Baxter Healthcare Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 945 (N.L.R.B. 1993)

945
310 NLRB No. 156
BAXTER HEALTHCARE CORP.
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 We note that in his decision, the judge made several insubstantial
errors. First, the Respondent’s plant manager is Mike Gatling, not
Gatlin. Second, the meeting Gatling held with employees to an-
nounce when fingerprinting would begin was in May 1989, not De-
cember. We also note the inadvertent omission of ‘‘not’’ between
‘‘she was’’ and ‘‘doing’’ in the third sentence in the last paragraph
of the judge’s decision under the section entitled ‘‘Ella Mae Bailey’s
Discharge.’’
3 Houser and William Mance, coordinating supervisor of the med-
ical department, were responsible for medical leaves of absence.
4 Additionally, employee Tracy Fuller resigned after the Respond-
ent informed him that he would be terminated for overstaying the
time period authorized by his physician for sick leave. The Respond-
ent did not undertake any investigation to verify a rumor that Fuller
was also working, in his own business, as a chimney sweep.
Baxter Healthcare Corporation and Teamsters
Local Union No. 61, affiliated with Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Cases 11–CA–12772, 11–CA–13039, 11–
CA–12980, 11–CA–13288–3, 11–CA–13362–1–
2–3, and 11–CA–13566–3–4
March 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 31, 1991, Administrative Law Judge Peter
E. Donnelly issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as expanded on below and to adopt the rec-
ommended Order.
1. In adopting the judge’s determination that the Re-
spondent violated Section 8(a)(3) of the Act by dis-
charging Lois Jimeson, we reject the Respondent’s as-
sertion that Jimeson was fired for violating a company
policy proscribing the use of a leave of absence to
‘‘engage in other employment.’’
As the judge found, Jimeson began a medical leave
of absence in February 1989. She promptly returned to
work at the conclusion of her leave on June 1, 1989.
Shortly thereafter Jimeson was informed by Ron
Houser, the Respondent’s manager of human re-
sources, that a supervisor had seen her, in late May,
waiting on customers in a local hardware store.
Jimeson told Houser that she had been helping out
part-time at her father-in-law’s store and that she had
not been paid anything for her time. Jimeson invited
Houser to call the store and verify her story. Houser
did not investigate further to determine if, in fact,
Jimeson had been employed at the store. He did, how-
ever, with the concurrence of the corporate level termi-
nation review board, tell Jimeson that she would be
discharged for working while on leave and receiving
disability pay. Jimeson’s written termination notice,
dated several days later, also included a second ground
for the discharge—‘‘falsification of personnel or other
records’’ in violation of a company rule identified in
the employee handbook as an offense ‘‘so grave’’ that
‘‘discharge may be appropriate on the first violation.’’
We agree with the judge that the General Counsel
has established a prima facie case and that the Re-
spondent has not met its burden of showing that Lois
Jimeson would have been discharged even in the ab-
sence of her open and extensive efforts in support of
the Union’s organizing campaigns in 1988–1989. First,
as the judge found, the Respondent’s course of action
against Jimeson was inconsistent with a nondiscrim-
inatory motive. The testimony of the Respondent’s
own officials3 demonstrates a history of considering
compensation as a controlling factor in enforcing the
prohibition against using a leave of absence to ‘‘en-
gage in other employment.’’ The Respondent’s prac-
tice, on receiving a report that an employee on sick
leave was working another job, was to telephone the
reputed employer to verify the employee’s employment
status. For example, Supervisor Mance testified, with
respect to employee Joretta Roberts, that he personally
called a company to ‘‘verify that, in fact, she was on
[its] payroll.’’ In each of the three prior instances
about which the Respondent testified, the followup in-
vestigation revealed a violation of the leave policy
under the payroll test and the employee was either dis-
charged or permitted to resign.4
If the Respondent was not discriminatorily moti-
vated, but instead genuinely interested in whether Lois
Jimeson had violated company policy by using her
time on medical leave to ‘‘engage in other employ-
ment,’’ it is probable that Houser would have adhered
to past practice in enforcing the leave policy. Instead,
Houser decided to discharge Jimeson, a known union
activist, without attempting to investigate her claim
that she was, at the very end of her 4-month leave pe-
riod, a part-time unpaid volunteer in a family business.
As the judge found, Jimeson was just such a volunteer
and thus not in violation of the company leave policy
proscribing ‘‘other employment’’ as previously inter-
preted and applied by the Respondent.
Further, we find that at the hearing the Respondent
abandoned its initial reliance on ‘‘falsification’’ of doc-
uments submitted by Lois Jimeson attesting to her
medical disability and need for continuing medical
leave. Houser admitted on cross-examination, after ex-
amining Jimeson’s file, that he was not now claiming
that any documents in Jimeson’s file had been fal-
sified. We note that, of the two grounds given for the
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We additionally agree with the judge, for the reasons set forth
by him, that employee Ella Mae Bailey’s discharge also violated
Sec. 8(a)(3). As with the discharge of Lois Jimeson, the Respondent
was discriminatorily motivated in interpreting its ‘‘other employ-
ment’’ rule and failed to demonstrate that it would have taken the
same disciplinary action absent Bailey’s activities on behalf of the
Union.
Also see NLRB v. Dayton Tire & Rubber Co., 503 F.2d 759 (10th
Cir. 1974) (application of an employer’s valid rule in an exagger-
ated, overlystrict manner exposes antiunion motive).
discharge, only the one now conceded to be without
merit involved a company rule or policy which specifi-
cally provides in writing for the possibility of dis-
charge.
In agreeing with the judge that the Respondent’s as-
serted reasons for discharging Lois Jimeson were
pretextual and that the Respondent violated Section
8(a)(3), we rely on the following factors: the Respond-
ent’s deviation from its customary policy of inves-
tigating reported instances of possible leave policy vio-
lations by directly contacting the employer involved in
order to verify employment status, the absence of any
evidence of similar treatment of other employees, and
the shifting account of the reasons for and the cir-
cumstances of the discharge.5
2. John Jimeson is the husband of Lois Jimeson and,
like her, was an employee of the Respondent with a
tenure of more than 10 years who had been openly ac-
tive on the Union’s behalf since the beginning of its
organizing efforts in April 1988. As the judge sets
forth in his decision, the Respondent discharged John
on Tuesday, October 17, 1989, when Houser informed
him that his refusal to submit to mandatory
fingerprinting when ordered to do so on the preceding
Friday constituted insubordination and thus warranted
termination.
The judge found, and we agree, that the General
Counsel established a prima facie case of discrimina-
tion and that the Respondent has not met its burden of
showing that John Jimeson’s discharge would have oc-
curred even in the absence of his leadership role in the
Union’s organizational drive. We reject the Respond-
ent’s contention that its established disciplinary policy
mandated its response to Jimeson’s Friday, October 13
statement that he was withholding his consent to
fingerprinting until after he had consulted an attorney.
The following facts are essentially undisputed. In
March 1989, the Respondent discovered a note claim-
ing that someone had deliberately contaminated a bag
of intravenous solution manufactured by the Respond-
ent for the health care industry. In response the Re-
spondent instituted certain safety precautions including
a requirement that all employees be fingerprinted as a
condition of their continued employment. In May
1989, the Respondent announced that the fingerprinting
would begin in October.
On Friday, October 13, Jimeson was asked by the
plant’s safety manager to submit to fingerprinting that
day. Jimeson declined and stated that he wished to ob-
tain legal advice before so submitting. Later that day
he repeated his position to several other management
officials including Houser. Houser gave Jimeson an
opportunity to telephone an attorney that afternoon
from the plant. Jimeson then tried and failed to reach
his attorney. Houser reminded Jimeson that he had had
several months to obtain legal advice and told Jimeson
that if he did not immediately consent to fingerprinting
he would be suspended. Jimeson restated his condi-
tional refusal and was immediately suspended. Houser
informed him that during the suspension a full inves-
tigation would be conducted which would lead either
to Jimeson’s return or his termination.
