Tenneco Packaging, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2002

337 N.L.R.B. 898 (N.L.R.B. 2002)

898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pactiv Corporation d/b/a Tenneco Packaging, Inc.
and International Union of Operating Engi­
neers, Local 470, AFL–CIO. Cases 11–CA–
18425 and 11–CA–18442
July 29, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On June 9, 2000, Administrative Law Judge George
Carson II issued the attached decision. The General
Counsel, the Respondent, and the Charging Party each
filed exceptions and a supporting brief, and the Respon­
dent and the Charging Party filed answering briefs and
replies.
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 conclusions2
and to adopt the recommended Order.
The judge found that the Respondent did not violate
Section 8(a)(3) and (1) of the Act by contacting the local
sheriff on July 29, 1999, about employee Gary McClain,
who reportedly had been engaging in threatening behav­
ior. The judge found that the General Counsel failed to
show that McClain’s union activity was a motivating
factor in the Respondent’s decision to take that action.
The judge further found that the Respondent established
that it would have taken the same action even in the ab­
sence of McClain’s union activity. The judge also found
1 The Respondent, the General Counsel, and the Charging Party each
have effectively 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 find it unnecesary to consider the judge’s discussion of Bill
Johnson’s Restaurants, v. NLRB, 461 U.S. 731 (1983) (ongoing law-
suit will violate Sec. 8(a)(1) if it lacks a reasonable basis in law and fact
and has a retaliatory motive). See BE & K Construction Co. v. NLRB,
122 S.Ct. 2390 (2002). Although the General Counsel did not present
this case under a Bill Johnson’s theory (and the Charging Party specifi­
cally contests its applicability), the Respondent raised it as a defensive
argument in a pretrial motion to stay or postpone the hearing pending
the outcome of Gary McClain’s appeal of his involuntary commitment.
The judge denied the motion, and the Board denied the Respondent’s
request for special permission to appeal.
The General Counsel has not proven that the Respondent’s conduct
was unlawfully motivated, and the record amply demonstrates that the
Respondent had a legitimate concern regarding McClain’s mental state
and the potential for workplace violence. In these circumstances, the
Respondent’s conduct did not violate the Act.
that the Respondent did not violate Section 8(a)(3) and
(1) by conditioning McClain’s reinstatement upon his
submitting to an exam by a company-designated psychia­
trist. The judge found that this condition was consistent
with its preexisting short-term disability policy and past
practice. We adopt the judge’s findings and dismiss the
complaint.
In response to the points made by our concurring col­
league, we wish to emphasize certain points that, in our
view, are critical in assessing cases like the instant one.
Our colleague finds several troubling aspects to the
case. She says:
First, McClain had a history of exhibiting dis­
turbing behavior, yet the Respondent, while con­
cerned, had not previously taken any action. Sec­
ond, the Respondent’s concern over McClain’s re-
ported behavior intensified shortly after the com­
mencement of the organizing campaign in early July
1999 . . . . Third, the Respondent saw a connection
between the ongoing organizing campaign and
McClain’s disturbing behavior relying on a psychia­
trist’s advice that union organizing campaigns are
stressful.
We agree that union campaigns can be stressful events
in the workplace, and this may exacerbate preexisting
behavioral problems of particular employees. In the in­
stant case, employee McClain’s conduct demo nstrated
such problems even before the union campaign. How-
ever, these problems had not reached the point where the
Employer thought that outside assis tance was necessary.
It may well be that the union campaign was the event
that pushed McClain’s problems “over the edge,” such
that outside assistance (calling police and seeking a psy­
chiatric opinion) was required. In this sense, it may be
that, but for the union campaign, outside assistance
would not have been required. But, surely, the fact that a
union campaign is the event which pushes a problem
“over the edge” is not a reason to prohibit an employer
from relying on the employee’s genuinely threatening
behavior as a basis for seeking assistance to deal with the
problem (as opposed to taking action simply to discour­
age the employee’s vigorous, but protected, prounion
activity). Similarly, the fact that an employer has not
previously sought assistance is not itself a basis to con­
demn the seeking of assistance.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
337 NLRB No. 142
TENNECO PACKAGING, INC. 899
MEMBER LIEBMAN, concurring.
This case illustrates the possible tension between the
free exe rcise of employees’ right to organize and the
legitimate need of employers to guard against potential
workplace violence. The Respondent requested a county
sheriff to provide security for a meeting with a prounion
activist, Gary McClain, who, according to employee re-
ports, had been exhibiting unusual and threatening be­
havior before and during a union organizing campaign.
This request, in turn, triggered a chain of events that led
to McClain’s arrest and involuntary commitment to a
mental health facility. The Respondent’s conduct, and its
subsequent demand that McClain submit to an exam by a
company-retained psychiatrist prior to returning to work,
are alleged to violate Section 8(a)(3) and (1) of the Act.
After careful consideration, I join my colleagues in
adopting the judge’s recommendation to dismiss the
complaint. I write separately, however, to emphasize the
need for care in analyzing cases such as this one. Work-
place violence is a serious problem. But as a justification
for employer actions that may infringe employees’ rights
under the Act, the need to protect employees from the
threat of violence is not fundamentally different from
other, recognized managerial interests. As in this case, it
may be a legitimate rationale. In other cases, it may
simply offer a plausible pretext for antiunion measures.
Accordingly, the Board must examine each case on its
own merits.
I. THE JUDGE’S FINDINGS
The judge found that McClain engaged in union activ­
ity, that the Respondent was aware of his union activity,
and that the Respondent was hostile to his union activity.
The judge found, however, that McClain’s union activity
was not a motivating factor in the Respondent’s decision
to contact the sheriff’s office about him. The judge fur­
ther found that the Respondent established that it would
have taken the same action even in the absence of
McClain’s union activity. Finally, the judge found no
violation in the Respondent’s demand that McClain sub­
mit to a return-to-work exam by a company-retained
psychiatrist.
II. DISCUSSION
As discussed below, I concur with my colleagues in
dismissing the complaint, but there are nonetheless sev­
eral troubling aspects to this case. First, McClain had a
history of exhibiting disturbing behavior, yet the Re­
spondent, while concerned, had not previously taken any
action. Second, the Respondent’s concern over
McClain’s reported behavior intensified shortly after the
commencement of the organizing campaign in early July
1999.1 Certainly, absent a credible explanation, this tim­
ing might warrant an inference of unlawful motivation.
See Donald Sullivan & Sons, LLC , 333 NLRB 24 (2001).
Third, the Respondent saw a connection between the
ongoing organizing campaign and McClain’s disturbing
behavior, relying on a psychiatrist’s advice that union
organizing campaigns are stressful. Union organizing
campaigns can be stressful, in part because of the intense
employer opposition (including unfair labor practices)
they sometimes engender. But it is certainly possible
that an employer who strongly opposes union organizing
efforts, even lawfully, will perceive a potential for vio­
lence when there is none, or will encourage employees
and supervisors mistakenly to regard union supporters as
dangerous. See K-Mart Corp ., 336 NLRB 455 (2001)
(employer unlawfully instructed employees to report
harassment by union supporters). Accord: Publishers
Printing Co., 317 NLRB 933, 934 (1995) (employer
unlawfully told employees to report “any sort of pressure
to join” union), enfd. mem. 106 F.3d 401 (6th Cir. 1996).
