Master Dynamics Corp.

National Labor Relations Board - Board Decisions

Jan 20, 1970

180 N.L.R.B. 802 (N.L.R.B. 1970)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Master Dynamics Corporation and James L. Dunlap.
Case 20-CA-5489
January 20, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 15, 1969, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in certain unfair labor practices alleged in
the complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Charging Party filed exceptions to the attached
Trial Examiner's Decision, and a supporting brief,
and the Respondent filed an answering brief to the
Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions' and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.2
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Pursuant to due
notice a hearing in this case was held before me on
August 12 and 13, 1969, at San Jose, California. A
complaint and notice of hearing was issued by the General
Counsel of the National Labor Relations Board, herein
the Board, on May 29, 1969, upon charges filed by James
L. Dunlap, herein Dunlap, an individual, on March 19,
1969, against Master Dynamics Corporation, herein
Respondent. The complaint alleged that Respondent
violated Section 8(a)(3) and (I) of the National Labor
Relations Act, herein the Act, by laying off Dunlap on or
about January 29, 1969, and after recalling Dunlap,
discharging him on March 18, 1969.
The parties fully participated at the hearing, with the
exception of the Charging Party, who did not choose to
participate, and the briefs which have been submitted have
been fully considered.
Upon the entire record,' in the case and from my
observation of the witnesses, I make the following.
FINDING OF FACT
I. THE RESPONDENT 'S BUSINESS
Respondent is a California corporation with a place of
business in Sunnyvale, California, and at all material
times has been engaged in the manufacture and sale at
wholesale of molded rubber and plastic products. During
the past year it sold and shipped goods valued in excess of
$50,000 directly to points located outside California.
During the past year, Respondent received goods and
services valued in excess of $50,000 which were shipped to
it directly from points outside California. At all material
times, Respondent has been an employer engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'At the hearing before the Trial Examiner, the Charging Party
participated in the hearing as witness for the General Counsel He did not
appear by his own counsel and did not participate in the examination of
witnesses However , he has since retained counsel who has filed exceptions
on his behalf.
'The Trial Examiner' s dismissal of the complaint in its entirety was
based in large measure on his credibility resolutions , to which the Charging
Party has excepted It is the Board 's well-established policy not to overrule
a Trial Examiner 's credibility determination unless a clear preponderance
of all relevant evidence convinces us that his resolutions were incorrect
Standard Dry Wall Products , Inc, 91 NLRB 544, 545, enfd . 188 F.2d 362
(C.A. 3). That is not the situation here . Therefore, although the
circumstances surrounding the discharge of the Charging Party appear,
suspicious, there is insufficient evidence in the record to support the
allegations of the complaint , and we are constrained to find that the
General Counsel has failed to sustain his burden of proving those
allegations by a preponderance of the evidence.
Tool and Die Craftsmen, National Federation of
Independent Unions, herein the Union, at all material
times has been a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Was James Dunlap laid off in late January 1969 and
after rehire, discharged on March 18, 1969,' in violation
of Section 8(a)(3) and (1) of the Act.
B. The Facts'
Respondent hired Dunlap as a mold maker in June of
1968. He had been a mold maker for over 15 years. He
'The parties' joint motion to correct the transcript is granted. The
transcript contains more errors that I have ever seen The joint motion is
marked T Ex . Exh. 2.
'Hereinafter , unless otherwise stated , the last six months of the year
refer to 1968 , and the first 6 months of the year refer to 1969
'The demeanor of Dunlap impressed me unfavorably I credit his
uncontradicted and corroborated testimony as to his union activities I do
not credit his testimony as to his so-called "bad habits" or manners or as
to whether he "bothered" other employees. Norbert Sanjuan , William
Wells, Eleanor Bonfield , William Drude , William Ricciardi and Arthur
Graver , all impressed me as honest witnesses attempting to tell the truth as
180 NLRB No. 121
MASTER DYNAMICS CORP.
was paid $5.25 an hour. The progress in this craft is from
machinist to tool and die maker and then to mold maker.