Later on the afternoon of the suspension, Houser
and Plant Manager Gatling submitted the matter to the
corporate level Termination Review Board (TRB) with
a recommendation for discharge. On Monday, October
16, Jimeson finally succeeded in contacting an attor-
ney. That evening he told Houser that he was now pre-
pared, on advice of counsel, to give his fingerprints.
Houser responded that Jimeson’s change of position
was ‘‘after the fact’’ and thus too late. On Tuesday
morning, Houser consulted with Gatling and together
they informed the TRB of this new development. The
TRB, with knowledge of Jimeson’s willingness now to
consent to the fingerprinting requirement, then ap-
proved the original recommendation in favor of termi-
nation. Houser promptly informed Jimeson that he was
being terminated for the insubordinate act of refusing
to comply with the mandatory fingerprinting require-
ment.
The Respondent argues that the procedures it fol-
lowed in discharging Jimeson were consistent with its
established disciplinary policy as set forth in the em-
ployee handbook. The handbook sets out the ‘‘major’’
offenses for which discharge ‘‘may be appropriate
upon the first violation.’’ The list includes rule 8 relied
on by the Respondent:
Refusal or failure to obey orders or do assign-
ments given by a supervisor or their authorized
employee or Company representative. (Follow in-
structions, do the assigned work and any com-
plaint or concern may be taken up later through
established channels.)
Immediately following the list of major offenses is the
following statement, set out in boldface:
IN ASSESSING DISCIPLINARY ACTION,
CONSIDERATION WILL BE GIVEN TO THE
POSSIBILITY OF MITIGATING OR OTHER
AGGRAVATING CIRCUMSTANCES.
Our dissenting colleague acknowledges that the
General Counsel made out a prima facie case that
947BAXTER HEALTHCARE CORP.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
7 We do not accept our dissenting colleague’s contention that we
are requiring the Respondent to prove a negative. The ‘‘mitigating
circumstances’’ proviso is an element of the Respondent’s own rule,
which it claims to have applied here. The Respondent was merely
required to show how that element of its rule inevitably applied to
persons in situations like Jimeson’s.
8 Our colleague appears to assert that because two of the Respond-
ent’s witnesses testified without contradiction that a recantation
could not qualify as a mitigating circumstance, this ends the matter.
The judge, however, obviously did not credit this self-serving testi-
mony, since he found that it was not any requirement of the rule,
but rather the Respondent’s desire ‘‘to remove an active union ad-
herent from the work force,’’ that accounted for the discharge.
9 In the case of another employee who refused the order to submit
to fingerprinting, David Snyder, no issue of the application of the
‘‘mitigating circumstances’’ provision was raised because Snyder,
unlike Jimeson, never agreed to the order. Hence, the judge found
that the Respondent met its Wright Line burden as to Snyder, and
no party has excepted to that finding.
10 Finlay Bros. Co., 282 NLRB 737 (1987), relied on by the Re-
spondent, is inapposite. There, the Board dismissed an alleged
8(a)(1) discharge and refusal to rehire where the employee was dis-
charged for refusing to comply with his employer’s dress code until
he consulted his attorney. The employee, after determining that the
rule was legal, asked for reinstatement. In Finlay, however, unlike
the instant case, the employee had violated the employer’s rule for
more than a month before the discharge and, in opposing the rule,
had fabricated employee opposition to it.
antiunion animus was a motivating factor in the dis-
charge of Jimeson. He agrees, however, with the Re-
spondent insofar as he would find that it carried its
burden under Wright Line6 of showing that it would,
in any event, have discharged Jimeson for violating
rule 8 by his initial conditional refusal to submit to the
fingerprinting. We disagree because, in our view, the
Respondent failed to show that the ‘‘mitigating cir-
cumstances’’ proviso to the Respondent’s rules had no
possible application to Jimeson and that therefore, even
in the absence of animus against his overt union activ-
ism, it would have entirely disregarded his acquies-
cence to the fingerprinting requirement on the next
workday following the initial order.7
As indicated in the fact statement above, Houser’s
initial permission for Jimeson to seek the advice of an
attorney on October 13 suggests that the Respondent
did not regard a request for time to consult an attorney
as inherently inconsistent with carrying out its
fingerprinting program, which was planned to extend
over several days in order to get all 3000 employees
fingerprinted. Granting that Jimeson’s refusal to submit
on that day, after his effort to reach an attorney was
unavailing, came within the rule 8 refusal-to-obey-or-
ders rubric, there remains the question whether
Jimeson’s acceptance of the requirement on Monday,
after he had consulted an attorney, could be regarded
as a ‘‘mitigating’’ circumstance. Although the Re-
spondent has put forward an argument why it might
not be so regarded—i.e., that Jimeson’s obedience on
Monday did not change the fact that he had refused an
order on Friday—this is only an argument. It is not
something that is clear on the face of the rules read
as a whole8 The term ‘‘mitigating circumstances’’ is
left entirely undefined, and the Respondent has sub-
mitted no evidence to show that, in practice, a refusal
predicated on a condition that the Respondent’s man-
agers have appeared to accept as nonfrivolous (here,
the desire to consult legal counsel) would never be ac-
cepted as mitigated by the employee’s recantion of the
refusal on the next workday, after the condition is sat-
isfied.9
We therefore conclude, in agreement with the judge,
that, with respect to John Jimeson, the Respondent has
not met its Wright Line, supra, burden to show that he
would have been discharged even in the absence of his
union activity.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Baxter Healthcare Corpora-
tion, Marion, North Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
MEMBER RAUDABAUGH, dissenting in part.
I agree with the majority and the judge that the Re-
spondent violated Section 8(a)(3) by discharging Lois
Jimeson and Ella Mae Bailey. I disagree, however,
with their findings that the discharge of prounion em-
ployee John Jimeson was unlawful. Although the Gen-
eral Counsel made a prima facie showing of antiunion
discrimination, I find that the Respondent met its bur-
den of proving that it would have discharged him even
in the absence of union activities.
The Respondent has shown that it lawfully dis-
charged John Jimeson for his insubordinate refusal to
accede to mandatory fingerprinting. He had several
months’ advance notice of the plantwide fingerprinting,
giving him ample opportunity to consult with counsel
about the matter. The Respondent had no legal obliga-
tion to delay his fingerprinting while he belatedly
sought counsel, even if the individual delay would
have had no impact on the several-day process of
fingerprinting all employees, the factor which appar-
ently persuaded the judge to find a violation. John
Jimeson clearly engaged in unprotected insubordination
by attempting to dictate the terms of his employment
when he refused a direct order to submit to
fingerprinting. The Respondent’s disciplinary rule 8
expressly permits discharge for such misconduct.
The Respondent met its burden of showing that it
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Tr. 558–562 (testimony of Plant Manager Mike Gatling) and
Tr. 1238–1239 (testimony of Human Resources Manager Houser).
2 My colleagues assert that the judge discredited this unrebutted
and consistent testimony. However, they point to no such finding in
the judge’s decision. Perhaps, as suggested by colleagues, the judge
could have rejected the testimony as self-serving. However, there is
nothing to suggest that the judge did so. Finally, the fact that the
judge ultimately found a violation is no substitute for a thorough
analysis of all the testimony, including that which mitigates against
finding a violation.
3 Merillat Industries, 307 NLRB 1301 (1992).
would have discharged John Jimeson even in the ab-
sence of his union activities.
