Shedd'S Food Products

584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shedd's Food Products, a Division of Lever Brothers Company (Incorporated) and Sharon Ceci Case 5-CA-19136 March 31, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On December 7, 1988, Administrative Law Judge John H West issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Shedd's Food Products, a Division of Lever Brothers Company, Incorporated, Baltimore, Maryland, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 2(b) and re letter the subsequent paragraphs "(b) Remove from its files any reference to the unlawful transfer of Sharon Ceci to a specified pro duction line, and notify her in writing that this has been done and that the transfer will not be used against her in any way " 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT physically assault our employees because they engage in concerted activities protect- ed by Section 7 of the National Labor Relations Act WE WILL NOT coerce employees by telling one employee that another employee will be watched because the other employee engaged in union and protected concerted activities WE WILL NOT coerce employees by stating that an employee had been assigned to work on a speci- fied line in retaliation for the individual's union and protected concerted activities WE WILL NOT transfer an employee to work on a specified production line in retaliation for the em ployees' union and protected concerted activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL make Sharon Ceci whole, with inter est, for any loss of pay she may have suffered by reason of our unlawful conduct against her WE WILL notify Sharon Ceci that we have re- moved from our files any reference to the unlawful transfer and that the transfer will not be used against her in any way SHEDD'S FOOD PRODUCTS, A DIVI SION OF LEVER BROTHERS COMPANY (INCORPORATED) Marc A Stefan Esq , for the General Counsel Russell A Gardner Esq (Whiteford Taylor and Preston), of Baltimore, Maryland and Melinda M Sweet Esq, of New York, New York, for the Respondent DECISION ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The word injure shall be deleted from the first paragraph of the notice as there is no evidence that Sharon Ceci was injured as a result of the assault We have conformed the notice to the recommended Order of the judge STATEMENT OF THE CASE JOHN H WEST Administrative Law Judge On a charge filed by Sharon Ceci, on September 24, 1987 as amended December 4 1987 and March 28 1988, a com plaint was issued on December 18 1987, amended on April 6, 1988 alleging that Shedd's Food Products vio lated Section 8(a)(1) and (3) of the National Labor Rela tions Act (the Act) collectively (a) by coercing employ ees by assaulting an employee in retaliation for the em 293 NLRB No 63 LEVER BROS CO 585 ployee s union and protected concerted activities, (b) by coercing the employees by stating that an employee would be watched and it was Respondents intent to get rid of this employee because the employee engaged in union and protected concerted activities , (c) by coercing employees by stating that an employee had been assigned to work on a specified production line in retaliation for the individuals union and protected concerted activities and (d) by transferring the Charging Party to work on a specified production line in retaliation for her union and protected concerted activities Respondent denies the al legations A hearing was held in Baltimore , Maryland, on May 16, 17 and 18, 1988 On the entire record in this case, including my observation of the demeanor of the wit nesses and consideration of the briefs filed by the Gener al Counsel and the Respondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent is engaged in the manufacture and nonre tail sale and distribution of margarine and mayonnaise products at a facility located in Baltimore The complaint alleges, the Respondent admits, and I find that at all times material Respondent has been an employer en gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that United Food and Corn mercial Workers International Union, Local No 27, AFL-CIO has been a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Facts Ceci works on the second shift from 4 p m until 12 30 a in During August 1987 her supervisors were George Brown and Ken Maury Sr Ceci is a shop steward Re garding the events in question, Ceci testified that during the evening of August 11, she took a break in the cafete ria that is located next to the supervisors' office, that em ployee Patricia Burkes sat down next to her in the cafe tena and told Ceci that Burkes was forced to work overtime until 2 am on the morning of August 11 and when she complained to Brown that she was sick she was forced to work another 2 hours until 4 a in that Burkes told her that Burkes had an argument with Brown about the overtime, and that her conversation with Burkes occurred at approximately 10 30 p in Ceci also testified that she finished her work at ap proximately 12 15 a m on August 12 that on leaving the production area she spoke with fellow Shop Stewards David Gaines and Marian Perry about a dispute regard ing a shift and classification change of employee Ruby McGinnis, who was a third shift packer and who wanted to trade places with a second-shift general utility person Wayne Pumphrey , that Maury and Brown and also Third Shift Supervisor Bruce Peters were present for these discussions, that Peters said that he did not want to get involved and he walked away from the discussion, that eventually she the other two stewards , and the re maining supervisors filed into the supervisors office, that before she finished working that evening she was told by a fellow employee that Burkes had been fired by Brown that she discussed this firing with Gaines who was the chief shop steward before they went into the supervi sors office , that Peters was not in the office at the time, that Gaines told her to speak with Burkes to find out what happened at midnight when she was fired , that the three shop stewards went to the supervisors' office to discuss the McGinnis matter and also the Burkes matter that she found Burkes in the parking lot waiting for a rider and she spoke to Burkes about the termina tion, that Burkes told her that Brown called her into his office and said, Do you still stand by what you said the other night about what I did being unfair? and when she said, Yes, I do But I did stay and work until 4 o'clock Brown said , Well, then you re fired