Denver Dry Wall Mountain Division, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1975

216 N.L.R.B. 51 (N.L.R.B. 1975)

DENVER DRY WALL MOUNTAIN DIVISION, INCORPORATED 51
Denver Dry Wall Mountain Division, Incorporated
and Douglas Bowser and Gary Folsom. Cases
27-CA-3989-1 and 27-CA-3989-2
the Administrative Law Judge's recommended Order which recommend
reinstatement.
APPENDIX
January 7, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On August 8, 1974, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in opposition to the Respon-
dent's exceptions.
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order,' as modified
herein.
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 as
modified below and hereby orders that Respondent,
Denver Dry Wall Mountain Division, Incorporated,
Denver, Colorado, its officers, agents, successors,
and assigns , shall take the action set forth in the
Administrative Law Judge's recommended Order as
herein modified:
1. Delete paragraphs 2(a) and 2(b) and substitute
the following as paragraph 2(a), and reletter the
remaining paragraphs:
"(a) Make Gary Folsom and Douglas Bowser
whole for any loss of earnings that either may have
suffered through March 5, 1974, by reason of
Respondent's discrimination against them in the
manner set forth in the section herein entitled `The
Remedy.' "
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
I Respondent's exceptions relate exclusively to the Administrative Law
Judge's recommendation that Respondent offer to reinstate discnminatees
Folsom and Bowser . We agree with Respondent that an order of
reinstatement is improper under the facts of this case because General
Counsel has conceded that Folsom and Bowser were reinstated by
Respondent on March 5 , 1974, and because General Counsel has not sought
backpay beyond March 5 , 1974. Therefore, we will delete those sections of
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and we intend to carry out the Order
of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain as a group through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any and all of these
things.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these
rights.
WE WILL NOT tell you we have discharged an
employee because he engaged in protected con-
certed activities.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engage in
protected concerted activities.
WE WILL make Gary Folsom and Douglas
Bowser whole for any loss of earnings which they
may have suffered by reason of the discrimination
against them.
DENVER DRY WALL
MOUNTAIN DIVISION,
INCORPORATED
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS , Administrative Law Judge:
This case was tried before me in Denver, Colorado, on
June 4, 5, and 6, 1974. The charges were filed in Case
27-CA-3989-1 by Douglas Bowser, an individual, and in
Case 27-CA-3989-2 by Gary Folsom, an individual, and
served on the Respondent on December 3, 1973. The
consolidated complaint which issued on April 26, 1974,
alleges that the Respondent has violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
A posttrial brief was filed by Respondent on July 25, 1974.
The basic issue herein is whether employees Douglas
Bowser and Gary Folsom were discharged because Folsom
sought to enforce the terms of the collective-bargaining
216 NLRB No. 7
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement by checking on whether a fellow employee had
a union card or whether, as Respondent contends, by
leaving work early on Friday, December 30, they in effect
quit and were not rehired.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the brief filed by
the Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent , a Colorado corporation with its principal
office and place of business in Eagle , Colorado, is engaged
in performing drywall work in the construction industry.
Respondent, in the course and conduct of its business
operations within the State of Colorado, annually purchas-
es and receives goods and materials valued in excess of
$50,000 from other enterprises located in the State of
Colorado, which other enterprises had received the said
goods and materials directly from States other than the
State of Colorado.
The consolidated complaint alleges, Respondent admits,
and I find that Respondent is, and at all times material has
been , an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
The consolidated complaint alleges , Respondent admits,
and I find that the Painters and Drywall Finishers, Local
Union No. 79, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
As a drywall subcontractor Respondent employs carpen-
ters, ' finishers ,2 and laborers . Most of its work is
performed in the mountain areas of Colorado. Respondent
is bound by a collective -bargaining agreement between the
Union and the Union Painting Contractors Association
and the Rocky Mountain Association of Gypsum Drywall
Contractors effective by its terms from July 1, 1973,
through June 30, 1976. Said agreement , in article V,
contains an 8-day union-security clause and requires that
i The carpenters, called "rockers" or "hangers", attach panels of dry wall
to studs with either screws (if steel studs) or nails (for wood studs).
2 Finishers apply tape to the joints with adhesive compound , sometimes
referred to as mud , fill in nail holes and apply mud on top of the tape. In the
building at Keystone in which Folsom and Bowser worked , the finishing
was done in three distinct steps . First, one or two finishers go through and
tear out all butt joints and fill them and also fill most of the big holes. Then
a finisher goes through and tapes the joints . Finally, in the third step, the
post-taping finishing is done.
