Dana Perfect Circle

National Labor Relations Board - Administrative Judge Opinions

Jan 8, 2004

07-CA-045869 (N.L.R.B. Jan. 8, 2004)

JD–88–03
St. Johns, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

DANA CORPORATION d/b/a
DANA PERFECT CIRCLE

and Case 7–CA–45869

INTERNATIONAL UNION, UNITED AUTOMOBILE
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL–CIO

TABLE OF CONTENTS

Statement of the Case.........................................................................................................1
Findings of Fact ...................................................................................................................2
I. Jurisdiction.................................................................................................................2
II. Alleged Unfair Labor Practices .................................................................................2
A. Background.......................................................................................................2
B. December 19 Suspension of Union Organizer Feldpausch ..............................3
1. Reactivated union organizing campaign and scheduled meeting ..............3
2. Feldpausch’s continuing union activity .......................................................4
3. Feldpausch’s union activity reported to Plant Manager Rinard ..................5
4. Feldpausch’s idea log.................................................................................6
5. December 19 conversation with leading union opponent Luttig .................7
6. Feldpausch’s report to Supervisor Kendall.................................................8
7. Rinard and Luttig building case for discharging Feldpausch......................10
8. Preparation of suspension document .........................................................12
9. The December 19 suspension ...................................................................13
10. Rinard’s admitted awareness of Feldpausch’s union activity ...................16
11. Mere formality of an investigation.............................................................16
12. Planned January 6 discharge of Feldpausch postponed..........................18
13. Appeal to Muskegon office and shifting reasons for discharge ................20
C. January 7 Discharge for Shifting Reasons........................................................21
D. Feldpausch’s Audiotapes of Meetings Revealed ..............................................24
E. Defenses to Shifting Reasons at Time of Discharge.........................................25
1. “No knowledge” of union activity.................................................................25
2. “Abuse and Misuse” of the Idea System.....................................................26
3. “Misconduct directed at Larry Luttig” ..........................................................26
a. Relevant circumstances ......................................................................26
b. When case arose ................................................................................28
4. Defenses based on fabricated and misrepresented evidence....................29

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F. Additional Defenses After Feldpausch’s January 7 Discharge..........................31
1. March 3, 2003 position statement and attachments...................................31
2. Accusations in attached formal pleading signed by Smeltzer ....................32
a. Smeltzer’s motivation ..........................................................................32
b. Using company equipment to do personal work .................................33
c. “Refusal to participate in team activities”.............................................34
d. Opposing work during breaks..............................................................35
e. Making gun-like gesture ......................................................................36
f. Feldpausch’s “confrontation” with Luttig...............................................36
3. Company’s motivation for belated March 3, 2003 defenses.......................37
G. Denials of Any Shifting of Reasons for the Discharge ......................................38
H. Concluding Findings .........................................................................................39
Conclusions of Law .............................................................................................................40
Remedy ...............................................................................................................................40
ORDER................................................................................................................................41
APPENDIX
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JD–88–03
St. Johns, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

DANA CORPORATION d/b/a
DANA PERFECT CIRCLE

and Case 7–CA–45869

INTERNATIONAL UNION, UNITED AUTOMOBILE
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL–CIO

Judith A. Schulz, Esq., for the General Counsel.
Michael D. Carrouth, Esq. (Ellzey & Brooks),
of Columbia, SC, for the Respondent.
Carlos F. Bermudas, Esq., of Detroit, MI, for the Union.

DECISION

Statement of the Case

MARION C. LADWIG, Administrative Law Judge. This case was tried in Lansing,
Michigan on June 25–26, 2003. The charge was filed by UAW (the Union) against Dana
Corporation d/b/a Dana Perfect Circle (the Company) on February 3, 2003 and the complaint
was issued March 27, 2003.

The Union’s organizing campaign began at the Company’s St. Johns, Michigan plant in
March 2002.1 Martin Feldpausch became a leading employee organizer after telling Plant
Manager Richard Rinard, over a disputed discipline, “I will jump on the UAW bandwagon, and I
will support it with everything I have.” Rinard’s response was, in effect, “You do what you have
to do, and I will do what I have to do. In the meantime, this meeting is over.”

In December, Feldpausch was attempting to reactivate the organizing campaign and get
more union cards signed by discrediting the rumors of quality technician Larry Luttig, a leading
opponent of the Union, that Luttig’s father-in-law—a well-respected UAW member and
community leader where many of the employees live—was against a union at the plant.

Meanwhile, Luttig reported this union activity to Rinard in “updates of what was
happening,” following Feldpausch’s two private conversations with Luttig on December 9 and 12
and a third conversation at employee Jeffrey Simpson’s work station on December 19.

Rinard suspended Feldpausch later that same day, December 19, for possible violation
of five plant rules and the workplace violence rule in the handbook. The General Counsel
contends that his discharge on January 7 was pretextual.

1 All dates are from March 2002 to January 2003 unless otherwise indicated.

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The principal issues are whether the Company suspended Feldpausch on December 19
and discharged him on January 7 because of his union organizing activity, violating Section
8(a)(1) and (3) of the Act.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Company, and Union, I make the
following
Findings of Fact

I. Jurisdiction

The Company, a corporation, manufactures piston rings at its facility in St. Johns,
Michigan, where it annually receives good valued over $50,000 directly from outside the State.
The Company admits and I find that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Background

About 2 weeks after Feldpausch attended the first union organizing meeting in March, he
told Plant Manager Richard Rinard that he was “extremely unhappy” with Rinard’s decision to
uphold on Feldpausch’s record an attendance “point” (15 of which can subject an employee to
termination) for not coming in 2 hours early at 5 a.m. on his day shift and working 10 hours,
even though the doctor excused him from the overtime because of a health problem at the time
(Tr. 12–14, 40, 100–102).

It is undisputed, as Feldpausch credibly testified, that Rinard said that “if I was that
unhappy with his decision that I probably ought to seek employment elsewhere.” Feldpausch
responded, “No, Rick, what I will do is I will jump on the UAW bandwagon, and I will support it
with everything I have.” Rinard then stated, in effect, “You do what you have to do, and I will do
what I have to do. In the meantime, this meeting is over.” (Tr. 14.)

Feldpausch signed a union card (GC Exh. 2), joined the UAW Volunteer Organizing
Committee (GC Exh. 3), and every day for about 6 weeks wore two large union buttons, one
stating “Support Your Local Union” and the other, “UAW Local 925 Voluntary Organizing
Committee.” He also passed out union flyers and about 30 or 40 union cards, took signed cards
to union meetings, and became “probably the most active supporter we had.” (Tr. 14–22, 167–
168.) Rinard admitted he was aware of Feldpausch’s union activity at that time (Tr. 427).

It is undisputed, as Feldpausch credibly testified, that in conversations he had with three
of the supervisors (Coach–Supervisor Gerald Kohagen, Quality Engineer Mike Tiedt, and
Manufacturing Manager Bruce Fandel), they told him essentially the same thing, that they felt
the Union would cause the plant to lose customers and to shut down. When Feldpausch asked
Tiedt “what have you been programmed to tell us concerning the union,” Tiedt replied, “Well
they can’t really tell us what to say, but my own personal opinions are that it is going to cost
more to make the ring, and my fear is that eventually our shop will be shut down, because we
will lost contracts to other nonunion shops.” (Tr. 27–30.)

At this time, quality technician Larry Luttig began spreading rumors about his father-in-
law, Merle Braun, a UAW member who had been appointed by the local to represent his UAW
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Local 652. One rumor was that Braun did not think the Company’s wages, benefits, and
retirement were far off from General Motors’ and that a union would not do much good. To the
contrary, as Feldpausch credibly testified on cross-examination, he believed that Braun “would
never make such a statement,” because the average line worker at GM makes between $8 and
$9 an hour more, the GM retirement is probably twice as good, and GM benefits are much
better. (Tr. 134–135, 276.)

After about 6 week, when the card signing slowed down, the union organizers “decided
to cool things down for a while and wait” (Tr. 35).

About August or September, after the Company switched Feldpausch from the day shift
(7 a.m. to 3:05 p.m.) to the third shift (11 p.m. to 7:05 a.m.), Coach–Supervisor James Kendall
gave him a “coaching session” (a form of discipline less serious than an attendance “point”) for
leaving at 5 a.m. on a Saturday morning, to allow a day-shift employee to come in earlier to get
his overtime work done. The employee had obtained the day-shift supervisor’s written approval,
“as done on a regular basis shop wide.” (Tr. 36–40).

Kendall made no response when Feldpausch told Kendall that he figured the only
reason Kendall was harassing him was an earlier incident during the union campaign (Tr. 37–
39, also Tr. 21–25, 169–171). Feldpausch appealed to Manufacturing Manager Bruce Fandel,
who sided with Kendall, and to Plant Manager Rinard, who said that the discipline on his record
“would stand” (Tr. 39–40). As Feldpausch credibly testified (not denied by Rinard, Tr. 431–433),
he told Rinard (Tr. 40–41):

I was sick and tired of Jamie [Kendall] and Bruce [Fandel] harassing me, because of my
union involvement, and I wouldn’t stand for it, and if need be, I would go over his head
and speak with his boss in Muskegon.

About 3 days later—evidently upon direction from the Company, to avoid evidence of
discrimination against Feldpausch for his union activity—Rinard told Feldpausch he felt that
Kendall was out of line for giving Feldpausch the coaching session and he had instructed
Kendall to erase it from Feldpausch’s permanent record (Tr. 41). Rinard merely testified, “I
talked to Jamie and that coaching session was removed” (Tr. 433).

After several unsuccessful union drives at the St. Johns plant (GC Exh. 16 p. 21, par. 7),
the Company was understandably cautious about permitting conduct at the plant level that could
appear discriminatory against a leading employee organizer in this latest UAW campaign.

B. December 19 Suspension of Union Organizer Feldpausch

1. Reactivated union organizing campaign and scheduled meeting

In early December, after several employees approached him about organizing again (Tr.
47), Feldpausch met with employees Gary Smeltzer, Kevin Parker, and three other union
supporters and decided to reactivate the union campaign “for what was going on in the shop.”
After making the arrangements—with Mitchell Sanford, a UAW member who served as district
shop committeeman for his local in Flint, Michigan, and with UAW Organizer Pat Manzo—
Feldpausch advised these five employees that a “relatively secret” organizing meeting was
scheduled for December 22 at the UAW hall. (Tr. 61, 68–69, 487; GC Exh. 11.)

Gary Smeltzer—then a union supporter—testified that he was “quite upset” over the
Company’s taking away the team leaders’ (75-cent an hour) extra pay, which employee Jeffrey
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Simpson had been receiving before his team-leader term expired. Smeltzer testified that he had
taken over (some of the) team-leader duties, that “I’m a full-time student,” and “I wanted to be
compensated for my extra time I was going to be spending on team leadership responsibilities.”
(Tr. 61, 342–343, 391, 514.)

Although having worked in the plant about 5 years, Smeltzer at that time was working
again as an apprentice, after his first apprenticeship was taken away in February 2001 as a
result of the Company’s outsourcing (Tr. 393–394; GC Exh. 16 p. 8).

2. Feldpausch’s continuing union activity

Meanwhile, Kevin Parker told Feldpausch that “our biggest hurdle” in reactivating the
union campaign is to control the false rumors that Larry Luttig was circulating in the shop about
his father-in-law (Braun). Feldpausch guessed that 30 percent of the work force comes from
nearby Fowler, Michigan and the surrounding area where Braun lives. Because Braun is a UAW
member who is a well-respected community leader, Feldpausch believed that “if the people in
our shop were under the impression that [Braun] didn’t think a union was good for our shop . . .
they, of course, weren’t going to sign cards.” (Tr. 64–66, 172–173, 179–180.)

Therefore, coping with this rumor problem was Feldpausch’s top priority in reactivating
the organizing effort.

As Feldpausch credibly testified, he spoke first (on December 9) to quality technician
Luttig in the Metallurgy Lab and asked “Could you tell me your father-in-law’s position on a
union in our shop?” Luttig answered that his father-in-law “didn’t feel that our wages, or benefits,
or our retirement were that far off from General Motors’, and in a nutshell, he didn’t feel it would
do a bit of good in our shop.” (Tr. 67–68.)

According to Luttig, Feldpausch came into his lab on December 9 and asked, “can I
speak to you for a couple of minutes?” Luttig testified that in the conversation, Feldpausch
asked if he had any conversation with his father-in-law regarding a union coming to the Dana
plant in St. Johns. Luttig answered, “Basically, [Braun] said judging on what he heard us talking,
myself and other family members and people he has heard in the past that he knows work
there. . . . It sounds like your wages and benefit package are based on other local shops around
here, some union and some nonunion plants within the Dana Corporation” and “what exactly do
you hope to gain by having a union come in?” (Tr. 315–317.)

Thus, according to both Feldpausch’s and Luttig’s accounts, this private conversation in
Luttig’s lab was quite friendly.

Feldpausch admitted asking at the end of the conversation, “Just out of curiosity, what is
your father-in-law’s real name?” (Feldpausch and Braun had gone to the same high school, but
“I hadn’t spoken to Mike Braun since probably 1980 or 1981.”) In fact, Feldpausch wanted to
know how to contact Braun. Luttig answered that Mike Braun’s real name is Merle. (Tr. 68, 131.)
Similarly, Luttig testified that as Feldpausch started to leave, he stuck his head in the door, said
he had not seen Braun in a long time and could not think of his first name, and Luttig said Mike
Braun’s real name is Merle (Tr. 317).

Feldpausch contacted committeeman Sanford and UAW Organizer Manzo and told them
he wanted a fax or e-mail from Braun, or to arrange for Braun to come to a union meeting in
person, to discredit what Luttig was saying about Braun (Tr. 68–71, 487–489). Feldpausch also
tried to call Braun and left a message, but Braun never answered his call (Tr. 132).
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Instead of Sanford following Feldpausch’s request, however, Sanford informed a union
official what was happening (Tr. 489–490) and Braun was called into a meeting and questioned.

On December 12, Luttig approached Feldpausch at his machines and asked to speak to
him in private. A few minutes later, Feldpausch went to Luttig’s office where they talked (Tr. 73–
74, 319.)

Luttig testified that his wife had told him that Braun had called her and said he had just
been “called into a meeting to defend himself about a complaint that the Union had received
from a Marty Feldpausch in the Dana Corporation, saying that Mike Braun was cutting down the
Union” (Tr. 318).

Luttig further testified that he told Feldpausch “I just wanted to call you in here and
personally thank you for stabbing me in the back and using me to get my father-in-law’s name,
to use me to get at my father-in-law.” Luttig then claimed that Feldpausch said, “I guess I made
a mistake. I should have approached that differently, I approached that wrong” and apologized a
total of four times (Tr. 319–321.)

