Enerco International, Inc.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enerco International, Inc. and Ronald W. Gray. Case 17-CA-4890 November 22, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 16, 1972, Administrative Law Judge 1 Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and the Respondent filed answering briefs. 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 briefs2 and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 We hereby deny as without merit Respondent's several motions to strike exceptions filed by the Charging Party We hereby deny Charging Party's motion for rehearing or reopening of the record as failing to state a sufficient basis for granting such a motion TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This case was tried before me on March 9 and 10, 1972, at Kansas City, Missouri, with General Counsel and Respondent partici- pating through counsel and the Charging Party, Ronald W. Gray, appearingpro se, after pretrial procedures conducted in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues raised by the pleadings' are whether Respon- dent, Enerco International, Inc., reassigned Gray from light to heavy work, then discharged and failed to reinstate him because he engaged in the protected activity of complaints about job safety conditions, or for excessive fl The issues arise on a complaint issued December 27, 1971, by the Board's Regional Director for Region 17, after Board investigation of charges filed by Gray on November 2 and December 21, 1971, and answer of Respondent admittingjurisdiction and the discharge of Gray but denying the commission of any unfair labor practices. absenteeism, poor work due to drinking, abuse of supervi- sors, and breach of work rules. At the close of the testimony, the Trial Examiner reserved decision on Respondent's motion to dismiss the complaint for failure of proof. All parties waived oral argument, but General Counsel and Respondent filed briefs on April 3, 1972, which briefs have been carefully considered by the Trial Examiner in disposing of said motion and preparation of this Decision which was signed and released by me on June 14, 1972 for distribution to the parties in the usual course.2 Based on a review of the entire record, observation of demeanor of witnesses on the stand, and analysis of the briefs submitted, I make the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Respondent is a Missouri corporation engaged in the installation and erection of heavy equipment, with its main office and place of business in North Kansas City, Missouri, and subsidiary offices at its various projects. In the course of its business Respondent sells goods and/or renders services valued in excess of $50,000 annually directly to customers located outside Missouri, and has direct annual inflow of goods and/or services valued in excess of $50,000. Its annual gross volume of business exceeds $500,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Iron Workers Local 10 (herein called the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Facts At all times material herein Respondent engaged as subcontractor to Ebasco Industries for the installation of a long coal conveyor with accessory coal-processing build- ings at a power plant being built for Kansas City Power & Light Company at LaCygne, Kansas (herein called the Project). The following persons were agents of Respondent and supervisors at the Project within the meaning of Section 2(11) of the Act: Lynn M. Long, superintendent; David E. Utter, gang foreman and general foreman; and "Bill" Burton, general foreman before Utter. While operating on the Project, Respondent was a member of the Builders Association of Kansas City and thereby subject to the terms and conditions of the Association contract with the Union which had jurisdiction over this Project. The ironworker steward on the job was Peter P . Vidmar. 2 A preliminary motion of Respondent for a pretrial conference, which was referred to me by order of another Trial Examiner dated February 27, 1972, is not formally ruled upon, because it was not pressed by Respondent, after General Counsel and Respondent had cooperated in reaching pretrial stipulations at the outset of the trial. 200 NLRB No. 63 ENERCO INTERNATIONAL, INC. 395 B. Treatment of Gray3 Ronald W. Gray, a middle-aged stocky man, who had been an ironworker about 17 years and a member of the Union for 12, was hired by Respondent on the Project on March 24 and assigned to work in a yard gang which was unloading heavy structural steel and construction equip- ment from railroad cars and assisting in placement thereof on trucks for movement to various places on the Project. When hired, Gray worked under Foreman Utter, who reported to General Foreman Burton; at his discharge in June, Gray was supervised by another foreman, with Utter as general ironworker foreman. In unloading steel and equipment from railroad cars, the yard gang prepared the items for lifting by fastening them with "chokers" to boom hooks on