Continental Pet Technologies

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 290 (N.L.R.B. 1988)

290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Continental Pet Technologies , Division of Contmen
tal Can Company , Inc and Rosie C Reyna and
Deborah F Baker Cases 26-CA-12027 and
26-CA-12043
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 30 1987 Administrative Law
Judge Richard J Linton issued the attached deci
lion The Respondent filed exceptions and a sup
porting brief and the General Counsel filed an an
swenng brief
The National Labor Relations Board has delegat
ed 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 briefs and has
decided to affirm the judge s rulings findings t and
conclusions and to adopt the recommended
Order 2
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
employee Rosie C Reyna because of the references
to the Union and an election in two anonymous let
ters it received in February 1987 The Respondent
excepted to this finding asserting that it would
have discharged Reyna regardless of those refer
ences because of the nature of the complaints in the
letters and because of her past course of conduct
involving similar complaints We agree with the
judge that the Respondents discharge of Reyna
violated Section 8(a)(3) of the Act Further we
find that the Respondents admission that it dis
charged Reyna in part for the complaints about her
terms and conditions of employment in the Febru
ary 1987 letters establishes that Reyna s discharge
independently violated Section 8(a)(1) 3
' The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Respondent noted in its brief to the Board that subsequent to the
judge s decision the Respondent and discrimmatee Deborah Baker en
tered into a settlement agreement and that consequently the Respondent
was not excepting to the judge s findings concerning Baker Accordingly
in the absence of exceptions we affirm the judge s decision concerning
the discharge of Baker
8 Chairman Stephens agrees with Member Johansen that the Respond
ent violated Sec 8(a)(1) of the Act but finds it unnecessary to reach the
merits of the 8(a)(3) allegation as the remedy for this violation is essen
tialty the same as that for the 8(a)(1) violation Member Cracraft Joins
Member Johansen in his adoption of the judge s finding that the Re
spondent violated Sec 8(a)(3) of the Act but does not pass on whether
the Respondent independently violated Sec 8 (a)(1) as well
Reyna who is white had a history of complain
ing about the black supervisors and employees in
her department Her first serious complaints began
in May 1986 4 when she alleged that a black super
visor was sexually harassing her daughter The Re
spondent investigated this allegation but could find
no evidence to support it In July Reyna com
plained that the black music being played at her
work station made her nervous In response to her
complaint the Respondent banned radios from the
area Two months later in September Reyna re
ceived an oral warning concerning certain unpro
ductive statements she made about the productivi
ty of a black supervisor Shortly thereafter Reyna
informed the Respondent that the supervisor who
had given her the warning had told other employ
ees that Reyna had been written up As a result
of Reyna s complaint the Respondent told the su
pervisor that he should not discuss disciplinary ac
tions with employees In late September the Re
spondent received three anonymous letters in its
Direct Line suggestion box alleging sexual har
assment by one of the black supervisors The Re
spondent investigated the complaints and deter
mined them to be meritless It then sent the letters
for a handwriting analysis and found that the let
ters had been written by Reyna No action was
taken against Reyna at that time although the Re
spondent did post a notice to all employees con
cerning the letters indicating that false and malt
cious allegations would result in termination
In January and early February 1987 Reyna com
plained that black shift leaders were showing fa
voritism based on race among the employees in
her department Again the Respondent found no
merit in this allegation but took no action against
Reyna Also in February 1987 the Respondent re
ceived two additional unsigned letters Again these
letters were sent for handwriting analysis and were
determined to have been coauthored by Reyna and
fellow employee Deborah Baker The letters com
plained of among other things brutality by black
shift leaders favoritism by the black supervisors
toward black employees and harassment by black
supervisors of white employees The letters also re
ferred to a union election and the necessity of
having another election to remedy the situation
Shortly after receiving these letters the Respond
ent discharged Reyna
The General Counsel asserts that Reyna was dis
charged because of the references in the letters to
an election and that her discharge thus violated
Section 8(a)(1) and (3) of the Act The Respondent
maintains that it did not discharge Reyna because
4 All dates are in 1986 unless otherwise noted
291 NLRB No 42
CONTINENTAL CAN CO
of the election references but because of the cumu
lative effect of her past conduct and the vicious
ness of the allegations in the February 1987 letters
The judge found and we agree that the Respond
ent s willingness to tolerate such behavior from
Reyna for 9 months until her remarks included ref
erences to an election indicated that it was the
threat of a union election and not racism that im
mediately motivated Reyna s termination 5
In addition and in any event the Respondent
admits that it discharged Reyna in substantial part
because of her allegations in the February 1987 let
ters that the black shift leaders were engaged in fa
vontism harassment and discrimination against
certain white employees We find that admission
establishes an independent violation of Section
8(a)(1) These complaints address Reyna s and her
coauthors concerns about how they and other em
ployees were being treated by some of the Re
spondent s supervisory personnel, and as such con
stitute protected concerted activity, unless they
were pursued in a manner that strips them of the
Act s protection The question becomes then
whether Reyna s conduct has lost that protection
because of a racially hostile attitude
The Board has long held that protected conduct
will lose that protection only if it is offensive de
famatory or opprobrious and not if it is merely
intemperate inflammatory or insulting Container
Corp of America 244 NLRB 318 321-322 (1979)
Although we in no way condone racially derogato
ry remarks or imply that an employer may never
discharge an employee for such behavior we find
that the statements in the February 1987 letters,
even in light of Reyna s earlier racial statements 6
are not so offensive that they lose the protection of
the Act Compare Caterpillar Tractor Co 276
NLRB 1323 1324 (1985) (employees discharge not
unlawful where his graphic cartoon depiction of a
supervisor was vulgar offensive and defamatory)
Accordingly we find that by discharging Reyna
the Respondent has violated Section 8(a)(1) and (3)
of the Act
5 We note that the judge in finding a discriminatory motivation for
Reyna s discharge erroneously stated that because he disbelieved the Re
spondent s proffered reason for Reyna s discharge the opposite propose
lion must be true and concluded that the union election references in the
February 1987 letters were the motivating factors in her termination The
Board has long held that credibility resolutions are properly used to re
solve issues of fact Motivation in the absence of direct evidence is gen
erally established through inference from the record as a whole Heath
International 196 NLRB 318 (1972)
B Even though many of Reyna s edrller statements included racial ref
erences most of those statements constituted complaints about working
conditions In fact on at least two occasions the Respondent took steps
to correct the conditions that were the subjects of Reyna s complaints
Accordingly we do not find that Reyna s past conduct was so egregious
that it causes the conduct for which she was discharged to lose the pro
tection of the Act
ORDER
291
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Continental
Pet Technologies Division of Continental Can
Company Inc, Olive Branch Mississippi its offi
cers, agents successors, and assigns shall take the
action set forth in the Order
Margaret Guill Brakebusch Esq for the General Court
sel
Diane E Stanton Esq and Edward M Cherof Esq (Jack
son Lewis Schnitzler & Krupman) of Atlanta Georgia
for the Respondent
Rosie C Reyna of Horn Lake Mississippi for herself
Deborah Faye Baker of Collierville Tennessee for her
self
DECISION
STATEMENT OF THE CASE
RICHARD J LINTON Administrative Law Judge This
is a discharge case The bottom line finding I make is
that Respondent unlawfully fired Rosie C Reyna and
Deborah F Baker in March 1987 I order Respondent to
offer them immediate reinstatement and to pay them
backpay with interest
This case was tried before me in Memphis Tennessee
on 12-13 August 198711 pursuant to the 29 May 1987
complaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 26 of the Board The complaint is based on a
charge filed 11 March 1987 in Case 26-CA-12027 by
Rosie C Reyna an individual and on a charge filed 19
March 1987 in Case 26-CA-12043 by Deborah F Baker
an individual against Continental Pet Technologies Di
vision of Continental Can Company Inc (Respondent or
CPT) 2
In the complaint the General Counsel alleges that the
Respondent violated Section 8(a)(1) and (3) of the Act
by discharging Reyna on 7 March 1987 and Baker on 11
March 1987 because they joined or supported Graphic
Communications Union Local 231 M or because they
engaged in protected concerted activities There are no
independent allegations of interference restraint or coer
cion by statements of Respondents officials The corn
plaint does allege that Baker s discharge constitutes an
independent violation of Section 8(a)(1) of the Act
By its answer Respondent admits certain factual mat
tern but denies violating the Act
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and the Respond
ent I make the following
1 This manner of setting forth dates complies with the wishes of the
Board
2 All dates are for 1987 unless otherwise indicated
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION
Respondent CPT is a Maryland corporation with a
plant in Olive Branch Mississippi where it manufactures
plastic containers During the past 12 months CPT sold
and shipped from its Olive Branch facility goods and
materials valued in excess of $50 000 direct to points out
side Mississippi Respondent admits and I find that it is
an employer within the meaning of Section 2(2) (6) and
(7) of the Act
II LABOR ORGANIZATION INVOLVED
Respondent admits and I find that Graphic Commu
nications Union Local 231 M (the Union or Local 231)
is a labor organization within the meaning of Section
2(5) of the Act Despite the admitted allegation of the
pleadings it appears that the correct name of the Union
is Graphic Communications International Union AFL-
CIO Local 231 M NLRB Style Manual 55 56 (1983)
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
Four witnesses all called by the General Counsel tes
tified before me James W Barry the plant manager
Vivian Elaine Hayeslip Respondents human resources
(HR) supervisor Mark Morton maintenance man in the
blow mold department and Carolyn D Haney a forklift
driver Neither of the Charging Parties Reyna or Baker
testified Following the testimony of the four witnesses
the General Counsel rested (2 324) 3 CPT moved for dis
missal of the complaint on the ground that the General
Counsel had failed to establish a prima facie case (2 325)
When I denied the motion to dismiss Respondent rested
(2331 333)
B Background
1 CPT s business operation
Human Resources Supervisor Hayeslip testified that at
the Olive Branch plant CPT manufactures plastic bever
age bottles tennis ball containers and a vegetable oil
bottle In March 1987 there were about 145 to 150 em
ployees hourly and salaried working at the plant (1 84
Hayeslip)
As Hayeslip described the plant s operation is divided
into three departments with department managers report
ing to Plant Manager James Barry Shift supervisors
report to the department managers (1 82 83) The quality
control department has shift leaders an additional layer
of supervision who report to the shift supervisor Part of
the plant works 8 hour shifts and part 12 hour shifts
(1 156) Hayeslip reports directly to Barry (1 83)
The department principally involved here is the qual
ity control department Reyna and Baker worked as
quality control inspectors on the second shift 3 30 to
11 30 p in (1 84 155) The shift supervisor for that shift
3 References to the two volume transcript of testimony are by volume
and page
in the quality control department (QCD) is Richard
Stumpf During the relevant timeframe there were about
15 to 23 employees working in QCD Most are quality
control inspectors with two technicians and supervised
by four shift leaders working 12 hour shifts around the
clock in crews A B C and D ( 1 78 85)
2 Labor relations history
Since the plant opened in 1979 Hayeslip testified it
has remained nonunion and Respondent prefers to
remain that way (1 183 184) CPT s nonunion philosophy
is expressed on pages 5-6 of its employee handbook
Hayeslip testified that a revised edition of the handbook
was distributed in January (1 184) No allegation of the
complaint attacks the legality of the handbooks Ian
guage Respondent s philosophy states (G C Exh 25 at
5-6)
What About Unions?
