Bechtel Power Corp.

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bechtel Power Corporation and Peter Pitzo. Case 4- CA-14361 27 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 16 January 1985 Administrative Law Judge Bernard Ries issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed a brief in response to the cross-exceptions.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings, and conclusions and to adopt the recommended Order as modified. Peter Pitzo, the Charging Party, an electrician with some 24 years of craft experience, was em- ployed by the Respondent in its construction of a nuclear power plant, called the Hope Creek Gener- ating Station, in Hancocks Bridge, New Jersey.2 Pitzo's version of the critical events is substantially as follows. On Monday, 12 March 1984,3 Pitzo and his part- ner, Murphy, were working in the south bay crane i On 22 March 1985 the General Counsel filed with the Board a motion to strike the Respondent's exceptions In her motion the General Counsel asserts that the Respondent's statement of exceptions fails to meet the specificity requirements of Sec. 102 46(b) of the Board's Rules and Regulations On 8 April 1985 the Respondent filed an objection to the motion to strike We deny the General Counsel's motion Although the Respondent's exceptions do not conform in all particulars with Sec 102 46, they are not so deficient as to warrant striking Moreover, the General Counsel has not shown prejudice as a result of any deficiency In light of all these circumstances, the motion is denied In its brief the Respondent objects to some of the judge's corrections to the transcript We need not pass on such objections as the disputed corrections are immaterial to the resolution of the case. The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings, except as specifically set forth below We note that although the Respondent did not formally except to the judge's credibil- ity resolutions, the Respondent's brief disputes some of the judge's credi- bility resolutions, and we have duly considered the Respondent's argu- ments in reaching our decision 2 The Respondent was a party to a nationwide collective- bargaining agreement with the International Brotherhood of Electrical Workers, in which the Respondent agreed to comply with the terms and conditions of the collective-bargaining agreement of the relevant IBEW local at the Respondent's project sites The parties stipulated that the Respondent and IBEW Local Union No 592 were bound by the Local 592 collective- bargaining agreement at the Hancocks Bridge jobsite 3 All dates are in 1984 unless otherwise indicated area of the turbine building on a scaffolding above the entry through which cranes and other heavy equipment entered the building. In the afternoon, a piece of heavy equipment began to emit strong fumes. Pitzo and Murphy climbed down the scaf- folding and talked to the employees operating the machine, who said they would be through shortly. The machine operators urged Pitzo and Murphy to stop working until they were through with the ma- chine. Pitzo and Murphy then reported to their foreman, Bruce Wilson, who told them not to worry about the problem and that he would look into it the next morning. Wilson sent Pitzo and Murphy back to the same job on Tuesday, instructing them to take fresh air breaks if the fumes persisted. Both men took such breaks, but in the afternoon Pitzo felt sick from the fumes, and again reported to Wilson, who said he was attempting to correct the problem. Pitzo then went to the first aid department. On Wednesday, Wilson again sent Pitzo and Murphy to the same work station, saying that he was looking into the fumes problem. He urged them to take fresh air breaks as necessary and to try to get the job finished. Pitzo and Murphy dis- cussed the fumes with other employees at their work station. Employee Gould said he knew who to contact and called Safety Officer Alexander on the intercom. Alexander said he would come around and check the situation out, although the employees did not see him do so. Pitzo again felt sick from the fumes, visited the first aid depart- ment, and returned to work. Pitzo also unsuccess- fully tried to contact his union steward. At the end of the day Wilson urged Pitzo and Murphy to try and get the' job finished so they could move to a new location. On Thursday, Pitzo and Murphy found the fumes unbearable, and Pitzo called Alexander, who said he would be right around. On Friday, Pitzo stayed home feeling ill. Murphy stayed home as well. On Monday, 19 March, Pitzo was sent to work at a different location and under a different fore- man. The fumes did not cause a real problem until Wednesday of that week, when Pitzo again called Alexander to complain. Alexander said he was trying to correct the problem and asked Pitzo to obtain information about the machine causing the problem, which Pitzo did. The fumes had not abated by Thursday, and Pitzo again called Alex- ander, who said he was doing his best to correct the problem. On Friday morning, 23 March, Pitzo and em- ployee Sanchez discussed the fumes. Sanchez called Alexander and told him that "there are a lot 277 NLRB No. 88 BECHTEL POWER CORP of employees around here who are complaining" about the fumes. Alexander replied that he would be around. When Alexander had not shown up by the afternoon, Pitzo again called Alexander to complain. On Monday, 26 March, the fumes were still present. Pitzo attempted to call Alexander, who was not in, and then tried to reach Alexander's su- perior, Brian Dowdy, who also was not in. Later that afternoon, Pitzo reached Alexander, who said that he was doing all he could and that he was going to write a letter to the operating engineers. Pitzo told Alexander that he had the authority to shut down the machine or vent the smoke outside, but Alexander replied that he wanted to go through the proper channels. Pitzo then accused Alexander of wasting time and of waiting until the job was completely finished before doing anything about the fumes. Pitzo also said that he was getting nowhere with Alexander and that he ought to speak to Dowdy. On 27 March, the fumes problem persisted. Pitzo called Dowdy, who was unavailable, and then called Alexander to ask whether Alexander had sent the letter to the operating engineers. Alexan- der said that he had not as yet done so, but would do it at the first opportunity. Pitzo again accused Alexander of wasting time. On Wednesday, 28 March, Pitzo saw Alexander walking down an aisle and asked Alexander if he had sent the letter to the operating engineers. Alex- ander had not. Pitzo said Alexander was just wast- ing time and did not want to correct the situation. He said, "All you are worrying about our [sic] hard hats, you are worried about our glasses, our eyes, but you are not too concerned about the air that we breathe." Alexander, instead of responding to Pitzo's accusation, informed Pitzo that he was violating the safety rules with his hardhat and gave him until 2 p.m. to get a new liner for his hardhat. Pitzo replied, "I could correct my hat and I could wear safety glasses. But can you do something about the fumes?" Alexander said, "I am working on that."4 Pitzo went to get a new liner, put it in his hard- flat, and started back to his work station about 9:15 a.m. On the way, he passed Alexander and asked if Alexander had corrected the smoke problem. Alex- ander asked if Pitzo had corrected his hardhat 4 Pitzo readily admitted that his hardhat had been altered and was in violation of the safety rules Although the judge partially discredited Pitzo based primarily on the discrepancy between his deposition testimo- ny where Pitzo said the hardhat's suspension had been cut and his testi- mony at the hearing where he stated that the suspension was not cut but just out of adjustment, we find it unnecessary to resolve any conflict for we find that the fact is , as Pitzo admitted, that the hardhat as worn vio- lated the safety rules 883 problem. Pitzo, instead of showing Alexander that he had done so, said, "Why do you keep on asking me about my hardhat all the time? It seems like you are bribing me. That you are not going to do anything about the fumes unless I fix my hardhat." Alexander allegedly replied, "Well, you are doing so much complaining. Why don't you and I go talk to your supervisor." Pitzo replied that he did not want to talk to his supervisor, but did want to talk to his steward and had been trying to call him. The conversation ended. About 10:30 a.m., Wilson, Pitzo's foreman, and the area foreman told Pitzo that he was discharged for not having his hardhat properly adjusted. Pitzo protested that Alexander had given him until 2 p.m. to fix his hardhat and showed them that the hat was fixed. The area foreman said he knew nothing except that Electrical Superintendent Nicholson said Pitzo was fired, and he gave Pitzo his written notice of termination. The notice gave two reasons for the discharge: "disregard of safety instructions" and "insubordination to safety offi- cer." Pitzo made various attempts to obtain rein- statement, including talking to his union steward and to the project foreman. Both said Pitzo was being fired for not properly adjusting his hardhat. Alexander's version of the 28 March incident and the events leading up to it differed significantly from Pitzo's version. Alexander claimed that fumes had been a problem in the south bay crane area off and on for as long as he had been employed there (some 5-1/2 years), but that sometime in mid- March the problem grew worse and there were nu- merous complaints from numerous employees. Al- exander did not recall that Pitzo had ever com- plained to him prior to their meeting on the morn- ing of 28 March. Alexander admitted, however, that he had a bad memory for names and dates.,' Alexander testified that when Pitzo complained to him about the fumes on the morning of 28 March, Alexander said they were trying to develop procedures to eliminate the problem. He then told Pitzo his hardhat was in violation of the safety rules and told him to get a new liner. According to Alexander, Pitzo "said that he would not do it." As far as Alexander could remember, that was the complete conversation. 5 Alexander claimed his only previous direct contact with Pitzo oc- curred in November 1983 when he observed Pit zo wearing his hardhat improperly modified, and Alexander produced a page from a small pocket notebook to document the incident The judge concluded that Al- exander had attempted to create a paper record" based on the fortuitous appearance of Pitzo's name in his notebook in connection with an unre- lated incident . Noting that he found other weaknesses in Alexander's tes- timony, the judge did not detail them since he concluded that Alexan- der's creation of a false record sufficed to cast suspicion on Alexander's testimony as a whole 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alexander reported the incident to Pitzo's fore- man, to the area foreman, and to Superintendent Nicholson. Alexander conceded that he saw Pitzo again that morning, but claimed he did not talk to Pitzo or notice whether Pitzo had fixed his hat, since he felt he had taken all the action necessary and "left the superintendent to perform his duties." Foreman Wilson and Superintendent Nicholson also testified, both claiming that Alexander said Pitzo had told him to "get screwed" when told to fix his hat.6 The judge concluded that Nicholson's testimony was untrustworthy for a number of rea- sons. In this regard, the judge noted that Nicholson did some "pronounced position-shifting" on the number of times he claimed to have instructed Wilson to tell Pitzo to fix his hardhat. Additionally, Nicholson testified that he knew Wilson had re- 'layed his instructions to Pitzo because Wilson told him so. Wilson, however, firmly denied that he ever reported back to Nicholson. In addition, Nich- olson testified that he fired Pitzo because altering safety equipment was an "automatic termination." When it was pointed out to him that on the prior occasions when he claimed to have noticed the violation he did not fire Pitzo, Nicholson said he was not in the habit of going around firing people. He also stated that a written warning instead of discharge would have been inappropriate for Pitzo's violation, but testified later he had once prepared a written warning for Pitzo for the same ,offense. No such written warning was produced and the judge concluded that none existed. More- over, Nicholson testified inconsistently regarding the principal reason for Pitzo's discharge. He claimed first that Pitzo was discharged for viola- tion of the safety rules, but then agreed that it was "really" the "insubordination" which prompted the discharge.7 The judge also discredited Wilson, who gave inconsistent testimony, and whom the judge found to be nervous and under considerable "inter- nal pressure" at the hearing. Faced with the conflicting accounts and poor credibility of the various witnesses, the judge cred- ited Pitzo in finding that Pitzo initiated the conver- sation with Alexander on the morning of 28 March and was reiterating his complaints about the fumes when Alexander attempted to divert the conversa- tion to Pitzo's hardhat. The judge found that Pitzo 6 Both Nicholson and Wilson testified that Alexander told them Pitzo used such language Alexander, however, repeatedly testified that Pitzo said only that he "would not do it " When asked whether Pitzo said any- thing else , Alexander replied, "Not that I can recall " ° The judge found, and we agree, that the record establishes that other employees were not discharged for similar safety violations, even repeat- ed ones, and in most cases were given only a verbal warning The judge concluded that Nicholson, in discharging Pitzo, was responding chiefly to Pitzo's alleged insubordination, rather than the violations of the safety rules refused to be put off, and said, "All you are worry- ing about our [sic] hardhats . . . but you are not too concerned about the air we breathe." Never- theless, the judge found that, despite Pitzo's testi- mony to the contrary, it was "likely" that Pitzo, when told to fix his hardhat, refused to do so. Based on these findings, the judge concluded, under NLRB v. City Disposal Systems, 465 U.S. 822 (1984), that Pitzo was engaged in concerted pro- tected