Feldpausch testified that Luttig said he felt betrayed, that Feldpausch had gone behind
his back, and that he felt Feldpausch was a back-stabber. Feldpausch agreed that he
apologized to Luttig four times but, as he credibly testified, it was not for misleading Luttig into
telling him Braun’s given name. He apologized for the way things turned out—getting Braun
called in and being questioned by a union official—and told Luttig that it never was his intention
to get Luttig’s father-in-law in trouble. (Tr. 74, 136–137.)

Thus, both Luttig and Feldpausch testified that it was Luttig, not Feldpausch, who
originated this second conversation, which was held in Luttig’s office, not on the shop floor, and
that Luttig was doing the complaining to Feldpausch, who was on the defensive and repeatedly
apologized. There was no indication that either Luttig or Feldpausch was acting improperly or
hostilely in that private conversation. Feldpausch made it clear that he was engaging in union
activity, trying to discredit Luttig’s false rumors in the organizing campaign.

3. Feldpausch’s union activity reported to Plant Manager Rinard

The Company was being fully advised about what Feldpausch was then doing in his
organizing efforts. When Luttig was called as a defense witness and asked if he ever forwarded
anything to the Company “regarding this situation with Mr. Feldpausch,” Luttig revealed that he
gave the Company (presumably Plant Manager Rinard) “updates on what was happening” in the
December 9 and 12 conversations, as well as in the third conversation on December 19. Luttig
confirmed that Feldpausch apparently thought that he was spreading false rumors that his
father-in-law was “cutting the Union down, degrading them.” (Tr. 313.)

I find that Luttig made these reports directly to Rinard, particularly because Luttig, upon
returning to the plant at 10 a.m. on the December 19 day shift, reported directly to Rinard about
Feldpausch’s conversation with him earlier that morning on the December 18–19 night shift
regarding Luttig’s latest rumor in the plant, as discussed below.

Rinard obviously knew, from these “updates” on Feldpausch’s efforts to discredit Luttig’s
antiunion rumors, that Feldpausch’s purpose was to get more union cards signed in the
organizing campaign. Feldpausch would have had no other purpose for his efforts to discredit
the rumors.
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4. Feldpausch’s idea log

The Idea Program is a corporate requirement that the management try to “promote
environments for people to input ideas that are improvements to the plant facility.” The
“corporate expectation is two ideas per person per month with an 80 percent implementation
rate” for the year-end payout. (Tr. 49–50, 239–240.)

The practice at the St. Johns plant, however, was to permit employees to submit a total
of 24 acceptable ideas by the end of the year, even all in one day, to be eligible for the payout.
Lead Manufacturing Manager James Smania testified that “we told anyone that we discovered
did not have” the 24 total and “tried to encourage them and let them know they still had a few
days to get some additional ideas in so they would qualify.” (Tr. 256, 260; R. Exh. 3 pp. 1,
11,17, 22). It was merely a voluntary program, not a condition of employment.

Before Feldpausch’s third conversation with Luttig about his antiunion rumors on
December 19, Feldpausch submitted on the computer, from December 13–18, a total of 23
ideas toward the 24 ideas required for the payout (GC Exh. 5; R. Exh. 1; Tr. 49–52, 239–240,
274).

Examples of Feldpausch’s ideas are (1) an idea to improve communication and team
environment by allowing a union to come in; (2) an idea to have more paid holidays to keep up
with GM and another union employer; (3) an idea to restore the extra pay for team leaders; (4)
an idea that “if we are going to continue this silly assed idea system [permitting employees to
submitting all 24 ideas at end of year, instead two each month during the year], a person needs
to be hired who has the competence to keep it up and running”; (5) “scrap idea log system[, ]
too much time is wasted at terminals that could be spend producing parts”; (6) three separate
ideas, to replace Plant Manager Rinard “with just about anyone so that our open door policy can
actually work without all the red tape and twisted logic that goes [a]long with his thinking,” and to
replace Human Resources Manager Barbara Peterson and Manufacturing Manager Fandel; (7)
an idea that “any person above the rank of coach should be fired immediately when they have
been found guilty of having an affair, especially if the person is married [without naming
anybody], no referrals should be given, all compensation ta[ken away]”; (8) an idea that “any
investigation of harassment charges should be handled by an OUTSIDE source”; and (9) an
obvious joke, that the Company should schedule (Feldpausch’s lifelong friend) Supervisor
Gerald Kohagen, “for a makeover on the Oprah Show” because “he gets uglier every year, his
ugliness is extremely distracting” (GC Exh. 5; R. Exh. 1; Tr. 53–54, 58–60, 113–123, 204–205,
215–216, 295–297).

The Company states in its brief (at 8) that “it is important to understand that the
Company was not objecting to Feldpausch criticizing the Company or plant management.”

On the morning of December 17 (on the December 16–17 third shift), as Feldpausch
credibly testified on cross-examination, Kendall “told me that all but a couple of my ideas were
going to be rejected, and when I asked him why, he said the following night, I should be seeing
something on the board (Tr. 128–129).

That night (on the December 17–18 third shift), Feldpausch saw on the main bulletin
board a one-page notice entitled “Idea Program Guidelines” (GC Exh. 7), which stated toward
the bottom of the page, “Abuse or misuse of the Idea Program will be handled on an individual
basis.” Previously, a large sign measuring about 4 feet by 12 feet, posted on the wall in
Conference Room C, entitled “Rules for Brainstorming,” had been used by employees as criteria
for putting ideas in their idea logs. (Tr. 53–54, 111, 176–177, 205–206; GC Exh. 6.)
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Feldpausch had never seen the Idea Program Guidelines before (Tr. 128). It is
undisputed, as Feldpausch also credibly testified (Tr. 128), that the document had never been
posted on the main bulletin board (Tr. 128, 176–177, 205–206, 241–244, 474–475). Copies had
been placed from time to time “on a table near the entrance hallway” and posted in a
conference room for team meetings (Tr. 242, 246). No employees had ever been suspended or
terminated for their ideas in the Idea Program (Tr. 174–175, 204–205, 267).

Meanwhile, Simpson’s term as team leader expired, the Company did away with the 75-
cent incentive for team leaders, upsetting “pretty much everybody,” and the team was dissolved.
Simpson testified that he and (apprentice) Smeltzer picked up some Idea Program functions (Tr.
341–343).

About December 12 or 13, Simpson copied from the computer the idea lists of the seven
or eight members of his former team, to let them know how many more ideas they need to
qualify for the year-end payout. Feldpausch’s list was blank, except for the name, and Simpson
said he would need 24 ideas by the end of the year to get the payout. (Tr. 343–345.)

After Feldpausch enter his partial list on the computer, as discussed later, he not only
found that Simpson had gone into his idea list on the computer, but he also heard that Simpson
was distributing copies of the list to employees around the shop. As employee Lorraine Weber
testified (Tr. 415–416), Luttig was one of the employees showing Feldpausch’s idea log in the
shop. There is no evidence how Luttig obtained the list, other than from Simpson.

5. December 19 conversation with leading union opponent Luttig

The morning of December 19 (on the December 18–19 third shift), Feldpausch heard
about another Luttig rumor regarding his father-in-law. As Feldpausch credibly testified (Tr. 75):

It got back to me that Larry had said that when his father-in-law got done with that bitch,
[UAW Organizer] Pat Manzo, that she wouldn’t believe a fucking word that me or
anybody else associated with the Union had to say.

Soon afterward, Feldpausch went to the computer to log in some production and found
that the computer was down. On the way to ask Simpson, his former team leader, what was
wrong with the computers, Feldpausch saw Luttig talking with Simpson. Feldpausch credibly
testified that as he was walking by Luttig, he smiled, pointed at Luttig, and jokingly said, “I have
got a bone to pick with you, Mister.” He explained, “I’ve known the man my entire life, and that’s
how we talk to each other.” (Tr. 75–76, 140, 512–513.)

After Simpson responded that the network was down, Feldpausch returned to the
computer, removed his clock number, and then went back and talked with Luttig. (Tr. 76–77,
140–141.) When asked what he said to Luttig, Feldpausch credibly testified (Tr. 77–78, 516):

Q. And what did you say?
A. I said, “Larry, what kind of rumors are you circulating pertaining to your father-
in-law now?”
Q. And did he respond?
A. He said, “I don’t know what you are talking about.”
Q. And did you say anything in response?
A. Well, I tried to refresh his memory. I said, “You repeated these rumors tonight
and it got back to me very quickly, that when your father-in-law got done with Pat Manzo,
that she wouldn’t believe a word that me and anyone else had to say.”
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He responded by saying, “I don’t know what you are talking about.”
Q. Did you say anything in response, at that point?
A. We continued to talk for a little bit more . . . I could see I wasn’t getting
anywhere with Larry . . . he wasn’t willing to admit anything, so before I left . . . I did
speak with him a little bit more.
Q. And what did you say, at that point?
A. He kept denying everything . . . so I said, “Look, Larry, if there is one thing I
have learned, after 20 years of working here, it is this: The best form of rumor control is
the truth, [I have some phone calls to make] and “I will have this situation resolved when
I get in to work tonight.”

As Feldpausch further testified (Tr. 78–79):

A. My intentions were, at that point . . . to get ahold of either Mitch Sanford or Pat
Manzo and see if they could get a fax or an e-mail from Mike Braun, and bring it into
work that night, to show that everything that Larry had been saying about his father-in-
law was indeed not true.
Q. Now, during this conversation with Larry Luttig, were your voices raised?
A. Oh, no. We have to talk a little bit loud because it is a shop environment, but
no, we weren’t yelling or screaming or cussing or anything.

Simpson, the only person who overheard the conversation, testified that Feldpausch
said “he’s going to make some phone calls” and “that they would settle this [to]night” (Tr. 355),
or “getting it straightened out” (Tr. 360).

When called as a defense witness, Luttig was not asked what was said in the
conversation. Instead he was asked to related what he reported to Plant Manager Rinard later
that morning about what happened (Tr. 301–311). In that report, Luttig told Rinard (Tr. 304) that
Feldpausch said, “I am going to make some phone calls, you and I will straighten this out
tonight. I am going to make some phone calls and find out . . . what your father-in-law is saying
is or isn’t true. . . . we will get this straightened out tonight” and he turned and left.

6. Feldpausch’s report to Supervisor Kendall

After the lunch break that morning, December 19, Feldpausch went to the supervisors
office to complain to Kendall about Simpson, who was no longer his team leader, looking at his
idea list and circulating his ideas around the shop. During the discussion, both Simpson and
later Luttig were present, as well as Ryan Lynch, who was another third-shift supervisor, and
employee Gary Smeltzer. (Tr. 80, 362.) As indicated above, Smeltzer was one of the five union
supporters who met with Feldpausch in early December and decided to reactivate the union
campaign. But at some point Smeltzer turned against the Union, as discussed later.

Feldpausch, pointing to Simpson, told Kendall, “I would prefer not to have certain people
looking at my ideas and circulating them around the shop.” After a discussion, Kendall said that
if Feldpausch did not want Simpson assessing his files anymore, “then we will try to make that
happen” (Tr. 80–81). Simpson admitted saying, “fine, I won’t get in [Feldpausch’s idea log]
again. . . . I told him I would stay out of it.” (Tr. 360–362.)

Explaining why he and Luttig had gone to the supervisors office, Simpson testified that
before lunch, he and Luttig had agreed to make a report to Kendall, because (Tr. 360):

We just wanted to let somebody know this is what happened [“in case someone else had
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seen it or someone else went and talked to management”]. In no way was it to get
[Feldpausch] in trouble or anything like that. It was just an informational so [they would]
know. [Emphasis added.]

After Feldpausch and Smeltzer left, Luttig and Simpson remained in the supervisors
office to make their report to Kendall and Lynch. As Luttig reported to Rinard later that morning
(Tr. 307):

We gave two supervisors a brief rendition of what happened on the floor with Marty and I
and Jeff Simpson, and when we told them what had happened we said, we are not filing
a formal complaint, we are not trying to tattle on him, nothing like that. We are just
basically saying it was hostile and aggressive. [Emphasis added.]

Regarding Feldpausch’s conversation on the floor with Luttig, Simpson testified (Tr.
355):

I did tell Jamie [Kendall] that Marty Feldpausch had made the comment that he’s going
to make some phone calls and that they would settle this [to]night.

Simpson further claimed at the trial (Tr. 350–356) that he told Kendall and Lynch about
the “confrontation”; about Feldpausch “coming around the corner” and “you could tell just in his
walk that he was upset” and “pissed”; that you could see that Luttig “kind of backed up because
he knew something was coming”; that Feldpausch was “very loud and aggressive” and “very
stern”; that “You could tell he was angry. Finger pointing”; that “you could tell that Larry was
upset because . . . our rings come in racks, and Larry was basically rotating the rings and you
could see his hands just shaking. That’s how upset he was”; about the “aggressive nature of
how I felt the conversation looked and the aggressive nature of Marty”; and “I thought it was
extremely inappropriate.”

I discredit Simpson’s claims of what happened in Feldpausch’s “confrontation” with
Luttig. I find that he fabricated these claims to support Luttig’s claim to Kendall and Lynch that
Feldpausch was “hostile and aggressive,” yet he and Simpson “are not filing a formal complaint”
and “are not trying to tattle on him.” I discredit Luttig’s claim.

About 5 o’clock that morning, December 19, Supervisor Kendall came out to the shop
and asked Feldpausch “about the conversation that took place between myself and Mr. Luttig.”
As Feldpausch credibly testified (Tr. 81–82):

I told [Kendall] that it was a civil conversation. We weren’t yelling, screaming, or cussing,
or swearing . . . and that my intentions were to get Larry to quit lying about his father-in-
law, and that . . . what I meant by my statement, that I would have it resolved tonight, I
explained to him that it was my intention to [call] one of my union friends . . . and have
them either fax me or e-mail me a statement from Mr. Braun, stating his beliefs about a
union in our shop.

This testimony is undisputed. Kendall did not testify.

Undoubtedly Kendall—who was present that night at the beginning of the December 19–
20 third shift when Rinard suspended Feldpausch—relayed this conversation, confirming
Feldpausch’s continuing union activity, later that morning to Plant Manager Rinard, who was
scheduled to arrive between 9 and 10 o’clock (Tr. 310–311).
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7. Rinard and Luttig building case for discharging Feldpausch

That morning, December 19, on the day shift, Luttig returned to the plant about 10
o’clock and asked Rinard for a meeting. Rinard said “Sure.” Luttig testified that when he said it
was about “a confrontation I had on the floor” with Feldpausch, Rinard asked “Would you mind if
we had [Human Resources Manager Peterson and Quality Assurance Manager Larry Burke]
present also?” Luttig said “Fine, bring them in.” (Tr. 300–301, 434.) Thus, Peterson knew
firsthand what Luttig told Rinard.

Neither Peterson nor Burke testified about the meeting.

Luttig testified he reported to Rinard and the two other managers that earlier that
morning, when he was talking to Simpson, Feldpausch came around his machine and
“approached me in a very aggressive way, he was pretty upset about something. . . . Marty
come to me with arms extended, fingers pointing straight at me and he said, you and I have got
something to straighten out today, or now, or something to that effect.” (Tr. 302.)

Luttig testified he reported that later in the conversation, Feldpausch said (Tr. 304):

“[Y]ou and I will finish this alone. Just the two of us,” Marty and I. He apparently wanted
Jeff [Simpson] out of the conversation. I said, “No, let’s settle it right here and now, tell
me what is going on, tell me what the rumors are.” He said, “No, I am going to make
some phone calls, you and I will straighten this out tonight. I am going to make some
phone calls and find out . . . what your father-in-law is saying is or isn’t true. . . . we will
get this straightened out tonight” and he turned and left.

Luttig also testified he reported to Rinard (Tr. 305, 307) that after lunch that morning, he
and Simpson told Supervisors Kendall and Lynch in the supervisors office “what had happened”
and said that

we are not filing a formal complaint, we are not trying to tattle on him, nothing like that.
We are just basically saying it was hostile and aggressive. . . . we also agreed, Jeff and I
did, that if approached by Marty or if we just had contact, run into him, we would not
converse with him at all. We would just turn and walk away. The two supervisors [said]
“Yeah, that would be appropriate.” [Emphasis added.]

Luttig then added in his report to Rinard (Tr. 308):

I was still pretty upset and basically that was the end of that conversation [with Kendall
and Lynch], but before I left I was still shaken up and I told [Kendall] and Jeff [Simpson],
I am not sure if I was going to let this settle at this. The man was very hostile to me,
more so than he ever has been in the past and he is going after my family.
He told me he is going to continue going after my family, he is going to continue
this argument [to]night. . . . I am not sure what I am going to do with this, but I may take
it as far as up front. I meant up front to Mr. Rick Rinard.

Luttig further testified he reported (Tr. 310) that after he finished working that morning
and was deciding “what my next move wants to be,” he just thought—contrary to his other
testimony, discussed above (Tr. 315–317, 319–321):

[This was] the third time I have had a conversation with Marty and all three times my
family members were brought up and I asked him all three times to leave my family
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members out of it. Not only personally attacking me, he was going after my family. I can
protect me, but my family I can’t. So I decided, he has done it three times and I am going
back to report to them [alluding to his previous “updates” to Rinard of the December 9
and 12 conversations, related to Feldpausch’s organizing efforts (Tr. 313)].

The evidence is clear that this testimony about Luttig’s family is not only obviously
fabricated, but that Rinard was aware, from the Luttig’s December 9 and 12 “updates” to him,
that it was false.

Luttig next testified that when he finished his rendition of what happened early that
morning on the third shift, either Rinard or Peterson asked (Tr. 311), “Did you feel it was
threatening and intimidating or a hostile environment [emphasis added]?” Luttig answered,
giving conflicting testimony, about not being intimidated, but being threatened:

I did say I really was not intimidated by him just because I have known Marty for so
many years and how he can be. Yes, it was very hostile and it was threatening and a
very hostile environment.
I felt that not only I was being threatened, but my family members were. I wasn’t
so much concerned about myself, but the family and that is where I believe that Marty
stepped over the line by going after my family. [Emphasis added.]

Three days later, on Sunday, December 22, Luttig prepared and gave the Company a
written statement (Tr. 311–312; GC Exh. 14 p. 4), confirming that he told Rinard that he was not
intimidated, but withdrawing the claim that he and his family were threatened. He asserted
instead that he and family were “harassed”:

I stated [to Rinard, Peterson, and Burke] that I was not afraid of, nor intimidated by
Marty, only because I’ve known Marty for many years. However, another person put in
the same situation could consider it a very hostile and intimidating environment. My
actual complaint was that I feel that my family and myself are being harassed over our
views of a union coming to Dana, St. Johns. Marty Feldpausch has harassed me on
more than one occasion. These harassments have included harassing my family
members who are not even employees of Dana. Each of the last few confrontations that
Marty and I have had, have become more and more hostile and aggressive and appear
to be an attack addressed to both myself, and my family. [Emphasis added.]

I find that in Luttig’s December 19 report to Rinard, he was clearly making fabricated
accusations, in support of his antiunion campaign, to help Rinard build a case for discharging
Feldpausch, the leading union organizer. I discredit Luttig’s denial that it was ever his intention
to get Feldpausch fired (Tr. 334). By his demeanor on the stand, Luttig impressed me as being
less than candid.

When Rinard was questioned on direct examination at the trial on June 26, 2003—after
Luttig revealed, both earlier that day at the trial and also more than 6 months earlier in his
December 22 statement to the Company, that he was not intimidated—Rinard claimed that
Luttig reported how he was intimidated, testifying (Tr. 434):

It was the morning of the 19th, around 10 o’clock. Larry came in and told me that he’d
had another confrontation with Marty Feldpausch and that he felt that they were
escalating in nature and that he had tried to handle it himself, but just felt like he could
not handle it anymore and he was concerned about what could happen next.

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Rinard then gave his interpretation of what Luttig reported to him that morning—about
Feldpausch saying he was going to make some phone calls, you and I will straighten this out
tonight. . . . and find out . . . what your father-in-law is saying is or isn’t true. . . . we will get this
straightened out tonight [emphasis added]” (Tr. 304). Rinard testified that Luttig instead reported
(Tr. 434):

He . . . was concerned with the fact Marty had made the statement that I will make some
phone calls and we’ll settle this [to]night. [Emphasis added.]

8. Preparation of suspension document

Plant Manager Rinard testified on direct examination (Tr. 436):

Q. BY MR. CARROUTH: Now, after interviewing Mr. Luttig . . . what kind of
decision did you make?
A. I made the decision, with what I had heard, I couldn’t take a chance of another
confrontation, that I stayed the whole day and waited 'til third shift came in and got Jamie
[Kendall] to bring Marty up and I suspended him for the possible violation of the rules
until I could further investigate the situation, but I felt like I had to separate them.
[Emphasis added.]

To the contrary, Rinard knew from Luttig’s report to him that morning, that there was no
danger of another “confrontation.”

As indicated above, Luttig testified that he reported to Rinard that after he and Simpson
told Kendall and the other third-shift supervisor that “we are not filing a formal complaint, we are
not trying to tattle” on Feldpausch, he and Simpson agreed that (Tr. 307)

if approached by Marty or if we just had contact, run into him, we would not converse
with him at all. We would just turn and walk away. The two supervisors [said] “Yeah, that
would be appropriate.”

Moreover, Luttig testified that he reported to Rinard what Feldpausch said he was
planning to do when he came in that night, after making some telephone calls. As indicated,
Luttig reported (Tr. 304) that Feldpausch said, “I am going to make some phone calls. . . . and
find out . . . what your father-in-law is saying is or isn’t true,” and further testified (Tr. 308),
Feldpausch told me “he is going to continue this argument [to]night”—clearly not causing him to
feel that Feldpausch was “threatening and intimidating” or creating “a hostile environment.”

Thus, Luttig’s testimony obviously contradicts Rinard’s claim that from “what I had heard,
I couldn’t take a chance of another confrontation” and “I felt like I had to separate them.” I
discredit Rinard’s claim.

Luttig revealed that after he gave his December 19 report, Rinard told Luttig he was
“going to confront Marty about the conversation” at 11 o’clock that night (Tr. 323). Luttig then
called Simpson at home, and he and Simpson had “numerous phone calls” that afternoon,
calling “back and forth” (Tr. 363, 365–366). Previously that morning, as Luttig reported to
Rinard, Simpson had given Luttig his home and cell phone numbers and said he would go in
and do “whatever you want,” if Luttig took this up with Rinard (Tr. 309–310).

When Simpson was asked on direct examination if anyone encouraged him to come in
and report to Rinard, Simpson answered “No.” But he then admitted, “It was a conversation
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between Larry and I as to what we should do.” (Tr. 376.) Simpson earlier testified that “as I
agreed . . . I wanted to talk to Rick [Rinard]” (Tr. 367).

Rinard testified (Tr. 436), “I stayed the whole day [at work] and waited ‘til third shift came
in.” During that time, as the evidence indicates, Rinard had been conferring with the Company.

The evidence also indicates that, after previously overruling Rinard’s decision to
discipline Feldpausch, to avoid evidence of discrimination against him for his union activity, as
discussed above under “Background,” the Company decided this time to authorize Rinard to
suspend Feldpausch and, after the formality of an investigation, to discharge Feldpausch, to rid
the plant of this leading union organizer and put an end to his organizing efforts.

A Progressive Action Form was prepared for Rinard’s signature, dated December 19, for
“Suspension–Pending investigation” of Feldpausch, stating as reason for action: “Violation of
Plant Rules 16, 17, 18, 26, and 33, as well as violation of the Workplace Violence Policy in the
Handbook,” and stating “An investigation will be performed.” A copy of the document was
provided to Feldpausch after his discharge. (GC Exh. 8; Tr. 232–233.)

These violations of the plant rules (GC Exh. 9 pp. 55–57) include the following—but
nothing specific about “creating a hostile work environment”:

Rule 16: improper interference with production.
Rule 17: threatening, intimidating, or coercing others.
Rule 18: disorderly, disruptive, or unruly conduct.
Rule 26: wasting time or excessive visiting.
Rule 33: overall unacceptable performance.

In the work violence policy in the handbook (GC Exh. 10 p. 13), the violations include:
threatening another person’s family with harm.

9. The December 19 suspension

About 11:20 p.m. on December 19, when called to the office, Feldpausch met with
Rinard and Supervisor Kendall. Feldpausch testified (Tr. 83–84):

A. When I got to the office, I sat down and I asked what was going on, and Rick
Rinard spoke up and said, “Marty, I am suspending you for intimidation and creating a
hostile work environment.”
Q. Did you say anything in response?
A. Yeah, I said, “What are you talking about? I don’t understand what you mean.”
Q. Okay.
A. At that point . . . [Rinard] kind of slammed the table a little bit, and he says . . .
“you told Mr. Luttig that [we’ll settle this tonight] and that is a threat, and I won’t tolerate it
in my shop. . . . You are suspended until further notice.” [Emphasis added.]

I find that the words “we’ll settle this tonight” were the words Rinard used, as Rinard
interpreted Luttig’s report earlier that day (Tr. 434). I find that Feldpausch erroneously recalled
that Rinard said “you told Mr. Luttig that you were going to have this situation resolved tonight.”
As Feldpausch credibly testified, to have it or the situation “resolved tonight” was what he told
Luttig and what he later reported to Supervisor Kendall about 5 o’clock that morning.

Both Feldpausch and Rinard testified that Rinard cited violations (or possible violations)
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of the five rules and the workplace violence section in the handbook—without informing him
what he may have done to violate them, except Rinard’s statement that Feldpausch threatened
Luttig by telling him, “we’ll settle this tonight.” Rinard admitted he did not ask Feldpausch “for his
side of the story.” (Tr. 86–89, 454).

After Rinard sent Kendall out to get Feldpausch’s belongings for him to leave the plant,
as Feldpausch credibly testified (Tr. 84–85):

I said, “Rick . . . you know as well as I do that this doesn’t have anything to do with what
happened out on the floor, but it has everything to do with the ideas I put in the idea log
and my union activity.”
Q. Did he say anything in response to that?
A. Yes, he said, “This has nothing to do with your union activity or your idea log.
This has only to do with what happened out on the shop floor.”

By Feldpausch’s demeanor on the stand, he impressed me most favorably as a truthful,
forthright witness, doing his best to recall accurately what had happened.

Feldpausch then stated that “This whole thing is just hilarious.” Rinard responded, “Well,
I got a feeling it is not going to be so fun for you when it is all said and done.” Feldpausch
asked, “Is that some type of threat?” Rinard answered, “No, that is not a threat.” (Tr. 85.)

Rinard gave the following version of the December 19 suspension—omitting any
reference to the reason he stated for suspending Feldpausch: that he told Luttig “we’ll settle this
tonight” and that is a “threat,” thereby intimidating Luttig and creating a hostile work environment
(Tr. 436–437):

Q. And what, specifically, did you tell Mr. Feldpausch in that meeting?
A. I told him that he was being suspended for possible violation of Items 16, 17,
18, and I think at that time we had 26 and 33 in there, along with the potential of the
workplace violence rule.
Q. Did you give him any facts to support what you meant by violating those rules,
the underlying facts that would support a possible violation of those rules?
A. I didn’t go into a bunch of details because it was right away getting out of
hand. You know, he was turning it around that I was threatening him and I just wasn’t
going to get anywhere, so I just give him what he—what I was suspending him for until
we could do further investigation.
Q. And, when you told him he was being suspended, did he respond in any way?
A. Yeah. He told me he was going to have fun with this one.

Thus, Rinard did not deny that Feldpausch said his suspension “has everything to do
with the ideas I put in the idea log and my union activity.” Neither did Rinard deny that he
responded, “This has nothing to do with your union activity or your idea log. This has only to do
with what happened out on the shop floor.”

I find Rinard’s failure to deny this testimony is most significant, for three reasons.

First, Feldpausch’s undisputed testimony, that Rinard responded that the suspension
“has nothing to do with your union activity,” demonstrates that Rinard was award that
Feldpausch’s was engaged in union activity.

Second, contrary to the Company’s later contentions, Rinard stated that the suspension
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“has only to do with what happened out on the shop floor.”

Third, Feldpausch’s idea log had been brought to Rinard’s attention (Tr. 482). Yet, there
is no reference to his idea log in the suspension document, which was prepared when, as
Rinard testified: “I stayed the whole day and waited 'til third shift came in”—undoubtedly
conferring with the Company regarding the contents of the suspension document.

Particularly in view of the Company having previously overruled Rinard’s action against
Feldpausch “to avoid evidence of discrimination against Feldpausch for his union activity,” I find
that the Company decided to omit any reference to Feldpausch’s idea log for the same reason.

As found, 2 days earlier on the morning of December 17, when Feldpausch asked
Supervisor Kendall why “all but a couple of my ideas were going to be rejected,” Kendall “said
the following night, I should be seeing something on the board.” Then that night (on the
December 17–18 third shift), a one-page notice entitled “Idea Program Guidelines” (GC Exh. 7)
appeared on the main bulletin board for the first time. It stated toward the bottom of the page,
“Abuse or misuse of the Idea Program will be handled on an individual basis.”

The Company evidently decided that if it were to suspend Feldpausch for his idea log,
that soon after it posted the Idea Program Guidelines on the main bulletin board, the posting
would appear to have been for a discriminatory purpose. As elicited on cross-examination,
Feldpausch suspected that the Company’s purpose in posting the guidelines was “to try to use it
against me” (Tr. 129–130).

I find that the Company had decided not to discharge Feldpausch for “abuse” of the Idea
Program when authorizing Rinard to suspend and discharge him.

Remaining in the office still longer after suspending Feldpausch that night, Rinard had
Jeffrey Simpson brought to the office to follow up Luttig’s report that morning. At 11:45 p.m.,
Simpson agreed to have his statement recorded on an audiotape (Tr. 367–368, 376, 437).

A transcript of the tape (R. Exh. 5) demonstrates how Rinard was seeking evidence to
support his suspension of Feldpausch. His questions included several leading questions:

Page 1: “Do you think Marty was threatening and intimidating Larry last night?”—
to which Simpson answered, “Very much so. . . . a very aggressive conversation.”
Page 1: “A hostile environment?”—to which Simpson answered, “Very much so
. . . Marty [said] he was going to make phone calls to certain individuals. . . . and that
‘[to]night you and I will settle this.’ And it was the finger pointing . . . toward Larry that
‘you and I will settle this [to]night.’”
Page 3: “I’m asking did Marty threaten or intimidate Larry Luttig last night?”—to
which Simpson answered, “By all definition I would say yes.”

I discredit Simpson’s answers. He was obviously most willing to support the Company’s
cause, regardless of the facts. He was one of the antiunion employees, willing to join Luttig’s
antiunion campaign. He was then on probation for falsifying a document. As he revealed in a
formal pleading that the Company prepared for his signature, as discussed below (GC Exh. 16
p. 15, par. 7):

In 2002 [that same year], I was disciplined by the Company for allegedly falsifying a
document. As a result, I was suspended and put on probation for one year. The incident
happened during the first part of 2002. I disagreed with this decision and this discipline.
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10. Rinard’s admitted awareness of Feldpausch’s union activity

Rinard admitted being aware, before he suspended Feldpausch on December 19, that
Feldpausch was engaging in what amounted to union activity.

Rinard testified on cross-examination (Tr. 454–456):

Q. . . . Now you knew, based on what Larry Luttig told you [on December 19
about his conversation earlier that morning with Feldpausch], that the conversation and
the issue that was the situation between Marty and [you] involved . . . the union, correct?
A. No. Not at all. . . . Union activity, to me, is the buttons that’s been discussed,
handbilling, going to meetings. [The conversation] that took place, to me, has nothing to
do with union activities.
. . . .
Q. . . . but you knew that this conversation involved the union, correct?
A. If it doesn’t fit my definition of union activity, I’m saying no.
. . . .
Q. So [Luttig] explained to you that Marty had come up to him and . . . the
discussion centered around the fact that . . . Larry Luttig felt like his father-in-law was
being harassed because Marty was trying to find out whether [the father-in-law] had said
anything negative about the union, isn’t that true?
A. That’s what he said. [Emphasis added.]

Thus, Rinard admitted awareness that Feldpausch was engaged in union activity, trying
to find out whether Luttig’s father-in-law was making negative statements about the Union, for
the obvious purpose of discrediting Littig’s antiunion rumors and enabling the Union to get more
cards signed.

11. Mere formality of an investigation

Before Feldpausch’s suspension on December 19, team development–impact leader
Sandra Harr had already delivered to Human Resources Manager Peterson her written
statement, dated December 17, which read (R. Exh. 4; Tr. 281):

Marty Feldpausch came into my office and asked, “Now what’s going on with my ideas?”
I responded to him “What do you mean?” Marty replied, “If my idea aren’t going to count,
I want to know why. I feel these are my thoughts, genuine ideals and I feel they are
100% implementable.” (With the exception of the idea he turned in regarding Jerry
Kohagen physical features.)
. . . Marty asked me to pass the message on to [Lead Manufacturing Manager]
Smania. . . . I told Marty I would. . . .
. . . Marty presented himself in a loud, physically close, defensive manner.
[Emphasis added.]

Although Peterson did not mention it in her testimony, on December 23, as Smania
credibly testified, he made an oral report to the plant PCL, consisting of Rinard, Peterson, and
other staff, that on December 18, the day after Feldpausch’s conversation with Harr,
Feldpausch apologized to Harr and Smania, stating “he was sorry for how he had addressed
[Harr] yesterday, that he was upset, that he didn’t mean to take it out on her, and that he was
sorry” (Tr. 251–253).

Meanwhile Luttig prepared and gave the Company his December 22 written statement,
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confirming what he had reported to Rinard on the morning of December 19, before
Feldpausch’s suspension (GC Exh. 14; Tr. 312–313). As found, Peterson was present on
December 19 when Luttig made that report to Rinard (Tr. 301).

Peterson’s investigation consisted of her interview of Feldpausch on Monday, December
23, the day before the Company’s 9-day Christmas–New Year shutdown, from December 24 to
January 1 (Tr. 275).

Feldpausch credibly gave this brief testimony about the interview (Tr. 90):

Q. Okay. And what happened at this meeting?
A. They asked me to explain my side of it, exactly what happened out on the
floor, and that is exactly what I did.
Q. What did you tell them?
A. I explained to them that the conversation [on December 19 with Luttig] didn’t
last that long. There was no violence, there were no threats . . . and that I was just trying
to put a stop to the rumors that Larry [Luttig] was circulating about his father-in-law.
Q. Did Larry Burke or Barb [Peterson] say anything in response?”
A. Not really too much. They . . . both nodded their heads as I was speaking, and
they really seemed to understand what I was talking about and sympathized with me.

Later, on rebuttal, he testified that Peterson told him in the December 23 meeting that
she “was just here to gather information,” that it was an “informational hearing,” and that “We
spent approximately 30 minutes in there and I would dare say 29 minutes of that I was talking”
(Tr. 523).

Regarding what happened on the shop floor, Peterson testified (Tr. 467–469):

Basically, I told Marty that we were there to discuss the events that had occurred the
other evening. . . . Basically Marty [Feldpausch] related that there were some issues
between he and Larry [Luttig] in regards to some rumors that, apparently, had been
floating around the plant. . . . He said that he was trying to substantiate rumors, whether
they were true or untrue. . . . basically, in regards to statements that were supposedly
made by Mike Braun that were derogatory toward the Union and that he had contacted
several people to report those kinds of things to union officials and he was still trying to
get to the bottom of the matter. . . but that Larry really did not want to discuss the
situation with him or give him the answers he was looking for.

By this testimony, Peterson was admitting knowledge of Feldpausch’s union organizing
activity, endeavoring to discredit Luttig’s rumors of UAW member Braun’s derogatory
statements about the Union, for the obvious purpose of getting more union cards signed.

Despite this admission, Peterson later testified (Tr. 472–473):

Q. BY MR. CARROUTH: At the time that you had this meeting with Mr.
Feldpausch, were you aware of the union activity in the plant?
A. No.
. . . .
A. Marty made a statement in regards to that.
Q. And what was that statement?
A. He said that . . . there’s no union activity going on right now and, if there were,
I would not be a part of it.
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Even if Peterson meant to deny only her awareness of any active union campaigning in
the plant, as earlier that year in March and April, I discredit her claim that Feldpausch said
“there was no union activity going on” and that he “would not be a part of it” if there were. She
had just admitted that he had told her in the investigation about the “issues” between him and
Luttig regarding [Luttig’s] rumors of Braun’s derogatory statements about the Union—obviously
to discredit the rumors, to advance the Union’s organizing campaign.

After Feldpausch was recalled for rebuttal, he credibly testified that “O, no,” he never
said to Peterson in a disciplinary meeting that he was “not engaged in any union activity,” and
“certainly not,” he did not tell Peterson that there “was no union organizing going on” (Tr. 509).

Peterson did not testify that she made any further investigation after she interviewed
Feldpausch.

Meanwhile, as Luttig testified, he called the Company during the Christmas break (from
December 24 through January 1) and “I was told [Feldpausch] would not be back, whatever the
date was I first reported back” (Tr. 324). Thus, Luttig confirmed that the Company had already
decided to discharge Feldpausch.

I find that when the Company authorized Rinard to suspend Feldpausch, it also
authorized him to discharge Feldpausch, after the mere formality of an investigation.

12. Planned January 6 discharge of Feldpausch postponed

On Monday, January 6, after returning from vacation, Feldpausch called the shop and
was told the Company had been trying to contact him. He asked for a meeting, stating he
wanted to present additional information. He met with Rinard, Peterson, Burke, and his witness,
employee Marta McGraw. (Tr. 91, 443.)

In the meeting, Feldpausch gave the managers a fax, on UAW President Stephen P.
Yokich letterhead, from district shop committeeman Sanford. The fax stated, in part, that
Feldpausch had called Sanford “to see if he could contact Mike Braun to clear up [Luttig’s]
rumors . . . which is why statements were made that the whole thing would be cleared up tonight
meaning that through contacts between Marty and M. Braun that the truth could come out
nothing more.” (Tr. 91; GC Exh. 11.)

Rinard glanced at the fax, handed it to Peterson who read it thoroughly, and she handed
it to Burke, who also read it thoroughly. Then, as Feldpausch credibly testified (Tr. 92–93):

At that point—after Rick asked me if there was any additional evidence that I
wanted to add, I said, no, not really, but I wanted to get a few facts straight right now.
I said, “My suspension and . . . this whole disciplinary action, where they are
concerned, I need to know if they have anything to do with my ideas that I put in the idea
log, or my union activity.”
All three of them agreed that they did not have anything to do with either my
union activity or my ideas in the idea log.
I then reiterated again, I said, “So what you are telling me now is that they didn’t
have anything to do with it.”
At that time, Barb Peterson spoke up and said, “No, Marty, this was only—”
something to this effect; it might not be her exact words, she said, “This only has to do
with what happened on the floor. . . . out on the shop floor . . . [the] conversation
between myself and Mr. Luttig.”
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After the meeting, McGraw made notes on what was said (Tr. 224). When questioned on
cross-examination about her notes (Tr. 221–224), she confirmed Feldpausch’s testimony that
the Company said at the meeting that the investigation did not have anything to do with either
his ideas or the union drive. She credibly testified (Tr. 223–224):

Q. [BY MR. CARROUTH]: Now, it is your testimony today, that in the meeting on
January the 6th, that Mr. Feldpausch asked if the investigation had anything to do with
his ideas, or his involvement in the union drive, both of those?
A. Yes.
Q. And is it your testimony that the Company said, that it didn’t have anything to
do with either one of those?
A. That’s correct.

The Company did not ask to see the notes.

When Rinard testified, as a defense witness, about this January 6 meeting on direct
examination (Tr. 445–446), he was not asked any questions about Feldpausch’s credited
testimony—that Rinard agreed with Peterson and Burke that neither Feldpausch’s union activity
nor his idea log was involved—nor about Feldpausch’s credited testimony that Peterson spoke
up and said that only his conversation with Luttig on the shop floor was involved. Neither was
Rinard asked anything about McGraw’s testimony.

Instead, Rinard was asked if Feldpausch, or “Mr. Braun” (meaning McGraw), asked any
questions. Rinard answered that “I think they wanted to know what all we were investigating?”
and that Peterson responded “several different things . . . various violations of the plant rules
. . . . many different things, not one single thing . . . . a lot of different things” (Tr. 445–446). I
discredit this testimony.

I find that Rinard fabricated this testimony, given at the trial on June 26, 2003—months
after the January 6 meeting—then knowing that by the next day, January 7, the Company had
changed its position and relied on Feldpausch’s idea log and other conduct away from the shop
floor as reasons for discharging him, as discussed later.

Moreover, as found, the Company had already decided on the discharge when it
authorized Rinard to suspend Feldpausch.

Regarding the fax that Feldpausch brought in, Rinard testified that he thought it was
irrelevant because it was signed by Sanford, not Braun (Tr. 444–445)—even though the fax
confirmed that Feldpausch had called Sanford to discredit Luttig’s rumors that Braun was
making statements against union representation at the plant.

After the discussion, Rinard, Peterson, and Burke took a brief break, for them to discuss
this additional information. Feldpausch and McGraw waited outside the room. As they were
walking back in, after about 5 minutes, Rinard stated that McGraw would not be allowed in the
meeting because “she was allowed there through the disciplinary process, but not allowed there
for the final decision.” (Tr. 94.)

Feldpausch did not agree to McGraw’s exclusion, and Peterson spoke up and said, “We
can’t continue this meeting with Marta present. This meeting is effectively over.” Feldpausch
asked, “So, you are going to tell me the results of your investigation by mail, then?” Peterson
answered, “That will probably happen.” (Tr. 94–95.)

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Therefore, the Company’s plan to discharge Feldpausch at the January 6 meeting was
frustrated when the dispute arose over whether he was entitled to have his witness present.

Thus, as found, Rinard and the two other managers agreed at the January 6 meeting
that neither Feldpausch’s union activity nor idea log was involved, Peterson stated that only
Feldpausch’s conversation with Luttig on the shop floor was involved, and Rinard testified that
he considered Sanford’s fax to be irrelevant.

In view of this evidence and the admission in Peterson’s January 7 discharge letter (GC
Exh. 12 p. 2) that “we attempted to set up a meeting with you on Friday, January 3, 2003 to
conclude this matter,” I find that the Company had planned to discharge Feldpausch at the
January 6 meeting, based on Luttig’s and Simpson’s fabricated testimony about Feldpausch’s
conversation with Luttig on the shop floor.

13. Appeal to Muskegon office and shifting reasons for discharge

After the January 6 meeting, Feldpausch telephoned Mark Stewart, the director of
human resources at the Muskegon office of Dana Perfect Circle, Dana Corporation. Stewart had
“responsibility for overseeing human resources programs and practices for our various plants,
including St. Johns, Michigan.” (Tr. 236–237, 508.)

As Feldpausch credibly testified, he called Stewart because of his concern that he would
be terminated because of his union activity (Tr. 508–509).

Stewart testified (Tr. 236) that Feldpausch presumably called “to appeal to my position”
in Muskegon and that the conversation lasted maybe 10 or 15 minutes. Stewart then revealed
why he was called to testify: to corroborate Human Resources Manager Peterson’s testimony.
Stewart testified:

Relatively early in the discussion [Feldpausch] brought up the issue of the union
campaign in the plant and his statement to me was that it had fizzled out and there was
nothing going on and he didn’t personally support it.

Stewart also testified (Tr. 236–237) that he was already “aware of the suspension of
[Feldpausch] for various infractions of company rules.” Thus, this indicates that Peterson had
been discussing Feldpausch’s suspension with Stewart, her superior in Muskegon.

Undoubtedly, Peterson had reported to Steward not only Feldpausch’s union fax earlier
that day, but also what Feldpausch said in her December 23 interview of him, describing how
Feldpausch was engaged in union organizing activity, endeavoring to discredit Luttig’s antiunion
rumors, obviously to get more union cards signed.

Moreover, Feldpausch credibly testified on rebuttal (Tr. 508):

Q. [BY MS. SCHULZ]: And did you ever tell Mark Stewart that there was no
union drive, apparently, going on?
A. Oh, no. no. There would be no reason for me to tell him that. In fact, I made it
emphatically clear that the reason I am calling [him] is that . . . I got suspended and that I
will eventually be terminated because of my union activity.

Therefore, I discredit Stewart’s claim that Feldpausch told him there was no union
activity going on and that he did not support the Union.
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By the next day, January 7, the Company shifted its reasons for discharging Feldpausch.
Evidently the Company—upon learning that Feldpausch had produced the fax in the January 6
meeting, confirming his continuing union activity—decided again to overrule a decision that
Rinard made (to proceed with the discharge as planned) and decided it was advisable to assert
further reasons for discharging Feldpausch, including his so-called “mocking and abuse” of the
Idea Program.

I note that when Rinard was asked on direct examination “who made the decision to
discharge Mr. Feldpausch?” he answered, “I guess me” (Tr. 449).

C. January 7 Discharge for Shifting Reasons

On Tuesday morning, January 7, Feldpausch called the shop, stated he wanted to get
this over with, and asked for a meeting. The meeting was scheduled for 11 a.m. As shown in
italics in the discharge letter, quoted below (GC Exh. 12, paragraph 9), “The matter . . . was not
concluded until today,” clearly referring to the Company’s shifting its reasons for discharging
Feldpausch. The meeting was with Rinard, Peterson, and Burke. (Tr. 95.)

In the meeting, Peterson read Feldpausch the long, 11-paragraph discharge letter, dated
January 7 and signed by Peterson (GC Exh. 12; Tr. 95–96).

The January 7 discharge letter cites, in paragraph 8, Feldpausch’s so-called “mocking
and abuse of the Idea System” as a reason for the discharge—even though, as found, (a) the
Company had decided before the suspension not to discharge Feldpausch for “abuse” of the
Idea Program, (b) Plant Manager Rinard had assured Feldpausch on December 19 and again
on January 6 that his idea log was not involved, (c) the Idea Program is merely a voluntary
program, not a condition of employment, (d) no employees had ever been suspended or
terminated for their ideas in the Idea Program, and (e) the Company states in its brief that it
“was not objecting to Feldpausch criticizing the Company or plant management.”

The discharge letter omits any reference to Rinard’s stated reason for suspending
Feldpausch on December 19—that Feldpausch told Luttig that morning that “we’ll settle this
tonight” and that is a “threat,” which “I won’t tolerate it in my shop.”

The discharge letter states in paragraph 5 that “We have also interviewed a number of
people and have taken appropriate statements [emphasis added].” Yet, the evidence shows that
the Company had only three statements in writing.

The first statement, dated December 17 (R. Exh. 4), is Harr’s written statement, which
reports that Feldpausch went to her office and defended the ideas in his idea log, except his
idea “regarding Jerry Kohagen physical features.” In the last line of the statement, Harr
concluded only that “Marty presented himself in a loud, physically close, defensive manner”—
nothing about Feldpausch being aggressive, hostile, or intimidating.

The second (R. Exh. 5 pp. 1, 3) is the transcript of Simpson’s recorded statement, given
to Rinard a few minutes after Rinard suspended Feldpausch on December 19. In the interview,
Simpson readily agreed with Rinard’s suggestions, made in asking him leading questions.
Simpson answered “Very much so” to the question whether “Marty was threatening and
intimidating Larry [Luttig] last night,” and that “It was . . . a very aggressive conversation.” To the
question, “A hostile environment?” Simpson again answered, “Very much so.” Then when
Rinard repeated, “I’m asking did Marty threaten or intimidate Larry Luttig last night?” Simpson
answered, “By all definition I would say yes.” As found, these answers are discredited.
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The third (GC Exh. 14) is Luttig’s December 22 statement, repeating clearly fabricated
accusations against Feldpausch in his December 19 report to Rinard, to help the Company build
a case for discharging Feldpausch.

As purported—but not explained—reasons for discharging Feldpausch, paragraph 8 of
the discharge letter refers to:

(1) Feldpausch’s “behavior towards other employees”—perhaps referring to his
complaint to Harr in her office on December 17 (R. Exh. 4), although he apologized the
next day to Harr and Smania for how he addressed her when he was upset about his
ideas not being counted (Tr. 251–252), and to his complaint in the supervisors office on
the morning of January 19 that Simpson, who was no longer his team leader, was
looking at his Idea List and circulating his ideas around the shop.
(2) The “perception of other employees concerning your behavior”—perhaps
referring to employees Lorraine Weber’s and Kevin Bradley’s pre-suspension criticism of
Feldpausch’s idea log and attitude (Tr. 414–421, 422–426).
(3) Feldpausch’s “disruptive behavior in other work stations”—perhaps referring
to his civil conversation with Luttig at Simpson’s work station and to Harr in her office,
because there was no actual “disruptive behavior” in the shop.
(4) Feldpausch’s “creating a hostile environment”—perhaps referring to Luttig’s
and Simpson’s discredited accusations.

Regarding the Company’s determination in paragraph 8 of the discharge letter that
Feldpausch violated the workplace violence section of the handbook (against threatening
another person’s family with harm), the Company was referring to Luttig’s fabricated report to
Rinard on December 19 that Feldpausch was “[n]ot only personally attacking me, he was going
after my family. I can protect me, but my family I can’t.”

The January 7 discharge letter, signed by Peterson, reads (GC Exh. 12):

[Paragraph 1] It as our desire to provide you with this letter so that there is no
misunderstanding of our position concerning the matters described below.
[Par. 2] On December 19th you were suspended for possible violation of several
plant rules and the Workplace Violence section of the Handbook following a chain of
events [emphasis added—without any reference to “we’ll settle this tonight” being a
“threat”] that occurred on the evening of December 18th [morning of December 19]. You
were told that we would be conducting a complete investigation of those events.
[Par. 3] Prior to the events of December 18th and 19th the Plant Operating
Committee was investigating your use and possible abuse of the Idea System. The Idea
System is a corporate objective for continuous improvement in Dana facilities and is a
company system used here at the St. Johns Plant. It is an essential element of Dana’s
corporate culture.
[Par. 4] It appeared that some of the ideas put in the system were disparaging
and debasing other employees [emphasis added—although no employees were named
in Feldpausch’s idea log]. Before we could even complete that investigation the events
of December 18th [on the December 18–19 third shift] occurred. Those events gave
precedent to the investigation involving the possible violations due to concerns for
protecting the work environment and safety of our employees [emphasis added].
[Par. 5] A thorough investigation has been conducted. During that investigation
we have considered all that you had to say on December 23, 2002. We have also
interviewed a number of people and have taken appropriate statements [emphasis
added]. We have carefully reviewed all of the information we have gathered. I would
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emphasize that we have spent a good deal of time on the investigation as we do not
take these matters lightly.
[Par. 6] On January 6th, 2003 you informed me by telephone that you had
additional evidence which you wanted to produce. We provided you the opportunity to
produce that evidence to us in a meeting at the plant on the afternoon of January 6,
2003, with your witness, Marta McGraw present. We have reviewed the additional
evidence and do not find that it materially changes the substance of the investigation.
[Par. 7] After full consideration of the investigation, we have determined that
while the evidence did not suggest a violation of each and every rule or policy initially
cited to you, that violation of several rules did, in fact, occur.
[Par. 8] We did find sufficient cause to determine that Plant Rules 16 [improper
interference with production], 17 [threatening, intimidating, or coercing others], and 18
[disorderly, disruptive, or unruly conduct] were violated [omitting Rule 26 for wasting time
or excessive visiting and Rule 33 for overall unacceptable performance], as well as the
Workplace Violence section of the Handbook. This was due to the nature of your
behavior towards other employees, the perception of other employees concerning your
behavior, disruptive behavior in other work stations, creating a hostile environment, as
well as the mocking and abuse of the Idea System and disparagement of other
employees [although no employees were named] in its use [emphasis added].
[Par. 9] The investigation process, while seeming to be somewhat lengthy, could
not be rushed and demanded careful consideration of all the facts and circumstances.
Mitigating our scheduling was the plant shutdown which occurred in the middle of this
whole process. In addition, we attempted to set up a meeting with you on Friday,
January 3rd, 2003 to conclude this matter [emphasis added], but you were unable to
attend. Therefore another meeting time was set up for January 6th, 2003 at which time
we attempted to conclude this matter. The matter, however, was not concluded until
today [emphasis added].
[Par. 10] We have considered the fact that multiple rules and/or policies have
been violated. In addition, we have considered the impact of your conduct on other
employees in the workplace in general. This review has occurred within the context of
your actions in entering nonsensical items into the Idea Program, some which were
debasing and demeaning to coworkers [emphasis added—although, as indicated, no
employees were named in Feldpausch’s idea log]. In view of these factors, it has been
determined that your employment with Dana is terminated effectively immediately,
January 7, 2003.
[Par. 11] If you have any personal items in a work station or your locker, please
let us know what these items are so that we can make sure they are retrieved and sent
you.

Peterson then gave Feldpausch a copy of the letter, discharging him (Tr. 96).

Thus, the Company discharged Feldpausch for obviously shifting reason. I find this
discharge, without any mention of his efforts to discredit Luttig’s rumors, was pretextual.

In the January 7 meeting, after being discharged, as Feldpausch credibly testified (Tr.
97, also Tr. 152–155):

I said, “Guys, what will happen if Mr. Luttig takes back everything that he said about his
father-in-law and about me, what is going to happen to my employment status then? Will
I get my job back?
Q. BY MS. SCHULZ: Did anybody respond?
A. . . . I believe one of them said, “I guess we will have to cross that bridge when
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we come to it,” or something like that.
Q. And why did you ask that question?
A. . . . Patty [UAW Organizer Pat Manzo] and I had discussed possibly having
Mitch [Sanford, who sent the fax that Feldpausch presented to the Company the day
before] come to one of our meetings, and since. . . the first meeting [referring to the
union meeting scheduled for December 22] had already taken place, and a series of
meetings for the future were already scheduled, I figured that we could get Mike Braun
[Luttig’s father-in-law] to possibly come to one of the meetings, and straighten out all of
these rumors.

Although there was obviously nothing threatening about Feldpausch’s inquiry, Rinard
called Luttig at home, awakening him. As Luttig testified, Rinard stated that Feldpausch had
been terminated and before he left, he asked “what would happen to me or my job if Larry Luttig
were to come back and change his story or just take his whole story back . . . would I get my job
back?” (Tr. 324–325.)

Then, as Luttig further testified, Rinard told me “they took it that it could possibly be a
threat because why in the world would I change my story unless somebody is putting pressure
on me?” (without suggesting how). Luttig said he responded, “I don’t know if it is something of a
threat [emphasis added], or what, it sounds to me like it very well could be a threat.” (Tr. 325.)

Rinard was obviously seeking a pretext for not reinstating Feldpausch, if the discharge
were found to be unlawful.

D. Feldpausch’s Audiotapes of Meetings Revealed

As the 2-day trial on June 25–26, 2003 progressed, there were two serious obstacles to
the Company’s plans for proving its defenses in the January 7 discharge letter.

The first obstacle was on the first day of the trial when, as found, the evidence reveals
that Plant Manager Rinard told Feldpausch that “you told Mr. Luttig that we’ll settle this tonight
and that is a threat, and I won’t tolerate it in my shop. . . . You are suspended until further
notice,” and also told Feldpausch, “This has nothing to do with your . . . idea log” and “This has
only to do with what happened out on the shop floor.”

Later on the first day of the trial, Feldpausch testified that in a meeting on January 6, the
day before the Company asserted additional reasons for his discharge, Rinard, Human
Resources Manager Peterson, and Quality Assurance Manager Burke all agreed that the
disciplinary action “did not have anything to do with . . . [his] ideas in the idea log,” and Peterson
told him that it only had to do with what happened on the shop floor in his conversation with
Luttig.

This contradicted much of the evidence the Company had planned to introduce with its
defense witnesses.

The second obstacle was on the second day of the trial, when the Company presented
its defenses. Employee Kevin Bradley, one of the Company’s subpoenaed witnesses who
testified before “Rick” Rinard did at the trial, testified that Feldpausch had shown him a copy of
Feldpausch’s idea log, that he had warned Feldpausch that “this is never going to fly,” and that
Feldpausch stated that Rinard “couldn’t touch him because he had several tapes . . .
audiotapes, of previous meetings with Rick [emphasis added]” (Tr. 423).

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Bradley further testified that “I’m not prepared for this because I was just subpoenaed
yesterday [the first day of trial],” and “I told the lawyer yesterday, I says, [Feldpausch’s idea] that
really stood out in my mind was about Gerry Kohagen [the joke about Feldpausch’s lifelong
friend getting “uglier” every year]” (Tr. 424–425).

Thus, the Company was put on notice, at least before Rinard testified—if not when the
Company subpoenaed him on the first day of the trial, before any defense witnesses testified—
that Feldpausch had audiotapes of meetings with Rinard.

There is no explanation for Rinard not disputing the evidence about what he told
Feldpausch in the suspension meeting on December 19 and what he and Peterson assured
Feldpausch in the meeting on January 6, other than his knowledge that Feldpausch may have
audiotapes that could be used to disprove any denials that he might make.

Near the end of the trial, after being called as a rebuttal witness, Feldpausch credibly
testified on cross-examination (Tr. 525):

Q. [BY MR. CARROUTH]: And . . . did you prepare any type of statement or
summary?
A. I believe it was shortly after I talked to Patty Manzo. She told me she wanted
me to review all my tape recordings. See, I taped recorded most every conversation that
I had with these people. And she said that I probably won’t be able to use them in court,
but . . . go through them, review them, and use them for your notes. . . . it was actually
after I got terminated. . . . approximately January 8th. [Emphasis added.]

The Company did not request to review the audiotapes.