Here at Continental PET Technologies both the
working conditions and our personal relationship as
a team have always been good You can talk to us
we can talk to you and we hope to keep it that
way Each employee is treated as an individual and
is an important participant in the operation of our
plant
In today s uncertain world there are many pres
sures and anxieties That s why we want to keep
our plant free from any artificially created tensions
and work interruptions that often arise when a
union is on the scene The vast majority of employ
ees throughout the United States have chosen NOT
to have a union We think their choice is a good
one
Continental PET Technologies strongly believes
that real concern for each individual in our team
provides the best possible climate for your maxi
mum development and the achievement of your
goals and those of the Company We do not believe
that union representation would be in the best inter
est of either you your family or our Company
We believe that a union would be of no advan
tage to any of us here to any of our customers or
to the business growth on which we all depend for
our livelihood We sincerely believe that any out
side third party such as a union could seriously
impair the relationship between this Company and
its employees that a union could retard the growth
of our plant and the progress which we all have
made in the past
We at Continental PET Technologies have ac
cepted our responsibility to provide you with good
working conditions wages and benefits which are
equal to or better than the average of our competi
tors or industry fair treatment and the personal re
spect that is rightfully yours These programs have
been developed and improved as our business has
grown We have been fortunate in being able to
continually improve all our programs All this is
part of your job with the Company and need not be
purchased from an outside party
CONTINENTAL CAN CO
We know that you want to express your prob
lems suggestions and comments to us so that we
can understand each other better You have the op
portunity for such expression here at Continental
and you can do so without having a union cut off
the direct communication between you your super
visor and our entire management team Here you
can speak for yourself-directly to us We will
listen and we will do our best to give you a respon
sable reply
In the spring of 1986 the Union filed a petition for a
Board conducted representation election in Case 26-RC-
6841 By his 28 March 1986 Decision and Direction of
Election the Regional Director found the following em
ployees to be an appropriate bargaining unit (G C Exh
33)
All production maintenance warehouse employees
and quality control employees employed at the Em
ployer s Olive Branch Mississippi plant Excluding
all office clerical employees and supervisors as de
fined in the Act
In his Decision and Direction of Election the Region
al Director found the shift leaders to be statutory super
visors and excluded them from the bargaining unit
During the preelection period Hayeslip testified CPT
held meetings with employees and asked employees to
vote against the Union (1 187-188) The parties stipulated
that in the 24 April 1986 election there were 93 no votes
to 21 yes and that a certification of results issued 2 May
1986 As further stipulated by the parties the Union s
two election observers were Reyna and Ann McCurdy
(1 66-67)
On 18 June Reyna was given a written warning dated
17 June (G C Exh 4) for approving 51 pallets of prod
uct for release when the items had been marked HFI
(1 99-100 Hayeshp) HFI is an abbreviation of Hold
for Inspection (1 104) According to the warning signed
by Quality Control Supervisor Rick Stumpf 18 of the
pallets were determined to fall short of Respondent s
specifications for the product Apparently former ob
server Ann McCurdy also received a warning for some
alleged infraction for 2 days later on 19 June Floy Ann
McCurdy filed a charge in Case 26-CA-11669 alleging
CPT had violated Section 8(a)(3) of the Act on 18 June
by disciplining her and Rosie C Reyna (G C Exh 24)
At the hearing the General Counsel represented that on
25 June the Regional Director approved a request to
withdraw the charge (1 146)
There is some evidence that in early 1987 the Union s
interest in organizing Respondents employees was either
still alive or had revived Maintenanceman Mark Morton
testified that during the January-March period Reyna
asked him on several occasions to come to some union
meetings Saying he would think about it Morton never
attended although he had supported the Union in the
1986 campaign Morton never informed management of
Reyna s solicitations (2 252 255) There is no other evi
dence of a 1987 campaign by the Union nor is there any
direct evidence CPT thought a 1987 campaign had
begun
293
3 Nondiscrimination policies
As we see shortly allegations of race discrimination
and sexual harassment figure prominently in this case
CPT s nondiscrimination policy appearing at page 4 of
the employee handbook reads
Non Discrimination
It is the Company s policy to recruit hire train
and promote persons in all job levels without regard
to age race color marital status disability religion
sex or national origin To ensure the decisions of
fectmg the employees are in accord with the princi
ples of the Equal Employment Opportunity only
valid requirements and selection criteria will be uti
hzed Further all other actions which affect em
ployees such as compensation transfers vacations
sick leave personal leave company sponsored train
ing social or recreational programs etc will be ad
ministered without regard to age race color man
tal status handicap religion sex national origin or
veteran s status
All supervisory and management personnel are
responsible for assuring that our policy on Non Dis
cnmmation is fully effected in their specific area of
management control
The Human Resources Department is assigned
overall administrative responsibility for assuring
compliance with this policy
Although Respondents nondiscrimination policy ex
pressly includes sex discrimination CPT goes further
and at 20 of the employee handbook CPT prohibits
sexual harassment by anyone The statement reads
Sexual Harassment Policy
It is Continental Can Company s policy that
anyone in our organization who is found to have
engaged in sexual harassment of another employee
will be subject to disciplinary action
Any employee who feels that he/she is the
victim of a workplace incident of sexual harassment
is encouraged to discuss the matter with the respec
tive Human Resources Representative or the Plant
Manager who will conduct a review and report the
results to the Division Human Resources Manager
so that a resolution of the sexual harassment claim
may be reached
HR Supervisor Hayeslip testified that copies of the
above policy prohibiting sexual harassment also have
been posted on the bulletin board for at least 2 years
One of the copies is in the form of a statement from Re
spondent s corporate office and the second is from the
plant manager (2 278-279 283) The division human re
sources manager referred to in the quoted policy is
identified in the record as Robert Adams whose office is
at the corporate headquarters in Norwalk Connecticut
(1 37 Barry 1 167 2 284 Hayeslip) Hayeslip testified
that every complaint of sexual harassment is reported to
Adams office Such complaints are investigated by
Hayeslip or in her absence by Barry himself (2 279)
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Open communication policy
At separate places in the employee handbook Re
spondent expresses its open communications policy by
(1) a commitment to communicate with our employees
in an open straight forward manner creating an environ
ment conducive to excellence in which the individual is
valued and respected (G C Exh 25 at 2) and (2) a
topic for Questions Suggestions and Complaints (G C
Exh 25 at 20-21) The latter encourages employees to
report to supervision management or the human re
sources department any problem bothering the employee
about her job or if the employee feels he or she is not
treated fairly
To facilitate communication CPT uses a concept it
calls the Direct Line Barry ( 1 48) and Hayeslip (1 96-
97) described that avenue of communication as a type of
suggestion box An employee who does not have to iden
tify herself may offer a suggestion or make a complaint
simply by dropping a note in Direct Line CPT re
sponds Only Barry or Hayeshp checks the Direct
Line box and if Hayeslip removes the note she gives it
to Barry Normally employees leave no more than one
note a day in the Direct Line ( 1 111-112 Hayeslip)
C Evidentiary Ruling
A significant portion of the evidence in the case con
sists of reports many in writing usually to HR Supervi
sor Hayeslip of statements allegedly made by Reyna or
Baker to others Many of these reports were offered
under the business records exception to the hearsay
rule At the hearing I received these reports on a limited
basis and not for the truth of the hearsay statements
contained in them ( 1 128-130 139- 140) This is particu
larly important in this case because of the many accusa
tions of sexual harassment and racial discrimination The
mere fact that descriptions of these alleged incidents re
corded in memos letters or warnings to employees are
routinely placed in the personnel files of affected em
ployees does not render such hearsay descriptions admis
sible in evidence for the truth of the matter alleged
simply because one party or the other or both classify
them as business records
In prior parlance true business records were classified
as an exception to the rule excluding hearsay and appro
priate business entries would therefore be received for
the truth asserted McCormick Evidence §§ 304-306
(Cleary 3d ed 1984) Although Rule 803 (b) of the Feder
al Rules of Evidence has greatly enlarged the range of
covered business activities the new rule does not justify
receiving for the truth of the matter asserted hearsay as
sertions simply because such hearsay has been placed in
a personnel file or incorporated in a report to manage
ment
For these considerations I consider all such reports
whether A ntten or oral as nothing more than the basis
on which Respondent took whatever action it took That
is the documents are relevant for the limited purpose of
showing state of mind or motivation For that limited
purpose the data is not hearsay and the time honored
practice is to receive such course of action evidence
on that limited basis McCormick at § 249
Notwithstanding positions expressed at the hearing
about the reports being business records and thus an
exception to the rule excluding hearsay no party con
tends I must find that in fact an allegation was made or
not made or that sexual harassment or racial discrimina
tion in fact occurred or did not occur Respondents de
fense is served by its being able to rely on the reports it
received and on its factfinding investigations as the
basis for its discharge of Reyna and Baker Whether
CPT s asserted reliance is true goes to credibility not to
admissibility
The thrust of the General Counsels case does not lie
in attempting to prove or disprove the accusations or the
innocence or guilt of those accused She takes the re
ports and factfindings that CPT had before it (CPT con
cluded Reyna was making false accusations of sexual
harassment and racial discrimination out of malice
against black supervisors ) and argues that Respondent is
using Reyna s alleged misconduct as a pretext to get rid
of a union troublemaker In the usual case the General
Counsel calls the alleged discnminatees Charging Parties
Reyna and Baker as witnesses to rebut the grounds of
misconduct a respondent employer CPT has assigned as
the basis for discharging them Neither Reyna nor Baker
testified As mentioned the General Counsel did not at
tempt to prove or disprove the alleged incidents of
sexual harassment and racial discrimination Thus it is
sufficient for the General Counsels purpose as well as
for the Respondents that the reports findings and con
clusions of CPT be considered for the limited purpose of
showing why CPT fired Reyna and Baker The credibil
ity of Barry and Hayeslip regarding that asserted basis is
a separate matter
D Rosie C Reyna
1 Introduction
Quality Control Inspector Rosie C Reyna was hired
in 1979 the same year CPT opened its Olive Branch
plant It was not until May 1986 HR Supervisor Hayes
lip testified that Respondent began having serious prob
lems with Reyna s conduct at work ( 1 84 95 163-165)
Respondent fired Reyna on 6 March 1987 some 9
months after the problems surfaced As Plant Manager
Barry ( 140) and Hayeslip (1 92 163-166) testified CPT
fired Reyna for multiple reasons The reasons given are
based on incidents occurring from May 1986 to February
1987
According to Hayeslip the decision to terminate
Reyna was made in the first few days of March (1 94
166) Hayeslip testified that on Friday 6 March she tele
phoned Reyna who was on a 1 week vacation to come
to the plant That day Friday 6 March Reyna reported
to the plant as instructed with no prior notice that she
was to be disciplined When Reyna arrived Hayeslip
gave her a termination letter dated 6 March 1987 (1 93
162 166) Barry (139) and Hayeslip ( 192) agree the
letter sets forth the reasons for Reyna s discharge The
letter reads (G C Exh 2)
CONTINENTAL CAN CO 295
Dear Rose
This is to confirm your termination of employ
merit with Continental PET Technologies effective
March 7 1987
Your termination is for malicious mischief caus
ing general disruption in the workforce by initiating
false rumors continuing to resist cross training of
forts of the Quality Control Department and dem
onstrating an attitude toward minorities unaccept
able under the company s policy as an Equal Em
ployment Opportunity Employer
Your final paycheck to include the remainder of
your 1987 vacation pay will be mailed to your
home next week
Continental PET Technologies
/s/ R F Stumpf
R F Stumpf
Quality Control Supervisor
The reference to malicious mischief is an apparent
reference to one of CPT s Company Rules & Regula
tions which begin at page 17 of the employee handbook
(G C Exh 25) The second introduction paragraph
reads
Certain specific rules of conduct are observed by
the Company and violations of these rules of con
duct may lead to disciplinary action up to and in
cluding discharge Examples of intolerable infrac
Lions of the rules of conduct are as follows
A list of 26 unnumbered examples is given Number 23
