Ward Products Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ward Products Corporation and Local 56, Amalga- mated Food and Allied Workers Union, United Food and Commercial Workers International Union, AFL-CIO.' Case 22 CA 8057 July 10, 1979 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND PNEI.IO On February 28, 1979, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,'2 and conclusions of the Administrative Law Judge and to adopt his recommended Order). as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that Respondent, Ward Products Corporation, South Amboy, New Jersey, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Eileen Coman, Mary Verchick. and Mi- chael Masterson immediate and full reinstatement to their former jobs or, if those jobs no loner exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previ- I The name of the Union. formerly Local 56, Amalgamated Fxood and Allied Workers Union. Amalgamated Meat (utters and Butcher workmen of North America, AFL CIO, is amended to reflect the change resulting from the merging of Retail Clerks International Union with Amalgamated Meatcutters and Butcher Workmen of North America on June 7. 1979. 2 Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dr' Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I We have modified the Administrative Law Judge's recommended Order to include the full reinstatement language traditionally provided by the Board. We shall also modify the proposed notice to conform to the provi- sions of the recommended Order. ously enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimi- nation practiced against them, in the manner set forth in the section of this Decision entitled 'The Rem- edy.' " 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NoIi(E To EMPLOYEES POSIEl) BY ORDER OF HE NAIIONAL LABOR RELA IONS BOARD An Agency of the United States Government WI WI.l. NOT assign more arduous and oner- ous and less agreeable work tasks to our employ- ees in order to dissuade them from joining or supporting Local 56, Amalgamated Food and Allied Workers Union, United Food and Com- mercial Workers International Union, AFL- ('1O, or any other labor organization, or to pe- nalize them for having testified in any proceed- ing befiore the National Labor Relations Board. WE Wll. NOT discharge our employees, thereby discriminating in regard to their hire and tenure of' employment, in order to discourage their engagement in activities on behalf of the above-named Union or any other labor organi- zation. WE WI.l. NOt discharge our employees for ex- ercising their right to give testimony under the National Labor Relations Act, as amended. WI Will.. Nor in any other manner intefere with, restrain, or coerce our employees in the ex- ercise of' rights guaranteed them in Section 7 of the Act. WI Wil.ll offer Eileen Coman, Mary Verchick, and Michael Masterson immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE wili.I make them whole for any loss of' pay which they may have suffered as a result of our dis- crimination practiced against them, with interest. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. WARD PRODUI(TS CORPORArION I)ECISION MAX RosENHIR(;, Administrative l.aw Judge: With all parties represented, this proceeding was heard before me on 243 NLRB No. 57 354 WARI) PRO(I)I('[S C(ORP. June 5 and 6 and November 20 and 21. 1978. in Newark. New, Jersey, upon a complaint filed by the (;eneral C(ounsel of the National Labor Relations Board and an answer in- terposed thereto by Ward Products Corporation. herein called Respondent.2 At issue is whether Respondent vio- lated Section 8(a)( ), (3). and (4) of the National Labor Relations Act, as amended. by certain conduct to he de- tailed hereinafter. Briefs have been received from the (ien- eral Counsel and Respondent which have been duly consid- ered. Upon the entire record made in this proceeding. includ- ing my observation of the witnesses as they' testified on the stand. I hereby make the following: FINDINGS OF FA(rT AND CON(I. SI)NS i. T BUSINESS OF RFSP(OND N I Respondent, a New York corporation, maintains its prin- cipal office and place of business in Somerset, New Jersey. and various other plants in the States of New Jersey. New York, and Michigan and in the Province of Ontario, Do- minion of Canada, including the South Amboy. New Jer- sey, plant here involved, where it is engaged in the manu- facture, sale, and distribution of automobile radio antennas and related products. During the annual period material to ths proceeding, Respondent purchased, transferred. and de- livered to its various plants goods and materials valued in excess of $50,000, of which goods valued in excess of $50,000 were transported to the various plants in interstate commerce directly from States of the United States other than the States in which the plants are located, and in for- eign commerce directly from foreign countries. The com- plaint alleges, the answer admits, and I find that Respon- dent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ABOR ORGANIZAIION INVOI VEl) Local 56. Amalgamated Food and Allied Workers Union. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR ABOR PRA(FrI¢I S The complaint alleges that Respondent violated Section 8(a)(1) of the Act by assigning more arduous and onerous and less agreeable job tasks to Eileen Coman and Michael Masterson on October 17 and 20, 1977.' respectively. be- ' On June 6. 1978. over the objection of the General Counsel. Respondent and the Charging Party entered into a private agreement settling the issues giving nrise to this proceeding. Thereafter, the General Counsel speciall) ap- pealed to the Board my ruling accepting said settlement agreement. On Sep- tember 26. 1978, the Board, without offering an) explanatory reasons there- for. granted the appeal. vacated the settlement agreement. and remanded the proceeding for further hearing. On November 20 and 21 a hearing was held on the issues raised by the complaint. 