Metal Container Corp.

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 575 (N.L.R.B. 2000)

METAL CONTAINER CORP. 575
Metal Container Corporation and Steven Wilson, and
Kurt Bauerle, and Peter Murray. Cases 2–CA–
28303 and 2–CA–28917
June 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On November 12, 1998, Administrative Law Judge
Steven Davis issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed cross-exceptions and a supporting
brief and an answering brief to the Respondent’s excep-
tions. The Respondent filed an answering brief to the
General Counsel’s cross-exceptions and a reply brief to
the General Counsel’s answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge and
orders that the Respondent, Metal Container Corporation,
New Windsor, New York, its officers, agents, successors,
and assigns shall take the action set forth in the Order.

Mindy Landow, Esq., for the General Counsel.
James Blue and Wayne Helsby, Esqs. (Allen, Norton & Blue,
Esqs.), of Tampa, Florida, for the Respondent.
Robert Kundin, Esq., of New Windsor, New York, for the
Charging Parties.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge, a first amended charge, and a second amended charge
in Case 2–CA–28303 filed by Steven Wilson, an individual,
and Kurt Bauerle, an individual, on March 28, June 7, and July
31, 1995, respectively, and based upon a charge in Case 2–CA–
28917 filed by Peter Murray, an individual, on November 20,
1995, against Metal Container Corporation (Respondent), a
consolidated complaint was issued on July 24, 1997, against
Respondent.

1 The General Counsel and the Respondent have excepted to some of
the judge’s credibility findings. 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 We note that the Board has been administratively advised that
Charging Party/discriminatee Steven Wilson has reached a settlement
with the Respondent regarding his reinstatement and backpay, and has
declined an offer of reinstatement. Any issues regarding the settlement
and reinstatement offer, the Respondent’s reinstatement and backpay
obligations in light of that settlement offer, and the Respondent’s de-
fenses to any reinstatement obligation, may appropriately be addressed
in compliance.
The complaint alleges essentially that Respondent dis-
charged Bauerle, Murray, and Wilson because of their activities
in behalf of the United Steelworkers of America (the Union).
Respondent’s answer denied the material allegations of the
complaint, and on December 18 and 19, 1997, and March 9, 10,
and 11, 1998, a hearing was held before me in New York City.
Upon the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses and after considera-
tion of the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an affiliate of the Anheuser-Busch Company, is
a corporation, having a place of business in New Windsor, New
York. Respondent is engaged in the production and nonretail
sale and distribution of metal cans and containers. Annually,
Respondent sells and ships from its facility goods valued in
excess of $50,000 directly to points outside New York State.
Respondent admits, and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Respondent also admits, and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent’s Newburgh, New York facility operates 24
hours per day, manufacturing beer and soda cans. Its approxi-
mately 175 employees (called team members) are assigned to
one of four crews, each of which has a supervisor and a super-
intendent.
The plant manager is Tony Bhalla, and Brenda Danforth was
the human resources manager at the facility.
The employees in Respondent’s facilities in Jacksonville,
Florida, and Columbus, Ohio, are represented by the Union.
Respondent operated its Newburgh facility as a “proemployee,
nonunion” operation.
In about July 1994, the Union began organizing Respon-
dent’s employees at the Newburgh facility. A petition was filed
on August 18, and an election was held on October 6, which the
Union lost. Respondent waged a campaign in which it sought to
persuade employees to vote against the Union. In-plant, and
offsite meetings were held, and speeches and videotaped mes-
sages by Respondent’s corporate officials were presented.
Bauerle, Murray, and Wilson were active in the campaign.
They signed cards for the Union and distributed authorization
cards and union literature inside and outside the plant. They
also wore union hats, shirts, and buttons at work. Respondent’s
witnesses testified that others also wore such garb.
Respondent stipulated that it had knowledge that Bauerle,
Murray, and Wilson engaged in union activities during the
1994 campaign. Employee Justin Connolly testified that “quite
a few” employees, including Bauerle, Murray, and Wilson,
John Kovacs, Steve Kwanda, and Steve Wilk “spearheaded”
the union drive.
Regarding evidence of Respondent’s animus toward the Un-
ion during that organizational drive, employees Kevin Bell and
Justin Connolly testified that they heard Mark Stafford, Re-
331 NLRB No. 76
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576
spondent’s director of can operations, tell employees that if the
facility became unionized, he would shut it down.
Connolly, who was opposed to the Union’s effort, testified
that during the campaign, he told Plant Manager Tony Bhalla
that Bauerle was distributing union cards and other materials,
and he told Supervisor Leon Long that Murray and Wilson
were distributing such items. Bhalla and Long replied that they
were aware of that. Connolly further stated that he wore an
antiunion button which bore the initials “FTU.” He told Bhalla
that the letters stood for “fuck the union—fire the useless.”
According to Connolly, Bhalla told him that “we know who
they are and we’re gonna get them.” It should be noted that
Connolly’s pretrial affidavit, given only 1 week before the
hearing, stated that Bhalla remarked, “[W]e should fire them
all.” Bhalla testified that he said nothing to Connolly about
firing employees who supported the Union, and that Connolly’s
explanation of “FTU” was “fire the useless.”
Murray testified that following the Union’s election loss in
October 1994, a new campaign began in the summer and early
fall of 1995. He solicited cards for the Union both on and off
the plant premises. Danforth testified that she saw union litera-
ture (dated in early August 1995) that was distributed in the
plant, and she was told by employees that three named employ-
ees, none of whom were the Charging Parties, were putting
union cards in the toolboxes of their colleagues. She relayed
this information to the superintendent of that crew, and he
spoke to the three about Respondent’s rules concerning solicita-
tion and distribution. Those three men are still employed by
Respondent, and one was promoted.
Jerry Riley, Respondent’s vice president of human resources,
testified that he was aware that union activity was taking place
in the plant in 1995, but had no knowledge of any card signing
during that time. Respondent denied knowledge that the Charg-
ing Parties engaged in union activities during this 1995 cam-
paign. That campaign was short lived, and apparently no further
union activities occurred beyond September 1995.
B. Respondent’s Discipline Policy
Respondent has a workplace violence policy which states
that it is committed to providing its employees with a work-
place that is free of intimidation, violence and threats of vio-
lence, and that it will not tolerate acts or threatened acts of vio-
lence by employees against fellow employees. The policy states
that anyone who violates it is “subject to disciplinary action up
to and including immediate discharge.” Danforth said she met
with employees in December 1994 and January 1995 and re-
viewed that policy with them.
In January 1995, Respondent instituted a written progressive
discipline policy with the following steps: counseling, verbal
warning, written warning, decision-making leave (suspension
with the employee required to write a letter stating the ways in
which he will correct his improper conduct), and termination.
The policy notes that serious misconduct is not subject to pro-
gressive discipline, but may cause the employee to be subject to
immediate discipline, up to and including termination. An ex-
ample given was “physical violence or threats of physical vio-
lence to another employee.”
C. Steve Wilson
1. Wilson’s union activities
Wilson was employed for 6-1/2 years as a production techni-
cian. His 1993 performance evaluation has essentially “good”
ratings. As set forth above, Wilson was active in the 1994 union
campaign, distributing pamphlets in front of the plant and in the
breakroom, addressing meetings of employees, and wearing
union clothing. He stated that while distributing union material
in front of the building, Supervisor Long remarked that he was
“right in front of the plant.” Wilson responded that this is what
he has to do. Long replied in kind: “A man’s got to do what a
man’s got to do.”
Wilson testified that on the day of the election, he asked Su-
pervisor Sam Federico whether there would be any retaliation
by Respondent if the Union lost the election. Federico replied
that he did not know if there would be retaliation, but Wilson
should not ask for any favors.
Federico testified that 15 or more employees, in his crew of
42, which included Wilson, wore union clothing. He denied the
conversation attributed to him by Wilson, but conceded speak-
ing with employees, including Wilson, about the Union during
the campaign. Federico was aware that Wilson supported the
Union.
As set forth above, Respondent conceded that Wilson was
engaged in union activities during the 1994 campaign.
2. An alleged threat concerning Danforth
Employee Art Thompson testified that during the 1994 cam-
paign, Wilson told him that if he was discharged, he would
shoot the person who fired him. He relayed this information to
Danforth.
Danforth testified that in mid-November 1994, Thompson
told her that he heard Wilson say that if he was discharged for
his union activity, he would shoot whoever discharged him. She
asked Wilson about it and he denied making the threat, and
asked her to investigate the matter. She notified Plant Manager
Bhalla, Corporate Official David Lopater, and Wilson’s super-
visor. Danforth spoke to the employees on Wilson’s crew and
later told Wilson that perhaps they were mistaken as to the date
the comment was made. Wilson said they may have been con-
fusing an earlier threat he had made to management.
Wilson’s version is that he was told by Danforth that two
employees told her that he had threatened to shoot her. Wilson
asked for the names of the employees who reported the threat.
Danforth refused to tell him, saying that such information was
confidential. Wilson asked that charges be brought against him
so that he could prove them to be false. Danforth answered that
she would “let it go this time,” warning that he should not let it
happen again. Wilson denied making the threat.
Danforth stated that since she was not able to corroborate the
threat, she would not take any action at that time, but that she
would “reopen” the issue if a similar incident occurred thereaf-
ter.
3. Interaction with Kenneth St. Clair
Supervisor St. Clair reprimanded Wilson in April 1992 for
apparently wasting time in waiting for a part to be fixed. Ac-
cording to St. Clair’s written note made at the time, Wilson
“became very loud and defensive and made comments that I
had a personal vendetta against him.” Following Wilson’s ex-
planation to another supervisor, St. Clair decided to drop the
charge of insubordination.
St. Clair testified, but did not include in his contemporaneous
memo, that during this altercation Wilson was angry, moved his
arms around, and cursed.
4. An alleged threat to Michael Barstow
Michael Barstow testified that during the 1994 campaign he
was a temporary employee who worked with Wilson. He told
METAL CONTAINER CORP. 577
his coworkers that if there was a strike he would cross the
picket line. Wilson told him that there may be someone across
the street with a weapon or rifle. Barstow asked him if that was
a threat, and Wilson replied that he could take it anyway he
wished.
Barstow believed that someone overheard that conversation,
and a few weeks after the election he was called to Danforth’s
office. Danforth asked him about the conversation, and inquired
as to whether he felt intimidated or threatened by anyone. Bar-
stow did not volunteer any names, but Danforth mentioned
Wilson and perhaps Bauerle’s names.
Danforth asked if he felt threatened during the campaign and
Barstow said he had, and recounted that conversation and an
earlier one in which Wilson accused him of “squealing” on his
coworkers, and offered to meet him outside to “settle the differ-
ence.” At that time, Barstow accepted the challenge but Wilson
did not appear at the designated place.
5. The O’Neill incident
The employees on each shift are responsible to make sure
that their work areas are clean for the incoming shift. In Janu-
ary 1995, John O’Neill, who worked on a shift following Wil-
son’s shift, complained to his supervisor, Paul McGuinness,
that Wilson’s “housekeeping” was poor, and that Wilson’s
work area was left with debris when O’Neill arrived for work.
Such complaints were “continuous” according to Wilson.
Wilson was questioned by Supervisors Long and Dario Ciuf-
fetelli concerning the complaints made by O’Neill. They de-
cided that fellow employee Justin Connolly would inspect Wil-
son’s area 5 minutes before O’Neill’s shift began in order to
ensure that the housekeeping was properly done. Connolly did
so.
Apparently, McGuinness spoke to Wilson about O’Neill’s
complaint, since the following day, January 28, Wilson, accord-
ing to O’Neill’s testimony, approached him and asked why he
(O’Neill) “ratted [him] out.” O’Neill attempted to explain that
he had not done so, but Wilson angrily interrupted by saying
that O’Neill did not want him as his enemy, and that he (Wil-
son) was the worst person he would want as his enemy. Wilson
also advised him that he knew about his past, and could easily
obtain a police report which he could submit to Respondent
which would lead to his discharge. Wilson also told O’Neill
that he had seen his family in the area, and could identify them.
Wilson left, telling O’Neill to have a nice evening.
Wilson’s reference to O’Neill’s past concerned an incident
in which, while employed by Respondent, he was arrested for
possession of cocaine. The charge was reduced to a misde-
meanor and O’Neill served probation which ended in 1992. He
did not report this incident to Respondent, but believed that he
would be discharged because of Respondent’s strict drug pol-
icy.
O’Neill resumed his work, but was frightened at the prospect
of Wilson’s revealing his arrest to Respondent, since O’Neill
had threatened to do so 2 years before. O’Neill then left the
production floor and approached management. He told Dan-
forth he needed help and could not work under “these condi-
tions.” He told Danforth that Wilson threatened him with using
certain information against him. He refused, at that time, to tell
Danforth the nature of the information.
O’Neill wrote a statement, and returned to work. O’Neill tes-
tified that during his next break, he was told by coworker
Marcy Chapman that he did not want Wilson as his enemy.
O’Neill then told Supervisor McGuinness what Chapman said.
McGuinness called Danforth at home. She returned to the plant.
O’Neill phoned his wife, and told her what had transpired.
Shortly thereafter, O’Neill told Danforth that he had decided
not to purse the matter because he believed that if Wilson
learned about the accusation it would “turn into a disaster”
since he was already afraid of what Wilson might do. Danforth
agreed not to pursue the matter.
6. Wilson confronts the supervisors
Danforth met with Chapman on about February 8, in connec-
tion with Chapman’s meeting with her superintendent concern-
ing her poor work and inability to get along with her cowork-
ers. As an example of such conduct, Danforth mentioned her
statement to O’Neill that he did not want Wilson as an enemy.
Chapman denied saying that. At that point, no investigation was
ongoing concerning Wilson’s alleged threats to O’Neill.
Wilson testified that that day, he was told by Chapman that
she was approached by Danforth who asked her questions about
Wilson and O’Neill, attempting to have Chapman state that
Wilson was harassing O’Neill.
That evening, while Wilson was working, he asked Supervi-
sor Long if he could see Danforth. They walked to her office,
and observed that she had left for the evening. Wilson then had
a conversation with Long during which Wilson “begged” to be
moved off the production line so that he would not have further
problems with O’Neill. Wilson was admittedly upset, believing
that an investigation was being conducted without his knowl-
edge, based upon Chapman’s statement to him. Wilson con-
ceded that his demeanor during their talk was “excited,” and
that he spoke loudly, and that he made gestures with his hands
in a begging motion while saying “move me, please move me.”
Long said that he would call Danforth, and asked him to re-
turn to the production line, which he did. While working, Su-
pervisor Ciuffetelli approached him, and Wilson asked to see
Danforth. Ciuffetelli said that an appointment would be ar-
ranged for the next day. Wilson insisted upon speaking to her
immediately. They went to an office where they discussed
O’Neill’s complaints about Wilson’s housekeeping. Wilson
asked him to check with Connolly who had been inspecting his
work area. Wilson conceded that his manner during this con-
versation was the same as with Long—loud, and he used hand
gestures. Ciuffetelli said that Wilson should return to work, and
he would call Danforth and would let Wilson know when she
arrived. Wilson went back to work.
Long did not testify. Danforth testified that she received a
call from McGuinness and Long who said that while they were
standing in the lobby, Wilson burst through the plant doors,
“flaying” his arms and demanding to know who his accusers
were and why he was under investigation, and insisting upon
speaking with her. They told him to speak to her in the morn-
ing, and that it was not necessary for her to return to the plant
that evening.
Danforth stated that about 45 minutes later, Ciuffetelli called
her and said that he had been confronted by Wilson, who
shouted at him, demanding to know who his accusers were.
Danforth was asked to return to the plant and she did.
Danforth returned to the plant and met with Wilson.
According to Wilson, they spoke about O’Neill’s complaints
about his housekeeping. Danforth asked him whether he had a
problem with his temper, adding that there had been a “pattern”
of harassment and threatening behavior. Wilson protested that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578
he wished to speak only about housekeeping. Danforth replied
that because of Wilson’s pattern of threats, he should go to
counseling. Wilson denied threatening anyone, and refused to
go to counseling. Respondent has an employee assistance pro-
gram (EAP) which is voluntary. Danforth said that she would
continue the investigation.
According to Danforth, she told Wilson that she knew noth-
ing of an investigation against him. Wilson told her that he
believed that he was “under a microscope” on the production
line, he was under great pressure, and he did not believe that he
could continue to work under such conditions. He asked Dan-
forth to help relieve the pressure, and she agreed to conduct an
investigation into the matter in behalf of Wilson.
Danforth stated that on February 8, when she agreed to con-
duct an investigation, she was aware of what Wilson had said to
O’Neill, but was not aware of Wilson’s confrontation with the
managers.1
Danforth then spoke to supervisors, superintendents, and
Bhalla. They told her that the problem concerning O’Neill and
Wilson was caused by a lack of proper housekeeping on the
production floor. They also advised Danforth that they were
“quite concerned” about Wilson’s behavior on February 8,
during which he spoke to them in a loud tone of voice, was
“shuffling back and forth,” his arms were “flaying from the
sides.” McGuinness told Danforth that he was not sure what
action Wilson would take at that time. Del Santo told Danforth
that he was passing by the confrontation at the time and stayed
in the area because he was not sure what would happen.
Bhalla recommended that Danforth notify the corporate of-
fice about Wilson’s behavior because Bhalla believed that mat-
ters were “getting out of hand with this.” She spoke with Cor-
porate Official David Lopater who told her to meet with the
supervisors, superintendents, and Wilson to “address the behav-
ior specifically,” and also told her to refer Wilson to the EAP
program in order to address his behavior.
Danforth stated that, pursuant to that instruction, she held a
meeting on February 14 with Ciuffetelli, Long, Mortensen, and
Wilson. She testified that she told Wilson that O’Neill believed
that Wilson had threatened him and his employment, and they
also spoke about his behavior toward management on February
8. She asked him to attend EAP for his behavior and he refused.
Danforth stated that when she mentioned EAP, Wilson rose
from his chair, and began to move his torso and his arms back
and forth. Wilson then told her that he believed that Danforth
was making the referral “because of what happened at the Post
Office.” Danforth believed that Wilson was referring to the
shootings of certain Postal Service managers by a coworker.
Danforth testified that she regarded the “Post Office” com-
ment as “severe,” and the next day spoke to corporate vice
president of human resources Bob Greene and Lopater. She
told them of the meeting the night before. They said that they
were concerned for her safety and the safety of others, and
contacted Anheuser-Busch security. That office called her and
told her to call the local police department to report the “Post

