Minnesota de Puerto Rico, Inc.

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Minnesota (3M) de Puerto Rico, Inc. and SIU de Puerto Rico, Caribe y Latinoamerica, afiliada a la Seafarers International Union of North America, AFL-CIO. Case 24-CA-3422 October 30, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 21, 1974, Administrative Law Judge Leo- nard M. Wagman 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Minnesota (3M) de Puerto Rico, Inc., San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: upon a charge filed by SIU de Puerto Rico, Caribe y Latinoam- erica, afiliada a la Seafarers International Union of North America, AFL-CIO (herein called the Union), the General Counsel of the National Labor Relations Board issued a complaint on January 23, 1974, which was amended at the hearing, alleging that Minnesota (3M) de Puerto Rico (herein called the Company) had engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Nation- al Labor Relations Act, as amended (referred to herein as the Act). Specifically, the amended complaint alleged that the Company had violated Section 8(a)(1) of the Act, by creating the impression that it was engaging in surveillance of its employees' union activity, threatening employees with discharge, loss of benefits and adverse working condi- tions if they supported the Union, coercively interrogating employees concerning their union activity and attitudes, promising and granting employees benefits to induce them to refrain from engaging in union activity. The complaint also alleged that the Company violated Section 8(a)(3) and (1) of the Act by discharging employees Jose Aviles, Ra- monita Marrero, Nestor Rivera, Miriam Terwilliger, and Wilfredo Souchet on October 5, 1973,1 because of the their union activity. At the hearing I granted General Counsel's motion to withdraw so much of the amended complaint as alleged that the Company granted benefits in violation of the Act. In addition to denying the commission of the alleged unfair labor practices, the Company contended that it was deprived of administrative due process by the conduct of the Board agent investigating the unfair labor practice charge underlying the complaint herein. The Company's answer as amended at the hearing, denied the alleged viola- tions. A hearing was held at Hato Rey, Puerto Rico, on February 26, 27, 28, and March 1, 1974. Upon the entire record in the case, including my obser- vation of the demeanor of the witnesses, and upon consid- eration of the posthearing briefs submitted by the Compa- ny and the General Counsel, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company is a Puerto Rico corporation with its of- fice and place of business at San Juan, Puerto Rico, and is engaged in the sale and distribution of magnetic and indus- trial tapes, abrasives, adhesives, office products, medical products and various other products. During the past year, the Company purchased and caused to be delivered to its San Juan location, from points outside Puerto Rico, goods and materials valued in excess of $50,000. It is not disputed, and I find that the Company is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Company admitted , and I find, that SIU de Puerto Rico, Caribe y Latinoamerica, afiliada a la Seafarers Inter- national Union of North America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED DENIAL OF ADMINISTRATIVE DUE PROCESS The Company complains that on October 19 its then general manager, James D. Lewers, and its financial man- ager, Francisco Gonzales were summoned to the Board's Hato Rey office, without notice of the unfair labor practice charge in this case; that both Company officials were com- pelled to remain at the Board office for 5 hours, and that Lewers had no opportunity to confer with counsel or labor relations officers of the Company's parent, Minnesota Mining and Manufacturing Company. All of this, accord- 1 Unless otherwise stated all dates hereinafter refer to 1973 214 NLRB No. 78 MINNESOTA (3M) de PUERTO RICO, INC Ing to the Company's answer to the complaint impaired its ability to "adequately present its position and prepare its defense in the course of the investigation by the Regional Office . . . of the unfair labor charge in the matter." The following account of the incident is undisputed. At or about 9:30 a.m. on October 19, 2 days after the unfair labor practice charge in this case had been filed and before the Company had received notice, Mr Chandri, a field examiner assigned to the Board's Hato Rey office, telephoned the Company's San Juan office and asked Lew- ers and Gonzalez to come to his office that same morning. The two company officials complied. They appeared at Chandri's office at 11 o'clock that morning, together with a company attorney. After providing Lewers with a copy of the charge, Chandri asked him if he wished to make a statement, then or later, regarding the matters alleged in the charge. Lewers declared that he wanted to give a state- ment immediately "[b]ecause the truth is the same now as it would be at a later time." Whereupon, Chandri began taking Lewers' statement in the presence of company coun- sel. Gonzalez agreed to wait outside of Chandn's office while Lewers was giving his statement At 1 p.m., Lewers asked Chandri for a lunchbreak. Chandri said "No," adding that they would "be through in dust a minute." Lewers made similar requests at 2 and 3 p.m. only to receive the same response each time. Gonzales also remained outside Chandn's office. At 4 p.m, Chandri completed the taking of Lewers' statement, and asked Lew- ers to read and sign it. Lewers complied Whereupon Lew- ers, Gonzales, and the Company attorney left the Board office. It also appears that as of that date, the Regional office was in the early stage of taking affidavits from the Charging Party's witnesses. I find nothing in the foregoing to sustain the Company's contention that it was denied administrative due process by Chandri's conduct. While Chandri may have departed from accepted norms of social conduct by saying "No" to Lewers' repeated requests for a lunch break, I see no ground for the Company's claim that his conduct preju- diced its defense. Lewers in the presence of Company counsel freely volunteered to give Chandri an affidavit af- ter receiving a copy of the unfair labor practice charge in this case. Further, there is nothing to suggest that Lewers, Gonzales, and the Company's attorney were not free to get up and leave Chandri's office at will, despite the Board agent's expressed negative sentiment in that regard. In- stead, they remained. In short, the Company's contention is wholly without merit. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion In May 1973, Company employees who were dissatisfied with their wages and their supervisors began an organizing campaign among themselves to obtain the Union as their bargaining representative. Following a series of three meet- ings within a 12-day period in June, between General Man- ager Lewers and three groups of seven or eight employees each, at which the employees' complaints were aired, union activity ceased. However, in mid-September, the employees 469 became disgruntled over the Company' s response to their complaints and resumed their organizing activity on behalf of the Union. The Company's initial response to the Union activity occurred when Supervisor Hugo Rivera summoned em- ployee Nestor Rivera 2 to his office in late May for a dis- cussion of the employees' union activity.3 Hugo began by telling Nestor that he had heard rumors about a union trying to organize the Company. Hugo then asked Nestor if he knew anything about the Union activity. Nestor re- plied that he knew nothing about it. Hugo then proffered the advice to Nestor that: "For your own good stay away from them people . . [a]nd don't have anything to do with them." The context in which this advice was given rendered it a thinly veiled threat of reprisal by the Compa- ny if the employee supported the Union. Accordingly, I find this threat violative of Section 8(a)(1) of the Act. Smith & Wesson, 174 NLRB 1040, 1045 (1969), enfd. 424 F.2d 1072 (C.A. 1, 1970). I also find that the interrogation ac- companying this unlawful threat was also violative of Sec- tion 8(a)(1). Teknor-Apex Co., 195 NLRB 385, 392 (1972), enfd. 468 F.2d 692 (C.A. 1, 1972). In early June, Nestor Rivera, acting as the employees' spokesman requested and was granted an opportunity to discuss grievances with General Manager Lewers in the latter's office." Rivera stated that the "employees want to put a union into the Company and they have a lot of com- plaints and they are not even being heard." Lewers asked what complaints he was referring to. Rivera replied that wages and the supervisor were the matters troubling the employees. Lewers replied: "Well as for wages, there is a survey that is being conducted to revise the salaries of the employees." The general manager also remarked that the Company was trying to be one of the "10 top companies in Puerto Rico " Lewers then expressed the desire that the employees "hold off about the union activities for 60 days at least until the survey could be completed . .." Later in the conversation, Lewers asked Rivera, "Do you know how much you are paying for your medical benefits?" Riv- era replied: "No, not really." Lewers explained: "Well, you are not paying anything and as a matter of fact if the union comes in you'll lose those benefits." Lewers then ended the conversation by telling Rivera of the value of the Company's medical benefits and its other benefits. Lewers remarks about the Company's wage policy and the wage survey together with his expressed hope that the employees would suspend their union activity pending the survey's completion violated Section 8(a)(1) of the Act. For, here indeed, was an implied promise aimed at fore- stalling the employees' quest for union representation. 2 The two Rivera's are not related 3 Supervisor Rivera denied interrogating or threatening Nestor Rivera However, Supervisor Rivera admits having a conversation with Nestor Ri- vera at about this same time In light of the circumstance and my impres- sion that Nestor Rivera was more candid and forthright , I have rejected Supervisor Rivera's denial My findings as to this incident are based upon Nestor Rivera's testimo- ny Lewers denied that he made any threats or promises to his employees However, Lewers unlike Nestor Rivera, was an evasive, reluctant witness, particularly when examined as to his antiunion activity and his sources of information regarding the employees ' union activity Therefore , I have not credited his denials in this regard 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vaughan Printers, Inc., 196 NLRB 161, 164 (1972). Lewers' warning to Rivera that the advent of the Union would pre- cipitate loss of the employees' medical benefits, provided at that point by the Company, also violated Section 8(a)(1) of the Act. The Great Atlantic & Pacific Tea Co., Inc., 194 NLRB 774, 778 (1971), enfd. 80 LRRM 2902 (C.A. 4, 1972). During the same period, Company General Sales Man- ager Luis Recurt approached employee Jose Aviles, a lead- ing union activist, at the latter's work station and directed him to Recurt's office.5 Aviles complied with Recurt's di- rection. Once in his office, Recurt began, saying he had singled out Aviles because of rumors that the employees wanted to unionize and that Aviles was one of the leaders in that effort. Recurt then asked Aviles if he was one of the leaders of the union activity. Aviles answered that he had heard rumors about union activity, but denied leadership in the organizing drive. At this, Recurt asked Aviles about the employees' problems. Aviles reported that low salaries, supervision and other matters were troubling the employ- ees. Recurt then stated that the Company' s management would "see if they could solve the problems," adding that the employees should "try to hold the problems of the union for a while to see what [management] resolved." I find the circumstances surrounding Recurt's inquiry into Aviles' union activity coercive. The questioning occurred in the privacy of the general sales manager's office and without the assurance that reprisals would not be taken against Aviles if in fact he was a leading union activist. Further, the Company evidenced its hostility toward the employees' organizing campaign by engaging in a number of unfair labor practices as found herein, including the sub- sequent discharges of Aviles and four other prounion em- ployees. Accordingly, I find Recurt's interrogation of Aviles violative of Section 8(a)(1) of the Act. N.L.R.B. v. Sandy's Stores, Inc., 398 F.2d 268, 270 (C.A. 1, 1968), enfg. 163 NLRB 728 (1967). I also find that Recurt's remarks to Aviles included a solicitation of employee grievances and an implied promise that the Company would soon rectify such grievances. As Recurt also made clear that his solicitation and implied promise were designed to interfere with the employees' union activity, I find these remarks violated Section 8(a)(1) of the Act. Shulman's Inc. of Norfolk, 208 NLRB 771 (1974). The credited testimony of Aviles and Nestor Rivera shows that later