Volkswagen of America, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1982

261 N.L.R.B. 248 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Volkswagen of America, Inc. and Dennis M. Hussar.
Case 6-CA-12845
March 21, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 17, 1980, Administrative Law
Judge Sidney J. Barban issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, the General
Counsel filed cross-exceptions and briefs in support
thereof and in answer to Respondent's exceptions,
and Respondent filed an answering brief to the
General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
!.', 9' NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I The Administrative Law Judge found that District Committeeman
Hussar did not instigate or condone the strike in violation of the contrac-
tual no-strike clause which occurred on June 12, 1979, but rather en-
gaged in consistent efforts to persuade employees not to walk out, by
telling employees the strike was illegal and they would be subject to dis-
charge. However, the Administrative Law Judge also found that the nec-
essary and foreseeable consequence of Hussar's actions in the Interior
Repair section of the plant, i.e., informing the isolated group of employ-
ees there that a walkout had occurred and that the people on the picket
line were threatening employees remaining in the plant with bodily harm
and damage to cars, would be to cause those employees to join the strike.
Despite his further findings that Hussar did not tell any of the employees
in the Interior Repair section to leave and that none of these employees
did in fact walk out, the Administrative Law Judge concluded that
Hussar must be held responsible for the necessary and foreseeable conse-
quences of his actions in the Interior Repair section and that therefore
Respondent was justified in discharging Hussar for encouraging these em-
ployees to strike. The Administrative Law Judge further found, however,
that Respondent's later refusal to reinstate Hussar violated Sec. 8(a)(l)
and (3) of the Act.
The General Counsel has excepted to the Administrative Law Judge's
conclusion that Respondent was justified in discharging Hussar, and we
find merit in the General Counsel's exceptions. Contrary to the Adminis-
trative Law Judge, we find that Hussar's conduct in the Interior Repair
section did not necessarily and foreseeably induce or encourage the em-
ployees to join the strike. We see nothing in Hussar's actions which ne-
cessitates the conclusion that these employees could have had only one
reasonable response; i.e., participating in the walkout. To the contrary,
other reasonable responses were equally plausible. Hussar merely ap-
prised the employees of the dangerous situation which was developing
outside the plant. He did not urge the employees to leave or even advise
them that the Union authorized the walkout. While his remarks could be
construed as giving the employees the option of joining the walkout, his
remarks could just as reasonably be construed as enabling the employees
who remained at work to assess the situation that would face them at the
end of the workday and thus possibly enabling them to avoid conflict
261 NLRB No. 36
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Volkswagen of America, Inc., New Stanton, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) Discharging employees because of their
status as officials of the Union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
with the strikers when they left the plant. Indeed, Hussar's own conduct
in staying on the job favors the latter construction, and it would appear
that the employees so construed his remarks, for they did not leave their
jobs. In these circumstances, we find that Respondent was not justified in
discharging Hussar, since he did not encourage employees to walk out or
otherwise condone the strike. Rather, we conclude that Respondent dis-
charged Hussar solely because of his status as a union committeeman, in
violation of Sec. 8(a)(1) and (3) of the Act. Respondent's mistaken belief
that Hussar had actively encouraged employees to participate in the il-
legal walkout did not justify the discharge, where Hussar had not actual-
ly engaged in any misconduct. General Motors Corporation, 218 NLRB
472, 477 (1975), enfd. 535 F.2d 1246 (3d Cir. 1976). See also Armour-Dial,
Inc., 245 NLRB 959 (1979), enforcement denied 638 F.2d 51 (8th Cir.
1981).
Inasmuch as we have concluded that Respondent violated Sec. 8(aXI)
and (3) of the Act by discharging Hussar, we find it unnecessary to rely
on the Administrative Law Judge's conclusions regarding Respondent's
refusal to reinstate Hussar.
' The Administrative Law Judge ordered Respondent to pay Hussar
backpay from October 8, 1979, the date on which Respondent refused to
reinstate him; however, in light of our conclusions above, we hereby
modify the remedy section of the Administrative Law Judge's Decision
to provide that Respondent shall pay Hussar backpay from the date of
his illegal discharge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to permit employees
subject to discipline to have private consulta-
tions with a representative of International
Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
or its Local No. 2055, immediately prior to
conducting a disciplinary interview involving
such employees, in accordance with past prac-
tice.
WE WILL NOT discharge employees because
of their status as officials of the Union.
248
VOLKSWAGEN OF AMERICA, INC.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed by Section 7
of the Act.
WE WILL offer Dennis M. Hussar immediate
and full reinstatement to his former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or any other rights or
privileges previously enjoyed, and WE WILL
make him whole for any loss of earnings or
benefits he may have suffered by reason of his
discharge, plus interest.
VOLKSWAGEN OF AMERICA, INC.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard in Pittsburgh, Pennsylvania, on May 1,
2, 8, and 9, 1980, upon a complaint issued on December
28, 1979, as amended at the hearing, based on a charge
filed by Dennis M. Hussar (herein called Hussar) on Oc-
tober 22, 1979 (all dates herein are in 1979, unless other-
wise noted). The complaint alleges that Volkswagen of
America, Inc. (herein called Respondent), violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
as amended (herein called the Act), by discharging
Hussar, and violated Section 8(a)(l) of the Act by refus-
ing the request of the Union, representing the appropri-
ate unit in which Hussar was employed, for prior consul-
tation with Hussar and conducting a disciplinary inter-
view with Hussar, in such circumstances, as a result of
which Hussar was disciplined.
