfare accounts, she was not discharged until she drafted, signed, and circu- lated a petition on behalf of a discharged employee. The Administrative Law Judge found that her action was protected concerted activity; however, she was dis- charged for her failure to perform her job and not based on her protected concerted activity. The Board disa- greed and ruled: Under Board precedent if part of the reason for terminating an employee is unlawful, the discharge violates the Act. As the Board and the courts have so often indicated, the issue is not whether there ex- isted ground for discharge apart from the union or protected concerted activities. That the employer has ample reasons for discharging an employee is of no moment. An employer may discharge an em- ployee for any reason, good or bad, so long as it is not for union or protected concerted activity. Even if the discharge is based on other reasons as well, if the discharge is partly in reprisal for protected con- certed activity, it is unlawful. Since this was indeed the case with Yacoub we find her discharge viola- tive of Section 8(a)(l). 1 After considering all of the evidence, I have concluded that Sizelove was terminated for many reasons; however, the primary motive for the discharge was based on Size- love's reporting the Company to CAL-OSHA for safety infractions. The Company had tolerated his poor per- formance for many years but they refused to tolerate his filing CAL-OSHA complaints. The subsequent discharge for seeking therapy was pretextual. Therefore, I find that his discharge was in violation of Section 8(a)(1) of the Act. THE REMEDY Having found. that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act, by discharging Sizelove for exercising his Section 7 rights to engage in protected concerted ac- tivity for the safety of himself and fellow employees by reporting safety hazards to CAL-OSHA, I shall recom- mend that it be ordered to cease and desist therefrom and to take certain affirmative actions designed to effec- tuate the policies of the Act. In addition, I shall recom- mend that the Respondent be required to immediately offer reinstatement to Sizelove to the job from which he was unlawfully deprived, or if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discharge on August 9. 1978, to the date of his reinstatement, to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as called for in Florida Steel Corpo- ration. 231 NLRB 651 (1977); see. generally, Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). 1 shall also recommend that the Respondent be require to post ap- propriate notices. i0 See Perko'a In- , 23h NKRB 884 (1978}) (olctti's Ftnrture. Inc. v. NVL.R.B., supro. 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Ronald Sizelove on August 9, 1978, because he filed two complaints with CAL-OSHA, the Respondent interfered with, restrained, and coerced em- ployees in violation of Section 8(a)(1) of the Act. [Recommended Order omitted from publication.] 400