in June, Recurt invited them and five or six other employees to one of the three meetings held by General Manager Lewers with small groups of employees. At this meeting, Lewers revealed that he had heard rumors that the employees were seeking union representation. He also asked them to present their problems to him. In re- sponse, Aviles rose and presented the employees com- plaints about wages and the supervisors. In the course of 5 My findings as to this incident are based upon Jose Aviles' testimony The reliability of Recurt's testimony was opened to question by his evasive answers and his self-contradiction It appeared that he was carefully avoid- ing testimony which might incriminate the Company In contrast Aviles testified in a straightforward manner Accordingly, to the extent their versions of their encounter conflict, I have credited Aviles the meeting, General Sales Manager Recurt stated that if the employees' organizing drive succeeded, the Company would discontinue its practice of permitting the salesman to keep company automobiles overnight .6 Instead, the Company would require them to pick the vehicles up at the Company's premises at 8 a.m. and return them at 5 p.m. daily. Lewers remarked that the doors to his office were always open to the employees for their problems, but if a union came in, such problems would be discussed "with a third person." Finally, Lewers told the employees that the Com- pany was conducting a wage survey to increase their sala- ries and asked them to give the Company time to solve the problems, and to "leave pending the matter of the [U]n- ion." I find that Lewers' remark that he was available to employees for discussion of their "problems," when viewed in the surrounding circumstances was but another of the Company's invitations for employee grievances. His state- ments regarding the "wage survey to increase the salaries" was a repetition of the Company's earlier implied promises. His request that the employees suspend their union activity supplied the antiunion purpose of the invitation and the implied promise. Accordingly, I find Lewers invitation for grievances and his implied promise of wage increases viola- tive of Section 8(a)(I) of the Act. In the latter part of June, Supervisor Luis Sanchez in- formed Aviles that the Company had granted him a wage increase effective the next pay day. When Aviles expressed satisfaction with the increase, Sanchez asked him whether the employees would persist in their union activity. In view of its coercive circumstances, as previously shown, I find this inquiry into the employees' union sentiment also vio- lated Section 8(a)(1) of the Act.7 During this same period in June, Company Superinten- dent Emilo Berrios summoned employee Ramonita Marre- ro a leading union partisan, to a room in the Company's warehouse, where he stated: "Back there they told me that you were the leader of all this union movement. I said that I didn't believe that of you." He then asked if the employ- 6 Nestor Rivera also credibly testified that Recurt threatened discharge for any salesman caught "signing a card or talking about unions " However, there is no allegation in the amended complaint that Recurt made any unlawful threat at this meeting Further , in view of my other findings of Sec 8(a)(1) violations , an additional finding based upon this incident would add nothing to the remedy. Accordingly, I have not made any findings or con- clusions based upon this portion of Rivera's testimony Sanchez' testimony regarding his knowledge of union activity is marked by evasion and contradiction For instance , on cross-examination Sanchez initially admitted telling Aviles and other employees who came to him that the Union was bad Thereafter, on further examination, he denied discussing the Union with any employee or any fellow supervisors In light of the Company's manifest concern about the employees' involvement with the Union and the frequent discussions between management and the em- ployees during this period, Sanchez' denial does not persuade me Consider- ing the foregoing, and my favorable impression of Aviles, I have based my findings as to this incident upon Aviles' testimony, and have rejected San- chez' denial 8 Berrios testified that he talked to Marrero about the Union in June However. Berrios denied Marrero's version of their encounter Marrero im- pressed me as a generally forthright witness In contrast, Berrios' testimony is rendered suspect by his evasive answers, his denial that he spoke to any- one from the Company about his testimony prior to his appearance as a witness on its behalf, and his denial that he provided the Board with a sworn statement This last assertion was belied by the introduction of Berrios' affidavit given to Board Field Examiner Chandra on October 29 MINNESOTA (3M) de PUERTO RICO, INC 471 ees had told Lewers of their problems. After Marrero had answered Berrios' last question , he warned her as follows: The company is working at the present time from Monday until Friday only. You know that legally we could also work half a day Saturdays, we could also use a punch clock, which we don't use. There are many benefits that the Company gives you that you would lose and besides it would be the only 3 M 9 in the world that has a union. At this, Marrero asserted that she was only the spokesman for the employees who came to her for help and that she felt obliged to provide that help. At this, Berrios warned: "Think it over because there may be disadvantages for the employees ." I find from Marrero's undisputed testimony that by his reference to "back there" Berrios meant the Company's management . I also find that when that ingre- dient was added to Berrios' statement regarding Marrero's union activity, the employee was quite likely to gain the impression that the Company was keeping her union activ- ity under surveillance . By creating that impression, I find Superintendent Berrios violated Section 8 (a)(1) of the Act. Commerce Concrete Company, Inc., 197 NLRB 658 (1972). I also find that Berrios' warning, quoted above , carried the unmistakable message that the Company would impose more onerous working conditions and eliminate employ- ment benefits if the employees succeeded in their efforts to obtain union representation. By these warnings, the Com- pany violated Section 8(a)(1) of the Act N.L R.B. v. Pio- neer Plastics Corp., 379 F.2d 301, 304 (C A. 1, 1967), cert. denied 389 U.S. 929 (1967). Employee Miriam Terwilliger credibly testified that in July, Supervisor Luis Sanchez asked her if she had com- plaints against the Company, aside from her salary, and what she "thought about the Union " Terwilliger replied she had worked for a unionized company in the United States "and they appeared to be satisfied with it," but that "in Puerto Rico [she] really had not gone too much into it." Again, the surrounding circumstances rendered Sanchez' inquiry into Terwilliger's union sentiment violative of Sec- tion 8(a)(1) of the Act. In mid-August, Superintendent Berrios acted as inter- preter for a 3 M official from St Paul, Minnesota, in a discussion of the employees' union sentiment with Assis- tant Warehouse Supervisor Antonio Irizarry 10 The official speaking through Berrios asked Irizarry why the Company's employees wanted the Union and if he knew anyone who was active in the union activity Berrios, on his own, asked if employee Aviles had "told [Irizarry]any- thing." Irizarry answered no. Berrios then asserted his own knowledge that Aviles was involved in the Union activity, that he "was the strongest leader of the Union" and that he had learned that Aviles had been discharged by another employer for similar activity. However, Irizarry's credited and undisputed testimony also shows that as assistant 9 A reference to the Company's parent, Minnesota Mmmg and Manufac- turing Company 10 My findings as to this incident are based upon Irizarry's testimony warehouse supervisor he was "[p]ractically ... in charge" of the 10 employees in the warehouse, that he assigned them work, adjusted their grievances and had authority to reprimand employees "for failure to carry out instruc- tions." Thus, I find that at the time of this encounter with Berrios, Irizarry was a supervisor within the meaning of Section 2(11) of the Act. Pacific Southwest Airlines, 201 NLRB 647 (1973). As a supervisor, Irizarry was unprotect- ed by Section 7 of the Act. Therefore, Berrios' questions and remarks to Irizarry, regarding the union activities of Aviles and other employees did not violate Section 8(a)(1) of the Act as alleged in the complaint . Jif-E-Mart, 205 NLRB 1076 (1973). B. The Alleged Discriminatory Discharges 1. The facts (a) Jose Aviles Aviles' credited testimony relating to his employment history and union activity is undisputed . The Company hired Jose Aviles on December 4, 1972, and thereafter, un- til his discharge on October 5, employed him as a sales correspondent under the immediate supervision of Luis Sanchez. As a sales correspondent, Aviles' duties included writing up customer orders for the Company products. Aviles' starting monthly salary was $400. On June 5, General Sales Manager Recurt presented Aviles with the following letter and a check , after Aviles had placed second in the first 6 months of a year-long company sales contest: Enclosed is the check for the prize you won during the first six (6) months of the 1973 sales contest. I wish to take this opportunity to, on behalf of man- agement and on my own, congratulate you for excel- lent work done by you and the results that your daily efforts have produced. I hope to be able to have the opportunity of com- municating with you at the end of this contest, that is to say, on October 31 of this year, because I know that your consistent daily efforts will bring you future suc- cess. In mid-June, the Company raised Aviles' salary to $450 per month, which remained his pay rate until his discharge. In May, a company salesman, Vissepo, gave Aviles some union authorization cards for distribution in Aviles' de- partment. Aviles distributed groups of cards to several em- ployees for solicitation of signatures, and also solicited em- ployees' signatures. Following the June meeting between Lewers and the employees , Aviles and the other union ad- vocates suspended their union campaign "to wait and see" if the Company would satisfy the employees' requests for salary increases and improved supervision. On two or three occasions in May, Aviles discussed his union sentiment and his union activity with the Company's Abrasive Department supervisor, Pablo Ross. Aviles dis- 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closed that he and his associates were soliciting employee signatures on union authorization cards." As found above, in June, General Sales Manager Recurt questioned Aviles about his role in the union activity and used the same conversation to solicit employee grievances and impliedly promise satisfaction of those grievances. Approximately 1 week after his discussion of the Union with Recurt, Aviles attended one of General Manager Lewers' employee meetings . Aviles was the first to respond to Lewers' solicitation of employee grievances at this meet- ing. As I have also found above, in late June Supervisor Luis Sanchez asked Aviles whether the employees were continuing with their union campaign . Aviles answered in substance that the employees had been seeking union rep- resentation to help them solve their problems with the Company, and that if the Company solved the problems, the employees would abandon their union activity. Aviles credibly testified that in a conversation in mid- September Aviles told Supervisor Pablo Ross that the em- ployees had resumed their union campaign because of the Company's failure to satisfy the employees' complaints. Whereupon Ross warned that further discussion of the union campaign would lead to dismissals.12 I also find from Aviles' testimony that on October 4, Supervisor Luis Sanchez, Aviles, and employee Angel Luis Martinez discussed an overtime problem and the resump- tion of the employees' union activity. When the latter sub- ject surfaced in the conversation, Sanchez warned Aviles that he and the employees should "leave the matter of the union and of the overtime quiet because what [Aviles] was going to get was that [they] would all be fired." 13 At or about 10.30 a.m., on October 5, Supervisor San- chez asked Aviles to accompany him to General Sales Manager Recurt's office. After the two entered the office, Recurt informed Aviles that "the [C]ompany had been ob- serving [Aviles'] work and wasn't satisfied with it, that they had had complaints from customers, that [Aviles] usually came in late to the [C]ompany and that the [C]ompany had decided to dismiss [him]." Aviles responded that he "knew that the reason for firing [him] was not that but that [A- viles] was not going to gain anything by discussing [it] with [Recurt]." Recurt, and Sanchez, who had witnessed the en- tire exchange in silence, made no reply to Aviles. Recurt gave Aviles a check, and Aviles left the office. Before leav- ing the Company's premises, Aviles passed Supervisor San- chez, who said, "See, I told you." 14 Nestor Rivera testified that he was present when Aviles encountered Supervisor Sanchez at a social gathering about 1 week after Aviles' discharge. According to Rivera, Sanchez disclaimed any part in Aviles' discharge and praised Aviles' work. In his testimony, Sanchez admitted 11 My findings regarding Aviles' discussions with Supervisor Ross in May are based upon Aviles' testimony Ross denied ever discussing union mat- ters with Aviles However, he did not deny having conversations with Aviles in May Of the two, Aviles seemed more conscientious about presenting his full recollection 12 Aviles' testimony regarding this incident was substantially corroborat- ed by employee Angel Luis Colon who witnessed the conversation i3 Employee Martinez substantially corroborated Aviles' testimony re- garding Sanchez' warning 14 My findings as to the events of October 5 are based upon Aviles' cred- ited testimony meeting Aviles at the social gathering but denied discuss- ing Aviles' discharge. However, Sanchez also admitted that he was surprised by Aviles' discharge on October 5 and did not even recommend such action . Considering my prior appraisal of Sanchez' testimony, the likelihood that Aviles' very recent discharge would have been a subject of discus- sion, and Sanchez' admissions , I have rejected his denial and have accepted Nestor Rivera 's version of the incident. (b) Ramonita Marrero 15 The Company hired Ramonita Marrero on November 23, 1970, and discharged her on October 5. She was em- ployed as a secretary to Emilio Berrios, the Company's superintendent of factory services. Her starting monthly salary was $320. In July, the Company granted a $30 monthly raise to Marrero. At the time of her discharge Marrero's monthly salary was $416. Marrero's union activity began in May, when she re- ceived authorization cards from Aviles which she distribut- ed to fellow employees Marrero attended one of General Manager Lewers' June meetings. She was one of the em- ployees who responded to Lewers' inquiry regarding em- ployee problems. As found above, later in June , Superintendent Berrios told Marrero that Company management believed that she was the leader of the employees ' union activity. I have also found above that in the same encounter, Berrios warned Marrero that the Company might impose more onerous working conditions and withdraw benefits if the employees insisted upon union representation . At this, Marrero assert- ed that she was only the spokesman for those employees who sought her help. Berrios ended this exchange with a further warning of possible "disadvantages for the employ- ees." At the end of June, Marrero headed a small group of employees who met with General Manager Lewers in his office. Marrero told Lewers that the group wished to pre- sent their work problems to him. After Lewers agreed to listen, each of the group presented his or her problem. Marrero ended the employees ' presentation with a brief statement asking Lewers to help them. Lewers responded that he appreciated the employees' sentiments , that he was always available to them and that he did not "believe in third parties." In mid-September Marrero resumed her solicitation of signed union authorization cards. According to Aviles, she and Nestor Rivera "were in charge of picking up the cards." On October 5, at about II a.m., Superintendent Berrios asked Marrero to accompany him to an empty of- fice where he told her he had "a regretful matter" to tell her. When Marrero sought explanation , Berrios answered that her "work with the Company is up today " Berrios continued: I have here the two checks, one month to advance and for the work that you have done during this month and for accumulated vacation These are the things that I don't like to do but I always have to do. I know 15 Except as otherwise stated my findings regarding Marrero's discharge are based upon her credited testimony MINNESOTA (3M) de PUERTO RICO, INC. that because of your qualities you can get anotherjob or a job more satisfactory, I am very sorry, God bless you. He also asked her that: When you go some other place to work and you don't like the norms of management or the rules of the Company, before talking, leave. (c) Nestor Rivera The Company hired Nestor Rivera on March 13, 1972, as a kardex clerk, at a monthly salary of $340. Rivera re- mained in that position until his discharge on October 5. His monthly salary at the time of discharge was $400. He received a $35 monthly wage increase around the begin- ning of January and a $25 monthly wage increase in April Nestor Rivera's union activity began in May when he received some authorization cards from Marrero and Aviles. Rivera distributed the cards to employees at work and at their homes, in May and in June. As found above, in late May, Supervisor Hugo Rivera asked Nestor Rivera if he knew anything about a union organizing campaign, and then advised Nestor: "For your own good, stay away from them people." In June, as found above, Nestor Rivera acted as the employees' spokesman in a meeting with Gen- eral Manager Lewers. Rivera warned Lewers that the em- ployees were seeking union representation as a solution to their complaints against the Company. I have also found that in the discussion of employee problems at this meet- ing, Lewers asked that the employee suspend their union campaign for 60 days to permit the Company to complete a wage survey. Later in June, Nestor Rivera attended an employee meeting called by Lewers, at which General Sales Manager Recurt threatened withdrawal of automo- bile privileges in reprisal for the salesmen's support of the Union. Upon hearing Recurt's threat, Rivera rose and re- minded Lewers and Recurt that the Company stood to lose sales by such action. According to Nestor Rivera's credited and unchallenged testimony, in August, General Sales Manager Recurt asked Nestor Rivera if he wanted to become a salesman. Rivera answered yes. At this, according to Nestor Rivera's cred- ited and undisputed testimony, Recurt stated that Rivera's position change could not be effected until November 1, but that in the meantime he could familiarize himself with the Company's products by becoming a sales correspon- dent. Rivera asked for and was granted a day to consider the matter. It is also undisputed, and I find that, Nestor immediately notified Supervisor Hugo Rivera of Recurt's proposal, and offered to remain a kardex clerk until No- vember 1, during which time Hugo could train Nestor's replacement. Hugo thanked Nestor for his idea and sug- gested that Nestor seek Recurt's approval. Nestor went to Recurt who said that he would notify Nestor of the Company's decision in the matter. That was the last Nestor heard of his promotion to salesman As previously found, Nestor shared responsibility with Marrero for collecting signed union authorization cards when the organizing drive resumed in mid-September. 473 At mid-morning on October 5, Supervisor Hugo Rivera summoned Nestor Rivera to his office. As Nestor entered the office, Hugo asked him to close the door and then said: "I have bad news for you." When Nestor asked for an explanation, Hugo continued: "Well, I'm sorry but you are suspended from your duties as of today." Nestor asked if that meant he was fired. Hugo answered, "Yes, the [C]om- pany does not need your services." When Nestor asked: "Why?" Hugh replied: "That's all I can tell you," and then gave Nestor his terminal pay. 16 Nestor refused to accept the proffered check and pressed Hugo for explanation of the discharge. Hugo insisted he did not know why Nestor was being discharged and suggested that Financial Manag- er Francisco Gonzalez would know. However, according to Nestor's credited and undisputed testimony, Gonzalez pro- fessed ignorance of the reason for the discharge and insist- ed that Nestor accept his terminal check. Nestor next sought an explanation from General Man- ager Lewers. 11 Lewers' response was: "Why, I don't know what to tell you Nestor. You know we've been having a lot of problems." At this, Nestor said in substance that he had been discharged "because of the union." Lewers responded with "Well, you know we've been having a lot of problems and you've been signing too many papers." Lewers then expressed regret that Nestor Rivera was leaving the Com- pany, saying that "out of all the people that are leaving, it hurts me most to see you go." Lewers also asked Nestor to let him know how he was doing each week and finally offered to help Nestor find another fob. Lewers agreed to give Nestor a letter of recommendation and instructed him to tell Gonzalez of Lewers' intention. Nestor did not contact Gonzalez until the following Monday.18 However, Gonzalez insisted that Nestor sign a resignation in exchange for the letter of recommendation When pressed by Nestor, Lewers supported Gonzalez in the matter. Nestor refused to comply and he never received the letter of recommendation. (d) Miriam Terwilliger 19 The Company hired Terwilliger as a sales correspondent on January 15, at a monthly salary of $300. She remained a sales correspondent under Luis Sanchez' supervision un- til her discharge on October 5. The Company granted her a $50 monthly increase late in August. As found above, in July, Supervisor Sanchez singled Terwilliger out for ques- tioning about her union sentiment She replied that she had "worked for a company that had a union and they ap- peared to be satisfied with it," but that in Puerto Rico [she] 16 Supervisor Hugh Rivera's testimony largely corroborates Nestor Rivera's version of their conversation on October 5 However, contrary to Nestor Hugo testified that he advised Nestor that the tatter's "deficiency in his work, his character" were the causes of discharge For the reasons previ- ously stated, I have credited Nestor whenever their testimony was in con- flict 17 Lewers' testimony largely corroborates Nestor's version of their Octo- ber 5 conversation However, where their versions conflict, I have credited Nestor Rivera 18 My findings regarding Nestor Rivera 's unsuccessful efforts to obtain a letter of recommendation are based upon his undisputed testimony 19 My findings regarding Terwilliger's discharge are based upon her cred- ited testimony 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD really had not gone too much "into it." Late on the morning of October 5, Supervisor Sanchez directed Terwilliger to General Sales Manager Recurt's of- fice. There, in Sanchez' presence, Recurt told Terwilliger that "[she] was no longer needed." At this, Terwilliger rose and left. Approximately 1 week later Terwilliger encoun- tered Supervisor Sanchez at the same social gathering at- tended by Aviles and Nestor Rivera. Sanchez expressed regret over her discharge and disclaimed any role in it, and admitted that he had no inkling of it prior to Recurt's an- nouncement on the morning of October 5. (e) Wilfredo Souchet The Company hired Wilfredo Souchet as a kardex clerk on May 5, 1972, at a monthly salary of $300. Souchet re- mained in that job under Supervisor Hugo Rivera, until August 1972, when he became a numbers control clerk un- der Luis Sanchez Thereafter, the Company granted Sou- chet three monthly wage increases. The last, of $39, was granted in July. At the time of his discharge on October 5, Souchet's monthly wage was $407. In May, Souchet received seven or eight union authori- zation cards from Aviles, which he distributed to employ- ees at their homes. Thereafter, he delivered some of the signed cards to the Union. The following month, Souchet, together with employees Terwilliger, Marrero, and other employees, met with General Manager Lewers to discuss matters troubling the employees.20 On the morning of October 5, General Sales Manager Recurt instructed Souchet to go to Recurt's office where Supervisor Sanches was waiting. When Souchet arrived at Recurt's office, Sanchez told him: I'm sorry, you are one of the discharged persons and I don't know why but management has told me to tell you that your work is going to the computer and that we don't need your services. I know this is not the reason and this has taken me by surprise 2i because I imagined it about Aviles, Miriam and Ramonita Mar- rero, but not about you. Then, after wishing Souchet "good luck" and extending an offer to help him, Sanchez shook his hand and gave Sou- chet a check. At this Souchet left.22 2. Analysis and conclusions The General Counsel contends that the Company dis- charged employees Aviles, Rivera, Marrero, Terwilliger, and Souchet because of their union activity. The Company 20 1 have not credited Souchet's testimony that Lewers threatened loss of benefits at this meeting Souchet's testimony in this regard was contradicted by his pretrial affidavit and was not corroborated by either Terwilliger or Marrero However, as Souchet impressed me as a generally forthright wit- ness , and his testimony was largely corroborated, I have otherwise credited him 2i On cross-examination, Supervisor Sanchez admitted that he had no advance notice of the decision to fire Souchet 22 My findings regarding Sanchez' statement to Souchet are based upon Souchet's undenied testimony seeks to defend the discharges, claiming that all five were discharged for reasons unrelated to their union activity. I find ample factual support for the General Counsel's con- tention. The Company's unlawful responses to the May-June phase of the employees' organizing effort included a threat of discharge addressed to Nestor Rivera. A similar warning was directed at Aviles in mid-September when he told Su- pervisor Pablo Ross of the renewal of the employees' union activity. This warning I also find violative of Section 8(a)(1). However, the circumstances immediately sur- rounding the five discharges are sufficient to reveal the Company's unlawful design. On the evening of October 4, Supervisor Sanchez reflected the Company's union animus when he warned Aviles that his union activity would result in discharges. This warning became reality the following morning when the Company discharged union activists Aviles, Rivera, Marrero, and Terwilliger in quick succes- sion. Sanchez' warning, which was violative of Section 8(a)(1) provides strong evidence that the five discharges which followed within hours constituted the Company's answer to the employees' renewed union campaign. Supervisor Sanchez provided even stronger evidence of the Company's discriminatory motive when he told Aviles "See, I told you," after the latter's discharge on October 5 Further, and more decisive, Sanchez' remarks as he dis- charged Souchet that morning came close to being a con- fession that Souchet, Aviles, Terwilliger and Marrero were victims of the Company's effort to eradicate union activity. Persuasive evidence that Nestor Rivera's discharge was part of the same effort was provided in his exchange with General Manager Lewers that same morning. For, when Rivera raised his union activity as the reason for his dis- charge, Lewers did not contradict him. Thus did Lewers imply the truth of Rivera's assertion. Review of the Company's defense reveals fatal infirmi- ties which convince me of its pretextual nature. Initially, a shadow is cast upon the Company's excuses by their shift- ing and inconsistent nature. Thus, on October 5, Recurt who had praised and rewarded Aviles exactly 4 months earlier for his outstanding work, told Aviles that he was being discharged because of unsatisfactory work, com- plaints from customers, and lateness. But at the hearing, his immediate supervisor, Luis Sanchez testified that cus- tomer complaints were not a reason for Aviles' discharge, that errors in delivery invoices were the only cause of his discharge. General Sales Manager Recurt testified first that the reasons for Aviles' discharge included his "attitude," "lack of responsibility," and "mistakes." Under cross-ex- amination Recurt added "customer complaints." The Company's brief to the Judge, claims that he was dis- charged for inefficiency and unsatisfactory work and then refers to record testimony by Company witnesses regarding Aviles' invoice errors, absences and indifference to his work. The brief makes no mention of "customer com- plaints." Such uncertainty indicates a consciousness that a convincing cover story is needed to mask an unlawful dis- charge. Although no reasons were given at the time of Marrero's and Terwilliger's respective discharges, the Company claims that Terwilliger was discharged for inefficiency, and MINNESOTA (3M) de PUERTO RICO, INC 475 that Marrero's discharge was for inefficiency and unsatis- factory work performance. At the hearing, for the first time, and in its brief, the Company asserted that Nestor Rivera was discharged for inefficient performance of his kardex tasks and a disagreeable personality. Far from as- sisting its defense, the Company's failure to give these rea- sons to employees at the time of their respective discharges suggests that they were afterthoughts. A further weakness in the Company's defense are Super- visor Sanchez' admission that he did not recommend the discharges of Aviles, Terwilliger or Souchet and that he knew nothing about them until the morning of October 5. Lewers testified credibly that under Company policy, the discharge of an employee is normally based upon the rec- ommendation of the employee's immediate supervisor. Here, although Sanchez was their immediate supervisor, the Company did not even consult with him in reaching its decision to discharge Aviles, Terwilliger or Souchet. This departure from normal procedure indicates that the Com- pany was not concerned about the quality of their perfor- mance as employees when it decided to discharge them. Further serious doubt is cast upon the Company's de- fense by the granting of increases to Aviles, Marrero, Riv- era and Terwilliger in the spring and summer of 1973. Gen- eral Manager Lewers credibly testified that the Company prepares an annual written performance appraisal for each employee, that if such appraisal is not complimentary the employee's immediate supervisor discusses it with the em- ployee; and, that all wage increases are based upon merit.23 Here, the Company produced no written appraisals to sup- port its complaints against these four employees. Instead, the record shows that they received increases based upon merit during the very period when the Company claims their performances were unsatisfactory. The Company's complaints against Nestor Rivera exem- plify the pretextual nature of its entire defense. According to the Company, Rivera's poor work and bad personality made his retention impossible. However, the facts are that in August, the Company thought well enough of his per- sonality to select Nestor Rivera to be a salesman, effective November 1, and that Supervisor Hugo Rivera was glad to have Nestor remain as a kardex clerk in the interim. Finally, the proffered excuse for discharging Souchet misses the point. The Company asserts that Souchet was discharged "because of the elimination of his position as numbers control clerk on October 1, 1973, when Phase II of the [Company's] computer program was made effec- tive." However, Souchet's undisputed and credited testi- mony shows that on October 1, Supervisor Luis Sanchez told him: Learn these rejects from the computer because you are the person who will be in-put man and out-put man of the computer. Learn how to correct them so that you can do them correctly. 