portable cranes, which then lifted the items and dropped them on the trucks, with ironworkers guiding the loads into position by hand. The chokers are lengths of flexible, stranded steel cable, from 4 to 10 feet long and varying from 3/8-to 3/4-inch in thickness. Obviously the chokers had to be the right size and capacity and in good condition to lift safely varying weights of steel and equipment being unloaded. As Respondent claims Gray was discharged for excessive absenteeism, it is proper at the outset to note that Gray's work record was spotty in this respect. The record shows that, although he was hired March 24 and worked that day, he took time off the next 3 days with permission of General Foreman Burton to finish some work for his former employer. He was absent April 9 and 12, a Friday and Monday, making a long weekend; he explains he took time off on some Friday in April to take care of repairs on his car, which had broken down earlier in the month. He gives no explanation for another Friday absence on April 23. Gray's serious absences began after an accident he suffered April 28, when the yard gang was engaged in rigging slings on a heavy caterpillar-type track prior to its removal from a railroad gondola car to a truck for movement to a spot where the track was to be assembled on a heavy-duty 100- ton crane to be used for lifting structural steel into position on a main building. That morning, after the yard gang had rigged the track for lifting, it developed that a single 25-ton capacity Koehring crane did not have the power to lift the track by itself, to Supervisors Burton and Utter ordered a smaller Galion 12-ton crane moved into position to assist in the lifting. Gray testified, with some corroboration from other witnesses,4 that as the Koehring crane operator tried to ease the track back on the gondola car after trying to lift it, one end of the track slipped off the car and, in an attempt to prevent it from slipping to the ground, Gray by himself tried to force it back on the car, using a 4-by 4-foot timber as a lever. As he did so, the track dropped, forcing the timber out of his hands and striking him in the ribs. This occurred about 3:45 p.m. and as the blow did not bother Gray much at the time, he continued to work until quitting time. After work Gray 'drove as usual to his motel room at Fort Scott, about 40 miles away. Between 9 p.m. and midnight that night, the pain in his & All dates found herein are in 1971 , unless otherwise stated. 4 Various ironworkers called by both sides, Utter and Engineer Shaun W. Allen ribs became worse, so Gray drove to another town nearer the Project to try to find a doctor. After inquiries at a gas station and to a policeman, he finally located and was driven to a motel where Project employees were staying. There he located Respondent's engineer and timekeeper, Shaun W. Allen, about 4 a.m. and reported the injury and asked for hospital treatment . He finally got emergency treatment with X-rays at a Fort Scott hospital about 5:30 a.m. on April 29, where the company doctor gave him pain pills and said he could return to work Monday, May 3. A nurse at the hospital gave him a "light-duty" slip. On April 30 or May 1, Gray drove to the Project to get his paycheck and report his injury. Superintendent Long asked when he would return to work, and he said Monday for light-duty, giving Long the "light-duty" slip. Later that day he visited the company doctor who strapped his chest. Gray further testified when he reported for work on May 3, he was assigned by Burton to light work in assembling nuts and bolts in a supply shed. As he walked to the shed, Superintendent Long asked where he was going, and when Gray told him his assignment , Long replied he did not want bolts made up and ordered Gray to report to Utter for work with the yard gang. When Gray did so, Foreman Utter told him to "take it easy" and to "take off" if he felt bad. Gray worked that day on a flatcar with the yard gang, fastening material to be unloaded to crane booms with chokers; he apparently did no more active work , such as pushing or guiding materials into place by hand. He left about 3 p.m. with Utter's permission to see the company doctor. Gray worked with the yard gang on May 4 and 5, but on the latter date secured a pain pill prescription from the doctor to ease his chest pains. He did not work May 6, telephoning to the Project that he was in pain. Gray further testified on May 7 he was driven by a friend, Charley Joe, to the Project to pick up his paycheck. He got his check from the office; Long said he was firing Gray. During a hot argument about Gray's demand for a termination slip with reason for discharge, and the reason for his absences, the contents of the doctor's report on his injury were discussed, with Engineer Allen and Assistant Superintendent Fellers, who were present, pointing out that the report and X-ray were "negative" and Gray ordering both men to shut up so he could talk to Long. Steward Vidmar was called in, and after he heard