9 It is undisputed that persons hired in this manner were paid in
accordance with the collective-bargaining agreement.
4 All dates hereinafter are in 1973 unless otherwise indicated.
5 Respondent provided rooms plus $7 daily for each employee. The
nonunion employees were housed together in a condominium. The union
employees were housed in a motel . All finishers and their foreman , Marvin
Mattson, usually ate in the same restaurant . Mattson and the nonunion
finishers sat together. The union finishers sat together.
6 Mattson , an admitted supervisor, supervised the drywall finishers on
the Employer shall first contact the Union to refer such
workers as are needed . If the Union is unable to supply the
required workers within 48 hours after receipt of the
request, the Employer may obtain workers from any other
source . If any worker is obtained from such other source,
the employer is required to notify the Union within 24
hours. The Employer may reject any worker dispatched by
the Union and the worker may reject any job to which he is
dispatched.
In the summer of 1973, due to the usual difficulty in
getting finishers to work in the mountain areas and
because , at the time , the Union had no finishers available,
Ronald Beaird , Respondent's manager and part owner,
and Robert Bondy, business representative for the Union,
reached an understanding whereby Respondent could hire
finishers without going through the hiring hall and notify
the Union after these persons were employed .3 If such
employees proved satisfactory, Bondy would come to the
jobsite and sign them up in the Union in accordance with
the union-security provision of the contract . Although
there was no such restriction , it is clear that it was
anticipated that any persons hired in this manner would
not be union members.
Pursuant to this understanding, Respondent hired five
nonunion finishers to work on a construction project in
Keystone, Colorado, known as the Flying Dutchman. On
November 19, 1973,4 the Union referred Douglas Bowser,
Gary Folsom, Les Campbell, and Robert Kunsel to work
as drywall finishers for Respondent at the Keystone site.5
Toward the end of the workday on November 19,
Respondent's foreman , Marvin Mattson,6 told Bowser and
Folsom that there was an informal agreement to work a
half hour over or miss a break now and then in order to
leave early on Friday. To this end, Mattson sought their
agreement to work a half hour late that day. Bowser and
Folsom agreed and they worked an extra half hour until
4:30. According to Folsom and Bowser, the agreement was
to report to work a half hour early and leave early on
Friday. Employee Les Campbell testified that such was the
agreement as he understood it, but he and Kunsel elected
not to work under this portion of the agreement. They
utilized only the second portion of the agreement which
was to work through the two 15-minute coffeebreaks each
day and take 1 hour for lunch instead of the normal half
hour .? Bowser testified that he and Folsom worked
the Keystone job.
I This is from the testimony of Bowser , Folsom, and employee Les
Campbell whom I credit . Mattson testified that regular union hours are
from 8 a .m. to 4 : 30 p.m., but that they worked from 7:30 a.m. to 4 p.m.
Working 7:30 to 4:30 was not part of the agreement . He admits that on
November 19 Folsom and Bowser did work until 4:30 p .m. as did other
employees . This was because they had a lunchbreak that day of more than a
half hour . According to him, if an employee went to Vail for lunch it would
take 45 minutes to an hour and the time would have to be made up at the
end of the day. Mattson testified that the only agreement was to work
through coffeebreaks which accumulated an extra half hour each day. I do
not credit Mattson 's account of the agreement . His testimony was
confusing, conflicting, and contrary to a sworn statement made by him
during the precomplaint investigation of the matter herein . In his affidavit,
he stated , "There was an informal agreement between myself and some
employees that if they worked through their breaks and started one half
hour early each day then they could take off early the amount of time they
built up going to a weekend or holiday." After reading the above statement
DENVER DRY WALL MOUNTAIN DIVISION, INCORPORATED 53
through the coffeebreaks if they took more than a half
hour for lunch.
On Tuesday, November 20, they worked from 7:30 a.m.
to 4:30 p.m. On Wednesday, November 21, the day before
Thanksgiving, Folsom and Bowser arrived at work late due
to a slight indisposition resulting from the conviviality of
the previous evening. Upon arriving at the jobsite, Folsom
told Mattson he was in no condition to work, requested
and received permission for him and Bowser to return
home.8 The finishers were not scheduled to work on
Thursday and Friday, November 22 and 23 .9 The
following week, on Monday through Thursday, Bowser
and Folsom worked the agreed-upon schedule. On Wed-
nesday, November 28, as Folsom and Bowser were
working together in a unit,10 around 10 a.m., another
employee, Larry Minter," came into the unit and asked if
they needed water. According to Folsom, finishers get their
own water so this , coupled with the fact that Minter was
not wearing the white coveralls required by the Union,
made him doubt that Minter was a union man , so Folsom
asked Minter if he had a union card. Minter replied yes.
