Daniel Construction Co.

National Labor Relations Board - Board Decisions

Mar 7, 1979

240 N.L.R.B. 1254 (N.L.R.B. 1979)

1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel Construction Company a Division of Daniel
International Corporation and Newell D. Mc-
Querry
Daniel Construction Company, a Division of Daniel
International Corporation and Tempel-Callison
Contruction Company, Jointly and Newell D. Mc-
Querry. Cases 14CA-I 1169--1 and 14 -CA-
11169-2
March 7. 1979
DECISION AND ORDER
By CHAIRMAN FANNIN(; AND M MNBI RS PINlT 1()
ANI) TRtIISI) I.AL
On November 29. 1978. Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed ex-
ceptions and a supporting brief, and Respondent
Daniel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
OR D)ER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National I.abor Re-
lations Board adopts as its Order the recommended
Order of the Administrative l.aw Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
herein called Respondert D)aniel
2 the Charging Partr has excepted to ccrta;li] redihlit [ilN li lg made h
the Administrative t.aw Judge It s the HBoard's e stablished pollc nol to
o.errule an administraltive law judge's resolutioins with respect toi crcdlhiI
unless the clear preponderance if all ,if the releaniln e.ldeces con,i,,c. i
that the resolutions are inoneir t i. Sianhir I)rl t al Pdii.tL In i 91
NI.RB 544 (1950), enfd. 188 12d 362 13d (ir. 1951) e ha\e carefuill
examined the record and find it, hasis for -resersmirg his findi ngt,.
In adopting the Adminisratise Law. Judge's I)ecision. c .irc saifhed
Ihat the concerted prolteced ;activitics that (harging Plir MQucrr cii-
gaged In while emploed hb Respolndent I)aniel or bh an\ otheir ciliploxcr
plaed no part in his discharge and the suhseqiuent denials f nepl\ lentlt
240 NLRB No. 180
DECISION
SIAItMtNI 01 tIlE CASE
JOEL A HARSIMAZ. Administrative Law Judge: This pro-
ceeding was heard before me in Linn, Missouri, on June 6,
1978. based on an unfair labor practice charge filed on
February 24, 1978, and a consolidated complaint issued on
April 11, 1978, alleging that Respondent Daniel Construc-
tion Company. also referred to as the Company, discrimi-
natorily discharged Newell McQuerry on January 16, 1978.
and that said Respondent. together with Respondent Tem-
pel-Callison, engaged in further violations of Section
8(a)(3) and 1) of the Act, when on February 9, 1978, em-
ployment0was again denied to McQuerry.l In their duly
filed answers. Respondents denied that any unfair labor
practices were committed. At the close of the hearing.
briefs were filed on behalf of the General Counsel and
Respondent Daniel Construction Company.
Upon the entire record in this case, including consider-
ation of the briefs, close observation of the witnesses while
testifying, and their demeanor, I hereby make the follow-
ing:
FNlINo(is Of FA(C
I Ite Bt ' SNISS ()
t
I I: RISIONi)DNIS
Respondent Daniel is engaged in the construction indus-
try as a general contractor with a principal office and place
of business in Greenville, South Carolina. At times mate-
rial to this proceeding, Respondent Daniel. in said capaci-
ty, has been engaged in a project in Callaway County, Mis-
souri, the sole jobsite involved in this proceeding. During
the calendar year ending December 31, 1977. a representa-
tive period. Respondent Daniel, in connection with its op-
erations at the Callaway County jobsite. received goods
from points located outside the State of Missouri exceeding
$50.000 in value.
The complaint alleges. Respondent Daniel admits, and I
find that it is, and has been at all times material herein, an
employer engaged in commerce within the meaning of Sec-
tion 2(2). (6). and (7) of the Act.
Respondent Tempel-Callison is a Missouri corporation
with a principal office and place of business in Sedalia.
