Courtesy Volkswagen, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 84 (N.L.R.B. 1972)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Courtesy Volkswagen, Inc. and Local 259, Internation-
al Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
UAW. Cases 29-CA-2496 and 29-CA-2627
November 7, 1972
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 9, 1972, Administrative Law Judge'
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, the 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
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
as modified herein.3
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, Courtesy Volkswag-
en, Inc., Woodbury, New York, its officers, agents,
successors and assigns, shall take the action set forth
in said recommended Order, as herein modified.
1. Delete in paragraph 1(g) the words "In any like
or related manner" and substitute the words "In any
other manner."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The title of "TnaL Examiner" was changed to "Administrative Law
Judge" effective August`19, 1972.
2 The 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings.
3 In view of the nature of the Respondent 's unfair labor practices, we
deem a broad order appropnate Accordingly, we shall amend the
Administrative Law Judge's recommended Order to this extent
WE WILL, upon request, bargain collectively in
good faith with Local 259, International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, as the
exclusive representative of our employees in the
unit described below with respect to the wage
reopener. The appropriate unit is:
All service shop employees of the employer
located at the employer's 8025 Jericho
Turnpike location, excluding office clerical
employees, new and used car salesmen,
guards and supervisors as defined in the Act.
WE WILL NOT deal individually with our
employees concerning wages in derogation of
their bargaining representative or threaten our
employees with discharge or lockouts or give
parties for them to induce them to accept our
wage offers.
WE WILL NOT offer our employees money to
withdraw from the Union.
WE WILL NOT threaten our striking employees
with bodily harm or discharge to induce them to
abandon the Union and return to work.
WE WILL offer to J. Carley immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent posi-
tion without prejudice to his seniority and other
rights and privileges, and make him whole for any
loss of pay suffered by reason of our refusal to
reinstate him on November 8 or 9, 1971.
WE WILL, upon application, offer immediate
and full reinstatement to Narine Ramlogan,
Harry Ramdath, Daniel Ruffi, Andrew Holokyrs,
Harry Singh, Michael Morgan, and Brian Mor-
gan and we will make each of them along with
Solomon Patterson whole for any loss of pay
suffered as a result of our refusal to reinstate them
on November 8 or 9, 1971, until the date each
employee was offered reinstatement in February
1972.
WE WILL NOT discourage membership in or
support of Local 259, International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any
other labor organization by discharging any of
our employees or by discharging or refusing to
reinstate any of our employees who join a lawful
strike and who are entitled to reinstatement after
they have made proper application, or by other-
200 NLRB No. 15
COURTESY VOLKSWAGEN, INC. 85
wise discriminating against any employees in
regard to hire, tenure of employment, or any term
or condition of their employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, loin, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
COURTESY VOLKSWAGEN,
INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, 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, 16 Court Street, Fourth Floor,
Brooklyn, New York 11241, Telephone 212- 596-
3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
discharging an employee; soliciting striking employees by
threats and promises to abandon the Union and return to
work; and by discharging and refusing to reinstate striking
employees. It was further alleged the strike was an unfair
labor practice strike caused and prolonged by Respondent.
Respondent in its answer filed on February 22, 1972,
denied having violated Section 8(a)(1),(3),or (5) of the Act.
The issues are whether Respondent violated Section
8(a)(l),(3),and (5) of the Act by bargaining with the Union
in bad faith or by bargaining directly with the employees;
whether Respondent made threats or promises to employ-
ees to accept Respondent's wage offer; whether Respon-
dent through threats or promises solicited striking employ-
ees to abandon the Union and return to work; whether
employees were discriminatorily discharged and refused
reinstatement; and whether the strike was an unfair labor
practice strike caused or prolonged by Respondent.
At the hearing the parties were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs.
Upon the entire record in this case and from my
observation of the witnesses, and after due consideration of
the brief filed by Respondent,2 I hereby make the fol-
lowing: 3
Findings and Conclusions
1. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, with its principal
office and place of business located at Woodbury, New
York, is engaged in the retail sale, servicing and distribu-
tion of automobiles and related products. During the past
year Respondent's gross revenues derived from its opera-
tions exceeded $500,000 and it purchased and received
automobiles, automobile parts, and other goods and
materials valued in excess of $50,000 which were shipped
directly to it in New York from places located outside the
State of New York.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
THOMAS D. JOHNSTON, Trial Examiner: These cases were
heard at Brooklyn, New York on March 8, 9, and 10, 1972,
pursuant to charges filed by Local 259, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW (herein referred to
as the Union) on August 18 and November 26, 1971,1 and
a consolidated complaint issued on February 14, 1972. The
consolidated complaint alleges that Courtesy Volkswagen,
Inc., (herein referred to as Respondent) violated Section
8(a)(l),(3), and (5) of the National Labor Relations Act, as
amended (herein referred to as the Act) by bargaining with
the Union in bad faith; bargaining directly with the
employees; threatening employees and promising them
benefits to accept Respondent's wage offer; temporarily
I All the dates referred to are in 1971 unless otherwise stated
2 Neither the General Counsel or Charging Party submitted briefs
3 Respondent's motion to dismiss the allegations in the complaint,
alleging Parts Manager Harry Wright offered employees certain benefits to
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Local 259, Interna-
tional Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent and the Union are parties to a collective-
bargaining agreement effective from February 10, 1970,
until July 1, 1972,4 covering a bargaining unit described as
"all service shop employees of the employer located at the
induce them to accept Respondent 's wage offer , will be disposed of by my
findings and conclusions infra, without requiring a specific ruling
4 A memorandum of agreement between the parties , although received
in evidence was not included in General Counsel's exhibits However, in
(Continued)
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer's 8025 Jericho Turnpike location excluding office
clerical employees, new and used car salesmen, guards and
supervisors as defined in the Act."5
Appendix "A" subsection (b) of this agreement provides
in pertinent part as follows: "The parties hereto agree that
effective July 1, 1971 this agreement shall be reopened for
the purpose of renegotiating wages only."
The unsigned collective-bargaining agreement was iden-
tified by Respondent's President Frank O'Connor, who
also verified there was a July wage reopener. This
agreement, which was the initial collective-bargaining
agreement between the parties, resulted from negotiations
participated in by President O'Connor and Attorney James
J. Dean for Respondent and Business Representative Fred
Velez, Brian Morgan, and Andrew Holokyrs for the
Union. Both Morgan and Holokyrs are employees in the
bargaining unit and in addition to serving on the
bargaining committee held the positions of shop steward
and assistant shop steward, respectively. During negotia-
tions Business Representative Velez acted as spokesman
for the Union.
The Union also represents employees of other employers
including those of Queensboro Volkswagen, Inc., with
which it was negotiating an agreement in the spring of
1971.
The issues involved in the instant cases arose out of the
wage reopener clause.
B. Bargaining Directly With the Employees;
Threatening and Promising Employees Benefits to
Accept Respondent's Wage Offer and the
Discriminatory Discharge of Narine Ramlogan6
Shop Steward Morgan testified Respondent's Service
Manager Bruce Kitchen 7 broached the subject of the wage
reopener around February at which time he inquired what
Morgan had in mind. When Morgan replied there was an
unwritten agreement they were to get the same wages as
negotiated at Queensboro8 Kitchen commented there
should be no problem. Around the latter part of March
pursuant to Kitchen's request Morgan informed him of the
rates agreed on in the Queensboro agreement .9 Kitchen
again commented there should be no problem. However,
Shop Steward Morgan testified, around the first part of
June, Kitchen on several occasions asked him how the
employees felt about accepting a 7-percent wage increase
because the Company could not afford to give them the
Queensboro rates.i° Morgan's replies were while he didn't
have any authority to accept or reject his offers the
employees would not be pleased with anything less than
the Queensboro rates. Morgan stated he further informed
Kitchen if those rates were not going to be given he would
inform the Union to start negotiations.
Service Manager Kitchen, who had been authorized by
view of the record, such memorandum could not affect the disposition of
these cases
5 Respondent in its answer admitted the appropriateness of the
bargaining unit and that the Union represented the employees.
8 The spelling of Narine Ramlogan 's name appears as contained in the
record since the consolidated complaint spelled his first name as both
Narine and Nonne.
r Respondent amended its answer admitting Bruce Kitchen was a
supervisor within the meaning of the Act
President O'Connor to negotiate wages, denied he had ever
told Morgan the Company would pay the Queensboro
rates. According to him, in early June, Morgan informed
him the Union wanted to reopen wages in accordance with
the agreement and were requesting the Queensboro wage
package. Kitchen responded by advising Morgan he would
think it over and make an offer.
