Denver Dry Wall Mountain Division, Inc.

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 thejoints 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.