The answer to the complaint denies the commission of
any of the unfair labor practices alleged, but admits alle-
gations of the complaint sufficient to justify the assertion
of jurisdiction under the Board's present standards (Re-
spondent, engaged in Westmoreland County, Pennsylva-
nia, in the manufacture and nonretail sale of automobiles,
during a recent annual period, received directly from
outside the Commonwealth of Pennsylvania, at that fa-
cility, goods and materials valued in excess of $50,000),
and to support a finding that International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, and its Local Union No. 2055
(herein jointly called the Union) are labor organizations
within the meaning of the Act.
Upon the entire record in this case, from my observa-
tion of the witnesses and their demeanor, and after due
consideration of the briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. SUMMARY OF FACTS AND ISSUES
Respondent and the Union are parties to a collective-
bargaining agreement effective from October 23, 1978,
through November 2, 1981, covering an appropriate unit
of "all production and maintenance employees of Re-
spondent at its plant located in Westmoreland County,
Pennsylvania, but excluding all office clerical employees,
technical employees, professional employees, guards and
supervisors as defined in the National Labor Relations
Act, as amended."
On June 12, employees in the appropriate unit engaged
in a wildcat strike, in which all parties agree was in vio-
lation of the bargaining agreement. This strike was asser-
tedly in protest of implementation by Respondent of a
new method of granting relief periods to the employees,
called "tag relief," notwithstanding that the bargaining
agreement provided that Respondent might utilize that
type of relief. In particular, the evidence indicates that
the walkout was sparked by the fact that after instituting
tag relief on June 11 and 12, notwithstanding employee
opposition on June 11, management also, on June 12, set
up another change in the employees' relief periods occa-
sioned by scheduled overtime (all apparently within Re-
spondent's rights under the agreement). The walkout
started, about noon, in the paint department. It later
spread to the whole plant under circumstances consid-
ered hereinafter.
The strike continued through Friday, June 15. On the
latter date some employees crossed the picket line and
went into the plant. Most seem to have left however,
after about an hour, after they received their pay. Some
apparently did remain in the plant and performed work
that day. The plant resumed full operation on June 18,
when it seems the picket line was removed, as the result
of a court injunction.
Respondent has a practice, when it is considering dis-
ciplining an employee, of putting the employee "on
notice." In the one instance in the record described in
detail, that involving Hussar on June 12, this consisted in
a member of Respondent's industrial relations department
merely telling Hussar that he was "on notice."' Other
employees who Respondent believed had been involved
in the walkout were put on notice on June 18 and 19,
and disciplinary interviews were conducted with these
employees on June 19. Although it had been Respond-
ent's past practice to provide an opportunity and facili-
ties for consultation between the employee and his unit
representative immediately before the disciplinary inter-
view, on this occasion Respondent refused a request
from the Union for such a consultation before Hussar's
interview, and apparently also refused such preliminary
consultations in the case of other employees interviewed
that day. At the hearing Respondent seemed to be de-
fending on the ground that Hussar, and possibly others,
had sufficient opportunity to consult with the Union
after being put on notice, but in its brief argues only that
management had decided to discharge Hussar before the
interview, and thus there was no need for consultation
(and, perhaps, not even for union representation at the
interview). This issue will, of course, be considered more
closely hereinafter.
' The parties litigated at some length whether on this occasion the
management representative made physical contact with Hussar. There is
no need, in this case, to resolve that conflict. I also find it unnecessary to
determine whether certain vulgarity was used during this incident.
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 19, Respondent discharged 14 employees, in-
cluding 4 union representatives (Zone Committeeman
Dennis Murphy and District Committeemen Hussar,
Richard Ferchak, and Samuel Rossi). According to the
testimony of George Knapp, who is general administra-
tor of industrial relations for Respondent, management
discharged the union representatives, among them
Hussar, who was district committeeman representing the
paint department where the walkout began, for their
"participation and leadership in the walkout." The Gen-
eral Counsel disputes Respondent's contention that
Hussar participated in or exercised any leadership role in
the walkout on June 12.2 This was the major issue heard
in this matter, and will be considered in detail below.
In addition to the four union representatives noted
above, Respondent discharged two rank-and-file employ-
ees for "participation and leadership in the walkout."
Other rank-and-file employees were discharged for mis-
conduct on the picket line, or received lesser discipline.
Grievances filed by the Union on behalf of the 14 em-
ployees who were discharged were resolved on October
8 by the reinstatement of all the discharged employees,
except Hussar, without backpay and with reduced disci-
pline. No one testified as to Respondent's reasons for this
action.
II. THE COURSE OF THE WALKOUT; HUSSAR'S
ACTIVITIES ON JUNE II AND 123
June 11
On June 11, Respondent began to institute "tag relief"
in the paint department. During the course of the morn-
ing, employee Timothy M. Burkhart sent for Hussar, the
union committeeman representing that department, and
told him that the employees in the department were dis-
satisfied with tag relief, and that there would be a wal-
kout over it. Hussar told Burkhart that this was not pos-
sible, that the contract provided that management could
institute tag relief, and that "there could not be a walk-
out over that situation."' Burkhart asked to talk to some-
one higher in authority in the Union, and Hussar turned
him over to Dennis Murphy, union zone committeeman.