Missouri. At all times material to this proceeding, Respon-
dent Tempel-Callison has been engaged in building and
construction operations at the C('allaway County jobsite in-
volved in this proceeding. During the calendar year ending
December 31, 1977, a representative period. Respondent
Tempel-Callison in the course of its operations in Missouri,
received goods from States other than the State of Missouri
exceeding $50,000 in value.
I he litigatiol im the present poslure of this proceedinig s limited It
qeit iils. concernilig unlfair laboil- practices altributed to Da)niel (Construc-
tin Compan.( il B i order idaled September 5. 1978. I accepted a partial
settlementci agreenllenl islh tespect to Respondent empel-('allison t(ertain
of the remedial obligtions imposecd upon the latter hb irtue f the settle-
menlct Wcre conltiigient iiupon ultiliate findings against Respondent I)aniel
(onrl tr ltioll ( orinpan I or that reason. ad as dismissal of he allegations
a.gaiiIsnt i c ie uld abhsolse l cipel ('allisl from all obligation. it is
deencld inalipproprilte lt this tise inteto seser C(ase 14 (A I 169 2
DANIEL CONSTRUCTION COMPANY 1255
The complaint alleges. Respondent Tempel-Callison ad-
mits, and I find that it is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2). (6). and (7) of the Act.
1 THE I.ABOR ORGANIZAIION INVOLVED
The complaint alleges, the Respondents admit, and I
find that Bridge, Structural, Ornamental Iron Workers,
Machinery Movers & Riggers, Local 396, AFL-CIO, is,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III C'ONCLUDING( FINDINGS
The General Counsel contends that Respondent Daniel
violated Section 8(a)(1) and (3) of the Act by discharging
McQuerry on January 16. 1978. and by subsequently refus-
ing to rehire him and then directing his discharge by Re-
spondent Tempel-Callison on February 9, 1978. "in whole
or in part for engaging in protected concerted activity and/
or in retaliation for his winning an arbitration .
The facts show that since the fall of 1975, Respondent
Daniel has been engaged as general contractor in the con-
struction of a nuclear power plant at the Callaway jobsite.
That job is being performed under the jurisdiction of
agreements between Respondent Daniel and 16 different
labor organizations, including Iron Workers. Local 396.
Those unions represent craftsmen employed directly by
Respondent Daniel in a range which varied between 850
and 1,100 workers.
Newell McQuerry. the Charging Party herein, was a
member of Iron Workers, Local 396. herein called the
Union. He was intially referred out of the Local 396 hiring
hall and employed by Respondent Daniel on September
13, 1976. His difficulties with the latter began on December
10, 1976. when he and three other members of his work
gang were discharged on the assigned ground that the' had
been responsible for a "poor productive effort." Thereaf-
ter, the discharged crew prepared a grievance, together
with an itemized account explaining their reasons for the
lost productive time.2 Subsequently at step five of the griev-
ance procedure, according to the credited testimony of
T. C. Smith. Daniel's assistant project manager, the Com-
pany conceded that the dischargees were not entirely re-
sponsible for the slowdowns. Thus, the grievance was ad-
justed by an apparent compromise whereby the discharged
crew members would be hired on Respondent Daniel's
next work order from the hiring hall but without backpay.
Pursuant thereto, McQuerr was rehired by Respondent
Daniel on January 11, 1977. The next day. January 12.
was the last day on which McQuerrv worked on this proj-
ect. At the close of work that day he was involved in an
incident with Superintendent Charles Alexander. On that
'See (;.C. Exh. 9. Testimon) hb McQuerr) that he worded 9 percent of
the grievance, which was offered onl) after prodding h counsel for the
General Counsel, struck me as unbehexable. In other respect,, lcQuerr\
did not Impress me as hesitant or shN in taking credit for his contribution to
protected acts. I find that McQuerr'r\ role n the preparation of this dlocu-
ment did not stand out ahb, e that of the other discha.rged resa members
All dates refer to 1977, unlc,, olhersise indicated
occasion, McQuerry allegedly sustained a personal injury
when allegedly struck deliberately by a pickup truck driven
by Alexander. As a consequence. McQuerry claimed that
he was unable to return to work until March 7. when he
received a medical release.
