Volkswagen South Atlantic Distributor, Inc.

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."