Volkswagen South Atlantic Distributor, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1973

202 N.L.R.B. 485 (N.L.R.B. 1973)

VOLKSWAGEN SOUTH ATLANTIC 485
Volkswagen South Atlantic Distributor, Inc. and
Drivers, Chauffeurs, and Helpers Local No. 639,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 5-CA-5695
March 19, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 9, 1972, Administrative Law Judge
Arthur Leff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Volkswagen South
Atlantic Didtributor, Inc., Lanham, Maryland, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
substituting the attached notice for the Administra-
tive Law Judge's notice.
1 Inadvertent errors of the Administrative Law Judge are hereby
corrected.
Member Kennedy agrees that Watson was unlawfully discharged. In
Daylin, Inc., 198 NLRB No. 40, unlike in the instant case, Member
Kennedy found that the employees ' solicitation activities interfered with
their and other employees' work.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Volkswagen
South Atlantic Distributor, Inc., have violated the
National Labor Relations Act, and we have been
ordered to post this notice.
The National Labor Relations Act gives you, as
202 NLRB No. 87
employees, certain rights, including the right to self-
organization; to form, join, or help unions; and to
bargain collectively through a representative of your
own choosing.
Accordingly, we give you these assurances:
WE WILL NOT interrogate you concerning your
union membership activities, or sympathies.
WE WILL NOT try to make our employees
believe that we have ways of finding out whether
you participated in union activities.
WE WILL NOT do anything that interferes with
any of your rights above.
WE WILL NOT discharge or take any reprisal
action against any of you because you join,
support, or engage in organizational activities on
behalf of Drivers, Chauffeurs, and Helpers Local
No. 639, affiliated with International' Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
WE WILL offer to reinstate Louis R. Watson to
his job, with full seniority and all other rights and
privileges, as the Board has found that he was
discharged because he supported the organiza-
tional campaign of the above-named Union.
WE WILL also make up all pay Louis R. Watson
lost because of his discharge, with 6 percent
interest.
All of you are free to become or remain, or refrain
from becoming or remaining, members of Drivers,
Chauffeurs, and Helpers Local No. 639, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization.
VOLKSWAGEN SOUTH
ATLANTIC DISTRIBUTOR,
INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 1019,
Charles Center, Baltimore, Maryland 21201, Tele-
phone 301-962-2822.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a
charge filed July 11, 1972, by the labor organization above
named, herein interchangeably called the Union or the
Teamsters, the General Counsel of the National Labor
Relations Board, by the Regional Director of Region 5,
issued a complaint, dated August 16, 1972, against
Volkswagen South Atlantic Distributor, Inc.,' herein called
the Respondent, alleging that the Respondent had engaged
in unfair labor practices within the meaning of Sections
8(a)(1) and (3) and 2(6) and (7) of the National Labor
Relations Act, as amended. The Respondent filed an
answer denying the commission of the alleged unfair labor
practices. A hearing was held on September 7, 1972, at
Washington, D.C. At the close of the hearing, the General
Counsel argued the issues orally on the record. Briefs were
filed by the General Counsel and by the Respondent on
October 2, 1972.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Maryland corporation having its
principal place of business at Lanham, Maryland, is
engaged in the wholesale distribution of auto parts.
Annually, it receives at its place of business from points
outside the State of Maryland goods valued in excess of
$50,000. Its annual shipments of goods to points outside
the State of Maryland are also of a value in excess of
$50,000. The Respondent admits that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. It is so found.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
This case is primarily concerned with the Respondent's
alleged discriminatory discharge, on June 26, 1972, of
Louis R. Watson, an employee in its warehouse. As will
more fully appear below, Watson, during a 3-day period
between Wednesday, June 21, and Friday, June 23,
spearheaded a Teamsters drive to organize the Respon-
1 The correct corporate name as reflected by an amendment to the
complaint made at the hearing
2 There was then pending before the Board a petition by the Union for
certification as the representative of the Respondent's warehouse employ-
ees (Case 5-RC-8168) The petition was filed on June 26, 1972, the same
day that Watson was discharged Official notice is taken that pursuant to a
Stipulation for Certification Upon Consent Election, approved by the
Regional Director on July 12, 1972, an election was held on August 10,
1972 The tally of ballots showed 21 votes cast for the Union, and 23
against, with 3 challenged ballots, one of them cast by Watson On
September 19, 1972, the Regional Director issued a Report on Challenges in
dent's warehouse employees, successfully soliciting em-
ployee signatures to Teamsters designation cards from
about 30 of the Respondent's approximately 45 warehouse
employees. He was discharged on the following Monday.
The complaint alleges that Watson was discharged because
of his union activities, in violation of Section 8(a)(3) and
(1) of the Act. The Respondent denies that allegation and
asserts that Watson was lawfully discharged because he
had demonstrated, during the course of his employment,
an "attitude [that was] disruptive and not conducive to
warehouse morale."