On March 7, McQuerry returned to work, only to find
that his timecard was not in the rack. He was informed by
management that his timecard was unavailable because he
had been discharged earlier "for disrupting work."
The assigned cause for the discharge related to devel-
opments finding their origin in the January 12 incident.
It appears that in consequence of his confrontation with
Alexander on January 12 McQuerry had filed criminal and
civil charges. With respect to that incident, it was the
Company's position that the alleged accident was "staged"
by McQuerry and that McQuerry's claimed injuries were
false. The litigation instituted by McQuerry was viewed as
harassment. 4
McQuerry grieved the March 7 discharge, and the Com-
pany resisted, requiring submission of the issue to arbitra-
tion. A hearing, pursuant thereto, was conducted on Octo-
ber 4. 1977. As reported by the arbitrator, the Company's
position in defense of the discharge was as follows:
The Company says that grievant was discharged for
disruption of work consequent upon his "staging an
accident" in which he claimed to have been struck and
falsely claimed to have been injured by a truck driven
by Alexander. The disruption consisted of time lost in
investigation, including taking of statements of wit-
nesses. by the Company, its insurance carrier, and an
investigator from the office of the Prosecuting Attor-
ney of Callaway County.
In the course of the arbitration hearing, a further issue was
raised by Respondent Daniel in support of its action
against McQuerry. In retrospect. it is noted that McQuerry
on September 13. 1976. when initially hired by Respondent
Daniel, and on January 11, 1977. when rehired. in accor-
dance with customary practice, furnished information to
be included on his employment application. These docu-
ments were signed by McQuerry and both reflected repre-
sentations that McQuerry had not previously received
workmen's compensation benefits.5 McQuerry did in fact
file a workmen's compensation claim in 1971 and on Jan-
uary 29. 1973. received a check from Michigan Mutual In-
surance Company in the amount of $500. The fact that
McQuerry had in fact received such benefits was not dis-
covered by the Company until shortly before the arbitra-
tion hearing. 8
On December 9. the arbitrator issued an award in which
he concluded that Respondent Daniel "at the time it dis-
charged McQuerry did not have just cause for doing so."
He also ruled that the alleged misrepresentation by Mc-
4 Athough the record des not cormpletels disclose what ultimatel) tran-
spired with the lawsuits. an ssumption is uaranted that theN were nt
successfull\ maintained.
See (i (' t h, 10) and I 1.
Sec (C C Eh. 12 I.
See (;(' C h 13
Ba.id on the redited tstimons oif (iene Powell, l claims super.lssor for
the I lilled Staiteh ideili .i1d Ilrlraillce ('tI)paii
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Querry concerning his workmen's compensation claim his-
tory did not furnish grounds for relief. In this regard. how-
ever, it is clear that the arbitrator did not pass upon the
substance of this latter claim, but simply ruled that the
issue was not ripe for litigation.9
By way of remedy, the arbitrator directed that McQuer-
ry be reinstated with backpay running from March 7, 1977,
until reinstatement, but said remedy was conditioned upon
McQuerry's ability to furnish subsequently to the Compa-
ny "reasonable proof that he did in fact receive an injury in
the January 12 truck incident .... " Following issuance
of the arbitration award, McQuerry endeavored to meet
the condition imposed thereby.
On January 16, 1978, McQuerry received a telegram
from T. C. Smith on behalf of Respondent Daniel, inform-
ing as follows:
We are presently taking steps to comply with the
arbitrator's decision regarding your termination for
disrupting work. We have contacted Mr. Barry Levine
for that purpose.
We have reviewed the matter of your falsification of
the application. Pursuant to our policy we are hereby
discharging you for falsification of your employment
application.
Subsequently, on February 8, 1978, Respondent Daniel
placed a work order with Local 396. McQuerry was re-
ferred pursuant thereto, and reported to the Callaway site
on February 9. As could be expected McQuerry was reject-
ed by Daniel, with a representative thereof informing Mc-
Querry, that ". . . T. C. Smith said ... [McQuerryl...
was ineligible for rehire."