23 In later testimony, Lewers sought to recant these admissions However, this change of heart came after Lewers had heard a substantial portion of the General Counsel's case-in-chief Accordingly, I have not credited Lew- ers attempts to explain away or contradict his initial testimony regarding the Company's wage policy Souchet also credibly testified that thereafter, until Octo- ber 4, Luis Sanchez instructed him on computer work with the voiced expectation that Souchet would be promoted to "in-put man" on a company computer. In my view, the Company's excuse for discharging Souchet totally ignores the fact that on October 1, he was being trained to partici- pate in Phase II as a computer in-put man, and that such training continued until October 4 without any hint that Souchet had become superfluous for that job. The final blow to the Company's cause is, of course, Supervisor San- chez' admission on October 5, that this same excuse was a pretext. In view of the foregoing, I find that the Company violat- ed Section 8(a)(3) and (1) when it discharged employees Jose Aviles, Ramonita Marrero, Nestor Rivera, Miriam Terwilliger, and Wilfredo Souchet. CONCLUSIONS OF LAW 1. By unlawfully interfering with, restraining, and coerc- ing the employees, as found herein, the Company has en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 2. By discharging employees Jose Aviles, Ramonita Marrero, Nestor Rivera, Miriam Terwilliger, and Wilfredo Souchet, the Company engaged in unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY The recommended Order will contain the conventional provisions in cases involving findings of interference, re- straint, coercion and unlawful discharges, in violation of Section 8(a)(1) and (3) of the Act. This will require the Company to cease and desist from the unfair labor practic- es found, to offer reinstatement with backpay to Jose Aviles, Ramonita Marrero, Nestor Rivera, Miriam Terwil- liger, and Wifredo Souchet and to post a notice to that effect. In accordance with usual requirements, reinstate- ment shall be to the five employees' respective former posi- tions, or substantially equivalent positions, without preju- dice to their seniority and other rights or privileges. Each of the five discriminatees shall be made whole for any loss of earnings each may have suffered by reason of the dis- crimination against them, by payment to each of a sum of money equal to that which he or she normally would have earned from the date of the initial discrimination (October 5, 1973) to the date he or she is offered reinstatement by the Company, less net earnings, if any, during such period, to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 24 The Respondent, Minnesota (3M) de Puerto Rico, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of SIU de Puerto Rico, Caribe y Latinoamenca, afiliada a la Seafarers International Union of North America, AFL- CIO, or any other labor organization, by discriminating in any manner against any of its employees in regard to their hire and tenure of employment, or any term or condition of employment, because of their union membership, sym- pathies, or activities. (b) Coercively interrogating employees about their union membership, activities or sympathies or the union membership, activities, or sympathies of other employees. (c) Creating the impression that the union activities of its employees are under surveillance. (d) Threatening discharge, loss of benefits or other re- prisals because its employees engage in union activities or express prounion sentiment. (e) Promising employees improved conditions of em- ployment to induce them to withdraw or withhold their support from SIU de Puerto Rico, Caribe y Latinoamerica, afiliada a la Seafarers International Union of North Amer- ica, AFL-CIO, or from any other labor organization. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Jose Aviles, Ramonita Marrero, Nestor Riv- era, Miriam Terwilliger, and Wilfredo Souchet immediate and full reinstatement to their respective former jobs or if these positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make each of them whole for such loss of pay he or she may have suffered as a result of the Company's discrimination against them, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its office and place of business at San Juan, Puerto Rico, English and Spanish copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 24, after being duly signed by Respondent's authorized repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other ma- terial. (d) Notify the Regional Director for Region 24, in writ- ing within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS ALSO ORDERED that the complaint, as amended, be dismissed insofar as it alleges violations of the Act not spe- cifically found. 24 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 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 25 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 be changed to 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 discourage membership or activities on behalf of SIU de Puerto Rico, Caribe y Latmoameri- ca, afiliada a la Seafarers International Union of North America, AFL-CIO, or any other labor organi- zation by discriminating in any manner against our employees in regard to their hire and tenure of em- ployment, or any terms or condition of employment because of their union membership, sympathies. WE WILL NOT interrogate our employees about their union membership activities, or sympathies, or about the union membership , activities or sympathies of other employees. WE WILL NOT give the impression that the union ac- tivities of our employees are under surveillance. WE WILL NOT threaten our employees with discharge, loss of benefits or other reprisals because they engage in union activities or express prounion sentiment. WE WILL NOT promise our employees improved con- ditions of employment to induce them to withdraw or withhold their support from SIU de Puerto Rico, Car- ibe y Latmoamerica, afiliada a la Seafarers Interna- tional Union of North America, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain or coerce any of our employees in the MINNESOTA (3M) de PUERTO RICO, INC. exercise of their rights to join or assist SIU de Puerto Rico, Canbe y Latinoamerica, afiliada a la Seafarers International Union of North America , AFL-CIO, or any other labor organization. The Board found that we discharged employees Jose Aviles, Ramonita Marrero, Nestor Rivera, Mi- riam Terwilliger, and Wilfredo Souchet because they were for the Union, and that these discharges violated the law. Accordingly, WE WILL offer these five employ- 477 ees reinstatement to their former jobs or to jobs sub- stantially equivalent, without prejudice to their senior- ity or other rights and privileges, and will make them whole for any loss of pay they may have suffered be- cause we discharged them, with interest at the rate of 6 percent per annum. MINNESOTA (3M) DE PUERTO Rico, INC.