Folsom asked to see the card. Minter replied that actually
he didn't have one. Folsom said, "Well, you can't be
working here unless you are a member of the Union. You
should go to Marvin Mattson and tell him we sent you over
to him." Mattson testified that Minter approached him and
said, he "just got busted." Mattson asked, "How could you
get busted?" Minter said, "I got checked for a card."
Mattson said, "You are not a finisher, why did you get
checked for a card?" Minter said, "I don't know." Mattson
told him to continue working.
About 15 minutes after the Folsom-Minter incident,
Mattson approached Folsom and Bowser. Bowser and
Folsom testified that Mattson asked if Folsom had
checked Minter's card. Folsom said yes. Mattson told
Folsom that several other finishers on the job didn't have
union cards and asked if Folsom was going to let it slide.12
Folsom said he didn't see how he could, that men were out
of work at the union hall and that they had to pay
initiation fees and insurance which were costly. Mattson
testified that he asked Folsom what the problem was.
Folsom said he was not going to work with a bunch of
scabs. Mattson reminded Folsom that he had already told
him that Bondy knew about the nonunion men. Folsom
allegedly said, "If you don't take these men off the job, I
am going to shut down completely!"
Around I I a.m. that day, Mattson returned with Dan
Veverka, Respondent's rocker foreman. According to
from his affidavit , Mattson testified that the affidavit was incorrect, that
they only worked through breaks . He then testified that the agreement did
not apply to every Friday, that it was a one time agreement for the day
before Thanksgiving . Then he stated that the daily half hour gained could
be used for any Friday an employee wished to leave early , that it wasn't for
a specific Friday or even a specific day. Beaird corroborates the employee
witnesses that part of the agreement was to start work a half hour early in
order to leave at noon on Friday
8 When they returned to work the next week , Mattson informed them
they would not receive travel pay for this trip. If they had worked that day
they would have received travel pay consisting of mileage and wages for
time spent in travel.
0 This was the Thanksgiving weekend.
10 The Keystone job was a condominium project consisting of a number
of buildings each containing eight units or condominiums.
11 Mattson testified that Minter was a laborer who carried water and
Bowser , Veverka asked Folsom what was going on. Folsom
said he had checked cards. Veverka asked if he was going
to let the men work. Folsom said he couldn't, that they (the
finishers not referred by the Union) would have to pay
their union dues and if they didn't, they couldn't work on
the job. Veverka said if he was Folsom's foreman, he
wouldn't let him run his show. Folsom testified merely,
"Dan asked me what my problem was and if I was going to
let these people and he said if he was a foreman I wouldn't
be running his show." Veverka testified that he asked
Folsom what authority he had to check union cards.
Folsom replied he could check cards at any time. Veverka
said it would be best not to check cards on company time,
that if he was going to check cards, it should be during
breaks, lunch, or after work. Folsom replied that he would
check cards whenever he wished. Veverka asked if he was
going to go back to work and Folsom replied that he was
not going to work with a bunch of scabs. Mattson first
testified that Folsom said he was not going to let the job
proceed with nonunion finishers on the job, that he was
going to shut down the whole job, not just the finishing job,
but the carpenters, the electricians, and the whole works.
After further questioning Mattson admitted that Folsom
did not refer specifically to carpenters and electricians but
that he did say he was going to shut the whole job down.
Immediately after this conversation, according to the
uncontradicted testimony of Veverka and Mattson, they
told Job Superintendent Mitchell what Folsom said.
Mitchell told them to get the nonunion finishers off the job
because he could not afford to have the job shut down.
Veverka and Mattson pulled the nonunion finishers off the
job at noon and after consulting with Beaird put them back
to work about 1:30 p.m. in a different building from
Folsom and Bowser.
On that same afternoon, Beaird and Mattson ap-
proached Folsom as he was going from the room in which
he was working across the hall to mix mud. According to
Folsom, Beaird asked, "Don't you ever use your tools?"
Folsom explained what he was doing. Beaird asked Folsom
what his problem was. Folsom said Beaird could not have
nonunion people working on the job. Beaird suggested that
Folsom should know what he was talking about before he
tried to run the job. Folsom asked if Beaird was firing him.