At the time, McQuerry was aware that Tempel-Callison,
a subcontractor on the job, also had an order pending at
the Local 396 hiring hall. He discussed that fact with a job
steward, and, after it was determined that said job order
remained unfilled, McQuerry was referred to that firm.
However, his effort to once more obtain work was again
frustrated by Respondent Daniel. Thus, while it appears
that initially T. C. Smith approved the employment of Mc-
Querry by Tempel-Callison, having consulted with Doug-
las Snipes, Respondent's corporate labor representative,
they decided that Daniel could legally prevent Temple-Cal-
lison from employing McQuerry. In consequence, Temple-
Callison was directed to refrain from hiring him on
grounds that McQuerry was an objectionable individual.
After receiving that direction, John Cook, a representative
See G. C. Exh. 7. p. 14, where the arbitrator stated:
Other considerations apply to the alleged employment-application
falsification. That asserted violation is not an "includable" offense:
moreover, the prior workmen's compensation benefits were received
for a minor head wound and not for an injury to the back. To justify
the discharge, or any discipline, on the basis of the alleged falsification
would, in my opinion, initiate an entirely new ball game. his ground
was apparently first asserted at the hearing before me. In any event.
there has been no opportunity to process it through the earlier steps of
the grievance procedure. Moreover. although the Company feels that
the falsification was clearly proven. and that Grievant should therefore
not be given any redress, I have insufficient evidence to pass on the
issue because. inter alia. I don't know the extent to which Griesant was
involved in the compensation proceedings nor what the Company's
discipline practice has been in similar situations.
of Tempel-Callison, sought clarification from T. C. Smith,
who informed Cook that employment of McQuerry could
be refused lawfully. T. C. Smith drafted the following lan-
guage, suggesting that it be used by Tempel-Callison in
rejecting McQuerry:
Ineligible for employment under Section II of subcon-
tract general terms and conditions. i°
Cook then informed McQuerry that he "was not allowed to
hire him by contract," and gave McQuerry a termination
slip which described the reason for the discharge in the
precise terms suggested by T. C. Smith.
The issues of discrimination in this case are limited to
the January 16, 1978, discharge and the denial of employ-
ment to McQuerry on February 9, 1978. Respondent Dan-
iel contends that both actions were predicated solely on its
belated discovery of McQuerry's falsification of employ-
ment information, an offense characterized as "serious"
and one which required termination as a matter of policy.
The General Counsel challenges the assigned cause as pre-
text, urging instead that the adverse action was unlawful,
since prompted, either in whole or in substantial part, by
McQuerry's role in safety protestations, his grievance ac-
tivity, and his filing unfair labor practice charges against
another subcontractor.
From my assessment of the record, I am not convinced
that an inference is warranted that Daniel effected reprisals
out of concern for any involvement by McQuerry in pro-
tected acts while in its employ. While evidence was adduced
that McQuerry filed grievances against Daniel, and also
participated in activity touching upon safety, there is no
evidence of other conduct of a protected nature during that
period, and that which does appear is either discredited or
not sufficiently persuasive to be deemed causally related to
the subsequent action against McQuerry.
In so concluding, it is noted that McQuerry's activity in
the area of safety was limited to three incidents, all derived
from uncorroborated testimony, of McQuerry. The first re-
lated to what appears to have been a brief work stoppage,
which McQuerry claims to have inspired,t' in protest of the
discharge of three men for safety infractions in the face of
an alleged company practice whereby employees were not
apprised of formal citations for such violations. According
to McQuerry, the Company responded by reversing its de-
cision by rescinding the discharges and agreeing to install a
notification procedure on issuing citations for safety in-
fractions. The second incident attested to by McQuerry
related to a safety meeting at which a pamphlet was to be
read and signed by employees. McQuerry asserts that in
the presence of "all the general foreman and all the fore-
men" the men refused to sign the document after McQuer-
ry stated, "I'm not going to sign it unless we discuss it
1a See (;.C. Exh. 5. It is noted that the above language refers to sec. I I of
the agreement to which all subcontractors, including Tempel-Callison, were
hound That provision. in material part, recites as follows.