My colleagues in the majority concede that the Re-
spondent has met its burden of establishing that
Jimeson refused to obey an order on October 13 and
that such refusal fell within the proscriptions of rule 8.
However, my colleagues have imposed an additional
burden on the Respondent. According to them, the Re-
spondent must also show that Jimeson’s postmis-con-
duct recantation (i.e., his willingness to be
fingerprinted on October 16) was not a ‘‘mitigating
circumstance’’ under the Respondent’s rule. My col-
leagues therefore require the Respondent to prove a
negative. Even assuming arguendo that this is an ap-
propriate allocation of the burden of proof, Respondent
has carried that burden. The Respondent’s witnesses
testified as to the Respondent’s disciplinary practices.1
According to that testimony, when the Respondent is
presented with evidence of a dischargeable offense, the
Respondent suspends the employee and then inves-
tigates as to whether discharge is warranted. That in-
vestigation is limited to the incident and to the events
leading to it. Subsequent acts are not relevant to the
question of whether discharge is appropriate. Con-
sistent with this practice, the Respondent did not con-
sider Jimeson’s postmisconduct recantation.
This testimony, given by two Respondent witnesses,
was consistent and unrebutted.2
Concededly, the Respondent did not show a prior
application of the aforementioned interpretation of the
rule. But, this was because there has been no prior sit-
uation exactly like that of Jimeson’s situation, i.e.,
recantation after the commission of the dischargeable
offense. The law is clear that the Respondent need not
establish a prior identical situation. ‘‘It is rare to find
cases of previous discipline that are ‘on all fours’ with
the case in question, and the Respondent should not
be faulted for being unable to show [such dis-
cipline].’’3
Based on the above, I would find that the Respond-
ent has met its Wright Line burden by proving that it
has a rule permitting discharge for insubordination,
that Jimeson engaged in insubordination, and that the
mitigating circumstances provision in the Respondent’s
disciplinary rules does not apply to postmisconduct
events.
Based on the foregoing, I would dismiss the com-
plaint allegations with respect to the discharge of John
Jimeson.
Jane North and Patricia L. Timmins, Esqs., for the General
Counsel.
J. Hamilton Stewart III and R. Allison Phinney, Esqs.
(Ogletree, Deakins, Nash Smoak & Stewart), of Green-
ville, South Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charges in the above-captioned cases were filed against Bax-
ter Healthcare Corporation (Employer or Respondent) by
Teamsters Local Union No. 61, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO (Union or Charging
Party). On December 20, the previously filed charges and
complaints were consolidated into a second order consolidat-
ing cases, consolidated complaint, and notice of hearing. This
complaint encompassed the charges in Cases 11–CA–12772,
11–CA–12980, and 11–CA–13039. On February 20, 1989,
based on the parties having previously entered into a private
out-of-Board settlement, the Regional Director issued an
order conditionally approving withdrawal request and with-
drawing consolidated complaint and notice of hearing. By
letter dated June 9, 1989, the Regional Director revoked his
order of February 20 and reinstated the charges in those three
cases, except for the 8(a)(3) allegations as to Joyce Buchanan
who had already been paid the backpay due her under the
private settlement agreement. The Regional Director con-
cluded: ‘‘As a result of evidence adduced in the investigation
of Case No. 11–CA–13288–3, it appears that Respondent en-
gaged in unfair labor practices which warrant the issuance of
a Complaint and Notice of Hearing. That investigation also
indicates that the terms of the non-Board settlement in Cases
Nos. 11–CA–12772, 11–CA–12980 and 11–CA–13039 men-
tioned above have been violated.’’ On that same date, June
9, the Regional Director issued a third order consolidating
cases, consolidated complaint and notice of hearing incor-
porating the allegations of the prior complaints, except for
the 8(a)(3) discharge allegation against Buchanan. On Janu-
ary 31, 1989, a fourth order consolidating cases, consolidated
complaint and notice of hearing issued incorporating the alle-
gations contained in Cases 11–CA–12772, 11–CA–12980,
11–CA–13039, 11–CA–13288–3, and 11–CA–13362–1 –2
–3, and on November 1, 1989, a fifth order consolidating
cases, consolidated complaint and notice of hearing (com-
plaint) issued incorporating all the above-captioned charges
949BAXTER HEALTHCARE CORP.
1 At the hearing, the Respondent moved to strike pars. 8(a) through
(g) of the complaint on the grounds that those allegations had been
disposed of by the Regional Director’s approval of the private settle-
ment agreement since there had been full compliance with the pri-
vate settlement agreement and that Sec. 10(b) barred the Regional
Director from reviving and incorporating them in the third order
consolidating cases. After taking testimony thereon, the administra-
tive law judge granted the motion and struck the allegations con-
tained in pars. 8(a) through (g) from the complaint and those allega-
tions are not treated herein. Also, at the hearing, the complaint was
amended to reflect that Respondent’s answer, rather than paragraph
7 of the complaint, accurately reflects the titles and spellings of the
various individuals alleged to be supervisors. Also, General Counsel,
at the close of its case-in-chief, moved to amend the complaint to
delete the unfair labor practice allegations in par. 8(a) concerning
Sam Trippie and Edward Michael Ollis; the allegations in par. 8(b)
concerning Jeff Bainbridge, June Ward and Steve Weltler; par. 8(d)
in its entirety and par. 13 in its entirety, which motion was granted,
although pars. 8(a), (b), and (d) had already been removed from the
complaint, as noted above, by Respondent’s motion. In its brief,
General Counsel moved to withdraw par. 8(h) of this complaint,
which motion is hereby granted.
2 As noted above, those allegations covered by the private settle-
ment agreement (pars. 8(a) through (g)) have, on motion of the Re-
spondent, been deleted from the complaint and are not treated here-
in. Having granted other motions dismissed by the General Counsel,
as noted above, only those 8(a)(1) allegations set out in pars. 8(i)
and (j) of the complaint remain for disposition herein.
3 All dates refer to 1989 unless otherwise indicated. None of the
other participants were able to corroborate Robertson’s testimony.
Smith’s testimony, corroborated by Greer, specifically denied that
Houser made the statements attributed to him, and Houser himself
denied making those remarks. I am convinced, based on the pro-
bative, corroborated testimony in the record that Houser did not
make the statements attributed to him which form the basis of the
General Counsel’s contention that Houser either threatened employ-
ees with discharge for having engaged in union activity or created
an impression among employees that Respondent was engaging in
surveillance of their union activities.
and the charges in Cases 11–CA–13566–3 –4.1 Answers
thereto have been timely filed by Respondent. Pursuant to
notice, a hearing was held before the administrative law
judge on November 15 and 16 and December 11, 12, 13, and
14, all in 1989. Briefs have been timely filed by General
Counsel and Respondent, which have been duly considered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
Employer is a Delaware corporation with a facility located
at Marion, North Carolina, where it is engaged in the manu-
facture and distribution of health care products. During the
past 12 months, Respondent received at its Marion, North
Carolina facility goods and raw materials valued in excess of
$50,000 directly from points outside the State of North Caro-
lina. The complaint alleges, the Respondent admits, and I
find that the Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The 8(a)(1) allegations2
On March 21, 1989,3 a note was found in the men’s locker
room at the plant reading, ‘‘DANGER, ONE OF THE BAGS
INGECTED [SIC] WITH METHYLPROENYL MARCH 20, 1989,
0130. BAXTER GIVE BETTER RAISE OR MORE WILL BE IN-
JECTED THROUGH WIRE ON TRUCKS WITH NEEDLE. SO EASY
TO DO!’’ Respondent, being in the business of manufacturing
a health care product, i.e., IV bags and intravenous solutions,
promptly shut down all production and distribution oper-
ations and called a meeting of employees to address the inci-
dent. When division president, Pat Fortune, spoke to the as-
sembled production employees on March 22–23 on their re-
turn to work, he conveyed the message that the incident was
damaging to the Company’s reputation and business and that
it was being investigated by the FBI and local law enforce-
ment authorities and that the perpetrator would be aggres-
sively prosecuted. Fortune also urged anyone with knowledge
of the incident to inform management. With respect to the
incident, Fortune also alluded to a ‘‘core of people’’ in the
plant who would be happy to see the plant destroyed.