Shortly after his employment he became active in
recruiting his fellow employees in the so-called tool room,'
to join or be represented by the Union.
As noted the charge herein was filed on March 19, so
the 10(b) cut-off date is September 19. General Counsel
alleges no independent 8(a)(I) violations within the 10(b)
period. General Counsel produced only two witnesses,
Dunlap, and business representative of the Union Philip
Wier, who gave testimony of slight significance. Dunlap's
testimony of antiunion and threatening statements by
Graver, Respondent's President and General Manager, is
uncorroborated and substantially if not specifically denied
by Graver. I credit Graver's denials and do not credit
Dunlap in these regards.
Without question, Dunlap was the leader of the union
activities in the tool room, which during the union
activities had from 5 to 7 employees. He attended the
three union meetings along with other tool room
employees at which at least five tool room employees
signed authorization cards for the Union, including
himself. The third and last meeting was held at Dunlap's
home, without Wier's presence, about 2 weeks before the
Board election which was held on December 19. A
petition for an election had been filed by the Union on
August 14. The Board held a hearing on this petition on
September l8. Besides Wier, Dunlap was the only witness
for the Union at this hearing. Dunlap was the Union
observer at the December 19 election.'
Dunlap testified that after he began organizing for the
Union he had about 8 conversations with Graver.
However, he testified as to only 2. Dunlap testified that
early in July,' Graver came to his machine and said he
knew someone was agitating for the Union but he didn't
know who and he would like to find out who it was, and
fire him. Dunlap testified he replied he knew nothing
about it. Dunlap then testified that the next conversation
was in the middle of August and that William Drude was
possibly close enough to hear.' According to Dunlap,
Graver said he knew "agitation" was going on and he
asked Dunlap' who was doing the organizing in the plant
and added that before he would sign a union contract he
would close the tool room down and send out the tool
room work.' Dunlap fixed the time of this conversation as
a week after the Union filed its petition.10
Dunlap further testified that sometime in November,
Graver angrily tore down a "petition notice" and tore it
into 3 pieces and while standing 3-5 feet from Dunlap,
threw them in a trash can and said, "That's enough of this
sh- with these Unions" and while "he was just speaking
out loud, he then posted the new Board election notice."']
they remembered it. Further in this Decision , I shall refer to some
discrepancies or contradictions in their testimony which I consider
immaterial , and not affecting their credibility.
'About five to seven employees.
'The tally of ballots showed that of five eligible voters, two voted for and
one against the Union and one was challenged . Subsequently the challenge
was overruled and the revised tally of ballots showed a tie of two for and
two against the Union and thus the Union did not win.
'Shortly after his hire.
'Although Drude testified , General Counsel asked him no questions
about this alleged conversation.
'A comparatively new employee.
'Having observed Graver, I do not believe he would make such
statements to a comparatively new employee.
"The petition was filed on August 14.
"Note that while this allegedly happened within the 10(b) period, it is
803
Aside from the fact that Dunlap's demeanor impressed
me unfavorably and that I was convinced as he testified to
these alleged incidents with Graver, that he was not
testifying truthfully, it appears highly unlikely that Graver
would select a comparatively new employee to find out
who was doing the union organizing. I credit Graver's
testimony that after the Union filed its petition, Dunlap
volunteered that he didn't know of any union activity in
the plant. I credit Graver's undenied testimony that
immediately after the Board hearing in the R case,
Dunlap said he was sorry he had had to testify for the
Union, but he had been subpenaed.
The record is , bare of any testimony by any witness
other than Dunlap as to any alleged 8(a)(1) or otherwise
antiunion conduct by Graver either before or after the
10(b) period. Graver admittedly addressed all the tool
room employees on at least several occasions before the
election and there is not a hint that he engaged in any
unlawful conduct in any of these talks. I credit Graver's
testimony that he was unaware of Dunlap's union
activities prior to the preelection hearing, and I find it
highly unlikely that he would have questioned Dunlap, and
threatened him, at a time when he was a comparatively
new employee. Ledin was foreman of these few employees.