Burkhart told Murphy of the problem and said he was
not satisfied with Hussar's answer. However, Murphy
gave him substantially the same instructions as he had re-
ceived from Hussar. There was no walkout that day,
I1 have noted Respondent's argument in its brief that, standing alone,
"Hussar's failure to report for work on June 13, 14 and 15 justifies Mr.
Hussar's discharge." (Resp. br., p. 30.) However, Knapp's testimony is
that the "accurate" reasons for Hussar's discharge are the following:
"(He] actively participated and directed other employees to participate in
an unauthorized walkout on 6/12/79." Thus, whether or not Respondent
could have discharged Hussar for his absences on June 13, 14, and 15, it
is clear that Respondent did not do so.
I At least 25 witnesses testified to what Hussar is alleged to have done
and said on June II and 12. There are variances, inconsistencies, and con-
flict in the evidence. I shall not attempt to justify all of the differences.
The following findings are based on my evaluation of all the evidence,
including the witnesses' demeanor. Any evidence inconsistent with the
findings made is not credited.
4 Burkhart testified that Hussar said that a walkout would be "against
the contract, it's illegal to walk out," that tag relief was in the contract
and had to be enforced. I do not credit the testimony of Supervisor Paul
Slater that, as a result of this, Hussar told him that Hussar intended to
lead a walkout over the issue.
though the incident seems to have generated a rumor of
a walkout in the department.
June 12
On June 12, management told employees in the paint
department that because of scheduled overtime that day
there would be a further adjustment in their break peri-
ods. This upset the employees, and shortly before noon,
after the lunch break, they began to leave their jobs and
proceeded to the locker room to change out of their
work clothes prior to exiting the plant.
The paint department, for the most part, is located on
the second floor of the plant. The locker room is elevat-
ed above the second floor, reached by a flight of stairs.
The cafeteria is adjacent to the locker room.
A. Locker Room Incidents
Hussar was in the cafeteria when the walkout began.
He heard the commotion outside, in particular the noise
of the locker doors banging. In the confusion, he heard
someone call out that there was a walkout and he went
into the locker room. There he told various groups of
employees that they should go back to work, that the
Union was working on their problem, that a walkout was
illegal, and that they might well suffer for their action.
The employees paid little or no attention, and some told
Hussar that there was nothing he could do about it.
Supervisor Slater, who was accompanied by Paint De-
partment Superintendent George Nancarrow, testified
that he encountered Hussar in the locker room about this
time and that the following conversation occurred:
I asked Dennis, I said, "Is the union authorizing
this?" and Dennis said, "I can't answer that now." I
asked Dennis again, I said, "What is your position
in this matter?" and he said, "You know our posi-
tion in this matter." And I asked Dennis again, I
said, "What is your position in this matter?" and he
said, "You don't expect me to say anything now."5
Hussar testified merely that Nancarrow asked if the em-
ployees were aware of the Union's position in the matter,
to which he replied in the affirmative. Employee William
Elk recalled that Hussar told Nancarrow that there was
nothing he could do about the walkout. (Hussar had pre-
viously told Elk the work stoppage was illegal.)
For the purpose of this Decision, I assume that the
conversation was approximately as recalled by Slater.
While Hussar might have been better advised not to be
so cautious in taking a position with management binding
the Union, I do not consider that these statements are in-
consistent with Hussar's repeated statements to the em-
ployees that the walkout was illegal, in violation of the
contract, and would subject them to discipline, as a large
number of employees testified.
There is a platform, or landing, at the top of the stairs
leading to the locker room. About the time of the events
described above, Supervisor Louis Gephart stated that
5 Oddly, Nancarrow testified that it was he who at that time asked
almost exactly these same questions and received approximately these
same responses from Hussar.
250
VOLKSWAGEN OF AMERICA, INC.
he saw several employees, including Burkhart and
Hussar, on the landing "hollering and waving" to other
employees. Burkhart admits that he stood on the landing
and waved to a friend to leave work. Hussar denies
being with Burkhart on this occasion, or standing on the
platform waving at employees. Burkhart stated that he
did not see Hussar on the platform during this event. Ge-
phart, in effect, recanted his testimony on cross-examina-
tion, asserting that he could not say that he did see
Hussar waving. I credit Hussar. 6
B. Incidents on the Paint Shop Floor
After the events in the locker room, Hussar went
down onto the paint department floor, where he ap-
proached groups of enployees, telling them that they
should stay in the plant, that the work stoppage was il-
legal, and that it could cost them their jobs. Hussar un-
successfully called to get Committeeman Murphy to
come and help him. While there, he was approached by
George Chatlos, an industrial relations representative. In
answer to a question by Chatlos, Hussar told him that
there was a problem with tag relief. Chatlos told Hussar
that it was his responsibility to see that the employees
did not leave the plant and that he would be held "di-
rectly responsible for the situation." Chatlos testified, ba-
sically, that Hussar, after saying that there was nothing
he could do, ignored Chatlos, and went on his way to
other groups of employees.