Immediately after the speech, Carolyn Robertson, an em-
ployee and union supporter, was approached by fellow em-
ployees Brenda Greer and Irma Smith in the department
where they worked. According to Greer and Smith, they dis-
cussed Fortune’s speech and the incident. Greer asked Rob-
ertson, since Robertson was on the in-plant organizing com-
mittee to speak to those people about the incident since it in-
volved the possible loss of employment. Robertson perceived
these remarks as an accusation and wanted to pursue the
matter with the personnel department. Thereupon, she headed
to the office of Ron Houser, human resources manager.
Greer and Smith followed her in. Robertson told Houser that
she was upset that she had been accused of having some
knowledge of the product tampering incident. Greer and
Smith protested that they were not accusing. According to
Smith, ‘‘We were just concerned with the shutdown and se-
verity of the problem and we wanted her to convey to who-
ever she could. To the people that she talked with. Because
during the union campaign, quite honestly, we had just quit
talking to one another.’’ Houser tried to calm them and
spoke about the value of restoring good relations between
union supporters and company supporters. According to Rob-
ertson, he also told that Respondent thought it was the Union
and that ‘‘there is a band of people out there going around,
spewing their discontent and anger and we are going to get
rid of them, but we’re going to do it legally this time,’’ and
that when Robertson protested her loyalty, Houser responded
that he knew Robertson was loyal and that ‘‘he didn’t think
[she] was one of the vicious ones.’’
2. Discrimination against Sherry Harrison as to oral and
written warnings
Harrison, a 16-year employee, works as a Kiefel machine
operator in the Kiefel north room. Her supervisor is Leonard
Grindstaff. Harrison was a member of the in-plant organizing
committee and acted as an observer for the Union at both the
original election on October 26 and 27, 1988, when the
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 These were tips about three-quarters of an inch in length and
about the width of an eraser, where needles are inserted to release
the solution from the IV bag. Houser, Crawley, Koon and Hughes
then repaired to the cafeteria for further discussion of possible
courses of action. They determined that the evidence was not suffi-
cient to establish that Harrison had deliberately thrown the tips at
Jolly but that Harrison should be counseled about her attitude toward
management and other employees to encourage her to cooperate
more with fellow employees. The counseling session was held at 3
p.m. in Koon’s office, attended by Koon, Harrison, Hughes, and
Grindstaff. Hughes did most of the talking. He told Harrison that the
ill will between her and Jolly suggested that she had thrown the tips,
but the evidence was not so conclusive as to warrant discharging
her. Hughes also spoke about the ill will and lack of communication
that had developed during the union organizational effort and that
those problems needed correcting. In discussing prounion and
antiunion employee relationship problems, Hughes mentioned that he
had heard that Harrison had told a procompany employee, Cathy
Knight, the wife of a supervisor, that she hoped her husband ‘‘died
and went to hell.’’ Harrison denied to Hughes that she said this to
Knight but at the hearing did concede that she did say, in anger and
frustration on election day after learning the Union had lost, to a
smiling Cathy Knight that she would like to see if Knight was still
smiling when her husband’s ‘‘butt’’ was in a courtroom over the
NLRB charges. Hughes denied that Harrison was given either an
oral or written warning but he did tell Harrison that if another inci-
dent occurred which could be substantiated, she could be terminated
and that a memo documenting the incident would be put in her file.
This was done.
Union lost, and at the rerun election on January 25 and 26,
1989. Harrison handbilled on behalf of the Union, wore a
union badge, union T-shirt, and solicited union authorization
cards for signature. It is undisputed that Harrison was an ac-
tive union supporter.
On March 2, 1989, Harrison, because her Kiefel machine
was down, was assigned to inspect injection sites.4 She was
seated, performing the inspections, when Becky Jolly, a su-
pervisor in the heat seal room, passed her work station. Jolly
testified that as she passed, she felt injection site tips hitting
her legs below her knees. In the belief that Harrison had
thrown the tips at her, Jolly went to Leonard Grindstaff, who
was Harrison’s supervisor, to report the incident. Grindstaff
questioned Harrison who denied having thrown any tips at
Jolly.
Harrison then left and went to Houser’s office to explain
the incident to Houser. As she left Houser’s office, Jolly
went in, apparently to relate her version, which prompted
Harrison to return, complaining to Houser that she had been
falsely accused by Jolly of throwing sites at her. Houser ar-
ranged a meeting for 8:30 a.m. in the office of Steve
Hughes, shift supervisor, to discuss the matter. Hughes su-
pervised both Grindstaff and Jolly.
At 8:30, a meeting was held in Houser’s office. Present
were Houser, Hughes, Grindstaff, Jolly, Harrison, Vic
Crawley, operations manager, and Fred Koon, production
manager. Both Jolly and Harrison recounted their version of
the incident. Apart from the incident itself, Houser also ad-
monished Harrison about her communication problems with
other employees. Harrison returned to work, but the meeting
continued with the management officials who decided that
the evidence was inconclusive and that a reenactment of the
incident would assist them in determining culpability.
At about 10 a.m., the scene was reenacted in the Kiefel
north room, attended by all those at the 8:30 meeting plus
Sam Trippie, plastics department manager.
Discussion and Analysis
The General Counsel contends that the oral warning of
March 2 and the subsequent written ‘‘memo for record’’
dated March 3 constitute discrimination and that the dis-
crimination was motivated by Harrison’s union activity. First,
I agree with General Counsel that these were actual warnings
rather than nonpunitive actions. The Respondent takes the
position that they were not punitive because they were issued
outside of the Respondent’s written progressive disciplinary
policy which provides for formal warnings and notice thereof
to employees. On this point, the General Counsel must pre-
vail. The warnings were disciplinary, and it is immaterial
whether or not the issuance was within or without the Com-
pany’s written disciplinary policy.
However, the General Counsel is also obliged to show that
the discipline was motivated by antiunion considerations.
After the election, the Respondent had a legitimate business
motive in reestablishing a cooperative attitude between em-
ployees, which had been disrupted during the Union’s orga-
nizational effort. Prounion and antiunion sentiments had di-
vided the work force, and Respondent did have an interest
in restoring harmony in the work force. This was true even
though, during the Union’s organizational effort, Respondent
used inherently divisive techniques to combat the Union. But
promoting improved relations between employees was the
main thrust of the counseling given to Harrison, as the
March 3 memo suggests. His mention of the Cathy Knight
incident was consistent with efforts to reconcile pro and
antiunion sentiment among the employees. As for the warn-
ing, while it is true that the evidence was not sufficient to
conclude that Harrison deliberately threw tips at Jolly, there
was enough evidence to support a strong suspicion, and I
cannot say in these circumstances the warnings were not jus-
tified. Respondent acted on a strong suspicion founded on
substantial evidence. It is not for me to sit in judgment on
the quantum of probative evidence necessary to justify dis-
cipline.
In short, it is the General Counsel’s burden to establish
that the oral and written warnings were motivated by
antiunion considerations, and the evidence to support this
contention is insufficient.
3. Discrimination against Harrison as to Respondent’s
telephone call policy
There is a telephone in the Kiefel north room where Har-
rison works. This telephone, however, does not have the ca-
pability to either receive or make calls outside the plant. It
is an intraplant phone only. Employees are allowed to use
the phone to contact other employees in making transpor-
tation arrangements or other such matters.
