Reynolds, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 2001

333 N.L.R.B. 321 (N.L.R.B. 2001)

REYNOLDS, INC. 321
Reynolds, Inc. and Harold E. Gasaway. Case 25–CA–
26869
February 14, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On December 6, 2000, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The General
Counsel filed limited exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1
AMENDED REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (3) of the Act, we shall require it to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the purposes of the Act. Specifi-
cally, the Respondent shall be required to offer employee
Harold E. Gasaway immediate and full reinstatement to
his former position of employment or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed; and to make him whole for any
loss of wages and other benefits he may have suffered by
reason of the Respondent’s discrimination against him, in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Further, the Respondent will be required to expunge
from its records all references to the unlawful discharge
of Harold E. Gasaway and to notify him in writing that
this has been done and that the discharge will not be used
against him in any way. In addition, the Respondent
shall be required to post an appropriate notice, attached
as an “Appendix.”

1 The General Counsel has excepted to the judge’s failure to include
a Conclusion of Law consistent with his finding that the Respondent
told its employees that it had discharged others for asking individuals to
show proof of their union membership. Inasmuch as the judge con-
cluded that the Respondent threatened employees with discharge in
violation of Sec. 8(a)(1) for “carding” other employees, we find that an
additional Conclusion of Law would be cumulative and would not
affect the remedy or the Order. We find merit, however, in the General
Counsel’s other exceptions requesting that the recommended remedy,
Order, and notice conform to the factual findings and legal conclusions,
and we shall modify the Decision and Order accordingly.
We shall also modify the judge’s cease-and-desist remedial provi-
sions to provide for a narrow order as the Respondent’s unfair labor
practices do not warrant imposition of a broad order. Hickmott Foods,
242 NLRB 1357 (1979).
Finally, we shall also modify the recommended Order to comport
with the requirements of Indian Hills Care Center, 321 NLRB 144
(1996), as modified by Excel Container, 325 NLRB 17 (1997).
ORDER
The National Labor Relations Board orders that the
Respondent, Reynolds, Inc., Orleans, Indiana, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge for asking
individuals to show their union membership cards to as-
sure adherence to the collective-bargaining agreement, or
for engaging in union or other protected concerted activi-
ties.
(b) Discharging employees because they ask individu-
als to show their union membership cards to assure ad-
herence to the collective-bargaining agreement, or for
engaging in union or any other protected concerted ac-
tivities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purpose of the Act.
(a) Within 14 days from the date of this Order, offer
Harold E. Gasaway full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position without prejudice to his seniority or any
other rights or privileges he previously enjoyed.
(b) Make Harold E. Gasaway whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Harold Gasaway, and within 3 days thereafter notify him
in writing that this has been done and that the discharge
will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the records
if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its place of business in Orleans, Indiana, and its office in
Indianapolis, Indiana copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
333 NLRB No. 46
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places were notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to insure that the notices are not altered, defaced, or
covered by any other material. Further, in the event that,
during the pendency of these proceedings, the Respon-
dent has gone out of business or if, as the record indi-
cates, the Indianapolis International Airport project has
been completed, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all of its cur-
rent and former employees who worked as operating
engineers at the Indianapolis International Airport project
since September 15, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten you with discharge for asking
individuals to show their union membership cards to as-
sure adherence to the collective-bargaining agreement or
for engaging in union or other protected concerted activi-
ties.
WE WILL NOT discharge you for asking individuals
to show their union membership cards to assure adher-

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

ence to the collective-bargaining agreement or for engag-
ing in union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.
WE WILL offer Harold E. Gasaway reinstatement to
his former job, or if that job no longer exists, to a sub-
stantially equivalent position without prejudice to his
seniority or any other rights or privileges previously en-
joyed, and WE WILL make him whole for any loss of
earnings or other benefits suffered as a result of our dis-
crimination against him, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Harold E. Gasaway, and within 3 days thereaf-
ter, notify him in writing that this has been done and that
the discharge will not be used against him in any way.
REYNOLDS, INC.