About this time, Richard Trio, an administrator of in-
dustrial relations, came on the paint shop floor. He as-
serts that, after Hussar told him that Hussar was doing
nothing about the work stoppage, he told Hussar that he
had a responsibility under the contract to get the em-
ployees back on the job,7 and was subjecting himself and
the employees to discipline. He stated that Hussar there-
upon told groups of employees that they were subjecting
themselves to discipline if they engaged in the work
stoppage, but that Hussar did so in a "laughing and
joking" manner. When asked to be more explicit about
this characterization, Trio explained that he meant that
Hussar had a smile on his face. Hussar denied that, in in-
structing employees that they would be disciplined if
they left the plant, he was laughing and joking. Two em-
ployees, who were asked about this on rebuttal, stated
that Hussar was serious, not joking, when they heard
him tell employees to stay in the plant, that a walkout
was a violation of the contract and illegal.
The preponderance of the evidence shows that Hussar
had been seriously and diligently attempting to get the
employees not to breach the contract, and to remain at
work. The evidence further shows that the employees
for the most part rebuffed him in his efforts to keep them
at work, as they also rebuffed management's efforts to
keep them at work. To the extent that the testimony of
I Gephart further testified that when this group broke up, Hussar
walked down the stairs, followed by four or five employees. Gephart
stated that he did not know where they went. Hussar did not leave the
plant. Respondent argues that Hussar was "leading" the employees. The
evidence does not support such a finding.
I So far as I have been able to ascertain, no such specific commitment
appears in the contract.
Chatlos and Trio indicates the contrary, I do not credit
it.
C. Activities at the East Gate
As has been noted, the walkout began in the paint de-
partment shortly before noon. Within a half hour, at least
60 employees from that department had left, and for the
most part had gathered at the east gate entrance to the
plant. Union Zone Committeeman Murphy went out to
the east gate on three separate occasions attempting to
persuade the employees to cease the work stoppage and
go back to work. He was unsuccessful (as were manage-
ment officials who also tried to get the employees to
desist their stoppage of work). In the course of these
contacts with the employees at the gate, Murphy was the
subject of some verbal attacks and became aware that
the striking employees were threatening to throw rocks
through the windows of cars of employees who had not
come out on strike (the strikers intended to identify these
cars by having the strikers remove their own cars from
the parking lot), and to physically assault those who re-
mained in the plant.8
There is ample evidence that as time went by the em-
ployees at the gate became louder and more menacing,
though Respondent's witnesses tend to put this develop-
ment somewhat later in the day than indicated by the
General Counsel's witnesses. By the time of Murphy's
third visit to the east gate, it is clear that Murphy, and
other union officials with him (not including Hussar),
had become concerned. Murphy suggested to the strikers
that they should go home. As these union officials left
the gate to go back into the plant, General Industrial Re-
lations Administrator Knapp, who was nearby, became
convinced that they were going into the plant to "pull"
the rest of the employees out. (How Knapp came to this
conclusion is not shown. I am led to believe that he was
aware of the things that the strikers were telling
Murphy.) Knapp called Industrial Relations Administra-
tor Trio and informed him of Knapp's suspicions.
D. The Walkout on the Main Floor
The union officials came inside the plant about 1 p.m.,
or shortly thereafter, and proceeded to discuss the situa-
tion, and decided that, for the safety of the rest of the
plant employees, those employees should be told to
leave. Hussar was not present in the group that came to
this decision. Immediately thereafter, Murphy and Union
Committeemen Richard Ferchak and Samuel Rossi went
through the various sections of the plant telling the em-
ployees to leave. This was observed by Trio. About this
time, Murphy also told some firstline supervisors that
they should let their people go for the employees' safety,
with which suggestion the supervisors agreed. By 1:30
p.m., the employees began to stream out of the plant.
I There was considerable litigation as to whether the pickets had stones
or sticks in their hands. I am not aware of any direct, firsthand evidence
that the pickets held sticks in their hands. There was, however, an ample
supply of rocks in the area. Murphy recalled that some pickets held
rocks.
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About this time, or a little before, the departure of the
employees caused the production lines to close down.9
· Sometime after these events, after 2 p.m., Hussar met
Murphy on the main floor of the plant, for the first time
that day. At that time, according to Murphy, there were
less than 50 employees left on the floor. Murphy told
Hussar that a picket line was forming at the east gate,
and that the pickets were threatening personal attacks,
and abuse of their property, against the employees who
had remained in the plant. ' 0 Murphy said that it was so
close to end of the shift, there was nothing Hussar could
do about the situation, but that he should advise the em-
ployees about what was going on."
E. Hussar's Later Activity
After leaving Murphy, Hussar went to the interior
repair section of the paint shop. This was an area isolated
from the rest of the shop. There the employees asked
him what was going on. Hussar told them that the em-
ployees downstairs had walked out, and,
I said that there was a dangerous situation outside
and I couldn't give anybody an exact rundown, be-
cause . . . it was a hearsay situation from Murphy,
and I could only tell the people that the people out-
side have a picket line, they're threatening the
people in the plant remaining. There's going to be
bodily harm, cars damaged. This was the way it
was told to me and I relayed the message to these
people.
I credit Hussar that he did not tell any employee in that
section to walk out or leave the plant. Those employees
in the section that day who testified agreed that they did
not hear Hussar tell any employee to leave. One of these
employees, who specifically asked Hussar whether he
should leave, stated that Hussar told him that he
(Hussar) could not tell the employee to leave.