2The complaint, which issued on January I I, 1978. is based upon a charge filed on November 21, 1977. and served n November 22. 1977. 3 Unless otherwise indicated, all dates herein fall in 1977 cause they oined or assisted the Union in an organizational campaign at Respondent's South Amhbo plant and gave testimony under the Act which ran counter to Respondent's interests. The complaint further alleges that Respondent of- fended the provisions of Section 8(a)(3) and (4) of the Act by discharging Coman on October 21. Masterson on Octo- her 27. and Mary Verchick on October 21 because of their Union activities and because they rendered testimony tin- der the Act. Respondent denies the commission of an hla- bor practices banned by the controlling legislation. This case stems from an earlier proceeding involving the same parties which was conducted before Administrative law Judge Walter H. Maloney. Jr.. whose Decision in that matter was rendered on November 8. 1977. The complaint in that proceeding charged Respondent with the commis- sion of a series of violations of Section 8(a)( I ) of the Act which interfered with, restrained, ad coerced its employees in the exercise of their right to collective representation by the Union and also alleged that Respondent violated Sec- tion 8(a)(3) of the Act by laying off in excess of 20 employ- ees, including Masterson, Coman, and Verchick, to punish them for joining and assisting the Union. Respondent failed to file timely exceptions to Administrative Law Judge Ma- lonev's decision, in consequence of which his findings. con- clusions, and Order were adopted by the Board as its own on January 9. 1978. As reported in that opinion, Respondent operates plants in the United States and Canada where it manufactures automobile radio antennas, windshield wipers, and related products. Headquartered in Somerset, New Jersey', it opened a new plant in South Amboy. the facility here in- volved, in the summer of 1974. where it fabricated cable and antenna assemblies for large retail outlets. In Decem- ber 1976 Respondent was forced to close its plant in New Brunswick, New Jerse. the employees at which were repre- sented for collective-bargaining purposes by Local 262,. Re- tail Clerks International Union. AFL-CIO, herein called Local 262. With the closure, Respondent laid off all of its work force and transferred its manufacturing operations and machinery to South Amboy in Januar. Respondent's owner and president is Joseph B. Cejka, who maintains direct and daily operating control over all of its facilities. At the times material herein, Cejka's supervi- sory hierarchy at South Amboy consisted of Donald Schamback. the general manager. William Simms, the gen- eral supervisor, and Robert Daye, supervisor. Commencing in January, Respondent began to hire un- skilled and semiskilled employees at South Amboy until, in April. it attained a work complement of 88 production workers. In March the Union embarked upon an organiza- tional campaign at that location under the aegis of Jean Mancini. a newly hired employee whose brother was an organizer for the Union. After conducting several meetings of employees at local restaurants, at which it distributed blank authorization cards. the Union managed to enlist the membership of 46 of the 88 employees by April 14. At this juncture, the Union decided to go public and disclose the existence of its campaign, whereupon it circulated a pam- phlet in the plant parking lot that day which urged other employ ees to join. 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) As Administrative Law Judge Maloney heretofore found, a large group of employees assembled in Respondent's parking lot during the lunch break on April 14 to listen to speeches by three of their coworkers. including alleged dis- criminatee Michael Masterson. In their remarks the speak- ers announced that they were attempting to bring the Union into the plant as their bargaining representative, that the Union intended to file a representation petition with the Board to obtain an election, and that the employees should be alert not to sign authorization cards on behalf of Local 262, because Cejka was anxious to impose "his union." namely. Local 262, upon them. Cejka, who had already received a union leaflet, was present in the South Amboy plant that day and stood on the loading dock, in company with Supervisors Robert I)aye and William Simms, where he monitored the happenings with these officials. When the lunch period ended, Simms instructed all em- ployees to pull their timecards and go to the cafeteria for a meeting. When they arrived. Cejka launched into a lengthy review of his industrial history and credos. Holding a union leaflet in his hand, which contained the assurance that "Un- cle Sam protects your right to organize." Cejka remarked that, as an American, he would be ashamed to hide behind the Government for protection and labeled anyone who did so as a coward and stupid idiot, and he reminded them that it was "Uncle Joe [Cejkal," and not Uncle Sam, who paid them. Cejka continued to say that when he opened the South Amboy plant. he asked the employees whether they desired union representation, and, upon learning that they did not, he informed Local 262 to leave them alone. How- ever, Cejka noted that he had signed a contract with that organization containing an accretion clause which gave it the right to represent employees at any plant which Re- spondent opened within the vicinity of the abandoned New Brunswick plant. He then stated that he had promised to notify Local 262 if any intrusive union activities were dis- covered at South Amboy, in which event he would honor his commitment. Cejka added that if the employees wanted a union, it would be "my union," referring to Local 262. While the meeting was in progress, Supervisor Daye handed Cejka a telegram which was sent by the Union. Cejka opened the message and read its contents to the as- semblage. In it the Union claimed majority status, de- manded recognition, and stated that it would petition the Board for an election. When he finished, Cejka announced that he would not recognize that labor organization and that he would tighten the work regimen at the plant. In this connection, he stated that he was aware that employees were soliciting signed Union authorization cards in the la- dies' room, and he cautioned that if anyone was caught doing so, the offender would be discharged. Cejka further warned his listeners that he could close the facility if he so desired and remarked that there was a cancer in the plant which he intended to eradicate and that he knew the identi- ties of the troublemakers. During the session various employees broke into Cejka's monolog and spoke up. Alleged discriminatee Michael Masterson interjected and proclaimed to Cejka that the for- mer favored the Union and knew what the cost of collective representation would be. Masterson suggested that Cejka attend a union meeting and learn what was being discussed and assured Cejka that he, personally, would not hesitate to make his thoughts on the subject known to Respondent's president. As the meeting concluded. ('ejka pointed to a group oft' the more active union proponents who had sat near him during the session and stated that he knew who the union supporters were. In mid-April a number of employees engaged in conver- sations with their supervisors concerning the union cam- paign, as found by Judge Maloney in his earlier decision. In one such dialog Foreman Joe Brazenia asked Masterson if he planned to attend a union gathering scheduled for that evening. Masterson replied in the affirmative, adding that the Union "was buying" and that he was going to have a drink on the house. On April 18 Respondent posted a notice on the South Amboy plant bulletin board which recited, "Because of a serious part shortage. we are forccd to lay off some employ- ees." During that week, 22 employees were furloughed, in- cluding Masterson. In the same week, the Union conducted another meeting, at which it distributed additional buttons to those of its adherents who were still at work in the plant. Several employees thereafter wore these emblems in the plant. On May 3 alleged discriminatee Mary Verchick was laid off: and on May 20 Eileen C(oman was furloughed. Both wore union buttons in the plant prior to their separa- tion. In mid-June three of the laid-off employees were recalled, and in July a few more were reinstated. Following a pro- ceeding under Section 10(j) of the Act instituted in the United States District Court for the District of' New Jersey on July 25, the district judge ordered Respondent to offer reinstatement to all of the discriminatees who had not yet returned to work. Thereafter, pursuant to charges filed by the Union in Cases 22 CA 7589 and 22-C'A-7616, a hear- ing was conducted before Administrative Law Judge Malo- ney on September 13-16. Masterson. Coman. and Verchick gave testimony in that proceeding which was antithetical to Respondent's interests. As noted above, in his decision of November 8. Administrative Law Judge Maloney found, inter alia, that Masterson. Coman, and Verchick had been laid off because of their activities on behalf of the Union, in violation of Section 8(a)(3) of the Act. Michael Masterson was employed by Respondent in No- vember 1976 at its New Brunswick plant, and when that facility was closed in December 1976. he was transferred to South Amboy. Masterson worked at the latter plant until April. when he was discriminatorily laid off. Pursuant to the order of the district court. Masterson was reinstated on August 15. During the hearing held by Administrative Law Judge Maloney between September 13 and 16. Masterson was summoned to give testimony on behalf of' the General Counsel. On September 30 the Board's Regional Office con- ducted an election among Respondent's South Amboy em- ployees upon a petition filed by the Union, and Masterson served as the Union's observer.' Masterson testified without contradiction, and I find, that on September 28, 2 days before the election. Supervisor William Simms summoned all employees to hear a speech by President Cejka in the lunchroom. When the work force arrived. Cejka announced that he would not entertain any 'The Union was unsuccessful in the balloting. 356 WARD PROD(TS CORP. questions from the assemblage and that he intended to do all the talking. At this point Masterson. whose prounion sentiments were well known to ('ejka. spoke up and com- plained that it was unfair to muzzle the employees and for- bid them to ask questions, whereupon Cejka retorted, "I'm the one that't doing the talking and if you don't like it ou can get out." During the course of Masterson's employment. he was assigned exclusively to maintenance duties, which included setting up production machines and tables which had been received from the defunct New Brunswick plant, painting. cutting grass, and running pipe. Masterson testified that, when hired, he was informed that he would perform only maintenance work, and I so find in view of General Super- visor William Simms' testimonial acknowledgement that Masterson had never been delegated to perform production work until the week leading up to his discharge. On Octo- ber 19. in preparation for painting the exterior overhead doors. Masterson sanded and brushed them. On October 20. because of rain, he abandoned this chore and filled in his time performing odd maintenance jobs. When Master- son was in need of work, be normally would report to Su- pervisor Robert Daye, who would make necessary assign- ments. However, on this day Simms approached Masterson and reported that President Cejka had issued orders that Masterson was to operate the spot welder, a production job, although Simms could not explain why Cejka had selected Masterson for this duty. In this connection it is uncontro- verted and I find that under normal circumstances em- ployee George Bongiorno handled this work. Masterson asked what had happened to Bongiorno, and Simms replied that Bongiorno was engaged in other chores. Believing that the job would only last for the remainder of the afternoon, Masterson undertook the assignment. Later in the day, Simms inspected Masterson's production and commented that the latter should increase his output because he was expected to turn out 1,500 plates. It is undisputed and I find that the next day, October 21. Masterson reported for duty, and, observing that the rain had ceased, he returned to his painting duties. While he was mixing paint, Simms walked over and stated. "Mike. I hate to disappoint you, but Cejka wants you to weld plates." When Masterson complained, "I thought that was only for yesterday." Simms replied, "[No, Mr. Cejka wants you to do that, that's your job now." whereupon Masterson pro- ceeded to weld the plates. Later that day Simms ap- proached his machine and again urged the employee to work faster. Masterson responded that he disliked sitting all day because this work posture hurt his back, and he also complained that the sparks caused by the welding torch hurt his eyes. Simms' reply was. "Well, there's nothing I can do about that, do the best you can." Simms testified that he reported Masterson's production to Cejka that evening and was instructed by the president that if Masterson's productive performance "didn't improve enormously," Simms was to issue a warning notice to Mas- terson. Despite the fact that Masterson had only worked at spot welding for slightly over a day. Simms nevertheless typed a warning notice on October 21 which recited: You were spoken to on several occasions in regard to work performance. This notice will serve as a written warning. Further infraction will result in more severe disciplinarN action, to and including discharge. October 22 and 23 fell on a weekend, and the plant did not operate. On October 24 Masterson fell ill with the flu and called the plant secretary, Carol Miller, to report that he would be out sick that day. In his testimony. Simms confessed that he learned of the call, but could not remem- ber if Cejka questioned him about Masterson's illness. It is uncontroverted and I find that on October 25 Mas- terson reported for duty and. after a hall-hour of spot-weld- ing, he informed plant secretary Miller that his illness still persisted and that he planned to go home. Miller's only comment was "[Fline." and he left the plant. According to the testimony of Simms. Masterson initially complained when he came to work that morning about his spot-welding duties. Simms then recalled that a short time later, Master- son asked Simms for permission to go home due to illness. and Simms simply answered, "Fine, go ahead." However, when Simms informed Cejka that Masterson had left the plant, the president directed his general supervisor to issue another warning notice to Masterson. This document. dated October 25. read: Today you reported to work for a total of 37 minutes. When you were advised to return to your job of weld- ing plates, you reported ill. This is to serve as a final warning notice that unless you return immediately and perform the job that has been assigned to you, your employment will be terminated. Masterson came to work on October 26, and when he reported. Simms handed him the warning notices dated Oc- tober 21 and October 25 which Cejka had instructed him to prepare. During the work break on October 26. Simms ap- proached Masterson and again told the employee that he was not working productively. Masterson testified that, in an ensuing exchange, Simms stated. "I can't see why you're having such a hard time with this job." Masterson replied: "Sitting here makes my back hurt, it's making my eyes burn. .... I think this job is a little bit demeaning. I think you are trying to harass me. I think you are trying to get rid of me." Simms answered "Well, there's nothing I can do about that . . . do the best you can." In his testimony, Simms claimed that Masterson never complained that the sparks from the welding machine hurt his eyes and that no other employee had ever registered that complaint. How- ever, he did admit that Masterson objected to the spot- welding job as a demeaning assignment which was made to harass him, and Simms did not deny that he commented that the matter was out of his hands. At the day's end Simms handed Masterson a third and final warning letter. with the comment, "Cejka wants you to read this carefully .... " Despite the fact that plant secretary Carol Miller. General Supervisor Simms. and Cejka himself knew that Masterson had absented himself on October 24 due to ill- ness. this notice, dated October 26. accused Masterson of refusing to work on the welding machine on October 24. Although the notice was signed by Simms, it recited, "If there is anything at all that is unfair in the assignment you have. we suggest you speak with Mr. Simms tomorrow Oc- tober 27. 1977 at 8:00 a.m." Masterson's testimony is un- denied, and I find, that when he asked Simms who was 357 I)8l(*ISIONS ()1: NATIONA IABOR REL.AIONS BOARI) responsible for the warnings which he had received. Simms replied that it was President Cejka. On October 27, in conformity with ('ejka's instructions. Masterson sought out Simms and again complained that he believed he had been assigned to the job of spot welding in order to harass him. Simms made no reply. During the day the general superintendent checked Masterson's production figures, and, according to Simms. he noted that Masterson had finished only 88 pieces in a 4-hour span. Masterson continued to work and finished his shift on October 27. As he prepared to leave work he received a final notice from Simms. This document informed the employee that because of substandard production, his employment wlas termi- nated, effective immediately. In my opinion Masterson was assigned to the job of spot welding by Cejka on October 20, a job which he concededly had never previously performed, not because Respondent had need for his services in this capacity, but rather to set him up for discharge in order to rid itself of one of the most active and vocal union proponents. As heretofore chroni- cled. Cejka learned as early as April 14 that Masterson favored the Union and was actively supporting its organiza- tional campaign. In his Decision. Administrative l.aw Judge Maloney found that Cejka had furloughed Master- son and other employees in April not out of legitimate busi- ness considerations, but solely because of their union activi- ties. On August 15 Cejka was compelled to reinstate Masterson by court order. In mid-September Masterson ap- peared as a witness on behalf of the General C(ounsel in the proceeding before the Board and testified against Respon- dent's interests. On September 28.2 days before the Board- conducted election, Cejka summoned his employees to a meeting at which he expressed his opposition to the Union's attempt to entrench itself in the plant. During the meeting Masterson criticized Cejka for denying to the assembled employees their right to speak out in favor of that labor entity. Any doubt which Cejka might have harbored con- cerning Masterson's allegiances was effectively dispelled when the latter appeared at the election on September 30 in the role of a union observer. Within 3 weeks following the Union's loss at the polls, Cejka instructed his general supervisor, William Simms. to assign Masterson to the production job of spot welding, a task which was regularly performed by George Bongiorno. Despite Masterson's constant complaints about his new job, complaints which Cejka himself encouraged in the warning notice which the employee received on October 26. Respon- dent made no effort to transfer Bongiorno back to his regu- lar job. although he was still in Respondent's employ, and no cogent reason for Cejka's failure to do so was advanced on the record.5 Cejka's motive in assigning Masterson to the welding job and then discharging him for poor productivity becomes even more suspect when Simms' testimony regarding this issue is examined. Thus, Simms related that upon Master- son's termination, Mildred Fraykor was hired to take his place. After her first day of work, Simms typed up a report of her production statistics, which he obtained from a me- 5Cejka was not called as a witness in this proceeding chanical counter on the welding machine. Simms then con- fessed that he normally does not engage in such a survey. When asked why he did so in the case of' Fraykor. Simms responded: "[Ulsually. when a new person comes into the shop to work. I like to watch them, particularly in the be- ginning to see if [they are] suitable for that job based on their performance. If she wasn't up to performance on that particular machine she would have been taken off of it." Although Masterson was "taken off" the machine after having worked on it for only 3 days, Simms made the stir- prising revelation that he gave new welders at least a week before he assesses their productivity. Finally, while Simms was able to provide the counter figures for raykor's pro- duction, he did not produce Mastersor's production records to demonstrate any shortfll or the records of Bongiorno to show the acceptability of his efforts, although such records seemingly were available. In sum, I am persuaded and ind that Respondent as- signed Masterson to the more arduous, onerous, and less agreeable job of spot welding on October 20, and dis- charged him on October 27, not because he failed to satisft established production standards, but solely to remove from its midst an employee who actively championed the Union's cause in the South Amboy plant and who had given testimony against Respondent in a Board proceeding. By this conduct, I conclude that Respondent violated Sec- tion 8(a)( ). (3). and (4) of the Act. Eileen ('oman was hired by Respondent on February 28 and worked on a Jeep line where she assembled antennas. cut wire, and did a variety of other jobs which required very little physical effort. With the commencement of the union organizational campaign in March, she attended the union meetings and. in her words, Wias 'just as active as the oth- ers" in supporting the I'nion's cause. As Administrative Law Judge Malmne) folund in his decision, Coman was the last employee who wlas discriminatorily laid off, on May 20, in violation of Section 8(a)(3) of the Act. Thereafter, she was called to testify on behalf of the Government in the Federal district court proceeding conducted in late July and was recalled by Respondent on August 22 pursuant to the district court order. Subsequently, she testified at the Board hearing in mid-September before Administrative Law Judge Maloney. As the last employee to be laid off on May 20, Coman was uniquely able to render testimony at both hearings to rebut Respondent's contention that the layoffs which it triggered in April were not designed illegally to thwart the Union's organizational efforts, but rather were intended to accomplish a legitimate reduction in force due to lack of production parts. On October 17 William Dugasz, a supervisor, assigned Coman to work on a lathe, a job which she had never pre- viously handled. According to Supervisor Robert Daye, a man who stands 6 feet tall and weighs 200 pounds, he nor- mally operated the lathe without difficulty, but because of the volume of work, he requested Dugasz or Supervisor William Simms to provide some help. That afternoon Co- man was selected to perform the chore by Dugasz, and Daye instructed her in the operation of the machine. Co- man continued to work the machine on October 18. On the morning of October 19. she experienced extreme pain in her legs, arms, and shoulders due to the strenuous nature of her 358 WARD PRODUICIS CORP. lathe duties. On October 20 Coman returned to work and operated the lathe until she ran out of parts, at which point Dugasz instructed her to find some other task to fill out the day. She thereupon joined employee Judy Smyles and worked with the latter at some unidentified job. On October 21 Coman rejoined Smyles. Shortly thereafter, Dugasz ap- proached and informed her that Daye had directed that she return to the lathe. Coman demurred, claiming that "I really don't feel good ... everything hurts ... that job is too hard for me ... it's a man's job .... " Dugasz replied that Coman should register her complaint with Supervisor Wil- liam Simms. Coman did so, but Simms simply stated: "[ljt's not my decision. It's [Daye'sl." Coman remained at her post with Smles and soon re- ceived a visit from Daye. According to Coman. Daye an- grily asked. "When do you decide which job you're going to put yourself on, and where you're not going to go?" Coman answered that she had not unilaterally selected her own work assignment and repeated what she had earlier told Dugasz about her physical discomfort. Daye, who admitted in his testimony that Coman had reported her physical problems as the reason for desiring to forego lathe work, then told her. "[I]fyou don't like it. then you can just take your time card and just punch out." Coman complied with Daye's directive and left the plant, never to return. On the record taken as a whole. I am not entirely con- vinced that Coman's selection to work on the lathe by Daye was prompted by normal business considerations. Daye tes- tified that prior to Coman's assignment to that machine, a male supervisor named Joe Brazenia assisted Daye when the workload made it necessary.6 He further testified that immediately following Coman's discharge. he personally re- quested that employee Betty Anderson be transferred to the operation. After first denying that any employee at the plant was paid on a more remunerative piece rate basis, Daye grudgingly brought himself to admit that Anderson was the only employee in the entire operation to receive that more attractive emolument, when she transferred to the lathe. Moreover, General Manager Donald Shamback conceded on the stand that the lathe "may be" more diffi- cult to operate than the other pieces of equipment at the plant, and Daye confessed that even Anderson complained that "she was a little sore" when she first started to operate the lathe. In view of Coman's uncontradicted testimony that she embroiled herself in the Union's organizational activities at their inception with the same intensity as the other active supporters of that organization: in light of President Cejka's statement at the meeting of employees which he conducted on April 14 that there was a cancer in the plant which he intended to eliminate and that he knew the identity of the troublemakers, a reference to the Union adherents: and in consequence of Coman's testimony before the Federal dis- trict judge as well as Administrative Law Judge Maloney which put the lie to Respondent's legal claim that the re- duction in its work complement in April was due to a short- age of parts, which testimony was in large measure respon- I Daye alsA recalled that Maria Ruiz had toiled on the lathe at some lime in the distant past. However, he acknowledged that Ruiz worked ait this chore only sporadically and was never permanently assigned it, the machine sible for the judges' orders directing the reinstatement of the furloughed employees and the award of backpay to them, I am convinced and find that Respondent transferred Coman to the more arduous and onerous job of operating the lathe on October 17, and discharged her on October 21, because of her union propensities and because she gave tes- timony damaging to Respondent's cause before Adminis- trative Law Judge Maloney. I conclude that by so doing. Respondent violated Section 8(a)( 1). (3). and (4) of the Act. I next turn to a consideration of the treatment which Respondent accorded to alleged discriminatee Mary Ver- chick. It is undisputed and I find that she was hired by Respondent in January and was laid off on May 3. During the initial stages of the Union's organizational drive. she attended meetings, signed a union designation card, and actively supported that organization. Pursuant to court or- der, she was recalled to work in August and was discharged by Respondent on October 21, allegedly because she fre- quently absented herself from her work station to visit the ladies' room. Verchick testified without contradiction, and I find, that when she returned to her job in August, she attended all the union meetings which were held until the election of Sep- tember 30. On September 28, while she was seated near Cejka during his preelection speech to the assembled em- ployees. she drew the president's wrath by laughingly inter- rupting his monolog in which he berated and disparaged the Union. In addition. Verchick also was summoned by the General Counsel to give testimony against Respondent in the hearing before Administrative Law Judge Maloney in mid-September. Verchick testimonially related that between the date of her hire in January until her layoff in April, she visited the ladies' room approximately four times a day, which was par for the course for other female employees, and Verchick's testimony in thi.; regard gains corroborative support from Eileen Conoan. In March Verchick telt ill while at work. During the day. she encountered Supervisor Joe Brazenia in the lunchroom and reported her condition to him. In an ensuing conversation she expressed her concern that if she left work because of her illness, she might be fired. Brazenia replied, "You don't have to worry about being fired, you just have to watch going to the bathroom." As heretofore chronicled. President C'ejka delivered a speech to his em- ployees on April 14 after the Union had openly manifested its organizational designs. In that address Cejka remarked that he was aware that certain employees had been solicit- ing signed union authorization cards in the ladies' room, and he warned that if anyone were caught doing so. she would be terminated. Verchick further testified that. after she returned from her layoff in August, she was on her way to the bathroom when she was accosted by Supervisor Robert Daye. Daye remarked. "Oh. you're going to the bathroom again." and Verchick stated. "I have a problem." Thereupon. Daye sug- gested that she have the medical problem attended to, and Verchick replied. "I don't have the money to get it fixed." The matter was then dropped. Some time thereafter. while Verchick was working on the assembly line. plant engineer Charles Dill came to her work station and stated that Cejka required a doctor's note certifying the reason for Verchick's visits to the ladies' room. Verchick replied. "I'll see what I 359 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD can do." A few days later Dill again approached her in the cafeteria and repeated that President Cejka demanded a doctor's certificate. When she replied. "I can't afford it," Dill warned. "lif you don't get it. ... your job's at stake." On a later date, while Verchick was working, Supervisor Robert Daye passed by, and she asked, "Bob, do you still want a note?" and Daye responded, "Yeah, Mr. Cejka wants it." When Verchick inquired whether she would be discharged if she failed to comply. Daye responded that Cejka "doesn't have intentions of chucking anybody out." Verchick then asked, "How come I'm the only one that gets hassled about having to have a note when other employees go to the bathroom just as much as I do?" and Daye an- swered, "Well, it's more noticeable when you go," but he refused to explain the purport of his comment. The conver- sation turned to the Union's organizational efforts and then concluded. On October 19 Verchick visited her physician for an ex- amination because, in her words, "they kept on hassling me. and telling me that I was going to get fired, so, I figured, if I brought a note in, they would get off my back." On the note the doctor mentioned that Verchick suffered from "[FJrequent urination." Verchick returned to the plant and handed the note to coworker Dolly Gonzalez for delivery to Carol Miller. the plant secretary. On October 21 Verchick received a notice of termination from Supervisor William Simms which recited: Your recent employment record indicates you are unable to perform a full day's service on a continuing basis. Your absences from your work station have been brought to your attention on numerous occasions. Accordingly. your employment is terminated effec- tive today. October 21. 1977. When your medical condition has been remedied. we would be pleased to consider your application for re-employment. On my review of the record made herein, I am not con- vinced that Respondent singled out Verchick for discharge on October 21 because she failed to perform a full day's work due to any urological problems. Verchick's testimony is uncontroverted, and I have heretofore found. that her urinary difficulties were well known to Respondent at the inception of her employment, when Supervisor Brazenia learned form her in March that she suffered from this ail- ment. I am persuaded that Brazenia warned her at this time. "[Y]ou just have to watch going to the bathroom." because, as President Cejka was to tell his employees a month later, Cejka knew that certain female employees had been previously discovered soliciting on behalf of the Union in the ladies' room, and he threatened to discharge them if they were caught doing so. Despite the fact that Respon- dent was aware of her allegedly frequent trips to that loca- tion, these aberrations were tolerated until Verchick was discriminatorily laid off in early May. Upon her recall in August, I am persuaded that Respondent once again sought to ride herd on this known or suspected Union solicitor by insisting that she obtain a doctor's note explaining the rea- son for her visits to the ladies' room, although it knew that she could not immediately afford to do so. After learning from plant engineer Dill that Cejka demanded medical evi- dence and Dills statement. '[ljf you don't get it. .... your job's at stake," and after being told by Supervisor Daye that her trips "were more noticeable when you go," Ver- chick finally consulted a doctor and received a note which stated that she simply was a victim of frequent urination. Despite this notation, Respondent's Vice President Milazzo. who received the document, inexplicably concluded that the physician's explanation was unsatisfactory and, after pouring over Verchick's personnel records, decided to ter- minate the employee. In her testimony plant secretary Carol Miller related that she observed Verchick go to the ladies' room "much more than other employees" and that on each occasion Verchick "was there for quite awhile." Notwithstanding that Miller was not a supervisor, her observations were studiously passed along to her interested supervisors. Although Miller admitted that she was aware that the Union was seeking to represent Respondent's employees at the time and that an election was scheduled for September 30 and acknowledged that she had observed Verchick talking to other employees in the restroom, she maintained that she never overheard what the subject of Verchick's conversation with these em- ployees was. I do not credit Miller's testimony that Ver- chick visited the ladies' room more frequently than other female employees, because I deem it to be implausible. Thus, by her own admission, Miller's office was located out- side the plant, and she confessed that she did not, as a rule. count the numbers of times that employees journeyed to that room. In short, I am persuaded that Respondent discharged Verchick on October 21 because it knew or believed that she was instrumental in soliciting the membership of