about the argument, he asked that Gray be reinstated, referring to his injury on the job, Long reluctantly agreed that Gray could return to work May 10. Gray worked May 10, 11, and 12, but reported to Utter that he still had pain in his ribs, and could not bend, so he would take a few weeks off until he healed up. He was absent from work May 13 through 28, 12 days, during which period he once consulted his own family doctor, who treated him and gave him a slip allowing him to return to full unrestricted duty on June 1, after Gray asked for such a slip. Gray worked on June 1 and 2, giving Utter the doctor's release. He did not work June 3 because it was raining hard but called Utter and said he would not drive the long distance to work from his motel because of the rain. When 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he worked on June 4, Utter advised Gray in a private talk about 3:30 p.m. with Foreman Wally Robb present that he did not want to lay off Gray nor did Robb, but Long was "determined to fire" Gray. Utter shortly brought two paychecks to Gray from the office. When Gray asked for a termination slip stating the discharge reason, Utter said Long refused to give one, saying he did not have to. Utter repeated that neither he nor Robb wanted to fire Gray, but they could do nothing, as Long was "determined to fire" him. On the subject of Respondent's safety practices, Gray testified that from the date of his hiring, Respondent had compelled ironworkers to use chokers which were unsafe because most of them had broken or frayed wire strands or twists and kinks in them which weakened them and made them dangerous to use. Gray repeatedly called their condition to the attention of Utter and Burton, and also Steward Vidmar, warning that someone would get hurt if a bad choker broke. After one incident on April 27, in which an ironworker nearly got crushed when a clamp gave way and dropped a load of steel, Gray warned Superintendent Long and his assistant, Fellers, that someone would be killed, and asked when good chokers would be furnished. Long replied that they were on order and would come in shortly. Utter also told Gray several times that new chokers should come in "on the next truck." Gray also reported this accident to the safety engineer of Ebasco, the prime contractor, who said he would bring it to Respon- dent's attention in a safety meeting, and request it to get new chokers. Gray reported this conversation to the rest of the yard gang. When Gray returned to work on June 1, a truck brought six pairs of new chokers to the jobsite. Gray took two pairs for the yard gang to use, but Ron Elam, an ironworker from the raising gang, came over shortly and took them back to that gang, saying Long ordered him to get them all for that work,5 "and that the only thing I would get would be a check." At one point, Superintendent Long yelled out to Elam loudly that the new chokers were not to be used by the yard gang, they were only for the raising gang. However, Gray noticed that the raising gang actually used only one or two pair of them; the rest were left on the ground and continually run over by trucks, while the yard gang continued to get along with frayed, broken, and twisted chokers. Gray did not try to use any of the unused new chokers because of what he had heard Long say. C. Contentions of the Parties, and Final Findings of Fact and Law Although there is conflicting evidence on the extent to which Gray complained about unsafe chokers directly to Superintendent Long, there is no credible denial by company witnesses of the accident of April 27, Gray's complaint to Long and Fellers about it, his talk with the 5 The raising gang consisted of ironworkers working with high cranes to raise steel beams and frameworks 100 feet or so for placement in tall structures such as a coal hopper , breaker house, crusher house, etc. 6 Westmont Tractor Company, 173 NLRB 1188. 7 Although Gray says he showed a broken choker to the Ebasco safety man on this occasion he does not say he showed or mentioned it to Long. The superintendent denied categorically that Gray ever talked to him about unsafe chokers or showed him any. The records of the periodic safety Ebasco safety man about it, and report on it both to the yard gang (which then included "Butch" Long, a relative of the superintendent and of Fred Long, an owner of Respondent) and to Robert L. Long a cousin of "Butch" and son of Fred Long. Hence, I find that Gray's complaints about chokers were known to Respondent as early as April 27 or 28. It is well settled that presentation by a worker of oral complaints or grievances about unsafe working conditions on a job under circumstances indicat- ing he was speaking for other workers as well as himself amounts to protected concerted activity. Therefore, I also find that Respondent was aware of Gray's protected activity in this area long before his discharge .6 General Counsel argues that Gray's alleged prominence in this concerted activity caused Respondent to retaliate against