Beaird said no but if he had a check 13 he would. Beaird
then asked if Folsom was quitting. Folsom said no. Beaird
also told Folsom that he had an agreement with Robert
Bondy, union business agent, that nonunion men 14 could
scraped floors. Folsom and Bowser testified that they assumed he was a
finisher because they had seen him with a spray gun in his hand in a unit
where ceilings were being sprayed and he had a finisher's knife in his
pocket The spraying of ceilings is the work of finishers . Neither Bowser nor
Folsom knew his name
12 Folsom testified that by "letting it slide " he understood Mattson to
mean not reporting it to the Union, and that his response meant he would
report it to the Union.
13 The collective-bargaining agreement between the Union and the
Respondent provides that a discharged employee is to be paid immediately
and that if he is not so paid the employer must pay him 8 hours' pay for
each 24 hours that elapses between the discharge and payment of wages
14 Although there were several references in the testimony to employing
union men and nonunion men, there is nothing in the record to indicate that
the witnesses were referring to anything other than the contractual
requirement that employees be referred by the Union.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be hired and that he had already notified Bondy that there
were nonunion employees on the job.15 Beaird's account is
in substantial agreement with that of Folsom except that
Beaird testified that instead of saying nonunion people
couldn't work on the job, Folsom said he wasn't going to
work with a bunch of scabs. Beaird further testified that he
asked Folsom a second time what his problem was and
Folsom said Beaird caused it all by not paying him travel
pay for his return trip to Denver on Wednesday,
November 21.
Later that day Folsom telephoned Bondy and reported
that he had checked one employee and found he did not
have a card. Bondy verified that he was aware of the
situation, that it was all right for them to work and he
would be at the jobsite that next week. There is no
evidence that Folsom or Bowser either engaged in a work
stoppage themselves or attempted to persuade other
employees to do so.
On Friday, November 30, Mattson and the nonunion
finishers left the jobsite between 12 and 12:30 p.m.
Campbell, Kunsel, Folsom, and Bowser were the only
finishers who returned after lunch. Folsom and Bowser
worked from about 12:30 to 1 p.m. at which time they
finished the work which Mattson had lined out18 for them
that morning. There is no contention that Mattson had
lined out work for them other than in the unit they
finished. However, Mattson disputed that they had
completed that unit. He contends that touchup work
remained to be done which he had Campbell do the
following week. Campbell testified that it took him about
an hour to do the work.17 Mattson admitted that although
he had told Campbell and Kunsel to consult Veverka if
they had any problems, he did not give similar instructions
to Bowser and Folsom. Bowser, Folsom, and Campbell
testified that, prior to November 30, they had never been
told that Veverka had any authority over them or that in
Mattson's absence he was their supervisor. Bowser and
Folsom told Campbell and Kunsel they were leaving
because they had run out of work and everyone else had
gone . Neither Campbell nor Kunsel told them what
Mattson had said about Veverka.
Beaird arrived on the jobsite around 2 p.m. According to
him, Veverka told him that he had only two men on the
job, that Folsom and Bowser had not returned from lunch.
Veverka does not deny that he told Beaird that Folsom and
Bowser had not returned from lunch but he admits that he
did not actually know whether they worked after lunch.
Beaird testified that he telephoned Mattson at home and
asked him if he had given Bowser and Folsom permission
to leave at noon. He said he had not. Mattson testified that
Beaird telephoned him and said that Folsom and Bowser
did not work that afternoon, that Beaird considered that
they had quit and Mattson should replace them. Both
Beaird and Veverka testified that Mattson had told them
16 I credit Folsom 's testimony that this was his first knowledge that the
Union was aware of the presence of nonunion finishers on the job. I do not
credit Mattson's testimony that he informed Folsom of this arrangement on
November 19 when Bowser and Folsom reported for work . Both Bowser
and Folsom deny that Mattson made any such statement. Mattson testified
that he did this because previously Folsom had checked cards on one of
Respondent's jobs at Steamboat Springs, Colorado.
16 Assignment of work to be done that day.
earlier that Bowser and Folsom did not participate in the
agreement to leave early.
Bondy's uncontradicted testimony,18 which I credit, is
that Beaird telephoned him on the morning of November
30 and told him he was going to fire Folsom and Bowser
and inquired as to travel pay owed them. Bondy asked why
they were being discharged. Beaird said they were not
satisfactory employees, that they had been causing trouble
on the job and mentioned that they had been checking
union cards. Bondy said the fact that they had checked the
union cards of other employees was no reason to fire them,
that they would have been entitled to do this. Beaird said
he understood they were entitled to do this . Later that day
Beaird again telephoned Bondy and told him that Bowser
and Folsom had left the job early so he was assuming that
they had quit. Beaird inquired about travel pay. Bondy
said if in fact they quit, Respondent did not owe them
travel pay, but did if they were fired. Beaird said as far as
he was concerned they quit and he was not going to give
them travel pay.
