American Licorice Co.

AMERICAN LICORICE CO 145 American Licorice Company and Noelia Cornejo. Case 32-CA-10332 July 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On November 8, 1989, Administrative Law Judge Michael D Stevenson issued the attached decision The General Counsel filed exceptions and a supporting brief The Respondent filed cross-ex- ceptions and a brief in support of cross-exceptions and in opposition to the General Counsel's excep- tions 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, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,' and conclusions only to the extent consistent with this Decision and Order Noeha Cornejo, the Charging Party, was em- ployed as a packer by the Respondent from 1983 until she resigned on June 30, 1989 She quit be- cause the Respondent's night plant manager, Ken- neth Hamilton, had refused her earlier request to transfer from the day shift to the night shift (also called the swing shift) The General Counsel con- tends that Hamilton denied the requested transfer in retaliation for Cornejo's participation in protect- ed concerted activities, and thus violated Section 8(a)(3) and (1) of the Act The General Counsel also argues that because the unlawful denial of the transfer caused Cornejo's resignation, she was con- structively discharged, also in violation of Section 8(a)(3) and (1) The judge agreed with the General Counsel that the denial of the transfer was unlaw- ful, but found that Cornejo was not constructively discharged For the reasons set forth below, we affirm the judge's finding that Cornejo was unlaw- fully denied the opportunity to transfer, but we re- ' The Respondent has excepted to certain of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 Cw 1951) We have carefully examined the record and find no basis for re- versing the findings In part III, A,1 of his decision the judge inadvertently stated that Night Plant Manager Kenneth Hamilton could not recall whether he had raised his voice during a discussion with employee Ana Azucena In fact, when asked if he had raised his voice, Hamilton answered, "Not that I remember" The judge also, in part III, A,4 of his decision, stated that a faction of employees resented the assignment of a machine operator's job to employee Linda Stewart The record does not indicate that any such "faction" existed We correct these inconsequential errors verse his finding that she was not constructively discharged Cornejo had, at times, worked on the swing shift, most recently from October 1987 until Janu- ary 1988 In November 1987, Cornejo and other night-shift employees signed a grievance expressing dissatisfaction with several conditions on the job, including allegations that night-shift "floorlady" Maria Padilla was speeding up the production line 2 Cornejo drafted the grievance because she was more proficient in English than the other em- ployees Seven of the eight women, and four of the five men, on the night shift signed the grievance Mercedes Lopez took the grievance to Day-Shift Shop Stewardess Margie Bntton, 3 who filed it with Union Business Agent and Vice President Richard Faletti On December 7, a grievance meet- ing was held It was attended by Hamilton, Padilla, Faletti, Cornejo, and nearly all the other employ- ees who had signed the grievance Cornejo trans- lated, and also participated to a significant extent in the substance of the discussions 4 All issues were resolved to the satisfaction of the parties In January 1988, Cornejo and other night-shift employees were transferred to the day shift 5 Cor- nejo remained on the day shift until February 1989, when she went on maternity leave On April 24, the day before she thought she would be released by her doctor to return to work, she called Hamil- ton to request a transfer to the swing shift 6 She in- formed him that she needed to transfer to the night shift because she could not afford a babysitter for her four children, that her former babysitter had left, 7 that she was worried about safety problems in her neighborhood,8 and that she wanted to be home to take care of her children during the day, and to work nights when her husband could be home with the children 9 According to Cornejo's 2 Hamilton testified that Padilla Informed him that Cornejo had also complained personally to Padilla about the alleged speedup 3 There was no night-shift steward 4 Cornejo, Faleto, and Padilla all testified that Cornejo did most of the talking at the meeting 5 There is no contention that this transfer was unlawful °A few days earlier, Cornejo had called the Respondent to request a transfer to the night shift A secretary initially told her that she could start to work on the night shift on Apnl 25, but later called Cornejo back to say that she was not wanted on the night shift Cornejo then called Adolfo Fernandez, the Respondent's plant manager, and explained why she had to transfer to the night shift Fernandez called her back and told her that he had talked to Hamilton, and that Hamilton refused to accept her on the night shift Cornejo thereupon made her call to Hamilton 7 Cornejo's sister-In-law had lived with Cornejo's family and taken care of the children until March, when she returned to Mexico 3 A child in the neighborhood recently had been kidnapped ° Cornejo had explained her need to transfer in similar terms to Fer- nandez 299 NLRB No 22 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD credited testimony, Hamilton replied that he did not want her on the night shift because she was a troublemaker He admitted that he had no com- plaints about her work, but said that 5 years ago when she was on the swing shift, she had caused problems, and that 2 years ago she had caused trouble again Cornejo responded that Hamilton had not even been on the swing shift 5 years before, and that if he was referring to the griev- ance filed in 1987, nearly all the affected employees had signed it and she could not understand why he was picking on her Hamilton then claimed that he had talked to some of the employees who had signed the grievance, and that they told him Cor- nejo had threatened them into signing it Cornejo replied that she knew that was not true, and hung up Hamilton did not mention that there were no openings on the night shift 10 Cornejo never returned to the night shift In- stead, she used