Southern California Gas Co.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 922 (N.L.R.B. 1980)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern California Gas Company and William K. Hayden. Case 21-CA-17994 August 27, 1980 DECISION AND ORDER BiY MEMBERS JENKINS, PENEII lO, AND TRUESDALE On April 18, 1980, Administrative Law Judge Clifford H. Anderson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. Respondent subsequently filed a brief in re- sponse to the General Counsel's cross-exceptions. 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 i Respondent has excepted to certain credibility findings made by the Administrative Las, Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless he 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 fr reversing his findings. 2 In affirming the Administrative Law Judge's conclusion that Re- spondent siolated Sec 8(a)(3) of the Act when it discharged employee William Hayden, we find, for the reasons set forth below, that Hayden was discharged solely because of his union activities atnd that Respond- ent's asserted reason for the termination was a pretext. Respondent contends that it discharged Hayden "for failure ! cooper- ate" after he refused Supervisor Armando Redondo's order to see the company doctor while on sick leave. In this context, the record discloses that, after working the previous day. Hayden called the dispatcher on March 28, 1979, and reported that he would be out sick that day Hayden then refused Redondo's directive to see the company doctor. but ultti- mately went to see his own physician. While Respondent has a practice of requiring employees who have called in sick to visit its doctor, there is no evidence that in a bargaining unit of about 5,800 employees Respond- ent has terminated any other individuals for canceling an appointment with the company doctor on their first day out sick Respondent, in fact. has allowed employees to miss several appointments ith its doctor before finally discharging them. Thus, in light of the fact that Hayden's discharge occurred less than 2 weeks after Redondo had threatened him with termination for complain- ing to the Union about working conditions, we find that Redondo caused Hayden to be terminated in retaliation fr his participatiot in protected activities. Accordingly, we conclude that Hayden's efforts to seek assist- ance from the bargaining representative, rather than the alleged incident of "failure to cooperate." motivated his discharge :' In par. I(d) of his recommended Order, the Administrative Law Judge inadvertently uses the cease-and-desist language "in any other like or related manner." As it has not been shown that Respondent has a pro- clivity to violate the Act, or has engaged in such egregious or wide- spread misconduct as to demonstrate a general disregard fr the employ- ees' fundamental statutory rights. swe shall modify the recommended Order so as to use the narrow injunctive language. "in ally like or related manner." Iicktnot fhods, In, c.242 NlRH 1357 (1979). 251 NLRB No. 127 In his Decision, the Administrative Law Judge credited employee William Hayden's testimony that Supervisor Armando Redondo had asked him, "How come you called the Union?" The Adminis- trative Law Judge did not consider, however, whether Redondo's conduct was unlawful within the meaning of the Act. We therefore find that Re- spondent has further violated Section 8(a)(l) of the Act by interrogating employees concerning their union activities, as alleged in the complaint. Ac- cordingly, we shall issue our customary Order to remedy the violation found. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 3: "3. By threatening employee Hayden with ad- verse consequences including discharge because he telephoned his collective-bargaining representative, by informing Hayden and other employees that they should bring their problems to their supervi- sor before they brought them to the Union, and by asking Hayden why he had contacted a union rep- resentative regarding working conditions, Respond- ent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Southern California Gas Company, La Jolla Base, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: I. Substitute the following for paragraph l(d): "(d) Coercively interrogating employees con- cerning their union or other protected activities." 2. Insert the following as paragraph l(e): "(e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. Member Jenkins s o ld avlrd it'resl oin I he biackpil, due i ln Zccrd- ance with his partial dissent i Olvnpi Mdiclal C (,rporai. 25(1 NI RIB 146 (1980) SOUTHERN CALIFORNIA GAS COMPANY 923 APPENDIX NoIicE To EMPI.OYEES POSTEI BY ORDER OF THE NATIONAI. LABOR REI ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE Wll. NOT tell our employees they should bring their grievances to management before they take them to their Union. WE WitLL.t. NOT threaten employees with ad- verse consequences including discharge be- cause they have taken their complaints directly to the Union. WE WILl. NOT coercively interrogate em- ployees concerning their union or other pro- tected activities. WE WILL NOT discharge employees who take their complaints directly to the Union. WE WILI. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE. wii.t. offer William K. Hayden immedi- ate and full reinstatement to his former posi- tion or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority and other rights or privi- leges previously enjoyed. W:i wil.L make William K. Hayden whole for any loss of earnings he may have suffered because of the discrimination practiced against him by paying him a sum equal to what he would have earned, less interim earnings, plus interest. SOUTHERN CALIFORNIA GAS COMPANY DECISION STAIEMFNT OF IHE CASE CIi. FORD H. ANI)DERSON, Administrative Law Judge: This case was heard before me at Los Angeles, Califor- nia, on January 10 and 11, 1980, pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 21 on August 31. 