United States Cold Storage

UNITED STATES COLD STORAGE 423 United States Cold Storage and Joseph R. Arroyo. Case 17-CA-5498 January 16, 1974 DECISION AND ORDER were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Oral argument was waived. Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record herein and upon my observation of each witness appearing before me, I make the following: BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 28, 1973, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 shat Respondent, United States Cold Storage, Kansas City, Missouri, its agents, officers. successors, and assigns, shall take the action set forth in the said recommended Order. I In par 7 of sec.L,B,5. of his Decision, the Administrative Law Judge stated that "Arroyo testified he was never warned about his leaving early and Mackay did not contradict this testimony " The record shows that Mackay did testify that Cress warned Arroyo about leaving work without permission However, as we find that the record as a whole supports tie finding that Arroyo was discharged for engaging in protected activities in violation of Sec 8(a)(1), we find it unnecessary to resolve the conflict in this testimony. DECISION S rATEMENT OF THE CASE MORTON D. FIuEDMA_J, Administrative Law Judge: Upon a charge filed on February 14, 1973, by Joseph R. Arroyo, an individual, herein called Arroyo or the Charging Party, the Regional Director for Region 17 of the National Labor Relations Board, herein called the Board, issued a complaint on March 29, 1973, on behalf of the General Counsel of the Board against United States Cold Storage, herein called the Respondent or the Company, alleging violations of Section 8(a)(1) of the Act. In its duly filed answer, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, a hearing in this case was held before me at Kansas City, Kansas, on April 24, 1973. All parties FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a division of American Consumer Industries, Inc., a New Jersey corporation, engaged in the operation of public warehouse and cold storage facilities in various cities of the United States. Among its facilities, it maintains a warehouse located at 1501 West 27th Street, Kansas City, Missouri, herein called either the "Ware- house" or the "Cave." The Respondent annually performs services of a value in excess of $50,000 directly for customers located outside the State of Missouri. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE UNFAIR LABOR PRACTICES A. The Issues The complaint herein alleges that the Respondent discharged employee Joseph R. Arroyo discriminatorily for engaging in protected concerted activity . It further alleges that the Respondent instructed an employee to engage in surveillance of Arroyo's protected concerted activity. The Respondent's answer denies the commission of any of these unfair labor practices and, additionally, the Respondent defends on the basis that Arroyo was an employee aligned with management and not entitled to the protection of the Act. Thus the issues are: 1. Was Arroyo an employee within the meaning of the Act and entitled to the protection of the Act? 2. Did the Respondent discharge Arroyo for engaging in protected concerted activity which consisted of assisting in filing complaints of racial or national origin discrimina- tion with the Kansas City Human Relations Department on behalf of three fellow employees? 3. Did the Respondent, through its warehouse superin- tendent instruct an employee to engage in surveillance of the alleged protected concerted activities of Arroyo? B. The Facts 1. Arroyo's employment history with Respondent Arroyo was hired on August 17, 1970, as a warehouse- man at the Cave at the rate of $3.06 an hour. He evidently performed very well and by November 23, 1970, he was asked by Respondent's warehouse superintendent, Robert Mackay, if he would be interested in becoming a checker. This meant that Arroyo would have to give up membership in the Union which represented the warehousemen, Amalgamated Meatcutters and Butcher Workmen of 208 NLRB No. 62 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North America, AFL-CIO, Local No. 576. Checkers were not represented by a union and, according to the testimony of Mackay, were considered "management men" Arroyo accepted Mackay's offer and, as a result, was promoted to the position of checker in which position he started at the rate of $3.30 per hour. By the time of his discharge on February 14, 1973, Arroyo was earning $4.19 per hour as a checker. 