Pacific Intermountain Express Co., 388 (1982)

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 Decision 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached 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 because of his protected activities, thereby violating Section 8(a)(1) of the Act. Respondent has excepted to that finding arguing that Sizelove was discharged for cause and not because of his protected activities. We find merit in Respondent's exceptions. 2

As more fully set out in the Administrative Law Judge's Decision, Sizelove began working for Respondent 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 discharge on August 9, 1978.3

On February 17, Sizelove was made a member of Respondent's safety committee. As such he solicited 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 opI 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 credibility unless the clear preponderance of all of the relevant evidence convinces 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, Division of Labor Standards Enforcement, regarding his discharge. In addition, 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 (CALOSHA), for assistance. On March 1, Sizelove filed a list of 21 complaints with that agency. A CALOSHA compliance safety engineer inspected Respondent's terminal on March 8. Seven safety citations were issued. Sizelove filed a second complaint with CAL-OSHA on April 24 alleging that Respondent had not corrected the previous defects. A second inspection took place at the terminal on April 26 after which the compliance safety engineer issued four citations.

MacKenzie expected safety problems at the terminal 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 employee who had filed the complaints. He summoned 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 complaints.

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 vehicle accidents. In addition, Sizelove's numerous injuries on the job (for which workmen's compensation 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 therapy sessions took place three times a week in the afternoon. This interrupted Sizelove's work and affected his productivity. The sessions were then reduced 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 reasons not made clear by the record, Sizelove continued to work without receiving a release. MacKenzie 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 indicates that further treatment should be awarded on a precautionary basis.'4

Charles Shea, Respondent'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 entitled 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 responsible to provide 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.

Sizelove consulted with his attorney who advised 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 attorney.

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 therapy 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 Sizelove'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 discharges in violation of Section 8(a)(3) or (1) in which the employer had a dual motive for effecting the discharge. First, it required that the General Counsel make a prima facie case...