1 Danforth was in error in stating that on February 8 when she re-
turned to the plant after work, she did not know of Chapman’s state-
ment to O’Neill. O’Neill’s written statement which he gave Danforth
and in which he mentioned the Chapman comment was dated January
28. Furthermore, Danforth testified that she questioned Chapman about
the remark on February 8, which must have been during the regular
workday, prior to her return to the plant that evening.
Office” comment, and also said that they had retained a private
investigating firm which would interview her. That firm
searched four counties for a criminal record of Wilson but
found none. The local police department offered 24-hour secu-
rity for Danforth, which she declined.
Danforth then asked McGuinness, Long, Ciuffetelli, James
DelSanto, and Wilson to prepare statements, which will be
discussed below.
During the next several days, Danforth called Wilson several
times asking that he attend EAP sessions because of his “pat-
tern of harassing and threatening people.” Wilson refused to
attend based upon his attorney’s advice that by doing so he
would be admitting that he engaged in improper conduct and
needed such help.
Wilson was then asked to speak to Danforth on February 17.
Danforth told him that she was doing an investigation into the
events of February 8, when he met with Long. Wilson asked
what the charges were, and Danforth replied that there were no
charges, but that Long was “frightened” in their meeting. She
also told him that O’Neill had complained that Wilson was
harassing him, and that he had a pattern of harassing and
threatening people. Wilson asked to speak to his attorney be-
fore writing the statement, but Danforth refused this request,
and said that if he left he would be terminated for insubordina-
tion. According to Danforth, Wilson demanded to know why he
was under investigation, adding that it was not like there was a
“dead body’ here with someone standing over it with a smoking
gun and witnesses at the scene.
In his statement, Wilson said that he was upset at being told,
by an employee and not the human resources department, that
he was being investigated. He conceded that he may have been
upset, but denied threatening or being insubordinate to Long or
other management personnel.
On February 18, Wilson spoke separately with Long and
Ciuffetelli, and secretly recorded the conversations. According
to transcripts of the recordings, Long told him “off the record”
that “they don’t have enough evidence to get you on . . .
O’Neill . . . and now they’re looking for something else. That’s
my opinion.” Long denied that Wilson threatened him, adding
the “the only thing I saw is that you was upset with the situa-
tion. . . . Like anyone else, you was allowed to work off little
steam. Now, if you don’t get it out of your system, you’ll never
get it out. That’s what we’re here for to help you get it out of
your system.” Long added that he might act in the same way if
there was an investigation about him which he was not told
about. Long also noted that Danforth is “making it seem like
you’re out of control.” He also stated that he did not view Wil-
son’s behavior as being threatening, disrespectful or insubordi-
nate. Rather, he believed that Wilson was “upset with the situa-
tion” and “letting off a little steam.” Long also observed that he
has seen people talk louder. Long warned Wilson that he was
“underneath the microscope” and that he should “just keep
yourself clean.”2
2 I reject Respondent’s argument that Long was biased against Re-
spondent. On March 5, 1995, Long received a written warning from
Bhalla for causing an injury to an employee while operating a machine,
and Long resigned on April 3. There is no evidence that Long was not
acting in the interest of Respondent when he spoke with Wilson, as
alleged by Respondent. His recorded testimony is generally consistent
with the written statement he gave Danforth. Moreover, his recorded
conversation and written statement to Danforth are consistent with
Ciuffetelli’s.
METAL CONTAINER CORP. 579
Long further told Wilson that it was his opinion that
concerning allegations made by others, “either nobody is step-
ping forward or she don’t have the evidence. So now she’s
looking for something else. . . . If I thought you was being
disrespectful . . . you would have known right then. I didn’t
take it as that. I didn’t interpret it as that. I interpreted it as a
situation that has been handled and it wasn’t handled properly
and they didn’t come to you and they didn’t notify you and
yo