part of her vacation, and then worked for 2 weeks on the day shift, during which time she left her children with her mother-in-law, who was visiting from Mexico 11 Although Cor- nejo had hoped that something could be done to enable her to go back on the swing shift, her hopes were unrealized As noted, she finally resigned on June 30 The judge found that Cornejo had engaged in protected concerted activity, that her participation was known to the Respondent, 12 and that her pro- tected activities were a motivating factor in Hamil- ton's decision to deny her request for a transfer He also rejected as pretextual the Respondent's conten- tion that the only reason Hamilton denied the transfer was that Cornejo had been a "troublemak- er" in other respects, unrelated to her protected ac- tivities We affirm the judge's findings, but only for the following reasons It is undisputed that the Respondent knew that Cornejo had signed the 1987 grievance and that she had taken part in the meeting in which the issues addressed in the grievance were discussed and resolved The Respondent contends, however, that there is no evidence that it knew that Cornejo 1 ° Hamilton admitted having called Cornejo a troublemaker, but denied having told her that she was a troublemaker because she had threatened other employees Into signing the grievance He further ac- knowledged that no one had told him, prior to his telephone conversa- tion with Cornejo, that Cornejo had made such threats " Cornejo testified that her mother-In-law was unwilling to keep the children any longer " The judge based his findings in part on an incident in 1984, in which Cornejo and others had signed a petition protesting the layoff of another employee from the night shift Applying the "small plant doctrine," the judge found that the Respondent knew of Cornejo's involvement We find it unnecessary to rely on the judge's analysis or his findings concern- ing the Respondent's knowledge of Cornejo's actions in this respect Our analysis is based entirely on the Respondent's actions taken against Cor- nejo as a result of her participation in the 1987 grievance was involved in the grievance to any greater degree than the other night-shift employees, none of whom were disciplined or otherwise retaliated against for their role in the gnevance It follows, according to the Respondent, that the judge erred in finding that Cornejo was retaliated against for her participation in the grievance, particularly be- cause all the issues addressed were resolved to the satisfaction of all concerned We find no ment in that argument There is ample evidence in the record that the Respondent knew or believed that Cornejo was one of the ringleaders, and possibly the principal driving force, behind the 1987 grievance Accord- ing to Hamilton, Cornejo complained individually to Padilla about the alleged speedup of the produc- tion line, and Padilla informed Hamilton about Cornejo's complaint, which was also one of the four subjects of the grievance Although Hamilton denied having known that Cornejo was the author of the grievance," Padilla testified that everybody knew that that was the case Cornejo testified that, at the grievance meeting, she not only translated but contested both Hamilton's and Padilla's conten- tions concerning the alleged speedup, complained that employees were assigned to do more than one job, and questioned Padilla about why she had moved an employee from one position to another Moreover, according to the credited testimony, Hamilton indicated to Cornejo that he considered her a "troublemaker" because he had received re- ports that she had threatened other employees into signing the grievance 14 Whether or not Cornejo actually made such threats, 15 Hamilton's statement " Faletti also testified that he had not known that Cornejo had wntten the grievance i4 testified that when he uses the word "troublemaker" he means "someone that interrupts the norm with people, that Interrupts the norm with operations, that creates inefficiencies" Although he explained that when he used the term with reference to Cornejo, he meant that she was argumentative, intimidated other employees, and did not have the Company's best interests at heart (among other things), he also admitted on cross•examination that the December 7 grievance meeting "pretty much interrupted the norm" Further insight Into what Hamilton consid- ers "troublemaking" is found in employee Ana Azucena's credited ac- count of a meeting she had with Hamilton a few days before the gnev- ance meeting Hamilton asked Azucena if she had signed the grievance, and she replied that she had He then asked what her complaint was, and she told him about the speedup of the machines Hamilton became upset, said that "this is my job," and asked her why the employees were caus- ing problems, since in 2 weeks they were going to work on the day shift " The judge did not determine whether Cornejo made the alleged threats Cornejo denied having made them Padilla testified that one em- ployee, Socorro Rubi, had told her that she had signed the grievance be- cause she was afraid Cornejo would do something to her if she did not, Padilla denied telling Hamilton of this conversation Rubl, called as a re- buttal witness, denied that Cornejo had threatened her, and claimed that all the employees had signed voluntarily In any event, the Respondent does not defend Hamilton s refusal to grant the requested transfer on the ground that Cornejo had threatened employees into signing the gnev- ance, Indeed, Hamilton denied knowing anything about the alleged Continued AMERICAN LICORICE CO 147 establishes that, even if he did not know that she had written the grievance, he believed that she was one of its active promoters because she was in- volved in attempting to persuade the swingshift employees to sign it 16 On the basis of all the fore- going, then, we reject the Respondent's contention that it had no knowledge that Cornejo was in- volved in the 1987 grievance to a greater extent than most other night-shift employees 17 The judge also found that on April 7, 1989, the Respondent had transferred employee I Ramos from the day shift to the night shift, and that its failure to honor Cornejo's request for a similar transfer constituted disparate treatment of her in re- taliation for her protected