On Saturday, December 1, Beaird telephoned Bondy and
gave him a telephone number in Denver where he could be
reached if any problem came up over Bowser and Folsom.
According to Bondy there was some discussion as to why
Beaird no longer wanted Bowser and Folsom to work for
him. He thinks Beaird mentioned again that they were
unsatisfactory employees and may have mentioned the
card check again. Bondy testified that the three conversa-
tions were so close that he cannot be sure exactly what was
mentioned in the Saturday conversation . He is able to
separate the two Friday conversations because the thrust of
one was toward discharging them and the thrust of the
other toward the assumption that they had quit. Beaird
merely testified that he asked Bondy to contact Bowser
and Folsom and "tell them that they had quit on Friday
and we did not want them to come back to the job, that the
checks would be mailed to them."
Bondy did not contact Bowser and Folsom over the
weekend and on December 3 they both reported for work.
Mattson came over to where Bowser, Campbell, and
Folsom were waiting to be lined out for work . Folsom
testified that he asked what they were to do . Mattson said,
"Don't break your tools out. You're not going to work
today." Folsom asked why. Mattson said , "You were
checking union people and telling people not to work and
you have been fired ." Folsom said he would have to be
paid showup time. Mattson said, "No. If you guys would
have stuck around Friday instead of leaving early, you
would have had your check then ." " Bowser asked if he was
fired too. Mattson said Bowser's check would be there also
and Beaird would be there shortly. The testimony of
Bowser and Campbell is in substantial agreement with
Folsom's. Thus Campbell testified that Folsom asked
Mattson what he wanted them to do that morning.
17 Campbell also testified that Mattson had assigned him to do touchup
work on a unit done by employee Jim Schumacher which took 3 hours but
that it is normal for a journeyman to do his own touchup work.
18 Beaird testified that he did not remember talking to Bondy before he
arrived at the Keystone site that day. Thereafter Bondy testified as to this
Friday morning conversation and, although Beaird was recalled after Bondy
testified, Beaird did not specifically deny this testimony.
DENVER DRY WALL MOUNTAIN DIVISION, INCORPORATED 55
Mattson told Folsom that he was not to go to work,
because of the trouble he caused checking the cards the
week before . Mattson asked Campbell if he was going to
work . Campbell said yes and Mattson told him to start
work . Bowser testified that when Folsom asked Mattson
what to do Mattson said Folsom was not supposed to start
work , and that Beaird would be out with his check . Folsom
asked if he had been fired . Mattson said , yes, because he
(Folsom) had checked union cards . Mattson asked Camp-
bell if he was going to work or quit . Campbell said he was
going to stay . Mattson asked Bowser if he was quitting.
Bowser said no . Mattson said, "You might as well not go to
work because he's bringing your check too." Folsom asked
if they would get traveltime for the return trip to Denver.
Mattson said that would be up to Beaird.
Mattson denies saying that Folsom was discharged for
checking cards . According to him , Folsom asked if
checking cards was the reason and he replied no. Mattson
testified that when Folsom asked where he should work,
he, Mattson, said he was not to go to work because
Respondent considered they had quit when they left early
on Friday at noon . Mattson also testified, "I told Bowser
that he was not going to be laid off or quit, that if he
wanted to keep working it was his prerogative, that he
would still have a job ." Allegedly, Bowser replied, "Where
Gary goes, I go, 'cause I am with Gary." Mattson's
explanation of this alleged disparity between treatment of
Bowser and Folsom is that he has the power to rehire so he
was offering to rehire Bowser . Mattson also states that
Folsom said he had heard that if he and Bowser had
worked the full day on Friday, they would have been laid
off Friday afternoon at 4 p.m. and that he admitted that
was true.19
Shortly thereafter Folsom and Bowser spoke with
Beaird. Folsom asked if they were fired. Beaird said no, he
considered that they quit when they left early on Friday.
Beaird then suggested that they talk to Bondy.
Later that day, Folsom and Bowser related to Bondy
what had occurred . On December 4 Bondy went to the
Keystone job. He asked Mattson what happened concern-
ing Folsom and Bowser . Mattson said they had quit, that
they had caused trouble , that they had checked union
cards, their work was not satisfactory , and they had not
done enough work . Bondy said Bowser and Folsom told
him they had not quit, that they were fired. Mattson
replied , "Well, I may have said that they were fired then."