It is therefore critical that the Board be alert to the pos­
sibility that an employee’s allegedly threatening behavior
actually may be no more than vigorous, but noncoercive,
protected concerted activity. The Board has long recog­
nized that union and other protected activity often “en-
gender[s] ill feelings and strong responses.” Consumers
Power Co., 282 NLRB 130, 132 (1986). Those ill feel­
ings and strong responses can be stressful for employees,
and that stress may manifest itself in an employee’s be­
havior. In the usual case, however, the employee’s
stress-induced behavior, sometimes referred to as part of
the “res gestae” of union activity, remains protected by
the Act and may not serve as the basis for adverse action.
Id.
Employers justifiably are more concerned today than
ever about workplace violence and they must remain free
to quickly address genuine threats. The Board’s sound
policy is not to second-guess well-intended employer
efforts to provide a safe workplace. But the Board is
nevertheless bound to enforce the Act and may not ex­
cuse seemingly legitimate action when it is based on ille­
gitimate considerations. See Sure-Tan, Inc., 467 U.S.
883, 895–896 fn. 6 (1984). The Board therefore must
not permit heightened sensitivities to the ris k of work-
place violence to inhibit its vigilant enforcement of the
Act.
With these considerations in mind, however, I con­
clude in this case that the Respondent’s conduct was not
unlawfully motivated. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
1 All dates are 1999, unless stated otherwise.
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
455 U.S. 989 (1982). To begin, it is apparent that the
Respondent had cause, predating the organizing cam­
paign, to be watchful of McClain. Indeed, the Respon­
dent actually turned its attention to McClain in early
1999—almost 6 months before the onset of the union
organizing campaign—because of McClain’s known
difficulties working with others. The Respondent be­
lieved McClain, who worked alone at the time, might not
deal well with a planned reorganization that would re-
quire him to work alongside other employees. As the
judge found, the Respondent’s fears were confirmed
when it began receiving employee reports about
McClain’s behavior as the reorganization approached.
Among those reports was McClain’s admission to Hu­
man Resources Assistant Taylor that he slept with loaded
guns at his bedsides to fend off alleged saboteurs. The
Respondent also learned from Supervisors Boynton and
Wonoski that they had personally observed McClain
exhibit disturbing behavior. These concerns led to the
call to the sheriff’s office on July 29.
As stated, the timing of the Respondent’s call to the
sheriff is troubling, given that the Respondent’s concern
over McClain’s reported behavior intensified shortly
after the organizing campaign commenced in early July.
But, the fact is that the maintenance reorganization com­
menced in early July, as well, and the Respondent had
already articulated its fear of how McClain would react.
And, again, those fears were confirmed by reports from
supervisors and employees alike.
Also significant in regard to timing is the scheduling of
the July 29 conference call, which led to the Respon­
dent’s contact with the sheriff. The call was originally
scheduled for August 3, so various members of manage­
ment and the comp any doctor could discuss McClain’s
behavior. The judge found that the call was moved to
July 29, after McClain spoke in favor of the Union at a
captive audience meeting on the morning of July 28. In
fact, the record shows that the Respondent decided to
advance the call before the captive audience meeting,
which actually occurred on the evening of July 28. The
actual sequence of these events further supports the
judge’s finding that neither the conference call nor the
contact with the sheriff was in response to McClain’s
support for the Union.
The judge also made certain findings about the July 29
conference call that support his decision: (1) the call was
simply an information-gathering session to help the Re­
spondent assess what reasonably appeared to be a poten­
tial workplace violence problem; (2) although the call
participants mentioned McClain’s union activity as a
potential stress factor, they made no personnel decisions
based on this activity; and (3) the Respondent decided
only to seek additional information from McClain’s pri­
vate physician and to ask the sheriff to provide additional
security for a meeting with McClain. Importantly, the
record reflects that the Respondent was unaware at the
time of the outstanding warrant for McClain’s arrest.
And, even though the Respondent later learned of the
warrant, the judge specifically credited the sheriff’s dep­
uty, Major Jody Rowland, that the Respondent had no
involvement with his decision to execute that warrant.
On balance, therefore, I cannot disagree with the judge
that the General Counsel failed to establish that
McClain’s union activity was a motivating factor in the
Respondent’s decision to contact the sheriff, or, alterna­
tively, that the Respondent established that it would have
taken the same action even in the absence of McClain’s
union activity.
Further, I find in agreement with my colleagues and
the judge that there is insufficient evidence that the Re­
spondent violated the Act by demanding that McClain
undergo a return-to-work exam by a company-designated
psychiatrist. As the judge found, the Respondent showed
this demand was consistent with its short-term disability
policy and its past practice.
Donald R. Gattlaro, Esq., for the General Counsel.

Harold R. Weinrich and Jonathan J. Spitz, Esqs., for the Re­

spondent.
Helen L. Morgan, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Aiken, South Carolina, on March 27 through 30,
2000. The charge in Case 11–CA–18425 was filed on August
11, 1999, and was amended on January 27 and 31, 2000. The
charge in Case 11–CA–18442 was filed on August 26, 1999,
and was amended on January 27 and 31, 2000. The amended
consolidated complaint issued on February 11, 2000.1 The
complaint alleges that the Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by caus­
ing local law enforcement authorities to detain employee Gary
McClain on July 29 because of his union activities and by fail­
ing and refusing to reinstate him on July 29. McClain was not
terminated. The complaint further alleges that Respondent has
violated Section 8(a)(1) and (3) of the Act by conditioning his
reinstatement upon his undergoing a psychiatric examination by
a psychiatrist of Respondent’s choosing. Respondent’s answer
denies any violation of the Act.
In view of various references during the course of the hear­
ing to other judicial and administrative forums, I find it appro­
priate to make clear that this decision relates only to whether
Respondent violated the Act. In deciding that issue, my deci­
sion sets out evidence, including reports relating to alleged
1 All dates are in 1999 unless otherwise indicated.
TENNECO PACKAGING, INC. 901
discriminatee Gary McClain. My recitation of those reports is
relevant only to my evaluation of the actions of Respondent.
Since the record contains no expert medical testimony, I have
no basis for, and have not made, any finding regarding the men­
tal status of McClain. My decision, based solely on the record
before me, relates only to whether Respondent violated the Act.
I find that it did not.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Pactiv Corporation d/b/a Tenneco Packag­
ing, Inc., a Delaware corporation, is engaged in the manufac­
ture and nonretail sale of plastic products at its facility in Beech
Island, South Carolina, at which it annually purchases and re­
ceives goods and materials valued in excess of $50,000 directly
from points located outside the State of South Carolina. The
Respondent admits, and I find and conclude, that it is an em­
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Union of Operating Engineers, Local 470, AFL–CIO,
the Union, is a labor organization within the meaning of Sec­
tion 2(5) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Observations and Procedural Matters
McClain was detained by law enforcement authorities on
July 29. General Counsel and the Charging Party contend that
Respondent unlawfully targeted McClain and mischaracterized
his behavior in reports to law enforcement authorities in order
to remove an outspoken union proponent from the plant. Re­
spondent argues that it evaluated various reports of behavior
exhibited by McClain, formed a good-faith belief that McClain
could pose a potential risk to safety in the plant, and alerted
local authorities to its concerns. Respondent denies requesting
that authorities take any action against McClain and denies
causing his detention.
Respondent subpoenaed McClain’s medical records and
treating mental health professionals in order to present expert
medical testimony regarding McClain’s mental condition. What
those records and testimony would have shown is unknown.
There is no expert medical testimony in this record relating to
McClain’s mental condition because General Counsel, Charg­
ing Party, and McClain’s private attorney invoked the privilege
recognized in the case of Jaffee v. Redmon, 518 U.S. 1 (1996).