As to incoming calls from outside the plant, those calls are
all taken by the receptionist/switchboard operator. If the call
is an emergency, the operator calls the employee’s work area
and the employee is directed to the nurses station where the
call can be returned. If the call is not an emergency, the op-
erator will call the work area where the employee is notified
of the call and may return the call at breaktime, using one
951BAXTER HEALTHCARE CORP.
5 On January 6, Hughes also noticed Harrison on the telephone for
what appeared to be an excessive time. Hughes asked Grindstaff to
admonish Harrison about it, which he did. Harrison testified that
Grindstaff also said to her that she should know she would be sin-
gled out when things came up on account of the union campaign.
6 The guard station performed the functions of the operator on the
second and third shift, and had the capacity to transfer calls directly
to the work areas.
7 The diagnosis was carpal tunnel syndrome.
of pay phones located in the plant. It is the written policy
of the Respondent to ‘‘discourage personal phone calls dur-
ing working time, except for emergency purposes.’’
In late December or early January, it appears that
Grindstaff received complaints from other employees to the
effect that while Grindstaff was at lunch, Harrison was
spending the entire time on the telephone talking to her boy-
friend, a former security guard at the plant.5 It appears that
these calls were coming through the guard station.6 With this
information, Grindstaff went to the Phil Castro, environ-
mental manager, charged with overall responsibility for the
security operation which is contracted out to Guards Mark,
Inc., who are directly supervised by Captain Dewey Proctor,
a Guards Mark employee. Castro testified that Grindstaff
came to him and explained the complaints he had received
about Harrison. Castro was aware that personal calls should
not be transferred directly to employees in production areas
from the guard station, and so he went to Proctor with a re-
quest that the policy be enforced ‘‘across the board’’ at all
times by the security guard at the guard station. Proctor
agreed and posted a handwritten notice to that effect on the
billboard in the guard station. Proctor testified that he did,
himself, enforce the policy once thereafter when a call from
Harrison’s boyfriend was transferred to the guard station
when the boyfriend wanted to speak to Harrison and was re-
fused. Harrison concedes that she was aware that it was nor-
mal procedure for outside personal calls to be returned at
breaktimes.
Discussion and Analysis
The General Counsel contends that Respondent applied
this telephone call policy to Harrison in a discriminatory
manner. I do not agree. It is undisputed that the policy itself
was not discriminatory. Under the terms of the policy, per-
sonal telephone calls were not to be taken directly in the
work area by the employees. The policy was for the em-
ployee to be advised and, except in emergencies, return the
calls from pay phones at breaktime. Respondent was advised
that Harrison was receiving outside calls directly in the work
area. The proper authorities were advised and the policy rein-
forced. Despite Harrison’s testimony that Grindstaff said that
she should be aware that she would be singled out because
of union activity at the plant, there must be something to
show actual disparate treatment. There must be sufficient evi-
dence to show that while the policy was applied to Harrison,
it was not applied to others and that the motive for such dis-
criminatory application was Harrison’s union activity. In my
opinion, the record is totally insufficient to make such a find-
ing and this allegation should be dismissed.
4. Discharges of Lois Jimeson, Ella Mae Bailey, John
Jimeson, and David Snyder
Lois Jimeson’s Discharge Lois Jimeson was a long-term
employee of Respondent with over 10 years of service at the
time of her discharge. Jimeson actively supported the
Union’s organizational effort beginning in August 1988 by
handbilling employees with prounion literature in full view
of Respondent’s supervisors. She wore union T-shirts, jack-
ets, and badges and was a member of the union in-plant or-
ganizing committee, whose members’ identities were known
to management since their names had been submitted to
management. In addition, it appears that during the cam-
paign, Jimeson wrote to Vernon Louck, chairman and CEO
of Respondent, to complain about comparative salary levels.
Management generally, and Houser, were aware of this com-
munication.
In November 1988, Jimeson, whose job was to affix blue
tip protectors to IV bags, developed pain and swelling in her
left wrist and arm. In February 1989, after a period during
which she was assigned light duty, Jimeson was placed on
short-term disability where she remained until the end of
May.7
Following her disability, Jimeson was able to perform
some household chores and do some gardening. In addition,
during the last few weeks of May, at the request of her
mother-in-law, Jimeson helped out at the True Value Hard-
ware Store owned by her father-in-law, John Jimeson Jr. For
approximately, 8 to 10 days during that time, she worked for
varying numbers of hours but never full days and she was
not compensated for her work. It appears that it was cus-
tomary for family members to help out at the store without
compensation. While she was at the store in late May, Eddie
Durham, a supervisor, came into the store to buy a ladder.
Jimeson assisted him. Durham testified that she told him that
she was just working there to help out the family because
they were short-handed.
On his return to the plant, Durham related the incident to
Houser who advised him to write up a memo on it, which
he did, setting out the event in detail. On May 26, Jimeson’s
doctor advised her that she could return to work on May 30.
Due to her prior scheduled vacation, Jimeson actually re-
turned to work on June 1. On Tuesday, June 6, Jimeson was
summoned to Houser’s office. Production Manager Terry
Duncan was also present. Houser told her that he was in-
formed that she had been seen working at the hardware store.
Jimeson responded that she had been helping out her in-laws
at the store, but that she had not been paid for the time and
asked Houser to call the store to confirm her account. After
conferring with Gatlin, both decided that Jimeson should be
terminated but thought the matter should be reviewed by the
termination review board, particularly since Jimeson had con-
tacted corporate officials in the past and they wanted to
avoid having ‘‘corporate’’ surprised by another direct contact
by Jimeson. The termination review board agreed with the
discharge, and the following day Jimeson was again sum-
moned to Houser’s office, again Duncan was present. Houser
advised Jimeson that she was going to be terminated because
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Respondent’s short-term disability benefits run to a maximum of
23 weeks, and long-term disability benefits for longer periods.
9 Bailey’s disability was extended, and she was actually authorized
by her doctor to return on June 12.
she was working at the hardware store while receiving short-
term benefits.
On Monday, June 12, Houser gave Jimeson a termination
notice reciting as the reason for discharge, ‘‘Violation of
Company Rule No. 2, ‘Falsification of personnel or other
records.’ Employee was working another job while on sick
leave receiving sick pay from our Company.’’
Ella Mae Bailey’s Discharge
Bailey was employed for over 10 years by Respondent at
the time of her discharge. She was an active union supporter.
In this regard, she was a member of the 125 employee in-
plant organizing committee. A list of those employees was
submitted to management by the Union. Bailey also distrib-
uted union authorization cards, participated in prounion hand-
billing, and wore union T-shirts and badges at the plant.
The events leading to Bailey’s discharge began with foot
problems which required corrective surgery on the toes of
both feet. Since she was unable to perform her job, which
required her to stand most of this time, she was placed on
short-term disability leave.8 The short-term disability plan
defines those entitled to the benefits and reads, in pertinent
part:
Normally, a total disability is one that results from ill-
ness or injury and prevents you from doing your
present job at Baxter. To receive benefits under the
STD plan, you and your doctor will have to substantiate
the disability.
Company policy treats the granting of leaves of absence in
a document captioned ‘‘General Rules With Respect To
Leaves of Absence.’’ This policy provides, inter alia:
‘‘Leaves of absence shall not be used to engage in other em-
ployment.’’ ‘‘An employee who misrepresents any facts or
submits any false evidence in applying for or substantiating
a leave of absence may be subject to discharge.’’
