Manuel San Juan Co., Inc.

MANUEL SAN JUAN, INC Manuel San Juan Company, Inc., Commonwealth In- surance Company and United Adjustment Bureau, Inc and Gremio Puertorriqueno de Trabajadores de Produccion, Servicios y Ventas Case 24-CA-3595 June 10, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 29, 1976, Administrative Law Judge Thomas E Bracken 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein 2 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 as modified below and hereby orders that Respondent, Manuel San Juan Company, Inc, Commonwealth Insurance Company and United Adjustment Bureau, Inc, San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Ad- ministrative Law Judge's recommended Order, as so modified I Substitute for the present paragraph 1(c) the following i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3 , 1951) We have carefully examined the record and find no basis for reversing his findings In adopting the credibility finding of the Administrative Law Judge that in the confrontation between Ferreira and Delgado on March 28, Guardiola did not order Delgado to leave the office, but rather suggested that the latter take the afternoon off, we find it unnecessary to and do not rely on his inference that if Guardiola had flatly ordered Delgado to go home he would have called the police to have Delgado removed from the office as a tres- passer when he saw Delgado at his desk on Guardiola's return from lunch after the earlier confrontation 2 The discriminatory discharge of an employee because of his union affili- ations goes to the very heart of the Act We shall therefore , issue a broad cease-and-desist order herein N L R B v Entwistle Manufacturing Compa ny, 120 F 2d 532 (C A 4, 1941) 653 "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act " 2 Substitute the attached notice for that of the Administrative Law Judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found after a hearing, that we violated Federal law by dis- charging and suspending our employee Hector Del- gado for supporting a union, and by otherwise inter- fering with our employees' right to join and support a union WE WILL offer full reinstatement to Hector Delgado to his former job or, if that job no lon- ger exists, to a substantially equivalent one, with backpay plus 6 percent interest WE WILL NOT discharge or suspend any of you for supporting Gremio Puertorriqueno de Tra- bajadores de Produccion Servicios y Ventas or any other union WE WILL NOT engage in surveillance of any of you for supporting a union WE WILL NOT in any other manner interfere with, coerce, or restrain you in the exercise of union activities MANUEL SAN JUAN COMPANY, INC COMMONWEALTH INSURANCE COMPANY AND UNITED ADJUSTMENT BUREAU, INC DECISION STATEMENT OF THE CASE THOMAS E BRACKEN, Administrative Law Judge This case was heard at Hato Rey, Puerto Rico, on July 14, 15 and 16, 1975' The charge was filed by the Union on April 4 (amended May 29 and June 9), and the complaint was issued on June 11 The primary issues are whether the Re- spondent (a) unlawfully engaged in surveillance of an ac- tive union supporter during the Union 's organizing drive, (b) unlawfully suspended an active union supporter, and (c) discriminatorily discharged an active union supporter, in violation of Section 8(a)(1) and (3) of the National La- bor Relations Act, as amended Upon the entire record, including my observation of the i All dates are in 1975 unless otherwise stated 224 NLRB No 97 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demeanor of the witnesses, and after due consideration of the oral argument made by counsel for the General Coun- sel, and of the brief filed by Respondent, I make the fol- lowing FINDINGS OF FACT I JURISDICTION The complaint alleges and the answer admits that Manu- el San Juan Company, Inc, Commonwealth Insurance Company and United Adjustment Bureau, Inc, are, and at all times material herein, have been, a single integrated enterprise engaged in the insurance business with the prin- cipal place of business in San Juan, Puerto Rico During the year preceding the issuance of the complaint, a repre- sentative period, the employer received gross income from retail sales amounting to more than $500,000 During the same period of time it purchased and caused to be deliv- ered to its place of business in Puerto Rico directly from points outside thereof materials and supplies valued in ex- cess of $50,000 Upon the foregoing facts the Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Gremio Puertorriqueno de Trabaladores de Production, Servicios y Yentas, herein called the Union, is a labor orga- nization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background The Respondent, a large integrated insurance enterprise employing approximately 400 employees, has its offices lo- cated on the upper floors of the 10-story Banco Popular office building in San Juan, Puerto Rico Its employees were not represented by any labor organization In October 1973, on the basis of a charge filed in Febru- ary 1973, the Regional Director issued a complaint in Cases 24-CA-3314 and 24-CA-3318 alleging that the Re- spondent had engaged in conduct violative of Section 8(a)(1), (3), and (4) of the Act After a hearing in October and November 1973, before Administrative Law Judge Paul L Harper, Judge Harper on January 30, 1974, issued a decision wherein he found among other findings that the Respondent had discharged Hector Delgado on February 9, 1973, in violation of Section 8(a)(3) and (1) of the Act, and recommended that Delgado be offered immediate and full reinstatement to his former job, or if that job no longer existed to a substantially equivalent position, without prej- udice to his seniority and other rights and privileges, and to be made whole for any loss of earnings that he may have suffered by reason of the unlawful discrimination Thereafter, Respondent and General Counsel filed ex- ceptions and supporting briefs and on June 21, 1974, the National Labor Relations Board adopted as its Order the recommended Order of the Administrative Law Judge and ordered the Respondent to take the action set forth in the Administrative Law Judge's recommended Order On Jan- uary 7, Delgado was reinstated by the Respondent, with the position as an assistant in the credit and collection de- partment Delgado worked under the immediate supervision of Fernando N Guardiola Guardiola, who had worked for the Respondent for 20 years, described himself as an "administrative supervisor"2 but testified that the only employee under his supervision in February and March was "Mr Delgado exclusively " Eric Rodriguez was Guardiola's supervisor, and the head of the credit and col- lection department Marcial Ferreira, vice president of op- erations, was the superior officer of both Rodriguez and Guardiola B Surveillance by Private Security Agency On February 4, Delgado commenced the distribution of