u’s upset.” When Wilson suggested to Long that Respondent was saying
that Long and Ciuffetelli were “offended” Long replied,
“[F]uck no, I never, never said that.”
Long’s written statement obtained by Danforth stated that
during his conversation with Wilson, he was “talking very loud
and it was apparent that he was upset over the situation and out
of control. I told Steve to calm down.” They spoke about Dan-
forth’s availability, and then Wilson apologized for “being out
of control and talking loud but that he was upset over the situa-
tion.”
In his recorded conversation with Ciuffetelli, Wilson men-
tioned that Danforth accused him of threatening and being in-
subordinate to him and Long. When asked by Wilson if he was
threatening to him in any way, Ciuffetelli replied, “I told her
you weren’t. I said you were venting. . . . Had I said calm down
and you didn’t calm down, then it would have been insubordi-
nate. I told her that I said absolutely nothing the whole time. . . .
I told her I said you were upset, you were very loud . . . and the
whole thing was over the fact that you felt they’re doing an
investigation on you and you wanted to know what was going
on.” Ciuffetelli added that Wilson was yelling, was “pissed and
you told me so, and that was the end of that.” When asked by
Wilson if he was disrespectful or insubordinate, Ciuffetelli
replied, “I didn’t say anything.”
Ciuffetelli’s written statement obtained by Danforth stated
that Wilson asked him why he was being investigated, and what
he had done wrong. He claimed that O’Neill and McGuinness
were “out to get” him. Ciuffetelli added that Wilson “interro-
gated” him for 5 minutes while “flailing his arms and pacing
back and forth, inquiring “so what do you have to say about all
this?” Ciuffetelli denied any knowledge of the matter and Wil-
son said, “I can see they’ve trained you well.” In another state-
ment, Ciuffetelli stated that Wilson spoke to him and Long in
an “agitated manner.”
In his testimony, Ciuffetelli stated that Wilson was very up-
set and extremely agitated when they spoke, demanding to
know why he was being investigated. His arms were “flailing
and moving about.”
In a statement obtained by Danforth, Supervisor DelSanto
stated that during the conversation, which he observed, Wil-
son’s arms were “flying all over the place and somewhat pacing
back and forth. He seemed very excited and his voice was quite
loud.” Supervisor McGuinness’ statement, also obtained by
Danforth, stated that Wilson was “in a highly agitated state”
when he asked to see Danforth. Wilson shouted at Long, while
flailing his arms and shifting his feet. Wilson asked whether
O’Neill was running the crew, stated that he had a right to face
his accuser, and that Long, Danforth, and McGuinness were out
to get him. McGuinness stated that after a while he was not
listening to Wilson, but rather was “primarily focused on
Steve’s body language and actions. I was quite unsure of what
he was capable of, but recognizing [sic] it of having the poten-
tial of escalating out of control.” Wilson then “abruptly termi-
nated the conversation, spun around and” returned to work.
McGuinness testified that Wilson was “pretty agitated” when
he approached the supervisors and asked whether O’Neill was
“running the crew.” Wilson then told them that he had a right to
know “what was going on?” McGuinness replied that he did
not know, and Wilson asked to speak to Danforth. McGuinness
said that Wilson stuck his hands out and said he was so upset
that his hands were shaking. McGuinness stated that he consid-
ered as “very dangerous” Wilson’s gesturing and shaking his
hands, his feet movement and shifting from side to side, not-
withstanding that Wilson did not hit him or make a fist.
O’Neill further testified that on February 19, Wilson asked
O’Neill if he had made a threat.3 O’Neill replied that Wilson
had threatened him by saying that he would reveal O’Neill’s
past. Wilson then told O’Neill that “they” were trying to “get”
him and that O’Neill should “call the dogs off.” Wilson asked
him if he had made a threat why did he not carry it out. O’Neill
said that he did not know. Wilson became angry, and told him
not to take it as a threat but that if something happened to him
(Wilson) did not know what he would do.
O’Neill interpreted this as a threat and reported it to Dan-
forth. He still did not want to pursue the matter, and Danforth
told him that she would retain his statements in the event that
something happened in the future. Danforth offered him “secu-
rity” which he did not accept. Danforth testified that although
O’Neill did not want to pursue Wilson’s threats, and she did not
“go forward with the investigation” pursuant to his request, she
told him that she had an obligation to report it to the “appropri-
ate people,” apparently corporate officials.
7. Wilson is discharged
Wilson continued to work, apparently without incident for 5
weeks, when on March 14, he was met by Long. In a conversa-
tion recorded by Wilson, he told Wilson “they think they got
enough to fire you . . . [for] everything that Brenda has talked
to you about. I think it’s conduct unbecoming a team member.”
When Wilson protested that Long had previously told him that
he was “okay,” Long replied, “I thought so,” and that this was
the first he had “heard of it today,” and that if he had known
before then he would have spoken to Wilson.
Long told Wilson that he was not being fired for harassment,
and that the conversation they had on February 8 was being
“blown out of proportion.”
Wilson then went into a meeting with Danforth at which he
was given a termination letter. The letter stated that he was
discharged for violation of the following handbook policy:

Never cause a disturbance by running, yelling, harass-
ing, playing practical jokes, fighting, engaging in horse-
play or other acts of a similar nature, including use of dis-
respectful, profane or threatening language.
Do not engage in disruptive behavior of any kind
which interferes with your work or the work of another
Team Member.

The letter further stated:

On Wednesday, February 8, 1995, you had several periods of
interaction with salaried staff of the Newburgh facility. Your
tone of voice and body language was inappropriate and was
conceived as threatening by the staff. This has occurred on
3 O’Neill was in error in testifying that it occurred on February 24.
His written statement to Danforth states that it took place on February
19.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 580
several occasions when management has delivered feed back
to you that you may not be in agreement with. Actions such as
these will not be tolerated and are considered conduct unbe-
coming a Team Member. This inappropriate conduct is a clear
indication that you are either unwilling or unable to meet the
expectations of a Newburgh Team Member.

Danforth stated that prior to Wilson’s discharge, she heard
from certain named employees and Supervisor Ciuffetelli that
Wilson had bragged about instances where he was involved
with confrontations, including physical confrontations with
people off company premises.
Danforth testified that the decision to terminate Wilson was
made between the corporate office and Plant Manager Bhalla.
No discussion concerning Wilson’s union activities took place
during the discussions concerning the decision to fire him.
Danforth stated that Wilson was discharged “specifically”
for his behavior to management and for the threats that were
communicated to management. She also stated that Wilson’s
comment to Thompson, that he would shoot whoever fired him
for his union activities, may have played a part in the decision
to fire him.
Danforth conceded that she had never seen Wilson harm or
injure anyone, and no one had alleged that he had been struck
by him.
Danforth stated that the threats to O’Neill played “very little,
if any” role in the decision to terminate Wilson. As set forth
above, the discharge letter did not mention the O’Neill or any
other incidents other than the February 8 confrontation. Dan-
forth noted that the decision makers were aware of Wilson’s
interaction with O’Neill but they did not want to involve em-
ployees in disciplinary actions against their coworkers. How-
ever, Danforth later testified that Wilson’s interchange with
O’Neill played a part in the decision to terminate him. In fact,
Danforth stated that she drafted a discharge letter which con-
tained references to the Thompson comment, the O’Neill inci-
dent, and Wilson’s remarks concerning the Post Office and
“smoking gun.” That letter was rejected by the corporate offi-
cials to whom it was sent, and instead a letter, set forth above,
was written by them, discharging Wilson. The draft letter was
not produced at hearing.
Plant Manager Bhalla testified that he made the decision to
terminate Wilson based upon the threats to O’Neill and his
actions during his conversations with management on February
8, which Bhalla concluded was conduct unbecoming a team
member.
Bhalla testified that he was present when O’Neill first ap-
proached management, claiming that he had been threatened by
Wilson. Bhalla then heard that there were additional threats
which made the matter “much more serious.”
Employee Justin Connolly testified that following the elec-
tion, Long told him that he was angry that Respondent was
making the supervisors do things that he did not want to do.
Following Wilson’s discharge, Long told Connolly that he was
“sorry for what he did to” Wilson.
Conclusions Regarding Wilson
The General Counsel has the initial burden of showing that
Wilson’s union activities were a motivating factor in the deci-
sion to discharge him. Wright Line, 251 NLRB 1083 (1980). As
set forth above, Respondent stipulated that it was aware of the
union activities of Wilson during the 1994 campaign which
concluded with the Union’s election loss in October.
Respondent established that other employees also wore Un-
ion clothing, and also engaged in the same types of activities as
Wilson, Bauerle, and Murray. Furthermore, others who acted as
observers in behalf of the Union remained employed by it. Of
course, the fact that more union supporters were not discharged
is not evidence of lawful treatment of Wilson.
Respondent bore animus toward the Union as established by
the credited testimony of employees Bell and Connolly that
Respondent’s official Stafford told the workers that he would
shut the facility if it became unionized.4 In addition, Federico
told him that he did not know if Respondent would retaliate but
he should not ask for any favors. I credit Connolly’s version of
his “FTU” conversation with Bhalla. It is clear that the button
was directed toward the Union as it was worn in response to the
union supporters’ wearing of their union buttons. It is logical to
assume that Connolly, who did not support the Union, would
have had the confidence of Bhalla, and it is further likely that
Bhalla would have made a statement to him relating to dis-
charging union supporters.
I accordingly find that the General Counsel has established
that Wilson’s union activities were a motivating factor in the
decision to discharge him.
Once the General Counsel has made this showing, the bur-
den shifts to Respondent to prove that it would have discharged
Wilson even in the absence of his union activities. Wright Line,
supra.
The letter discharging Wilson specifically referred to his
conduct on February 8 toward supervisors, in which he used an
“inappropriate” tone of voice and body language which was
viewed as threatening. It was concluded that this conduct was
“unbecoming a Team Member” and was deemed sufficient for
discharge.
The letter also referred to other alleged instances of similar
conduct toward supervisors, none of which has been docu-
mented in this record, with the possible exception of the St.
Clair incident. That event, which occurred more than 2 years
before Wilson’s discharge, involved one contemporaneously
documented instance where Wilson was loud and defensive
toward St. Clair. I cannot credit St. Clair’s testimony that dur-
ing this altercation Wilson was angry, moved his arms around,
and cursed. That description was not included in St. Clair’s
memo written at the time, and if that had been the case, it is
doubtful that St. Clair would have dropped the charge of insub-
ordination against him.
Nevertheless, the St. Clair incident occurred more than 2
years before the discharge, and no disciplinary action was taken
against Wilson.
Danforth’s testimony that the reasons for discharging Wilson
may have included his conduct toward O’Neill is equivocal
inasmuch as she also testified that the O’Neill incident played
very little, if any role in the decision to discharge him. Simi-
larly, Bhalla’s testimony that the O’Neill incident contributed
toward his recommendation of termination would surely have
come to Danforth’s attention since she was involved in the
termination decision. Moreover, those additional reasons were
not included in the official letter of discharge. Danforth’s testi-
mony that she wrote a complete letter containing Wilson’s his-
tory of improper conduct to corporate officials is not supported
since no evidence of the letter was produced at hearing.

4 Stafford did not testify.
METAL CONTAINER CORP. 581
Accordingly, we are left with the termination letter itself as
the official, stated reason for the discharge—that during Wil-
son’s discussion with the supervisors on February 8, his “voice
and body language was inappropriate and was conceived as
threatening by the staff.” However, with respect to the February
8 incident, even the statements given by the supervisors to Dan-
forth do not support Respondent’s stated basis for firing him.
Thus, the supervisors’ written statements only asserted that
Wilson was upset upon hearing from Chapman that questions
were being asked about him, and believing that an investigation
concerning him was taking place, he loudly asked the supervi-
sors in an excited, agitated manner, while moving his arms and
pacing, what was occurring. Long’s statement said that Wilson
apologized for being loud.
It is important to note that following this confrontation, Wil-
son returned to work without any discipline being imposed, and
continued to work for 1 month before being terminated. Fur-
ther, the secretly recorded conversations establish that the su-
pervisors allegedly threatened did not feel threatened. Indeed,
Long told Wilson that he was permitted to let off steam as other
people were, and that the supervisors’ job included “helping”
workers “get it out of [their] system.” Long also accused Dan-
forth of making it appear as if Wilson was out of control, and
denied that his conduct was threatening, disrespectful, or in-
subordinate. Similarly, Ciuffetelli stated that Wilson was not
threatening, and was not insubordinate.
I cannot credit Respondent’s contention that the O’Neill in-
cident played a part in the decision to discharge Wilson. First,
Danforth said that that matter had little, if any effect upon Wil-
son’s discharge. Wilson was not disciplined in any respect for
the incident. Moreover, no actual physical threat to O’Neill was
involved. There was only a threat to reveal truthful information
about O’Neill’s past which he had concealed from Respondent.
Similarly, no action was taken concerning Wilson’s alleged
threat made to Thompson. Following Danforth’s investigation,
she concluded that the alleged threat could not be corroborated,
and dropped the matter.
Further, the reaction to Wilson’s comments about the post
office and smoking gun seem to be exaggerated. In relation to
the O’Neill incident, Wilson was simply remarking that he
believed that the referral to EAP was being made because of the
post office situation, and that his conduct could not be com-
pared to an actual killing. Wilson did not threaten anyone in
making these comments. He was simply remarking upon Re-
spondent’s overblown reaction to the O’Neill incident, for
which no discipline was imposed upon him. Moreover, he was
permitted to return to work following those comments and
worked for more than 1 month before his discharge. His refusal
to attend the EAP sessions was not improper since such atten-
dance is voluntary unless it is required as part of a warning.
Here, Wilson was not required to attend EAP for his actions on
February 8, and no reference to his failure to do so was made in
the letter of discharge.
I thus find that Respondent’s additional, shifting reasons for
discharging Wilson lacked merit, in that they were purposely
added as reasons following his discharge, as variously testified
by Danforth and Bhalla, and that such additional alleged rea-
sons played no role in the decision to discharge him inasmuch
as no discipline had been administered. Scientific Ecology
Group, 317 NLRB 1259 (1995).
I accordingly find that Wilson had not engaged in threaten-
ing conduct toward the supervisors on February 8 as set forth in
the termination letter. If Respondent in fact believed that Wil-
son was a threat to supervisory personnel, it would not have
permitted him to return to work immediately after the confron-
tation, and would not have permitted him to work for 5 weeks
thereafter. As set forth in the following section concerning
Bauerle, employees who were engaged in more serious behav-
ior were not discharged.
I therefore conclude that Respondent has not met its burden
of proving that it would have discharged Wilson even in the
absence of his union activities. Wright Line, supra.
D. Kurt Bauerle
Bauerle was employed for nearly 7 years as a production
technician. His 1994 performance evaluation stated that his
work, in various areas, ranged from standard to good.
As set forth above, he was active in the 1994 union cam-
paign by being the head of an organizing committee. He at-
tended the early union meetings, signed a card for the Union,
and solicited employees to sign cards both in and outside the
plant. He also distributed union literature inside the plant before
work began. Bauerle stated that his supervisors, Al Varrone and
Warren Tomlins, saw this activity but did not comment on it.
Instead they shook their heads and rolled their eyes.
Bauerle stated that he initiated a conversation with Tomlins
about the Union during the 1994 campaign. Tomlins asked him,
“[W]hat’s going on? What’s wrong with you people?” Bauerle
gave his reasons for wanting the Union, and Tomlins showed
him a collective-bargaining agreement and said that Bauerle
should not want a card since he would have to follow many
rules. Bauerle responded that the employees wanted rules since
the Respondent would be obligated to follow them also.
Tomlins concluded by saying that he could not change Bau-
erle’s mind, but that he should “watch [his] back.”
Bauerle also testified that 2 or 3 days before the election,
Plant Manager Bhalla escorted him outside during worktime
and asked what he could do to have Bauerle vote against the
Union. Bauerle said that he could do nothing, since he was one
of the organizers, has been wearing union clothing, and would
vote yes. Bhalla asked him to give him a chance to correct all
the problems with the plant. Bauerle responded that he would
vote as he saw fit.
The “plant line monitoring” system (PLM) is a computerized
communication device used by machine operators to speak to
each other by typing messages which appear on a screen. It is
useful because the distances between machines are great and
because of the noise generated by the machines, oral conversa-
tions are impractical.
The PLM machine is supposed to be used to advise operators
and technicians of production problems with the machine, for
example that it had a jam and needs to be cleared. The message
may be sent plantwide or to an individual. The message identi-
fies the work station from which it was sent, but not the person
who sent it. However, the PLM system has also been used to
send nonwork related, offensive messages. According to Bau-
erle, the PLM system has been abused on a daily basis, with
supervisors and Tomlins also misusing it. In an effort to end
this practice, Plant Manager Bhalla told all the workers that
they should not use the PLM for wisecracks.
During the election campaign, an employee typed a message
asking why management was telling him to vote “no” in the
election. Bauerle wrote a message which was sent to the entire
plant, advising that it was illegal for management to coerce
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582
employees in that way. A message was then sent on the PLM
with Superintendent Tomlins’ screen name, which said that
management would “back off.”
1. The threat to Warren Crosby
On March 13, 1995, Bauerle noticed that many of the cans
which were approaching his can washing machine were tipped
over, causing much lost production and jamming. He observed
that the tip overs were coming from a certain area—line three
and four body makers, and wrote a message on the PLM asking
employees in those areas to correct the problem. He also told
them something to the effect that the loss of production was
affecting his bonus, and asked them to “try and care about your
job for a change.”
In response to that message, Bauerle received a message stat-
ing that more tipped over cans were coming, and he should fix
it himself. Bauerle then walked past the line three and four
body makers and saw Warren Crosby using the PLM. Because
of the noise level in the plant, and their use of ear plugs, Bau-
erle and other employees use a sign language system to com-
municate. He was 30 to 40 feet from Crosby, got his attention
and pointed to him, indicating that it was him who was using
the PLM. Crosby gestured “so what.” Bauerle said that he
would “see [you] after work then,” and returned to his work
station.
Crosby then wrote on the PLM “why after work, so you can
kiss me?” At that point, Superintendent Tomlins passed by and
Bauerle told him that Crosby is “trying to wind me up here and
he won’t stop.” He asked Tomlins to tell him to cease the nasty
messages. Tomlins told Bauerle that if he did not stop he would
be in serious trouble. Tomlins told Bauerle that he would tell
Crosby to stop also. Bauerle stopped writing messages, but
Crosby wrote, “[B]itch, bitch, bitch. All you . . . do is bitch.
You make all this money and you gotta bitch.”
Bauerle testified that he left his work station and pursuant to
his job responsibilities, began picking up the cans that were on
the floor. At that point, there were no more tip overs. He ap-
proached Crosby, who was grinning. Bauerle gestured “keep
smiling” (by putting his fingers at the sides of his mouth and
forming a grin), “because Tony Bhalla will fire us both” (point-
ing his index finger at his forehead meaning Bhalla as a symbol
of Bhalla’s Indian nationality, and making a kicking motion
with his foot).5 Crosby then left his work station and walked
past Bauerle.
Twenty minutes later, Tomlins summoned Bauerle to meet
with Danforth. At the meeting, Danforth asked him what hap-
pened, and Bauerle said that he and Crosby were arguing on the
PLM . She asked what did the gesture of pointing to his fore-
head meant, and Bauerle explained that it was a reference to
Bhalla.
Danforth then said that Crosby interpreted the pointed finger
as a pistol, and believed that Bauerle was threatening to shoot
him. Bauerle conceded that he might have told Danforth that
his temper gets the best of him, and that the “wise guys” don’t
stop.
In the statement he prepared for Danforth at that time, Bau-
erle stated that he had been attending counseling sessions in
order to control his temper, and has made great progress. He
also stated that some workers enjoy taunting and instigating

5 In his statement prepared that evening, Bauerle wrote that he
mouthed the words “hope you’re happy, cause now I’m gonna get
fired.”
him, knowing that he has difficulty dealing with personal at-
tacks. He conceded that his reaction to those attacks was im-
proper. Bauerle also noted that he was being “pushed and insti-
gated” and that Crosby exaggerated what Bauerle had done in
order to minimize his own responsibility for the incident. Bau-
erle concluded by stating that he would do “whatever it takes to
make amends and keep [his] job.”
Danforth told him that she had called the police, and he
would be suspended pending an investigation. The police did
not come to the premises.
A letter dated March 17 was sent to Bauerle, discharging
him. It stated, in relevant part, as follows:

On March 13, 1995 you were involved in an incident
with Warren Crosby. The incident started with the ex-
change of comments on the PLM messaging system and
eventually became derogatory in nature. The messaging
escalated to the point of involving Superintendent Warren
Tomlins. Warren counseled all parties involved and stated
that he would not tolerate any further discussion or inter-
action on the matter. The counseling was violated by the
situation escalating to one-to-one confrontations with
Warren Crosby.
In the direct conversations with Warren Crosby you
admittedly made statements that were interpreted as
threatening. Statements such as these are violations of the
Team Member handbook, the Disciplinary Policy, and
Anheuser-Busch’s policy on Violence in the Workplace.
During the D Crew roundtable meetings, Tony Bhalla has
specifically stated that PLM messages that could be con-
strued as sexual harassment, racial, or derogatory in nature
would no longer be tolerated in this facility. Your PLM ac-
tivity of March 13, 1995, is a clear violation of the stated
expectations. The intended use of the PLM has been
communicated to all Team Members at various times over
the past several months.

In a memo dated March 17 giving Crosby a 3-day suspen-
sion for misuse of the PLM, Tomlins stated that Bauerle made
“implied threats to your personal well-being.”
As to the March 13 incident, Tomlins testified that when
called over by Bauerle, he read the messages sent by Bauerle,
which included that “Warren Crosby is a pussy.” Tomlins told
Bauerle that his actions were not “helping matters much.”
Tomlins told Bauerle and Crosby to stop sending messages.
Tomlins stated that no disciplinary action was taken regarding
the plm comments sent by Bauerle, and none would have been
forthcoming if the incident had ended at that time.
Tomlins further stated that a short time later he was told by
Crosby that Bauerle had come over to him and said that he
would see him at the end of the shift and would “kick his ass.”
Tomlins then asked Bauerle what he was doing, adding that he
already spoke to Crosby. He asked Bauerle what he said, and
Bauerle said that he told Crosby that he would see him at 6 p.m.
Tomlins told him to drop the matter, but Bauerle, angered, said,
“[S]omeone is going to get their ass kicked.” Tomlins told him
that if there was a fight, both participants would be fired.
Tomlins stated that if the matter ended then, no disciplinary
action would have been taken.
Shortly thereafter, Crosby came into the superintendent’s of-
fice and announced that he was leaving because “I am not go-
ing to be threatened.” Crosby told him that Bauerle approached
him and said that if he was going to lose his job, he would do
METAL CONTAINER CORP. 583
10 to 15 years for shooting the one who caused him to lose it,
and then pointed to his own forehead. Crosby asked him what
he meant by that, and Bauerle said that that is where he would
put the bullet—between Crosby’s eyes.
Tomlins asked Crosby to repeat the story and he did, asking
him if he understood the seriousness of his accusations. Crosby
said he did. Tomlins called Danforth at home and asked her to
return to the plant because a threat had been made against an
employee. Crosby repeated the story again, and met with Dan-
forth who asked him to write a statement. Danforth testified
that when she arrived at the plant, Tomlins told her what hap-
pened and recommended that Bauerle be discharged.
In his statement, Crosby declared that following the initial
PLM messages, he received a message that said, “Crosby,
you’re a pussy.” Tomlins told him and Bauerle to stop. Then
Bauerle approached and asked if he had been using the PLM.
Crosby said he had, and Bauerle said he would meet him at 6
p.m. outside, and would “kick your ass.” Crosby complained
about this threat, and Tomlins said he would take care of it.
Shortly thereafter, Bauerle approached and told Crosby that he
hoped that he was happy since Crosby caused him to be fired.
Crosby said, “[W]hatever” and Bauerle asked if he thought this
was funny. Bauerle then said that he (Bauerle) was fired and
Crosby was “getting this,” pointing to his forehead. Crosby
said, “[W]hat,” and Bauerle said, “[A] bullet right between the
eyes.” Crosby then left his work station and reported the threat.
Tomlins stated that he then called Bauerle to the office.
Tomlins took notes during the meeting.6 According to the
notes, Danforth asked Bauerle whether he said that he was so
upset that he could have killed someone. Bauerle answered that
that was true, adding that his temper gets the best of him. Bau-
erle denied saying that he would put a bullet in Crosby’s head,
and denied threatening anyone. Bauerle told Danforth that
when he pointed to his forehead he meant that Bhalla would
fire him, adding that pointing to his forehead indicates Bhalla.
Tomlins testified that Danforth asked Bauerle whether he
threatened someone, and did he threaten to kill someone, and
Bauerle answered that he was upset. Danforth asked whether he
could have done it, and Bauerle said he could have. Bauerle
added that he gets upset if people antagonize him. He was
apologetic about the incident and said it would never happen
again. He also denied saying that he would shoot Crosby.
Tomlins said he credited Crosby’s version, and did not be-
lieve Bauerle because Crosby’s version was consistent when
repeated, and Bauerle’s version of the story changed when
questioned by Danforth. No explanation of how Bauerle’s story
changed was given. Tomlins denied knowledge of the use of
hand signs to identify members of management. It should be
noted that employee Murray testified that employees communi-
cate by using sign language and gestures identifying people in
the plant. Employee Connolly testified that employees commu-
nicate by yelling, speaking in each other’s ear, or using hand
gestures.