Walter Steele, Esq., for the General Counsel.
S. Douglas Trolson, Esq., (Hoffman, Drewry, Hancock, and
Simmons), of Indianapolis, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried in Indianapolis, Indiana, on June 8, 2000, upon a
complaint, dated March 27, 2000, alleging that the Respondent,
Reynolds, Inc. violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The underlying charge was filed
by Harold E. Gasaway on December 20, 1999, alleging that the
Respondent threatened employees for checking the union
membership cards of other employees and that the Respondent
discharged Gasaway because he had asked other employees to
show proof of their union membership.
The Respondent’s answer admits the jurisdictional aspects of
the complaint and denies the commission of any unfair labor
practices.
Based on my observation of the witnesses and my considera-
tion of the entire record and the briefs of the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Reynolds, Inc., the Respondent is a corporation with its prin-
cipal office and place of business in Orleans, Indiana, an office
in Indianapolis, Indiana, and jobsites located throughout the
State of Indiana, including a jobsite near the Indianapolis Inter-
national Airport. As a contractor in the construction industry
primarily in the construction of sewer projects, the Respondent,
purchased and received at its Indiana offices and jobsites,
goods valued in excess of $50,000 directly from points outside
the State of Indiana. The Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
REYNOLDS, INC. 323
The International Union of Operating Engineers and the lo-
cal union affiliates, including Local Union No. 103, (the Union)
have been labor organizations within the meaning of Section
2(5) of the Act.
The Facts
The Respondent’s work force consisted of the operating en-
gineers, the carpenters, and the laborers. They were repre-
sented by three trade unions. The International Union of Oper-
ating Engineers Local Union 103, representing the operating
engineers, had entered into a collective-bargaining agreement
effective April 1, 1999 until March 31, 2004 with Indiana Con-
structors, Inc. as expressly agreed to and applicable to the Re-
spondent (G.C. Exhs. 2, 3). Under the agreement, the Respon-
dent is obligated to employ a certain percentage of its operating
engineers from the Union’s hiring hall when working in the
Union’s geographic area.
In 1999, the Company employed between 15 and 20 operat-
ing engineers, including Harold Gasaway and John Thompson,
the job steward on the project, to construct a glycol contain-
ment facility used in the deicing of airplanes. The superinten-
dent on the project was Frederick A. Landstrom and George
Hall was the operators’ supervisor. Harold Gasaway, a member
of the Union Local 150, was employed by the Respondent off
and on for 4 or 5 years as a heavy equipment operator. His
latest period of employment with the Respondent began in June
1999, after Sean Hall, a foreman, had contacted Gasaway about
working at the Indianapolis International Airport.
Landstrom testified that he was aware of a problem at the
jobsite where some employees, notably laborers, would operate
equipment normally assigned to operating engineers. He was
also aware that Gasaway and Thompson engaged in the practice
of checking the union membership cards of certain individuals
to make sure that they were authorized to operate the equip-
ment. This practice was commonly referred to as checking
cards or “carding” an employee. Landstrom testified that this
activity hindered work and that he instructed George Hall, one
of the supervisors, to take care of a problem which he observed
at least once a week for 6 weeks and which he described as
follows (Tr. 34):

It was a big job and it was a long job and what I done
was I would look over there and I would see the machines
parked and guys talking. And I would say—I would ask
George, “What’s going on over there?” And he would
say, “They are checking cards.”

According to George Hall, Gasaway “stopped people and
checked them . . . 4 or 5 times” (Tr. 122). He also observed
Thompson checking the cards of fellow employees. Hall was
concerned that this activity interfered with the progress of work
on the project. On September 15, 1999, he informed Robert
Bannister, an operator, that he wanted to see Gasaway. In his
words, Hall said to Bannister (Tr. 125):

I said there was too much shit of people jumping on
and off of equipment checking everybody and that I would
take care of it. And I couldn’t say anything about after
hours, but during the hours they were working they was
supposed to be on the machine working.

Bannister similarly testified that Hall wanted to speak to Ga-
saway and Thompson about the subject of carding of other
employees. Bannister also testified that Hall threatened to fire
anybody who engaged in that practice. Bannister testified as
follows (Tr. 114):

He told me—He came over there and told me that—
wanted to know where Harold and John was at. And I told
him I wasn’t sure. I thought they was over to the tool
trailer. And he told me that the carding shit had to stop
because the next person that carded somebody was going
to be fired. . . .
And I told him that I hadn’t been carding nobody and
he told me that if I seen Harold or John, to tell them that
he needed to see them.