If Graver were seeking information he could have sought
out Foreman Ledin who was discharged by Respondent in
mid November. Presumably, Ledin was not partial to
Respondent since he had been discharged, and General
Counsel failed to call him as a witness to any antiunion
conduct by Respondent. Wells, who was hired by
Respondent in November and thereafter twice terminated,' 2
testified for Respondent. There was no reason apparent
for him to be biased in favor of Respondent, but he gave
no testimony as to unlawful activity by Respondent. I
credit Graver's denial that he ever threatened to close
down the tool room if the Union came in. While it is true
that Graver could only testify that he "could not recall"
saying anything when he posted the election notice and
admitted he "could have made some remarks," I consider
I was in error in sustaining General Counsel's objection to
Graver's testimony that if he made any remarks at all, "it
certainly wouldn't be derogatory." From the time the
petition was filed he was warned by his counsel not to
threaten employees." I credit Wells' testimony that on the
day of the election, Dunlap forecast that he would be fired
because of his union activities and said he would have a
nice long vacation on Graver and take a trip to England
or France. I believe Dunlap was motivated in much of his
testimony by the belief that if he could but show or prove
through his testimony, true or false, that Respondent was
motivated by antiunion animus in Dunlap's layoff and
subsequent discharge, he could collect, possibly, a large
amount of backpay. Graver was sometimes long winded in
his testimony and perhaps through the inartfulness of
counsel, did not meet some adverse testimony directly and
precisely. Nonetheless his demeanor, contrary to that of
Dunlap, impressed me favorably. I do not credit Dunlap's
testimony unless corroborated by otherwise credited
testimony. Thus, not crediting Dunlap, I find, in this
record, no credible and substantial evidence that
Respondent had any antiunion animus. Other than the
three incidents referred to by Dunlap, there is no
not alleged as a violation of Section 8(a)(1), which I think it would be if
General Counsel had actually believed that it happened Apparently no
objections to the election were filed.
"January and February
"There is no credible evidence that he did
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial and probative evidence that either within or
without the 10 (b) period, Respondent engaged in any
antiunion activity."
1. The January 28, layoff of Dunlap
On January 28, Respondent laid off Wells, who was
hired on November 5, and who worked mostly on
constructing a special machine and which work was
completed by that date, and Dunlap who aside from
Wells, had the least seniority of the 4 mold makers who
were then in Respondent's employ. I have already found
an absence of any credible evidence of any antiunion
animus by Respondent. It is not suggested that Wells was
laid off for antiunion reasons. Dunlap or the Union did
not file a charge with the Board about this layoff until
after Dunlap's later discharge on March 18.16 At the end
of the working day on January 28, Graver spoke to Wells
and Dunlap and told them they were being laid off due to
lack of work. Graver credibly testified that the amount of
business they had in the plant and amount of backlog did
not warrant retaining more than two mold workers at that
time.