that she then went to the supervisors office and entered the room that Gaines, Perry , Brown, and Maury were in the room that Peters was not in the room that Brown had just finished talking about the McGinnis matter and Gaines was beginning to make another point when she walked up to him and said, Excuse me, David I ve got to tell you something in regard to the Patty Burkes case before we go any further Don't raise it yet This is in credible and we ve got to find out what the facts are in this case , and that at this point Brown got up from his desk and walked around it and he said , Get the hell out of here Who do you think you are? 111 get the guards In fact, I don t need the guards Ceci further testified that Brown then grabbed her by the front of her shoulders and pushed her back 4 or 5 feet that she then turned and immediately left the office that Gaines called out to her Wait for me' that she walked straight out of the office through the cafeteria and out to the parking lot and drove home that Burkes was a casual employee and although she was entitled to union protection in that she paid dues after being at the Respondent beyond 30 days there is a dispute whether casual employees are entitled to file grievances and go to arbitration on a discharge, that Perry was concerned about the McGinnis shift change and she wanted a prom ise from the Company that once McGinnis started work ing on the second shift she would not be forced to do case sealing work that involves lifting 40 to 60 pound boxes and stacking them on a pallet and that after she punched out at 12 20 am on August 12 , she did not change into her street clothes because at the time she normally wore jeans while she worked In addition Ceci testified that when she went from the parking lot to the supervisors office, after speaking with Burkes, she did not see Anthony Taylor or Irvin Burton in the cafeteria, that when she got to the supervisors office she opened the door and walked in, that when she entered the super visors' office just after 12 30 a m on August 12 Maury did not say anything to her that when Brown, who weighs approximately 250 pounds pushed her on her shoulders and then released her she went backwards, that when she left the supervisors office she did not see Taylor or Burton in the cafeteria near the door to the supervisors office , that she gave Burton, who was wait ing by the front door, a ride home that she was not sure 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether the door was closed when she went to leave su pervisors office the morning of August 12 1987 , that she is 5 feet 1 inch tall and weighs 110 pounds, and that Brown is approximately 5 feet 11 inches tall Later on August 12 Ceci spoke with Gaines and then called the police to report the assault A police officer arrived at the plant at the end of her next shift Ceci tes tified she did not discuss the matter with Brown or any other management official dunng the shift before speak ing with the police officer , that the next workday when she went to punch in she discovered that her timecard had been pulled, that she then spoke with Gaines, that when she spoke with Brown he told her that she was not going to work but rather she was going to have to attend a meeting, and that she told Brown that if it was a disciplinary meeting she wanted Shop Steward Gaines to attend also Ceci further testified that Brown said that the Company could not spare Gaines because he was driving a forklift , that she met with Brown and Ron Kobel, who was the plant manager, that she told Kobel that she would not continue with the meeting unless she had a shop steward present, that Gaines then attended the meeting , that Kobel told her that she was terminated pending an investigation and he said that it was for call ing the police onto the Company s private property, that she and Gaines asked to see Charles Messer , the presi dent of the Company, that it was resolved during the 45 minute meeting with Messer that she would be allowed to continue to work, and that dunng her meeting with Messer on August 13 it was indicated that it would be the Company s position that no matter what the Compa ny would back its supervisor all the way Ceci is an A mixer from the mayonnaise line and this is her job when mayonnaise runs She testified that she has been trained also to do a variety of the other jobs in the plant, that line 13 is where 3 pound tubs of margarine are packed into boxes and, according to Ceci it is one of the fastest lines in terms of line speed that on line 13 the employees, during the course of a minute, pack five or six boxes as the product is coming off the line, that this is heavier work then she normally does that in her expert ence, 12 years with Respondent line 13 is considered the worst line that regarding the daily assignment sheets (G C Exh 2) she was assigned to work on line 13 on August 31 , and on September 3, when the mayonnaise line was not operating She testified that on September 9 she was assigned to work on line 13 when the mayon naise line did not operate, and on October 5, 1987, she was assigned to work on line 13 when the mayonnaise line did not operate Ceci further testified that on Sep tember 8 she worked on line 14, that on September 14 she worked on lines 5 and 6, that on September 15 she worked as a general utility worker that in mid Septem ber 1987 Respondent made permanent line assignments to, as here pertinent , line 13 that on September 17 she worked in sanitation that on September 18 she relieved workers on various lines, that on September 25 she worked on the mayonnaise line, that on September 28 she worked on line 14, that on September 29 she worked on the mayonnasie line again , that on September 30 she worked on the mayonnasie line, that on October 1 she was on indirect labor or sanitation, and that on October 5, 1987, she worked on line 13 She testified that every day that the mayonnaise line operated from September 1 to October 5, 1987 , she worked on that line, that she worked on line 13 on September 3 and 9 and not again until October 5, that other employees are assigned to work on line 13 on consecutive days , and that in the charge that she filed on September 24, 1987 (G C Exh 1(a)), she asserted that she was given more onerous jobs because she filed charges and gave testimony under the provisions of the Act She stated that either on Monday or Thursday of the week beginning August 31, 1987, Gaines told her that Brown said that he could see that she was getting tired and he was going to keep it up, as signing her to line 13 , until she dropped , that although she did not file any grievance over this , she did pursue it later in discussions with the Company , that she did not discuss the assignments to line 13 with Brown because she saw no reason to talk to him about this matter be cause he had told Gaines that he was out to get her and that before Brown pushed her she worked on line 13 Gaines, who is chief steward, testified regarding the al leged shoving incident, that Brown, Maury, and Peters, among others, had desks in the supervisors office, that on the second shift that spans August 11 and 12 , 1987, he discussed two problems with Perry and Ceci , namely, the McGinnis transfer and the Burkes termination, that he asked Ceci to speak to Burkes who had just been ter minated at midnight of the shift involved and after speaking to Burkes to report back to him , that he made this request of Ceci dust before he and Perry stepped into the supervisors office, that when they entered the super visors office Brown and Maury were there and no one else, that more specifically, Peters was not in the office, that 5 minutes into their discussion with Brown Ceci came into the supervisors office and said , "David, listen to me I talked to Patty Burkes, and the story that she told me is not what George Brown has said that Ceci started talking as she came through the doorway to the supervisors' office she was quite excited, that at this point Brown said to her who do you think you are coming into my office and interrupting this meeting that he and not Brown was talking at the time Ceci in terrupted, that Brown stood up and said , I have a mind to call the security guard and have you put out No I think 111 do it that Brown came around his desk and shoving Ceci backwards said, Get the hell out of my office , that Brown grabbed Ceci by her shoulders and shoved her backwards that Gaines then said to Ceci, "Step outside Sharon , and wait for us there , and we'll be out there in a few minutes" that Maury said to Brown, What the hell are you talking to them about this issue for anyway? You don't have to talk to them at all' , that at this point the meeting ended without completing the discussion on the McGinnis transfer and on the Burkes termination that Peters came into the supervisors office after Brown shoved Ceci, that it was not possible for Peters to be sitting in the far corner of the supervisors office and Gaines simply walked past him, that when Ceci came into the supervisors office she said, David, listen to me We have to talk about the story is not the same' and David stop talking and listen, I ve LEVER BROS CO 587 got something to tell you about Patty Burkes , that Ceci said this in a voice loud enough for everyone in the room to hear, that although he states in the affidavit he gave to the Board regarding the shoving incident that Brown was speaking to me as Ceci asked for my atten tion," this, in his opinion did not contradict his earlier testimony that he was talking at this point during his dis cussion with Brown , that after Brown asked Sharon to leave the supervisors' office Brown escorted her to the door, that Brown did not have to open the door for Ceci to leave in that the door was already open , that Brown did not make any kind of a gesture while he was stand mg at the door, and that the affidavit that he gave to the Board in September 1987 states Perry and I remained in the office for about 5 min utes to conclude the McGinnis issue After we fin fished discussing McGinnis, I asked Brown to dis cuss the Burkes discharge, yes When I mentioned that subject, Ken Maury threw down the pen he had in his hand and he told Brown that he didn t have to discuss that matter with or-with us or dis cuss anything with us that he did not believe that he and Perry attempted to discuss the Burkes matter that evening with Brown in the supervisors office and Gaines affidavit, to that extent, is not correct , that before he went into the meet mg on the morning of August 12, 1987, it was his under standing that two issues were to be discussed at the meeting, namely, the termination of Burkes and the transfer of McGinnis and Pumphrey , that although it was his intent to discuss the Burkes termination in the meet mg in the supervisors office on August 12 , because he did not obtain the information he needed from Ceci, he thought there would be really no sense in discussing the issue , and that during the shoving incident in the super visors office on August 12, 1987 Maury said nothing to Ceci while she was in the room The next day Gaines discussed what happened with Ceci and she indicated that she was going to file an as sault charge against Brown Gaines testified that after Ceci s shift that evening a policeman came to the plant that Ceci gave a report to the policeman in the plant parking lot that as Brown left the plant that morning he asked Gaines what was going on and Gaines told him that he would have to talk to Ceci about it, that Maury also asked Gaines what was going on as Maury left the plant and Gaines gave the same reply that Maury then told Gaines that if anything happened that should not happen, he was personally going to come and take care of Gaines, that the next day Peters told him that he was aware of the fact that some charges had been brought against Brown and Peters asked if any of that concerned him and Gaines said, No you were not there you were not part of it so there is nothing to worry about' , that Peters then said, `Okay, fine, that's all I wanted to know ', and that he did not include Maury s above de scribed August 13, 1987 alleged threat or Peters ' inquiry regarding whether the criminal charges involved him in any of the affidavits Gaines gave to the Board The day after Ceci filed the report with the police of ficer Gaines and Ceci had a meeting with Brown , Kobel, and Messer before Ceci was allowed to go to work Gaines testified that later that same evening Brown told him that Brown was quite disturbed with the fact that management did not support the suspension of Ceci and demonstrate that they were protecting him to some degree, that Brown told him during this meeting that he was going to get Ceci before she got him, and that Brown went on to explain that Ceci had better watch her production and that the viscosities had better be per fect, that she had better come back from her breaks right on the second, and she had better be in her work area As a forklift driver Gaines supplies the lines with what ever stock they need to run the product He testified that toward the end of August 1987, after Ceci had been working on line 13 several days , Brown came to him and said that Ceci `thinks she's having it rough now being on line 13 , Well, she's complaining about being there, and I'm going to keep her there until she drops , until she turns pale and drops , that he told Ceci about Brown's statement later that same evening, that in his experience it was unusual to see Sharon or anyone else on line 13 for that length of time, that he did not recommend to Ceci that she file a grievance because he was trying to get Brown to cool it , that in mid September 1987 em ployees were permanently assigned to a line , that he esti mated that Ceci worked on line 13 more than three times between September 1 and October 5 1987, that as mdi cated above he told Ceci about Brown s threats to get her and he also told the Local 27 business representative about the threats, that in July 1987 he filed a claim of discrimination with the Equal Employment Opportunity Commission (EEOC) and subsequently he was taken off the forklift by Brown, that he believed that Brown's action was in retaliation for the filing of the above de scribed claim, that he was not sure when he filed the complaint with EEOC, that after Brown took him off the forklift, Robert Jennings went on vacation and Gaines had to drive the forklift for 1 week and that al though he was not sure when the conversation with Brown occurred during which Brown said he was going to keep Ceci on line 13 until she dropped Gaines was operating the forklift when the conversation occurred and he recalled that Brown s left foot was pinched by the forklift wheel Gaines testified that in January 1988 he, on behalf of the Union met with Buddy McMaken, Respondent s production manager, to try to get Burkes and another fromer casual employee, Jackie Thomas, back on the work force, that he asked McMaken to remove Brown from his supervisory position over the working staff be cause the Union felt that Brown was unqualified in light of his dismissal of Burkes and Thomas, that Gaines told McMaken that Thomas was sexually harassed by Brown who assertedly had been calling her after working hours and on weekends trying to get her to go out with him that he told McMaken during this meeting about the Ceci incident and he also told McMaken that assertedly Brown told a young female employee , Doris Jefferson, that all women are bitches' , that he requested on behalf 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Union and on behalf of the employees , especially the women working there , that Brown be removed from his position and put in an office some place , that the day following Gaines' last meeting with McMaken, Brown either resigned or was fired that Brown 's replacement, Les Valentine, told Gaines that Brown was no longer with the Company and Valentine said, We re going to try to work together and bring some peace and harmony into the plant that Thomas was present when he asked McMaken to remove Brown from his supervisory re sponsibilities and that the meeting with McMaken oc curred after Brown was acquitted at the above described criminal trial Gaines testified that after Brown s trial on Ceci's criminal assault charge , Peters said to him in the plant, `You know something, David? I didn't see a damn thing , that Peters testified in the criminal assault charge case, and that he then said to Peters, Well Bruce how could you lie? and he then told Peters that he thought his actions were both pathetic and unreasonable According to Respondents Exhibit 8, which is a tran script of the State of Maryland v George Brown in the District Court for Baltimore City at 99 and 100 the court states as follows Now, this is a criminal matter, which means that the standard of proof is very high The State bears the burden of proving ensurance [sic] beyond a rea sonable doubt After considering the testimony of the evidence [sic] offered by both sides both sides witnesses appear to this Court to be credible believ able people There is nothing in their demeanor, there is nothing in the information offered that upon which [sic] I could say anyone [sic] person is not telling the truth Therefore , considering the testimony of the evi dence [sic] produced the scales are evenly balanced and for a criminal case that is not sufficient for the State to prevail The State bears a much higher burden than that And for that reason I in unable to say that the state has proven beyond a reasonable doubt this charge of criminal assault And that s it The parties stipulated that the criminal trial in the matter of Maryland v Brown regarding the charge Ceci brought against Brown was held in the District Court of Maryland Southwestern District on November 24 1987 Perry, who is the shop steward on the third shift testi fled that on the third shift that began on August 11 and ended on August 12, 1987 she expressed her concern to Brown about the McGinnis transfer indicating that McGinnis should not do case stacking work that she asked Brown to put it in writing telling him that she did not trust him enough to take him at his word that Brown refused that she also had a discussion with Brown about Burkes, with Brown saying that he was thinking about discharging Burkes, because he did not like the way she talked to him the night before that Burkes shift normally ends at 12 30 am and she was forced to work until either 2 30 or 4 a in and that she discussed the McGinnis transfer and the Burkes termina tion with Gaines that evening and Ceci was involved in discussions regarding the McGinnis transfer in view of the fact that Ceci was the shop steward for the second shift She also testified that she and Gaines entered the su pervisors office sometime after 12 30 a in on August 12 and Ceci went outside, that she did not recall Peters being in the office at that time, that Ceci later came into the supervisors office and she paused for a while waiting for a break to say what she had to say, that Ceci said, Wait a minute David Don t listen to him Listen to what I have to say', that she did not recall who was talking when Ceci made this statement , that Ceci was not being rude because she waited before she said anything, that Brown jumped up from his desk and said, `Who the hell do you think you are? , that Perry then said, Wait a minute, mind your mouth George , that Brown told Ceci to get the hell out of his office and he pushed Ceci at her shoulders , that Ceci then left the office and no one said anything to her , that after Ceci left the office no one said or did anything about the pushing at that time , that Burkes name was not men tioned during this meeting , that Maury said nothing after Ceci was pushed, that she did not recall Peters coming into the office at anytime during that meeting , that if Peters was sitting at his desk when she entered the su pervisors office for the above described meeting, she would have seen him, that she did not see Taylor or Burton on August 12 at approximately 12 30 a in while standing in the corridor with Gaines and Ceci just out side the supervisors office just before she and Gaines en tered the office Finally Perry testified that she, Gaines and Ceci did not go through the cafeteria before standing outside the supervisors office on August 12, 1987 at 12 30 am, but rather they came from the opposite direction from the plant floor area that Ceci went to the parking lot just before she and Gaines went into the supervisors office that Maury and Brown were in the supervisors office when she and Gaines entered it at 12 30 a in on August 12, 1987 that Peters was not in the office when she and Gaines walked into the supervisors office that she had her back to the door while they were discussing the McGinnis transfer and if Peters walked into the supervi sors office she did not notice him that she did not see Ceci enter the room until Ceci was standing next to Gaines, that Ceci did not burst into the room and start talking but rather she waited until she thought there was an opening in the discussion, that when Ceci said to Gaines Don t listen to him, she was referring to Brown that Brown jumped up from his desk and he said Who do you think you are telling someone not to listen to me? Sharon get the hell out of this office that when Ceci came into the supervisors office Maury did not say anything to her, that she did not think that Brown walked over, opened the door for Ceci and let her out of the door and she did not believe that the door was open, that she and Gaines did not stay in the super visors office for long after Ceci was pushed and Perry did not recall exactly what was discussed after Ceci left that Maury continued to be silent while she and Gaines were in the supervisors office after Ceci was pushed, LEVER BROS CO 589 that the McGinnis transfer was resolved in the discussion which ensured with Brown after Ceci left the office that the Burkes termination was not discussed during that meeting, that she did not remember seeing Peters in the supervisors office after Ceci was pushed, and that in the affidavit she gave to the Board on October 25, 1987, she did not specify that she told Brown mind your mouth George Regarding the aftermath of the alleged shoving mci dent Perry testified that after the police were summoned to take a report from Ceci regarding the alleged assault, Peters said to her, Perry, Well there s always three shop stewards against three supervisors Perry further testified that after the police became involved Brown told her that he had no intentions of hurting Ceci and she said, Well, George, you should have known better than to push a white woman , and that Brown replied, I guess you re right Anthony Taylor, a forklift driver at Respondents fa cility, testified that he worked on the second shift in 1987 that normally after the shift he hangs around Re spondent s facility either up stairs or in the cafeteria, that the cafeteria is located next to the supervisors office, that he was in the cafeteria speaking to a coworker, Burton, between 12 30 and 12 45 a in on August 12, that he saw Ceci go by and walk into the supervisors office that he could see into the supervisors office from where he was sitting in the cafeteria by looking at the reflection on a window which is located across from a large window in the supervisors office, that he saw Brown get up from his desk walk around side of his desk and push Ceci and say get the hell out of here that Gaines and Perry were also in the supervisors' office at the same time that he did not recall if any other supervisors where in the office at the time that Ceci opened the door when she walked into the supervisors office and she closed the door behind her, that he did not see Gaines or Perry when he saw Brown push Ceci in the reflection in the glass that when Ceci came out of the supervisors office and left the building he and Burton were still sitting in the cafeteria that while they were sit ting there he said to Burton that Brown just pushed Ceci, that he did not see Ceci return to the supervisors office during the minute or so that he remained in the cafeteria that the following day he found out that Gaines and Perry were in the supervisors office when Brown pushed Ceci that he did not see Brown escort Ceci to the door that the door to the supervisors office was closed and Ceci opened it when she came out of the office that when Brown shoved Ceci he had papers in his hand and that he could not recall which hand Brown held the papers in Brown did not testify Maury testified that Brown left his employment at Shedd's sometime after Christmas 1987 that on the night when the incident involving Ceci occurred in the super visors office he had discussed the McGinnis transfer sep arately with Gaines and Perry earlier about 10 30 p in that both of those discussions took place in the supervi sors' office and Brown was present that he and Brown told Gaines and Perry that they would talk with them later at the end of the shift that Ceci was not present for either of these 10 30 p in discussions , that when Brown, Gaines, and Perry walked into the office at approximate ly 12 40 am on August 12 Peters was already in the office or he came-dust preceded us , that he did not see Ceci when he walked into the office or immediately before he walked into the office that he did not see Taylor or Burton in the cafeteria when Maury went into the supervisors office, that he participated in the discus Sion regarding the McGinnis/Pumprey transfer, that about 5 minutes after this discussion began Ceci entered the office, that when Ceci entered, Peters was setting on the other side of Maury s desk facing Maury that his desk is located in the room next to Brown s desk separat ed only by an aisle, that Ceci opened the door to the su pervisors office, walked in, and said to Gaines, Don t listen to him, I have to talk to you , and that it is a normal practice to keep the door to the supervisors office closed when business is discussed with the shop stewards Maury also testified that Ceci was in her street clothes when she entered the supervisors office at ap proximately 12 40 am on August 12, 1987, that Ceci was approximately two strides from Gaines when she started to talk to him, that Ceci interrupted the conversa tion between Brown and the other two shop stewards, that he asked Ceci if she was off the clock because she was in her street clothes and it is a company regulation to be off the clock when you are in your street clothes that eventually she replied that she was off the clock, that he asked Ceci this question twice because she did not answer him the first time he asked , that when she did answer him he asked her to leave, that Ceci ignored him, that Brown then told her to get the hell out of there, that when Brown said this he was seated at his desk and he slammed his hands down on the desk and started to rise that Brown got up and made a gesture to usher Ceci out of the room that when Brown made the gesture he was behind his desk that the gesture resembled the windup of a softball slow pitcher, that Brown then walked toward the door , and opened the door for Ceci and perhaps he said something like `come on get out of here but nothing that Maury could recall Maury further testified that after Ceci left, Brown closed the door that he did not see Brown push Ceci or Brown put his hands on Ceci that after Brown went back to his desk and sat down Ceci poked her head in through the door again and said Dave if you are not going to be too long I will be out here waiting for you that after Ceci left the transfer was discussed for about another 15 or 20 minutes and before Gaines and Perry left it had been resolved and that after Ceci left he did not say to Brown something to the effect why the hell are you talking to them about this issue Maury also tes tified that he did make such a statement earlier that evening when Gaines came in to discuss the transfer and Brown entertained his remarks that he did not recall any discussion of Burkes situation after Ceci was ejected from the supervisors office that such a discussion might have taken place but he is not sure and that the next evening when he saw a police car in the parking lot he asked Gaines what had happened and Gaines replied It is taken care of There was nothing I needed to known, 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [sic] it was taken care of Maury stated that he asked Gaines repeatedly why the police were there and Gaines continued to give him the same answer, that he then told Gaines it is my responsibility to know why the police are on the premises, if there is something wrong I need to know it, it is my responsibility to know that I have to know if there is any reason for these people to be here and I don t know it, and you aren t telling me, I am going to hold you responsible for that , that Gaines then said That sounds like a threat , that Maury told Gaines that it was not a threat, that he did not tell Gaines that if there was a problem that Maury would take care of him, that he testified on Brown s behalf in the criminal trial in the District Court of Baltimore City that Brown had never admitted to him that he shoved Ceci, that more than once Brown denied to him that he had shoved Ceci that in September 1987 Ceci never complained to him about being assigned to the margarine production line 13 that when Brown got up from his desk in the supervi sors office in the early morning hours on August 12 and spoke to Ceci, Perry said something to Brown to the effect that he should not curse like that, and that Gaines filed an EEO claim against him In addition, Maury testified that when he, Brown Gaines, and Perry went into the supervisors' office after the second shift on August 12 he did not see Ceci in the area that he did not tell Ceci to punch out before he en tered the supervisors office at the end of the second shfit on August 12 1987 that Ceci came into the supervisor s office at approximately 12 45 am that the reason he asked her if she had punched out notwithstanding the fact that it was 15 minutes beyond the end of the shift was because on the mayonnaise side they could be clean ing up the area prior to the third shift going ahead and breaking the lines down and cleaning the lines that to the best of his knowledge there was no overtime that night and if employees did work beyond the 12 30 shift end time they would be paid overtime, that it is compa ny policy that the employees punch out while they are in their uniforms that there was no need for Ceci to par ticipate in the discussion of the transfer of McGinnis and Pumprey because Gaines in addition to being chief stew and was also a second shift steward and as noted above Perry was the third shift steward that Burkes was not fired around midnight of the involved shift but rather she was fired a day or two before that that Gaines did ask him about Burkes' termination that Burkes was terminat ed because she had been told that she would be required to work overtime and she told Brown that she was not going to work and she did not care what happened to her that Burkes did not give a reason for wanting to go home that he found out later that she had in fact worked the overtime, that Burkes was terminated at the beginning of her shift but she worked during that shift, that notwithstanding the fact that Maury was present, Brown denied to him that he shoved Ceci because Brown had charges filed against him, that while he was not positive, he believed that Peters remained in the office after Gaines and Perry left the office subsequent to the Ceci incident, that Peters was in the office partially for the transfer himself because he was very interested in its proceeding Maury further stated that at the be ginning of this meeting Peters spoke because he was talking to both the two stewards plus George, because he was very interested And then when they started to go back and forth over the wording on it, he gust said heck, you all can hash it out and I will sit over here and listen a little bit and then get my shift together and that Gaines first came into the supervisors office about 8 p in on August 11 regarding the McGinnis transfer and it was at that time that Maury said to Brown, as noted above that they did not have to talk to Gaines at that time, that they should talk to him later, and that they should get the plant running Peters testified that in August and September 1987 he was the sanitation supervisor on the third shift, that he was involved in discussions to transfer Pumphrey from the third shift to the second shift and McGinnis from the second to the third shift, that on a unspecified date in August 1987 after he had discussed the transfers with Perry he took her at 12 30 a in to speak to Brown about the transfers, that the conversation occurred in the super visor s office, that he did not participate in the conversa tion with Perry and Brown very loud because he had business with Maury who was at the next desk so he went over and asked him a few questions about the changes for the next days schedule, that Gaines was in the office at the time, and that Gaines got involved in the conversation between Perry and Brown regarding the McGinnis transfer, I brought the two of then [sic] together and somehow David [Gaines] got in there Peters also testified that he did not recall actually seeing Ceci come into the room and he first became aware of her when she interrupted Brown that Brown then said something to the effect that he did not want to talk about it, that he did not recall any question from Maury to Ceci that Ceci continued to talk and Brown got up came around his desk and escorted Ceci to the door that if Brown brushed against or rubbed against Ceci he did not see it that Brown opened the door and made a sweeping gesture with his arm and Ceci left, that Brown than slammed the door and came back that he did not see Brown at any time put his hands on Ceci, that he did not see Brown extend his arms that he did not hear Gaines or Perry make any comments about Ceci s depar ture and that shortly thereafter Ceci opened the door and stuck her head in and said something to Gaines Peters further stated that Gaines replied something to the effect see you later, wait outside , then he left the su pervisors' office and shortly the meeting broke up, that he did not remember asking Gaines if the criminal charges involved him, that he did tell Gaines that he thought it was a little ridiculous and that he did not see a god damn thing worthy of all this hoorah stuff' that in response Gaines told him that he was pitiful or some thing like that, and that this conversation with Gaines occurred before the criminal trial involving Brown Fi nally Peters testified that he never told Perry that there are three supervisors against three shop stewards but rather Perry said to him at one time it is our word against yours , that he did not think that he leaned on the file cabinet at any time during the meeting involving the incident regarding Ceci and that while Brown made LEVER BROS CO a gesture by the door as Ceci left the supervisors office Peters did not see Brown make any gesture with his arm by his desk B Contentions On brief the General Counsel argues that because Brown did not testify, Gaines testimony as to Browns threats stand unrebutted and those aspects of the case can only be dismissed if Gaines is discredited, that while admittedly there are minor inconsistencies among the General Counsels witnesses regarding the shoving inci dent, on the fundamental issues the General Counsel s witnesses are consistent but Respondent's are not, that Peters was not present in the supervisors office when the Brown/Ceci incident occurred is demonstrated not only by the unsurprising fact that Peters had virtually no independent recollection of what the meeting partici pants said or did , but also by the fact that the little Peters did recall directly contradicted Maury , and that the only way to find that Peters was present would be to discredit every other witness in that Peters version of events is at odds not only with Maury s but also the General Counsels witnesses The General Counsel also argues that Maury s insistence that Peters was present during the Brown/Ceci incident substantially undermines Maury's credibility that Maury's repeated insistence that Burkes was not discharged the evening of the confronta tion demonstrates a determined effort to present demon strably false testimony to achieve two objectives that are fundamental to their defense , namely, (a) remove the protected concerted reason for Ceci s presence , and (b) eliminate the spark that ignited Brown s outburst that Brown during the aforementioned trial on the criminal charge testified that he fired Burkes during the second shift that started on August 11 and finished on August 12 1987 (see R Exh 8 at p 53) that there is no dispute that from August 31 until mid September 1987 Brown as signed Ceci to line 13 at each available opportunity with one exception when she was assigned to line 14 when line 13 did not operate, and that, accordingly, there are no real credibility issues concerning where Ceci was as signed during the period at issue The General Counsel further argues that there can be little question that a su pervisor s unprovoked assault and battery on a steward/employee in front of other stewards/employees, that occurs in the midst of a grievance meeting and is prompted by the employees/stewards mention of the need to explore the circumstances of a fellow employee s discharge violates Section 8(a)(1) of the Act that Brown's statements to Gaines that he was going to get Ceci plainly violated Section 8(a)(1) of the Act, that the evidence reveals an overwhelming prima facie case that Brown assigned Ceci to work that was viewed as the most difficult and onerous in the department in retalia tion for a union and other protected concerted activities, that in the circumstances in this case, Respondents as sertions that other employees were lawfully assigned to line 13 on a more frequent basis than Ceci and Ceci could have been and may have been assigned such work in the past failed to rebut Brown's admission of unlawful motivation for the work assignment Heck s Inc 280 NLRB 475 (1986) and that in addition to the make 591 whole order to remedy the unlawful transfer , Ceci is also entitled to a make whole order to compensate her for any loses or injury she might have incurred as a result of Brown s attack on her, Graves Trucking, 246 NLRB 344 (1979) and Greyhound Taxi Co 274 NLRB 459 (1985) Respondent, on brief, contends that the General Coun sel has failed to establish by a preponderance of the evi dence on the record as a whole that Respondent commit ted the alleged unlawful acts Respondent contends that the preponderance of the evidence does not establish that Respondent was aware that Ceci s interruption of the August 12 meeting was protected or union activity that Ceci was not