In addition to the alleged 8(a)(3) and (1) violation based
on Watson's discharge, the complaint alleges , and the
Respondent in its answer denies, that the Respondent
engaged in a number of independent 8(a)(1) violations
during the month following Walsh's discharge.2 Specifical-
ly pleaded are (1) an alleged threat of discharge for union
activities by Supervisor Harlan Madison, (2) two alleged
acts of unlawful interrogation by Supervisor Will Herlock,
and (3) conduct by Supervisor Herlock alleged to have
created the impression of surveillance of employees' union
activities. Below, I shall consider first the alleged discrimi-
natory discharge, and then the alleged independent 8(a)(1)
allegations.
B. The Discriminatory Discharge of
Louis R. Watson
1. Watson's employment history
Watson was hired by the Respondent on July 22, 1970,
as a parts packer and continued in that capacity through-
out the period of his employment. He worked under the
immediate supervision of Harlan Madison, who supervised
a crew of about 20 warehouse employees. Above Madison
in the line of supervisory and managerial command, in
ascending order, were Wilbur Herlock, the warehouse
manager; James Smith, in charge of inventory; and
Herman T. Branson, the general manager, who was in
overall charge not only of the warehouse but of the
Respondent's other parts operations as well .3
Watson's ability as a packer is not questioned. During
his period of employment, he received two merit increases,
an increase from $551 to $677 a month in January 1971,
and a further increase to $718 per month in March 1972.
Watson would have received the second increase in
November 1971 but for his record of absenteeism. The
Respondent's records show that during 1971 Watson-had
uncompensated absences totaling the equivalent of about
11 or 12 days.4 These absences, to a substantial extent,
which he recommended that the challenges of the two ballots other than
Watson's be sustained, and that a Certification of Results of Election issue.
He did not rule on Watson 's challenged ballot as that ballot could not in
any event affect the results of the election . As appears from the Regional
Director's report, the Union filed no objections to the election.
3 The Respondent employs a total of approximately 200 employees in all
its operations
4 This is exclusive of Watson 's approximately 80 hours of illness during
1971, for which he was fully compensated under the Respondent's 10-day
paid sick leave policy.
VOLKSWAGEN SOUTH ATLANTIC 487
were attributable to illnesses and to injuries which Watson
had incurred off the job.5 In November 1971, Watson was
reprimanded by Herlock for excessive absenteeism. Her-
lock told Watson that, although Watson's work perform-
ance was satisfactory, he was being denied the wage
increase he then would have received and was being placed
on probation because of his excessive absenteeism. As
appears from Watson's credited testimony, Herlock said
nothing to him at that time about his attitude. The
Respondent's records reflect a marked improvement in
Watson's attendance after October 1971. During the last 8
months of his employment, Watson had no uncompensat-
ed absences. On March 13, 1972, the Respondent acknowl-
edged that Watson had corrected the condition that led to
his earlier probation by granting him the wage increase he
had been denied the previous November. An entry, signed
by General Manager Branson, was made in Watson's
personnel file at that time, reading as follows:
Mr. Watson is a productive employee. Past prob-
lem with excessive absenteeism has been resolved.
Prior to his November 1971 reprimand for absenteeism,
Watson had been reprimanded by his superiors on two
occasions. Both occurred more than a year before his
termination . The first followed an episode on April 30,
1971, when Watson and another employee engaged in
horseplay with a fire extinguisher. As a consequence of
that episode Watson was summoned to a "counseling
interview" by Warehouse Manager Herlock and charged
with not performing his job as he should and with having a
"general attitude" that was "not good." At the interview,
Watson insisted that his work performance was as good as
that of any other warehouseman. At the conclusion of the
interview, Watson was warned that "playing around would
not be tolerated any more." A written report to that effect,
dated May 4, 1971, was entered in Watson's personnel file.
There is no suggestion in the record that Watson ever again
engaged in conduct of a similar kind.
The other reprimand occurred in May or June 1971,
when the Respondent was in the process of moving its
warehouse from a former location to its present one. While
assisting in the moving operation, Watson left the bin
section , where he had been working for over an hour
putting away parts to get a drink of water at a water cooler
located in another section of the warehouse. He was
accosted by Branson who asked him what he was doing in
that particular section of the warehouse. Watson told
Branson that he,,was going for a drink of water and that he
also wanted to see what that section of the new warehouse
looked like as he had not yet had an opportunity to see it.
Branson thereupon accused Watson of loafing and not
cooperating properly in the moving operation. He told
Watson that if he did not want to be a cooperative member
5 Watson testified that during 1971, he lost 8 days because of an injury to
his back, 6 days because of an injury to his eye , 3 days because of a burnt
hand , 3 days because of influenza , and I day because he had to appear in
court under a subpena . Watson 's testimony to that effect is largely
corroborated by the Respondent's personnel records, which reflect, inter
alia, the claims for compensation made by Watson under the Respondent's
group health insurance policy.
6 Although Branson , while explaining why he ultimately decided to fire
Watson, testified at one point that he had "talked with [Watson ] too many
times in the past" about Watson 's job attitude and, at another point, that he
had grown "tired of talking to (Watson ] about his lack of hustle and his
of the "team" he should get off it . Watson retorted that he
thought that he was doing his ' job and that, if Branson
thought otherwise , Branson was at liberty to fire him.