1979,' based on a charge filed by William K. Hayden on JulI 9. The complaint alleges that Southern California G(as Company (herein called Respondent) interrogated em- ployees concerning their filing of gric\ances ilth the ' All dale hrcill rrcr li 1979 IIlllt . l- ,,l 1,HIICItCd Utility Workers of America, AFL-CIO, threatened em- ployees Kwith discharge and other reprisals in order to discourage employees from engaging in union and/or protected concerted activity, and discharged employee William K. Hayden and at all times since failed and re- fused to reinstate him because of his union and/or other protected concerted activities. All parties ,were given full opportunity to participate. to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file post-hearing briefs. Briefs, which have been considered, were timely filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINI)INGS O FAC I I. JURISI)ICTION Respondent admits that it is a public utility engaged in the business of selling natural gas to various industrial, commercial, and residential customers and to having a place of business located at 3050 La Jolla Street. Ana- heim, California (herein called the Base or the La Jolla Base). It further admits that during the course of its busi- ness operations it annually derives gross revenues in excess of $250,000 and annually purchases and receives supplies valued in excess of $50,000 directly from suppli- ers located outside the State of California. Respondent admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE lABOR ORGANIZATIONS INVOI \ E) Respondent admits, and I find, that the UtilitN Work- ers Union of America, AFL-CIO (herein Utility Work- ers or the Union), and International Chemical Workers Union (herein called Chemical Workers) are, and each of them is, and at all times material have been, labor organi- zations within the meaning of Section 2(5) of the Act. it. THE AL.II.GED UNFAIR I.ABOR PRACrICIS A. The Events 1. Background Respondent employs approximately 5,800 unit employ- ees in various locations. At its La Jolla Base, among others, it employs approximately 21 unit employees clas- sified as meter readers. At all relevant times the meter readers at the La Jolla Base have been covered by a col- lective-bargaining agreement between Respondent and the Union. Meter readers travel to Respondent's custom- ers' locations and record the amount of gas consumed as indicated on gas meters. William K. Hay)den as em- ployed as a meter reader at the La Jolla lBase from July 25, 1977. until March 29. 1979. he supervisor of the meter readers at the l.a Jolla Base has been Armando Redondo since approximately ()ctober 1978. lip until that time Hayden had been superxised by Ron Solar. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meter readers are assigned a daily "book" which is a list of locations they are to vist in the course of their day's work. Because occasions arise when employees are unavailable for their normal duties, "books" may be di- vided and assigned to other employees to be done in ad- dition to their normal schedule. These assignments are made pursuant to a mandatory overtime policy main- tained by Respondent. Some employees have been dissat- isfied with the existence of mandatory overtime. Hayden was a longstanding and vocal opponent of mandatory overtime. In June 1978, Hayden received a 2-day disciplinary layoff from his supervisor, Ron Solar. The suspension was the result of an incident arising when Hayden ex- pressed displeasure to fellow employees concerning the assignment of mandatory overtime. In October 1978, Hayden received an annual appraisal which rated him as marginally satisfactory. This rating was in a middle cate- gory between Respondent's satisfactory and less than sat- isfactory ratings. 2. Hayden's call to the Union and Redondo's alleged threats In mid to late March following the assignment of a mandatory overtime book, Hayden complained to his su- pervisor, Redondo, regarding the assignment. Hayden did not believe the particular book should have been as- signed under the mandatory overtime system. Not find- ing Redondo's explanation satisfactory, Hayden called John Brown, local president of the Utility Workers, that evening. He complained to Brown about favoritism in the assignment of overtime. Brown told Hayden he would inquire into the situation. The following day Brown called Raymond Grant, Re- spondent's industrial relations administrator at Respond- ent's downtown Los Angeles office. Without mentioning the name of the complainant, Brown inquired concerning the circumstances of the assignment of mandatory over- time at the La Jolla Base the previous day. Grant in- formed Brown he would look into the matter. Grant then called Redondo and reviewed with him the previ- ous day's assignment of overtime and its conformity with the existing seniority system, the collective-bargaining agreement, and the special agreements that applied to the La Jolla Base. Hayden's name was not mentioned in this conversation. The parties concluded that the overtime had been properly assigned and the conversation ended. Grant then called Brown and reported what he had learned. The following morning Redondo spoke to the meter readers as they were gathered at the Base before com- mencing their routes. Redondo had used the morning convocations irregularly in the past to address the meter readers as a group. Redondo's remarks are not in sub- stantial dispute. Redondo announced to the employees that someone had complained to the Union about his as- signment of mandatory overtime by going "over his head" outside the Base. Redondo first defended his as- signment of overtime on the day in question. He then told the employees that he wished they would come to him first if they had problems. He said that he wanted them to give him an opportunity to resolve problems before taking them "over his head" to the Union. The testimony of the various witnesses makes it clear that Re- dondo did not tell employees that they could not go to the Union, only that he wished to learn of any problems first and have an opportunity to solve them before em- ployees went elsewhere. Early in the afternoon, Hayden returned to the Base upon completion of his rounds. A conversation occurred at that time between Redondo and Hayden alone. The specifics of this conversation are in dispute. Hayden testi- fied that upon returning to the Base Redondo said he wished to speak to Hayden and they went together to a back room. Hayden testified that Redondo then said, "I found out that you called the Union. How come you called the Union? I told you yesterday that any time an appointment was made previous, that it had to be fol- lowed through." Hayden replied, "[W]ell, I just figured that it was my right to call the Union, you know, seeing as I am paying Union dues." Hayden testified that Re- dondo then said, "Look, you keep bugging the company, you could find yourself out on the street without a job. . . [T]he company is not going to tolerate any competi- tion between you and them." Redondo, in Hayden's ver- sion, continued telling him "to keep our own problems in our own backyard." Although Hayden in his initial testi- mony was unable to recall whether or not Redondo told him at this time not to go to the Union, upon being re- called to the stand he testified that he now remembered that Redondo had told him not to go to the Union. Redondo's version differs. Redondo testified