him by (1) forcing him as early as May 3 to perform regular work instead of light duty jobs as requested by the company doctor, (2) trying on May 7 to discharge him without stated reason, which action was rescinded only at the intervention of the union steward, (3) depriving Gray and the yard gang of new chokers on June 1 after Gray tried to take some for gang use, with the intimation that Gray "would get his check" and (4) giving him his final paychecks on June 4 through General Foreman Utter under pretext of an economic layoff of Gray and one other man. Aside from Gray's single protest to top management when a clamp broke on April 27 (which apparently did not involve failure of a choker) 7 the whole record does not support a finding that he was the sole or most prominent spokesman for the ironworkers in bringing unsafe condi- tions to the attention of Respondent and urging corrective measures, but rather demonstrates that: (1) Gray was merely one of up to 50 ironworkers who almost daily griped to Utter and Burton about the lack of good chokers, the condition of those they had to work with, and continually asked for new ones, with manage- ment always replying they were on order or would "come in on the next truck." s (2) Steward Vidmar constantly received such complaints from the men and relayed them to Supervisors Long, Utter, and Burton, receiving the same reply; and he also talked to the Union's business agent about it, but the Union apparently did not feel the safety problems with chokers were serious enough to make formal protests to Respon- dent, or to file grievances under its contract, much less to take more forceful action such as a strike .9 (3) Although Gray claims he was quite outspoken on the job about unsafe chokers and equipment, the record shows that he never made these complaints Qpenly at the periodic safety meetings conducted by Respondent for all crafts on the job although supervisors asked for any complaints at those meetings, and Gray was well aware of Respondent's posted notice asking that all unsafe conditions and meetings held by Ebasco on the Project significantly does not show any complaint or problem involving unsafe chokers on Respondent 's portion of the whole Project. 8 I find these facts from credited testimony of Gray himself, Utter, Fellers, and Superintendent Long. 9 These facts are found from credited testimony of Gray himself, Vidmar, Raymond Shepard, Donald E. Metcalf, Jimmy D. Roberts, and Larry Harrell. ENERCO INTERNATIONAL, INC. 397 accidents be reported at once to its safety engineer, Shaun Allen.10 (4) During Gray's employment Respondent was diligent to respond to the ironworkers' gripes about working conditions, by publicizing and implementing its own safety program, both through the notice cited above and, with respect to chokers, constant orders by all supervisors that employees, particularly ironworkers, should not use worn, frayed, or broken chokers but either destroy them personally on the spot or turn them in to the tool shed for cutting up by the millwright in charge of supplies. The ironworkers did this, both because of Respondent's notice and because it was a commonsense practice enforced by the Union itself on projects manned by its members. In complying with the complaints, Respondent brought good used chokers to the Project from its other construction jobs when available; this occurred about four times a month. It also had new chokers on order from the start of the Project but deliveries were slow, because Superintendent Long ordered the stronger hand-spliced chokers which could not be procured as quickly as "knuckle" chokers. Thus, ironworkers and other craftsmen often had to use worn but not unsafe chokers, but were never compelled by Respon- dent to use unsafe ones. The effectiveness of Respondent's safety program regarding chokers is shown by the minutes of 13 weekly safety committee meetings held by Ebasco on the Project from March 17 through June 2, which show that probably only 6 accidents involving ironworkers on Respondent's worksite out of a total of 69 reported for the whole Project were reviewed and discussed, and none of these involved use of unsafe chokers; in addition, only five job safety conditions reported with suggestions for im- provement, out of a total of 138 reported, specifically appeared to involve Respondent's operation and work- force. Of the six accidents reported on Respondent's worksite one was Gray's April 28 injury, and all of these were discussed at Respondent's periodic safety meetings for its own workforce. The gravity of the choker problem is further minimized by the fact that most choker complaints arose because the ironworkers often had to use twisted or kinked chokers which condition, while not making them unsafe if used properly, made them harder to handle and to loop around steel and equipment for lifting.'l It is clear from these facts that safety problems involving chokers on Respondent's operation were minimal and certainly not abnormal, and that the repeated complaints of ironworkers and their steward about the lack of new chokers and condition of those on hand amounted to no more than the normal griping of employees engaged in hazardous work on, a heavy construction' job, and were far from the type of serious complaints about actual dangerous conditions which might' be expected to goad Respondent into retaliation against those who brought such conditions to 10 I find these facts from credited testimony of Fellers, Vidmar, James H. Reynolds, Norman Davis, Robert L. Long, Vernon Wuerdman, Shepard, Metcalf, and Roberts, and documentary proof. 