United States Cold Storage

National Labor Relations Board - Board Decisions

Jan 16, 1974

208 N.L.R.B. 423 (N.L.R.B. 1974)

UNITED STATES COLD STORAGE 423
United States Cold Storage and Joseph R. Arroyo.
Case 17-CA-5498
January 16, 1974
DECISION AND ORDER
were represented and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral
argument, and to file briefs. Oral argument was waived.
Briefs were filed by counsel for the General Counsel and
the Respondent. Upon consideration of the entire record
herein and upon my observation of each witness appearing
before me, I make the following:
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 28, 1973, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders shat Respondent , United States Cold
Storage , Kansas City, Missouri , its agents , officers.
successors , and assigns , shall take the action set forth
in the said recommended Order.
I In par 7 of sec.L,B,5. of his Decision, the Administrative Law Judge
stated that "Arroyo testified he was never warned about his leaving early
and Mackay did not contradict this testimony "
The record shows that Mackay did testify that Cress warned Arroyo
about leaving work without permission However, as we find that the record
as a whole supports tie finding that Arroyo was discharged for engaging in
protected activities in violation of Sec 8(a)(1), we find it unnecessary to
resolve the conflict in this testimony.
DECISION
S rATEMENT OF THE CASE
MORTON D. FIuEDMA_J, Administrative Law Judge:
Upon a charge filed on February 14, 1973, by Joseph R.
Arroyo, an individual, herein called Arroyo or the
Charging Party, the Regional Director for Region 17 of the
National Labor Relations Board, herein called the Board,
issued a complaint on March 29, 1973, on behalf of the
General Counsel of the Board against United States Cold
Storage, herein called the Respondent or the Company,
alleging violations of Section 8(a)(1) of the Act. In its duly
filed answer, the Respondent, while admitting certain
allegations of the complaint, denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing in this case was held before
me at Kansas City, Kansas, on April 24, 1973. All parties
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a division of American Consumer
Industries , Inc., a New Jersey corporation , engaged in the
operation of public warehouse and cold storage facilities in
various cities of the United States. Among its facilities, it
maintains a warehouse located at 1501 West 27th Street,
Kansas City, Missouri , herein called either the "Ware-
house" or the "Cave." The Respondent annually performs
services of a value in excess of $50,000 directly for
customers located outside the State of Missouri.
It is admitted , and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint herein alleges that the Respondent
discharged employee Joseph R. Arroyo discriminatorily for
engaging in protected concerted activity . It further alleges
that the Respondent instructed an employee to engage in
surveillance of Arroyo's protected concerted activity.
The Respondent 's answer denies the commission of any
of these unfair labor practices and, additionally, the
Respondent defends on the basis that Arroyo was an
employee aligned with management and not entitled to the
protection of the Act.
Thus the issues are:
1. Was Arroyo an employee within the meaning of the
Act and entitled to the protection of the Act?
2. Did the Respondent discharge Arroyo for engaging
in protected concerted activity which consisted of assisting
in filing complaints of racial or national origin discrimina-
tion with the Kansas City Human Relations Department
on behalf of three fellow employees?
3. Did the Respondent , through its warehouse superin-
tendent instruct an employee to engage in surveillance of
the alleged protected concerted activities of Arroyo?
B. The Facts
1. Arroyo's employment history with Respondent
Arroyo was hired on August 17, 1970, as a warehouse-
man at the Cave at the rate of $3.06 an hour. He evidently
performed very well and by November 23, 1970, he was
asked by Respondent's warehouse superintendent, Robert
Mackay, if he would be interested in becoming a checker.
This meant that Arroyo would have to give up membership
in the Union which represented the warehousemen,
Amalgamated Meatcutters and Butcher Workmen of
208 NLRB No. 62
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North America, AFL-CIO, Local No. 576. Checkers were
not represented by a union and, according to the testimony
of Mackay, were considered "management men" Arroyo
accepted Mackay's offer and, as a result, was promoted to
the position of checker in which position he started at the
rate of $3.30 per hour. By the time of his discharge on
February 14, 1973, Arroyo was earning $4.19 per hour as a
checker.
2. The status of checkers
The checkers work on the loading docks. At the Cave,
there are two loading docks, the front or truck dock where
merchandise is received or shipped out by motor truck and
the car dock or rear dock by which the merchandise is
received or shipped out by railroad cars. According to
Respondent's warehouse superintendent, Mackay, the
principal duties of the checkers are to keep the record or
manifest of what goes into a car, row by row, to keep a
count of the product going into the car, and to see that the
warehousemen load the car properly. This involves loading
the car to the proper height so that the space can be best
utilized and so that all the product that is supposed to be
loaded into the car is so loaded. As noted above, Mackay
testified that the checkers were considered "management
men and were expected to manifest loyalty to the
Respondent."
