Parker Seal Co.

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