Section I I. LABOR AND PERSONNEL Subcontractor shall employ
only competent and skilled personnel to perform the work. Subcontrac-
tor shall. if requested to do so by contractor, remove from the jobsite
an5 personnel of subcontractor whom contractor determines to be in-
competent. dishonest or uncooperative.
Tl the applicable collectise-bargaining agreement contained a no-strike
clause See ((C. Exh. 3. art. VI. sec. 2. p. 6.
DANIEL CONSTRUCTION COMPANY 1257
.... " The final incident related to an alleged dispute,
emerging from the ironworkers' construction of a platform,
apparently for safety purposes. McQuerry and an individ-
ual whom he identified as Andy Kennedy, "assistant to the
project manager," had words over that task. Kennedy ini-
tially disagreed with the necessity for such a structure and
later opined that it should be erected by carpenters. By his
own account, McQuerry, in arguing with Kennedy, em-
ployed somewhat abrasive language.
Fundamental to my discounting the foregoing as con-
tributing to the motive herein is my unwillingness to credit
the uncorroborated testimony of McQuerry. He impressed
me as a thoroughly unreliable witness. Reservation as to
his verity was aroused by a perceptible tendency on his
part to exaggerate his role in protected activity, to interpret
events in a manner supportive of his own interest, and to
relate inherently suspect testimony in furtherance of his
cause. However, other deficiencies exist in this line of testi-
mony as well. Thus, McQuerry's assertions that foremen
were present on two of these occasions were unaccompa-
nied by foundation as to their authority. Hence, any infer-
ence to knowledge is left to rest upon little more than Mc-
Querry's conclusionary description of their status.
Furthermore, there is reason to believe, on this record, that
Respondent Daniel was safety conscious and had a pecuni-
ary interest in eliminating, to the extent possible, risk of
injury to those employed on the Callaway project. Consid-
ering the enormousness of the jobsite, the incidents on
which the General Counsel relies do not impress me as
sufficiently profound to be differentiated from everyday
occurrences not likely to evoke reprisal.
As for McQuerry's grievance activity, he admits that
apart from the discharge of his crew in December 1976,
and the grievance on his discharge in March 1977, he filed
none while in the employ of Respondent Daniel. It is diffi-
cult to imagine that an employer, as was true of Respon-
dent Daniel, whose labor relations would naturally expen-
ence regular and recurrent grievance activity, would visit
reprisals upon an employee simply because he invoked
contractual remedies to grieve his discharge. While it is
true that the adverse action under scrutiny here might be
described as an effort to perfect earlier discipline in the
face of an adverse ruling in arbitration, it would be totally
inappropriate, in the circumstances, to construe, perni-
ciously, Respondent Daniel's conduct as a reprisal against
McQuerry for his success in arbitration. The Employer had
every right to act, subsequently, on the ground left unre-
solved by the arbitrator, provided it did so for reasons
other than those proscribed by the Act.
On the other hand, the General Counsel's position is
favored by evidence pointing to the possibility that Daniel
may have acted against McQuerry because of the latter's
general reputation as an advocate of employee rights.
Tending to support such a view were statements admittedly
made by T. C. Smith at a grievance session held in connec-
tion with McQuerry's discharge of March 7 and apparently
on other occasions to representatives of the Iron Workers
Union. At that time, Smith was aware that McQuerry had
initiated an unfair labor practice proceeding against J. S.
Alberici Construction Co., Inc.'2 Although that case arose
on a different jobsite, Alberici had been engaged as a sub-
contractor at Callaway. During the fifth step of the griev-
ance procedure, when Smith was repeatedly questioned by
McQuerry as to what he meant by "disruption of work,"
Smith claimed that he declined to answer initially out of
concern for the pending civil and criminal actions, but then
grew angry, and told McQuerry, ". . . that his mere pres-
ence on the job was disruptive to the work force." Smith's
declared hostility was subsequently examined during the
arbitration hearing. At that time, Smith was also ques-
tioned as to statements made by him to union representa-
tives pertaining to McQuerry. Smith acknowledged that he
had told Joseph Hunt, Jr., a business agent, that the Com-
pany had "a problem." Smith was asked to clarify what he
meant by this, whereupon Smith indicated as follows:
Well, as rumor has it, if you will, McQuerry has been
forth in arbitration before. It's a known fact when he
is around, as the local people tell me, that there is
normally some type of problem.