6 I reject the General Counsel’s assertion that the typewritten version
of the notes were not accurate. Tomlins stated that he took written notes
at the time of the meeting, and the typewritten document presented at
hearing accurately set forth the conversation as set forth in his original
notes. The fact that the handwritten notes were destroyed, or that Dan-
forth signed and dated the typewritten version does not detract from the
veracity of this evidence.
Tomlins concluded that Bauerle’s failure to follow his direct
request to cease the conduct relating to that incident was insub-
ordinate, and that threatening an employee was an offense pun-
ishable by termination. He recommended that Bauerle be sus-
pended pending the completion of the investigation, and then
terminated for threatening an employee’s life and insubordina-
tion. Tomlins recommended that Crosby be suspended for 3 to
5 days for misuse of the PLM system and possibly instigating
the event. Crosby was suspended for 3 days.
Tomlins stated that Bauerle’s union activity played no role in
his decision to recommend his termination. Tomlins acknowl-
edged that when he was a nonsupervisory employee he was
aware of rough language and threats to harm employees being
made in the plant.
Danforth testified that Bauerle told her that his gestures to-
ward his forehead signified Bhalla, and denied stating that he
would shoot Crosby. Bauerle said he was angry, and could have
hurt Crosby. Danforth asked whether he was angry enough to
have killed Crosby and Bauerle said that he was. Bauerle
apologized for his conduct.
Danforth called Corporate Official Lopater and Bhalla. She
was told to send Bauerle home pending investigation. Lopater
said that he would contact the Anheuser-Busch legal depart-
ment, and Tomlins’ recommendation was solicited. Tomlins
recommended discharge notwithstanding Crosby telling
Tomlins that he did not want Bauerle fired for this incident.
Thereafter, Bauerle was discharged.
The General Counsel makes much of the fact that Tomlins
made a recommendation to discharge Bauerle without any in-
terview having been conducted with Bauerle. However,
Tomlins had been involved with the incident from the begin-
ning, and found it necessary to warn Bauerle twice to cease his
inappropriate conduct, including a final warning, even accord-
ing to Bauerle that if he did not cease, he would be in “serious
trouble.” In addition, after the first warning, Bauerle persisted,
asking Crosby to meet him after work. In any event, Tomlins
did not make the final decision to discharge Bauerle.
There was evidence that Bauerle had a problem with his
temper. Thus, in 1992, he had an “altercation” with another
employee and was required to attend counseling for 1 day,
which the Company paid for. Bauerle attended another 2 days
and personally paid for those extra sessions. In about Novem-
ber 1992, he dumped a large number of cans on the floor in
protest of an employee’s refusal to shut a machine which was
producing defective cans. Bauerle’s evaluations in 1992, 1993,
and 1994 all made reference to his temper, controlling his emo-
tions, and “outbursts.” Nevertheless, according to Bauerle, his
anger or temper never caused a loss of production, and he never
damaged company equipment or products, and never struck
anyone—inside or outside the plant.
Tomlins recounted a prior incident where he had to position
himself between Bauerle and Crosby who appeared ready to
fight. Tomlins told them to break it up and return to work. They
both apologized.
2. The alleged disparate treatment toward Bauerle
The General Counsel argues that Bauerle was treated in a
disparate manner, in that others who have engaged in similar, if
not more serious conduct, had not been discharged. They will
be discussed here.
Employee Connolly testified that in April 1995, Company
President Jim Engelhuber toured the plant and asked him about
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584
an apparent mistake in an image on the cans he was making.
Connolly misrepresented the cause of the problem to Engel-
huber, who apparently believed that Connolly told him that the
problem would not be fixed for one week. Plant Manager
Bhalla then approached him in a “physically threatening way,”
yelling, screaming in his face, waving his hands, and demand-
ing to know whether he told Engelhuber that the machine
would not be shut for repairs until the following week.
In 1997, Connolly had received permission to remove a
quantity of lumber from the plant. He used it on a construction
project at home. Coworker Stefan Chunga accused Connolly of
stealing Chunga’s wood. Chunga asked him to discuss it in the
plant boiler room and Connolly refused. They spoke with Dan-
forth present, and it was learned that Chunga had videotaped
Connolly’s home. Connolly asked that action be taken against
Chunga for filming Connolly’s home. Chunga was directed to
apologize to all four crews, and give Connolly the videotape.
Connolly testified that he confronted coworker Rodney
Koontz about comments Koontz was making on the PLM about
Connolly’s girl friend. Connolly told Koontz to meet him after
work. This confrontation continued for 1-1/2 weeks. Finally,
Supervisor Al Varrone told them both to stop it or they would
be in big trouble.
In February 1995, an altercation occurred between employ-
ees Brian Owens and Ed Martin. Owens accused Martin of
making derogatory comments about him on the PLM, and Mar-
tin denied it. When Owens persisted, Martin assaulted him,
picking him up and throwing him against a wall. Martin, a pro-
bationary employee, was discharged, and Owens received a 5-
day suspension.
The suspension notice stated that Owens was involved in “al-
tercations” with employees throughout the day, and that they
were prompted by racial statements which provoked Owens
into confronting employees. Following an incident in the break-
room, his superintendent instructed him to return to his work
area and “drop the issue.” Instead, Owens continued to question
employees for the rest of the day, with some questioning con-
sidered as a “form of non-verbal assault” in which Owens
“thrust” himself in an employee’s face while questioning him,
and not allowing him to pass by freely. In addition to the sus-
pension, Owens was required to report for EAP counseling, and
was warned that further incidents of this type “will result in
immediate termination.” He was further warned that a further
failure to remain in his work area when instructed may be con-
sidered as insubordination.
In the memo firing Martin, it was noted that the following
“led to” his termination: excessive absenteeism; a verbal warn-
ing on January 9 for making demeaning remarks about employ-
ees, and sexually harassing messages on the PLM; and his as-
sault of Owens.
Wilson testified that, as part of the altercation, Owens lunged
at him but did not touch him. Owens was prevented by Long
from reaching Wilson.
The General Counsel also cites an incident in December
1994 in which James Chapman complained to management that
on 4 days, Brian Owens made false statements about Chapman
on the PLM and also verbally harassed him and physically
“postured” in his presence, attempting to cause a confrontation.
Chapman called Owens a “low-life piece of shit, a rat, a weasel
and a pussy.”
Superintendent Long spoke to Owens. Owens wrote a state-
ment in which he stated that he was told by Chapman that Leon
Long was being transferred to C crew, and that he (Owens)
should go also, since Sam would be taking over their crew, and
that Sam would “take care” of Owens “and the rest of the
homies.” Owens interpreted that reference to mean that Sam
would make work difficult for African-Americans such as
Owens. Owens published Chapman’s comments on the PLM,
and the next day Chapman called him various names.
Following their discussion, Long told Owens to conduct
business only with Chapman until the matter was resolved, and
not to use the PLMin such a manner.
In March 1995, a written warning was issued to Russell Fal-
kena by Tomlins for “interacting inappropriately” with cowork-
ers regarding crew issues. It was noted that his behavior and
attitude was regarded as “intimidating and unbecoming a team
member.” The warning concluded that although he provided a
basis for his actions in some cases, nevertheless his behavior
could not be condoned. In addition to the warning, Falkena was
referred to EAP. He was warned that “any further report of this
behavior or other unacceptable performance will lead to further
discipline up to and including discharge.”
On March 21, 1995, Marcy Chapman was issued a “90 Day
Review of Expectations” in which her history of performance
issues were reviewed.
The review noted that in December 1993 Chapman received
a notice that she needed improvement in the following areas:
excessive time taken on breaks, lunch, and at other times, and
greater respect and professionalism needed to be shown to co-
workers. In 1994, Chapman was cited for excessive time away
from her work station, horseplay, and failure to show respect
and professionalism to fellow employees.
Chapman’s February 13, 1995 comment that she would have
“James take care of the electricians” was in response to electri-
cians criticizing her failure to correct a problem, and violated
the corporate violence policy. It was also mentioned that she
was in conflict with the employees she interacted with daily.
She was warned that the situation must improve immediately. It
was further noted that she created unfounded situations be-
tween employees and management which caused “damage” to
her coworkers. Chapman received a 1-day suspension on Feb-
ruary 18 for poor work performance.
On November 30, 1995, a written warning and EAP referral
was given to employee Bob Uszenski for engaging in a dis-
agreement with a coworker, which culminated in Uszenski’s
statement that “you better stay clear of me or your wife and
baby won’t have a father.” Supervisor Federico noted in the
warning that the statement was in violation of the Company’s
rule concerning workplace violence. He was warned that any
“similar behavior in the future will not be tolerated and will
result in further discipline, up to and including termination.”
Federico, who testified, was not asked about that warning.
On December 2, 1995, Tomlins issued verbal warnings to
Roy Langer and Patty Rivera for engaging in a confrontation in
which Rivera made inappropriate comments, which Langer
interpreted as “threatening in nature.” The comment was, “Why
did you turn me in to Bill Bessette? You are fucking with the
wrong person!” In addition, the records show that Rivera was
given a 1-day suspension (Decision Making Day), with a warn-
ing that “any future misconduct of this nature will not be toler-
ated and will result in immediate termination.” Rivera had re-
ceived three prior verbal warnings for taking extended breaks.
In sum, I do not believe that the above are evidence that
Bauerle has been subject to disparate treatment. Bhalla was
METAL CONTAINER CORP. 585
justifiably upset at the company president’s apparently being
told by Connolly that a problem with a machine would not be
fixed for 1 week. No threats were made to Connolly. Chunga’ s
request to Connolly that they meet in the boiler room was not
an overt threat, and Chunga’s videotaping of Connolly’s home,
apparently in an effort to document that he had Chunga’s wood,
was not improper. Connolly’s invitation to Koontz to meet him
after work, while the same type of threat as made by Bauerle,
apparently ended when Supervisor Varrone told them to stop
the continuous PLM messages or they would be in big trouble.
In contrast, Bauerle continued his confrontation with Crosby
even after being twice told to stop by Tomlins. Owens’ case
comes close to Bauerle, but does not equal the seriousness of
Bauerle’s conduct. Owens’ conduct was similar in that he con-
tinued his confrontation with employees after being taunted by
other employees, even after being told to cease. He thus was
provoked as was Bauerle. However, the difference in the cases
is that Owens committed only a “non-verbal assault” upon an
employee by approaching very close to another employee. In
contrast, Bauerle invited Crosby to meet him outside and
threatened to assault him, and later his gestures were inter-
preted by Crosby as a threat to kill him.
The December 1994 incident involving Owens in which