Branson did not accept that invitation nor did he enter any
written reprimand in Watson's personnel file. Until
Watson's discharge, more than a year later, Branson never
again voiced any complaint to Watson about the latter's
work or attitude.6
In any event, whatever Branson's opinion of Watson
might have been in 1971, it is quite clear that Branson must
have regarded Watson as a desirable employee by March
1972 when he authorized Watson's second merit increase
and characterized him as a "productive employee." That
the Respondent at that time had every intention of
continuing Watson in its employ is further evidenced by its
response, on March 10, 1972, to an employment verifica-
tion request submitted to it by a mortgage broker to whom
,Watson had applied for a mortgage loan on a home he was
purchasing. The Respondent was asked on the ' employ-
ment verification request to state the probability of
Watson's continued employment. The answer it gave was
"Excellent."
Watson testified that between March, when he received
his second merit increase, and the date he was terminated
he was never reprimanded by any supervisor about his job
attitude. His testimony in that respect was not specifically
contradicted and is credited.
2. Watson's union activities and the Respondent's
knowledge thereof
Prior to Watson's employment by the Respondent, the
United Automobile Workers Union had been certified as
the bargaining representative of the Respondent' s ware-
house employees, but that Union, following an economic
strike, was decertified in a Board election . At the time of
the events at issue , the Respondent's employees were
unrepresented.
For a period of about a year prior to June 1972, Watson
had on scattered occasions casually spoken to some of the
other employees about the desirability of again having
union representation, but had taken no active steps to
promote union organization. On one occasion , in late
March 1972, Watson's supervisor, Harlan Madison, upon
being apprised that Watson had been "talking union," to
another employee, advised Watson not to do so because he
would "go down the road." Watson interpreted Madison's
remark as a warning that he would be fired if he actively
participated in union organizational activities. Absent any
other explanation for Madison's remark-and there is
none-Watson's interpretation appears reasonable.?
In late May 1972, Watson contacted Harold P. Detwiler,
attitude ," I find his testimony in these respects to be patently not credible.
When asked to be specific about when he had talked to Watson, Branson
was able to refer only to the single incident related immediately above. And
he later admitted that this was the only occasion when he had ever
personally complained to Watson about the latter's job performance or
attitude. Much of Branson 's other testimony was similarly marked by loose,
vague , and obviously overblown generalities, not supported by specific
detail, and, as such, did not invite confidence in its reliability.
7 Madison, although still in the Respondent 's employ , was not called as a
witness, and Watson's testimony concerning Madison's remark stands
(Continued)
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sr., the Teamsters business agent, to inquire about the
Union's willingness to represent the Respondent's ware-
house employees. On June 5 and again on June 9, Watson
met with Detwiler and on the latter date obtained from
him a batch of union designation cards. Watson, however,
did not actually begin to solicit employee signatures to the
cards until June 21, a Wednesday. During the 3-day period
between June 21 and June 23, Watson, acting alone in this
respect, succeeded in obtaining signed designation cards
from 30 of the approximately 45 warehouse employees.
Watson conducted his solicitation activities almost
entirely within the warehouse. Watson testified that he
solicited cards at the warehouse dunng breaktime, or at
lunch, or at times during working hours when he had
nothing to work on. He conducted most of his solicitation
activities in the area of his work table, but in some
instances he also solicited employee signatures in other
areas of the warehouse, not only during his breaktime, but
also when he had occasion in the course of his work to go
to other areas of the plant to get packing boxes, other
materials, or a forklift. Watson testified generally that
when he approached employ -'vs who were busy at the time,
he made it a point not to bother them until they were
finished with what they were doing. But he conceded that
there might have been one or more occasions when he
asked employees while they were working whether they
wanted to sign a union authorization card. There is no
specific evidence in this record to show that Watson, while
engaged in his solicitation efforts during the 3-day period
immediately preceding his discharge, abnormally inter-
fered with other employees' work operations or those of his
own. At the time of the events at issue, the Respondent had
no rule prohibiting union or other solicitations during
worktime. Nor did it have a rule prohibiting employees
from talking to each other while they were working. The
record shows that employees customarily talked to each
other while at work on a great variety of subjects. There is
also evidence indicating that it was not uncommon for
employees to visit with other employees in the warehouse
at times when they had no work to do.
Respondent's counsel in his opening statement candidly
conceded that prior to Watson's discharge the Respon-
dent's management became aware through "rumors" in the
plant that the Union was attempting to organize the
warehouse employees and that Watson was active in that
endeavor. General Manager Branson, while testifying,
made substantially the same concession.8
On June 23, Watson turned over the signed cards he had
obtained to Detwiler, who used them as the showing of
interest to support the Union's representation petition
which he filed the following Monday. That same Monday,
uncontradicted Watson impressed me by his overall testimony and
demeanor as a credible witness
8 According to Branson , however, the rumors of Watson' s activities on
behalf of the Teamsters were not new but had been in circulation for about
a year before Watson's discharge I do not credit Branson's testimony in this
respect I am fully satisfied from other evidence in the record that the
Teamsters did not come into the picture until June.