E. Defenses to Shifting Reasons at Time of Discharge

1. “No knowledge” of union activity

The Company’s contends in its brief (at 3, also at 19–22) that it “had no knowledge that
Feldpausch was engaging in any union activity during the time leading up to his suspension and
termination.”

To the contrary, as found, although there was no active organizing campaign in the plant
at the time, before Feldpausch’s suspension on December 19, Plant Manager Rinard was fully
aware that Feldpausch was engaged in union activity, by attempting to discredit Luttig’s rumors
about his father-in-law’s antiunion statements, for the obvious purpose of enabling the Union to
get more cards signed.

In fact, as found, Rinard admitted being aware that Feldpausch was engaging in what
amounted to union activity, based on what Luttig reported to him on December 19, confirming
that Feldpausch’s discussion with Luttig in the shop earlier that morning centered around
Feldpausch’s efforts to discredit Luttig’s rumors that his father-in-law was making negative
statements about the Union.

Rinard’s testimony—that the conversation had “nothing to do with union activities,”
because “Union activity, to me is the buttons that’s being discussed, handbilling, going to
meetings”—is not credible.

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2. “Abuse and Misuse” of the Idea System

As its first listed defense in its brief (at 6) for discharging Feldpausch, the Company cites
“1. Feldpausch’s Abuse and Misuse of the Idea System.”

In doing so, the Company ignores Feldpausch’s credited, undenied testimony that on
December 19, when Plant Manager Rinard suspended him, Rinard assured him that “This
[suspension] has nothing to do with your . . . idea log.”

The Company also ignores Feldpausch’s credited, undenied testimony that on January
6, the day before his discharge, Rinard agreed with Peterson and Burke that the disciplinary
action “did not have anything to do with . . . [his] ideas in the idea log.”

Moreover, there is no reference to Feldpausch’s idea log in the suspension document.
As found, the evidence indicates that the Company had no intention to discharge Feldpausch
for “abuse” of the Idea Program at the time the suspension document was prepared.

Thus, on the night shift of December 17–18 (before Feldpausch’s suspension on the
December 19–20 night shift), the Company had posted on the main bulletin board, for the first
time, the Idea Program Guidelines, which provided that “Abuse or misuse of the Idea Program
will be handled on an individual basis.”

As found, the Company undoubtedly decided that if it were to suspend Feldpausch for
his idea log—that soon after it posted the Idea Program Guidelines—the posting would appear
to have been for a discriminatory purpose. As elicited on cross-examination, Feldpausch
suspected that the Company’s purpose in posting the guidelines was “to try to use it against
me.”

I find that the Company’s belated claim on January 7 that it was relying on Feldpausch’s
idea log as a reason for discharging him is a clear pretext.

3. “Misconduct directed at Larry Luttig”

a. Relevant circumstances

As its second listed defense in its brief (at 8) for discharging Feldpausch, the Company
cites “2. Feldpausch’s Misconduct Directed at Larry Luttig.”

The relevant circumstances, as found in detail above, are as follows.

In early December, Feldpausch met with five other employees and decided to reactivate
the UAW organizing campaign, which had begun earlier that year in March. At the time,
Feldpausch believed “our biggest hurdle” in reactivating the campaign was to control the false
rumors that quality technician Larry Luttig was circulating in the shop, that his father-in-law
(Merle Braun, a UAW member who is a well-respected community leader where many of the
employees live) is against a union at the plant.

On December 9, Feldpausch had a friendly private conversation with Luttig in his lab and
asked “Could you tell me your father-in-law’s position on a union in our shop?” and about Mike
Braun’s real first name. After the meeting with Luttig, Feldpausch contacted Sanford, a UAW
member who served as district shop committeeman for his local in Flint, Michigan, and UAW
Organizer Manzo and told them he wanted a fax or e-mail from Braun, or to arrange for Braun to
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come to a union meeting in person, to discredit what Luttig was saying about Braun.

Later that week, Luttig’s wife told him that Braun had been “called into a meeting to
defend himself about a complaint that the Union had received from a Marty Feldpausch in the
Dana Corporation, saying that Mike Braun was cutting down the Union.”

The second conversation was on December 12, when Luttig asked Feldpausch to speak
to him in private, in Luttig’s office. A few minutes later Feldpausch went to Luttig’s office, where
Luttig complained about Feldpausch stabbing him in the back by getting Braun’s first name “to
get at my father-in-law.” Feldpausch apologized a total of four times, stating it was never his
intention to get Braun in trouble. There is no indication in their testimony that either of them was
acting improperly or hostilely in this private conversation.

Meanwhile Luttig, in support of his antiunion campaign, was giving Plant Manager
Rinard “updates” on what was happening in the December 9 and 12 conversations, related to
Feldpauch’s efforts to discredit Luttig’s antiunion rumors, for the obvious purpose of getting
more union cards signed in the organizing campaign.

Feldpausch’s December 19 conversation with Luttig—at employee Simpson’s work
station in the early morning on the December 18–19 third shift—was their only conversation on
the shop floor about Luttig’s rumors. It was overheard by only one employee, Simpson. The
conversation concluded when Feldpausch said, “Look, Larry, if there is one thing I have learned,
after twenty years of working here, it is this: The best form of rumor control is the truth.” He then
said, “I have some phone calls to make” and “I will have this situation resolved when I get in to
work tonight.”

About 10 o’clock that morning, December 19, Luttig returned to the plant and reported to
Rinard that Feldpausch told him in the conversation:

I am going to make some phone calls, you and I will straighten this out tonight. I am
going to make some phone calls and find out . . . what your father-in-law is saying is or
isn’t true. . . . we will get this straightened out tonight.

Rinard misconstrued this and gave his own interpretation of Luttig’s report. Instead of
acknowledging that Luttig reported that Feldpausch said, “I am going to make some phone calls,
you and I will straighten this out tonight” and that he would find out “what your father-in-law is
saying is or isn’t true,” Rinard claimed that Luttig reported that Feldpausch stated:

I will make some phone calls and we’ll settle this [to]night. [Emphasis added.]

After Luttig completed his report, in which as found, Luttig “was clearly making fabricated
accusations, in support of his antiunion campaign, to help Rinard build a case for discharging
Feldpausch, the leading union organizer,” Rinard claimed as follows:

Q. BY MR. CARROUTH: Now, after interviewing Mr. Luttig . . . what kind of
decision did you make?
A. I made the decision, with what I had heard, I couldn’t take a chance of another
confrontation, that I stayed the whole day and waited 'til third shift came in and got Jamie
[Kendall] to bring Marty up and I suspended him for the possible violation of the rules
until I could further investigate the situation, but I felt like I had to separate them.

To the contrary, as found, Rinard realized from Luttig’s report to him that morning that
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neither Luttig nor Simpson construed what Feldpausch said to be a threat. Luttig revealed in his
report to Rinard that after Feldpausch’s conversation with him early that morning, Luttig and
Simpson told Supervisors Kendall and Lynch in the supervisors office that “we are not filing a
formal complaint” against Feldpausch and “we are not trying to tattle on him, nothing like that.”

As indicated, I discredit Rinard’s claim that “from what I had heard, I couldn’t take a
chance of another confrontation” and “I had to separate them.”

I also reject the Company’s clearly unfounded contention in paragraph 4 of its January 7
discharge letter (GC Exh. 12) that the events on the morning of December [19] caused concerns
for “protecting the . . . safety [emphasis added] of our employees.”

b. When case arose

The evidence clearly shows that this case arose when Plant Manager Rinard suspended
Feldpausch that night, December 19, after Rinard stayed at the office the whole day and, as
found, received the Company’s authorization to suspend Feldpausch and to discharge him after
the formality of an investigation.

About 11:20 p.m. that night, after calling Feldpausch to the office, Rinard said, “Marty, I
am suspending you for intimidation and creating a hostile work environment.” When Feldpausch
asked, “What are you talking about? I don’t understand what you mean,” Rinard responded:

You told Mr. Luttig that we’ll settle this tonight and that is a threat, and I won’t tolerate it
in my shop. . . . You are suspended until further notice.

On January 7, after going through the formality of an investigation, the Company shifted
its reasons for the discharge and gave Feldpausch a long, 11-paragraph discharge letter,
omitting any reference to this purported threat.

Previously, soon after the latest union organizing drive began at this St. Johns plant in
March 2002, as found, Feldpausch told Rinard, over a disputed discipline, “I will jump on the
UAW bandwagon, and I will support it with everything I have.” Rinard’s response was, in effect,
“You do what you have to do, and I will do what I have to do.”

During Feldpausch’s active campaigning for the Union, three of the supervisors told him
they felt the Union would cause the plant to lose customers and to shut down. When he asked
one of them “what have you been programmed to tell us concerning the union,” the supervisor
replied, “Well they can’t really tell us what to say, but my own personal opinions are that it is
going to cost more to make the ring, and my fear is that eventually our shop will have to shut
down, because we will lost contracts to other nonunion shops.”

Later, about August or September, after Rinard told Feldpausch that Kendall’s
disciplinary coaching session on Feldpausch’s record “would stand,” Feldpausch told Rinard
that he was tired of Kendall and Manufacturing Manager Fandel harassing him because of his
union involvement and that if need be, he would go over Rinard’s head and speak with his boss
in Muskegon.

About 3 days later, Rinard told Feldpausch he had instructed Kendall to erase the
discipline from Feldpausch’s record. As found, the Company had overruled Rinard’s decision to
uphold the coaching session, to avoid evidence of discrimination. After several previous
unsuccessful union drives at the St. Johns plant, the Company was understandably cautious
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about permitting conduct that could appear discriminatory against a leading union organizer.

Then, on the day of Feldpausch’s suspension, as found, the Company decided to omit
any reference to Feldpausch idea log in the suspension document, for the same reason.

Later, on January 6, after Feldpausch produced a fax on union stationery confirming his
union activity, the Company overruled another decision by Rinard—this time his decision to
ignore the fax and to proceed with the discharge based of Luttig’s and Simpson’s fabricated
claims against Feldpausch—and decided it was advisable to assert additional reasons for
discharging Feldpausch, including his so-called “mocking and abuse” of the Idea Program.

Under all the circumstances, including the Company’s shifting reasons for the discharge,
I find that because of Feldpausch’s continuing union activity, the Company, as a pretext, seized
on Rinard’s false claim that Feldpausch had threatened Luttig—by telling him “we’ll settle this
tonight”—and authorized Rinard to suspend Feldpausch and to discharge him after the formality
of an investigation, to rid the plant of this leading union organizer and stop his organizing efforts.

4. Defenses based on fabricated and misrepresented evidence

In its brief, the Company completely ignores Rinard’s telling Feldpausch on December
19 that he told Luttig that morning that “we’ll settle this tonight,” that is a “threat,” that “I won’t
tolerate it in my shop,” and “You are suspended until further notice.”

Instead, the Company’s brief relies on its version of Luttig’s and Simpson’s fabricated
and discredited accusations, to paint an unwarranted picture of Feldpausch’s conduct.

In doing so, the brief ignores two facts. One, Feldpausch’s “confrontations” on the early
morning of December 19, before his suspension that night, took place in only two places: with
Luttig at Simpson’s workplace, outside the hearing of any other employee, and in the
supervisors office, involving only one employee, Simpson. Therefore, his conduct did not create
a “hostile work environment.”

Two, Feldpausch’s only other “confrontation” was 2 days before his suspension, in the
office of employee Sue Harr. The following day Feldpausch apologized to Harr and Smania,
stating “he was sorry for how he had addressed [Harr] yesterday, that he was upset, that he
didn’t mean to take it out on her, and that he was sorry.” This, of course, did not create a “hostile
work environment.”

Feldpausch’s only conduct affecting Luttig’s family was after his private meeting with
Luttig on December 9, when he called district shop committeeman Sanford and UAW Organizer
Manzo to request that they get a fax or e-mail from Braun, or arrange for him to come to a union
meeting, to discredit what Luttig was saying about him. All the accusations that Feldpausch
harassed, intimidated, threatened, or was going after Luttig’s family are discredited fabrications.

The Company contends in its brief and accuses Feldpausch as follows:

Page 2, that Feldpausch was terminated for “creating an hostile environment.”
Page 9, that Feldpausch was gathering information about Luttig’s father-in-law to
carry out his plan of “harassing and intimidating Luttig and his family,” that he was
“harassing and threatening Luttig by going after his family,” that “Feldpausch confronted
Luttig at work in a threatening and intimidating manner,” and that he “approached Luttig
in a very hostile and aggressive manner.”
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Page 10, that “Feldpausch was very aggressive and confrontational,” that he was
“acting in an angry, hostile manner,” that his actions were “inappropriate, threatening,
and hostile,” that Luttig “perceived Feldpausch’s actions as a threat,” that Feldpausch
“told [Luttig] he is going to continue going after [his] family,” that he was “Not only
personally attacking” Luttig, but “he was going after [Luttig’s] family,” and that Luttig’s
“confrontations” with Feldpausch had “escalated to the point where [Luttig] could not
handle it himself anymore.”
Page 11, that “Feldpausch confronted Simpson in a loud and aggressive
manner” and that Simpson “felt Feldpausch’s actions were hostile and very intimidating.”
This accusation clearly misrepresents Simpson’s testimony (Tr. 357–358) as well as his
statement on the transcript of the audiotape (R. Exh. 5 par. 1) of his December 19
interview by Rinard. It referred to Feldpausch’s first so-called “confrontation” with
Simpson, at Simpson’s work station before Feldpausch returned and “confronted” Luttig.
There is no indication in Simpson’s testimony or in his statement on the transcript that
Feldpausch confronted him in “a loud and aggressive manner, or that he “felt
Feldpausch’s actions were hostile and very intimidating” toward him.
Page 11, that Feldpausch also “confronted Simpson in a very hostile and
threatening manner” and was “threatening Simpson.” This accusation clearly
misrepresents Simpson’s testimony (Tr. 360–362), regarding his second “confrontation”
with Feldpausch in the supervisors office, where Simpson admittedly told Feldpausch,
“fine, I won’t get in [Feldpausch’s idea log] again. . . . I told him I would stay out of it.”
Page 12, that Feldpausch’s “confrontation of Simpson was just another attempt
by Feldpausch to create a hostile working environment” and was “offensive . . . hostile
and threatening,” which clearly are further misrepresentations, and that “Feldpausch
aggressively and inappropriately confronted Sue Harr,” was “very loud and aggressive,”
and was “overall very intimidating” (bases on her claims at the trial, Tr. 280, 286–292),
which clearly contradict her December 17 written statement (R. Exh. 4) that “Marty
presented himself in a loud, physically close, defensive manner.”
Page 18, “Feldpausch engaged in physically aggressive and intimidating conduct
in the workplace” and “creating a hostile work environment at the plant,” which are
repetitions of such fabrications.
Page 39, that Luttig “was consistently harassed and threatened by Feldpausch at
work,” that Luttig testified about the “escalating nature of Feldpausch’s confrontations
with him on the floor,” that Luttig believed “Feldpausch was harassing his father-in-law,”
that Feldpausch’s confrontation “was very hostile and it was threatening and a very
hostile environment,” and that Luttig and Simpson decided to report Feldpausch’s
conduct to management “because it was very hostile, very aggressive.”
Page 40, that Feldpausch was “Not only personally attacking” Luttig, but “he was
going after [Luttig’s] family,” that “he created a hostile work environment,” and that
“Feldpausch’s actions were threatening, very hostile and very intimidating.”
Page 41, that Feldpausch’s conversation with Luttig “was a very hostile and
aggressive conversation.”

The Company contends in its brief (at 2) that the General Counsel is “attempting to focus
the case on what Feldpausch contends was an innocent effort to gather information [emphasis
added]” to “confirm whether a coworker’s father-in-law, who was a member of the [Union], made
statements that allegedly disparaged the [UAW].” This contention, I find, reveals the Company’s
accurate assessment of what the evidence shows actually happened.

I find that it is the Company—through the multiple repetitions of unfounded defenses in
its brief—is “attempting to focus the case” away from Rinard’s false statement that Feldpausch
threatened Luttig by telling him “we’ll settle this tonight.” As found, the Company seized on this
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false claim as a pretext and authorized Rinard to suspend and discharge Feldpausch after the
formality of an investigation, to rid the plant of this leading union organizer and stop his
organizing efforts.

F. Additional Defenses After Feldpausch’s January 7 Discharge

1. March 3, 2003 position statement and attachments

On March 3, 2003, after the charge was filed on February 3, 2003, and after the Union’s
reactivated organizing union drive failed after Feldpausch’s January 7 discharge (GC Exh. 16 p.
12, par. 27), the Company filed its position statement, entitled “Response to Request for
Information” (GC Exh. 16 pp. 1–7).

The position statement asserts, “I am sure your investigation will establish that
Feldpausch engaged in physically aggressive and intimidating conduct in the workplace
[omitting any reference to creating a hostile work environment] and engaged in conduct outside
of the workplace that involved threatening family members of a coworker” (GC Exh. 16 p. 3)—
without making any reference to Feldpausch’s purported “mocking and abuse of the Idea
System.”

The Company also makes no direct reference in the position statement to a defense that
Feldpausch used the Company’s machining equipment during regular work time to do personal
work. Instead, the Company includes this defense in an attached document (GC Exh. 16 pp. 8–
13), dated March 3, 2003 and signed by employee Gary Smeltzer, accusing Feldpausch of this
and other purported misconduct not cited in the reasons for discharging him in the Company’s
January 7 discharge letter.

That March 3, 2003 document signed by Smeltzer, and also attached documents signed
by employees Jeffrey Simpson and Larry Luttig, likewise dated March 3, 2003 (GC Exh. 16 pp.
14–19, 20–23), are formal pleadings, prepared by the Company and filed in defense of the
charge with “UNITED STATES OF AMERICA BEFORE THE NATIONAL RELATIONS BOARD
REGION 7,” in the matter of “DANA CORPORATION” and “UAW INTERNATIONAL UNION,
CASE 7–CA–45969–1.”

As prepared by the Company, all three formal pleadings include a statement that under
the plant rules, employees can be discharged for creating a hostile work environment—one of
the stated reasons for discharging Feldpausch—although there is nothing specific in the plant
rules about creating a hostile work environment (GC Exh. 9 pp. 55–57).

The Company attached to the formal pleading signed by Luttig, the statement Luttig
prepared and presented to the Company on Sunday, December 22 (GC Exhs. 14 and 16 pp.
24–27).

The Company did not attach to the formal pleading signed by Simpson, the transcript (R.
Exh. 5) of the audiotape of his interview by Rinard on December 19, a few minutes after Rinard
suspended Feldpausch. As found, that transcript shows that Simpson agreed with suggestions
made in Rinard’s leading questions, testifying that he thought “Marty was threatening and
intimidating Larry last night,” that Feldpausch created a “hostile environment,” and that “By all
definition,” he would say that Feldpausch did “threaten or intimidate Larry Luttig last night.”

The company-prepared formal pleading that Simpson signed omits the references to
Rinard’s leading questions.
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Paragraph 11 of this formal pleading signed by Simpson (GC Exh. 16 pp. 15–16) is
based on the third paragraph of the audiotape transcript of Simpson’s December 19 interview by
Rinard (R. Exh. 5 p. 1). That third paragraph concerns Feldpausch’s approaching Simpson at
Simpson’s work station (before Feldpausch returned later and “confronted” Luttig) and asking
Simpson “who a woman named Pat was.” It contains nothing about Feldpausch confronting
Simpson “in a very loud and aggressive manner,” or about Feldpausch being “demanding” or
“intimidating and hostile.”

In preparing this formal pleading, however, the Company worded paragraph 11 to state
(GC Exh. 16 pp. 15–16):

11. Early on 3rd shift on December 18, Marty confronted me and started asking
me a number of questions in a very loud and aggressive manner. Marty was demanding
that I tell him who a woman named Pat was. . . . During this confrontation, he was
aggressive and was raising his voice. I considered the way in which Marty approached
me to be intimidating and hostile. [Emphasis added.]

I find it obvious that the Company inserted these fabrications to support a defense that
Feldpausch intimidated and was hostile to Simpson, as well as Luttig. I reject this belated
defense as a pretext.

2. Accusations in attached formal pleading signed by Smeltzer

a. Smeltzer’s motivation

The evidence does not reveal why or when Smeltzer turned against the Union. As found,
he was one of the employees who met with Feldpausch in early December when they decided
to reactivate the union campaign.

Smeltzer had been working about 5 years, but was still working as an apprentice
because his first apprenticeship has been taken away in February 2001 as a result of the
Company’s outsourcing—causing him to be “quite upset.” He testified that he put in “two or
three or four” sarcastic ideas (in the Idea Program), including one stating “why don’t we just
outsource the whole damn tool crib to Olympian Tool,” and that “my coach pulled me in and he
coached me on the ideas.” (Tr. 393–394, 411–412.)

He testified that he was “quite upset” again over the Company’s taking away the 75-cent
extra pay for the time he was going to spend on team leadership responsibilities and wrote a
formal resignation letter resigning his team leadership duties. But then “I just, basically, come to
my senses and thought it was pretty selfish of me to, basically, drop my responsibilities and
leave my team hanging like that” (Tr. 391).

At the trial, Smeltzer gave conflicting testimony.

For example, Smeltzer insisted, “I did not want to see Marty [Feldpausch] lose his job”
(Tr. 401), “I didn’t want to see Marty get fired, lose his job” (Tr. 403), and “I didn’t want to see
him get fired” (Tr. 405). Yet he earlier testified, “I volunteered my information because I thought
it was the right thing to do” (Tr. 397–398).

Obviously Smeltzer, like Simpson, was then one of the antiunion employees. Clearly his
motivation for “volunteering my information” was to support the Company’s decision to
discharge Feldpausch. I discredit his denials that he wanted to see him discharged.
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b. Using company equipment to do personal work

Never before mentioned as a reason for discharging Feldpausch, is the following
accusation which the Company included in the March 3, 2003 formal pleading that it prepared
for Gary Smeltzer to sign (GC Exh. 16 p. 10):

16. Another example of how Marty would refuse to follow the rules involved him
using the company’s machining equipment to do personal work. I am sure everybody in
the plant understands that you are not supposed to use the company’s equipment for
personal work. Also, you are not supposed to do personal work during your regular work
time. I know Marty has done this.

Later in the formal pleading (GC Exh. 16 p. 10), the Company included the following
statement:

25. On January 3, 2003, I was called to a meeting with Rick Rinard, Barb
Peterson, and Larry Burke. At this meeting, I was asked to report anything I knew about
any incident between Marty [Feldpausch], Larry [Luttig], and Jeff [Simpson]. During the
meeting, I reviewed all of the information in the previous paragraphs.

Although Smeltzer made a number of changes in, and added material to this formal
pleading which the Company prepared for his signature, he signed it without correcting the
statement that “I was called to a meeting with Rick Rinard, Barb Peterson, and Larry Burke.”

There was no purpose for the Company to call Smeltzer into a meeting on January 3,
because it had previously decided to discharge Feldpausch and had planned to discharge him
on that date. As indicated, Smeltzer revealed that he “volunteered” his information, testifying (Tr.
397–398):

Q. BY MR. CARROUTH: Were you ever asked to meet with Rick Rinard
regarding the incidents with Larry Luttig and Jeff Simpson?
A. Actually, I volunteered the information [“because I thought it was the right thing
to do”].

In any event, paragraph 16 of the March 3, 2003 formal pleading that Smeltzer signed
indicates that Smeltzer reported Feldpausch’s use of company equipment to do personal work
to Rinard, Peterson, and Burke on January 3. That was 3 days before the three managers met
with Feldpausch on January 6, when they made no mention of such an accusation. It was 4
days before the Company discharged Feldpausch on January 7, after revising its grounds for
discharging him.

As found, the revised grounds the Company cited for discharging Feldpausch are
included in the long, 11-paragraph January 7 discharge letter (GC Exh. 12), which states that
the Company has “taken appropriate statements,” referring to Luttig’s and Harr’s written
statements and the transcript of the audiotape of Simpson’s statement. Although Smeltzer
testified, “I believe [his January 3 report] was documented” (Tr. 407), the Company did not have
him sign a statement or make a transcript of an audiotape containing the information (Tr. 409). If
the Company had intended to rely on this accusation as a reason for discharging Feldpausch, it
undoubtedly would have documented the information with a written statement or a transcript.

There is nothing in the discharge letter referring to his using company equipment to do
personal work.
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Assuming that Feldpausch did use some kind of company machining equipment to do
personal work, Smeltzer’s testimony clearly reveals why no reference was made to it in the
January 7 discharge letter.

Smeltzer testified that he witnessed Feldpausch doing this “many times [emphasis
added] from the first time I was in my apprenticeship,” which ended in February 2001 (Tr. 394,
398). He later testified that “when I witnessed Marty using the lathes in the back, leaving his
machines not running during work hours, not break, not lunches, I told that to Jamie [Kendall],
yes, I do” and “Like I said, I reported when I witnessed Marty using the company, you know,
resources in the back, I did report that to Jamie” (Tr. 402, 404). Yet, according to Smeltzer,
Feldpausch continued to do so.

Feldpausch was a senior employee, hired in 1983 (Tr. 9). Apparently Feldpausch’s
performance on the job was appreciated. Lead Manufacturing Manager James Smania testified
that Engineer Charles Bertram had told him that Feldpausch “is very creative on his operation
and he probably made several improvements to the machines.” (Tr. 255.)

I find that the Company’s practice of permitting Feldpausch, a senior employee, to use
company property for personal work, would be the reason that Smeltzer’s accusation was not
included in the January 7 discharge letter as a reason for Feldpausch’s discharge. The
Company would not discharge Feldpausch for doing something it had been permitting him to do.

I therefore find that Rinard’s testimony (Tr. 451), that Feldpausch’s “working on personal
items on company time and equipment” was one of the reasons he discharged him, is a pretext.

c. “Refusal to participate in team activities”

In paragraphs 10 and 11 of the March 3, 2003 formal pleading that the Company
prepared for Smeltzer’s signature (GC Exh. 16 pp. 9–10), Smeltzer accuses Feldpausch of
refusing to participate in team activities if the job assignment “was not part of the standard
operating procedure (SOP),” for example, his refusal to take part in a team project to document
“inverted pit marks.”

This incident involving invert pit marks occurred in November, before Simpson’s term as
team leader expired and before the Company took away the team leaders’ 75-cent extra pay,
nobody on the team wanted to be team leader, and the team was dissolved in early December
(Tr. 61, 371).

Simpson’s team had been involved in “a turnaround with the third shift B & K’s,” doing
different projects outside the regular operating procedure (R. Exh. 5 p. 2).

Simpson explained that in “[o]ne of the projects I was involved with” in November, the
“team was trying to figure out how many pip marks were actually missing on rings” and “figuring
out what previous operator had run those rings, the machines they run to see if there was a
problem” (Tr. 371).

Obviously, this quality control or investigative work was not part of Feldpausch’s regular
job. Simpson admitted that when Feldpausch told him that “it’s not written in the SOPs, and I’m
not doing it,” he said “fine, if you don’t want to do it, fine.” At the time, neither Supervisor Kendall
nor Plant Manager Rinard found any fault with Feldpausch insistence on doing his regularly
assigned work. (Tr. 372.)

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There is no evidence of any work that Feldpausch was unwilling to do, besides work he
was not required to do on the special projects that Simpson was involved in, nor evidence of
any other way that he refused to participate in team activities.

I find that under these circumstances, the Company’s contention that one of the reasons
for Feldpausch’s discharge was his refusal to participate in team activities, is a pretext.

d. Opposing work during breaks

The Company undoubtedly had prior notice of Smeltzer’s accusation in paragraph 8 of
the March 3, 2003 formal pleading that the Company prepared for his signature (GC Exh. 16 p.
9), which states:

8. For example, during the time I worked in the B and K area with Marty, he did
not like the fact that I was working through my breaks. I was working through breaks in
order to help operations as much as possible and to be as productive as I could. Marty
complained that I was going to raise the parts per hour (pph) rate if I continued to work
through breaks. . . . To stop me from working through breaks, Marty contacted an
electrician and told him that I was going to cause problems with the maintenance on the
machinery by not allowing it to have downtime during breaks. As a result the electrician
come out to my work area and shut down my machine so that I could not work.
[Emphasis added.]

Regarding this accusation, Smeltzer testified that on one occasion when he was working
through lunch (Tr. 399):

I knew that Marty had a problem with it because he was shaking his head and he said
something to me when he walked away. So I went to the [supervisors] office to tell Jamie
[Supervisor Kendall] that I was going to run through lunch so there would be no
misunderstanding and, before I even walked out the door . . . one of the electricians that
Marty takes his break and lunches with . . . come down and shut down all my machines.

Undoubtedly Smeltzer, who had gone to the supervisors office to get Kendall’s approval,
would have had no reason not to report the machinery shutdown to Kendall (who did not testify).

Rinard, when testifying about what Smeltzer reported in the January 3 meeting, admitted
(Tr. 441) that Smeltzer only suspected that Feldpausch caused the shutdown of the machines.
He testified that Smeltzer reported that Smeltzer “felt like [emphasis added] Marty had went
back to the maintenance department to get the electricians to come and shut down his
machines, so he had to stop running.”

This accusation in the formal pleading is a misrepresentation of what Smeltzer reported
in the January 3 meeting. Moreover, there is no evidence of any investigation to determine
whether in fact Feldpausch caused the shutdown of Smeltzer’s machinery.

Richard also testified (Tr. 441) that Smeltzer is “entitled to his breaks, but I ain’t going to
tell someone they can’t work through their breaks and lunch if they’re running behind [emphasis
added] or something”—not “to help operations as much as possible and to be as productive as I
could,” as stated in the formal pleading.

Under these circumstances, I find Rinard’s testimony (Tr. 451) that “the PPH,” the
“interfering with production” was one of the reasons he discharged Feldpausch, is a pretext.
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e. Making gun-like gesture

According to paragraph 9 of the March 3, 2003 formal pleading that the Company
prepared for Smeltzer’s signature (GC Exh. 16 p. 9), Smeltzer claimed that when Feldpausch
did not like Smeltzer’s non-smoking drive for the plant, Feldpausch asked if Smeltzer knew what
we do with people who stir up the shit and gestured “like he was holding a rifle and pulling the
trigger,” making a “poof” sound.

Smeltzer claimed that Feldpausch “made the gesture like he was pointing a shotgun and
pulled the trigger” (Tr. 400). Rinard testified that Smeltzer told him in the January 3 meeting that
Feldpausch “acted like he was pointing a gun at him [emphasis added] and pulling the trigger
and said . . . . poof and walked away. And, in today’s society, that really concerns me when
someone would do that.” (Tr. 439–440.) Neither Smeltzer nor Rinard asserted that the purported
gesture was threatening.

There is no reference to a gun-like gesture in the Company’s January 7 discharge letter.
Moreover, I discredit Smeltzer’s claim that Feldpausch made the gun-like gesture. Feldpausch
credibly testified on rebuttal (Tr. 510):

Q. Did you ever do anything like that?
A. No. No. That hilarious. Anybody who knows me knows I don’t do stuff like that.

I find that Rinard’s testimony that the “nonsmoking which led to the shotgun incident”
was one of the reasons he discharged Feldpausch, is a pretext.

I also find that the other belated reasons that Rinard claimed in his testimony (Tr. 451)
for discharging Feldpausch and also mere pretexts.

f. Feldpausch’s “confrontation” with Luttig

Concerning Feldpausch’s December 19 conversation with Luttig at Simpson’s
workplace, paragraph 19 of the March 3, 2003 formal pleading that Smeltzer signed states (GC
Exh. 16 p. 11):

19. . . . I observed a confrontation between Marty Feldpausch, Larry Luttig, and
Jeff Simpson. Because the machinery was running, I could not hear what was being
said. . . . When Marty approached them, he was upset. . . . The confrontation . . . lasted
for about 3 to 5 minutes. After Marty left the work area, Larry was visibly upset.

When called as a defense witness, Smeltzer claimed that he was 6 feet from them, that
Feldpausch “looked heated,” was using “a lot of hand gestures,” and “seemed agitated, upset”
(Tr. 385–386).

To the contrary, Feldpausch credibly testified that Smeltzer was two rows of machines
away, and “I believe that the very, very closest that Gary Smeltzer could have possibly been is
approximately 30 feet away” (Tr. 510). I discredit Smeltzer’s claim that he was only 6 feet away,
that Feldpausch was upset, looked heated, and used a lot of hand gestures, and that Luttig
seemed agitated and upset.

I find that the Company included this statement in the March 3, 2003 formal pleading
that Smeltzer signed, to corroborate the Company’s false statement in the January 7 discharge
letter that Feldpausch was “creating a hostile environment.”
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3. Company’s motivation for belated March 3, 2003 defenses

By the time the Company submitted it March 3, 2003 position letter, with the formal
pleadings signed by employees Larry Luttig, Jeffrey Simpson, and Gary Smeltzer attached, it
had succeeded in defeating UAW’s latest organizing campaign at the St. Johns plant by its
January 7 discharge of Feldpausch, the leading union organizer.

As revealed in the March 3, 2003 formal pleading the Company prepared for Luttig’s
signature, “[T]here have been several union drives in the Dana St. Johns plant” (GC Exh. 16 p.
21, par. 7). Similarly, paragraph 27 in the March 3, 2003 formal pleading the Company prepared
for Smeltzer’s signature refers to “several” prior union campaigns. It states (GC Exh. 16 p. 12):

27. During the time that I have worked in Dana St. Johns, there have been
several [emphasis added] union campaigns. However, at the time Marty Feldpausch was
terminated, there was no union drive or activity in the plant.

Before signing the formal pleading, Smeltzer crossed out and replaced the word
“several” with the word “two.” He was referring to the two 2002 campaigns, the first begun in
March and the second, which was reactivated in early December and became active after
Feldpausch’s January 7 discharge. Smeltzer added to paragraph 27 the following two
handwritten sentences:

The second union drive occurred due to Marty’s termination. This 2nd attempt failed due
to employees’ strong beliefs that the PLT [plant leadership team] was justified in doing
so. [Emphasis added,]

Thus, Smeltzer revealed that the active union campaign that resumed after Feldpausch’s
termination failed because the Company discharged Feldpausch—the leading union organizer,
before he succeeded in advancing the Union’s reactivated organizing campaign by discrediting
Luttig’s rumors that his father-in-law, a well-respected UAW member and community leader
where many of the employees live, was against a union at the plant.

Having succeeded in defeating the Union again, the Company was faced on March 3
with the discriminatory termination allegation in the Union’s February 3, 2003 charge in this case
and the problem of defending its shifting reasons for discharging Feldpausch.

As found, Plant Manager Rinard had told Feldpausch on December 19 that “You told Mr.
Luttig that we’ll settle this tonight and that is a threat, and I won’t tolerate it in my shop. . . . You
are suspended until further notice.” Rinard then assured Feldpausch that “This has nothing to
do with . . . your idea log” and “This has only to do with what happened out on the shop floor.”
Later, in the January 6 meeting, the day before the discharge, Rinard, Human Resources
Manager Peterson, and Manufacturing Manager Fandel agreed that his idea log was not
involved, and Peterson assured Feldpausch that the disciplinary matter involved only what
happened on the shop floor in his conversation with Luttig.

After the January 6 meeting, in which Feldpausch produced the fax confirming his
continuing union activity, the Company decided to change its position and to assert additional
reasons for discharging him.

By 11 o’clock the next morning, January 7, the Company had prepared its 11-paragraph
discharge letter, citing Feldpausch’s so-called “mocking and abuse of the Idea System,” as well
as other conduct away from the shop floor, as additional reasons for the discharge.
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Then on March 3, 2003, faced with the weakness of its defenses because of its shifting
reasons on January 7 for discharging Feldpausch, as well as its indefensible claim that
Feldpausch was not engaging in any union activity, the Company again changed its position.

The Company attached to its March 3, 2003 position statement the formal pleading it
had prepared for Smeltzer’s to sign, giving the Company’s version of Smeltzer’s January 3
volunteered oral accusations against Feldpausch. It had failed to have Smeltzer sign a
statement or to have an audiotape transcript made of these accusations, and had failed to cite
any of the accusations in its January 7 discharge letter as reasons for discharging Feldpausch.

The Company now cites some of its version of the oral accusations as reasons for its
discharging Feldpausch, further shifting reasons for the discharge.

G. Denials of Any Shifting of Reasons for the Discharge

The Company contends in its brief (at 30–34) that “Dana’s Reasons for Terminating
Feldpausch Are Not Shifting Reasons” and contends (at 31):

While “the Board has long held that shifting reasons constitute evidence of
discriminatory motivation,” U.S. Coachworks, Inc., 334 NLRB 955 (2001), Dana’s
reasons for terminating Feldpausch have remained consistent through the course of this
charge and are not shifting reasons.

The Company argues in its brief (at 32):

The termination letter was very general [emphasis added] and simply informed
Feldpausch in deciding to terminate his employment, “we have considered the fact that
multiple rules and/or policies have been violated . . . [and] we have considered the
impact of your conduct on other employees in the workplace in general.” . . . Therefore, it
is impossible for the General Counsel to use this termination letter as evidence that, in
its decision to terminate Feldpausch, the Company did not rely on all the information
discovered during its investigation.

I reject, as untenable, the Company’s contention that because of the “very general”
explanation for the discharge in the January 7 discharge letter, the Company did not shift its
reasons for the discharge. Also as found, the Company’s purported “investigation” was merely a
formality.

The Company ignores Feldpausch’s undisputed, credited testimony that after Plant
Manager Rinard suspended him in the meeting on December 19, Rinard said, “This has nothing
to do with . . . your idea log. This has only to do with what happened out on the shop floor.” The
Company also ignores Feldpausch’s undisputed, credited testimony that in the meeting on
January 6, Rinard, Peterson, and Fandel agreed that his idea log did not have anything to do
with the disciplinary matter, and Peterson told him that it only had to do with what happened on
the shop floor in his conversation with Luttig.

The Company clearly shifted its reasons for discharging Feldpausch when it stated in the
January 7 discharge letter that his idea log and other conduct away from the shop floor were
reasons for his discharge.

Therefore, even if Smeltzer’s January 3 oral accusations against Feldpausch were
included in the “very general” wording of the January 7 discharge letter, the accusations would
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merely be additional shifting reasons for the discharge.

Moreover, as found, the Company on December 19, as a pretext, authorized Rinard to
suspend and discharge Feldpausch after the formality of an investigation, to rid the plant of this
leading union organizer and stop his organizing efforts.

H. Concluding Findings

This case arose late on December 19, about 11:20 p.m., when Plant Manager Rinard
suspended Feldpausch, the leading employee organizer, for telling Luttig, a leading opponent of
the Union—in a conversation early that morning on the December 18–19 third shift at the work
station of antiunion employee Simpson—that “we’ll settle this tonight and that is a threat, and I
won’t tolerate it in my shop,” referring to settling Luttig’s rumors that his father-in-law was
making derogatory statements about the Union.

Luttig had been giving Rinard “updates” on Feldpausch’s union activity, by reporting
Feldpausch’s efforts to advance the Union’s organizing campaign by obtaining information to
discredit Luttig’s rumors about his father-in-law—a well-respected UAW member and
community leader where many of the employees live—for the obvious purpose of getting more
union cards signed.

As found, the Company seized on Rinard’s false claim of a threat and authorized Rinard
on December 19 to suspend and, after the formality of an investigation, to discharge
Feldpausch, to rid the plant of this leading union organizer and stop his organizing efforts.

The evidence is clear that neither Luttig nor Simpson believed at the time that
Feldpausch had threatened Luttig. Soon after the conversation, both employees went to the
supervisors office where, as Luttig admitted, he told Supervisor Kendall that “we are not filing a
formal complaint [against Feldpausch], we are not trying to tattle on him.” Of course, if
Feldpausch had threatened him, Luttig would have reported it to Kendall (who did not testify).

In the Company’s January 7 long, 11-paragraph discharge letter, it omitted any
reference to this purported threat. Instead, as found, it has asserted shifting reasons for
discharging Feldpausch in the discharge letter and many additional shifting reasons in the
attachments to its March 3, 2003 position statement and its brief, as pretexts.

I agree with the counsel for the General Counsel, in their brief (at 3, 28, 31), that (1) the
Company’s “reliance on Plant Rules 16, 17 and 18, and the Workplace Violence Rule, clearly is
a pretext” for discharging Feldpausch, (2) the Company’s “Shifting defenses provides further
evidence that the true reason for Feldpausch’s discharge was his union activity,” and (3) the
previous antiunion comments and conduct of supervisors and the pretextual and “shifting
defenses for the discharge further suggest that Feldpausch’s discharge was the result of union
animus.”

Despite the evidence to the contrary, the Company contends in its brief (at 3, 1922) that
it had no knowledge that Feldpausch was engaged in union activity before it suspended and
discharged him.

Therefore, under Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (21982); approved in NLRB v. Transportation Management Corp. 462 U.S.
393 (1983), this is a dual-motive case, in which the first issue is whether Feldpausch was
engaged in union activity in his December 19 conversation with Luttig and that this protected
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conduct was a motivating factor in the Company’s decision to discharge him.

Compare cases, such as Shamrock Foods Co. v. NLRB, F.3d (D.C. Cir. 2003), 173
LRRM 2454, 2458–2459 (2003), in which the employer has discharged the employee because
of alleged misconduct “in the course” of admitted protected activity and in which the Board
applies the Supreme Court analysis in NLRB v. Burnup & Sims, 379 U.S. 21 (1964).

I find that the evidence shows Feldpausch was engaged in union activity on December
19 and that the Company suspended and discharged him on that date as the result of its union
animus. I therefore find, under Wright Line, that the General Counsel has satisfied the initial
burden of proof that Feldpausch’s union activity was a motivating factor in the Company’s
decision to discharge him.

Thus, the burden of proof, under Wright Line, shifts to the Company to show that there
were other reasons that have caused the discharge even if there were no protected activity.
Santa Maria El Mirador, 340 NLRB No. 84, slip op. at 4 (2003).

As found, all the other reasons that the Company cites for the discharge are shifting
reasons and pretextual. Therefore I find that Company has failed to meet that burden.

I find that the Company discriminatorily suspended Feldpausch on December 19, 2002
and discharged him on January 7, 2003 because of his union organizing activity, violating
Section 8(a)(1) and (3) of the Act.

Conclusions of Law

By discriminatorily suspending and discharging Feldpausch for engaging in union
organizing, the Respondent Company has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged an employee, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER

The Respondent, Dana Corporation d/b/a Dana Perfect Circle, St. Johns, Michigan, its
officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any employee for union organizing
on behalf of the United Auto Workers or any other union.

(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of the Board’s Order, offer Martin Feldpausch full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Martin Feldpausch whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the remedy section of the
decision.

(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against him in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(e) Within 14 days after service by the Region, post at its facility in St. Johns, Michigan
copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since December 19, 2002.

3 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court Of Appeals Enforcing an Order of the
National Labor Relations Board.”
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Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. January 8, 2004

_____________________
Marion C. Ladwig
Administrative Law Judge
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APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discharge or otherwise discriminate against any of you for union organizing for
the United Auto Workers or any other union.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order, offer Martin Feldpausch full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

WE WILL make Martin Feldpausch whole for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Martin Feldpausch, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the discharge will not be used
against him in any way.

DANA CORPORATION d/b/a
DANA PERFECT CIRCLE
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.