Bondy said if they were fired for checking union cards,
there would be a problem.20
B. Analysis and Conclusions
General Counsel contends that Folsom and Bowser were
discharged because Folsom checked as to whether employ-
ee Larry Minter possessed a union card . Respondent
contends that Folsom and Bowser were not discharged, but
19 As indicated above , I find Mattson's testimony to be generally
incredible . I specifically discredit his account of this December 3
conversation to the extent that it is inconsistent with that of Campbell,
Folsom, and Bowser.
20 This is from the testimony of Bondy whom I credit . Mattson denied
saying Bowser and Folsom were discharged for checking cards.
21 It is apparent that Respondent engaged in this exercise in semantics to
rather that they quit. In support of its position Respondent
relies solely on the undisputed fact that Folsom and
Bowser left work early on Friday, November 30, 1973. This
contention of Respondent can only be characterized as
frivolous. There is not a scintilla of evidence to indicate
that either Folsom or Bowser had any intention of quitting
their jobs or did or said anything that could reasonably
cause Respondent to place such construction on their
leaving early.21 The issue then is whether Respondent
validly discharged Folsom and Bowser because they left
work early without permission or whether, as contended by
General Counsel, the foregoing reason was pretextual and
they were in fact discharged because Folsom checked
union cards.
It is well settled that efforts by an employee to
implement a collective -bargaining agreement is an exten-
sion of the concerted activity giving rise to that agreement
and is thus concerted activity, protected under Section 7 of
the Act. Cray-Burke Company, 208 NLRB 708 (1974); H.
C. Smith Construction Co., 174 NLRB 1173 (1971); E. E. G.
Co., Inc., 171 NLRB 982 (1968); Interboro Contractors, Inc.,
157 NLRB 1295, enfd. 388 F.2d 495 (C.A. 2, 1967); B & M
Excavating, Inc., 155 NLRB 1152, enfd. per curiam 386
F.2d 624 (C.A. 9, 1966); Bunney Bros. Construction
Company, 139 NLRB 1516 (1962). Folsom's check of union
cards falls within the ambit of this principle. The collective-
bargaining agreement contains an 8-day union -security
clause and provides for an exclusive hiring hall and referral
system. A card check is the customary method, in the
construction industry, of policing adherence to such
provisions.
I reject Respondent 's contention that Folsom engaged in
any misconduct during the card check and the subsequent
conversations with Mattson and Veverka relating thereto.
Respondent adduced testimony that the card check was on
company time. This is undisputed. However, there is no
rule prohibiting such card checks. Card checks are
customary in the industry and are customarily done on
company time, and in this instance could not have
involved more than a few seconds .22 In these circum-
stances, the fact that the card check was made on company
time does not render it unprotected.
Respondent's principal contention is that Folsom's
conduct was beyond the scope of the protection afforded
by the Act in that he refused to work with nonunion
employees and threatened to shut down the entire
Keystone project. Even assuming that Respondent's legal
theory is sound, the facts adduced on the record do not
support this contention . Folsom did not threaten nonunion
employees . In essence , what he told Minter was that this
was a union job and he could not work if he was not union.
avoid paying travel pay as would be required under the collective-
bargaining agreement in the case of a discharge.
22 Folsom testified that Minter was the only employee whose union card
he sought to see . Mattson testified that Les Anthony and Jerry Gibbons,
neither of whom testified, told him that Folsom had checked them . I do not
credit Mattson. Moreover, such testimony does not establish that Folsom, in
fact, did so.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is immaterial that Folsom's comment was not an
accurate statement of Minter's rights.23 Folsom did not
insist that Minter stop work, he made no threats to Minter,
he merely told Minter what he thought the requirements
were and sent him to the foreman for further clarification.
Folsom did not himself refuse to work nor did he attempt
to induce his fellow union members on the job to refuse to
work. He called the situation to the foreman's attention by
asking Minter to see Mattson and he reported the matter to
his union representative. There is no misconduct in either
action.
As to the contention that Folsom threatened to shut
down the entire job, Mattson is the only witness who
testified to such. I do not credit his testimony. This is the
second instance where he gives a version of a conversation
which is not only contrary to that of the Charging Parties
but is also contrary to the testimony of a disinterested
witness,24 and to the testimony of his fellow foreman.25
Moreover, as discussed above in footnote 7, his testimony
as to the compensatory work agreement was confusing,
conflicting, and contrary to a sworn statement made by
him during the precomplaint investigation of the matter
herein. For these reasons, and from my general observation
of his demeanor on the witness stand, I do not credit
Mattson's testimony where it is in conflict with the
testimony of other witnesses herein. Specifically, I find that
Folsom did not threaten to shut down the entire project or
even Respondent's work on the project.