that Hayden came to him and volunteered that he had called the Union. Only at that point, in Redondo's recollection, did he tell Hayden, "Let's have a little discussion," at which point they went into a back office. Redondo testi- fied that he told Hayden that he did not understand his attitude towards overtime. He told him that it was a nec- essary part of his job. Redondo stated: I was counseling him and telling him that, you know, you are just going to have to accept this thing because the last time you had disciplinary layoff, it had to do with your overreacting to having to work overtime. He stated further: I told him that, you know, if you don't accept this overtime thing, it is not something that is going to go away: you are always going to have to work overtime. Redondo specifically denied that he told Hayden not to go to the Union with his problems. He testified: Then I asked him, if you felt you had to talk to someone and not me, why didn't you go to the shop steward, at which time he Hayden] said that he did not want to go to the shop stewards because they were nothing but a bunch of flunkies that would do the company's bidding. Redondo characterized this meeting as an "informal counseling session for understanding between Hill and I SOUTHERN CALIFORNIA GAS COMPANY 925 about the work." He later defined his use of the term in- formal counseling session: An informal counseling session is when an employ- ee has some problems. They haven't yet become major but they are getting there, and you more or less warn him where he stands; that if you keep this up, you are headed--your behavior and all that--in his particular case, at one point, I counseled him about, if he was going to start acting up every time there was overtime, he knew that he had to work overtime; it was something that was not going to go away. He had conducted himself very badly; at one point he had been given a disciplinary layoff, and that if he continued to act like that, I could see where it was going to lead right back to the same type of thing. 3. The circumstances of the discharge On March 28, at approximately 6:30 in the morning, I hour before the commencement of the workshift, Hayden called the dispatch office and said he was sick. At approximately 8:45 a.m. Redondo called Hayden at his home inquiring about his sickness. Hayden said he had an upset stomach, nausea, that he was not feeling well. Redondo asked Hayden if he was going to see a doctor. Hayden said he had not thought about it. Redon- do informed Hayden that he was going to make an ap- pointment with the company doctor in Los Angeles and that he would drive Hayden there. Redondo called the Industrial Relations Division and requested that a company doctor's appointment be made for two employees, Hayden and Rummel. Industrial Re- lations later called Redondo and told him the appoint- ments were made and that the employees should be brought in. Redondo called Hayden at his home at approximately 11:45 a.m. and informed him that an appointment had been made with the company doctor and that he would come out and pick Hayden up and take him to the doctor. Hayden recalls telling Redondo at this juncture, "Look I called in sick, I don't feel well; please leave me alone." Redondo recalls Hayden's response: "Hey, I called in sick and that is the way it is and if you don't like it, that is too god-damned bad, because I am not going anywhere with you, and he hung up on me." Redondo then called Ray Grant and related his ver- sion of recent events concerning Hayden. Included in his recitation of circumstances were his contact with Hayden that day, Hayden's previous suspension, Redon- do's counseling session with Hayden 1 or 2 weeks before, and additional difficulties Redondo had had with Hayden's work. Redondo sought Grant's advice. Grant informed him that Industrial Relations would review Hayden's file and call him back. Sometime later-Redon- do estimates an hour and a half to an hour-Grant called Redondo back. Grant testified concerning this conversation: I asked Mr. Redondo-I told Mr. Redondo I re- viewed the file and asked him what course of action he chose to take; what would he like to do in this situation and we discussed some alternatives and Mr. Redondo said that he would like to terminate Mr. Hayden. I said, well, that is consistent with what we have done in the past, but to go back and talk to Mr. Hayden again and see if there are any other circum- stances or if there is some more to the story that we haven't heard, and if there was, to reconsider and talk to me again and we will do some more counsel- ing. If not termination is in order. The conversation then ended. Immediately after the 11:45 a.m. phone conversation between Hayden and Redondo, Hayden made an ap- pointment with his personal physician located near his home. He went to the doctor almost immediately, was examined, and received two prescription medicines for a diagnosed bronchitis condition. Thereafter, at 3:30 to 4 p.m., Hayden called Redondo and informed him that he had gone to his own physician. Redondo received this telephone call after his conversations with Grant. Redon- do told Hayden that he did not want to discuss the matter on the phone. It was agreed that a meeting would take place the next day when Hayden came to the Base to pick up his paycheck. Redondo did not attempt to contact Grant with this information. The following day, March 29, at approximately 10:30 a.m., a meeting was held with Hayden, Redondo, Pete Joosten, the union shop steward, and Jay Coffman, Re- spondent's customer services supervisor. At that meeting Redondo recited the events of the previous day as well as the fact of Hayden's previous 2-day suspension for failure to cooperate. Further, he reviewed what he felt was Hayden's unsatisfactory performance in other areas including customer service complaints. During the conversation Hayden said he had been to his own doctor the previous day and proffered vials of prescribed medication. Redondo expressed disinterest. Hayden also asked Redondo if his termination was based on the fact that he had called the Union. Redondo denied that this was a factor in the termination. Hayden, during the conversation, was apologetic. In Redondo's recollection: During the conversation somewhere [Hayden] said, hey, Armando, if I promise never to complain about overtime, if I promise not to call in sick and change my attitude, can't we just forget the whole thing, and I said, it's too late for that, Bill. Redondo recalled that he initially asked Hayden if he would resign in lieu of discharge. When Hayden refused, Redondo informed him that he had no choice but to ter- minate him. Redondo prepared a termination notice giving