9 Before Murphy, Ferchak, and Rossi had gone through the plant tell-
ing the employees to leave, Trio had specifically asked Murphy to help
keep the employees in the plant because Trio believed that the plant
could run effectively if the walkout were confined to the 60 employees
then on the picket line.
"o Murphy testified that he told Hussar "that it was getting to be a
mean situation out at the gate and that employees had threatened to beat
the crap out of the employees [who remained in the plant]," and he felt
that there was a danger to the employees remaining in the plant. Hussar
asserted that Murphy told him that the pickets had rocks and clubs.
Murphy could not recall telling him that, but stated that the pickets had
rocks. Respondent's witnesses say they saw neither sticks nor rocks in the
pickets' hands. However, notwithstanding the testimony of one Respond-
ent witness that there were no rocks in the area, the evidence is that such
rocks were immediately available. I find that pickets were holding rocks.
It is unnecessary to determine whether they also had sticks or clubs.
" In making this finding I have fully considered Respondent's argu-
ment that this testimony-that Murphy said it was then close to quitting
time-should not be credited because Nancarrow testified that quitting
time that day for the majority of the employees would be 3:30 p.m., due
to scheduled overtime. However, Hussar testified that quitting time on
June 12 was 2:30 p.m. It is apparent that different sections of the shop
had different shift end times that day. For example, Angel Brown, super-
visor of the interior repair section, testified that none of her employees
left before given permission to go. Reference to the time records includ-
ing her section (code 3080, G.C. Exh. 8B) shows that no employee
punched out after 3 p.m.
Supervisor Brown's testimony is essentially similar to
the above, except, she stated that, after telling the em-
ployees that the workers on the main floor had walked
out, Hussar asked "why they were still there." Hussar
denied this and I credit him. Supervisors Slater and
Denn and Superintendent Nancarrow thereafter came to
the interior repair section, and each stated that he asked
Hussar essentially the same question, and, according to
Denn and Slater, got different answers. Slater asked if
Hussar or the Union was authorizing the employees to
leave, to which Hussar replied that the Union was
authorizing the employees to go home. But Denn said
that, when he asked a similar question, all Hussar would
say was that Denn knew "his position on that." Nancar-
row stated that he asked Hussar why he was asking the
employees to leave, but did not remember the answer.
He stated that it is possible that Hussar said that Nancar-
row had his information wrong. On the basis of this
record, I believe that it is probable that, at that time,
Hussar's response to such a query would have been as
Slater reported it. I do not find, on this record, that
Hussar told the employees in interior repair that the
Union was authorizing them to walk out. i2 In fact, as has
been noted, the employees in interior repair did not walk
out but remained until dismissed.
Hussar, likewise, did not leave the plant until the end
of his scheduled shift.
During the afternoon, apparently after Hussar had
spoken with Murphy, as previously noted, Supervisor
Mavrikas (now coordinator for the paint department) tes-
tified that he and Supervisor George McMunn overheard
a conversation between Hussar and employee Robert
Adamson in the cafeteria. 1 After looking at a memoran-
dum made by McMunn and himself on June 12 to re-
fresh his recollection, Mavrikas gave several slightly
varying accounts of what he asserts Hussar said to
Adamson on this occasion. The final version given on
direct examination was that Hussar "said the downstairs
is already walked out and if you want to walk out . . .
you might as well walk out also," to which Adamson re-
plied that he would stay and finish out his shift. On
cross-examination, Mavrikas recalled that Hussar told
Adamson, "if you want to stay you can, if you want to
go, you can," and that he could not tell Adamson "what
to do," that Hussar was just telling him "what was going
on." McMunn recalled only that Hussar said that the
"downstairs had walked out," which he testified Mavri-
kas disputed, that Adamson said he would work his 8
hours out, and that Hussar said "go ahead and stay
then."
n' No one testified that these exchanges between Hussar, Denn, Slater,
and Nancarrow were overheard by employees. One employee stated that
there was an argument between Hussar and Nancarrow, without stating
what he may have heard.
iS At one point, Mavrikas said that Hussar was "telling it to a group of
people," at another, he testified that "there was [sic] no other employees
present in that immediate vicinity at the time." McMunn thereafter testi-
fied that "there were more [employees] there [at the same table with
Adamson], but to be honest, I couldn't say who they were, because I
don't know." I find that the conversation involved only Hussar and
Adamson, and that there were no other employees around.
252
VOLKSWAGEN OF AMERICA, INC.
Both Adamson and Hussar testified specifically that
Hussar did not tell Adamson to leave the plant on this
occasion. Adamson testified that the conversation was as
follows:
I asked him what the situation was at that time, he
told me that there was a walkout; he advised me to
stay in the plant, that I would be paid for the eight
hours if I stayed. If I left, I would be subject to dis-
cipline [to which Adamson testified he responded],
F- you, I'm going to stay and get my eight hours.
When asked why he used this vulgarity to Hussar on this
occasion, Adamson replied that "it was just a matter of
speech at the time." The record shows that this particu-
lar vulgarity is part of the common speech in the plant.
Respondent argues that Adamson would not have used
this vulgar expression, "if Mr. Hussar was not actively
encouraging him to join the walkout." (Resp. br., p. 25.)
