Continental Pet Technologies

290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Continental Pet Technologies , Division of Contmen tal Can Company, Inc and Rosie C Reyna and Deborah F Baker Cases 26-CA-12027 and 26-CA-12043 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 30 1987 Administrative Law Judge Richard J Linton issued the attached deci lion The Respondent filed exceptions and a sup porting brief and the General Counsel filed an an swenng brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings t and conclusions and to adopt the recommended Order 2 The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Rosie C Reyna because of the references to the Union and an election in two anonymous let ters it received in February 1987 The Respondent excepted to this finding asserting that it would have discharged Reyna regardless of those refer ences because of the nature of the complaints in the letters and because of her past course of conduct involving similar complaints We agree with the judge that the Respondents discharge of Reyna violated Section 8(a)(3) of the Act Further we find that the Respondents admission that it dis charged Reyna in part for the complaints about her terms and conditions of employment in the Febru ary 1987 letters establishes that Reyna s discharge independently violated Section 8(a)(1) 3 ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Respondent noted in its brief to the Board that subsequent to the judge s decision the Respondent and discrimmatee Deborah Baker en tered into a settlement agreement and that consequently the Respondent was not excepting to the judge s findings concerning Baker Accordingly in the absence of exceptions we affirm the judge s decision concerning the discharge of Baker 8 Chairman Stephens agrees with Member Johansen that the Respond ent violated Sec 8(a)(1) of the Act but finds it unnecessary to reach the merits of the 8(a)(3) allegation as the remedy for this violation is essen tialty the same as that for the 8(a)(1) violation Member Cracraft Joins Member Johansen in his adoption of the judge s finding that the Re spondent violated Sec 8(a)(3) of the Act but does not pass on whether the Respondent independently violated Sec 8 (a)(1) as well Reyna who is white had a history of complain ing about the black supervisors and employees in her department Her first serious complaints began in May 1986 4 when she alleged that a black super visor was sexually harassing her daughter The Re spondent investigated this allegation but could find no evidence to support it In July Reyna com plained that the black music being played at her work station made her nervous In response to her complaint the Respondent banned radios from the area Two months later in September Reyna re ceived an oral warning concerning certain unpro ductive statements she made about the productivi ty of a black supervisor Shortly thereafter Reyna informed the Respondent that the supervisor who had given her the warning had told other employ ees that Reyna had been written up As a result of Reyna s complaint the Respondent told the su pervisor that he should not discuss disciplinary ac tions with employees In late September the Re spondent received three anonymous letters in its Direct Line suggestion box alleging sexual har assment by one of the black supervisors The Re spondent investigated the complaints and deter mined them to be meritless It then sent the letters for a handwriting analysis and found that the let ters had been written by Reyna No action was taken against Reyna at that time although the Re spondent did post a notice to all employees con cerning the letters indicating that false and malt cious allegations would result in termination In January and early February 1987 Reyna com plained that black shift leaders were showing fa voritism based on race among the employees in her department Again the Respondent found no merit in this allegation but took no action against Reyna Also in February 1987 the Respondent re ceived two additional unsigned letters Again these letters were sent for handwriting analysis and were determined to have been coauthored by Reyna and fellow employee Deborah Baker The letters com plained of among other things brutality by black shift leaders favoritism by the black supervisors toward black employees and harassment by black supervisors of white employees The letters also re ferred to a union election and the necessity of having another election to remedy the situation Shortly after receiving these letters the Respond ent discharged Reyna The General Counsel asserts that Reyna was dis charged because of the references in the letters to an election and that her discharge thus violated Section 8(a)(1) and (3) of the Act The Respondent maintains that it did not discharge Reyna because 4 All dates are in 1986 unless otherwise noted 291 NLRB No 42 CONTINENTAL CAN CO of the election references but because of the cumu lative effect of her past conduct and the vicious ness of the allegations in the February 1987 letters The judge found and we agree that the Respond ent s willingness to tolerate such behavior from Reyna for 9 months until her remarks included ref erences to an election indicated that it was the threat of a union election and not racism that im mediately motivated Reyna s termination 5 In addition and in any event the Respondent admits that it discharged Reyna in substantial part because of her allegations in the February 1987 let ters that the black shift leaders were engaged in fa vontism harassment and discrimination against certain white employees We find that admission establishes an independent violation of Section 8(a)(1) These complaints address Reyna s and her coauthors concerns about how they and other em ployees were being treated by some of the Re spondent s supervisory personnel, and as such con stitute protected concerted activity, unless they were pursued in a manner that strips them of the Act s protection The question becomes then whether Reyna s conduct has lost that protection because of a racially hostile attitude The Board has long held that protected conduct will lose that protection only if it is offensive de famatory or opprobrious and not if it is merely intemperate inflammatory or insulting Container Corp of America 244 NLRB 318 321-322 (1979) Although we in no way condone racially derogato ry remarks or imply that an employer may never discharge an employee for such behavior we find that the statements in the February 1987 letters, even in light of Reyna s earlier racial statements 6 are not so offensive that they lose the protection of the Act Compare Caterpillar Tractor Co 276 NLRB 1323 1324 (1985) (employees discharge not unlawful where his graphic cartoon depiction of a supervisor was vulgar offensive and defamatory) Accordingly we find that by discharging Reyna the Respondent has violated Section 8(a)(1) and (3) of the Act 5 We note that the judge in finding a discriminatory motivation for Reyna s discharge erroneously stated that because he disbelieved the Re spondent s proffered reason for Reyna s discharge the opposite propose lion must be true and concluded that the union election references in the February 1987 letters were the motivating factors in her termination The Board has long held that credibility resolutions are properly used to re solve issues of fact Motivation in the absence of direct evidence is gen erally established through inference from the record as a whole Heath International 196 NLRB 318 (1972) B Even though many of Reyna s edrller statements included racial ref erences most of those statements constituted complaints about working conditions In fact on at least two occasions the Respondent took steps to correct the conditions that were the subjects of Reyna s complaints Accordingly we do not find that Reyna s past conduct was so egregious that it causes the conduct for which she was discharged to lose the pro tection of the Act ORDER 291 The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Continental Pet Technologies Division of Continental Can Company Inc, Olive Branch Mississippi its offi cers, agents successors, and assigns shall take the action set forth in the Order Margaret Guill Brakebusch Esq for the General Court sel Diane E Stanton Esq and Edward M Cherof Esq (Jack son Lewis Schnitzler & Krupman) of Atlanta Georgia for the Respondent Rosie C Reyna of Horn Lake Mississippi for herself Deborah Faye Baker of Collierville Tennessee for her self DECISION STATEMENT OF THE CASE RICHARD J LINTON Administrative Law Judge This is a discharge case The bottom line finding I make is that Respondent unlawfully fired Rosie C Reyna and Deborah F Baker in March 1987 I order Respondent to offer them immediate reinstatement and to pay them backpay with interest This case was tried before me in Memphis Tennessee on 12-13 August 198711 pursuant to the 29 May 1987 complaint issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 26 of the Board The complaint is based on a charge filed 11 March 1987 in Case 26-CA-12027 by Rosie C Reyna an individual and on a charge filed 19 March 1987 in Case 26-CA-12043 by Deborah F Baker an individual against Continental Pet Technologies Di vision of Continental Can Company Inc (Respondent or CPT) 2 In the complaint the General Counsel alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Reyna on 7 March 1987 and Baker on 11 March 1987 because they joined or supported Graphic Communications Union Local 231 M or because they engaged in protected concerted activities There are no independent allegations of interference restraint or coer cion by statements of Respondents officials The corn plaint does allege that Baker s discharge constitutes an independent violation of Section 8(a)(1) of the Act By its answer Respondent admits certain factual mat tern but denies violating the Act On the entire record including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respond ent I make the following 1 This manner of setting forth dates complies with the wishes of the Board 2 All dates are for 1987 unless otherwise indicated 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION Respondent CPT is a Maryland corporation with a plant in Olive Branch Mississippi where it manufactures plastic containers During the past 12 months CPT sold and shipped from its Olive Branch facility goods and materials valued in excess of $50 000 direct to points out side Mississippi Respondent admits and I find that it is an employer within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION INVOLVED Respondent admits and I find that Graphic Commu nications Union Local 231 M (the Union or Local 231) is a labor organization within the meaning of Section 2(5) of the Act Despite the admitted allegation of the pleadings it appears that the correct name of the Union is Graphic Communications International Union AFL- CIO Local 231 M NLRB Style Manual 55 56 (1983) III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction Four witnesses all called by the General Counsel tes tified before me James W Barry the plant manager Vivian Elaine Hayeslip Respondents human resources (HR) supervisor Mark Morton maintenance man in the blow mold department and Carolyn D Haney a forklift driver Neither of the Charging Parties Reyna or Baker testified Following the testimony of the four witnesses the General Counsel rested (2 324) 3 CPT moved for dis missal of the complaint on the ground that the General Counsel had failed to establish a prima facie case (2 325) When I denied the motion to dismiss Respondent rested (2331 333) B Background 1 CPT s business operation Human Resources Supervisor Hayeslip testified that at the Olive Branch plant CPT manufactures plastic bever age bottles tennis ball containers and a vegetable oil bottle In March 1987 there were about 145 to 150 em ployees hourly and salaried working at the plant (1 84 Hayeslip) As Hayeslip described the plant s operation is divided into three departments with department managers report ing to Plant Manager James Barry Shift supervisors report to the department managers (1 82 83) The quality control department has shift leaders an additional layer of supervision who report to the shift supervisor Part of the plant works 8 hour shifts and part 12 hour shifts (1 156) Hayeslip reports directly to Barry (1 83) The department principally involved here is the qual ity control department Reyna and Baker worked as quality control inspectors on the second shift 3 30 to 11 30 p in (1 84 155) The shift supervisor for that shift 3 References to the two volume transcript of testimony are by volume and page in the quality control department (QCD) is Richard Stumpf During the relevant timeframe there were about 15 to 23 employees working in QCD Most are quality control inspectors with two technicians and supervised by four shift leaders working 12 hour shifts around the clock in crews A B C and D ( 1 78 85) 2 Labor relations history Since the plant opened in 1979 Hayeslip testified it has remained nonunion and Respondent prefers to remain that way (1 183 184) CPT s nonunion philosophy is expressed on pages 5-6 of its employee handbook Hayeslip testified that a revised edition of the handbook was distributed in January (1 184) No allegation of the complaint attacks the legality of the handbooks Ian guage Respondent s philosophy states (G C Exh 25 at 5-6) What About Unions? Here at Continental PET Technologies both the working conditions and our personal relationship as a team have always been good You can talk to us we can talk to you and we hope to keep it that way Each employee is treated as an individual and is an important participant in the operation of our plant In today s uncertain world there are many pres sures and anxieties That s why we want to keep our plant free from any artificially created tensions and work interruptions that often arise when a union is on the scene The vast majority of employ ees throughout the United States have chosen NOT to have a union We