Kitchen's offer presented to Morgan 5 or 6 days later
included a 60-cents-an-hour increase for the A mechanics
effective July 1 with an additional 30 cents on January 1,
1972; a 40-cents-an-hour increase for the B mechanics
effective July 1 with an additional 25 cents increase on
January 1, 1972; a 30-cents-an-hour increase for the used
car reconditioning employee effective July 1 with an
additional 10 cents increase on January 1, 1972; a 20-cents-
an-hour increase for the utility category employees
effective July 1 with an additional 10 cents increase
effective July 1, 1972; and a 40-cents-an-hour increase for
the A parts employee effective July 1 with an additional 25
cents increase on January 1, 1972. Morgan's response was
although he was not satisfied with the offer he would have
to bring it up to the employees.
Shop Steward Morgan testified Kitchen subsequently
proposed offering the employees the Queensboro rates
without incentive pay or a $1-an-hour raise and half of the
incentive pay over 40 hours, or a 10-percent pay increase
with the same incentive pay over 40 hours. On several
occasions he requested Morgan to urge the employees to
accept the proposal which Morgan refused. According to
Morgan on one occasion Kitchen held a meeting of the
shop employees at which he presented the proposal to the
employees. Although Kitchen told the employees they
would get laid off and he would replace them with B
mechanics the proposal was not accepted. Since no other
witnesses corroborated Morgan's testimony concerning
this alleged meeting at which all of the employees were
allegedly present, I do not find the evidence sufficient to
establish such a meeting was held. Morgan on several
occasions was confused about the dates and numbers of
meetings held and this alleged meeting was not referred to
in his direct examination.
Respondent on June 15 treated the shop employees
which included the bargaining unit to a paid-for dinner at
Manero's Steak House.ii Similar meetings had been held
previously where, as here, shop problems were discussed.
However, Shop Steward Morgan, Assistant Shop Steward
Andrew Holokyrs, and Narine Ramlogan testified Service
Manager Kitchen also brought up the subject of wages.
According to both Morgan and Holokyrs, Service Manag-
er Kitchen presented the employees with some written
figures which he described as Respondent's final offer
telling them it was all the Company could afford. Although
some of the employees including Holokyrs looked at the
8 No evidence was adduced at the hearing to establish any such
unwritten agreement existed
9 The new Queensboro agreement was effective from April 28, 1971,
until April 27, 1973
10 President O'Connor confirmed Respondent 's first offer was given in
percentage figures
11 No allegation was made in the consolidated complaint that Respon-
dent violated the Act by paying for the employees ' dinners at this meeting
COURTESY VOLKSWAGEN, INC.
figures presented both Morgan and Holokyrs informed the
employees and Kitchen he had no right to bargain with
them and told them they shouldn't bargain with Kitchen or
get involved. Morgan also recalled Kitchen telling another
employee Dan Ruffin 12 if he went on strike they would be
out indefinitely and that Kitchen encouraged the employ-
ees to look at the offer by telling them if they wanted to be
hard-nosed they would all end up walking the sidewalks.
Holokyrs could not recall and no evidence was presented
to establish the specific offer made by Kitchen on that
occasion.
Service Manager Kitchen's version was Holokyrs
brought up the subject by asking him how the Company
stood on wages. However, before he could reply, Morgan
interrupted by stating they had already discussed a
package and mentioned the amounts. When Holokyrs
inquired whether he felt that was all the Company could
afford, Kitchen replied it was a fair and equitable pay
raise. Kitchen denied there was any other conversation
concerning wages or that Morgan or Holokyrs had told
him he could not discuss wages with the employees as well
as denying the other remarks attributed to him. However,
Respondent's Parts Manager Harry Wright,13 who testified
Holokyrs brought up the subject by asking what they were
going to get in the raise coming up under the contract,
stated it was Kitchen rather than Morgan who supplied
Holokyrs with the figures. Wright, who was seated at the
opposite end of the table from Kitchen, stated the
employees at his end of the table seemed satisfied with the
figures presented and he heard Kitchen discussing with
Holokyrs and Morgan the difference in wages between the
A and B mechanics and Kitchen informing them that
percentage wise the raise should be the same. Wright could
not recall any mention of a strike or either Holokyrs or
Morgan informing Kitchen he couldn't discuss wages with
the employees. Wright denied Kitchen passed out anything
in writing to the employees.
I credit the testimonies of Morgan, Ramlogan,14 and
Holokyrs and find Service Manager Kitchen brought up
the subject of wages at the meeting and presented the
employees with Respondent's wage offer despite being
admonished not to bargain with the employees. Parts
Manager Wright corroborated their testimonies that it was
Kitchen rather than Morgan who presented the figures
thereby contradicting Kitchen's testimony it was Morgan.
In addition to being contradicted by Respondent's own
witness, Kitchen, who testified in an evasive manner and
professed ignorance of matters reasonably within his
knowledge, did not impress me as a credible witness and to
the extent his testimony is uncorroborated herein I
discredit it. Regardless of who initiated the subject both
Wright and Kitchen admitted the employees were told of
Respondent's offer despite the fact it had never been
presented to the Union. Since neither Ramlogan, Holo-
kyrs, or Daniel Ruffin corroborated Morgan's testimony
about the strike being mentioned I do not find the evidence
sufficient to establish the strike was discussed.
12 Although Dan Ruffim testified he was not questioned concerning this
incident.
13 Respondent amended its answer admitting Harry Wright was a
supervisor within the meaning of the Act.
14 In making these and subsequent credibility resolutions, I have
87
Shop Steward Morgan testified on several occasions
following the dinner meeting Service Manager Kitchen
informed him if the employees didn't accept Respondent's
offer they would probably be out on strike indefinitely and
probably never get theirjobs back. Morgan's response was
the employees wouldn't be afraid to strike if necessary. He
also told Kitchen while he didn't want to accept or reject
his offers and had no authority without the Union to ratify
any agreements he preferred the Queensboro rates.
Shop Steward Morgan testified around June 30 Kitchen
solicited him to urge the employees to accept Respondent's
offer otherwise there might be a lockout. According to
Morgan, Kitchen also offered him $500 if he would drop
out of the Union. Morgan also testified between June 15
and July 8 after having received complaints from various
employees Kitchen had threatened or scared them about
losing their jobs if they didn't accept his offer,15 he
confronted Kitchen with the accusations and requested
Kitchen to stop negotiating with the employees individual-
ly. Kitchen's reply was he wasn't negotiating but only
showing them facts and figures to make them realize what
the Union was asking was absurd and Respondent's offer
was all it could afford. Morgan informed Kitchen any
negotiations should be conducted with the authorized
union representatives and inquired whether he should call
Business Representative Velez which offer Kitchen de-
clined.
Service Manager Kitchen acknowledged around the
middle of June following the dinner meeting he informed
Morgan Respondent could possibly afford to change its
offer from 60 cents and 30 cents to 70 cents and 20 cents
which would give the employees another 10 cents an hour
for the first 6 months. He denied offering $500 to Morgan
to drop out of the Union and making any threats to
employees about what would happen if they didn't accept
Respondent's proposed offer.
I credit Shop Steward Morgan's testimony concerning
his conversations with Service Manager Kitchen pertaining
to the subject of the wage reopener and further find Service
Manager Kitchen informed Morgan there would probably
be a strike and employees would probably be out
indefinitely and probably never get their jobs back and
threatened him that there might be a lockout if they didn't
accept Respondent's wage offer. I further find Kitchen
offered him money to drop out of the Union. For reasons
previously stated I discredit Kitchen's denials in addition
to the fact this conduct is consistent with Kitchen's
unlawful solicitation of employees through threats to
accept Respondent's wage offer discussed infra
Shop Steward Morgan, Assistant Shop Steward Holo-
kyrs, and Narine Ramlogan all testified around July 8,
Service Manager Kitchen held a meeting of the employees
in the bargaining unit in the backyard during coffeebreak.
According to their undenied testimonies they were in-
structed to attend this meeting by Respondent's Foreman
George Hickey. Morgan testified Kitchen presented the
employees with what he said was Respondent's final offer
considered those statements contained in the affidavits of both Morgan and
Ramlogan which were alleged as being inconsistent with their testimonies
and offered for impeachment purposes as well as their explanations of such
alleged discrepancies.
15 No witnesses testified concerning these alleged threats by Kitchen.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and told them if they couldn't come to an agreement that
day there would be a lockout the next day. The offer
included a 70-cents-an-hour raise for the A mechanics
retroactive to July 1 with an additional 25-cent raise on
January 1, 1972 and a 50-cents-an-hour raise for the B
mechanics and other classifications retroactive to July 1
with an additional 15-cent raise effective January 1, 1972.16
When Morgan protested Kitchen's conduct was illegal,
Kitchen asked the employees if they were going to let
Morgan speak for them and be responsible for them losing
their jobs. He also asked them if they wanted to lose their
jobs and go on strike. Kitchen repeated it was Respon-
dent's final offer and told them if they didn't accept it they
would be locked out the next day. Kitchen then asked each
employee individually how they felt about the offer. When
Narine Ramlogan, who was the first employee asked,
replied he didn't like it, Kitchen cursed him and told him
to pack his tools and get out on the street. While
questioning each employee about how they felt about the
offer Kitchen reminded them of favors which Respondent
had done for them. Morgan continued to protest Kitchen's
action and of putting the employees on the spot by the vote
and told Kitchen if he wanted to continue offering wages
he would call Business Representative Velez about the
procedures. Kitchen 'responded by saying what he said
went. When Morgan asked him what he meant and stated
Business Representative Velez would have to ratify any
agreement, Kitchen replied he didn't care about Velez or
the other union representatives, naming a few, and after
cursing the Union told the employees they were the Union
and didn't need anything. Morgan told Kitchen the
employees could not accept the offer and the Queensboro
wages were still theirs. After a majority of the employees
had agreed to accept the offer, Kitchen then told them they
didn't need the Union and nothing had to be signed
because the employees had agreed upon it.
Assistant Shop Steward Holokyrs corroborated Mor-
gan's testimony about Kitchen presenting the employees
with a final retroactive wage offer, questioning each
employee how he felt, reminding them of company favors
and Ramlogan's discharge. Holokyrs also recalled Kitchen
telling the other employees if they didn't like the offer they
could join Ramlogan in the street and didn't need any
union officials to bargain because Shop Steward Morgan
was there. Holokyrs also protested Kitchen's action by
telling the employees Kitchen wasn't allowed to bargain
with them. According to Holokyrs only three employees,
Brian Morgan, Ramlogan, and himself, refused to accept
the offer and as the meeting ended he heard Kitchen
comment it was all sewed up and there was nothing more
to discuss.
Narine Ramlogan further corroborated their testimonies
by testifying Kitchen told them it was the Company's last
offer because they couldn't pay anymore and if they did
not accept the offer that day the doors would be locked the
next day. Kitchen, after mentioning favors which the
16 President O'Connor corroborated the amounts of the offer made with
the exception the utility classification would receive a 30-cents-an-hour
increase on July 1 with an additional 10-cent raise January 1, 1972.
17 Since Service Manager Kitchen's testimony concerning the date of the
meeting was corroborated by President O'Connor and in view of Morgan's
confusion over dates and Holokyrs' inability to recall the exact date of this
Company had done for employees, including one for
Ramlogan, asked him how he felt about the Company's
offer. When he replied he didn't like it, Kitchen cursed him
and told him to pack his tools and get out. Ramlogan then
left the meeting and went into the shop accompanied by
Foreman George Hickey to get his tools. However, when
Foreman Hickey did not help him pack his tools he
decided to wait and talk to Shop Steward Morgan about
his termination.
Service Manager Kitchen acknowledged attending a
meeting with the employees but claimed it occurred on
June 28 rather than July 8.17 However, he claimed he
attended at Morgan's request after he had given Morgan
permission to hold a meeting with the employees in the
backyard. Kitchen testified when he arrived Morgan asked
him if the 70-cent and 20-cent package was the maximum
the Company could afford to pay them. After he replied it
was there was some discussion between Morgan and the
employees with some of them expressing their feelings for
or against it. Kitchen stated he told the employees
President O'Connor was being fair and equitable and
mentioned specific examples of favors which the Company
had done for employees. According to him Morgan asked
the employees if they would like to have a vote as to
whether the package was good or bad. When Kitchen
indicated he thought he should not be there he was asked
to stay. Morgan then asked each individual employee if he
was for or against the package offered by Respondent. As
he recalled the vote was seven for accepting Respondent's
offer and six against including a vote against by Brian
Morgan for his brother Michael Morgan who was not
present. When the results were completed Morgan cursed
the employees who didn't respond. Kitchen informed
Morgan the conclusion they had come to would have to be
put in writing and left. Kitchen denied telling Narine
Ramlogan to pack his tools and leave or making any
similar remarks to any other employees or about the
Union.
Based upon the testimonies of Morgan, Ramlogan, and
Holokyrs, which I credit, I find that Service Manager
Kitchen held the meeting with the employees, made them a
final retroactive wage offer,18 threatened them with
discharge or a lockout if they didn't accept the wage offer,
polled them individually how they felt about accepting the
wage offer, and discharged Ramlogan19 for opposing the
offer all despite protest of Kitchen's conduct by both
Morgan and Holokyrs. In making these findings, I
discredit Kitchen's version for reasons previously stated.
Moreover, while Kitchen claimed Morgan called the
meeting the undenied testimonies establish the employees
were instructed to attend by Respondent's Foreman
Hickey. Further, Kitchen's actions in dealing directly with
the employees while disregarding the Union is consistent
with his previous conduct. Kitchen admitted the employees
voted on Respondent's wage offer and claimed he had
meeting, I find such meeting was held on June 28 rather than July 8.
is According to Respondent the wage rate would become effective July 1
but would be paid retroactive from the date subsequently ratified by
Business Representative Velez.
19 Ranilogan's discharge, as discussed infra, was only temporary.
COURTESY VOLKSWAGEN, INC.
reached an agreement with them notwithstanding such
wage offer had never been presented to the Union.
That same afternoon pursuant to their inquiry Service
Manager Kitchen advised Morgan, Holokyrs, and Ramlo-
gan that Ramlogan had not been terminated. According to
Morgan, Kitchen's explanation was he had just gotten hot
under the collar. Morgan further advised Kitchen regard-
less of the outcome the Union still had to ratify any
agreement and since it required a unanimous vote and the
three of them didn't accept anything less than the
Queensboro rates, the matter would still have to be
negotiated.
Service Manager Kitchen acknowledged Morgan, Ram-
logan, and Holokyrs had visited his office later that day
but claimed Morgan said they wanted a higher wage rate
than everybody else because they were not happy with the
wage rates which were offered. Kitchen replied he was not
permitted to do that. He denied any statements were made
concerning Ramlogan's job. Andrew Holokyrs denied
either Morgan, Ramlogan, or himself had asked Kitchen
about giving them additional money than offered the other
employees.
I credit the testimonies of Morgan, Holokyrs, and
Ramlogan as to the purpose of their visit concerning
Ramlogan's termination and find contrary to Kitchen's
contention they were not seeking higher wages for
themselves but only reminding Kitchen that regardless of
his unlawful conduct in reaching an agreement with the
employees he was still required to negotiate with the
Union.
Although Ramlogan stated he didn't punch out he was
uncertain whether he performed any more work that day.
According to his undenied testimony the signout time on
his timecard, which was in ink rather than punched by the
timeclock, was not made by him. Although Respondent's
records indicate he did perform additional work that
afternoon, inasmuch as no contention has been made he
suffered any loss of pay as a result of his temporary
termination, no finding is necessary. Moreover Service
Manager Kitchen acknowledged. the timecards themselves
do not show actual time spent performingjobs.
According to Morgan and Holokyrs that same afternoon
around quitting time Respondent held a beer and pizza
party at the shop for the employees.
According to Morgan's undenied testimony, Service
Manager Kitchen following the meeting told them the beer
and pizza were on him.
The timing of this impromptu party, occurring following
acceptance by the employees of Respondent's wage offer
without any explanation being offered, leads me to
conclude and I so find such party was given to reward
them for their acceptance of the wage offer and to induce
them to obtain the Union's approval of such offer.
Respondent's contention Shop Steward Morgan was
acting as the Union's agent, and therefore its negotiations
with him as well as the employees were lawful, is rejected.
According to Morgan's undenied testimony which I credit,
on at least 10 or 12 different occasions when Service
Manager Kitchen talked to him about Respondent's wage
offer he informed him he had no authority to negotiate on
89
the wage reopener. Further, Respondent offered no
probative evidence which would refute his denials.