9 Watson, with the permission of Madison, left the warehouse early on
Friday afternoon to take an injured employee to the hospital After he had
left, Branson sent word to Madison that he wanted to see Watson in his
office. Madison sent a messenger to the hospital to fetch Watson, but the
but apparently before the petition was filed, the Respon-
dent discharged Watson.
3. The discharge on June 26; related events
The decision to discharge Watson was made by Branson.
As appears from Branson's testimony, it was actually made
on Friday, June 3, although it was not effected until the
following Monday.9 Uncontradicted testimony in the
record reflects that Madison, Watson's immediate supervi-
sor and the one presumably most familiar with Watson's
job attitude and performance, was not consulted about the
discharge and learned about it only after it was effected.
The record also shows that Herlock was absent from the
warehouse that day, having been on vacation all that
week.io
On Monday, June 26, Herlock escorted Watson to
Branson's office where Branson and Supervisor Jim Smith
were waiting. Madison was not present. Watson's account
of what was said at the time is as follows: Branson began
the interview by asking Watson what his problem was.
When Watson replied that he had none, Branson asked
what Watson was doing in the bin section the previous
week. Watson said he was looking for boxes he needed for
his packing work. Branson also mentioned that Watson
had been observed a number of times sitting at his table
not looking busy. Watson told Branson that this occurred
only when he had no work to do or when he was waiting
for a forklift to move an order. Along the way , Branson
also expressed his displeasure over Watson's failure to say
"hi" to him when he walked through the warehouse. At the
conclusion of the interview, Branson, declaring that he had
found Watson's attitude not conducive to warehouse
morale, notified Watson that he was being terminated with
2 weeks' severance pay.
Branson's version, though somewhat different as to
details, conforms with Watson's as to the reason given for
Watson's discharge. Branson testified:
I said, "Albie [Watson], I'm probably taking this action
a year or a year and a half too late because, obviously,
the time you have spent here, you have wasted your
time; you've wasted our time. Your, you know, your
lack of hustle, your unresponsiveness to, you know to
the company and management, and you are disrupting
the morale fiber of the warehouse, and for that you are
being dismissed... .
Q. Now, what, if anything was Mr. Watson's
response to you when you said he was being dis-
charged?
A. The same response Albie always gives: "I think
I'm doing my fob . . . I work as hard as anybody else
out there." So then he said, "Well, I'm being fired
messenger did not contact Watson until after 5 p m , the normal quitting
time at the warehouse , and Watson therefore did not return to the
warehouse that day
io Madison was not called by the Respondent as a witness . Although
Herlock testified that before leaving on his vacation he complained to
Herlock about Watson's attitude toward his job, I do not credit his
testimony in that regard. When asked to state specifically why he was
prompted at that particular time to voice that particular complaint, Herlock
became obviously flustered and his response was vague, evasive , and largely
garbled
VOLKSWAGEN SOUTH ATLANTIC 489
because of attitude , right?" I said , "Right," and, "you
knew that was your weakest area a long time ago." And
that was the extent of our conversation.
Branson was asked at that point to define what he had
meant by "attitude," as that was "such a general term." His
response:
Well it's not with me. When you have-and you can
check this out, Judge-we have perhaps the finest
facilities in Volkswagen or any other automotive
company in the entire world . I won't just say in this
country . Completely air-conditioned . You show me
warehouses that are air-conditioned . We did it for
employees and we didn't need a union to put it there I
might add. Completely air-conditioned . Clothing is
given to them free ; ten days ' sick leave ; the highest
wage in automotive warehousing in the Washington
Metropolitan Area . When you have this kind of a, you
know , of a salary plan , you know , and benefits, you
expect people to appreciate it, but when they are
constantly doing things that shows you they don't
appreciate it, it kind of rubs raw and pretty soon ... .
JUDGE LEFF: Well, is that what you mean his
attitude is bad? He didn 't show appreciation for the
good working conditions?
THE WITNESS: He showed no appreciation; he
showed no hustle , okay? Sitting on his desk , which I
have seen ; displaying a lack , you know, displaying to
people around him-see , I can do it , and just let them
fire me.
JUDGE LEFF : Now how was his attitude different in
1972 than it was in 1971.
THE WITNESS : It wasn't, but as I said before, we're in
the people growing business . You check our records.
We don ' t fire many people . We try to train, and we
have . We've reversed personalities and get them to
thinking, thinking along, you know-the personal-a
person can grow and [Watson ] has a talent to grow, but
he just has this hangup. And that is why we didn't
dismiss him back in '71 or '70 even . But that's it; we
don't fire people ; we help to train them . Of course its
very expensive to have turnover , extremely expensive,
and we have an investment in this young man here. It
proved to be a waste but we certainly tried... .
As earlier noted , the Respondent stated on its records, as
the reason for Watson 's discharge: "Attitude disruptive
and not conducive to warehouse morale ." The same reason
was stated by the Respondent in a report filed by it with
the Maryland Employment Security Administration.