2. The status of checkers The checkers work on the loading docks. At the Cave, there are two loading docks, the front or truck dock where merchandise is received or shipped out by motor truck and the car dock or rear dock by which the merchandise is received or shipped out by railroad cars. According to Respondent's warehouse superintendent, Mackay, the principal duties of the checkers are to keep the record or manifest of what goes into a car, row by row, to keep a count of the product going into the car, and to see that the warehousemen load the car properly. This involves loading the car to the proper height so that the space can be best utilized and so that all the product that is supposed to be loaded into the car is so loaded. As noted above, Mackay testified that the checkers were considered "management men and were expected to manifest loyalty to the Respondent." Richard Winans, a checker, testified that he considers himself part of management. In support of this testimony, Winans stated that he attended management functions. However, on cross-examination, Winans admitted that these were social functions to which the checkers were invited and consisted, in the main, of parties given to individuals who were leaving the firm or such functions as Christmas parties He admitted that no one is required to attend and that these functions are held after work or on weekends. Additionally, Winans testified that he has the "right" to recommend hiring and firing of employees to his supervi- sor. However, he admitted, on cross-examination, that the extent of this "right" with regard to hiring and firing is limited to giving his opinion as to whether the individual in question should be hired or fired. He did not testify that his recommendations are effective or that the Respondent's supervisor gave any particular weight to such recommen- dations. Additionally, the record shows that in May 1971, Teamsters Local 838 filed a petition' to represent the shipping and receiving clerks including checkers and that Arroyo voted in that election which took place on June 19, 1971. The Teamsters lost the election. The record also discloses that the checkers punch timeclocks as do the warehousemen and other rank-and- file employees, are hourly paid as are the warehousemen, work the same hours as warehousemen, take the same breaks at the same time and in the same place as the warehousemen, are subject to the same rules that other Case 17-RC-6624 2 See North Arkansas Electric Cooperative, Inc, 185 NLRB 550 3 Phalo Plastics Corporation, 127 NLRB 1511, 1513, New England Transportation Company, 90 NLRB 539, Capital Transit Company, 98 NLRB employees are subject to, and do not attend supervisory meetings. The foregoing constitutes all of the testimony and evidence with regard to the status of the checkers as employees. The Board has long held that managerial employees are employees within the meaning of the Act and entitled to its protection and to be represented under the Act unless there is some cogent reason for denying such representation. Assuming that Mackay's testimony that the checkers were considered managerial employees is correct, there appears no cogent reason why they should not be entitled to protection under the Act. There would seem to be no conflict of interest in the event that they are represented or in the event they are discriminated against. Moreover, there is no showing that the checkers are associated with the formulation and implementation of labor relations policies or of any other overall policies of the Respondent. Accordingly, in this respect, Arroyo is entitled to protec- tion and is an employee within the meaning of the Act.2 The Respondent also seems to contend that the checkers are supervisors . However, as noted above, the only two indicia of supervisory authority claimed for the checkers are that they can give their opinion to the supervisor as to whether an individual should be hired or fired and that they are responsible to see that the cars are loaded in such a manner that all of the product destined for a car is placed therein . With regard to the first qualification, there is no evidence that the opinion of the checker is the equivalent of an effective recommendation for hiring or firing. With regard to the car loading, the manner in which the car is loaded and the direction of the employees in this respect would appear to be completely routine and does not require the exercise of judgment that would ordinarily be exercised by a true supervisor.3 Moreover, the mere fact that a checker may report poor performance of an employee engaged in loading or unloading a car is very much like that of an experienced employee observing or reporting on the work of a less skilled employee. Such qualification is not the hallmark of a supervisor and, I conclude, is wholly nonsupervisory.4 Accordingly, I find that the checkers are neither in name or in substance genuine supervisors. Although they are charged with some leadership responsibility, the direction of the work is routine in nature and does not require the use of independent judgment normally exercised by supervisors within the meaning of the Act. Accordingly, I find and conclude that the checkers are employees within the meaning of the Act. This finding and conclusion is bolstered by the fact that the checkers were included in the shipping clerk unit and voted in the election which was held in May 1971. 3. The events leading to Arroyo's discharge After Arroyo was promoted to the position of checker, he performed his work very satisfactorily. In fact, he received not only wage rate increases but a number of 141,143-145 4 Southern Bleachery and Print Works, Inc, 115 NLRB 787, 791-792, Cumberland Shoe Corporation, 144 NLRB 1268 UNITED STATES COLD, STORAGE 425 compliments on his work from Mackay. In January 1972, Jim Cress became the car dock foreman at the Respon- dent's facility. Soon thereafter there evidently developed, at least in the minds of the Mexican-American employees of the Respondent, among them Arroyo, a feeling that they were being discriminated against in their work assignments and in other matters. The three employees whom Cress allegedly either assigned more difficult work to than any other of the employees in the facility, or criticized and found more fault with, were George Tinoco, Rudolph Marmolelo, and Rafael Abarca.5 These Mexican-Amen- can employees looked to Arroyo for help and for leadership, Arroyo evidently being the best educated and the most aggressive of the group. Accordingly, Arroyo received repeated complaints from these individuals that they were being discriminated against dunng 1972 by Cress. Marmolelo complained to Arroyo that he was being warned by Cress continuously about cursing on the job whereas the American employees, both black and white, who also cursed in their work were not warned. Abarca's problems apparently were similar to Marmolelo's. Tinoco's complaint was that he was being given harder and heavier jobs than the "Americans" in the same department. Arroyo, at the same time, felt that he also was being given heavier and harder work because of his national origin. Finally, according to Arroyo, whom I credit in this respect, things came to a head in January 1973. Therefore, Arroyo agreed with the other three that he would talk to Superintendent Mackay. On January 15, at 7 a.m. on the front dock, no one else being present, Arroyo told Mackay that Arroyo felt he was being made to perform harder work than others because of his Mexican-American ancestry and that Marmolejo, Abarca, and Tinoco were likewise being discriminated against. Mackay answered that Arroyo was being given harder jobs because he was the best checker that the Respondent had. Mackay also told Arroyo that he could not understand why Arroyo could not change his attitude and "try to see things the Company's way." Arroyo told Mackay that he felt very close to his people and could not change his attitude toward. them. He then told Mackay that. he had always worked hard for the Company and never short-changed them, but if things did 5 The transcript is hereby corrected to read "Abarca," in all places where that name appears as "Abarco " 6 The Human Relations Department is a municipal government bureau evidently created for the purpose of assuring protection to all of Kansas City, Missouri, citizens against discrimination by reason of race, religion, national origin, or sex r From the credited testimony of Arroyo Mackay admitted to this conversation but testified that Arroyo mentioned not the Human Relations Council or Department, but the National Labor Relations Board. He also denied , in testifying, that Arroyo mentioned any specific names dunng that conversation For reasons hereinafter stated, I credit Arroyo's version of the conversation. 8 From the credited testimony of Arroyo In testifying, Mackay did not deny the conversation of the afternoon of January 15 or the matters which were discussed between Arroyo, Mackay, and Cress on that occasion Cress did not testify Because in his testimony, Arroyo mentioned that Mackay asked Arroyo if the latter had filed suit with the Human Relations Council, I find and conclude that that was the bureau referred to Accordingly, I also find and conclude that in the conversation of the morning between Arroyo and Mackay the Human Relations Council was mentioned By further not get better he was going to file suit with the Human Relations Council in Kansas City, Missouri.6 This, accord- ing to Arroyo, ended the conversation.7 Later that same day, Arroyo was asked by Cress to go to Mackay's office. Cress accompanied Arroyo to Mackay's office and remained there during a conversation which ensued. Mackay asked Arroyo if the latter had already filed suit with the Human Relations Council. Arroyo answered that "he had the letter at home." Mackay then told Arroyo that if the latter did not send the letter the Respondent would try to make things better. At this point, Cress interrupted and told Arroyo that Arroyo's conversa- tion in the morning with Mackay was a refusal to work and that, if Arroyo ever refused to work again, Cress would not hesitate to fire him. Arroyo then told Cress that his conversation with Mackay that morning was not a refusal to work and that, if in the future, Arroyo felt he was being discrirrunated against he would not hesitate to voice his opinion. That ended the conversation.8 On January 22, Arroyo had another conversation with Mackay. Arroyo, at about 7 a.m., proceeded to the front or truck dock to pick up two assignments that were located there and then proceeded to go back to his assigned area. As he was walking, he saw Mackay and Cress and upon reaching them Cress ordered Arroyo to go back to the front dock. After Arroyo expressed some disagreement with this order, he proceeded to the front dock. Within a few minutes, Mackay came to Arroyo at the front dock. Arroyo asked Mackay if the latter knew it was another man's week to work the front dock. Mackay did not directly answer Arroyo but stated that he had called Virgil Cassel, the vice president and general manager of the Respondent's Kansas City facilities, after the January 15 conversation and told Cassel about the conversation. Mackay then told Arroyo that in that telephone conversa- tion Cassel had told Mackay that no one in the Company had ever filed suit against it and that he wanted Arroyo fired on the spot.9 According to Arroyo, despite the fact that Mackay had promised him that things would improve if Arroyo did not send the letter to the Human Relations Department, things did not improve. As a result, on January 26, Arroyo accompanied Abarca, Tinoco, and Marmolejo to the Human Relations Department in Kansas City, where Abarca, Marmolelo, and Tinoco filed complaints and extension of this reasoning . I conclude that with regard to the two conversations, both of the morning and the afternoon of January 15, Arroyo's versions in his testimony are more accurate than that of Mackay It should also be noted that in my observation of these individuals I was much impressed with Arroyo's apparent admissions , hereinafter related, of his defects and faults as an employee He did not hesitate to admit these matters Accordingly, I find that Arroyo was generally a credible witness 9 From the credited testimony of Arroyo Mackay did not directly refute this conversation but, rather , testified that after the January 15 conversation he did speak to Cassel who stated that he would come over to the Cave and speak to Arroyo Cassel stated that in the telephone conversation between Mackay and himself Mackay stated that Arroyo had told Mackay that he was going to the NLRB Cassel further testified that, although he was upset because of company policy not to interfere with the rights of employees, he told Mackay never to recommend or deny any employee the right to go to the NLRB or any other board I find that , regardless of the content of the telephone conversation. the conversation that Arroyo related occurred on January 22 was an accurate account of that conversation between Arroyo and Mackay 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arroyo submitted to the Human Relations Council a supporting affidavit. On the morning of February 14, 1973, Arroyo arrived at work, went to the clock in order to punch his timecard, and saw that his timecard was removed from the rack. He waited until 7 a.m., at which time Cress told Arroyo to proceed to Mackay's office. Cress accompanied Arroyo into the office. The conversation in the office began with Mackay asking Cress to begin. Cress then said to Arroyo, "Joe, we're going to have to let you go." Mackay then said, "We no longer need your services, and quite frankly, we've heard through word of mouth that you've been agitating the employees. We do feel that this is in the best interest of the Company. I know you won't believe this, but I hate to let you go. Your work has always been very good, but your attitude just isn't what the Company was looking for. You've always been very punctual, and I can't complain about that. It's just that you won't try to see things the Company's way." At this point, Mackay referred back to the conversation of January 15 and said that Arroyo was a troublemaker and had been making trouble for the Company. In reply, Arroyo again repeated what he had repeated once before to Mackay, that Arroyo had always done his best and had never short-changed the Respondent and that all his actions were in the best interest of the Company. Then Mackay replied that Arroyo had had very good possibilities and that the Company had been thinking about making him a foreman. Mackay went on to say that he thought Arroyo could have gone all the way with the Company if it wasn't for his attitude. At that point, the meeting broke up, Cress accompanied Arroyo to the latter's locker which Arroyo emptied, and Arroyo left the plant. One other event occurred before Arroyo's discharge which has a bearing on the assessment of the meets of the proceeding. About a week before Arroyo's discharge, George Tinoco was walking behind a stack of material when he overheard a conversation between Mackay and Ernest Willoughby, the shop steward for the Union which represented the dock workers. Willoughby told Mackay that "Little Joe" had gotten the men together to sign a petition. Mackay told Willoughby that if Joe had anything more to say to let Mackay know. (It is noted that Arroyo was known as "Little Joe" and that Joseph Torres, another employee, was known as "Big Joe.") 10 4. The defense testimony The Respondent defends its action in discharging Arroyo on the ground that such discharge was for cause and completely unconnected from any protected concerted activity in which Arroyo might have engaged. The main is From the testimony of Tinoco, which I credit. Although Mackay and Willoughby both denied that this conversation ever took place , I conclude that it did In the first place, from my observation of Tinoco as he testified, I would have great difficulty in concluding that he fabricated the incident out of the whole cloth. Secondly , although Willoughby testified that he was on vacation at the time the alleged petition was allegedly circulated by Arroyo, Willoughby admitted that Abarca delivered to him before his vacation a letter which had some signatures on it He was told originally to process this letter to the Respondent as was his duty as union steward , but that later he was insiructed to forget about it Despite these instructions , Willoughby thesis of Respondent's defense is that Arroyo began his career with the Respondent as a vigorous and capable employee who was rewarded with rapid promotion to a position which the Respondent considers part of manage- ment. Then, with the advent of certain events, Arroyo's attitude changed from that of a loyal, hard-working,, enthusiastic "company man" to an erratic, disobedient troublemaker whose behavior caused confusion and breakdown of discipline among the Respondent's employ- ees. Furthermore, according to Respondent's witnesses, Arroyo interfered with the prerogatives of certain foremen and others over whom Arroyo had no authority. The main witness for the Respondent was Mackay, the superintendent of the facility involved. According to Mackay, Arroyo started to work for the Respondent in 1970 as a warehouseman on the dock and was so good at his work that he was promoted in 3 to 6 months to the position of checker. When he was first a checker, Arroyo was an exemplary employee. But, in mid-1972 Arroyo's attitude changed. Arroyo started complaining that he had too much work to do on the car dock, that is the train- loading dock, but refused his turns on the truck dock, or front dock, where the work was much lighter. Arroyo, in testifying, admitted this but gave as his reasons that he was, in fact, overworked on the car dock but, when he was assigned to the truck dock, there was too much idle time and Arroyo wanted to keep busy at all times. Mackay further testified that during or toward the end of 1972 Arroyo began complaining that the Respondent, through Dock Foreman Jim Cress, was discriminating against Mexican-Americans by assigning the more difficult and arduous tasks to them in contrast to the lighter assignments given to black and white Americans. Howev- er, Mackay insinuated that Arroyo knew this was not true because Arroyo was familiar with the fact that the work was rotated in such a way that all employees had their turns at the lighter work and at the heavier work. Mackay further stated that Arroyo knew that these rotated assignments were made without regard to race or national origin. However, where people liked to work together they were usually permitted to do so. This was true of Tinoco and Abarca, two of the individuals against whom, according to Arroyo, Cress was practicing discrimination. Then, according to Mackay, whose testimony was supported by the testimony of Richard Winans, a checker, toward the end of 1972 Arroyo gave the Respondent a great deal of trouble concerning break periods. Winans heard Arroyo, on occasion, before the break buzzer sounded, calling to his men, "It's break time, let's go." Mackay further testified that, although Arroyo was warned about this practice at one time by Mackay, Mackay heard later that Arroyo had nevertheless disre-, garded the warning and continued the practice. admitted that he still retained the letter, that it was at home, and that he did not bring it to the hearing I am inclined to believe, therefore, that Willoughby would not have retained the letter unless it was incriminating and, moreover, it is undoubtedly true that he related the content thereof, or at least Arroyo's activity with relation thereto, to Mackay. Arroyo was not a member of the Union and therefore Willoughby owed him no duty to protect him Additionally. Willoughby admitted on cross-examination that the letter concerned itself with Cress and he further admitted that he knew Arroyo had something to do with the letter UNITED STATES COLD STORAGE 427 , Arroyo admitted that, upon occasion, he did go to the breakroom early before the buzzer started and that he told the men with whom he was working that they should also go early. However, he stated that the reason for this action was that it was very cold on the dock in the wintertime, and that he, therefore, wanted to be sure to get the full break period in the warmth of the breakroom. Mackay additionally testified that although there was a company rule that all employees wear hard hats, on a number of occasions after the time that Arroyo's attitude changed, when Mackay would visit the dock where Arroyo was working, he had to caution Arroyo to put on the hard hat. However, despite these cautions, Arroyo stubbornly left the hat off whenever he was not told to put it on. Arroyo admits that he violated the company rule with regard to wearing the hard hats but says despite his complaining about the rule he wore his hard hat. An additional indictment against Arroyo came from the testimony of several individuals . First, Mackay testified that Arroyo was guilty of slowing down the work and causing other employees to slow down. According to Mackay, Arroyo would go into the freezer, which was a separate department under the supervision of Foreman Clemon Duke. When in the freezer, Arroyo would tell the forklift drivers to slow down on bringing out the product. Thus, in addition to causing a slowdown , Arroyo also interfered with the freezer foreman's responsibility. Duke, in turn, testified that during the last month or approximately that time before Arroyo was discharged Arroyo came into the freezer a few times . He asked the forklift drivers not to bring out too much product. Duke had to ask Arroyo not to interfere . However, Duke admitted he only saw or heard Arroyo do this at one time. However, Duke heard from four or five forklift drivers that Arroyo told them not to bring out too much product too rapidly. Arroyo, on the other hand, testified that the only times he told the forklift drivers not to bring out too much product was when it dust could not be gotten into the cars and checked off fast enough to prevent the frozen food products from spoiling because of the differences in temperature on the dock and in the freezer. One of the employees whom Arroyo allegedly ordered not to bring out the product from the freezer, too rapidly was Jose Torres. A couple of times, according to Torres, Arroyo told him, "Don't bring too many, we got enough right now, just slow down ." Or "what are you trying to do?" According to all of these Respondent witnesses, the checkers have no authority over the forklift drivers but must relate all desires to slow down , in the event of necessity, through telephones to the freezer foreman whose office is in the freezer department . Arroyo, on the other hand, said' that there were only a couple of telephone stations on the car dock and that it would be difficult to go to the telephone to call in to the freezer foreman . Arroyo further testified that he was told by Mackay that he had the authority to regulate the flow of the product on the rail dock. Although checker Winans testified to the effect that he had no authority to slow down the men on the dock, Arroyo testified that he has seen and heard Winans and another checker regulate the flow by hollering to forklift drivers, "Stop bringing out product." Additionally, Mackay testified that he was told by Cress, the dock foreman, that Arroyo continually complained about having to either fill out or follow the manifest which was used in car loading. As noted above, Cress did not testify. Finally, the most egregious of all of the alleged conduct with which the Respondent found fault in Arroyo was that on February 2 and February 9 Arroyo left work early, punched out, and left the premises without seeking the permission of any of his superiors . This was strictly against company rules because , according to Mackay, the Respon- dent, as a warehousekeeper , was financially responsible for the product which it housed . Therefore, someone of responsibility had to be present up until such actual closing time in order to check to see that all of the merchandise that was to go into a car or that was to be brought into the plant was actually checked in and not lost, strayed, or stolen . Furthermore, according to Mackay, it was necessar- y to have someone on the dock until closing time in order to check in or check out last minute arrivals . Additionally, the dock had to be cleaned off and ready for the next day's work. Arroyo admitted, in testifying, that he did leave on February 2 and February 9 without permission . He stated, however, that his work for the day was done, that the checkers are not responsible for cleaning and sweeping the dock, and that, therefore, there was no reason for him to be there any later than he stayed on those two occasions. However, Arroyo did admit, that one of the company rules, the book of which he had a copy, stated that no employee shall leave the facility without permission from his superior. In summing up the reasons for Arroyo's discharge, Mackay emphasized that it was not one thing that brought about Arroyo's discharge but this whole series of attitudes and lack of responsibilities heretofore set forth which brought about the final decision to let Arroyo go. The unexcused absences on February 2 and 9 were merely the last activities which finally induced Mackay, after convers- ing with Cassel, who told Mackay that it was Mackay's responsibility, that Mackay decided to discharge Arroyo. Finally, Mackay and Cassel both testified that neither of them had any knowledge that Arroyo had gone to the Human Relations Department with his three fellow Mexican-Americans to file complaints of discrimination by reason of national origin against the Respondent. The record clearly shows that the first written notification by the Human Relations Department that Arroyo and the other three had filed complaints was a letter dated February 16, 1973, and was addressed to Cassel informing Cassel of the complaint . According to Cassel , he did not receive this letter until February 27 . Indeed, this letter, introduced into evidence, was time-stamped as having been received in Cassel's office on that date . However, in any event, the letter was not written until 2 days after Arroyo had been discharged . Thus, there is no direct evidence of Respondent knowledge that the complaints with the Human Relations Department of Kansas City had been filed before or at the time of Arroyo's discharge. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Analysis and concluding findings In assessing the testimony which I have credited of the witnesses presented by the General Counsel as against the testimony which I credit, in view of Arroyo's admission, of the Respondent's witnesses who testified as to Arroyo's defects as an employee, I note that if it were not for certain factors, hereinafter related, that the reasons stated by the Respondent for Arroyo's discharge were valid ones and I would be obliged to dismiss the complaint. Thus, it is apparent that, from sometime in the middle of 1972, for whatever reason Arroyo's attitude had changed. I credit the testimony of Mackay to the effect that the Respondent considers the checkers as "company men" and expected loyalty from them. Thus, after considering the above set forth defects of Arroyo as admitted by Arroyo, I would conclude that the Respondent had good reason, had it chosen to do so back in 1972, to discharge Arroyo. However, the factor of the timing of the discharge must be considered in light of all of the other facts. It is also apparent from the record that there is no direct evidence that the Respondent had knowledge of Arroyo's activities in going with his three Mexican-American compatriots to the Human Relations Department until after Arroyo was discharged. For the purposes of this decision, I make the finding that as of the date of Arroyo's discharge the Respondent did not have such knowledge and, therefore, could not have discharged Arroyo for this particular activity. However, as noted above, Arroyo's acts of misconduct cited above began over one-half year before Arroyo was ultimately discharged. The Respondent evidently had a high opinion of Arroyo's talents as a checker and, in fact, Mackay told Arroyo on a number of occasions that Arroyo was the best checker that the Respondent had. Thus, I find that there was to a certain extent, at least, some condonation of Arroyo's behavior until January 15, 1973, when Arroyo informed Mackay that he was going to go to the Human Relations Department to file a complaint. In that conversation on the morning of January 15, Arroyo informed Mackay that Arroyo and the other three Mexican-Americans whom he represented were being mistreated discriminatorily by Cress. Thus, for the first time, on that date, the Respondent learned that Arroyo was engaged with Tinoco, Abarca, and Marmolejo in the concerted protected activity of protesting what they considered to be discrimination against them because of their national origin.ii Whether Arroyo and the other three were justified in their accusations of discrimination is here immaterial . The fact that they sincerely thought they were being discriminated against renders their activity protect- ed. Moreover, that Mackay thought that Arroyo was in earnest is indicated by the conversation later that day in which Mackay asked Arroyo if the latter had filed a charge as yet and Arroyo said that he had not, that the letter was at home. When this statement was made by Arroyo, Mackay then told Arroyo that if the latter did not file a complaint Mackay would see to it that conditions improved "See See Tanner Motor Livery, Lid., 166 NLRB 551, Universal Services, Inc, and Associates, 184 NLRB 381, Gibbs Die Casting Aluminum Corp, Gibbs Thus we have proof of actual knowledge of activity by Arroyo and his fellow Mexican-Americans by the Respon- dent. Additionally, Mackay in his later conversation with Willoughby was overheard by Tmoco to state, after Willoughby had told Mackay that "Little Joe" had gotten the men together to sign the petition, that if Little Joe had anything more to say to let Mackay know. In this manner, the Respondent had additional information to the effect that the concerted protected activity was continuing. And this was just I week before Arroyo was discharged. Additionally, Arroyo had a conversation with Mackay on January 22, wherein Mackay related that he had informed Cassel, the manager of the entire enterprise in Kansas City, of the January 15 conversation. In that January 22 conversation, Mackay stated, Cassel told Mackay that no one in the Company had ever filed suit against it and that he wanted Arroyo fired on the spot. Finally, there is presented for consideration the state- ments by Mackay to Arroyo at the time that Arroyo was discharged on February 14. As related in Arroyo's credited testimony, Mackay said, "We no longer need your services, and quite frankly, we've heard through word of mouth that you've been agitating the employees. We do not feel that this is in the best interest of the Company." And then, Mackay again stated that Arroyo was a troublemaker and had been making trouble for the Company. Lastly, there is presented for consideration the service letter, requested by Arroyo, written by Cassel, dated February 27, in which, although Arroyo's defects as an employee were listed, Cassel admitted knowing that Arroyo had made complaints of discrimination because of ancestry and stated, "Mr. Mackay believes your opinion in this regard was not justified, but felt that such a belief or opinion on your part was so contrary to your responsibility as a part of Company management that your continued employment was not feasible." I conclude that there existed lawful justification for discharging Arroyo. This is clear from Arroyo's own admissions as to his faults as an employee . But it was not until after Arroyo let it be known to Mackay that he was engaged in protesting what Arroyo considered discrimina- tory practices that Arroyo's faults as an employee became important enough to the Respondent to bring about Arroyo's discharge. It is true that Arroyo's unexcused early departures on February 2 and 9 constituted conduct for which he could have been discharged. Nevertheless, Arroyo testified he was never warned about his leaving early and Mackay did not contradict this testimony. I, therefore, conclude and find that these unexcused early departures were utilized by Respondent to discharge Arroyo pretextually. I find that Arroyo would not have been discharged had it not been for his earlier conduct in protesting what he believed to be discrimination. In other words, but for Arroyo's engaging in protected concerted activity, despite his shortcomings as an employee, Arroyo would not have been discharged on February 14. Accordingly, I find that Arroyo was discharged for engaging in protected concerted activity and that thereby the Respondent violated Section 8(a)(1) of the Act. Federal Division, 174 NLRB 75 UNITED STATES COLD STORAGE Additionally, I find and conclude that Mackay's instruc- tion to Willoughby, approximately a week before Arroyo was discharged, to report to Mackay anything further that Willoughby might learn about Arroyo's activities, consti- tuted instructions to an employee to engage in surveillance of another employee's protected concerted activities. Such instructions on the part of Mackay constituted further violation of Section 8(a)(1) of the Act.12 111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV. THE REMEDY Having found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. It having been found that the Respondent, by instructing an employee to engage in unlawful surveillance of his fellow employees restrained and coerced employees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom. It having been found that the Respondent discriminato- rily discharged Joseph R. Arroyo, I shall recommend that the Respondent offer Arroyo immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. In addition, I shall recommend that Respondent make Arroyo whole for any loss he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge, less net earnings during said period. Backpay shall be computed with interest on a quarterly basis in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-295; Isis Plumb- ing & Heating Co., 138 NLRB 716. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. By instructing an employee to engage in surveillance of his fellow employees' protected concerted activity, the Respondent has interfered with, restrained, and coerced its 12 Crown Laundry & Dry Cleaners Inc, and Gulf Linen Service Inc, 160 NLRB 746, 759, Fleetwood Trailer Co of Ohio, Inc, 138 NLRB 304, 308 13 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 429 employees in the exercise of rights guaranteed said employees by Section 7 of the Act and thereby Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By discriminatorily discharging its employee Joseph R. Arroyo for engaging in protected concerted activity, the Respondent has violated Section 8(a)(I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 Respondent, United States Cold Storage, Kansas City, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Instructing employees to engage in surveillance of the protected concerted activities of other employees. (b) Interfering with, restraining, or otherwise coercing employees in the exercise of rights guaranteed in Section 7 of the Act, by discharging or otherwise discriminating in regard to the hire, tenure of employment, or any term or condition of employment of its employees for engaging in protected concerted activities. (c) In any other manner interfering with, restraining, or coercing employees in the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Joseph R. Arroyo immediate and full reinstate- ment to his former job or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, and all reports and records necessary to analyze the amount of backpay due under this Order. (c) Post at its office and warehouse located at 1501 West 27th Street, Kansas City, Missouri, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 17, 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 14 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 (Continued) 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT instruct any of our employees to engage in surveillance or spying upon the protected concerted activities of any other of our employees. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act, by discharging or otherwise discriminating in regard to the hire, tenure of employment, or any term or condition of employment of our employees for engag- ing in protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with Section 8(a)(3) of the Act. WE WILL offer Joseph R. Arroyo immediate and full reinstatement to his former job or, if that Job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. Furthermore, we will pay to Joseph R. Arroyo all of the money which he would have earned had it not been for our discrimination against him. Dated By UNITED STATES COLD STORAGE (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 616-Two Gateway Center, Fourth At State, Kansas City, Kansas 66101, Telephone 816-374-4518.