C. Bad Faith Bargaining
According to Shop Steward Morgan, after he had
reported Kitchen's meeting with the employees to the
Union, Business Representative Velez called him on July 9
at the shop and they had a three-way telephone conversa-
tion with President O'Connor. Velez informed O'Connor
the proceedings on the previous day were illegal, men-
tioned filing unfair labor practice charges, and requested
negotiations to begin as soon as possible. After O'Connor
inquired whether Velez had any written demands a
meeting was arranged for July 12.
When Business Representative Velez, Assistant Shop
Steward Holokyrs, Michael Morgan, and himself attempt-
ed to see President O'Connor which according to Morgan's
cross-examination occurred on July 10 rather than July 12,
O'Connor was unavailable. Morgan stated they gave the
Union's written proposal to Service Manager Kitchen who
pursuant to their request indicated there would be no
problem in making the wages retroactive. Kitchen in-
formed them he would talk with O'Connor and they could
call each other about an appointment. Although Morgan
claimed the proposal contained rates higher than the
Queensboro rates the proposal was not offered into
evidence.
Service Manager Kitchen denied such a meeting took
place or that he had received such a proposal from the
Union.
Shop Steward Morgan testified on July 12 when he and
Business Representative Velez met with President O'Con-
nor, O'Connor informed them he had received their
proposals and thought they were ridiculous. Velez replied
they were only for negotiations. O'Connor told them if
they were still insisting on the Queensboro rates they were
wasting their time. After Velez indicated if O'Connor
refused to discuss the matter he would not be bargaining in
good faith and that he would have to bring that charge up
with the other unfair labor practice charges against
Kitchen, O'Connor agreed to discuss the matter. Michael
Morgan, a member of the negotiating committee, was
called into the meeting. Velez started by mentioning there
was an unwritten agreement between the Company and
Union about following up the Queensboro rates and he
couldn't understand what was holding it up. He accused
Kitchen of having tried to split up the shop and bust the
Union. Velez reminded O'Connor the Union had given the
Company its proposal and O'Connor had informed him
the Company was preparing a, proposal. The proposal
presented by O'Connor was the same proposal as that
previously offered the employees by Kitchen. Velez
rejected it. When Velez inquired about whether a wage
increase would be retroactive as Kitchen had promised the
employees O'Connor replied there would be no retroactivi-
ty. Another appointment was arranged for July 14.
Morgan testified the July 14 meeting was attended by
Business Representative Velez, Michael Morgan, and
himself for the Union and President O'Connor and Service
Manager Kitchen for Respondent. Velez presented the
Queensboro rates as the Union's proposal and O'Connor
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewed Respondent's previous offer. Velez informed them
he was going to discuss the matter with the Union's
President Meyers and inform the employees they would
probably have to prepare for a strike and they would file
unfair labor practice charges. O'Connor's response was he
didn't want to talk anymore because it had ruined his day
and requested they put it over for a couple of weeks.
President O'Connor testified his first contact with any
union representative occurred on July 620 when Business
Representative Velez accompanied by Brian Morgan
informed him he was there for wage negotiations. O'Con-
nor's reply was he thought they had a deal and were just
there to ratify it.21 Velez responded angrily and informed
him that was not the case and requested permission to
speak to the employees which request was granted. Velez,
after speaking to them, began cursing O'Connor accusing
him of having propagandized the employees which he had
no right to do and after stating he wasn't going to accept
the wage vote or ratification, requested O'Connor to
discuss it. According to O'Connor when he agreed to
discuss it Velez suggested he would call him later in the
week about a meeting. O'Connor also told him the meeting
with the employees had been called by Morgan on
company time rather than by Kitchen on coffeebreak.
During the meeting Velez mentioned the Queensboro rates
as a package and told him it provided for $1.29 increase for
A mechanics and a 65-cent increase for B mechanics.
When O'Connor asked about incentive, work conditions,
and classifications, Velez replied he didn't really want to
discuss that. He also told Velez about the raise offered
being retroactive.
O'Connor stated the next meeting with Velez was held on
July 9, attended by Brian Morgan and Andrew Holokyrs.
After discussing the wage settlement which Service
Manager Kitchen had allegedly reached with the employ-
ees O'Connor told him he thought they should ratify it and
that under the agreement the employees would receive
retroactive pay from July 1. Velez's response was it was
unacceptable because it was not the Queensboro package.
O'Connor replied he was not aware of what the Queens-
boro package was. Whereupon, Velez replied it was the
standard in the industry. O'Connor brought up specific
Volkswagon dealerships and the fact they were paying less
per hour and explained the Company's incentive pay.
O'Connor also mentioned some of his own employees were
making more than the current union wage. According to
O'Connor the meeting ended with Velez suggesting they
give it more time and agreed to meet later with a time to be
arranged.
O'Connor testified the following Monday there was a
three-way telephone conversation between Velez, Brian
Morgan, and himself, at which time he told Velez the
Company's position was a good one and they had given the
employees a generous raise and with the incentive pay they
would be making more than at any other dealer. Velez
requested and it was agreed they would meet again on July
15.
O'Connor denied he had received any union proposal
from Service Manager Kitchen and to his knowledge none
had been given to Kitchen by the Union.
Service Manager Kitchen testified he attended one
meeting held between July 6 and July 12, at which Business
Representative Velez told President O'Connor he was there
to negotiate wages and the package they wanted was $1.29
and 65 cents. O'Connor replied the package previously
offered through Brian Morgan was the package the
Company stood on. Velez concluded by saying they would
have to set a date for future negotiations.
The last meeting held prior to the strike occurred on July
15. On that day Business Representative Velez, Union
President Sam Meyers, Union Representative Chip Mar-
selli, Michael Morgan, and Shop Steward Morgan met
with President O'Connor and Service Manager Kitchen.
Shop Steward Morgan testified President Meyers acted as
spokesman for the Union and told them what the Union's
scale and Queensboro rates were and mentioned there was
an unwritten agreement Respondent was supposed to pick
up the Queensboro rates and Respondent had led the shop
to believe it was settled until June when it offered the
employees a ridiculous 7-percent figure . Meyers, after
threatening to bring unfair labor practice charges for
Kitchen's actions and for refusing to bargain, indicated the
matters could be overlooked provided Respondent was
ready to start serious negotiations ; otherwise a strike
recommendation would be made. Following these com-
ments there was a discussion of facts and figures with
O'Connor stating they made more money than most shops
because of the incentive pay, with Meyers responding that
was all the more reason the employees should be getting
the same hourly rate as everyone else because their work
was superior. When Meyers indicated the employees' pay
would continue to add up if negotiations were prolonged
because of the promise of retroactive pay, O'Connor told
them there would be no retroactive pay. A heated
discussion ensued following which Meyers stated he was
going to talk to the employees and take a strike vote.
O'Connor's response was he knew the employees would
accept Respondent's offer instead of striking.
Michael Morgan who attended the meeting stated the
Union's proposed offer was the Queensboro rates retroac-
tive to July 1 with Respondent's offer the same amounts as
previously offered the employees with Respondent claim-
ing it couldn't afford to pay more. After Meyers rejected
the offer and requested negotiations, O'Connor informed
them it was a rock bottom offer which if they didn't accept
they would have to strike although he felt the employees
would not strike. Michael Morgan also recalled O'Connor
discussing other automobile dealers and Meyers informing
O'Connor about filing charges and complaining of his
refusal to make the wage increase retroactive.
President O'Connor's version of the July 15 meeting was
that President Meyers started off by asking him about
certain benefits whereupon he reminded him it was strictly
a wage reopener. Meyers then brought up the Union's
proposal of $1.29 and 65 cents saying it was a standard
contract. According to O'Connor Respondent's proposed
offer was the same as that which the employees had
20 O'Connor first placed the date as July 7
21 President O'Connor admitted there had been no prior arrangement
with the Union to ratify any agreement reached with the employees
COURTESY VOLKSWAGEN, INC. 91
already agreed to accept. During the discussions O'Connor
brought up other dealers and Meyers told him he didn't
know what he was complaining about because he would
get a factory warranty increase to offset the raise.
O'Connor informed him that was not the case. Meyers,
after caucusing with the employees, returned and asked
O'Connor if he had changed his mind. O'Connor's reply
was he thought it was a fair offer and explained the
economic plight of the Company. Meyers concluded by
saying they had no choice but to pull the men out and left.
