Chase Bag Co.

National Labor Relations Board - Board Decisions

Jul 25, 1984

271 N.L.R.B. 380 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chase Bag Company and Southern California Print-
ing Specialties & Paper Products Union, Dis-
trict Council #2, International Printing and
Graphic Communications Union. Case 32-CA-
5350
25 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 8 March 1984 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering 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,I and
conclusions 2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
The Company, a Delaware corporation, manufactures multiwall
paper bags at its facility in Hanford, California, where it annually ships
goods valued over $50,000 directly outside the State of California. Ac-
cordingly, Chase Bag Company is an employer engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act.
2 In sec. VI, par. 9, of his decision the judge inadvertently erred in
stating that the 9 March 1983 written warning was based on Fagundes'
producing approximately 6000 bags with loose walls. The record dis-
closes that this production mistake occurred subsequent to the issuance of
the warning. The judge's error does not affect the outcome of this case.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge. The
unfair labor practice charge in this case was filed on
March 22, 1983, by Southern California Printing Special-
ties & Paper Products Union, District Council #2, Inter-
national Printing and Graphic Communications Union.
The General Counsel's complaint was issued on May 24,
1983. The complaint was amended on the first day of the
trial. The General Counsel alleges that the Chase Bag
Company has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act. As
amended at the trial, the General Counsel's complaint al-
leges in paragraphs 6 and 7:
(a) On or about February 7, 1983, Respondent
forced its employee John Richard Fagundes to
accept reassignment to a new and more onerous po-
sition;
271 NLRB No. 73
(b) On or about February 8, 1983, March 4, 1983,
and March 9, 1983, Respondent issued disciplinary
warning notices to Fagundes;
(c) On or about March 10, 1983, Respondent dis-
charged Fagundes, and since that date has failed
and refused, and continues to fail and refuse, to re-
instate him to his former position of employment.
7. Respondent engaged in the conduct described
above in paragraph 6 because Fagundes joined or
assisted the Union, or engaged in other protected,
concerted activities for the purposes of collective
bargaining or other mutual aid or protection.
In the Respondent's answer to the General Counsel's
complaint, as amended at the trial, the Respondent
denied the commission of the alleged unfair labor prac-
tices.
The trial in this proceeding was held on October 18,
19, and 20, 1983, at Fresno, California. The time for the
filing of posttrial briefs was extended to December 21,
1983. At the time that counsel for the General Counsel
filed her posttrial brief, she also filed a motion to correct
transcript. The General Counsel's motion has not been
opposed, and therefore the General Counsel's motion is
granted. In addition, punctuation has been added to some
of the quoted material for purposes of clarity.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The jurisdiction of the Board over the business oper-
ations of the Employer is not an issue in this proceeding.
The Employer is engaged in the manufacture of
multiwall paper bags at its Hanford, California facility.
Its operations meet the Board's direct outflow jurisdic-
tional standard.
The status of the Charging Party Union as being a
labor organization within the meaning of Section 2(5) of
the Act also is not in issue. Such status was admitted in
the pleadings.
II. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Seven persons were called as witnesses to testify at the
trial in this proceeding. In alphabetical order by their last
names, they are: Edward B. Davis, who is a production
supervisor of the Respondent; John Richard Fagundes,
who was employed by the Respondent from August 24,
1979, to March 10, 1983, and who is the alleged discri-
minatee in this proceeding; David Hall, who has been a
production supervisor of the Respondent since April
1983, and who, previously, was a tuber operator; Fred
Allen Hansen, who was employed by the Respondent in
the position of bottomer feeder at the time of the trial;
Donald Wayne Helmuth, who was employed as an oper-
ator for the Respondent at the time of the trial and who,
previously, had worked as a janitor, stacker, palletizer,
and shafter at the Respondent's facility; Robert Pease,
who has been the plant superintendent for the Respond-
ent since the plant opened in 1979; and James R. Wade,
who is a supervisor for the Respondent.
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CHASE BAG CO.
In setting forth the findings of fact in the sections to
follow, I have relied on portions of the testimony from
each one of the witnesses who testified during the trial
proceedings, a substantial amount of documentary evi-
dence which was introduced by the parties at the trial,
and stipulations of fact on which the parties reached
agreement at the trial. In basing certain findings of fact
on portions of the witnesses' testimony, I have given
consideration to the demeanor of all the witnesses as
they gave their versions of the events in question in this
proceeding. Some portions of their testimony were relat-
ed more convincingly at the trial than were other por-
tions. Some witnesses had better recollections of some
events, and appeared to be more certain in their recall,
while they appeared to be less certain of their recall of
other matters. (See, for example, Krispy Kreme Doughnut
Corp., 245 NLRB 1053 (1979), with regard to the accept-
ance of some, but not all, of the testimony of a witness.)
In addition, some portions of the testimony of wit-
nesses were not contradicted at the trial by testimony
from other persons. For example, the accounts of con-
versations involving Plant Manager Garrett were not
contradicted by Garrett because he did not testify at the
trial in this proceeding. That observation is not made in
the sense of being critical but, instead, to illustrate the
point that certain testimony is uncontradicted.
As will be shown in the findings of fact to follow, reli-
ance has been placed in many instances on documentary
evidence. The documents, which were prepared near the
time of the occurrence of certain events, seemed to be
more reliable than attempts to recall those events at a
much later time during the trial proceedings.
While all the testimony and the documentary evidence
have been considered, the findings of fact will be limited
to the credited evidence in this proceeding. (See, for ex-
ample, ABC Specialty Foods, 234 NLRB 475 fn. 2 (1978).)
II1. THE EVENTS PERTAINING TO THE
ORGANIZATIONAL ATTEMPTS BY UNIONS AMONG
RESPONDENT'S EMPLOYEES
John Richard Fagundes was employed by the Re-
spondent from August 24, 1979, to March 10, 1983.
During that period of time, there were three attempts by
unions to organize the employees at the Respondent's
plant. The first and second organizing attempts were
made by the Carpenters Union. With regard to the first
union organizational campaign at the plant, Fagundes
said, "I handed out union cards and attended meetings
and tried to get people to attend meetings." With regard
to the second union organizational campaign, Fagundes
said, "The same as the first. I handed out cards, attended
meetings, tried to get other people to." On one occasion
during the second union organizational attempt, Fa-
gundes wore a shirt with a "Vote Yes" inscription on it,
while he was at work at the plant. Fagundes also had a
pencil with a flag on the end of it. The flag had a "Vote
Yes" inscription on it. Fagundes said, "I just waved it
around a little bit." Fagundes recalled that Bob Nowak,
who was a company supervisor at the time but who had
left the Company before the time of the trial, asked Fa-
gundes how he felt about the Union and what Fagundes
thought the Union could get them.
Fagundes first became aware of the organizing cam-
paign by the Charging Party Union in September 1982.
Fagundes said, "I passed out cards, attended meetings,
encouraged other employees to attend meetings." During
the Charging Party Union's campaign, Fagundes also dis-
tributed union cards during his nonworking time at the
plant. Fagundes wore union buttons and union patches
on his clothing while he was at work at the plant. Fa-
gundes commenced doing so about 2 months before the
representation election in December 1982.
A day or two before the election, Fagundes had a
brief conversation with Supervisor James R. Wade. On
that occasion, Wade asked Fagundes if he had holes in
his clothes. Fagundes asked why. Wade replied because
of all the patches and badges on Fagundes that Fagundes
must have holes in his clothing.
About a week after the election was held, Fagundes
had a conversation with Supervisor Tom Emerson. Su-
pervisor Wade also was present. The conversation took
place in Wade's office where Fagundes had gone to
obtain a Band-Aid or an aspirin from the first aid kit. As
Fagundes was leaving the office, Emerson said that Fa-
gundes' buttons could be a safety hazard because the but-
tons could poke Fagundes in the chest. Emerson told Fa-
gundes to make sure the buttons "were on good." Fa-
gundes made no reply.
Fagundes continued to wear union buttons after the
representation election and up to the time of his termina-
tion from employment. Fagundes said that other employ-
ees had worn union buttons or stickers to work before
the election, but he did not know of any employees who
did so after the election. However, employee Freddy
Allen Hansen stated at the trial that some employees oc-
casionally wore union buttons at the plant after the elec-
tion.
Fagundes acknowledged at the trial that there were
some other employees of the Respondent who wore
union buttons or otherwise indicated their support of the
Charging Party Union during the organizational cam-
paign. Fagundes said that David Hall was one of those
persons, and that Hall had attended all the union meet-
ings which Fagundes had attended. Hall was promoted
to a supervisory position by the Company after the
Union's campaign. Fagundes said that Jess Alonzo was a
supporter of the union, and that Alonzo had attended
union meetings which Fagundes also had attended.
During the Union's campaign, the Company promoted
Alonzo to a supervisory position in the shipping depart-
ment.
Supervisor Wade acknowledged at the trial that he
had observed Fagundes wearing union buttons, and that
he had told Fagundes that he had better be careful or he
was going to tear his T-shirt. According to Wade, his
purpose in making the comment to Fagundes was to kid
Fagundes but not to harass him. Supervisor Wade also
acknowledged at the trial that he had overheard Supervi-
sor Emerson tell Fagundes that his buttons could be "a
safety hazard, get caught in the machine or something."
Supervisor Edward B. Davis acknowledged at the trial
that he had observed Fagundes wearing union buttons
both prior to the election and after the election. Davis
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that he was also aware that David Hall and Donald
Wayne Helmuth were union adherents.
Introduced into evidence as General Counsel's Exhib-
its 2(a) through 2(w) were copies of literature distributed
by the Employer to its employees prior to the represen-
tation election held on December 9, 1982. It is not al-
leged that any of the documents contain statements
which are violative of Section 8(a)(1) of the Act but, in
the General Counsel's view, the documents show the Re-
spondent's animosity towards the Union. The parties
stipulated that the Respondent did oppose union organiz-
ing. According to Fagundes, the Union circulated docu-
ments to the employees of the Company in response to
the Company's documents, and the Union mailed litera-
ture to employees' homes and distributed literature off
company property.
A couple of weeks after the Union first handbilled at
the Employer's plant in March 1982, Supervisor Tom
Emerson had a conversation with Freddy Allen Hansen
while Hansen was working as a bottomer feeder. Hansen
testified, "And he came up and asked me, 'Do you think
we need a union in this plant?' I told him, 'No."' The
foregoing conversation is barred by Section 10(b) of the
Act from consideration of whether it constitutes an
unfair labor practice, and it is not alleged to be an unfair
labor practice by the General Counsel. (See the discus-
sion by the attorneys at Tr. 491-496. The same also ap-
plies to the subsequent conversations related by Hansen.)
On August 12, 1982, Plant Manager Garrett had a con-
versation with Hansen while Hansen was working as a
bottomer feeder at the plant. Hansen testified, "Mr. Gar-
rett, the plant manager, came over and asked me if I
thought if we needed a union in the plant. He also told
me I should not compare our benefits with those of the
phone company [where] my wife is employed, which has
a union."
The next day, there was another conversation between
Hansen and Supervisor Emerson at the plant. Hansen
testified, "Yes, he asked me do I think I need a union-if
we need a union in here. I told him I began to wonder
after some of things that have happened here."
A couple of days later, there was a conversation
among Hansen, employee Nick Martinez, and Plant Man-
ager Garrett. Hansen testified with regard to what Gar-
rett said on that occasion, "Well, first, he asked us what
was the matter with the tubes, and we explained to him
that Dennis had put too much glue on 'em, so we tried
running 'em, and they wouldn't run through the ma-
chine, they were stuck, so we had to unstick 'em again.
And he made the statement [if] the union was in here,
he'd fire the person that done that, and he would lay off
the entire sewing department."
According to Hansen, the Employer held weekly
meetings with employees with regard to the union cam-
paign. The meetings were held by departments. There
were eight people in the bottoming department at the
time. Sometimes four employees in the shipping depart-
ment were present, and at times there were other em-
ployees in attendance with those in the bottoming de-
partment. The format of the meetings was to have a lec-
ture and to permit questions from the employees. Hansen
recalled at the trial that Fagundes, Bill Vance, Donald
Helmuth, Barbara Yeople, Geri Wilson, and David Hall
spoke at the meetings. At the two meetings at which
both Hansen and Fagundes were present, Hansen gave
his view that "Mr. Fagundes spoke up more than any-
body else."
Introduced into evidence as General Counsel's Exhibit
14 was a copy of a document which lists various names
with a notation beside each name of "union," "non
union," or "undecided." The circumstances surrounding
the document are not alleged to be a violation of Section
8(a)(1) of the Act. (See the discussion among the attor-
neys at Tr. 58-69.)
Supervisor Davis first saw the document referred to
above around October 7, 1982, when Davis went into
Supervisor Wade's office and observed Brian Garcia
holding the document. Garcia was seated at Wade's
desk, and the center desk drawer was open. Davis told
Garcia that he should not have been in Wade's desk, and
that whatever was in the desk was none of Garcia's busi-
ness. Davis took the document from Garcia and told
Garcia to go back to work.
Davis looked at the document, and then he made a
copy for himself. Davis put the original document back
in Wade's desk. That evening Davis went to Donald
Helmuth's house to play cards. While he was there,
Davis showed the copy of the document to a union rep-
resentative.
On the day before the representation election, David
Hall attended a meeting with other company supervisors
and employees in the Company's lunchroom. The meet-
ing was conducted by the president of the Company
whose last name is Book. Hall testified (Tr. 101-102):
Well, he made it clear that he was, you know,
definitely not for unions. He had said a few things
about the other companies that he had seen compa-
nies that were union and that had been shut down
because they were nonproductive. That was basical-
ly what it was about.
Q. What specifically did he say about Chase Bag?
A. He said that if you didn't have a union, that
you would not have to worry about strikes, and he
did mention some strikes that had went on at Chase
Bag Companies-he did mention a few, that there
were strikes, and that he had seen some plants of
Chase Bag Company close down that were union-
ized.
Q. Did he say why they had closed down?
A. They became non-productive as far as, I
guess, moneywise.
It was not alleged that the foregoing constituted inde-
pendent unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act. (See the discussion by the attor-
neys at Tr. 98-100.)
On the day of the representation election, Helmuth
had a conversation with Supervisor Davis about 9
o'clock that morning before the polls were open. At that
time, Helmuth was working as an operator on the tuber
3 machine. Helmuth testified (Tr. 137):
382
CHASE BAG CO.
Well, Ed came up and started talking about how
he didn't want his friends to be laid off and fired, or
whatever, if the union gets in. He'd hate to see that.
Q. Did he explain how it would happen if the
union got in that people [would] lose their jobs?
A. He didn't explain. He just said he knows
Chase Bag won't give in to any of their demands.
That was it. And I just argued with him for a
minute, and then I told him to just leave me alone.
The foregoing conversation is not alleged to be a vio-
lation of Section 8(a)(1) of the Act. (See the discussion
by the attorneys at Tr. 134-136.)
On the day of the representation election, Hall over-
heard a conversation at the tuber I machine between Su-
pervisor Davis and employee Kevin Thur. Hall inter-
rupted the conversation and asked Davis if he knew that
he was not supposed to be talking to employees on the
day of the election. Davis replied that was the first he
had heard of that, so he continued talking. After his
recollection had been refreshed at the trial, Hall recalled
that Davis had said that Leonard Schmitz would be the
one to negotiate with them, and that Schmitz was really
tough to negotiate with. Schmitz would say no to all the
things that they asked for, so the only alternative would
be to go on strike.
The foregoing conversation was not alleged to be an
unfair labor practice within the meaning of Section
8(a)(1) of the Act. (See the discussion by the attorneys at
Tr. 103-104 and 681-682.)
IV. THE OBJECTIONS TO CONDUCT AFFECTING THE
REPRESENTATION ELECTION
Introduced into evidence as Respondent's Exhibit 18
was a copy of the hearing officer's Report on Objections
in Case 32-RC-1720. The document indicates that it was
issued on September 23, 1983, by Hearing Officer John
D. Meakin.
At the time of the trial, the period for filing exceptions
to the hearing officer's report with the Board in Wash-
ington, D.C., was still in effect. (See the discussion at Tr.
743-752.) Both parties indicated in their posttrial briefs
that at that point in time the hearing officer's findings,
conclusions, and recommendations were pending on
appeal before the Board in Washington.
At the time that this decision is being written, I have
not been advised by the parties that the Board in Wash-
ington has issued a decision with regard to the hearing
officer's findings, conclusions, and recommendations
with respect to the Union's objections to the conduct af-
fecting the representation election.
The hearing officer's report indicates that the tally of
ballots for the representation election revealed that 30
ballots were cast for the Petitioner, who is the Charging
Party Union in this unfair labor practice case, and that
31 ballots were cast against union representation. There
were two determinative challenged ballots, but the hear-
ing officer's report indicates that those challenges were
overruled by the Regional Director in his supplemental
report, and that the Board adopted his recommendations
in that regard. According to the hearing officer's report,
the revised tally of ballots revealed that 30 ballots had
been cast for the Petitioner, and that 33 ballots had been
cast against union representation.
The General Counsel's complaint does not allege that
any of the conversations related in the hearing officer's
report constitute unfair labor practices in violation of
Section 8(a)(1) of the Act, but the General Counsel urges
that the conversations involving Supervisor Davis show
his union animus.
V. SUBSEQUENT EVENTS
A. Certain Events Pertaining to the Employment of
Fagundes from August 24, 1979, up to February 3,
1983
Introduced into evidence as General Counsel's Exhibit
22 was a copy of the Employer's one-page employment
record of Fagundes. The document indicates that Fa-
gundes began working for the Respondent on August 24,
1979, in the job classification of "baler/palletizer." On
September 10, 1979, Fagundes filled a job opening in the
job classification of "roll shafter." Fagundes received a
raise in pay at that time and subsequent increases in pay
on November 22, 1979; February 19, 1980; July 1, 1980;
August 19, 1980; February 24, 1981; July 1, 1981; and
July 1, 1982, as a roll shafter. The parties stipulated that
the Company's records showed that Fagundes acted as
the operator on the tuber 1 machine on September 10,
13, 14, 15, 16, 20, 21, and 22 and December 20, 1982.
The parties further stipulated that Fagundes acted as the
operator on the tuber 4 machine on November 9 and 10,
1982. The parties limited the foregoing stipulations to
just the dates mentioned and without reference to other
dates that Fagundes may have operated the machines
mentioned.
In 1980, Fagundes received a warning from the Com-
pany for leaving the plant without punching his timecard
in or out.
About March 1981, which was 2 years prior to the
time that Fagundes was terminated by the Respondent,
Fagundes had a conversation with Bob Nowak, who was
the supervisor of Fagundes at the time. According to Fa-
gundes, the discussion pertained to the fact that Fa-
gundes and Lamar Barnes were "not getting along."
About March 1982, which was a year before the ter-
mination of Fagundes by the Company, Fagundes re-
ceived training for a short time on tuber I under David
Hall, who was the operator of that machine at the time.
Fagundes acknowledged at the trial that during his train-
ing period Hall "might have mentioned to me that I
needed more help." Fagundes believed that Hall told
him that he was picking it up, but it "takes time and
more training." Fagundes also acknowledged at the trial
that Supervisor Wade had "said I wasn't doing well
enough."
Fagundes also replaced Lamar Barnes while Barnes
was on vacation for 2 weeks each year. Also, Fagundes
operated the machine on a couple of occasions for an
hour or so when the operator was late in coming to
work.
Introduced into evidence as Respondent's Exhibit 2
was a copy of a "Record of Discussion" dated June 1,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1982, and involving Fagundes. The form was signed by
Supervisor Wade. The "Reason for Conference," as
shown on the form, was "complaints of job performance
and visitors entering plant unauthorized." Fagundes com-
ments, as shown on the form, were that he was trying to
do his job as best as he could; that he sometimes dis-
agreed with the operator and thought the operator did
"stupid things"; that he would tell his girl friend to use
the front entrance from now on. Wade's comments, as
shown on the form, were that Wade told Fagundes to
make an effort to cooperate and to try to get along with
people, rather than hinder his crew; that he explained the
reason for the rules, and that Fagundes would be sent
home if Fagundes' girl friend entered the plant unauthor-
ized; and that Wade had spoken to Fagundes' girl friend.
The "Action Taken" portion of the form indicates
"warning."
Introduced into evidence as Respondent's Exhibit 1
was a copy of a "Record of Discussion" dated Septem-
ber 23, 1982, and involving Fagundes, signed by Supervi-
sor Wade. Fagundes at the trial did not think that he had
seen the document prior to that time, but Fagundes
thought it was an accurate summary of what had been
said. The reason for the conference as stated on the form
was "poor performance and disputes with operators."
Fagundes' comments, as shown on the form, were that
he was doing a good job; no one had told him otherwise;
and he did not think he had problems with the operators.
Wade's comments, as shown on the form, were that Fa-
gundes felt he had done everything correctly; that Wade
told Fagundes about the problems which the operators
had related to Wade, and how Wade felt about Fa-
gundes' performance after Wade had observed him; that
Fagundes had problems with his work and his attitude.
The "Action Taken" portion of the form states, "warn-
ing that next problem could result in 3 day layoff."
In December 1982, Fagundes worked for about 1-1/2
weeks in training as an operator on the tuber 1 machine
with Hall. Supervisor Wade asked Hall how Fagundes
was doing. Hall told Wade "he didn't really give it his
best shot to get in and learn." At the trial, Hall expressed
the opinion that the desire of Fagundes had changed
after Fagundes was promoted to the operator's position
because Fagundes began to ask Hall questions about the
machine. However, Hall did not talk with any supervisor
regarding the change in his opinion.
In January 1983, Fagundes began attending a class at
the College of the Sequoias in Visalia, California. He
began studying to be an emergency medical technician.
The class was scheduled to be held from 6 to 10 p.m. on
Tuesdays from January to May 1983. No absences from
class were permitted because a certain number of hours
of training are required in order for a person to be certi-
fied in the EMT position. Fagundes acknowledged at the
trial that his desire was to acquire a certificate as an
EMT, and he had planned to leave his employment with
the Respondent after he had achieved EMT status and
obtained a job in that capacity. About the beginning of
January 1983, Fagundes informed Plant Superintendent
Robert Pease that Fagundes was attending the EMT
class. At that time Fagundes asked Pease about the defi-
nition of a medical term which appeared in one of Fa-
gundes' textbooks.
When Lamar Barnes went on vacation in January
1983, Fagundes filled in for Barnes as an operator on the
tuber machine. At the time, Fagundes was the senior
shafter.
Introduced into evidence as General Counsel's Exhibit
9 was a copy of the Employer's evaluation of Fagundes'
job performance during the week of January 24-29,
1983. The evaluation was made by Supervisor Wade.
The form indicates ratings of "below average" in the cat-
egories of "Attitude/Initiative" and "Job Awareness and
Capability to Perform Job." Fagundes' strong point was
stated to be that he "shows up for work on time." His
areas requiring improvement were stated on the form to
be: "Set-up procedures; takes twice the time to set-up
machine. Shows little initiative to get the job done. Does
not control or lead his crew. Uses very little common
sense when trying to find what the causes are to prob-
lems he encounters. Production has been cut in half
when Fagundes runs machine."
B. The Events Pertaining to the Change in the
Employment Position of Fagundes on February 7,
1983
In June 1981, meetings were held by the Respondent
with its employees for the purpose of explaining the
Company's new promotion policy, which became effec-
tive on July I, 1981.
According to Plant Superintendent Robert Pease, the
30-day probationary period applies when an employee
goes into an entry level job. Afterwards, there is no 30-
day probationary period as the employee moves up the
line of progression. Pease said that the Company's pro-
motion policy was posted on the bulletin board.
Introduced into evidence as General Counsel's Exhibit
20 were copies of pages I and 7 of the Respondent's
"Hanford, California, Plant Rules and Regulations, Equal
Employment Policy," dated July 1981. Page 7 pertains to
"Promotions." The headings of other sections on pages,
which were not included in the exhibit, are set forth in
the parties' stipulation. The section entitled "Promo-
tions" states:
The Company will afford an opportunity for pro-
motion to higher base rated jobs that have been
newly created or become permanently open in the
Plant. When filling a permanent vacancy other than
Entry Level Jobs, the Company shall post appropri-
ate notice for 24 hours advising of such vacancies.
If an employee has the ability and qualifications
and wishes to be considered for the promotion, he
or she should sign the notice posted on the bulletin
board advising them of the vacancy.When the quali-
fications and ability of two employees who wish to
be considered for the promotion are relatively
equal, Seniority shall prevail. The Company shall be
the judge of an employee's qualifications.
When an employee is selected for a promotion,
he will be granted a Trial period of up to a maxi-
mum of thirty (30) days. If, during this Trial period
384
CHASE BAG CO.
Management determines that the employee is unsuit-
ed for the job, he will be returned to his old job
without loss of Seniority.
When no qualified employee indicates a desire to
fill a job vacancy or when trained personnel are re-
quired or available, these positions will be filled
from other sources.
The parties stipulated that there were documents pro-
mulgated by the Company on or about July 1, 1982, and
July 1, 1983, with the same title as General Counsel's
Exhibit 20. Those documents contained the same subject
headings and the same "Promotions" policy as set forth
in General Counsel's Exhibit 20. The 1980 document
promulgated by the Company contained the sections and
headings, as reflected in General Counsel's Exhibit 20,
but the 1980 document did not contain any of the lan-
guage on "Promotions."
When Lamar Barnes did not return to work from his
vacation, Supervisor Wade attempted to contact him. On
Wednesday afternoon, February 2, 1983, Wade spoke
with Barnes' wife who informed Wade that Barnes had
gone back into the Navy and that Barnes would not be
working anymore for the company.
The next day, Thursday, February 3, 1983, Wade
talked with Fagundes where Fagundes was working at
the tuber 4 machine. Wade told Fagundes that "his
chance had come, he was going to become an operator."
Wade told Fagundes that he would be promoted to the
operator's job and that Fagundes would be required to
work the night shift. Fagundes replied that he did not
want to work on the night shift. Wade said that Fa-
gundes would have to do so and explained to him, "I'm
sure a lot of people don't want to go nights, but we have
to have somebody to do the job on nights." At that point
Fagundes told Wade that he was attending school, and
Wade suggested that Fagundes might be able to arrange
a swap with Helmuth so that Fagundes could remain on
the day shift until his school was over. Wade also told
Fagundes that the job was in his line of progression, and
that Fagundes had to accept the promotion to that job.
At the trial, Wade explained that Fagundes had to go on
the night shift because Fagundes was the junior operator.
Helmuth, who had been an operator on the night shift,
wanted to change to the day shift. Wade denied that he
had told Fagundes that Fagundes would be on a 4-week
probationary period, but Wade said that he did tell Fa-
gundes that Wade would fill out a probationary progress
report on Fagundes and, "I told him that he had 30 days
to get in there and do the job."
Prior to his promotion to be an operator on the tuber
I machine, Fagundes had held the position of being a
shafter on the tuber 4 machine. When Lamar Barnes had
begun his vacation in January 1983, Fagundes acted as
an operator on the tuber 4 machine. Before Fagundes
was promoted to be an operator on the tuber I machine,
Helmuth and Hall were the operators on different shifts
on the tuber I machine. The Employer's day shift went
from 7 a.m. to 3:30 p.m., and the Employer's night shift
went from 3:30 p.m. to midnight. Fagundes asked Hel-
muth to trade work shifts with him because Fagundes
was attending school on Tuesday nights. Helmuth, how-
ever, refused to do so. Helmuth explained at the trial,
"No, because I wanted to get back on the day shift."
On February 3, 1983, Horace Herring was a puller. He
was changed from the day shift to the night shift. Wade
explained at the trial that Herring became the junior
shafter when Fagundes was promoted to operator. The
senior shafter, who had been working on the night shift,
wanted to change to the day shift. Therefore, Herring
was changed from the day shift to the night shift to
work as a shafter.
On Friday, February 4, 1983, there was a conversation
between Fagundes and Plant Manager Wellford Garrett.
Fagundes testified, "I asked him what would happen if I
declined the job position as tuber operator, and he told
me I wouldn't have a job." Fagundes asked Garrett why,
and he was told "because I was-I was next in line of
progression."
Fagundes acknowledged at the trial that he began the
job of being an operator with the feeling that the Com-
pany was out to get him. In Fagundes' view, he had in-
sufficient prior training and experience on the machine in
order to operate it properly, and the Company was put-
ting him into that job in order to fire him. Fagundes
asked Wade if he could return to the shafter's job, and
Wade told him, "No, you can't go back." During one
conversation between Fagundes and Wade, Fagundes
told Wade that it did not matter what he did because
they were out to get him. According to Wade, he re-
plied, "That's not true, John. All you have to do is do
your job and you will have no problem."
Fagundes became an operator on the tuber I machine
on Monday, February 7, 1983. He worked in his new job
classification for only I week before he chose to take a
2-week vacation from Monday, February 14 to Monday,
February 28, 1983. During that 2-week vacation, Fa-
gundes unsuccessfully sought employment with other
employers.
Davis was the supervisor of Fagundes while Fagundes
was working as an operator on the tuber I machine on
the night shift. Davis described the tuber machine as one
that "takes rolls of paper and converts them into a tube
which can be bottomed into a cement bag."
Davis described the duties of a tuber machine operator
as follows: "He watches the machine and makes sure it
makes good bags, makes adjustments on the machine,
keeps glue in the pans, sets the machine up along with
the crew. It takes three people to run the tuber." The
other two jobs besides the operator are the stacker and
the shafter. Davis said that a shafter "Shafts roll of
paper.... That means he takes a metal shaft, puts it in
the roll, puts it on the machine. That's one of his job
functions.... Well, he does the same as the operator.
He checks the bag, helps set the machine up, makes ad-
justments when needed, helps spread the machine, puts
the glue in the pans." Davis said that a stacker stacks the
bags after they come from the tuber machine.
Davis further explained with regard to the tubes,
"They are closed by a different machine called the bot-
tomer, which folds the bottom and puts glue on it and
seals it."
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The tuber 4 machine makes a different type of bag,
which Davis described as being a "sewn open
mouth.... They have gussets, and [there are] spots in
one end, and they are sewed across the bottom."
With regard to comparing the complexity of the tuber
I machine with the tuber 4 machine, Davis said, "It's
more modern. I would say it's a bit more complex, but
it's a lot more easy to work with." Helmuth has worked
as an operator on all four of the tuber machines. For the
past 2-1/2 to 3 years, Helmuth has been an operator on
the tuber I machine. In his opinion, the tuber I machine
is more difficult to operate than the tuber 4 machine. In
Helmuth's opinion, the tuber I machine is easier to oper-
ate than the tuber 2 machine because the tuber I ma-
chine is a newer machine. In the opinion of David Hall,
who has worked as an operator on both the tuber 1 ma-
chine and the tuber 4 machine, the tuber 4 machine is
easier to operate. In Fagundes' opinion, the tuber 1 ma-
chine is a more difficult machine to operate than the
tuber 4 machine.
C. The Events Pertaining to the Written Warning to
Fagundes on February 9, 1983
Introduced into evidence as General Counsel's Exhibit
12 was a copy of the Employer's "Rules of Conduct" ap-
plicable to its employees. The parties stipulated that
these rules have been in effect since 1979 when the plant
opened. Among other things, the plant rules are listed as
"Group I" rules, for which the discipline for a first of-
fense is discharge, and "Group II" rules, for which the
discipline for the first offense is a written warning. The
discipline for a second offense against "Group 11" rules
is another written warning and a layoff. Discharge is the
discipline for a third offense. Rule number 2 under the
"Group II" category is "Leaving the department or
building during working hours without receiving permis-
sion from the Foreman or the Superintendent's office."