Documentary evidence and Graver's credited testimony
demonstrate that Respondent's mold sales dropped from
$14,520 in September to $5,000 in December and $3,075
in January. There was demonstrated the need for a layoff
in the Mold Department in January. Dunlap and Wells
were chosen because they had the least seniority and not
because of ability. I credit Graver's testimony that
Dunlap' s union activities had nothing to do with his
selection for layoff. He kept the two with most seniority
who were his best workers. These two had regularly
worked 55 hours or more a week. If Respondent had cut
their hours to 40 or less hours so as to make work for
Dunlap, I find it most likely that these two valued
employees would most likely have quit and caused great
economic loss and inconvenience to Respondent. I find
Dunlap was laid off on January 28, for legitimate
economic reasons and that General Counsel has failed to
prove by a preponderance of the substantial evidence that
he was laid off in violation of Section 8(a)(3) or (1) of the
Act. Dunlap's lack of seniority was the motivating force
behind his selection in this economic layoff and Dunlap's
ability as a mold maker had nothing to do with his
selection. It was strictly on the basis of seniority and
proven and established economic need. I credit Graver's
testimony that Dunlap' s union activities , known to him to
a large degree as substantial , influenced his selection of
Dunlap for layoff in no way. I credit his testimony that he
has had no opposition against union members at all.16
About one week after Dunlap's layoff, or on February
7, Respondent wrote Dunlap, inquiring if he would
consider accepting the position of "machinist" at $3.50
per hour at a normal 40 hour week." Dunlap made no
reply to this offer Obviously it could have been that
Dunlap did not want a cut in wages from $5.25 per hour
to $3.50 per or a cut in the workweek from 50 to 40 hours
or both. Wier testified that the union scale for machinists
was $4.50 to $4.75 per hour. He further testified that
nonunion shops pay more per hour.
"I credit Graver 's testimony that he had known union members in his
employ.
"Also no charge was filed as to Graver 's alleged antiunion statements
"As noted , he has known union members in his employ.
"Note that Dunlap had been making $5.25 per hour as a mold maker at
Wells reapplied for work on February 17. There was
some further new work for him to do on the machine he
had been working on at the time of his previous layoff
and had apparently finished at the end of January. He was
rehired on February 17, and at the end of about two
weeks," he was terminated, the special job having been
finished."
Reasonably or unreasonably, Graver considered
Dunlap' s failure to reply to his offer of a machinist's job
at $3.50 per hour as a rejection of a machinist's job at any
rate.i0
Respondent inquired through the market and found he
could not hire machinists at the rate he had thought
equitable , and hired two machinists," George Loeber at
$5.25 an hour and James Benefield at $5.00 per hour.22
When Graver testified, he truthfully testified that after
writing Dunlap on February 7, he found, after
interviewing several machinists , that he could not possibly
get a machinist for $3.50 per hour. He did not offer a
higher rate of pay to Dunlap" because Dunlap had made
no reply to his February 7, letter and Graver didn't think
Dunlap was interested in a machinist 's position at any
price.24 At the time he offered Dunlap the job at 40 hours
per week, it looked as though that was all the work
Respondent would have for him.2S Graver truthfully
testified that he didn't offer Dunlap a job as machinist at
$5.25 because he didn't think Dunlap would be interested
in it.26
2. The hire and discharge of Dunlap on March 18
By letter, dated March 7, Graver offered Dunlap his
old position as mold maker at $5.25 per hour, 40 hours
per week, stating that if Dunlap were interested he should
communicate with Graver by March 12.27 Dunlap saw
Graver on March 11, and said he accepted the offer and
would be willing to start work on March 17, Graver said
he would be out of town on that date and Dunlap should
report on March 18.2s
50 hours per week Further note it is very unlikely that an employer who
had laid off an employee for union activities would want him back under
any circumstances
"February 28.
"The termination was by mutual agreement.
"Note a mold maker was several steps advanced beyond a machinist
Dunlap had not protested the wages but had simply failed to reply to the
offer He made no counter offer He did not file a charge
"Not mold makers
"Benefield was hired on March 5, and terminated on April 25. Locher
was hired on February 28, and presumably was still working on the days of
the hearing.
"$5.25 per hour
'Graver admitted that from March 2 to March 18, Benefield and
Locher worked from 50-55 hours per week
"Benefield and Loeber were offered their jobs at 40 hours per week
"A machinist's job
"If Graver had antiunion animus in connection with Dunlap , I think it
highly unlikely that he would have sought him out to return to work and
perhaps or probably resume his union activities . Dunlap about two weeks
prior to this offer saw Graver at the plant and indicated he would be
interested in returning to work for Respondent I have noted that
Respondent ' s written offer of a job was made very shortly after the
Regional Director had found that the Union did not win the election I
consider this immaterial . There is no substantial evidence that Respondent
had need for another "mold maker" prior to this time or that there was a
need for such services more than 40 hours per week , at that time.