think their choice is a good one Continental PET Technologies strongly believes that real concern for each individual in our team provides the best possible climate for your maxi mum development and the achievement of your goals and those of the Company We do not believe that union representation would be in the best inter est of either you your family or our Company We believe that a union would be of no advan tage to any of us here to any of our customers or to the business growth on which we all depend for our livelihood We sincerely believe that any out side third party such as a union could seriously impair the relationship between this Company and its employees that a union could retard the growth of our plant and the progress which we all have made in the past We at Continental PET Technologies have ac cepted our responsibility to provide you with good working conditions wages and benefits which are equal to or better than the average of our competi tors or industry fair treatment and the personal re spect that is rightfully yours These programs have been developed and improved as our business has grown We have been fortunate in being able to continually improve all our programs All this is part of your job with the Company and need not be purchased from an outside party CONTINENTAL CAN CO We know that you want to express your prob lems suggestions and comments to us so that we can understand each other better You have the op portunity for such expression here at Continental and you can do so without having a union cut off the direct communication between you your super visor and our entire management team Here you can speak for yourself-directly to us We will listen and we will do our best to give you a respon sable reply In the spring of 1986 the Union filed a petition for a Board conducted representation election in Case 26-RC- 6841 By his 28 March 1986 Decision and Direction of Election the Regional Director found the following em ployees to be an appropriate bargaining unit (G C Exh 33) All production maintenance warehouse employees and quality control employees employed at the Em ployer s Olive Branch Mississippi plant Excluding all office clerical employees and supervisors as de fined in the Act In his Decision and Direction of Election the Region al Director found the shift leaders to be statutory super visors and excluded them from the bargaining unit During the preelection period Hayeslip testified CPT held meetings with employees and asked employees to vote against the Union (1 187-188) The parties stipulated that in the 24 April 1986 election there were 93 no votes to 21 yes and that a certification of results issued 2 May 1986 As further stipulated by the parties the Union s two election observers were Reyna and Ann McCurdy (1 66-67) On 18 June Reyna was given a written warning dated 17 June (G C Exh 4) for approving 51 pallets of prod uct for release when the items had been marked HFI (1 99-100 Hayeshp) HFI is an abbreviation of Hold for Inspection (1 104) According to the warning signed by Quality Control Supervisor Rick Stumpf 18 of the pallets were determined to fall short of Respondent s specifications for the product Apparently former ob server Ann McCurdy also received a warning for some alleged infraction for 2 days later on 19 June Floy Ann McCurdy filed a charge in Case 26-CA-11669 alleging CPT had violated Section 8(a)(3) of the Act on 18 June by disciplining her and Rosie C Reyna (G C Exh 24) At the hearing the General Counsel represented that on 25 June the Regional Director approved a request to withdraw the charge (1 146) There is some evidence that in early 1987 the Union s interest in organizing Respondents employees was either still alive or had revived Maintenanceman Mark Morton testified that during the January-March period Reyna asked him on several occasions to come to some union meetings Saying he would think about it Morton never attended although he had supported the Union in the 1986 campaign Morton never informed management of Reyna s solicitations (2 252 255) There is no other evi dence of a 1987 campaign by the Union nor is there any direct evidence CPT thought a 1987 campaign had begun 293 3 Nondiscrimination policies As we see shortly allegations of race discrimination and sexual harassment figure prominently in this case CPT s nondiscrimination policy appearing at page 4 of the employee handbook reads Non Discrimination It is the Company s policy to recruit hire train and promote persons in all job levels without regard to age race color marital status disability religion sex or national origin To ensure the decisions of fectmg the employees are in accord with the princi ples of the Equal Employment Opportunity only valid requirements and selection criteria will be uti hzed Further all other actions which affect em ployees such as compensation transfers vacations sick leave personal leave company sponsored train ing social or recreational programs etc will be ad ministered without regard to age race color man tal status handicap religion sex national origin or veteran s status All supervisory and management personnel are responsible for assuring that our policy on Non Dis cnmmation is fully effected in their specific area of management control The Human Resources Department is assigned overall administrative responsibility for assuring compliance with this policy Although Respondents nondiscrimination policy ex pressly includes sex discrimination CPT goes further and at 20 of the employee handbook CPT prohibits sexual harassment by anyone The statement reads Sexual Harassment Policy It is Continental Can Company s policy that anyone in our organization who is found to have engaged in sexual harassment of another employee will be subject to disciplinary action Any employee who feels that he/she is the victim of a workplace incident of sexual harassment is encouraged to discuss the matter with the respec tive Human Resources Representative or the Plant Manager who will conduct a review and report the results to the Division Human Resources Manager so that a resolution of the sexual harassment claim may be reached HR Supervisor Hayeslip testified that copies of the above policy prohibiting sexual harassment also have been posted on the bulletin board for at least 2 years One of the copies is in the form of a statement from Re spondent s corporate office and the second is from the plant manager (2 278-279 283) The division human re sources manager referred to in the quoted policy is identified in the record as Robert Adams whose office is at the corporate headquarters in Norwalk Connecticut (1 37 Barry 1 167 2 284 Hayeslip) Hayeslip testified that every complaint of sexual harassment is reported to Adams office Such complaints are investigated by Hayeslip or in her absence by Barry himself (2 279) 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Open communication policy At separate places in the employee handbook Re spondent expresses its open communications policy by (1) a commitment to communicate with our employees in an open straight forward manner creating an environ ment conducive to excellence in which the individual is valued and respected (G C Exh 25 at 2) and (2) a topic for Questions Suggestions and Complaints (G C Exh 25 at 20-21) The latter encourages employees to report to supervision management or the human re sources department any problem bothering the employee about her job or if the employee feels he or she is not treated fairly To facilitate communication CPT uses a concept it calls the Direct Line Barry ( 1 48) and Hayeslip (1 96- 97) described that avenue of communication as a type of suggestion box An employee who does not have to iden tify herself may offer a suggestion or make a complaint simply by dropping a note in Direct Line CPT re sponds Only Barry or Hayeshp checks the Direct Line box and if Hayeslip removes the note she gives it to Barry Normally employees leave no more than one note a day in the Direct Line ( 1 111-112 Hayeslip) C Evidentiary Ruling A significant portion of the evidence in the case con sists of reports many in writing usually to HR Supervi sor Hayeslip of statements allegedly made by Reyna or Baker to others Many of these reports were offered under the business records exception to the hearsay rule At the hearing I received these reports on a limited basis and not for the truth of the hearsay statements contained in them (1 128-130 139- 140) This is particu larly important in this case because of the many accusa tions of sexual harassment and racial discrimination The mere fact that descriptions of these alleged incidents re corded in memos letters or warnings to employees are routinely placed in the personnel files of affected em ployees does not render such hearsay descriptions admis sible in evidence for the truth of the matter alleged simply because one party or the other or both classify them as business records In prior parlance true business records were classified as an exception to the rule excluding hearsay and appro priate business entries would therefore be received for the truth asserted McCormick Evidence §§ 304-306 (Cleary 3d ed 1984) Although Rule 803 (b) of the Feder al Rules of Evidence has greatly enlarged the range of covered business activities the new rule does not justify receiving for the truth of the matter asserted hearsay as sertions simply because such hearsay has been placed in a personnel file or incorporated in a report to manage ment For these considerations I consider all such reports whether A ntten or oral as nothing more than the basis on which Respondent took whatever action it took That is the documents are relevant for the limited purpose of showing state of mind or motivation For that limited purpose the data is not hearsay and the time honored practice is to receive such course of action evidence on that limited basis McCormick at § 249 Notwithstanding positions expressed at the hearing about the reports being business records and thus an exception to the rule excluding hearsay no party con tends I must find that in fact an allegation was made or not made or that sexual harassment or racial discrimina tion in fact occurred or did not occur Respondents de fense is served by its being able to rely on the reports it received and on its factfinding investigations as the basis for its discharge of Reyna and Baker Whether CPT s asserted reliance is true goes to credibility not to admissibility The thrust of the General Counsels case does not lie in attempting to prove or disprove the accusations or the innocence or guilt of those accused She takes the re ports and factfindings that CPT had before it (CPT con cluded Reyna was making false accusations of sexual harassment and racial discrimination out of malice against black supervisors) and argues that Respondent is using Reyna s alleged misconduct as a pretext to get rid of a union troublemaker In the usual case the General Counsel calls the alleged discnminatees Charging Parties Reyna and Baker as witnesses to rebut the grounds of misconduct a respondent employer CPT has assigned as the basis for discharging them Neither Reyna nor Baker testified As mentioned the General Counsel did not at tempt to prove or disprove the alleged incidents of sexual harassment and racial discrimination Thus it is sufficient for the General Counsels purpose as well as for the Respondents that the reports findings and con clusions of CPT be considered for the limited purpose of showing why CPT fired Reyna and Baker The credibil ity of Barry and Hayeslip regarding that asserted basis is a separate matter D Rosie C Reyna 1 Introduction Quality Control Inspector Rosie C Reyna was hired in 1979 the same year CPT opened its Olive Branch plant It was not until May 1986 HR Supervisor Hayes lip testified that Respondent began having serious prob lems with Reyna s conduct at work ( 1 84 95 163-165) Respondent fired Reyna on 6 March 1987 some 9 months after the problems surfaced As Plant Manager Barry (140) and Hayeslip (1 92 163-166) testified CPT fired Reyna for multiple reasons The reasons given are based on incidents occurring from May 1986 to February 1987 According to Hayeslip the decision to terminate Reyna was made in the first few days of March (1 94 166) Hayeslip testified that on Friday 6 March she tele phoned Reyna who was on a 1 week vacation to come to the plant That day Friday 6 March Reyna reported to the plant as instructed with no prior notice that she was to be disciplined When Reyna arrived Hayeslip gave her a termination letter dated 6 March 1987 (1 93 162 166) Barry (139) and Hayeslip (192) agree the letter sets forth the reasons for Reyna s discharge The letter reads (G C Exh 2) CONTINENTAL CAN CO 295 Dear Rose This is to confirm your termination of employ merit with Continental PET Technologies effective March 7 1987 Your termination is for malicious mischief caus ing general disruption in the workforce by initiating false rumors continuing to resist cross training of forts of the Quality Control Department and dem onstrating an attitude toward minorities unaccept able under the company s policy as an Equal Em ployment Opportunity Employer Your final paycheck to include the remainder of your 1987 vacation pay will be mailed to your home next week Continental PET Technologies /s/ R F Stumpf R F Stumpf Quality Control Supervisor The reference to malicious mischief is an apparent reference to one of CPT s Company Rules & Regula tions which begin at page 17 of the employee handbook (G C Exh 25) The second introduction paragraph reads Certain specific rules of conduct are observed by the Company and violations of these rules of con duct may lead to disciplinary action up to and in cluding discharge Examples of intolerable infrac Lions of the rules of conduct are as follows A list of 26 unnumbered examples is given Number 23 by my count reads Malicious mischief including defacing or marking walls of buildings destroying or damaging Compa ny property or that of another