Great Lakes Oriental Products, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1987

283 N.L.R.B. 99 (N.L.R.B. 1987)

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.