Shortly after Watson 's discharge on June 6, Larry Saul, a
packer who had worked next to Watson, asked Supervisor
Madison why Watson had been discharged . As appears
from Saul 's uncontradicted and credited testimony, Madi-
son replied that he did not know anything about Watson's
discharge until after Watson was terminated, but under-
stood that it was because of Watson 's attitude . Saul asked
whether Madison thought Watson's attitude was a bad
one. Madison replied, "No, it wasn 't worse than anybody
else's."
Saul, as further appears from his uncontradicted testimo-
ny, also had occasion to speak to Branson about Watson.
This was about a week after Watson 's discharge, when
Branson stopped by his work table to inquire how he was
getting along, and also asked-whether he had any problems
with his job now that Watson was gone . In the course of
the ensuing conversation , after Saul stated that he now
needed some help, Branson remarked that Watson had
been a very good and fast worker . When Saul asked why,
then , Branson had fired Watson , Branson ignored the
question and walked away.
4. Further consideration of the Respondent's
defense
As earlier stated , the Respondent denies that its decision
to discharge Watson was influenced by his union activities,
and asserts that he was discharged as an undesirable
employee "because of a poor and disruptive job attitude
that was not conducive to employee morale ." According to
the Respondent , its conclusion that Watson should be
terminated for the reason stated was based , not upon any
single occurrence, but upon "the accumulation of conduct"
evidencing a "disruptive job attitude " in which, it says,
Watson engaged over the entire period of his employment.
For the most part , the conduct upon which the
Respondent relies as "evidencing" Watson's asserted
"disruptive attitude" occurred long before his discharge,
and prior to the time he was given his last merit increase
and commended as a "productive worker."
Thus, the Respondent stresses , to begin with , an occasion
shortly after Watson was hired in July 1970, when Watson
absented himself from work without first calling in as he
was required to do under an instruction contained in an
employee's handbook issued to Watson when he was hired.
Watson , when the instruction was called to his attention,
excused his failure to comply with it on the ground that he
had only "glanced through" the handbook and had not
recalled that particular instruction . Though Watson was
thereafter absent on numerous occasions , this was the one
and only time, so far as appears , that he failed to call in as
required . The Respondent in its brief points to this incident
as evidence of Watson's "negative attitude to company
rules." To the contrary , it seems to me, that Watson's
scrupulous adherence to the instruction in question once it
was called to his attention evidences just the opposite. In
any event, I simply cannot believe that this obsolete and
-isolated rule infraction could have played any contributing
part in the Respondent's discharge decision some 2 years
later.
The Respondent also places great emphasis on Watson's
April 1971 reprimand flowing from the fire extinguisher
"horseplay" episode , upon the incident in May or June
1971, when Branson upbraided Watson for his asserted
loafing and lack of cooperation during the moving
operation , and upon Watson's excessive absenteeism in
1971 for which he was placed on probation in November of
that year, all as described above. As earlier noted , however,
the fire extinguisher incident, which occurred more than a
year before Watson 's discharge, was an isolated occurrence
of that kind. Branson 's reprimand of Watson in May or
June 1971 also occurred more than a year before Watson's
discharge . Except for these two stale instances there is no
probative evidence in this record to show that Watson was
ever actually reprimanded for his on -the-job attitude or
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct during his 2-year tenure of employment. These
two incidents are hardly enough to establish a pattern of
conduct. As for Watson's 1971 excessive absenteeism, the
record establishes that his absences were attributable
mainly to injuries and illnesses. How absences for such
reasons can be viewed as revealing a "disruptive" attitude,
let alone one "not conducive to warehouse morale," is
difficult to comprehend. It is clear, in any event, that
whatever problems the Respondent might have had with
Watson because of his 1971 absenteeism were "resolved"
months before Watson was discharged, as the Respondent
itself acknowledged.ii
As pointed out above, Branson, who effected the
discharge, testified that Watson's job attitude was no
different in 1972 than it was in 1971, and that Watson
should have been dismissed for that reason in 1971 or even
in 1970, and would have been but for the Respondent's
reluctance to fire employees whom it might train to "grow"
in their jobs. I find it difficult to believe, however, that in
March 1972, when the Respondent granted Watson his
second merit increase, styling him a "productive employ-
ee," the Respondent could have deemed him an undesira-
ble employee because of his earlier conduct referred to
above.
With respect to the 3-month period of Watson's
employment which followed Watson's March 1972 merit
increase, the Respondent points to only two specific items
of conduct as "evidence" of his alleged disruptive job
attitude. One relates to Watson sitting on his table; the
other to his absences from his station of work.
As to the former, Herlock and Branson testified that on a
number of occasions during the period between March and
June 1972, they had observed Watson sitting on or leaning
against his packing table doing nothing. Watson did not
dispute that he did so on occasions, but he credibly
testified that this occurred only at times when he had
completed his assigned packing work or was waiting for a
forklift and had nothing to do.12 Herlock admitted that
Watson was not the only employee whom he would see
standing about idle at times. If, as may have been the case,
Watson was idle more than others, the record reflects that
this was because he was an exceptionally fast packer who
worked at a much more rapid rate than others. As appears
from Watson's credited testimony, he had been criticized
by his superiors prior to his discharge for not keeping
himself busy only twice, once at the time of the fire
extinguisher episode, and on one other occasion also about
a year before his discharge.
As for Watson's absences from his work station, Branson
testified that during the last week of Watson's employment
he noticed Watson "four or five times ... wandering
through the bins talking to people." According to Branson,
he viewed this not only as an interference with the work of
the warehouse, but as further evidence reflecting adversely
upon Watson's attitude and "lack of hustle." It was, he
said, "the last straw" which, when added to the other
"evidence" related above, made him decide to fire Watson
without further ado.
There was nothing unusual in itself, however, in
Watson's presence in the bin area of the warehouse at the
times Branson says he saw him there. Although Watson's
regular station of work was at his packing table, his work
required him at times to go to other areas of the warehouse,
including the bin area, to look for appropriate packing
boxes or to obtain other supplies that he needed for his
work. Moreover, as found above, the Respondent's
employees were not prohibited from talking with each
other while at work, and commonly did engage in
conversations on a variety of subjects not necessarily
related to their work tasks. Branson's testimony that he
considered Watson's presence in the warehouse and his
talking to people there as an interference with the work of
the warehouse was baldly asserted; he did not support it by
any specific testimony to indicate that conduct of Watson
which he says he observed resulted in any unusual work
interruptions. Branson made no effort prior to the
discharge to question Watson, nor, so far as appears, to
attempt otherwise to determine whether Watson had
reason to be in the bin area at the time, or whether, by
being there, Watson was neglecting other work he should
have been doing at the time. Branson did not assert in his
testimony that when he saw Watson in the bin area he had
reason to believe that Watson was engaging in union
solicitation.
5. Analysis and concluding findings
Of particular pertinence to the issue of whether Watson
was discharged because of his union activities or for the
reason assigned by the Respondent are the facts that
Watson was the union spearhead, that the Respondent
became aware of his union interest and activities, and that
his discharge occurred shortly after his 3-day intensive and
successful efforts to sign up the Respondent's warehouse
employees. These are impressive circumstances pointing to
a causal relationship between Watson's union activities
and his discharge that followed. The factor of timing is, of
course, not in itself conclusive. Where, as here, some other,
and ostensibly lawful, explanation is advanced for a
discharge, that factor diminishes in significance according
to the plausibility of the explanation advanced. But, by the
same token, its significance is enlarged to the extent that
the proffered explanation fails to persuade or is shown to
be contrived.
I' Not discussed herein are certain other items of conduct to which the
Respondent referred at the opening of the hearing but failed to substantiate
by credible evidence and upon which it appears no longer to rely, as they
are not mentioned in its brief Thus, for example, the Respondent declared
in its opening statement that Watson "frequently questioned his work
assignments" and "reluctantly performed some." The only thing offered by
the Respondent on that item was Herlock 's generalized testimony that on "a
number of occasions" though "not as a general routine" Watson had
questioned job tasks assigned to him and had asked why they could not be
performed by someone else Herlock, however, when asked to support his
generalized testimony by specific examples, was able to refer only to the fire
extinguisher episode referred to above , an incident of an entirely different
sort
i2 Watson's testimony to that effect was corroborated by employee
Larry Saul who had worked at the same packing table as Watson and was
still in the Respondent's employ at the time of the hearing. Saul impressed
me by his overall testimony as a forthright witness There is nothing in
Branson's testimony to indicate that Watson had work at hand on the
occasions that he observed Watson sitting on the table Herlock testified
that he questioned Watson about this only twice , and that on one of these
occasions Watson did have work to do To the extent Herlock 's testimony is
in conflict with Watson 's, it is not credited
VOLKSWAGEN SOUTH ATLANTIC 491
The explanation offered here-that Watson's discharge
was wholly unrelated to his union activities and was
bottomed entirely on his manifested attitude ("disruptive"
and "not conducive to employee morale") over the full 2-
year course of his employment-appears, on this record, to
be patently contrived. As shown above, the Respondent, to
support that contention , relies in large part upon obsolete
and previously condoned incidents which date back more
than a year before the discharge, and which were obviously
considered of insufficient contemporary consequence to
bar the wage increase granted Watson and his commenda-
tion as "a productive employee" only 3 months before his
discharge. These stale incidents seem to me to bear all the
earmarks of matter dredged from the bottom of the barrel
in search of a pretext to conceal the actual reason for the
discharge. As such, the Respondent's very reliance on them
only serves to lend support for an inference that the actual
reason must have been an unlawful one. The Respondent's
reliance on Watson's conduct in sitting idle at his table
stands in no better posture, when considered in the light of
the findings relating thereto made above. Watson's
behavior in that respect was nothing new at the time of his
discharge. The Respondent, as the testimony of its own
witnesses shows, was aware of it for a substantial period
before the discharge. Yet, as found above, the Respondent
had at the very least tolerated it, without reprimand or
warning, only to seize upon it as a matter of serious import
after Watson's union activities became known. In short,
rejecting the Respondent's contention to that effect as
implausible, I find that Respondent's decision to discharge
Watson was not substantially motivated by any of his
conduct occurring prior to the time he began his union
solicitation activities, or by Watson's attitude as evidenced
by such conduct.
That brings me, then, to what Branson in his testimony
referred to as "the last straw"-its assertion that Branson
was immediately led to fire Watson at the time he did
because during the last week of Watson's employment he
had on several occasions noticed Watson in the bin area
talking to employees, and had considered such conduct to
be an interference by Watson with warehouse operations.
As to this, I have already found, for reasons spelled out
above, that Branson could not have reasonably concluded,
simply on the basis of what he says he observed, that
Watson was interfering with work operations in any
significant way by his presence in the bin area at the times
Branson sayshe saw him there.
As Branson was then aware (through "rumors," he says)
that Watson was active in union organization, it may be
reasonable to infer, though Branson did not so testify, that
Branson either assumed , or more likely was told by the
sources of the "rumors" he heard, that Watson was
engaging in union solicitation activities in the bin area
during working time, and that he equated this with
interference with warehouse operations. But the fact that
Watson engaged in union solicitation during working
hours is not sufficient, in itself, to deprive him of the
protection of the Act. As the Board in a recent decision
made clear, absent a valid prohibitory rule-the Respon-
dent-had no rule at all-the discharge of an employee for
engaging in solicitation on working time is unlawful,
"unless the employer can establish that the solicitation
interfered with the employee's own work, or that of his
fellow employees , and that this . . . was the reason for the
discharge." See, Daylin, Inc., 198 NLRB No. 40. On the
credited evidence in this record , bearing particularly in
mind the freedom the Respondent normally allowed
employees to talk with each other while at work and other
factual findings made in subsection 2 above, I do not
believe it has been established that Watson in his
solicitation activities interfered in any meaningful way with
his own work, or that of other employees. I am persuaded,
in any event, that work interference, even if found to have
occurred , was not the actual reason for the discharge.
To begin with, that was not the reason given for the
discharge. The only reason stated to Watson was that
Branson did not like his "attitude." And the written reason
placed in Watson 's personnel file and presented to the
State agency also referred only to Watson's asserted
improper "attitude." Branson 's response , quoted at length
above, when asked at the hearing what he had meant by his
reference to Watson 's "attitude," clearly reveals that he
was disturbed mainly by Watson's lack of appreciation for
the good wages and working conditions the Respondent
had established without a union. Watson's initiation of
union organizational efforts was , of course , the most visible
manifestation at that time of his dissatisfaction with
existing conditions and purpose to have them improved. In
these circumstances , Branson's response comes through, it
seems to me, virtually as a concession , albeit an unwitting
one, that he actually had in mind Watson's leading role in
promoting union organization , and that it was this , and his
resentment of it, that largely shaped his determination that
Watson's "attitude" was such as to require his immediate
discharge.
The abrupt manner in which Branson discharged
Watson, without prior warning and without so much as
consulting Watson's immediate supervisor, buttresses my
belief that it was resentment of Watson 's leading union
role, rather than any supposed work interference by him,
that lay at the root of the discharge decision . As Branson's
testimony discloses , Respondent, as a matter of normal
policy, was reluctant to discharge employees in whom it
had an "investment." The record leaves little doubt that
.Watson was a competent and productive employee whom
Branson recognized as such, as is evidenced by Branson's
approval of Watson's March 1972 wage increase and
again, following Watson's discharge, by his comments to
Saul. In these circumstances , I think it most unlikely that
Branson, if he in truth believed that Watson was
interfering with warehouse operations and was motivated
by that consideration to take corrective action, would
under normal circumstances have resorted to the ultimate
measure of discharge , without first cautioning Watson
about his conduct or, at the very least, taking up the matter
with Watson 's immediate supervisor.
Among the totality of circumstances upon which I rely in
drawing an inference of unlawful motivation, two others
may be briefly mentioned : Supervisor Madison's warning
to Watson about 3 months before the discharge that
Watson would risk retaliatory action if he participated in
union organizational activities, and the Respondent's
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disregard for employee statutory rights evidenced by its
independent 8(a)(1) violations to be considered below.
On all the record, I conclude that the Respondent was
motivated to discharge Watson, not for the reasons it
asserts, but because of Watson's leading part in the
Union's organizational efforts. Accordingly, I find that the
Respondent violated Section 8(a)(1) and (3) by its
discharge of Watson on June 26, 1972.
C. The Respondent's Independent Violations of
Section 8(a)(1)
As noted above, the complaint alleges that during the
month following Watson's discharge, while the Union's
representation petition was pending before the Board, the
Respondent engaged in a number of independent 8(a)(1)
violations.
One of them concerns a threat alleged to have been made
by Supervisor Harlan Madison on or about July 11, 1972,
to discharge several employees because of their union
activity. To support that allegation, the General Counsel
relies upon employee Larry Saul's testimony to the
following effect: In the course of a conversation with
Madison some time after Watson was discharged, Saul
asked Madison if the Respondent was going to get rid of
anyone else. Madison replied, "They can't come out and
accuse anyone of being involved in a union . . . they can
only assume that this person or that person is involved .. .
just as they assumed that Albie [Watson] was involved."
Contrary to the position of the General Counsel, I find
Madison's aforesaid statement to be too vague and
equivocal to support the complaint's allegation of an
unlawful threat. Accordingly, I recommend dismissal of
that allegation.13
The remaining independent 8(a)(1) allegations all con-
cern conduct by Warehouse Manager Herlock. As to these
allegations the uncontradicted and credited testimony of
employee Larry Saul shows the following:
(a) On July 13 or 14, 1972, during the course of a
conversation between the two, Herlock asked Saul whether
he had heard that the Union had filed a representation
petition. After Saul said yes, Herlock went on to ask him
how he felt about the Union and whether he had ever
signed a union card. Although Saul favored the Union and
had in fact signed a card, he told Herlock, untruthfully,
that he had a neutral position with regard to the Union and
that he had not signed a card. Saul's testimony reflects that
he was concerned at that time about his own job because
of what had happened to Watson.
(b) About 2 weeks before the election, on a Saturday,
there was a union meeting at Watson's home. Pamphlets
announcing the meeting had been distributed outside the
warehouse at the close of work the preceding day. On the
following Monday, Herlock approached Saul and said, "I
understand they had a meeting on Saturday." Saul
professed to know nothing about the meeting, although he
had in fact attended it. Herlock told Saul, "I've been
talking to a few of the guys and I have a good idea who
was there." He then asked Saul whether Saul had attended
the meeting. Saul became embarrassed because he felt
from what Herlock had just told him that he had been
caught in a lie by his earlier disclaimer of knowledge of the
union meeting. He, nevertheless, stuck to his story and told
Herlock that he had not attended the meeting.
In light of the Respondent's earlier discriminatory
discharge of Watson, I find that Herlock's interrogations of
Saul about how he felt about the Union, about whether he
had ever signed a union card, about whether he knew
about the Union, and about whether he had attended the
union meeting, were coercive and violative of Section
8(a)(1). See, N.L.R.B. v. Chautauqua Hardware Corp., 192
F.2d 492, 494. Additionally, I find coercive and violative of
Section 8(a)(1) Herlock's statement to Saul implying that
he had means of knowing who was engaging in union
activities. Even though that statement did not necessarily
imply surveillance of union activities, it was calculated, I
find, to leave a coercive impression of the same kind.
CONCLUSIONS OF LAW
1. By discharging Louis R. Watson on June 26, 1972,
because of his membership in, support of, and activities on
behalf of the Union, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
2. By its discharge of Watson; by coercively interrogat-
ing employees concerning their membership in, attitude
toward, and activities on behalf of the Union; and by
implying that it had means of identifying employees who
participated in union activities, the Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
The recommended Order will contairt the conventional
provisions in cases involving findings of interference,
restraint, coercion, and unlawful discharge, in violation of
Section 8(a)(1) and (3) of the Act. This will require
Respondent to cease and desist from the unfair labor
practices found, to offer reinstatement with backpay to
Louis R. Watson, and to post a notice to that effect. In
accordance with usual requirements, reinstatement shall be
to Watson's former or substantially equivalent position,
without prejudice to his seniority and other rights or
privileges. Watson shall be made whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him by payment to him a sum of money equal
to that which he normally would have earned from the date
of the initial discrimination against him (June 26, 1972), to
the date of the offer of reinstatement, less net earnings, if
any, during such period, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended, in view of the nature of the
13 1 make no unfair labor practice finding based on Madison 's warning the complaint as an unfair labor practice and there is insufficient basis for
to Watson in March 1972 that he would risk discharge if he engaged in concluding that the Respondent nevertheless understood it to be present in
unfair labor practices, but only because this was not specifically alleged in the case as a separate unfair labor practice issue
VOLKSWAGEN SOUTH ATLANTIC 493
unfair labor practices in which the Respondent has
engaged (see N. L.R.B. v . Entwistle Mfg. Co., 120 F.2d 532,
536), that the Respondent be ordered to cease and desist
from infringing in any manner upon the rights guaranteed
employees by Section 7 of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 14
ORDER
The Respondent, Volkswagen South Atlantic Distribu-
tor, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activities in Drivers,
Chauffeurs and Helpers Local No. 639, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other
labor organization, by discriminating in regard to the hire
and tenure of employment, or in any other manner in
regard to any term or condition of employment, of any of
the Respondent's employees, in order to discourage union
membership or activities.
(b) Coercively interrogating employees concerning their
union membership, activities, or sympathies; creating the
impression among employees that it had ways or means of
identifying employees who participate in union activities;
or in any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
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.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Louis R. Watson immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay he may
have suffered as a result of his discriminatory discharge, in
the manner set forth in the section herein entitled "The
Remedy."
(b) 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 under the
terms of this recommended Order.
(c) Post at its warehouse in Lanham, Maryland, copies of
the attached notice marked "Appendix." 15 Copies of the
notice , on forms provided by the Regional Director for
Region 5, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.
is 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."