After Bannister had informed Gasaway at the end of the day
on September 15, 1999 that Hall was looking for him, Gasaway
proceeded to the office trailer. He saw Hall and another Super-
visor, Paul Burton. During the ensuing conversation, Hall
made it clear that Gasaway would no longer be permitted to
check the cards of individuals while they operated equipment.
According to Gasaway’s testimony, Hall said that the next
time he carded an individual, he would be fired. Gasaway fur-
ther testified that Burton interrupted the conversation and
warned Gasaway saying that if he continued to card people, he
would be fired. Gasaway replied that the Union’s business
agent required him to card individuals and that he could be
fined by the Union for refusing to do so. Burton suggested that
Gasaway should report individuals to Hall whenever he did not
recognize someone as an operator. At that point, Landstrom
joined the conversation and asked if Gasaway doubted Hall’s
integrity. When Gasaway answered, yes, Hall told him that he
was fired.
Hall’s version of the conversation was different. According
to his testimony, he told Gasaway that he would make sure that
the individuals operating the equipment had cards, but that
Gasaway became abusive and accused him of being a liar. Hall
testified as follows (Tr. 128):

I think I told Harold that I would take care of it. That I
wouldn’t have people—I would make sure that they had
cards. And he said I didn’t do a good job of taking care of
that. And Bud asked him if he was checking my integrity
and he said, “Yeah, I’d lie like any other son-of-a-bitch.
And Bud [Landstrom] said, “You’re fired. You’re fucking
fired.” And that was the end of the conversation.

Landstrom recalled the conversation as follows (Tr. 28):

George told Harold not to worry about it. Just don’t
worry about it. You know, “I’ll take care of that. You
stay on your equipment and keep working.” And Harold
said, “Yeah, right,” you know, “Sure.” And I said, “Are
you questioning George’s integrity?” And [he] that was
when he said, “Yeah, he’ll fucking lie to you like anybody
else will.” And it was kind of a heated discussion between
him and George.

Landstrom testified that he immediately fired Gasaway for
“cussing” a supervisor. The Company’s personnel notice,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
signed by Landstrom on September 15, 1999, states “bad atti-
tude” as the reason for Gasaway’s discharge (G.C. Exh. 4).
ANALYSIS
1. The alleged threats
Out of concern that Gasaway and Thompson shut down their
machines and huddle together talking for up to 5 or 10 minutes,
instead of working, Landstrom instructed Hall to take care of
the problem and have it stopped during working hours. Land-
strom and Hall, who were aware that the two employees were
checking other employees’ union cards, decided to put an end
to that practice. Hall initially spoke to Robert Bannister and
told him “that the carding shit had to stop because the next
person that carded somebody was going to be fired.” Hall testi-
fied that he did not recall threatening anybody with discharge
for carding people, but he admitted saying (Tr. 124):

I just told them that I didn’t want them doing it. I was
catching heat from everybody up above and it was bullshit
and it made be look bad and I wasn’t getting hard to be
looking bad and to just quit it.

Gasaway similarly testified that both supervisors, Hall and
Burton told him not to card anybody on the job or he would be
fired. Thompson testified that Hall had told him that he was
tired of all the union stuff and people carding and that he fired
Gasaway for it.
Even though Hall did not recall uttering the threat, the con-
sistent and credible testimony of the employees is clear, Hall
threatened employees with discharge if they continued to card
employees or ask employees whom they observed on heavy
equipment to show proof of their union membership. It is well
settled that employees’ efforts to implement a collective-
bargaining agreement is protected under Section 7 of the Act.
Interboro Contractors, Inc., 157 NLRB 1295, enfd. 388 F.2d
495 (2d Cir. 1967). Checking cards of employees is a custom-
ary practice in the construction industry of assuring adherence
to the collective-bargaining agreement. Denver Dry Wall
Mountain Division, 216 NLRB 51 (1975). Threatening em-
ployees with discharge for engaging in the practice, protected
by Section 7 of the Act, violates Section 8(a)(1) of the Act.
The Respondent observed that the employees’ activities,
consisting of shutting down their machines when they should
be operating and huddling together while the equipment stood
idle for an unreasonable period of time, went beyond the scope
of protection under the Act. This may be true, but the Respon-
dent issued a blanket prohibition against the carding of employ-
ees which is considered a protected activity, rather than issue
orders prohibiting the undesired conduct of shutting down ma-
chines and stopping work for extended periods of time.
2. The discharge
According to the Respondent, Gasaway was not discharged
for violating any rule against card checking, but for cursing
(cussing) his supervisor and calling him a liar. The testimony
of the final episode between Hall, Landstrom, and Gasaway is
not entirely consistent, which prompted the General Counsel to
observe that if the General Counsel’s witnesses are credited, a
violation is established, if not, the case should be dismissed.
I find the version of the Respondent’s witnesses more plau-
sible than Gasaway’s recollection of what he said in reply to
Landstrom’s question, whether he [Gasaway] doubted Hall’s
integrity. Gasaway’s testimony that he simply, recalled saying
yes, does not remotely suggest the use of curse words. Hall and
Landstrom testified that Gasaway used stronger language, such
as, Hall would “lie like any other son-of-bitch” or Hall would
“fucken lie like any body else.” It is clear by all accounts,
however, that Gasaway did not curse his supervisor in spite of
the use of obscenities. Indeed, Hall’s testimony reveals that he
had no aversion to the use of four letter words. Not only did he
recall saying to his employees that “there was too much shit of
people—jumping on and off the equipment,” but he also used a
similar term gratuitously, in one of his responses during his
testimony (Tr. 126). Landstrom similarly revealed that he used
vulgar language when he told Gasaway that he was fired (Tr.
28, 128). In short, Landstrom could hardly have taken any
offense by Gasaway’s use of profanity during what he de-
scribed as “a heated discussion between him and George” (Tr.
28).
In sum, the record reveals that strong words were used by
both, management and employee, during a controversy or a
labor dispute where management attempted to prohibit an em-
ployee’s protected activity and where the employee vigorously
disagreed and expressed his doubts about management’s re-
solve to unilaterally enforce the terms of the collective-
bargaining agreement. Under these circumstances, Gasaway
did not lose the protection of the Act by the use of profanities
or his expression of doubt about management’s promises.
Emarco, Inc., 284 NLRB 832 (1987). The record clearly shows
that management was opposed to the practice of carding, that
management threatened discharge for such conduct, and that
Gasaway was discharged for his disagreement with manage-
ment to discontinue that activity. The General Counsel has
therefore demonstrated under the Wright Line test (251 NLRB
1083 (1980) that the Respondent discharged this employee
because of his union or protected activity. The Respondent has
clearly failed to show that Gasaway would have been dis-
charged even in the absence of any union considerations.
CONCLUSIONS OF LAW
1. Respondent, Reynolds, Inc, 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. The Respondent threatened employees with discharge for
asking employees whom they observed operating heavy equip-
ment to show proof of their union membership or, for engaging
in protected concerted activities, in violation of Section 8(a)(1)
of the Act.
4. Respondent violated Section 8(a)(1) and (3) of the Act
when it discharged Harold E. Gasaway for engaging in union or
protected activities.
5. This unfair labor practice has an effect on commerce
within the meaning of Section 2(6) and (7) of the Act.
REYNOLDS, INC. 325
REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (3) of the Act, I recommend that it be required to
cease and desist therefrom and from any other manner interfer-
ing with, restraining, or coercing its employees in the exercise
of their rights under Section 7 of the Act. Further, the Respon-
dent shall be required to offer employees Harold E. Gasaway
immediate and full reinstatement to his former position of em-
ployment and make him whole for any loss of wages and other
benefits he may have suffered by reason of Respondent’s dis-
crimination against him in the manner prescribed in F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). In addition, the Respondent shall be required to post an
appropriate notice, attached as an “Appendix.”
[Recommended Order omitted from publication.]