However, upon consideration of all the evidence, and
my evaluation of these particular witnesses, I credit the
testimony of Adamson set forth above.
1Il. THE DISCIPLINARY INTERVIEWS; REFUSAL TO
PERMIT PREINTERVIEW CONSULTATIONS
A. Hussar
Respondent had a prior established practice of permit-
ting a union representative an opportunity, upon request,
to have a private consultation with the employee in-
volved, in a room provided by Respondent, immediately
before Respondent held a disciplinary interview with
that employee. On June 19, when disciplinary interviews
were held with employees accused of involvement in the
illegal walkout, Respondent consistently refused union
requests for preinterview consultations with employees
subject to discipline, including Hussar. Respondent as-
serted to the Union that it was not required to provide
such an opportunity."4 At the hearing, and in its brief,
Respondent seems to rely only on arguments that it was
not necessary for these employees, particularly Hussar,
to have preinterview consultations because the employ-
ees subject to discipline assertedly had plenty of opportu-
nity to talk to union representatives after they had been
put on notice,' 5 and because Respondent assertedly had
determined in advance to discharge Hussar, and presum-
ably the others, there was no legal obligation to permit
these employees to have union representation at their dis-
ciplinary interviews, much less to grant union-employee
preinterview consultations. (Respondent does not refer to
secs. 49 and 50 of the contract noted above.)
" It has been noted, however, that under the heading "Disciplinary
Layoffs and Discharges," sec. 49 of the bargaining contract provides for
union representation at disciplinary interviews, and sec. 50 provides for
private consultation between the employee and the Union "in a suitable
office designated by the company, or other location by mutual agree-
ment." While this section is not as clear as it might be as to when this
consultation is to take place, it is clear that the parties had interpreted
this to mean immediately before the disciplinary interview, when such
consultation would make the most sense.
's It is noted, however, that not all employees put on notice are neces-
sarily disciplined, and, as brought out in the testimony, employees put on
notice are not necessarily informed at that time of the reason for that
action.
This latter contention-that the disciplinary interviews
were mere formalities, with no purpose but to advise the
employees that they were discharged and to give them a
disciplinary action form explaining the reason for the dis-
charge-will be examined here. The testimony given
concerned only the circumstances of Hussar's interview.
The two management people who conducted Hussar's
interview, Chatlos and Nancarrow, testified that they
had been instructed in advance that Hussar was to be
discharged. However, the record as a whole leads me to
the conclusion that this interview had a somewhat broad-
er purpose, and was intended to obtain the employee's
version of the charges against him before the decision to
discharge him became final. Thus, it is clear that the dis-
ciplinary action slip was not prepared prior to Hussar's
interview, and that Hussar and Union Representative
Murphy were requested to state their side of the case,
and did so. " While Nancarrow testified "to the best of
my recollection," that Hussar was discharged at the be-
ginning of the interview, Chatlos testified that it was
after Murphy's argument that Hussar should not be disci-
plined, "[A]t that time the [disciplinary action] slip was
handed out, and that, in essence was the session." Mur-
phy's testimony, which is credited, is that such slips were
usually handed out at the end of disciplinary interviews.
Finally, confirming my conclusion that Hussar's inter-
view, and that of the others, was for a broader purpose
than merely holding a meeting to advise the employees
of their discipline is Chatlos' admission in a memoran-
dum given the Union at step one in the grievance proce-
dure, that Chatlos informed Hussar and Murphy at the
outset of Hussar's interview that "this was a formal disci-
plinary interview for the purpose of District Committee-
man Hussar to concede or defend his actions during the
unauthorized work stoppage .... "(Resp. Exh. 6.) (Em-
phasis supplied.)
B. The Other Employees
Hussar represented about 13 employees in disciplinary
interviews on June 19, prior to his own interview. Chat-
los and Nancarrow state that, in three or four of these
interviews, Hussar defended employees on the ground
that he had directed them to leave the plant on June 12
for their own health and safety. Chatlos named three
such employees, while Nancarrow recalled only two of
these. (Respondent concedes that nothing that Hussar
may have said in these interviews affected the decision
to discharge him.) Respondent called one of these em-
ployees, Darwin Kalp, as a witness, presumably in sup-
port of the contention that Hussar had engaged in such
conduct. Kalp, however, testified, and I credit that he
did not see Hussar on June 12, but was directed by his
supervisor to leave, and later at the east gate, with other
employees, was told by four union representatives (not
including Hussar) to go home for their own health and
safety.
16 Chatlos' contention that Murphy stated, during this discussion, that
Hussar should not be disciplined because he had "done this" for the
health and safety of the employees, will be considered in connection with
discussion of the other employees' interviews.
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kalp also testified, under questioning by Respondent,
that after leaving his disciplinary interview, he berated
his supervisor loudly and in strong terms for directing
him to leave and causing his discharge. Respondent then
called Supervisor Edward Odorisio to contradict Kalp.
Odorisio stated that, though he was in another room, he
heard Kalp, on this occasion, berating Hussar loudly and
in the same strong terms for telling him to leave the
plant and causing his discharge. On consideration of all
the circumstances, and my evaluation of the witnesses, I
credit Kalp. "7
Chatlos also acknowledged that his recollection that
Hussar had said he directed Kalp to leave for his health
and safety was inconsistent with the fact that Kalp had
asserted that he had been directed to leave by this super-
visor and had talked to no one else. Chatlos stated that
Respondent, in the circumstances, decided that Hussar
had told Kalp to leave, but not for his health and safety.