as the reason for Hayden's discharge: "Failure to cooperate second time in 9 months." Hayden was marked as ineligi- ble for rehire based on "Hostile attitude toward the com- pany in matters pertaining to his work." Under "addi- tional remarks," Redondo noted, "this employee was counseled about his behavior and hostile attitude by two 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) different supervisors. He would promise to change and never did." Redondo also prepared a confidential report of the events. Rendondo's report recited in some detail his rec- ollection of the history of Hayden, including reference to his counseling session with Hayden 2 weeks before. The events of March 28 and 29 were set out in some detail. Redondo omitted however any mention of Hayden's visit to his own physician on the previous day. Respondent introduced evidence showing that employ- ees have been terminated and/or disciplined for both fail- ure to cooperate and for not visiting the company doctor as required. Considerable evidence was adduced con- cerning Hayen's work record at the time of his dis- charge. B. Analysis and Conclusions 1. Redondo's statements to employees and to Hayden Sometime in mid-March 2 Redondo addressed the meter readers as a group. A host of employees as well as Hayden and Redondo testified concerning the speech. The substance of what Redondo said is not specifically in dispute so much as recollections of it vary.3 In some cases recollections are quite vague. I find that Redondo, in a voice and mood indicating seriousness and concern, informed employees that someone had complained to the Union about an assignment of mandatory overtime and had accused Redondo of playing favorites. This had gotten him in "hot water" with the head office. Redondo then explained to the employees the circumstances of the disputed overtime assignment. He told the employees that before they went to the Union they should come to him so that he could have the opportunity to resolve any difficulty. It is clear from the testimony of the various witnesses that while Redondo may have told employees not to complain or take problems to the Union first, he did not flatly forbid employees to go to the Union. 4 Re- dondo did not directly threaten employees with adverse consequences if they went to the Union first. Nor did he name the employee who had complained to the Union the previous day. Redondo's remarks to the employees were made at a time when the employees were gathered together and were made in a serious manner. His message was clear 2 The conversation clearly occurred the day following Hayden's con- versations with Brown. Brown's telephone call to Grant, and Grart's telephone calls to Redondo and Brown. Grant, whose memory seemed more certain than others with respect to timing, placed his phone calls to Brown as occurring I week before Hayden's March 29 termination. Re- dondo placed his counseling session with Hayden, which occurred on the same day he addressed employees, as occurring 2 weeks before Hayden's discharge. Other estimates were widely varied and imprecise. I am satis- fied that the conversation occurred a week or two preceding Hayden's discharge. I find it unnecessary to further resolve the uncertainty as to the date. 3 What follows is largely a composite of the recollection of witnesses as to those parts of the speech they recalled in detail. Redondo's testimo- ny is not inconsistent with the testimony credited here although it was not as complete as the composite set forth. 4 Indeed there is testimony that on some occasions Redondo had point- ed out to employees the local shop steward and encouraged them to take problems to him. that employees were to bring problems to him first rather than to the Union. By announcing to the employ- ees that he had learned of an employee call to the Union, he also made it plain that he would learn of other at- tempts by employees to go "over his head." It is basic law that an employer cannot require employees to come to it before going to their representative with grievances. The issue before me however is whether it is a violation for a supervisor to make such a request to employees. The General Counsel cites cases finding a violation where an employer in an initial organizing context solic- its grievances as part of an attempt to prevent successful employee organization. Those cases are not directly in point for here the Union represents the employees and the record is devoid of any evidence indicating that such representation is under attack by Respondent. Respond- ent cites Peer Enterprises, Ltd., 218 NLRB 987 (1975), as dispositive of the issue. There a supervisor was alleged to have told an employee who had filed a safety com- plaint with a Government agency that it was illegal for the employee to file a complaint without first bringing it to the supervisor. The supervisor denied making the statement. The administrative law judge, with Board ap- proval, found that the statement had not been made. The administrative law judge went further, however, and said that even if the statement had been made it would not have violated the Act. I have carefully considered the decision but find that its language concerning the ques- tion before me is obiter dicta and therefore not binding upon me. Further its facts are distinguishable from those present here. 5 I find that Redondo's address to the employees was in- tended to and did have the effect of restricting employ- ees' access to their union representative. Any perception of a requirement that employees must go to their super- visor first with grievances will inevitably reduce access to the employees' chosen representative and therefore chill employees' Section 7 rights. Employees will be un- derstandably reluctant to reveal their unhappiness with management or supervision to their own supervisor. Fur- ther there are many problems other than personal dissat- isfaction which are appropriately brought to a union rep- resentative that an employee would be reluctant to dis- cuss with management. It is true that Redondo's remarks were in the form of a plea or request and were free from any overt threat. The circumstances of the speech, how- ever, including Redondo's seriousness and the fact that the speech followed hard upon an employee's call to the Union, seem to me to give Redondo's instructions a weight and appearance of official policy which cannot be ignored. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by his remarks to employees. On the same day that Redondo spoke to employees, Hayden, upon completion of his book, returned to the Base in the afternoon and informed Redondo that he had called the Union. Redondo said he would like to discuss it and took Hayden to a back office where they had a ' Redondo was not making a spontaneous comment in a consersaion with a single employee as the supcrvisor in Peer Enterproies His peech was clearly a planned address to the men as a group by their supervisor It was more than comment, it sounded like policy SOUTHERN CALIFORNIA GAS COMPANY 927 conversation alone. The subject of Hayden's complaint to the Union, i.e.. the procedures for assignment of man- datory overtime, was discussed. Redondo asked why Hayden had gone to the union headquarters. Hayden an- swered that he had the right to call the Union as he was paying union dues. Redondo said that if Hayden felt he had to "go over his head" he should keep his complaints local; i.e., go to the Base shop steward. Hayden an- swered that the Base shop stewards were a bunch of flunkies for the Company. During this conversation Redondo raised the fact that Hayden had previously been suspended because of his at- titude with respect to overtime. He told Hayden that he continued to show a bad attitude towards overtime and was overreacting to it. Redondo informed Hayden that overtime was a necessary part of a meter reader's func- tions and that there would be more difficulty for Hayden if he maintained the same attitude toward it. Redondo told Hayden that he could not keep bucking the Compa- ny and that he could find himself on the street without a job because, Redondo said, "the company is not going to tolerate any competition between you and them." 6 The Hayden-Redondo conversation may be analyzed similarly to Redondo's morning speech. Redondo's re- marks to Hayden alone, however, were much stronger in their chilling effect. First Redondo, upon learning that Hayden had been the employee who contacted the union, took him to a back room and by his own descrip- tion engaged in a counseling session-a process which occurs when employees have been in error or are in dif- ficulty with management. Redondo's remarks to Hayden, unlike his speech to the assembled employees, contained specific references to unhappy consequences for Hayden should he continue his conduct. These adverse effects were made clear by reference to Hayden's previous sus- pension and by allusion to being without a job. While it may be argued that Redondo's actions were based at least in part on Hayden's attitude concerning overtime, the timing and thrust of Redondo's remarks to Hayden made it clear to me that it was Hayden's call to the Union which aroused Redondo's ire not his continued distaste for overtime. I believe that Redondo's remarks were intended, reasonably could be interpreted, and were understood by Hayden, to communicate both Re- dondo's serious displeasure at the previous call to the e The above findings with respect to the conversation between Hayden and Redondo in the back office are based upon careful examination of the testimony of Redondo and Hayden concerning the events as well as the testimony of appliance service representative Pete Joosten regarding Re- dondo's partial recitation to him of his earlier conversation with Hayden Largely I have credited the testimony of each witness as to specific rec- ollections of w hat was said and done to the extent this did not cause con- flict with the testimony of others I believe that the recollection of each participant is not complete but that generally the testimony is comple- mnentary and, taken as a whole, constitutes a complete version of the con- versation. With respect to some areas of contradiction such as Hayden's recollections that Redondo told him not to go to the Union and that Re- dondo initially told Hayden he had found out Hayden had gone to the Union, I have favored Redondo's version over Hayden's My credibility resolution rises not so much from a belief that any witnesses were speak- ing falsely or that his recollection of halt as said was not sincere, but rather from a belief that Hayden's version includes conclusions and infer- ences not based on what was actually said Redondo seems to me to have the better memory This is not to say however that Redondo's tesimon is completely credited See fn 13 Union and the threat of adverse consequences to Hayden if his calls to the Union continued. Accordingly, for the reasons above, as well as the reasons discussed, supra, concerning Redondo's remarks to the employees as a group, I find that Redondo violated Section 8(a)(l) of the Act in his meeting with Hayden by threatening Hayden with adverse consequences because he called the Union and because he would not promise to cease calling the Union. 2. The discharge of Hayden The General Counsel contends that Hayden was dis- charged because of his activities in calling his union rep- resentative. Respondent argues initially that Hayden's ac- tivities were not concerted and hence not protected under the Act because they involved personal concerns only. Respondent's argument misses the point in two ways. First, the action of an employee in contacting the Union, even were it concerning a matter uniquely of in- terest to the employee, is constructively concerted by the very nature of the employee's right to representation. Second, the subject of Hayden's complaint to the Union, i.e., the procedures for assignment of overtime, is a con- dition of employment which applies to all meter readers and any change or clarification would affect all meter readers. Thus, his complaint was not personal or limited to himself alone but concerned other meter reader em- ployees. Hayden's actions are therefore both union and protected concerted activities. As the General Counsel notes, such activities are protected even if the underlying complaint is based on a misinterpretation of the agree- ments between Respondent and the Union. H. C. Smith Construction Co., 174 NLRB 1173 (1969). Accordingly, I find that Hayden's activities in calling the Union are pro- tected by the Act. There is no evidence, nor does the General Counsel contend, that Redondo was hostile to Hayden because of his support for the Union. The theory of the violation, as I understand the General Counsel's argument, is that Re- dondo was hostile to Hayden because he was contacting the Union away from the Base, and, further, refusing to promise to cease doing so. It is clear that Redondo had strong views concerning employees under his supervision going "over his head" by contacting the Union outside the Base. Redondo was clearly upset by Hayden's call. He expressed his concern to employees on the day fol- lowing Hayden's call to the Union. He noted that he had been contacted by management outside the Base and had been forced to address questions raised by the employee who called the Union. Again, when Redondo