activity when he complained about the fumes to Alexander, and that Pitzo continued to engage in protected activity when Alexander at- tempted to divert the conversation to Pitzo's hard- hat. He further found that although Pitzo's "likely" refusal to fix his hardhat "smacked of insubordina- tion, Pitzo did not engage in activity which for- feited his right to claim the protection of the Act since Pitzo did not engage in a real act of disobedi- ence, but promptly fixed his hat. The judge, rely- ing on Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965), enfg. 148 NLRB 1379 (1964), found Pitzo's statement of refusal to be the sort of impulsive be- havior for which some leeway may be permitted when an employee is engaged in concerted protect- ed activity. We agree with the judge that Pitzo, in pressing his complaints about the fumes to Alexander, was engaged in concerted protected activity under City Disposal for the following reasons. As an initial matter, the Board's Interboro doctrine establishes that when an employee makes complaints concern- ing safety matters which are embodied in a con- tract, he is acting not only in his own interest, but is attempting to enforce the contract provisions in the interest of all the employees covered by that contract. The Board has found that such activity is concerted and protected under the Act, and the discharge of an individual for engaging in such ac- tivity violates Section 8(a)(1) of the Act. City Dis- posal Systems, 256 NLRB 451, 454 (1981); Roadway Express, 217 NLRB 278, 279 (1975); Interboro Con- tractors, 157 NLRB 1295 (1966). We note further that an employee engaged in making safety com- plaints need not make an explicit reference to the relevant contract for his actions to be protected by the Act. Roadway Express, supra. The Board re- quires, however, that the employee's belief that the working conditions are unsafe be honestly held. United Parcel Service, 241 NLRB 1074 (1979). Significantly, the Supreme Court in City Disposal concluded that the Board's Interboro doctrine was a reasonable interpretation of the Act. The Court stated: As long as the nature of the employee's com- plaint is reasonably clear to the person to BECHTEL POWER CORP whom it is communicated, and the complaint does, in fact, refer to a reasonably perceived violation of the collective-bargaining agree- ment, the complaining employee is engaged in the process of enforcing that agreement. In the context of a workplace dispute, where the par- ticipants are likely to be unsophisticated in col- lective-bargaining matters, a requirement that the employee explicitly refer to the collective- bargaining agreement is likely to serve as noth- ing more than a trap for the unwary. [465 U.S. at 840.] And we note in this regard that in City Disposal, there was no direct evidence concerning whether or not the employee there actually knew that he was asserting rights under a specific provision of the contract. In this case the nature of Pitzo's complaint, that the fumes were so heavy as to make breathing un- comfortable and unsafe, was indisputably clear to Alexander This is borne out by Alexander's testi- mony that he had received numerous complaints from numerous employees, that he had shut down the machinery at times when the fumes were very heavy, and that he was working on a long-range solution to eliminate the problem-causing fumes. Further, we find that while Pitzo did not actual- ly mention the contract, his complaints did concern a reasonably perceived violation of the collective- bargaining agreement." As noted previously, Pitzo was a longtime union member. His attempts to complain to his union steward about the fumes and his remark to Alexander that he wanted to speak to his union steward9 make it clear that Pitzo per- ceived his complaints about the fumes to be a union as well as a company matter. Moreover, Pitzo's statement to Alexander, "All you are wor- ried about [our] hardhats . . . our glasses, our eyes, but you are not too worried about the air that we breathe," makes it abundantly clear that Pitzo viewed the fumes, as involving the safety of work- ing conditions, which plainly brings his complaint within the scope of the applicable provisions of the collective-bargaining agreement . Further, there is ample evidence in the record supporting the judge's finding that Pitzo's belief that the working conditions were unsafe was honestly held. We thus 8 Art III, sec 3 9, of the Local 592 Agreement provides' It is the duty of all workmen and Employers to see that safe work- ing conditions are maintained on all jobs at all times, according to NJAC Code 12:180 and all state and federal regulations s As set forth more fully below, we credit Pitzo's version of his con- versation with Alexander on the morning of 28 March We affirmatively find that, when Alexander said Pitzo was doing "so much complaining" and suggested they talk to Pitzo's supervisor, Pitzo told Alexander that he wanted to speak to his union steward and had been trying to contact him 885 conclude that Pitzo was engaged in protected con- certed activity when he complained about the fumes to Alexander. I o Having found that Pitzo engaged in, protected concerted activity under City Disposal, we must de- termine whether that activity -lost its protection be- cause of Pitzo's conduct. As noted previously, the judge, in determining the facts of the critical con- versation between Pitzo and Alexander on 28 March, credited Pitzo over Alexander. Neverthe- less, despite Pitzo's testimony to the contrary, the judge found that it was "likely" that Pitzo said he would not fix his hardhat when ordered to do so by Alexander. In so finding, the judge apparently did not rely on Alexander, whose testimony the judge virtually discredited completely. Instead, the judge appears to have relied on Wilson's hearsay testimony that Alexander told him Pitzo had re- fused to get his hardhat fixed. Contrary to the judge, we credit Pitzo's account of the conversation in its entirety for the following reasons First, only Pitzo and Alexander were par- ties to the conversation, and Alexander's abbreviat- ed account of the conversation was properly dis- credited. Pitzo's version is thus the only direct evi- dence of the conversation. Second, we find no logi- cal basis for concluding that Pitzo threatened to disobey Alexander based on 'Wilson's testimony, which was also largely discredited. Wilson was not a party to the conversation and his knowledge of the incident is hearsay derived solely from Alexan- der, whose unreliability has been established. Final- ly, Pitzo testified plausibly about the conversation. We find no reason to discredit his account, and ac- cordingly find no probative evidence that any re- fusal to obey an order or other act of insubordina- tion occurred. Thus, Pitzo's conduct remained pro- tected as well as concerted. We conclude, based on all the evidence, that Pitzo's repeated demands that Alexander take action to resolve the fumes problem, which were coupled with Pitzo's attempts to complain to his union steward and to Dowdy, Alexander's superi- or, prompted Alexander to seize on Pitzo's viola- tion of safety rules to rid himself of Pitzo's persist- ent complaints. Moreover, as found by the judge, Superintendent Nicholson, who made the decision to discharge Pitzo, was aware that Pitzo's conduct which was the basis for Alexander's report to Nicholson arose in the context of a safety com- plaint.ll We therefore conclude that the Respond- 10 Thus, we do not rely on the judge's discussion of a proposed "re- buttable presumption of employee knowledge" of the contract nor on his assumption that Pitzo "intended" to invoke the contract provision 11 We note in this regard that Nicholson chose not to confront Pitzo with Alexander's allegation of insubordination prior to discharging him, Continued 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent, by discharging Pitzo, violated Section 8(a)(1) of the Act. Accordingly, we shall adopt the judge's recommended Order as modified.12 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Bechtel Power Corporation, Hancocks Bridge, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Discharging or otherwise disciplining em- ployees because they exercise their right to engage in concerted activities as guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. although he stated that he lust did not go around firing people and that if an allegation were made to his own supervisor about his conduct, he would expect his supervisor to interview him before acting on that alle- gation i2 Since we have found that the Respondent violated Sec. 8(a)(1) of the Act by discharging Pitzo for engaging in concerted protected activity under City Disposal Systems, supra, we find it unnecessary to pass on the General Counsel's alternative theory that Pitzo's activities were also pro- tected under Meyers Industries, 268 NLRB 493 (1984), enf denied sub nom, Prill v. NLRB, 755 F 2d 941 (D C Cir 1985), or the judge's treat- ment of that issue. Similarly, we find it unnecessary to determine whether the discharge also violated Sec 8(a)(3) of the Act since the finding of such an additional violation would not materially affect the Order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discipline our employees because they exercise their right to engage in concerted activities as guaranteed by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to Peter Pitzo, if we have not al- ready done so, full and immediate reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discharge of him on 28 March 1984. WE WILL remove from our files any reference to the foregoing discharge and WE WILL notify Peter Pitzo in writing that we have done so and that the discharge will not be used as a basis for future per- sonnel actions against him. BECHTEL POWER CORPORATION Bruce D. Bagley, Esq., for the General Counsel. Denise M. Rocha, Esq., of San Francisco, California, for the Respondent. DECISION BERNARD RIES, Administrative Law Judge. On a charge dated April 16, 1984, an amended charged dated May 25, 1984, and a complaint issued by the Regional Director for Region 4 on May 30, 1984, this case was tried in Philadelphia, Pennsylvania, on August 23-24, 1984.1 Briefs were received from the parties about Octo- ber 22. Having reviewed the record, the exhibits, and the briefs, and having in mind my recollection of the de- meanor of the witnesses, I make the following findings,2 conclusions, and recommendations. 1. THE ISSUES The employment of Charging Party Pitzo was termi- nated by Respondent on March 28, 1984 The complaint alleges that Pitzo was discharged because he "(i) concer- tedly complained with other employees to Respondent regarding Respondent's failure to remove exhaust fumes in a working area at the plant; and (ii) complained to Re- spondent regarding Respondent's failure to remove ex- haust fumes in a working area of the plant and the com- plaints were related to Respondent's obligation to main- tain safe working conditions pursuant to the agreement referred to above in paragraph 5." On either theory, the complaint asserts, Pitzo's discharge violated Section 8(a)(3) and/or (1) of the Act. II. FACTUAL FINDINGS This is one of those cases in which it is evident that, to some extent, the testimony given by principal witnesses on both sides is not worthy of credence. That unfortu- nate circumstance obviously frustrates the finder of fact in his search for the truth. If a witness is willing to fabri- cate certain of his testimony, why would he not prevari- cate throughout? And to the extent that there may be re- spectable confirmation of other portions of his testimony, how far should that respect be extended? The factfinder knows that there is truth, or something like it, some- where in that mass of testimony and documents, but without the assistance of at least one central credible wit- i At the hearing, counsel for Respondent stated that Respondent had recently changed its name The General Counsel, however, declined to amend the caption of the complaint to reflect the change 2 Certain transcript errors have been noted and corrected BECHTEL POWER CORP. ness, he is somewhat like Diogenes working without even a lantern to guide him. The task must, nonetheless, be undertaken. Respondent, a Nevada corporation, has been engaged for at least 9 years in constructing a nuclear power plant, called the Hope Creek Generating Station, in Hancocks Bridge, New Jersey. Since 1958, Respondent has been a party to a skeletal nationwide collective-bargaining agreement with the International Brotherhood of Electri- cal Workers, covering all work within the jurisdiction of the Union "in all places" where Respondent is perform- ing construction work. In this contract, Respondent has agreed "to comply with all terms and conditions of the approved applicable local collective bargaining agree- ment" in effect for the relevant IBEW local union in the locations where Respondent is working. In the present case, the parties have stipulated that, at relevant times, Respondent and IBEW Local Union No. 592 were ac- cordingly bound by a detailed local agreement which is in evidence. The Hope Creek power plant is a massive project: Re- spondent itself employs about 3000 construction workers and 2000 other employees there, and its subcontractors also have an untold number of employees on the site. Peter Pitzb, an electrician with some 24 years of craft experience, was referred to work at the project by Local 592 in 1982 and began employment on April 28 of that year. His tenure with Respondent was uneventful until March 28, 1984, almost 2 years later, when he was abruptly dismissed. The events leading to that dismissal are in serious dispute. Pitzo's version is as follows. Beginning about Monday, March 12, Pitzo and his partner, Harmon Murphy Sr., were installing conduit pipe in the south crane bay area of the 'huge turbine building, working on a scaffold above the ground floor entry through which cranes and other equipment entered the building.3 In the afternoon, a piece of heavy equipment, probably a crane, came into the building and began to emit strong fumes, sufficiently unpleasant so that Pitzo and Murphy came down from the scaffold (a complicated procedure which consumed some 15 minutes) and consulted the employees operating the machine. The latter told the complainants that they would complete their work, in 30 minutes, and urged Pitzo and Murphy to stop working for that period. The two men then went to inform their foreman, Bruce Wilson, who was located at the next elevation.4 Wilson s There are, altogether, some four or five principal elevations in the turbine building at which employees might be working Pitzo and Murphy were on a scaffold located about 18 feet above the "102," or ground level, elevation 4 Although the complaint contains no allegation regarding the status of "foremen" like Bruce Wilson, it seems clear enough that such employees are considered to be managerial representatives Wilson ran a crew of about 10 employees, who apparently reported to him for instructions and oversight three times a day. He usually came around each day , to inspect work and often ordered changes and modifications He signed slips which authorized employees to go to the first aid station , to take time off, etc He conducted weekly safety meetings at which safe practices were dis- cussed and employees told Wilson of their complaints, if any Most im- portantly, Wilson quite confidently testified , while appearing as a witness for Respondent, and contrary to other of Respondent 's witnesses, that he possessed the authority to discharge , and he gave an example of an actual termination, the circumstances of which, at the very least , indicated that 887 advised the two not to worry about the problem and that he would look into it the next morning Wilson sent them back to the same job on Tuesday, saying that they should take fresh air breaks if the fumes persisted. When they encountered the same problem that morning, they followed Wilson's advice. In the after- noon, however, Pitzo assertedly felt sick from the fumes, and he (and perhaps Murphy) left their station again to talk to Wilson.5 Wilson said that he was attempting to have the situation corrected. Pitzo assertedly requested a first aid slip from Wilson and visited the first aid depart- ment, where, he says, field nurse Robert Smick found that Pitzo's blood pressure was high and gave him some aspirin. On Wednesday morning, Wilson again purportedly told Pitzo and Murphy that he was "looking into" the smoke problem, and urged them to take breaks as needed and to "just try to get the job finished." In a conversa- tion at their work station shortly thereafter with a car- penter named Gould and another employee, Gould agreed with Pitzo and Murphy that the fumes were "kind of heavy." Saying that he knew who to contact in the safety department, Gould went to the intercom and spoke to safety representative Maurice B. (Bernie) Alex- ander, who said he would come around to "check the situation out," but, thought Pitzo, Alexander did not do so. That afternoon, Pitzo complained again. to Wilson about headaches and dizziness, and again received per- mission to visit Smick in the health unit, where it was al- legedly discovered that his blood pressure was still high. Smick is said to have advised Pitzo to contact safety rep- resentative Alexander. Pitzo returned to work and suf- fered with the smoke. He twice attempted to contact his union steward by telephone, but could not reach him. At day's end, Wilson again urged the two men to "try and get the job finished" so that they could move to a new location. On Thursday, the crane "kept coming in and out" and staying "longer and longer." After he and Murphy agreed that the problem was becoming unbearable, Pitzo assertedly placed a call to Alexander, who said that he would be "right around and try to correct the situation." the discharge recommendation by Wilson was in that instance honored Finally, Wilson testified that he has given out written warnings to his crewmembers It is true that the applicable bargaining agreement provides that the foreman "shall be selected by the Employer from amongst the journey- men on the job," prescribes the wage rates for foremen (as well as for "general foremen," "assistant general foremen," "sub-foremen," and "small job foremen"), and in some other ways regulates foremen (e g , "At no time shall a foreman have direct supervision over more than 10 men") The foremen are deemed to be members of the bargaining unit. But, as labor relations representative Leanore McNamara testified, "[T]hey also represent management." 5 At first Pitzo testified, "I went down, after much, I went down to ask Bruce," Eventually, however, he incorporated Murphy into the scene "I told Bruce that I was starting to get headaches , and I asked him about the-Murphy and I went out, and I asked [Wilson] about whatever happened, is he trying to get the fumes corrected " Upon fur- ther questioning, Pitzo stated more directly that Murphy attended this conversation It seems clear from the' phrasing of this and other of his testimony that Pitzo understood the importance of the concept of "con- certedness" to this case Murphy testified that he attended two such meetings with Wilson, but he did not indicate that he was present at this particular one 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pitzo said he also visited Smick once more in the first aid department.", On Friday, feeling ill, Pitzo stayed home ; Murphy also did not go to work. On Monday , March 19, when Pitzo reported in, he was told to work at a different location in the same building, under the supervision of Area Fore- man Vince Comise. Aside from occasional contact with Comise, Pitzo thereafter worked alone on this assign- ment. The smoke problem was not very distressing on Monday or Tuesday, but on Wednesday the strength of the fumes increased and, according to Pitzo, he called safety representative Alexander on the intercom again. The latter told Pitzo that he was trying to correct the situation and asked Pitzo to secure some identifying in- formation about the machine; this Pitzo did , and con- veyed the information to Alexander in a second call that day. On Thursday, March 22, the problem has not abated. In what would have been his fourth ' call to Alexander, Pitzo said that he complained once more and that he was told by Alexander that the latter had spoken to the oper- ating engineer of the offending machine in an effort to do "his best to get it corrected." On Friday, the fumes were heavy. In discussing the problem with laborer Gil Sanchez, the latter said the he knew who to complain to and placed a call to Alexan- der. Pitzo heard Sanchez tell Alexander that "there are a lot of employees around here who are complaining" about the vapors . Alexander reportedly told Sanchez that he would be around; Alexander having not arrived by the afternoon, Pitzo, for purportedly the fifth time, called him and admonished him for not showing up (and mentioned to Alexander "that I was also talking to other employees there that were complaining, that we were all talking and complaining about it" ). Alexander said that he would work on the problem. On Monday, March 26, the crane was still emitting fumes. Pitzo testified that he "was talking to all of the people around there, and they were all talking," and, for the sixth time, he called Alexander, who was away from his office ; he attempted to speak to Bryan Dowdy, Alex- ander's superior, but he too was busy elsewhere. Later that afternoon , in what would have been his sixth successful call to Alexander , Pitzo asked Alexander what was going on and the latter said that he was doing all that he could and was going to write a letter to the operating engineers . Pitzo told Alexander that he had the authority to stop the machine or to have the smoke vented outside. Alexander allegedly replied that he liked to "do everything the proper way," which meant taking the proper channels. Pitzo quoted himself as saying, "To me, it sounds like you are wasting an awful lot of time, and it sounds like a whole bunch of bullshit to me. You are just wasting time. You are waiting until the job is completely finished before you do anything about it." Pitzo further told Alexander that he was not getting any- where with him and that he ought to speak to Dowdy, his boss. Alexander again said that he would write the 6 The testimony bearing on this claim will be discussed infra letter to the operating engineers and Pitzo again accused him of "wasting too much time " On Tuesday, March 27, the problem persisted, "and I was talking with a lot of people there . And they said that the fumes were very strong " Pitzo also tried to call Dowdy again but was told that he was unavailable Then, for what would have been the seventh time, he called Alexander to ask whether he had sent the letter. Alexander said that he had not had a chance to write it, but would do so at the first opportunity . Pitzo told Alex- ander that he was "just wasting time" and delaying until the job was finished. On Wednesday, March 28, in the morning, Pitzo 'en- countered Alexander walking down an aisle and asked if he had had a chance to send the letter yet . Alexander said that he had not . Pitzo, who testified that he was "getting upset," told Alexander once more that he was wasting time and did not really want to correct the situa- tion . He further said, "By the time you do anything about it, you take your proper channels, you could have 20 people who could be asphyxiated " Pitzo continued, "All you are worrying about our hardhats , [sic] you are worried about our glasses, our eyes, but you are not too concerned about the air that we breathe." After that re- sponse, Pitzo testified, Alexander told him that he was "violating the safety laws with your hat. . . . I want you to adjust your hardhat ." Alexander then "corrected him- self' and told Pitzo to get a new liner for his safety hat, giving him until 2 p.m. that day to do so . Pitzo testified that he replied , "I could correct my hat and I could wear safety glasses. But can you do something about the fumes?" Alexander answered , "I am working on that." That was apparently the end of the conversation. The safety helmet which Pitzo was wearing contains a plastic liner about three-quarters of an inch wide which fits around the lower part of the helmet and which may be adjusted by, inserting the front bars of the liner in holes which accommodate varying head sizes . Connected to the liner at six points are three taut cross ribbons. The purpose of the liner and the ribbons, which are referred to collectively as a "suspension system," is to provide a space between the helmet shell and the system which will absorb impact when the helmet is struck Pitzo read- ily admitted at the hearing that his helment was not in "proper adjustment" as the Company would have wanted it, in that he had not hooked up the adjustment at all, and he further said that he had been wearing the helmet in that manner for his entire term of employment without ever having been criticized. Pitzo said that, in accordance with Alexander's in- struction, he secured a new liner and put it on, in proper adjustment, by 9:15 a.m. As he returned to his work area, he testified , he passed Alexander and asked if he had corrected the smoke problem. Alexander said no and asked if Pitzo had corrected his hardhat problem; by that time, Pitzo already had the hat in good order sitting on his head . Pitzo replied , "Bernie, why do you keep on asking me about my hardhat all the time? It seems like you are bribing me . That you are not going to do any- thing about the fumes unless I fix my hardhat." Pitzo went on to testify that Alexander "didn't notice at that BECHTEL POWER CORP. time that my hardhat was fixed." Alexander said, "Well, you are doing so much complaining. Why don't you and I go talk to you supervisor?" Pitzo replied that he did not want to talk to his supervisor but that he had been "trying to call my steward, and I would like to talk to my steward about it." The conversation apparently ended on that note. About 10:30 a.m., Foreman Wilson and Area Foreman Transferini came up to Pitzo. Transferini said that Pitzo was being discharged "for not having the proper adjust- ment on my hardhat." Pitzo replied that Alexander had given him until 2 p.m. to fix the hat, and he showed Transferini and Wilson that the hat was in, adjustment. Transferini said that he knew nothing about it other than that Electrical Superintendent Gerald Nicholson had said that Pitzo had been fired. It was apparently at this time that Pitzo was given his written notice of termination. That notice, composed by Nicholson, shows two reasons for the discharge. A mark appears in a box next to one of the printed standard reasons for discharge which reads "disregard of safety instructions." In a blank space de- signed for entering "other" reasons is written "Insubordi- nation to safety officer." The parties stipulated that the safety officer referred to in that entry is Alexander.? Before he left the job, Pitzo made various efforts to obtain reinstatement, including talking to the union stew- ard and to David Marre, described by Pitzo as "the gen- eral foreman of the whole job." Although Pitzo said to the people he spoke to that he thought he was being dis- charged because of his complaints about the smoke, he was told that the reason communicated to them was that he was being fired "for not properly adjusting my hard- hat." Along the way, he also was informed that Alexan- der had said that he had warned Pitzo about the hat 3 months earlier. Nothing, apparently, was said about the notation on the document that he was also being fired for insubordination. The business manager of Local 592, who 'was present at the site, assertedly told Pitzo that there was nothing he could do to'help him, that he was being fired "because of [his] hardhat," and that he could only recommend that he file a complaint with the Labor Board. On April 16, Pitzo followed the latter advice. Bernie Alexander had been a safety representative at the Bechtel project for some 5-1/2 years; he was one of 12 full-time safety'. representatives at the project. His duties encompassed detecting safety violations and enter- taining complaints by employees that such violations were occurring. Alexander said that there had been a problem with fumes in the south bay crane area on an "off and on basis" almost the entire time that he had been at the project, but sometime in March, perhaps around March 20, the problem became aggravated and "there were nu- merous complaints from numerous employees" about it. He testified that the problem arose from the occasional appearance in the area of different pieces of equipment which required different solutions to cure their smoke ' The document also indicates that, as apparently is true under Re- spondent's termination system generally, Pitzo was not to be considered as forever barred from working for Respondent again. A notation on the discharge document states "Not eligible for rehire for 6 months" 889 problems: sometimes he would , order- that a machine which was emitting too much exhaust be shut down, and sometimes he would arrange to have a -duct attached to it which would allow the smoke to be vented outside the building. The problem, he testified, was not as simple as just arranging to vent the smoke : through a hose; there are some 10 types of cranes which would be in and out of the building, each of them has a different crew, some of the crews do not know or will not do what is re- quired of them to exhaust the fumes, and sometimes a hose would not do the job. Alexander appeared to agree that for a 2-week period in March, the problem in- creased. He also testified, however, that of the "numer- ous employees" who complained directly to him,, he could only specifically remember the identity of one of them, General Foreman Comise. At the hearing, he said that he could not recall that Pitzo had ever complained to him prior to their morning meeting on March 28. Thus, he squarely contradicted Pitzo's testimony that the two had talked about the problem on some seven or eight occasions prior to March 28 (including the one in- stance in which Alexander allegedly told Pitzo to get identifying information about the offending equipment and to call him back, which Pitzo said he did). Alexander testified that his only previous direct con- tact with Pitzo had occurred in November 1983, when he had observed Pitzo wearing his hat improperly modi- fied (the suspension was cut) and had told him to get the hat fixed. According to Alexander, when Pitzo com- plained to him about the fumes for the first time on the morning of March 29, he responded that the safety de- partment was attempting to develop a procedure to eliminate the problem on a permanent basis and that he had been giving much thought to how to correct it. After this discussion of the fumes problem, "I asked him what the problem was with his hard hat and the suspen- sion appeared to be cut again." At that point, Pitzo had taken his hat off and Alexander perceived that the rib- bons had been severed, just as they had been in Novem- ber. Seeing this, Alexander told Pitzo "that he would have to go the toolroom and procure another liner for the hardhat." According to Alexander, Pitzo "said that he would not do it." The conversation ended abruptly, and Alexander walked about 12 feet and told Foreman Wilson what had happened. After checking into the fumes problem in the south bay crane area, and ordering the smoke-emitting machine shut down, Alexander next went to see General Foreman Transferini and told him what had happened with Pitzo. Transferini advised him to contact Superintendent Nicholson. Alexander spoke to Nicholson about 10:20 that morning. He recounted to Nicholson that he had had the conversation with Pitzo in which Pitzo had complained about the fumes being cre- ated by the crane, that he had admonished Pitzo about the cutting of the hat suspension,' that he had advised Pitzo to get it fixed, and that the latter had "refused and said he would not." Nicholson said that "he would take care of the problem." Nicholson also "mentioned that that was insubordination." Alexander conceded that he ran into Pitzo later that morning, but' he could not recall whether it appeared that Pitzo had gotten a new liner for 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his hat. He said that he felt that he had done what he was supposed to do in terms of notifying the proper au- thorities and "I knew that if we had a second discussion about it that, you know, things on one side or the other might be a little upset." Nicholson, the electrical superintendent of the turbine building, testified that he was the one who made the de- cision to discharge Pitzo on March 28. Nicholson said that beginning around the time he assumed the position of electrical superintendent in January 1984, he had no- ticed problems with Pitzo's hat several times prior to March 28. At a January safety meeting , he had asserted- ly detected that the suspension band was removed from Pitzo's hardhat and had instructed Foreman Wilson to tell Pitzo to have the , hat fixed. Thereafter, on several occasions, he noticed similar problems with Pitzo 's hard- bat and he conveyed to Wilson the message that the hat should be corrected.8 Nicholson said that he had not been made aware of any problems with fumes in the south bay area or any employee complaints about that condition prior to his conversation with Alexander on March 28. He testified that Alexander told him on that occasion that "he had saw Pete and that he asked him to get his hardhat suspension fixed , and Pete told him to `get screwed."'9 When asked at the hearing whether he said anything in response to Alexander's report, Nichol- son testified , "I think that I told him I would take care of the problem," but he did not mention referring at the time to "insubordination," although Alexander had put the word in Nicholson's mouth when he testified. Nich- olson did not speak to Pitzo prior to discharging him, even though at the hearing he answered a hypothetical question by saying that if an allegation were made to his own supervisor about his conduct, he would expect his supervisor to interview him before acting on that allega- tion. i 0 He was unaware at the time of discharge that Pitzo had ever been disciplined before, as Pitzo in fact had not. At the hearing, at one point , Nicholson seemed to believe that he was obligated to discharge Pitzo simply for altering the hardhat. He testified on cross-ex- amination that he thought there was a safety regulation which stated that alteration of safety equipment "is auto- matic termination." When it was pointed out to him that the form he had filled out had specified "insubordina- tion" as well, he then agreed that it was "really" the in- subordination that led to the discharge "because if you let the crafts start running supervision in safety, you are not going to have any safety in your job." s Nicholson said that he did not speak directly to Pitzo about the prob- lem because the collective-bargaining agreement forbids such a direct confrontation Nicholson may have been referring to art III , sec. 3 17, of the local agreement which states , in part, "On all jobs having foremen, or sub-foremen, workmen shall not take orders or accept lay -out of any job from anyone except the foreman or sub-foreman- except for stop orders by the Employer or his representative." At another point in his testimo- ny, however, Nicholson described an incident in which he had directly told Pitzo to repair his hat, adding the explanation that the confrontation was acceptable because a general foreman had been present 9 As indicated above, Alexander did not testify to any such rude lan- guage 10 On redirect examination, he answered affirmatively a leading ques. tion about whether he might rely solely on representations made to him by another company management representative , especially when he had knowledge of the history of the situation Foreman Bruce Wilson testified that he had "noted problems regarding Mr. Pitzo's hardhat . . . half a dozen" times and had talked to him about them (the problems included the fact that the "back of the suspen- sion had been cut" and "on a couple of occasions, the hole had not been locked in on the front adjustment"). He warned Pitzo "approximately a half a dozen times" about these derelictions and he believed that after each warning, Pitzo had corrected the impropriety . Wilson further testified that between January and March, Nich- olson had talked to him about Pitzo 's hat. At first, he said that Nicholson may have talked to him "once or twice" on the subject. He then doubted that it could have been as many as five times but thought it possible that it could have been three or four times . Ultimately, Wilson testified that he had spoken to Pitzo about his hat six or more times without being prompted by Nicholson and had also spoken to him on the same topic some three or four times after Nicholson had told Wilson to do so. Wilson further confirmed that Pitzo had complained to him about the exhaust fume problems, although he did not recall that employee Murphy had complained as well. He remembered telling Pitzo to call the safety de- partment where Alexander is assigned. The testimony of each of the foregoing major wit- nesses for both sides is seriously flawed in at least , one significant respect. We begin with Pitzo. He was asked at, the hearing if it was not true that during his employ- ment, he "cut the suspension in [his ] hardhat." His answer was "no." His pretrial affidavit states, "I was given the biggest hat they had, and it would only sit on my head, [sic] so I cut the inside adjustment." Faced with this seemingly incontrovertible contradiction of his testimony, Pitzo lamely explained, "I meant that I put it out of adjustment, not cutting, not cutting. Cutting it off of the side, but not cutting, actually physically cutting it. Maybe pulling it down out of adjustment ." When he was later asked why Alexander would have told him on March, 28 to get a new liner if the other one was not damaged in some way, he could only respond , "I didn't really understand that at all." In addition to the obvious inference to be drawn from the fact that Alexander did concededly instruct him to get a new liner, there is also the testimony of Harmon Murphy Sr., who appeared as a witness for the General Counsel. Murphy, easily the most impressive witness at the hearing, testified that he had noticed for the years he had known Pitzo that Pitzo's hardhat "seemed to have a split in the suspension of the hat in the rear," which was made evident by the way Pitzo's hair curled up and around the suspension It seems apparent to me that, in fact, Pitzo did cut the suspension in his hat in some manner. Even putting aside the indications in Pitzo's other testimony that he was going out of his way to attempt to conform to the needs of the "concerted activity" theory of the case, as noted above, Pitzo's willingess to flatly engage in prevarication on the point discussed here makes it difficult to accept his testimony in other respects. The same conclusion must be reached concerning Al- exander. The most glaring defect in Alexander 's testimo- ny came when he attempted to support his claim that in BECHTEL POWER CORP. November 1983 he had verbally reprimanded Pitzo for wearing his hardhat improperly. On that occasion, he testified, he saw that Pitzo's hat appeared to be sitting tightly on his head, and examination revealed that the suspension had been cut at six points where it contacted the hat. He testified that he told Pitzo at the time to get a new suspension and that Pitzo had explained that he had made the modification because wearing the suspen- sion "messes my hair up." To document this incident, Alexander produced a page from a small pocket note- book that he carries to make notes of daily business. The page of the notebook which Alexander contends includes a memorialization of the foregoing warning incident reads as follows in its entirety: 11/30/83 T-COM-77-E 232 BLOCKED-F.R. Anderson, Bob EI 2068 Pitzl[sic]-Hard Hat Murphy- Although the page cannot be properly reproduced here, there is no question that, as Alexander admitted at the hearing, the date of " 11/30/83" is heavily inscribed with a felt-tip pen, thereby obscuring the fact that "one thing is scratched out and written over." Alexander could not recall at the hearing what it was that had been scratched out. It is further clear from an examination of the original that the words "hard hat" are written with a different pen than the rest of the entry beginning with the name of Bob Anderson. Alexander had a great deal of trouble at the hearing explaining the manner in which this second entry on the page was made. He testified that he made the original entry about 15 minutes after confronting Pitzo about the hat. He agreed that the spacing of the two separated en- tries on the page probably meant that Anderson, "Pitzl," and Murphy were all involved in the same incident, but he could not recall that Anderson was actually present when he spoke to Pitzo. Having testified that the first entry he made some 15 minutes after the incident showed only the names of Anderson, "Pitzl," and Murphy, he further testified that he had decided "ap- proximately 5 minutes later, when I was completing my tour of the area" that he also needed to write the words "hardhat." At first Alexander said that the reason he had not originally written those words may been that there is seldom a good surface to write on, a problem which is not apparent from the entry as a whole, and he also stated that it was not uncommon to go through the notes later on and "dress it up a little bit, maybe with the same pen and maybe with a different pen, so that it looks more presentable," although in fact these are only "rough notes" which would not seem to require their being pre- sentable. Later, however, he testified that it was not the lack of a good writing surface that had led him to first withhold the "hard hat" notation, but rather that he "de- cided that [he] needed to add something ." He could not explain why Murphy's and Pitzo's employee identifica- tion numbers were not shown, while Anderson's was. And although he initially testified that he added the 891 words "hardhat" "at the same time" that he wrote over the date at the top of the page, it is clear that he used two different pens for those two entries; when recalled on the second day of the hearing and asked where in the building he wrote the words "hardhat," he gave a pre- cise location, but he did not "recall" where he was when he revised the date, which, of course, contradicts his ear- lier testimony that he made both amendments "at the same time." Testifying earlier than Alexander, Pitzo had said that his only encounter with Alexander before March 1984 had to do with an incident several months before involv- ing a scaffolding on which he, Murphy, and Anderson were working. Murphy, also testifying before Alexander did, referred to that incident as one in which Alexander had passed through the area and had noticed an improp- er modification of the scaffolding on which the three were working and had talked to them about it. Murphy also said that he was present during the entire time that Alexander spoke to the three employees and that nothing else was said privately to Pitzo by Alexander. It seems quite clear to me that the entry in the notebook referred to that scaffolding problem. It is difficult to believe that if, as Alexander testified, the sole purpose of the entry was to make a note of the fact that he had talked to Pitzo about his hardhat, Pitzo's name would not have been the first to be shown in the note, and that only An- derson's, but not Pitzo's, employee identification number would have been written down. i 1 The admitted altering of the date and the delayed entry of the words "hardhat" with a different pen, together with Alexander's wholly unsatisfactory testimony on the subject, all lead me to believe that he attempted to create a paper record, based on the fortuitous appearance of Pitzo's name in his note- book in connection with another incident, to corroborate his claim that he had spoken to Pitzo about the hardhat in late 1983. There are other weaknesses in Alexander's testimony, but I see no need to detail them, because in my view the problem discussed above suffices to cast suspicion on Al- exander's testimony as a whole. I also must reach the same conclusion about the reli- ability of Gerald Nicholson. Perhaps the clearest exam- ple of Nicholson's untrustworthiness came about in his testimony that he had instructed Foreman Wilson on four or five occasions to tell Pitzo to have his hat fixed and that he knew that Wilson had followed his instruc- tions because Wilson "told me so " Although, as indicat- ed above, Wilson did confirm Nicholson's testimony that Nicholson had spoken to Wilson about Pitzo's hat be- tween January and March (although with considerable vacillation about the number of times), Wilson firmly denied that he had "report[ed] back" to Nicholson to tell him what he had done, saying, "No. I think they trust me enough to see what I did in my job [sic]"; later, when company counsel attempted to rehabilitate Wilson on this point by asking if he recalled mentioning to Nich- olson in any conversations that he "had discussed with II Murphy testified that when Alexander had broached the three of them about the improper scaffolding, he had asked them for their badge numbers, but only Anderson had supplied that information 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Pitzo the hardhat -problem," Wilson adamantly re- plied, "No. I don't, report back unless I am told to, be- cause I run my own crew." In addition, Nicholson engaged in some rather pro- nounced position shifting about the number of times he had noticed problems with Pitzo's headgear and had spoken to Wilson about these problems. At one time he said that he had detected the problem on three occasions including a safety meeting held in January 1983 and, al- though there were one or two more times after that, he could only "basically recall three, occasions," the third of which was the safety meeting. However, less than one page later, Nicholson testified that after the January meeting there were "a total of about four or five" more occasions on which he had noticed that Pitzo was wear- ing his hat improperly and had attempted to do some- thing about it. Then there is the complicated testimony given by Nicholson about the rules under which he was working. As noted above, Nicholson testified at one point that he believed that he could not have given Pitzo a lesser dis- cipline, such as a written warning, for the safety hat vio- lation because he thought that the applicable safety regu- lation stated that any alteration of safety equipment "is automatic termination." He had earlier testified, howev- er, that on the five (or whatever the number was) occa- sions on which he had noticed 'a problem with Pitzo's hat, 'the problem that he recognized was that the har- ness-the three crossed ribbons which attached to the plastic band-"was gone"; he could divine this from the way the hat was sitting on Pitzo's head "like a turtle," The absence of the harness obviously should be consid- ered an "alteration of safety equipment," but on none of those five (or whatever) occasions did Nicholson see fit to invoke "automatic termination." When asked about this failure, he said that he was "not in the habit of going around firing people," having only discharged seven people in his 11 years with the Company. Despite having testified that a "written warning" would have been inap- propriate for the safety violation which required "auto- matic termination," Nicholson subsequently testified that, in fact, in January or February he had himself drawn up a warning to be given to Pitzo for his hardhat violations, but that Pitzo had had the hat fixed and "the foreman saw fit not to give it to him." He distinctly testified that he wrote up the warning, handed it to Wilson to' give to Pitzo, and told Wilson to tell Pitzo "not to let it happen again," Obviously, his concession that he had prepared a written warning is totally inconsistent with his earlier testimony that a written warning was not authorized for a safety violation. Indeed, at still another point, Nichol- son further contradicted his own testimony, by saying that if .Alexander had simply told him on March 28 that the hat had not been fixed, rather than saying that Pitzo was refusing to fix it, "I probably would have given him a warning, because just going on and on [sic]." He testi- fied that he meant a "written" warning. 12 12 Wilson was asked whether Nicholson had ever handed him a writ- ten warning to give to Pitzo Wilson answered, "Possibly," but he did not "recall that " Wilson gave his testimony on August 24, 1984 It is very hard for me to believe that, in the space of 6 or 7 months, he could have forgotten Nicholson handing him a prepared written warning to As discussed previously, Nicholson also seemed to focus at one point on the safety hat violation as the prin- cipal basis for the termination, although he did thereafter agree that the most serious aspect of Pitzo's behavior was his "insbubordination." Finally, I note an apparent contradiction between Nicholson's and Wilson's testimony with regard to the significance of the signature of the former on a foreman's report about a safety meeting. Nicholson testified that his signature meant that he was personally in attendance at the meeting because he only signed the reports if he at- tended. Wilson said, however, that he customarily se- cured the signature of the superintendent (and the gener- al foreman) by taking the form to them after the meeting. All in `all, the foregoing created a substantial doubt in my mind about Nicholson's veracity. Finally, a brief discussion of the reliability of Foreman Wilson is in order. I found unconvincing his testimony that he warned Pitzo some 10 times to do something about the safety helmet and that Pitzo kept complying with the order and then lapsing into disobedience. As he was testifying on the particular subject of Nicholson having spoken to him "once or twice" or "three or four" times about Pitzo's hat, I had a strong impression at the hearing that Wilson was nervous in giving this testimo- ny. The most specific and objective indicators of unreliabi- lity in Wilson's testimony, however, were his inconstant accounts of his conversation with Alexander on March 28. At first, on direct examination, Wilson recounted that Alexander had told him that he had instructed Pitzo to get his helmet fixed and "I believe [Alexander] said there was a refusal to comply, and something about he was being picked on, or something of that nature for com- plaining the day before, something like that. And I'll fix mine when you fix your problem, 'something like that. That's about all I can remember." This testimony, it should be noted, is generally consistent with that given by Pitzo about his second encounter with Alexander on March 28 ("Bernie, why do you keep asking me about my hardhat all the time? It seems like you are bribing me"); Alexander gave no such testimony when he him- self attempted to describe his conversations with Pitzo on the morning of March 28. Twenty-three pages later,, on cross-examination, when Wilson -was asked if he had not testified that Alexander had told him that Pitzo had said that he thought he was being "picked on because he had made complaints," Wilson replied, "Pete just said he had been picked on because he was complaining? I don't remember that, no." But when he then went on to sug- gest that Alexander had made such a reference to a prior complaint: "But he said, he told them about, it again, which I assume was the second time or the second day or something." Subsequently, when I renewed the in- quiry about the subject, Wilson stated flatly , "Bernie didn't tell me that Pete said he was being picked on be- cause he complained." When I asked if he had not used give to Pitzo which Wilson then chose not to give and which refusal Wilson explained to Nicholson by saying that Pitzo had corrected the problem, I doubt that any such episode would have been forgotten so quickly, and I conclude that it did not happen BEC14TEL POWER CORP. 893 those words in response to questioning by Respondent's counsel, Wilson said, "I didn't say that, I don't believe." But of course, as shown above, the words "picked on" did issue from Wilson's mouth originally. This sort of in- consistency makes it quite difficult to confidently accept wholeheardtedly the testimony of witness Wilson, who appeared to be under some sort of considerable internal pressure at the hearing. On this state of the evidence, and with such witnesses, how does one go about determining what the facts really 'were? Inescapably, it becomes incumbent upon the fact- finder to patch together bits and pieces of the testimony into as coherent a mosaic as possible, using as his materi- als such concessions, corroboration, and probabilities as can be identified, Having given a good deal of thought to this problematic case, I reach the following findings of fact. 1. There were undoubtedly, for some 2 weeks or so beginning in March, unusually strong intermittent emis- sions of unpleasant fumes from various pieces of equip- ment which entered the south crane bay area. The fumes bothered Pitzo and Harmon Murphy, his working part- ner for the first week of this period, and other employ- ees.13 2. I find that Pitzo, together with Harmon Murphy, did speak to Wilson during the week beginning March 12, on at least two occasions, to complain about the fumes that were bothering them. Murphy, a credible wit- ness, testified to that effect, and Wilson also testified that at some time during that period, Pitzo had complained to him about the problem (Wilson did not "recall" that Murphy had joined in the complaint). It further seems probable to me that during this period Pitzo did engage 13 Whether Pitzo really went to the first aid department for 3 succes- sive days in the first week of the smoke problem is debatable . He said that he obtained a permission slip from Foreman Wilson on each of three occasions during that week, went to see field nurse Robert Smick in the first aid office , had his blood pressure tested, was informed by Smick that the test revealed a high reading , and was given some aspirin and advice about returning if necessary Foreman Wilson could not recall that Pitzo, came to see him for 3 straight days to get permission to leave , although he said that he thought he should have recalled any such unusual occur- rence Struck also did not remember such a string of visits to the clinic by Pitzo; he did not completely rule out the possibility that Pttzo had done so, but he doubted that he would have forgotten three successive visits, Smick also produced Pitzo's individual medical card from the files kept in the first aid office It contained no entries showing that Pitzo had vis- ited the office three times-or even once-in March 1984, although, ac- cording to Smick , had Pitzo come in complaining about a suspected work-related illness, he would have entered a notation of the visit on Pitzo's, medical card Smack appeared to be quite an honest witness , but there was one prob- lem with his testimony At first he gave the impression, although he did not expressly say so, that he himself had searched the files and found only the single card pertaining to Pitzo Further examination , however, revealed that the search had actually been conducted the night prior to the day Smick testified by the night -shift representative in the first aid department, and Snuck could not testify conclusively that there was not a second card pertaining to Pitzo contained in the files That possibility seems rather unlikely, the card in evidence is fully filled in on its face and 10 of the 18 lines on the other side are also filled in There would seem to have been no particular reason for Smick to have started a new card for Pitzo in March 1984 given the blank space remaining on his old card, although Smick did say that that could have happened The hearing in this case ended on the same day that Smick testified , and no effort was made by Respondent to summon the night -shift nurse who had conduct- ed the search to testify how he or she had gone about that mission. in conversations about the fumes problem with employ- ees in the areas in which he was working. 3. Although Alexander testified that he did not recall that Pitzo had spoken to him about the smoke problem until the morning of March 28, I conclude that Pitzo very likely did so at an earlier time. Given my general distrust of Pitzo's testimony, as explained above, I cannot credit his contention that he had talked to Alexander over the telephone some seven times before he spoke to him on March 28. However, I do believe that he talked to him before that date. In so concluding, I note the tes- timony of Wilson that when Pitzo first said he was having trouble with the smoke, Wilson "told him to call safety." I further note the testimony of Murphy that on Thursday, March 15, when the fumes problem persisted, Pitzo told him that he was going to call the safety de- partment to look into the problem. Murphy's testimo- ny-"and we wondered why the safety man never came during the day. I had never seen the safety man that day"-strongly suggests that Pitzo had either in Mur- phy's presence made a call to Alexander or, having left Murphy's presence, returned and reported that he had called Alexander and asked him to look into the prob- lem. In this setting, there is no reason to believe that Pitzo would have been telling an untruth to Murphy in informing him that he had gotten in touch with Alexan- der about the problem. At that point, there simply was no motivation for Pitzo to have lied about the matter. The testimony of Foreman Wilson referred to above also indicates that Pitzo had made a complaint to Alex- ander shortly before March 28 about the same problem. As pointed out earlier, Wilson first testified that when Alexander spoke to him on March 28 about his confron- tation with Pitzo, "I believe he said there was a refusal to comply and something about he [Pitzo] was being picked on, or something of that nature for complaining the day before, something like that And I'll fix mine when you fix your problem, something like that." Al- though, as discussed above, Wilson subsequently recant- ed this testimony, I believe that his first version was the accurate one. It obviously conveys the notion that Alex- ander had told him that Pitzo was accusing Alexander of picking on him for "complaining the day before." This, of course, indicates that March 28 was not the first time that Alexander had heard from Pitzo about the problem with the fumes. It is entirely possible that Pitzo did speak to Alexander on other than the two occasions found above, but I have no independent basis for believing that to be true. 4. In view of my serious misgivings about the veracity of Superintendent Nicholson , I tend to doubt his testimo- ny that he instructed Wilson several times to tell Pitzo to have his hat fixed. It may be, however, that Foreman Wilson did say something to Pitzo on the subject. Al- though at one point in his testimony Pitza said that he had "never" been admonished by anyone about the way he wore his helmet, at another juncture, when asked if Wilson had warned him about the hat, his reply seemed more uncertain: "I don't recall him ever mentioning it to me [sic] about the hardhat." In addition, although I think that Alexander attempted, by doctoring his notebook, to 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD create a paper record of his alleged reprimand to Pitzo in November 1983, it nonetheless may well be that in fact Alexander did say something to Pitzo at some time prior to March 28 about the condition of his hat. It was brought out at the hearing that in Pitzo's pretrial affida- vit, at the point at which he recounted his argument with Alexander on the morning of March 28, he stated, "The only reason that Alexander saw it [the cut straps in the safety hat] was I took the hat off when I said, "All you care is about this things [sic]." Although hardly conclu- sive, this might be read to suggest that there had been an earlier occasion on which Alexander had criticized Pitzo for the manner in which he was wearing his hat. 5. It seems likely to me that on the morning of March 28, after the heated discussion between Pitzo and Alex- ander about the continuing smoke problem, and after Al- exander told Pitzo to have a new liner put in his hat, Pitzo did reply that he would not do so. At the hearing, Pitzo agreed that he was "upset" while talking to Alex- ander.14 He admittedly accused Alexander of wasting time and not caring. In this setting, it does not seem un- likely that Pitzo would have had a temper tantrum and told Alexander that he was not going to get the hat re- paired. Since, as discussed above, Pitzo led me to believe that he was not a reliable witness, there is no reason for me to choose the General Counsel's seemingly un- trustworthy witness, Pitzo, over Respondent's apparently untrustworthy witness, Alexander, on this point. I have no idea whether Pitzo told Alexander to "get, screwed" or "go screw yourself" or something to that effect. Both Nicholson and Wilson remembered that Alexander had told them that Pitzo had used such language, but Alexan- der himself gave no such testimony. The point is immate- rial, however, since Nicholson testified that the use or nonuse of profanity by Pitzo would not have affected his decision to discharge. III. DISCUSSION AND CONCLUSIONS A. The General Counsel's First Theory As described earlier, the complaint rests on two possi- ble theories of violation. The first is that the discharge of Pitzo constituted an unlawful interference with his right to concertedly complain with other employees about the exhaust fumes problem. The second theory is that the complaint by Pitzo, even if it did not constitute classical concerted activity in the traditional sense, was in law "constructive" concerted activity because it was an effort to enforce a provision of the collective-bargaining agreement and hence protected by Section 7 of the stat- ute. We address the first theory at this point. In Meyers Industries, 268 NLRB 493 (1984), the Board considered the scope to be given to the phrase in Section 7 of the Act which affords protection to employees who engage in "other concerted activities for the purpose of collective bargaining or other mutual aid or protection." It announced the following "definition of concerted ac- tivity," although it "caution[ed] that it is by no means ex- haustive": In general, to find an employee's activity to be "concerted," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self. Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the em- ployee's activity, the concerted activity was pro- tected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employee's protected concerted activity. The purpose of the Meyers decision was to reverse Alle- luia Cushion Co., 221 NLRB 999 (1976), in which the Board had held that, in appropriate circumstances, con- duct by a single employee may constitute "concerted ac- tivity" where it can be presumed that the conduct was engaged in with the approval of or for the benefit of other employees as well. Also in Meyers, to some extent, the Board had to reach the issue of when "activity" which actually involves interaction between employees may or may not be covered by the statute. The latter question has been the subject of consider- able litigation over the years. As stated above, the statute speaks of "other concerted activities for the purpose of . .. other mutual aid or protection." In many cases, it has been held that the requirement of purpose thus set out means that the requisite employee interaction must consist of something more than simple conversation. "Activity which consists of mere talk must, in order to be protected, be talk looking toward group action." Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964). "[P]ublic venting of a personal griev- ance, even a grievance shared by others," is not neces- sarily protected. Pelton Casteel v. NLRB, 627 F.2d 23, 28 (7th Cir. 1980).15 The Board also spoke to this issue in Meyers, supra, in addressing the possibility that the ad- ministrative law judge had found actual concerted activi- ty as well as presumptive concerted activity. In holding that there had been no actual concerted activity, the Board concluded that it did not suffice that another em- ployee had complained about the safety of the truck about which the alleged discriminatee was complaining at the time of his discharge, nor did it matter that the discriminatee had been present in the office on the earlier occasion when the other employee had registered his complaint., The Board pointed out that there was no showing that the two employees had "in any way joined forces to protest the truck's condition." Noting that "the Board has lost sight of what is required of a preAlleluia analysis," and had recently rendered decisions in which "evidence of individual concern by more than one em- ployee has come to be viewed as evidence of concert itself," the Board took the occasion to affirm: "Taken by itself, however, individual employee concern, even if openly manifested by several employees on an individual basis, is not sufficient evidence to prove concert of action" (Meyers, supra at 498). ' 5 See also my own discussions of this problem in Lutheran Social Serv- 14 He said that he was not upset "at Mr Alexander," but because of ice, 250 NLRB 35, 41 (1980); Egar Employment, 255 NLRB 113, 117 the fumes (1981), Salem Leasing Corp, 271 NLRB 86 (1984) BECHTEL POWER CORP. From the foregoing, it would thus appear-that-the mere fact that Alexander concededly received "numer- ous" complaints from "numerous" employees in March about the fumes problem would not satisfy the Board's definition of what constitutes "concerted activities for -the purpose of . . . other mutual aid or protection," since the complaints could be viewed as individually conceived and individually made. Where, however, em- ployees join together to make a complaint to a higher au- thority, the Board has continued to hold that they are en- gaging in concerted activity which is protected by the Act. E.g., JMC Transport, 272 NLRB 545 (1984). Applying the foregoing principles to the present case, it must be concluded that the fact that a number of em- ployees may have individually contacted Alexander would not itself transform Pitzo's complaints into statuto- rily protected activity. Furthermore, it appears to be open to question whether discussions by the employees about the fumes problem or indications to one another of their dissatisfaction with their environment rendered those discussions concerted activity.16 I believe that the closest we come in this case to reaching that degree of activity which the Board now most clearly accepts as comprehended by the statute occurred when Pitzo and Murphy together spoke to Foreman Wilson about the problem. JMC Transport, supra. However, there is simply no evidence that either this joint activity or even the fact that the smoke problem was a subject of general discussion and concern among some of the employees was brought to the attention of Superintendent Nichol- son, who made the decision to discharge Pitzo, and I find no basis in the record which would fairly support the attribution to Nicholson of Wilson's knowledge that the two men had complained to him jointly.17 Thus, since I cannot conclude that Nicholson was aware of such "concerted" activity as Pitzo did engage in, or was even aware of that activity which is only arguably "con- certed," I cannot find, as Meyers requires, that "the em- ployer knew of the concerted nature of the employee's activity." The General Counsel contends, inter alia, that neither the hardhat violation nor the supposed "insubordination" (which he does not, of course, concede) played any ma- terial role in the decision to terminate Pitzo, and that the real motivating factor here was the complaining done by Pitzo. There certainly is room for such an argument. As earlier discussed, at the hearing, aside from the other weaknesses in his testimony, Nicholson seemed at one point to be saying that the repeated refusals to wear the hat properly, rather than the statement by Pitzo to 16 In Salem Leasing Corp, supra, I analyzed some recent cases which seemed inconsistent on the question of whether "discussion among em- ployees concerning working conditions" is, of itself, protected conduct In adopting the finding of an 8(a)(3) violation, the Board found it unnec- essary to consider the independent 8(a)(1) violation charged 17 Cf J. T Cullen Co, 271 NLRB 114 (1984) There, a supervisor knew that three inspectors had discussed the safety of a certain job and had agreed to refuse to perform it The supervisor told the company president that the inspectors "believed that the job was unsafe, and that neither Fowler nor Pollitz was willing to do the job " In finding a viola- tion, the Board apparently considered that the president was thus made sufficiently aware of the concerted nature of the refusal to warrant the finding 895 Alexander on -March 28 about refusing to fix the hat, was the true cause of the discharge, and that even one safety violation requires "automatic termination." There is evi- dence in this record that other employees were not dis- charged for safety violations, even repeated ones. Em- ployee Murphy testified that he has seen employees wearing their hats improperly, although not in the manner (or manners) in which Pitzo is said to have worn his. A log of safety violations erratically maintained by the 12 full-time safety officers has been received in evi- dence. It indicates that many employees were reported to their respective superiors by the safety officers for en- gaging in various kinds of safety violations, some repeat- edly, and in most cases the miscreants were given noth- ing more than a verbal or perhaps a written reprimand. Indeed, on Nicholson's own testimony, Pitzo was again and again admonished for not wearing his hat correctly and yet received no punishment, a state of affairs which could be considered to constitute toleration of "insubor- dination." Thus, the General Counsel might well argue that Alexander and/or Nicholson were upset not by the stated refusal of Pitzo to have the hat fixed, but rather by the asserted fact that he made a nuisance of himself over the few weeks preceding his termination, and that the discharge was provoked not so much by his "insub- ordination" as by his repeated invocation of his right to be free from the smoke of the machines which bothered him. The General Counsel argues that the serious discrep- ancies in Respondent's explanation of its reasons for ter- minating Pitzo inescapably give rise to the inference that Respondent was motivated by an unlawful consideration in doing so. In my earlier discussion of the facts, I have described only a selection of the more serious contradic- tions, discrepancies, and suspicious aspects of the testi- mony presented by Respondent. It is certainly true that the testimony and evidence presented by Respondent have all the earmarks of the kind of coverup often en- countered in meritorious 8(a)(3) cases. But the fact is that even if Respondent was principally moved to discharge Pitzo because of his complaints about the smoke prob- lem, Pitzo would receive protection under the Meyers case only if in fact his discharge was "motivated by [his] protected concerted activity." In an area of the law as technical and uncertain as this one is, it is entirely possi- ble that an employer's representative may misapprehend the requisite basis for liability and attempt to misrepre- sent the facts even when he would not be, on a true showing of his motivation, guilty of any violation. On this record, I cannot find that, with the exception re- ferred to, Pitzo's complaints generally constituted "pro- tected concerted activity," and with respect to that small portion of his activity which clearly was "protected con- certed activity," I cannot infer that Superintendent Nich- olson was aware of those few occasions on which Pitzo and Murphy jointly complained to Wilson.'8 is There is also testimony by Pitzo, implicitly denied by Alexander's testimony that he never spoke with Pitzo about the smoke problem until March 28, that employee Sanchez told Alexander at an earlier date that "there are a lot of people around here who are complaining" and that Continued 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Despite the uncertainty engendered here by the fact that there has been lying on both sides of the matter, it is not unreasonable to suppose that Nicholson could have been responding chiefly to the fact that Pitzo had told Alexander that he was not going to obey the safety rep- resentative's instruction One reason for so believing is the fact that on the ter- mination slip given to Pitzo on March 28, Nicholson listed as an explanation for the discharge "Insubordina- tion to safety officer." Nicholson could have simply marked, as he did, the box next to the printed reason, "disregard of safety instructions." That he took the trou- ble to write out the other explanation suggests that it was a moving cause. Furthermore, it is not unreasonable to argue that a supervisor might draw a distinction in his own mind between a failure to follow rules, even repeat- ed failures, and a face-to-face statement of a refusal to obey an order. While the logbook earlier referred to shows that a number of employees committed what are referred to as "safety violations" without any notation that they were disciplined, it also shows that some em- ployees were terminated for the offense of "insubordina- tion." The logbook states that employee W. Martin, on May 13, 1983, "was advised by supt. to put on his hard- hat-employee threw hardhat on floor and supt. termi- nated him for insubordination "19 Similarly, an entry about employee Rich Johnson dated April 7, 1983, states, "Employee subjected himself to a fall potential of about 55 feet after being instructed by his superintendent not to. Employee was terminated 4/7/83 for willful violation of a safety rule." The General Counsel apparently would ask me to find one (or both) of two things. The first is that Alexander was so incensed with Pitzo's repeated importuning about the smoke problem and/or was so annoyed at the accusa- tions of failing to do his duty to eliminate the problem that he notified Nicholson about the March 28 confronta- tion even though, in other circumstances, Alexander would not have done so. Whether, even if this were true, it could serve as a basis for finding a violation, assuming that Nicholson was unaware of Alexander's motivation, is debatable. There is, in any event, no reason to believe that Alexander would not have reported the incident to Nicholson no matter how brusied his feelings may have been as a result of the confrontation with Pitzo The safety violations log indicates that Alexander and other safety representatives reported various violations to other craft superintendents, and it is not unreasonable to think that, having been told by an employee that he was refus- ing to obey an order to comply with a safety rule, Alex- ander would not have felt obliged to make that fact known to the employee's superintendent. In, the alternative, the General Counsel presumably would like me to find that Alexander, piqued by the en- counter with Pitzo, notified Nicholson on March 28 of the continuing barrage 'of telephone calls from Pitzo and Pitzo subsequently called Alexander to reprove him for not responding to Sanchez' call Even if I were to believe this testimony, it would at best suggest a liaison between Pitzo and Sanchez which might have been dis- cernible by Alexander, but it still would not establish that Nicholson knew of such a relationship on March 28 19 The superintendent in that case was one J Maclntire urged Nicholson to agree with him that Pitzo was a nui- sance who should be removed from the payroll As indi- cated, even if I were to draw such an inference, there is still the General Counsel's problem of a lack of proof of knowledge by Nicholson of actual concerted activity by Pitzo. Moreover, there is only secondary support for the proposed inference in the testimony, chiefly arising from the inconsistencies and contradictions in the testimony given by Respondent's witnesses. The fact that Nichol- son did not confront Pitzo to ask about the insubordina- tion arouses suspicion, but he might well 'have expected Pitzo to deny the account given by Alexander, and he presumably would have had to accept the word of his safety representative 20 Moreover, I did not receive a firm impression from the whole of the evidence that either Alexander or Nichol- son would have been unduly disturbed by serial com- plaints from Pitzo, even though I have concluded that I cannot find him to have been as active in the matter as he testified. Respondent has what appears to be a very intensive safety program. Aside from the safety orienta- tion given to new employees, all the foremen hold weekly meetings with their crews at which a bulletin on the subject of safety is handed out and discussed.2 i While it is apparent that the enforcement of the safety rules among the 3000 employees at this site is inconsist- ent, there appears to be no question that, at its higher levels, Respondent makes every effort to assure the safety of the employees. Murphy, testifying for the Gen- eral Counsel, said that he knows five or six people who have made safety complaints and who were not disci- plined for doing so, and he agreed that, at this site, the Company "stresses safety" more than on other jobs at which he has worked and "encourages" employees to make safety problems known to the safety department It is Alexander's business to solicit safety complaints so that employees will not be hurt, he appeared to me to be a mild-mannered person who would not react vindictively to an employee who threw business his way. As for Nicholson, despite his flawed testimony, I have no inde- pendent basis for believing that he would seek to visit re- prisals on employees who complain about safety prob- lems. Complaints made to Alexander caused no problem for Nicholson, as far as I can see, and Alexander, I sup- pose, would have viewed such complaints as part of his stock-in-trade. B The General Counsel's Second Theory In NLRB v. City Disposal Systems, 465 U S. 822 (1984), a Supreme Court majority upheld the Board's Interboro doctrine'22 which holds essentially that an individual's 20 Although Nicholson testified about the importance of being fair and wanting to be treated fairly himself, I was not left with the impression that he was a soft touch Wilson testified that when Nicholson is "in an extremely good atttiude, you can talk to him " 21 The orientation and the bulletins made frequent reference to the im- portance of wearing hardhats and of not altering them The hats them- selves bear labels warning the wearer to "NEVER ALTER OR MODIFY shell or suspension system " 22 NLRB v Interboro Contractors, 388 F 2d 495 (2d Cir 1967) BECHTEL POWER CORP. assertion of a right contained in a collective-bargaining agreement constitutes an extension of the "concerted" action that produced the agreement and hence amounts to concerted activity within the meaning of 'the statute. The General Counsel here argues that by pressing his complaint about the fumes, Pitzo was engaged in such constructive concerted activity. I agree with this conten- tion. Article III, section 3.9, of the Local 592 agreement provides: It is the duty of all workmen and Employers to see that safe working conditions are maintained on all jobs at all times, according to NJAC Code 12:180 and all state and federal regulations. There is no evidence that Pitzo was aware of the exist- ence of this provision; he made no reference to it in com- plaining about the exhaust smoke in March 1984. This was equally true in City Disposal Systems, where a lone truckdriver, who was discharged for refusing to drive a truck he considered to be unsafe, did not "explicitly refer" to Article XXI of the collective-bargaining agree- ment or to the agreement in general. 465 U.S. at 839. The Court nonetheless concluded that the truckdriver was engaged in concerted activity because of the exist- ence of a contract provision authorizing the employees to refuse to drive in appropriate cirumstances. In her dissenting opinion, joined by three other jus- tices, Justice O'Connor stated (465 U.S. at 843 fn. 3), "The Interboro doctrine is especially disturbing in this re- spect, since it does not require the individual expressly to refer to the contract provisions supporting the claim or even to be aware of the existence of the agreement." The majority opinion did not deny that it intended to so hold. It may be forcefully argued, I think, that the majority did not truly intend such a result. I need not, however, embark upon the complicated argument that the Court intended to prescribe only a rebuttable presumption of employee knowledge of and reliance upon the relevant provision of the bargaining agreement, 23 since it is obvi- ous that, even under such a construction, the Respondent here would have to shoulder the burden of showing that Pitzo was unaware of the relevant provision in the bar- gaining agreement. Accordingly, it is appropriate to assume, in the absence of evidence to the contrary, that in complaining to Wilson and Alexander about the smoke fumes, Pitzo intended to invoke the collective-bar- gaining contract provision previously set out. The Court laid down as one predicate for the applica- tion of Section 7 that the employee's statement be "based on a reasonable and honest belief' that the contract pro- tects him from the situation which he is protesting.24 22 I may very briefly note, however, the majority's repeated references to "the invocation of a right rooted in the collective-bargaining agree- ment" and similar language as support for the contention that the em- ployee was engaged in "concerted" activity The question obviously arises whether there can be "concert" in any sense if the employee is in fact completely unaware of a contract provision (or even a contract) per- tinent to his complaint 24 "As long as the employee's statement or action is based on a reason- able and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective-bargaining 897 One might assume that the experience of being exposed to overpowering fumes would give rise to a "reasonable and honest belief' that such an environment is forbidden by a contract which contains a clause pertaining to safety. The present state of the evidence in this case is, however, arguably deficient on this point. As set out ear- lier, the only relevant contract clause provides, "It is the duty of all workmen and Employers to see that safe working conditions are maintained on all jobs at all times, according to NJAC Code 12:180 and all state and federal regulations." The provision thus appears to de- clare that the definition of "safe working conditions" will be judged in accordance with the New Jersey Code and pertinent state and Federal regulations. The record con- tains no indication of what any of those regulatory pro- visions require or proscribe. Common sense might seem to dictate, however, that fumes which had the "bad" physical impact credibly described by employee Murphy-"it wasn't a pleasant odor to smell, nor to taste. It stung my eyes"-are probably forbidden by one or more of the foregoing regulatory ;provisions. I further note the testimony of safety representative Alexander that he was "certainly concerned" about the problem, was giving "a lot of thought as to how we could actual- ly correct it at that time," and on occasion (including March 28) had the offending equipment shut down in order to protect the affected employees. It should be pointed out that in City Disposal Systems, supra, the employer made an argument to the Court that the specific language of the safety provision in that case25 only allowed a driver to refuse to drive a truck if the truck was "objectively unsafe." The Court concluded that this argument "confuse[d] the threshold question whether Brown's conduct was concerted with the ulti- mate question whether that conduct was protected." It went on to say that Interboro means that "an honest and reasonable invocation of the collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated," so that the employer 's argument as to the limiting effect of the contract clause went not to the question of whether the conduct was concerted but whether it was, rather, unprotected. The Court ac- knowledged that "it may be that the collective- bargain- ing agreement prohibits an employee from refusing to drive a truck that he reasonably believes to be unsafe, but that is, in fact, perfectly safe. If so, Brown's action was concerted but unprotected." For the purpose of con- ducting an inquiry "into whether respondent may contin- ue to defend this action on the theory that Brown's re-' fusal to drive Truck No. 244 was unprotected, even if agreement , and the statement or action is reasonably directed toward the enforcement of a collectively bargamied right the employee is en- gaged in concerted activity " 465 U S at 837 25 "The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with safety appliances prescribed by law It shall not be a viola- tion of the Agreement where employees refuse to operate such equip- ment unless such refusal is unjustified " 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted," the Court remanded the case to the court of appeals.26 465 U.S. at 841. On the basis of the foregoing, it may be argued that there has been a failure of proof here on the General Counsel's part by neglecting to establish that the smoke problem was of such a character that the various regula- tions referred to in the contract imposed an obligation upon Respondent to correct the problem. It seems to me, however, that the present case is clearly distinguishable from City Disposal Systems on this point. There, the ap- plicable contract clause expressly provided that an em- ployee who refused to drive when the refusal was "un- justified" was acting in violation of the agreement. The contract provision in the present case does not even ar- guably contain such an "act-at-peril" element which could be construed similarly to constitute a waiver of the right to complain about a perceived safety violation if, in fact, the condition complained of did not in law amount to a violation of the web of safety regulations referred to in the provision. Accordingly, the Court's language-"if the collective-bargaining agreement imposes a limitation on the means by which a right may be invoked, the con- certed activities would be unprotected if it went beyond that limitation" (465 U.S. at 841)-has no applicability to the present circumstances. I shall therefore assume that, under the principles laid down in City Disposal Systems, Pitzo's complaints about the fumes were "honestly and reasonably" related to the pertinent collective-bargaining agreement provision so as to constitute statutory "concerted" activity, and that those complaints have not been shown to be unprotected by virtue of the terms of the safety provision. That leaves for consideration, however, the possibility that the manner in which Pitzo behaved in his conversation with Alexander on March 28 caused a forfeiture of his right to claim protection under Section 7 of the Act. As the Court pointed out in City Disposal Systems, supra at 837: "The fact that an activity is concerted, however, does not necessarily mean that an employee can engage in the activity with impunity. An employee may engage in con- certed activity in such an abusive manner that he loses the protection of § 7 See, e.g., Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 729 (C.A. 5, 1970); Yellow Freight System, 247 NLRB 177, 181 (1980)." NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir 1965), contains perhaps the most familiar expression of the elbow room which must be afforded an employ- ee's exercise of his Section 7 rights: [F]lagrant conduct of an employee, even though oc- curring in the course of Section 7 activity, may jus- tify disciplinary action by the employer On the other hand, not every impropriety committed during such activity places the employee beyond the protective shield of the act. The employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be 26 Thus, the Court held that an "honest and reasonable" belief that the contract applied to protect the employee would be ineffective if, in fact, it did not balanced against the employer's right to maintain order and respect. In addition to the foregoing principle, we must also consider the rule approved by the Supreme Court in NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964), holding that the law protects employees from employers who seek to discipline them in the belief, however genuine. that they have engaged in misconduct in the course of concerted activity, when in fact they have not done so: In sum, § 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. As set out in General Telephone Co. of Michigan, 251 NLRB 737, 738-739 (1980), the Board has evolved the following procedure for applying the foregoing principle in the case of economic strikers (and, presumably, em- ployees who otherwise engage in concerted activity): The law is clear that when an employer disciplines an employee because he has engaged in an econom- ic strike, such discipline violates Section 8(a)(3) and (1) of the Act. An employer may defend its action by showing that it had an honest belief that the em- ployee disciplined was guilty of strike misconduct of a serious nature. If the employer is able to estab- lish such a defense, then the General Counsel must come forward with evidence that either the em- ployee did not engage in the conduct asserted, or that such conduct was protected. The burden then shifts back to the employer to rebut such evi- dence. 10 10 Rubin Brothers Footwear, Inc, 99 NLRB 610 (1952), Ameri- can Cyanamid Company, Inc., 239 NLRB 440 (1978) See, general- ly, NLRB v. Burnup & Sims, Inc, 379 U S 21 (1964). In the present case, it would seem that when Pitzo ini- tiated his conversation with Alexander on the morning of March 28 by reiterating his previous complaint to Al- exander about the acrid fumes, he was engaged in pro- tected concerted activity within the meaning of City Dis- poisal Systems for the reasons discussed above. He was, in my opinion, still engaged in such activity when Alexan- der attempted to divert the conversation to the state of Pitzo's headgear, a diversion which Pitzo refused to permit ("All you are worrying about our [sic] hardhats, you are worried about our glasses, our eyes, but you are not too concerned about the air we breathe"),27 and was 27 I credit Pitzo's testimony here for two reasons Alexander's version of their March 28 conversation was very abbreviated he had Pitzo saying that the fumes were "very bad", himself replying that they were working on the problem, and then raising the question of Pitzo's hat and advising Pitzo that he would have to have the liner replaced, and Pitzo saying that "he would not do it " Alexander could "recall" nothing else of the conversation He did not directly deny the remaining discussion Continued BECHTEL POWER CORP. still in the fact of pressing his safety grievance when Al- exander told him to have his hat liner replaced and Pitzo, in the heat of the moment, said that he would not do so (as recounted to Wilson by Alexander, Pitzo said, "I'll fix mine when you fix your problem, something like that") 28 If, in fact, Pitzo had thereafter failed and refused to have the liner replaced and to wear it in proper adjust- ment, 1[ would conclude that he had engaged in the kind of "impropriety" which management would be author- ized to penalize "even though occurring in the course of section 7 activity." NLRB v. Thor Power Tool Co., supra. In addition, at the time that Alexander reported the en- counter to Nicholson, it would not have been inappropri- ate for the latter to believe that Pitzo was committing the offense of "insubordination," a refusal to submit to Alexander's authority. But the evidence shows, I think. that apart from his momentary outburst, Pitzo did not engage in a real act of disobedience. Pitzo testified that Alexander told him to have the hat fixed by 2 p.m.; that almost immediately after the con- frontation, he went to the diesel generator room, was issued a new liner by employee Vince DeLuca, and had the liner in place and in adjustment by 9:15 a.m. Re- spondent made no effort to contest this testimony or to demonstrate DeLuca's unavailability as a witness, and my own impression of Pitzo ]leads me to believe that he was the sort of individual who would indeed have obeyed Alexander's direct order with alacrity.29 It is my judgment, therefore, that while Pitzo uttered some words smacking of insubordination, he did not in fact engage in disobedience of the command given to him. It must follow, I believe, that he did not lose the protection of Section 7. The stated intention to be dis- obedient, followed by timely obedience, is not "flagrant conduct," but should rather be characterized as the sort of "impulsive behavior" for which "some leeway" may be permitted when an employee is "engage[d] in concert- ed activity." Thor Power Tool Co., supra. If I assume here that when he decided to discharge Pitzo, Nicholson had "an honest belief that Pitzo was guilty of . . . miscon- duct of a serious nature," I would nonetheless conclude that the General Counsel has successfully "come forward with evidence that either the employee did not engage in the conduct asserted, or that such conduct was protect- ed," a showing which Respondent has not rebutted. Gen- eral Telephone Co. of Michigan, supra. 30 which Pitzo had described as having occurred, and the initial testimony of Foreman Wilson earlier noted (that Alexander told Wilson that Pitzo had accused Alexander of "picking on" him for having earlier com- plained) indicates that the conversation was more extensive than stated by Alexander and was, in addition, reasonably consistent with the version testified to by Pitzo 28 Although Alexander testified that he was "calm" during this con- versation Wilson, who talked with Alexander immediately thereafter, de- scribed the latter as "a little upset" 28 I also think it likely that Pitzo dad not fabricate his undenied claim that Alexander had given him until 2 pm to secure the new liner, al- though the point is not material to my conclusion 30 That Nicholson did not know that Pitzo had in fact promptly obeyed Alexander's order is irrelevant under Burnup & Sims, supra, once it is shown that "the employee was not, in fact, guilty of that miscon- duct " Nicholson had the opportunity to investigate the incident and chose not to do so In this area of the law, he thereby acted at his peril 899 I conclude, in sum, (1) that Nicholson was aware that Pitzo's stated intention to disobey Alexander's order arose in the context of a discussion of a safety complaint registered by Pitzo, the latter conduct falling into the category of "concerted activity" as defined in City Dis- posal Systems, supra;3 i (2) that Pitzo did not in fact dis- obey the order given him to have the liner replaced by 2 p.m., but, rather, complied immediately with the instruc- tion; and (3) that the momentary indication of an inten- tion to disobey the instruction was part and parcel of the concerted activity which Pitzo had undertaken32 and amounted to nothing more than the sort of impulsive be- havior that Section 7 tolerates. Cf. J. T Cullen Co., supra, where the Board found protected the jointly stated and implemented intention of three employees not to perform a particular assignment which they regarded as unsafe. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Peter Pitzo on March 28, 1984, Re- spondent violated Section 8(a)(l) of the Act. 3. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Peter Pitzo on March 28, 1984, I shall recommend that It also would appear that an adequate showing of Nicholson's knowl- edge of Pitzo's concerted activity has been made While we will never know precisely what Alexander told Nicholson on March 28, the record discloses that Nicholson at least waS told that Pltzo approached Alexan- der with a complaint about the fumes and, in the context of engaging in that concerted activity, uttered a remark sounding in insubordination This would seem to constitute sufficient communication to Nicholson of a nexus between the concerted activity and the safety hat remark to hold Respondent accountable for the discharge. Cf J T Cullen Co, fn 17, supra, where the Board apparently thought that a satisfactory under- standing of the statutorily protected concerted nature of the activity could be inferred from the fact that the company president, who dis- charged the complaining employee, was told by an intermediate supervi- sor that the three inspectors "believed that the job was unsafe, and that neither Fowler nor Pollitz was willing to do the job " Those words did not precisely convey notice that the employees were acting in concert, but they certainly suggested that possibility, and that, it would seem, was enough for the Board 31 Although Nicholson testified "I don't think" Alexander informed him of Fitze's smoke complaint on March 28, Alexander twice testified that he told Nicholson that his conversation with Pitzo had begun with a discussion of the "fumes being created by the crane in the south crane bay"; and to the question, "So Mr Nicholson knew before he made any decision that Mr Pitzo had been making complaints about fumes, cor- rect?" Alexander answered, "Yes " 32 See JMC Transport, 272 NLRB 545 (1984) (Chairman Dotson dis- senting), where an exchange between a manager and an employee about a payment discrepancy in the employee's paycheck brought about his dis- charge This was thought to be sufficiently connected with another pro- test made jointly by that employee and a fellow employee a month earli- er, and involving a different kind of complaint about the pay system, to constitute "a continuation of the [earlier] protected concerted activity " 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent be required to offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his termination to the date of Respondent's offer of re- instatement, less net interim earnings during such period. The backpay provided herein shall be computed on the basis of calendar quarters in accordance with F. W Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). I shall also recommend posting of the traditional no- tices and other customary relief. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed33 ORDER The Respondent, Bechtel Power Corporation, Han- cock Bridge, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other terms and conditions of employment, in a manner which interferes with the right to engage in con- certed activities as guaranteed by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 33 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 2. Take the following affirmative action deemed neces- sary to'effectuate the policies of the Act. (a) Offer Peter Pitzo, if Respondent has not already done so, immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the deci- sion. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Hancock Bridge, New Jersey facility copies of the attached notice marked "Appendix."34 Copies of the notice, on forms provided by the Regional Director for Region 4, after being -signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Remove from its files any reference to the unlaw- ful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 34 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States 'Court of Appeals Enforcing an Order of the National Labor Relations Board."