Bailey began a leave of absence on February 7. Corrective
surgery, a bunionectomy, was performed on her right foot on
February 21. After a period of recuperation, the same oper-
ation was performed on her left foot on March 28. Physical
activities, including standing or walking, were restricted as
much as possible. Bailey’s recovery was monitored by a doc-
tor who periodically submitted ‘‘attending physician’s state-
ments’’ to Respondent. Bailey also submitted a ‘‘Claimant’s
Intermediate Statement’’ on May 15, advising Respondent
that she would be able to return to work full-time on May
28. One of the blocks on this form reads: ‘‘Are you now en-
gaged in other gainful employment?’’ Bailey checked the
‘‘No’’ box to the question.9
It also appears that while on disability, Bailey was suf-
fering some financial hardship. Her husband was not working
and her disability pay, after deductions, left her with very lit-
tle money. Bailey and her husband decided to take some
household items to a flea market in order to raise some
money. They collected some of her husband’s tools, pots and
pans, and several wicker household items. These items, deco-
rated by Bailey with bows, ribbons, and flowers included
brooms, hats, and a wicker hamper which her husband had
painted. She decorated a total of about 18 items. Bailey and
her husband took these items to Kidds Flea Market on three
Saturdays in a row from late April until mid-May and her
items were displayed once by someone else on her behalf at
another flea market on I-40, however, Bailey did not sell any
of her decorated items prior to her discharge on June 14.
On one of the Saturdays in May, at Kidds Flea Market,
one of Respondent’s supervisors, Wilma Beam, saw Bailey
at her booth with the items on display. They spoke for a few
minutes until Beam left. At a supervisor’s meeting about a
week later, Beam mentioned the matter to Supervisor Mike
Harris. Harris suggested that she inform Ron Houser, human
resources manager, and Beam did so.
Bailey returned to work on June 12 at 7 a.m. On June 13,
shortly after break, she was called to Houser’s office. Super-
visor Mike Harris was also present. Houser told Bailey that
it had come to his attention that she had been performing
other work while she was on leave of absence. He went on
to identify the work as making and selling arts and crafts at
a flea market. Bailey protested that she needed the money
and that these were not ‘‘arts and crafts,’’ that they were per-
sonal items, some gifts, belonging to her and that she had
decorated them to sell at the flea market. Houser advised her
that it was against company policy to be on medical leave
and at the same time make items for sale. Bailey was told
that she would be advised later of whatever disposition was
made of the matter.
Following this discussion, later in the day, according to
Houser, he first learned from another employee that Bailey
was a union supporter. It also appears that Houser consulted
Plant Manager Mike Gatlin about the situation. They re-
viewed the information and agreed that termination was the
appropriate discipline, but that since it was an unusual mat-
ter, they should run it by the Termination Review Board at
the corporate level. This was done on the following day, and
the termination review board agreed.
On the following day, June 14, Bailey met with Harris,
Guy Fusio, a human resources manager, Carolyn Yelton, a
supervisor, and Houser. Houser told Bailey that because she
was making arts and crafts for sale, while on disability, she
had violated Company policy and that it would be necessary
to terminate her. Once again, Bailey protested that these were
her personal items that she had decorated and offered for sale
and that she was doing ‘‘arts and crafts.’’ Houser gave her
the opportunity to resign, which Bailey declined, and she was
discharged. Respondent’s ‘‘Employee Separation Report’’ re-
cites the reason for Bailey’s discharge as ‘‘Violation of Com-
pany Rule # 2. ‘Falsification of personnel or other records.’
Ellen Bailey was working on another job while on sick leave
and receiving sick pay from our Company.’’ Houser testified
that the falsified document referred to was the ‘‘Claimant’s
Interim Statement’’ when Bailey had checked the ‘‘No’’ box
to the question of ‘‘gainful employment.’’ According to
Houser, since the items were made and offered for the pur-
pose of sale, this constitutes gainful employment. Apparently,
it did not matter to Houser whether any of the items were
actually sold.
953BAXTER HEALTHCARE CORP.
10 In these circumstances, it is difficult to understand why the
‘‘Employee Separation Reports’’ recite a ‘‘falsification’’ of records
by representing that they were ‘‘gainfully employed.’’
11 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See also Chicago Trib-
une Co., 300 NLRB 1055 (1990).
12 Jimeson is the husband of discriminatee Lois Jimeson.
Analysis and Conclusions—Discharges of Jimeson
and Bailey
It is not disputed that both Jimeson and Bailey were long-
time and apparently satisfactory employees. It is also clear
that both were active union supporters, members of the in-
plant organizing committee, distributing pamphlets and other-
wise supporting the Union’s effort to organize Respondent’s
employees. Respondent generally, and particularly Gatlin and
Houser, were aware that they were union supporters.
The General Counsel takes the position that it was because
of their activities on behalf of the Union during the union
organizational effort that Jimeson and Bailey were dis-
charged. Respondent contends that Jimeson and Bailey vio-
lated established policies as to short-term disability benefits,
were caught and then lawfully discharged.
In this regard, Respondent argues that where its leave poli-
cies provide that ‘‘Leaves of absences shall not be used to
engage in other employment,’’ the term ‘‘other employment’’
means with or without compensation. Under a strict interpre-
tation, an employee on short-term disability could be re-
quired to remain basically immobile while off work on a
short-term disability, despite the fact that short-term dis-
ability is defined as only an inability to perform the employ-
ee’s job with Respondent. No one disputes the legitimacy of
Jimeson’s or Bailey’s short-term disabilities. This conceded,
it appears that Respondent could, under pain of discharge,
prevent employees receiving short-term disability from en-
gaging in almost any type of activity while on short-term dis-
ability, including housework, vegetable gardening, hobbies,
investments, or other work, however remotely income en-
hancing, despite the fact that in order to qualify for short-
term disability benefits, employees need only not be able to
perform their job with Respondent. Respondent can, how-
ever, make such interpretations, but when it does, it invites
scrutiny when applied to union supporters. Such restrictive
interpretations in the circumstances of this case are suspect.
In my opinion, they were not made in good faith and were
interpreted and applied to Jimeson and Bailey because they
had been open and active union supporters.
In short, I conclude that neither Jimeson nor Bailey vio-
lated any nondiscriminatory interpretation of Respondent’s
relevant policies or rules, and that the narrow and restrictive
interpretations made by Respondent were motivated by a de-
sire to displace active union adherents.
But may not an employer interpret and enforce personnel
policies as restrictive as it wishes even to an absurdity? The
fast answer is ‘‘yes,’’ so long as it does not discriminate. In
this case, Respondent contends that the rules were uniformly
applied and cites examples. However, in none of these exam-
ples does it appear that the employees were working without
compensation, like Jimeson, nor were they essentially selling
items that belonged to them, like Bailey, even conceding that
she did decorate them. Moreover, she sold none of them until
after she was discharged.10 In those examples recited by Re-
spondent, all those employees were employed by other em-
ployers, except for Fuller, who owned his own business.
Having concluded that Respondent was discriminatorily
motivated in interpreting and applying its personnel and
leave policies, and that the assigned reasons were pretexts,
I must, nonetheless apply to this case the Wright Line cri-
teria.11 In this regard, I am satisfied, based on the record,
that the General Counsel has made a prima facie showing,
as it must, that the protected activity was a motivating factor
in the discharges. In this regard, I note that any conceivable
transgressions were unintentional, trivial, did not violate any
policy as written; that both were long-term and apparently
competent employees; and that the discipline was Draconian.
I further conclude that Respondent has failed to meet its bur-
den of demonstrating that Jimeson and Bailey would have
been discharged even in the absence of their protected activ-
ity.
Accordingly, on this record, I conclude that both Jimeson
and Bailey were discharged unlawfully in violation of Sec-
tion 8(a)(3) of the Act.