Hussar stated that in these interviews he did not say
that he had directed employees to leave the plant on
June 12 for their health and safety. I credit Hussar.
IV. ANALYSIS AND CONCLUSIONS
A. The Discharge of Hussar
Dennis Hussar, union committeeman for the paint de-
partment, and three other union representatives as well
as 10 other employees were discharged on June 19, based
on information Respondent obtained concerning their in-
volvement with the walkout of Respondent's employees,
on June 12, which began in the paint department, in vio-
lation of the current collective-bargaining agreement. In
particular, Respondent advised Hussar and the Union
that Hussar was discharged because he "actively partici-
pated and directed other employees to participate in an
unauthorized walkout on 6-12-70." Respondent argues
that six of those terminated (including Hussar) "were dis-
charged because of their active encouragement of others
to participate in the strike" (Resp. br., p. 37) and that all
were treated consistently. 1" The difficulty with this argu-
ment, however, lies in the fact that even if we were to
assume that Hussar was improperly involved in the strike
on June 12, Respondent thereafter, on October 8, in set-
tlement of the union grievances, reinstated all of the dis-
charged employees, except Hussar, without backpay and
with reduced discipline. But the record in this case
shows that Hussar's conduct was, at most, no different
from that engaged in by other union representatives who
were reinstated, and on this record appears much less se-
rious than the conduct for which the others were disci-
plined.
It has been found that Hussar did not instigate or ap-
prove of the walkout from its inception. He engaged in
consistent efforts to persuade the employees not to walk
out, advising them that a walkout would be illegal and in
i" In any event, Odorisio's testimony, which was objected to as hear-
say, was not received for the truth of the contents of the statement alleg-
edly overheard.
1" These and many other employees of Respondent stayed out of work
on June 13, 14, and 15. There is no evidence that Respondent discharged
any employee for this. Cf. Resp. Exh. 6, which General Administrator
Knapp says contains the "basic facts" on which the decision to discharge
Hussar was made.
violation of the contract, that the employees were sub-
jecting themselves to discharge or other discipline, and
that the Union was seeking to adjust their grievances. It
has been found that prior to the main plant walking out
Hussar did not actively encourage employees to leave on
June 12. 19 Nor did Hussar leave the plant until the end of
his work shift.
Sometime after 1 p.m., on June 12, a group of union
representatives (not including Hussar) who believed that
the strikers were likely to injure the employees who con-
tinued to work after the strike began, or damage their
property, decided that the remaining employees should
be instructed to leave. Zone Committeeman Dennis
Murphy (superior in rank to Hussar) and District Com-
mitteemen Richard Ferchak and Samuel Rossi began
going through the main floor of the plant carrying out
this decision. At this point most of the plant employees
began to leave.
The significance of this action can be judged by the
fact that Industrial Relations Administrator Trio testified
that, at this point, he had stressed with Murphy the need
to keep the rest of the plant from walking out, since the
plant could continue to run effectively without those
who had already walked out. This request was obviously
rejected by Murphy and the others. Yet Murphy, Fer-
chak, and Rossi, who were originally discharged, were
reinstated with lightened penalties.
Sometime after Murphy and the others had advised
the rest of the plant to leave, Hussar met with Murphy
and learned what had been decided and what Murphy,
Ferchak, and Rossi had done. Hussar went back to the
paint department where he sought out a physically isolat-
ed group in the interior repair section with the intention
of advising them what had occurred that afternoon.
Hussar stated, and I credit, that it was not his intention
to "pull" the employees out, but merely to inform them
of the situation, as he felt obligated as their representa-
tive to do. His intention, however, is immaterial. The
necessary and foreseeable consequences of his action-in-
forming the employees that the picketers were threaten-
ing violence to those who remained in the plant and that
most of the other employees had left-would be to cause
these employees to leave, albeit in their own best inter-
ests, and for this he must be held responsible. This is not
altered by the fact that none of the employees in the in-
terior repair section did, in fact, leave until authorized by
Respondent-probably due to the fact that Hussar did
not affirmatively tell them to leave or tell them that the
Union had authorized the walkout on the main floor.
On the basis of Hussar's activities in the interior repair
section and the activities of Murphy, Ferchak, and Rossi
on the main floor, Respondent was justified in originally
discharging these four union representatives. However,
upon the filing of union grievances on behalf of those
discharged, these terminations did not become final until
Is Respondent contends that this case does not involve the failure of
union officials to act, but that "discipline was assessed to Mr. Hussar be-
cause of his affirmative action on June 12 in precipitating, encouraging
and leading the unprotected strike and for participating in the illegal
strike." (Resp. br., pp. 13-14.) This contention will be further considered
hereinafter.
254
VOLKSWAGEN OF AMERICA, INC.
the grievances were disposed of. Thus, as a matter of
fact, Murphy, Rossi, and Ferchak were not permanently
discharged. Hussar was.
As I have noted, Respondent produced no evidence as
to the reason that it discriminated against Hussar in these
circumstances. 20 It was stipulated that General Adminis-
trator of Industrial Relations George Knapp and A. J.
Schell, director of personnel, were sufficiently knowl-
edgeable and competent to testify to the reasons that
"[R)espondent did not return Hussar to active employ-
ment .... " (Jt. Exh. I.) Only Knapp testified and he
did not explain the decision beyond his contention that
Hussar participated in and directed others to participate
in the walkout, which I have already considered. 2'
The obvious inference from the facts is that Respond-
ent picked Hussar as an object lesson because he was the
union representative in the section of the plant in which
the walkout occurred, and Respondent wished to drive
home the point that they held him responsible for pre-
venting the walkout at its inception. Thus, Supervisor of
Industrial Relations Chatlos told Hussar that it was his
responsibility to see to it that the employees did not
leave, and Hussar would be held "directly responsible."
During Hussar's disciplinary interview, Chatlos said that
Hussar did not do enough to keep the employees in the
plant and that was why he was being fired. At various
times, Supervisor Slater, Industrial Relations Administra-
tor Trio, and Supervisor Odorisio indicated to Hussar
that he should be doing more, or had not done enough,
to prevent the walkout, though no such obligation ap-
pears in the bargaining agreement.22
In other words, Respondent discharged and refused to
reinstate Hussar because it was dissatisfied with his per-
formance as a union representative. But this is beyond
Respondent's province. So long as the union representa-
tive does not violate the contract or otherwise engage in
misconduct, Respondent may not punish him because he
is a union representative or for the manner in which he
performs his office, for that is activity protected by the
Act. If that were not so, the employees would be severe-
ly restrained in their right to representatives of their own
choosing, and activities on behalf of and membership in
the Union would be restricted. For the reasons set forth,
and on the record as a whole, I find that Respondent, by
the discharge of Dennis Hussar, violated Section 8(a)(3)
and (1) of the Act. 23 See General Motors Corporation, 218
NLRB 472 (1975).
2 Some rank-and-file employees, such as Burkart, who Respondent
knew had encouraged others to walk out on June 12, were not dis-
charged at all.
11 I have also considered the possibility that Respondent might have
treated Hussar differently from the others because of alleged vulgarity
used when he was put on notice. But this is nowhere asserted by Re-
spondent, probably because Hussar may have been provoked at the time,
and the widespread use of such terminology in the plant by both employ-
ees and supervisors. I have therefore rejected this.
" Documents prepared by Respondent during the grievance process
repeatedly refer not only to Hussar's actions, but also to his "passive atti-
tude." (G.C. Exhs. 2, 3, and 7.)
a2 The General Counsel also contends that the discharge of Hussar was
illegal also because it was assertedly tainted by Respondent's refusal to
permit Hussar consultation with his union representative before his disci-
plinary interview. It is unnecessary to pass on this contention.
B. The Refusal To Permit Preinterview Consultations
It has been found that Respondent had an established
practice, clearly stemming from the provisions of the
bargaining agreement, of permitting the employee sub-
ject to discipline to have a private consultation with his
union representative immediately preceding the employ-
ee's disciplinary interview. This was obviously a condi-
tion of employment which Respondent was not privi-
leged to abrogate unilaterally. Indeed this was an espe-
cially important condition because it affected the right of
the employees to effective representation by their desig-
nated representative. By denying the Union's requests for
preinterview consultations in respect to Hussar and other
employees, Respondent interfered with, restrained, and
coerced employees in the exercise of their rights under
Section 7 of the Act, and thus violated Section 8(a)(1) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to permit the Union and employees sub-
ject to discipline, upon request, private consultation im-
mediately prior to the employee's disciplinary interview,
in accordance with established past practice, Respondent
violated Section 8(aX1) of the Act.
4. By discharging Dennis M. Hussar for alleged activi-
ties, or failure to act, as a union representative, during an
unprotected strike beginning June 12, 1979, Respondent
violated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, it will be recommend-
ed that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
It having been found that Respondent violated the Act
by the discharge of Dennis M. Hussar, it will be recom-
mended that Respondent be ordered to offer Dennis M.
Hussar immediate and full reinstatement to his former
position or, if such position no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or other rights and benefits, and make him whole for
any loss of pay or benefits which he may have suffered
as a result of his discharge by payment to him of a sum
of money equal to that he would have earned as wages
and other benefits from October 8, 1979, to the date of
his reinstatement, less his net earnings during that period,
and interest thereon, to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 24
24 See, generally, Isis Plumbing I Heating Co., 138 NLRB 716 (1962).
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER2 5
The Respondent, Volkswagen of America, Inc., New
Stanton, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to permit International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, or its Local Union No. 2055, upon
request, an opportunity to consult with an employee sub-
ject to discipline, immediately prior to conducting a dis-
ciplinary interview with such employee, in accordance
with prior practice.
(b) Discharging or refusing to reinstate union repre-
sentatives for engaging in, or refraining from engaging
in, union or other activities protected by the Act.
(c) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Dennis M. Hussar immediate and full rein-
statement to his former position or, if that position no
'2 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.
longer exists, to a substantially equivalent position and
make him whole for any loss of earnings or benefits he
may have suffered by reason of his discharge, in accord-
ance with the provisions set forth in the section of this
Decision 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, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its operation in Westmoreland County,
Pennsylvania, copies of the attached notice marked "Ap-
pendix." 26 Copies of said notice, on forms provided by
the Regional Director for Region 6, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent 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. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
26 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
256