11 These facts are found from credited testimony of Superintendent Long, Fellers, Robert L Long, Davis, Loyal K. Larson, Dwight D. Herrick, Wuerdman, Vidmar, Shepard, Roberts, Harrell, and Metcalf Testunony of Gray, and Vidmar in conflict therewith is not credited. I" It is also noteworthy that the circumstances of Gray's injury on April 28 did not involve the use of unsafe chokers or other equipment. In fact, light. These circumstances further minimize the impor- tance or notoriety of Gray's remarks on this subject.12 I find no discriminatory action in the treatment of Gray on May 3 when he first returned to work after his accident. Although Utter supports his story that he was first assigned to assembling nuts and bolts in the shed, Long denies that he ordered him to stop that work and return to the yard gang, saying he had no right to give this order under practices of the Union, but always relied on his union foreman to make such assignments and transfers. I credit Long as against Gray on this because Gray made no protest about the transfer, by mentioning the light-duty slip from the doctor, which would have been a natural action if he felt he was being treated improperly. Further, Gray admits he worked that day and the next two with the yard gang, hooking chokers onto material for unloading from flatcars, without protest and without mention of the light- duty slip. Utter admits he knew from Burton that Gray was slated for light work, hence gave him the flatcar work, and also told him to "take it easy" and "take off" if he felt bad. Gray left early the afternoon of May 3, not because he complained he could not work due to pain, but to get a further examination by the company doctor; and the doctor did not renew his pain pill prescription until May 5, when Gray felt pain. I conclude from these facts that, no matter who transferred Gray from the bolt assembly job back to the yard gang (Burton was not called by either side to testify on this point), Gray was not in fact,put back on regular heavy duty as an ironworker on this occasion, but was given the less strenuous tasks on the yard gang, and the record fails to show that the transfer was directly or impliedly caused by his prior nominal griping about chokers. I grant Respondent's motion to ;dismiss para- graphs 5(a) and 6 of the complaint dealing with these events, and will recommend dismissal of the complaint to that extent. Gray's story of the first discharge action of May 7 is corroborated in some respects by Vidmar, except that the steward recalls Gray appeared "woozy" in the office and he interceded for him to get his job back without any mention of Gray's accident or injury. He also admits Long told him, when he took Gray outside, to get the car in which Gray came, with its other occupants "and the' booze off the property," and that Vidmar took the whole group down to the gate, telling the other men they had ' no business on the project site. I credit the story of Gray and Vidmar, as it is not contradicted by Respondent's witnesses, but the significance of the whole event is that Gray was apparently discharged that day because of his past record of absences, including those of May 6'and 7 which management felt were not justified by the doctor's report on his injuries,13 and that Gray became belligerent and insubordinate toward three management officials credible testimony of workers Roberts, Davis, Robert L. Long, and Lane indicate that the yard gang plus the crane operators got that job finished by the end of the day, with the use of used but not unsafe chokers, under ^ the direct supervision of Burton and Superintendent Long at the end. is That report was dated May 5 and indicated Gray could ! resume regular work on May 4. If Long had it before him on May 7, he had justification for questioning Gray's absences of May 6 and 7, along with his earlier absences. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (whether he was "woozy" from taking pills or drinking beer on the way to the Project), and Long was compelled by Gray's attitude and remarks to call in the steward to pacify Gray, and was even then reluctant to reinstate him, doing so only at the request of the steward. The complaint does not charge that this discharge was a coercive or discrimina- tory action. Hence, I find that it shows only that Respondent was dissatisfied as early as May 7 with Gray's poor attendance, as well as his immediate insubordinate attitude on that date which appeared to be due to drinking, apparently a frequent habit of Gray.14 The incident of June 1 involving the use of new chokers by the yard gang, as related by Gray alone, will support no more than speculation that management was depriving Gray (and also the yard gang) of new, safe equipment for discriminatory motives. The only testimony which might point to an inference of such motive lies in Elam's alleged remark "the only thing I would get would be a check." Gray may have assumed, as he testified, that the "I" referred to him, but Elam is not called to say that he made the remark and explain who he meant, nor explain why he made it, particularly whether it was based on something Long said to him when ordering him to take all new chokers to the raising gang. There is no proof that Long mentioned Gray or spoke directly to him when shouting out that the chokers were only for the raising gang. Gray also admits that Long never told him directly he had to work with used or unsafe chokers, and he gives no reason for not complaining on the spot to Long that the yard gang was entitled to new chokers (like his earlier complaint about the broken clamp), other than the self-serving, subjective one that if he complained he would probably "get my check right then." Hence, it is pure speculation to say that the quoted remark by Elam is indicative of discriminatory motive.15 As against this weak proof, the economic purpose of Long's order is made clear by (1) Gray's admission that the raising gang had to lift steel and equipment about 100 feet in the air and bolt it to portions of a building, and (2) Utter's admission that the need of the raising gang for new chokers was more critical for this reason. In addition, Vidmar says that while the raising gang, of which he was then a member, got all new chokers when delivered, that crew never had the use of all of them, as other workers borrowed them from the tool shed from time to time. Gray offers no explanation why he or the yard gang did not try through their foreman to get them from that source even after Long's order. On all these facts, I cannot find any credible proof of conduct indicating discriminatory motive toward Gray in the events of June 1. Gray's story of his discharge on June 4 under cloak of a spurious economic layoff finds partial support in Utter's 14 On his appearance of drinking, I also credit the testimony of truckdriver Donald R. Lane, who was near the office trailer when Gray came in on this occasion, and noticed that he appeared to be drunk, as well as testimony of engineer Allen that Gray appeared drunk when he approached Allen for medical aid in the early hours of April 29. 15 If anything, Long's conduct and remarks are more indicative of discrimination against the whole yard gang than of harassment of Gray alone. However, the complaint does not allege, nor does General Counsel argue, general antiunion discrimination against the yard gang. 16 To the contrary, Gray's placement of the "cutback" on Friday, other than a payday, and in the presence only of supervisors who were members of his own union suggests he might have concocted a time and place when testimony that on that date Long told him to lay off Gray and Smallwood because a cutback was necessary, so Utter laid off both at the same time that day. When Long ordered the cutback, Utter had suggested the layoff of Smallwood who was a poor worker, but did not recom- mend Gray whom he considered a good rigger. However, the story of both has serious weaknesses. At the outset, I note that the complaint alleges specifically the discharge occurred on June 9, which accords with testimony of company witnesses considered below. Second, a discharge by management through a general foreman is at variance with Respondent's practice on this Project of having all hiring and firing done by Superintendent Long, as admitted by Utter himself; the variance from the usual practice is not noted by General Counsel or explained by witnesses.16 Further, although both Gray and Utter say Gray and Smallwood were laid off at the same time, about 4 p.m., company records show that Gray was paid for only 6 hours of work that day, while Smallwood apparently worked and was paid for a full 8 hours. It would seem that if Respondent were concocting a spurious layoff of two men to conceal a discharge of one, it would have built up the mask by actually laying off both men at the end of 6 hours; the payroll treatment of Smallwood detracts from the inference of a layoff of both. Further, Smallwood was not called by General Counsel to corroborate Gray on Utter's explanation of the fake layoff and retention of Smallwood. More significant, however, is Utter's complete failure to recall the date of this incident, and credibly to support Gray's story that Utter indicated neither he nor Robb wanted to let Gray go, but Long was "determined to fire him"; Utter insisted in testimony that the termination of both men was a layoff, not a discharge.17 As against the contradictory