spoke to Hayden the afternoon of his morning address to the em- ployees, Redondo expressed hostility to those who would go "outside" the Base by contacting union offi- cials. These outsiders initiated inquiries which brought Redondo's activities to the attention of management out- side the Base. Based on an examination of the record and the demea- nor of Redondo,7 I find that Redondo had animus ? Based on Redondo's demeanor. I am convinced that Redondo took pride in his work and was strongly motivated to succeed in his positalionll Continued DECISIONS OF NATIONAL LABOR RELATIONS BOARD toward Hayden which resulted not from Hayden's hostil- ity to mandatory overtime but from the fact that Hayden was now taking his problems outside the Base to the Union. Redondo was upset with Hayden for raising with the Union the issue of overtime assignments, thus direct- ing the attention of the Union and higher management to Redondo's conduct. Perhaps more importantly, Redondo learned, based on his conversation with Hayden, that Hayden was likely going to continue to pursue his com- plaints with higher union officials. Hayden was not going to take his troubles to the Base steward-which might have preserved the opportunity to handle the question within the Base. Thus, not only was Redondo upset by the call to the Union, but he was confronted with the likelihood that Hayden, a longstanding and continuing complainer, was going to continue taking his complaints to the Union outside the Base. Management would have its attention repeatedly directed to Redondo. Faced with the likelihood that such complaints would continue in the future, I find that Redondo had a strong animosity toward Hayden. I further find that this animosity derived not from Hayden's previous disposition to complain about mandatory overtime, but because of his new tack of bringing these questions to union officials outside the Base. Given the strong animus of Redondo against Hayden because of his protected concerted and union activities, it remains to be shown that Redondo acted or omitted to act based on that motivation. The events of March 28 and 29 must be examined to determine what conduct of Redondo, if any, could be found to have been based on his improper hostility to Hayden. Respondent produced substantial evidence to show that Redondo's actions on March 28, 1979, were in con- formity with company practice. Thus, Respondent pro- duced evidence to show that Redondo's initial call to Hayden following Hayden's call-in reporting sick was consistent with Redondo's and other supervisors' past practice. So too, Respondent's supervisors have with some regularity scheduled appointments with company doctors for employees who report sick and/or have un- satisfactory or suspicious attendance records. There is nothing in the record to indicate that Redondo in any way behaved rudely o abruptly or outside his normal pattern in his telephone calls to Hayden. While Redon- do's scheduling of an appointment for Hayden with a company doctor may be suspicious, I find there is insuffi- cient evidence to sustain the burden of the General Counsel that Redondo's conduct to and including his ar- rangement of the doctor's appointment was in any way outside normal practice. Redondo's telephone call to Grant in which he related that Hayden had refused to go to the company doctor was likewise a procedurally correct action of a supervi- sor when faced with the unprovoked refusal of an em- One aspect of this motivation, in my view, however, was that Redondo was exceptionally sensitive to situations where the attention of higher management was directed to his conduct. An example of this was the great weight Redondo placed on a customer complaint which had been sent to him by an official of the Company. While other customer com- plaints had been destroyed over time Redondo made it clear that custom- er complaints addressed to higher officials were of special weight to him and were to be retained. ployee to comply with a proper order. The record is not completely clear as to the extent of the discussion of Hayden's record in this telephone call. The testimony of both Grant and Redondo indicates, however, that Re- dondo recited Hayden's problems with his work as Re- dondo perceived them and that he specifically mentioned the "counseling" session Redondo had given Hayden 2 weeks previously. 8 This conversation ended with Grant informing Redondo that the Industrial Relations Division would review Hayden's file and contact Redondo again. Grant then pulled Hayden's central office personnel file and, using its contents and the information supplied by Redondo in the immediately preceding phone call, discussed Hayden's record with his immediate supervi- sor, Robert Young, manager of labor relations. Young and Grant concluded on the basis of the record before them that Hayden was susceptible to termination.9 Grant then called Redondo. Grant told Redondo that he had reviewed the file and asked Redondo what course of action he chose to take. Some alternatives were dis- cussed.10 Redondo told Grant that he wished to termi- nate Hayden. Grant responded that the termination of Redondo was "consistent with what we have done in the past." Grant continued: I said, well, that is consistent with what we have done in the past, but to go back and talk to Mr. Hayden again and see if there are any other circum- stences or if there is some more to the story that we haven't heard, and if there was, to reconsider and talk to me again and we will do some more counsel- ing. If not, termination is in order. Thus, Grant gave instructions to Redondo to terminate Hayden only if Hayden had no additional exculpatory in- formation to supply relevant to his refusal to visit the company doctor. And Grant's instructions made clear that if there was "more to the story," counseling of Hayden rather than termination would be "in order." Later that day, Redondo learned from Hayden that he had gone to his own doctor. Hayden's information, as supplied to Redondo in their phone conversation, re- quired under Grant's instructions that Redondo call a There is no doubt and I find that the counseling session Redondo mentioned was the session I have found, supra, to violate Sec 8(a)(1) of the Act. Grant testified: [Wle both reviewed the file and concluded that in view of Mr. Hayden's record of failure to cooperate, that termination could be in order for Mr. Hayden for failure to cooperate. Q. [By counsel for Respondent] When you say in view of his record, what do you mean by that? A. He had a previous layoff for failure to cooperate. He had been warned approximately 2 weeks prior to this incident about cooperat- ing. This testimony makes it clear to me that Hayden's recent counseling ses- sion was a major factor in Grant's and Young's evaluation of how Hay- den's refusal to go to the doctor should be handled. As I have noted, supro, this counseling session resulted from Hayden's protected activity and could not properly be relied on to support a decision to take adverse action against Heyden. '0 Inasmuch as it appears that termination is the most harsh response available to an employer, I conclude that the alternatives discussed must have included a series of actions of a lesser degree of severity than dis- charge. 