John Jimeson’s Discharge
Jimeson, a packing department employee, was employed
by Respondent for over 10 years at the time of his discharge
on October 17.12 Jimeson was active on behalf of the Union
from the beginning of the organizational effort in April 1988.
He distributed union authorization cards, attended union
meetings, was a member of the in-plant organizing com-
mittee, and known to be such by management, since the
names of those comprising the in-plant organizing committee
had been submitted to Respondent. Jimeson also distributed
union handbills some two or three times a week outside the
plant on a regular basis during the organizational effort, and
was observed by supervisors of the Respondent. Jimeson
wore union badges and T-shirts at the plant and acted as an
observer for the Union at both the original elections on Octo-
ber 26 and 27, 1988, and the rerun election held on January
25 and 26, 1989. With his wife, Lois, he attended hearings,
presumably NLRB representation case hearings, concerning
matters of employee eligibility. In September 1988, the em-
ployees conducted a march to the post office to publicize the
mailing of union authorization cards it had obtained. The
march was covered by local television, and Jimeson was
interviewed on television.
By way of background, as noted above, it appears that on
the night of March 20, a hand-printed note was discovered
on Respondent’s premises claiming that a bag of Respond-
ent’s IV solution had been injected with a type of alcohol.
Respondent shut down operations for 2 days and contacted
the FBI and local law enforcement agencies. The author of
the note has never been identified, but the FBI did rec-
ommend that certain safety precautions be initiated by Re-
spondent, including the fingerprinting of employees. The
plant employees were advised as early as May 1989 that Re-
spondent intended to fingerprint all employees. In a meeting
during December 1989, Gatlin again, in meeting with the
employees, advised them that fingerprinting would begin in
the plant in October 1989. Gatlin and his staff were
fingerprinted on September 26. Notices were posted on or
about October 2 showing pictures of the staff being
fingerprinted and advising employees that fingerprinting
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 In the meantime, Snyder had been suspended. His discharge and
suspension are treated below.
would begin for the plant on October 13. On October 11, a
memorandum was distributed to supervisors and read to the
employees, again advising that fingerprinting would begin on
October 13 as a ‘‘condition of employment.’’ Fingerprinting
in the plant began on October 13 and went on for some days
in order to accommodate those on leave or otherwise un-
available. The fingerprinting station was set up in the nurses
station to fingerprint the ‘‘stragglers.’’ In all, some 2700 em-
ployees and about 300 contract employees were eventually
fingerprinted.
As to Jimeson, it appears that on Friday, October 13, when
he was summoned to be fingerprinted by Steve Connell,
safety manager, he told Connell, at the fingerprinting site,
that he wanted to see an attorney before he would agree to
be fingerprinted. Connell told him that if he was not going
to be fingerprinted, to leave, to return to his job, and he
would be contacted by a supervisor. Jimeson returned to
work and went to lunch at about 12:20 p.m. with David Sny-
der, who expressed to Jimeson a desire to speak to a lawyer
before submitting to fingerprinting. Jimeson had obtained the
name of a lawyer from another employee, and at lunch, both
tried to contact him without success and returned to work.
At about 1 p.m., Jimeson was approached by Manufac-
turing Supervisor Harry Hollifield and Packaging Supervisor
Bobby Gunter about being fingerprinted, and again he de-
clined without first being able to speak to an attorney.
Hollifield explained that it would be necessary for Jimeson
to speak to Houser about the matter, and he and Jimeson
went to Houser’s office. Several times during the ensuing
discussion, Houser asked Jimeson if he was refusing to be
fingerprinted and Jimeson responded that he was not refusing
but that he wanted first to seek the advice of an attorney and
if the attorney agreed, he would be glad to supply his finger-
prints to the Company. Houser offered Jimeson the use of a
telephone to call a lawyer, but Jimeson declined, opting to
make the call from a pay phone in the plant. He was unable
to reach the attorney and returned to Houser’s office where
he was advised by Houser that he had had ample time to
consult an attorney previously and that if Jimeson refused, he
would be suspended. Jimeson reiterated his position that he
wanted to speak to an attorney before he agreed. Hollifield
removed Jimeson’s I.D. badge. Houser told Jimeson that he
was being suspended pending a full investigation which
could lead to either his return or his termination.
At about 3:30 p.m., Gatlin and Houser, who had pre-
viously discussed the suspensions of both Jimeson and Sny-
der,13 called Tom Hull, corporate employee relations man-
ager, reviewed the suspensions with him and they rec-
ommended that Jimeson and Snyder be discharged for refus-
ing to be fingerprinted. Out of a concern for Lois Jimeson’s
prior contacts with the NLRB, and since the fingerprinting
requirement was unique, it was decided to submit the matter
to the four-member termination review board along with
their recommendation for discharge and, at about 5 p.m.,
Gatlin and Houser contacted Bob deBaun, division vice
president of human resources, one of the termination review
board members, to explain the matter.
On Tuesday, October 17, at about 9:45 a.m., a conference
call was made to the plant wherein Houser and Gatlin were
advised that the termination review board agreed with their
recommendation to terminate.
After leaving on Friday, October 13, Jimeson again called
the attorney, who was out of town, and Jimeson was unable
to reach him until the following Monday, October 16, when
he advised him to give his fingerprints, and to so advise the
Company. At 1 p.m., Jimeson attempted to call Houser at the
plant and was advised that Houser was in a meeting. Jimeson
continued to call Houser without success several times dur-
ing the afternoon at the plant. At about 6 p.m., Jimeson
reached Houser at his home. He told Houser that he had seen
his attorney and that he was ready to come in to be
fingerprinted. Houser told Jimeson that his change in position
was too late; ‘‘after the fact’’ and not acceptable, and told
him that he would call him by 1 p.m. on Tuesday; that
‘‘There are some folks in Chicago that I still have to talk
with, but I will be in touch with you tomorrow.’’ On Tues-
day morning, Houser spoke to Gatlin about Jimeson’s agree-
ment to be fingerprinted and Gatlin agreed with Houser that
Jimeson was too late. Later in the morning during a con-
ference call, they advised the termination review board that
Jimeson had agreed to be fingerprinted but, like Houser and
Gatlin, they took the position that a disciplinary suspension
for insubordination does not provide an opportunity for the
employee to reconsider his action, but only to gather facts
to decide on appropriate discipline. Later, that morning,
Houser called Jimeson and advised him that he was being
terminated for refusing to be fingerprinted. Jimeson’s ‘‘Em-
ployee Separation Report’’ cites insubordination as the rea-
son for separation, along with the explanation, ‘‘Employee
refused to comply with employment requirements
[fingerprinting].’’
David Snyder’s Discharge
Snyder, like Jimeson, worked in the packaging department
and was employed by Respondent for over 10 years until he
was discharged on October 17.
Like Jimeson, Snyder was an active union adherent begin-
ning in May 1988 through both the original and the rerun
elections. Snyder was a member of the in-plant organizing
committee, a fact known to management. He wore union T-
shirts and buttons at the plant and he also participated in the
march to carry union authorization cards from the union hall
to the post office where they were dispatched to the NLRB
to support the Union’s election petition. The march was tele-
vised by local television, and Snyder appeared in the cov-
erage.
With respect to the fingerprinting, as noted above, Snyder
spoke to Jimeson at lunch on October 13 and, like Jimeson,
decided to seek legal advice about being fingerprinted. Sny-
der also believed that a court order might be necessary to re-
quire fingerprinting of the employees. As noted above, they
were unsuccessful in contacting the attorney at lunch and
after lunch, while at work, like Jimeson, he was called to be
fingerprinted. He told Connell that he felt that the Company
needed a court order and that he would seek legal counsel.