union authorization cards among the employees of the Re- spondent, although the record does not reveal where this was done On February 6, Delgado testified that he met at noontime with two other employees of the Respondent, Hermenegildo Rosa and Eva Rodriguez, at the Park of the Pigeon to discuss the collection of signatures for the Union Pigeon Park is located at the end of the street lead- ing from the Banco Popular building, and is a distance of 200 to 400 feet from it During the course of their meeting, Dario Rodriguez, described by Delgado as the chief of the casualty division of the Respondent, approached the three employees, and asked what they were doing there and was answered, "We told him that we had met there by chance " 3 General Counsel contends that Respondent unlawfully kept Delgado under surveillance away from the Re- spondent's premises from February 7 through February 14, through the use of employees of the Burns Internation- al Security Services, Inc 4 Diaz testified, pursuant to a subpoena duces tecum from General Counsel, that he was a certified private detective, certified by the police department of the Commonwealth of Puerto Rico, and that Burns held its guard's license un- der his detective license and, as a certified private detec- tive, he was required to keep his own records of investiga- 2 Respondent stipulated that Guardiola was a supervisor within the mean- ing of the Act Rodriguez, described by the personnel manager as the manager of the casualty department, was not called as a witness and as the uncontradicted testimony of Delgado as to these February events did not contain any rea- sonable grounds for concluding that it was false I credit it 4 General Counsel had served on the Respondent, I week prior to the hearing, a notice of produce various documents concerning alleged activities engaged in by Burns on behalf of the Respondent, from February 7 through March 4 (G C Exh 1-N) Respondent did not produce any of these docu- ments, initially contending at the hearing that the documents were Burns' records not the Respondents General Counsel offered into evidence through Carolos Diaz Matos (Diaz), a former employee of Burns, photoco- pies of the documents requested in the notice to produce All such docu- ments were subsequently admitted into evidence G C Exhs 14, 15 and 16 Diaz own reports, were received over Respondent's objection G C Exhs 17 and 18 were received without objection and, after the conclusion of Diaz testimony, Respondent withdrew its objections to G C Exhs 19, 20 21-B 22 23 and 24 MANUEL SAN JUAN, INC bons that he conducted He also testified that in February and March he had complete access to the Burns files that related to the Respondent, and was familiar with the docu- ments contained therein Diaz testified that in the afternoon of February 7 he had had a conference with Ernesto Melendez, his immediate supervisor and the Burns director of investigations Sub- sequent to this conference, on February 12 and 13 Diaz had personally conducted a surveillance of Delgado from 8 a in to midnight and, on February 14, he had followed Delgado from 8 30 a in to 8 p in Diaz personally wrote up long, detailed reports for each of these days, listing hour by hour the movements of Delgado when he was not in the Banco Popular building Diaz followed him around the city of San Juan, observed where he parked, what buildings he went into, who he talked to, followed him home at the end of the workday, followed him to the University of Puerto Rico in the evening, and followed him to his home each night These investigation reports were on Burns station- ery, and read "To Marcial Ferreira, From Ernesto Me- lendez, Subject Hecto Delgado " Diaz testified that he ac- tually prepared these reports, not Melendez, as it was company procedure to have all reports that were sent to customers to show the report to be from the head of the department, Melendez However, the reports for February 12, 13, and 14 set forth in their contents that Agent Diaz conducted the surveillance Diaz also produced a xerox copy of the "Authorization" dated February 7, for Account No PRI-1005 that served as the contract between Burns and the Respondent In ad- dition Diaz produced a copy of the Investigation Journal dated February 7, which sets forth the pertinent facts of the assignment, such as client's name, "Manuel San Juan Company," Type of Investigation, "Surveillance," prob- lem "Subject is believed to be attempting to set-up a La- bor Union within the Company Subject is the apparent motivator of such a movement," and Procedure "Client request (sic) the surveillance of subject from 1700 hours 2/7/75 to 2300 hours 2/15/75 Agents to keep surveil- lance " The journal page also stated that "Correspondence Reports and Bills," were to be sent to Marcial Ferreira, vice president of operations On February 14, Diaz completed his assigned surveil- lance of Delgado at 8 p in, while parked outside of the home of Delgado, and made the final entry in his report for that day "Agent Diaz was relieved by Agent Aviles at this time Nothing of interest was observed from 1831 hours to 2000 hours " Delgado testified that he had noticed he was being fol- lowed on several days before February 14 On February 14 between 9 30 and 10 p in he was at the International Air- port with two state policemen and his brother, when the police "detained" Aviles, a Burns agent who had been fol- lowing Delgado After a telephone call by Aviles, Ronald Keith, an official of Burns, arrived who first conferred with the police and then with Delgado General Counsel's Ex- hibit 22, an investigation report by Aviles, contained Burns' report on the airport incident, substantiating Delgado's description of what happened that evening Diaz testified that thereafter, on or about February 21, he, Aviles, and Melendez went to the office of the Respon- 655 dent, met with Ferreira and Guardiola, and hand delivered the reports Ferreira questioned each of them about the surveillance, particularly Aviles, who had been detained at the airport When asked by General Counsel who de- termined that surveillance should be discontinued, Diaz answered "That was Marcial Ferreira who believed that Hector Delgado should not be followed anymore, that he was too smart " The meeting concluded, with Diaz leaving the bill that he had prepared with the help of Melendez in the amount of $1,100 20 for services rendered from 2/7 to 2/14 Shortly thereafter, Diaz picked up a check from the Respondent payable to Burns in the amount of $1,100 20 for "Account No 1005, Serv 2/14/75 " Diaz impressed me as an honest, sincere witness who testified in a straighforward manner and I credit his testi- mony Respondent's counsel did not cross-examine Diaz on any of his testimony, or on any of the numerous docu- ments received during his testimony, but limited cross-ex- amination to establishing that Diaz was discharged by Burns on March 24 Moreover, Respondent produced no testimony from Ferreira or Guardiola on any aspect of the surveillance of Delgado, and Diaz' testimony stands un- contradicted Respondent's failure to have these two management offi- cials testify on the sureillance episode gives rise to the in- ference that their testimony would have been adverse to the Respondent C Conclusions as to Surveillance 11 The basic question as to whether Respondent engaged in surveillance of Delgado's union activities, in violation of Section 8(a)(1) of the Act, is factual In this case the facts are uncontradicted and overwhelming that the Respondent did engage in such surveillance Respondent's strong union animus was of long standing as set forth in the Board's decision in 211 NLRB 812 (1974) Delgado had only been reinstated I month when the Respondent contracted with Burns International Detective Agency to handle the "prob- lem" as set forth tersely in Burns' Journal "Subject is be- lieved to be attempting to set-up a Labor Union within the Company Subject is the apparent motivator of such a movement " Burns was retained 3 days after Delgado com- menced collecting union cards, and 1 day after he was seen at Pigeon Park with two other employees by Rodriguez, a company supervisor In Melendez' initial handwritten notes concirmng the basic elements of the assignment from the Respondent, Melendez noted a meeting at Parque La Paloma (Park of the Pigeon) From February 7 to 14, Burns' investigators steadily followed Delgado throughout the day and into the night, noting his activities with minute detail Only when the cover was broken on Aviles at the airport was the surveillance discontinued However, the Respondent paid Burns' bill of $1,100 20 as set forth in the itemized invoice which listed the 44 hours of straight time and 30 hours of overtime performed by its agents from February 7 to 14 Respondent gave no reason or explana- tion of why private investigators were used to follow Del- gado In fact, Diaz' testimony was uncontradicted Such surveillance of an employee has long been held to be a flagrant violation of the rights guaranteed by Section 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7 of the Act The Board and the courts have condemned such spying since the early days of the Act Consolidated Edison Company of New York, Inc v N L R B, 305 U S 197, 230 (1938) enfg in this respect 4 NLRB 71 (1937), Virginia Electric and Power Company v N L R B, 319 U S 533 (1943), enfg 44 NLRB 404, 427 (1942), Meier & Frank Company, Inc, 89 NLRB 1016 (1950) Accordingly, I conclude that Respondent's surveillance interfered with, restrained, and coerced Delgado in the ex- ercise of his Section 7 rights, and was a violation of Section 8(a)(1) of the Act D The Suspension of Delgado On February 6 began the first of a series of letters that were to pass between the Respondent and Delgado in an ever escalating number and intensity On that date, Fer- reira wrote a mild, formal letter to Delgado calling his at- tention to the fact that in the performance of his collection work he must maintain his car in good condition, and that "On today's date, the management has helped you to re- solve this problem," and asked him to take preventive maintenance measures on his car in the future (G C Exh 10-B) 5 Delgado testified that this letter arose out of a break- down of his car on the way to work on-the morning of February 6, that at or about 9 am, when Guardiola ar- rived, he told him of his car trouble and Guardiola referred him to Ferreira to see how his problem could be solved Ferreira had his secretary call a tow truck, the tow truck arrived about 4 p in , towing Delgado's car away for re- pairs Delgado stated that he worked at his desk all day analyzing accounts, as he did on the following day until his car was repaired According to Guardiola he had approached Delgado at his desk at 10 30 a in and asked him if he was not sup- posed to be out in the field, upon which Delgado told him that his car had broken down Guardiola told him if he had so informed him earlier, arrangements could have been made to lend him a company car, and directed him to see Ferreira, which he did There was no charge made for the repair of the car, nor was there any allegation that the car did not require repairing This letter was referred to as a reprimand by the personnel director at the time of Delgado's discharge On March 7, Ferreira sent a strongly worded letter to Delgado citing as his Subject, "Reprimand " The two-page letter commenced by stating, "I have had knowledge that you have been divulging internal information of the ad- ministration, which should be known by us only," and as- serted that this was a violation of a regulation in the Resondent's employee manual The one specific incident set forth in the letter was that "A few days ago you dis- closed that you did not know why employees were being discharged, when we were spending $350 00 monthly in the house order (sic) or internal newspaper " The vice 5 Many of the exhibits were written in Spanish, and when received into evidence, the exhibit's English translation was concurrently received The document in Spanish had the letter A added to its exhibit number, and the English translation had the letter B added to the same exhibit number president warned him that if "this situation is repeated, we shall be forced to take disciplinary action," and urged him "to fulfill your duties and not dedicate time to other mat- ters that do not pertain to you " The record does not show to whom the information was divulged Ferreira sent cop- ies of his letter to Manuel San Juan, Jr , president of the Respondent, Guardiola, Rodgriquez, and Sara de la Vega, personnel director On March 14, Delgado replied to Ferreira's letter with a biting, sarcastic three-page letter emphasizing how re- spectful he was, and how disrespectful Ferreira was (G C Exh 12-B) Two-thirds of his letter bore on the issue of the alleged disclosure of confidential information and ex- pressed Delgado's opinion of the meaning of the Company's regulation thereon However, in the last third of his letter, Delgado went on the attack, accused Ferreira of being vulgar and of using obscene words, inferred that Ferreira had acted improperly with his secretary, and hint- ed that Guardiola had improperly taken a letter from his desk and given it to Ferreira Delgado sent copies to the same four officials of the Respondent, as shown on Ferreira's letter, and also sent a copy to the "National Re- lation Board " Delgado concluded his letter as follows "In conclusion I wish to remind you that you are not the one to decide what pertains to me Since you tell me in your letter to mind my own business I wish to remind you that all of the injustices, all of the abuse, all of the facts engaged in against the employees, all of those acts are my business " On March 17, Ferreira responded to Delgado's letter with a ringing three-page letter of indignation, in English, stating that it contained false concepts and referred to it as ill-disposed (G C Exh 4) 6 Ferreira set forth generally what he termed "weak points" in Delgado's personality and behavior, and then specifically answered various para- graphs contained in Delgado's letter The vice president concluded by calling on Delgado to comply with the inter- nal rules of the Company A copy was sent to Raymond J Compton (Regional Director of Region 24 of the Board), and a copy to the Respondent's president Ferreira testified that he and Guardiola had had a meet- ing with Delgado in his office on the day he received Delgado's March 14 letter, and that he and Guardiola had remonstrated with Delgado about his "undisciplined be- havior," and his insubordination to superiors Ferreira as- serted that Delgado told him "that he was not going to change his ways or his ideologies and that he was going to continue doing whatever he pleased " Delgado denied that there was such a meeting In any event, Ferreira's letter speaks for itself March 27 was a day of multiple letter writing by both parties The first was by Sara de la Vega, who had served as personnel director of the Respondent from September 1972 to September 1974, and had resumed that position on March 3 She knew Delgado, and testified that, after her return, he asked for an appointment with her which she gave to him, that, at this conference, he discussed the Company's dismissal of employees for economic reasons and suggested that the Company had some expenses that it 6 On the witness stand Ferreira characterized the letter as disrespectful, offensive, and insulting MANUEL SAN JUAN, INC could cut back, mentioning the Company's spending of $350 a month for publishing a monthly paper She further testified that he wanted to discuss executives whom he con- sidered surplus, and had other suggestions on how the Company should save money Delgado confirmed that he had a conference with the personnel manager on March 12, but denied he had told her the Company had a surplus of executives, and testified he discussed with her the retire- ment plan, the employees' manual with respect to the pay- ment of mileage to those who used their cars on company business, a noisy machine in his department "that makes so much noise that it does not allow the employees to work, to see how this noise could be avoided " 7 De la Vega testified that "at the last moment" the Com- pany had decided not to let its employees off after 2 p in on Holy Thursday, March 27, as it had formerly done prior to the "economic recession " That at 8 30 am on March 27 she had prepared a memo stating "Let this communica- tion serve to give notice that today, Thursday, 27th of March, shall be a complete working day " She estimated that due to mimeographing procedures 400 copies were dis- tributed between 10 30 and 11 am to the employees Shortly after this distribution, de la Vega received a memo from Delgado which stated "On behalf of all the employ- ees, I wish to refute your order to work today, Holy Thurs- day, the entire day, inasmuch as we are Christians " The personnel director promptly typed an answer on the reply portion of the memo, which read "Today's date is not rec- ognized as a holiday (not even under a religous concept) to be granted off I would like to know at what moment the employees of this company have recognized you as their representative " When de la Vega returned from lunch after 1 p in, she learned that photocopies had been made of the memo con- taining Delgado's message to her, and her answer to him and distributed to employees on the seventh floor She called Delgado to her office and he admitted he had pre- pared it and had had it circulated De la Vega testified that "this was an act of Mr Delgado which challenged my au- thority and I thought it was necessary to take disciplinary action " She then suspended him, and told him to return on Monday s According to Delgado when he arrived at work on the morning of March 27 at 8 am, a copy of de la Vega's memo concerning working all day on Holy Thursday was on his desk When the coffeebreak started, he met with other employees on the fifth floor, who told him they did not want to work on the afternoon of that day, as they had been given Holy Thursday afternoon off in previous years When pressed on cross-examination to name some specific 7 De la Vega was an impressive witness and testified in a sincere, compe tent manner I credit her testimony that Delgado discussed the issue of surplus executives and that he made other suggestions on how the Company should save money B In G C Exh 5-B, a letter dated March 27 , de la Vega wrote to Delgado summing up in detail the events of March 27 The letter also referred to the advice received from legal counsel on March 31 extending the suspension, so that the letter could not have been written on March 27 In any event she concluded the letter by advising Delgado ` that should another disciplinary violation occur of the policies governing this company, it shall be sufficient reason for summary discharge " A copy was sent to Ferreira 657 employees, he named five credit and collection employees Delgado readily admitted that he prepared the reproduc- tion and that he distributed copies on the fifth floor, and that another employee, Alfonso Soto, distributed them on the seventh floor 9 Before Delgado left, he typed on a company memo "From Hector Delgado To Srta Sara de la Vega `Under orders from you, I want it to be known that I will punch out and go home"' He then asked de la Vega to sign this, which she did (G C Exh 13-B) There was a fifth letter exchanged on March 27, a hand- written memo from Delgado to Ferreira Delgado ac- knowledged the receipt on March 17 of Ferreira's letter that was written in English, and returned it to him request- ing that it be sent to him in Spanish Delgado admitted that he understood English, but stated "I am Puerto Rican " On Monday, March 31, Delgado returned to work, and was told by de la Vega that his suspension had been in- creased by 1 more week, on advice of Respondent' s legal counsel Analysis and Conclusion on the Suspension The material facts applying to the suspension are not in dispute Personnel Director de la Vega, in March, issued a memo to all employees, informing them that that day would be a complete working day In the middle of the day Delgado forwarded her a memo, stating that on the behalf of all the employees he wished to "refute" her order to work all day, on Holy Thursday De la Vega responded to Delgado's letter on its bottom half, stating that that date was not a recognized holiday, and concluded by asking, "I would like to know at what moment the employees of this company have recognized you as their representative " Delgado then had photo copies made of the combined message and reply, and he and another employee distribut- ed copies to employees on the fifth and seventh floor When de la Vega returned from lunch and Delgado admit- ted he had prepared and circulated the memo, she prompt- ly suspended him for the stated reason that this act of Del- gado had challenged her authority, and she thought it necessary to take disciplinary action One additional fact that I credit from Delgado's testimo- ny was that he had discussed de la Vega's letter, setting forth that March 27 would be a complete workday, with other employees on the fifth floor It is an elementary prin- ciple of industrial life that when a working condition en- joyed by employees in previous years, such as a 5-hour day on a particular day, whether observed as a civil or religious occasion, is suddenly and without notice taken away from employees, those employees are dissatisfied about the loss of 3 hours of free time, and feel that an injustice has been done to them The employees knew, as de la Vega knew, that in prior years they had only worked 5 hours on Holy Thursday, and this taking away of 3 hours of previously enjoyed time off, a former condition of employment, was obviously of concern to them Delgado's term "refute" was clearly un- Soto was also suspended by de la Vega for his actions on March 27 and he was a coaddressee with Delgado in de la Vega's suspension letter 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD derstood by the personnel manager as a protest to the Company's action, and she regarded this protest as a chal- lenge to her authority Essentially, it is Respondent's contention that employees cannot engage in concerted activity if such activity chal- lenges the authority of the Employer But this is not a cor- rect interpretation of the National Labor Relations Act Section 7 of the Act provides that "Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection " When employees express grievances over conditions of employment orally, by letter, or by picket signs they are challenging the authority of the Company A strike is the classic example of a challenge to a Company's authority and the law is crystal clear that employees may engage in strikes against their employer as a protected con- certed activity The Board has ruled that, in the absence of an estab- lished grievance procedure, the conduct of a group of em- ployees in stopping work and concertedly presenting a grievance concerning terms and conditions of employment is within the protection of the Act Masonic and Eastern Star Home of the District of Columbia, 206 NLRB 789 (1973) Delgado presented a grievance on behalf of himself and other employees over a condition of employment, the loss of 3 hours of free time, without a strike and without any work stoppage When he circulated copies of the com- bined message-reply to the other employees they had a right to know the answer to their grievance The distribu- tion itself was part of the concerted activity, and it caused no disruption of company business I find that Delgado was suspended because he was pre- senting a grievance for himself and for the mutual benefit of all of the Respondent's employees, that his conduct was not such as to justify a suspension on the grounds that he was challenging the Respondent's authority, and that his suspension was in violation of Section 8(a)(1) of the Act Sherry Manufacturing Company, Inc, 128 NLRB 739 (1960), Cement Transport Inc, 200 NLRB 841 (1972) I find it unnecessary to decide whether the Respondent violated Section 8(a)(3) of the Act by the suspension, as the remedy is the same E The Discharge of Delgado On April 4, Delgado, while under suspension went to the Banco Popular building and distributed 150 union leaflets to the employees of the Respondent, as they came down the steps near the bank Delgado also gave a copy to Presi- dent San Juan, Jr, and testified that he was seen by "al- most all the administrators of the Company " This testimo- ny was uncontradicted On Monday, April 7, Delgado returned to work Some- time during the day, he received a letter from Ferreira, in Spanish, returning to him his letter of March 27 and its attachments The vice president asked Delgado to accept his original letter of March 17 written in English, and apol- ogized for not having written in Spanish Delgado testified that he worked inside that day, and about 5 05 or 5 10 p in according to his direct testimony (5 o'clock on the dot, according to his rebuttal testimony) he received a call from Ferreira to come to his office As he arrived, Ferreira was on the telephone with de la Vega, and he advised Delgado that de la Vega wanted to see him at that time Delgado answered "I asked how was it possible that they call me at that time when all the time that I had been there during working hours no one had called me and that at that exact moment I could not remain because I had a commitment at the University and Mr Ferreira, at the same time that he was telling Miss de la Vega on the phone that I had left, was gesturing to me with his hand that I should leave " (As Delgado testified that Ferreira was gesturing for him to leave, Delgado moved his right hand from his body outward) Delgado then left Delgado testified that on the following morning, April 8, he telephoned de la Vega, asked her what she wanted, and was told that she did not remember but, if she wanted him again, she would call him Delgado testified that in midmorning Ferreira called him to his office and told him that he was holding him responsi- ble for a copy of the magazine "Justicia," that had been slipped under Ferreira's door Justicia is published by the Puerto Rico Independent Party Delgado admitted that he had copies on his desk, but denied that he put a copy under Ferreira's door, although a copy "had been stolen from the top of my desk " Ferreira told Delgado, in a loud and agi- tated manner, "that he was not going to permit any politi- cal indoctrination, either socialist, communist, popular, democratic or republican " Delgado testified that Guardiola came in the room and, when he saw how agitated Ferreira was, Guardiola "inter- vened, that we should drop this discussion and he told me that I should go home to rest, to take the rest of the af- ternoon off " On cross-examination, Delgado stated that it was not an order that Guardiola gave him but was like "Take the afternoon off " Delgado then testified "I told him it was not possible for me to take the afternoon off because I had too much work and I was awaiting for some calls in the afternoon with relations to my work, unless he gave me an order in writing from Miss de la Vega or some- body like that " Delgado did not take the afternoon off, leaving the meeting at 12 30 p in and returning to work about 12 50 p in He testified that he sat at his desk and worked, ana- lyzing accounts and making phone calls to customers on collections, and that at no time that afternoon did Guardi- ola ask him why he had not gone home Delgado also prepared two more letters that afternoon, testifying that they were prepared during the afternoon break The first was a speed-memo (G C. Exh 6-B) from Delgado to Guardiola with both the message half and the reply half filled in by Delgado, with a line typed for Guardiola's signature Delgado explained his reason for preparing the letter "Being that I could already see what was being programmed so that they could discharge me I wanted to have a record or evidence of the conversation that I had had with Mr Guardiola " The point of the memo was to have Guardiola affirm that he had not given reports to Ferreira showing Delgado's negative attitude Delgado testified that he asked Guardiola to sign it in front of several employees, and Guardiola stated he would con- sult about it with Ferreira MANUEL SAN JUAN, INC Delgado then prepared a second letter, from himself "To Whom It May Concern," as follows Due to the fact that on April 1, 1975, Mr Guardiola had told me that at no time had he made reports on my bad conduct, in order to have evidence of this, I prepared an explanatory memo for him to sign it, es- tablishing that he had not made such reports Furthermore, before giving him this memo, just in case he denied that he had told me, I asked him in the presence of several employees about this and he told me it was true, that he had not made such reports When I gave him the memo to sign it for me, he re- fused, inasmuch as he wanted to clarify this with Mr Ferreira 10 Following its typing by a secretary, Delgado testified that one employee signed it, and three employees initialed it (G C Exh 7-B) The next day, April 9, Delgado reported to work and, before midday, received a letter from de la Vega discharg- ing him (G C Exh 2-B) He then went to Guardiola's office, and Guardiola returned to him, unsigned, the memo Delgado had prepared on April 8 for Guardiola's signa- ture Guardiola also gave Delgado a letter dated April 8, that he had drafted to Delgado, concerning an oral report Guardiola had given to Ferreira (G C Exh 8-B ) 1 The Respondent's evidence of events in the week of April 7 De la Vega testified that she received a copy from Fer- reira of Delgado's letter dated March 27, about 3 p in on the afternoon of April 7, that she was busy, and called Ferreira about 4 30 p in and told him she wanted to talk to Delgado "I told Mr Ferreira that I would be going down after 5 o'clock and to please tell Mr Delgado to wait a few minutes " When she arrived about 5 10 or 5 12 p in, Del- gado had gone She told Guardiola and Ferreira that the following day she would be in the accident and health de- partment, "but to please not lose the opportunity to ask Mr Delgado why he had not waited for me that day " On the next day, April 8, in the afternoon, when she returned from the accident and health division, she found a letter from Ferreira (Resp Exh 4) stating that at noon he had called Delgado to tell him (1) Why couldn't he wait a few minutes yesterday when you wanted to talk with him, (2) Why did he systematically disobey the instructions from his supervisor, Mr Guardiola The vice president re- cited how disrespectful Delgado had been, then instructed her to discharge Delgado immediately De la Vega pre- pared a letter of discharge dated April 9, (G C Exh 2-B) called Delgado to her office about 8 45 a in, handed him the letter, and discharged him Ferreira testified that, when de la Vega called him at 4 30 p in, Guardiola was in his office and he told Guardio- la to inform Delgado to stay and wait for de la Vega, that she could come down about 5 p in, that Delgado should not punch out, and that any time he stayed after 5 p in 10 Delgado stated that the date April 1 set forth in G C Exh 6 and 7 was incorrect, and should have been March 27 659 would be paid to him as overtime Ferreira's office and Guardiola's office are adjacent to each other on the fifth floor, with Delgado's desk 12 feet from Guardiola's office, and Ferreira stated that Guardiola stepped out and so in- formed Delgado When de la Vega came down a few min- utes after 5 p in Delgado had already left, without Guardiola's or Ferreira's knowledge On the following morning, April 8, Ferreira called Del- gado to his office and asked him why he had not followed the instructions given him the previous day Delgado raised his voice, and among other things told him he was going to continue acting the way he had been acting Guardiola came in at that moment, heard both men shouting, and "upon seeing that situation asked Mr Delgado to please leave the office and go home and take the rest of the af- ternoon off " When Ferreira returned about 2 p in, he saw Delgado sitting at his desk He called Guardiola in, asked why Delgado had not gone home and concluded that he had again been insubordinate and proceeded to draft the letter to Personnel Director de la Vega instructing her to discharge Delgado Guardiola's testimony was much the same as Ferreira's He further testified that on April 8 he asked Delgado why he had not waited, and Delgado told him "that if they wanted to throw him out they could throw him out in working hours " When Guardiola went into Ferreira's of- fice about 12 20 or 12 30 p in he noticed that both Ferreira's and Delgado's "tempers were a little excited," and that "Seeing that the argument was heated I told Mr Delgado to go home and come back the next day so as to avoid problems I went out to lunch and when I came back to the office about 1 30 I saw Mr Delgado at his desk without doing anything and I told him, `I told him to go home to avoid problems,' and he did not pay any atten- tion " When asked if Delgado said anything at that time, Guardiola replied, "He did not say anything to me " 2 Analysis and conclusion on Delgado's discharge It is well established that an employer may terminate an employee for any reason, good, bad, or indifferent, without running afoul of the Act, provided he is not motivated by unlawful considerations The existence of justifiable grounds for dismissal is no defense if the motivation for the discharge was in part because of the employee's participa- tion in protected activities With these established princi- ples in mind, and recognizing that the burden of proof to show the illegality of the discharge rests with the General Counsel, we now analyze Delgado's discharge In my view, counsel for the General Counsel proved a prima facie case of discrimination by showing that Hector Delgado had been an active union advocate in 1973, had been unlawfully discharged by the Respondent, had been reinstated to his job by order of the Board in January, that he performed his job in a competent manner, that within I month of his reinstatement the Respondent hired a private security agency to spy on him because he was the "motiva- tor" in trying to establish a labor union within the Respon- dent, that shortly before his termination he had partici- pated in concerted activities protected by the Act, including the presentation of a grievance relating to work- 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing conditions on behalf of other employees and the distri- bution of union leaflets, and that thereafter he was dis- charged The Respondent has pleaded an affirmative defense that Delgado was discharged for dust cause, stating in its brief, "that he was constantly being insubordinate and disre- spectful to company supervisors " As is evident from the record, the credibility issues in this case are of the sharpest nature However, as to the matter of the discharge of Delgado, the heart of the credi- bility conflict centers on who said what to whom on April 7 and 8 After observing the demeanor of the witnesses at the hearing and studying the record, I cannot resolve the credibility issues with a blanket finding in which I totally credit one witness in all matters over the other party's wit- nesses for the events that occurred during those 2 days I must rule selectively on each incident of material conflict Practically from the time of Delgado's reinstatement, both parties were engaging in a war of letters, both long and short, respectful and disrespectful, to each other Del- gado had been spied upon by agents of the Respondent, and he knew it He had been suspended by the Respondent on March 27 for a week, and he constantly had his guard up looking to protect himself On occasion he went on the offense into personal areas, not union or concerted activity areas Delgado was a very careful witness who weighed every question, in English and Spanish, and was in the main a factual witness On two separate factual matters, Delgado gave oral testi- mony contrary to Guardiola's testimony In both instances, company records proved Delgado to be correct Guardiola testified that he assigned the collection of an overdue ac- count in the amount of $2500 to $3000 from the firm of Cantera and Rivera to Delgado, gave him a copy of a prior letter to that firm, setting forth that if the account was not paid in full, that Guardiola would send the account to their legal department No copy of the letter was produced at the hearing Guardiola testified that Delgado went to the debtor's office, and on his own made arrangements for weekly payments of $500 from them, and then telephoned him and told him of the arrangements Guardiola testified that he did not remember exactly how long it took to col- lect the money, "but I know it was over 3 months " Delgado testified that he called Guardiola from the client's office and secured permission to accept weekly payments of $500 Further, that this account was paid off in about 6 weeks Six receipts of the Respondent were ad- mitted into evidence that showed conclusively that $500 a week was collected from Cantera and Rivera from Febru- ary 3 through March 14, a period of 6 weeks and 4 days In the second collateral factual issue, Guardiola testified that Delgado worked overtime six or seven times in his 3 months of employment with the Respondent in 1975 On rebuttal, Delgado testified that he had not worked any overtime in that period General Counsel produced the voucher half of the biweekly paychecks of Delgado for the pay periods of January 10, February 7 and 21, March 7, April 4 and 18, and May 2 Respondent stipulated that no payments for overtime appeared thereon The Respondent did not offer any of its payroll records to rebut Delgado's testimony that he had not worked any overtime, and I find as a fact that he did not work any overtime during the period of reinstatement Turning then to the afternoon of April 7, I do not credit Delgado's testimony that as Ferreira talked to de la Vega on the telephone, Ferreira told de la Vega that Delgado had left, and that Ferreira gestured concurrently with his hand that Delgado should leave Ferreira's dislike for Del- gado was so strong that on April? it was against all proba- blilities that he was going to do any favors for Delgado Although the time of the call is in dispute, Delgado admits that de la Vega was on the phone with Ferreira, and that she requested that Delgado stay after 5 p in to talk to her Delgado says he protested staying over as he had a "com- mitment" at the University, and Ferreira told de la Vega he had already left, and motioned for him to go This would require that Ferreira preferred to cooperate with Delgado's personal wishes, over de la Vega's business request That simply was not going to happen in the hostile relationship that existed between Delgado and Ferreira 11 Also, Delgado was wary of being set up to be dis- charged On March 27, when de la Vega suspended him, he prepared a memo for her to sign, stating he was going home under orders from her I have no doubt that if Fer- reira had motioned for Delgado to leave, he would have asked for a written authorization from Ferreira to go home On the next day, there is no doubt but that there was an angry confrontation between Delgado and Ferreira at noontime Ferreira testified that when Guardiola came in the room and heard both men shouting, he "asked Mr Delgado to please leave the office and go home and take the rest of the afternoon off " Guardiola described his statement to Delgado as "I told Mr Delgado to go home and come back the next day to avoid problems " 12 Delgado denied that it was an order that Guardiola gave him, but that it was in the form of a request to take the afternoon off I credit Delgado's testimony that Guardiola did not order him to leave the office, but as a peacemaker to break up the heated argument, Guardiola suggested that Delgado take the afternoon off, without making it a clear order Ferreira's testimony corroborates this "Then Mr Guardiola, upon seeing the situation, asked Mr Delgado to please leave the office and go home and take the rest of the afternoon off " When Guardiola returned from lunch, he saw Delgado at his desk I am convinced that if Guardiola had already flatly ordered Delgado to go home, Ferreira or Guardiola would have called the police to have him removed from the office as a trespasser' ii Ferreira was an emotional witness and, because of his participation in the surveillance episode and the record as a whole, I have discredited his testimony when in conflict with Delgado's except as to this conference on April 7 12 Guardiola was a mild, hesitant witness and, on observing him on the stand, it was my impression that he was intent on relaying testimony which would aid the Company, rather than stating the facts as they occurred 13 On the afternoon of April 8, Delgado presented a letter to Guardiola for his signature, which Guardiola returned unsigned the following day However Guardiola prepared his own reply, dated April 8, and presented that letter to Delgado on the day of discharge This letter by Guardiola contradicted the assertion made by Ferreira in his March 17 letter that every day your immediate supervisor report[s] to the