O'Connor denied any reference was made in this meeting
about his refusing to bargain in good faith or of charges
being filed.
Service Manager Kitchen testified at the July 15 meeting
that Meyers started out by discussing certain benefits
before O'Connor corrected him, saying it was strictly a
wage negotiation meeting, which Velez affirmed. Follow-
ing this there was a lengthy discussion between Meyers
and O'Connor about wages. The Union was asking for a
$1.29-an-hour increase for the A mechanics and a 65-cent-
an-hour increase for everyone else. O'Connor repeated
Respondent's offer which was the same as the employees
had already accepted. O'Connor's position was that was all
the Company could afford to pay. O'Connor also discussed
other dealerships. When Meyers brought up the warranty
rate would make up for the increase, O'Connor explained
how it would not. According to Kitchen, Meyers after
talking to the employees repeated the Union's offer stating
if necessary he would take the people out on strike.
O'Connor responded by repeating the Company's offer
claiming it was all they could afford to pay whereupon
Meyers left.
Both O'Connor and Kitchen testified during the July 15
meeting they heard Meyers make some remark to Shop
Steward Morgan about he thought Morgan had this thing
all handled. However, the evidence is not sufficient to
establish what the alleged remark had reference to.
While a review of the evidence pertaining to these
meetings held between representatives of Respondent and
the Union discloses certain discrepancies in their testimo-
nies, such as the dates the meetings were held and whether
filing charges was discussed, none of which I find
necessary, to resolve, there was substantial agreement and I
find the Union was seeking the Queensboro rates whereas
Respondent's only offer was the same as that upon which it
had already reached an agreement with the employees with
the exception Respondent's wage offer would no longer be
retroactive as originally promised. The exception is based
upon the testimonies of Shop Steward Morgan and
Michael Morgan which I credit and partially corroborated
by Service Manager Kitchen's testimony that he believed
President O'Connor had changed the offer to eliminate
retroactive pay. O'Connor admitted at the hearing such
offer was Respondent's final wage offer over which it
would endure a strike.
D. The Unfair Labor Practice Strike and
Solicitation of Strikers Through Threats and
Promises to Abandon the Union and Return to Work
On July 15, when President Meyers reported the results
of the negotiation meeting with President O'Connor and
Service Manager Kitchen to the employees in the bargain-
ing unit and after mentioning filing charges concerning
Respondent's conduct, the employees voted unanimously
to strike. The strike began immediately and a picket line
was established the next day. These findings are based on
the undenied testimony of Shop Steward Morgan, Assist-
ant Shop Steward Holokyrs, and Michael Morgan. At the
time the hearing was held in March, 1972, the strike against
Respondent by the Union was continuing.
According to President O'Connor, since the strike began,
two negotiation meetings have been held with the Union
through the State Mediation Service. These meetings, first
requested by the Union in August, were held on December
21 and in January, 1972. However, neither party has
changed its wage proposal.
Several incidents occurred involving striking employees.
Daniel Ruffini testified the day before the strike began he
asked Service Manager Kitchen in the presence of another
employee Tony Pasquale to get him a job if they went on
strike because he didn't want to go on strike. Kitchen's
reply was whatever happened he would be taken care of.
The day after the strike began22 Ruffini requested
Kitchen to come to his apartment. Tony Pasquale was also
present. When Kitchen arrived Ruffini asked him if he had
found him a job like he had promised. Kitchen replied he
was still looking and he would get in touch with him later.
Ruffini stated on several other occasions in July while he
was on the picket line he had asked Kitchen if he had
found him a job.
About the first week in August, Kitchen approached him
on the picket line and asked him if he would be home later
that day. They met at Ruffini's home. According to
Ruffini, Kitchen asked him if he wanted to come back to
work because he needed him and no matter what the
Union had told him there would always be a position at the
Company for him. Ruffini stated he told Kitchen he
couldn't go back because he wouldn't cross the picket line,
but preferred that Kitchen would get him another job as he
had promised. Kitchen replied he couldn't get him a job
because he had broken his promise to him. When Ruffini
inquired how he had broken his promise, Kitchen told him
he had only said he would get him a job if he stopped
picketing. Ruffini testified Kitchen told him the other
employees wouldn't be coming back to work and neither
would he unless he went back immediately. Ruffini stated,
although he couldn't recall how it came up, that he
mentioned Kitchen's going on vacation. When Kitchen
indicated he was flying down to the Bahamas, Ruffini told
him he would like to go. Kitchen's response was if he came
back to work immediately something could be worked out.
Service Manager Kitchen admitted meeting with Ruffin
and Pasquale at Ruffini's home on the evening of July 15
at Ruffini's request. According to Kitchen when they asked
22 While the date is not critical I accept Ruffmi's explanation he had
erroneously placed the date of this meeting as being July 15 in an affidavit.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if they could come back to work he did not give them an evening of, August 15, Service Manager Kitchen, who had
answer because he didn't know the legal` ramifications. driven up in anautomobile and was parked sitting in the
Ruffini then asked if it was possible for him to get him a driver's seat talking to another employee, Don Dellarocca,
position elsewhere and he told him he would try.
Kitchen testified at a later date he met Ruffini at
Ruffini's home. Ruffmi's wife was also present. When
Ruffini asked if he could come back to work he informed
him he could. However, Ruffini's wife stated he could not
go back to work because if he did he would have no friends
to socialize with. Although Kitchen stated during the
conversation he mentioned he hoped he and his wife could
take a vacation trip and had a brochure on a place in the
Bahamas, he denied promising Ruffini a vacation trip.
Since Ruffini, who did not favorably impress me as a
credible witness, admitted soliciting Kitchen on numerous
occasions during the strike to find him a job and initiated
the conversation about the vacation adding he would like
to go and in the absence of his wife, to corroborate his
testimony and Kitchen's denials, I do not find the evidence
sufficient to establish such threats or promises were made
to him as alleged.
Andrew Holokyrs testified about a week after the strike
began Service Manager Kitchen approached him on the
picket line and asked him how he was doing. After replying
Kitchen told him he had really, let him down. When
Holokyrs asked what he meant Kitchen replied he had had
plans for him and he was going to be a foreman and they
could have gone a long way together. Holokyrs told
Kitchen his loyalty was to the Union because he was a
member of the bargaining unit. According to Holokyrs'
undenied testimony prior to the strike, Kitchen had asked
him about becoming a shop foreman when Foreman
Hickey left.
Shop Steward Morgan testified on one occasion he
overheard Service Manager Kitchen talking to Holokyrs
on the picket line during which Kitchen made a statement
about how Holokyrs had surprised him and he had offered
him a job as foreman and had big plans for him. Morgan
stated he also heard Kitchen tell Holokyrs he should come
back to work.
Kitchen acknowledged having a conversation with
Holokyrs on the picket line. His version was he felt
Holokyrs had a long way to go with the Company because
he was an excellent mechanic and they had previously
talked about his being foreman.
While Kitchen's expressed displeasure of Holokyrs'
action is questionable, I do not find it sufficient as
contended to constitute either a direct or implied threat he
Would not receive the foreman's job and according to
Holokyrs' own testimony he did not request him to return
to work.
Narine Ramlogan testified that on July 26, while
picketing, Service Manager Kitchen told him he would see
to it that he would no longer be employed by the
Company. Kitchen denied having made such a statement. I
credit Ramlogan's testimony over Kitchen's denial, and
find he threatened to discharge him which threat was
consistent with his previous discharge and Respondent's
subsequent acts in discharging Ramlogan in addition to the
other strikers, discussed infra.
Harry Singh testified that while he was picketing on the
called him over. When he approached Kitchen told him he
liked him but had something for him then pulled a gun and
said "I can put six of those in you ." Singh, frightened,
walked away and as he did he heard Dellarocca ask
Kitchen if he had a license to carry a gun. Kitchen replied
he did because he carried the payroll. Singh stated at the
time he saw Shop Steward Morgan running , across the
street but didn't know whether Morgan had observed the
incident.
Harry Ramdath, another picket, testified he was stand-
ing on the side of the automobile opposite the driver's side
and saw Kitchen take a gun out of the glove compartment
of the automobile at which time Ramdath jumped back
and walked away. He stated the window was up on that
side of the automobile and he could not hear what was
said . Ramdath stated when he turned around Shop
Steward Morgan was behind him.