testimony of Gray and Utter, testimony of Superintendent Long, Assistant Super- intendent Fellers, and Engineer Allen and company records indicate that Gray was absent from work on June 7 and 8 without apparent reason. He did not report for work at the usual time on June 9, but drove into the Project about 10 a.m. in the same blue car, with the same driver, in which he had come to the Project on May 7. There were two other men in the car besides Gray and the driver, and Gray and one other were drinking beer out of cans. Gray got out of the car unsteadily and, after asking Millwright Herrick where he could find Long, walked unstably toward the office trailer, muttering and calling Long a "s-o-b." On the way he met Utter coming from the office, and told him he wanted his last week's paycheck. Utter went back and told Long, who said he would give it to Gray, but wanted he would normally be dealing only with fellow union members whose testimony might be favorable to him. 11 The fabricated nature of Gray's story is further shown by his additional testimony on rebuttal which has Utter specifically telling Smallwood he would be recalled on Monday, and "the reason he (Long) is doing this is he is trying to show a reduction in force so he won't get in no trouble with the union." If this were the fact, it is not explained why Utter did not testify to this effect on his direct examination. I am satisfied that this "afterthought" testimony is merely a projection of the subjective thoughts Gray expressed about the alleged layoff of June 4 in his testimony, which was clearly self-serving in this respect. ENERCO INTERNATIONAL, INC. 399 to talk to him personally. Utter went out and sent Gray in.18 When Gray came in, his appearance and speech indicated he had been drinking; Engineer Allen smelled liquor on his breath. Long told Gray he was being discharged because of his poor work record, saying Gray had missed so much time from the job. Gray said he was hurt on the job and had to stay out. Long asked if he had a doctor's certificate about this, and Gray said he did not. Fellers and Allen said the doctor's certificate they received showed "negative." Gray then became angry, calling Long a "s-o-b" and disparaging him, Allen, and Fellers and their reference to the doctor's report by a scatological reference to horse droppings. He also threatened to fight them and beat them up. Long told Utter to bring Steward Vidmar in, and also told Allen that if Gray caused trouble he should call the local sheriff. Utter went out and returned shortly with Vidmar. Long told Vidmar about Gray's bad attendance record. He said Gray had been hurt and that if he could produce any doctor's report justifying his absences, he would reinstate Gray, but he only had the report from the company doctor (dated May 5) showing "negative injuries," and showed it to Vidmar. Vidmar apparently did not dispute this or comment on it. Long then asked Vidmar to get Gray off the jobsite. Long gave Gray his final paychecks, and Vidmar took him outside the office, with Gray mumbling to himself and walking unsteadily. Gray said he wanted a termination slip, as he got "laid off." Vidmar said he would get one, and went back and asked Long for it, but Long said he did not give them out, that Gray would get one from the North Kansas City office of Respondent. Gray has never been reinstated. Although Long, Fellers, and Allen were company officials and obviously partisan in their testimony, I must credit their mutually corroborative version of the date and circumstances of the discharge, because they testified in a straightforward and impressive manner, unlike Gray, and their testimony receives substantial support from union employees Robert L. Long, Shepard, Herrick, and Long on the drunken appearance and conduct of Gray when he first came onto the jobsite and approached the office, and on leaving the office on June 9.19 In addition, while Vidmar could not recall the date of discharge, he clearly distin- guished that occasion in his testimony from the similar events of May 7 when he had first interceded for Gray; it is significant that he made no similar attempt to intercede on June 9, and the Union never filed any grievance or unfair labor practice charge on the basis of the June 9 discharge. In sum, the testimony of the supervisors and company records indicate clearly that Long fired Gray mainly because of his past absenteeism, with the recent long 12- day absence not fully accounted for, and that Gray's conduct in the discharge interview also played a part in the decision. The discharge for absenteeism appears to be in accord with company policy, outlined by Long, of discharging a man for absence of 3 consecutive days without known reason.20 While Respondent had received the first doctor's report of May 5 on or about May 7, which tended to justify Gray's absences of April 29 and 30, and possibly those of May 6 and 7, Gray produced no later justification for the 12-day absence from May 13 through 28, or the absences of June 7 and 