management about your behavior, your conduct and your negative attitude" Guardiola in his MANUEL SAN JUAN, INC Respondent argues in its brief that Delgado was dis- charged "not because of his concerted prounion activity but because of his constant acts of insubordination " Clearly an employer can discharge an employee for insub- ordination, when that is the real reason for the discharge But when we examine the actual incidents that the Respon- dent presented as insubordinate acts, they do not with- stand scrutiny The earliest incident of insubordination cit- ed by the Respondent was the collection of delinquent funds from Cantera and Rivera The Respondent's own records proved that Delgado collected this account promptly, and in full The second incident was Delgado's car breakdown in early February Delgado was wrong, and should have reported it to Guardiola at 8 30 a in However, Guardiola's point was that if Delgado had let him know at 8 30 a in instead of learning about it at 10 30 am, he would have loaned him a company car while his car was being repaired Why the difference of 2 hours' time pre- vented the Respondent from lending a company car to Delgado was never explained, but the entire incident por- trays a routine incident of business, blown out of propor- tion Ferreira's heated letter to Delgado on March 7 accused him of divulging internal information, in that he disclosed that employees were being discharged, while the Company was spending $350 a month for a company newspaper The letter did not state to whom such information was di- vulged, or what was the source of Delgado's figure of $350 Certainly a company has the right to restrict the divulging of truly confidential business information by its employees But there is a rule of commonsense in the application of this rule, and I do not find that Delgado exceeded it The newspaper was taken home by the employees, and was handled by the Company as a public document It is true that Delgado was disrespectful in the letter he wrote to Ferreira on March 14, and touched on some sub- jects unrelated to union or concerted activities However, Ferreira did not regard Delgado's letter as sufficiently in- subordinate so as to discipline him for it, and handled it by replying with a long, detailed letter of explanation I have previously treated Delgado's activities on March 27, in which he protested the cancellation of 3 hours' free time in the afternoon, and found his conduct protected concerted activity, not insubordination When personnel manager de la Vega gave Delgado his lengthy letter of discharge on April 9 and set forth what she considered his acts of insubordination, she did not mention his not staying after 5 p in on April 7, but did refer to his actions in the vice president's office on April 8 as being insubordinate "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity " NLRB v Symons Manufacturing Co, 328 F 2d 835, 837 (CA 7, 1964) Delgado was the one persistent employee who was a letter of April 8 stated, he made only one report to Ferreira The only oral report that I made to Mr Marcial Ferreira ' 661 union advocate, and was looked on by the Company from the time of his reinstatement as the "motivator" trying to establish a union for the Company's employees He was actively engaged in protected concerted activities on March 27 and April 4 and, based on all of the evidence, I am convinced that the Respondent's reaction to his pro- tected activities was a substantial part of the Respondent's decision to discharge him, and that the stated reasons were a pretext to conceal the antiunion motivation for his dis- charge N L R B v Cement Transport Inc, 490 F 2d 1024 (C A 6, 1974), Singer Company v NLRB , 429 F 2d 172, 179 (CA 8, 1970) Accordingly, I conclude that by discharging Delgado Respondent violated Section 8(a)(3) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the fol- lowing CONCLUSIONS OF LAW 1 Manuel San Juan Company, Inc, et al, an integrated enterprise, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Gremio Puertorriqueno de Trabajadores de Produc- cion, Servicios y Ventas, is a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Hector Delgado on April 9 because of his support of the Union, thereby discouraging member- ship in the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(3) and (1) of the Act 4 By suspending Delgado on March 27 because of his concerted activities, the Company violated Section 8(a)(1) of the Act 5 By engaging in acts of surveillance of Delgado through the use of employees of a private security agency, the Company violated Section 8(a)(1) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act The Respondent having discriminatorily discharged Hector Delgado on April 9, I find it necessary to order the Respondent to offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the discrimination against him, by payment to him of mon- ey equal to that which he normally would have earned from the date of his discharge to the date of the Respondent's offer of reinstatement, less net earnings dur- ing such period Backpay and interest shall be computed as proscribed in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Having found that Respondent unlawfully suspended Delgado on March 27, I find it necessary to order the Re- spondent to pay to him the sum of money equal to that which he normally would have earned from the date of suspension to April 7, less net earnings during that period Backpay and interest will be computed as set forth in the preceding paragraph Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER14 Respondent Manuel San Juan Company, Inc, et al, San Juan, Puerto Rico, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Discharging, suspending, or otherwise discriminating against any employee for supporting Gremio Puertorrique- no de Trabajadores de Produccion, Servicios y Ventas, or any other Union 14 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 (b) Engaging in surveillance of any employee through the use of a private, security agency, for participating in union activities (c) 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 Hector Delgado immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his se- niority or other rights and privileges and make him whole for his lost earnings in the manner set forth in "The Reme- dy" (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order (c) Post at its office in San Juan, Puerto Rico, copies of the attached notice marked "Appendix " 15 Copies of the notice, in both English and Spanish, on forms provided by the Regional Director for Region 24, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt there- of, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith 15 In the event the Board s Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading ` Posted by Order of the National Labor Relations Board shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "