Parker Seal Co.

National Labor Relations Board - Board Decisions

Nov 8, 1977

233 N.L.R.B. 332 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parker Seal Company, a Division of Parker-Hannifin
Corporation and United Paperworkers Internation-
al Union, AFL-CIO. Case 23-CA-6264
November 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 29, 1977, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Parker Seal
Company, a Division of Parker-Hannifin Corpora-
tion, McAllen, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Chairman Fanning and Member Jenkins agree that Respondent's no-
solicitation rule is unlawful for reasons enunciated by the Administrative
Law Judge and, additionally, for the reasons expressed in their dissent in
Essex International, Inc., 211 NLRB 749 (1974).
3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employees in regard to their
employment in order to try to discourage them
from being or becoming members of United
Paperworkers International Union, AFL-CIO.
WE WILL NOT promulgate, maintain, or imple-
ment any rule unlawfully prohibiting, or tending
to inhibit, our employees from soliciting union
membership on company premises during their
nonworking time.
WE WILL NOT in the future construe the
counseling we gave Carolyn LaBuda as a warning
under our progressive disciplinary warning proce-
dures.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights to self-organization, to bargain collec-
tively through representatives of your own choos-
ing and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or your right to decide
not to become involved in any or all of the above
activities.
WE WILL cancel and remove from our files the
warning we gave Dominga Anzaldua on August
II for soliciting during working hours and on
September 22 for a previously authorized, ex-
cused, and verified absence.
WE WILL reinstate Carolyn LaBuda without
prejudice to her seniority or other rights and
privileges and WE WILL make sure that Carolyn
LaBuda and Dominga Anzaldua are made whole
for any pay they may have lost as a result of
discrimination plus interest.
PARKER SEAL COMPANY,
A DIVISION OF PARKER-
HANNIFIN CORPORATION
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANo, Administrative Law Judge: This
case was heard at Edinburg, Texas, on January 18, 19, 20,
and 21, 1977. The charge was filed by the Union on
233 NLRB No. 58
332
PARKER SEAL COMPANY
October 18, and the complaint issued on December 6,
1976.1 The complaint alleges that Respondent, by certain
acts and conduct, has violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. The primary
issues are: whether Respondent (a) has maintained in
effect at certain times a disciplinary rule 15, "No-soliciting
of any kind in working area during working hours," with
prescribed penalties for violation leading to termination
and thereby has engaged in unfair labor practices in
violation of Section 8(aXl) of the aforesaid Act; and (b)
whether by issuing a warning to an employee for soliciting
an unidentified employee to sign a union card "in a
working area during working hours" and by discriminatori-
ly discharging two active union supporters, Respondent
has engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the aforesaid Act. At the conclusion of
the hearing the parties waived oral argument. General
Counsel and Respondent have filed timely briefs on or
about February 23, 1977.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and by Respondent,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Parker Seal Company, a Division of Parker-Hannifin
Corporation of Cleveland, Ohio, is engaged in production
of various products used in the sealing of fluids, air, and
gases. Respondent has an office and place of business
located in McAllen, Texas, which is the only facility
involved in this proceeding. There it is engaged in the
manufacture of elastomeric seals, e.g., "O" rings, used in
auto, heavy equipment, and various other industries where
seals are needed that will operate under pressure. During
the past year, a representative period, Respondent in the
course and conduct of its business operations at McAllen,
Texas, purchased and received goods and materials valued
in excess of $50,000 directly from places located outside the
State of Texas. The Company admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Matters
I. The Union's organizational efforts
The McAllen plant located in the Rio Grande Valley
area of Texas commenced production with employees in
February 1975. The Union began organizing in the
summer of 1975. On January 14, the Union filed a petition
in Case 23-RC-4339 and a hearing thereon was held on
January 28. Pursuant to a Decision and Direction of
I All dates are in 1976 unless otherwise stated. In view of findings and
conclusions hereinafter made. Employer's motion to dismiss complaint as
contained in its answer is denied.
2 Parker Seal Company. a division of Parker-Hannifin (orporation, 227
NLRB 1471(1977).
Election issued by the Acting Regional Director for Region
23 on February 20, an election was held on March 19. The
results of that election were that of 141 eligible employees
68 cast votes for the Union and 70 voted against the Union.
There were 46 challenges which were subsequently resolved
by stipulation of the parties as cast by individuals who were
ineligible to vote. The Union filed timely objections to the
election on March 24. A hearing on objections was held on
May 11, 12, and 13. On August 12, the Hearing Officer
issued his report recommending the Union's objections be
overruled. The Union filed timely exceptions which at the
time of hearing herein were pending before the Board.
2. The Employer's animus
(a) As revealed in prior representation proceedings
before the Board; and in the supervisory meeting of
October 2
Subsequent to the close of the hearing herein the Board
issued its decision in Case 23-RC-4339 2 in which it
considered and found merit in certain of the Union's
exceptions to the Hearing Officer's report. As reported by
the Board in that case, the petitioner, inter alia, had
asserted that the Hearing Officer had erroneously failed to
hold the Employer responsible for certain conduct of its
agent, Jose Garcia, who testified that he had interrogated
employees concerning their union activities and had
furnished names of employees who attended union meet-
ings to higher management officials. According to Garcia,
a former supervisor, after the Union's organizational
campaign began, Plant Manager Gutharey3 addressed a
meeting of supervisors and told them that the union
activity was picking up at the plant and that the supervisors
had to go out there and "sell the Company" to the
employees. Plant Foreman Tom Ferguson then told the
supervisors that they had to get to know the people in order
to obtain any information available. In addition, the
supervisors were told to write down any information
received and give it to Personnel Manager Fernando
Salinas. Garcia further testified that following another
supervisory meeting that was held after the petition was
filed, he was told by Foreman Ferguson to go out and ask
the people questions as the Company expected a lot from
Garcia because the employees trusted him. The Board
found that Garcia directly supervised between 30 and 40
employees, and that because of his understanding of
Guthrie's and Ferguson's instructions, Garcia interrogated
employees as to when union meetings were held and who
attended; and actually furnished Personnel Manager
Salinas with the names of three employees who had
attended a union meeting. The Board found that in these
circumstances, noting especially the closeness of the
election, that Garcia's conduct reasonably tended to
interfere with employees' freedom of choice and thereby
constituted a basis for setting aside the election.
The General Counsel at the hearing herein stated that he
was asking for no unfair labor practice findings based on
I The name of the (former) plant manager appears as related in the
Board's decision. For purposes of clanty, the name will hereafter be
reported as it appears in the instant record, viz, Martin Guthne.
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the objections. In his brief he urges that official notice be
taken of the Board's recent findings in the representation
case; and has urged that official notice be taken of the
above findings specifically in connection with a certain
speech of Salinas delivered to supervisors on October 2.
Considered more fully infra, that speech in part dealt with a
discussion of grievance procedures available to nonunion
employees with purpose to remove "a key benefit from the
hands of a campaigning union"; and an explanation of an
open door policy recommended by Salinas to be made
available to Respondent's employees. The latter was not
the subject of complaint allegation but was litigated as
bearing on and is additional evidence of Respondent's
ongoing animus in respect to the 8(a)(3) allegations. Since
the agenda of the October 2 meeting concededly was not
limited to production matters, so argues the General
Counsel, the findings of the Board now serve as a further
basis for additional inference that in that supervisory
meeting a discussion of a list of known union organizers
would be likely to have occurred as was otherwise claimed.
However, contrary to the General Counsel, I view the
foregoing contention as requiring an inferential jump
which I am unwilling to make in view of the findings of fact
hereinafter made as to what transpired at that supervisory
meeting.
On the other hand the foregoing decision of the Board
does set forth findings that clearly show strong employer
animus existed prior to the election; and the same are
matters over which I may and do take official notice. I
further find continued animus was evidenced in the
supervisory meeting of October 2.
(b) As revealed in employee group meetings of
November 3
Former Plant Manager Martin Guthrie left the McAllen
plant in June. Production Manager Russell Coon served as
acting plant manager in the interim until the new plant
manager, Chuck Stucke, formally reported on November 1.
On November 3, Stucke was introduced to employees in a
series of small group employee meetings. Employee Mike
Balderas attended one such group meeting of about 15
employees held in the cafeteria. According to Balderas,
Coon spoke about the recent annual raise granted by the
Employer to its employees; and also told employees that
the wages the Company were paying were competitive with
other companies in the valley. According to Balderas, at
that point Coon with a changed and mean expression then
on his face and with fist clenched hit down on the table and
told employees that he did not want a union there; that all
that unions do was just bring trouble, confusion to the
people, and violence; and that he did not want the people
there being associated with strikes and riots.
Coon denied that he clenched his fist or hit the table.
However, he testified as to what must be concluded was a
resolute expression of antiunion feelings made to employ-
ees in that meeting. Coon explained that union talk had
started back up in the plant as he recalled it about
September. At that time he became aware of rumors that
4 Although not determined by the majority of the Board in the
representation matter as grounds for setting aside the election it is apparent
that there were expressions of animus b) Respondent {in the form of
there was not going to be an annual wage increase and
benefit review or that the Company was going to reduce
the wage increases because of the Union. Coon felt that
such talk negated the good benefits the Company offered
and the method which the Company felt was a fair and
honest way of keeping employees' wages and benefits
competitive in the valley. The results of the Employer's
annual wage and benefits review had been earlier an-
nounced to employees on November 1. In the meetings of
November 3, Coon felt there was still a need for the
Company to address the rumors. In the meeting attended
by Balderas, Coon told the employees that though Parker
Seal Company was relatively new there, it had kept the
promises that it had made. Coon then leaned on his knees,
and looked everyone in the eye to make sure they knew he
was sincere and had feelings about what he was saying.
Coon told the employees that he did not want a union in
the Parker Seal Plant, that he did not feel it was right for
them and he knew it was not right for him; that the wage
and benefit changes that had come about were there
without anybody having to pay any union dues and no one
had to go on strike to get them. Coon then told the
employees, if they read the newspaper or watched TV they
would see all kinds of problems wherever a union is
involved. Coon then mentioned by specific name another
employer's facility some 18-20 miles away. Coon told the
employees that there were bombs in that plant; and that
trucks and people's houses had been shot at. He noted to
the employees present that the Union involved was the
same Paperworkers Union. Coon told the employees he did
not want that for them. 4 On the same day the Respondent
announced the institution of an open door policy in the
McAllen plant.
(c) As revealed in Personnel Manager Salinas' letter
to all employees dated November 29
In the same vein, Salinas sent a letter to all employees
reciting the Company's position was to pay wages that
compare favorably with the best in their industry and area;
and to provide the best possible working conditions. The
letter also related:
In view of our commitment to the above principles, we
feel that labor unions are unnecessary in our company
because:
(1) We have continuously maintained equitable pay
and working conditions free from the outside influence
of third party bargaining agents;
(2) Strikes, boycotts, jurisdictional disputes, slow-
downs, and other restrictions on normal activities will
have an adverse effect on the availability, continuity,
and cost of our services;
(3) Employees may be required to pay expensive
initiation fees, monthly dues, special assessments, and
fines;
(4) The Company's freedom to recognize individual
abilities and needs and the close working relationships
repeated references to the likelihood of stnkes) in February and March prior
to the election held at Parker Seal on March 19. Cf. 227 NLRB at 1472.
fn. 3.
334
PARKER SEAL COMPANY
between the Company and its employees, will be
impaired.
Therefore the Company believes that the interest of
its employees and of the community, are best served by
our continued voluntary observance of fair policies,
and by our employees continuing to discuss with us
directly, rather than through a labor union any
suggestions or complaints they may have.
If you have any further questions, please contact me.
Preliminary Conclusions of Animus
On the basis of the above and other evidence of record
reported infra, it is clear and I find that during all material
times herein Respondent had early established and
thereafter actively and resolutely maintained a strong
position of animus towards the Union.
3. The informal settlement in prior proceedings
rejected as evidence
The General Counsel related that the Union filed a
charge in Case 23-CA-6058 on May 18, amended on May
21, alleging violations of 8(a)(l) and (3). On July 16, the
Region dismissed the 8(a)(3) allegations as to which no
appeal was taken and an 8(a)(l) complaint issued on events
apparently essentially preceding the election. The parties
thereafter settled the 8(a)( ) complaint in an informal
settlement agreement containing a nonadmission clause
which was approved on September 16. However, the notice
was not posted until October 14. In the interim employee
Carolyn LaBuda was terminated on October 1, and
employee Dominga Anzaldua was terminated on October
7, both allegedly for discriminatory reasons, which dis-
charges are the subject of 8(a)(3) allegations in the instant
complaint. Prior to hearing, the General Counsel initially
set aside the aforementioned settlement agreement in Case
23-CA-6058 but following an employer motion in opposi-
tion the settlement agreement was reinstated, with reasons
therefor not appearing of record other than as generally
stated to expedite the hearing herein.
At the commencement of the hearing the General
Counsel sought to introduce the settlement agreement itself
as general background for the proceeding herein. The
General Counsel expressly stated that it was not his
purpose to seek to set aside the settlement agreement; that
he did not intend to obtain unfair labor practice findings
on matters covered by the settlement agreement; and that
he did not seek to utilize the settlement agreement to
establish the animus of Respondent. Respondent objected
to the receipt of the settlement agreement. The exhibit was
rejected with leave of the General Counsel to offer
evidence of any specific fact or a group of facts that would
bear upon issues material to allegations in the instant
complaint proceeding. The settlement agreement was
subsequently placed in the rejected exhibit file. Towards
the end of the General Counsel's case and again in his brief
the General Counsel has urged receipt of the settlement
agreement documents most recently on the stated basis
that these documents assist in showing the atmosphere
which prevailed leading up to the time of the discharges of
LaBuda and Anzaldua, and, even more, provide what
probably is the true reason for the timing of the discharges.
Evidence of a party's presettlement conduct is admissible
with respect to issues that are excepted from the settlement
or if occurring prior to the settlement are not covered
thereby though in the former case it would appear to be the
better practice to have them included in one proceeding,
Tompkins Motor Lines, Inc., 142 NLRB 1 (1963), enforce-
ment denied on other grounds 337 F.2d 325 (C.A. 6, 1964);
Cloverleaf Cold Storage Co., 160 NLRB 1484, fn. 1, 1486
(1966). Presettlement conduct of the party that serves to
establish motive or objective in acts of the party subse-
quent to the settlement, as well as postsettlement conduct,
is admissible, whether or not the settlement agreement is
set aside. Northern California District Council of Hodcarriers
and Common Laborers of America, AFL-CIO et al. (Joseph's
Landscaping Service), 154 NLRB 1384, fn. 1 (1965), enfd.
389 F.2d 721 (C.A. 9, 1968); Cloverleaf Co., 160 NLRB
1484; Jake Schlagel, Jr., d/b/a Aurora and East Denver
Trash Disposal, 218 NLRB 1 (1975). It is therefore fairly
clear that conduct of the party preliminary to or concurrent
with posting of notice whether regarded as presettlement or
postsettlement conduct is admissible for the above pur-
poses. Such conduct would appear more properly to be
viewed as postsettlement conduct since a settlement
agreement becomes effective with the approval of the
Regional Director. John F. Cuneo Company, 152 NLRB
929, fn. 4 (1965). On the other hand, it is my view, that the
very documents encompassing an informal settlement
agreement with a nonadmission clause contained in them
do not themselves constitute competent evidence of the
prior alleged unlawful conduct of the settling party; nor are
they admissible to show animus, Poray, Inc., 143 NLRB
617 (1963). Further, a failure to set aside a settlement
agreement would on its face appear to be fatally inconsis-
tent with a viable contention that alleged discriminatory
discharges were accomplished with specific purpose to
counteract or offset 8(aXI) remedial undertakings ex-
pressed in a settlement agreement notice concurrently to be
posted. For otherwise receipt of the documents would
appear inextricably to take on the appearance of an
admission of all the contents. In any event, the General
Counsel was free to introduce specific and direct evidence
of the Employer's presettlement conduct or postsettlement
approval conduct which bore upon motive or served
otherwise as background to issues material to the com-
plaint allegations, provided that the evidence presented
was otherwise competent, and in fact in several instances
did so. The foregoing ruling rejecting the general offer of
the settlement agreement documents is thus reaffirmed.
I now note the parties' stipulations and other related
testimony of Coon in regard to the facts of the settlement
processing. Thus, the settlement agreement had been
accepted and signed by Respondent's attorney on Septem-
ber 8, approved by the Regional Director on September 16,
and returned to Respondent by September 20 for a
presumptively ministerial act of placement of Coon's
signature on the notice prior to posting. Coon did not sign
and post same until almost a month later on October 14;
and did so only following inquiry of Respondent's
attorney. Coon sought to explain his delay in that his
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attention was directed to other business matters which had
accounted for his being in Mexico 2 or 3 days a week
during the intervening weeks and his stated view that he
had placed very little importance on the settlement papers.
The reading and signing of a settlement agreement notice
already accepted by Respondent (as is evidenced by its
attorney's prior approval) and processed through approval
of the Regional Director, is not in my judgment a time-
consuming matter to accomplish, particularly if actually
regarded by Coon as a matter of slight consequence.
Rather I find Coon's testimony in this regard unpersuasive
and unconvincing. In contrast there are significant in-
stances of record, indeed a number related herein, wherein
Coon is revealed as a man of prompt action. On the basis
of the posture of the record before me I find his delay in
this matter was at least an instance of "foot dragging" and
was occasioned in substantial part by reluctance to sign
any notice beneficial to the Union due to his own strongly
held convictions against unions, and more particularly the
Charging Party Union, as is clearly evidenced in this
record.
4. Respondent's rules and disciplinary procedures
The Company's rules and disciplinary procedures are set
forth in an "Hourly Employee Handbook." There are 30
offenses for which varying progressive disciplinary action
will be taken.5 The printed rules also specifically provide:
"The accumulation by an employee of any four (4) such
verbal or written notices or other disciplinary actions in a
12-month period may be cause for discharge." Salinas
testified that Respondent's disciplinary procedure is cor-
rectly set forth therein. However, Salinas also testified that
the foregoing is a progressive warning system and that in
that regard it takes a year of clear conduct under the rules
for an employee with prior warnings to clear the employ-
ee's record. The latter procedure is not, however, set forth
in the rules. 6
Salinas also testified that the Company had a counseling
procedure which significantly is not considered a part of its
progressive warning system though counselings were
regularly to be documented and made part of an employ-
ee's folder.7 It is possible to find a counseling recorded on
any type of paper but it should be identified as a
counseling. Similarly a disciplinary action is not necessarily
found only on a disciplinary warning form; though when
on other than a disciplinary form it should be identified as
a disciplinary action by a statement to that effect such as:
"this is a warning being given to...." However, accord-
ing to Salinas, supervisors do not always issue warnings or
record counselings in the same way.
5 The rules encompass: (a) 10 rules in a four-step disciplinary procedure
composed of verbal warning, written warning, suspension. and termination,
respectively; (b) 8 rules in a three-step disciplinary procedure composed of
written warning, suspension and termination, respectively; (c) 3 rules in a
two-step procedure involving immediate suspension and termination,
respectively; and (d) 9 rules for infraction of which termination is
immediate.
6 As is discussed more fully later in connection with the consideration of
the alleged discriminatory discharge of Carolyn LaBuda, General Counsel
contends that Respondent in LaBuda's case has attempted to improperly
count warnings older than a year. i.e.. inconsistently with the clear meaning
Jose A. Garcia, called by the General Counsel, was hired
in April 1975 and had been a supervisor from October 1,
1975, until he quit on March 5. In a conversation that he
reports took place in the presence of then Plant Manager
Guthrie and Personnel Manager Salinas, Garcia testified
credibly that the procedures of warnings and disciplines
were explained to him by Salinas. It was explained to
Garcia that whenever a warning was given, the supervisor
had to have a fellow supervisor present as a witness that the
warning was being given; and given correctly. Garcia
testified also that there was a certain form for a warning
and that he had only used that form in issuing warnings.
According to Garcia, a counseling was basically just a
"talking" to the employee. Nothing was required to be
signed by the employee. The supervisor was, however,
instructed to document what was talked about with the
employee and deliver the record of the counseling to
Salinas for further reference in case the supervisor later
gave the individual a warning. Supervisors were instructed
in the case of a counseling to indicate "we talked to the
individual." However, supervisors did not always write up
counselings because it involved a lot of work.
B. Allegations of 8(a)(1) and (3) Relating to Rule
15, Company Rules and Disciplinary Procedures
The complaint alleges that since on or about April 18,8
Respondent has maintained in effect its disciplinary Rule
15, "No-soliciting of any kind in working area during
working hours," with prescribed penalties for violation
leading to termination in violation of Section 8(a)(1) of the
Act; and, further, that on August 11, Respondent issued a
written warning to employee Dominga Anzaldua thereun-
der in violation of Section 8(a)(I) and (3) of the Act.
Respondent began production with employees in Febru-
ary 1975, and by the time of the election in March, there
were approximately 141 employees employed. By the time
of hearing herein in January 1977, the Employer was
operating three shifts and employed some 317 employees.
Employees are presented a copy of the "Hourly Employee
Handbook" at the time of their initial hire. The first
(yellow) handbook apparently in use proscribed under
Rule 15 as follows: "Soliciting for any purpose unless
specifically authorized by management." The prescribed
penalties for an infraction of Rule 15 (which have remained
the same through subsequent revisions) were that for a first
offense there would be a written warning, for a second
offense a suspension, and for a third offense, termination;
in other words, it was a rule for infraction of which a three-
step progressive disciplinary procedure was provided.
About February, a notice of a change to the initial hourly
employee (yellow) handbook was posted on the employees'
of Respondent's own printed rule that the combination of four warnings on
different rule infractions to support a discharge must be accumulated within
a year. Respondent did not recall LaBuda on the basis of a failure to follow
its own disciplinary rules. Respondent did recall Dominga Anzaldua whom
it concedes it discharged improperly for accumulation of but three warnings
on infractions involving mainly four-step rules.
I I find Barrera's testimony in this area was somewhat less than candid.
i.e.. in not immediately relating to counseling and requiring a definition.
8 Presumably this date has its base of significance in a calculation of the
10(b) penod of the Act in relationship to the initial charge herein filed
October 18.
336
PARKER SEAL COMPANY
bulletin board for at least 30 days. Insofar as is pertinent it
provided: "Rule No. 15 has been changed to read as
follows: Soliciting for any purpose during worktime."
However, around the summer, Salinas made certain
revisions in the handbook and a revised handbook was
turned over to the printer on July I. The printer's delivery
of the revised (orange) handbook was received on Septem-
ber I. However, the orange handbooks were not distributed
to all employees until mid-October. The orange handbook,
presently in use, provides: "15. No solicitating [sic] of any
kind in working area and during working hours."
On the basis of the above I find that Respondent had
revised its Rule 15 on or before July 1; but that
Respondent did not publish the revised Rule 15 to all
employees until mid-October. In the interim, and particu-
larly on August II, the Employer on the one hand had
formulated a new rule prohibiting soliciting of any kind in
working area and "during working hours," while the last
rule published to employees by posting of at least 30 days
in February was limited to "during worktime."
The Employer provides a canteen or lunchroom cafeteria
that is regularly used by employees during lunch periods
and for their established two breaks per shifts. However,
employees are also free to remain in their individual work
areas and some do, particularly during their 10-minute
breaks.
The Board has previously held that rules which prohibit
solicitation during "working time" or "worktime" are valid
on their face; however, rules that prohibit solicitation
during "working hours" will be considered invalid as
impinging on employees' rights, unless their impact on
lunch or breaktime is clarified to the employees. In that
regard the Board has concluded that the use of the term
"worktime" would clearly convey the meaning to employ-
ees that they were free to engage in solicitation during
lunch and break periods which occurred during their
"working hours," thus depicting a rule valid on its face. On
the other hand, rules prohibiting solicitation during
"working hours" reasonably depict the entire period of
time between "clock in" and "clock out" and are invalid
"unless their impact on lunch and breaktime is clarified."
Essex International, Inc., 211 NLRB 749, 750 (1974).9
As the revised rule contained in the (orange) handbook
proscribes soliciting of any kind "during working hours" in
working areas and was issued without clarification as to its
impact on lunches and break periods, I find that it is overly
broad on its face and that its promulgation and mainte-
nance thereafter was in violation of Section 8(a)(1) of the
Act. Essex International, Inc., 211 NLRB 749 (1974).
Compare the Contract Knitter, Inc., 220 NLRB 558 (1975).
9 As the Board has succinctly explicated: "The term 'working hours'
connotes the period of time from the beginning to the end of a workshift.
Thus, the use of that term in a no-solicitation . .. rule is reasonably
calculated to mean that employees are prohibited from engaging in any
form of union solicitation or distnbution of union literature from the time
they 'clock in,' or begin their workshift, until the time that they 'clock out,'
or end their workshift. By contrast, the term 'working time' or 'work time'
connotes the period of time that is spent in the performance of actual job
duties, which would not include time alloted for lunch and break penods."
Id
lo Villarreal did not return to work with Respondent because there were
no openings. Salinas explained he always has about 200 applicants for
employment. Salinas testified he was aware that Villarreal subsequently
obtained employment elsewhere.
As indicated above, this rule change was determined by
Respondent on or before July 1, but not publicized to all
employees until the orange handbook was distributed in
mid-October. The complaint has also alleged that the
revised rule was enforced against employee Dominga
Anzaldua earlier on August 11 in violation of Section
8(a)(l) and (3). To consideration of these complaint
allegations I now turn.
Employee Dominga Anzaldua was initially employed by
Respondent on September 18, 1975. Former employee
Marie Villarreal was initially employed by Respondent on
June 17. Villarreal worked as a loader on a press line on the
second shift as did Anzaldua. Commencing on or about
July 9, Villarreal failed to show up for 3 consecutive
workdays without affording any explanation to the Com-
pany. She was terminated approximately July 16. Villarreal
was not presented by Respondent as a witness and did not
testify. According to Salinas, on July 28, Villarreal came
back to the plant and inquired of Salinas concerning a
possible return to employment.'t Villarreal at that time
explained to Salinas that her prior absence was occasioned
because her mother had died. She had returned immediate-
ly to Mexico without being able to notify the Company of
the reason for her absence. Salinas asked Villarreal how she
had liked her job at Respondent's plant and she replied
very much with one exception. Villarreal told Salinas that
Anzaldua had solicited her signature for a card, saying that
it would give her more money; that it happened on June
24, on the line where she was working but that Villarreal
did not tell Salinas what time of the day. (Salinas concedes
that not all employees go to the cafeteria, that some stay at
their work areas on breaks.) Salinas then wrote out a
statement in Spanish and English concerning what Villar-
real had told him, which statement Villarreal then signed.
The statement was retained by Salinas. t
Salinas testified that 3 days following July 28, he went on
vacation, and that when he returned they reconsidered the
matter and decided to issue a warning. On another
occasion, Salinas explained that the delay in giving
Anzaldua a warning was to make sure that "we had what
would be considered you know, like a fact to be able to
give a warning." Salinas confirmed that he normally does
not issue warnings; rather, he usually goes to the supervisor
and reports what is happening. The policy of the Company
in regard to an issuance of a warning concerning reported
misconduct of one employee towards another is that the
matter is first to be investigated. Although both Villarreal
and Anzaldua worked under the direct supervision of
Supervisor Richard Hernandez, Salinas brought the matter
to the attention of General Foreman King. Conceding such
" This statement was received into evidence, not for the truth of the
matter contained in the statement, but as evidence of the statement in the
possession of Salinas to which he alluded in his testimony. That statement
provides: "On June 24, 1976 Dominga Anzaldua during working hours and
in a working area solicited my signature for a card saying that it would get
me more money. She told me that if I did not sign I would no longer be able
to work here. She told me that she had a lot of pull with Richard Hernandez
and if I did not cooperate she would get [sic ] transferred to third shift. She
also told me that she and others like her would be making $4/hour. I have
voluntanly given this statement. signed by Maria R. Villarreal 7/28/76
11:30 a.m."
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a report called for an investigation, Salinas testified he had
left it up to King and instructed King, "Talk to her about it
and if you feel that there may be as a result of talking, [if]
there is justification for a warning, then give her a warning.
You decide it." However, the evidence does not warrant a
conclusion that the matter was either investigated or
independently handled by King as initially indicated by
Salinas was to be the case.
King subsequently interviewed Anzaldua in his office
with her Supervisor Richard Hernandez present. A warn-
ing was given to Anzaldua. The warning was a first written
warning with the offense shown as: "Soliciting in a working
area during working hrs." The summary thereof provided:
This warning is being issued to Dominga Anzaldua for
violating company rules concerning solicitation in a
working area during working hours. A specific com-
plaint from an employee was received concerning this
matter.
Dominga is hereby notified that any further violations
of the same nature will result in a suspension and could
result in termination if further violations result.
According to King, Anzaldua did not deny soliciting but
said that she did not understand soliciting and asked for a
meeting with Salinas. King's version is that he first sought
to explain to Anzaldua that she was not allowed to solicit
as for Avon products or for flowers. According to King,
Hernandez sought to explain the same thing to her in
Spanish. However, Hernandez told King she did not
understand it and still wanted to see Salinas. At that point
King agreed to arrange a meeting for her with Salinas the
next day. (Hernandez denied saying anything to Anzaldua
and Anzaldua's version supports him. I credit Hernandez
in this respect.)
With regard to a consideration of whether any indepen-
dent investigation was in fact conducted by King at this
time, King testified that he had not seen the statement of
Villarreal; did not even know who the complaining
employee was; that what he knew about the incident was
only what he had been told, namely, that another employee
(whom he assumed was a current employee from Salinas'
report) had been approached on the press line and more or
less pressure statements were made for that person to sign a
card. King conceded that all he had done with regard to
the actual warning given on August 11 was to affix his
signature to a warning that was provided him. King related
that the written warning itself (including the date) had been
prepared by Salinas and given to him even before his
interview with Anzaldua. Parenthetically, it is noted the
language used in both the warning "offense" caption and
"summary" tracked the revised Rule 15 as authored by
Salinas.
Supervisor Richard Hernandez, whose testimony I found
generally plausible and convincing in this area, also
testified that King discussed the incident with him before
the actual interview with Anzaldua; that King told him
before the interview that King was going to give Anzaldua a
warning for soliciting; and that King could not mention
12 Anzaldua also recalled only the first paragraph of the warning was
read to her at that time.
anything about the Union, so he was just going to try to
make the soliciting point by talking about selling Avon
products. Hernandez confirmed that he then called
Anzaldua into the office; that King tried to explain to her
that she had been soliciting on the line; that Anzaldua
would not sign the warning; that she indicated a desire to
talk to Salinas; and that King said that he would arrange it.
Anzaldua's version essentially confirms the accounts of
King and Hernandez. Thus, on August 11 she was called
into the first aid office with Hernandez and King present.
King told her that he had a warning for her. She asked
why. King then told her it was for soliciting and read the
warning to her.12 She said she did not understand soliciting
and asked that King explain it to her. King replied it is like
you are selling Avon on the line while you are working.
Anzaldua immediately replied she was not doing that. King
handed her the pen to sign the warning and she refused
because it was not true. King asked if she wanted to see
Salinas and Anzaldua said she did.
On the basis of the above, I preliminarily find that no
independent investigation of this matter was made by
either General Foreman King or then Supervisor Hernan-
dez. I find rather that the written warning, prepared earlier
by Salinas, was perfunctorily given to Anzaldua by King. I
further find that the warning was given to Anzaldua over
her objection that she did not understand soliciting; and it
was given despite her denial of having solicited for Avon
products in circumstances wherein King had explained the
soliciting subject matter of the warnings essentially in those
terms only. I find also that King had proceeded on limited
and unquestioned facts supplied by his superior, Salinas,
which were even erroneously understood, a circumstance
further indicative of the lack of any real investigation. I
further find that an overt effort was in fact made by King
to conceal from Anzaldua that the alleged soliciting being
complained of and for which Anzaldua was supposedly to
receive a corrective warning actually related to solicitation
of employees for the Union. The above findings coupled
with the findings made on the meeting of Anzaldua with
Salinas and Coon held the next day convinces me, and I
find, that not only the issuance of the warning to Anzaldua,
but the initial concealment of its true nature was accom-
plished by King also pursuant to instruction of his
superiors. Before reaching consideration of the meeting of
Anzaldua with Coon and Salinas a brief summary of the
union activity of Anzaldua is appropriate.
Dominga Anzaldua was hired on September 18, 1975. By
October 17, 1975, she had signed an authorization card for
the Union. Thereafter, she was active in getting others to
sign cards. Anzaldua held meetings in her own home
commencing in November 1975. She visibly wore a union
button in the plant before the election held on March 19.
After the election she actively continued to solicit cards
from employees. She obtained some 20 additional signed
cards in the period from the election to mid-June. In short,
I find that Dominga Anzaldua was a very active union
adherent. I further find that that fact was known to
338
PARKER SEAL COMPANY
Respondent for months prior to the issuance of the
warning given to her on August 1 1.13
I also find that the warning was issued to Anzaldua
during a period of noticeably renewed union talk among
employees. Thus, Supervisor Richard Golden, whom I
credit, testified that at the time of LaBuda's discharge
(October 1) there was a lot of union talk among the
employees and that he had been hearing it for a couple of
months prior thereto which would place same at least in
August. I further note Coon's awareness of rumors related
to the Union, concededly recalled as occurring in Septem-
ber. Finally, issuance of the Hearing Officer's report with
recommendations to the Board on August 12 would itself
be a likely stimulus to such discussions, as would the
resulting process of the union filing exceptions thereto.
The Meeting of Anzaldua with Personnel Manager
Salinas and Russell Coon, Production Manager
and Acting Plant Manager
Anzaldua had the meeting with Salinas on August 12, in
the latter's office. Also present was Russell Coon who was
regularly the production manager but was also serving at
the time as acting plant manager. Initially there were two
or three exchanges in English and then a discussion in
Spanish ensued. Essentially, Anzaldua testified that Salinas
told her what soliciting meant saying to her, "Well, we've
been having complaints about you, that you're trying to get
some person into signing cards while you are working on
the line." Anzaldua immediately told Salinas that was not
true. Anzaldua volunteered that she had gotten cards
signed in the parking lot, or in the bathroom, but denied
doing so on the line. Anzaldua asked Salinas who was the
employee who had accused her of this. Salinas replied,
"You know I cannot tell you the name of the employee."
To that Anzaldua replied, "well it is not true"; specifically
stating that she had never asked anybody while she was
working or while the other person was working. (She also
testified in the present proceeding that she never asked an
employee to sign a card while working in a work area.)
Anzaldua told Salinas that she was not going to sign the
warning because what they had on the warning was not
true. According to Anzaldua, whom I credit, Salinas said
O.K., but warned her that he could use this warning against
her in court. Anzaldua replied "I don't see how you can use
it if it is not true."
Anzaldua also denied she ever told an employee that if
the employee did not sign a card Anzaldua would get the
employee transferred or that she had a lot of pull with
Supervisor Richard Hernandez; and she denied even
knowing former employee Villarreal.
Coon explained his presence at this particular meeting
was because as a production manager he had never had
prior opportunity to observe Salinas in a dealing with an
hourly employee. While acting as plant manager he felt it
was an ideal opportunity for him to become involved. His
prior understanding of the situation was that Anzaldua had
been given a warning by General Foreman Shirley King
for soliciting and Anzaldua did not understand the reason.
13 Further supportive of Respondent's knowledge is plausible and
credited testimony of Hernandez that everybody knew that Anzaldua was
supporting the Union even before the election in March. Salinas conceded
Coon testified that Salinas tried to explain soliciting, but
Anzaldua could not understand it. According to Coon, he
then told Anzaldua that the solicitation rule was in the
handbook basically to keep Parker Seal employees from
being bothered by part-time salesmen in the plant selling
Avon, and all the other things that people do sell; and that
the rule also applied to signing of authorization cards. In
seeming contrast, Coon confirmed Anzaldua continued to
state she did not understand what soliciting meant and the
conversation then changed to Spanish between Salinas and
Anzaldua which Coon did not understand. When the
meeting, which lasted about 5 minutes, was over and
Anzaldua had left, Coon testified that he then asked
Salinas did Salinas get it explained; and also revealingly
asked Salinas "did we get off the solicitation with regard to
Avon." Salinas replied yes, that Anzaldua understood
solicitation had to do with the Union; that he got it
explained to her; and that she admitted that is what she
had been doing; but, that she knew exactly what she could
get away with and could not get away with and had said
that there was not anything that the Company could do
about it. Coon at first testified that he did not know that
Anzaldua had not signed the warning, but later acknowl-
edged that he had read the warning prior to the meeting in
the office. Coon had not earlier read the statement of
Villarreal but acknowledged that he was aware that she
was no longer employed. When told by Salinas that
Anzaldua had admitted soliciting he did not inquire why
Anzaldua did not then sign the warning explaining he did
not think of it.
Salinas confirmed that Anzaldua, in the meeting, wanted
to know why she had been given a warning. In English,
Salinas, giving an example of Avon, tried to explain what
soliciting meant. Anzaldua denied it. He corroborated that
Coon also tried to explain soliciting but could not recall
Coon's example. I have previously noted a fairly obvious
inconsistency in Coon's testimony above that on the one
hand in attempting to explain soliciting to Anzaldua, Coon
asserted he initially had told Anzaldua the soliciting rule
also applied to signing union authorization cards, as
contrasted with his later inquiry of Salinas had they gotten
off the soliciting in relationship to Avon. Thus, in the
absence of a corroboration of Coon by Salinas, I find that
Coon himself did not initially advise Anzaldua that the
soliciting applied to signing of union authorization cards.
Salinas adds that Anzaldua in the Spanish conversation
told him "I know what I can get away with and what I
cannot get away with." Salinas replied "You know what
you are doing and we know what we're doing."
Villarreal was hired on June 17 and the asserted incident
as reported occurred on June 24. Thus Villarreal had been
on the job for only a week. Salinas testified that he was
satisfied that Villarreal knew Anzaldua because they
worked on the same press line and because Villarreal had
given him Anzaldua's name. The General Counsel intro-
duced (corroborated) testimony of Supervisor Hernandez
which I credit that Villarreal and Anzaldua's assigned
stations at the time were 100 feet apart. Respondent then
knowledge of Anzaldua's union activity at the time of her discharge on
October 7; and earlier knowledge as indicated by Hernandez was not denied
by Respondent.
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought to meet the additional obvious difficulty of access of
Anzaldua to Villarreal during worktime, by raising as a
consideration Anzaldua's transfer to work as a cooling
attendant. That job assignment involves bringing materials
to the various locations on the press line. Thus, it would
have provided Anzaldua with an opportunity for access to
Villarreal on the press line during worktime. However, this
effort failed in the face of persuasive evidence 14 that
Anzaldua, though transferred on June 9, had worked only
5 days on that job before giving it up because of her
discomfort with the cold associated with the work. Thus,
Anzaldua would not only have not been working as a
cooler attendant on June 24, the day of the reported
incident, but she would no longer have been working in
that position at the time when Villarreal was hired. When
Salinas was asked why Anzaldua was given a warning
without Respondent even obtaining her version, Salinas'
explanation was because of "what it is, we don't like to
have people turn against employees, employee against
employee in the plant, and this was essentially what would
have happened." Not only do I find the explanation
unresponsive to the inquiry then made and in apparent
inconsistency with the stated policy that an investigation
should be conducted, but I find it unconvincing for still
another reason. Villarreal, at the time, was a terminated
employee for an entirely divorced reason and unlikely to
return to work in the near future in view of the substantial
applications then on file ahead of her which Salinas well
knew. More revealing as to the course of action taken was
the testimony of Salinas indicating that the Company
regarded the report of Villarreal as in nature a warning of
Anzaldua's ongoing union interest and activity. Salinas
thus testified in this respect: "That's not conducive to a
good working atmosphere so we did not quote the name of
the employee that-that had warned us or had turned the
statement into us." Similarly when asked why Salinas had
given more weight to the report of the soliciting incident by
Villarreal, a terminated employee of I month's service
(who would have been employed for only I week at the
time of the incident), than to the denial of Anzaldua, a
longtime employee without any prior warnings, Salinas'
reply was equally unconvincing. Basically, his reply was
that in addition to the report of the incident and naming
Anzaldua, "Villarreal was willing to write it down or have
it written down and signed by her." I have previously noted
that Salinas was instrumental in the change of Rule 15 by
July I to the heretofore found unlawfully broad language
of "No solicitating [sic] of any kind in working area and
during working hours." (Emphasis supplied.) This is essen-
tially what was found in the warning (offense caption and
summary) given to Anzaldua which Salinas conceded he
prepared. I have little hesitation in concluding that the
words appearing in the statement reportedly ascribed to by
Villarreal to wit: "in a working area during working
hours," were of similar origin. I am also mindful of Salinas'
testimony that Villarreal did not identify a time of day to
him. Villarreal's version is not available as her testimony
was not presented by Respondent without any sufficient
showing of an inability to do so.
14 Supporting this finding is credited testimony of Anzaldua, supported
by Hernandez, and documentary evidence as to the effective period and
duration of the transfer from June 9 14.
Conclusions on the Disciplinary Warning Issued to
Dominga Anzaldua on August 11
There is no direct evidence in this proceeding that
Anzaldua ever engaged in solicitation of any employee to
sign a union card during worktime on the press line or in
any manner other than one protected by the Act. Anzaldua
informed Respondent's various supervisors immediately
that she had not done what she was being accused of in the
warning. She specifically denied the solicitation of any
employee while either she or the employee was working as
soon as the real nature of the allegation was made known
to her, which, according to Salinas, was the only matter the
Company relied on in issuing the warning. Salinas reported
that it was existing company policy that the report by an
employee of misconduct by another employee was first to
be investigated. However, I have found this unconfirmed
report of a former employee allegedly involving Anzaldua
was not investigated at all prior to the issuance of the
warning; and that the facts as apparent from the record
before me point away from the incident having occurred
during worktime. On the basis of the above, I am
convinced and I find, that Respondent in issuing the
warning to Anzaldua on August 11 actually enforced its
revised and overly broad no-solicitation rule in violation of
Section 8(a)(1). I further conclude that in doing so, in the
face of Anzaldua's denials, without any real investigation
or effort at corroboration, and under circumstances of an
attempted initial concealment of the true nature of the
alleged misconduct that was to be the subject of a
corrective warning, it is revealed Respondent acted
deliberately and opportunely with discriminatory intent.
Thus, I conclude and find Respondent's action, taken
during an ongoing union campaign, constituted an interfer-
ence with the organizational activity of a known union
adherent actively engaged in the pursuit of rights protected
by Section 7 of the Act and was violative of Section 8(a)(l).
I further find that the issuance of the warning to Dominga
Anzaldua on August 11 emanated under circumstances
constituting enforcement of an overly broad no-solicitation
rule and was accomplished in a manner calculated to lead
to discouragement of Anzaldua and other employees from
membership in the Union by virtue of clearly threatened
future effect on job tenure or security in violation of
Section 8(a)(3) as alleged in the complaint. Firestone
Textile Company, A Division of Firestone Tire & Rubber
Company, 203 NLRB 89 (1973). That the interference and
discrimination took the form initially of a disciplinary
warning rather than an immediate discharge is, in my view
(and contrary to that of Respondent), an attributive, or
qualitative, but not substantive difference in regard to
violation.
340
PARKER SEAL COMPANY
C. The Alleged Discriminatory Discharges of
Carolyn LaBuda on October 1, and Dominga
Anzaldua on October 7
1. Preliminary considerations as to credibility of
former Supervisor Richard Hernandez and Acting
Plant Manager Russell Coon in regard to the
discharges
Richard Hernandez was one of the 13 original supervi-
sors Respondent had hired before the plant opened for
production in February 1975, and remained such, until his
own discharge on September 30. However, Hernandez
began experiencing difficulty with continued acceptance of
his supervisory performance with the advent of Shirley
King as general foreman which occurred about the summer
of 1976. Friction developed initially between them because
King was apparently more demanding in the area of
recordkeeping than was Hernandez. However, the friction
became aggravated when King began to require that
Hernandez take disciplinary actions, with which Hernan-
dez was not in agreement, against employees who worked
on the press line under the immediate supervision of
Hernandez. In September, Hernandez made an effort to
obtain redress through a personal consultation with Acting
Plant Manager Russell Coon, which from Hernandez'
vantage point proved singularly unproductive. Coon
testified that about 10 days before the discharge of
Hernandez, thus about September 20, during a conference
with Hernandez, Coon told Hernandez that he was always
taking a path of least resistance; that what King was doing
was right; and that Hernandez should follow the instruc-
tions that King gave him. Sometime during this period
Hernandez' difficulty with King came to a high point when
of the supervisory requests for leave, the request for
Christmas leave by Hernandez was alone denied by King.
On September 16, Jose Barrera was promoted to general
foreman on the first shift. Toward the end of the month
Hernandez sought to enlist the aid of Barrera to arrange a
transfer for Hernandez from the second to first shift to get
him away from King; but that effort also failed. Hernandez
testified credibly that at the time of the incident shortly to
be discussed, he was not on speaking terms with King.'5
First-shift General Foreman Barrera testified that on
Wednesday, September 29, as he was checking the status of
the work left by his first shift preparatory to his own
departure, second-shift Supervisor Hernandez came up to
Barrera and asked Barrera if he had talked to Coon about
Hernandez being moved to first shift. Barrera told
Hernandez he had and that Hernandez could not be
moved. Hernandez then told Barrera he had to get King off
his back. Barrera replied that there was nothing that he
could do. According to Barrera, Hernandez then told
Barrera; "well, if he starts his car up tonight it will be the
I5 This finding is supported by the testimony of Supervisor Richard
Golden who was also one of Respondent's original 13 supervisors and who
regarded himself a close friend of Hernandez. Golden testified that he had
observed personally a sudden change in Hernandez. starting only a few
weeks before his discharge. Golden described the attitude of Hernandez
prior thereto as being that of a fairly happy-go-lucky individual who was
interested in his job. All of a sudden his manner deteriorated. On the day
after his discharge Hernandez visited with Golden at the latter's home to fill
Golden in on his situation with King. According to Golden, Hernandez felt
last time he starts it." Hernandez steadfastly denied on all
occasions that he knew beforehand about the incident that
occurred that evening. He also testified that he did not
directly tell King about it because he was not talking to
him.
On the evening of September 29, a number of the
supervisors met after work at the local Hilton Inn for a
drink. Coon had invited Barrera to join them. During a
later conversation there, Coon told Barrera that they had
made up their mind to terminate Hernandez. Barrera then
told Coon that Hernandez had mentioned to him that very
evening that something was going to happen if King started
his car. Barrera volunteered he thought it was going to be
sugar. Coon immediately called the plant and informed
King. King subsequently reported back to Coon that the
mischief had already been done.'6 Coon immediately
instructed King to have all of the salaried employees' cars
moved into the plant. Coon testified that he did not
consider the incident as having anything to do with the
Union. However, according to Barrera, Coon had said to
them at that time that he had the cars moved into the plant
because we did not know whether the people were mad at
management as a whole or whether they were just after
King, or what it was.
The incident was reported to the police on September 30,
and an investigation was conducted on that day. The
information that Coon had was given to the police and
Hernandez was named as a suspect. The police interviewed
Hernandez that day. In that regard, Coon testified that he
was told by the police later that day that Hernandez had
refused to answer any questions about the incident; and
that Hernandez had refused to take a lie detector test.
According to Coon, that was the final factor in the decision
to terminate Hernandez.
The General Counsel subsequently presented rebuttal
testimony of both investigating police officers as named by
Respondent. Neither could corroborate the particulars of
the conversation that day as reported by Coon. More
pointedly they testified, consistently with Hernandez, that
Hernandez had cooperated with them; had denied any
prior knowledge; was willing to take a lie detector test; that
they had no evidence to implicate Hernandez; and that he
was not detained. According to the police officers, that is
what they would have told the Company about those
matters in any conversation the Company would have had
with them on that day.
That afternoon as Hernandez arrived at the plant to go
to work he was met by Coon, taken to the personnel office,
and immediately terminated by Coon "Based on their
earlier conversation." Coon testified in explanation of the
reason actually assigned for the discharge, that in the
absence of evidence, it appeared the police were not going
to help and he felt that the incident should not therefore be
that King was interfering with his job insofar as his handling of the press
people; that King was forcing Hernandez to do things that he did not want
to do, such as giving people warnings that he felt did not have them coming:
that whenever he made a suggestion King would tell him to do it another
way; and that it had reached the point that he was instructing all the
employees to go directly to the general foreman since he was the boss.
16 No evidence was presented that any analysis of the tank's contents
was ever accomplished by anyone.
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cause of the termination. According to Hernandez,
Coon merely told Hernandez he was terminated because he
had a poor attitude toward the Company.
The Company contends that Hernandez was subsequent-
ly angry over his discharge, freely admitted same, and that
his prejudice to the Company because of the discharge he
considered unjust seriously undermines the credibility of
his entire testimony. General Counsel contends that
Hernandez was being no more than candid and has made
no attempt to conceal his dislike for Respondent (before or
during the hearing). General Counsel also contends that
Coon is shown by the contradicting testimony of the police
officers to have "thrown caution to the wind" in an attempt
to discredit Hernandez. General Counsel contends that the
effort not only failed but also has created adverse
reflections on Coon's own credibility. Much additional
testimony was presented with general assertions that such
bore on the credibility of one or the other of these
individuals. In evaluating the testimony of these individu-
als as to the discharges the observation of Judge Learned
Hand would appear to have especial significance:
. . . nothing is more difficult than to disentangle the
motives of another's conduct-motives frequently
unknown even to the actor himself. [Universal Camera
Corp., 340 U.S. 474 (1951).]
It suffices to presently find that Hernandez was dis-
charged on September 30 for reasons and under circum-
stances that he concluded were unjust; that he became
bitter over it; that his bitterness appears of record; that
Hernandez frankly told others on several occasions that he
was going to pursue in whatever manner he could efforts to
remedy what he considered was an unfair discharge; that
he was going to try to get at the Company; and that when
asked, he readily expressed willingness to testify in this
proceeding in support of the Union and employees. In the
above circumstances it would not be appropriate to accept
Hernandez' testimony without close examination. On the
other hand, with respect to Coon's testimony that it was
reported to him that Hernandez had refused to cooperate
and to take a lie detector test, I find it hard to believe that
either of the disinterested police officers would tell Coon
one thing on September 30 and testify as to a substantially
different version of the details before me in this proceed-
ing; and further, in a manner in almost total contradiction
of Coon.'7 On the basis of the posture of the record before
me I must and I do credit the mutually corroborative
testimony of the disinterested police officers. I further
conclude that whether the explanation for the variances in
the above testimony lies in that Coon, on September 30,
simply heard what he wanted to hear concerning Hernan-
dez and concluded what he wanted to then conclude, or
otherwise, Coon's testimony in those respects which was
reasonably offered for the purpose to discredit Hernandez
has been demonstrated to be totally unreliable. I shall
place Coon's other testimony in regard to the discharges of
Anzaldua and LaBuda under the same close scrutiny as
that to be directed to Hernandez. Where conflict of fact
'7 I have noted that Respondent thereafter offered the testimony of
Salinas that Coon had mentioned to him that someone in the police
department had said Hernandez refused to take a lie detector test,
arises between them I shall be guided especially by credible
corroborative testimony of others or its absence and by
consideration of factors bearing upon "consistency and
inherent probability of testimony." Universal Camera Corp.
v. N.LR.B., 340 U.S. 474, 496 (1951).
2. The meeting of Respondent's supervisors on
October 2, and subsequent events relating thereto
On October I Hernandez called Barrera and learned that
a meeting of supervisors was to be held on Saturday,
October 2 at the Hilton Inn in McAllen, Texas. Hernandez
testified that he called Barrera again on October 2. Barrera
told Hernandez that they had just barely discussed his
discharge and that the only reason given was that he had a
poor attitude to the Company. Hernandez testified that
Barrera then told him that "mainly the meeting was about
all the people that are going to be fired on the line."
According to Hernandez, Barrera told him that only Coon
and Salinas spoke and that they had "a list of all the people
that were going to be fired." Barrera mentioned the names
of Dominga Anzaldua, Mike Balderas, Carolyn LaBuda,
Domingo Flores, and a few others whom Hernandez could
not recall; all of whom Barrera said were going to be fired
because they were union organizers.
On Sunday, October 10, Supervisors Sonny Murphy and
Dick Golden visited with Hernandez at a city park in
McAllen, Texas. According to Hernandez, in a discussion
that ensued, they confirmed that there was "a list of all the
union organizers 'that were going to get fired and they
mutually confirmed the same names.' "
At the outset it is important to note that Hernandez did
not attend the supervisory meeting himself and was
testifying from recollections of conversations held with
other supervisors which included, as he recalled and so
testified, referenced statements by those supervisors as to
what still others had said at the October 2 meeting. I would
also initially note that Hernandez at one point erroneously
recalled the meeting of Supervisors Golden and Murphy as
having occurred on October 3 rather than October 10.
Barrera denied having a conversation with Hernandez on
October 2 as claimed by Hernandez, though he had a later
conversation discussed infra.
Acting Plant Manager Coon confirmed that there was a
breakfast meeting of about 30 supervisors on October 2
with an actual meeting period from 9:30 to II a.m. He
reports the speakers were Salinas, Fred Johnston (former
plant accountant who spoke about production estimates
and performances), and himself. Salinas testified that he
spoke about grievance procedures in a union shop and of
the grievance procedure available to a nonunion employer.
He explained that the purpose of the latter was twofold;
namely, to provide a mechanism to learn and cure various
causes of employee dissatisfaction and to remove a key
benefit from the hands of a campaigning union. He
confirmed making a recommendation that the Employer
adopt an open door policy; explained it; and urged
supervisors to listen to what the employees had to say. As
presumably to establish that Coon's testimony was not of recent fabrication.
However, such does not alter the credited testimony of the police officers as
to what was the fact.
342
PARKER SEAL COMPANY
indicated earlier I have found evidence of Respondent's
continued animus in the supervisory meeting of October 2.
Coon also spoke at that meeting. According to Coon,
since he felt that the discharge of Hernandez might have
been unsettling to the other supervisors, he told them
briefly and in general that due to unusual circumstances he
was not going to give them all of the details, but that
essentially Hernandez was not a good supervisor and was
no longer with them. Coon also announced formally that
the new plant manager would be Chuck Stucke and gave
some of his background to the supervisors who did not
know Stucke. Coon denied that he made any statement
about the discharge of hourly employees and specifically
denied any statement pertaining to discharge of LaBuda,
Anzaldua, Balderas, or Flores. Coon also denied that either
he or Salinas mentioned anything about a list of employees
who were for the Union who were going to be fired. In
what may be regarded as somewhat unusual Salinas did
not testify directly in denial of these matters. However
Coon received substantial corroboration which included
testimony that the aforesaid was not stated by either Coon
or Salinas. Testifying in such corroborative fashion was not
only General Foreman Barrera but also Supervisors Sonny
Murphy and Richard Golden, the latter two being close
friends of Hernandez. iS
Supervisors Golden and Murphy confirmed a visit with
Hernandez to discuss his situation on Sunday, October 10.
According to Golden, Supervisor Sonny Murphy initially
stopped by his house and then the two decided to visit with
Hernandez eventually locating him at a park in McAllen,
Texas. Golden testified credibly that he recalled that on the
day of Carolyn LaBuda's discharge (October 1) Supervisor
Sonny Murphy was quite upset because although he was
the direct supervisor of LaBuda, he was not involved in her
discharge. Barrera had simply told Murphy that it was to
be handled by Barrera and Salinas. According to Golden,
LaBuda and Anzaldua were discharged within 4 to 5 days
of each other and no one had quite understood the reason
for it. Both supervisors did wonder if it had anything to do
with the Union, as the discharges were very sudden.
Golden also confirmed that during the conversation with
Hernandez at the park, the discharges of LaBuda and
Anzaldua did come up. Golden on direct examination
testified as follows:
Q. Did you mention to Mr. Hernandez or Mr.
Murphy or did you say the reasons that either Mrs.
LaBuda or Anzaldua was discharged?
A. No, we were not aware of that, but we did
wonder if it was-had anything to do with union
activities because it was very sudden.
Q. All right.
A. Of course, me being on another shift, I was-it
was-I probably knew less about it than anybody.
I do recall Mr. Murphy being quite excited that
evening as I came to work.
1i Golden, for example, testified quite convincingly that there was no
mention at that meeting of a list of employees or names of employees who
were going to be discharged: asserting that is something he would have
He was a little bit disturbed because the- discharge
wasn't handled through him, being he was the direct
supervisor at that time.
Q. Did Mr. Hernandez say anything about either
Carolyn LaBuda or Dominga Anzaldua?
A. No, he did not.
Of course, Dominga worked for Richard so I don't
know. He didn't-he maybe mentioned that he was
aware of some transpirings in that nature going on at
the time.
Golden went on to explain that he did not put that much
importance to that part of the discussion that day, they
were with Hernandez as longtime concerned friends of
Hernandez and his discharge was a shock to them.
Golden's testimony was, however, further revealing as
follows:
Q. All right. Was it discussed that at that prior
supervisors' meeting that either Fernando and/or
Russell stated to supervisors that they had a list of-
people, employees who were for the Union that were-
that were going to be discharged?
A. No. There was no discussion that had to do with
that Saturday meeting at all. That really didn't pertain
to it as far as we were concerned. That had nothing to
do with the meeting. It didn't involve Richard or the
Union or any of those activities.
Q. Right. What I'm asking is whether that was
discussed at the park that day.
A. No.
Q. Well, was it discussed that somebody in the
company, whether at that meeting or any other meeting
or in any conversation, had a list of employees that
were for the Union or not for the Union that were
going to be discharged?
A. No. There was no discussion of any-any type
of list. There was talk of strictly rumors and things that
were going on in the plant, or some people were
involved with the Union, but this wouldn't come from
that Saturday meeting.
This was things that probably had been going on for
several weeks.
Supervisor Sonny Murphy confirmed he and Golden
visited with Richard Hernandez on Sunday, October 10, at
La Vista Park in McAllen, Texas. Murphy was curious as
to what had happened to Hernandez. According to
Golden, Hernandez had said he had been fired for
supposedly putting sugar in King's car. Hernandez told
them that mold changers in the plant had made the
arrangements with somebody in Mexico. Significantly,
Murphy did recall that Hernandez did mention that there
was a list of employees that were going to get the ax.
However, he could only recall Hernandez mentioning
Carolyn LaBuda and Mike Balderas as employees who
were going to be discharged for being union organizers.
Murphy was not present for the entire conversation. (By
remembered; and further that there was no mention of it in conversations
held immediately before or after the meeting. Golden otherwise impressed
me as a generally candid witness and I credit him in these respects as well.
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time both LaBuda and Anzaldua had been terminated.
Balderas was still employed at time of hearing.)
According to Barrera. Hernandez did not call him the
second time on October 2 but rather did so about 2 weeks
later. On that occasion Hernandez inquired about a
possibility of building a house for Barrera. Barrera denied
that there was any discussion between them about a list of
employees or of any by name who were being fired for
union activity.
From the foregoing it is readily apparent that Coon's
denial that there was any reference by him or Salinas in the
October 2 supervisory meeting to discharge of hourly
employees who were union organizers either by name, or
reference to a list was substantially corroborated by
General Foreman Barrera and Supervisors Golden and
Murphy, all of whom were present at that meeting. In those
circumstances an inference that there was a discussion of
names turned into Salinas as was earlier urged by the
General Counsel is in my view not warranted. Further, I
have previously noted Hernandez was not present at that
meeting and that his information was solely based on
recollected conversations he had with Barrera, Murphy,
and Golden who do not, however, corroborate his version.
I find that Hernandez' testimony, to the extent it reflects
that Barrera, Murphy, or Golden so advised him, is
mistaken and unreliable. While I entertain reservations
that the Barrera-Hernandez conversation was as free from
any reference to discharges and future discharges as
Barrera presents, I find it unnecessary to resolve same. It is
uncontroverted by evidence from credited testimony of
Supervisors Murphy and Golden above that first line
supervisors were aware that both LaBuda and Anzaldua
were active union adherents, were themselves perplexed
over their sudden discharges, and were wondering and
actively discussing whether the abrupt discharges of
LaBuda and Anzaldua were actually because of the Union.
Accordingly, I shall the more closely examine their
discharge situations, and conduct, where warranted, a
probe of Respondent's assigned surface reasons to deter-
mine the supporting facts upon which the discharge action
was assertedly taken by Respondent.
3. The alleged discriminatory discharge of
Dominga Anzaldua on October 7
Upon initially calling Personnel Manager Salinas under
Rule 611(c) of the new Federal Rules of Evidence, the
General Counsel elicited testimony of Salinas to the effect
that although he did not personally participate in the
discharge of Dominga Anzaldua, she was fired on October
7 for having accumulated three warnings for violations of
rules under Respondent's progressive disciplinary plan.
The first written warning dated August II was issued for
soliciting during work hours in violation of Rule 15 and has
been considered above. The second documented warning
dated September 22 was issued for absences in violation of
Rule 3. The third undocumented warning related to
infraction of Rule 6 for alleged wasting time and being
19 The note provided:
This is to certify that we are the attending physicians of Mrs. Dominga
Anzaldua's son, Javier, who was confined to the McAllen General
away from work station. The discharge was documented
only in the form of a change of status form.
The Employer maintains a system of attendance sheets
for each employee on which are collated instances of
tardiness, partial-day absence (viz an absence of 1 hour or
more or leaving before the shift ended), and full-day
absence. Salinas testified that usually an employee will get
a verbal warning for two to four such marks in a given
period. The period maybe as much as 90 days conforming
to the employees' period of review, or a shorter period if
warranted.
Mrs. Anzaldua's attendance sheet shows one partial
and one absence in June; none in July; four partials and
two absences in August and none in September. The
absences in August were thus the sole subject matter of
Anzaldua's second warning though the warning was issued
on September 22. Anzaldua testified that in that period her
8-year-old son fainted after running a very high fever;
remained unconscious for 6 hours, and was hospitalized
from August 17 until released on Sunday, August 22. On
August 17, Mrs. Anzaldua immediately reported to her
supervisor that she would be absent because of her son's
illness. On August 20 she obtained a doctor's note which
explained her continued absence was necessary to provide
care for her son at the hospital.' She delivered the note on
that day to Salinas telling him her boy was in the hospital,
that the doctor said they were having some trouble with
him, that she had to stay with him, and that she needed
some days off. According to Anzaldua's testimony, which I
credit, Salinas at that time authorized her to take the days
off that she needed. Anzaldua testified that all her absences
in August related to the illness of her son. Additionally, on
each occasion of required absence she notified her
supervisor that she would be absent.
Later in the next month, according to Anzaldua,
Hernandez, her supervisor, informed her that General
Foreman King had instructed him that he was to give her a
warning for her absences in August; and that he was going
to give her the warning for the absences. She reminded
Hernandez that Salinas knew why she was absent; that she
had taken him a doctor's excuse; and that Salinas had told
her she could take off the days she needed.
Salinas confirmed that the Employer has acknowledged
excused medical absences on the basis of a doctor's
verification, hospital, insurance, or other similar verifica-
tion. Indeed there are several such instances shown of
record where absences of other employees, some more
extensive than that of Anzaldua, were excused through
medical verification of one sort or another without any
resulting warning to the employee. Salinas testified that he
could not explain why Anzaldua had received a warning on
September 22 for the excused absences in August; and that
it is not company practice to wait so long. Salinas also
testified that he had no direct knowledge as to why
Anzaldua was issued the second warning and that he did
not participate in the termination conference. Salinas,
however, testified that Richard Hernandez had said he had
Hospital. We also state that the presence of Mrs. Anzaldua is needed at
the hospital to help take care of her son. Any consideration given to
Mrs. Anzaldua is greatly appreciated.
344
PARKER SEAL COMPANY
just let the absence matter slip by him. I do not credit
Salinas in the latter respect. Supervisor Richard Hernandez
whom I do credit in that respect testified that he gave
Anzaldua a warning in September for the August absences
only because General Foreman King specifically instructed
him to do so; that he had not given her one earlier because
it was an excused absence verified by the doctor: 20 that he
had told King she did not deserve it: that she had had an
excuse; and that Salinas knew of it; but that King said to
him she had been absent and Hernandez was to give her
the warning. Hernandez gave the warning the same day.
Thus, Hernandez on September 22 (and it would appear
following his discussion with Coon) gave Anzaldua a first
warning on absenteeism which involved a four-step
disciplinary rule. The warning given Anzaldua by Hernan-
dez stated:
On August 20, 1976, Mrs. Anzaldua came in with an
excess [sic excuse] from the doctor and Mr. Salinas
OK'ed the excess [sic excuse]. He also told Mrs.
Anzaldua to take whatever time was necessary.
I also told her that we needed for her to come to work
because this company can't operate with employees
being absent from work.
King, testifying generally about Anzaldua's attendance
record, stated that with the two marks in June he probably
would become concerned; but would definitely be involved
over the absences in August. King testified that while he
could not recall doing so it was very possible that he had
directed Hernandez to give Anzaldua this warning as he
had had to do so with Hernandez on several occasions with
other employees. However, when shown the doctor's
statement he testified that would have excused the
absences, adding he might have then recommended an
employee in such circumstances to consider taking a leave
of absence.
I find that the belated warning given to Anzaldua on
September 22 for excused, authorized, and verified ab-
sences in August at the insistence of King over the
objection of her immediate supervisor constituted disparate
treatment and was discriminatorily based.
As to the third warning Salinas testified that this warning
was not accomplished by him; but that General Foreman
King reported that Anzaldua was wasting too much time
being away from her station.
King testified that he discharged Anzaldua himself. King
had Oscar Flores, who had supervised Anzaldua only for a
week, bring Anzaldua to personnel. King told Anzaldua
that she was being discharged more or less for her benefit
as well as the Company's; that they had received several
complaints concerning her not doing her fair share of the
work, doing more talking than working, delaying on
returning to the press line from the cafeteria; and that the
other girls felt they should be so entitled. King also testified
that he had conferred with Salinas about a week before
about Anzaldua and that he went over the complaints
20 In addition to the doctor's statement there was insurance record
verification of a hospital stay for her son from August 17 to August 22
similar to what was accepted as an excuse for other employees.
21 Anzaldua was firm that she did not believe King mentioned she was a
Salinas had received. (The only complaint Salinas testified
he had received related to the "soliciting" warning.) King
also asserted that he had received complaints from former
supervisor Hernandez that other girls did not feel Anzal-
dua was doing her part; and that Salinas told him of
complaints by several employees who resented her work
habits. However, Salinas did not testify as to any such
complaints; and Hernandez denied any specific knowledge
of same. Further, no evidence supporting any of the above
was introduced by Respondent. I reject any implication
from Salinas' testimony that he did not participate in the
discharge interview that he was unaware of the developing
discharge situation of Anzaldua being handled by King in
view of King's admission that he had a discussion with
Salinas about Anzaldua about a week before the discharge.
I further note that discussion would have taken place at the
time or shortly after the determination was made on
LaBuda's discharge. Flores, who was Anzaldua's supervi-
sor during her last week of employment following the
discharge of Hernandez, was not presented as a witness.
Anzaldua worked second shift which started at 3:30
p.m., with breaks from 5:50 p.m. to 6 p.m. and from 9:50
p.m. to 10 p.m., and with a lunch period of 8 to 8:30 p.m.
She worked in a corner of the divided front press line. As a
result of the location of her particular work station she and
her group of five workers were always the first ones to the
cafeteria and always sat at the front table. Similarly, they
were always the first ones up with the buzzer to get back to
their work station. The work position of Anzaldua is
nearest in direction from the cafeteria and of such location
that in going to her station she would not pass other
loaders or workers on the line with whom she would have
opportunity to converse.
Anzaldua's version of her discharge interview differed as
to reasons stated by King. Thus, Anzaldua testified that
King told her that she was discharged because she had
been immoral 2' towards the Company and had a poor
attitude; and that they could not have that kind of
employee there. She testified that no supervisor had ever
before complained to her that she was wasting time.
Hernandez corroborated that during the last month he
worked there he was not aware of any problem over
Anzaldua not timely coming back from breaks or lunch
and that King had never mentioned that as a problem to
him. Anzaldua also testified that no one had ever
complained about her attitude. In contrast, Anzaldua
testified that during the last week of her employment she
observed General Foreman King and her new supervisor,
Flores, take turns staring at her as she performed her work.
She testified that their observance of her work performance
was very unusual and in a manner she had never
experienced before. Under the above circumstances I find
her testimony in that regard is plausible and I credit it.
"morale" problem. In any event. in January 1977 (following her return to
work). Anzaldua was elected by her shift as one of two counsel people who
were to receive the complaints of employees on the entire shift for transfer to
the Employer.
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis, Discussion, and Concluding Findings Re:
The Alleged Discriminatory Discharge of Dominga
Anzaldua
I have earlier found that Respondent enforced an overly
broad "no-solicitation" rule against Dominga Anzaldua on
August II, and further that it did so in a discriminatory
manner in violation of Section 8(a)(l) and (3) of the Act. In
my view, if her subsequent discharge rested in any part on
that warning, as it clearly did, then her subsequent
discharge, without other considerations, was equally an
interference with her Section 7 rights in violation of Section
8(a)(1). Further it would be, and I find was, an extension of
earlier discrimination in its clear causal effect upon the
actual loss of job tenure through discharge in violation of
Section 8(a)( ) and (3). Firestone Textile Company, A
Division of Firestone Tire & Rubber Company, 203 NLRB 89
(1973). I further conclude that Anzaldua received disparate
treatment in the belated second warning of September 22
for previously excused, authorized, and verified absences in
August. I have carefully evaluated the extent of the
evidence that King, during this period, had given Hernan-
dez similar directions for warning issuances to others with
a realistic comprehension that it was King who had
instrumentally effected the first discriminatory warning.
On balance, bearing in mind credited testimony of
Hernandez that he told King that Anzaldua's absence was
excused, and from the nature of the warning given as well
as King's concessions thereon, I conclude and find that the
disparate treatment finds ready and more plausible
explanation as a continuation of discrimination. When the
foregoing is coupled with the observation that it was King
who accomplished her discharge after discussion with
Salinas, but upon grounds I find unsupported, any doubt is
removed. I am wholly convinced and I find that not only
was the second warning for absence also discriminatory
treatment but the subsequent and unsupported alleged
warning for poor work performance is shown under all of
the circumstances to be totally pretextual and discrimina-
torily conceived. I thus find that the real reason that
Anzaldua received warnings beginning on August I and
belatedly was disparately burdened with a warning for
earlier excused, authorized, and verified absences was
because of her strong union advocacy that was known to
Respondent; and that her eventual discharge on October 7
was itself pretextually accomplished in violation of Section
8(a)(l) and (3) of the Act. An appropriate remedy will be
provided hereinafter in "The Remedy" section. At this
juncture it is significant for remedy purposes to note with
regard to Anzaldua that Respondent sent the following
mailgram to Anzaldua on January 3, 1977:
After an additional review and consideration of your
employment termination it has been determined that a
good faith error in administration of the company's
rules and discipline procedure occurred in your
termination of employment on October 7, 1976.
Therefore you are hereby offered reinstatement to your
former job at the Company without loss of seniority or
22 Unexplained of record is the appearance of Coon as Acting Plant
Manager on January 3, 1977.
other employment benefits by virtue of your termina-
tion. You will also receive payment of any lost wages
you have encountered since October 7 to date of
reinstatement. You are to report for reinstatement to
Fernando Salinas personnel manager and be prepared
at 3:30 p.m. January 10, 1977. This offer of reinstate-
ment is made in a sincere and continued effort by the
Company to administer the company's disciplinary
policy fairly and correctly to all employees. You have
charged the Company with terminating you because of
your union activities [but] you can rest assured that
membership in or activities for a labor union had
nothing to do with your termination. Assuming you are
a member of a labor organization or have engaged in
union activities the fact that you have filed an NLRB
charge will have no effect on your future employment
consistent with company policies. All employees will be
treated the same whether they are for or opposed to
unionization.
Russell Coon
Acting Plant Manager 22
The General Counsel has stipulated that Mrs. Anzaldua
was reinstated with all rights and privileges. However, the
General Counsel has noted in his brief that although
Anzaldua had received some backpay it had not been
determined from Respondent's records whether she had
received full backpay. General Counsel requests that an
appropriate order be entered. Such is deemed warranted
and will be provided.
The referenced error in the mailgram in administration
of the Company's rules and discipline procedures was
clarified as resting on the fact that the subject matter of the
warnings were not all of the three-step nature. The initial
warning for solicitation, as indicated, was one of the three-
step disciplinary rules. However, "Absence" and "wasting
time" were both rules in the four-step group. Thus, under
Respondent's disciplinary rules, Respondent has conceded
the (four) number of warnings required were not present
and her discharge was in error.
As urged by Respondent I have not regarded the above
mailgram offering reinstatement to Anzaldua as an
admission or admission evidence that Respondent discri-
minatorily issued Anzaldua the "no-solicitation" warning
or as an admission of the ultimate fact that her discharge
was discriminatory. However, contrary to Respondent I do
note that the admitted additional fact that Respondent did
not follow its own disciplinary procedures in Anzaldua's
termination when coupled with the earlier findings made
above is itself further supportive of the ultimate conclusion
reached, namely, that the presented reasons for discharge
were pretextually conceived and her discharge was in fact
discriminatorily motivated.
There only remains to consider Respondent's contention
that the holding of N.L.RB. v. Burnup and Sims, Inc., 379
U.S. 21 (1964), finds applicability and is a defense available
to Respondent because it believed in good faith that
Anzaldua had engaged in conduct constituting an infrac-
346
PARKER SEAL COMPANY
tion of its last posted rule limitedly prohibiting solicitation
on working time. Contrary to Respondent I find the
holding of Burnup & Sims is inapplicable to the instant case
situation inasmuch as I have concluded in effect that there
was no good-faith belief of misconduct on that matter
arrived at by Respondent, but rather at best an instance of
an opportune seizure of a reported incident and a warning
issuance without investigation, accomplished because of
animus. In any event, an 8(aXI) violation in both the
issuance of the first warning, and the subsequent discharge
based in part thereon, would be made out in my view under
that very holding. For even if I am in error and the Board
should conclude applicability of the striker-conduct princi-
ple of Burnup & Sims to the case situation herein I would
nonetheless reach the same result in regard to an 8(aX)()
violation in view of Anzaldua's credited testimony that she
did not engage in the improper solicitings, the incomple-
teness of Respondent's investigation, and evidence on
when the soliciting incident took place, and the unex-
plained failure of Respondent to produce the alleged
complainant. See and compare Gioieni v. Alitalia Airlines,
90 LRRM 2390 (D.C.N.Y., 1975). Of course the holding of
Burnup & Sims could not reach or account for the evidence
of subsequent discriminatory warning treatment and
discharge also found herein.
4. The alleged discriminatory discharge of
Carolyn LaBuda on October 1
a. The union activity of Carolyn LaBuda
Carolyn LaBuda was hired on March 3, 1975, thus very
shortly after the plant started production. She was one of
Respondent's most senior employees. Some 3 months later
she became interested in and active for the Union. She
attended meetings held at a local motel and at a union
apartment, and held a few meetings at her own home. She
obtained signed authorization cards from other employees.
She was a witness subpenaed by the Union to the
representation hearing on January 28. A copy of the
subpena was retained in her file. She wore a union button
visibly in the plant. Salinas admitted that he was aware at
the time of LaBuda's discharge on October 1 that LaBuda
had favored the Union. I find that the Company was aware
that LaBuda was an active union supporter since prior to
the election.
b. The company assigned reason for LaBuda's
discharge
Personnel Manager Salinas, when initially called under
Rule 61 I(c) of the Federal Rules of Evidence, testified that
Carolyn LaBuda was terminated on October I because she
had accumulated four warnings; two warnings being for
absenteeism and two warnings being for wasting time and
for being away from her work station. All four warnings
were of the four-step disciplinary warning nature and so
she was terminated in accordance with Respondent's
progressive disciplinary procedures. The clear import of
Salinas' testimony as originally given was that complaints
of employees did not play any part in the fourth warning
evaluation that led to LaBuda's discharge.
c. The evidence relating to the warnings and
discussion of the fourth warning
Salinas testified that LaBuda received a first warning in
September 1975, which was a verbal warning for absentee-
ism; and a second warning on December 9, 1975, for poor
work habits and being away from her work station. The
second warning is contested by General Counsel as not
having been a warning at all originally, but rather a
counseling and thus not even serviceable under the
disciplinary procedures to support a discharge. The third
warning was delivered on March 31, for absenteeism, and
is not contested by General Counsel. Finally, the fourth
warning was given October 1, allegedly for wasting time
and being away from her work station and for poor work
habits. Salinas defined wasting time, etc., as meaning
repeated trips to the bathroom, to the water fountains,
consistently away from work station and consistently being
late at the work station because of taking too much time on
breaks. The General Counsel contests the last warning as
being unsupported by the evidence and pretextual in
nature.
As was the case with Anzaldua there was no documenta-
tion of the last warning. LaBuda's discharge was also solely
documented by a change of status form. The General
Counsel introduced evidence of prior discharges on a
fourth warning level which were documented with the
appropriate disciplinary form for the fourth warning.
Respondent introduced no evidence of examples to the
contrary although Salinas testified generally that employ-
ees were frequently discharged without a documentation of
the final warning. However, Coon testified in apparent
contradiction thereof that the procedure was that the
supervisor makes out the warning, and submits it to
personnel where it is determined if it is cause for discharge.
Salinas also testified that he noticed the conduct of
LaBuda relative to the fourth warning as occurring in
August and September; that he personally had observed it
in the last 2 weeks before LaBuda's discharge; and that it
was so obvious that he could not stand it. However, Salinas
conceded that no warning documentation on any of the
above appears in LaBuda's file. Salinas testified that he
informed her supervisor, Sonny Murphy, of these matters.
At material times Supervisor Murphy was in charge of the
backline first shift where LaBuda worked. According to
Salinas, he also informed Supervisor Espinosa who was in
charge of the frontline and General Foreman Barrera. As
will be seen infra, Murphy's observations do not support
Salinas at all; Barrera does so only partially and on
controlling aspects was not supportive; and Espinosa was
not called as a corroborating witness.
(1) The first warning for absenteeism, September
1975
The first warning was given to LaBuda in September
1975 (date unspecified). In that month LaBuda had two
partial absences and one full absence before she took a
leave of absence that extended from September 23 or 24,
1975, to November 18, 1975. In the latter part of August
she had had two tardies and a partial absence. Thus, within
a period of 30 days prior to her leave of absence she had
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
five to six marks. The first warning of September 1975 was
identified as a first-step "verbal" warning for absence in
accordance with the rules. It is documented; appears on a
proper disciplinary form; and is signed by LaBuda and her
supervisor at the time, Reynalds Pina. The summary of the
warning for absenteeism provided: "Carolyn was advised
about her absenteeism and states she has had sickness
which has caused her attendance [sic]. She will improve
and resched. her doctor's appointment later. Also she will
correct her attendance by a better effort to be here."
(2) The second warning-poor work habits,
December 1975
The second warning is contested. This writeup appears
on notebook paper and provides as follows:
Carolyn LaBuda
The employee was talked to on 12-9-75 about poor
work habits, too many trips to bathrooms and water
fountain during work hours. [Emphasis supplied.]
Poor work habits is in reference to spending too
much time of [sic] her work station causing a slowdown
on production.
The writeup was signed by J. Aguilar. No signature of
LaBuda or explanation for lack of the signature of the
employee appears on the record made of the incident.
LaBuda testified that Aguilar on that occasion said he
was told to talk to her; and she was not to be drinking
water so much and going to the bathroom so much.
LaBuda then explained to Aguilar that she was taking
medication. LaBuda testified that at the time she was
experiencing severe headaches and had urinating problems.
She explained that she needed water to swallow the pills
that she was taking. According to LaBuda, Aguilar said he
would move her to the other end of the production line
near to the fountain, which he did; and she stayed there for
about a week. She was not shown the writeup.
Supervisor Joe Aguilar testified in this proceeding about
the incident he recorded in December 1975. He had
noticed LaBuda taking trips to the washroom, bathroom,
and water fountain. She just was not working the way she
had worked previously. He called her in to the counsel
room. He told her what was in the writeup. She explained
her health was not up to normal and she was under a
doctor's treatment. Aguilar asked LaBuda why she had not
told him instead of wasting so much time. He said he
would put her closer to the fountain and washroom, and he
did. According to Aguilar, "I knew I had to give her a
written warning because of this statement of excuse, not
letting me know." However, I note that the latter as a
reason was not referenced at all as a consideration in the
alleged warning.
According to LaBuda, Aguilar said nothing to her at the
time about issuing a warning to her; nor has management
23 Former Supervisor Garcia, called by the General Counsel, testified on
cross-examination that when it was felt an individual was lagging behind,
i.e., not doing the actual full capacity of work; and there was need to bring
to the attention of the employee that the employee was falling behind, they
would take the employee aside, explain the failure and what was necessary
to be done. Garcia testified such action was a counseling and not a warning.
ever told her that she was given a warning over that
incident. No other supervisor was present. According to
LaBuda, Salinas, in a hearing before the Texas Commis-
sion as recently as December 20, testifying under oath,
identified this writeup as a talking to (counseling), not a
warning. Salinas testified in the instant proceeding he did
not recall doing so-and if he did he was in error. I credit
LaBuda and find that she was never previously told that
the December 1975 talking to by Aguilar was a warning;
and that Salinas, in the December hearing before the Texas
Commission in his testimony, in substance and effect
identified this document as a counseling.
With regard to the form of the paper used, Aguilar
testified he had used it before. However, he also testified
that he had given approximately 20 other warnings on
proper forms. When he used the disciplinary warning form
he had usually already talked to the employee before
issuing a warning. There was no evidence that he had
previously counseled LaBuda. He could not recall why
LaBuda did not sign the alleged warning; or even if he
asked her to sign it. According to Aguilar, after the
discussion with LaBuda there was improvement in her
work habits.2 3 In an effort to support the contentions that
warnings and counselings were written on various forms,
Respondent introduced evidence of a counseling written
on a warning form. However, I find that the particular
document offered does not support Respondent's position.
To the contrary, the document, although written on a
warning form, clearly identifies the fact that it is an
intended counseling. If anything would follow from such
evidence it would be the conclusion that if the writeup by
Aguilar was a warning but not on a proper disciplinary
warning form, it similarly would have identified itself
clearly as an intended warning.
(3) The third warning-absenteeism, March 31
This warning is on the proper disciplinary action form. It
was given by LaBuda's then supervisor, Jose R. Barrera, on
March 31. In form, it is a written warning for absenteeism.
It is identified as a second offense. Salinas explained the
notation of second offense (though contended to be a third
warning) as referring to the warning being given for the
second time for absenteeism. The summary of the offense
provides:
The employee was given a verbal warning in September
for the same offense. Since, she has been absent four
times, one excuse for court subpoena,2 4 two partials
and one tardy. She has averaged 2 days per month. This
is a violation of Rule No. 3. The employee was advised
of what can happen should this problem not be
corrected.
The form shows LaBuda refused to sign.
Barrera testified that on a performance review of March
8 he had noticed that LaBuda was slowing down.
Shown the document in question he testified that in his opinion it was a
counseling, not a warning.
24 The stated court appearance was for the earlier referenced representa-
tion hearing. According to testimony of Salinas. it was not counted. In any
event. I note that the matter is 10(b).
348
PARKER SEAL COMPANY
According to Barrera, when first hired, LaBuda was a good
loader, knew the job, and performed quality work.
However, he subsequently noticed that she was slowing
down, standing around the press line. Accordingly,
covering the period December 1975 and January and
February 1976, he rated her as to quality and job
knowledge the second highest rating (average), but as to
volume of production, cooperation (which includes atten-
dance), and progress in the third highest category (below
average). Following her rating in the month of March,
LaBuda had two additional absences in that month. On
March 31, Barrera issued LaBuda the above warning.
According to Barrera, LaBuda's stated reason for refusing
to sign the warning was that it should not be a written
warning but a verbal warning since she had worked at that
time over a year. Barrera disagreed with her interpretation
of the rules stating that it was his understanding that her
record would not be cleared until I year after the last
warning. After checking with Salinas he confirmed it.
LaBuda still refused to sign the warning. LaBuda did not
deny the above. I credit Barrera in this respect. I further
find that under Respondent's progressive disciplinary
system infractions of the same rule were considered beyond
an employee's anniversary year.
Barrera testified that for the next 6 months her
attendance improved substantially. In fact, LaBuda's
attendance chart shows only one tardy, one partial
absence, and one full absence in that 6-month period prior
to her discharge on October I. Obviously this corrective
warning accomplished its purpose.
(4) The fourth warning and the discharge of
LaBuda on October 1
Carolyn LaBuda testified that on Friday, October 1,
when she had not received her check she inquired of her
supervisor, Sonny Murphy, where her check was. He was
surprised that she did not have it already and said he would
check on it for her. However, when Murphy came back he
said nothing to LaBuda. When General Foreman Barrera
came by she also asked him about the check. At first
Barrera did not answer but almost immediately thereafter
called her to the front office. Personnel Manager Salinas
was present in the office. According to LaBuda, Salinas
told LaBuda that she had a poor attitude towards the
Company; that he had received several complaints about
her. Salinas said they could not have this in the Company
and he felt that they had to terminate her. She was then
given her check. Salinas told her that Barrera would escort
her out. LaBuda replied she did not need to be escorted
out, she had walked in and could walk out by herself.
Preliminarily it should be noted that Barrera had
returned from a 90-day assignment to Respondent's
Mexico plant and after several rotating assignments
Barrera was assigned in July as first-shift supervisor in the
finishing department. At the time there were four first-level
supervisors and no general foreman on the first shift. There
were two press supervisors on his shift (Murphy and
Espinosa) and a stock prep supervisor (Aguilar). As
finishing department supervisor Barrera was in charge of
an area that did not include responsibility over the press
line but from which he could partly observe employees
returning from the cafeteria to their duty stations on the
press line, Barrera testified that he observed during that
period some employees were late coming back from breaks.
According to Barrera, he had observed LaBuda walking at
the end of the crowd. Barrera also testified that a couple of
days before he made general foreman he had mentioned to
press line Supervisor Jessie Espinosa that LaBuda was a
little slower than the other girls getting back to the line. As
noted, several occasions heretofore, and particularly on
this matter in conflict, Espinosa was not called as a
corroborating witness.
Barrera was promoted to general foreman on September
16. According to Barrera, LaBuda was taking too much
time getting back from break and some of the people were
getting slow also about coming back on her account.
Barrera, without any clarification why, apparently consid-
ered LaBuda was responsible for the other employees being
slow. According to Barrera, he told Supervisor Espinosa to
hold meetings with the people and instruct them when the
buzzer went off to return promptly to their work station.
When asked why he did not have the supervisor instruct
LaBuda directly (especially if she was considered principal-
ly responsible), Barrera asserted he did not want to develop
a situation of "They're picking on me." His expressed view
was that only after the group is corrected one or two times
it is time for the individual to be taken aside and
disciplined. Barrera reports that after Espinosa had the talk
with employees he noticed that for about a week all the
employees came back at a pretty good pace, but after the
week they again started to slump. Quite significantly
Barrera did not place LaBuda in the group who let down
after Espinosa's warning to all the employees.
According to Barrera, about a week before LaBuda's
discharge, Salinas spoke with Barrera and told him he had
received some complaints from some hourly people that
Carolyn was not doing her share of the work in the back.
Barrera told Salinas he had received no such complaints.
Barrera also told Salinas he had not seen LaBuda slow
down going back to her work station after Espinosa's talk.
According to Barrera, Salinas instructed him to make sure
that she did not leave her work station. Salinas told
Barrera, "I have noticed her come back off breaks late,"
and Barrera confirmed he had also, referring to his earlier
observations.
According to Barrera, during that week threatening
writings had appeared on the wall derogatory to second-
shift General Foreman King. On September 30, a new
writing appeared to the effect: "you're as good as dead."
Acting Plant Manager Coon asked Barrera if he felt there
was any meaning to the threats and Barrera answered there
might or might not be. On the same day, Salinas called
Barrera into his office and told him that Salinas had
received complaints that hourly employees just could not
work with LaBuda as she just would not pull her weight.
Salinas notified Barrera he had decided to terminate her.
That evening Coon notified Barrera that King was being
transferred to first shift and Barrera to second shift the next
day, October 1. Coon told Barrera that he would have to
come in early to handle the discharge of LaBuda.
Essentially Barrera's version of the discharge interview
comports with that reported by LaBuda, except that he
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adds Salinas specified that there were complaints from
hourly employees that they did not want to work with her
any more; and that in her exit LaBuda made an off-color
remark to Barrera.
LaBuda testified that her practice in returning from
breaks in the months before her discharge was normal. She
always went and returned from breaks with her regular
coworker, Charlene Garza, who received no warning. She
would occasionally briefly greet other employees and get a
drink of water as other employees did. Usually there were
some employees ahead of her and some behind her. She
denied lingering and returning late from breaks, or being
late due to drinking water at the fountain. As previously
indicated she testified without contradiction that no
supervisor spoke to her individually about her coming back
late from breaks. Salinas named three employees he
claimed he had observed LaBuda talk with on return from
breaks during this period. LaBuda testified credibly that
her route to and from breaks did not take her near two of
the employees named by Salinas because at that time
(before her discharge) they worked at the other end of the
press line.25 Respondent did not contend she left the direct
route back to her work station. LaBuda could not converse
with the third employee because the third named employee
did not speak English and LaBuda did not speak Spanish.
Charlene Garza, also one of Respondent's oldest em-
ployees, a regular coworker with LaBuda and on the same
team with LaBuda, corroborated LaBuda as follows:
Garza confirmed that they went to breaks together,
returned together, and that they did so no differently than
did other employees. Garza confirmed that the two
employees named by Salinas did not work at that time near
where LaBuda would have had occasion to talk to them,
and that LaBuda did not do so. She confirmed also that
they were moved after LaBuda's discharge. Garza also
confirmed that the third woman did not speak English.
Garza confirmed that Jessie Espinosa, supervisor of the
front line at the time, had talked to all employees about
their not returning promptly from breaks and going to
water fountains or restrooms too much. Sonny Murphy,
supervisor of the back line, testified that he also did have
talks to employees about getting back on time and many
other things; and that he gave such talks frequently, as
much as twice a week.
It has been previously noted that initially when called as
a 61 I(c) witness, Salinas downgraded the fourth warning as
being based on complaints received from employees rather
than based on his and other supervisors' observations.
However, both LaBuda and Barrera, supra, related that in
the discharge interview such complaints were referenced as
principal cause for her last warning and discharge on
October 1. Indeed, Barrera's testimony appeared to give
paramount importance thereto in Salinas' decision, for
after Espinosa's talk, according to Barrera, he did not
observe LaBuda recede into late return habits as did other
employees; nor had he received any complaints about her.
I shall next consider the evidence that was offered by
Respondent concerning the complaints of employees
25 Two of these employees were moved after LaBuda's discharge to
positions on the line by which LaBuda would then have had occasion to
pass.
registered against LaBuda. Respondent offered testimony
of complaints from three employees.
Maria Lugo testified that she worked with LaBuda
during the first 2 weeks of September. Immediately before
this time, Lugo had been a cooling attendant for 6 months
and after a reported 2 weeks on the back line with LaBuda
she was transferred to the front line. However, she did not
work on the same team with LaBuda. Significantly, Lugo
had worked with LaBuda for 6 months in 1975 pnor to
LaBuda's admitted attendance problems and hospitaliza-
tion. Lugo testified that during the September period
LaBuda was always going down to the ladies' room, or
drinking water, or talking to someone on the next station.
According to Lugo, she registered a complaint with Barrera
about LaBuda not working as the other girls did. As noted
earlier Barrera did not become general foreman with the
responsibility over the entire plant, including the press line,
until September 16, and he recalled no complaints made to
him in that period about LaBuda. Lugo also testified she
had never told Salinas about her complaint. I find Lugo's
testimony above unpersuasive and probably mistaken as to
time of her observations.
Carolina Trevina testified that she worked either for a
week-and-a-half, or for a month-and-a-half with LaBuda
before LaBuda was discharged. During this period LaBuda
made her very nervous because while they were working
alone LaBuda would just disappear going for water, or to
the bathroom, or talking to an operator. However, Trevina
also testified that by the time Murphy became a supervisor
of the back line she had already been transferred. It was
established that Espinosa moved to front line supervision
on July 16, and Murphy became supervisor of the back line
at that time. Thus, the basis of Trevina's alleged complaint
would necessarily relate at least to a period prior to July 16.
Nonetheless, Trevina also testified that she registered a
complaint with Espinosa during the latter part of August
because he spoke Spanish and that Espinosa said he knew
what was going on and would work something out. Again,
Respondent did not offer Espinosa as a witness to
corroborate this testimony. I find Trevina's testimony
confusing, in parts contradictory, and at best indicating
observances made of LaBuda's conduct prior to July 16.
The third employee witness presented by Respondent
was Endelia Carreon. Carreon was transferred to the first
shift on June 1. According to Carreon, she worked with
LaBuda that summer and LaBuda tired her out a lot
because she did not help like she should. Carreon testified
that LaBuda "killed" a lot of time going for water, to the
restroom, and talking to operators. LaBuda would also
leave to check preparations and always left to get cards
necessary for production orders. The record establishes
that these cards are normally brought by the cooling
attendant to the work station. Garza testified that it was
not unusual for an employee to go and get a new supply of
cards, that she did so as well as LaBuda; and that LaBuda
did not take any more time than the others.
Finally, according to Carreon, at her review she regis-
tered a complaint about LaBuda with Espinosa. She
testified that her review took place approximately 3 weeks
350
PARKER SEAL COMPANY
before LaBuda was terminated. The General Counsel
introduced an employee performance review for Carreon
which bears the date of August 27, though it shows
Foreman Espinosa's signature with the date of September
2. I have earlier noted that Espinosa was transferred to
front line supervisor on July 16. In further examination,
Carreon could only estimate that she worked anywhere
from 2 to 4 weeks with LaBuda and was transferred
anywhere from I to 3 months before LaBuda was
discharged.
The performance rating of Carreon for this period shows
that she was rated with the highest rating for quality and
progress, second highest rating for volume of production
and job knowledge and third highest rating (below average)
for cooperation. Carreon confirmed that during the period
covered by the review she had been absent a lot which was
a factor evaluated under cooperation.
In contrast and with regard to LaBuda's work perfor-
mance during the 6 months prior to her discharge, the
General Counsel introduced the last two performance
reviews of LaBuda. A review given on 6-3-76 by Joe
Aguilar shows that LaBuda received the highest grades
(above average) in volume, job knowledge, cooperation
(which included attendance) and progress. She received
second highest grading (average) in quality. The employee
performance review was initialed by Salinas. LaBuda
received a 7-cent increase on that occasion which brought
her to the top rate of $2.60.
Again on September 3, LaBuda was rated in the same
manner by a different supervisor, Sonny Murphy. This
employee performance review was also initialed by Salinas
on September 7, as well as by Coon. Murphy's attempted
detraction therefrom that since she had already obtained
the top of the rate "I took the easiest way out-I guess" is
totally unconvincing. To the contrary, I further find that
Murphy could not understand LaBuda's discharge at the
time to the point that he made special inquiry of Coon and
Salinas about it. Thus, on cross-examination Murphy
testified he had spoken to both Coon and Salinas about her
discharge and they said that they had been getting
complaints from other people on the line, "didn't he know
that." Murphy replied he did not. Murphy asked what were
the nature of the complaints and was told the employees
could not work with Carolyn and she was late on breaks.
Murphy further testified that he was aware of no com-
plaints against LaBuda from July 6 until terminated; that
the line was his responsibility and that Salinas had not
informed him about problems with LaBuda prior to her
discharge.
Analysis, Findings, and Conclusions Re: The
Alleged Discriminatory Discharge of Carolyn
LaBuda
Essentially, the General Counsel contends that the
discharge of Carolyn LaBuda on October I, as asserted by
Respondent for having accumulated four warnings, was
actually pretextual; and that the real reason LaBuda was
discharged was because she was prominent as a known
active union supporter and because of Respondent's
animus towards the Union during the ongoing union
organizational campaign continuing at the plant. General
Counsel has also argued that the discharges were accom-
plished to offset anticipated effects of posting of a
settlement agreement notice already approved by the
parties and by the Regional Director and in Respondent's
hands but delayed until after the accomplishment of the
latter purpose. Respondent essentially contra-contends
with assertion that the employer may discharge an
employee for any reason or no reason at all, so long as it is
not shown to be a discriminatory reason, N.LR.B. v. T. A.
McGahey Sr., etc., d/b/a Columbus Marble Works, 233 F.2d
406, 413 (C.A. 5, 1956). Respondent argues that even if
there is evidence inferring an unlawful motive, if the
evidence equally infers a lawful motive, then no unfair
labor practice can be found, citing N.LR.B. v. Huber &
Huber Motor Express, Inc., 223 F.2d 748 (C.A. 5, 1955).
However, a discipline or discharge may be an unfair labor
practice if an unlawful motive played any part in the
managerial decision, General Tire of Miami Beach, Inc., M.
O'Neil Properties v. N.LR.B., 332 F.2d 58, 60 (C.A. 5,
1964). Preliminarily, I find Respondent's position on the
discharge of LaBuda shifted during several stages of the
case development. The initially stated position of record
was that LaBuda was discharged for the accumulation of
four violations of its rules. The General Counsel contested
the second warning was not originally a warning, but
rather a counseling and further contended that the alleged
undocumented fourth warning was a pretext. Although not
contested, the evidence was offered on the first and third
warning, properly so, because the attendant facts relating
thereto serve as background and are informative on other
material issues including in comparison with the contested
warnings. Additionally, I now note that in contrast with the
former warnings where there is clear and consistent
supporting evidence appearing of record, the state of the
evidence bearing on the second and fourth contested
warnings was usually strained and consistently unconvinc-
ing.
The General Counsel contends the second warning was
not originally a warning but a counseling and that, in
effect, Respondent has herein sought to make it into a
warning solely for the purpose of supporting at a later date
a pretextual discharge and to conceal the real motivation of
that discharge.
The writeup in question was not on the proper usual
disciplinary form that is utilized in a warning. It contained
no employee signature or explanation for lack of same as a
warning usually does carry. It was not given in the presence
of a second supervisor as was required and accomplished in
other instances shown of record. It was written on
notebook paper on which counselings could be expected to
be written and frequently were; and it was expressed in
language especially applicable to a counseling. Contrary to
what should be regarded as the logical purpose in issuing
the more serious written warning, the employee was never
told that she had been given a warning on her job
performance. The supervisor called to testify about this
matter a year later asserts he intended a warning because
the excusing circumstances presented by the employee in
the situation had not earlier been brought to his attention.
However, such reason not only does not appear therein,
but there is no hint of same from the actual writing. In
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrast, the same supervisor testified frankly he has given
20 or more warnings on proper form but usually only after
a talking to or counseling has been accomplished with the
employee first. There is no evidence he had talked to
employee LaBuda before this occasion. The personnel
manager in another forum as late as December, I have
found, actually identified the writeup as a counseling
although he now claims in this forum when the issue is
critical that, if he did so, he was simply in error and it was a
warning. Another former supervisor, but employed as a
supervisor during the same general period, recounts that
instructions he received from Salinas in the presence of the
then plant manager defined a counseling as a procedure
intended for an employee falling behind in work in
circumstances such as herein. That supervisor identified
the above writeup as in form a counseling. The foregoing
considerations are more than persuasive, they are compel-
ling. I now find that the second alleged warning was in fact
originally a counseling and as such according to Respon-
dent's own elaborate disciplinary procedures was intended
to be outside that disciplinary structure and not available
to support a discharge.
In my view the fourth warning is shown by this record to
stand on no more secure a footing. The factual consider-
ations are only more tedious to marshall, but not resolve.
Respondent's position was that a fourth warning was given
to LaBuda on October 1. The reason assigned was given
originally in general terms as being for wasting time, being
away from work station and poor work habits; later
specified as involving repeated trips to the bathroom and
water fountain, and taking too much time on breaks; with
a still further specific contention that the personnel
manager had observed LaBuda improperly talking to
specific individuals on the line. Initially Respondent's
position was one limited to reliance on supervisors'
observations which did not involve employee complaints.
The time frame of the observations by Salinas was in
August and September with his personal observations in
the last 10 days prior to discharge being of a magnitude
that caused Salinas to testify he could not stand it. First, I
note that despite a conceded elaborate documentary
provision for disciplinary and counseling procedures, there
is no documentation of any of these deficiencies. I find it
hard to accept that no record would be made by any
supervisor of all the wrongful conduct of the kind and
magnitude indicated by Salinas as having occurred in that
long period, particularly so, where potential discharge
would be of a known active union adherent. I find that the
two employees who were identified by Salinas as employ-
ees that he observed LaBuda engage in conversation
during worktime were in fact not in work areas to which
LaBuda even had access prior to her discharge. Nor do I
find any alleged conversation likely with the third identi-
fied employee who was unable to converse with LaBuda
because of language barrier.
There was testimony by General Counsel's witnesses that
two of these employees were transferred to different work
areas where LaBuda would have had access but this was
accomplished only after LaBuda was discharged. There
was no evidence introduced to the contrary by Respondent
and the testimony of the employees themselves in support
of such incidents was not offered at all by Respondent. On
the record before me I find that Salinas is mistaken about
these incidents and that these alleged improper conversa-
tions by LaBuda during working time simply did not occur.
In regard to that certain conduct that Salinas asserts he
observed and reported to Supervisors Murphy and Espino-
sa for correction, as indicated, the record shows no
corroborative support by either of these supervisors. This is
so since Espinosa did not testify and the clear import of
Murphy's testimony was that he had observed no such
problems and that he was kept uninformed to the point he
subsequently questioned the reason for the discharge of
LaBuda. Such a circumstance is highly incompatible with
the kind of conduct LaBuda was asserted then to be
engaged in. Even the partial corroboration of Barrera is
observed to raise its own set of inherent improbabilities.
Thus, Barrera on the one hand testified that LaBuda was
observed lagging behind others in returning from breaks
and that he further attributed to her some degree of
responsibility for the conduct of others being late. At best
what was presented, however, was a speculation since no
evidentiary base for that causation appears herein. But
even assuming that such a speculation is fairly within the
province of a general forman's duties and concerns, I also
note that there was no mention of LaBuda's shortcoming in
that regard made to LaBuda despite the availability of
Employer's counseling procedures. The asserted reason for
the failure to do so, namely, that this was because of a fear
that action in that regard would generate a feeling of being
picked on, is incongruous with evidenced exercise of
disciplinary power by Barrera that appears of record. Any
question on the matter disappears with the consideration
that even Barrera admits that after talks were given to all
employees by the supervisors about 2 weeks before the
discharge of LaBuda, that for a week thereafter, there was
improvement by all employees. Further, although others
receded to their old ways as far as he had observed LaBuda
was not one of them. The more significant is his testimony
in that regard when it is noted that according to Barrera's
own testimony his observations would be after Salinas
initially reported he had received specific complaints about
LaBuda that she was not doing her share of the work and
was directed by Salinas to make sure that LaBuda did not
leave her work station. I find it nothing short of incredible
that Barrera would not have thereafter been most attentive
in watching LaBuda. Nonetheless it was Barrera's testimo-
ny that it was not he who initiated the discharge action on
LaBuda but Salinas who thereafter reported to him that
complaints had been received that employees would not
work with LaBuda because she would not pull her weight;
matters which were neither observed by nor the subject of
complaint directly to Barrera. Finally, the only complaints
of employees that were offered by Respondent were of
three employees discussed above which I have found
inconclusive and wholly unpersuasive. Parenthetically, I
again note the shift in position from one initially indicating
352
PARKER SEAL COMPANY
there was no reliance placed on employees' complaints to
one giving them considerable prominence.2 6 But even the
evidence finally offered of the employee complaints when
considered on its own merits is totally unpersuasive and
unconvincing for the reasons that have been explicated
above. 27
In contrast the testimony of LaBuda of normal conduct
in her employment was credibly given on the stand. It was
corroborated by her coworker Charlene Garza. Even more
persuasively the same was supported by Respondent's own
records showing LaBuda's above-average evaluations from
two supervisors received over a period of 6 months. 2 8
Supervisor Murphy's suggestion that he perhaps took the
path of least resistance in evaluating LaBuda is clearly a
lame excuse which I reject as inconsistent with the import
of his own written evaluation. It is also inconsistent with
his concurrent actual conduct. Moreover, left totally
unexplained even in that circumstance would be awareness
of Salinas in that evaluation for the 90-day period prior to
September 7, which essentially encompassed the period of
offered employee complaints.
I have also earlier concluded that the second warning
was not a warning but a counseling. It follows that a
discharge based on required four-warning accumulation
which would seek to make use of the foregoing counseling
would in fact beunsupported. The General Counsel has
contended additionally that Respondent's own rules were
not followed in still another particular, namely, in regard to
a requirement for accumulation of four warnings in a year.
Respondent has contended that an employee's record is
not cleared until a year has past without any infraction of
the rules. Although this is not one of the rules printed in the
manual there was evidence that the rule was so adminis-
tered in the past. Respondent contends that it operates a
progressive warning system and that in a progressive
warning system prior violations may be retained and
utilized even though they may antedate a given year of
employment. Although this rule also does not appear in the
printed employee manual I would not regard that as
crucial. At the outset I note I do not regard it as my proper
function to resolve ambiguities that may exist in the
printed rules of Employer's disciplinary procedures. But by
the same measure in the above circumstances it is not
proper to ignore a contention raised in an unfair labor
practice setting that the plain meaning of Respondent's
own printed rules have been discarded or obviated.
Respondent's printed rule provides:
The accumulation by an employee of any four (4) such
verbal or written notices or other disciplinary actions in
[a] twelve (12) month period may be cause for
discharge.
26 This is not to be construed as a conclusion that the subject employee
complaints did not come up. Both LaBuda and Barrera testified they did.
The point, however, is that the testimony of Salinas originally given under
611(c) indicated to the contrary. Barrera himself could not testify to
personal knowledge thereof; and the evidence eventually offered in that
area was confusing and wholly unconvincing.
27 That an employee ma) r in testimony have mistakenly recalled
circumstances or instances relating to LaBuda's earlier work difficulties in
1975 is beside the point. I find that they made no reports on such matters to
supervisors on conduct occurring in August and September I further find
The four warnings under discussions were not for infrac-
tion of a single rule to bring in the progressive disciplinary
procedure that would plausibly extend beyond a year, but
rather were for a combination of infractions of rules that
clearly brought the printed 12-month rule to bear. Since the
initial warning of the four utilized herein was given in
September 1975 and the discharge of LaBuda accom-
plished in October 1, 1976, 1 find that the four warnings
herein utilized were not warnings accumulated within a
year or any 12-month period as provided and clearly set
forth in Respondent's own rules.29 Salinas sought to
explain this variance by an exclusion of LaBuda's 1-2
months leave of absence, thus increasing the "twelve (12)
month period" to over a year by interpolating it as a 12-
month actual work period. However, this not only departs
from the clear meaning of the printed rule, but I note that
her 90-day period reviews in evidence were continued on
the base of her original hire date, as was her seniority.
From the foregoing it becomes readily apparent that
when an analysis is made of all of the facts below the
surface-stated reasons, the support for same is found to be
porous with inconsistencies. There is only one conclusion
which is to be reached in such circumstances and which
accounts for the above. I find the reason advanced for the
discharge of Carolyn LaBuda on October I is shown on the
record before me to be contrived to support a pretextual
discharge. I find that the real reason for the discharge of
Carolyn LaBuda on October I was because of her known
active union support and prominence in circumstances
then attendant of an ongoing union campaign in the plant
and Respondent's demonstrated continued deep animosity
thereto. I thus find that Respondent discriminatorily
discharged Carolyn LaBuda on October I in violation of
Section 8(a)(3) and (I) of the Act. Dynacor Plastics &
Textiles Division of Medline Industries, Inc., 218 NLRB
1404 (1975). Having so concluded I shall provide an
appropriate remedy therefor hereinafter.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By publishing, maintaining, and enforcing an overly
broad Rule 15 prohibiting solicitation in its plant during
working hours, Respondent has interfered with, coerced,
and restrained its employees in the exercise of rights
guaranteed them by Section 7 of the Act, and thereby
engaged in and is engaging in unfair labor practices
proscribed by Section 8(aX 1) of the Act.
that LaBuda's immediate supervisors placed no reliance on complaints of
these individuals dunng that period of time.
2R In contrast employee Carreon's evaluation for the quarter before
hearing herein was below average in all areas including for a second time in
cooperation.
29 Reasonably to be excluded would be any consideration of the month
of October in an assessment of the 12-month period inasmuch as only I day
would be well arguably within the spirit of the year rule. The addition of the
month of September, however, clearly brings it beyond the 12-month period.
353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminatorily issuing a warning to Dominga
Anzaldua for soliciting under the aforesaid Rule 15; and
by terminating Carolyn LaBuda and Dominga Anzaldua
to discourage membership in the Union, Respondent
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
I have found that Respondent discharged Carolyn
LaBuda and Dominga Anzaldua because of their activities
on behalf of the Union. All the parties are in agreement
that Respondent has already reinstated Dominga Anzal-
dua. While some backpay may have been paid to Anzaldua
the General Counsel apparently was not privy to its
evaluation. In any event, in his brief he has urged that the
usual backpay remedy be provided for Anzaldua. I shall,
therefore, recommend that Respondent reinstate Carolyn
LaBuda to her former job or, if that job no longer exists, to
a substantially equivalent position, with all her seniority
and other rights and privileges. I shall further recommend
that LaBuda and Anzaldua be each made whole for any
loss of pay which they may have suffered as a result of the
discrimination practiced against them. The backpay pro-
vided for herein shall be computed in accordance with the
Board's formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum, computed in the manner prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The
backpay ordered will make allowance for any backpay
already paid to Anzaldua.
I have also found Respondent promulgated, maintained,
and enforced an overly broad no-solicitation rule applica-
ble in the plant during working hours. I shall recommend it
cease and desist therefrom. In fashioning an appropriate
remedy I have considered that I have further found on
complaint allegation that Respondent unlawfully issued a
warning to Anzaldua on August I , thereunder. Similarly,
after a full litigation, I have found the warning of
September 22 given for previously excused absences was
tainted. I shall recommend that Respondent be ordered to
cancel both warnings given to Anzaldua and expunge them
from its records, and to notify Anzaldua in writing that it
has done so. Tekform Products Company, a division of Bliss
& Laughlin Industries, 229 NLRB 733 (1977). Finally, I
have also found that Respondent has construed a nondisci-
plinary procedure counseling given to LaBuda as a
warning within its progressive disciplinary procedure in
order to support her discharge, found discriminatory
herein. As part of the remedy provided for LaBuda's
discriminatory discharge I shall recommend that Respon-
30 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec.
dent specifically be ordered not to do so in the future.
However, as the presence of a counseling in LaBuda's file
appears to be in accordance with Respondent's prior policy
I shall not recommend that it be expunged. As the unlawful
conduct of Respondent in discriminatorily discharging
employees strikes at the heart of the Act, I conclude that
Respondent should be required to cease and desist from in
any manner interfering with, restraining, or coercing its
employees, N.LRIB. v. Entwistle Manufacturing Company,
120 F.2d 532 (C.A. 4, 1941); California lingerie Inc., 129
NLRB 912, 915 (1960).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 30
The Respondent, Parker Seal Company, a Division of
Parker-Hannifin Corporation, McAllen, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Publishing, maintaining in effect, or enforcing any
plant rule or regulation prohibiting its employees from
solicitation on behalf of United Paper Workers Interna-
tional Union, AFL-CIO, in any area of its plant during
their nonworking time.
(b) Discouraging membership of its employees in the
above-mentioned or any other labor organization, by
discharging or otherwise discriminating in regard to the
hire or tenure of employment or any term or condition of
employment of its employees.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargaining collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action designed to
and found necessary to effectuate the policies of the Act:
(a) Forthwith rescind and vacate its plant Rule 15, as the
same appears in its employee handbook formulated on or
about July 1, 1976, and published to employees in mid-
October 1976, to the extent that it prohibits employees
from soliciting on behalf of any labor organization in any
area of its plant during their nonworking time.
(b) Offer to Carolyn LaBuda immediate, full, and
unconditional reinstatement to her former job or, if such
job no longer exists, to a substantially equivalent one,
without prejudice to her seniority or other rights and
privileges. Make Carolyn LaBuda and Dominga Anzaldua
whole for any loss of earnings they may have suffered by
reason of the discrimination against them, in the manner
prescribed in the "The Remedy" section.
(c) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records and
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
354
PARKER SEAL COMPANY
reports, and all other records necessary or useful in
determining compliance with this Order or in computing
the amount of backpay due as above provided.
(d) Cancel and remove from the file of Dominga
Anzaldua the warning issued on August 11, 1976, for
soliciting during working hours and the warning issued on
September 22 for previously authorized, excused, and
verified absence. Construe the counseling given to Carolyn
LaBuda in December 1975 as a counseling in the future
and not as a warning under its progressive disciplinary
action procedures.
(e) Post at its plant in McAllen, Texas, copies of the
attached notice marked "Appendix."3 ' Copies of said
31 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
notice, on forms provided by the Regional Director for
Region 23, after being signed by an authorized representa-
tive, shall be posted as provided herein immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to ensure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
355