8, although he testified he had received treatment from his own doctor in that first long period. Hence, the delay in discharging Gray until after that long, unexcused absence does not detract from the validity of the final discharge; if anything, the action on June 9 after the reluctant reinstatement of May 7 shows an unusual forbearance by Respondent, and that it reached the end of its patience with Gray only after the long and unexplained absence and he had upbraided his superiors in a disruptive and insubordinate manner for the second time in a little over a month.21 Considering all of the pertinent facts and circumstances and the arguments of counsel pro and con, I am constrained to conclude that Respondent has adduced substantial proof indicating that Gray was discharged for cause which is adequate to rebut the rather weak proof tending to show discrimination adduced by General Counsel,22 and that counsel for General Counsel has failed to sustain the ultimate burden of showing by substantial proof on the record as a whole that Gray was discharged for engaging in protected concerted activity. I therefore grant Respondent's motion to dismiss the complaint insofar as it alleges an unlawful discharge and refusal to reinstate Gray, and will recommend dismissal of the complaint in its entirety.23 On the facts found above I conclude as a matter of law 18 When the blue car first drove up, Fellers noticed it was a strange car, as he knew Respondent had not issued an entry permit for a blue car. The vehicle in fact had no permit on it. Fellers recognized Gray in the back seat drinking beer, but the other men were strangers to him, not employees of Respondent. He mentioned this to Long, who looked out and saw Gray drinking from a beer can. He sent Utter out to check on the car. 19 Gray's penchant for drinking to the extent that it affected his conduct and talk is shown by testimony of Lane and Allen noted above, and by Utter's careful admission that Gray "never reported to work drunk, that I know of," but that he had seen Gray drunk while off duty. 20 This policy was dictated by Respondent's basic need for a steady workforce in order to meet its time schedule on the Project, which would be jeopardized if employees were repeatedly absent without notice or under circumstances making it difficult for Respondent to secure replacements promptly. 21 On this point, Long testified without contradiction that he had often talked with Burton and Utter about Gray's absences, whenever they reported they were short of men because of his absences, and when they could not give any reported reason for his absences except the possibility of his April injury, Long forebore to take action against him until he could get some medical explanation of it Aside from the doctor report of May 5, which approved a return to regular duty on May 4, Respondent never got any later medical report justifying the later absences, so Long felt he had given Gray enough chances to improve his attendance. I have also considered the circumstances that no one mentioned Gray's complaints about unsafe conditions on the job at the June 9 discharge interview, and that Respondent apparently took no discriminatory action against another ironworker, Paul Jones, who, according to Gray, had once complained to Long personally about the lack of new chokers , indicating he could find some if Respondent could not 22 The fact that several other defenses alleged in the answer were not proven or stated to Gray at his discharge does not detract from the validity and strength of the defense of excessive absenteeism , which was alleged, stated to Gray at his discharge, and proven at the trial. The fact that his flagrant abuse of supervisors on two occasions was not specifically cited to him at discharge is of no significance , for his misconduct on June 9 must have been self-evident to him , Vidmar and the officials who bore the brunt of it. 23 In reaching this conclusion on the facts and the law , I have also weighed carefully other arguments made by General Counsel on the basis of certain other facts and circumstances disclosed by the record, but I make no specific findings thereon, as I have found them insufficient to warrant findings of fact different from those made above, or to support or compel a finding of violation of the Act 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent, as an employer engaged in commerce lions of law, and on the entire record in the case, I hereby within the meaning of the Act, has not violated the Act by issue the following recommended: 24 its transfer of Ronald W. Gray on May 3, 1971, from temporary light duty to regular duties, by his discharge on ORDER June 9, 1971, or by its failure and refusal to reinstate him on and after that date. The complaint in Case 17-CA-4890 is dismissed in its entirety. RECOMMENDATION On the basis of the foregoing findings of fact, conclu- 24 In the event no exceptions are filed as provided by Sec. 102 46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes