Great Lakes Oriental Products, Inc.

GREAT LAKES ORIENTAL PRODUCTS Great Lakes Oriental Products, Inc. and Production Workers Union of Chicago and Vicinity, Local 707. Case 13-CA-25165 26 February 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 5 June _1986 Administrative Law Judge Thomas D. Johnston issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs and they each filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Great Lakes Oriental Products, Inc_, Chicago, Illinois, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd' 188 F.2d 362 (3d Cit. 1951). We have carefully, examined the record and find no basis for reversing the findings For the reasons stated by the judge, we agree that there were no un- lawful interrogations of employee Martinez. We also agree with the judge that the two instances in which Supervisor Garcia asked employee Santana Hernandez about the Union did not constitute violations of Sec 8(a)(l) of the Act Garcia's question about 15 June 1985 concerning whether employees had signed cards for the Union was asked in passing, while the two men were out in the packing area; and Garcia did not press Hernandez for an answer when Hernandez failed to respond. As a result of a previous conversation on the subject of the Union, initiated by employee Martinez, Garcia had already been informed, in the presence of several employees, that some employees had gone to the Union and had signed cards Finally, this isolated inquiry to Hernandez, by a supervisor fairly 'low in the management hierarchy, was unaccompanied by any statements that would give it coercive overtones In the second incident, Garcia merely asked Hernandez in late July, "What happened about the Union?", s nce this inquiry was made soon after the election (which the Union won), it apparently did not concern anything more than the results of the'election. Under all the circumstances, we agree with the judge that neither question would reasonably tend to coerce employees in the exer- cise of their Sec 7 rights Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). In sec III,B of his decision, the judge states that "Galaviz denied men- tioning any names " The record reflects that "Galaviz" should be "Garcia." Similarly, in sec III,E the judge states that "Fang stated Busta- mante used one curse word . " The record reflects that Garcia, and not Fang, testified as indicated Finally, in sec 111,E the judge states that Fang had shown Bustamante how to cut the meat against the vein "Vein" should be "grain " We correct these inadvertent errors. 99 Alan M. Kaplan, Esq., for the General Counsel. Bennett L. Epstein, Esq. (Coffield, Ungaretti, Harris & Slavin), of Chicago, Illinois, for the Respondent. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge. This case was heard at Chicago, Illinois on 12 and 13 March 1986 pursuant to a first amended char-gel filed by Production Workers Union of Chicago and Vicinity, Local 707 (the Union) on 16 July 19852 and a complaint issued on 30 December. - The complaint as amended at the hearing alleges Great Lakes Oriental Products, Inc. (the Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by interrogating employees regarding their union membership, activities, and sympathies and those of other employees, and threatening an employee with sus- pension because he engaged in union and/or protected concerted activity;3 and violated Section 8(a)(1) and (3) of the Act by disciplining and thereafter discharging and failing to reinstate its employees Jose Martinez and Ro- dolfo Bustamante because they joined, supported, or as- sisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection and in order to discourage employees from engaging in such activities. The Respondent in its answer dated 9 January 1986 and amended at the hearing denies having violated the Act as alleged. Although it also asserts as an affirmative defense in its answer that Jose Martinez and Rodolfo Bustamante failed to mitigate their damages, if any, this defense is rejected on the grounds it is not a valid de- fense to their discharges and, if raised as a defense to the amount, if any, of backpay which might be due them as a remedy for a violation found, the proper procedure re- quires that it be raised at the compliance stage of the proceeding.4 Another defense first raised during the hearing was that both Jose Martinez and Rodolfo Bustamante were supervisors under the Act and therefore they were not protected under the Act from suspension or discharge for engaging in union activities. The issues involved are whether Jose Martinez and Rodolfo Bustamante were supervisors under the Act and whether the Respondent violated Section 8(a)(1) and (3) of the Act as alleged by unlawfully interrogating and threatening employees concerning the Union and discri- minatorily suspending,' discharging, and failing 'to rein- state Jose Martinez and Rodolfo Bustamante because of the Union. I The original charge was filed on I July 1985 2 All dates referred to are in 1985 unless otherwise stated. 3 The concerted activity referred to in the amended complaint as de- scribed by the General Counsel relates only to union activity 4 The Respondent's request for fees raised in its answer was rejected in a prehearing Order dated 6 February 1986 issued by Associate Chief Ad- ministrative Law Judge John M Dyer 283 NLRB No. 19 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire records in this case, from my observa- tion of the witnesses, and' after due consideration of the briefs filed by the General Counsel and the -Respondent,' I make the following' FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 'The Respondent, a corporation with an office and place of business located at Chicago, Illinois, is engaged in the business of producing and selling wholesale vari- ous food-products. During 1985, a representative period, the Respondent in the course of its operations, derived gross revenues in excess of $50,000 and it sold and shipped products, goods, and materials valued in excess of $50,000 from its Chicago, Illinois facility directly to points located outside the State of Illinois. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Production Workers Union of Chicago and Vicinity, Local 707 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent operates a facility located at Chicago, Illinois, where it is engaged in the production and sale of food products. Included among its officials and supervi- sory personnel were Manager John Dai, Production Su- pervisor Chris Fang, Supervisor Juan Garcia,8 Assistant Manager Vicki An, and- Vice President of Operations Simon Lin. During June the Respondent employed approximately 20 employees, including the discriminatees, Jose Marti- nez and Rodolfo Bustamante . About the early part of June the Union began an organizing campaign among the Respondent's unrepresented employees. The first union meeting was held on 8 June. On Monday, 17 June, Union Business Agent Juan Galaviz, who had filed a rep- resentation petition with the Board the previous week seeking to represent the Respondent's employees, con- tacted Manager Dai by telephone and informed him he had met with some of the Respondent's employees and they wanted a union in the Company. Galaviz refused Dai's request for those employees', names. Although they agreed to meet the next day pursuant to Galaviz' request, Dai canceled 'the, meeting the next day. Manager Dai stated he received the petition that same Monday, which he claimed was his fast knowledge about the union orga- nizing campaign. 5 The General Counsel's unopposed motion dated 30 April 1986 to correct the transcript is granted s The Union did not submit a brief. Unless otherwise indicated the findings are based on the pleadings, admissions, stipulations, and undisputed evidence contained in the record, which I credit 11 These three persons were supervisors under the Act. An election was held on 26 July and the Union was thereafter certified as the collective-bargaining represent- ative of the Respondent's employees. This proceeding arose out of conduct occurring during that organizing campaign. B. The Supervisory Status of Jose Martinez and Rodolfo Bustamante The Respondent's facilities and operations as described by Manager Dai consists of four departments, including the warehouse, packaging, meatcutting,- and appetizers departments. During -the period in issue here three em- ployees,, including a helper and two drivers, worked in the warehouse department; six employees worked in the appetizers department; one employee worked in the packaging department; and four employees worked in the meatcutting department' Manager Dai was over the facility and directly under him were Production Supervi- sor Fang and Supervisor Garcia, who both reported di- rectly to Dai. Garcia was primarily- responsible for over- seeing the distribution and warehousing while Fang was primarily responsible for production, quality control, sanitation, maintenance, and making out the work sched- ules. However, their responsibilities overlapped and they both were over all the production employees. Besides the employees there was also one captain employed in each of the departments, except for the appetizers de- partment, which had two captains. { Jose Martinez worked in the warehouse department. His job' was dispatching things for delivery and receiving things coming into the facility. He worked under Super- visor Garcia's supervision. Effective 27 May, Martinez' position was changed from plant helper to shift leader or captain.9 However,, his hourly rate of pay of $3.90 re- mained the same. Besides Martinez, two drivers, Fernando, and Francis- co, and a helper, Pablo Adan, worked in the warehouse department. Adan did not work there every day. Martinez' responsibilities as captain as described by Manager Dai were to make sure the correct products called for on the tickets were taken out of the freezer and were in good condition. Martinez was also responsi- ble for the operation of his department. According to Dai, the captains possess various types of authority. They, can suggest or recommend to the supervisor that an employee be disciplined and the supervisor would uniformly follow the captain's recommendation. The captains can also allow employees to go home but they usually first talk to the supervisor. Captains also' have input on bonuses given to employees and if employees make mistakes the captain can' suggest to the supervisor and the bonuses are not given. They also report to the supervisor on the employee's performance ffor bonus pur- poses, Dai stated the captains and the supervisors inform him When mistakes are made and deductions in the amount of the bonuses are made for such mistakes. When employees are 3 to 4 minutes late to work captains notify the-supervisors and for serious problems the supervisors notify Dai. 9 Manager Dai claimed he made Martinez a captain to motivate him GREAT LAKES ORIENTAL PRODUCTS The captains, like other employees, are hourly -paid, except for Rodolfo Bustamante; punch timeclocks; work the same hours; and are assigned lunch shifts. Supervisor Garcia, who stated he examines the work of both the captains and the employees, testified Marti- nez had the authority to let the employees leave work if they were ill and to tell employees to leave if they seri- ously violated company rules. On granting raises and bo- nuses Garcia stated captains are conferred with and denied there was ever a time Martinez had recommended a bonus which the employee did not get. However, Garcia acknowledged Martinez never recommended Adan or the two drivers for bonuses or raises or accom- panied Garcia to Dai's office to talk about raises for them. Under cross-examination Garcia admitted if Adan wanted to leave work early he, himself, would check with Adan to see if Adan's reason was legitimate. Garcia denied Martinez ever told him the two drivers wanted to leave early and denied remembering whether Martinez ever told him Adan wanted to leave early. Garcia also denied remembering whether Adan or the drivers ever got raises and denied they ever talked to him about it. Contrary to Dai's testimony, Garcia stated if Martinez wanted to send employees home for violating company rules, endangering the Company, or illness Martinez would have to check with him first and he, himself, would decide whether the rules were violated, the Com- pany was endangered, or the employees were ill before the employees would be sent home. Garcia further ac- knowledged if he, himself, was going to send an employ- ee home for disciplinary reasons he would generally check it out with Manager Dai. Supervisor Fang also said if there were problems with employees he would talk to the employees. Garcia acknowledged Martinez spent 100 percent of his time by the freezer doing the same work as Adan. Martinez described his duties as captain were to do the job well, fill the orders properly when he filled them himself, and be responsible for his own mistakes. Marti- nez stated he was also responsible for telling Adan, who only worked in his department when needed, what to do,' but denied he was responsible for Adan's errors or teaching him what to do, Martinez was also responsible for keeping the place clean, making sure the products were shipped out correctly, and making sure that the products which could thaw out were put into the freezer quickly. Martinez denied he ever allowed Adan or the drivers to leave early, recommended that they get bonuses or be disciplined, or that he ever talked to Supervisor Garcia about them wanting to leave work early. Martinez stated the'only time Garcia asked him about the performance of any other employee was in May when Garcia asked him how Adan was doing his job. On telling Garcia that Adan was helping him well and could learn fast and do a good job Garcia said to continue teaching him. Martinez denied he was ever told he had the authority to hire, fire, discipline, or transfer employees. He also denied ever hiring employees or interviewing employees to be hired, reporting employees for being late to work, checking Adan's timecard, or having the authority to assign Adan to work overtime. 101 -Rodolfo Bustamante worked in the meatcutting de- partment where he sliced meat. On 12 October 1984 his position was changed from butcher to butcher team leader or captain and his $780 monthly salary was raised to $800. Bustamante, who was the most experienced meatcutter and had worked there longer than the other meatcutters, was the highest paid employee working in the meatcutting department. Manager Dai described Bustamant'e's responsibilities as a captain were to make sure the meat was cut in the fashion specified and to make sure the job 'was done properly and none of the employees were fooling around . Bustamante also trained a lot of the new meat- cutters hired. According to Dai, there was a 3-month probationary period for new employees and in several in- stances when the new meatcutters hired did not perform their work properly Bustamante would report that to the supervisors with recommendations which the supervisors reported to Dai. Dai stated on those occasions they fol- lowed Bustamante's recommendations. Dai also stated if an employee was not properly performing his job Busta- mante was responsible for disciplining the employee. The supervisors would give Bustamante instructions about preparing the products to meet the customers' needs, whereupon Bustamante was responsible for getting the meatcutters to prepare it in that fashion. On granting bonuses to the meatcutters, as explained by Dai, the Company had records showing how fast the employees worked and those figures were calculated by Supervisors Fang and Garcia. However, as far as the quality of their work was concerned, Dai stated the cap- tain informed the supervisor about what, the employees were doing wrong and this was deducted from the em- ployees' bonuses. Dai stated they uniformly followed the captain's recommendations on reductions from the bo- nuses. Dai first stated' because the captain was the person ac- tually involved in the operation he, and the supervisors would take the captain's opinion a lot on raises. ]Dai then said if they wanted to give an employee a raise, be would have Garcia check with the captain about the employee's performance to decide the amount of salary increase which he uniformly followed. According to Dai, if an employee was not feeling well or had an emergency Bustamante had the right to let the employee leave but he had to let Garcia know the em- ployee was not feeling well. To dismiss an employee Bustamante would have to talk to the supervisors, who would report it to Dai, who would then make the deci- sion to discharge. Dai denied Bustamante ever hired employees without permission although he suggested employees be, hired. The hiring procedure was for Dai or Fang to interview employees with Dai making the decision. Dai stated he would follow suggestions in making his decisions and said he followed Bustamante's recommendations on hiring because Bustamante was very, good at it and they were experienced meatcutters and Bustamante would give him valuable, suggestions. Although Dai stated Bustamante transferred employees out of the meatcutting department he acknowledged he 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Fang agreed with the decision. Dai also acknowl- edged he sometimes investigated himself to see what em- ployees were doing to make sure Bustamante's sugges- tions were correct. Supervisor Garcia also described Bustamante's duties, responsibilities, and authority. According to him, Busta- mante spent all of his time in the meatcutting department doing the same work as the other meatcutters. Busta- mante was responsible for seeing that the other meatcut- ters cut the-,meat correctly for Garcia. Garcia also ob- served the other meatcutters and said if they, were not doing it correctly he would either talk to them directly or to Bustamante. Garcia stated Bustamante had the au- thority to let sick employees leave work or to tell the employees to leave if they seriously violated company rules. Bustamante was conferred with regarding bonuses and raises given to the employees in his department. However, Garcia stated Manager Dai made the decisions on raises and would ask Garcia's opinion, which he would give with his recommendation based on the em- ployee's performance as he viewed it. Garcia also said Bustamante never recommended bonuses for the meat- cutters. Garcia also acknowledged if Bustamante wanted to send employees home for violating company rules, en- dangering the Company, or illness, Bustamante would have to check with him first and he, himself, would decide whether the rules were violated, the Company was endangered, or the employees were ill before the employees would be sent home. Garcia also acknowl- edged Bustamante would tell him when the meatcutters wanted to leave early, whereupon he would talk to them and check their reasons. Bustamante denied he ever had any authority over the meatcutters or to hire employees or allow overtime work. Although Bustamante stated he was told to direct the other meatcutters he denied he was their boss and stated he did his work like any other meatcutter along with showing employees how to do the work correctly. Bustamante denied he ever recommended that employees be disciplined, fired, or given raises. Bustamante ac- knowledged he did ask Garcia to ask Dai about hiring his brother and Adan, who were both hired. Not only was Manager Dai's claim Martinez and Bus- tamante could effectively recommend disciplining em- ployees, grant them time off from work, and grant or deny them bonuses or raises refuted by Supervisor Gar- cia's testimony regarding the authority of Martinez and Bustamante, but both Martinez and Bustamante specifi- cally denied possessing such authority or any other su- pervisory authority over the employees in their depart- ments. I credit the testimony of both Martinez and Bus- tamante rather than that of Manager Dai and Supervisor Garcia, whom I discredit. Apart from my observation of the witnesses in discrediting Dai and Garcia, their testi- mony was contradictory and Garcia's testimony also tends, in part, to support that of Martinez and Busta- mante concerning their alleged supervisory authority. Section 2(11) of the Act defines a supervisor as "any individual having authority, in the interest of the em- ployer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly Ito direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such au- thority is not of a merely routine or clerical nature, but requires the use of independent judgment." An individual need only to have one of the indicia enumerated to be a supervisor. Research Designing Service, 141 NLRB 211, 213 (1963). Based on the testimony of Martinez and Bustamante, which I credit, I find neither Martinez nor Bustamante possessed any of the statutory authority enumerated to make him a supervisor within the meaning -of Section 2(11) of the Act. Therefore, I find, for the reasons indi- cated, neither Martinez nor Bustamante was a supervisor within the meaning of Section 2(11) of the Act and they were employees of the Respondent accorded the protec- tion of the Act. Moreover, to accept Respondent's con- tentions the captains were supervisors would mean that including Production Supervisor Fang, Supervisor Garcia, and the 5 captains there would be a total of 7 supervisors for the other 14 employees employed by the Respondent or a ratio of 1 supervisor for every 2 em- ployees. The Board has held it will look to the ratio be- tween supervisors and employees in determining the su- pervisory status of an employee. Monarch Federal Savings & Loan Assn., 237 NLRB 844 (1978). C. Interrogations About the Union Several employees testified about conversations they had with Supervisor Garcia concerning the Union. Jose Martinez stated about April he mentioned to Su- pervisor Garcia and Rodolfo Bustamante that in the fac- tory "they treated them very badly and they had to see or find someone like a union, for example, who could help them." Either Garcia or Bustamante asked Martinez how it could be done and said it might be difficult to get it done. Martinez' response was once you proposed to do something it was simple. When Bustamante and Garcia remarked it could be difficult to do or accomplish, Mar- tinez agreed, but told them he would try to do it. Bustamante corroborated Martinez' testimony about the conversation and further stated Garcia told Martinez he was in agreement with the idea of putting in the Union. Martinez also testified about several other conversa- tions he had with Supervisor Garcia about the Union. No one else was present during the first two of these conversations. The first one occurred about 7 June, which was the day after Martinez had first talked to Union Business Agent Galaviz about organizing the Re- spondent's employees. Martinez stated he informed Garcia he was going to try to get the Union in but needed people to support it. On Garcia's asking who was going to go, Martinez said he did not know but he was going to try to get some people to go there one Satur- day. Garcia then told him to see who could go. Martinez helped arrange and attended the first union meeting held on Saturday, 8 June, at which Martinez and other employees of the Respondent signed union authori- zation cards. The following Monday, 10 June, Martinez testified, he told Garcia in the presence of other employ- ees, including Fernando and Pablo Adan, he had gone to GREAT LAKES ORIENTAL PRODUCTS the Union. On Garcia's asking him what happened, Mar- tinez said they signed cards for the Union and showed Garcia one of the cards. Garcia then asked Martinez what he was going to do with them, whereupon Marti- nez said he was going to pass them out and had them in case other employees wanted to sign them. On 12 June, ,Martinez stated, Garcia came over to where he was working and said he wanted to talk to the man from the Union. Martinez gave Garcia Business Agent Galaviz' name and telephone number so he could call and talk to him. No one else was present during the conversation. Supervisor Garcia acknowledged having several con- versations with Martinez about the Union. However, he denied anyone else was present. Garcia testified the first conversation occurred 1 or 2 months before Martinez employment ended. On that occasion Martinez men- tioned Garcia was not making enough money and told Garcia if Garcia wanted to help him that he had a friend working for the Union who could help them do some- thing about it but Garcia had to help him. When Garcia asked why he, had to help, Martinez said he was a super- visor and could talk to the rest of the people easier. Garcia refused, stating he did not want problems with his boss. According to Garcia, during their next conversation, the date of which Garcia could not recall, Martinez men- tioned he had called his friend and then asked Garcia whether he wanted to join the Union. Garcia again re- fused, saying he did npt want any trouble with his boss. Martinez said his friend told him it was easy to do it and all they needed, was to get the other people to sign a piece of paper. Garcia then told Martinez if he wanted to do it, to do it, but not give Garcia any troubles. Garcia stated that later in another conversation, the date of which was not established, Martinez came to his desk with some union cards, showed him one, and asked him whether he wanted to sign it. When Garcia refused, Martinez gave him Business Agent Galaviz' telephone number and told Garcia to call Galaviz and ask him about the Union. To the extent the testimony of Martinez and Garcia conflicts, I credit Martinez, whose testimony was cor- roborated in part by Bustamante rather than Garcia, whom I have previously discredited. Having credited Martinez, I find Supervisor Garcia about 7 June asked Jose Martinez who was going to go to the Union; on 10 June asked Martinez in the presence of other employees what happened at the union meeting and what he was going to do with the union cards he had; and on 12 June told Martinez he wanted to talk to the man from the Union. According to Supervisor Garcia, he then called Busi- ness Agent Galaviz and asked about the Union's benefits. However, on stating he was a supervisor Galaviz in- formed him the Union was only for regular workers. Ga- laviz denied mentioning any names. Business Agent Galaviz acknowledged having such a conversation with Garcia and further stated, which I credit, that Garcia also told him he had talked to Marti- nez and Bustamante because they' had the cards they were showing to the employees. Besides my observation 103 -of^the -witnesses in,crediting Galaviz instead of Garcia, both Martinez and Bustamante had participated in get- ting other employees to sign cards and, as previously in- dicated, they had been involved in conversations with Garcia about the Union. Employee Santana Hernandez, who attended the union meeting held on 8 June, testified about 1 week later while in the packing area Supervisor Garcia asked him if they signed cards for the Union. Hernandez also testified while he was in the packing area the last week in July, which was after the 26 July union election was held, Garcia also asked him what had happened about the Union, whereupon he denied knowing anything. Supervisor Garcia acknowledged asking Hernandez right after the election what happened with the Union and stated he also asked if the guys won or what. Garcia did not specifically deny having an earlier conversation with Hernandez about the Union or asking him if they signed cards for the Union. Based on Hernandez' undis- puted testimony and Garcia's admissions I find about 15 June Supervisor Garcia asked Santana Hernandez wheth- er they signed cards for the Union and the later part of July asked Hernandez what happened about the Union. D. The Unlawful Threat and Suspension and Discharge of Jose Martinez Jose Martinez was employed by the Respondent from October 1984 until his termination in June. While em- ployed there Martinez received raises effective 10 De- cember 1984 and 1 April. Martinez also testified in May on asking Manager Dai for another raise Dai informed him he was a good worker and promised to give him an- other raise later. Dai acknowledged telling Martinez when he gave him his April raise that if he continued doing a good job he would think about giving him an- other raise later. Although Dai claimed after Martinez received his April raise his attitude changed and he did not do his job, no examples were given to support this assertion and Martinez credibly denied his work changed. Martinez' union activities consisted of initially contact- ing the Union in early June about organizing the Re- spondent's employees; attending a union organizing meeting held on 8 June, at which time he signed a Union authorization card; and on 10 June soliciting other em- ployees at the Respondent's facility to sign union author- ization cards. On Monday, 17 June, Martinez and helper Pablo Adan were filling tickets given to Martinez by Assistant Man- ager An for the deliveries scheduled that day. Produc- tion Supervisor Fang was checking the orders being loaded and discovered one of the boxes of shrimp, which Adan had loaded on a truck, was the wrong brand. Mar- tinez, at Fang's instructions, returned the box of shrimp to the freezer. Fang, went to the office and reported the incident to Assistant Manager An. Fang then returned and they continued loading the truck. Martinez testified about 12 or 12:10 p.m. Supervisor Garcia instructed him to return boxes of appetizers, which had been removed from the freezer beginning about 10:30 a.m. to be loaded'on the truck for delivery, 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the freezer because the truck had flat tires. Garcia confirmed giving such instructions to Martinez and claimed the appetizers had already been out for several hours in the hot weather.' ° About 10 or 15 minutes later , Martinez stated, he also had a conversation with Manager Dai with another em- ployee named Lupe acting as an interpreter." Martinez stated Dai also instructed him to return the appetizers to the freezer because the truck had flat tires. Martinez denied it was his fault and said Dai should have told him before because now he had to do double work and Dai was not paying him double. When Dai insisted Martinez was going to have to do it Martinez responded it was his lunchtime and he had to go to lunch. According to Martinez, about that time Adan was re- turning from lunch and he informed Adan what Dai had told Martinez to do. When Dai remarked they could go to lunch later Martinez reminded Dai that he would be coming back later and Dai did not like for people to come back from lunch late and gave points against them for doing so. Manager Dai, who did not deny having such a conver- sation with Martinez, stated that morning he had in- structed Supervisor Garcia about 11 a.m. to have four or five boxes of appetizers, which he saw, returned to the freezer to keep them from thawing while waiting for the truck. Martinez acknowledged that , after putting some of the appetizers back into the freezer, he then went to lunch on the second shift from 12:30 to 1 p.m. because he was hungry. Before going, Martinez stated, he had put almost all the appetizers back into the freezer and Adan was continuing to do that when Martinez left for lunch. On returning from lunch the truck was ready for load- ing and it was then loaded. Martinez testified about 1 :20 or 1 :30 p.m., while load- ing the truck, Supervisor Garcia returned to the facility. Garcia asked Martinez why he had not put away the ap- petizers like he had told him. Martinez responded by saying he was filling the order and when he filled it he went to lunch after putting the things susceptible to de- frosting in the freezer. Under cross-examination Martinez acknowledged when Garcia returned there were still some appetizers that had not been put back in the freezer and that he had ignored Manager Dai's orders to put the appetizers 'back and go to lunch later. Supervisor Garcia testified, when he returned to the facility between 1 and 2 p.m., Manager Dai had gotten on him about not having the appetizers returned to the freezer as he had instructed him, whereupon he informed Dai he had told Martinez to do it and Martinez had not done it because Garcia saw some appetizers in the same place. Manager Dai corroborated Garcia's testimony and stated ' he instructed Garcia to find out why Martinez did not follow instructions. About the end of that workday, Martinez testified, Su- pervisor Garcia came over to where he was working and told him he thought Manager Dai wanted to suspend 10 The outside temperature that day was in the mid-seventies 11 Dai's primary language is Chinese and although he speaks English he does not speak Spanish, which is the language used by Martinez Martinez because he had found out about the Union. On asking Garcia who told Dai, Garcia denied he did or knowing who had but said somebody must have told him and Dai was thinking of suspending Martinez . Martinez informed Garcia if Dai was going to suspend him to let him suspend him. Although Supervisor Garcia acknowledged telling Martinez that Dai might give him a suspension , he stated he told Martinez it was for the appetizers because Marti- nez did not listen to Garcia. Garcia denied there was any mention of the Union during this conversation.' 2 I credit Martinez rather than Supervisor Garcia for reasons previously given and find on 17 June Garcia threatened Jose Martinez with suspension because of his union activities. Manager Dai stated after instructing Supervisor Garcia to have the appetizers returned to the freezer he went to the office and informed Assistant Manager An what had happened. An told him Supervisor Fang had reported that morning Martinez had made a mistake by taking out the wrong brand of shrimp. She also told Dai the previ- ous week a customer had complained he had received the wrong brand of shrimp . Assistant Manager An con- firmed she had received a complaint about a week earlier from a customer who had received the wrong brand of shrimp. Although according to Dai Assistant Manager An had given Martinez an oral warning about the inci- dent by telling him to be careful, An did not testify about such a warning and Martinez 'denied ever being told about the customer's complaint. According to Manager Dai after Garcia talked to Mar- tinez, Garcia reported Martinez ' excuse for not putting the appetizers in the freezer was because he went to lunch. Dai then told Garcia they had to give Martinez some serious discipline, reminded Garcia of the regula- tions, and said to either dismiss Martinez or give him a very serious suspension. Garcia suggested suspension and Dai instructed Garcia to suspend Martinez for 1 month and to write it up . Garcia wrote a note stating he was going to suspend Martinez for 1 month for not following instructions. Dai stated the next day he had Assistant Manager An issue a memorandum and notice which was attached to Martinez' timecard. Supervisor Garcia cor- roborated Dai's testimony. A rule contained in a memorandum from Manager Dai to Supervisors Fang and Garcia dated 15 February, which Supervisor Garcia stated he had previously trans- lated and explained to employees, including Martinez, provided as follows: Effectively immediately, any kinds of meats should not be left outside of cooler or freezer more than 20 minutes. Violator of this rule will be dismissed. Martinez, however, denied any knowledge of such a rule and Dai was not certain whether it was ever posted. 12 Manager Dai also denied having any conversation with Supervisor Garcia prior to 17 June about suspending or disciplining Martinez and denied talking to Garcia about Martinez' union activities GREAT. LAKES ORIENTAL PRODUCTS The Respondent also had rules and regulations in.both English-and Spanish dated 25 June 1984 which were dis- tributed to the employees. It set out rules and the number of points employees would be assessed for violat- ing such rules. The points assessed for violating a rule for not obeying the orders of a manager or supervisor ranged from 9 to 27 points. The regulations also provid- ed employment should be terminated for employees with 27 points. The next day, 18 June, Martinez on finishing work found a memorandum and notice with his timecard. This memorandum from Manager Dai to Martinez, dated 18 June and entitled "Punishment," provided as follows: We regret that the Company decided to give you one month suspension as punishment since you do not obey the Company's regulations and Supervi- sor's instructions several times which mistakes re- duced our reputation and caused the loss of the Company. According to our regulation, we can not keep you with the Company any more on the above mistakes, but for given you one more chance to do the good job, we decided to give you one month suspension instead of leaving the Company. This punishment shall be starting on June 19, 1985. Attached to the memorandum was a punishment/- misconduct notice dated 18 June and signed by Dai. It gave as a reason for the punishment that Martinez made mistakes while distributing merchandise by distributing the wrong brand of shrimp on 17 June and by not keep- ing the frozen appetizers in the freezer before delivery on 17 June. Martinez was given 10 points for each of those two mistakes and the notice reflects those 20 points gave him an updated total of 23 ,points.13 Martinez then went to the office where he had a con- versation with Manager Dai with Supervisor Garcia acting as interpreter. Present also were Assistant Manag- er An and Vice President Lin. Martinez testified he asked Dai what the memorandum was about and was told it was about his suspension. Martinez-asked them'to sign the memorandum, which they did, and asked Dai for his check. Dai refused to give him his check giving as a reason it was not a payday and told him if he re- ceived the check before payday it was like' quitting his job. Martinez mentioned he had been suspended for a month and would not be working and asked where was he going to get the money to come there on the bus to get his check on payday. Dai, who had a check Assistant Manager An had made out for Martinez, then told Mar- tinez if he wanted his check he was going to have him sign a paper and if he signed that paper he was fired and was not going to be working there anymore. Martinez denied signing the paper or getting his check. He in- formed Dai he was planning to come back to work there. Martinez then left the premises. 1s The other three points were for being late for work on 26 October 1984 and on 25 January and 18 February 105 r;Manager,Dai's version of this conversation was when Martinez questioned him about the memorandum he told Martinez that Martinez had made a mistake in distribut- ing the products several times and had disobeyed the su- pervisor's instructions by not putting the appetizers back in the freezer as instructed and he had disciplined Marti- nez to let him remember what he had done. Martinez kept shaking his head in disagreement and insisted on getting his check. Dai told Martinez the only way an employee could get his check immediately when it was not a payday was by not working there anymore and quitting.14 Dai also informed Martinez it was for a 1- month suspension and he should get his check like the other employees on the next Tuesday, which was payday. Martinez, however, said he wanted to quit and get his check. Dai, who stated it was his decision to accept Martinez' resignation, stated he then instructed Assistant Manager An to make out Martinez' check as he requested. Dai claimed he had no knowledge of Martinez' union activi- ties. Supervisor Garcia, who denied discussing the Union with the Respondent's officials or supervisors, corrobo- rated Dai's testimony and stated he signed Martinez' memorandum at Martinez' request. Although Garcia also stated Martinez used some curse words, lie denied trans- lating them to, Dai and said employees always talked like that. Assistant Manager An stated she got a paycheck hand drafted by the bookkeeper for Martinez that day. How- ever, Martinez refused to take it claiming too much tax had been deducted and stated he wanted one made out by the company which normally made out their checks. According to An, Martinez' brother subsequently picked up Martinez' check for him. Martinez, who stated he was supposed to return to the facility on a Friday, returned to the facility on a Monday morning, at which time he had a conversation with Man- ager Dai with a delivery driver, Fernando,' 5 acting as interpreter. Present also were Assistant Manager An, Vice President Lin, and another employee. Martinez tes- tified he asked Dai what Din wanted to tell him.16 Dai informed Martinez he was not to come back to work be- cause there was no work for him anymore. About that time Supervisor Garcia came into the office where they were and Fernando left. Martinez then asked Garcia why they were not going to give him his job back, whereupon Garcia said he did not know and told him to ask them. Martinez replied he already had. Martinez, with Garcia acting' as interpreter, then remarked to Dai that in other words the memorandum Dai had given him was not any good. Dai agreed it was not any good and Martinez then asked for another letter stating it was no good. Dai said he would give hint another letter and 14 The payroll is handled by an outside company and for the Respond- ent to prepare an employee's check requires a lot of paperwork. Accord- ing to Dai, the Respondent's policy was if an employee got his check early he was considered a quit 15 Fernando did not testify, 16 According to Martinez, he had been told by Fernando the previous Thursday Dai wanted to talk to him on Monday. 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD asked him to- wait outside.' Although Martinez waited outside, he did not receive the letter as promised. - Manager Dai placed this conversation as occurring about 18 July and stated, using Fernando as an interpret- er, he informed Martinez there was no job for him and to go home and that Martinez had already quit, his em- ployment was terminated, and they did not have any jobs. Since that time Martinez has not been contacted by the Respondent about returning to work. Respondent's records contain a document signed by Manager Dai entitled "Termination Form" for Martinez which reflects he was terminated on 18 June for disobey- ing management directions. I credit the testimony of Martinez concerning his con- versations with Manager Dai on 18 June and with Man- ager Dai and Supervisor Garcia afterwards when he at- tempted to return to work, and find based on such testi- mony as well as Respondent's own records that Martinez was suspended- and -discharged on 18 June. Besides my observation of the witnesses and having previously dis- credited Manager Dai and Supervisor Garcia, the Re- spondent's own records reflect Martinez was terminated on 18 June allegedly for disobeying management direc- tions rather than quitting his job on 18 June as Dai, Garcia, and Assistant Manager An claim. E. The Unlawful Suspension and Discharge of Rodolfo Bustamante Rodolfo Bustamante was employed by the Respondent from August 1982 until his termination in June. His union activities consisted of signing a union au- thorization card on 10 'June and helping Jose Martinez solicit other employees to sign union authorization cards. Bustamante signed his union, authorization card on the Respondent's parking lot in the presence of several other employees. Supervisor Garcia at the time was about 10 meters away from Bustamante: ' On 13 June Supervisor Fang showed Bustamante how he wanted some meat sliced for a customer . Bustamante, who stated he had previously sliced meat that way, testi- fied',he cut the meat the way Fang had instructed him. However, about 15 minutes later after slicing the meat, Fang returned and using Supervisor Garcia as an inter- preter said he knew Manager Dai was going to ball Fang out and then accused Bustamante of not slicing the meat correctly saying he wanted it sliced a different way and thinner. Bustamante disputedthis by 'saying he sliced it the way he was instructed. Bustamante also denied he could correct- it because there was no other meat there. Bustamante stated Fang then- told hint because he did not obey instructions he should go home, whereupon he informed Fang,if Fang wanted him to go home then to pay 'him. Fang also told him to go to the office because Manager Dai wanted him. Supervisor Fang claimed on that occasion he had shown Bustamante to cut the meat against the vein in- stead of with the vein. On using Supervisor Garcia to translate those instructions, Fang stated, Bustamante re- fused to do it giving as the reasons it was too trouble- some to do things like that and he did not want to do it. Although Fang explained it was 'to meet a customer's special requirement, Bustamante still did not want to do it and then ignored them and did it his own way. 'Fang stated he then told Bustamante they had a problem and after ordering him out of the cutting room asked Busta- mante why he did not obey the order. Bustamante's re- sponse again was that it was too troublesome and he was fed up with this because they wanted to do it differently on different days, it happened over and over, and he was getting tired of the whole thing. Fang explained this was the nature of the business and he hoped Bustamante would cooperate but said if he did not he was going to discipline him for 2 weeks. Bustamante responded - by saying Fang would not do that to him and then said he just wanted to quit and get his paycheck that day. Supervisor Garcia, who acted as the interpreter for Fang, stated on asking Bustamante why he -did not do the job Bustamante replied he had been working for them a long time-and already knew his duties and every- thing and how to cut'meat. Bustamante said nobody was going to tell him what to do and he also said he wanted to do his job. On telling Fang what Bustamante had said Fang told Garcia to tell Bustamante he was going to give him a 1-week suspension because he did not listen to Fang. Garcia stated, on' telling that to Bustamante, Bustamante said he was going to quit and went to change his clothes. Although Fang stated Bustamante used one curse word on that occasion, he stated employ- ees always talked like that. I credit Bustamante rather than Garcia and Fang, whom I discredit. The reasons for discrediting Garcia have been previously expressed and, apart from my ob- servation of the witnesses in discrediting Fang I do not find his testimony, which is inconsistent with the Re- spondent's own records, plausible. Bustamante stated after going to the office he had a conversation with Manager Dai with Supervisor Garcia acting as the interpreter. Bustamante testified Dai asked him why he did not cooperate 'with the other workers and accused him of being very stubborn. Although Dai mentioned Bustamante was a good worker and did more work than anybody else, he said Bustamante did not co- operate or listen to what Fang said. They said, because Bustamante did not obey Fang, Bustamante was being punished for 3 weeks'' and they told him to go home. Bustamante said to pay him and he would go home. Dai told him they were going to pay him for the 3 days he had worked by giving him $11. When Bustamante ques- tioned Dai about the amount, Dai mentioned there was certain deductions. Bustamante also asked about being paid for his vacation which was coming up, whereupon Dai agreed to give him his vacation check but told him to leave and ' not come back because there would not be anymore work for him. Bustamante claimed he did not get his check for the 3 days that day because Dai wanted him to sign a paper, which he refused to do.' Under cross-examination, Bustamante said Dai also told him he could not give him the check until 'payday because, there was no one there to sign it. 17 Bustamante, in an affidavit given to a Board agent, stated Supervi- sor Fang told him he was being punished for 2 weeks GREAT LAKES ORIENTAL PRODUCTS Supervisor Fang denied firing, Bustamante. According to Fang, Manager Dai using Garcia as an interpreter asked Bustamante whether he was sure he wanted to quit, whereupon Bustamante stated he was. Supervisor Garcia testified while they were in the office Bustamante kept asking for his money and said he wanted to leave the Company. On telling Supervisor Fang that Bustamante wanted his money Fang said he was only going to give Bustamante a 1-week suspension, which Garcia explained to Bustamante. However, Busta- mante said he wanted his money, he, did not like his job anymore, and asked Garcia to tell them to give him his money. Garcia explained this to Fang, who then went to talk to Manager Dai. Garcia testified Dai using him to translate asked Bustamante why he wanted to leave the Company and said he was a good worker. Bustamante's response was he was tired of Fang always bothering him and he said he knew his job. Although Garcia said he thought they gave Bustamante a check on that occasion, he stated he did not know. Manager Dai's version was Bustamante, who had al- ready changed his clothes, came to the office with Fang and Garcia, and Fang informed him Bustamante did not want to work there anymore and wanted to leave. On asking Fang the reason Fang said Bustamante did not want to obey him and he wanted to give Bustamante 1 week's punishment. Bustamante did not want to take it and said he did not like his work and wanted to quit. Dai stated he then asked Garcia, who also told him Busta- mante wanted to quit, did not want to work there any- more, and wanted his money. Dai stated he asked Garcia to ask Bustamante to see whether he really wanted to quit. After Garcia talked to Bustamante, Garcia told Dai that Bustamante did not want to work and wanted his money and to go home. Dai, who stated it was his deci- sion to accept Bustamante's resignation, stated he then instructed Assistant Manager An to figure the amount owed and to write out a check for ' Bustamante. Dai, however, stated Bustamante disagreed with the amount of the check claiming it was not right and said he was not going to take it, whereupon Dai stated he in- structed An to tell him if he disagreed with the amount to come back tomorrow or some other time. Assistant Manager An also testified Bustamante through Garcia said he wanted to quit and get his pay- check and Dai instructed her to prepare it. Although' An stated she prepared the check, the person who could sign it was not there so she told Bustamante to come back the next day. Bustamante also claimed the amount of the check was not correct because they had taken out too much for taxes. Both Dai and Fang claimed they had no knowledge of Bustamaute's union activities. I credit the testimony of Bustamante concerning this conversation instead of Manager Dai, Assistant Manager An, and Supervisors Garcia and Fang, whom I have pre- viously discredited, and find based on such testimony as well as Respondent's records, as, discussed infra, that Bustamante was suspended and discharged on 13 June al- legedly for not cooperating with coworkers and for dis- obeying management directions rather than quitting his job as Dai, An, Garcia, and Fang,claim. 107 Busiamante testified about 1 week later he returned to the facility accompanied by a friend, Angel Quesada, to get his check. According to Bustamante, he had a con- versation with Manager Dai with Quesada serving as in- terpreter.1 8 Bustamante stated Dai gave Quesada a paper saying they had not fired Bustamante and he had left of his own volition and that Bustamante was a good worker but very stubborn and did not obey orders. Bustamante, who denied signing the paper, asked Dai whether he was going to give him his job back, whereupon Dai said he was not and told him there was not anymore work for him there. When Bustamante asked how he was going to support his family, Dai told him to find a job someplace else but if he had not found one in 1 month he would call Bustamante. If Bustamante did not have a job he would call him back but as a new employee at $3.30 per hour. Bustamante, however, denied the Respondent ever called him or that he ever worked there again. Manager Dai acknowledged Bustamante returned to the facility with a friend, but stated this was the day after he had left, and said that they talked to Assistant Manager An in his presence about the check. Assistant Manager An corroborated Manager Dai's testimony. The Respondent's records, as explained by Assistant Manager An, reflect Bustamante was paid $111.55 for unused sick leave and $150.49 for vacation pay. Accord- ing to An, Bustamante got his check on 15 June. The Respondent's records also contained a document entitled "Change of Status Authority," signed by Manager Dai and dated 13 June, which reflects effective 113 June, Bustamante resigned. However, a termination form for Bustamante, also dated 13 June and signed by Dai re- flects Bustamante was terminated on 13 June for not co- operating with coworkers and for disobeying manage= ment directions. Supervisor Fang stated on one occasion in April or May Bustamante had initially refused his request to cut some meat according to a customer's requirements. How- ever after several explanations from Fang, Bustamante agreed to do so. Although Fang claimed as he left the meatcutting room Bustamante threw a piece of chicken at the door for which he later apologized, Bustamante credibly denied such an, occasion occurred. Although Fang subsequently claimed there were several other inci- dents involving Bustamante before this, those incidents were not identified and Fang acknowledged Bustamante was not given any points or suspended because of those alleged incidents. The Respondent's records reflect a total of only six points ' had been assessed against Bustamante, including four points for being late for work on three occasions. F. Analysis and Conclusions The General Counsel contends the' Respondent violat- ed Section 8(a)(1) and (3) of the Act as alleged by un- is Quesada did not testify and this conversation as testified to by Bus- tamante was not offered or received for the truth of what was actually said on that occasion 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lawfully interrogating and threatening employees con- cerning the Union and discriminatorily suspending, dis- charg'ing, and- failing to reinstate Jose Martinez and Ro- dolfo Bustamante because of the Union. The Respondent denies having ' violated the Act and asserts both Martinez and Bustamante were -supervisors under the Act and vol- untarily quit their jobs instead of accepting the suspen- sions imposed-on them. Section 8(a)(l) of the Act prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. Section 8(a)(3) of the Act provides in pertinent part, ",It shall be an unfair labor practice for an employer .. . by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encour- age or discourage membership in any labor organiza- tion." The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends 'to interfere with the free exercise of em- ployee rights, under the Act." Electrical Fittings Corp., 216 NLRB 1076 (1975). The interrogation of employees about the Union is not unlawful per se. The test for determining whether such interrogation violates the Act is whether under all the circumstances the interrogation reasonably tends to re- strain, coerce, or interfere with rights guaranteed in the Act. Rossmore House, 269 NLRB 11.76 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). This test is not limited to only open and active union adherents but applies to other em- ployees as .well. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). The findings supra establish Supervisor Garcia, - about 7 June, asked Jose Martinez who was going to the Union; on 10 June asked Martinez in the presence of other employees what happened at the union meeting and what he was going to do with the union cards he had; on 12 June told Martinez he wanted to talk to the man from the Union;,about 15 June asked Santana Her- nandez whether they signed cards for the Union; and the latter part-of July asked Hernandez what happened about the Union. A consideration , of the circumstances surrounding these acts of interrogation shows they were not accom- panied by any threats, promises, or other unlawful con- duct. Moreover, all of these conversations between Mar- tinez and Supervisor Garcia, except for the one on 12 June, when Garcia wanted to get information concerning how to contact the Union's representative, which he did, were initiated by Martinez, who volunteered information to _ Garcia about Martinez' efforts to organize the Re- spondent's employees. Under these'circumstances and ap- plying the above test for finding whether acts of interro- gation are unlawful, I am persuaded and find that none of the acts of interrogation herein found are unlawful or violative of Section 8(a)(1) of the Act. The above findings also establish on 17 June Supervi- sor Garcia threatened Jose Martinez with suspension be- cause of his union activities. I find this threat of suspen- sion ,by Supervisor Garcia, who subsequently participat- ed in the suspension given to Martinez the next day, did interfere with, restrain, and coerce Martinez in the exer- cise of -his rights guaranteed in Section 7 of the Act and the Respondent by engaging in such conduct violated Section 8(a)(1) of the Act. The remaining issues are whether Jose Martinez and Rodolfo Bustamante were discriminatorily suspended, discharged, and denied reinstatement because of their union activities. The law is well settled that to discriminate against em= ployees in their employment because of union activities violates Section 8(a)(3) and (1) of the Act. When motiva- tion for discharge is at issue in cases alleging violations of Section 8(a)(1) and (3) of the Act the General Counsel must make a prima facie showing sufficient to support the inference that protected activity by employees was a motivating factor in an employer's decision to discharge them, and the employer then has the burden of showing the employees would have been discharged absent the protected activity. Wright Line,, .251 NLRB 1083, 1089 (1980),- enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Direct evidence of discriminatory motivation is not necessary to support a finding of discrimination and such intent may be in- ferred from the record as a whole. Heath International, 196 NLRB 318 (1972). The Respondent's contentions Martinez and Busta- mante were both supervisors under Section 2(11) of the Act and therefore unprotected and quit their jobs instead of being suspended and discharged have already been re- solved. For the reasons found above neither Martinez nor Bustamante was a supervisor under the Act and Martinez was suspended and discharged on 18 June and Bustamante was suspended and discharged on 13 June and neither of them has been reinstated. The Respond- ent's own records, which show they were discharged, clearly refute the Respondent's claim they quit their jobs. The findings further establish both Martinez and Bus- tamante were active union adherents and the Respondent had knowledge of their activities as evidenced by their conversations about the Union with Supervisor Garcia and Garcia's statement to Union Business Agent Galaviz about Martinez and Bustamante having cards they were showing to the employees. Until their suspensions and discharges both Martinez and Bustamante, except for a few points assessed against them for being late for work, enjoyed good work records as demonstrated by their promotions to captain and the fact Martinez the month before his discharge was informed he was a good worker and promised another raise. Except for Supervisor Gar- cia's unlawfully threatening Martinez with suspension for his union activities the day before it occurred, which clearly establishes the Respondent's union animus, no prior warnings or notice had,previously been given to either Martinez or Bustamante about suspending or dis- charging them. Moreover, their suspensions and dis- charges occurred- shortly after the union organizing cam- paign began and Martinez was suspended and discharged the day after the Union informed Manager' Dai the em- ployees wanted a union. GREAT LAKES ORIENTAL PRODUCTS Based on these factors discussed, including the union activities of both Martinez and Bustamante, of which the Respondent had knowledge, the Respondent's union animus, the timing of the suspensions and discharges of Martinez and Bustamante in relation to the advent of the union organizing campaign, the unlawful threat to sus- pend Martinez because of his union activities which oc- curred the day before his suspension and discharge, and the absence of any prior warnings or notice, except for hiilawful threat made to Martinez, to suspend or dis- charge either Martinez or Bustamante, who were consid- ered to be good employees, and having rejected the Re- spondent's defenses that Martinez and Bustamante were supervisors and had quit their jobs, I am persuaded and find the Respondent discriminatorily suspended and dis- charged Jose Martinez on 18 June and Rodolfo Busta- mante on 13 June and denied them reinstatement because of their union activities and thereby violated Section 8(a)(3) and (1) of the Act. I further find the reasons ad- vanced by the Respondent. for its actions taken against Martinez and Bustamante were mere pretexts to conceal its discriminatory reasons for suspending and discharging them. IV. THE EFFECT OF' THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices oc- curring in connection with the operations of the Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Great Lakes Oriental Products, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Production Workers Union of Chicago and Vicinity, Local 707 is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening an employee with suspension be- cause of his union activities, the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By discriminatorily suspending and discharging Ro- dolfo Bustamante on 13 June 1985 and Jose Martinez on 18 June 1985 and refusing to reinstate them because of their union activities, ,the Respondent' has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend it cease and 109 desist and take certain affirmative action to effectuate the policies of the Act. Accordingly, the Respondent shall be ordered to offer immediate and full reinstatement to Rodolfo Bustamante and Jose Martinez to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings and other compensations they may have suffered as a result of the discrimination against them in their employment herein found by discriminator- ily suspending and discharging Rodolfo Bustamante on 13 June 1985 and Jose Martinez on 18 June 1985 and re- fusing to reinstate them. Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). The Respondent shall be ordered to remove from its files any references to the discriminatory suspensions and discharges of Rodolfo Bustamante and Jose Martinez herein found and to notify them, in writing, this has been done and evidence of its unlawful conduct will not be used as a basis for future personnel action against them. The General Counsel's request that the' remedial order include a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure to enable it to monitor compliance with the Board's Order as enforced by the court of appeals is re- jected on the grounds the Board does not provide for discovery procedures in its proceedings and there is no showing that tinder the circumstances presented here such a clause is necessary. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'9 ORDER The Respondent, Great Lakes Oriental Products, Inc., Chicago, Illinois, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening employees with suspensions because of their union activities. (b) Discouraging membership in and activities on behalf of Production Workers Union of Chicago and Vi- cinity, Local 707, or any other labor organization, by suspending, discharging, refusing to reinstate, or in any other manner discriminating against employees in regard to hire and tenure of employment or any term or condi- tion of employment. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 19 If no exceptions are filed as provided by Sec 10' 2.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102,48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Offer immediate and full reinstatement to Rodolfo Bustamante and Jose Martinez to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings and other compensations they may have suf- fered by reason of the discrimination against them by dis- criminatorily suspending -and discharging Rodolfo Busta- mante on 13 June 1985 and Jose Martinez on 18 June 1985, in the manner set forth in the remedy section of this decision. - (b) Remove from its files any references to the suspen- sions and discharges of Rodolfo Bustamante and Jose Martinez herein found to be unlawful and notify them, in writing, this has been done and evidence of its unlawful conduct will not be used as a basis for future personnel actions against them. (c) Preserve and, on 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 other records nec- essary to analyze and determine the amount of backpay due under the terms of this Order. (d) Post at its Chicago, Illinois facility copies of the at- tached notice marked "Appendix."20 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days- in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 20 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." IT IS FURTHER ORDERED that the amended complaint is dismissed insofar as it alleges unfair labor practices not specifically found herein. - 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 has found that we violated the National Labor Relations Act and has or- dered us to post and abide by,this notice. WE WILL NOT threaten our employees with suspen- sions because of their union activities. WE WILL NOT discourage membership in and activities on behalf of Production Workers Union of Chicago and Vicinity, Local 707, or any other labor organization, by suspending, discharging, refusing -to reinstate, or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed- in Section 7 of the Act. WE WILL offer immediate and full reinstatement to Rodolfo Bustamante and Jose Martinez to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without,prejudice to their seniority and other rights and privileges, and WE WILL make them whole for any loss of earnings and other compensations they may have suffered by reasons of our discrimination against them, with interest. WE WILL remove from our files any references to the suspensions and discharges of Rodolfo Bustamante and Jose Martinez herein found unlawful and WE WILL notify them, in writing, this has been done and evidence of our unlawful conduct will not be used as a basis for future personnel actions against them. GREAT LAKES ORIENTAL PRODUCTS, INC.