In Jaffee, the Court held that there is an absolute privilege with
regard to confidential conversations between a patient and psy­
chotherapist. The opinion does not discuss whether disclosure
of a diagnosis would also be privileged; however, any diagnosis
following an evaluation in which the patient verbally commu­
nicated with the psychotherapist would, of necessity, reflect the
2 The name of the Union was amended to reflect Local 470 as the
Charging Party.
psychotherapist’s expert evaluation of such communications.3
In view of the invocation of the privilege, I granted the peti­
tions to revoke the subpoenas served by Respondent. In the
absence of expert medical testimony, I have resolved the ques­
tion of whether Respondent acted in good faith or out of animus
towards union organizational efforts on the basis of the factual
record before me. That record includes testimonial evidence
relating to McClain’s behavior, evidence establishing an emer­
gency involuntary admission of McClain to the Charter Rivers
Behavioral Health Systems facility located in Lee County,
South Carolina, and an Order of a Probate Court finding, inter
alia, that McClain was mentally ill and that there “is a likeli­
hood of serious harm to himself or others.” McClain is appeal­
ing his involuntary commitment and the Order of the Probate
Court.
Respondent, both prior to and at the hearing, moved to post-
pone the hearing pending the outcome of McClain’s appeal of
his commitment, citing Bill Johnson’s Restaurants, v. NLRB,
461 U.S. 731 (1983), and arguing that, if the appeal is denied,
the alleged unfair labor practice arising out of McClain’s deten­
tion must be dismissed. In the instant case, it is not true as a
matter of law that the State court action would be dispositive of
the unfair labor practice. On July 29, McClain’s psychological
condition was not evaluated until after he was detained by law
enforcement authorities. Assuming the validity of McClain’s
commitment at that time, if it were established that his mental
condition resulted from the trauma of the detention, rather than
a preexisting mental state, the State court action would not be
dispositive and Respondent’s Bill Johnson’s argument would
fail. See Freeman Decorating Co., 288 NLRB 1235 (1988), in
which physical injuries were inflicted on the discriminatee
following his protected activity. I reaffirm my denial of Re­
spondent’s motion to postpone the hearing.
General Counsel established the element of animus through
evidence that, in mid-July, Respondent interfered with leaflet­
ing by union officials. In mid-July, Union Business Agent Rus­
sell Britt and organizer Johnny Lambert were passing out union
leaflets on the access road to the plant. A plant guard informed
them that they were trespassing; they asserted that they were
not. Britt observed the guard return to the guard shack and con­
fer with two unidentified persons from the plant. About 20
minutes later, a deputy sheriff arrived and demanded to see
their identification. Britt and Lambert again asserted that they
were not trespassing. Insofar as no evidence was presented that
they were trespassing, Respondent’s actions constituted inter­
ference that, if it had been alleged, would violate Section
8(a)(1) of the Act. Gainesville Mfg. Co., 271 NLRB 1186
(1984). Although Respondent had no notice that this evidence
was going to be presented, Board precedent is clear that I may
not ignore such evidence of animus. U.S. Rubber Co., 93
NLRB 1232, 1233 fn. 2 (1951). I do not conclude that Respon­
dent’s failure to litigate this incident establishes anything other
3 The Court’s opinion eschews the balancing component discussed in
the opinion of the court of appeals, but it does acknowledge that “there
are situations in which the privilege must give way, for example, if a
serious threat of harm to the patient or to others can be averted only by
means of a disclosure by the therapist.” Id. at fn. 19.
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
than a calculated trial strategy decision since General Counsel
represented that this evidence was being introduced only for the
purpose of establishing animus. See Seaward International,
Inc., 270 NLRB 1034 (1984). General Counsel contends that I
erroneously precluded him from presenting additional evidence
of animus by restricting his cross-examination of some of Re­
spondent’s witnesses regarding Plant Manager Joseph Garri­
son’s speech to employees on July 28, in which he expressed
Respondent’s desire to remain nonunion. No portion of Garri­
son’s speech is alleged to have violated Section 8(a)(1) of the
Act; however, I am mindful that the Board holds that state­
ments reflecting an employer’s desire to remain union free may
establish animus. See Gencorp, 294 NLRB 717 fn. 1 (1989). In
this case, counsel for General Counsel did not seek to establish
that Garrison’s speech established animus during the presenta­
tion of his case. Consistent with Rule 611(b) of the Federal
Rules of Evidence, I limited cross-examination to the subject
matter of the direct examination of Respondent’s witness.
There was no need to prolong the hearing by permitting Gen­
eral Counsel to cross-examine witnesses regarding a speech
that neither the complaint nor General Counsel’s case-in-chief
had put in issue.
B. The Detention of Gary McClain
1. Facts
a. Background
Pactiv Corporation is a recently created subsidiary of Ten­
neco Corporation. The manufacturing facility at Beech Island
was formerly operated by Amoco Corporation, and all long-
term employees have been employed successively by Amoco,
Tenneco, and Pactiv. The employees at the Beech Island facil­
ity are not represented by a labor organization. In early 1999,
Respondent began planning an operational change that would
integrate its maintenance employees into the production work
force. This operational change was not greeted with over-
whelming enthusiasm by the affected employees, one of whom
was McClain.
McClain worked at the Beech Island facility for approxi­
mately 18 years. The dates of his positions in the 1980s are not
specifically established in the record; however, in 1985 he was
a machine operator under Supervisor Joe Powell. McClain in-
formed Powell on several occasions that unknown persons were
sabotaging his machine. After several such general accusations,
McClain specifically accused a specific fellow employee of
sabotaging his machine. Powell investigated and discovered
that the employee had been seeking to get the machine to oper­
ate properly. When Powell informed McClain of this, McClain
became angry and upset that Powell had not terminated the
other employee. Powell suggested that McClain seek counsel­
ing regarding his anger and it appears that he went to at least
one counseling session.
In 1986 or 1987, a consulting firm conducted an employee
survey and interviewed employees. The psychologist conduct­
ing the interviews informed Human Resources Manager Ron
Clark that Respondent should never attempt to fire McClain.
Although hearsay with regard to the truth of the matter, this
report is contained in General Counsel’s Exhibit 5.
McClain became the plant lubricator sometime after 1985
and before 1990, a position he held for at least 10 years prior to
July 1999. He worked Monday through Friday, from 7 a.m.
until 3 p.m. In 1994, the Company began using him as the plant
photographer. In 1996 or 1997, the plant had completed an
expansion and the Governor of South Carolina came to the
plant for a tour and speech, an event that took 1-1/2 or 2 hours.
McClain spoke with the Governor and took photographs of
him. There is no evidence that McClain was under any stress or
appeared agitated at that time.
McClain owns guns and hunts, an activity engaged in by
numerous employees of the Respondent. In the past, he also
kept several dogs. In performing his job as plant lubricator,
McClain had minimal contact with other employees. He per-
formed this job competently. There is no evidence that McClain
ever engaged in physical violence towards any employee.
When working as plant lubricator, McClain carried his personal
knife, the blade of which folded into the casing, in a pouch on
his belt. He used the knife to cut gaskets and hoses in connec­
tion with his work. Nothing was ever said to him regarding his
use of this knife as the plant lubricator.
b. McClain’s behavior
In February, Plant Human Resources Director Ron Clark
alerted Joseph Berley, M.D., Respondent’s director of occupa­
tional health services, of the upcoming maintenance reorganiza­
tion and expressed concern about McClain due to his past his-
tory of anger with regard to the alleged sabotage of his ma-
chine. Dr. Berley, who has responsibility for 55 plants includ­
ing Beech Island, responded that it did not sound like there was
anything that needed to be addressed at that time, but to keep
him informed. In April, following the shootings at Columbine
High School in Colorado, Clark again called Berley about some
alleged comments relating to workplace violence that McClain
had attributed to two employees. Clark informed Dr. Berley
that the comments McClain attributed to the individuals were
inconsistent with the actions and behavior of those persons.