"It appears that after Ledin 's discharge, a new foreman was not hired,
and Graver personally took a substantial part in the supervision of the tool
room
MASTER DYNAMICS CORP.
Dunlap reported early for work on March 18, and
began working as a mold maker at 8 a.m.. Within a little
more than an hour, four long term valued employees went
to or spoke to Graver and told him they would quit or
look for another job if Dunlap were retained in
Respondent's employ. Graver then went to Dunlap and
told him he would have to terminate him because the four
employees had threatened to quit if he remained. Graver
truthfully testified that the sole reason for discharging
Dunlap was the fact that four valued employees had
threatened to quit or gave notice. Dunlap's ability or past
misdeeds, substantial or insubstantial, or conduct, or past
union activity, or the nature of the four employees'
complaints had nothing to do with his discharge. It was
Graver's choice to discharge Dunlap, with a week's
severance pay, or lose four comparatively long termed and
valuable employees. When Dunlap inquired how Graver
could justify terminating him, Graver said he really didn't
have to "justify" it but he was just going to mark down
on his records "internal personal conflict."i9
Graver truthfully testified about the four employees
coming to him early in the morning of March 18, and
threatening to quit or giving notice. Three of these
employees credibly corroborated Graver's testimony in
this regard. The fourth, Jessie Kochanowski, did not
testify.30 It should be borne in mind that Dunlap was not
discharged on March 18, because of the nature of or the
quality of or the substance of the complaints these four
people had against Dunlap, but rather he was discharged
solely because they threatened to quit if Dunlap remained
in Respondent's employ." The four employees who
threatened to quit, were Sanjuan, a mold maker, who to
some extent shared in the supervision of the tool room,J3
and who had worked for Respondent since September,
1966, and appears to have been the highest paid and
longest employed employee in the tool room. Also, there
was Eleanor Bonfield, who was a long time Office
Manager, making $900 per month, who could be replaced
by a qualified person only after that new employee had
months of training. Also there was William Ricciardi who
had been employed by Respondent as its draftsman for
almost four years. Kochanowski told Graver on that
morning, that she was telling him, just as she had told
Dunlap when he was punching in, that if Dunlap stayed
she was leaving.33 She was a production worker and one of
Respondent's oldest employees. Excepting for the last
named employee, each of the other three corroborated
Graver's testimony that they threatened to quit that
morning if Dunlap stayed. Each had his or her own
complaints about Dunlap and testified at length about
them. I think it of little importance whether their
complaints were founded in fact,34 because Dunlap was not
fired because of their complaints , true or false, and in
some cases not specifically related to Graver on March
18, but because these valued employees threatened to quit
if Dunlap stayed on.
"Note that the charge herein was filed the following day.
"No explanation for not calling her as a witness was given . I do not
consider it material since I consider Graver not only to have been truthful,
but also find his testimony was well corroborated by other credited
testimony.
"There is no substantial evidence that all of them detailed their
complaints.
"I find no contention that he was a supervisor within the meaning of the
Act
"1 do not credit Dunlap's denial that he had seen Kochanowski that
morning
"1 do find, in case the Board should disagree with me , they were based
805
I have specifically credited the testimony of the three
employees who testified they threatened to quit. I believe
the reasons they gave as reasons for threatening to quit. I
shall attempt briefly to summarize their lengthy testimony
as to reasons, so that it will be clear that Respondent's
defense was not "trumped up," or part of a perjured
conspiracy.
Sanjuan testified he could not work with Dunlap
because of the pressure put on him by Dunlap. He
appeared to me to be a sensitive man, and he truthfully
testified that he was most annoyed by Dunlap's habit of
"picking his nose" with his finger while eating lunch and
by Dunlap's not mere use of dirty and obscene language
but his addressing such language at and to other people.35
Dunlap who had at least 15 years experience as a mold
maker disturbed Sanjuan, who impressed me as a
conscientious worker, from 20-25 times a day, taking up
an hour or two of Sanjuan's time that he could have spent
in productive work. I do not accept Dunlap's denials or
explanations in this regard. None of the other mold
makers so interfered with Sanjuan's work excepting in the
early weeks of their employment Sanjuan to protect
himself from criticism for poor production, kept a written
record for three days of the number of times Dunlap
interrupted him in his work in January For the three
days, the interruptions exceeded 60 1 disregard his
testimony that Dunlap was a poor mold maker because
Respondent disavows this as a reason for his discharge
and Respondent would not have rehired him as a mold
maker if it had considered him an unqualified one.36 I note
that Sanjuan signed a union representation card although
he did not vote because he overslept on the morning of the
election. Another of his complaints was that Dunlap
would take out his false teeth while they were eating lunch
together. On March 18, Sanjuan simply didn't want to
work with Dunlap anymore. He told Graver that with
Dunlap back, "I can't work here no longer."37 Bear in
mind that the specific complaints of the four employees
were not the reasons for Dunlap's discharge The reason
was their threats to quit if Dunlap remained.
Eleanor Bonfield impressed me as a sincere, sensitive,
attractive and honest witness. She is 5 feet and 10 inches
tall. She has been Respondent's Office Manager for 4 1/2
years. She testified that in all the time Dunlap worked
there, he never called her by her given name but whenever
she saw him, at least several times a week, or more, he
on fact and that these witnesses testified truthfully as to Dunlap's unseemly
conduct during his prior employment
"In his testimony , Sanjuan apoligized for using the word "lousy."
"Dunlap perhaps did not meet his high standards
"Graver admitted he lied to Sanjuan , after he told him to go back to
work , by telling Sanjuan that a Federal Law required that he put Dunlap
back to work While 1 had a little difficulty understanding Sanjuan and he
had a little difficulty understanding questions , because of his Spanish
extraction , I find no necessity for Graver' s having lied to Sanjuan At least
it indicates a desire by Graver to pacify Sanjuan and to retain Dunlap
when Sanjuan , the first , said he wouldn't work with Dunlap Graver after
mentioning the "law" said , "What can I do)" I do not find that Sanjuan
stated all his complaints about Dunlap to Graver A few days before
March 18, Graver had told Sanjuan that the "law" required him to rehire
Dunlap On March 18, Sanjuan merely informed Graver that he would
quit if Dunlap "had to be hired back." Graver then said he would look
into it and see if he could get away without rehiring Dunlap asking
Sanjuan to return to work. Before the old foreman had been fired, Sanjuan
told him he wished he 'd get rid of Dunlap Before Dunlap was laid off in
January, Sanjuan told Graver he could not work with Dunlap, although at
that time he did not threaten to quit or look for another job I find on the
credited substantial evidence of Sanjuan and Graver that on and before
March 18, Sanjuan threatened to quit if Dunlap worked for Respondent
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addressed her as "Shrimp." He also persisted in putting
his hands, which were usually dirty, on her shoulders. She
asked him to stop this conduct but he continued it. She
complained of this several times prior to Dunlap's January
28 layoff." On March 18, having known that Dunlap was
being rehired and having discussed her prior problems
with Dunlap with her husband, she saw Graver right after
Sanjuan , and told him she was giving him notice of her
intention to quit because Dunlap had been reemployed."
When Graver asked why, she told him Dunlap didn't seem
to know her name , insisted on calling her "Shrimp" and
he couldn't keep his hands off her and she had inferred
when he was laid off on January 28, that he implied she,
personally, was a thief in connection with his vacation
pay.'° When she told Graver she was giving her notice,
Graver asked her as he had Sanjuan not to do anything
then. She had told him she didn't want to work for the
same company Dunlap was working for No one else in
the plant called her "Shrimp" and she may have been
unduly sensitive about her size."
Shortly thereafter, Ricciardi who had been
Respondent's draftsman for almost four years and who
testified he "liked everybody," told Graver he was going
to leave his job. This was because during Dunlap's prior
employment, Dunlap would interfere with and adversely
affect Ricciardi's work on an average of twice a day. He
was surprised to find Dunlap back at work and he told
Graver that if Dunlap were going to be employed there,
he "was going to leave."91 Other mold makers did not
approach Ricciardi during his work but went to their
foreman or Graver." I found Ricciardi to be an honest
witness attempting to give truthful , unbiased testimony. I
find, based on his and Graver's credited testimony, that he
made his threat to quit if Dunlap remained on the
morning Dunlap returned to work. He was simply
mistaken in his affidavit as to the timing. His affidavit
was taken at the plant where his work required a great
deal of concentration. I credit his testimony at the trial
and find he simply made a mistake and did not
deliberately lie in his affidavit." I find Graver did not
solicit any reasons for Ricciardi's announcement of his
intention to quit on this morning.
As noted Kochanowski did not testify. She apparently
gave no reasons to Graver when she announced that she
would quit if Dunlap stayed. As he had with the other
three, Graver convinced her to go back to her job , saying
he would talk to her later. She had been employed by
Respondent for about four years. Kochanowski simply
told Graver she didn't like Dunlap and wouldn't work in
the same place with him."
"Note his March 18 discharge was not because of the merits of
complaints but because of threats to quit.
"Dunlap had never been reprimanded prior for substantive misconduct.
"Dunlap thought he wasn ' t paid in full.
"She very much disliked being called "Shrimp."
"I consider it immaterial that in his pretrial affidavit to a Board agent
he fixed the time of this conversation as a couple of days before Dunlap's
return to work and that he further stated he didn 't mention Dunlap to
anybody on the day he returned to work . When he testified, he had given
the matter more thought and was certain he made his threat to quit on the
morning Dunlap returned to work I consider it immaterial whether Graver
had approached Ricciardi or the latter had approached the former
"Sometimes Sanjuan.
"I do not credit Dunlap ' s uncorroborated testimony that before the
election he overheard Ricciardi, who was not in the unit , tell Wells who
was in the unit, that Dunlap is "the sh - disturber for the Union in the
plant . ." and that "the men never had it so good and they would be silly
fools if they ' re thinking of joining the Union "
"1 specifically credit Graver 's testimony to this effect.
Graver, on the morning of March 18, felt that if four of
what he considered key people in his organization felt that
strongly, that they would quit if Dunlap remained, he had
no choice but to terminate Dunlap. He made his
determination to terminate Dunlap immediately after
Kochanowski made her announcement.
After Kochanowski left, Graver went to Dunlap at his
machine, probably not much after 9 a.m., and said four
employees had threatened to quit if he stayed, and Graver
would have to terminate him. Dunlap wanted to talk to
Graver in his office and Graver agreed. They went there
and talked for about two hours. Dunlap wanted the names
of the people who had complaints about him and had
threatened to quit and wanted to know the nature of the
complaints. Graver was not willing to divulge the names
nor to specify their complaints. He had hoped that he
could bring Dunlap back and that any past complaints
would be worked out.0' Graver was not willing to bring
the four employees in to confront Dunlap. Graver told
him that since he had brought Dunlap back in complete
good faith," he would give Dunlap a,, week's severance
pay." Dunlap asked if he were being-discharged because
of his union activities, and,Graver truthfully assured him
he was not. Graver told him, truthfully, that none of the
four employees had mentioned Dunlap's union activities.
They discussed "sensitivities" and people getting along
with other people.