928 SOUTHERN CALIFORNIA GAS C()MPANY Grant, notify him of the additional facts regarding Hayden, and with Grant reconsider the matter of Hay- den's discharge. " Redondo took no such action but in- formed Hayden he did not wish to discuss the matter at that time. A meeting was to take place the following day. That meeting was held without Redondo ever con- tacting Grant. At that meeting, Redondo told Hayden that Hayden's visit to his doctor was too late to alter the decision to terminate him. Based on Redondo's testimony, his demeanor, and the record as a whole, I am convinced that Redondo paid se- rious attention to instructions to him from higher man- agement. It is incredible to me that Redondo would dis- regard specific instructions to him by the Industrial Rela- tions Division without some ulterior motive. In light of Redondo's normal desire to comply with instructions from higher management, I find that Redondo's omission to call Grant of industrial relations despite his quite spe- cific instructions to the contrary was based on a desire to effect successful termination of Hayden without putting that termination at risk by telling Grant of Hayden's visit to his doctor. I believe that Redondo's omission to call was conscious and willful and was designed to insure that Hayden would be terminated.l 2 Redondo's conduct convinces me, in conjunction with the animus exhibited by Redondo described above, that Redondo's recommen- dation to terminate Hayden, his subsequent omission to contact industrial relations regarding Hayden's visit to his doctor, and, finally, his termination of Hayden were part of a personal plan to take advantage of the miscon- duct of Hayden in refusing to go to the company doctor.1 3 For these reasons I am convinced that, but for Hayden's telephone call to the Union and his subsequent statement to Redondo that he would not limit his discus- sion of grievances, Redondo would not have recom- mended that Hayden be terminated and, further, that he would have contacted Grant before he terminated Hayden and brought Grant up to date regarding Hay- den's visit to his personal physician. Having found that Redondo's conduct was motivated in significant part by the protected activities of Hayden, it remains to be determined if the wrongful conduct of Redondo contributed in any way to Hayden's termina- tion. Hayden's conduct was not induced in any way by improper conduct by Redondo. The question remaining is whether or not industrial relations, had it known only of all of Hayden's actions on May 28 and not of any other recent conduct, would have instructed Redondo to terminate Hayden in any case. If this is so the actions i Redondo testified that if Hayden had determined to go to his own doctor and had informed Redondo of this fact., Redondo would not have scheduled the appointment with the company doctor. The Industrial Re- lations Division likely would have a similar vies Thus the fact of Has- den's ultimate visit to his own doctor, and the doctor's diagnosis of Ha- den's condition as requiring absence from work and medication. as of great relevance to the decision to terminate Hayden. Hayden's isit to his doctor and his diagnosis constitute. in my view. the type of other circum- stances of which Grant spoke 12 Redondo. in a long and detailed confidential report ,n the rents resulting in Hayden's discharge. prepared on Ith day of lHa)den', di,- charge. omitted and, mention f the fact that aydcnl had xi iteel hi, oe n doctor la: Redondo's denials of improper mnitisatlon r anitnlus are ccording ly discredited and omissions of Redondo found to be based on improp- er motivation would not have a causal relationship to Hayden's discharge. Close examination of the record evidence concerning the decision of industrial relations to fire Hayden, as well as Respondent's history of terminating employees for failing to visit the company physician, convinces me that, but for Redondo's recommendation to terminate Hayden and his failure to notify industrial relations of Hayden's visit to his personal physician, Hayden would not have been terminated. Further, I find that, even if Redondo's recommendation to terminate Hayden was proper, Re- dondo's act or omission to act in not informing industrial relations that Hayden had visited his personal physician was the principal cause of the discharge of Hayden. Thus, irrespective of Redondo's recommendation to fire Hayden, if Redondo had informed industrial relations of the fact that Hayden had subsequently visited his doctor, I believe, and the record indicates convincingly, industri- al relations would not have authorized the termination of Hayden. The evidence reflects that Grant and Young, in con- sidering action against Hayden, gave considerable weight to the 2-week-old counseling session of Hayden by Re- dondo for Hayden's alleged continuing failure to cooper- ate. Grant testified that this counseling session was a factor in his agreement with Young that termination would be proper in Hayden's case. Since the counseling session resulted entirely from Hayden's protected con- certed union activities, it may not be relied on in any way to support a termination. 