by my count reads
Malicious mischief including defacing or marking
walls of buildings destroying or damaging Compa
ny property or that of another employee
Before we dwell too long on the examples listed after
the ground of malicious mischief I should observe that
Respondent added another and more relevant example in
October 1986 I describe it later
Respondent s rules contain no defined steps for pro
gressive discipline Thus depending on how CPT views
an infraction discipline for even a first offense (or pre
sumably the last in a series for which no prior warning
was given) can range from an oral warning up to and
including discharge As we shall see in arguing that the
General Counsel failed to establish a prima facie case
Respondent points to the General Counsels failure to
show any disparate treatment The General Counsel does
not contend that Respondent had a past practice of pro
gressive discipline regarding other employees before it
discharged Reyna On the other hand the General
Counsel urges that Respondents failure to warn Reyna
in light of all the circumstances is indicative of an un
lawful motive As we see in Baker s case Baker received
one warning and then a final warning before her ter
mination
2 Sequence of events
a Sexual harassment allegation-May 1986
It appears that in May 1986 Margaret Martin a daugh
ter of Reyna s was working at the plant in the injection
molding department The department manager is a black
male Sherman Hinton Ron Shullinsky4 is the manager
of another department Hayeslip testified that while
Hayeslip was out of town Reyna complained to Shul
linsky that Hinton was sexually harassing her daughter
Margaret Martin and that Reyna was going to report
this in the Direct Line After Shullinsky encouraged her
to do so Reyna said her daughter was afraid and did not
want to mention it Reyna said however that employee
Clair Hearn was a witness and had overheard whatever
remarks Hinton allegedly made (There is no description
in the record of the remarks )
Shullinsky apparently reported the matter to Barry
who in Hayeslip s absence investigated by interviewing
Clair Hearn According to Hayeslip who later learned
the results of the investigation Hearn said she had not
heard or seen anything concerning the incident reported
to Barry The matter was pursued no further because
Reyna had said her daughter was afraid and did not
want the incident mentioned So far as Hayeslip knows
no one told Reyna the results of the limited investiga
tion nor was Reyna disciplined for making in Hayeslip s
term an unfounded accusation (1 95-99)
Whether Reyna s accusation was unfounded in fact is
immaterial to the case at hand Theoretically there could
be merit but Reyna s witness Hearn and any witnesses
on other incidents could have decided against disclosing
their information to Barry or to Hayeslip Also in
theory Reyna could have made this accusation and per
haps others on a good faith belief in her position even
though in fact accusations were inaccurate and untrue
Nevertheless the point to be made and the evidence es
tablishes it clearly is that at the very least Reyna has a
quick lip That is Reyna makes accusations without
first ascertaining whether she has either (1) witnesses
who will support the accusations or (2) other confirming
evidence Moreover Reyna particularly needed a witness
on her Hinton accusation because Reyna herself was not
an eyewitness Her accusation was based on hearsay Fi
nally the possibility exists that Reyna made her accusa
tions maliciously because she did not think blacks should
be supervisors As we shall see Respondent offered un
rebutted evidence of the latter possibility As we have
seen since most such evidence was based on hearsay I
received the reports Respondent offered for the limited
purpose of showing why Respondent elected to fire
Reyna
Hayeslip testified the accusation against Hinton was
reported to the corporate office Had the accusation been
meritorious Hayeslip testified Hinton could have been
fired (2 279-280)
4 I have given the spelling as shown in Respondent s brief (at 7) rather
than that reflected in the record
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b The lab radio and black music-22 July 1986
Hayeslip testified that on 22 July 1986 Reyna com
plained to her that the radio in the quality control lab
was always on the black music she could not concen
trate it made her nervous and she wanted Hayeshp to
do something Hayeslip spoke to QC Supervisor Stumpf
who although saying he had not noticed the music being
too loud and had not received any other complaints
about it simply banned radios from the lab Hayeslip s
testimony follows a memo dated 22 July 1986 that
Hayeslip placed in Reyna s personnel file (1 101) The
two paragraph text of the memo reads (G C Exh 5)
On the afternoon of July 22 1986 Rose Reyna
stopped me in the hall to voice a complaint that
Rorie Wilson (QC Leader) and Clair Hearn were
playing the radio too loudly in the lab She stated
they keep the station on that old Black music all
the time and I cant stand it She said that this
makes her nervous and unable to concentrate on her
work when she s in there
I spoke with Rick Stumpf QC Supervisor re
garding the above He had not noticed the music
being too loud and had no other complaints con
cerning this however in order to address Rose s
complaint Rick informed his employees that there
would be no radios allowed in the lab
As earlier noted Hayeshp explains that HFI is an
abbreviation for Hold for Inspection ( 1 104) Although
race is not ostensibly involved on this matter Hayeshp
testified that Joyce Taylor is black and Jerry Oliver is
white ( 1 103 106 157) Shift Leader Willett is black
(188 169-170) As Hayeslip explained the down
stream area is in the blow molding department and
there are several quality control stations in the down
stream area ( 1 161-162) It is unclear whether Joyce
Taylor and Jerry Oliver are shift supervisors (of different
shifts) or shift leaders who report to a shift supervisor
d Reyna s 19 September 1986 complaint to Hayeslip
about black shift leaders
Two days after receiving the warning from Stumpf
and Willett Reyna on 19 September went to Hayeslip
In Hayeslip s office Reyna complained that Willett and
the other black shift leaders were trying to take over and
run everything and that the whites no longer have a
chance Reyna said her job was her bread and butter and
that she was not going to quit Hayeslip described Reyna
as being angry on this occasion Hayeslip s testimony
tracks a four paragraph file memo she prepared follow
ing her conversation with Reyna Hayeslip discussed
Reyna s complaint with Stumpf and Plant Manager
Barry ( 1 106-109) The last three paragraphs of the text
of her file memo read (G C Exh 7)
c Reyna warned 17 September 1986
Hayeslip identified a reprimand form prepared and
signed 17 September 1986 by QC Shift Leader Tommy
Willett concerning Reyna QC Supervisor Rick Stumpf
also signed the write up with the remark I talked
with Rose about this matter This is a verbal warning
According to Hayeslip Stumpf conferred with Hayeslip
and described matters to her before he imposed the disci
pline on Reyna CPT s procedure Hayeshp testified is
to show the wnteup to the employee and the employee
is given the opportunity to sign Reyna did not sign this
reprimand Stumpf told Hayeslip that Reyna was given
the opportunity to read and sign the document (1 103-
106) The text of Willet s counseling report reads (G C
Exh 6)
On Sept 17 1986 at 9 30 p in Rose Reyna was
counselled concerning unproductive statements she
made to myself and to Blow Molding operators
Mitch and Judy
Her statements were Quality Control never HFIs
any product from Joyce s (Taylor) shift but HFIs
everything from Jerry s (Oliver) shift And she said
that sure if I were felling bad I could HFI every
thing too My impression was that she was imply
ing that the downstream Q C inspectors perform
ance vanes to a great degree upon how she s feel
ing
I reminded Rose that negative detrimental state
ments about company personnel or procedures were
unacceptable I asked her to become a positive on
ented team player and to help solve problems not
add to them
Rose s complaint was that Tommy had told other
hourly employees that she had been written up
She was very angry and remarked He thinks he s
so smart He makes me feel cheap as dirt' These
Blacks are just trying to take over The whites
don t have a chance any more with these Black
Shift Leaders running everything' But this is
my bread and butter I ve been here too long to quit
now and I in too old to find another job Why don t
we just take that union or that NLRB-whoever it
was that said the Shift Leaders have supervisory au
thonty and flush it down the toilet
I assured Rose that I would speak to Rick
Stumpf concerning her complaint on Tommy
As a follow up on this complaint Rick cautioned
Tommy that he should not discuss disciplinary ac
tions with people on the floor Tommy agreed to
acknowledge this
e The September 1986 Direct Line letters
One day during the last week of September 1986
Hayeslip testified three unsigned notes (G C Exhs 8-
10) were deposited in the Direct Line It is unusual to
have three with one being the usual number ( 1 110-112)
The first note (G C Exh 8) handpnnted in small let
ters on a single sheet of paper is addressed to Mr
Erwin (George Erwin manager of manufacturing) It
begins by asking Erwin to talk to QC Supervisor Stumpf
concerning the anonymous author asserts that QC Shift
Leader Tommy Willett is sexually harassing the white
QC inspectors and threatening to issue them reprimands
if they tell one another The inspectors are afraid of Wil
lett because the author alleges he start hit his fist at
CONTINENTAL CAN CO 297
them and start s argument Willett also the note contra
ues locks the door with ladies in the room and uses ob
scene language You G D M F S 0 B you white
trashes woman s you don t know what G D H you
doing
Willett also continues the author starts many nasty
rumors and slanders the inspectors names all over the
plant And
Tommy Willett starts gossip not the white ladies
They helpless cause Rick Stumpf is not concerned
of what goes on he Q C Dept he let the shift
leader make his decesion
In the next paragraph the author alleges that Willett
makes many telephone calls takes items home from the
lab and the warehouse and steps outside the building for
2 and 3 hours at a time and then becomes angry when
the inspectors do not do the preforms which appar
ently Willett is to do Willett also
[W]alks arun gossiping another black man about the
white woman s put out for the black man They
comphan to Rick [Stumpf] bust is a helpless case is
a sad thing That in fact happened to Deborah
Baker Couse Tommy Willett started the nasty
rumors
Beginning I have a complian on Tommy Willett
about the way he harress the inspector on D shift white
only the second note is also handprinted but with
larger letters (G C Exh 9) Addressed to Erwin the
second note a bit shorter than the first essentially makes
the same allegations as the first note although the
second note does not refer to Deborah Baker
The third note addressed to Plant Manager Barry is
in script and begins with the same words and misspelling
as the second I have a complian (G C Exh 10) The
third note the shortest of the three mainly complains
that Willett gets angry when the inspectors do not want
to do his work Please help the note ends
After reading these notes Hayeslip testified she had
the impression they were written by Reyna Familiar
with Reyna s handwriting from the fact Reyna as a
reporter for the newspaper (presumably CPT s plant
newspaper) would submit articles and observing that
the notes accused Willett Hayeslip tried to reconstruct
who would have a reason to be angry at Willett After
discussing the notes with Barry and Stumpf and search
ing through the files for any similar hand printing (ap
parently finding none) Hayeslip began an investigation
of the allegations Her investigation consumed the last 2
or 3 workdays in September (1 121-122 131 142)
Hayeslip interviewed seven inspectors including
Reyna and Baker All of those interviewed are apparent
ly women Hayeshp then dictated a five page report
(G C Exh 12) Because Hayeslip s secretary works only
3 days a week typing of the report was not completed
and dated until 14 October 1986 (1 131) Except as to
some minor points those interviewed denied knowledge
of any factual bases to the accusations made in the three
Direct Line notes According to Hayeslip s report Baker
denied to Hayeslip that Willett has ever sexually har
assed her Baker also said she knows of no other woman
in the plant who has had such a problem with Willett
She denied that he had ever called her into the office
and shut the door
Explaining that she takes shorthand and in light of her
belief Reyna authored the notes to Direct Line Hayeslip
made a point to record verbatim her questions and an
swers with Reyna (1 132-133) Reyna denied being sexu
ally harassed by Willett and did not mention knowledge
of such by him as to any other inspector (1 133-134
143 2 281) Hayeslip s report regarding the Reyna inter
view reads (G C Exh 12 at 3-5)
Interview Rose Reyna Q C Insp 2nd Shift
Listed below are the questions asked along with
Rose s responses
Have you ever been sexually harrassed by T
Willett verbally or physically?
No I haven t The men I have to work with
have all been nice to me
Have you ever heard T Willett curse?
No
Have you ever seen him in the Shipping Office?
No
Have you ever seen him leave the building
during working hours?
I can t remember
Has he ever called you in an office and shut the
door?
Yes he has He took me in that dark room and
shut the door Then he sends all the other people
away I don t know who he thinks he is taking
me in there like that and him dust being a little
old shift leader
It just don t look nice being shut up in there with
a black man like that Now Rick (Stumpf) does that
sometimes but he s a white man and we expect
that-that s his job and that s okay Don t get me
wrong-I am t got nothing against blacks I dust
think they should stay in their place
Was the light off in the office while Tommie was
talking to you?
No the light was on
In any way did he do anything out of line in the
form of sexual advancement or harrassment either
verbally or physically?
No he didn t do nothing like that If he did I
would have given him a black eye
Do you know of any other women in the plant
who has had a sexual harrassment problem with
Tommie?