Connell advised him that if he refused, he would be sent
home. Nonetheless, he refused and returned to work.
Shortly after Jimeson’s suspension, Hollifield and Gunter
approached Snyder and they told him that they understood
that he was refusing to be fingerprinted. They asked again
if he would be fingerprinted, and when he refused, they es-
955BAXTER HEALTHCARE CORP.
14 General Counsel contends that Jimeson and Snyder were en-
gaged in protected concerted activity in refusing to be fingerprinted
while they sought legal advice and that this, in addition to their other
union activity, was the unlawful basis for their discharges. I do not
agree. It is undisputed that Respondent’s fingerprinting requirement
was, per se, valid, no violation can be predicated thereon. Moreover,
the facts disclose that Jimeson and Snyder were acting independently
and not in concert in refusing to be fingerprinted before obtaining
legal counsel.
corted him to Houser’s office. Once there, Snyder maintained
his position that he was refusing because he felt the Com-
pany needed a court order and he was unable to reach his
attorney. Snyder declined Houser’s offer to use his telephone
to call the attorney and also declined Houser’s offer to use
a pay phone.
Houser told him that his refusal would result in his sus-
pension for the day and that on Monday he would be subject
to termination; or returned to work after an investigation. He
was told to call Houser on Monday and was then escorted
by Hollifield from the plant. That night Snyder called the
union hall and spoke to an official who agreed that the Com-
pany needed a court order, but that their lawyer was out of
town and might get back with him on Sunday. Snyder never
received a call from the attorney and has not since spoken
to an attorney about the matter. Snyder did not call the plant
on Monday but he did call on Tuesday, October 17, at which
time he was advised by Houser that he and Jimeson had been
terminated for refusing to be fingerprinted. It is undisputed
that Snyder has never since agreed to be fingerprinted by the
Respondent.
Analysis and Conclusions—the Discharges of Snyder
and Jimeson
The record establishes that both Jimeson and Snyder were
open and active union adherents and that the Respondent was
aware of their union sentiments and that all of this activity
took place in circumstances wherein the Union was seeking
representation and the Respondent was vigorously opposing
it.14 The question of whether or not Jimeson and Snyder
were discharged because of their union activity requires a re-
view of the record.
First, as to Jimeson, it is not disputed that Respondent
could require, as a condition of employment, fingerprinting
of employees. This being the case, Respondent would have
the right to suspend or discharge any employee who refused
to submit to the fingerprinting. However, based on the pro-
bative facts of this case, Jimeson never refused to be
fingerprinted. What Jimeson sought was time to seek the ad-
vice of counsel on the legality of the fingerprinting require-
ment before committing himself. From the beginning of the
entire incident, Jimeson made it clear that this was his reason
for refusing to be fingerprinted when asked. This is what he
told Houser during his first visit to Houser’s office on Fri-
day, October 13. He made several attempts on Friday to
reach his lawyer and finally succeeded on Monday morning
and was advised to submit to the fingerprinting. He called
Houser right away and several times thereafter during the
day on Monday to convey that message. Finally, he reached
Houser at home at about 6 p.m. on Monday night and told
him he agreed to be fingerprinted. Houser, without hesitation,
rejected Jimeson’s agreement, telling him that it was too late.
Clearly, it was not too late since the matter was still pending
at the corporate level and, in fact, no decision was made
until Tuesday morning.
Respondent, however, contends that this was insubordinate
conduct for which discharge was appropriate. Respondent
likens it to the physical abuse of a supervisor where an em-
ployee is suspended and repents after the abuse to avoid dis-
charge. The analogy limps. In this case, the damage had not
been done. All that was necessary was that Jimeson’s finger-
prints be taken. He has agreed. The basis for the discharge
has been removed. This presented no practical problem since
employees were still being fingerprinted and it would be at
least several more days until the project was complete. There
was no reasonable basis for refusing Jimeson’s agreement to
submit to the fingerprinting, and no reasonable basis for pur-
suing the matter to discharge viewed in a total evidentiary
context, particularly where Jimeson was a long-time and ap-
parently competent employee. I am satisfied that Jimeson
was not allowed and be fingerprinted because Respondent
wanted to remove an active union adherent from the work
force. In essence, Respondent refused to allow Jimeson to
comply with a valid condition of employment and it would
have done so except for Jimeson’s union sentiments and ac-
tivity.
Applying a ‘‘Wright Line’’ concept to the facts persuades
me that the General Counsel has made a prima facie showing
sufficient to support the inference that Jimeson’s union activ-
ity was a motivating factor in Respondent’s decision to dis-
charge him. Further, the Respondent has not met its burden
of demonstrating that it would have discharged him even in
the absence of his union activity. Further, Respondent has
not shown how it would have been in any way disadvantaged
by allowing Jimeson to be fingerprinted. Accordingly, I con-
clude that Jimeson’s discharge violated Section 8(a)(3) of the
Act.
Snyder, on the other hand, once having decided not to be
fingerprinted without first consulting an attorney, did not
thereafter contact an attorney and never thereafter advised
Respondent of his willingness to be fingerprinted so as to
comply with Respondent’s condition of employment. Essen-
tially, Snyder’s refusal to comply with a valid condition of
employment was not justified. In these circumstances, Sny-
der’s termination was not unlawful, even assuming that Re-
spondent welcomed the opportunity to rid itself of a union
adherent. Accordingly, I recommend that the 8(a)(3) allega-
tion as to Snyder be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent’s operations
described in section I, above, have a close and intimate rela-
tionship to traffic and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I have found
that Respondent discharged John Jimeson, Lois Jimeson, and
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
16 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.’’
Ella Mae Bailey for reasons which offended the provisions
of Section 8(a)(3) and (1) of the Act. I shall therefore rec-
ommend that Respondent make them whole for any loss of
pay they may have suffered as a result of the discrimination
practiced against them. All backpay and reimbursement pro-
vided herein, with interest, shall be computed in the manner
described in New Horizons for the Retarded, 283 NLRB
1173 (1987), and F. W. Woolworth Co., 90 NLRB 289
(1950).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging John Jimeson, Lois Jimeson and Ella
Mae Bailey, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Baxter Healthcare Corporation, Marion,
North Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees in order to discourage their
membership in or activities on behalf of Teamsters Local
Union No. 61, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO or any other labor organization.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to John Jimeson, Lois Jimeson, and Ella Mae
Bailey immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
employment, and make them whole for any loss of pay they
may have suffered as a result of the discrimination practiced
against them in the manner set forth in the remedy section
of this decision.
(b) Expunge from its files any references to the discharges
of John Jimeson, Lois Jimeson, and Ella Mae Bailey, and no-
tify them in writing that this has been done and that evidence
of their unlawful discharges will not be used as a basis for
future personnel action against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security records and reports, and all other records nec-
essary to analyze the amounts of backpay due under the
terms of this Order.
(d) Post at its manufacturing and distribution facility in
Marion, North Carolina, copies of the attached notice marked
‘‘Appendix.’’16 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being signed by
Respondent’s authorized representative, shall be posted by it
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places, including 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge employees in order to discourage
their membership in or activities on behalf of Teamsters
Local Union No. 61, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer to John Jimeson, Lois Jimeson, and Ella
Mae Bailey full reinstatement to their former jobs or, if those
jobs no longer exist, to substantial equivalent employment,
and make them whole for any loss of pay they may have suf-
fered as a result of the discrimination practiced against them.
WE WILL expunge from our files any references to the dis-
charges of John Jimeson, Lois Jimeson and Ella Mae Bailey,
and notify them in writing that this has been done and that
evidence of these unlawful discharges will not be used as a
basis for future personnel action against them.
BAXTER HEALTHCARE CORPORATION