4 Thus, Grant was told of recent misconduct by Hayden which was In fact wholly protected activity. Yet, even then, Grant did not give Redondo unrestricted authority to fire Hayden. Grant testified that Redondo was in- structed to report back to industrial relations in the event that there was "more to the story that we haven't heard." And, as Grant said, "if there was, to reconsider and talk to me again and we will do some more counsel- ing." I conclude from this that Grant, even considering the immediately previous counseling session as an ad- verse factor, was unwilling to authorize a termination until certain that there were no additional exculpatory facts. I am satisfied that if Hayden's visit to his own per- sonal physician had been reported, industrial relations would have determined that more counseling was the ap- propriate remedy for Hayden under the circumstances. This is even more true if the 2-week counseling session- which could not be used against Hayden-had not been reported to Grant. By way of defense, Respondent proffered evidence of employees who had been terminated for failing to see the company doctor and of employees who had been disci- plined for failure to cooperate. I have examined this evi- dence and conclude that it does not support the proposi- 14 I fnld the considerahlce eidcnce adduced ith repect It the qallt anll qantlit, of Hayden's sork t hbe f little alue I resolving the ilic before Ile First, Hasdenl' record, shil c arl niargiarrld, ritls al t rltiLl tisfactork and had hose.n sonic inprroclrieti Second. te gem ri d record of Hden sas at nost a mirnr iipeci of the ftors ,on xkile h his dis- chilgeC sa h,,l ot 2, 930 DECISIONS OF NATIONAL I.A3()R RELATIONS BO()ARI) tion that Hayden's conduct merited termination. With re- spect to disciplinary action for failure to cooperate, only I employee other than Hayden was discharged in the unit of almost 6,000 employees during 1978-79. That em- ployee, discharged in October 1979, was terminated only after a rather bizarre pattern of behavior including a complete failure to communicate with Respondent during a prolonged absence and despite many attempts by Respondent to contact him. So, too, the evidence re- lating to adverse actions based on a failure to visit the company doctor involved willfulness and avoidance sig- nificantly greater than the conduct of Hayden. For ex- ample, one employee reported he had had a nervous breakdown. He had not consulted a physician and he re- fused to submit to a physical examination by Respond- ent's physician. He also refused to return to work. Other employees canceled several appointments with the com- pany doctor while remaining away from work before being terminated for insubordination.S Based on all of the above, I conclude that the General Counsel has sustained his burden in showing that, but for the actions of admitted supervisor and agent, Redondo, employee Hayden would not have been discharged. I have earlier found that the actions of Redondo in caus- ing the discharge of Hayden were based at least in sig- nificant part on Hayden's call to the Union and his state- ment to Redondo that he would not take his problems to local Base union stewards. I have found these activies of Hayden to be protected activities. Thus, it follows that Respondent discharged Hayden because of his union and protected concerted activities. I conclude from all of the above that Respondent vio- lated Section 8(a)(1) of the Act by its threats to employ- ees and to Hayden, through its supervisor, Redondo, oc- curring a week or two before March 29. 1 find further that Respondent violated Section 8(a)(1) and (3) of the Act by terminating Hayden on March 29. IV. T'HI IFFI:CT O: IHE UNFAIR ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section , above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, in violation of Section 8(a)(3) and (I) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. A It should be recalled that Respondent's past practice Was known to GCralt at the time that he informed Redondo thai if Hayden had "more to his stor, to tell" that counseling rather than discharge would be i order Thus. in m s vew. Grant did not believe that Respondent's past practice supporlted an unqualified discharge aulhorization. CONCILUSIONS OI LAW I. Southern California Gas Company is an employer ctngaged ill commerce, in an operation affecting com- merce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Utility Workers Union of America, AFL CIO, and International Chemical Workers Union are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. By threatening employee Hayden with adverse con- sequences including discharge because he telephoned his collective-bargaining representative and by informing Hayden and other employees that they should bring their problems to their supervisor before they brought them to the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. By discharging employee William K. Hayden be- cause of his union and protected concerted activities, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Southern California Gas Company, Anaheim, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Informing employees they should bring their griev- ances to management before they take them to the Union. (b) Threatening employees with adverse consequences including discharge because they have taken their com- plaints to the Union. (c) Discharging employees because they have contact- ed their Union and/or because they refused to cease doing so. (d) In any other like or related manner interfering with, restraining, or coercing employees in the exercise of the rights set forth in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to William K. Hayden immediate and full re- instatement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges. (b) Make William K. Hayden whole for any loss of pay he may have suffered by reason of Respondent's dis- crimination against him by payment to him of a sum of "I In the event no exceptiors are filed as prosided hb Sec 10124 of the Rules and Regulations of the National Labor Relations IBoard, the findinlgs, cotncltsion s anid recommllr ended ()rder liereil shall as provided in Sec 1t02 48 of the Rules and Regulations. h adptled h the Hoard aid hbecome its findings. ccluiions. ad Order, and all obhectlonls thereto shall he deemed \Raied for .111l prpOies S()OUTHERN CALIFORNIA GAS COMP(ANY 931 money equal to that which he normally would have earned as wages. from the date of the discrimination to the date of Respondent's offer of reinstatement, less net earnings during such period. vith backpay to be comput- ed in the manner prescribed in F' H. Woolvworth Compa- ny, 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corporation, 231 NL.RB 651 (1977). See also Isis Plumbing & Ifeating Co.. 138 NLRB 716 (1962). (c) Preserve and, upon request, make available to the Board or its agents. for examination and copying, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility known as the La Jolla Base in Anaheim, California, copies of the attached notice marked "Appendix."17 Copies of said notice, on forms " In the event that this Oriler is enfirced hb at Judgnment of a United States Co urt of Appeals, the words in the notice re ding "lPosted h provided by the Regional Director for Region 21. after being duly signed b its authorized representative, shall he posted b it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order. w, hat steps Respondent has taken to comply heres ith. Order of the National L.abhor Relations Board" shall read "Posted ur, u ant io a Jdgmenet of the United Stiltes ('ourt of Appeal, Fnfriilg an ()rder of the National .abhor Relations toard "