No I haven t heard of anybody having that kind
of problem but Pat is having trouble with him She
didn t say what the problem was except they
couldn t satisfy him and he takes them in and talks
to them
All of the women are upset with him He has
been nice this week We are all wondering why he
is so cool now But he knows how to pull his
dirty tricks I ve been here too long though to give
it up just because Tommy can t get along with us
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He told all the black people he was going to
write me up
Whom did he tell'?
Girtha (Hoggs) Pat (Thronberry) Terry (Jones)
and Roxie (Wilson)
Did each one tell you this themselves9
Yes you should have heard the way he talked to
me He made me feel like trash He tried to make
me look stupid It made me sick-I mean it make
me sick
That s what happened to Deborah Baker when
Mike Oystern spanked her on the butt with that
board Roxie repeats too many things They made
Deborah look like a fool
That situation was investigated and it was deter
mined that he bumped her accidentally
That s what they made it out to be'
By memo dated 2 October 1986 Stumpf advised
Hayeslip (1 135 G C Exh 13)
On 10/1/86 I spoke with Tommy Willette re
garding the recent Direct Line accusation of sexual
harrassment Tommy denied sexually harrassing
anyone He also told me he was expecting some
thing like this after giving Rose her warning
/s/ Rick Stumpf
Rick Stumpf
QC Supervisor
Hayeslip concluded there was no validity to any of the
complaints registered in the Direct Line notes (1 137
143) In Barry s office about Thursday 2 October 1986
Barry and Hayeslip and possibly Stumpf decided Reyna
should be fired (2 284) They telephoned Robert Adams
division manager of human resources relayed their deci
sion and reviewed the sequence of events They dis
cussed by conference call these events including the ac
cusation against Hinton in May Adams also was aware
of the NLRB charge that had been filed in May naming
Reyna since he had represented CPT in the investigation
of that charge by NLRB Region 26 (2 284-285 293)
Adams recommended that Reyna not be discharged
and he suggested that the local management deal with
the problem by posting a notice to all employees so that
Reyna could receive notice without being singled out
Adams made this recommendation Hayeslip testified
with the hope that such notice would be sufficient to put
a stop to such accusations (2 285-286) The group decid
ed against discipline of any kind for Reyna (2 304-305)
Respondent did not confront Reyna with its conclu
Sion that she had submitted the three notes to Direct
Line When asked why Reyna was not confronted or
given an individual warning Hayeslip testified there
were several reasons First when Reyna became irritated
the issue spread all over the plant CPT concluded that if
it warned Reyna for what she put in Direct Line then
word would spread through the plant that an employee
can get into trouble for what he or she puts in Direct
Line As that would destroN the very concept of open
communication for which Direct Line was created CPT
hoped it could deal with the problem by a general notice
to all employees (1 135 137-138 144)
Plus Hayeslip added to be frankly honest in June
we had warned her one time and had an NLRB suit
threatened So we were trying to handle it with the least
waves possible Asked about the suit threat Hayeslip
explained that it was not a threat but when Reyna had
received her September warning she had gone to the
NLRB to say we did it because of union activity and we
were gun shy I guess Hayeslip testified Reyna filed a
charge at that time it was investigated and therafter
dropped (1 144-145) At that point in the hearing a collo
quy ensued between the attorneys and me concerning the
charge McCurdy had filed 19 June 1986 (G C Exh 24)
naming her and Reyna as discriminatees It is clear
Hayeslip was momentarily confused about dates So far
as the record reflects the only previous contact Reyna
had with NLRB Region 26 was concerning the charge
Floy Ann McCurdy filed 19 June 1986 in Case 26-CA-
11669 Recall that McCurdy withdrew the charge a
week later (1 146)
The next day 3 October after the conference call
CPT posted a two page notice signed by Manager of
Manufacturing Erwin and Plant Manager Barry Hayes
lip testified that although the notice covers a couple of
other points the primary reason for posting the memo
was in response to the three unsigned notes placed in
Direct Line (1 136 2 286) The first two paragraphs of
the notice read (G C Exh 14)
RESPONSE TO DIRECT LINES
Over the past couple of months in particular in
the last few weeks we have received a number of
complaints and specific accusations directed at mdi
viduals while the person(s) stating the complaint or
accusation opted to remain anonymous We can un
derstand why someone might not want their name
to be known however they should realize that in
doing such it becomes extremely difficult for Man
agement to respond to these accusations in deter
mining the facts for which the accusation is based
on and communicating with the person(s) making
the accusations To act upon these based on pure
heresay is totally unfair and unjust to the accused
party These accusations must be investigated to the
best of our ability and in doing so it requires that
we talk to the people who are making these in
order to determine all the facts
What we attempt to do is to review with the ac
cusing party their complaint and then to address
specifically with the accused the points brought
forth by the accuser In some cases generally in
most cases we find that there is a misunderstanding
or a misinterpretation between the parties involved
When dealing with an anonymous complaint and
specifically when the complaint is extremely serious
in nature we again have to investigate the accusa
tion to the best of our ability and we will do so In
doing so if we determine that the accusations are
false we can only then assume that these accusa
CONTINENTAL CAN CO 299
tions were made with the sole intent of being slap
derous and malicious
After Adams received a copy of the memo he called
Barry and said a second and stronger notice should be
posted (2 287) Accordingly on 9 October Barry posted
the following memo (1 140-141 G C Exh 15)
TO ALL EMPLOYEES !
To clarify the October 3 1987 Response to
Direct Lines notice any person or persons found
to be making false accusations which are slanderous
and malicious is subject to termination of employ
ment
/s/ J W Barry
J W Barry
Plant Manager
Hayeslip concedes Reyna s accusations against Willett
were false and considered by CPT to be slanderous and
malicious and that no discipline was imposed on Reyna
for such conduct (2 305) I have summarized the reasons
Respondent chose not to discipline Reyna
Around 2 or 3 October apparently after Barry and
Hayeslip decided to recommend that Reyna be fired and
possibly after their conference call with Adams Hayeshp
sent the three Direct Line notes to A Frank Hicks in
Jackson Mississippi Hicks is an examiner of forensic or
questioned documents Hayeslip sent Hicks the three
notes plus several samples of only Reyna s handwrit
ing (1 122-123) In his letter of 10 October to Hayeslip
Hicks concludes Reyna printed the first two notes (G C
Exhs 8 and 9) but he needed more of Reyna s script
samples to form an opinion about the third note (1 124
G C Exh 11) The parties stipulated that Hicks is an
expert in handwriting analysis and that it is his opinion
Reyna printed the first two notes (1 29-30)
The stipulation substitutes for evidence as to Hicks
opinion but the matter is rather academic since CPT did
not act in October on its belief Reyna had printed notes
one and two Of course a distinction must be recognized
between the stipulated opinion regarding the handwriting
and the hearsay contents of the notes The notes were re
ceived in evidence but not for the truth of the assertions
contained in them (1 130)
f Reyna resists cross training
In early October 1986 Respondent began a program to
cross train its quality control inspectors Some of the in
spectors did not know how to perform at different posy
tions and the plant had begun to experience a problem
because of the inability of the inspectors to cover the de
partment s different positions (1 148-149 Hayeslip)
Barry testified that CPT gave major emphasis to the
program (1 64) All quality control inspectors were in
volved in the cross training program (1 64 149)
Within a week or two Reyna began complaining to
Hayeshp almost daily about the different assignments
Shift leaders and Stumpf also informed Hayeslip that
Reyna was complaining Hayeshp testified no one else
complained besides Reyna (1 149-150) Barry concedes
that soon after the program began within a matter of
weeks he was informed of Reyna s complaints (1 64)
Hayeshp testified Reyna had begun resisting the cross
training program soon after it began Reyna was never
given a warning Hayeslip testified because Reyna s re
sistance never progressed beyond griping and complain
ing (1 150-151) By memo dated 26 January 1987
Stumpf reported to Hayeslip as follows (G C Exh 16)
Cross training efforts which I initiated in early
October 86 have been progressing rather well with
one exception All four of my Shift Leaders are ex
penencing numerous problems with Rose Reyna in
this area She rebels at every attempt by the Shift
Leaders to transfer her to another job assignment It
has I am afraid gotten to the point that they are
shying away at times from moving her to other job
assignments
In order to try to help with this problem I again
spoke to Rose about cross training and why it is
necessary I am not certain if she feels threatened
by being moved or if she just wants to do the job
she likes best I explained to her that knowing how
to perform at more than one job assignment would
make her a more valuable employee I also remind
ed her that cross training is going on with all shifts
for Q C however nothing I said seemed to make
any difference Her comments continued to be that
she had been cutting bottles since 1979 and that its
not fair for someone new to come in and take her
job In conclusion she said she was going to quit
and she would let me know about the date
From late January to 8 February Respondent experi
enced more serious incidents with Reyna relating either
to cross training or job assignments general'y Chrono
logically this topic overlaps two anonymous letters
Hayeshp received in early February that led to Reyna s
discharge I temporarily pass over the anonymous letters
however to complete the summary of cross training mat
ters
Hayeshp testified that Barbara McGee the quality
control shift leader who is white reported to her an inci
dert that occurred in late January McGee said Reyna
complained to McGee that Peggy Taylor one of the
black shift leaders had assigned Reyna to work down
stream When Reyna began complaining that Taylor
and the other shift leaders were cracking the whip
McGee said she did not want to hear it that such was
their job and for Reyna to go to her assignment down
stream Reyna said What go down there with all those
niggers' McGee said that was no way for Reyna to be
that God made us all Shortly after McGee s oral
report which occurred in a hallway Stumpf told Hayes
lip about it and Hayeslip requested that he have McGee
record the incident in writing McGee did so by her
four paragraph report (G C Exh 19) dated 9 February
(1 159-161)
On 6 February Reyna complained to Hayeslip that
Shift Leader Peggy Taylor had made her change job as
signments with Barbara Houston a black quality control
inspector because Jerry Oliver a white supervisor in the
blow mold department was working Houston too hard
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Reyna she overheard Houston tell Taylor
that Oliver was working the f out of her Reyna
also complained that Houston could work wherever she
wanted to and that cross training was not being done on
other shifts Hayeslip asked Stumpf to investigate (G C
1 151-152) Stumpf reported back there was no merit
(1 153 G C Exh 17)
Hayeslip went to Reyna informed her Stumpf had in
vestigated her allegations that Houston had denied
saying the remark and that Taylor denied hearing the
works the f out of Houston remark Hayeslip
asked Reyna if anyone else heard the remark and Reyna
said no From what she could ascertain Hayeslip told
Reyna Houston had not changed job assignments on
that occasion Hayeslip said nothing could be found to
substantiate Reyna s allegations (1 153 158) 5
Hayeslip concedes that although CPT received no
complaints of favoritism from other employees and even
though it informed Reyna that her complaints had
proved unfounded Respondent did not reprimand Reyna
(1 153)
Hayeslip testified that when she came to work the
morning of 9 February she found a two page note to her
from Reyna ( 1 154-155) In her note dated 8 February
Reyna describes certain job assignments and expresses
her opinion that Shift Leader Peggy Taylor is harassing
her while letting Barbara Houston Taylor s friend take
over the job of cutting bottles the job Reyna had done
since 1979 Reyna assures Hayeslip she is not refusing to
work anywhere in the plant but questions the fairness of
Houston being able to work anywhere she desires (G C
Exh 18)
Hayeslip had Stumpf investigate the allegations
Stumpf again reported there was no meet Following
Stumpfs report Hayeslip met with Reyna and informed
her of the results of Stumpf 's investigation ( 1 156-158)
g The anonymous letters of February 1987
Twice in early February Hayeslip arrived at work to
find unsigned letters slipped under her door (1167)
Hayeslip received the first letter on four sheets of 6 inch
by 9 5 inch lined notebook paper (G C Exh 20) on 2
February and the second a two page note (G C Exh
21) on 4 February Both letters were in small white en
velopes addressed to Erwin or Hayeslip (the first one)
or to Erwin and Hayeslip (the second) Inside the first
letter is addressed simply to Mr Erwin and the
second to Dear George and Elaine As Hayeslip test[
feed the letters triggered the course of events that led to
Reyna s discharge (2 307)
The lengthy first note (G C Exh 20) appears to be in
the handwriting of one person for the first 15 pages and
in the handwriting of another for the balance of the
letter The writer of the second portion asserts that Shift
Leader Roxie Wilson (a black) says it will do them no
good to complain to Erwin and Barry because they will
not do anything for the inspectors In so writing the
author uses the phrase us inspectors thereby identify
6 In her testimony Hayeslip appears to merge elements of this Reyna
conversation with another conversation she had with Reyna 2 days later
following Reyna s complaint of 8 February 1987
ing herself as a (white) quality control inspector The
principal theme of the many specific allegations is that
the white employees (particularly the quality control in
spectors) are suffering harassment brutality and discrim
[nation from the black shift leaders and when the white
employees complain to Shift Supervisor Stumpf (a
white) he responds by telling them to see your supervi
sors which is the shift leader In the middle of the first
page appears the statement 6 Why don t you take the
shift leader Job [and] shove it in [the] Toilet at the union
hall in Memphis
That statement is immediately followed by a sugges
tion CPT use one supervisor at night and one on days
but don t get Tommy Willett (a black shift leader)
The letter continues with various specifics including a
reference to discrimination against Deborah and an al
legation the whites are required to work weekend over
time while the blacks can sit at home and whore
around (G C Exh 20 at 3) Aside from a postscript fol
lowing the Sincerely X the note ends as follows
God Bless you with terrible blacks Lets have an
other election we get things done with an election
Your Shiftleaders are causing an another election
Hayeslip testified that Deborah Baker is the only
Deborah employed at the plant and that of the employ
ees mentioned in the first letter Baker is the only one
not being complained about Hayeslip testified she recog
nizes the handwriting in the second note (G C Exh 21)
as that of Baker Because Rosie Reyna is the only Rose
employed Hayeslip concluded the references to Rose
were to Reyna (1 171-173)
The second note unsigned and addressed to Dear
George & Elaine begins
I in tired and mad how these blacks in the lab are
taking over and treating the whites like slaves Plus
Rick Stumpf sitting back and letting them do us
that way
The author of the second note continues by alleging
Shift Leader Peggy Taylor gives blacks overtime when
whites in general and Deborah in particular miss a
day and do not get a 40 hour week From overtime the
author passes to theft accusing Roxie Wilson a black
shift leader of stealing Deborah s purse and Rose s lip
stick and $4 Stumpf allegedly will not do anything
about this stealing in the lab The blacks are behind this
stealing They are trying to run the whites out of the
lab Continuing the author warns that something must
be done before someone in the lab is seriously hurt The
author concludes her note in these words
We have race discrimination in the lab Discnmma
tion is against the law I guess the union election
will just have to come back in and straighten this
place out if no one else will do it
6 An obvious paraphrase of Reyna s 19 September 1986 suggestion to
Hayeslip ( 1 107 G C Exh 7)
CONTINENTAL CAN CO
Under all the circumstances including her recognition
of the handwriting and recollection that some of the re
marks were repetitions of statements orally made to her
earlier by Reyna and Baker Hayeslip was of the opinion
Reyna and Baker had written the two notes (1 174-175
2 291 306) Later in March and after Respondent had
fired Reyna and Baker Hayeslip sent these two letters to
A Frank Hicks the forensic documents examiner in
Jackson Mississippi (2 290) In his 25 March report to
Hayeslip Hicks concludes Baker wrote all of the second
note most of the first note and that Reyna possibly
wrote the first page and one half of the first note (G C
Exh 22)
Taking the notes to Barry Hayesllp expressed her
opinion that Reyna and Baker had written them (2 306)
The first one Hayeslip opined had been written by the
same person who had written (hand printed) the Sep
tember letters to Direct Line Regarding the second
note received 4 February Hayeslip expressed her suspi
cion Baker had written it because of the references to
Deborah and because Hayeslip recognized the handwrit
ing as Bakers Barry asked Hayeslip to search the files
to verify her conclusions They compared handwritten
material and concluded the notes (without distinction in
the testimony) were written partly by Reyna and partly
by Baker (2 289-290)
Hayeslip testified she and Barry went through the two
February letters line by line and to the extent possible
compiled a list of the complaints and accusations (1 179-
180 2 288) The list contains roughly two dozen items
(R Exh 1) 7 Because the list was so extensive the ensu
ing investigation was divided among several persons
(2 288) Admitting the obvious Hayeslip saw the unio'i
references in both letters (1 194) Indeed her listing of
the items in the first letter includes the references to the
election (R Exh 1 side 2) Barry expressed the view to
her that the references had been included as a protection
mechanism to insulate them from discipline for the con
tents of the letters whereas Hayeslip considered the ref
erences simply after thoughts (2 297) Hayeslip attributes
such caution to knowledge she assumes employees gain
by serving as election observers for a union-that there
is a place they can go if they experience retaliation
(2 317)
After the investigation was completed sometime
before Monday 9 February Hayeslip dictated a report
summarizing the results of interviews made by Barry
Stumpf and presumably Hayeslip The report (G C Exh
23) dated 9 February covers two full pages and finds no
merit to any of the allegations (1 180-181 2 291) Hayes
lip testified she spent most of 1 week on the investiga
tion a similar amount of time on the (September 1986)
accusation against Shift Leader Tommy Willett and an
average of 6 to 8 hours a week since May 1986 listening
to Reyna and investigating her complaints and accusa
tions (2 292)
7 Hayeslip concedes she does not recall whether the list covers both
letters (2 289) It clearly does not include the items mentioned in the
letter of 4 February Thus Hayeslip has merged the sequence of events
at that point The discrepancy does not appear to make any material dif
ference
301
h Reyna fired 6 March 1987
About mid February Hayeslip testified the local man
agement group met in Barry s office Barry Stumpf and
Hayeslip were there but Hayeslip could not recall
whether George Erwin attended (2 295) although at an
other point she testified he was involved (2 306) 8 The
group decided both Reyna and Baker should be terms
nated because of their many problems and because the
group felt that the viciousness displayed in the letters
had the potential for causing race problems throughout
the plant (2 295-297 307) However they first wanted to
obtain the approval of Adams On telephoning the cor
porate office they learned Adams was out of the country
and would not return until later that month Eventually
in early March Adams came to the plant reviewed the
records and agreed with the decision to terminate
Reyna As I discuss later he recommended against dis
charging Baker (1 94-95 166 2 295-297 308 )
Earlier I described Hayeslip s testimony that Reyna
was called in from vacation on Friday 6 March and
given a discharge letter and I quoted the letter As men
tioned earlier both Barry and Hayeslip testified Reyna
was discharged for multiple reasons and that the reasons
are set forth in the discharge letter It is clear both Barry
(1 39) and Hayeslip (1 165-166) consider that the gener
al disruption ground listed in the discharge letter in
cludes the amount of time Barry and his staff were re
quired to devote to investigating allegations they deter
mined to have no merit
3 Discussion and conclusions regarding Reyna
The thrust of the General Counsels argument is that
CPT tolerated and condoned Reyna s misconduct for
9 months until Reyna in February 1987 threatened an
other union election Recognizing that another election
could be held in April Respondent seized on the un
founded allegations Reyna had been making since May
1986 and using such conduct as a convenient pretext
fired Reyna to get rid of her union influence With that
showing of a prima facie case the General Counsel
argues Respondent failed to carry its burden of proving
it would have fired Reyna notwithstanding her threats of
another union election (Br at 15-21)
Respondent views things differently It argues that all
the circumstantial evidence falls short of establishing a
prima facie case particularly since there is no showing
of either animus or disparity It labels the General Coun
sel s theory about the election threat as too far fetched
to be believed (Br at 30) Rather Respondent contin
ues on the subject of the Union and election references
in the anonymous letters of 2 and 4 February the ALJ
should accept as true Hayeslip s description (2 292) of
the reaction of Barry (protective device to insulate from
discipline) and Hayeslip (afterthought) I note that net
ther Barry nor Hayeslip affirmatively testified that the
union and election references had nothing to do with the
decision to terminate Reyna (or Baker)
B Erwin s organizational position and office location are not clear in
the record In any event Barry testified he made a recommendation to
Erwin (1 37-38)
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent argues I need not make any credibility res
olutions because the evidence is uncontroverted (Br at
4) Hedging slightly the General Counsel contends the
case involves essentially no credibility resolutions but
require[s] only a legal analysis based upon the undisputed
facts (Br at 4) Contrary to the contentions of the par
ties the credibility of witnesses in any case is always at
issue I am not required to believe the testimony of the
witnesses here particularly if I am influenced by the de
meanor factor Because motive is crucial in this case any
credibility resolutions regarding motive will be crucial
Passing to its assuming arguendo argument (that is
assuming I find a prima facie case) Respondent contends
the evidence demonstrates Reyna would have been dis
charged had there been no references to union or an
other election In arguing that it carried its burden of
proving this by a preponderance of the evidence Re
spondent cites the unfounded allegations Reyna made
since May 1986 her resistance to the cross training pro
gram and her remarks against blacks Any of these
three examples of misconduct provided a legitimate
reason for Reyna s discharge (Br at 33) True but that
begs the question
I find the evidence does establish a prima facie case
Respondent had tolerated Reyna s conduct for 9 months
without so much as a counseling and only when the
notes mentioned union or another election did Re
spondent act Of course the pnma facie case would be
stronger if the evidence disclosed animus or disparity by
CPT But the absence of those factors does not reduce
the evidence here below the threshhold of a prima facie
case
Respondents position is that it could not discharge or
even warn Reyna in October over the Direct Line letters
because to do so would jeopardize the credibility of
CPT s open communications policy This argument self
destructs with Plant Manager Barry s 9 October 1986
clarification when he warned that any person making
false accusations which are slanderous and malicious is
subject to termination of employment Hayeslip con
cedes that Respondent viewed Reyna s September 1986
Direct Line notes as being false slanderous and male
cious (2 305)
The cross training ground does not withstand scrutiny
Almost from the beginning certainly by mid October
Respondent was aware that Reyna allegedly was resist
ing the cross training but it never issued her a repri
mand Granted the law does not require such nor do
Respondents rules On the other hand CPT has issued
warnings in the past one being to Reyna her„elf in May
1986 And as we shall see Barry himself gave Baker a
final warning on 15 August 1986 Notwithstanding
Hayeslip s testimony that Reyna s resistance never pro
gressed beyond griping and complaining and therefore
did not justify a warning in February Reyna s resistance
suddenly (as I apparently am to believe) ripened into a
reason not simply to warn but to discharge
Loose allegations by Reyna have been her trademark
since her sexual harassment allegation against Sherman
Hinton in May 1986 As for Reyna s deplorable remarks
and slurs against blacks Respondents righteous indigna
tion in February is a bit tardy to be persuasive Plant
Manager Barry admits that from reports of others even
he was aware after mid 1986 that Reyna had made racist
remarks (1 65-66) yet Barry never saw fit at any time
during the last 5 months of 1986 to reprimand Reyna or
even tell her that such remarks were unacceptable at the
plant And in late January when Shift Leader Barbara
McGee and Shift Supervisor Rick Stumpf both of whom
are white informed Hayeslip (also white) that Reyna had
told McGee she did not want to work downstream with
the niggers neither Hayeshp nor Stumpf went directly
to Reyna and warned her that any repetition of that slur
would subject her to severe discipline up to and includ
mg discharge
Objectively therefore the evidence prima facie estab
lishes that motivating factors in Reyna s discharge were
the union and election threat references in the February
anonymous letters I find it of no moment that such ref
erences came in the portion Respondent attnbutes to
Baker because it is clear Respondent considered Reyna
to be the source of such remarks
Aside from an analysis of the objective factors I
simply do not believe Barry and Hayeslip They testified
with an unpersuasive demeanor and I disbelieve them
To the extent they and particularly Hayeslip suggest
the union references played no part in the decision to fire
Reyna I disbelieve them In so disbelieving them I find
the opposite to be true and that in fact the union refer
ence, were a motivating factor in Respondents decision
to fire Reyna
Respondent elected to rely on its motion to dismiss at
the close of the General Counsels case in chief and
therefore Respondent did not proceed with its own
case in chief Thus discussion of whether Respondent
carried its burden of proving it would have fired Reyna
in any event and absent the union considerations is
slightly awkward for the same evidence is reviewed
from this standpoint The findings I have made regarding
a prima facie case apply here also including my assess
ment Barry and Hayeslip testified with an unpersuasive
demeanor I find Respondent would not have fired
Reyna if the letters of 2 and 4 February had not men
tioned un on or threatened another election
Anticipating CPT would argue that Reyna s conduct
even if concerted was unprotected the General Counsel
devoted a portion of her brief to argument with case ci
tations that the letters of 2 and 4 February enjoy pro
tected status (Br at 21-24) Granting that sections of
the letters may be arguably insulting or in poor taste
and that the authors could have articulated a more ap
propriate argument or series of complaints the General
Counsel contends the letters lost no protection of the
Act by their wording even though some of the state
ments also were false Although the letters address a
variety of complaints and concerns the focus ob
serves the General Counsel is on the Quality Control
section and express concerted concerns of those condi
tions and the effect on employees
Respondent makes no express argument that the con
tents of the letters are unprotected Whether all or only a
portion of the February letters is protected is irrelevent
for Respondent did not disavow relying on the portions
CONTINENTAL CAN CO
that expressly focus on favoritism by black shift leaders
in the assignment of overtime to their black friends and
similar allegations that are facially protected This is not
to say Respondent cannot discharge an employee who
makes abusive and racially derogatory remarks inten
tionally false allegations of sexual harassment or similar
allegations with reckless disregard for the truth But Re
spondent cannot tolerate .,uch conduct until union is
mentioned and then use such ground as an all too con
venient pretext to eliminate a union supporter from its
plant Accordingly I find Respondent violated Section
8(a)(3) of the Act on 6 March 1987 when it fired Rosie
C Reyna effective the following day I will order Re
spondent to offer Reyna reinstatement and to make her
whole with interest
E Deborah F Baker
i Introduction
Hired by Respondent in January 1986 QC Inspector
Deborah F Baker was notified by Respondent some 14
months later on Monday 16 March that she was being
terminated effective the next day (1 194-195) Respond
ent terminated Baker when she reported for her 3 30
p in shift on 16 March (2 275) The reasons were given
orally to Baker on 16 March and appear in a letter of
that date to her It appears QC Supervisor Stumpf possi
bly with Hayeslip present notified Baker of her termina
tion and of the reasons (1 196) Hayeslip testified Re
spondent inadvertently didn t hand her a copy because
of the excitement and we mailed it (1 196) The 16
March termination letter reads (G C Exh 3)
Dear Debra
This is to be considered as confirmation of your
termination with Continental Can Company Inc of
fective March 17 1987
Your termination is for conduct detrimental to
the harmonious relations desired at Continental s
PET Technologies Plant in Olive Branch Mississip
pi as a result of
1 Malicious mischief
2 Solicitation of other employees on Company
time
3 Creating a disruption of the workforce in this
facility
In addition to your final paycheck for time
worked you will receive one week of earned vaca
tion pay and four hours call in pay for today
Continental PET Technologies
/s/ Rick Stumpf
Richard Stumpf
Quality Control Supv
Plant Manager Barry testified he would have dis
charged Baker 2 weeks earlier when Reyna was terms
nated on the belief Baker was involved in writing the
two anonymous letters of early February (1 46-47 53)
Recall however that Robert Adams Respondents divi
sion manager of human resources suggested Baker be re
tained HR Supervisor Hayeslip testified Adams felt that
even though Baker earlier had exhibited problems get
303
tang along with other employees her conduct had im
proved Adams believed that with Reyna terminated
there was a chance Baker would [continue to] im
prove (2 297-298 308 )
Earlier Baker had received two warnings or counsel
ings The first on 20 May 1986 was because she alleged
ly refused Production Supervisor Jerry Oliver s request
to see an HFI (Hold for Inspection) Baker had issued In
his handwritten memo (R Exh 2) QC Supervisor
Stumpf also noted that Baker is having problems get
ting along with other employees Hayeslip was present
at the counseling along with Stumpf Oliver and Baker
(2 298) and Hayeslip also signed Stumpf's note The
counseling note was offered and received for the limited
basis of showing simply that Respondent had counseled
Baker on 20 May 1986 for the matters described (2 299)
Although the distinction may be more academic than
practical neither the note nor Hayeslip s presence at the
counseling converts the hearsay allegations into admissi
ble evidence that any of the events described in the note
(other than the counseling itself) occurred in fact Of
course Respondents purpose is served by its limited
offer Because this case deals with Respondents motiva
tion (state of mind) in February March 1987 Respond
ent as any employer would be is entitled to rely on
prior warnings issued Baker as bearing on the reason or
motive Respondent had in terminating Baker in 1987 In
this case Baker did not testify at all and therefore did
not testify that neither the counseling nor the alleged
events occurred Had Baker so testified Respondent
could have called Oliver as a witness to the asserted re
fusal and Stumpf (or whoever) as a witness to Baker s
asserted getting along problems
Baker s second warning was given to her on 15
August 1986 Stumpf prepared a handwritten note of that
da e describing the interview (R Exh 3) Although
Hayeslip s signature (along with that of Stumpf) appears
on Stumpf's memo Hayeslip testified she did not think
she was present at the interview (2 300) Stumpf's memo
was offered and received for the same limited purpose as
the first warning
According to Stumpf's memo he and Plant Manager
Barry talked with Baker concerning her not being able
to work together with several employees throughout the
plant As Stumpf records there have been numerous
complaints from employees and supervisors on five
listed items as follows
1 The way Baker approaches people when there
is a problem
2 Baker screams at people
3 Baker throws clipboards at inspectors who are
trying to explain inspection procedures
4 Baker has problems in following instructions
from the shift leaders
5 Threatening statements to a lead person she
would go to the labor board when the lead person
was trying to work with her on [the word is practi
cally illegible but appears to be communications or
conversations] with other employees
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stumpf concludes his memo with a paragraph stating
Baker has been counseled on several occasions about her
ability to get along with others and working as a team
Jim [Barry] stated that she would have to start working
together with everyone and that this was the final warn
ing During his testimony Barry briefly referred to this
final warning which he gave Baker (1 45-46) Baker
received no other warnings before her discharge (2 318-
319 Hayeslip)
2 Baker suspended 11 March 1987
Recall that on Friday 6 March Reyna was called in
from vacation and terminated Baker apparently did not
learn of Reyna s termination until Baker reported for
work the afternoon of 9 March On separate occasions
during the evening Maintenance Specialist Mark Morton
and Lift Truck Operator Carolyn D Haney had conver
sations with Baker because they observed her crying
Both Morton and Haney testified before me concerning
their conversations with Baker Of importance also are
the reports Morton and Haney made to Hayeslip when
Hayeslip ostensibly on 16 March investigated the events
of 9 and 11 March
Barry testified he was out of town the week of 9-13
March returning to the plant the date (16 March) Re
spondent discharged Baker (1 43-44) Hayeslip also was
out of town at least most of the week but there is some
question whether she returned to the plant on Friday 13
March or Monday 16 March Hayeslip testified she re
turned to the plant either that Monday (16 March) or the
preceding Friday night She testified her first day back
was the day she interviewed Morton and Haney and
that she possibly interviewed them at the plant late
Friday night (1 200-202) Haney and Baker spoke on 9
and 10 March The next day 11 March Supervisor
Oliver suggested Haney report the matter to the depart
ment manager which she did that day A couple of
days later (Friday 13 March) Hayeslip interviewed her
Haney testified (2 262-263) The materiality of Hayeslip s
return date is related to the date a copy of Reyna s
unfair labor practice charge was delivered to the plant
Reyna s charge in this case was filed 11 March NLRB
Region 26 served a copy the same day by letter sent cer
tiffed mail Hayeslip positively identified her signature on
the green return receipt card (1 197-198) The green
card bearing Hayeslip s signature was received back at
NLRB Region 26 on Monday 16 March at 10 37 a m
(G C Exh lb) 9 The question is the date Hayeslip
signed The date shown is 3/13/87 followed by initials
that appear to be JW Hayeslip testified she did not
insert the date (1 197-198) The handwriting clearly is
different Whether JW was inscribed by Respondent s
receptionist the Postal service letter carrier or someone
else is not established Nevertheless it is clear all the cir
cumstances point to the date of Friday 13 March as the
e The parties do not dispute the date of 16 March and were willing to
stipulate to the date I stated no stipulation was necessary if the date was
legible The parties represented that there was no problem with legibility
(2 319-322) In fact there is a slight problem with legibility in that the
1 of the 16 falls mostly but not entirely on a preprinted line on the
green card I agree with counsel however that the date is 16 March
1987
date Hayeslip signed the green return receipt card The
letter was mailed Wednesday 11 March Hayeslip au
thenticates her signature and the signed green card was
delivered to Region 26 the morning of Monday 16
March I find that Hayeslip signed the green card on
Friday 13 March 1987 The significance of this fact re
lates to the General Counsels argument Respondent dis
charged Baker because it concluded she was assisting
Reyna on the charge Reyna filed against CPT io
Hayeslip identified a typed memo (G C Exh 28)
dated 16 March and signed by Stumpf describing
Stumpf's suspension of Baker on Wednesday 11 March
(2 273-274) In his memo Stumpf records that he sus
pended Baker the evening of 11 March and instructed
her to leave the plant after reading the following state
ment to her
You are being suspended pending termination for
conduct detrimental to the harmonious employee
relations desired at Continental s PET Technology
Plant Olive Branch Mississippi Specifically by so
liciting on Company time other employees to bring
suit or support a suit filed by a terminated employee
and to dig up anything derogatory the employee
could about management specifically the Quality
Control Supervisor and any or all Quality Conrol
Lead People
Harmonious employee relationship is the founda
tion for properous and continued employment from
which a healthy and prosperous industry can grow
Although out of town that week Barry testified he
called the plant and learned from Manufacturing Manag
er George Erwin that there had been some problem with
Baker Erwin reported that the corporate office was pre
paring something on the matter (1 43-44) Hayeslip also
called from her location possibly the evening of 11
March According to Hayeslip Stumpf said before Baker
was suspended she was crying pouting and was calling
employees away from their jobs trying to get dirt on
Stumpf and the shift leaders to use in some lawsuit After
the suspension Stumpf said Baker acted irrationally by
screaming down the hall (1200-201 ) Indeed
Stumpfs concluding two paragraphs of his suspension
memo read (G C Exh 28)
Elaine Hayeslip (Human Resources Supervisor)
and Jim Barry (Plant Manager) will return on
Monday March 16th You may call and set up an
appointment to talk with them on that day
Debra screamed comments to Pam May and
James Wright as she was leaving the plant I
hope you are all satisfied-I in fired
Hayeslip testified Stumpf checked with or obtained
approval from Manufacturing Manager Erwin before
Stumpf suspended Baker and that the suspension was
based on the events of 11 March (1 203-204) The com
plaint does not expressly attack the suspension but it
° The complaint does not allege CPT violated Sec 8(a)(4) of the Act
in discharging Baker
CONTINENTAL CAN CO 305
does use the date of the suspension rather than the dis
charge date Aside from the motivation paragraphs the
relevant allegation is in complaint paragraph 8 which
reads
On or about March 11 1987 Respondent dis
charged its employee Deborah F Baker
3 Hayeslip investigates on 13 March 1987
When Hayeslip returned to the plant she conducted an
investigation that included interviews of Morton and
Haney (1 202-204 2 274) I have found Hayeslip re
turned to the plant on Friday 13 March and conducted
her interviews on that date Hayeshp prepared memos
dated 16 March covering these interviews (1 204-210)
Morton testified that the Hayeslip memo (G C Exh 26b)
he signed is an accurate account of what he reported to
Hayeslip (2 251) Haney testified similarly respecting the
memo (G C Exh 27a) that Hayeslip prepared concern
ing their conversation (2 264) Although the Morton and
Haney memos begin with the recitation Hayeslip inter
viewed them on 16 March I have found the correct date
to be 13 March With the typing process necessary it is
quite likely the memos were not typed until 16 March
and therefore bear that date Although Haney signed on
16 March Morton did not sign until 31 March The
Morton memo reads (G C Exh 26b)
On 3/16/87 I interviewed Mark Morton Maint
Specialist D Blow Molding concerning an mci
dent involving Debra Baker Q C Inspector during
the week beginning 3/8/87
Mark stated that on Monday (3/9/87) he noticed
that Debra Baker who was working in the Down
stream area was extremely upset and crying When
he asked her what was wrong she told him that she
was upset about Rose Reyna She further stated that
she was wanting to talk to Rose because it was not
fair what the Company had done to her
On Wednesday (3/11/87) Mark noticed Debra
was smiling a lot and asked her if she was feeling
better She replied that she was feeling better be
cause she had talked to Rose She made the state
ment We ve got a plan We re going to get
Continental for what they did to Rose She ex
plained that she and Rose were going to get a
lawyer and bring suit against Continenal At that
point Mark advised Debra to stay out of it because
people had tried to do that sort of thing before and
to his knowledge Continental had never lost a case
Debra continued to plead Rose s situation and made
the statement that Rose had never talked about any
body or done any of the things she was accused of
Mark explained to Debra that he had heard Rose
talk about people before and that he had also heard
her talk about him even to the point of saying
that she was going to get him fired because she
thought he did not process the machine correctly
He told Debra that he had overheard her make this
statement in the backroom while he was standing in
the lab
Debra then asked Mark if he had heard the
rumor that she got Rose fired When he told her he
had heard it she asked the name of the person who
repeated the rumor to him After he refused to
name the person Debra told him she would go to
Mr Barry and he would get the name out of him
She became hysterical and shouted I in tired of
you saying that I got Rose fired' In an attempt to
calm Debra Mark replied I did not say thatt You
asked me if I had heard that you had something to
do with getting her fired but I also told you that is
how rumors get started She told Mark that she
would get him fired if he did not tell her the name
of the person who repeated the rumor to him Her
final remark to him was I in not going to let Con
tinental get away with firing her'
Although Haney testified Hayeslip s memo accurately
recorded their conversation in fact it covers only the
second of two conversations Haney had with Baker and
Hayeslip erroneously records the (second) conversation
as occurring on Monday 9 March It is clear from
Haney s testimony that the first conversation was on
Monday 9 March and that the second conversation was
the next evening 10 March (2 259-260) Indeed Jerry
Oliver a production supervisor who conferred with
Haney on 10 March after observing Haney and Baker
talking that evening (2 262) prepared his own memo on
the subject In his memo Oliver dates the occasion as 10
March (G C Exh 27b)
The first conversation 9 March occurred when
Haney observed Baker crying and asked her what was
wrong Baker explained Reyna had been fired over
what Baker did not know but that she was going to the
quality control office to tell the people there to stop
laughing and hollering about Reyna s being fired Haney
suggested that Baker not do that (2 259-260) Shortly
after the 3 30 p in shift started Tuesday 10 March
Baker walked over to Haney and said she had seen
Reyna How is Rose doing asked Haney Baker replied
Oh she s doing great She s got a lawyer and she s
going to sue Continental Haney said she already knew
that Their conversation continued but with the forego
ing introduction I now can quote Hayeslip s memo Keep
in mind that it in fact describes the conversation of 10
March only
On March 16 1987 I interviewed Carolyn
Haney Lift Truck Operator-Blow Molding Dept
regarding an incident involving Debra Baker Q C
Inspector Carolyn explained to me that on the
night of 3/09/87 Debra Baker approached her
saying that Rose (Reyna) had been fired and had a
lawyer and was going to sue Continental Carolyn
further stated that Debra said she was going to help
Rose and stand behind her in court She asked
Carolyn if she would do the same furthermore she
wanted to know if Carolyn could tell her anything
on Rick Stumpf or any of the Shift Leaders
Carolyn explained that she did not know or work
with them much She told Debra that the only one
she had ever heard about anyone having a problem
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with was Tommy Willett Debra replied to her that
they weren t interested in him-that it was Rick
Stumpf they were after Carolyn told Debra at
this point to tell Rose hello but she did not want
to be involved
On Tuesday night Debra again approached
Carolyn and told her she had seen Rose that day
and she was doing fine Carolyn told Debra that she
did not want any part of what she was talking
about-that she just wanted to come to work and
do her job and go home-and to leave her alone
about the matter
The only other employee witness Hayeslip spoke to
was Pam May who reported that when Baker was leav
ing she did scream at May (2 274-275)
4 CPT s rules restricting solicitations
When Baker was hired she signed a Welcome' orien
tation letter containing six listed rules that must be ob
served (2 272-273 301-302) Rule 3 provides (R Exh
4)
3 No selling or solicitation of any kind will be
permitted on the Company property except during
nonwork times On an attached form Baker signed
with the following acknowledgement (R Exh 4)
I have read and understand the above instruc
tions and agree to abide by them I understand that
failure to do so may result in termination
/s/ Deborah Baker
Employee s Signature
1-36-86
Date
Respondents employee handbook contains a separate
rule restricting solicitations (2 271-272 Hayeslip) The
rule reads (G C Exh 25 at 19)
Distribution and Solicitation
Distribution of advertising material handbills or
other literature in working areas of the facility is
prohibited at any time
Solicitation by an employee of another employee
is prohibited while either person is on working
time Working time is all time when an employee s
duties require that he/she be engaged in work tasks
but does not include an employees own time such
as meal periods scheduled breaks time before or
after a shift and personal clean up time
The General Counsel does not allege either of Re
spondent s rules to be unlawful either facially or by ap
plication Pointing to an incident in mid February 1987
in which Baker complained employee Michael Oystern
was soliciting employees to buy insurance a complaint
Barry investigated (1 68-70 76-77) the General Counsel
argues disparity in that Barry there spoke with possible
witnesses and with Oystern but here no one interviewed
Baker for her version before she was suspended and fired
(Br at 31)
5 CPT s decision to discharge Baker
Plant Manager Barry testified Baker was discharged
for the reasons listed in her termination letter (1 41-42)
As the senior person at the plant Barry testimomally
took responsibility for the decision to terminate Baker
although he testified both Erwin and Adams concurred
Barry based his decision on Hayeslip s investigation for
he did not interview any of the employees He also
relied on Baker s prior warnings (1 44-45) As for what
triggered Baker s suspension and discharge Barry testi
feed it was her disrupting the work force and creating
chaos on that manufacturing floor on company time
That is unacceptable That is a point where she had re
ceived a final reprimand by myself and her supervisor on
a very similar situation several months prior creating
disruption Continuing Barry testified Baker was re
moving people from their work place and we were re
ceiving-there was complaints received from employees
that she was hindering them from performing their job
which they were concerned about (1 45-46) As earlier
noted Barry testified that given his way he would have
terminated Baker when Reyna was fired (146-47 53)
Barry (1 58 75) and Hayeslip (2 275) testified Baker had
never previously been warned for soliciting employees
and (to Respondents knowledge) she had never previ
ously done any soliciting
The testimony of Barry and Hayeslip concerning what
kind of soliciting constitutes a dischargeable offense re
veals a flexible policy depending on the circumstances
Barry admits however that even soliciting employees
who are working to buy Avon or Tupperware would
not be viewed as seriously as Baker s soliciting employ
ees to take action against CPT in a lawsuit And Barry
explained Baker s soliciting employees to be involved in
legal action against CPT played an important part in the
decision to discharge her (1 60-62)
Hayeslip testified that selling Avon or Tupperware is a
less serious offense than Baker s detrimental conduct
of digging up derogatory information or dirt on em
ployees supervisors and management Such conduct
Hayeslip testified was detrimental to the manage
ment people trying to supervise her (2 276-278) Ac
cording to Hayeslip the termination decision was not
made simply because of the soliciting for information to
support a lawsuit but because it was to get smut or
dirt against members of management and supervisors
That was the big problem (2 309) Indeed Hayeslip
testified Respondent did not know what kind of lawsuit
Reyna would file (2 309) 111 Asked what she meant by
dirt Hayeslip testified it covered everything from how
supervisors treated employees to the sex lives of targeted
supervisors (2 309)
Asked whether favoritism by supervisors would con
stitute dirt Hayeslip said probably not if the allegation
was true but yes if the allegation was deliberately false
As for such an allegation made in good faith but which
proved unfounded Hayeshp had no answer (2 309-310)
" Hayeslip s plea of ignorance by CPT is I find false As I have
found Respondent learned on Friday 13 March-before the 16 March
decision to discharge Baker-that Reyna had filed her charge in this case
CONTINENTAL CAN CO 307
Hayeslip s pretrial affidavit of 28 April includes this
explanation (G C Exh 32 at 6)
The reason that Baker was fired for soliciting is be
cause she was soliciting employees to join with her
in a suit against the company Her actions unlike so
liciting for Avon were detrimental to the company
By detrimental I mean that she was soliciting em
ployees to do something that was adverse or harm
ful to the company It was not simply a question of
her soliciting employees to fabricate some untruth
against the company By detrimental and harmful I
mean that she was doing something that was going
to cost us money We can t stop her from filing suit
but we can keep her from getting her support for
the suit while she is being paid by the company
The statement is of added significance because Hayes
lip testified her corporate superior Robert Adams was
representing CPT at the Board agent s interview of
Hayeslip and it was Adams who suggested the first sen
tence of the quoted lines (2 314) At the hearing Hayes
lip s testimony about smut or dirt seems to veer slightly
from her (and Adams) pretrial statement and from
Barry s testimony about the serious aspect of Baker s so
liciting support for Reyna s lawsuit I find Hayeslip s
opinion about the smut aspect of Baker s solicitation to
be speculation unsupported by the interviews Hayeslip
herself recorded
Based on Hayeslip s testimony that she interpreted dirt
to mean false information (2 310) Respondent argues
(Br at 41)
The basis of her discharge was her disruption of the
workforce and her attempts to get false information
about supervisors from employees during working
time
Hayeslip s reference to dirt is based on her testimony
Stumpf told her he had suspended Baker because in
part she had been calling employees away from their
jobs trying to get dirt on Stumpf and the shift leaders to
use in some lawsuit That was before Hayeslip s investi
gation As Stumpf did not testify I attach no weight to
his supposed reference to dirt In any event I find the
dirt in this case under the recorded facts to be nothing
more than evidence of the complaints previously regis
tered by supposedly Reyna and Baker-including favor
itism on the basis of race by shift leaders in job assign
ments overtime assignments or other work related mat
ters the alleged failure of QC Supervisor Stumpf to do
anything to correct the problems and alleged sexual har
assment by supervisors
6 Analysis and conclusions regarding Baker
a The prima facie case
Earlier I found in discussing Reyna s case that Plant
Manager Barry and HR Supervisor Hayeslip testified
with an unfavorable demeanor and I did not believe
them I make the same finding here regarding their de
meanor while testifying about Baker s case Although I
accept some points of their testimony overall I disbe
lieve them
Respecting the allegation of an 8(a)(3) violation Re
spondent observes that the only evidence pertains to the
union and election references in the anonymous letters of
2 and 4 February 1987 Respondent argues that is not
enough to establish a prima facie case regarding Baker s
discharge a month later (Br at 41-42) I disagree Barry
admits he personally wanted to fire Baker in substantial
part over her suspected involvement in writing the let
ters at the same time he fired Reyna and that the basis
for Baker s discharge included her involvement in writ
ing the letters (1 46-47 53-54) In fact the references to
union and election appear solely in the portions of
the letters CPT determined are in Baker s handwriting I
find that a motivating reason for Respondents discharge
of Baker was the reference to union and election in
the February letters references Respondent deemed
written by Baker
Adams I find thought the absence of Reyna would
chill Baker s support of the Union Baker s vigorous sup
port for Reyna after Reyna s discharge served to reacts
vate I find Barry s earlier opinion that Baker should
have been fired with Reyna A motivating reason I find
for the earlier opinion and for Barry s decision on 16
March was to get rid of Baker because she posed a
threat of bringing on another union election This finding
is reinforced by Respondents admitted awareness as I
discuss later that Baker was soliciting employees to sup
port Reyna in a lawsuit against CPT Given the fact
Reyna already had filed one unfair labor practice charge
against CPT in June 1986 it is reasonable to find as I
do that Respondent concluded Reyna s lawsuit could
well be another unfair labor practice charge Any doubt
on that score was removed on Friday 13 March when
as I have found Hayeslip signed a green return receipt
for a copy of Reyna s charge in this case The admitted
facts prima facie establish that Respondent violated Sec
tion 8(a)(3) of the Act by discharging Deborah F Baker
on 16 March 1987
In finding a prima facie violation I do not overlook
that Baker was suspended for her detrimental conduct 2
days before Hayeslip received a copy of Reyna s charge
That is of no moment because I find Respondent feared
Reyna s lawsuit would likely be another unfair labor
practice charge Hayeslip revealed Respondents concern
about potential charges by Reyna when it admittedly did
not discipline her in October over the anonymous Sep
tember Direct Line notes because in part CPT sup
posedly was gun shy from Reyna s last unfair labor prac
tice charge
I turn now to the allegation that Baker s discharge vio
lated Section 8(a)(1) independently Barry testified Baker
was discharged for the reasons stated in her termination
letter (1 41-42) Even so Barry emphasizes two factors
First Baker s supposed disrupting the work force and
creating chaos on that manufacturing floor on company
time That is unacceptable He tied this to the final
reprimand he had given Baker in August 1986 for caus
ing disruption (145-46) Second Barry stresses the
nature of Baker s soliciting (1 61-62)
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Baker s solicitations did not create disruption and
chaos as Barry asserts Hayeslip s investigation the evi
dence on which Barry admits he relied (1 44-45) hardly
shows either disruption or chaos Barry overreaches in
his desire to get nd of Baker Hayeslip s report of her
interview with Mark Morton reflects it was Morton who
initiated both his conversations with Baker and the
report certainly contains no description of disruption of
the work force much less chaos on the manufactur
ing floor Although Baker is shown as taking a strange
reaction when Morton answered her question whether
he had heard the rumor that it was Baker who had
caused Reynas discharge Respondent never described
that isolated fact as a significant part of the disruption
and chaos on which Barry based his decision
In Hayeslip s report of her interview with Carolyn
Haney there is no reference to other employees being
present or even nearby during the (second) conversa
tion Although Haney testified there were other employ
ees near them since they were in the downstream
work area she also testified that just she and Baker were
conversing (2 264-265) Other than the disruption caused
by the one to one conversation in a work area there is
no evidence Baker s conversation with Haney distracted
anyone much less disturbed them or created chaos As
we know from the discussion on Reyna s case until
Reyna complained about radios in the quality control
lab Respondent permitted the playing of radios there
There is no evidence Respondent fired those playing
radios when Reyna complained Stumpf simply banned
the playing of radios thereafter The radio playing there
created more of a disruption in the quality control lab
(by disturbing Reyna) than Baker s conversation did
here Although Barry testified Baker was removing em
ployees from their work place and employees com
plained Baker was hindering them from performing
their job (1 46) there is no evidence of such Hayeslip s
testimony that Stumpf told her something to that effect
when she telephoned from out of town besides being
hearsay was before her investigation Hayeslip concedes
she had difficulty remembering what Stump told her that
evening ( 1 201) Stumpf did not testify I draw the ad
verse inference from his failure to testify that had he
done so his testimony would not support what Hayeslip
attributes to him
Moreover I do not believe either Barry or Hayeslip
Each testified with an unpersuasive demeanor I especial
ly find that Barry exaggerated and embellished Hayes
lip s report in this respect in an effort to supply what he
perceived to be a legitimate pretext for discharging
Baker
As for the nature of Bakers solicitations it is clear
that in Barry s view the overriding vice in Baker s con
duct was her soliciting employees to support Reyna in a
lawsuit against CPT As I have found Respondent knew
very well that lawsuit quite likely would be another
unfair labor practice charge Any doubt it had in this re
spect was removed on Friday 13 March-3 days before
it decided to terminate Baker Baker s solicitations of
support of a fellow employee constitute concerted activi
ty
I find that the facts establish puma facie that Respond
ent violated Section 8(a)(1) of the Act by discharging
Deborah F Baker on 16 March 1987
b CPT s defense
Even if it is found the General Counsel established a
puma facie case Respondent argues that the evidence
also demonstrates CPT would have fired Baker regard
less of her union or other concerted conduct This pose
tion apparently ties chiefly to its disruption argument In
discussing the puma facie case I found the disruption ar
gument to have no merit At no point in the evidence
does either Barry or Hayeslip point to Baker s irrational
response to Mark Morton and say that it would have
fired her solely for that one moment of behavior I do
not overlook Baker s final warning in August 1986
nor the fact that Barry testified he also relied on that
warning The problem is that at the hearing Respondent
made no attempt to distinguish any of the evidence
Barry and Hayeslip insisted that it was all the factors
combined on which the discharge was based Therefore
Respondent has not demonstrated it would have fired
Baker for her statement to Morton that she would seek
to have him fired
Baker s screaming at two employees as she departed
following her suspension pending termination can hardly
be called an irrational response if the suspension itself
was illegal 1 2 In any event Respondent makes no con
tention it would have fired Baker if the only factor in
volved from the days of 9 and 11 March was Baker s
parting cry of anguish over her suspension
Respondents companion argument is that even if the
subject matter of Baker s solicitations was protected con
duct her violation of Respondents valid no solicitation
rule was unprotected Respondent contends there is no
showing the no solicitation rule was enforced in a dis
criminatory manner (Br at 51) The General Counsel
points to Hayeslip s testimony that had the soliciting in
volved only Avon or Tupperware for example unac
companied by the disruption Respondent attributes to
Baker then the employee probably would not be dis
charged on a first offense (2 277) Barry s testimony is
similar in effect (1 61-62)
The problem with Respondents defense is that I do
not believe it In essence Respondents argument here is
that it would have fired Baker for the soliciting no
matter what the soliciting was for because it violated
Respondents valid no solicitation rule Yet that is not
the testimony given by Barry and Hayeslip Both offs
cials indicated a lighter penalty could have issued had
the soliciting been unaccompanied by Baker s disrupt
ing other employees (Respondent thereby defines the
disrupting to mean employees other than the one solicit
ed) But I have found there is no evidence of disruption
of employees outside the one to one conversations and
that Respondents inclusion of such factor is a
makeweight added as a pretext to exaggerate the effect
of Baker s conduct To borrow Judge Philip P
12 As earlier noted complaint par 8 dates Bakers discharge as I 1
March without specifying the suspension as a separate act
CONTINENTAL CAN CO 309
McLeod s description in Rockwell International Corp 13
Respondents characterization of Bakers soliciting as dis
ruptive is nothing more than a euphemism for [Baker s]
concerted activity of seeking support for Reyna
Second both Barry and Hayeslip stressed the overrid
ing significance of the nature of the solicitation-Re
spondent viewed it far more seriously than any Avon
selling because Baker was soliciting support of Reyna s
lawsuit against CPT Hayeslip s pretrial affidavit also re
flects this motivation clearly Moreover whereas Re
spondent interviewed the person (Michael Oystern)
Baker accused in February of selling insurance no one
interviewed Baker and asked for her version of the
events of 9-11 March
In light of the foregoing I find that Respondent has
failed to establish by a preponderance of the evidence
that it would have discharged Baker for reasons unasso
ciated with the subject matter of her solicitation of em
ployees Morton and Haney the evenings of 10-11 March
1987 Accordingly I find that Respondent violated Sec
tion 8(a)(1) and (3) of the Act by discharging Deborah
F Baker on 16 March 1987
The General Counsel did not allege Baker s suspension
on 11 March 1987 to be unlawful Complaint paragraph
8 which attacks Baker s discharge dates the discharge as
11 March Arguably the allegation encompasses both the
suspension and the discharge Because the matter was
not briefed by the parties and because it is possible dif
ferent considerations could apply to Baker s suspension I
make no finding respecting the suspension Thus Baker s
backpay period shall begin on 16 March rather than 11
March And it will begin on 16 March rather than the
purported effective date of 17 March because Baker was
deprived of working a full shift on 16 March
CONCLUSIONS OF LAW
1 Respondent CPT is an employer within the meaning
of Section 2(2) (6) and (7) of the Act
2 The Union is a labor organization within the mean
Ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Rosie C Reyna effective 7 March
1987
4 Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Deborah F Baker on 16 March 1987
5 Respondent independently violated Section 8(a)(1)
of the Act by discharging Deborah F Baker on 16
March 1987
6 The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer
tarn unfair labor practices I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act
Respondent must offer Rosie C Reyna and Deborah
F Baker immediate and full reinstatement to their former
jobs or if those jobs no longer exist to substantially
13 Rockwell International Corp 278 NLRB 55 (1986) enfd 814 F 2d
1530 (11th Cir 1987)
equivalent positions without prejudice to their seniority
or any other rights or privileges previously enjoyed and
make them whole for any loss of earnings and other ben
efits suffered as a result of the discrimination against
them Backpay shall be calculated in the manner estab
lished in F W Woolworth Co 90 NLRB 289 (1950)
with interest computed as described in New Horizons for
the Retarded 283 NLRB 1173 (1987) 14
Respondent must remove from its files any reference
to the unlawful discharges of Rosie C Reyna and Debo
rah F Baker and notify the employees in writing that
this has been done and that the discharges will not be
used against them in any way
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed15
ORDER
The Respondent Continental Pet Technologies Divi
sion of Continental Can Company Inc Olive Branch
Mississippi its officers agents successors and assigns
shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Graphic Communications
Union Local 231 M or any other union
(b) Discharging or otherwise discriminating against
any employee for engaging in concerted activities for
mutual aid or protection respecting wages hours or
other terms and conditions of employment
(c) In any like or related manner interfering with re
straining 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) Offer Rosie C Reyna and Deborah F Baker imme
diate and full reinstatement to their former jobs or if
those jobs no longer exist to substantially equivalent po
sitions without prejudice to their seniority or any other
rights or privileges previously enjoyed and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the
manner set forth in the remedy section of the decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
14 283 NLRB 1173 (1987) Interest will be computed at the short term
Federal rate for the underpayment of taxes as set out in the 1986 amend
ment to 26 U S C § 6621
15 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 put
poses
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant at Olive Branch Mississippi copies
of the attached notice marked Appendix 16 Copies of
the notice on forms provided by the Regional Director
for Region 26 after being signed by the Respondent s
authorized representative shall be posted by the Re
spondent 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 Respond
ent 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 Re
spondent has taken to comply
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 Nation
al 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
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 the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT discharge or otherw se discriminate
against any of you for supporting Graphic Communica
tions Union Local 231 M or any other union
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in concerted activities
for mutual aid or protection respecting wages hours or
other terms and conditions of employment
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 offer Rosie C Reyna and Deborah F Baker
immediate and full reinstatement to their former jobs or
if those jobs no longer exist to substantially equivalent
positions without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge less any net
interim earnings plus interest
WE WILL notify each of them in writing that we have
removed from our files any reference to their discharges
and that the discharges will not be used against them in
any way
CONTINENTAL PET TECHNOLOGIES Divi
SION OF CONTINENTAL CAN COMPANY
INC