Richard Winans, a checker, testified that he considers
himself part of management. In support of this testimony,
Winans stated that he attended management functions.
However, on cross-examination, Winans admitted that
these were social functions to which the checkers were
invited and consisted, in the main, of parties given to
individuals who were leaving the firm or such functions as
Christmas parties He admitted that no one is required to
attend and that these functions are held after work or on
weekends.
Additionally, Winans testified that he has the "right" to
recommend hiring and firing of employees to his supervi-
sor. However, he admitted, on cross-examination, that the
extent of this "right" with regard to hiring and firing is
limited to giving his opinion as to whether the individual in
question should be hired or fired. He did not testify that his
recommendations are effective or that the Respondent's
supervisor gave any particular weight to such recommen-
dations.
Additionally, the record shows that in May 1971,
Teamsters Local 838 filed a petition' to represent the
shipping and receiving clerks including checkers and that
Arroyo voted in that election which took place on June 19,
1971. The Teamsters lost the election.
The record also discloses that the checkers punch
timeclocks as do the warehousemen and other rank-and-
file employees, are hourly paid as are the warehousemen,
work the same hours as warehousemen, take the same
breaks at the same time and in the same place as the
warehousemen, are subject to the same rules that other
Case 17-RC-6624
2 See North Arkansas Electric Cooperative, Inc, 185 NLRB 550
3 Phalo Plastics Corporation, 127 NLRB 1511, 1513, New England
Transportation Company, 90 NLRB 539, Capital Transit Company, 98 NLRB
employees are subject to, and do not attend supervisory
meetings.
The foregoing constitutes all of the testimony and
evidence with regard to the status of the checkers as
employees.
The Board has long held that managerial employees are
employees within the meaning of the Act and entitled to its
protection and to be represented under the Act unless there
is some cogent reason for denying such representation.
Assuming that Mackay's testimony that the checkers were
considered managerial employees is correct, there appears
no cogent reason why they should not be entitled to
protection under the Act. There would seem to be no
conflict of interest in the event that they are represented or
in the event they are discriminated against . Moreover,
there is no showing that the checkers are associated with
the formulation and implementation of labor relations
policies or of any other overall policies of the Respondent.
Accordingly, in this respect, Arroyo is entitled to protec-
tion and is an employee within the meaning of the Act.2
The Respondent also seems to contend that the checkers
are supervisors . However , as noted above , the only two
indicia of supervisory authority claimed for the checkers
are that they can give their opinion to the supervisor as to
whether an individual should be hired or fired and that
they are responsible to see that the cars are loaded in such
a manner that all of the product destined for a car is placed
therein . With regard to the first qualification , there is no
evidence that the opinion of the checker is the equivalent
of an effective recommendation for hiring or firing. With
regard to the car loading, the manner in which the car is
loaded and the direction of the employees in this respect
would appear to be completely routine and does not
require the exercise of judgment that would ordinarily be
exercised by a true supervisor.3 Moreover, the mere fact
that a checker may report poor performance of an
employee engaged in loading or unloading a car is very
much like that of an experienced employee observing or
reporting on the work of a less skilled employee. Such
qualification is not the hallmark of a supervisor and, I
conclude, is wholly nonsupervisory.4
Accordingly, I find that the checkers are neither in name
or in substance genuine supervisors. Although they are
charged with some leadership responsibility, the direction
of the work is routine in nature and does not require the
use of independent judgment normally exercised by
supervisors within the meaning of the Act. Accordingly, I
find and conclude that the checkers are employees within
the meaning of the Act. This finding and conclusion is
bolstered by the fact that the checkers were included in the
shipping clerk unit and voted in the election which was
held in May 1971.
3. The events leading to Arroyo's discharge
After Arroyo was promoted to the position of checker,
he performed his work very satisfactorily. In fact, he
received not only wage rate increases but a number of
141,143-145
4 Southern Bleachery and Print Works, Inc, 115 NLRB 787, 791-792,
Cumberland Shoe Corporation, 144 NLRB 1268
UNITED STATES COLD, STORAGE 425
compliments on his work from Mackay. In January 1972,
Jim Cress became the car dock foreman at the Respon-
dent's facility. Soon thereafter there evidently developed,
at least in the minds of the Mexican-American employees
of the Respondent, among them Arroyo, a feeling that they
were being discriminated against in their work assignments
and in other matters. The three employees whom Cress
allegedly either assigned more difficult work to than any
other of the employees in the facility, or criticized and
found more fault with, were George Tinoco, Rudolph
Marmolelo, and Rafael Abarca.5 These Mexican-Amen-
can employees looked to Arroyo for help and for
leadership, Arroyo evidently being the best educated and
the most aggressive of the group. Accordingly, Arroyo
received repeated complaints from these individuals that
they were being discriminated against dunng 1972 by
Cress.
Marmolelo complained to Arroyo that he was being
warned by Cress continuously about cursing on the job
whereas the American employees, both black and white,
who also cursed in their work were not warned. Abarca's
problems apparently were similar to Marmolelo's. Tinoco's
complaint was that he was being given harder and heavier
jobs than the "Americans" in the same department.
Arroyo, at the same time, felt that he also was being given
heavier and harder work because of his national origin.
Finally, according to Arroyo, whom I credit in this
respect, things came to a head in January 1973. Therefore,
Arroyo agreed with the other three that he would talk to
Superintendent Mackay. On January 15, at 7 a.m. on the
front dock, no one else being present, Arroyo told Mackay
that Arroyo felt he was being made to perform harder work
than others because of his Mexican-American ancestry and
that Marmolejo, Abarca, and Tinoco were likewise being
discriminated against. Mackay answered that Arroyo was
being given harder jobs because he was the best checker
that the Respondent had. Mackay also told Arroyo that he
could not understand why Arroyo could not change his
attitude and "try to see things the Company's way."
Arroyo told Mackay that he felt very close to his people
and could not change his attitude toward. them. He then
told Mackay that. he had always worked hard for the
Company and never short-changed them, but if things did
5 The transcript is hereby corrected to read "Abarca," in all places where
that name appears as "Abarco "
6 The Human Relations Department is a municipal government bureau
evidently created for the purpose of assuring protection to all of Kansas
City, Missouri, citizens against discrimination by reason of race, religion,
national origin, or sex
r From the credited testimony of Arroyo Mackay admitted to this
conversation but testified that Arroyo mentioned not the Human Relations
Council or Department, but the National Labor Relations Board. He also
denied , in testifying , that Arroyo mentioned any specific names dunng that
conversation For reasons hereinafter stated, I credit Arroyo's version of the
conversation.
8 From the credited testimony of Arroyo In testifying, Mackay did not
deny the conversation of the afternoon of January 15 or the matters which
were discussed between Arroyo, Mackay, and Cress on that occasion Cress
did not testify Because in his testimony, Arroyo mentioned that Mackay
asked Arroyo if the latter had filed suit with the Human Relations Council,
I find and conclude that that was the bureau referred to Accordingly, I also
find and conclude that in the conversation of the morning between Arroyo
and Mackay the Human Relations Council was mentioned By further
not get better he was going to file suit with the Human
Relations Council in Kansas City, Missouri.6 This, accord-
ing to Arroyo, ended the conversation.7
Later that same day, Arroyo was asked by Cress to go to
Mackay's office. Cress accompanied Arroyo to Mackay's
office and remained there during a conversation which
ensued. Mackay asked Arroyo if the latter had already
filed suit with the Human Relations Council. Arroyo
answered that "he had the letter at home." Mackay then
told Arroyo that if the latter did not send the letter the
Respondent would try to make things better. At this point,
Cress interrupted and told Arroyo that Arroyo's conversa-
tion in the morning with Mackay was a refusal to work and
that, if Arroyo ever refused to work again, Cress would not
hesitate to fire him. Arroyo then told Cress that his
conversation with Mackay that morning was not a refusal
to work and that, if in the future, Arroyo felt he was being
discrirrunated against he would not hesitate to voice his
opinion. That ended the conversation.8
On January 22, Arroyo had another conversation with
Mackay. Arroyo, at about 7 a.m., proceeded to the front or
truck dock to pick up two assignments that were located
there and then proceeded to go back to his assigned area.
As he was walking, he saw Mackay and Cress and upon
reaching them Cress ordered Arroyo to go back to the
front dock. After Arroyo expressed some disagreement
with this order, he proceeded to the front dock. Within a
few minutes, Mackay came to Arroyo at the front dock.
Arroyo asked Mackay if the latter knew it was another
man's week to work the front dock. Mackay did not
directly answer Arroyo but stated that he had called Virgil
Cassel, the vice president and general manager of the
Respondent's Kansas City facilities, after the January 15
conversation and told Cassel about the conversation.
Mackay then told Arroyo that in that telephone conversa-
tion Cassel had told Mackay that no one in the Company
had ever filed suit against it and that he wanted Arroyo
fired on the spot.9
According to Arroyo, despite the fact that Mackay had
promised him that things would improve if Arroyo did not
send the letter to the Human Relations Department, things
did not improve. As a result, on January 26, Arroyo
accompanied Abarca, Tinoco, and Marmolejo to the
Human Relations Department in Kansas City, where
Abarca, Marmolelo, and Tinoco filed complaints and
extension of this reasoning . I conclude that with regard to the two
conversations , both of the morning and the afternoon of January 15,
Arroyo's versions in his testimony are more accurate than that of Mackay
It should also be noted that in my observation of these individuals I was
much impressed with Arroyo' s apparent admissions , hereinafter related, of
his defects and faults as an employee He did not hesitate to admit these
matters Accordingly, I find that Arroyo was generally a credible witness
9 From the credited testimony of Arroyo Mackay did not directly refute
this conversation but, rather , testified that after the January 15 conversation
he did speak to Cassel who stated that he would come over to the Cave and
speak to Arroyo Cassel stated that in the telephone conversation between
Mackay and himself Mackay stated that Arroyo had told Mackay that he
was going to the NLRB Cassel further testified that, although he was upset
because of company policy not to interfere with the rights of employees, he
told Mackay never to recommend or deny any employee the right to go to
the NLRB or any other board I find that , regardless of the content of the
telephone conversation . the conversation that Arroyo related occurred on
January 22 was an accurate account of that conversation between Arroyo
and Mackay
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arroyo submitted to the Human Relations Council a
supporting affidavit.
On the morning of February 14, 1973, Arroyo arrived at
work, went to the clock in order to punch his timecard, and
saw that his timecard was removed from the rack. He
waited until 7 a.m., at which time Cress told Arroyo to
proceed to Mackay's office. Cress accompanied Arroyo
into the office. The conversation in the office began with
Mackay asking Cress to begin. Cress then said to Arroyo,
"Joe, we're going to have to let you go." Mackay then said,
"We no longer need your services, and quite frankly, we've
heard through word of mouth that you've been agitating
the employees. We do feel that this is in the best interest of
the Company. I know you won't believe this, but I hate to
let you go. Your work has always been very good, but your
attitude just isn't what the Company was looking for.
You've always been very punctual, and I can't complain
about that. It's just that you won't try to see things the
Company's way." At this point, Mackay referred back to
the conversation of January 15 and said that Arroyo was a
troublemaker and had been making trouble for the
Company.
In reply, Arroyo again repeated what he had repeated
once before to Mackay, that Arroyo had always done his
best and had never short-changed the Respondent and that
all his actions were in the best interest of the Company.
Then Mackay replied that Arroyo had had very good
possibilities and that the Company had been thinking
about making him a foreman.
Mackay went on to say that he thought Arroyo could
have gone all the way with the Company if it wasn't for his
attitude. At that point, the meeting broke up, Cress
accompanied Arroyo to the latter's locker which Arroyo
emptied, and Arroyo left the plant.
One other event occurred before Arroyo's discharge
which has a bearing on the assessment of the meets of the
proceeding. About a week before Arroyo's discharge,
George Tinoco was walking behind a stack of material
when he overheard a conversation between Mackay and
Ernest Willoughby, the shop steward for the Union which
represented the dock workers. Willoughby told Mackay
that "Little Joe" had gotten the men together to sign a
petition. Mackay told Willoughby that if Joe had anything
more to say to let Mackay know. (It is noted that Arroyo
was known as "Little Joe" and that Joseph Torres, another
employee, was known as "Big Joe.") 10
4. The defense testimony
The Respondent defends its action in discharging
Arroyo on the ground that such discharge was for cause
and completely unconnected from any protected concerted
activity in which Arroyo might have engaged. The main
is From the testimony of Tinoco, which I credit. Although Mackay and
Willoughby both denied that this conversation ever took place , I conclude
that it did In the first place, from my observation of Tinoco as he testified, I
would have great difficulty in concluding that he fabricated the incident out
of the whole cloth. Secondly , although Willoughby testified that he was on
vacation at the time the alleged petition was allegedly circulated by Arroyo,
Willoughby admitted that Abarca delivered to him before his vacation a
letter which had some signatures on it He was told originally to process this
letter to the Respondent as was his duty as union steward , but that later he
was insiructed to forget about it Despite these instructions , Willoughby
thesis of Respondent's defense is that Arroyo began his
career with the Respondent as a vigorous and capable
employee who was rewarded with rapid promotion to a
position which the Respondent considers part of manage-
ment. Then, with the advent of certain events, Arroyo's
attitude changed from that of a loyal, hard-working,,
enthusiastic "company man" to an erratic, disobedient
troublemaker whose behavior caused confusion and
breakdown of discipline among the Respondent's employ-
ees. Furthermore, according to Respondent's witnesses,
Arroyo interfered with the prerogatives of certain foremen
and others over whom Arroyo had no authority.
The main witness for the Respondent was Mackay, the
superintendent of the facility involved. According to
Mackay, Arroyo started to work for the Respondent in
1970 as a warehouseman on the dock and was so good at
his work that he was promoted in 3 to 6 months to the
position of checker. When he was first a checker, Arroyo
was an exemplary employee. But, in mid-1972 Arroyo's
attitude changed. Arroyo started complaining that he had
too much work to do on the car dock, that is the train-
loading dock, but refused his turns on the truck dock, or
front dock, where the work was much lighter. Arroyo, in
testifying, admitted this but gave as his reasons that he
was, in fact, overworked on the car dock but, when he was
assigned to the truck dock, there was too much idle time
and Arroyo wanted to keep busy at all times.
Mackay further testified that during or toward the end of
1972 Arroyo began complaining that the Respondent,
through Dock Foreman Jim Cress, was discriminating
against Mexican-Americans by assigning the more difficult
and arduous tasks to them in contrast to the lighter
assignments given to black and white Americans. Howev-
er, Mackay insinuated that Arroyo knew this was not true
because Arroyo was familiar with the fact that the work
was rotated in such a way that all employees had their
turns at the lighter work and at the heavier work. Mackay
further stated that Arroyo knew that these rotated
assignments were made without regard to race or national
origin. However, where people liked to work together they
were usually permitted to do so. This was true of Tinoco
and Abarca, two of the individuals against whom,
according to Arroyo, Cress was practicing discrimination.
Then, according to Mackay, whose testimony was
supported by the testimony of Richard Winans, a checker,
toward the end of 1972 Arroyo gave the Respondent a
great deal of trouble concerning break periods. Winans
heard Arroyo, on occasion, before the break buzzer
sounded, calling to his men, "It 's break time, let's go."
Mackay further testified that, although Arroyo was
warned about this practice at one time by Mackay,
Mackay heard later that Arroyo had nevertheless disre-,
garded the warning and continued the practice.
admitted that he still retained the letter, that it was at home, and that he did
not bring it to the hearing I am inclined to believe, therefore, that
Willoughby would not have retained the letter unless it was incriminating
and, moreover, it is undoubtedly true that he related the content thereof, or
at least Arroyo's activity with relation thereto, to Mackay. Arroyo was not a
member of the Union and therefore Willoughby owed him no duty to
protect him Additionally. Willoughby admitted on cross-examination that
the letter concerned itself with Cress and he further admitted that he knew
Arroyo had something to do with the letter
UNITED STATES COLD STORAGE 427
, Arroyo admitted that, upon occasion , he did go to the
breakroom early before the buzzer started and that he told
the men with whom he was working that they should also
go early. However , he stated that the reason for this action
was that it was very cold on the dock in the wintertime,
and that he , therefore , wanted to be sure to get the full
break period in the warmth of the breakroom.
Mackay additionally testified that although there was a
company rule that all employees wear hard hats, on a
number of occasions after the time that Arroyo's attitude
changed , when Mackay would visit the dock where Arroyo
was working , he had to caution Arroyo to put on the hard
hat. However , despite these cautions , Arroyo stubbornly
left the hat off whenever he was not told to put it on.
Arroyo admits that he violated the company rule with
regard to wearing the hard hats but says despite his
complaining about the rule he wore his hard hat.
An additional indictment against Arroyo came from the
testimony of several individuals . First , Mackay testified
that Arroyo was guilty of slowing down the work and
causing other employees to slow down . According to
Mackay, Arroyo would go into the freezer , which was a
separate department under the supervision of Foreman
Clemon Duke. When in the freezer , Arroyo would tell the
forklift drivers to slow down on bringing out the product.
Thus, in addition to causing a slowdown , Arroyo also
interfered with the freezer foreman 's responsibility.
Duke, in turn, testified that during the last month or
approximately that time before Arroyo was discharged
Arroyo came into the freezer a few times . He asked the
forklift drivers not to bring out too much product. Duke
had to ask Arroyo not to interfere . However, Duke
admitted he only saw or heard Arroyo do this at one time.
However , Duke heard from four or five forklift drivers that
Arroyo told them not to bring out too much product too
rapidly. Arroyo, on the other hand, testified that the only
times he told the forklift drivers not to bring out too much
product was when it dust could not be gotten into the cars
and checked off fast enough to prevent the frozen food
products from spoiling because of the differences in
temperature on the dock and in the freezer.
One of the employees whom Arroyo allegedly ordered
not to bring out the product from the freezer , too rapidly
was Jose Torres. A couple of times , according to Torres,
Arroyo told him, "Don't bring too many , we got enough
right now, just slow down ." Or "what are you trying to
do?" According to all of these Respondent witnesses, the
checkers have no authority over the forklift drivers but
must relate all desires to slow down , in the event of
necessity, through telephones to the freezer foreman whose
office is in the freezer department . Arroyo, on the other
hand , said ' that there were only a couple of telephone
stations on the car dock and that it would be difficult to go
to the telephone to call in to the freezer foreman . Arroyo
further testified that he was told by Mackay that he had
the authority to regulate the flow of the product on the rail
dock. Although checker Winans testified to the effect that
he had no authority to slow down the men on the dock,
Arroyo testified that he has seen and heard Winans and
another checker regulate the flow by hollering to forklift
drivers , "Stop bringing out product."
Additionally, Mackay testified that he was told by Cress,
the dock foreman , that Arroyo continually complained
about having to either fill out or follow the manifest which
was used in car loading. As noted above , Cress did not
testify.
Finally, the most egregious of all of the alleged conduct
with which the Respondent found fault in Arroyo was that
on February 2 and February 9 Arroyo left work early,
punched out , and left the premises without seeking the
permission of any of his superiors . This was strictly against
company rules because , according to Mackay , the Respon-
dent , as a warehousekeeper , was financially responsible for
the product which it housed . Therefore, someone of
responsibility had to be present up until such actual closing
time in order to check to see that all of the merchandise
that was to go into a car or that was to be brought into the
plant was actually checked in and not lost, strayed, or
stolen . Furthermore , according to Mackay , it was necessar-
y to have someone on the dock until closing time in order
to check in or check out last minute arrivals . Additionally,
the dock had to be cleaned off and ready for the next day's
work.
Arroyo admitted, in testifying, that he did leave on
February 2 and February 9 without permission . He stated,
however, that his work for the day was done , that the
checkers are not responsible for cleaning and sweeping the
dock, and that , therefore , there was no reason for him to be
there any later than he stayed on those two occasions.
However, Arroyo did admit, that one of the company
rules, the book of which he had a copy, stated that no
employee shall leave the facility without permission from
his superior.
In summing up the reasons for Arroyo's discharge,
Mackay emphasized that it was not one thing that brought
about Arroyo's discharge but this whole series of attitudes
and lack of responsibilities heretofore set forth which
brought about the final decision to let Arroyo go. The
unexcused absences on February 2 and 9 were merely the
last activities which finally induced Mackay, after convers-
ing with Cassel , who told Mackay that it was Mackay's
responsibility , that Mackay decided to discharge Arroyo.
Finally, Mackay and Cassel both testified that neither of
them had any knowledge that Arroyo had gone to the
Human Relations Department with his three fellow
Mexican -Americans to file complaints of discrimination by
reason of national origin against the Respondent. The
record clearly shows that the first written notification by
the Human Relations Department that Arroyo and the
other three had filed complaints was a letter dated
February 16, 1973, and was addressed to Cassel informing
Cassel of the complaint . According to Cassel , he did not
receive this letter until February 27 . Indeed , this letter,
introduced into evidence , was time-stamped as having
been received in Cassel 's office on that date . However, in
any event, the letter was not written until 2 days after
Arroyo had been discharged . Thus, there is no direct
evidence of Respondent knowledge that the complaints
with the Human Relations Department of Kansas City had
been filed before or at the time of Arroyo's discharge.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Analysis and concluding findings
In assessing the testimony which I have credited of the
witnesses presented by the General Counsel as against the
testimony which I credit, in view of Arroyo's admission, of
the Respondent's witnesses who testified as to Arroyo's
defects as an employee, I note that if it were not for certain
factors, hereinafter related, that the reasons stated by the
Respondent for Arroyo's discharge were valid ones and I
would be obliged to dismiss the complaint. Thus, it is
apparent that, from sometime in the middle of 1972, for
whatever reason Arroyo's attitude had changed. I credit
the testimony of Mackay to the effect that the Respondent
considers the checkers as "company men" and expected
loyalty from them. Thus, after considering the above set
forth defects of Arroyo as admitted by Arroyo, I would
conclude that the Respondent had good reason, had it
chosen to do so back in 1972, to discharge Arroyo.
However, the factor of the timing of the discharge must be
considered in light of all of the other facts.
It is also apparent from the record that there is no direct
evidence that the Respondent had knowledge of Arroyo's
activities in going with his three Mexican-American
compatriots to the Human Relations Department until
after Arroyo was discharged. For the purposes of this
decision, I make the finding that as of the date of Arroyo's
discharge the Respondent did not have such knowledge
and, therefore, could not have discharged Arroyo for this
particular activity.
However, as noted above, Arroyo's acts of misconduct
cited above began over one-half year before Arroyo was
ultimately discharged. The Respondent evidently had a
high opinion of Arroyo' s talents as a checker and, in fact,
Mackay told Arroyo on a number of occasions that Arroyo
was the best checker that the Respondent had. Thus, I find
that there was to a certain extent, at least, some
condonation of Arroyo's behavior until January 15, 1973,
when Arroyo informed Mackay that he was going to go to
the Human Relations Department to file a complaint. In
that conversation on the morning of January 15, Arroyo
informed Mackay that Arroyo and the other three
Mexican-Americans whom he represented were being
mistreated discriminatorily by Cress. Thus, for the first
time , on that date, the Respondent learned that Arroyo
was engaged with Tinoco, Abarca, and Marmolejo in the
concerted protected activity of protesting what they
considered to be discrimination against them because of
their national origin.ii Whether Arroyo and the other three
were justified in their accusations of discrimination is here
immaterial . The fact that they sincerely thought they were
being discriminated against renders their activity protect-
ed. Moreover, that Mackay thought that Arroyo was in
earnest is indicated by the conversation later that day in
which Mackay asked Arroyo if the latter had filed a charge
as yet and Arroyo said that he had not, that the letter was
at home. When this statement was made by Arroyo,
Mackay then told Arroyo that if the latter did not file a
complaint Mackay would see to it that conditions
improved
"SeeSee Tanner Motor Livery, Lid., 166 NLRB 551, Universal Services, Inc,
and Associates, 184 NLRB 381, Gibbs Die Casting Aluminum Corp, Gibbs
Thus we have proof of actual knowledge of activity by
Arroyo and his fellow Mexican-Americans by the Respon-
dent. Additionally, Mackay in his later conversation with
Willoughby was overheard by Tmoco to state, after
Willoughby had told Mackay that "Little Joe" had gotten
the men together to sign the petition , that if Little Joe had
anything more to say to let Mackay know. In this manner,
the Respondent had additional information to the effect
that the concerted protected activity was continuing. And
this was just I week before Arroyo was discharged.
Additionally, Arroyo had a conversation with Mackay on
January 22, wherein Mackay related that he had informed
Cassel, the manager of the entire enterprise in Kansas City,
of the January 15 conversation. In that January 22
conversation, Mackay stated, Cassel told Mackay that no
one in the Company had ever filed suit against it and that
he wanted Arroyo fired on the spot.
Finally, there is presented for consideration the state-
ments by Mackay to Arroyo at the time that Arroyo was
discharged on February 14. As related in Arroyo's credited
testimony, Mackay said, "We no longer need your services,
and quite frankly, we've heard through word of mouth that
you've been agitating the employees. We do not feel that
this is in the best interest of the Company." And then,
Mackay again stated that Arroyo was a troublemaker and
had been making trouble for the Company.
Lastly, there is presented for consideration the service
letter, requested by Arroyo, written by Cassel, dated
February 27, in which, although Arroyo's defects as an
employee were listed, Cassel admitted knowing that
Arroyo had made complaints of discrimination because of
ancestry and stated, "Mr. Mackay believes your opinion in
this regard was not justified, but felt that such a belief or
opinion on your part was so contrary to your responsibility
as a part of Company management that your continued
employment was not feasible."
I conclude that there existed lawful justification for
discharging Arroyo. This is clear from Arroyo's own
admissions as to his faults as an employee . But it was not
until after Arroyo let it be known to Mackay that he was
engaged in protesting what Arroyo considered discrimina-
tory practices that Arroyo's faults as an employee became
important enough to the Respondent to bring about
Arroyo's discharge. It is true that Arroyo's unexcused early
departures on February 2 and 9 constituted conduct for
which he could have been discharged. Nevertheless,
Arroyo testified he was never warned about his leaving
early and Mackay did not contradict this testimony. I,
therefore, conclude and find that these unexcused early
departures were utilized by Respondent to discharge
Arroyo pretextually. I find that Arroyo would not have
been discharged had it not been for his earlier conduct in
protesting what he believed to be discrimination. In other
words, but for Arroyo 's engaging in protected concerted
activity, despite his shortcomings as an employee, Arroyo
would not have been discharged on February 14.
Accordingly, I find that Arroyo was discharged for
engaging in protected concerted activity and that thereby
the Respondent violated Section 8(a)(1) of the Act.
Federal Division , 174 NLRB 75
UNITED STATES COLD STORAGE
Additionally, I find and conclude that Mackay's instruc-
tion to Willoughby, approximately a week before Arroyo
was discharged, to report to Mackay anything further that
Willoughby might learn about Arroyo's activities, consti-
tuted instructions to an employee to engage in surveillance
of another employee's protected concerted activities. Such
instructions on the part of Mackay constituted further
violation of Section 8(a)(1) of the Act.12
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
IV. THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action, set forth below, designed to
effectuate the policies of the Act.
It having been found that the Respondent, by instructing
an employee to engage in unlawful surveillance of his
fellow employees restrained and coerced employees in
violation of Section 8(a)(1) of the Act, I shall recommend
that the Respondent cease and desist therefrom.
It having been found that the Respondent discriminato-
rily discharged Joseph R. Arroyo, I shall recommend that
the Respondent offer Arroyo immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges. In addition, I shall
recommend that Respondent make Arroyo whole for any
loss he may have suffered by reason of the discrimination
against him by payment to him of a sum of money equal to
that which he would normally have earned from the date
of his discharge, less net earnings during said period.
Backpay shall be computed with interest on a quarterly
basis in the manner described by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-295; Isis Plumb-
ing & Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By instructing an employee to engage in surveillance
of his fellow employees' protected concerted activity, the
Respondent has interfered with, restrained, and coerced its
12 Crown Laundry & Dry Cleaners Inc, and Gulf Linen Service Inc, 160
NLRB 746, 759, Fleetwood Trailer Co of Ohio, Inc, 138 NLRB 304, 308
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
429
employees in the exercise of rights guaranteed said
employees by Section 7 of the Act and thereby Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. By discriminatorily discharging its employee Joseph
R. Arroyo for engaging in protected concerted activity, the
Respondent has violated Section 8(a)(I) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 13
Respondent, United States Cold Storage, Kansas City,
Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Instructing employees to engage in surveillance of the
protected concerted activities of other employees.
(b) Interfering with, restraining, or otherwise coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, by discharging or otherwise discriminating in
regard to the hire, tenure of employment, or any term or
condition of employment of its employees for engaging in
protected concerted activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the right to self-organization, to
form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Joseph R. Arroyo immediate and full reinstate-
ment to his former job or, if that position no longer exists,
to a substantially equivalent position without prejudice to
his seniority or other rights and privileges enjoyed, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, and all
reports and records necessary to analyze the amount of
backpay due under this Order.
(c) Post at its office and warehouse located at 1501 West
27th Street, Kansas City, Missouri, copies of the attached
notice marked "Appendix." 14 Copies of said notice, on
forms provided by the Regional Director for Region 17,
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
(Continued)
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being duly signed by Respondent's representative,
shall be posted by the Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT instruct any of our employees to
engage in surveillance or spying upon the protected
concerted activities of any other of our employees.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them
under Section 7 of the National Labor Relations Act,
by discharging or otherwise discriminating in regard to
the hire, tenure of employment, or any term or
condition of employment of our employees for engag-
ing in protected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the right to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, in
conformity with Section 8(a)(3) of the Act.
WE WILL offer Joseph R. Arroyo immediate and full
reinstatement to his former job or, if that Job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
Furthermore, we will pay to Joseph R. Arroyo all of the
money which he would have earned had it not been for
our discrimination against him.
Dated By
UNITED STATES COLD
STORAGE
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 616-Two Gateway Center,
Fourth At State, Kansas City, Kansas 66101, Telephone
816-374-4518.