sent from the meeting by Gaines, that Ceci did not voice an intention to discuss Burkes, that Ceci was not engaged in concerted activity that Ceci s dis ruption even if concerted , was not protected , that the preponderance of evidence does not establish that Ceci was assaulted by Brown , that Taylor s testimony must be disregarded as totally incredible , that the General Coun sel s witnesses testimony regarding the shove must be disregarded, that regardless of whether Ceci was shoved, the shove was a reaction to her interruption of the meet ing and not to her union or protected concerted active ties, that the General Counsel failed to establish that Brown threatened Ceci in retaliation for union or pro tected concerted activities that the evidence does not es tablish that any threat was made, that even if the threats were made, there is no evidence that they were made for illegal reasons that the filing of criminal charges is not concerted activity and that the General Counsel failed to establish that Ceci was assigned more onerous duties because of the union or protected activities C Analysis Before treating the merits, a procedural matter must be handled The General Counsel has filed a motion to strike certain portions in the argument section of Re spondent s brief Respondent replied As noted below, I am not relying on Taylor's testimony No sufficient justi fication has been supplied for granting the remainder of the relief sort In these circumstances the motion is denied In my opinion, Respondent violated the Act as al leged Regarding the alleged assault Brown did not testify Consequently, Respondents version is advanced here by the testimony of two other supervisors Peters and Maury But Peters was not a credible witness in that contrary to his testimony he was not present during the Brown/Ceci incident on August 12 1987 Not only are important portions of Peters ' testimony contrary to the testimony of every other witness who testified here but also his testimony is contrary to the testimony that Brown gave at the trial on the criminal charge (R Exh 8), for while Brown had Peters sitting at his desk in the front of the supervisors office during the involved inci dent, Peters placed himself on the other side of Maury s desk in the back of the room Other evidence on this record is overwhelming that Peters was not present during the involved incident Maury, in furthering the fabrication completely discredited himself 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ceci was pushed by Brown The three stewards who testified were, in my opinion generally credible wit nesses There are, as the General Counsel concedes minor differences in their testimony Nonetheless, the re liable, credible evidence of record demonstrates that the declared purpose of Ceci s interruption dealt with Burkes termination and Brown s unreasonable reaction to this challenge to his authority included assaulting Ceci In reaching this conclusion, it is not necessary and I did not rely on the testimony of Taylor Gaines as noted above, was a credible witness Brown did not testify Consequently, Gaines testimony regard ing the above described threats is unrefuted For the aforementioned reasons given by the General Counsel on brief, Brown s threats made the involved job assignments unlawful CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(2) (6), and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 The Respondent violated Section 8(a)(1) of the Act by assaulting an employee in retaliation for the employ ee s union and protected concerted activities, by telling one employee that another employee would be watched because the other employee engaged in union and pro tected concerted activities and by stating that an em ployee had been assigned to work on a specified line in retaliation for the individuals union and protected con certed activities 4 The Respondent violated Section 8(a)(3) of the Act by transferring Sharon Ceci to work on a margarine pro duction line in retaliation for her union and protected concerted activities 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in unfair labor practices I shall recommend that Respond ent be ordered to cease and desist therefrom and take certain affirmative action necessary to effectuate the pur poses of the Act Although the General Counsel argues on brief that Ceci should be made whole regarding the unlawful trans fer and any losses or injury she might have incurred as a result of Brown's attack on her it was not shown on the record that she did lose any pay because of the transfer or that she lost any working time because of the assault In these circumstances, there would be no need for a remedy If on the other hand, she did lose pay due to either the transfer or the assault then she should be made whole for that loss with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) i i Interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed2 ORDER The Respondent, Shedd s Food Products, a Division of Lever Brothers Company Incorporated, Baltimore, Maryland, its officers agents, successors, and assigns, shall 1 Cease and desist from (a) Assaulting employees in retaliation for the employ ee s union and protected concerted activities (b) Telling an employee that another employee would be watched because the other employee engaged in union and protected concerted activity (c) Stating that an employee had been assigned to work on a specified line in retaliation for the individual s union and protected concerted activities (d) Transferring an employee to a specified production line in retaliation for the employees union and protected concerted activities (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make Sharon Ceci whole for any loss of earnings she may have suffered as a result of Respondents unlaw ful conduct against her in a manner and to the extent set forth in the remedy section of the decision (b) Preserve and on request make available to the Board or its agents for examination and copying, all pay roll records, social security payment records, timecards, personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (c) Post at its Baltimore, Maryland facility copies of the attached notice marked Appendix 3 Copies of the notice on forms provided by the Regional Director for Region 5 after being signed by the Respondents author ized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 2 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 3 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board