Enerco International, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1972

200 N.L.R.B. 394 (N.L.R.B. 1972)

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