I reiterate the expressed or unexpressed complaints of
these four employers, true or false, had nothing to do with
Dunlap's discharge on March 18. He was discharged only
because these four key employees had threatened to quit
within about an hour after he started working if Dunlap
remained at work. It defies my imagination, and there is
certainly no substantial evidence, to find that Graver with
no charge or hint of a charge pending against him, would
rehire Dunlap with a conspiracy to have four employees
threaten to quit if he remained, and then discharge him
within less than an hour and a half after he started
working. One might suspect, as does General Counsel that
Sanjuan, Bonfield, Ricciardi and Graver engaged in a
black scheme of perjury in order to rehire and fire a past
union leader . But such is mere suspicion and not probative
and substantive evidence. To the contrary, I find these last
named four witnesses were honest and upright and
truthful.
When Dunlap asked Graver how he was going to justify
Dunlap's abrupt dismissal, Graver legitimately told him he
didn't have to justify it, but would put down on his
records, dismissed for "internal personal conflict." Graver
told Dunlap he would not discuss the four employees'
complaints with him, even if he knew what they were.09
He said he didn't know all the complaints "specifically"
but wouldn't discuss them even if he did. He told Dunlap
that since four people felt strongly enough about him to
quit if Dunlap stayed, he was forced to terminate him.
General Counsel urges that the discharge of Dunlap on
March 18, because four employees threatened to quit, is a
mere pretext particularly since Graver did not state the
complaints he knew to Dunlap, so Dunlap could defend
himself, and because Graver did not confront Dunlap with
the people who had threatened to quit. I do not so find.
"Dunlap had never been reprimanded because of prior complaints. I
emphasize that he was discharged on March 18, not because of the
complaints , but because four key employees had threatened to quit if he
stayed
"Which I find to be the fact
"Which he did
"He didn ' t know all of them
MASTER DYNAMICS CORP.
I find Graver was under no obligation to disclose the
names of those who threatened to quit or go into a
lengthy debate about the merits of such complaints as he
knew, particularly since the complaints were not the cause
of the discharge. If he had confronted Dunlap with those
who threatened to quit there might have been sharp
exchanges which might have resulted in some or all of
them quitting or being unhappy rather than valued
employees. I find Graver acted in a reasonable manner in
all the circumstances of this case One thing is outstanding
in this regard, General Counsel has failed to prove by a
preponderance of the probative and substantial evidence
that Graver or Respondent was motivated by antiunion or
anticoncerted activities animus.
General Counsel argues that Respondent never in good
faith intended to rehire Dunlap on March 18, and implies
he devised a plot to have these employees testify, as did
Graver, that they threatened to quit on that day if Dunlap
remained.SO There is no evidence to support such a
nefarious scheme. Rather the credible evidence establishes
that four key employees did, indeed, on the morning of
March 18, for good or bad reasons," threatened to quit if
Dunlap stayed, and this was good cause for Respondent
terminating Dunlap rather than losing their services.
Graver told Dunlap the truth, that he was terminating him
because four other employees had threatened to quit if
Dunlap stayed. I find Graver was under no obligation to
make an exhaustive investigation into the merits of any
reasons these four employees may have had, or to have
perhaps unpleasant confrontations, perhaps precipitating
resignations he was trying to avoid, or to discuss at any
length with Dunlap the nature of such complaints as to
807
which Graver had any information. I find Graver acted in
a reasonable manner with Dunlap, even though, perhaps,
he might have taken some other approach.
CONCLUDING F INDINGS
I conclude, based upon the entire record, that General
Counsel has failed to establish any part of his case by a
preponderance of the probative and substantial evidence.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record , I make the following conclusions
of law:
1. Respondent , at all material times, has been an
employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the
meaning of the Act.
3 The record does not establish that Respondent has
engaged in the unfair labor practices , or any of them,
alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the Board
enter an Order dismissing the complaint.
"I find they were truthful and did not commit perjury
"Excepting for Kochanowski whose reasons I don't know, they were
established as legitimate reasons in the eyes of the individuals involved