Smith also acknowledged that at the arbitration hearing he
used words to the effect that he ". . . heard that Mr. Mc-
Querry was allegedly an agitator and that production slows
down."
Respondent Daniel, through counsel, seeks to diminish
the import of these statements by arguing that they were
simply in reference to McQuerry's criminal and civil
charges against the Company growing out of the alleged
accident of January 12, 1977. On the contrary, those state-
ments were of broader reach and subsumed conduct of
McQuerry which was of a protected nature.
With the case in this posture it would be a simple task to
project Smith's statements into a finding of unlawful moti-
vation. and, based thereon, to reject as pretext the cause
assigned for the discharge. However, such a result would
be at odds with my view of the total record.
For I am convinced that, notwithstanding Smith's dis-
paraging and hostile expressions, Respondent Daniel acted
solely out of conviction that McQuerry's dishonesty was
continued by its discovery of misinformation on his appli-
cation. From my own impression of McQuerry, I have no
doubt as to the sincerity with which Respondent Daniel
asserted that McQuerry actually contrived the charge that
Superintendent Alexander, apparently without provoca-
tion, deliberately ran him down in the pickup truck on
January 12, or to its view that the injuries he claimed were
feigned. Resentment was intensified against McQuerry by
the criminal and civil litigation he instituted.'
Is In J. . 4lherici (oomructon (o.. Inc.. 231 NLRB 1038 (1977). the
Board found that Albericl iolated Sec. 8(aA3) and (I) of the Act hb refus-
ing to hire McQuerr) on Julk 14. 1976. The record is silent as to precisely
when T. C. Smith acquired knowledge of that proceeding. The charge in
that case was filed on December 21. 1976. T. C. Smith simply stated that he
beheled that he was advised thereof prior to the reemployment of Mc-
Querr' in January 1977
Authorit) does not warrant a conclusion that pursuit of these remedies.
in the circumrstances. constituted activit) within the ambit of Sec. 8(a( I) of
the Act. McQuerr)'s action in this regard was personal. not in furtherance
of an emplo)ee cause or alliance, and calculated to secure individual relief
with respect to a confrontation bearing little if an, fundamental relationship
to conditions of emploment On this basis. cases such as .4mhulance Ser-
C(niznued
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This suspicion and resentment which had provoked the
March discharge would naturally have been inflamed by
the new supervening development in the fall of 1977. Thus,
shortly before the arbitration hearing, information was de-
veloped leading to the discovery that McQuerry had falsely
reported on two employment applications that he had not
previously received unemployment compensation. Con-
trary to the General Counsel, this offense is not be lightly
regarded. The importance of this information is self-evi-
dent from the face of the applications, which are of an
abbreviated nature, seeking limited information. Thus.
apart from identifying data, the primary area of inquiry
relates to questions bearing upon the applicant's history of
personal injury, including that addressed to receipt of
workmen's compensation benefits in the past. Also weigh-
ing against the pretext finding is credible testimony by
T. C. Smith that misrepresentation of a material fact on
the employment application, under company policy, con-
stitutes automatic grounds for dismissal. While it does not
appear that such indiscretions had ever been condoned, it
is a fact that another employee, D. J. Cobb. was dis-
charged on January 30, 1978, for misrepresenting on his
employment application data related to past injuries and
compensation received. The General Counsel would distin-
guish the treatment accorded Cobb on the ground that his
misrepresentation was material and intentional, whereas
McQuerry's was not. In this connection, the General
Counsel points to testimony by McQuerry that the entries
on the applications were innocent in that he did not know
that the settlement he received involved the payment of
workmen's compensation benefits.' 4 In this regard, it is
noted that McQuerry admittedly filed a workmen's com-
pensation claim in 1971.15 It is also clear that in 1973 he
received payment which he knew to be derived from that
injury in an amount which exceeded by over $300 the med-
ical expenses and legal fees involved. McQuerry claims
that because his lawyer informed him earlier that his em-
ployer at the time was uninsured and not registered with
the State of Missouri, he concluded that any settlement
reached would be outside the ambit of workmen's compen-
sation laws. Aside from my unfavorable impression of Mc-
Querry, this self-serving testimony did not ring true. Mc-
vices of ,'Ne Bedford, Inc.. 229 NLRB 106 (1977): Irin rlrsin,ra' e & :fal-
rial (orl., 227 NLRB 792 1977): and .4tr-Lrhanl Irlsn.srlnlsrsosw. I n.. 22)
NILRB 1371 (1975)1. are distinguished. ( I ,irrheasern /)Ite 1 ,l,. I/< . 213
NIRB 1222 (1973). urthermore, the argument that McQuerr 's Initlting a
crinina;ll proceeding ought to be regarded as protected because of its impact
on safe working conditions is unpersuasisve It does not alter the indiidUdal
and personal nature of McQuerry's conduct in this regard. See. e.g.. Ilurn
Tool (onlpanr. 192 NLRB 145 (1971). McQuerry also filed a workmen's
compensatioin claim against Respondent for injuries growing out of the .;an-
uar, 12, 1977, incident. In the circumstances I find that this action was ot
a contributing factor to the discrimination involved here. Thus said claim
was not filed until July 1977, well after the March discharge.
14The discharge of emplosee Bobh, (hildress for misinformation ap-
pearing on his employment applicaltion is viewed as neutral to the nqllir
Thus. the false entry on the (Childress application resulted in the payment of
expense vouchers by Respondent Daniel. that would not have been paid
were the true facts known. Thus. the misrepresentation in the case of ('hil-
dress had ;a far moire aggravated impact thin that of McQuerr
is See G.C' Exh 12. which appears to be a routine claim acknowledgltt
routinel) submitted hb the Dission of Workmen's Compensaion. I)eparlt-
ment of .abor and Industrial Relations of Missouri
Querry hardly impressed me as lacking in sophistication as
to remedies available to working men in the construction
industry. At the time of his initial employment by Respon-
dent Daniel. McQuerry had been a member of the Iron
Workers Union for 13 years and had served as a job stew-
ard. His history of employment in the construction indus-
try dated back to 1959. Contrary to his unbelievable testi-
mony, 7 McQuerry knew, or should have known, that the
sums received in 1973 stemmed directly from the claim
filed in 1971 and constituted workmen's compensation
benefits.
In asserting that the falsifications be ignored as pretext.
the General Counsel draws heavily upon Smith's remarks
made during the processing of the grievance over the
March 7 discharge. Fully aware of the animus to be glean-
ed therefrom, a finding that Daniel acted thereon does not
automatically evolve. For, I remain convinced that Mc-
Querry's plight would have been no different had he never
engaged in activity protected by the Act. The cause as-
signed for alleged discrimination herein was legitimate,
based on a serious offense, and one not shown to have
been the subject of disparate enforcement. Considering the
context in which the statements were made, I decline to
give the statements of Smith a degree of weight which
would deny the Employer the right to effect discipline
where evidence of significant misconduct had emerged.