They are not identified in the record. Dr. Berley contacted Re­
spondent’s director of security, Robin Montgomery, and dis­
cussed the situation with him. Montgomery recalled that Dr.
Berley noted McClain’s anger management issues in the past,
“the fact that he [McClain] was now going to be forced to be
working with individuals, where in the past he had been work­
ing pretty much by himself, and . . . [the need] to go through a
recertification process might add stress also.” Dr. Berley spoke
with Clark again in May.
In February 1999, McClain came to the office of Human Re-
sources Assistant Brenda Taylor. McClain told Taylor that
people were coming into his trailer and watching him sleep. He
stated that he would wake up and see them out of the corner of
his eye. He reported that people were turning his clock back to
make him late for work and moving his medicine. He noted that
he slept with two loaded guns on either side of his bed. Taylor
immediately reported this conversation to Human Resources
Manager Ron Clark. There is no evidence that McClain was
exhibiting any unusual behavior at the time he made this report
to Taylor.
TENNECO PACKAGING, INC. 903
In May, the reorganization was announced. Job assignments
pursuant to the reorganization were implemented in early July.
McClain was assigned to A crew and recalls beginning work on
this crew on July 10. Training Coordinator Linda Milton as-
signed Catherine Bing, who had 19 years experience and was
the senior operator on A crew, to train McClain as an operator
mechanic on the thermoformer. His new job duties included
changing out molds and troubleshooting. McClain understood
that the reorganization required that employees be certified to
perform their new job responsibilities and that the certification
process involved testing. If an employee failed any test three
times, the employee would be terminated.
Shortly after the reorganization, employee Rita Wethington
asked McClain if he “was maintenance on that [A] crew,” and
McClain said, “No.” Thereafter, Wethington spoke with Milton
who confirmed that McClain was on the A crew. Wethington
told Milton that she and McClain were neighbors and that he
was “not a very social person.” She reported that, when the
reorganization was implemented, she had observed McClain
wandering around in his yard looking up into the trees. Milton
confirmed that Wethington informed her that the day after the
reorganization occurred McClain seemed agitated and that she,
Wethington, had observed him walking around in his yard
“throwing his hands in the air.”
All employees being trained had been provided with a man­
ual reference guide to study. Bing experienced problems in
training McClain because he wanted her to explain everything
to him. When Bing asked McClain where his book was, he
would say it was in his tool box. Bing told McClain that he
needed to read the book because what he was asking was in the
book. Bing reported her problems with McClain to Milton,
stating that “a lot of the questions he had were in the book. He
wanted me to tell him what was in the book.” Milton reported
the foregoing to McClain’s supervisor, Doug Boynton, who
spoke with McClain during the workweek of July 19. McClain
was on the night shift from July 10–13 and again from July 26-
29. He was on the day shift early in the workweek of July 19.
When Supervisor Boynton met with him, McClain never ap­
peared to get focused. He appeared agitated and could not sit
still. Although Boynton attempted to direct the conversation to
the training problems that Milton had reported, McClain kept
trying to change the subject, specifically complaining about
Supervisor Joe Powell “picking on him” in the past. He com­
plained that, when he had been a machine operator more than
10 years ago, people had sabotaged his machine. McClain re­
lated a meeting with Powell at which he stated Powell was
sliding his fingers up and down a nail, and he expressed con­
cern that Powell was putting nails in his tires. Boynton ob­
served that McClain became more and more agitated as the
meeting progressed and “his behavior really disturbed me.”
Employee Danny Mills worked on A crew. At some point af­
ter McClain was assigned to that crew, he commented to Mills
that Supervisor Joe Powell, who oversaw the night shift, “had
done something to . . . [McClain] in the past.” Mills approached
Powell and asked if he had ever done anything to McClain.
Powell responded that he had not. Mills told him that McClain
was saying otherwise and that Powell “might want to watch his
back.” Powell confirmed that Mills told him to watch his back,
“that Gary [McClain] disliked me.”
On one evening after the reorganization, McClain came up
behind Powell. Powell quickly turned around and McClain
asked, “Did I scare you?” and laughed. Powell responded,
“Yes.” When recounting this incident, Powell testified that
McClain “sort of put his finger in my back.” McClain denied
putting his finger in Powell’s back. In the absence of testimony
as to how McClain could “sort of” put his finger in Powell’s
back, I credit McClain’s denial.
When working as plant lubricator, McClain had used his per­
sonal knife. When McClain began working on A crew, Bing
informed him that he could not use a knife, other than a safety
knife, on the production floor. McClain asked her for a safety
knife, and she gave him one, instructing him that he should
only use the safety knife. McClain was not prohibited from
carrying his personal knife, and he continued to do so.
On the afternoon of July 28, Bing called Milton and stated
that she needed to speak with her regarding McClain. They
spoke together on the morning of July 29. Bing stated that she
was concerned about McClain, and related four specific inci­
dents. The first was an accusation by McClain that Powell had,
at some point, put nails in his automobile tire. The second re­
lated to comments made by McClain after Bing acknowledged
that she had given him inaccurate information regarding some
paperwork that operators had to fill out. McClain told her that
“once he put it in his head that way, that’s the way it’s going to
be” so Bing had “to be careful” about what she told him. The
foregoing conversation caused Bing to be concerned that, if
McClain did not pass certification, “he would blame me.” Bing
suggested that “maybe it would be a good idea” for Milton to
train him on days. The third was McClain’s use of his personal
knife, rather than a safety knife, to cut a foam plate in half in
order to get a thickness measurement. Bing described this cut­
ting action by raising her arm and bringing it down. She testi­
fied that “what really startled me was the sharpness of the
knife, .. . it cut right through it [the foam plate].” The final
incident reported was a comment by McClain that “people had
done him wrong at the plant.” Milton corroborated the tele­
phone call and the substance of Bing’s report to her the follow­
ing morning. She recalled that Bing reported that McClain did
not like Powell, that McClain said that Powell “had done things
to him in the past, as well as other people had, and that they
weren’t going to get away with it.” Milton stated that Bing
reported that McClain had stated that certification was made to
get him and “it was not going to happen that way.” Bing re-
quested that McClain be put on days. Bing stated that she had
repeatedly told McClain not to use his knife to perform quality
control checks, but that he had done so and it bothered her, it
made her nervous. She stated that she was afraid, and referred
to Phelon, a plant in Aiken County at which workplace violence
had occurred. Milton recalled that Bing stated that McClain had
said that he “had a list of people who had . . . done him wrong”
over the years, and “they may think he’s forgotten about it, but
he hadn’t.” Although Bing did not recall mentioning a list, I
credit Milton’s testimony that Bing made the foregoing state­
ment to her.
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McClain’s denial of the physical act of putting a finger in
Supervisor Powell’s back was the only denial that General
Counsel elicited from McClain when he called him in rebuttal
after the testimony of Respondent’s witnesses. McClain did not
deny the conversation with Taylor regarding people watching
him as he slept, changing his clock, moving his medicine, and
keeping two loaded guns on each side of his bed. He did not
deny making the accusation concerning alleged sabotage of his
machine when talking to Boynton. He did not deny making
accusations against Powell to Boynton, Mills, and Bing. He did
not deny coming up behind Powell and, after Powell turned,
asking, “Did I scare you” and laughing. Regarding the knife,
McClain was asked on direct examination, “Did any supervisor
come to you and tell you that you should use a Company
knife?” He responded, “No.” He did not deny that employee
Bing, his trainer, had told him to use only a safety knife. He did
not deny telling Bing that “people had done him wrong at the
plant.”