I also reject Respondent's contention that the brief work
stoppage on November 28 was caused by Folsom. That
work stoppage occurred solely because Veverka and
Mattson pulled the nonunion finishers off the job.
Respondent contends that this was a direct result of
Folsom's conduct. Even if true, in view of what Folsom
actually said and of the fact that Respondent could easily
establish that the Union had given permission for the
hiring on the project, the response of Veverka and Mattson
was totally unreasonable. I find that Folsom engaged in no
conduct which would remove the card check from the
protection of the Act.
The ultimate issue herein is whether Folsom and Bowser
were discharged because they left work early or because
Folsom checked a union card. No one seems to be
absolutely certain as to the details of the compensatory
time agreement . Upon consideration of the testimony of
the various witnesses, I find that this lack of clarity is most
probably due to the agreement having never been defined
in precise terms. Rather, there was a general agreement
that a flexible schedule was desirable because the location
of the project made an hour lunch instead of a half hour
one necessary at times and because of the traveltime and
traffic conditions involved in returning home at the end of
the workweek, it was desirable to leave early on the last
workday of the week. Employees were permitted to build
23 This is a mistake that employees frequently make in failing to
differentiate between employment rights and membership rights where there
are union security and exclusive hiring hall and referral provisions in the
collective-bargaining agreement . Moreover, as an employee , he had no
obligation to know the law or to refrain from misstating it.
24 Les Campbell as to the December 3 conversation.
25 Dan Veverka as to the instant conversation.
26 They left at I p.m . and Campbell testified that it took him only an
up time to be used either for longer lunches or to quit early
on Friday.
Respondent contends that Folsom and Bowser were not
entitled to leave early on November 30. The only evidence
offered in support thereof is Mattson's testimony that
Folsom told him that he and Bowser would not participate
in the compensatory time arrangement. I credit Folsom's
denial that he said this. I further credit Folsom's and
Bowser's testimony that they had accumulated enough
time to leave 2-1/2 hours early. Not only do I find
Mattson's testimony generally incredible but the fact that
Mattson did not line out a full day's work for them26 and
did not tell them to get instructions from Veverka27 is
more consonant with Bowser and Folsom's testimony than
with Mattson's. I therefore find that Folsom and Bowser
were entitled to leave 2-1/2 hours early on November 30.
Futhermore, Mattson admitted that an employee could
leave early even though enough extra time had not been
accumulated. In that event the employee would have to
make up the time the following week. Also, Bondy's
testimony as to his conversation with Beaird that morning
establishes that the decision to discharge Bowser and
Folsom was made prior to their leaving early. Thus, the
record establishes the falsity of Respondent's contention
that their leaving early was the reason Bowser and Folsom
were not permitted to return to work. For the real reason,
one needs to look no further than (1) Mattson's statement
on December 3 that Bowser and Folsom were being
discharged because of the card check; (2) Beaird's
admission to Folsom on November 28, when they were
discussing the card check incident, that if he had a check
with him, he would discharge him then and there; (3)
Beaird's November 30 statement to Bondy giving the card
check as one of the reasons for discharging them; (4)
Mattson's December 4 statement, in reply to Bondy's
question as to what happened with Folsom and Bowser,
that they had caused trouble, that they had checked union
cards, their work was not satisfactory, and they had not
done enough work, and (5) Mattson and Veverka's
November. 28 characterization of Folsom as a troublemak-
er.28
Based on the above, I find that Folsom and Bowser were
discharged because Folsom checked a fellow employee on
the job as to whether he possessed a union card, in
violation of Section 8(axl) of the Act.29 Even though
Bowser did not himself check any cards, he was present
when Folsom did and it is obvious from the record that
Respondent considered Folsom spoke for Bowser and that
Bowser was involved in whatever Folsom did. It is well
established that an employer violates the Act by discrimi-
nating against an employee suspected of engaging in
protected concerted activity, System Analyzer Corp., 171
NLRB 45 (1968), or by discriminating against an employee
because of his relationship with a fellow employee engaged
hour to do the touchup work he did the next week to complete the umt in
which Dowser and Folsom were working on November 30.
27 Campbell and Kunsel were so notified.
28 Mattson admitted that on the day of the card check he and Veverka
had a conversation in which they agreed Folsom was a troublemaker.
29 In view of the fact that the remedy would be the same, I find it
unnecessary to determine whether the discharges also violated Sec. 8(aX3)
of the Act.
