Master Dynamics Corp.Download PDFNational Labor Relations Board - Board DecisionsJan 20, 1970180 N.L.R.B. 802 (N.L.R.B. 1970) Copy Citation 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 Copy with citationCopy as parenthetical citation