Angela Lowe, a former employee, and employee Becky
Manning regularly took breaks with Milton in the smoking
canteen. Lowe expressed to Milton that she was concerned
about how McClain was going to react to the reorganization,
“because he would get upset about stuff.” Milton recalled that
Lowe told her that something needed to be done regarding
McClain, that Lowe was afraid we would have “another Phe­
lon” if we did not do something. Lowe recalled one occasion
upon which Manning commented to Milton that it would be
dangerous to sit by Boynton or her, Milton, because, “if Gary
[McClain] came in there that they would be the first two that he
would take out.” Milton recalled Manning stating that she was
afraid to sit with Milton, that she might wind up “in the line of
fire if Gary were to come after” Milton. Despite this comment,
Manning continued to sit and talk with Milton.
In addition to the foregoing first hand accounts, the record
contains numerous reports received by supervisors that are
hearsay with regard to the truth of the report but are probative
in evaluating the motivation for Respondent’s actions. Supervi­
sor Powell testified that one night he was talking to employee
Brent Williams. They observed McClain walk by. Williams,
who is no longer employed by the Respondent, commented,
“There goes your next postal worker. I have great concerns that
he’s capable of going off the deep end and taking some people
out.” Powell testified that employee Tammy Kirkland stated
that she was afraid of McClain’s actions at work, that she felt
he was capable of doing bodily harm. She did not specify what
actions by McClain constituted the basis for her fear. Supervi­
sor Larry Wonoski testified that employee Chris White stated
that he was concerned about possible violent or aggressive
behavior and related an incident in the past that had upset him
when McClain had allegedly shot a dog.
c. Events of July 28 and 29
Union organizational activity began at the Beech Island plant
in early July. An employee other than McClain had contacted
the Union. That employee is not identified in the record. Re­
spondent learned of union organizational activity on July 12
and, as of July 21, was aware that McClain had become in­
volved. McClain handed out some handbills and began wearing
a union cap to work. Nothing was said to him regarding his
union activity. No independent 8(a)(1) violations are alleged in
the complaint.
On the morning of July 28, prior to the shift that began at 7
a.m., Plant Manager Garrison held a meeting of the crew that
was reporting to work, the A Crew. There are approximately 40
to 45 employees in each crew, and all employees on the crew
attended this mandatory meeting. Garrison addressed the union
organizational activities, stating that Respondent wished to
remain union free. In the course of the meeting, McClain inter­
rupted Garrison. Both McClain and Garrison testified to only
one interruption. Employee Shon Glover recalled two interrup­
tions, once when Garrison stated that a union authorization card
was a binding document and a second time with regard to the
amount of union dues. McClain testified that Garrison said
something about signing a union card and having to pay dues
even if there was no union. He interrupted and said that was not
true. In a pretrial affidavit, McClain recalled that he stated that
“the only reason for the card was as evidence to take to the
NLRB to show that we had enough employees interested to
have an election.” Garrison said, “Now we know,” and asked
him not to interrupt any more. Garrison testified that the inter­
ruption he recalled occurred when he mentioned the amount of
union dues, stating that he did not know the amount of dues.
McClain said something, Garrison asked him to repeat what he
said, and McClain stated that dues were “half an hour a week.”
Garrison said, “[S]o roughly two hours a month,” and McClain
shook his head in agreement. At the conclusion of his remarks
Garrison recalls that McClain asked why he did not “let a Un­
ion representative come into the plant and talk to the employees
like you’re talking to the employees.” Garrison replied that he
did not think that was going to happen, “[t]here’s enough of
that talk going on.” McClain recalled asking why Garrison did
not “let a Union representative come in here and speak to all
the crews?” He recalls that Garrison responded saying, “We
have enough of them in here already.” The meeting closed with
someone giving a safety tip.
Glover observed that “Gary [McClain] was very agitated,
very loud, very rude because we don’t ever conduct meetings in
that manner.” Following the meeting, Glover spoke with Garri­
son and told him that he should be careful and not take
McClain lightly.
McClain was seated in the back row, against the wall of the
training room in which the meeting was held. Angela Lowe was
sitting in front of McClain. As the meeting progressed, she
heard McClain begin to breathe heavily and move his hands
around. When speaking out, he spoke loudly. When not speak­
ing out, McClain made comments that Lowe overheard, includ­
ing, “That’s not right,” and, “[W]hen I’m done they’ll know
who I am.” There is no evidence that she reported these re-
marks to any supervisor. Employee Karen Padgett was sitting
next to McClain. She observed that he was rubbing both hands
on his legs, the top of his thighs. Sweat was running down the
side of his face, “[l]ike he was upset.” She moved her chair
away from him. Supervisor Boynton moved closer to McClain
who, at one point, pushed himself up with his arms, as if he
were going to stand. Supervisor Wonoski only observed
McClain rubbing one of his legs. Although Wonoski did not
TENNECO PACKAGING, INC. 905
recall it, Padgett told Wonoski as she was leaving the meeting
that she was scared. Wonoski did recall that Padgett stopped
him in the hallway the following morning and stated that she
was frightened, that in the meeting McClain’s leg was shaking,
he was rubbing his hand on his thigh, and, as the meeting pro­
gressed, “the harder he would rub his leg.” She commented that
she noticed the knife he was wearing and was concerned that he
was going to grab it and jump up. Padgett told Wonoski that
she thought about moving but was afraid to move, she was “just
like frozen.” Wonoski also recalled that employee Johnny
Partin approached him after the meeting, mentioned McClain’s
behavior in the meeting, and stated that he was “frightened,
scared.” Wonoski had “never previously received reports that
employees were scared of another employee.”
In July, the union organizational activity at the Beech Island
plant was reported to Respondent’s corporate headquarter in
Lake Forest, New York. Dr. Berley learned of it and was con­
cerned because, from a medical standpoint, organizational ac­
tivity “can be a very stressful situation to be involved in. It can
have a significant effect on an individual.” On July 21, Dr.
Berley learned that McClain was involved in the union organ­
izational activity. In a telephone call on July 27, Dr. Berley
received reports that some employees had expressed concerns
regarding McClain’s behavior, that they were uncomfortable
being around him. A conference call was scheduled for August
3. On July 28, following the concerns expressed as a result of
McClain’s behavior in the captive audience meeting that morn­
ing, the conference call was rescheduled for the morning of
July 29.
The conference call on the morning of July 29, included Dr.
Berley, Montgomery, Respondent’s director of human rela­
tions, Joe O’Leary, other corporate officials and, at the Beech
Island facility, Garrison, Milton, Boynton, Wonoski, and Clark.
Garrison summarized the concerns of local management based
on employees’ statements. It was noted that McClain had be-
come agitated and appeared angry at the captive audience meet­
ing. Boynton described his interaction with McClain at their
meeting during the week of July 19, and McClain’s behavior at
the captive audience meeting, noting that his behavior “seemed
to be escalating.” Milton reported her conversation with Bing.
Montgomery specifically recalled that a list was mentioned, an
incident with a knife, and “a general fear” as a result of
McClain’s anger being displayed at the facility. Montgomery
also recalled someone relating an incident regarding firearms
discharge or that Gary was preoccupied with firearms and that
he had shot a dog and buried it. There were no decisions or
discussions regarding any personnel actions relating to
McClain. Dr. Berley stated that he would contact McClain’s
physician and Montgomery said that he would contact the Sher­
iff of Aiken County.
Montgomery is a former FBI agent. He explained that he
wanted “to put them [the sheriff’s office] on notice given what
was told to me over the phone.” He was aware of the workplace
violence incident at the Phelon plant and felt that this was
something that that the sheriff’s office probably should be
aware of. He noted that this action was not unusual, and re-
counted four other instances since April 1997 in which he had
taken similar action. Montgomery did not take notes or ques­
tion the individuals making reports in the conference call re­
garding details. When asked whether he conducted the confer­
ence call with the precision of an investigating FBI agent,
Montgomery responded, “I didn’t conduct an investigation.” As
he later explained, he was “listening to what people were say­
ing,” and, admittedly without further investigation, he provided
that information to the sheriff’s office.
Montgomery called the Sheriff of Aiken County who, like
Montgomery, is a former FBI agent. The Sheriff suggested
getting two of his deputies on the call, including his chief dep­
uty, Major Jody Rowland, and a second call ensued. Montgom­
ery stated that he had been on a conference call regarding the
Beech Island plant and that “there was a great concern for the
safety of the facility from a Gary McClain, that weapons had
been mentioned, firearms had been seen at his residence, and
“he had used a knife that had frightened a female employee.”
He mentioned the list referred to by Milton. Montgomery ad-
vised that additional information could be provided by contact­
ing Human Resources Manager Clark at the plant.
Major Jody Rowland, the only law enforcement officer to
testify in this proceeding, recalled the substance of the forego­
ing comments. According to Major Rowland, “The gist of the
conversation . . . was that the employees had approached man­
agement and basically told them that they had to do something
with Gary McClain.” The record reflects the facts related in
Montgomery’s report. McClain’s report to Taylor confirms that
weapons were mentioned by McClain at the plant and, insofar
as he slept with two loaded guns, they certainly would be visi­
ble at his residence. Bing’s eyewitness account establishes
McClain’s use of his personal knife to perform a quality control
check, an act that was contrary to the instructions she had given
him and that frightened her. Milton credibly testified that Bing
had reported to her that McClain had a list, and Montgomery
heard about this in the conference call.
Major Rowland spoke with Clark after speaking with Mont­
gomery, and he acknowledged that the conversations “kind of
melt together.” I find that Major Rowland’s melding to these
two conversations accounts for his attributing comments to
Montgomery relating to McClain violating several rules, carry­
ing a personal knife in violation of company policy, and pub­
licly sharpening the knife. Although no employee testified re­
garding McClain publicly sharpening his knife, Milton con-
firmed that she had received such a report and had informed
Clark of this. Major Rowland failed to distinguish between the
carrying of a knife, which did not contravene policy, and
Montgomery’s report of the use of a knife in violation of com­
pany policy.
The record does not establish who initiated the telephone call
in which Major Rowland spoke with Clark. Clark mentioned a
meeting that, according to Major Rowland’s recollection, was
described as a “personnel action.” Although Major Rowland
testified that Montgomery had also mentioned a “a personnel
meeting” for which additional security was sought, “if our
meeting goes bad[ly],” he thereafter referred to the meeting as a
“counseling session.” Montgomery did not mention any such
meeting. Major Rowland acknowledged that he took no notes.
As he credibly explained, “This is a simple call for security, in
the beginning. There’s no reason for me to make all these notes.
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This thing stated out as simple as helping an old woman cross
the street.” Although Major Rowland at one point mentioned
termination, since there had been no discussion relating to any
action relating to McClain, this had to be an assumption by
Major Rowland from the “if our meeting goes bad[ly]” com­
ment. Major Rowland recalled Clark mentioning McClain car­
rying weapons, having guns and shooting them frequently, and
keeping dogs. Regardless of what Clark may have said, his
comments had no bearing upon Major Rowland’s actions. Ma­
jor Rowland credibly explained, “[T]here was a security prob­
lem and that’s where we were going to act. Their problem with
knives and whatever else was, I felt, a Company problem that I
had no concern with.” Although Major Rowland incorrectly
interpreted the reference to a counseling session as a personnel
action, he correctly understood that the sheriff’s office was
being asked to provide extra security.
Dr. Berley called the office of McClain’s internist and was
given the name and number of Dr. David Steiner, a psychiatrist.
Dr. Steiner was with a patient. He later returned Dr. Berley’s
call. Dr. Berley explained who he was and “[t]hat there was a
situation that was developing at the plant that was of some con­
cern to me.” He noted that he was aware that McClain had
some prior anger management control issues and expressed that
he was concerned about McClain’s response to the reorganiza­
tion and certification process. He noted that McClain had be-
come involved in union organizing activity at the plant, that
employees were reporting behavior that they perceived as being
intimidating, and that managers were reporting behavior that
was being perceived as threatening. Following this explanation
by Dr. Berley, Dr. Steiner responded to his report, and Dr. Ber­
ley reported the information he had received from Dr. Steiner in
a subsequent conference call. At that time he advised that
Montgomery should have the sheriff’s office contact Dr.
Steiner. Montgomery called and spoke with Major Rowland.
He informed him that he might want to talk to Dr. Steiner in
order to “better assess the situation.”
Major Rowland testified that he personally spoke with Dr.
Steiner on July 29. Dr. Steiner informed Major Rowland that
McClain was “a ticking time bomb.” The foregoing uncontra­
dicted testimony reveals neither a confidential communication
nor a diagnosis. Rather, it is a functional evaluation. I do not
accept Major Rowland’s testimony for the truth of the report
that he received from Dr. Steiner, but I do accept it as establish­
ing that he received a report from Dr. Steiner. Midland Hilton
& Towers, 324 NLRB 1141 fn. 1 (1997).4
Dr. Steiner claimed that he did not discuss anything about
McClain with Dr. Berley. He testified that he “made it clear”
that he could not acknowledge whether he knew or had treated
McClain. He testified that Dr. Berley asked how to proceed and
that he responded that, “if they felt the behavior was based on
mental illness, they could ask McClain to submit to a psychiat­
ric evaluation.” Dr. Berley credibly denied that Dr. Steiner
4 I sustained General Counsel’s hearsay objection with regard to ac­
cepting the testimony for the truth of the representation, but, at the
time, stated that I was accepting the testimony as to the fact of the
receipt of a report that, arguably, could explain the action taken by the
sheriff’s office.
stated that he could not discuss McClain. When asked whether
he asked Dr. Steiner for advice, Dr. Berley testified, “I don’t
believe that I ever asked him for advice. I reported to him the
situation that had been reported to me.” When asked whether
Dr. Steiner responded to that report, Dr Berley replied, “He
did.” General Counsel questioned Dr. Steiner regarding his
conversation with Dr. Berley. He did not ask him about a con­
versation with Major Rowland. General Counsel did not recall
Dr. Steiner after Major Rowland testified to the report that he
received from Dr. Steiner. The testimony that Major Rowland
received a report from Dr. Steiner is uncontradicted. I credit Dr.
Berley. Dr. Berley’s receipt of a response from Dr. Steiner is
consistent with his advising Montgomery to give Dr. Steiner’s
name to the sheriff’s office. It is also consistent with the testi­
mony of Major Rowland that he spoke with Dr. Steiner and that
Dr. Steiner made a report to him.
During the day on July 29, someone in the sheriff’s office in-
formed Montgomery that it had discovered an outstanding war-
rant for the arrest of McClain for the discharge of a firearm.
The warrant was 4 years old. Major Rowland categorically
denied that either Montgomery or Clark requested that the sher­
iff’s office take any action other than provide additional secu­
rity at the plant. Major Rowland explained, “We were going to
meet there [at the plant] at a certain time in the afternoon, how-
ever . . . as we were checking our system to gain information on
Gary McClain, we found an outstanding warrant on Mr.
McClain.” With the warrant in hand, Major Rowland and other
deputies intercepted McClain on his way to work. Major Row-
land explained, “That was our doing, not Tenneco’s doing.”
When McClain was driving to work, he saw blue lights and
began slowing down. Two patrol cars passed him and began
slowing down. McClain testified that two or more cars pulled
up beside him and that there were two behind him. The depu­
ties ordered him to get out of his truck and keep his hands visi­
ble. McClain was frisked, handcuffed, and put in a patrol car.
He heard a statement on the police radio, “We’ve got that Ten­
neco package.” Major Rowland was not asked about the num­
ber of deputies involved in McClain’s detention.
McClain was transported to the Aiken Barnwell Mental
Health Facility. The physician on duty, Dr. James, who is not
otherwise identified in the record, stated to Major Rowland that
McClain was “a ticking time bomb.”5 There is no evidence that
Major Rowland advised Dr. James of anything. Contrary to
General Counsel’s brief, there is not a scintilla of evidence that
sheriff’s deputies or anyone else informed Dr. James that
McClain had been “brandishing guns and knives.” Nor is there
support for his assertion that Dr. James was “a harried emer­
gency room medical doctor.” Whether Dr. James was “harried”
or whether he is also a psychiatrist is not reflected in the record.
General Counsel objected to all expert medical testimony re­
garding McClain’s mental condition. Thus, the only probative
evidence before me is that Dr. James signed an emergency
involuntary commitment pursuant to which deputies trans-
5 When asked on cross-examination whether McClain was ever de-
scribed as “a ticking time bomb,” Major Rowland answered, “Actually
that description was used to me twice that day. Once from Dr. Steiner
and once from the emergency room doctor.”
TENNECO PACKAGING, INC. 907
ported McClain to the Charter Rivers Behavioral Health Sy s­
tems facility located in Lee County, South Carolina. Major
Rowland credibly denied that any representative of Tenneco
was involved in any action relating to the involuntary commit­
ment of McClain.
2. Analysis and concluding findings
In assessing the evidence under the analytical framework of
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), I find that McClain engaged in union activity and
that Respondent was aware of his union activity. I find, as dis­
cussed above, that General Counsel has established that Re­
spondent bore animus towards union organizational activity.
The issue in this case is whether Respondent’s animus was a
substantial and motivating factor with regard to the actions it
took. I find it was not. The record establishes that a total of at
least 11 employees, 6 of whom testified in this proceeding, had
made comments reflecting concerns about McClain’s behavior.
McClain himself had reported sleeping with two loaded guns
on either side of his bed to Human Resources Assistant Taylor.
Supervisors Powell and Boynton had observed behavior that
they found disturbing. McClain’s agitation at the captive audi­
ence meeting was observed by Boynton and Wonoski. Karen
Padgett, who was sitting next to him, was frightened by his
behavior and expressed concern to Wonoski. Shon Glover was
sufficiently concerned that he told Plant Manger Garrison not to
take McClain lightly. Wonoski had “never previously received
reports that employees were scared of another employee.”
In cases involving action by law enforcement authorities, the
threshold question is whether the contact was motivated by
antiunion considerations. Such motivation was found in Sure-
Tan, 234 NLRB 1187 (1978), in which the respondent therein
contacted the Immigration and Naturalization Service (INS)
regarding employees that it knew were illegally in the United
States and in Impact Industries , 285 NLRB 5 (1987), in which
the administrative law judge found that, in contacting the INS,
the respondent “was taking action intended to cause the separa­
tion of the prounion” employees. Id. at 28, fn. 38. (Emphasis in
the original.) I find no basis for concluding that scheduling a
conference call with Respondent’s director of occupational
health services and director of security following the reports
and observations of McClain’s behavior was motivated by
McClain’s union activity. It might well be true, as argued by
General Counsel, that there was “paranoia” with regard to the
Phelon incident. The employees’ and managers’ sensitivity to
the possibility of workplace violence as a result to their knowl­
edge of the Phelon incident was not shown to be connected to
union activity at the Beech Island plant or McClain’s involve­
ment in that activity. There is no evidence that any personnel
decision relating to McClain was made in the conference call.
Montgomery made no notes and did not question the individu­
als making reports because the conference call was not an in­
vestigation. It was a round table discussion in which manage­
ment officials of Respondent were seeking to obtain all of the
information they could in order to determine how to handle a
situation about which they were justifiably concerned. Consis­
tent with this, Dr. Berley was to contact McClain’s psychiatrist
and Montgomery was to contact the Sheriff of Aiken County.
There is no probative evidence that these actions were moti­
vated by animus towards McClain’s involvement with the Un­
ion.
General Counsel and the Charging Party argue that Respon­
dent contacted the sheriff’s office with the intent of having law
enforcement officials remove McClain from the work force and
accomplished this by reporting exaggerated hearsay anecdotes
of McClain’s behavior. Contrary to this argument, McClain’s
self report to Taylor of sleeping with two loaded guns, Bing’s
reaction to his use of a knife she had asked him not to use, and
record testimony by five other employees reflecting concern
about McClain’s behavior are not hearsay. Major Rowland
considered the “gist” of the reports to be that “employees had
approached management and basically told them that they had
to do something with Gary McClain.” Regardless of what re-
ports were made regarding guns, knives, and dogs, Major Row-
land credibly testified that the “knives and whatever else was
. . . a Company problem that I had no concern with.” No repre­
sentative of Respondent requested that the sheriff’s office take
any action other than provide additional security. The reports to
Major Rowland did not accuse McClain of any crime. Unlike
the cases cited in the briefs of General Counsel and the Charg­
ing Party in which warrants were sworn out or the illegal status
of alien employees assured their deportation, the Respondent
herein neither requested that any action be taken against
McClain nor provided the Sheriff with information upon which
action could be taken. As a result of Respondent’s request, the
deputies were going to the plant at a prearranged time to pro-
vide security for what Major Rowland understood was a per­
sonnel action. This changed not as a result of communication
with Respondent but after the outstanding warrant came to
Major Rowland’s attention. As he explained, regarding the
detention of McClain, “That was our doing, not Tenneco’s
doing.”
Major Rowland received a report from Dr. Steiner. He made
the decision to take McClain to the Aiken Barnwell Mental
Health Center. No representative of Respondent requested that
Major Rowland do so. Dr. Berley had suggested that Mont­
gomery give Dr. Steiner’s name to the sheriff’s office presuma­
bly because he was aware of the information Dr. Steiner would
impart. Dr. Steiner told Major Rowland that McClain was “a
ticking time bomb.” There is no evidence that Dr. Berley’s
suggestion that the sheriff’s office contact Dr. Steiner was mo­
tivated by antiunion animus. Even if I were to find that union
considerations played some part in Dr. Berley’s actions, I
would further find that he would have taken the same action
under any circumstances because of safety concerns.
I find that General Counsel has not established that Respon­
dent’s animus towards employee union activity was the motiva­
tion for its actions. Even if I were to have found illegal motiva­
tion, I would further find that Respondent would have taken the
same action under similar circumstances regardless of any un­
ion considerations. The record does not establish that Respon­
dent requested that any action be taken regarding McClain.
Major Rowland understood that Respondent was requesting
additional security. His testimony establishes that the detention
of McClain resulted from the happenstance of an unserved
warrant. The detention was an independent action taken by the
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sheriff’s office; it was “not Tenneco’s doing.” I shall recom­
mend that the allegation that Respondent contacted the sheriff’s
office and unlawfully caused the detention of McClain be dis­
missed.
C. The Failure to Return McClain to Work Unconditionally
1. Facts
On August 11, more than 10 days after being involuntarily
committed, McClain appeared before Judge C. F. Harris in the
Probate Court of Lee County. He was represented by counsel.
Following a hearing, Judge Harris entered an order finding,
inter alia, that McClain was mentally ill and that, because of his
condition, there was “a likelihood of serious harm to himself or
others.” Judge Harris ordered that McClain undergo outpatient
treatment. Counsel for General Counsel, in his brief, asserts
that I should give no weight to the foregoing order because
“lies [about McClain] poisoned the well of information upon
which [Judge Harris] based her order.” Contrary to General
Counsel, there is absolutely no evidence in this record estab­
lishing whether the order of Judge Harris was based on lies or
expert medical testimony from observation and treatment of
McClain for more than 10 days at the Charter Rivers facility.
General Counsel, counsel for the Charging Party, and
McClain’s private attorney all objected to Respondent’s attempt
to present testimony from the medical personnel who evaluated
McClain, and General Counsel petitioned to revoke Respon­
dent’s subpoenas of the medical files relating to his commit­
ment. Thus, there is no evidence on this record establishing
what findings were made or the basis for those findings. Coun­
sel for General Counsel cannot have it both ways. If he wished
me to find that the order of Judge Harris was unwarranted, he
needed to place the record made before Judge Harris before me
and adduce probative evidence establishing the falsity of the
information upon which she based her findings. He did not do
so. The only probative evidence before me is that, as of August
11, McClain was found to be mentally ill and ordered to un­
dergo outpatient treatment.
On August 18, Respondent’s attorney wrote McClain’s at­
torney. The letter refers to a previous discussion between them,
notes that Respondent is reviewing a medical evaluation that
was provided by McClain’s attorney but which no party offered
as evidence, and states that, prior to returning McClain to work,
Respondent “may wish to conduct an independent evaluation of
Mr. McClain’s medical condition.”
On January 4, 2000, McClain’s treating physician, Dr. Greg­
ory Hamilton, medical director of the Aiken Barnwell Mental
Health Center, wrote the Judge of the Probate Court. The letter
does not address McClain’s mental state between August 11
and January 4. It states that McClain is “not now in need of
further court ordered outpatient treatment.” The letter further
notes that, “because of ongoing stresses,” McClain may want to
continue voluntary treatment.
Respondent has a short term disability policy that provides, in
part, as follows:
Associates should be returned to work through the Tenneco
Packaging, Specialty Products medical designee after a dis­
ability of five or more working days absent and present proof
of illness from associate’s personal physician prior to release
to return to work.
The policy reflects that it was issued on November 2, 1998.
It was adhered to without exception in 1999. Human Resources
Assistant Taylor testified that the policy was received at the
plant on November 7, 1998. She credibly explained that the
only two instances in which an employee returned to work
without being released by the company doctor were oversights.
The first occurred in November when the employee had gone
out on November 5, prior to the plant’s receipt of the policy on
November 7, 1998, and the other in December when the em­
ployee returned to work during the Christmas holiday period.
Documentary evidence confirms that, in 1999, every employee
who returned to work had an authorization to return to work
from Respondent’s physician.
2. Analysis and concluding findings
The amended consolidated complaint alleges that Respon­
dent discriminatorily failed to reinstate McClain “since on or
about July 29.” A separate allegation pleads that Respondent,
“since August 18,” has discriminatorily conditioned his rein-
statement upon undergoing “an examination by a psychiatrist of
Respondent’s choosing.”6 I have found no unlawful discrimina­
tion by Respondent with regard to the events resulting in the
detention of McClain by the sheriff’s office, thus I find no
unlawful failure to reinstate him as of July 29. Even if I were to
have found that Respondent’s act of contacting the Sheriff on
July 29 was motivated by its desire to cause McClain’s deten­
tion and removal from the work force because of his union
activity, General Counsel adduced no evidence establishing any
connection between that act and the independent action of
commitment taken by Dr. James, the physician on duty at the
Aiken Barnwell Mental Health Center. The only evidence be-
fore me relating to McClain’s mental condition on the evening
of July 29 is the factual evidence that the doctor, whether a
medical doctor or psychiatrist, who encountered McClain after
his detention determined that he should be involuntarily com­
mitted. Thereafter, McClain was at Charter Rivers until August
11.
On August 11, McClain was found to be mentally ill and or­
dered to undergo outpatient treatment. On January 4, 2000, Dr.
Hamilton wrote that McClain is “not now in need of further
court ordered outpatient treatment.” Although Respondent did
not have a copy of the Order of the Probate Court, a letter
signed by Dr. Berley on September 13, establishes that Re­
spondent was aware that McClain had been committed and had
been ordered to undergo outpatient treatment. From August 11,
until January 4, there is no evidence before me relating to
McClain’s mental condition and no document releasing him to
return to work. On August 18, Respondent’s attorney commu-
6 The complaint does not allege that Respondent’s commitment to
maintain the confidentiality of the psychiatrist’s report, disclosing it to
managers and supervisors only on a “need to know” basis, violated the
Act. Although General Counsel and Charging Party have both ad-
dressed this issue in their briefs, it is not before me. I note that the
Americas with Disabilities Act, 42 U.S.C. §12112(d)(3)(B) permits the
disclosure of otherwise confidential information in order to assure that
necessary accommodations are made for employees.
TENNECO PACKAGING, INC. 909
nicated with McClain’s attorney. The correspondence refers to
a medical evaluation sent by McClain’s attorney; however,
there is no evidence that the report, which was not offered into
evidence, released McClain to return to work. Dr. Hamilton’s
letter of January 4, 2000, states that McClain was not in need of
further court ordered treatment, but it goes on to state that “be-
cause of ongoing stresses,” which were not specified, McClain
might want to continue voluntary treatment. The letter does not
state that McClain is fit to return to work in an industrial set­
ting; it states only that he is no longer in need of “court ordered
treatment.”
Respondent’s short term disability policy provides that em­
ployees are returned to work through Respondent’s “medical
designee after a disability of five or more working days ab­
sent.” Charging Party asserts that Respondent’s reliance on its
short term disability policy must be rejected because Respon­
dent’s attorney, in his correspondence with McClain’s attorney
on August 18, made no reference to the policy. The letter stated
that, after reviewing the medical evaluation report which is not
in evidence, Respondent “may wish to conduct an independent
evaluation “of McClain. Contrary to the Charging Party, I per­
ceive no basis for finding that Respondent’s attorney’s failure
to mention the policy in his correspondence with another attor­
ney establishes that the policy was “seized upon” as a “pretext”
in order to “retaliate against Mr. McClain for his union activ­
ity.” Documentary and testimonial evidence establishes that,
with the exception of the two explained oversights, Respondent
has consistently adhered to its policy since it was instituted in
November 1998. No deviation from it occurred in 1999.
Respondent’s insistence that McClain be examined by a psy­
chiatrist of its choosing is consistent with its preexisting policy
regarding any employee who has missed more than 5 days of
work. There is no evidence that this policy was applied to
McClain discriminatorily. Even if unlawful motivation be as­
sumed, Respondent has sustained its burden under Wright Line
and has established that all employees who miss five or more
days of work are returned to work through Respondent’s medi­
cal designee. In view of the foregoing, I shall recommend that
the allegation that Respondent discriminatorily conditioned
McClain’s reinstatement upon his undergoing an examination
by a psychiatrist of Respondent’s choosing be dismissed.
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices affect­
ing commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The complaint is dismissed.
7 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 pur­
poses.