DENVER DRY WALL MOUNTAIN DIVISION, INCORPORATED 57
in protected activity. Cf. Superior Microfilm Systems, Inc.,
201 NLRB 555 (1973).
I further find that Mattson told Folsom, in the presence
of other employees , that he was discharged for checking
union cards of Respondent 's employees in violation of
Section 8(a)(1) of the Act.
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. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By telling employees that Gary Folsom was dis-
charged for checking union cards of fellow employees,
Respondent has interfered with, restrained , and coerced its
employees in the exercise of their rights under Section 7 of
the Act and has thereby engaged in unfair labor practices
within the meaning of Section 8 (axl) and Section 2(6) and
(7) of the Act.
4. By discharging Gary Folsom and Douglas Bowser,
Respondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) of the Act, I
shall recommend .that the Respondent be ordered to cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Because the record does not disclose whether Respon-
dent's operations at the Flying Dutchman in Keystone,
Colorado, have been completed ,30 the reinstatement
portion of the recommended Order is phrased in the
alternative . Interboro Contractors, Inc., supra In the event
that the operations have not yet been completed, I will
recommend that Respondent offer Gary Folsom and
Douglas Bowser immediate and full reinstatement to their
former or a substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and make each of them whole for any loss of pay he may
have suffered as a result of the discrimination against him
by payment to him of a sum of money equal to that which
each would have earned as wages during the period from
the date of his discharge to the date on which Respondent
offers reinstatement as aforesaid, less his net earnings, if
any, during the said period. The loss of pay under the order
recommended shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In the event the aforesaid operations have been complet-
ed, I will recommend that the foregoing be modified to the
so The complaint alleges a refusal to reinstate Bowser and Folsom up to
March 5, 1974, but the record does not show what occurred on that date
which would affect the reinstatement remedy therein . I will recommend the
usual alternative remedy which will afford an adequate remedy in the event
March 5, 1974, is the date the project was completed . In the event an offer
of reinstatement was made on March 5 , 1974, the question of reinstatement
can be handled in the usual manner during the compliance stage.
31 This does not mean that Respondent is required to offer Folsom or
Bowser employment at other projects ; it need only consider them for
employment on a nondiscriminatory basis.
32 In the event no exceptions are filed as provided by Sec. 102.46 of the
following extent : Respondent need not offer reinstatement
to Gary Folsom and Douglas Bowser but shall instead
send each of them a letter stating that , notwithstanding his
discharge , he will be considered eligible for employment in
the future at any of Respondent 's projects , if he should
choose to apply for employment at any of them.31 In
addition , Respondent shall include in the letter to Folsom
and Bowser a copy of the notice which would otherwise
have been posted if the operations had not been complet-
ed, and shall mail copies of the notice to all of its
employees employed at the Flying Dutchman project on
December 3, 1973.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceeding
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby issue the following
recommended:
ORDER32
Respondent, Denver Dry Wall Mountain Division, Inc.,
its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Telling employees that an employee was discharged
for engaging in protected concerted activities.
(b) Discharging or otherwise discriminating against
employees because of their protected concerted activities.
2. Take the following affirmative action:
(a) In the event the Respondent's operations at the
Flying Dutchman project in Keystone, Colorado, are still
in progress , offer to Gary Folsom and Douglas Bowser
immediate and full reinstatement to their former or
substantially equivalent positions , and make them whole
for any loss of earnings they may have suffered by reason
of Respondent's discrimination against them in the manner
set forth in the section herein entitled "The Remedy."
(b) In the event that such operations have been
completed, make Gary Folsom and Douglas Bowser whole
as aforesaid for any loss of pay by reason of the
discrimination against them, and assure them of their
future eligibility for employment, in the manner and to the
extent set forth in the section entitled "The Remedy."
(c) In the event that such operations are still in progress,
post at said project copies of the attached notice marked
"Appendix." 33 Copies of said notice to be provided by the
Regional Director for Region 27, shall, after being signed
by Respondent's representatives , be posted by Respondent
immediately upon receipt thereof, and remain posted as
long as Respondent's operations on the Flying Dutchman
project are in progress , but for a period no longer than 60
days from the date of posting, in conspicuous places, where
notices to employees are customarily posted. Reasonable
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.
33 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National 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."
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steps shall be taken by the Respondent to ensure that said
notices are not altered , defaced , or covered by any other
material.
(d) In the event that such operations have been
completed, mail copies of the aforesaid notice to the
employees specified in the section herein entitled "The
Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this recommend-
ed Order.
(f) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Decision, what
steps it has taken to comply herewith.