For those comments were uttered to McQuerry and union
representatives in the heat of a pending grievance over a
discharge filed by an individual whose accusations against
a superintendent, and whose claims based thereon, were
disbelieved and deeply resented. It is not unusual for a
party to such a controversy to weaken to the point of ver-
bally disparaging the opponent, either out of pure anger on
in the interest of creating an unsympathetic aura. I am
inclined strongly to the view, on the record as a whole, that
this effort to demean played no part in the decision to
eliminate McQuerry from the Callaway project. Instead. I
find that the January 16. 1978 ,J8 discharge and the refusal
to hire and interference with McQuerry's employment by
subcontractor Tempel-Callison on February 9, 1978. were
based entirely upon discovery of the false references on the
i, Official 1ltice is taken iof certain if the abose facts as the) appear in
J S ./caril (w'i-ituitionl (o., Ic.. upra at 139.
lit aiddition to the 1973 claim. McQuerr (on cross-exanlmination bs Re-
sponden l)aniel's cullsel testified that in 1965 he broke four ioes on his
right foot, and ao wa, ;s struck across the ese with a cable. He Indicated that
im 1966 he broke his right thumb and four toes oin his left foist. le also
indicaled that he had broken his little finger while working on anolher job.
I hiweser. in a displa\ of appa;rent clnsistenc,. he cla;imed that his loss of
inme resultilg froni those accidents was limited toi half a dax or a daN When
asked whether he receied compensation for those injuries. McQuerry testi-
fied "No,. I h;avse never other than the $500X settlement. unless they count
theis pailng doctor hills as compensation."
In his brief. the General Counsel questions )aniel's dela, between the
October 4 arhitration hearing and the Januars 16 discharge in acting on this
ground for dismissal On this record the answer is bvious his issue was
raised to the rbitrator on October 4 TIhe award was nt issued until De-
cember 9. it resealed that the arbitraltor declined to pass upon that ground.
lurthermlore. the award condiioined NMQuerrs's relnstatement and back-
pa;t on his subsequent pr ductioin of records "ci;ncerning his medical treat-
imenlt and p;lment therefore, prescriptions purchased. and other docu-
TmelIs pertaining to his injur and treatment " Although McQuerr claimed
that he mailed this information to the nilon's l;lia:ver. the evidence des not
dlsclos,e jilst when this occurred, and it is entirel possible that the condition
was tilt met until a tlnie proximnate to the discharge f January 16.
DANIEL CONSTRUCTION COMPANY 1259
applications against the background of the January 12 inci-
dent as to which Respondent also seriously questioned Mc-
Querry's honesty."'
Accordingly, it is concluded that the General Counsel's
claim of alleged discrimination on the foregoing facts is not
substantiated by a preponderance of the evidence, and I
find that Respondent Daniel did not violate Section 8(a)( 1)
and (3) of the Act thereby. As there is no independent
evidence that Respondent Tempel-Callison acted upon any
proscribed animus in its refusal to employ McQuerr- on
February 9, 1978, it follows that no merit exists in the alle-
gations against that firm.
CON( I USIONS OF LAW
1. Respondent Daniel and Tempel-Callison are em-
i, Sec. I I of the subcontractor's agreement. which appears in eidence is
(i.C Exh. 2. authorlzes Respondent Daniel to remoe effectliels from the
jobsite any personnel of a subcontractor whom the contractor determined o
be "incompetent, dishmnes. or uncxooperatlse' (Emphasls supplied.) While
it is true that (iC Exh. 14. in listing the sarious grounds for dismissal. doe
not specifv "falsification of emploment application." the listing therein
appears to be specific, and It is not deemed to halve been intended a, ex-
haustive of every tipe of milsconduct that ight fall within the manile of
"dishonests'"
ployers engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Newell McQuerr, on January 16,
1978. and by denying him employment on February 9,
1978, Respondent Daniel has not violated Section 8(a)( I)
and (3) of the Act.
4. By denying employment to Newell McQuerry on
February 9, 1978, Respondent Tempel-Callison has not
violated Section 8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record in this case, and pursuant to
Section 10(c) of the Act. I hereby issue the following rec-
ommended:
ORDER 20
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
i) In the csent no exceptions are filed as provided b Sec 102.46 oif the
Rules and Regulations of the National abor Relations Board. the findings.
conclusions. and recommended Order herein shall, as prosided in Sec
102 48 of the Rules and Regulations. be adopted b the Board and become
its finding,, conclusions, and Order. and all objections thereto shall he
deemned alsed for all purposes