em- ployees on behalf of the LUnion during her visits to the rest- room and because she had given testimony in a prior Board proceeding against Respondent. and not because her bath- room jaunts interfered with her productivity. I conclude that by the foregoing conduct. Respondent violated Section 8(a)(3) and (4) of the Act. IV. IHllt :Fi('I ()O1 1111 tLNIAIR lABOR PRA(tII(tS UPON ( (MMERC(t The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close and inti- mate relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow thereof. V. IllE RMIEDY Having found that Respondent has engaged in certain unfair labor practices within the ambit of the Act, I shall order that Respondent cease and desist therefrom and take certain affirmative action which I deem is necessary to ef- fectuate the policies of the Act. I have found that Respondent discharged Eileen Coman and Mary Verchick on October 21. 177. and terminated Michael Masterson on October 27, 1977. because they joined and assisted the Union in its organizational cam- paign at Respondent's plant and because they gave testi- 360 WARD PRODUCTS CORP. mony inimical to its interests in a Board proceeding. in violation of' Section 8(a)(3) and (4) of the Act. To remedy these violations I shall recommend that Respondent offer immediate and full reinstatement to them in their former jobs or, if they no longer exist, to substantially equivalent employment and make them whole for any loss of pay which they may have suffered as a result of the discrimina- tion practiced against them. The backpay provided for herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company. 90 NLRB 289 (1950). with interest thereon as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 7 Upon the basis of the foregoing findings of fact and con- clusions, and upon the entire record made herein. I hereby make the following: CON(CLLSIONS OF LASW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed to them under Section 7 of the Act. Respondent has engaged in and is engaging in unfair labor practices within the meaning of' Section 8(a)( I) of the Act. 4. By discharging Eileen Coman, Mary Verchick, and Michael Masterson. thereby discriminating in regard to their hire and tenure of employment. in order to discourage their adherence to and activities on behalf of the Union and to inhibit their right to give testimony under the Act. Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of' Section 8(a)(3) and (4) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the purview 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 National Labor Relations Act, as amended, I hereby issue the following recommended: ' In his brief, the General Counsel has requested that a remedial interest rate of 9 percent per annum he imposed on the backpay for which Respon- dent is liable due to the violations found herein, a percentage which is at variance with the Board's current policy of calculating interest according to the "adjusted prime rate" utilized by the Internal Revenue Service for inter- est on tax payments. See, generally, Iris Plumbing & Heating Co., 138 Nl.RB 716 (1962). Requests similar to the one which the General Counsel has made herein are currently pending before the Board. Until that tribunal has spo- ken on the issue. I deem myself bound by the Board's current tfrmula I shall therefore deny the General Counsel's remedial plea ORDER8 The Respondent. Ward Products Corporation. Somerset. New Jersey. its officers. agents. successors. and assigns. shall: 1. Cease and desist from: (a) Assigning more arduous and onerous and less agree- able work tasks to its employees in order to dissuade them from joining or supporting the Union or to penalize them for having given testimony under the Act. (b) Discharging employees, thereby discriminating in re- gard to their hire and tenure of employment, in order to discourage their engagement in union activities or to inter- fere with their right to give testimon. under the National Labor Relations Act, as amended. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which I deem necessary to effectuate the policies of the Act: (a) Offer to Eileen Coman. Mary Verchick, and Michael Masterson immediate and full reinstatement to their flormer jobs or, if they no longer exist, to substantially equivalent employment. and make them whole fbr any loss of pay which they may have suffered as a result of the discrimina- tion practiced against them. in the manner set forth in the section of this Decision entitled "The Remedy." (hI Preserve and. upon request, make available to the Board or its agents, for examination and copying, all paF- roll records, social security records and reports. and all other records necessary to analyze the amounts of backpa? due herein. (c) Post at its plant in South Amboy, New Jersey. copies of the attached notice marked "Appendix."' Copies of said notice, (in forms to be provided by the Regional Director for Region 22, after being duly signed bh Respondenl's au- thorized representative, shall be posted hby it immediately upon receipt thereol aid be maintained bh it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered. defaced, or covered by any other material. (d) NotitN the Regional Director for Region 22. in writ- ing, within 20 days from the date of' this Order, what steps have been taken to comply herewith. ' In the event no exceptions are filed as provided by Sec. 10246 lot Ihe Rules and Regulations of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall. as provided in Sec 102.48 of the Rules and Regulations, be adopted b the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes 9 In the event that this Order is enforced by a Judgment of a United States C'ourt of Appeals. the words in the notice reading "Posted by Order of the National Labor Relalions Board" shall read "Posted Pursuant to Judgment of the United States court of Appeals Enfoircing an Order of the National Labor Relations Board." 361