Shop Steward Morgan testified he observed Kitchen
sitting in an automobile parked in the driveway and upon
seeing the expressions on the faces of the pickets ran across
the street and from the passenger side of the automobile
saw Kitchen putting a gun in the glove compartment.
Morgan didn 't hear Kitchen make any statements . Accord-
ing to him Don Dellarocca and Harry Singh were on the
driver's side and Harry Ramdath was on the opposite side.
Service Manager Kitchen's version was he had driven his
automobile into the driveway, rolled down his left window
and was talking to Don Dellarocca at which time Harry
Singh walked over . When he told Singh hello , Singh replied
"You know, how can you sit there like that when you
might get your throat cut" and made a sign indicating.
Kitchen replied "You will have to get past this" and
opened the glove compartment which had a camera in it
but didn't take it out. According to Kitchen during this
incident Respondent's Used Car Manager Breaton came to
the right side of the automobile and knocked on the
window which he rolled down automatically. Kitchen
denied seeing either Ramdath or Morgan. On cross-
examination Kitchen changed his testimony by stating
Singh told him "You better watch out, you're going to get
your throat cut" and made the sign.
Used Car Manager Breaton testified he saw Kitchen
drive up in an automobile and stop to talk to Don
Dellarocca . Breaton knocked on the right side window
which Kitchen opened for him and he stuck his head in to
talk to Kitchen. However, Kitchen continued to talk to
Dellarocca . When Harry Singh started walking back
toward the automobile Kitchen asked him how he was
doing. Singh replied "Hey, man, aren't you afraid of
getting your throat cut." Kitchen reached over to his glove
compartment opened it, reached in, and said "You'd have
to get pass this." Breaton stated he saw a camera in the
glove compartment at which time he just walked away.
Breaton, who considered the incident humorous, denied he
saw either Ramdath or Morgan or a gun . Both Singh and
Ramdath denied Breaton was present on that occasion.
I credit Singh's testimony and find Kitchen threatened
him with a gun. Both Morgan and Ramdath who I credit
COURTESY VOLKSWAGEN, INC.
corroborated Singh's testimony Kitchen had a gun.
Kitchen's denial, and his version it was Singh instead who
made the threat, are discredited, as well as Breaton's
testimony. In addition to those reasons previously given for
discrediting him, Kitchen contradicted himself on cross-
examination by alleging Singh made a direct rather than an
implied threat as he had initially testified. Moreover, had
Singh made such a threat which frightened him as Kitchen
alleged, and had Breaton overheard it as he alleged, it is
not plausible Kitchen would have reacted merely by
reaching for his camera or that Breaton would have found
the incident humorous.
While Parts Manager Harry Wright admitted on several
occasions asking striker Leo Tokarski how long he was
going to be on strike, in the absence of any evidence to
establish he solicited him to return to work or made any
threats or promises to him, I do not find Wright's conduct
violated the Act. Tokarskt, who was not alleged as a
discriminatee, returned to work on his own request after
remaining on strike about a month and a half.
The evidence establishes, and I find, that the strike was
caused by Respondent's bargaining directly with the
employees over the wage increase; by soliciting them to
accept Respondent's wage offers through threats of
lockouts and discharge and giving a party for them; by
temporarily discharging Ramlogan; and by offering Shop
Steward Morgan money to withdraw from the Union and
refusing to bargain in good faith with the Union over the
wage increase all, of which conduct as discussed infra is
found to be unlawful. The strike was prolonged by the
threats made to the striking employees and by terminating
and refusing to reinstate the strikers upon the uncondition-
al offers to return to work, discussed infra. Therefore I find
the strike was an unfair labor practice strike caused and
prolonged by Respondent's unfair labor practices.
E. Termination of the Strikers and Refusals to
Reinstate Them
On the dates set forth opposite their names Respondent
sent letters to the following employees notifying each of
them they had been permanently replaced.
Brian Morgan-September 22
Michael Morgan--September 14
Harry Singh-September 7
Andrew Holokyrs-August 26
David Ruffin August 26
Harry Ramdath-August 23
Solomon Patterson-September 22
Two other employees, namely James Carley and Narine
Ramlogan,23 were sent similar but undated letters. The
parties stipulated the letters were received by the above-
named individuals on or about the dates indicated in the
letters with Carley's received on July 31 and Ramlogan's
on August 3. The reason given by Respondent in its letters
for permanently replacing them was in order for Respon-
dent to continue its business and service its customers. The
letters further stated all outstanding monies had been
23 Ramlogan's letter was not received in evidence.
24 Both dates appeared on the telegram without any explanation offered
for the discrepancy.
25 D. Della Rocca was not alleged as a discriminatee.
93
mailed to the employees and effective as of the dates of the
letters they were no longer covered by the fringe benefit
programs at Respondent.
All of the nine employees named above who are the
discriminatees here unsuccessfully attempted to return to
work in November. President O'Connor acknowledged on
two occasions, November 5 and November 15, having
conversations with the Union Business Representative
Velez concerning their attempted reinstatement. On the
first occasion Velez, accompanied by Brian Morgan,
Daniel Ruffin, and Nanne Ramlogan, told O'Connor the
employees wanted their jobs back. Velez on the second
occasion, accompanied by Brian Morgan, Daniel Ruffin,
Harry Ramdath, Solomon Patterson, and Narine Ramlo-
gan, told him the men were there to report for work. While
O'Connor claimed on both occasions Velez also mentioned
resuming negotiations, he had initially specifically denied
any such reference was made at the first meeting. Two of
the discriminatees, Harry Singh and Harry Ramdath,
testified they had attended such meetings where President
O'Connor was asked for their jobs back and he refused.
According to Singh those discriminatees present at the
November 15 meeting in addition to himself were Brian
Morgan, Daniel Ruffin, Michael Morgan, Harry Ram-
dath, and Narine Ramlogan. Although Harry Ramdath
was uncertain of the date of the meeting which he
attended, those discriminatees present besides himself
included Harry Singh, Daniel Ruffin, Narine Ramlogan,
and Michael Morgan. Besides these meetings there was an
exchange of telegrams and a letter concerning reinstate-
ment of the discriminatees. On November 8 ' or 9 24 the
Union sent the Respondent the following telegram:
THIS IS TO CONFIRM THAT ON FRIDAY NOVEMBER 5TH
1971 THE FOLLOWING EMPLOYEES ADVISED YOU IN
PERSON THAT THEY WISH TO RETURN TO WORK
UNCONDITIONALLY: D. DELLA ROCCA, 25, D. RUFFINI, J.
CARLEY, A. HOLOKYRS, B. MORGAN, M/MORGAN, S.
PATTERSON, H. RAMDATH, N. RAMLOGAN, H. SINGH,. THAT
OFFER IS REPEATED HERE, PLEASE ADVISE THE
UNDERSIGNED IMMEDIATELY.
Respondent's reply telegram on November 10 stated in
pertinent part as follows: "Wish to advise you that on
11/10/71 no employees offered to return to work.
Reconditional offer made on 11/5/71 Company still
willing to meet and negotiate."
On November 11 or 1226 the Union sent the following
telegram to Respondent:
THIS IS TO INFORM YOU THAT THE EMPLOYEES WILL
RETURN TO WORK UNCONDITIONALLY ON MONDAY
NOVEMBER 15, 1971. WE UNDERSTAND THAT YOU WILL
RETURN THEM TO WORK AS PER YOUR TELEGRAM.
On November 15 the Union sent another telegram to
Respondent as follows:
YOUR TELEGRAM OF NOVEMBER LOTH IS UNTRUE. I
PERSONNALLY (SIC) ADVISED YOU NOVEMBER LOTH, 27
EARLY AM, EMPLOYEES SET TO REPORT TO WORK
UNCONDITIONALLY THAT DAY AND YOU REQUESTED
26 Both unexplained dates appear on the telegram.
27 O'Connor denied having seen Business Representative Velez on
November 10.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EMPLOYEES REPORT 11/15. ON 11/15 EMPLOYEES
REPORTED AND YOU REFUSED THEM WORK. EMPLOYEES
REMAIN READY TO WORK. WE WILL SEEK BACK PAY AND
OTHER REDRESS FOR ALL TIME LOST SINCE 11/5 OFFER OF
11115 WAS ALSO UNCONDITIONAL RENEGOTIATION ON
WAGES. STATE MEDIATION CURRENT BOARD HAS BEEN
SEEKING YOUR COOPERATION. PLEASE ADVISE IT OF YOUR
CURRENT WILLINGNESS.
On November 22 Respondent sent the Union a letter
which provided in pertinent part as follows:
The purpose of this letter is to clarify the company's
position with regard to the offer to return to work made
by yourself on Monday, November 15, 1971 on behalf
of employees, Brian Morgan, David Ruffini, Narine
Ramlogan, Harrylal(sic) Ramdath and Solomon Pat-
terson.
The 5 employees who have offered to return to work
have been permanently replaced as employees of the
company. They have been notified by letter of such
replacement.
Differing from my statement that such employees
would be returned to work on a seniority basis, such
individual's rights to re-employment would be in
accordance with the NLRB's decision in the Laidlaw
case.
President O'Connor admitted none of the discriminatees,
with the exception of Solomon Patterson, discussed infra,
have been reinstated. According to O'Connor the reasons
he gave Business Representative Velez on November 5 for
not reinstating the discrimmatees who applied was because
they had been permanently replaced and there was no
work available. The subsequent refusals were for similar
reasons.
President O'Connor and Service Manager Kitchen
testified, Solomon Patterson was rehired in February 1972
to replace another employee who had been terminated;
however Patterson quit work after only working about
10 days.28
Respondent, on the dates set forth opposite their names,
sent letters to each of the following discriminatees29
offering them immediate and unconditional reinstatement
to their jobs.
Daniel Ruffini-February 9, 1972
Narine Ramlogan-February 17, 1972
Michael Morgan-February 11, 1972
Brian Morgan-February 15, 1972
Andrew Holokyrs-February 28, 1972
Harry Singh-February 24, 1972
Harry Ramdath-February 22, 1972
Although all of the discnminatees named received their
letters offering them reinstatement on or about the dates
indicated in the letters, none of them attempted to return
to work after having received their offers. Two of them,
namely Daniel Ruffini and Michael Morgan, responded by
telegram the reasons they could not accept the offers were
that they were discriminatory and conditional upon their
abandoning the Union and there were other employees
with greater seniority who must be recalled before them.
Harry Ramdath, who had knowledge other discriminatees
were asked to return at different times, stated he did not
return because of the hearing scheduled and on advice
from the Union.
Based on the foregoing evidence and in particular the
Union's November 8 or 9 telegram to Respondent wherein
the Union repeated an offer on behalf of all the
discriminatees, naming each of them, to return to work
unconditionally, I find that unconditional application for
reinstatement to their jobs was made to Respondent by the
Union on behalf of the discriminatees Narine Ramlogan,
Harry Ramdath, Daniel Ruffini, Andrew Holokyrs, Harry
Singh, Michael Morgan, J. Carley, Solomon Patterson, and
Brian Morgan.30 These offers were not conditioned, and I
so find, upon resumption of negotiations.
While certain other statements contained in the Union's
telegrams to Respondent may not have been consistent
with the evidence, I find that they were not sufficient to
distract from the validity of the reinstatement offers. Cf.
Hawaii Meat Company, Limited 139 NLRB 966, reversed
on other grounds 321 F.2d 397 (C.A. 9).
I further find Respondent's refusal to reinstate these
discriminatees at the time the applications for reinstate-
ment were made was because of its position they had been
permanently replaced, which position was consistent with
the unretracted letters previously sent to the discrimina-
tees.
Further, contrary to the positions taken by at least two of
the discriminatees, Daniel Ruffini and Michael Morgan, I
find the letters Respondent sent to the discriminatees
Narine Ramlogan , Harry Ramdath, Daniel Ruffini,
Andrew Holokyrs, Harry Singh, Michael Morgan, and
Brian Morgan constituted valid unconditional offers of
reinstatement. With respect to the two remaining discrimi-
natees J. Carley and Solomon Patterson, I find no
reinstatement offer was made to J. Carley and that
Solomon Patterson was properly reinstated in February,
1972.
The discriminatees Daniel Ruffini, Narine Ramlogan,
Michael Morgan, Brian Morgan, Andrew Holokyrs, Harry
Singh, and Harry Ramdath all testified at the hearing
without contradiction they were still on strike and I so find.
F. Analysis and Conclusions
Counsel for the General Counsel contends, and Respon-
dent denies, that Respondent violated Section 8(a)(1)(3)
and (5) of the Act by bargaining directly with the
employees and inducing them through threats and promis-
es to accept Respondent's wage offer; by bargaining in bad
faith with the Union; by discriminatorily discharging and
refusing to reinstate employees; and by soliciting strikers
through threats and promises to abandon the Union and
return to work. It was further alleged the strike was an
unfair labor practice strike. Having already made certain
findings of fact and conclusions adverse to Respondent
and when considering them in light of the applicable law
29 The exact dates he was rehired and quit were not established by the 29 There was no evidence presented to show J. Carley was offered
evidence There was no contention made and the evidence is insufficient to reinstatement.
establish that the reinstatement of Patterson, who testified at the hearing, 30 No issue was raised with respect to the reporting times indicated in the
was improper. letters.
COURTESY VOLKSWAGEN, INC.
and provisions of the Act discussed below I find Respon-
dent violated Section 8(a)(1), (3), and (5) of the Act..
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 while
Section 8(a)(5) of the Act prohibits an employer from
refusing "to bargain collectively with the representatives of
his employees" designated by a majority of them in an
appropriate unit. The obligation to treat only with the
bargaining representative is exclusive and hence imposes
the negative duty to treat with no other. N.L.R.B. v. Jones
& Laughlin Steel Corp., 301 U.S. 1. An employer by
disregarding the bargaining representative and negotiating
directly with individual employees with respect to wages,
hours, and working conditions violates Section 8(a)(1) of
the Act. Medo Photo Corp. v. N.L.R.B., 321 U.S. 678. Here
the evidence establishes, Respondent admits, and I find
that the Union represented the unit employees. Having
already found that Respondent through its admitted
supervisor, Service Manager Kitchen, negotiated Respon-
dent's wage offers directly with the unit employees while
disregarding the Union, and solicited them to accept such
offers through threats of lockouts and discharge, and by
giving a party for the employees and in addition offering
Shop Steward Morgan money to withdraw from the
Union, and threatening strikers Harry Singh with a gun
and Narine Ramlogan with discharge, I find such conduct
interfered with, restrained, and coerced the employees in
the exercise of their Section 7 rights and Respondent by
engaging in such conduct thereby violated Section 8(a)(1)
of the Act.
Turning to the bargaining meetings which subsequently
transpired between the parties, the Act imposes "a mutual
duty upon the parties to confer in good faith with a desire
to reach agreement . ..." N.L.R.B. v. Insurance Agents'
International Union, 361 U.S. 477, 488. Respondent's only
wage proposal offered the Union was that upon which an
unlawful agreement had been extorted from employees in
the unit through unlawful negotiations conducted directly
with them and accompanied by threats of lockouts and
discharge if they refused to accept such offer, with the
exception the offer to the Union was even less than offered
the employees because of the refusal to make such raise
retroactive. This fact, considered with Respondent's
contention throughout negotiations the Union should
ratify such agreement and that it was Respondent' s final
offer over which it was prepared to endure a strike, I find is
sufficient to establish that its conduct in negotiations with
the Union was but a continuation of its prior unlawful
conduct and that it had no intentions of bargaining in good
faith with the Union towards reaching an agreement with
the Union over the wage increase; and thereby violated
Section 8(a)(5) and (1) of the Act.
Section 8(a)(3) of the Act provides in pertinent part "It
shall be an unfair labor practice for an employer . . . by
discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or
discourage membership in any labor organization ... .
Since Narine Ramlogan, as I have found, was temporarily
discharged for resisting Respondent's unlawful conduct in
95
negotiating wages directly with the employees, I find his
discharge violated Section 8(a)(3) and (1) of the Act.
The discharge of unfair labor practice strikers also
violates Section 8(a)(3) and (1) of the Act. ITT Henze
Value Service, 166 NLRB 592, enfd. 435 F.2d 1308 (C.A.
5). Since I have previously found the strike constituted an
unfair labor practice strike from its inception and the
strikers were therefore all unfair labor practice strikers, I
find that Respondent by terminating them violated Section
8(a)(3) and (1) of the Act. As unfair labor practice strikers
they are entitled to reinstatement upon application even if
replacements have been hired. Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270. An employer's refusal to reinstate
such strikers violates Section 8(a)(3) and (1) of the Act.
Southwestern Pipe, Inc. 179 NLRB 364, modified 444 F.2d
340 (C.A. 5). Having found the Union made valid
unconditional applications for reinstatement on behalf of
all the discriminatees whereupon Respondent refused to
reinstate them, I find Respondent's refusal violated Section
8(a)(3) and (1) of the Act. However when Respondent
thereafter sent letters to seven of the discriminatees
offering them reinstatement , which I have found constitut-
ed valid offers of reinstatement, the backpay liability for
those seven discriminatees was tolled. Southwestern Pipe,
Inc., supra. Inasmuch as I have found these seven
employees have remained on strike since the offers were
made, they still maintain their status as unfair labor
practice strikers and are entitled to reinstatement upon
application. See National Business Forma, 189 NLRB 964.
Therefore I find for the reasons stated that it has been
established by a preponderance of the evidence Respon-
dent violated Section 8(a)(1)(3) and (5) of the Act in those
specific instances which I have found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Courtesy Volkswagen, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 259, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Ameri-
ca, UAW, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All Service Shop employees of the Respondent
located at the Respondent's 8025 Jericho Turnpike
location, excluding office clerical employees, new and used
car salesmen, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been, and
is now, the exclusive representative of all employees in the
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforesaid appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on and after July 6, 1971, to bargain
collectively in good faith with Local 259, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, as the exclusive
bargaining representative of the employees in the aforesaid
appropriate bargaining unit over the wage reopener, the
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act.
6. By disregarding the Union and bargaining directly
with its employees; by threatening its employees with
discharge and lockouts and giving them a party to induce
their acceptance of Respondent's wage offer; by offering
an employee money to withdraw from the Union; and by
threatening strikers with a gun and discharge, Respondent
has interfered with, restrained, and coerced its employees
in the exercise of their rights guaranteed in Section 7 of the
Act, thereby violating Section 8(a)(1) of the Act.
7. By temporarily discharging Narine Ramlogan on or
about June 28, 1971, and by discharging unfair labor
practice strikers Narine Ramlogan on August 3, 1971,
Harry Ramdath on August 23, 1971, Daniel Ruffini on
August 26, 1971, Andrew Holokyrs on August 26, 1971,
Harry Singh on September 7, 1971, Michael Morgan on
September 14, 1971, J. Carley on July 31, 1971, Solomon
Patterson on September 22, 1971, and Brian Morgan on
September 22, 1971, and by thereafter refusing to reinstate
said strikers on or about November 8 or 9, 1971, when
proper applications for reinstatement were made, the
Respondent has discriminated in regard to the hire, tenure,
and conditions of employment of its employees, thereby
discouraging membership in the Union, in violation of
Section 8(a)(3) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. The strike which began on July 15, 1971, having been
caused and prolonged by Respondent's unfair labor
practices, is an unfair labor practice strike.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1),(3),and(5) of the Act I shall recommend
that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
Accordingly, it is recommended Respondent be ordered to
bargain collectively in good faith with the Union, as the
exclusive representative of the employees in the aforemen-
tioned unit, upon request, over the wage reopener.
Since I have found the strike was an unfair labor practice
strike and Respondent discriminatorily refused to reinstate
strikers Narine Ramlogan, Harry Ramdath, Daniel Ruffi-
ni, Andrew Holokyrs, Harry Singh, Michael Morgan, J.
Carley, Solomon Patterson, and Brian Morgan on Novem-
ber 8 or 9, 1971, when they unconditionally offered to
return to work, it is recommended Respondent be required
to make them whole for any loss of pay they may have
31 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
suffered as a result of Respondent's refusal to reinstate
them from November 8 or 9, 1971, until such dates as they
are or have been offered reinstatement . As found herein
Respondent offered reinstatement to David Ruffim on
February 9, 1972, Narine Ramlogan on February 17, 1972;
Michael Morgan on February 11, 1972; Brian Morgan on
February 15, 1972; Andrew Holokyrs on February 28,
1972; Harry Singh on February 24, 1972; Harry Ramdath
on February 22, 1972; and Solomon Patterson sometime in
February 1972. Since J. Carley has not been offered
reinstatement I shall recommend that Respondent offer
him immediate and full reinstatement to his former
position, or if that position no longer exists, to a
substantially equivalent position without prejudice to his
seniority and other rights and privileges, dismissing, if
necessary, any replacements hired, and that the Respon-
dent make him whole for any loss of pay he may have
suffered as a result of Respondent's refusal to reinstate him
from November 8 or 9, 1971, until such time as he is
offered reinstatement . Regarding employees Daniel Ruffi-
ni, Narine Ramlogan, Michael Morgan, Brian Morgan,
Andrew Holokyrs, Harry Singh, and Harry Ramdath, who
declined Respondent's reinstatement offers but who have
remained on strike and occupy the status of unfair labor
practice strikers, Respondent shall be ordered to offer
them, upon application, immediate and full reinstatement
to their former positions or, if those positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority and other rights and privileges
dismissing, if necessary, any replacements; and Respon-
dent will make them whole for any loss of pay they may
suffer by reason of Respondent's refusal, if any, to
reinstate them upon their applications. Backpay shall be
computed in accordance with the formula prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289,
together with 6 percent interest per annum , to be computed
in accordance with Isis Plumbing & Heating Co., 138
NLRB 716.
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: 31
ORDER
Respondent, Courtesy Volkswagen, Inc., its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith over the
wage reopener with Local 259, International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, as the exclusive
representative of all the employees in a unit composed of
"all service shop employees of the Respondent located at
the Respondent's 8025 Jericho Turnpike location, exclud-
ing office clerical employees, new and used car salesmen,
guards and supervisors as defined in the Act."
(b) Discouraging membership in Local 259, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any other labor
Section 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.
COURTESY VOLKSWAGEN, INC.
organization by terminating or refusing to reinstate
employees because of their union or strike activities or in
any other manner discriminating in regard to hire or tenure
of employment or any term or condition of employment.
(c) Dealing individually with any of its employees in the
aforementioned bargaining unit in derogation of their
bargaining representative.
(d) Threatening its employees with discharge and
lockouts and giving them parties to induce them to accept
Respondent's wage offers negotiated directly with the
employees.
(e) Offering its employees money to withdraw from the
Union.
(f) Threatening its striking employees with bodily harm
or discharge to induce them to abandon the Union and
return to work.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through repre-
sentatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section
7 of the National Labor Relations Act, as amended, or to
refrain from any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
Local 259, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Ameri-
ca, UAW, as the exclusive representative of the employees
in the aforementioned bargaining unit over the wage
reopener.
(b) Offer J. Carley immediate and full reinstatement to
his former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges, discharging, if
necessary, any replacements, and make him whole for any
loss of earnings he may have suffered by the Respondent's
November 8 or 9, 1971, refusal of his unconditional
application therefor, from November 8 or 9, 1971, to the
date of a valid offer of reinstatement in the manner set
forth in the section of this Decision entitled "Me
Remedy."
(c) Make Narine Ramlogan, Harry Ramdath, Daniel
Ruffmi, Andrew Holokyrs, Harry Singh, Michael Morgan,
Brian Morgan, and Solomon Patterson whole for any loss
of earnings they may have suffered by the Respondent's
32 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
97
November 8 or 9, 1971, refusal of their unconditional
applications for their positions from November 8 or 9,
1971, to the dates previously found each was made a valid
offer of reinstatement in the manner set forth in the section
of this Decision entitled "The Remedy." Upon application,
offer each of them who I have found remained on strike,
which includes all of those except Solomon Patterson who
was reinstated and who occupy the positions of unfair
labor practice strikers, immediate and full reinstatement to
their former positions or if those positions no longer exist
to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, discharging
if necessary, any replacements hired and make each of
them whole for any loss of earnings they may suffer as a
result of any subsequent refusal of their unconditional
applications for reinstatement, if made, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(d) Notify any of the employees named in the preceding
paragraphs, excepting Solomon Patterson, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act, and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(e) Preserve, and, upon request make, available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amounts of
backpay due under the terms of this Order.
(f) Post at its Woodbury, New York, facilities copies of
the attached notice marked "Appendix." 32 Copies of said
notice, on forms furnished by the Regional Director for
Region 29, shall, after being duly signed by the Respon-
dent's authorized representative, be posted immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(g) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.33
IT IS FURTHER ORDERED that the consolidated complaint
be, and it hereby is, dismissed insofar as it alleges unfair
labor practices not found herein.
33 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 29, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."