Long simply advised him not to become personally involved
with Chapman, resulted from a mutual confrontation between
him and Chapman, in which Chapman allegedly made a ra-
cially derogatory comment. Although Owens allegedly verbally
harassed and physically postured toward Chapman, no threats
were made.
Falkena allegedly intimidated other employees, but no de-
tails were given and there is no evidence that threats were
made. Uszenski’s statement to an employee that he should
avoid being near him or his family would be missing its father,
is clearly a threat. However, in contrast, Bauerle’s comment
was construed as an actual threat to Crosby. Falkena received
only a written warning and an EAP referral. There was no evi-
dence that additional threats were made, or that Falkena per-
sisted in making threats as Bauerle had.
Regarding the 2-day suspension given to Rivera, her state-
ment to Langer was correctly interpreted as “threatening in
nature.” However, it was not the kind of direct threat made by
Bauerle. In addition, the General Counsel’s argument that
Rivera should have been discharged since she received three
prior verbal warnings is rejected since the prior warnings were
for taking extended breaks, and not for engaging in threatening
conduct.
Chapman’s comment that she would have James take care of
the electricians was viewed by Respondent as violating its cor-
porate violence policy, and it was also noted that she had con-
flicts with coworkers. However, her conduct did not involve the
type of direct threats made by Bauerle.
In sum, the threats set forth above did not equal the severity
of conduct engaged in by Bauerle. Nor were they accompanied
by the kind of insubordination and persistence with which Bau-
erle continued the confrontation after being told to stop.
Conclusions Regarding Bauerle
I find that the General Counsel has made a showing that
Bauerle’s discharge was motivated by his union activities.
Wright Line, supra. Thus, Respondent possessed knowledge of
his union activities during the 1994 campaign. Evidence of
animus toward the Union was set forth above in the section
regarding Wilson, and additional evidence of animus was estab-
lished in Bauerle being told by Tomlins to “watch [his] back
since he could not change Bauerle’s mind concerning the need
for a Union. In addition, Bauerle adamantly insisted that he
would vote for the Union, even after Plant Manager Bhalla
asked what he could do to change Bauerle’s mind.
However, I conclude that Respondent has met its burden of
proving that it would have discharged Bauerle even in the ab-
sence of his union activities. Wright Line, supra.
I cannot find that Respondent acted improperly in discharg-
ing Bauerle. Bauerle contributed to the escalation of the con-
frontation with Crosby by writing demeaning messages on the
PLM, and then invited Crosby to meet him after work and
threatened to beat him. When Tomlins told him to stop his con-
duct, or he would be in big trouble he persisted, by resuming
the confrontation. Bauerle concedes that he was warned once
to cease contact with Crosby. Tomlins stated that he told him
twice to do so, and that after the second time, he was told by
Crosby that Bauerle invited him to meet him outside. Thereaf-
ter, Crosby complained that he had been threatened with being
shot.
Tomlins, who recommended Bauerle’s discharge, was enti-
tled to rely upon Crosby’s consistent statements, repeated to
him, and to Danforth, and contained in his written statement,
that he had been threatened with being beaten and with being
shot by Bauerle. Although Bauerle denied making the threats,
he admitted to Tomlins that he had asked Crosby to meet him
after work. Tomlins was further justified in concluding that
Bauerle’s insubordination in not following his direct order to
cease any interaction with Crosby, combined with the threats to
Crosby warranted discharge.
I have considered the facts that Bauerle denied having
threatened Crosby, and told Danforth that his gesture to his
forehead indicated Bhalla. However, Crosby told Danforth and
Tomlins that Bauerle had directly told him that his gesture
meant that he would put a bullet between his eyes. Respon-
dent’s officials were entitled to credit Crosby, and they did. The
question is whether Respondent had a reasonable basis to be-
lieve that the threat had been made. American Thread Co., 270
NLRB 526, 532 (1984). Although I cannot find any way in
which Bauerle’s story changed, as testified by Tomlins, never-
theless Tomlins was entitled to credit Crosby over Bauerle.
Tomlins gave a proper reason for believing Crosby—his story
was consistent after being repeated several times. In addition,
Tomlins was involved with the incident almost from the begin-
ning and properly determined who he could believe.
I reject the General Counsel’s argument that no proper inves-
tigation had been done. The facts became known to Tomlins
immediately. Both Bauerle and Crosby involved him in the
altercation as it was developing. Tomlins properly received
complainant Crosby’s version of the threat to kill, and then
when Danforth arrived, they spoke to Bauerle. It was not im-
proper for Tomlins to have formed an opinion immediately, as
testified by Danforth, that he believed Crosby and recom-
mended Bauerle’s discharge, even before Bauerle was inter-
viewed. As the first-line supervisor, the person on the scene,
and the individual who was made aware of the progress of the
incident, Tomlins could properly and immediately assess the
credibility of both men as to the incident and the allegations,
and make a recommendation based upon those factors.
The fact that Crosby told Tomlins that he did not want Bau-
erle discharged for this incident is of no moment. Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586
properly exercised its judgment in proceeding with termination
for these events.
Respondent’s corporate violence policy was properly im-
plemented here. That policy provides that serious misconduct,
such as threats of physical violence, is not subject to progres-
sive discipline, but may cause the employee to be subject to
immediate discipline, up to and including termination. I cannot
find, based upon a review of the conduct engaged in by other
employees alleged by the General Counsel, that actual threats,
insubordinate conduct, and persistence in continuing a confron-
tation of the nature engaged in by Bauerle were tolerated by
Respondent.
I accordingly find that Respondent has met its Wright Line
burden of proving that it would have discharged Bauerle even
in the absence of his union activities.
E. Peter Murray
Murray was employed from March 1989 to October 1995 as
a production technician, and at the time of his discharge was a
printer operator. In June 1994, Rodney Fain, Respondent’s
senior administrative manager, wrote a letter of reference in
behalf of Murray, in which he stated that during his employ-
ment, Murray has been a “valuable member of our organiza-
tion. His job performance and attendance prove Pete to be a
very dependable employee.” His April 1995 performance
evaluation listed performance in the standard to good range,
and noted that he was “actively involved” and has “many good
ideas” concerning improving operations. Tomlins said he
wanted Murray to become active in the Newburgh Action
Team, an employee-employer group which addresses plant
issues.
As set forth above, he was active in the 1994 union cam-
paign by soliciting cards for the Union, distributing union lit-
erature, wearing union clothing, and attending union meetings.
He stated that of the 30 or 35 employees on his shift, 8 or 10 of
them wore union clothing. He and coworker Nick Orlando were
union committee members. Murray’s supervisor, Tomlins, testi-
fied that he saw him wearing a union hat, and was aware that he
was involved in the Union’s 1994 effort to organize the plant.
However, Tomlins was not aware of Murray’s 1995 union ac-
tivity.
Murray stated that during a meeting called by Respondent to
discuss the union campaign, Manager John Auer told the em-
ployees that signing a union card meant that the Union was
authorized to represent them. Murray asked Auer whether that
authorization was written on the card, and Auer said he did not
know since he had never seen a card. Murray stood, and handed
Auer a card and asked him to look at it. Auer refused to accept
it.
Murray testified that prior to the election, he criticized Plant
Manager Bhalla and complained that he (Bhalla) had told an
employee that she could lose her job as a temporary employee
if the Union was selected in the election. Murray also asked
Bhalla five or six times at one meeting if “jobs were negotia-
ble” if the Union organized the plant. Bhalla refused to answer
him.
Following the Union’s election loss, and in the summer and
fall of 1995, Murray solicited cards from employees in the
breakroom, and offsite. He stated that during a meeting called
by management in September, he told Auer that he believed
that there was a “good possibility” that he could be discharged
because Bauerle and Wilson had been fired. Murray also ad-
vised Auer that he (Auer) must be aware that another campaign
to organize the Union was then underway, and said that em-
ployees had approached him asking for cards, and that he dis-
tributed some cards. Auer told him that he was not aware of
union activity, and that he should not be afraid of losing his job
because he would not be discharged for his union activities.
Auer testified that during that conversation, Murray told him
that he believed that he was being “scrutinized” at work, and
requested a meeting with Plant Manager Bhalla. Auer arranged
that meeting. Danforth testified that Auer told her that Murray
mentioned that he believed that he was being “singled out”
because of his union involvement.
Murray stated that following the discharges of Bauerle and
Wilson, Quality Control Manager Greg Giaquinto approached
him and said, “[Y]ou are still here,” and several times gestured
to him that “you are out of here.”
1. Prior discipline
In late June 1995, Murray noticed a defect in a plate on his
press, and asked his team leader if he should change the plate.
The team leader told him to change the plate. Murray said that
ordinarily the team leader gets the plate and installs it, but at
that time the leader was busy so Murray obtained the plate.
Murray went to the office, looked at the schedule, wrote down
what he believed to be the correct number of the plate he was
running, and selected what he believed to be the correct plate.
The plate chosen by Murray was the wrong one. The one he
selected had the wrong UPC number. With help from a floater,
Murray installed the plate on the press and ran the job, which
consisted of printing the UPC (universal product code) number
on cans of soda. The error was not caught until five work shifts
later, by which time 2 million cans had been run with the wrong
code. All cans in the total run comprising 8 million were segre-
gated in a HFI (hold for inspection) area awaiting a determina-
tion as to their resolution.7
Plant Manager Bhalla wrote a memo to his superior, Com-
pany President Engelhuber, which noted that the cause of the
problem was operator error. Bhalla noted that in order to pre-
vent a reoccurrence, a procedure had been implemented
whereby the plate numbers are checked by two employees.
Bhalla recommended that the plate numbering system be
changed so that the numbers are easily recognizable. Bhalla
advised that he was attempting to have the cans packaged in
multipacks (with the UPC on the cardboard wrap so that the
defective cans’ UPC number would be concealed from a store’s
cash register scanner), and one filling location has agreed to do
so which would account for 90 of the 654 pallets which were in
HFI. Bhalla did “not expect any issues with the remaining in-
ventory.”
Bhalla testified that this error was costly for Respondent
which had to hold the inventory of cans for a longer period of
time because the customers could not purchase the product. He
stated that all the cans were eventually sold.
Bhalla stated that if an error occurs on the production line,
and an employee was working in conjunction with a floater,
both are held accountable for the error. He also testified that
when the shift changes, the team leader is responsible for
checking the UPC codes on the cans. However, he checks to

7 One in every four cans run was defective since a total of four plates
were run on two printers, and only one of the plates was incorrect.
Thus, it was impossible to segregate the defective cans since they all
emerged from the printers and went to one location.
METAL CONTAINER CORP. 587
make certain that the UPC is readable, not that it is the correct
code. He stated that although the wrong UPC number was run
on subsequent shifts following Murray’s, he did not discipline
them because they are not obligated to read or check the plate
number. The person who changes the plate is responsible to
ensure that the plate with the correct UPC number is installed
on the press. In addition, Danforth and Tomlins stated that the
floater was not disciplined since, even if the floater helped in-
stall the plate, the floater could not know that the plate bore the
incorrect UPC code. That fact was not obvious from the plate
itself, and the floater therefore bore no responsibility for
Murray’s error of selecting the wrong plate.
Murray was issued a written warning for “operator negli-
gence resulting in excessive product defect.” The warning
stated that “any similar occurrences will result in further disci-
pline, up to and including termination.”
On September 14, 1995, Murray produced three consecutive
HFI’s at one time, and later in the shift two others. The HFI’s
were due to the cans not having color on them. Murray attrib-
uted the problem to inconsistency in the ink’s viscosity, and the
“extra effort” needed in cleaning and housekeeping due to an
upcoming visit by August Busch. He received a 1-day decision
making leave (suspension) because of the HFI’s. The memo
confirming the suspension noted that the cause of the problem
was that Murray had not kept the fountain filled with ink. The
memo made reference to the June 30 error involving the wrong
plate.
The memo further noted that due to Murray’s “continuation
of poor work performance” he was receiving the next step in
the disciplinary process—the decision making leave—which is
a one day suspension.
The next incident involving Murray’s work performance oc-
curred 1 month later.
Murray stated that on October 13 his work resulted in four or
five HFI’s. He was off from work for a few days, and received
a phone call informing him that he was discharged. A memo
dated October 19 states that he was terminated for “continued
poor performance in the area of quality.” The letter made refer-
ence to his work on October 13 which “resulted in poor quality
cans produced.”
A company memo from Tomlins to Danforth dated October
14 states that Murray produced a total of 12 pallets of HFI’s for
three different products, consisting of deco voids, which are
missing ink color on a can, or the ink is overlapping; failure to
check the cans; and missing ink. The memo stated that Murray
had received a written warning and a 1-day suspension previ-
ously for the same issues of poor quality performance, and his
continued performance requires termination. Specifically, the
memo mentions three areas in which Murray’s performance
was deficient that day.
The first involved a case where five pallets of cans were pro-
duced without any green ink and cans produced with a deco
void, and Tomlins concluded that Murray failed to properly
check the cans he produced. The second involved another situa-
tion in which Murray failed to check the cans after changing a
plate, with a result that the same error which occurred before
the plate was changed continued afterwards. The final problem
was where an ink key on the printer was closed, preventing the
cans from receiving ink in one area, which defect was not no-
ticed by Murray until he was informed that the cans were defec-
tive.
I reject the General Counsel’s assertion that one of those in-
stances occurred during Murray’s break in which case he would
not be responsible for errors. Tomlins was not aware of when
Murray took a break on October 13. He only testified that as-
suming Murray’s break was at 3.30 p.m., he would not have
been held accountable for the errors which occurred at that
time.
Bhalla stated that Respondent has a rule that requires the
printer operator to check cans every 15 minutes at least, which
would be about a run consisting of five pallets. One pallet con-
tains about 8000 cans. The reasoning is that discipline is gener-
ally issued for an HFI of more than five pallets, since it is then
assumed that the operator was not checking the cans every 15
minutes. However, Bhalla stated that too many patterns of
HFI’s may result in discipline even if there are not five con-
secutive pallets. He specifically stated that if the operator has
less than five pallets of HFI, but it is a repeated occurrence,
discipline could be issued.
Tomlins stated that HFI’s are not uncommon, but it is un-
usual for an operator to have a number of HFI’s which repeat
themselves within the same production period. Murray’s of-
fense when compared to others with HFI’s, was that Murray
gave less attention to detail than the other employees did, and
the HFI’s were repeated HFI’s of the same nature on the same
shift.
Bhalla testified that Tomlins recommended Murray’s dis-
charge, and he reviewed the facts and background data and
agreed. During those discussions, there was no mention of
Murray’s union activity.
In October 1994, Danforth issued a memo with a revised “Is-
sue Resolution” form. The form was issued “in direct response
to the growing number of HFI’s . . . and the inability to capture
and identify the root cause of each defect.” The purpose of the
form is to identify the problem, set forth the cause of the HFI,
mechanical or human error, and the corrective action taken. The
memo states that if an employee accumulates repeated in-
stances of HFI’s as set forth in the forms, action taken will
include additional training, rotation, reclassification, recogni-
tion, or disciplinary action.
Employee Connolly testified that HFI’s are a common, daily
occurrence. In addition, the Issue Resolution forms received in
evidence indicate that HFI’s occur frequently.
2. The alleged disparate treatment toward Murray
The General Counsel cites two incidents which allegedly
demonstrate that Murray was disciplined inappropriately for
selecting the wrong plate. In those two instances, the floaters
who worked with the printer operator were disciplined for the
operator’s wrongdoing. The General Counsel reasons that since
the floater with whom Murray worked was not disciplined, this
shows that Murray was singled out for discipline because of
Respondent’s desire to terminate him. I do not agree.
The first incident occurred in March 1994, in which Tomlins
issued an incident report, criticizing the floater for failing to
notice that a ductor roll was not turned on, a “simple, normal
and little thing” that is a routine part of operating the press.
Tomlins stated that “as a floater you are the check gap for the
operators.” It is clear that the floater’s responsibility was to
make sure that obvious, readily observable procedures are fol-
lowed unlike the situation in which Murray’s selection of the
wrong plate could not be discovered, and was not expected to
be checked by the floater.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588
The second incident occurred in March 1996, following
Murray’s discharge. In that case, floater Harvey Cole was in
charge of a changeover, and the printer operator selected the
wrong plate. Tomlins’ written warning to Cole noted that “we
have checks to ensure this does not happen, you were the check
in the procedure and you did not perform this task.” It further
advised Cole that his “job was to verify the plate numbers to
the schedule and cross check the person who pulled the plates.”
The General Counsel argues that this incident occurred be-
fore Respondent changed its procedures to require that two
people verify the plate number, citing a standard operating
procedure (SOP) with an issue date of November 21, 1996,
concerning plate change procedure. However, this SOP does
not deal exclusively with the verification process, but relates to
the entire plate change process. It is unlikely that it would have
taken 17 months following the Murray incident to have issued
such a procedure. This is especially so since Bhalla’s memo to
official Engelhuber, dated July 7, 1995, relating to the Murray
incident states that “internally we have instituted a procedure
for double checking plate numbers by 2 team members for any
plate changes.” Accordingly, Cole’s failure to check the plate
numbers occurred after the change in the SOP requiring the
floater to do so. Indeed, Cole’s written warning stated that his
failure to check the numbers violated the checks, and his job
responsibilities.
I therefore find that Respondent’s failure to discipline a
floater for failing to check the plate numbers on Murray’s new
plate is not evidence of disparate treatment toward Murray.
The General Counsel cites as evidence that Murray was
treated disparately, an instance involving shipping department
employee Marc Conklin. On May 15, 1995, he was given a
written warning for poor work performance. It was noted that
Conklin caused damage to product which was shipped to cus-
tomers on at least two occasions in May. On June 20, Conklin
was suspended for 1 day for continued poor work performance.
I do not believe that the work performance of a shipping de-
partment employee can be appropriately compared to a printer
operator. Inattention by a printer operator is extremely costly to
Respondent since an error can result in millions of defective
products being produced in a short period of time.
The General Counsel further argues that Respondent’s toler-
ance of Warren Crosby constitutes evidence of disparate treat-
ment toward Murray. On March 17, 1995, Crosby received a
3-day suspension for misuse of the PLM involving the incident
with Bauerle. On July 18, Crosby and eight coworkers were
given a formal counseling for alleged misuse of the plm.
Tomlins noted in the written counseling that this discipline was
administered to all employees in their work area since no one
was willing to admit writing the messages. On July 21, Crosby
admitted being the author of certain improper PLM comments.
Crosby was suspended pending the outcome of the investiga-
tion of the “latest PLM issue.” It was noted in the suspension
notice that he recently had disciplinary issues involving the
PLM, and had continued to disregard and failed to comply with
the directives of his superintendent. On August 8, Crosby was
terminated. The termination letter noted that on August 2 he
returned from a 5-day suspension and signed a letter of com-
mitment in which he agreed to follow company directives and
policies. Following his return there were “several incidents in
which he violated those commitments.” He was terminated for
continuing to fail to follow company directives and policies.
The General Counsel points to the fact that Crosby was not
discharged following his first offense following his letter of
commitment whereas Murray was terminated following his first
offense following his decision making leave. The only evidence
on this point is that Crosby’s termination letter noted that “sev-
eral incidents” of PLM abuse occurred before the discharge.
There was no proof, however, that management became aware,
after each such incident, that it had occurred, and that it failed
to discharge him upon notification of the first alleged abuse of
the PLM. Rather, it may have been the case that all the renewed
PLM abuse occurred at one time, based upon which Crosby
was terminated.
It certainly cannot be said that in this case, Respondent toler-
ated continued wrongdoing after the final step in the progres-
sive discipline system, decision making leave, had been com-
pleted.
With respect to HFI’s, the evidence establishes that HFI’s
occur frequently, often in larger numbers than the amount
Murray produced which resulted in his discharge. Nevertheless,
the recommendation for his termination was legitimately based
upon his “continued poor performance in the area of quality”
and that Tomlins properly concluded that Murray had repeated
HFI’s in the same production period which were due solely to
operator error.
Conclusions Regarding Murray
I find that the General Counsel has made a showing that
Bauerle’s discharge was motivated by his union activities.
Wright Line, supra. Thus, Respondent possessed knowledge of
his union activities during the 1994 campaign. In addition,
Murray publicly contradicted and challenged managers Auer
and Bhalla regarding their belief, respectively, that a union
card authorizes the Union to represent employees, and whether
jobs were negotiable in the event of a union victory. Evidence
of animus toward the Union was set forth above in the section
regarding Wilson, and additional evidence of animus was estab-
lished in Murray’s testimony that Manager Giaquinto told him,
following the discharges of Bauerle and Wilson that he was
“still here” and gestured that he was “out of here.”
However, I conclude that Respondent has met its burden of
proving that it would have discharged Murray even in the ab-
sence of his union activities. Wright Line, supra.
I cannot find that Respondent acted improperly in discharg-
ing Murray. In June 1995, Murray was issued a warning for
operator negligence resulting in excessive product defect—the
2 million can run which was caused by the wrong plate being
selected. In September, Murray produced five HFI’s in one
shift, all caused, according to Respondent, by Murray’s error in
not keeping the fountain filled with ink. No credible evidence
has been produced that that was not the cause of the HFI’s. As
a result of those errors, he received a decision making leave.
Only 1 month later, Murray produced, according to him, 4 or 5
HFI’s, but according to Respondent’s records, 12 HFI’s for
three different products in 1 day. Errors made that day con-
sisted of failing to check the cans, thereby failing to notice
defective cans due to lack of ink, one ink bleeding onto another,
and failing to open an ink key, producing cans without ink.
I accordingly find and conclude that Respondent was justi-
fied in discharging Murray. I cannot find any evidence of dispa-
rate treatment or that Respondent has tolerated poor perform-
ance of the nature involved here.
METAL CONTAINER CORP. 589
I therefore find that Respondent has met its burden of prov-
ing that it would have discharged Murray even in the absence
of his union activities. Wright Line, supra.
CONCLUSION OF LAW
By discharging Steve Wilson on or about March 14, 1995,
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(3) and (1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Metal Container Corporation, New Windsor,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting the United Steelworkers of America, or any
other union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Steve Wil-
son full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously enjoyed.
(b) Make Steve Wilson whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its
files any reference to the unlawful discharge, and within 3 days
thereafter notify Steve Wilson in writing that this has been done
and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in New Windsor, New York, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms provided

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
9 If this Order is enforced by a judgment of the United States court of ap-
peals, the words in the notice reading “Posted by Order of the National Labor
Relations Board” shall read “Posted Pursuant to a Judgment of the United
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 14, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
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 ordered us to post and abide
by this notice.

WE WILL NOT discharge or otherwise discriminate against
any employee for supporting the United Steelworkers of Amer-
ica, or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL within 14 days from the date of this Order, offer
Steve Wilson full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Steve Wilson whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
WE WILL make Steve Wilson whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of the
decision.
WE WILL within 14 days from the date of this Order, re-
move from our files any reference to the unlawful discharge of
Steve Wilson, and WE WILL within 3 days thereafter, notify
him in writing that this has been done and that the discharge
will not be used against him in any way.

METAL CONTAINER CORPORATION

States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”