Qualitex, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1341 (N.L.R.B. 1978)

Qualitex, Inc. and Warren J. McGrath. Case I CA-
13787
August 25, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 5, 1978, Administrative Law Judge
George F. McInerny issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a brief in support thereof. Re-
spondent filed an opposition to the General Coun-
sel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
QUALITEX, INC.
briefs submitted by Respondent and the General Counsel,
I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a Rhode Island corporation engaged in
the manufacture, sale, and distribution of extruded rubber
thread at its Johnston, Rhode Island, location. During the
past calendar year, Respondent sold and shipped products
valued in excess of $50,000 directly to customers located
outside the State of Rhode Island, and in the same period,
purchased and received goods valued in excess of $50,000
directly from sources located outside the State of Rhode
Island. The complaint alleges, Respondent has admitted,
and I find that it is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY. Administrative Law Judge: This
case was heard on March 6 and 7, 1978, based on a charge
filed by Warren J. McGrath, an individual, on October 24,
1977,' and a complaint issued by the Regional Director for
Region I of the National Labor Relations Board on De-
cember 5, 1977. The complaint alleges that Qualitex, Inc.,
herein referred to as Respondent, violated Section 8(a)(l)
and (3) of the Act by discharging Warren J. McGrath from
its employment because of his activities on behalf of
United Rubber, Cork, Linoleum and Plastic Workers of
America, District No. 2, AFL-CIO-CLC, herein referred
to as the Union, and by such discharge, interfered with,
restrained, and coerced its employees in violation of their
statutory rights.
Upon the entire record in this case, including my obser-
vation of the witnesses, and after due consideration of the
Unless otherwise indicated. all dates herein refer to 1977.
1. Organization and management of respondent
Respondent is a wholly owned subsidiary of a company
called Fillattice, 2 located near Milan, Italy. The principal
shareholder of Fillattice, and the manager of its operations,
is one Angelo Menegatto. Together with his chief adminis-
trator, Delle Piane, Menegatto closely and personally es-
tablishes and directs not only the long-term general poli-
cies of Respondent but also day-to-day operations,
including hiring and firing of employees at all levels, as
well as the placement and functional use of managerial,
technical, fiscal, and clerical employees. This unorthodox
type of corporate management quite naturally produced
feelings of frustration and helplessness in Respondent's lo-
cal officials, including President and Technical Director
Richard D. Teale.
From the very beginning of his employment as president
of Respondent in February 1976, under a 5-year contract,
Teale found his recommendations unheeded and his sug-
gestions rejected, sometimes summarily and curtly. For ex-
ample, shortly after Teale was hired, Respondent's comp-
troller resigned. Teale felt that someone from the United
States should be hired, but he found that the Fillattice
management had determined that they wanted a person
from Italy for the job. Teale's protests were firmly rejected.
A second instance involved the hiring of a salesman ear-
ly in the fall of 1976. Again Teale had taken steps through
While it is described as privately held, the record does not reflect wheth-
er Fillattice is a corporation, a sole proprietorship, or some other form of
business organization. but this is not material to a determination of the
issues herein
237 NLRB No. 217
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the help of friends and newspaper advertisements to obtain
candidates, had conducted interviews, and was ready to
make a decision as to hiring, when he found that the Fillat-
tice management had decided to hire someone they had
selected without Teale's knowledge.
Relations between Teale and Respondent's local offi-
cials and Menegatto and his Fillattice associates were fur-
ther exacerbated by a general business slump during 1976
and early 1977, as well as the seeming inability of the
Rhode Island operation to attain the standards of produc-
tivity and quality or to keep costs down to the levels con-
sidered acceptable by Fillattice.
Communications between Fillattice and Respondent
were maintained through Teale's monthly formal reports,
by telegraph messages, and by telephone conversations be-
tween Rhode Island and Italy at least weekly. These con-
tacts were supplemented by personal visits to Respondent's
plant by Italian management and trips to Italy by Teale
and others.
However, despite. or maybe because of, these constant
and close personal contacts, things were not working out to
Menegatto's satisfaction. By the end of the summer of
1976, Teale admitted that Menegatto had actively assumed
the day-to-day management of the plant. At the same time,
by letter dated August 26, 1976, Menegatto transmitted to
Teale a set of specific instructions designed to bring Re-
spondent's production up to standards of profitability. The
letter makes it clear, and Teale testified that he understood,
that Respondent's operations would be very carefully and
critically studied in the ensuing 6-month period.
Apparently the improvements were not satisfactory, be-
cause in the early part of March. Delle Piane, while on a
visit to Rhode Island and in a conversation with Teale,
handed him a letter from Menegatto which expressed the
latter's continuing displeasure and directed Teale to dis-
charge Production Manager Richard Moran.
Teale was upset with this and called Menegatto on the
telephone to remonstrate with him. Menegatto's response
was short and to the point. Teale's notes quote Menegatto
as saying "quality is no good; last chance for Qualitex."
Later, after a trip he made to Italy in April 1977, Teale
himself was relieved of his administrative duties as presi-
dent of Respondent. Those functions thenceforward would
be handled by a "troika" of lower level administrators:
Cadoret, Moran's successor as production Manager: Primo
in finance: and Sullivan in sales. These three would at-
tempt to work out the Company's problems among them-
selves with, of course, Menegatto as overall director of op-
erations and final arbiter of all differences.
2. Respondent's production problems
The Rhode Island plant was built in 1973 and 1974 and
commenced production early in 1975. Teale, whose back-
ground was in chemical engineering, was brought in early
in 1976 in the hope that his technical insights could help in
the solution of production and financial problems which at
that time plagued Respondent's operations.
While the Company's financial problems were treated
only superficially in the record of this case, it is clear that
these problems were the result of continual and serious
difficulties in the production process.
To begin with, the machinery used to equip the Com-
pans's two production lines, designed for a continuous
process of production of extruded rubber threads of vari-
ous gauges, was not new, and had the additional disad-
vantages of European manufacture. with delays in obtain-
ing spare parts and difficulties in fitting even
American-made nuts and bolts into metric locations.
Further, the efficient operation of the production pro-
cess depends upon a smooth, continuous operation. The
record. however. shows that this process suffered from con-
stant and serious interruptions. These were due primarily
to human error on the part of production workers, but in
some measure from mechanical failure and changes in pro-
duction requirements due to priority orders.
The loss of production due to these factors may be ex-
pressed in two ways, first by comparing the capacity of the
plant with the amounts of thread actually produced, or by
measuring damaged or unacceptable products which are
classified as "scrap." There is evidence in this case that the
amount and percentage of scrap relative to total produc-
tion was constantly and carefully measured by the Compa-
ny, and there is an intimation by the General Counsel,
borne out in part by the testimony of Teale, that the al-
leged high percentage of scrap was advanced by the Com-
pany as one of the reasons for the discharge of Warren J.
McGrath. The company records submitted in this matter
certainly show that the 2-1/2 percent scrap level set by
Fillattice as a standard for the trade was not met very often
at Respondent's plant. From January 1977 to the time of
McGrath's discharge, the records show that only during 3
weeks did scrap levels fall below the 2-1/2 percent stan-
dards.
However, the records show also that Respondent's rec-
ord did not appreciably improve in the months that fol-
lowed, and scrap levels continued to run as high as 10 or 15
percent until September 1977 after which, with a few ex-
ceptions, the amount of scrap produced seemed to level off
at or below the 2-1/2 percent standard.
B. The Maintenance Position
McGrath was hired by Respondent on September 29,
1975, to be in charge of maintenance on a 24-hour basis. It
was stipulated by the parties that McGrath's starting rate
was $5.50 an hour. This was raised on January 12, 1976, to
$5.75; on May 1, 1976, to $6.10; and on December 20,
1976, to $6.70 an hour. At first he worked alone, but from
mid-1976 he was assigned a helper. McGrath was super-
vised directly by the production manager. From early in
1976 until March 1977, this was Richard Moran, and after
Moran was discharged, Bucky Cadoret.
The maintenance shop itself was a small, enclosed area
measuring about 8 by 10 feet in which were kept small
parts and tools. Maintenance projects of any size had to be
performed outside of the shop itself where there was a
workbench, a mechanical saw, grinders, and other equip-
ment. This area also contained pieces of equipment in vari-
ous states of repair. There had been discussions between
Moran and McGrath as to enlargement of the shop. It was
not clear who instigated these discussions. In any event,
1342
QUALITEX, INC.
nothing was done about it. This condition, where repair
work in various stages was laying about in the area around
the shop, lent an untidy appearance to the maintenance
area.
At the time he was in charge of maintenance, McGrath
was on call 24 hours a day, 7 days a week. Prior to Febru-
ary or March 1977 the plant operated on a 5- or 5-1/2-day
week and McGrath was required to perform what was
termed preventive maintenance on Saturdays and Sundays.
This involved some necessary overtime since McGrath
worked a regular 40-hour week. In addition McGrath was
on call in case of breakdowns in machinery or equipment
at any time.
C. McGrath's Union Activity
In April 1976 McGrath, together with employees Tom
Kennedy and Jim Weber, went to see the president of the
Union, Anton Campos, at the Union's offices in Warwick,
Rhode Island.3 Authorization cards and union literature
were obtained, and McGrath participated in passing out
the cards and in discussions concerning unions with em-
ployees who were, at that time, somewhat dissatisfied with
pay schedules and other working conditions.
Between April and October the Company made some
efforts to respond to the employees' dissatisfaction. These
efforts were not enough, and in October McGrath again
spoke to Campos and obtained new union authorization
cards. Returning to the plant, McGrath gave the cards to
two foremen 4 who in turn obtained signatures from 97
percent of the people in the plant.
After the cards were executed, McGrath returned them
to the Union. Sometime after that Teale called McGrath
into the office and stated that he understood that union
cards were being signed. Apparently without waiting for an
answer, Teale continued that he couldn't discuss it with
McGrath at that time because it could be "jeopardizing the
company's position."
McGrath then proceeded to discuss the Union on a
number of occasions both during and after work. He was
under the impression that everyone was in favor of the
Union and the better wages and working conditions which
would follow the Union's victory. In fact, as the parties
stipulated, the Union lost the election in December 1976
by a 17 to 2 vote.' McGrath acted as the Union's observer
in the election.
D. McGrath's Concerted Activities
Following the election McGrath, in late December 1976
organized a grievance committee 6 among the foremen and
3 The record is not clear as to the extent of McGrath's involvement in this
early organizational attempt. His testimony indicates that the took a leading
role, but later testimony by Richard Moran refers to this incident as "the
one with Mr. Kennedy." Kennedy left the Respondent's employ in the sum-
mer of 1976 under circumstances which this record does not explain.
'These foremen are not further identified (one of them may be one Vin-
cent Zonfrilli) and no evidence was presented on their supervisory status.
5General Counsel admitted that no objections were filed. An unfair labor
prtctice charge was filed in November but withdrawn on December 7, 1976.
Teale testified that the idea of an employee grievance committee was
workers.7 The idea was agreed to by management and the
committee was formed. The committee consisted of a rep-
resentative of each shift and each department, including
maintenance, and was chaired by McGrath with Produc-
tion Manager Moran acting as an "overseer." Weekly
meetings began to be held and were held regularly until
March, after which they were held less often until meetings
apparently ceased sometime in April 1977. s
There is no evidence that these meetings were conducted
in any way other than in an orderly and productive man-
ner. Further, there is no evidence that further discussions
involving McGrath and Teale were acrimonious or tinged
with hostility. Indeed there is no evidence of what, if any-
thing, was accomplished through these discussions. Mc-
Grath did testify that when Respondent began the 7-day
work schedule, he said it was too bad they couldn't get the
union cards again. He could not recall whether Moran was
present at that meeting, and there is no evidence that any-
one in management was aware that the statement was
made.
E. Respondent's Knowledge of McGrath's Union and
Concerted Activities
The General Counsel attempted to show that Respon-
dent had been made aware of McGrath's activities on be-
half of the Union and his major share in that enterprise
through statements which were made at an unemployment
compensation hearing early in February 1977, held on ac-
count of a claim by Vincent Zonfrilli, a former employee of
Respondent. Teale had attended the hearing for Respon-
dent but testified that he did not believe Zonfrilli's state-
ment that the union cards were obtained from McGrath.
Indeed, he testified that at that point, he didn't know who
was telling the truth about involvement with the Union and
who was not.
However, it is unnecessary to resolve the question
through this testimony. McGrath's own undenied and
credible testimony shows that he was not at all shy about
his involvement in concerted and union activities. As noted
above, he first proposed to Teale the formation of an em-
ployee association as early as February or March 1976. He
went to Teale, along with Kennedy, in April 1976 in con-
nection with the first union effort in the plant. He was
called to Teale's office again in October on behalf of the
Union. He acted as the Union's observer at the December
election. He participated as chairman of, if he was not the
moving force behind, the grievance committee which was
formed in December 1976 or January 1977. As chairman of
the grievance committee he met frequently with Teale and
Moran concerning matters of interest to the employees.
There is, therefore, no question but that Respondent was
raised by employees during meetings which were held under company aus-
pices during the campaign. He stated that he agreed with the idea at the
time. This testimony is not necessarily inconsistent with Mc Grath's claim
that he was the prime mover behind the grievance committee.
7Prior to the first union contact in April 1976, McGrath testified that he
had attempted to organize some kind of employees' association and that he
had gone to see Teale about it. Teale said he would get back to him and did
not. Nothing more was done about that association.
This may be related to Muran's discharge in March. There is no evi-
dence that his successor. Cadoret. ever participated in these meetings.
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware of McGrath's activist tendencies and had been so
aware since February or March 1976.
F. Respondent's Campaign Against the Union
Apparently, very little was done by Respondent in con-
nection with the Union's first attempt to organize the
plant. Teale's request to Kennedy and McGrath that they
hold off was agreed to and the matter was dropped.
With the second attempt, the Company did take actions
which involved a series of meetings with employees in the
plant and letters to employees' homes expressing the Com-
pany's strong opposition to the Union. 9
The curious feature of this activity by Respondent is that
the matter of conducting the campaign against the union-
ization of the plant was left entirely in the hands of Teale.
In the light of the control exercised by Fillattice over most
of the details of day-to-day management of Respondent,
including even placement and assignments of office cleri-
cal employees, it is difficult to believe that Menegatto and
his associates would have entrusted the entire responsibil-
ity for this most important and delicate operation to local
management. Yet I must rely on Teale's statement as cor-
roborated by the credible and forthright testimony of Rich-
ard Moran to the effect that this is precisely what was
done. Teale notified Menegatto of the advent of the Union
and may or may not have informed him of McGrath's par-
ticipation as the Union's observer at the election, but the
conduct of the campaign was left entirely in Teale's hands.
On the record in this case it appears to me that Respon-
dent's campaign was well within proper legal grounds. Cer-
tainly the evidence reveals the fact that Respondent vigor-
ously opposed the unionization of its employees. It had
every right to do this. What the evidence does not show is
any discriminatory intent or sufficient antiunion animus to
taint the discharge of McGrath, over 4 months after the
election, with illegality. N.L.R.B. v. Fibers International
Corp., 439 F.2d 1311 (C.A. 1, 1971); N.L.R.B. v. Circle
Bindery, Inc., 536 F.2d 447 (C.A. 1, 1976).
G. The Discharge of McGrath
On May 3 or 4, 1977, Mauro Primo, Respondent's comp-
troller, received a telephone call from Mr. Delle Piane of
Fillattice stating that in line with earlier decisions which
had been made in restructuring the Company and because
of a new process which was being introduced '° it was their
decision that the "maintenance area had not been handled
satisfactorily in the past, and they wanted Mr. McGrath
discharged." Primo notified Teale of this development.
Teale, for his part, was unhappy with this decision." He
I1 draw no inferences from the fact that the Union did not file objections
to the election.
01 This apparently has reference to a change in one step of Respondent's
process in which the rubber threads are coated in order to prevent their
sticking together. The old method was to pass the threads through a box of
talc, coating each thread as it passed through. The new way was more
comnplex, having the threads pass through a silicon solution and then
through ovens to dry off the moisture The machinery and equipment to
perform this operation was to be shipped from Italy and assembled at the
plant.
called Menegatto, who was visting a textile show in New
Jersey. However, he was unable to make contact. Menegat-
to called back later, spoke to Primo, and told him that he
didn't want to discuss the matter. The decision had been
made, he said; go ahead and do it.
On May 5, McGrath was called in by Teale and, in the
presence of Primo and Cadoret, was handed his letter of
dismissal.
If this were all the evidence regarding the discharge and
the reasons for it, the question would be relatively simple
of resolution. However, the matter is not at all clear. What
is clear is the fact, which I find to be a fact, that Angelo
Menegatto made the decision and conveyed that decision
to Respondent's local officers. I find further that this ac-
tion, precipitous as it was, and with no advance warning to
McGrath, was characteristic of, and fully consistent with,
Menegatto's way of doing business. He had in the past
hired people with no advance consultation and contrary to
the considered advice of Rhode Island people. In March
1977 he ordered that Moran be fired, again apparently
without advance warning. Later he downgraded Teale
from his position of executive responsibility. Finally, Men-
egatto may be seen to have interested himself in the most
trivial details of Respondent's operations.
All of the foregoing follows along in a fairly logical pro-
gression. However, General Counsel advances the argu-
ment that the reasons advanced by agents of Respondent
at the hearing are shifting and inconsistent, showing that
the real reason, or at least a contributing factor to the deci-
sion to fire McGrath, was his union and concerted activi-
ties. There seems to be some substance in this argument.
Teale, for example, testified in very general terms about
continual breakdowns, excessive costs, and problems in the
maintenance department. I do not credit his testimony that
McGrath's discharge was discussed with Moran as an al-
ternative in the maintenance situation. I rather credit
Moran's denial that discharge was ever mentioned in dis-
cussions with Teale concerning maintenance.
Mauro Primo, the Respondent's comptroller, who had
been supplied from Italy over Teale's objections, testified
credibly that after the telephone call from Delle Piane was
received early in May he, Primo, and Teale sat down and
reviewed the past months in an attempt to figure out the
reason for this action. More significantly, however, Primo
testified that he himself had reported directly to people at
Fillattice outlining his own impression of the problems Re-
spondent was encountering. There is no evidence that these
reports, both verbal and oral, some of which were critical
of the maintenance operation, were made known to Teale.
In addition to these local reports other comments on
maintenance at Respondent's plant were submitted by Ital-
ian technicians assigned to Rhode Island on a temporary
basis. Luigi Corbetta,t2 a technical production supervisor,
was at the plant for 8 months during 1976. Corbetta testi-
I1 leale testified at one point that it was his decision to fire McGrath but
added that the decision was not 'a free will one." He also testified that he
had been unhappy with McGrath's work, had spoken to him about it, and.
in conversations with Moran, had discussed discharge as an alternative in
dealing with McGrath Both Moran and McGrath deny these statements
and I credit the denials
1 ( Corbetta and Luciano Bin testified through an Italian-speaking inter-
preter
1344
QUALITEX. INC.
flied, credibly, that he had commented on maintenance
problems to Moran, but, again more significantly, he made
verbal reports directly to Menegatto concerning McGrath's
excessive time spent in the plant cafeteria and his "lack of
will" in working.
Luciano Bin, a technical production supervisor on the
same level as Corbetta, had supervised the installation of
the plant's machinery in 1974 and 1975. He returned to the
United States in March 1977, a few days before Moran left,
in order to instruct the new production manager. While
there he was faced with a number of problems in regard to
mechanical failures and quality of production. All of these
problems were considered in a lengthy report which Bin
prepared under the date of April 5. 1977. Bin returned to
Italy in April and discussed this report. which was hand-
written in Italian, with Menegatto and [)elle Piane. This
report criticized McGrath's work and the condition of the
maintenance area in the harshest and most graphic terms.
Bin then returned to the United States on May 8, with two
Italian maintenance men, to install and set up the new
silicon treatments
It is evident to me from the entire record of this case that
the discharge of McGrath was directly caused by the re-
port submitted by Bin, both orally and in writing, to Mene-
gatto and Delle Pilane early in April 1977. To be sure, a
number of other reports had been received from other peo-
ple. Menegatto's methods of administration, having a num-
ber of different people reporting on the same events inde-
pendently of each other, may be inefficient and even
whimsical, but such methods have a long history in the
affairs of humankind. The apparent inconsistency in the
reasons advanced by by different officials of Respondent
may be reconciled by noting that all of those reports went
to Menegatto. Teale, the Respondent's president. was left
to muse, as he had so often before, on the nature and the
cause of the sudden decision he was required to implement.
Then, in an attempt to rationalize an event for which no
rational explanation had been furnished him, he ascribed
the discharge to the Company's continuous reorganization
(of which, despite his 5-year contract, he was another casu-
alty).
General Counsel argues from Respondent's strong oppo-
sition to the Union as expressed in letters to employees'
homes and in meetings with employees, and in particular
from Teale's reference to the Company's own view of its
response to the campaign as a "combat," that such "dem-
onstrated hostility" colors and taints the discharge of Mc-
Grath. However, the meetings apparently were, as de-
scribed in Teale's undenied testimony, merely vehicles for
exchange of views. McGrath did not testify at all about
these meetings. The letters which are alleged to demon-
strate Respondent's hostility were not introduced into evi-
dence. I cannot in these circumstances find in the election
campaign any evidence of the kind of antiunion feeling
which could furnish the basis for an inference that the Re-
spondent's aversion to the unionization of its employees
1 I do not find that Bin's affidavit given to the Regional Office in connec-
tion with the investigation of this case is in any wa) inconsistent with this
testimony, which I credit in its entiret) If there is ans Inconsistencs it
reflects omission rather than inclusion of contradictor) materials
reflected on the discharge of McGrath. Chrysler .lirrernp
South Carolina. Inc., 224 NLRB 427 (1976).
I am also asked to infer antiunion animus on the ground
that the emploser's stated reasons for the discharge were
false. 14 [his is true, but if one reviews this Company's
methods of operation, as I have done in this Decision and
as Counsel have done in their briefs, the fact is that Teale
and Primo, the local officials who responded to the Divi-
sion of Employment Security of the State of Rhode Island
and the Regional Office during the investigation of this
matter, did not themselves know what the real reason was
for McGrath's discharge. Whatever Teale and Primo said
ma) be ascribed to their disagreement with the action or to
attempts to help McGrath to collect unemployment com-
pensation and to obtain another job. There is no evidence
that Menegatto gave shifting or conflicting reasons for the
discharge. He gave no reasons at all, and this is totally
consistent with his other actions noted in the record of this
case.
Menegatto. however, did not testify in this proceeding.
As the chief protagonist in the events culminating in the
discharge of McGrath. and in view of the evidence con-
cerning the operations of Respondent, I could draw the
inference that, if he had testified, his testimony would have
been adverse to Respondent's case.
I decline to draw such an inference for the following
reasons. First. it was not shown that Menegatto was in the
United States at the time of this hearing or that he was
otherwise available to testify. Second, I have credited the
testimony of Luciano Bin concerning his conclusions as to
the work deficiencies in McGrath's department, his April
1977 report to Menegatto, and I have drawn from that
testimony and its relation to the discharge what I consider
the real reason for this discharge. Third, I have found.
based on the unbiased and candid testimony of Moran.
that Menegatto left the entire management of Respon-
dent's campaign against the Union in the hands of Teale,
thus showing an uncharacteristic but actual lack of interest
in the U nion; and fourth, there exists the absence, as noted
above, of antiunion animus or any conduct violative of
Section 8(a)(1) of the Act. 5 N.L.R.B. v. Agawam Food
Mart. Inc.. 424 F.2d 1045 (C.A. I. 1970); GyrodVne Compa-
nv of America, Inc., 185 NLRB 934 (1970).
Thus, I find that the General Counsel has not submitted
a preponderance of evidence, based on the record as a
whole, which would allow me to find that McGrath's dis-
charge was in any way based on his union or concerted
activities.
Upon the foregoing findings of fact and upon the entire
record in this case. I make the following:
14L I1 (jrant (;inpaln \ 1 R B. 337 F 2d 447 ((' A 7. 1964), and
G 1' Mlurphl Indirrit, Irn . 179 NlRB 134 11969). are ited in support of
this issue. I find Ihese asues are clearli distiiguishable factuall; from the
instant case and are Inlpposite to this proceeding
( General Counsel urges on me two alleged incidents of 8(a\i I ) conduct
hb leale which. while barred hb Sec. IO(b) from consideration as violations
of law in this case. constitute hackground showing unlawful mori\atlin in
the discharge I do nol so find In neither instance was there an, hint of
coercion or threat these mais he leced a;s Lsolated incidents and not part
of an overall pattern of 8(a)( I conduct as i Pilos Fre, ilgh ( arrieri. In., 221
NL RB 1026 (t197). and (,;rrh,' Sulper Walrke t. Inc . 17 NI RB I I {19691
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent Qualitex, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent Qualitex, Inc., has not engaged in any
violations of Section 8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
The complaint is dismissed in its entirety.
Ie In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and reconmmended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted b) the Board and become
ils findings, conclusions. and Order. and all objections thereto shall be
deemed saised for all purposes.
1346
ORDER 16