There were two earlier occasions when Fagundes had
left work at the Respondent's plant. On both of those oc-
casions, Fagundes had permission from his supervisor to
do so. Sometime in 1981, Fagundes became ill while he
was at work. Fagundes testified that he spoke with Su-
pervisor Nowak. He told him, "That I didn't feel good
and, you know, I wanted to go home. And he said he
could see that I didn't feel good, he told me to go
home." Sometime in 1982, Fagundes told Wade that he
had an appointment to visit an eye doctor, and had to
leave work early. Fagundes testified, "I think he asked
me what time I'd be back because I came back later on,
and he asked me what time, you know, how long I'd be
gone, and I told him. And he said 'okay.' I think that
was it."
On Monday, February 7, 1983, Fagundes spoke to
Plant Superintendent Pease about leaving work. Pease
told Fagundes to talk with his supervisor. Fagundes then
spoke with Supervisor Wade, and Wade told Fagundes
to talk to his supervisor. Fagundes next spoke with Su-
pervisor Davis and told him that he had to leave work
early on Tuesday in order to attend his night class.
On Tuesday, February 8, 1983, Fagundes again spoke
with Supervisor Davis. According to Fagundes, Davis
told him that Davis did not have anyone to replace Fa-
gundes and that Davis did not know what he was going
to do.
Fagundes designated the shafter on the machine to op-
erate the machine in Fagundes' absence. Fagundes saw
Supervisors Davis and Pete Simmons standing by the
clock in the middle of the plant and walked over there.
Fagundes testified:
Q. And what did you tell them?
A. I told Ed Davis I was going to leave for my
class now.
Q. And what did he say?
A. He said, "I wouldn't leave if I were you."
And then I said, "Well, I got to go." And he said,
"Well, like I said, I wouldn't leave," and then I
turned and walked away.
Q. What did you think he meant when he said, "I
wouldn't leave if I were you."
A. It seemed like he was testing me, you know,
to see if I would really or not.
Q. And you were going to show him that you
were going to leave.
A. Yes.
Q. So you walked out and punched out.
A. Well, I walked over to the machine and I
filled out my card for that day and then I-then I
punched out.
Q. What did he tell you as you were leaving?
A He told me that I should call Bob Pease at II
o'clock tomorrow.
Q. So at the time you left, you understood that
you did not have permission to leave.
A. No, I didn't understand that.
Q. What did you understand?
A. I just-I just understood that he-it seemed
like he was testing me, you know, to see if I would
leave or not. He never came out and said I couldn't
leave.
Q. You knew he didn't want you to leave,
though.
A. Yes.
Q. And he didn't have a replacement.
A. No, I didn't know about that. He just said he
didn't know what he was going to do.
Q. Well, you knew he didn't have anything lined
up through-at that point, that he didn't have any-
he didn't know what he was going to do, at least.
A. I didn't know what he was going to do, no.
Q. And he didn't-he told you he didn't know
what he was going to do to replace you.
A. Yes.
As a result of the foregoing, Fagundes formed the
opinion that the Company was going to terminate him.
Fagundes acknowledged at the trial with regard to
Davis' comments to him, "No, he never came out and
said I had permission. No."
The next day Fagundes telephoned the plant and
spoke with Plant Manager Garrett, who informed him
that Plant Superintendent Pease was off that day. After
Fagundes arrived at the plant, he had a conversation
386
CHASE BAG CO.
with Garrett and Davis. Garrett asked Fagundes wheth-
er he wanted a full-time job or a part-time job. Fagundes
replied that he wanted a full-time job. Garrett asked
what he was going to do about it, and Fagundes in-
formed Garrett that the previous night had been his last
class and that he had dropped out of the course. Garrett
said, "Okay." Davis told Garrett that Davis had told Fa-
gundes not to leave, and Fagundes told Garrett that
Davis had said that Davis would not leave if he were
Fagundes. According to Fagundes, Davis "said that he
told me not to leave. And he said that him telling me
that he wouldn't leave if he were me meant not to
leave." Fagundes responded that he had not taken that
meaning of what Davis had told him, and that Davis
"should have just come right out and said 'Don't leave."'
Introduced into evidence as General Counsel's Exhibit
3 was a copy of the Employer's "Record of Discussion,"
which is dated February 9, 1983, and which pertains to
Fagundes. The document was prepared by Davis and
signed by Davis and Fagundes. The document indicates
that it is a written warning. It states as the "Reason for
Conference" that Fagundes left work after being told not
to do so. Fagundes' comments on the form were that he
did not realize that he was not excused from work.
Davis' comments on the form were that, if Fagundes left
work without permission, he would assume that Fa-
gundes had quit, and that Fagundes was a full-time em-
ployee and not a part-time employee. The "Action
Taken" shown on the form is "written warning." It was
stipulated that Fagundes received a copy of General
Counsel's Exhibit 3.
Introduced into evidence as General Counsel's Exhibit
6 was a copy of a "Record of Discussion" prepared by
Davis. It is dated February 8, 1983, and it relates Davis'
version of his conversation with Fagundes on that date
with regard to Fagundes' request to leave work early
that day to attend school. The document itself is not al-
leged to be a warning given Fagundes in violation of
Section 8(a)(l) of the Act. Instead, General Counsel's
Exhibit 3, which is dated February 9, 1983, is the warn-
ing in issue with regard to this matter.
Fagundes acknowledged at the trial that he was the
only tuber operator who was working on the night shift
on February 8, 1983, and that there was no other tuber
operator available to replace him that night.
Introduced into evidence as General Counsel's Exhibit
10 was a copy of the Employer's evaluation of Fa-
gundes' job performance during the week of February 7-
11, 1983, prepared by Davis. The form indicates "below
average" ratings in the categories of "Attitude/-
Initiative" and "Job Awareness and Capability to Per-
form Job." Davis indicated his view on the form that Fa-
gundes had no strong points. As to the handwritten nota-
tions under the heading of "areas requiring improve-
ment" the photostat submitted in evidence at the trial is
not clear.
D. The Events Pertaining to the Verbal Warning to
Fagundes on March 4, 1983
Introduced into evidence as General Counsel's Exhibit
7 was a copy of the Employer's "Record of Discussion,"
dated March 4, 1983, pertaining to Fagundes. The docu-
ment was prepared and signed by Davis. It indicates that
a verbal warning was given. The "Reason for Confer-
ence," as shown on the form, was that Fagundes had run
two pallets of approximately 6000 tubes with "no spots."
Fagundes' comment, as shown on the document, was
that he was checking them. Davis' comments on the
form were that he told Fagundes that he had better start
watching the tubes more closely, and that there was no
excuse for running that many bad tubes. Davis also com-
mented on the document that Fagundes had run bad
tubes every day that week with "no spots, no slits, stuck,
etc." Davis' further comments on the form were that Fa-
gundes had been told that this would not be tolerated.
At the trial, Fagundes acknowledged his mistake in
producing approximately 6000 tubes with no spots. Fa-
gundes also acknowledged that the glue trays had run
low and that some of the bags did not have glue spots on
them. He said that the method for reclaiming those bags
was that "people have to go through by hand on each
bag and put glue in it where it needs it."
Introduced into evidence as General Counsel's Exhibit
11 was a copy of the Employer's evaluation of Fa-
gundes' job performance during the week of March 4,
1983, prepared by Davis. The form indicates "unsatisfac-
tory" ratings in the categories of "Attitude/Initiative"
and "Job Awareness and Capability to Perform Job."
Davis has notations attached to the form that:
John is not able to run #3 tuber. He has no experi-
ence and no ability on this machine. Just waste. 3-4-
83 John had trouble with set-up. After scoping out
the situation, I found he forgot to set main drive
gears to correct size. He had already broke the
paper stimes. [Emphasis added.]
As to his strong points, Davis indicated, "John is not
afraid to run the machine at a high rate of speed. (Tubes
aren't always good)." As to areas which required im-
provement, Davis indicated, "John needs work on run-
ning good tubes. He watches closely but he's not sure
how to fix most problems yet. John needs to improve his
ability to make people work for him. Sometimes I think
he just doesn't take his job serious."
E. The Events Pertaining to the Written Warning to
Fagundes on March 9, 1983
The parties stipulated that on March 9, 1983, Fagundes
spent 2 hours finishing an order which had been begun
on the day shift. In completing that order, Fagundes ran
8779 units. He then had 3 hours of setup time for another
order. He spent 3 hours running that order, and he ran
14,154 units.
Fagundes acknowledged at the trial that he had a
problem with "loose walls" on bags he had run on
March 9, 1983. After his machine had been running for
an hour or 2 hours, the stacker told Fagundes about the
problem with the loose walls on the bags. Fagundes said
that he tried to correct the problem by making different
adjustments and by slowing the machine, but later some
bags still were being produced with loose walls. He
spent about 15 minutes doing the foregoing adjustments.
Then Fagundes asked Davis for help. Fagundes testified:
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I asked him for help at one point. And he told
me I should know how to do it. And he let me do it
myself. He told me I should know how to fix it by
now. And he left and he left me there to try to
solve the problem. And he came back later, and I
still had the problem, which I had the machine run-
ning slow, and I was still trying to fix it.
And he just went over there, and he made an ad-
justment and got rid of it.
Fagundes estimated the time lapse between the time he
spoke to Davis and the time that Davis returned to be 15
or 20 minutes. After Davis made the adjustment, Fa-
gundes said, the problem did not recur.
Introduced into evidence as General Counsel's Exhibit
4 was a copy of a "Record of Discussion," dated March
9, 1983, pertaining to Fagundes. It was prepared by
Wade and signed by him. It indicates that it is a written
warning, and gives as the "Reason for Conference" the
following: "Poor performance, excessive waste, poor
production and lack of concern for the job." Fagundes'
comments on the form were that he was doing every-
thing that he could do, and that he looked at the bags all
the time. Wade's comments on the form were that Fa-
gundes' attitude was very poor; that Fagundes did not
seem to care about the quality of his performance as a
tuber operator; that his poor production and high waste
were costing many dollars; that the cost of producing
bags rose when they had to reclaim bags made by Fa-
gundes; that when Fagundes went on vacation and Vil-
lanueva ran the machine most of the problems with the
bags disappeared, although Villanueva had been in the
tubing department a shorter period of time than Fa-
gundes. Wade indicated on the form that he had asked
Fagundes if he wanted to be an operator, and Fagundes
had replied "yes." Wade asked Fagundes why he did not
do a better job, and Fagundes replied that he did not
know. Wade also stated on the form that he told Fa-
gundes that this was a written warning and, if Fagundes
did not improve, he would no longer be an operator.
At the trial, Wade explained that he had heard rumors
as of March 9, 1983, that, if Fagundes was terminated by
the Company, Fagundes would take the matter to court.
As a result of those rumors, Wade said that he told Fa-
gundes, "I'm not afraid to go to court, but you're going
to do the job. That's the only thing I ask of you."
It was stipulated by the parties that Fagundes received
a copy of General Counsel's Exhibit 4.
At the trial, Fagundes said that he had checked the
bags on that occasion "about every half hour" until he
realized that he was producing bags with loose walls.
Fagundes said that 30 minutes was the minimum time for
an operator to check the bags. He stated, "You could
check them more frequently. I mean, I didn't check ex-
actly half hour. It could be 20 minutes, 40-." After Fa-
gundes became aware of his problem in producing bags
with loose walls, he said, "I did check more frequently."
According to Davis, an operator is supposed to check
the bags coming out of the tuber machine every 2 or 3
minutes. Every 30 minutes an operator signs the back of
his timecard and checks a completely folded bag.
As to how often an operator is supposed to check the
bags, Helmuth stated, "There's no set time. I check the
bag about every-sometimes I will go up to 5, 10 min-
utes without checking a bag, but I try to [do] more than
that. I usually do it about every couple of minutes, I try.
I'm usually standing right there, though, unless I'm off
doing something else."
The next day, March 10, 1983, Fagundes had a con-
versation with Davis and Wade. Fagundes testified:
A. I was-we were setting up a machine. It was
an hour after I came in, about 4:30, and we were
setting up the machine. And Ed Davis came out,
and he said, we're going to go to the office, and he
took me into Jim Wade's office, and Jim Wade, he
told me that I was making too many bad bags and
my set-up time was too long, and that I had to do a
better job.
And he was telling me how David Villanueva
had operated the machine, the same machine I was
operating while I was on vacation, and how he had
done a better job than I did. And he said I should
be able to do a better job because I had been there
longer than Villanueva had.
And I told him that Villanueva has been on the
machine longer than I have and, you know, but he
said, again, that I'd been with the company longer,
and I should know how to run it. And he said I had
to do better, or I'd be out the door.
According to Fagundes, the bags with the loose walls
were interspersed with good bags. He explained at the
trial, "Because every, every bag wouldn't be bad.
There'd be good ones, then bad ones, good ones. That's
why they had to reclaim them. They had to go through
by hand and sort the bad ones from the good ones."
Tom Emerson, who was the bottomer supervisor,
called Wade's attention to the bags which Fagundes had
produced with loose walls. As a result, Wade and Pease
went through the 14,000 bags and pulled out those bags
which had loose walls. Wade estimated at the trial that
there were 6000 to 7000 bags with loose walls. He said
the loose wall bags were interspersed with the good
bags. Wade stated, "It was a problem that came and
went." Wade estimated that it took them 3 to 4 hours to
go through the bags Fagundes had produced and locate
the bags with loose walls. Wade stated that nothing can
be done to reclaim bags with loose walls, and such bags
are turned into waste. According to Wade, other than
the incident involving the application of Stack-Aide on
the bags by Villanueva, there have not been any inci-
dents, in which bad bags had to be destroyed, of a larger
number of bags than had occurred with Fagundes.
F. The Events Pertaining to the Termination of
Fagundes on March 10, 1983
Wade said that he recommended to Plant Superintend-
ent Pease Fagundes be terminated. At the trial, Wade
gave as the basis for recommendation the following:
Well his continuing lack of attitude in running
the machine. With the ability he had, he could do
388
CHASE BAG CO.
the job, but he wouldn't do it and kept running
waste, and then when [he] ran that excessive
amount of tubes that we couldn't save, then I-I
had reached the end of my rope, so I recommended
we terminate.
Pease said that he was the one who made the decision
to terminate Fagundes on March 10, 1983. With regard
to the meeting at which Fagundes was terminated, Pease
testified:
A. John came in, and it was John, Supervisor
Wade, and myself. I-I told John that we were ter-
minating him and-for poor job performance. And
John didn't have any comment at that time, didn't
say anything. And he-I explained the card to him.
I was filling out the termination card, and I ex-
plained it to him, and let him read it. He read it,
and I indicated that if he felt that-if that, you
know, if there was any reason that he didn't agree
with that, why, then there was an area in the card
that he could fill out. And he said, "No. It's been
nice knowing you." I-it's a ... it's not a very nice
moment. I don't really care for those things. I indi-
cated to John-I'd worked with this man for-for
some time. I indicated to him that-that he could-
that I had heard that he was looking to drive-a job
driving an ambulance. And he indicated, I believe,
by nodding his head. And I said, "Maybe you can
pursue this job then." And I think he said,
"Maybe."
Pease acknowledged at the trial that Fagundes' earlier
difficulty in getting along with Horace Herring was not
relied on in terminating Fagundes. Pease agreed that that
matter was "water under the bridge." Similarly, Fa-
gundes' interactions with other employees were not dis-
cussed in making the decision to terminate Fagundes.
Introduced into evidence as General Counsel's Exhibit
5 was a copy of the Employer's "Record of Discussion,"
dated March 10, 1983, pertaining to Fagundes. The doc-
ument was signed by Pease, Wade, and Fagundes. It was
stipulated by the parties that Fagundes did not receive a
copy of the form. The "Reason for Conference," as set
forth on the document, was "unsatisfactory job perform-
ance." Fagundes' comments, as shown on the document,
were: "OK, it's been nice knowing you." Pease's com-
ments, as shown on the document, were:
John was told that we could no longer tolerate his
mistakes as an operator. John was told that not only
his Supervisors but the people he worked with and
directed felt he had a "don't care" attitude. This at-
titude was most evident on 3/9/83. John ran 14,000
bags. Approximately 6,000 bags were thrown away
with loose walls. This was one incident. There have
been others just as costly.
"The Action Taken" set forth on the document was "ter-
mination effective 3/10/83."
Introduced into evidence as General Counsel's Exhibit
8 was a copy of the Employer's "Record of Discussion,"
dated March 10, 1983, pertaining to Fagundes. It was
prepared and signed by Wade. "The Reason for Confer-
ence," as shown on the document, was: "poor job per-
formance, ran approximately 6100 bad tubes, 4200's of
waste." The comments of Fagundes, as stated on the
form, were: "I watched the bags. Saw nothing wrong. I
guess it's OK. It's been nice knowing you." Wade's com-
ments, as shown on the form, were:
After giving John a written warning about his job
performance on 3-9-83, he ran 14,000 tubes of
which 6100 of them had loose walls and were un-
useable. When asked why he ran the bad tubes, he
replied, "I don't know." He was then told that
Chase Bag could no longer afford his mistakes, and
he was being terminated. He just smiled and said,
"OK." When Mr. Pease showed him [his] termina-
tion card, he signed it and chose not to disagree in
writing with the reason for termination. Mr. Pease
made [a] point of telling him he could disagree with
the reason for termination by filling in his reason at
the bottom of the card and sign it. Fagundes chose
not tol! I then told John that if things were going to
get better for him in pursuing a career that he
would have to change his attitude towards perform-
ance of any job he may choose to take. He then
shook my hand and said, "It's been nice knowing
you."
General Counsel's Exhibit 22, which is the Employer's
employment record for Fagundes and which has been re-
ferred to earlier in section V,A herein, indicates that on
March 10, 1983, Fagundes was "discharged, unsatisfac-
tory job performance."
Introduced into evidence as General Counsel's Exhibit
16 was a copy of the Employer's form entitled "Termi-
nation of Employment," dated March 10, 1983, pertain-
ing to the termination of Fagundes. The reason for his
termination, as stated on the document, is "unsatisfactory
work performance." The document is signed by Pease.
Underneath Pease's signature is printed, "I agree with
the above statement of the termination of my employ-
ment." Underneath that printed wording is Fagundes'
signature. Underneath that is printed: "EMPLOYEE
PROTEST- If the employee disagrees with the above
statement, he should write out and sign his own account
of the reason or cause of the termination of his employ-
ment." The foregoing printed statement is distinguishable
from other printing on the document in that it has
double lines above it and beneath it. The lines are close
together and heavier than the other lines on the docu-
ment. Underneath that wording is printed, "the reason
for the termination of my employment is." Thereafter are
blank spaces and a place for the date and signature of the
employee.
G. The Events Pertaining to Certain Other Employees
1. Leo Acevedo
Leo Acevedo, a tuber operator at the Respondent's
plant, served a 30-day probationary period which he
passed. Hall, recalling at the trial that he had one con-
versation with Acevedo regarding his job performance,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified, "His basic problem was that he didn't listen
well, or if he listened, he wasn't listening close enough
to, you know, like when you showed him something, he
may not have been watching as close as he should have."
As a result, Hall said Acevedo had made a few bad bags.
Hall explained at the trial, "He made a few, not to the
point where it was an excessive amount, but he did have
a few, yes."
At the time of the trial, both Helmuth and Acevedo
were working as operators on the tuber 1 machine, but
they worked on different shifts. Acevedo had become an
operator after Fagundes had been an operator. Helmuth
was of the opinion that Acevedo was still in training
"because he doesn't appear to know the machine good
enough to not be in training." Helmuth said that he
would have to correct adjustments on the tuber I ma-
chine when Helmuth came into work after Acevedo had
operated that machine. Helmuth also observed bad bags
that had been produced by Acevedo. As to the quantity
of such bags, Helmuth said that there were "sometimes a
pallet or more." Helmuth said that, recently prior to the
trial, Acevedo had run about 3000 bags with loose walls.
2. Ron Branson
The parties stipulated that Ron Branson went from the
position of a baler/stacker to a bottomer/feeder or
helper on October 22, 1979. The parties further stipulat-
ed that on May 18, 1981, Branson went from the position
of bottomer/feeder to the job of paste cooker.
3. Tim Branson
Introduced into evidence as Respondent's Exhibit 6
was a copy of a "multiwall Probationary Personnel
Progress Report" for Tim Branson. The report is for the
week of August 16, 1982. The report lists Branson's posi-
,tion as "press helper," and the report indicates that it
was for the first week of Branson's probationary period.
4. Linda Cockran
Introduced into evidence as Respondent's Exhibit 12
was a copy of the Employer's termination of employ-
ment which pertains to Linda Cockran. The document is
dated September 22, 1981, and it indicates the Employ-
er's reason for the termination of Cockran was "does not
maintain production required. Does not adhere to quality
standards."
5. Sheila Combs
Introduced into evidence as Respondent's Exhibit 15
was a copy of the Employer's termination of employ-
ment which pertains to Sheila Combs. The document is
dated December 6, 1979, and it indicates the Employer's
reason for the termination of Combs was "job perform-
ance and absenteeism."
6. Kemp Conley
Introduced into evidence as Respondent's Exhibit 11
was a copy of the Employer's termination of employ-
ment which pertains to Kemp Conley. The document is
dated August 3, 1979, and it indicates the Employer's
reason for the termination of Conley was "because of in-
efficiency. By not taking his job seriously, and horse
playing around during working hours. I have talked to
him several times about his problems. Did not see any
change in his work. My decision is to terminate him."
Plant Superintendent Pease believed that Conley had
worked for the Company for possibly 2 or 3 months.
Conley worked in the press department.
7. Charles Garcia
The parties stipulated that Charles Garcia signed on
December 10, 1981, a document whereby he passed up a
job of tuber helper in favor of Tim Vandermoren.
Prior to his testifying at the trial, Wade weighed two
of the roll shafts. He said they weighed 84 lbs. and 94
lbs. These were shafts from the tuber 1 machine and the
tuber 4 machine. The tuber I shaft was the heavier.
Wade said that he had assigned Charles Garcia tempo-
rarily to the roll shafter's job, but Garcia "was unable to
handle the shafts. They weigh too much for him." Ac-
cording to Wade, Garcia "was trying, but he couldn't
handle it. He dropped the shafts a couple [of] times and
almost lost his balance in the machine."
With regard to permitting Charles Garcia not to move
into the shafter position, Pease said he had explained
Garcia's situation to Fagundes.Pease testified:
A. I told him that Chuck is physically unable to
handle the helper job. Chuck is a stacker. And I
told John that he- I'm sure that John knows this
and understands it, Chuck is not physically able to
lift-there's some shafts, they're called roll shafts.
You stick 'em through a eighteen to two thousand
pound roll. They set in a cradle. When the paper
runs out, you're required-the roll shafter is re-
quired to physically lift the shaft out of the cradle
in a standing leaning position, turn, move out of the
cradle area into a rack where you lay it down.
Chuck had attempted to-to do this, and he indicat-
ed to us that it was a little bit too much for him. It
was obvious to us that-was the case. We were-
were fearful that-that if we allowed him to do it,
he was going to damage himself.
8. Fred Gilbert
The parties stipulated that on November 26, 1979,
Fred Gilbert went from the job of baler/palletizer to the
job of bottomer/helper.
9. Robin Gilbert
Introduced into evidence as Respondent's Exhibit 17
was a copy of the Employer's termination of employ-
ment which pertains to Robin Gilbert. The document is
dated October 16, 1979, and it indicates that the Employ-
er's reason for the termination of Gilbert was "absentee-
ism [and] attitude towards her employment and people
around her." Pease said that Gilbert had worked in the
bottomer department.
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CHASE BAG CO.
10. Pedro Gomez
Introduced into evidence as General Counsel's Exhibit
17 was a copy of the Company's employment record for
Pedro Gomez. At the trial, Pease acknowledged that the
job of baler/palletizer was not in the line of progression
for Stand-Open-Sack (SOS) operators, which Gomez had
been. Pease explained at the trial.
A. No, it wouldn't have been. Maybe I can best
explain to you and kind of give you some, some
background.
Pete Gomez, his home was in Corcoran, which is
17, 18 miles from our plant. He had a problem with
getting to work. We counseled Pete, talked to him
on a number of occasions, and at one point told him
that if he did not come to work-he had moved up
through the ranks to an SOS operator-if he did
not come to work, we were going to have to termi-
nate him. We felt that Pete was a hardship case.
This was a man that was attempting, making a very
strong attempt to get to work, at some time he
would walk to work. Get halfway, his car would
break down, he would walk. He told me, he said,
"look, I know that I'm not gonna be able to keep
this job because I can't get to work. I am looking
for other employment in Corcoran." And he asked
me if I would allow him to go to a baler/palletizer
out of the-he did not regress the same way he
came up. He went completely out of the SOS area
to a baler. His wages were reduced. And if I would
allow him to stay there until he got another job.
There was a two month period there while he was
looking, and I allowed him to do this, yes. There
was a two month period that he was looking. He
found employment and terminated his employment.
11. Ralph Gonzales
Introduced into evidence as Respondent's Exhibit 9
was a copy of an authorization for a payroll change per-
taining to Ralph Gonzales. The document is dated June
23, 1981, and indicates that Gonzales was moved from
the job of baler/palletizer to press helper. According to
Pease, both the baler/palletizer job and the press helper
job are entry-level jobs in a line of progression. On
August 10, 1981, Gonzales returned to the baler/-
palletizer job, which was a demotion. (See the parties'
stipulation at Tr. 128 and 402.)
Pease explained at the trial:
We allowed him to go back, we didn't put him
back. Shortly after-again, the opening was on [the]
night shift, and Mr. Gonzales went to nights. And
shortly after that, he approached me and said that
he felt that he was going to have to terminate him-
self, and I asked him why. He said that since he had
went on nights, he-it was some-a problem with
his home and his family, there were some people
hanging around his house, and he was very con-
cerned about 'em. And I indicated to Mr. Gonzales
that I didn't-wasn't really interested in seeing him
terminate himself, a very good man, from a work
standpoint and other points. He-I indicated,
"Maybe you can work it out," and he said that he
would make an attempt. And he-evidently, he did.
He was unsuccessful. He came back to me and
then-and told me this, and asked if I would put
him back on baler, back into the entry level job, be-
cause if I was not able to, he would terminate. The
problem was that serious with his home that he
would give up his progression and pay to go back.
And I allowed him to do that.
On January 15, 1982, Gonzales passed up an SOS baler
position, which is a bid job. Gonzales bid on that job,
but he decided he did not want the job. He told Pease
that he wanted his name withdrawn. Therefore, Gon-
zales did not hold the job of SOS baler and did not enter
that line of progression.
On August 4, 1982, Gonzales again passed up an SOS
baler's job, which is a bid job. Gonzales was asked if he
wanted the job, and he said he did not. Pease said the
Company had Gonzales sign a paper to that effect. At
the time, Gonzales was not in a line of progression.
Pease said three other employees had signed similar
papers. He identified the other employees as being in-
spectors Evelyn Balan and Lena Loquette and employee
Charles Garcia.
12. David Hall
Hall was the most senior shafter at the time he was
promoted to be an operator. He was assigned by the
Company to operate the tuber 1 machine. He believed
that he was placed on a probationary period of about 30
days, but he was not told that, and he was not told what
would happen to him if he did not pass a probationary
period. He acknowledged at the trial that, when he was
an operator, he had made at the most 2000 bad bags at
one time. He was written up for doing so, but he was not
terminated by the Company.
Introduced into evidence as General Counsel's Exhibit
15 was a copy of a "Record Discussion," dated March
31, 1983, pertaining to Hall's work as a tuber operator.
The "Reason for Conference," as shown on the docu-
ment, was "3 pallets of tubes with side slitter missing."
Hall's comments, as shown on the document, were: "I
should have caught it. I messed up." The comments of
Supervisor Wade, as shown on the document, were: "I
told Dave that due to the location of the slitter you
should have seen it right away. We were able to save the
tubes by diamond o-ing the end with the missing slitter.
Talk less to stacker and watch the bags more carefully."
The "Action Taken" portion of the form states "discus-
sion only." (See also the parties' stipulation at Tr. 116.)
13. Fred Hansen
According to Fred Hansen, the line of job progression
in the bottomer department is stacker, feeder, and then
operator. Hansen worked as a palletizer for 3 months in
his initial job with the Respondent. Then he worked as a
bottomer helper.
Chuck Yeople is the one who informed Hansen just
before the start of a work shift that Hansen was to work
as a bottomer operator. Hansen told Yeople that he did
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not want the job, but Yeople told him that Hansen had
no choice. Hansen asked why he was being promoted to
the operator's position when he had no experience in op-
erating the machine and just barely enough experience to
know what the machine did. Hansen told Yeople that
Fred Gilbert, Bill Jackson, and Ronnie Bronson, who
were bottomer feeders, had more experience and more
seniority. Yeople told Hansen than none of them wanted
the job.
Hansen began working on October 6, 1980, as a bot-
tomer operator. It was 3 months later before Hansen
learned that he was serving a probationary period.
Hansen was informed at that time in a meeting with Su-
pervisors Tom Emerson and Davis that he had passed
his probationary period. Hansen testified, "Even Tom
Emerson said it was wrong for putting me in there, but
he had no choice since nobody else wanted the job,
nobody else had the mechanical ability to learn the ma-
chine."
Hansen continued to fill the bottomer operator's posi-
tion under Supervisor Davis who, in Hansen's opinion,
"was very, very lenient." Davis spoke with Hansen at
least once a week during Hansen's first 6 months as an
operator, and Davis told him that Hansen should learn
the machine; should realize when he encountered a prob-
lem; should have less downtime; should spend less time
on setups; and should be running the machine faster.
After Hansen had been a bottomer operator for several
months, Hansen went to Plant Manager Wellford Garrett
and asked to be put back in his former job of bottomer
feeder or in another position in the plant. Hansen testi-
fied:
Ed Davis had just pushed me too far. He was tell-
ing me to run the machine almost as fast as it would
go at times, and then we'd still be putting bad bags
out, yet he would not want me to fix it right. He
would want me to run the machine very fast, and
the inspectors and stackers would not have enough
time to stack the bags or pull the bad bags off.
They would just have to stack 'em on the floor.
Garrett told Hansen that he would talk with Supervi-
sor Emerson. The following day, Emerson spoke with
Hansen and told him there were no openings in the
feeder positions or in other positions, and for Hansen to
try to do the operator's job "for a little bit longer." Sub-
sequently, Emerson told Hansen that his feeder, Tim
Hall, was going to be made an operator, and Hansen
could fill that feeder position if he wanted to do so.
Hansen became a bottomer feeder once again on May 18,
1981. (See the parties' stipulation at Tr. 127.)
Hansen acknowledged at the trial that, since meetings
were held by management with the employees in June or
July 1981, he understood the policy of the Company was
that he would be required to move up from bottomer
feeder to bottomer operator if an opening occurred for a
bottomer operator's job.
According to Helmuth, Hansen was demoted from the
operator's job to the bottomer feeder's job because he
was not meeting the Company's production standards.
Introduced into evidence as Respondent's Exhibit 7
was a copy of a notice which was posted by the Compa-
ny on November 30, 1981. The notice stated, "There will
be an operator's job opening in the webber area. Those
interested please sign below." The signature of Fred
Hansen appears underneath that typewrtten notice. He
was the only one to bid on the job. However, Pease said
that Hansen was not given the job by the Company be-
cause Hansen already was in line of progression at that
time and not considered to be eligible. Therefore, the
Company opened up bidding to everyone when the
Company posted a second notice. A copy of the second
notice was introduced into evidence as Respondent's Ex-
hibit 8. Glen Magee and Kevin Thur bid on the job at
that time. Magee was selected.
14. Dale Harmon
Introduced into evidence as Respondent's Exhibit 14
was a copy of the Employer's termination of employ-
ment which pertains to Dale Harmon. It is dated No-
vember 16, 1979, and it indicates the Employer's reason
for the termination of Harmon was "poor job perform-
ance, Dale had difficulty keeping his mind on his job."
Pease believed that Harmon had worked for the Compa-
ny for 2 to 3 months before his termination.
15. Don Helmuth
When Don Helmuth was promoted in 1980 from the
job of shafter to the job of operator of a tuber machine,
he was the senior shafter at that time. His supervisor,
Bob Nowak, told him of his promotion, but Nowak did
not say anything to Helmuth about his being on proba-
tion as an operator.
Helmuth acknowledged at the trial that he had made
some bad bags when he was first training as an operator
on the tuber I machine. He described it as occurring
"more frequently than I'd like to see." When Helmuth
first became an operator, he ran 1500 to 2000 bags with
loose walls on the tuber 2 machine. That was the largest
number of bags with loose walls that Helmuth had run
on one shift. Such bags were just thrown away because
they were not reclaimable.
Since the termination of Fagundes, Helmuth has made
more than a pallet of bad bags. He said there were be-
tween 4000 to 6000 bags on a pallet. He was given a
written warning by Supervisor Wade for the incident,
which involved bags being made without a "slitter."
That was a correctible error according to Helmuth. Hel-
muth stated at the trial that the Union had told him that
the Union was going to file a charge with regard to the
written warning which had been give by the Company
to Helmuth. As a result, about a month after he had re-
ceived the written warning, Helmuth spoke with Plant
Manager Garrett, who told Helmuth not to worry about
it, and that he would take care of it with Wade.
16. William Jackson
The parties stipulated that William Jackson went on
February 3, 1980, from the positon of a baler to the job
positon of bottomer feeder. The parties further stipulated
that on April 13, 1981, Jackson went from the position of
392
CHASE BAG CO.
bottomer helper to the job of pressman in the press de-
partment on a temporary basis. Finally, the parties stipu-
lated that on May 18, 1981, Jackson became a permanent
pressman. (See the stipulations at Tr. 127-128.)
17. Glenn Magee
Introduced into evidence as General Counsel's Exhibit
19 was a copy of the Company's employment record for
Glen Magee. The document shows that Magee went
from the job of tuber puller to SOS operator on Decem-
ber 14, 1981. Pease said that Magee was still employed as
an SOS operator at the time of the trial. According to
Pease, the line of progression for the SOS operator posi-
tion was to go from SOS helper to SOS operator. How-
ever, on December 14, 1981, there was no one in the
SOS helper position. Pease explained at the trial that a
job bid was posted by the Company for the SOS opera-
tor's job. Introduced into evidence as Respondent's Ex-
hibit 8 was a copy of that document. Magee bid for that
job and received it.
18. Jacqueline McAlister
Introduced into evidence as Respondent's Exhibit 16
was a copy of the Employer's termination of employ-
ment which pertains to Jacqueline McAlister. The docu-
ment is dated October 26, 1979, and it indicates the Em-
ployer's reason for the termination of McAlister was
"cannot perform the job (inspector's tacker.)" Pease be-
lieved at the trial that she had worked for the Company
in the sew area, and that she had not worked for the
company for a very long time. The plant had opened in
July 1979.
19. Billy Munroe
Introduced into evidence as Respondent's Exhibit 10
was a copy of the Employer's termination of employ-
ment which pertains to Billy Munroe. The document is
dated October 22, 1981, and it indicates the Employer's
reason for the termination of Munroe was: "Bill could
not keep up with his assigned work, and chose to go
home after a discussion with his supervision on 10/22/81.
A review of Bill's work record and this incident had de-
termined his termination."
20. Gregory Pawlowski
Introduced into evidence as General Counsel's Exhibit
18 was a copy of the Company's employment record for
Gregory Pawlowski. The document reveals that Paw-
lowski went from the pressman's job downward to the
job of press helper on June 11, 1982. At the trial, Pease
explained:
A. Yes. Mr. Pawlowski graduated to a pressman,
and during the time he was a pressman, he was
coming to work one morning and-on his motorcy-
cle, and a truck pulled in front of him and he-he
hit the truck and flew off the motorcycle and into a
telephone pole. And there was extensive damage to
the head area. Mr. Pawlowski was in the hospital
for a number of months, not expecting to pull
through. He did. His doctor was in contact with us
at that time.
And his medical doctor and the psychiatrist had
been talking together. Mr. Pawlowski had some
fears. The psychiatrist contacted me and said,
"Look, would you be willing as an employer to
help this guy out?" And based upon his past record,
I said yes. He said "Mr. Pawlowski is, we feel is
going to do damage to himself, unless he is put back
in-he wants to pick up where he left off. That's
what he remembers. And he was happy, his home
life was happy, he had a good job, and so on. And
we feel if we put him back into that environment,
that we're going to be able to help him, and there
won't be a catastrophe," they were concerned
about.
We did that. The doctor indicated to me that he
was fearful. We brought him back into the plant,
and the very next visit, why, Mr. Pawlowski told
his psychiatrist that he was fearful of the equipment,
the equipment, he was scared of it. The doctor then
called me and said, "Is there anything that he can
do, and-because we feel he has to pick up where
he left off to-for a cure." And so we put him in as
a press helper. And he-we stuck him there. We
talked to the crew, told 'em about Mr. Pawlowski.
They accepted it because of, again, his past work
record. And he subsequently had received some
money from the accident, and he terminated him-
self.
21. David Ryburn
Introduced into evidence as Respondent's Exhibit 13
was a copy of the Employer's termination of employ-
ment which pertains to David Ryburn. The document is
dated November 16, 1979, and it indicates the Employ-
er's reason for the termination of Ryburn was: "David
does not always carry his part of the work load, result-
ing in dissension among his peers." Pease said that
Ryburn worked in the job of baler/palletizer.
22. Cecil Sellers
According to Helmuth, Cecil Sellers has received
warnings since the time of the termination of Fagundes.
Helmuth testified, "I know he's been written up a couple
of times. I'm not sure exactly what for or anything."
Sellers was still employed by the Company at the time
that Helmuth testified. Sellers was an operator on the
tuber 2 machine for 2-1/2 to 3 years. Then, Sellers was
an operator on the tuber I machine, and, finally, Sellers
was an operator on the tuber 4 machine at the time of
the trial.
23. David Villanueva
On March 14, 1983, David Villanueva was assigned to
be an operator of the tuber 1 machine on the night shift.
(See the stipulations at Tr. 128 and 402, and Tr. 145.) A
week or two later Villanueva asked Helmuth, who was
working on the day shift, to trade shifts with him be-
cause Villanueva was going to school at night. Helmuth
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Villanueva asked Pease and their supervisors for per-
mission to swap their work shifts. They received permis-
sion from the Company to do so, and they signed a doc-
ument whereby they agreed to stay on the shift for a
certain number of days. After Villanueva completed his
schooling, Villanueva and Helmuth swapped shifts once
again. At that time, Villanueva went back to the night
shift, and Helmuth returned to the day shift. Helmuth
was told by Garrett, Pease, Hall, Davis, and Wade that
Acevedo was still in training at the time under Supervi-
sor Hall, so he remained on the tuber I machine on the
day shift for about 3 more weeks before he went to the
night shift. About a month later, Supervisor Hall also
was changed to the night shift.
During the time that Davis was supervising Villanueva
as an operator, Davis had a verbal discussion with Vil-
lanueva regarding a mistake in applying Stack-Aide to an
order of bags. Davis testified:
A. Well, we ran a C & H Sugar bag and they re-
wrote the order a way they had never done it
before. And actually what happened is, it said, no
Stack-Aide which has special instructions, and if
they want Stack-Aide on a bag, they write the
word Stack-Aide in there. And if they don't, they
leave it blank. Well, they had wrote no Stack-Aide
in there, and I had checked off a bag and signed it
and was ready to run, and it had Stack-Aide on it.
But I had looked in the corner and seen just the
word Stack-Aide and not really paid that much at-
tention to what I'd read.
And I told [him] to run the machine, and he ran
it, and several thousands of the bags were bad be-
cause they had this substance on them. I had talked
with him about it because, you know, he had been
there and read the order with me, but I had to take
the blame for it because I had signed the order, and
read it, and told him to run it.
Introduced into evidence as Respondent's Exhibit 4
was a copy of the California & Hawaiian Sugar Compa-
ny order. At the trial, Davis acknowledged that he had
examined the C & H order prior to the bags being run,
that he knew that Stack-Aid was being applied to the
bags, and that he had approved Villanueva's running of
that order. Both Garrett and Pease spoke to Davis re-
garding it. Davis testified, "My job was on the line, basi-
cally, cause it was my fault that the bags were run. So
the nature of it was reprimanding me verbally." Davis
testified that Villanueva was not terminated, "cause basi-
cally it was my fault. I was the one that told him it was
good and to run it." Davis did not give Villanueva a
warning over that incident, but he acknowledged that in
his written evaluation of Villanueva on other incidents
he had said that Villanueva needed to read his orders
more closely.
Introduced into evidence as Respondent's Exhibit 5
was a copy of a "Record of Discussion," dated March
17, 1983, pertaining to Villanueva. The "Reason for Con-
ference," as shown on the document, is: "ran 13,000 bags
with Stack-Aide (no Stack-Aide required) bags had to be
thrown away." The comments of Villanueva on the doc-
ument were: "I missed it on the order sheet. I thought it
said Stack-Aide instead of no Stack-Aide." The com-
ments of Supervisor Wade on the document were: "I
told Villanueva he must read everything on the order
sheets carefully, and if a question arises, [then] go to his
supervisor. I told David another occurrence will result
in a verbal warning." The "Action Taken" portion of the
document states "none."
Wade said he had also written up Villanueva for
having a "poor attitude"; for failing to direct his crew;
for not reading orders; and for having an untidy work-
place.
Wade acknowledged that he also had written up other
employees for having problems with their attitude; for
failing to direct their crews; and for producing bad bags.
Wade was of the opinion that experienced operators
made fewer mistakes than new operators, and Wade was
tolerant of new operators. At the trial, Wade gave his
opinion of the difference between Fagundes' job per-
formance and Villanueva's job performance, which, in
his view, justified Villanueva's remaining as an employee
of the Company. Wade testified:
I felt that David Villanueva gives a hundred and
ten percent, and I could never get Mr. Fagundes up
to where he would give a hundred percent, or even
ninety percent. On certain days he would give
ninety. On other days he would give forty. And no
matter what I said or how I tried to turn him
around, I just couldn't get him to do the job.
There were no written warnings or notations of verbal
warnings in the Company's personnel file for Supervisor
Davis.
VI. CONCLUSIONS
It has been noted several times earlier in this decision
that certain matters were not alleged to be unfair labor
practice violations of the Act. Those observations were
made not in the sense of being critical, but instead to ex-
plain why conclusions have not been made with regard
to those matters as to whether they constitute unfair
labor practices. However, the findings with regard to
those matters noted earlier have been considered in
reaching a determination with respect to those matters
which are alleged to be unfair labor practices by the
General Counsel. Administrative Law Judge Jerrold H.
Shapiro has stated succintly: "The ultimate question is
what was the reason for the discharge, and the presence
or absence of other antiunion actions is an aid to answer-
ing the question, not an answer in itself." Kenworth Co.,
221 NLRB 800, 807 (1975). The Board had held "In
finding a prohibited motive for a disciplinary action, in-
dependent evidence of animus is relevant but is not an
essential element of proof." Kenco Plastics, 260 NLRB
1420 (1982), citing Auto-Truck Federal Credit Union, 232
NLRB 1024, 1027 (1977). Those matters which are al-
leged in the General Counsel's complaint as unfair labor
practice allegations are summarized in the "Statement of
the Case" section at the outset of this decision.
In reaching conclusions based on the findings of fact
set forth in the preceding sections of this decision, it is
394
CHASE BAG CO.
helpful to review the Board's holding in Herbert F. Dar-
ling, Inc., 267 NLRB 476, 477 (1983), where it stated:
In proving a case of discrimination under the
Act, it is the General Counsel's burden to show by
a preponderance of the relevant evidence that a re-
spondent acted in derogation of employee rights
protected by the Act.7 The record as a whole, in-
cluding the weight of the evidence, the inherent
probabilities, and the reasonable inferences to be
drawn therefrom, must be assessed in reaching the
result in a case.
I See, e.g., Wright Line, 251 NLRH 1083. 1088, fn. 11 (1980).
With regard to Fagundes, I conclude that the evidence
shows that Fagundes was active openly in the most
recent union organizational attempt among the Respond-
ent's employees by the Union, and that Fagundes had
been active in the earlier union organizational efforts by
another union. Fagundes was not the only employee of
the Respondent who openly supported the Union by
wearing union buttons and union insignia, but Fagundes'
wearing of a number of such union buttons and union in-
signia on his clothing at the plant was a noticeable activi-
ty, which came to the attention of the Respondent's su-
pervisors. Fagundes also engaged in other activities in
support of the Union. He continued to wear union but-
tons and union insignia on his clothing at the plant after
the representation election in December 1982, while only
occasionally did other employees of the Respondent do
so after the election.
I further conclude that the evidence establishes that
Fagundes' prounion activities took place prior to the per-
sonnel actions involving Fagundes in 1983, which are al-
leged by the General Counsel to be unfair labor prac-
tices. That is, Fagundes' union activities took place prior
to his being assigned to the operator's job, prior to the
warnings issued to him in 1983, and prior to his termina-
tion from employment on March 10, 1983. As indicated
above, I also conclude that the Respondent's supervisors
had knowledge of Fagundes' union activities prior to
those events affecting his employment with the Respond-
ent. The evidence also shows that the Respondent
openly opposed the Union's organizational efforts among
the employees of the Respondent, and the statements at-
tributed to the Respondent's supervisors reveal an
animus towards union organizational activities among its
employees. On the other hand, the evidence also shows
that David Hall and Jess Alonzo were active in their
support of the Union, and that the Respondent promoted
both Hall and Alonzo to supervisory positions at the
plant.
Without repeating the numerous findings of fact set
forth above, I reach the following conclusions with
regard to the change in Fagundes' job assignment effec-
tive on February 7, 1983. I conclude that the evidence
reveals that the event which precipitated the change in
Fagundes' job position at that time was the voluntary
quit by Lamar Barnes. That was a circumstance over
which the Respondent had no control. That is. Lamar
Barnes took his vacation time and apparently decided to
return to the United States Navy, rather than resume his
job position as a tuber operator at the Respondent's
plant. The departure of Lamar Barnes created the vacan-
cy in the operator's position to which Fagundes was as-
signed, based on Fagundes' seniority and the job he held
at that time. However, it was Helmuth's desire to move
from working on the night shift to working on the day
shift, and Helmuth's greater seniority as an operator,
which resulted in Fagundes' change from the day shift to
the night shift. Considering Helmuth's seniority as an op-
erator, and his desire to exercise his seniority rights, that
is another circumstance over which the Respondent had
no control in view of its past policy and practice. Fa-
gundes asked Helmuth to swap shifts so as to accommo-
date Fagundes' desire to attend EMT classes, but Hel-
muth refused to do so. That observation is not made in
the sense of being critical of Helmuth, but instead to in-
dicate the reason for Fagundes' change from the day
shift to the night shift at that time.
The change in Fagundes' job position on February 7,
1983, also should be considered in light of the new com-
pany policy on promotions, which had become effective
on July 1, 1981. Thus, events involving other employees
since that date, rather than before that date, are more de-
serving of attention.
I conclude that the Respondent has presented evidence
which explains the Respondent's actions with regard to
certain other employees. (See section G herein for the
details.) For example, the Respondent presented evidence
which establishes that Garcia was physically unable to
perform the job of shafter and, therefore, he was not re-
quired by the Company to move up to that job position.
Gomez was decribed as being "a hardship case" because
of his problems in getting to work. Gonzales apparently
experienced fear or concern for his family because of
certain persons being around his house at night. Hansen
was changed from the bottomer helper job to the bot-
tomer operator job, although Hansen did not want to
change. Nevertheless, Hansen was changed back to the
bottomer helper job, but that occurred in May 1981 prior
to the new company policy which was effective July 1,
1981. Pawlowski went from a pressman's job back to the
press helper's job, but the Respondent presented evi-
dence that Pawlowski had suffered physical and mental
trauma due to an accident. Villanueva was permitted to
swap with Helmuth so that Villanueva could go to
school at night, but that was because Helmuth agreed to
do so. As indicated earlier, Helmuth had greater seniori-
ty as an operator, and Helmuth had refused a similar re-
quest by Fagundes. Helmuth's change in attitude in ac-
commodating Villanueva, but not accommodating Fa-
gundes, is a circumstance over which the Respondent
had no control.
Based on the findings of fact as set forth in section C
herein, I conclude that Fagundes left work early on the
night of February 8, 1983, without receiving permission
from his supervisor to do so. While Fagundes was of the
opinion that Supervisor Davis was testing him, I con-
clude that the findings reveal that Supervisor Davis had
not given Fagundes permission to leave work early, and
impliedly had warned Fagundes against doing so. The
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing circumstances are in contrast to the times in
1981 and 1982 when Fagundes had asked for, and re-
ceived, permission to leave work early because of illness
and because of an appointment to visit an eye doctor.
Based on the findings of fact as set forth in section 8
herein, I conclude that the warning given to Fagundes
by Supervisor Davis on March 4, 1983, was due to Fa-
gundes' mistake in producing approximately 6000 tubes
with no glue spots on them. At the trial, Fagundes ac-
knowledged his error in that regard.
Based on the findings of fact as set forth in section E
herein, I conclude that the warning given to Fagundes
on March 9, 1983, was due to his producing approxi-
mately 6000 bags with loose walls. The Respondent pre-
sented evidence that bags with loose walls cannot be re-
claimed and, therefore, those bags were considered to be
wasted. Acevedo ran about 3000 bags with loose walls,
but that amount was about half of what Fagundes had
run. Hall produced three pallets of tubes with the side
slitter missing, and he received a warning for doing so.
However, the Company was able to reclaim those bags.
Helmuth produced 1500 to 2000 bags with loose walls.
That was a much less figure than the amount produced
by Fagundes. Helmuth also produced about 4000 to 6000
bags without a slitter, but that was an error which could
be corrected. Villanueva produced about 13,000 bags
with the substance known as Stack-Aide on them. Villan-
ueva's supervisor, Davis, was in error in reading the C &
H Sugar order, and he mistakenly thought that Stack-
Aide should be applied to those bags. I conclude from
the evidence presented that Davis acknowledged his
fault to his superiors and assumed his responsibility for
the mistake in applying Stack-Aide to those bags. (See
section G for the details with regard to these matters
which are summarized above.)
Based on the findings of fact set forth in section F
herein, when considered in connection with the findings
in the earlier sections of this decision, and the findings in
section G, I conclude that the Respondent has presented
evidence which shows that Fagundes was terminated be-
cause of what the Respondent viewed to be Fagundes'
unsatisfactory job performance in the tuber machine op-
erator's position. The Respondent further presented evi-
dence that it had terminated the employment of several
other employees for various reasons. Cockran, Combs,
Conley, Gilbert, Harmon, McAllister, Munroe, and
Ryburn were all terminated by the Respondent. (See sec-
tion G herein for the details.)
Applying the criteria set forth by the Board in its deci-
sion in Wright Line, 251 NLRB 1083 (1980), I conclude
that the General Counsel has presented evidence at the
trial which establishes a prima facie case in support of
the allegations of unfair labor practices set forth in the
General Counsel's complaint. Thus, the General Counsel
has established Fagundes' union activities; Respondent's
knowledge of those union activities; Respondent's oppo-
sition to the union organizational activities among its em-
ployees, and Respondent's union animus; and adverse
personnel actions with regard to Fagundes.
However, I further conclude, in accordance with the
Wright Line decision, that the Respondent has presented
evidence at the trial which rebuts the General Counsel's
prima facie case, and which shows that the Respondent
would have taken the personnel actions with regard to
Fagundes in 1983, even in the absence of any union ac-
tivity on the part of Fagundes. Thus, the evidence pre-
sented by the Respondent explains the reasons for the
change in the job position of Fagundes on February 7,
1983, and the change in his work shift from the day shift
to the night shift at that time; the reasons for the warn-
ings which were issued to Fagundes on February 9 and
March 4 and 9, 1983; and the reasons for the termination
of Fagundes on March 10, 1983. As indicated earlier in
this section, the Respondent has presented evidence
which explains its actions with regard to other employ-
ees, and which rebuts the argument that the Respondent
has treated Fagundes disparately. Accordingly, I recom-
mend to the Board that the General Counsel's complaint
allegations be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the General Counsel's complaint in
this proceeding for the reasons which have been set forth
above.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
It is ordered that the complaint in this proceeding be
dismissed in its entirety.
I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
396