employee Before we dwell too long on the examples listed after the ground of malicious mischief I should observe that Respondent added another and more relevant example in October 1986 I describe it later Respondent s rules contain no defined steps for pro gressive discipline Thus depending on how CPT views an infraction discipline for even a first offense (or pre sumably the last in a series for which no prior warning was given) can range from an oral warning up to and including discharge As we shall see in arguing that the General Counsel failed to establish a prima facie case Respondent points to the General Counsels failure to show any disparate treatment The General Counsel does not contend that Respondent had a past practice of pro gressive discipline regarding other employees before it discharged Reyna On the other hand the General Counsel urges that Respondents failure to warn Reyna in light of all the circumstances is indicative of an un lawful motive As we see in Baker s case Baker received one warning and then a final warning before her ter mination 2 Sequence of events a Sexual harassment allegation-May 1986 It appears that in May 1986 Margaret Martin a daugh ter of Reyna s was working at the plant in the injection molding department The department manager is a black male Sherman Hinton Ron Shullinsky4 is the manager of another department Hayeslip testified that while Hayeslip was out of town Reyna complained to Shul linsky that Hinton was sexually harassing her daughter Margaret Martin and that Reyna was going to report this in the Direct Line After Shullinsky encouraged her to do so Reyna said her daughter was afraid and did not want to mention it Reyna said however that employee Clair Hearn was a witness and had overheard whatever remarks Hinton allegedly made (There is no description in the record of the remarks ) Shullinsky apparently reported the matter to Barry who in Hayeslip s absence investigated by interviewing Clair Hearn According to Hayeslip who later learned the results of the investigation Hearn said she had not heard or seen anything concerning the incident reported to Barry The matter was pursued no further because Reyna had said her daughter was afraid and did not want the incident mentioned So far as Hayeslip knows no one told Reyna the results of the limited investiga tion nor was Reyna disciplined for making in Hayeslip s term an unfounded accusation (1 95-99) Whether Reyna s accusation was unfounded in fact is immaterial to the case at hand Theoretically there could be merit but Reyna s witness Hearn and any witnesses on other incidents could have decided against disclosing their information to Barry or to Hayeslip Also in theory Reyna could have made this accusation and per haps others on a good faith belief in her position even though in fact accusations were inaccurate and untrue Nevertheless the point to be made and the evidence es tablishes it clearly is that at the very least Reyna has a quick lip That is Reyna makes accusations without first ascertaining whether she has either (1) witnesses who will support the accusations or (2) other confirming evidence Moreover Reyna particularly needed a witness on her Hinton accusation because Reyna herself was not an eyewitness Her accusation was based on hearsay Fi nally the possibility exists that Reyna made her accusa tions maliciously because she did not think blacks should be supervisors As we shall see Respondent offered un rebutted evidence of the latter possibility As we have seen since most such evidence was based on hearsay I received the reports Respondent offered for the limited purpose of showing why Respondent elected to fire Reyna Hayeslip testified the accusation against Hinton was reported to the corporate office Had the accusation been meritorious Hayeslip testified Hinton could have been fired (2 279-280) 4 I have given the spelling as shown in Respondent s brief (at 7) rather than that reflected in the record 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b The lab radio and black music-22 July 1986 Hayeslip testified that on 22 July 1986 Reyna com plained to her that the radio in the quality control lab was always on the black music she could not concen trate it made her nervous and she wanted Hayeshp to do something Hayeslip spoke to QC Supervisor Stumpf who although saying he had not noticed the music being too loud and had not received any other complaints about it simply banned radios from the lab Hayeslip s testimony follows a memo dated 22 July 1986 that Hayeslip placed in Reyna s personnel file (1 101) The two paragraph text of the memo reads (G C Exh 5) On the afternoon of July 22 1986 Rose Reyna stopped me in the hall to voice a complaint that Rorie Wilson (QC Leader) and Clair Hearn were playing the radio too loudly in the lab She stated they keep the station on that old Black music all the time and I cant stand it She said that this makes her nervous and unable to concentrate on her work when she s in there I spoke with Rick Stumpf QC Supervisor re garding the above He had not noticed the music being too loud and had no other complaints con cerning this however in order to address Rose s complaint Rick informed his employees that there would be no radios allowed in the lab As earlier noted Hayeshp explains that HFI is an abbreviation for Hold for Inspection (1 104) Although race is not ostensibly involved on this matter Hayeshp testified that Joyce Taylor is black and Jerry Oliver is white ( 1 103 106 157) Shift Leader Willett is black (188 169-170) As Hayeslip explained the down stream area is in the blow molding department and there are several quality control stations in the down stream area ( 1 161-162) It is unclear whether Joyce Taylor and Jerry Oliver are shift supervisors (of different shifts) or shift leaders who report to a shift supervisor d Reyna s 19 September 1986 complaint to Hayeslip about black shift leaders Two days after receiving the warning from Stumpf and Willett Reyna on 19 September went to Hayeslip In Hayeslip s office Reyna complained that Willett and the other black shift leaders were trying to take over and run everything and that the whites no longer have a chance Reyna said her job was her bread and butter and that she was not going to quit Hayeslip described Reyna as being angry on this occasion Hayeslip s testimony tracks a four paragraph file memo she prepared follow ing her conversation with Reyna Hayeslip discussed Reyna s complaint with Stumpf and Plant Manager Barry ( 1 106-109) The last three paragraphs of the text of her file memo read (G C Exh 7) c Reyna warned 17 September 1986 Hayeslip identified a reprimand form prepared and signed 17 September 1986 by QC Shift Leader Tommy Willett concerning Reyna QC Supervisor Rick Stumpf also signed the write up with the remark I talked with Rose about this matter This is a verbal warning According to Hayeslip Stumpf conferred with Hayeslip and described matters to her before he imposed the disci pline on Reyna CPT s procedure Hayeshp testified is to show the wnteup to the employee and the employee is given the opportunity to sign Reyna did not sign this reprimand Stumpf told Hayeslip that Reyna was given the opportunity to read and sign the document (1 103- 106) The text of Willet s counseling report reads (G C Exh 6) On Sept 17 1986 at 9 30 p in Rose Reyna was counselled concerning unproductive statements she made to myself and to Blow Molding operators Mitch and Judy Her statements were Quality Control never HFIs any product from Joyce s (Taylor) shift but HFIs everything from Jerry s (Oliver) shift And she said that sure if I were felling bad I could HFI every thing too My impression was that she was imply ing that the downstream Q C inspectors perform ance vanes to a great degree upon how she s feel ing I reminded Rose that negative detrimental state ments about company personnel or procedures were unacceptable I asked her to become a positive on ented team player and to help solve problems not add to them Rose s complaint was that Tommy had told other hourly employees that she had been written up She was very angry and remarked He thinks he s so smart He makes me feel cheap as dirt' These Blacks are just trying to take over The whites don t have a chance any more with these Black Shift Leaders running everything' But this is my bread and butter I ve been here too long to quit now and I in too old to find another job Why don t we just take that union or that NLRB-whoever it was that said the Shift Leaders have supervisory au thonty and flush it down the toilet I assured Rose that I would speak to Rick Stumpf concerning her complaint on Tommy As a follow up on this complaint Rick cautioned Tommy that he should not discuss disciplinary ac tions with people on the floor Tommy agreed to acknowledge this e The September 1986 Direct Line letters One day during the last week of September 1986 Hayeslip testified three unsigned notes (G C Exhs 8- 10) were deposited in the Direct Line It is unusual to have three with one being the usual number (1 110-112) The first note (G C Exh 8) handpnnted in small let ters on a single sheet of paper is addressed to Mr Erwin (George Erwin manager of manufacturing) It begins by asking Erwin to talk to QC Supervisor Stumpf concerning the anonymous author asserts that QC Shift Leader Tommy Willett is sexually harassing the white QC inspectors and threatening to issue them reprimands if they tell one another The inspectors are afraid of Wil lett because the author alleges he start hit his fist at CONTINENTAL CAN CO 297 them and start s argument Willett also the note contra ues locks the door with ladies in the room and uses ob scene language You G D M F S 0 B you white trashes woman s you don t know what G D H you doing Willett also continues the author starts many nasty rumors and slanders the inspectors names all over the plant And Tommy Willett starts gossip not the white ladies They helpless cause Rick Stumpf is not concerned of what goes on he Q C Dept he let the shift leader make his decesion In the next paragraph the author alleges that Willett makes many telephone calls takes items home from the lab and the warehouse and steps outside the building for 2 and 3 hours at a time and then becomes angry when the inspectors do not do the preforms which appar ently Willett is to do Willett also [W]alks arun gossiping another black man about the white woman s put out for the black man They comphan to Rick [Stumpf] bust is a helpless case is a sad thing That in fact happened to Deborah Baker Couse Tommy Willett started the nasty rumors Beginning I have a complian on Tommy Willett about the way he harress the inspector on D shift white only the second note is also handprinted but with larger letters (G C Exh 9) Addressed to Erwin the second note a bit shorter than the first essentially makes the same allegations as the first note although the second note does not refer to Deborah Baker The third note addressed to Plant Manager Barry is in script and begins with the same words and misspelling as the second I have a complian (G C Exh 10) The third note the shortest of the three mainly complains that Willett gets angry when the inspectors do not want to do his work Please help the note ends After reading these notes Hayeslip testified she had the impression they were written by Reyna Familiar with Reyna s handwriting from the fact Reyna as a reporter for the newspaper (presumably CPT s plant newspaper) would submit articles and observing that the notes accused Willett Hayeslip tried to reconstruct who would have a reason to be angry at Willett After discussing the notes with Barry and Stumpf and search ing through the files for any similar hand printing (ap parently finding none) Hayeslip began an investigation of the allegations Her investigation consumed the last 2 or 3 workdays in September (1 121-122 131 142) Hayeslip interviewed seven inspectors including Reyna and Baker All of those interviewed are apparent ly women Hayeshp then dictated a five page report (G C Exh 12) Because Hayeslip s secretary works only 3 days a week typing of the report was not completed and dated until 14 October 1986 (1 131) Except as to some minor points those interviewed denied knowledge of any factual bases to the accusations made in the three Direct Line notes According to Hayeslip s report Baker denied to Hayeslip that Willett has ever sexually har assed her Baker also said she knows of no other woman in the plant who has had such a problem with Willett She denied that he had ever called her into the office and shut the door Explaining that she takes shorthand and in light of her belief Reyna authored the notes to Direct Line Hayeslip made a point to record verbatim her questions and an swers with Reyna (1 132-133) Reyna denied being sexu ally harassed by Willett and did not mention knowledge of such by him as to any other inspector (1 133-134 143 2 281) Hayeslip s report regarding the Reyna inter view reads (G C Exh 12 at 3-5) Interview Rose Reyna Q C Insp 2nd Shift Listed below are the questions asked along with Rose s responses Have you ever been sexually harrassed by T Willett verbally or physically? No I haven t The men I have to work with have all been nice to me Have you ever heard T Willett curse? No Have you ever seen him in the Shipping Office? No Have you ever seen him leave the building during working hours? I can t remember Has he ever called you in an office and shut the door? Yes he has He took me in that dark room and shut the door Then he sends all the other people away I don t know who he thinks he is taking me in there like that and him dust being a little old shift leader It just don t look nice being shut up in there with a black man like that Now Rick (Stumpf) does that sometimes but he s a white man and we expect that-that s his job and that s okay Don t get me wrong-I am t got nothing against blacks I dust think they should stay in their place Was the light off in the office while Tommie was talking to you? No the light was on In any way did he do anything out of line in the form of sexual advancement or harrassment either verbally or physically? No he didn t do nothing like that If he did I would have given him a black eye Do you know of any other women in the plant who has had a sexual harrassment problem with Tommie? No I haven t heard of anybody having that kind of problem but Pat is having trouble with him She didn t say what the problem was except they couldn t satisfy him and he takes them in and talks to them All of the women are upset with him He has been nice this week We are all wondering why he is so cool now But he knows how to pull his dirty tricks I ve been here too long though to give it up just because Tommy can t get along with us 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He told all the black people he was going to write me up Whom did he tell'? Girtha (Hoggs) Pat (Thronberry) Terry (Jones) and Roxie (Wilson) Did each one tell you this themselves9 Yes you should have heard the way he talked to me He made me feel like trash He tried to make me look stupid It made me sick-I mean it make me sick That s what happened to Deborah Baker when Mike Oystern spanked her on the butt with that board Roxie repeats too many things They made Deborah look like a fool That situation was investigated and it was deter mined that he bumped her accidentally That s what they made it out to be' By memo dated 2 October 1986 Stumpf advised Hayeslip (1 135 G C Exh 13) On 10/1/86 I spoke with Tommy Willette re garding the recent Direct Line accusation of sexual harrassment Tommy denied sexually harrassing anyone He also told me he was expecting some thing like this after giving Rose her warning /s/ Rick Stumpf Rick Stumpf QC Supervisor Hayeslip concluded there was no validity to any of the complaints registered in the Direct Line notes (1 137 143) In Barry s office about Thursday 2 October 1986 Barry and Hayeslip and possibly Stumpf decided Reyna should be fired (2 284) They telephoned Robert Adams division manager of human resources relayed their deci sion and reviewed the sequence of events They dis cussed by conference call these events including the ac cusation against Hinton in May Adams also was aware of the NLRB charge that had been filed in May naming Reyna since he had represented CPT in the investigation of that charge by NLRB Region 26 (2 284-285 293) Adams recommended that Reyna not be discharged and he suggested that the local management deal with the problem by posting a notice to all employees so that Reyna could receive notice without being singled out Adams made this recommendation Hayeslip testified with the hope that such notice would be sufficient to put a stop to such accusations (2 285-286) The group decid ed against discipline of any kind for Reyna (2 304-305) Respondent did not confront Reyna with its conclu Sion that she had submitted the three notes to Direct Line When asked why Reyna was not confronted or given an individual warning Hayeslip testified there were several reasons First when Reyna became irritated the issue spread all over the plant CPT concluded that if it warned Reyna for what she put in Direct Line then word would spread through the plant that an employee can get into trouble for what he or she puts in Direct Line As that would destroN the very concept of open communication for which Direct Line was created CPT hoped it could deal with the problem by a general notice to all employees (1 135 137-138 144) Plus Hayeslip added to be frankly honest in June we had warned her one time and had an NLRB suit threatened So we were trying to handle it with the least waves possible Asked about the suit threat Hayeslip explained that it was not a threat but when Reyna had received her September warning she had gone to the NLRB to say we did it because of union activity and we were gun shy I guess Hayeslip testified Reyna filed a charge at that time it was investigated and therafter dropped (1 144-145) At that point in the hearing a collo quy ensued between the attorneys and me concerning the charge McCurdy had filed 19 June 1986 (G C Exh 24) naming her and Reyna as discriminatees It is clear Hayeslip was momentarily confused about dates So far as the record reflects the only previous contact Reyna had with NLRB Region 26 was concerning the charge Floy Ann McCurdy filed 19 June 1986 in Case 26-CA- 11669 Recall that McCurdy withdrew the charge a week later (1 146) The next day 3 October after the conference call CPT posted a two page notice signed by Manager of Manufacturing Erwin and Plant Manager Barry Hayes lip testified that although the notice covers a couple of other points the primary reason for posting the memo was in response to the three unsigned notes placed in Direct Line (1 136 2 286) The first two paragraphs of the notice read (G C Exh 14) RESPONSE TO DIRECT LINES Over the past couple of months in particular in the last few weeks we have received a number of complaints and specific accusations directed at mdi viduals while the person(s) stating the complaint or accusation opted to remain anonymous We can un derstand why someone might not want their name to be known however they should realize that in doing such it becomes extremely difficult for Man agement to respond to these accusations in deter mining the facts for which the accusation is based on and communicating with the person(s) making the accusations To act upon these based on pure heresay is totally unfair and unjust to the accused party These accusations must be investigated to the best of our ability and in doing so it requires that we talk to the people who are making these in order to determine all the facts What we attempt to do is to review with the ac cusing party their complaint and then to address specifically with the accused the points brought forth by the accuser In some cases generally in most cases we find that there is a misunderstanding or a misinterpretation between the parties involved When dealing with an anonymous complaint and specifically when the complaint is extremely serious in nature we again have to investigate the accusa tion to the best of our ability and we will do so In doing so if we determine that the accusations are false we can only then assume that these accusa CONTINENTAL CAN CO 299 tions were made with the sole intent of being slap derous and malicious After Adams received a copy of the memo he called Barry and said a second and stronger notice should be posted (2 287) Accordingly on 9 October Barry posted the following memo (1 140-141 G C Exh 15) TO ALL EMPLOYEES ! To clarify the October 3 1987 Response to Direct Lines notice any person or persons found to be making false accusations which are slanderous and malicious is subject to termination of employ ment /s/ J W Barry J W Barry Plant Manager Hayeslip concedes Reyna s accusations against Willett were false and considered by CPT to be slanderous and malicious and that no discipline was imposed on Reyna for such conduct (2 305) I have summarized the reasons Respondent chose not to discipline Reyna Around 2 or 3 October apparently after Barry and Hayeslip decided to recommend that Reyna be fired and possibly after their conference call with Adams Hayeshp sent the three Direct Line notes to A Frank Hicks in Jackson Mississippi Hicks is an examiner of forensic or questioned documents Hayeslip sent Hicks the three notes plus several samples of only Reyna s handwrit ing (1 122-123) In his letter of 10 October to Hayeslip Hicks concludes Reyna printed the first two notes (G C Exhs 8 and 9) but he needed more of Reyna s script samples to form an opinion about the third note (1 124 G C Exh 11) The parties stipulated that Hicks is an expert in handwriting analysis and that it is his opinion Reyna printed the first two notes (1 29-30) The stipulation substitutes for evidence as to Hicks opinion but the matter is rather academic since CPT did not act in October on its belief Reyna had printed notes one and two Of course a distinction must be recognized between the stipulated opinion regarding the handwriting and the hearsay contents of the notes The notes were re ceived in evidence but not for the truth of the assertions contained in them (1 130) f Reyna resists cross training In early October 1986 Respondent began a program to cross train its quality control inspectors Some of the in spectors did not know how to perform at different posy tions and the plant had begun to experience a problem because of the inability of the inspectors to cover the de partment s different positions (1 148-149 Hayeslip) Barry testified that CPT gave major emphasis to the program (1 64) All quality control inspectors were in volved in the cross training program (1 64 149) Within a week or two Reyna began complaining to Hayeshp almost daily about the different assignments Shift leaders and Stumpf also informed Hayeslip that Reyna was complaining Hayeshp testified no one else complained besides Reyna (1 149-150) Barry concedes that soon after the program began within a matter of weeks he was informed of Reyna s complaints (1 64) Hayeshp testified Reyna had begun resisting the cross training program soon after it began Reyna was never given a warning Hayeslip testified because Reyna s re sistance never progressed beyond griping and complain ing (1 150-151) By memo dated 26 January 1987 Stumpf reported to Hayeslip as follows (G C Exh 16) Cross training efforts which I initiated in early October 86 have been progressing rather well with one exception All four of my Shift Leaders are ex penencing numerous problems with Rose Reyna in this area She rebels at every attempt by the Shift Leaders to transfer her to another job assignment It has I am afraid gotten to the point that they are shying away at times from moving her to other job assignments In order to try to help with this problem I again spoke to Rose about cross training and why it is necessary I am not certain if she feels threatened by being moved or if she just wants to do the job she likes best I explained to her that knowing how to perform at more than one job assignment would make her a more valuable employee I also remind ed her that cross training is going on with all shifts for Q C however nothing I said seemed to make any difference Her comments continued to be that she had been cutting bottles since 1979 and that its not fair for someone new to come in and take her job In conclusion she said she was going to quit and she would let me know about the date From late January to 8 February Respondent experi enced more serious incidents with Reyna relating either to cross training or job assignments general'y Chrono logically this topic overlaps two anonymous letters Hayeshp received in early February that led to Reyna s discharge I temporarily pass over the anonymous letters however to complete the summary of cross training mat ters Hayeshp testified that Barbara McGee the quality control shift leader who is white reported to her an inci dert that occurred in late January McGee said Reyna complained to McGee that Peggy Taylor one of the black shift leaders had assigned Reyna to work down stream When Reyna began complaining that Taylor and the other shift leaders were cracking the whip McGee said she did not want to hear it that such was their job and for Reyna to go to her assignment down stream Reyna said What go down there with all those niggers' McGee said that was no way for Reyna to be that God made us all Shortly after McGee s oral report which occurred in a hallway Stumpf told Hayes lip about it and Hayeslip requested that he have McGee record the incident in writing McGee did so by her four paragraph report (G C Exh 19) dated 9 February (1 159-161) On 6 February Reyna complained to Hayeslip that Shift Leader Peggy Taylor had made her change job as signments with Barbara Houston a black quality control inspector because Jerry Oliver a white supervisor in the blow mold department was working Houston too hard 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Reyna she overheard Houston tell Taylor that Oliver was working the f out of her Reyna also complained that Houston could work wherever she wanted to and that cross training was not being done on other shifts Hayeslip asked Stumpf to investigate (G C 1 151-152) Stumpf reported back there was no merit (1 153 G C Exh 17) Hayeslip went to Reyna informed her Stumpf had in vestigated her allegations that Houston had denied saying the remark and that Taylor denied hearing the works the f out of Houston remark Hayeslip asked Reyna if anyone else heard the remark and Reyna said no From what she could ascertain Hayeslip told Reyna Houston had not changed job assignments on that occasion Hayeslip said nothing could be found to substantiate Reyna s allegations (1 153 158) 5 Hayeslip concedes that although CPT received no complaints of favoritism from other employees and even though it informed Reyna that her complaints had proved unfounded Respondent did not reprimand Reyna (1 153) Hayeslip testified that when she came to work the morning of 9 February she found a two page note to her from Reyna (1 154-155) In her note dated 8 February Reyna describes certain job assignments and expresses her opinion that Shift Leader Peggy Taylor is harassing her while letting Barbara Houston Taylor s friend take over the job of cutting bottles the job Reyna had done since 1979 Reyna assures Hayeslip she is not refusing to work anywhere in the plant but questions the fairness of Houston being able to work anywhere she desires (G C Exh 18) Hayeslip had Stumpf investigate the allegations Stumpf again reported there was no meet Following Stumpfs report Hayeslip met with Reyna and informed her of the results of Stumpf's investigation (1 156-158) g The anonymous letters of February 1987 Twice in early February Hayeslip arrived at work to find unsigned letters slipped under her door (1167) Hayeslip received the first letter on four sheets of 6 inch by 9 5 inch lined notebook paper (G C Exh 20) on 2 February and the second a two page note (G C Exh 21) on 4 February Both letters were in small white en velopes addressed to Erwin or Hayeslip (the first one) or to Erwin and Hayeslip (the second) Inside the first letter is addressed simply to Mr Erwin and the second to Dear George and Elaine As Hayeslip test[ feed the letters triggered the course of events that led to Reyna s discharge (2 307) The lengthy first note (G C Exh 20) appears to be in the handwriting of one person for the first 15 pages and in the handwriting of another for the balance of the letter The writer of the second portion asserts that Shift Leader Roxie Wilson (a black) says it will do them no good to complain to Erwin and Barry because they will not do anything for the inspectors In so writing the author uses the phrase us inspectors thereby identify 6 In her testimony Hayeslip appears to merge elements of this Reyna conversation with another conversation she had with Reyna 2 days later following Reyna s complaint of 8 February 1987 ing herself as a (white) quality control inspector The principal theme of the many specific allegations is that the white employees (particularly the quality control in spectors) are suffering harassment brutality and discrim [nation from the black shift leaders and when the white employees complain to Shift Supervisor Stumpf (a white) he responds by telling them to see your supervi sors which is the shift leader In the middle of the first page appears the statement 6 Why don t you take the shift leader Job [and] shove it in [the] Toilet at the union hall in Memphis That statement is immediately followed by a sugges tion CPT use one supervisor at night and one on days but don t get Tommy Willett (a black shift leader) The letter continues with various specifics including a reference to discrimination against Deborah and an al legation the whites are required to work weekend over time while the blacks can sit at home and whore around (G C Exh 20 at 3) Aside from a postscript fol lowing the Sincerely X the note ends as follows God Bless you with terrible blacks Lets have an other election we get things done with an election Your Shiftleaders are causing an another election Hayeslip testified that Deborah Baker is the only Deborah employed at the plant and that of the employ ees mentioned in the first letter Baker is the only one not being complained about Hayeslip testified she recog nizes the handwriting in the second note (G C Exh 21) as that of Baker Because Rosie Reyna is the only Rose employed Hayeslip concluded the references to Rose were to Reyna (1 171-173) The second note unsigned and addressed to Dear George & Elaine begins I in tired and mad how these blacks in the lab are taking over and treating the whites like slaves Plus Rick Stumpf sitting back and letting them do us that way The author of the second note continues by alleging Shift Leader Peggy Taylor gives blacks overtime when whites in general and Deborah in particular miss a day and do not get a 40 hour week From overtime the author passes to theft accusing Roxie Wilson a black shift leader of stealing Deborah s purse and Rose s lip stick and $4 Stumpf allegedly will not do anything about this stealing in the lab The blacks are behind this stealing They are trying to run the whites out of the lab Continuing the author warns that something must be done before someone in the lab is seriously hurt The author concludes her note in these words We have race discrimination in the lab Discnmma tion is against the law I guess the union election will just have to come back in and straighten this place out if no one else will do it 6 An obvious paraphrase of Reyna s 19 September 1986 suggestion to Hayeslip (1 107 G C Exh 7) CONTINENTAL CAN CO Under all the circumstances including her recognition of the handwriting and recollection that some of the re marks were repetitions of statements orally made to her earlier by Reyna and Baker Hayeslip was of the opinion Reyna and Baker had written the two notes (1 174-175 2 291 306) Later in March and after Respondent had fired Reyna and Baker Hayeslip sent these two letters to A Frank Hicks the forensic documents examiner in Jackson Mississippi (2 290) In his 25 March report to Hayeslip Hicks concludes Baker wrote all of the second note most of the first note and that Reyna possibly wrote the first page and one half of the first note (G C Exh 22) Taking the notes to Barry Hayesllp expressed her opinion that Reyna and Baker had written them (2 306) The first one Hayeslip opined had been written by the same person who had written (hand printed) the Sep tember letters to Direct Line Regarding the second note received 4 February Hayeslip expressed her suspi cion Baker had written it because of the references to Deborah and because Hayeslip recognized the handwrit ing as Bakers Barry asked Hayeslip to search the files to verify her conclusions They compared handwritten material and concluded the notes (without distinction in the testimony) were written partly by Reyna and partly by Baker (2 289-290) Hayeslip testified she and Barry went through the two February letters line by line and to the extent possible compiled a list of the complaints and accusations (1 179- 180 2 288) The list contains roughly two dozen items (R Exh 1) 7 Because the list was so extensive the ensu ing investigation was divided among several persons (2 288) Admitting the obvious Hayeslip saw the unio'i references in both letters (1 194) Indeed her listing of the items in the first letter includes the references to the election (R Exh 1 side 2) Barry expressed the view to her that the references had been included as a protection mechanism to insulate them from discipline for the con tents of the letters whereas Hayeslip considered the ref erences simply after thoughts (2 297) Hayeslip attributes such caution to knowledge she assumes employees gain by serving as election observers for a union-that there is a place they can go if they experience retaliation (2 317) After the investigation was completed sometime before Monday 9 February Hayeslip dictated a report summarizing the results of interviews made by Barry Stumpf and presumably Hayeslip The report (G C Exh 23) dated 9 February covers two full pages and finds no merit to any of the allegations (1 180-181 2 291) Hayes lip testified she spent most of 1 week on the investiga tion a similar amount of time on the (September 1986) accusation against Shift Leader Tommy Willett and an average of 6 to 8 hours a week since May 1986 listening to Reyna and investigating her complaints and accusa tions (2 292) 7 Hayeslip concedes she does not recall whether the list covers both letters (2 289) It clearly does not include the items mentioned in the letter of 4 February Thus Hayeslip has merged the sequence of events at that point The discrepancy does not appear to make any material dif ference 301 h Reyna fired 6 March 1987 About mid February Hayeslip testified the local man agement group met in Barry s office Barry Stumpf and Hayeslip were there but Hayeslip could not recall whether George Erwin attended (2 295) although at an other point she testified he was involved (2 306) 8 The group decided both Reyna and Baker should be terms nated because of their many problems and because the group felt that the viciousness displayed in the letters had the potential for causing race problems throughout the plant (2 295-297 307) However they first wanted to obtain the approval of Adams On telephoning the cor porate office they learned Adams was out of the country and would not return until later that month Eventually in early March Adams came to the plant reviewed the records and agreed with the decision to terminate Reyna As I discuss later he recommended against dis charging Baker (1 94-95 166 2 295-297 308 ) Earlier I described Hayeslip s testimony that Reyna was called in from vacation on Friday 6 March and given a discharge letter and I quoted the letter As men tioned earlier both Barry and Hayeslip testified Reyna was discharged for multiple reasons and that the reasons are set forth in the discharge letter It is clear both Barry (1 39) and Hayeslip (1 165-166) consider that the gener al disruption ground listed in the discharge letter in cludes the amount of time Barry and his staff were re quired to devote to investigating allegations they deter mined to have no merit 3 Discussion and conclusions regarding Reyna The thrust of the General Counsels argument is that CPT tolerated and condoned Reyna s misconduct for 9 months until Reyna in February 1987 threatened an other union election Recognizing that another election could be held in April Respondent seized on the un founded allegations Reyna had been making since May 1986 and using such conduct as a convenient pretext fired Reyna to get rid of her union influence With that showing of a prima facie case the General Counsel argues Respondent failed to carry its burden of proving it would have fired Reyna notwithstanding her threats of another union election (Br at 15-21) Respondent views things differently It argues that all the circumstantial evidence falls short of establishing a prima facie case particularly since there is no showing of either animus or disparity It labels the General Coun sel s theory about the election threat as too far fetched to be believed (Br at 30) Rather Respondent contin ues on the subject of the Union and election references in the anonymous letters of 2 and 4 February the ALJ should accept as true Hayeslip s description (2 292) of the reaction of Barry (protective device to insulate from discipline) and Hayeslip (afterthought) I note that net ther Barry nor Hayeslip affirmatively testified that the union and election references had nothing to do with the decision to terminate Reyna (or Baker) B Erwin s organizational position and office location are not clear in the record In any event Barry testified he made a recommendation to Erwin (1 37-38) 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent argues I need not make any credibility res olutions because the evidence is uncontroverted (Br at 4) Hedging slightly the General Counsel contends the case involves essentially no credibility resolutions but require[s] only a legal analysis based upon the undisputed facts (Br at 4) Contrary to the contentions of the par ties the credibility of witnesses in any case is always at issue I am not required to believe the testimony of the witnesses here particularly if I am influenced by the de meanor factor Because motive is crucial in this case any credibility resolutions regarding motive will be crucial Passing to its assuming arguendo argument (that is assuming I find a prima facie case) Respondent contends the evidence demonstrates Reyna would have been dis charged had there been no references to union or an other election In arguing that it carried its burden of proving this by a preponderance of the evidence Re spondent cites the unfounded allegations Reyna made since May 1986 her resistance to the cross training pro gram and her remarks against blacks Any of these three examples of misconduct provided a legitimate reason for Reyna s discharge (Br at 33) True but that begs the question I find the evidence does establish a prima facie case Respondent had tolerated Reyna s conduct for 9 months without so much as a counseling and only when the notes mentioned union or another election did Re spondent act Of course the pnma facie case would be stronger if the evidence disclosed animus or disparity by CPT But the absence of those factors does not reduce the evidence here below the threshhold of a prima facie case Respondents position is that it could not discharge or even warn Reyna in October over the Direct Line letters because to do so would jeopardize the credibility of CPT s open communications policy This argument self destructs with Plant Manager Barry s 9 October 1986 clarification when he warned that any person making false accusations which are slanderous and malicious is subject to termination of employment Hayeslip con cedes that Respondent viewed Reyna s September 1986 Direct Line notes as being false slanderous and male cious (2 305) The cross training ground does not withstand scrutiny Almost from the beginning certainly by mid October Respondent was aware that Reyna allegedly was resist ing the cross training but it never issued her a repri mand Granted the law does not require such nor do Respondents rules On the other hand CPT has issued warnings in the past one being to Reyna her„elf in May 1986 And as we shall see Barry himself gave Baker a final warning on 15 August 1986 Notwithstanding Hayeslip s testimony that Reyna s resistance never pro gressed beyond griping and complaining and therefore did not justify a warning in February Reyna s resistance suddenly (as I apparently am to believe) ripened into a reason not simply to warn but to discharge Loose allegations by Reyna have been her trademark since her sexual harassment allegation against Sherman Hinton in May 1986 As for Reyna s deplorable remarks and slurs against blacks Respondents righteous indigna tion in February is a bit tardy to be persuasive Plant Manager Barry admits that from reports of others even he was aware after mid 1986 that Reyna had made racist remarks (1 65-66) yet Barry never saw fit at any time during the last 5 months of 1986 to reprimand Reyna or even tell her that such remarks were unacceptable at the plant And in late January when Shift Leader Barbara McGee and Shift Supervisor Rick Stumpf both of whom are white informed Hayeslip (also white) that Reyna had told McGee she did not want to work downstream with the niggers neither Hayeshp nor Stumpf went directly to Reyna and warned her that any repetition of that slur would subject her to severe discipline up to and includ mg discharge Objectively therefore the evidence prima facie estab lishes that motivating factors in Reyna s discharge were the union and election threat references in the February anonymous letters I find it of no moment that such ref erences came in the portion Respondent attnbutes to Baker because it is clear Respondent considered Reyna to be the source of such remarks Aside from an analysis of the objective factors I simply do not believe Barry and Hayeslip They testified with an unpersuasive demeanor and I disbelieve them To the extent they and particularly Hayeslip suggest the union references played no part in the decision to fire Reyna I disbelieve them In so disbelieving them I find the opposite to be true and that in fact the union refer ence, were a motivating factor in Respondents decision to fire Reyna Respondent elected to rely on its motion to dismiss at the close of the General Counsels case in chief and therefore Respondent did not proceed with its own case in chief Thus discussion of whether Respondent carried its burden of proving it would have fired Reyna in any event and absent the union considerations is slightly awkward for the same evidence is reviewed from this standpoint The findings I have made regarding a prima facie case apply here also including my assess ment Barry and Hayeslip testified with an unpersuasive demeanor I find Respondent would not have fired Reyna if the letters of 2 and 4 February had not men tioned un on or threatened another election Anticipating CPT would argue that Reyna s conduct even if concerted was unprotected the General Counsel devoted a portion of her brief to argument with case ci tations that the letters of 2 and 4 February enjoy pro tected status (Br at 21-24) Granting that sections of the letters may be arguably insulting or in poor taste and that the authors could have articulated a more ap propriate argument or series of complaints the General Counsel contends the letters lost no protection of the Act by their wording even though some of the state ments also were false Although the letters address a variety of complaints and concerns the focus ob serves the General Counsel is on the Quality Control section and express concerted concerns of those condi tions and the effect on employees Respondent makes no express argument that the con tents of the letters are unprotected Whether all or only a portion of the February letters is protected is irrelevent for Respondent did not disavow relying on the portions CONTINENTAL CAN CO that expressly focus on favoritism by black shift leaders in the assignment of overtime to their black friends and similar allegations that are facially protected This is not to say Respondent cannot discharge an employee who makes abusive and racially derogatory remarks inten tionally false allegations of sexual harassment or similar allegations with reckless disregard for the truth But Re spondent cannot tolerate .,uch conduct until union is mentioned and then use such ground as an all too con venient pretext to eliminate a union supporter from its plant Accordingly I find Respondent violated Section 8(a)(3) of the Act on 6 March 1987 when it fired Rosie C Reyna effective the following day I will order Re spondent to offer Reyna reinstatement and to make her whole with interest E Deborah F Baker i Introduction Hired by Respondent in January 1986 QC Inspector Deborah F Baker was notified by Respondent some 14 months later on Monday 16 March that she was being terminated effective the next day (1 194-195) Respond ent terminated Baker when she reported for her 3 30 p in shift on 16 March (2 275) The reasons were given orally to Baker on 16 March and appear in a letter of that date to her It appears QC Supervisor Stumpf possi bly with Hayeslip present notified Baker of her termina tion and of the reasons (1 196) Hayeslip testified Re spondent inadvertently didn t hand her a copy because of the excitement and we mailed it (1 196) The 16 March termination letter reads (G C Exh 3) Dear Debra This is to be considered as confirmation of your termination with Continental Can Company Inc of fective March 17 1987 Your termination is for conduct detrimental to the harmonious relations desired at Continental s PET Technologies Plant in Olive Branch Mississip pi as a result of 1 Malicious mischief 2 Solicitation of other employees on Company time 3 Creating a disruption of the workforce in this facility In addition to your final paycheck for time worked you will receive one week of earned vaca tion pay and four hours call in pay for today Continental PET Technologies /s/ Rick Stumpf Richard Stumpf Quality Control Supv Plant Manager Barry testified he would have dis charged Baker 2 weeks earlier when Reyna was terms nated on the belief Baker was involved in writing the two anonymous letters of early February (1 46-47 53) Recall however that Robert Adams Respondents divi sion manager of human resources suggested Baker be re tained HR Supervisor Hayeslip testified Adams felt that even though Baker earlier had exhibited problems get 303 tang along with other employees her conduct had im proved Adams believed that with Reyna terminated there was a chance Baker would [continue to] im prove (2 297-298 308 ) Earlier Baker had received two warnings or counsel ings The first on 20 May 1986 was because she alleged ly refused Production Supervisor Jerry Oliver s request to see an HFI (Hold for Inspection) Baker had issued In his handwritten memo (R Exh 2) QC Supervisor Stumpf also noted that Baker is having problems get ting along with other employees Hayeslip was present at the counseling along with Stumpf Oliver and Baker (2 298) and Hayeslip also signed Stumpf's note The counseling note was offered and received for the limited basis of showing simply that Respondent had counseled Baker on 20 May 1986 for the matters described (2 299) Although the distinction may be more academic than practical neither the note nor Hayeslip s presence at the counseling converts the hearsay allegations into admissi ble evidence that any of the events described in the note (other than the counseling itself) occurred in fact Of course Respondents purpose is served by its limited offer Because this case deals with Respondents motiva tion (state of mind) in February March 1987 Respond ent as any employer would be is entitled to rely on prior warnings issued Baker as bearing on the reason or motive Respondent had in terminating Baker in 1987 In this case Baker did not testify at all and therefore did not testify that neither the counseling nor the alleged events occurred Had Baker so testified Respondent could have called Oliver as a witness to the asserted re fusal and Stumpf (or whoever) as a witness to Baker s asserted getting along problems Baker s second warning was given to her on 15 August 1986 Stumpf prepared a handwritten note of that da e describing the interview (R Exh 3) Although Hayeslip s signature (along with that of Stumpf) appears on Stumpf's memo Hayeslip testified she did not think she was present at the interview (2 300) Stumpf's memo was offered and received for the same limited purpose as the first warning According to Stumpf's memo he and Plant Manager Barry talked with Baker concerning her not being able to work together with several employees throughout the plant As Stumpf records there have been numerous complaints from employees and supervisors on five listed items as follows 1 The way Baker approaches people when there is a problem 2 Baker screams at people 3 Baker throws clipboards at inspectors who are trying to explain inspection procedures 4 Baker has problems in following instructions from the shift leaders 5 Threatening statements to a lead person she would go to the labor board when the lead person was trying to work with her on [the word is practi cally illegible but appears to be communications or conversations] with other employees 304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Stumpf concludes his memo with a paragraph stating Baker has been counseled on several occasions about her ability to get along with others and working as a team Jim [Barry] stated that she would have to start working together with everyone and that this was the final warn ing During his testimony Barry briefly referred to this final warning which he gave Baker (1 45-46) Baker received no other warnings before her discharge (2 318- 319 Hayeslip) 2 Baker suspended 11 March 1987 Recall that on Friday 6 March Reyna was called in from vacation and terminated Baker apparently did not learn of Reyna s termination until Baker reported for work the afternoon of 9 March On separate occasions during the evening Maintenance Specialist Mark Morton and Lift Truck Operator Carolyn D Haney had conver sations with Baker because they observed her crying Both Morton and Haney testified before me concerning their conversations with Baker Of importance also are the reports Morton and Haney made to Hayeslip when Hayeslip ostensibly on 16 March investigated the events of 9 and 11 March Barry testified he was out of town the week of 9-13 March returning to the plant the date (16 March) Re spondent discharged Baker (1 43-44) Hayeslip also was out of town at least most of the week but there is some question whether she returned to the plant on Friday 13 March or Monday 16 March Hayeslip testified she re turned to the plant either that Monday (16 March) or the preceding Friday night She testified her first day back was the day she interviewed Morton and Haney and that she possibly interviewed them at the plant late Friday night (1 200-202) Haney and Baker spoke on 9 and 10 March The next day 11 March Supervisor Oliver suggested Haney report the matter to the depart ment manager which she did that day A couple of days later (Friday 13 March) Hayeslip interviewed her Haney testified (2 262-263) The materiality of Hayeslip s return date is related to the date a copy of Reyna s unfair labor practice charge was delivered to the plant Reyna s charge in this case was filed 11 March NLRB Region 26 served a copy the same day by letter sent cer tiffed mail Hayeslip positively identified her signature on the green return receipt card (1 197-198) The green card bearing Hayeslip s signature was received back at NLRB Region 26 on Monday 16 March at 10 37 a m (G C Exh lb) 9 The question is the date Hayeslip signed The date shown is 3/13/87 followed by initials that appear to be JW Hayeslip testified she did not insert the date (1 197-198) The handwriting clearly is different Whether JW was inscribed by Respondent s receptionist the Postal service letter carrier or someone else is not established Nevertheless it is clear all the cir cumstances point to the date of Friday 13 March as the e The parties do not dispute the date of 16 March and were willing to stipulate to the date I stated no stipulation was necessary if the date was legible The parties represented that there was no problem with legibility (2 319-322) In fact there is a slight problem with legibility in that the 1 of the 16 falls mostly but not entirely on a preprinted line on the green card I agree with counsel however that the date is 16 March 1987 date Hayeslip signed the green return receipt card The letter was mailed Wednesday 11 March Hayeslip au thenticates her signature and the signed green card was delivered to Region 26 the morning of Monday 16 March I find that Hayeslip signed the green card on Friday 13 March 1987 The significance of this fact re lates to the General Counsels argument Respondent dis charged Baker because it concluded she was assisting Reyna on the charge Reyna filed against CPT io Hayeslip identified a typed memo (G C Exh 28) dated 16 March and signed by Stumpf describing Stumpf's suspension of Baker on Wednesday 11 March (2 273-274) In his memo Stumpf records that he sus pended Baker the evening of 11 March and instructed her to leave the plant after reading the following state ment to her You are being suspended pending termination for conduct detrimental to the harmonious employee relations desired at Continental s PET Technology Plant Olive Branch Mississippi Specifically by so liciting on Company time other employees to bring suit or support a suit filed by a terminated employee and to dig up anything derogatory the employee could about management specifically the Quality Control Supervisor and any or all Quality Conrol Lead People Harmonious employee relationship is the founda tion for properous and continued employment from which a healthy and prosperous industry can grow Although out of town that week Barry testified he called the plant and learned from Manufacturing Manag er George Erwin that there had been some problem with Baker Erwin reported that the corporate office was pre paring something on the matter (1 43-44) Hayeslip also called from her location possibly the evening of 11 March According to Hayeslip Stumpf said before Baker was suspended she was crying pouting and was calling employees away from their jobs trying to get dirt on Stumpf and the shift leaders to use in some lawsuit After the suspension Stumpf said Baker acted irrationally by screaming down the hall (1200-201 ) Indeed Stumpfs concluding two paragraphs of his suspension memo read (G C Exh 28) Elaine Hayeslip (Human Resources Supervisor) and Jim Barry (Plant Manager) will return on Monday March 16th You may call and set up an appointment to talk with them on that day Debra screamed comments to Pam May and James Wright as she was leaving the plant I hope you are all satisfied-I in fired Hayeslip testified Stumpf checked with or obtained approval from Manufacturing Manager Erwin before Stumpf suspended Baker and that the suspension was based on the events of 11 March (1 203-204) The com plaint does not expressly attack the suspension but it ° The complaint does not allege CPT violated Sec 8(a)(4) of the Act in discharging Baker CONTINENTAL CAN CO 305 does use the date of the suspension rather than the dis charge date Aside from the motivation paragraphs the relevant allegation is in complaint paragraph 8 which reads On or about March 11 1987 Respondent dis charged its employee Deborah F Baker 3 Hayeslip investigates on 13 March 1987 When Hayeslip returned to the plant she conducted an investigation that included interviews of Morton and Haney (1 202-204 2 274) I have found Hayeslip re turned to the plant on Friday 13 March and conducted her interviews on that date Hayeshp prepared memos dated 16 March covering these interviews (1 204-210) Morton testified that the Hayeslip memo (G C Exh 26b) he signed is an accurate account of what he reported to Hayeslip (2 251) Haney testified similarly respecting the memo (G C Exh 27a) that Hayeslip prepared concern ing their conversation (2 264) Although the Morton and Haney memos begin with the recitation Hayeslip inter viewed them on 16 March I have found the correct date to be 13 March With the typing process necessary it is quite likely the memos were not typed until 16 March and therefore bear that date Although Haney signed on 16 March Morton did not sign until 31 March The Morton memo reads (G C Exh 26b) On 3/16/87 I interviewed Mark Morton Maint Specialist D Blow Molding concerning an mci dent involving Debra Baker Q C Inspector during the week beginning 3/8/87 Mark stated that on Monday (3/9/87) he noticed that Debra Baker who was working in the Down stream area was extremely upset and crying When he asked her what was wrong she told him that she was upset about Rose Reyna She further stated that she was wanting to talk to Rose because it was not fair what the Company had done to her On Wednesday (3/11/87) Mark noticed Debra was smiling a lot and asked her if she was feeling better She replied that she was feeling better be cause she had talked to Rose She made the state ment We ve got a plan We re going to get Continental for what they did to Rose She ex plained that she and Rose were going to get a lawyer and bring suit against Continenal At that point Mark advised Debra to stay out of it because people had tried to do that sort of thing before and to his knowledge Continental had never lost a case Debra continued to plead Rose s situation and made the statement that Rose had never talked about any body or done any of the things she was accused of Mark explained to Debra that he had heard Rose talk about people before and that he had also heard her talk about him even to the point of saying that she was going to get him fired because she thought he did not process the machine correctly He told Debra that he had overheard her make this statement in the backroom while he was standing in the lab Debra then asked Mark if he had heard the rumor that she got Rose fired When he told her he had heard it she asked the name of the person who repeated the rumor to him After he refused to name the person Debra told him she would go to Mr Barry and he would get the name out of him She became hysterical and shouted I in tired of you saying that I got Rose fired' In an attempt to calm Debra Mark replied I did not say thatt You asked me if I had heard that you had something to do with getting her fired but I also told you that is how rumors get started She told Mark that she would get him fired if he did not tell her the name of the person who repeated the rumor to him Her final remark to him was I in not going to let Con tinental get away with firing her' Although Haney testified Hayeslip s memo accurately recorded their conversation in fact it covers only the second of two conversations Haney had with Baker and Hayeslip erroneously records the (second) conversation as occurring on Monday 9 March It is clear from Haney s testimony that the first conversation was on Monday 9 March and that the second conversation was the next evening 10 March (2 259-260) Indeed Jerry Oliver a production supervisor who conferred with Haney on 10 March after observing Haney and Baker talking that evening (2 262) prepared his own memo on the subject In his memo Oliver dates the occasion as 10 March (G C Exh 27b) The first conversation 9 March occurred when Haney observed Baker crying and asked her what was wrong Baker explained Reyna had been fired over what Baker did not know but that she was going to the quality control office to tell the people there to stop laughing and hollering about Reyna s being fired Haney suggested that Baker not do that (2 259-260) Shortly after the 3 30 p in shift started Tuesday 10 March Baker walked over to Haney and said she had seen Reyna How is Rose doing asked Haney Baker replied Oh she s doing great She s got a lawyer and she s going to sue Continental Haney said she already knew that Their conversation continued but with the forego ing introduction I now can quote Hayeslip s memo Keep in mind that it in fact describes the conversation of 10 March only On March 16 1987 I interviewed Carolyn Haney Lift Truck Operator-Blow Molding Dept regarding an incident involving Debra Baker Q C Inspector Carolyn explained to me that on the night of 3/09/87 Debra Baker approached her saying that Rose (Reyna) had been fired and had a lawyer and was going to sue Continental Carolyn further stated that Debra said she was going to help Rose and stand behind her in court She asked Carolyn if she would do the same furthermore she wanted to know if Carolyn could tell her anything on Rick Stumpf or any of the Shift Leaders Carolyn explained that she did not know or work with them much She told Debra that the only one she had ever heard about anyone having a problem 306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with was Tommy Willett Debra replied to her that they weren t interested in him-that it was Rick Stumpf they were after Carolyn told Debra at this point to tell Rose hello but she did not want to be involved On Tuesday night Debra again approached Carolyn and told her she had seen Rose that day and she was doing fine Carolyn told Debra that she did not want any part of what she was talking about-that she just wanted to come to work and do her job and go home-and to leave her alone about the matter The only other employee witness Hayeslip spoke to was Pam May who reported that when Baker was leav ing she did scream at May (2 274-275) 4 CPT s rules restricting solicitations When Baker was hired she signed a Welcome' orien tation letter containing six listed rules that must be ob served (2 272-273 301-302) Rule 3 provides (R Exh 4) 3 No selling or solicitation of any kind will be permitted on the Company property except during nonwork times On an attached form Baker signed with the following acknowledgement (R Exh 4) I have read and understand the above instruc tions and agree to abide by them I understand that failure to do so may result in termination /s/ Deborah Baker Employee s Signature 1-36-86 Date Respondents employee handbook contains a separate rule restricting solicitations (2 271-272 Hayeslip) The rule reads (G C Exh 25 at 19) Distribution and Solicitation Distribution of advertising material handbills or other literature in working areas of the facility is prohibited at any time Solicitation by an employee of another employee is prohibited while either person is on working time Working time is all time when an employee s duties require that he/she be engaged in work tasks but does not include an employees own time such as meal periods scheduled breaks time before or after a shift and personal clean up time The General Counsel does not allege either of Re spondent s rules to be unlawful either facially or by ap plication Pointing to an incident in mid February 1987 in which Baker complained employee Michael Oystern was soliciting employees to buy insurance a complaint Barry investigated (1 68-70 76-77) the General Counsel argues disparity in that Barry there spoke with possible witnesses and with Oystern but here no one interviewed Baker for her version before she was suspended and fired (Br at 31) 5 CPT s decision to discharge Baker Plant Manager Barry testified Baker was discharged for the reasons listed in her termination letter (1 41-42) As the senior person at the plant Barry testimomally took responsibility for the decision to terminate Baker although he testified both Erwin and Adams concurred Barry based his decision on Hayeslip s investigation for he did not interview any of the employees He also relied on Baker s prior warnings (1 44-45) As for what triggered Baker s suspension and discharge Barry testi feed it was her disrupting the work force and creating chaos on that manufacturing floor on company time That is unacceptable That is a point where she had re ceived a final reprimand by myself and her supervisor on a very similar situation several months prior creating disruption Continuing Barry testified Baker was re moving people from their work place and we were re ceiving-there was complaints received from employees that she was hindering them from performing their job which they were concerned about (1 45-46) As earlier noted Barry testified that given his way he would have terminated Baker when Reyna was fired (146-47 53) Barry (1 58 75) and Hayeslip (2 275) testified Baker had never previously been warned for soliciting employees and (to Respondents knowledge) she had never previ ously done any soliciting The testimony of Barry and Hayeslip concerning what kind of soliciting constitutes a dischargeable offense re veals a flexible policy depending on the circumstances Barry admits however that even soliciting employees who are working to buy Avon or Tupperware would not be viewed as seriously as Baker s soliciting employ ees to take action against CPT in a lawsuit And Barry explained Baker s soliciting employees to be involved in legal action against CPT played an important part in the decision to discharge her (1 60-62) Hayeslip testified that selling Avon or Tupperware is a less serious offense than Baker s detrimental conduct of digging up derogatory information or dirt on em ployees supervisors and management Such conduct Hayeslip testified was detrimental to the manage ment people trying to supervise her (2 276-278) Ac cording to Hayeslip the termination decision was not made simply because of the soliciting for information to support a lawsuit but because it was to get smut or dirt against members of management and supervisors That was the big problem (2 309) Indeed Hayeslip testified Respondent did not know what kind of lawsuit Reyna would file (2 309) 111 Asked what she meant by dirt Hayeslip testified it covered everything from how supervisors treated employees to the sex lives of targeted supervisors (2 309) Asked whether favoritism by supervisors would con stitute dirt Hayeslip said probably not if the allegation was true but yes if the allegation was deliberately false As for such an allegation made in good faith but which proved unfounded Hayeshp had no answer (2 309-310) " Hayeslip s plea of ignorance by CPT is I find false As I have found Respondent learned on Friday 13 March-before the 16 March decision to discharge Baker-that Reyna had filed her charge in this case CONTINENTAL CAN CO 307 Hayeslip s pretrial affidavit of 28 April includes this explanation (G C Exh 32 at 6) The reason that Baker was fired for soliciting is be cause she was soliciting employees to join with her in a suit against the company Her actions unlike so liciting for Avon were detrimental to the company By detrimental I mean that she was soliciting em ployees to do something that was adverse or harm ful to the company It was not simply a question of her soliciting employees to fabricate some untruth against the company By detrimental and harmful I mean that she was doing something that was going to cost us money We can t stop her from filing suit but we can keep her from getting her support for the suit while she is being paid by the company The statement is of added significance because Hayes lip testified her corporate superior Robert Adams was representing CPT at the Board agent s interview of Hayeslip and it was Adams who suggested the first sen tence of the quoted lines (2 314) At the hearing Hayes lip s testimony about smut or dirt seems to veer slightly from her (and Adams) pretrial statement and from Barry s testimony about the serious aspect of Baker s so liciting support for Reyna s lawsuit I find Hayeslip s opinion about the smut aspect of Baker s solicitation to be speculation unsupported by the interviews Hayeslip herself recorded Based on Hayeslip s testimony that she interpreted dirt to mean false information (2 310) Respondent argues (Br at 41) The basis of her discharge was her disruption of the workforce and her attempts to get false information about supervisors from employees during working time Hayeslip s reference to dirt is based on her testimony Stumpf told her he had suspended Baker because in part she had been calling employees away from their jobs trying to get dirt on Stumpf and the shift leaders to use in some lawsuit That was before Hayeslip s investi gation As Stumpf did not testify I attach no weight to his supposed reference to dirt In any event I find the dirt in this case under the recorded facts to be nothing more than evidence of the complaints previously regis tered by supposedly Reyna and Baker-including favor itism on the basis of race by shift leaders in job assign ments overtime assignments or other work related mat ters the alleged failure of QC Supervisor Stumpf to do anything to correct the problems and alleged sexual har assment by supervisors 6 Analysis and conclusions regarding Baker a The prima facie case Earlier I found in discussing Reyna s case that Plant Manager Barry and HR Supervisor Hayeslip testified with an unfavorable demeanor and I did not believe them I make the same finding here regarding their de meanor while testifying about Baker s case Although I accept some points of their testimony overall I disbe lieve them Respecting the allegation of an 8(a)(3) violation Re spondent observes that the only evidence pertains to the union and election references in the anonymous letters of 2 and 4 February 1987 Respondent argues that is not enough to establish a prima facie case regarding Baker s discharge a month later (Br at 41-42) I disagree Barry admits he personally wanted to fire Baker in substantial part over her suspected involvement in writing the let ters at the same time he fired Reyna and that the basis for Baker s discharge included her involvement in writ ing the letters (1 46-47 53-54) In fact the references to union and election appear solely in the portions of the letters CPT determined are in Baker s handwriting I find that a motivating reason for Respondents discharge of Baker was the reference to union and election in the February letters references Respondent deemed written by Baker Adams I find thought the absence of Reyna would chill Baker s support of the Union Baker s vigorous sup port for Reyna after Reyna s discharge served to reacts vate I find Barry s earlier opinion that Baker should have been fired with Reyna A motivating reason I find for the earlier opinion and for Barry s decision on 16 March was to get rid of Baker because she posed a threat of bringing on another union election This finding is reinforced by Respondents admitted awareness as I discuss later that Baker was soliciting employees to sup port Reyna in a lawsuit against CPT Given the fact Reyna already had filed one unfair labor practice charge against CPT in June 1986 it is reasonable to find as I do that Respondent concluded Reyna s lawsuit could well be another unfair labor practice charge Any doubt on that score was removed on Friday 13 March when as I have found Hayeslip signed a green return receipt for a copy of Reyna s charge in this case The admitted facts prima facie establish that Respondent violated Sec tion 8(a)(3) of the Act by discharging Deborah F Baker on 16 March 1987 In finding a prima facie violation I do not overlook that Baker was suspended for her detrimental conduct 2 days before Hayeslip received a copy of Reyna s charge That is of no moment because I find Respondent feared Reyna s lawsuit would likely be another unfair labor practice charge Hayeslip revealed Respondents concern about potential charges by Reyna when it admittedly did not discipline her in October over the anonymous Sep tember Direct Line notes because in part CPT sup posedly was gun shy from Reyna s last unfair labor prac tice charge I turn now to the allegation that Baker s discharge vio lated Section 8(a)(1) independently Barry testified Baker was discharged for the reasons stated in her termination letter (1 41-42) Even so Barry emphasizes two factors First Baker s supposed disrupting the work force and creating chaos on that manufacturing floor on company time That is unacceptable He tied this to the final reprimand he had given Baker in August 1986 for caus ing disruption (145-46) Second Barry stresses the nature of Baker s soliciting (1 61-62) 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Baker s solicitations did not create disruption and chaos as Barry asserts Hayeslip s investigation the evi dence on which Barry admits he relied (1 44-45) hardly shows either disruption or chaos Barry overreaches in his desire to get nd of Baker Hayeslip s report of her interview with Mark Morton reflects it was Morton who initiated both his conversations with Baker and the report certainly contains no description of disruption of the work force much less chaos on the manufactur ing floor Although Baker is shown as taking a strange reaction when Morton answered her question whether he had heard the rumor that it was Baker who had caused Reynas discharge Respondent never described that isolated fact as a significant part of the disruption and chaos on which Barry based his decision In Hayeslip s report of her interview with Carolyn Haney there is no reference to other employees being present or even nearby during the (second) conversa tion Although Haney testified there were other employ ees near them since they were in the downstream work area she also testified that just she and Baker were conversing (2 264-265) Other than the disruption caused by the one to one conversation in a work area there is no evidence Baker s conversation with Haney distracted anyone much less disturbed them or created chaos As we know from the discussion on Reyna s case until Reyna complained about radios in the quality control lab Respondent permitted the playing of radios there There is no evidence Respondent fired those playing radios when Reyna complained Stumpf simply banned the playing of radios thereafter The radio playing there created more of a disruption in the quality control lab (by disturbing Reyna) than Baker s conversation did here Although Barry testified Baker was removing em ployees from their work place and employees com plained Baker was hindering them from performing their job (1 46) there is no evidence of such Hayeslip s testimony that Stumpf told her something to that effect when she telephoned from out of town besides being hearsay was before her investigation Hayeslip concedes she had difficulty remembering what Stump told her that evening ( 1 201) Stumpf did not testify I draw the ad verse inference from his failure to testify that had he done so his testimony would not support what Hayeslip attributes to him Moreover I do not believe either Barry or Hayeslip Each testified with an unpersuasive demeanor I especial ly find that Barry exaggerated and embellished Hayes lip s report in this respect in an effort to supply what he perceived to be a legitimate pretext for discharging Baker As for the nature of Bakers solicitations it is clear that in Barry s view the overriding vice in Baker s con duct was her soliciting employees to support Reyna in a lawsuit against CPT As I have found Respondent knew very well that lawsuit quite likely would be another unfair labor practice charge Any doubt it had in this re spect was removed on Friday 13 March-3 days before it decided to terminate Baker Baker s solicitations of support of a fellow employee constitute concerted activi ty I find that the facts establish puma facie that Respond ent violated Section 8(a)(1) of the Act by discharging Deborah F Baker on 16 March 1987 b CPT s defense Even if it is found the General Counsel established a puma facie case Respondent argues that the evidence also demonstrates CPT would have fired Baker regard less of her union or other concerted conduct This pose tion apparently ties chiefly to its disruption argument In discussing the puma facie case I found the disruption ar gument to have no merit At no point in the evidence does either Barry or Hayeslip point to Baker s irrational response to Mark Morton and say that it would have fired her solely for that one moment of behavior I do not overlook Baker s final warning in August 1986 nor the fact that Barry testified he also relied on that warning The problem is that at the hearing Respondent made no attempt to distinguish any of the evidence Barry and Hayeslip insisted that it was all the factors combined on which the discharge was based Therefore Respondent has not demonstrated it would have fired Baker for her statement to Morton that she would seek to have him fired Baker s screaming at two employees as she departed following her suspension pending termination can hardly be called an irrational response if the suspension itself was illegal 1 2 In any event Respondent makes no con tention it would have fired Baker if the only factor in volved from the days of 9 and 11 March was Baker s parting cry of anguish over her suspension Respondents companion argument is that even if the subject matter of Baker s solicitations was protected con duct her violation of Respondents valid no solicitation rule was unprotected Respondent contends there is no showing the no solicitation rule was enforced in a dis criminatory manner (Br at 51) The General Counsel points to Hayeslip s testimony that had the soliciting in volved only Avon or Tupperware for example unac companied by the disruption Respondent attributes to Baker then the employee probably would not be dis charged on a first offense (2 277) Barry s testimony is similar in effect (1 61-62) The problem with Respondents defense is that I do not believe it In essence Respondents argument here is that it would have fired Baker for the soliciting no matter what the soliciting was for because it violated Respondents valid no solicitation rule Yet that is not the testimony given by Barry and Hayeslip Both offs cials indicated a lighter penalty could have issued had the soliciting been unaccompanied by Baker s disrupt ing other employees (Respondent thereby defines the disrupting to mean employees other than the one solicit ed) But I have found there is no evidence of disruption of employees outside the one to one conversations and that Respondents inclusion of such factor is a makeweight added as a pretext to exaggerate the effect of Baker s conduct To borrow Judge Philip P 12 As earlier noted complaint par 8 dates Bakers discharge as I 1 March without specifying the suspension as a separate act CONTINENTAL CAN CO 309 McLeod s description in Rockwell International Corp 13 Respondents characterization of Bakers soliciting as dis ruptive is nothing more than a euphemism for [Baker s] concerted activity of seeking support for Reyna Second both Barry and Hayeslip stressed the overrid ing significance of the nature of the solicitation-Re spondent viewed it far more seriously than any Avon selling because Baker was soliciting support of Reyna s lawsuit against CPT Hayeslip s pretrial affidavit also re flects this motivation clearly Moreover whereas Re spondent interviewed the person (Michael Oystern) Baker accused in February of selling insurance no one interviewed Baker and asked for her version of the events of 9-11 March In light of the foregoing I find that Respondent has failed to establish by a preponderance of the evidence that it would have discharged Baker for reasons unasso ciated with the subject matter of her solicitation of em ployees Morton and Haney the evenings of 10-11 March 1987 Accordingly I find that Respondent violated Sec tion 8(a)(1) and (3) of the Act by discharging Deborah F Baker on 16 March 1987 The General Counsel did not allege Baker s suspension on 11 March 1987 to be unlawful Complaint paragraph 8 which attacks Baker s discharge dates the discharge as 11 March Arguably the allegation encompasses both the suspension and the discharge Because the matter was not briefed by the parties and because it is possible dif ferent considerations could apply to Baker s suspension I make no finding respecting the suspension Thus Baker s backpay period shall begin on 16 March rather than 11 March And it will begin on 16 March rather than the purported effective date of 17 March because Baker was deprived of working a full shift on 16 March CONCLUSIONS OF LAW 1 Respondent CPT is an employer within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean Ing of Section 2(5) of the Act 3 Respondent violated Section 8(a)(3) and (1) of the Act by discharging Rosie C Reyna effective 7 March 1987 4 Respondent violated Section 8(a)(3) and (1) of the Act by discharging Deborah F Baker on 16 March 1987 5 Respondent independently violated Section 8(a)(1) of the Act by discharging Deborah F Baker on 16 March 1987 6 The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act Respondent must offer Rosie C Reyna and Deborah F Baker immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially 13 Rockwell International Corp 278 NLRB 55 (1986) enfd 814 F 2d 1530 (11th Cir 1987) equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of earnings and other ben efits suffered as a result of the discrimination against them Backpay shall be calculated in the manner estab lished in F W Woolworth Co 90 NLRB 289 (1950) with interest computed as described in New Horizons for the Retarded 283 NLRB 1173 (1987) 14 Respondent must remove from its files any reference to the unlawful discharges of Rosie C Reyna and Debo rah F Baker and notify the employees in writing that this has been done and that the discharges will not be used against them in any way On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed15 ORDER The Respondent Continental Pet Technologies Divi sion of Continental Can Company Inc Olive Branch Mississippi its officers agents successors and assigns shall 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Graphic Communications Union Local 231 M or any other union (b) Discharging or otherwise discriminating against any employee for engaging in concerted activities for mutual aid or protection respecting wages hours or other terms and conditions of employment (c) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Rosie C Reyna and Deborah F Baker imme diate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent po sitions without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order 14 283 NLRB 1173 (1987) Interest will be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amend ment to 26 U S C § 6621 15 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (d) Post at its plant at Olive Branch Mississippi copies of the attached notice marked Appendix 16 Copies of the notice on forms provided by the Regional Director for Region 26 after being signed by the Respondent s authorized representative shall be posted by the Re spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 16 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT discharge or otherw se discriminate against any of you for supporting Graphic Communica tions Union Local 231 M or any other union WE WILL NOT discharge or otherwise discriminate against any of you for engaging in concerted activities for mutual aid or protection respecting wages hours or other terms and conditions of employment WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Rosie C Reyna and Deborah F Baker immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge less any net interim earnings plus interest WE WILL notify each of them in writing that we have removed from our files any reference to their discharges and that the discharges will not be used against them in any way CONTINENTAL PET TECHNOLOGIES Divi SION OF CONTINENTAL CAN COMPANY INC