activities We do not rely on this finding, because there is no indication in the record that Ramos was transferred at his own request and not at the Respondent's initiative We nonetheless agree with the judge that the Re- spondent engaged in disparate treatment of Cor- nejo Hamilton admitted that it is the Respondent's practice to accommodate a day-shift employee's re- quest to transfer to the night shift if there is an opening on the night shift The Respondent's de- parture from that policy in Cornejo's case, in retal- iation for her protected activities, is sufficient evi- dence of its intent to discnmmate against her The Respondent argues, however, that the judge erroneously rejected its contention, based on Ham- ilton's testimony, that there were no openings on the swing shift on April 24, when Cornejo applied for a transfer It argues, contrary to the judge, that a list of all employees hired or transferred into the night shift since March 1, 1989 (G C Exh 6) con- tains no evidence of a vacancy on the night shift on April 24 We find no merit in that argument To begin with, even if no night-shift vacancy existed on April 24, the credited testimony indicates that Hamilton did not rely on that fact when he denied Cornejo's request Also, that no vacancies for Apnl 24 appear on the list relied on by the Respondent does not belie the judge's finding, because that list threats at the time he made the decision Thus, we need not consider whether the Respondent properly could have denied Cornejo the transfer on that ground Cf NLRB v Burnup & Suns, 379 U S 21 (1964) 1° In adopting the judge's finding, we do not mean to suggest that "troublemaker," when used by employers, necessarily means one who en- gages in protected activities See, e g, Guarantee Savings & Loan, 274 NLRB 676, 679 (1985) We agree with the judge, however, that the cred- ited testimony establishes that Hamilton used the term in that sense " The Respondent also argues that we should not find Cornejo's pro- tected activities to have been a factor in the denial of the transfer because those activities were remote in time (roughly 17 months before the trans- fer was denied) We reject that argument, and note that the actions on the part of Cornejo that Hamilton claims to have relied on in denying her transfer were even more remote in time than the 1987 gnevance See below, fn 19 and last par of sec I of this decision Further, as noted above, the credited testimony shows that Hamilton specifically relied on Cornejo's Involvement in the 1987 grievance when he rejected her re- quest to work on the night shift indicates only the dates of employment actions (e g, hires, transfers, resignations), it does not pur- port to be a list of vacancies or the dates when va- cancies developed Finally, and significantly, the list does establish that four employees were hired as packers on the swing shift between May 17 and 22, after Cornejo had made her request for a trans- fer and well before she resigned Thus, even if there were no vacancies on the night shift on (April 24, there clearly were at least four such vacancies afterwards, any one of which Cornejo could have filled 18 We further affirm the judge's finding that the Respondent's asserted nondiscnmmatory reasons for refusing to allow Cornejo to transfer to the swing shift were pretextual In so finding, we note, as the judge did, that Cornejo was never disci- plined for any of the actions the Respondent now asserts as the basis for the denial of her transfer re- quest 19 Moreover, all Cornejo's actions on which the Respondent claims it relied occurred before October 1987, when she was returned to the night shift 20 The Respondent thus condoned her actions not only by failing to discipline her, but by putting her on the night shift in 1987 despite her record of behavior, which the Respondent claims rendered her unsuitable to return to that shift in 1989 Simi- larly, Hamilton did not reassign Cornejo to a dif- ferent crew, or take any other action against her, even after he was told in 1987 that Cornejo alleg- edly had threatened Padilla, that Padilla allegedly was frightened of Cornejo, that Cornejo allegedly had slashed another employee's tire covers, and that Cornejo had cursed floorlady Nunes 21 That 10 We shall leave to the compliance stage of these proceedings the de- termination of whether vacancies existed on the night shift at any time between April 24 and May 17 19 In fact, because Cornejo never was disciplined for a threat she alleg- edly made to Padilla in 1983, the judge disbelieved Padilla's testimony that the threat was made The judge thus found that this action, which Hamilton claimed to have relied on in denying Cornejo's request for a transfer, never happened 20 The extent of the Respondent's actual knowledge of Cornejo's ac- tions before 1987 is not clear from the record Hamilton, who became night plant manager in 1986 or 1987, testified that he was told about most of the problems Cornejo allegedly had caused only after she had returned to the night shift in 1987 The "floorladies" who testified about their problems with Cornejo are not statutory supervisors, and evidently did not inform Hamilton or Fernandez (both admitted supervisors) about most of those problems Both floorladies Maxine Kenney and Beverly Nunes, however, testified that they informed Fernandez immediately about one Incident in 1983 in which Cornejo caused such a disturbance on the job (including cursing Nunes) that production had to be stopped so that the floorladies could sort the situation out Hamilton testified that he learned of this incident in early or mid-1987, apparently before Cor- nejo returned to the night shift in October 1987 2i testimony, which the Respondent appears to adopt, was that it is the Respondent's policy, when confronted with an employee who has a problem on one crew, to assign the employee to a different crew, instead of imposing discipline The judge made no finding concern- ing this matter Continued 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hamilton took not even the minimal action of reas- signing Cornejo in 1987, when to do so apparently would not have discommoded her, and yet refused her request for a transfer in 1989 when to do so almost inevitably would force her to resign (see part II, below), further convinces us that the Ham- ilton's asserted reasons for his action were pretex- tual 22 II Although he found that the Respondent had un- lawfully denied Cornejo's request to transfer, in re- taliation for her protected activities, the judge found that she was not constructively discharged He reasoned that Cornejo's child care burdens23 were essentially personal and not work related, be- cause her working conditions on the day and night shifts were essentially the same He also found that neither Hamilton nor anyone else had intended to cause a change m Cornejo's working conditions so difficult or unpleasant as to force her to resign He found, instead, that Hamilton wished only to pre- vent Comejo's return to the night shift, it was im- material to Hamilton whether she worked on the day shift or quit We reverse As the judge noted, the standards for finding a constructive discharge are First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or un- pleasant as to force him to resign Second, it must be shown that those burdens were im- posed because of the employee's union activi- ties Crystal Princeton Refining Co, 222 NLRB 1068, 1069 (1976) The judge erred, however, in finding that, because conditions were the same on the day and night shifts, the burdens placed on Cornejo by the Respondent's refusal to transfer her were essen- tially personal and not work related, and that they therefore were outside the rule of Crystal Princeton It is true that, in nearly every case in which a constructive discharge is found to have taken place, the employer has changed the employee's working conditions for the worse to such a degree As we have noted, Cornejo was transferred to the day shift in January 1988 That transfer, however, appears to have been routine, and the Re- spondent does not contend otherwise 22 Because the Respondent's proffered nondiscriminatory reasons for denying Cornejo's transfer have been found to be pretextual—te , they either did not exist or were not, in fact, relied on—the Respondent's con- tention that It did not violate Sec 8(a)(3) because It would have taken the same action even absent her protected activity, Wright Line, 251 NLRB 1083 (1980), is devoid of merit Limestone Apparel Corp, 255 NLRB 722 (1981), enfd 705 F 2d 799 (6th Cu . 1982) 22 The judge credited Cornejo's testimony regarding the cost and availability of child care that the employee is forced to resign 24 We do not believe, however, that the Crystal Princeton test can be read so narrowly as to apply only when an em- ployer has changed an employee's working condi- tions 25 In St Joseph's Hospital, 247 NLRB 869, 873, 880 (1980), an employee who openly support- ed the union requested a reduction in working hours because she had enrolled in college The em- ployer denied the request in retaliation for the em- ployee's union activities, and the employee re- signed The Board adopted the judge's finding that the employee had been constructively discharged, even though the employer had not changed her working conditions, but had only refused to grant her request for a change in hours that would have enabled her to accommodate personal, nonwork-re- lated burdens similar to those assumed by Cornejo The same result must be reached here Cornejo had a problem that prevented her from continuing to work on the day shift She informed Hamilton of the nature of the problem, and told him that she needed to transfer to the night shift as a result The Respondent could have accommodated her request, at least by May 17, but refused to do so for unlaw- ful reasons, even though it reasonably should have foreseen tilt its decision would force her to quit In these circumstances, a constructive discharge may properly be found We see no distinction in principle between transferring an employee to a less desirable shift, and refusing to allow her to transfer from a shift on which she can no longer work to one on which she could (assummg posi- tions on the latter are available which she is able to fill) In either instance, if the employer's action is taken for unlawful reasons and forces the employee to resign, a constructive discharge has occurred The judge also erred in finding that Cornejo was not constructively discharged because Hamilton did not specifically intend to cause her to resign, but only wanted to keep her off the night shift Contrary to the judge, the test for intent is not lim- ited to whether the employer specifically intended to cause the employee to quit, but includes wheth- er, under the circumstances, the employer reason- ably should have foreseen that its action would have that result Keller Mfg Co, 237 NLRB 712, 723 (1978) 26 We find that this test has been met in 54 See, for example, Manufacturing Services, 295 NLRB 254 (1989) (dis- criminatory transfer to different shift), Bennett Packaging Co, 285 NLRB 602 (1987) (change in starting time) 25 In any event, by departing from Its usual policy of permitting em- ployees to transfer from one shift to the other when vacancies exist, the Respondent did change Cornejo's working conditions 26 This is simply an example of the general principle that one is pre- sumed to Intend the natural and probable consequences of his acts AMERICAN LICORICE CO 149 this case Cornejo informed Hamilton that she needed to transfer to the night shift because she could not afford a babysitter for her four chil- dren," that her former babysitter had left, that she was concerned about problems in her neighbor- hood, and that she needed to go on the swing shift so that she could take care of her children during the day Possessed of that information (which he apparently did not dispute) Hamilton reasonably should have foreseen that his refusal to grant Cor- nejo's request would force her to resign That he was, subjectively, indifferent to that result is beside the point For the foregoing reasons, we reverse the judge and find that the Respondent constructively dis- charged Cornejo, in violation of Section 8(a)(3) and (1) We shall modify the judge's recommended Order to provide that she be reinstated, on the night shift if she still so desires, and that she be made whole from the date of the discrimination to the date of her reinstatement, as provided in F W Woolworth Go, 90 NLRB 289 (1950), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987) AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3 "3 By discrimmatonly denying employee Noelia Cornejo a transfer from the day shift to the night shift beginning April 25, 1989, and by constructive- ly dischargmg her, because of her concerted pro- tected activities, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act" ORDER The National Labor Relations Board orders that the Respondent, American Licorice Company, Union City, California, its officers, agents, succes- sors, and assigns, shall take the actions set forth in the Order as modified 1 Substitute the following for paragraph 1(a) "(a) Denying employees transfers to different shifts, constructively discharging them, or other- wise discriminating against them because of their union or other protected concerted activities" 2 Substitute the following for paragraph 2(a) "(a) Offer Noelia Cornejo immediate and full re- instatement to her former job or, if that job no 27 Although the Respondent makes much of the fact that Cornejo did not look for another babysitter (other than to ascertain that her neighbor, who was a licensed babysitter, could not care for the Cornejo children), it apparently does not dispute her pnnmpal contention, which was cred- ited by the judge, that she could not afford a sitter in any case longer exists, to a substantially equivalent position, in either case on the night shift if she so requests, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole, with interest, for any loss of earnings and other benefits suffered as a result of the dis- crimination against her in the manner set forth in the Decision and Order" 3 Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly "(b) Remove from its files any reference to Cor- nejo's unlawful discharge, and notify her in writing that this has been done and that the discharge will not be used against her in any way" 4 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 discnmmate against you by deny- ing transfers to different shifts, or constructively discharge, you, because of your union or other pro- tected 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 offer Noeha Cornejo immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, in either case on the night shift if she so re- quests, without prejudice to her seniority or any other rights or privileges previously enjoyed, and WE WILL make her whole for any loss of earnings and other benefits suffered by her as a result of the discrimination against her, plus interest WE WILL notify Cornejo, in writing, that we have removed from our files any reference to her discharge and that the discharge will not be used against her in any way AMERICAN LICORICE COMPANY , Valerie Hardy-Mahoney,-Esq , for the General Counsel Steven Thomas Davenport, Jr. Esq (Finkle, Davenport & Barsamtan), of Walnut Creek, California, for the Re- spondent 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE MICHAEL D STEVENSON, Administrative Law Judge This case was tried before me at Oakland, California on August 21 and 24, 1989, 1 pursuant to a complaint issued by the Regional Director for the National Labor Rela- tions Board for Region 32 on June 23, and which is based on a charge filed by Noeha Cornejo, an individual (Cornejo), on May 15 The complaint alleges that Ameri- can Licorice Company (Respondent), has engaged in certain violations of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act (the Act) Issues Whether Respondent refused to permit its employee Cornejo, to transfer from the day shift to the night shift, because Cornejo circulated an employee petition con- cerning work-related problems and/or because Cornejo filed a grievance, or because Cornejo engaged in other protected concerted activities If Respondent refused the transfer for the reasons cited above, whether such refusal constituted a constructive discharge or layoff All parties were given full opportunity to participate, to introduce relevant evidence, to examine and to cross- examine witnesses, to argue orally, and to file briefs Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent admits that it is a California corporation engaged in the manufacture and wholesale distribution of licorice and licorice candy products and that it is located in Union City, California It further admits that dunng the past year, in the course and conduct of its business, it has sold and shipped goods or provided services valued in excess of $50,000 directly to customers located outside the State of California Accordingly, it admits, and I find, that it is an employer engaged in commerce and is a business affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Bakery, Confec- tionery and Tobacco Workers International Union, Local 125, AFL-CIO, (the Union), is a labor organization within the meaning of the Act 'All dates herein refer to 1989 unless otherwise indicated III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts 1 Background On June 30, Charging Party 2 Noeha Cornejo resigned her position as a packer with Respondent On the resig- nation form, Cornejo wrote as the reason for her resigna- tion American Licorice Company has denied me avail- able employment on the evening shift because of a grievance which was filed by 12 employees includ- ing me against the swing shift manager and floor- lady concerning work related problems This oc- curred over two years ago [G C Exh 2] To examine the facts and circumstances surrounding this resignation, I turn to the record Respondent's production workers have been represent- ed by the Union since 1973 In 1977, the Union struck Respondent for approximately 5 weeks Since that time relations between Respondent and the Union were char- acterized as good, by Richard Faletti, vice president and business agent for the Union and witness at hearing Over the years vanous collective-bargaining agreements have been negotiated and during all times material to this case, one or more labor agreements have been in force and effect No collective-bargaining agreement, past or present, has contained a provision dealing with the right of employees to transfer between shifts The bargaining agreement does provide for the resolution of grievances and one or two union shop stewards have been designat- ed to assist employees in the preparation and filing of gnevances 3 No shop steward is employed on the night shift sometimes called the swing shift In early March 1983, Cornejo was hired as a packer for the night shift Currently, the night shift operates be- tween 4 30 p m and 1 a m During Cornejo's tenure with Respondent, she experienced occasional layoffs in the fall months of the year which are Respondent's slow time After Cornejo returned from the first such layoff in February 1984, the floorlady with whom she worked had changed Floorladies were in charge of the night shift until late 1985 or early 1986 when Kenneth Hamil- ton became night plant manager A lengthy witness at hearing, Hamilton is a statutory supervisor who made the ultimate decision to deny Cornejo's request for trans- fer to the night shift Before arnval at the Union City plant, Hamilton had worked about 12 years at a second Respondent plant in San Francisco Employed there as a technical manager, meaning supervisor of safety, quality control, sanitation and hazardous material, Hamilton 2 Transcript page numbers skip from p 465 to 486 General Counsel should determine whether the Board may have been Inadvertently charged by the Court Reporter for the missing pages, and if so, should take appropnate corrective measures It does not appear that any material has been omitted from the transcript 3 After December 7, 1987, the date of a gnevance hearing described below, Cornejo applied to the Union for appointment as a union steward, but was turned down AMERICAN LICORICE CO 151 transferred to the Union City plant night shift after the San Francisco plant closed s Unlike Hamilton, the floorladies are members of the bargaining unit and are not statutory supervisors More akin to lead persons, at least one floorlady continued working on the night shift even after Hamilton's arrival Cornejo first worked with floorlady Maxine Kenny, who started with Respondent in 1976 at the San Francis- co plant Kenny testified at the hearing, and in general I found her to be a mature and credible witness who played only a tangential role in the events in questions, In any event, Cornejo's first experience in working with Kenny was uneventful When Cornejo returned from her first layoff in Febru- ary 1984, floorlady Maria Padilla had replaced Kenny Since 1977, Padilla had worked for Respondent on the day shift At first all went well and Cornejo and Padilla became friends Sometime m 1984, acting on orders from plant manager Adolfo Fernandez, Padilla caused the layoff of Comejo's friend and coworker on the night shift named Lidia Garza What happened next is sharply disputed Padilla testified that on the night Garza was laid off, about 12 30 a m, Cornejo and a coworker named Diaz confronted Padilla Cornejo allegedly began hitting her fist into the palm of her other hand and stated "Maria, you have to be careful as you're going to pay for this" Cornejo denied the gesture and the remarks, but did admit to circulating a petition among the bargaining unit menbers protesting Garza's layoff Several persons, in- cluding Cornejo herself, signed the petition Although the record is not clear what became of this petition, I find, contrary to Padilla's testimony, that Padilla was aware of its circulation As basis for this finding, I note that between 12 to 15 women worked on the night-shift packing line and were involved with the petition Under the "small plant" doctnne,4 this small group together with the small area in which they, together with Padilla worked, raises an inference that Padilla must have been aware of the concerted protected activity Padilla testified that she reported Cornejo's remarks and gestures to Fernandez and to Dolores Valle, a senior floorlady Fernandez, Valle and Diaz failed to testify Because Cornejo was never disciplined for her activities, I do not believe Padilla that Cornejo made the gestures or remarks attnbuted to her Shortly after the Garza matter, someone put sugar in the gas tank of Padilla's car This was reported to the police who investigated the matter No one was ever ac- cused of this cnminal act However, Padilla testified that an employee named Dolores Loza told Padilla that Loza had heard Cornejo remarking to a group of female em- ployees in the ladies' room during a break that Cornejo said she didn't put the sugar in the gas tank, but she could cut four tires with a knife A short time later an- other employee named Filomena Zamora allegedly told Padilla that Cornejo had cut the tire covers of an em- ployee named Linda Stewart In disregarding all of this 4 Coral Gables Convalescent Home, 234 NLRB 1198 (1978), enfd mem 588 F 2d 826 (5th Cif 1979), Clark & Wilkins Industries v NLRB, 887 F 2d 308 fn 10 (D C Or 1989) testimony, I note that Loza, Zamora, and Stewart did not testify Loza is no longer employed by Respondent and Zamora was on vacation at the time of the hearing So far as the record shows, Respon, an made no attempt to secure the attendance of any of these persons nor to continue the matter until Zamora returned from vaca- tion In January 1985, after returning from a 2-or 3- month layoff, Cornejo had accumulated sufficient seniority to opt for a day-shift position where she reported to floor- lady Valle Then in October 1987, at a time when she had customarily been laid off, Cornejo was transferred back to the night shift where Padilla continued her job as floorlady Relations between the two women again went well for awhile However Padilla claimed to over- hear Cornejo say in the ladies' room that she hated to work with Maria Cornejo denied this remark and none of the employees to whom it was made corroborated Pa- dilla's testimony I credit Comejo's denial In November 1987, Cornejo drafted m English a griev- ance Apparently prepared in the form of a petition, the grievance could not be located at the time of hearing However, all agree generally on its four-part content that Padilla caused the candy line to speed up, that em- ployees were assigned work outside their classification, that male employees were sometimes assigned to the pro- duction line in place of absent females, and that inad- equate numbers of employees were expected to perform too much work, due to the reluctance of Respondent to recall sufficient employees from layoff With Cornejo translating the grievance for the mostly Spanish-speaking employees, almost all affected employ- ees signed it It was then presented to the day-shift shop steward Margie Bnttan, who in turn transmitted the doc- ument to Faletti On December 7, a formal grievance meeting was held about 4 p m in Respondent's lunch area A few minutes before the meeting began, Hamilton called into his office a Spanish-speaking employee named Ana Azucena The only other person present was Padilla who acted as in- terpreter Hamilton asked Azucena if she had signed the grievance and she admitted that she had He then asked Azucena what the problem was According to Hamilton, Azucena "clammed up" and refused to answer He couldn't recall if he raised his voice while meeting with her According to Azucena, she answered Hamilton that Padilla had speeded up the machines Padilla, denied this, as she was interpreting At one point, Hamilton became upset and indicated the petition was infringing on his job Azucena admitted that she couldn't tell if Padilla was in- terpreting correctly I credit her account of the meeting Hamilton admitted calling a second petition-signer named Tony Delgado into his office to ask him the same questions he asked Azucena Delgado refused to answer questions until the public grievance hearing and did not testify in this case Once the grievance hearing began, Respondent was represented by Hamilton, Fernandez, Padilla, and Valle All or most of the concerned employees including Cor- nejo were there Faletti presided over the meeting 152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After discussion, all matters were resolved to the satis- faction of the participants More specifically, Faletti dis- missed the paragraph relating to the assignment of men to women's jobs on the grounds that all employees had equal employment opportunity He also explained to the persons in attendance that during the slow season, it was sometimes necessary to assign additional jobs to employ- ees in lieu of layoffs As to the claimed insufficient number of employees, Falett found this dispute related to high absenteeism, about which he could do little Fi- nally, although Padilla denied that she was responsible for speeding up the line, Fernandez promised to monitor the speed of the line to ensure that the day shift and night shift did equal work No further controversy has arisen over any of these four matters Subsequently, Cornejo returned to work as did Padilla In early December, the latter entered the hospital for medical treatment In January 1988, before Padilla re- turned from medical leave, Cornejo was transferred back to the day shift where she worked until February Cor- nejo then went on maternity leave for the birth of her fourth child Cornejo expected to return to work on or about April 25 2 Cornejo's attempted transfer back to night shift As Cornejo prepared to return to work, her children's ages were 7, 5, 3, and the baby A relative had been watching the children but after the birth of the baby the relative was no longer available Cornejo believed that other child care possibilities were too expensive Accord- ingly, a few weeks before April 25, Cornejo called Re- spondent's office to request a transfer back to the night shift The reason for this request was to enable Cornejo's husband who worked days to watch the children at night while Cornejo worked After first being told by a com- pany secretary there would be no problem, a few days later Cornejo was told by the same secretary that the transfer was not possible because "they don't want you" Cornejo next called Fernandez and explained why it was necessary for her to transfer to the night shift Fer- nandez promised to look into the matter and call her back which he did about an hour later Fernandez said that Hamilton would not accept her on the night shift and suggested that Cornejo call Hamilton directly to ex- plain her situation Cornejo did just that On April 24, Cornejo called Hamilton and explained her babysittmg problem to him She also mentioned she was concerned about neighborhood safety due to a highly publicized child kidnapping which had occurred near her home Hamilton responded by saying he didn't want her on the night shift because she was a "trouble- maker" The remainder of the conversation is sharply disputed According to Hamilton, he told Cornejo that while there were no openings on the night shift at the time, he would consider her for transfer in the future if she gave assurances that she wouldn't be a troublemaker To this, Cornejo allegedly responded, "You will have to check with Maria Padilla" When Hamilton persisted that he wanted assurances from Cornejo, she concluded the conversation by saying, "You will be hearing from me" Cornejo's version of the conversation includes Hamil- ton's admission that he had no complaints regarding her work, but that 5 years ago, Cornejo caused problems and that 2 years ago, she caused trouble again To this Cor- nejo responded that "5 years ago you weren't on the swing shift and 2 years ago, if you are referring to the grievance, most of the other women and men signed it as well" Then Hamilton stated that he had heard that Cor- nejo had threatened some of the women into signing the petition Cornejo concluded by saying she knew this wasn't true and then hung up Cornejo denied that Ham- ilton had said no positions were available or that he would consider Cornejo for a position in the future if she promised not to be a troublemaker I will resolve this major credibility issue, in the Analy- sis and Conclusions segment of this decision In conclu- sion of this segment, I note that after talking to Hamil- ton, Cornejo took 2 weeks' vacation and then returned to work for 2 weeks on the day shift before resigning During the final 2 weeks of work, Cornejo made tempo- rary arrangements for child care with a relative 3 Respondent's transfer policy Subject to seasonal variations, Respondent employs ap- proximately 150 employees on the day shift and 70 on the night shift As noted above, the labor agreement does not deal with transfers between the day and night shift However, by looking at Respondent's custom and prac- tice, it is possible to ascertain a policy regarding shift transfers Generally, Respondent begins recalling its laid-off em- ployees m the spring of each year, the beginning of its busy season Most of these recalled employees are as- signed to the night shift and then by seniority those from the night shift who wish to transfer to days for available openings are permitted to do so Few, if any, day-shift employees are interested in working nights, so it is neces- sary to hire from outside for a vacancy On the other hand, generally if there is room on the night shift and a day-shift employee desired to transfer, the transfer would be granted (Tr 10) General Counsel offered an exhibit admitted into evi- dence by stipulation of the parties This document con- tained a list of 23 employees designated by a check mark, who have held positions on the night shift since March 1 (G C Exh 6) According to this list, most persons placed on the night shift were new employees and a few were rehired apparently from layoff status A single person, I Ramos, transferred from the day shift to nights on April 7 4 Additional Facts Regarding Cornejo's Behavior at Work During 1983 and 1984, Beverly Nunes was the floor- lady on nights Now a production worker on the day shift, Nunes was called as a witness by Respondent to describe her experiences with Cornejo Sometime during the time she was floorlady, Nunes awarded a desirable machine operator job to an employe named Linda Stew- art A faction of employees led by Cornejo, some of whom had greater seniority than Stewart, resented the AMERICAN LICORICE CO 153 s.. job assignment This led to an overt dispute apparently triggered when an employee named Filomena Zamora received conflicting job directions from Nunes, her right- ful supervisor, and from Cornejo, her de facto leader Zamora reacted to this conflict by sitting down on the floor and crying Cornejo seized the moment to attack Nunes verbally, by saying, "You did it now bitch Go back where you belong, and mind your own fucking businessi" At first, Cornejo didn't recall using any ob- scene language toward Nunes, (Tr 118), but conceded she might have (Tr 119) I find that she did speak to Nunes as Nunes testified After Nunes called senior floorlady Kenny to return to the plant from her home to restore order in the plant, Nunes complained to her that Cornejo had used the "F" word toward her About 7 15 p m Kenny held a group meeting with the women involved in the dispute Tempers cooled and eventually all returned to work The following day both Nunes and Kenny reported their versions of the incident to Fernandez including Cornejo's use of profanity Fer- nandez, however, took no action Kenny also testified that Cornejo had a bad attitude because she frequently complained about job assign- ments In addition, Cornejo didn't like to help train new employees and complained about this to Kenny She also was impatient According to Faletti, Respondent was very lax in dis- ciplining its employees Personality problems, he testi- fied, were normally resolved by transferring the affected employee to a different crew It is unnecessary to con- firm or rebut this characterization Instead, I look to cer- tain General Counsel exhibits obtained from Respond- ent's files and records The documents relate to discipli- nary action taken against Respondent employees For ex- ample, Leticia Vega was terminated after several inci- dents of harassing other employees and of using abusive and obscene language toward them (G C Exhs 4(a)- (m)) Another former employee, George Breffa, behaved and was treated similarly (G C Exhs 5(a)-(m)) Finally former employees Lloyd Quartaroh and John Simao were terminated for bad attitudes and other transgres- sions (0 C Exhs 3(a)-(d)) All of this is important be- cause during the hearing, the parties stipulated that there was no formal or informal record of any discipline in Cornejo's file (Tr 144) I would expand on the stipula- tion to find that during the time employed by Respond- ent, Cornejo was never disciplined for any reason In fact, Hamilton testified that there is no reason why Cor- nejo couldn't be hired by Respondent for the day shift (Fr 351 ) B Analysis and Conclusions 1 Was Cornejo refused a transfer to the night shift due to her concerted protected activities'? I begin with the by now familiar analysis required by Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 453 U S 989 (1982), ap- proved in NLRB v Transportation Management Corp, 462 U S 393 (1983) Most commonly applied in cases where an unlawful discharge is alleged to have occurred, the Wright Line analysis is equally applicable where an unlawful refusal to transfer is alleged to have occurred See, e g, Raymond Engineering, 286 NLRB 1210 (1987) In order to establish a pnma facie violation of Section 8(a)(1) and (3) of the Act, General Counsel must estab- lish that protected conduct was a "motivating factor" in the employer's decision Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct Wright Line, at 1089 With the Wright Line analysis in mind, I turn to the record to determine first whether Cornejo engaged in protected concerted activities In 1984, Cornejo orga- nized or participated in activities to protest the termina- tion of a fellow employee Apparently a petition was prepared, circulated, and signed by Cornejo and other employees Protest of a lawful discharge is a protected activity 48 Am Jur 2d Labor & Labor Relations Sec 943 5 More recently, in November 1987, Cornejo again drafted, participated in, and signed a petition leading to a more formal grievance hearing on December 7, 1987 Again I find that Cornejo was engaged in protected con- certed activities In Hawthorne Mazda, 251 NLRB 313, 315 (1980), affd mem 659 F 2d 1089 (9th Cir 1981), the Board stated, Section 7 of the Act guarantees employees the right to engage in concerted activities for the pur- pose of mutual aid or protection employees who band together for the purpose of presenting grievances to their employer are engaged in pro- tected, concerted activities within the meaning of Section 7 It follows that an individual employee's attempt to induce fellow workers to join in a peti- tion regarding a common grievance is protected ac- tivity Similarly, an employee engages in protected activity when he presents to the employer griev- ances on behalf of other employees [Citations omit- ted] During the course of her concerted activities referred to above and described in the Facts, Cornejo held no office with the Union and was never a union steward Although stewards were employed by Respondent, no steward worked on the night shift In any event, the Board has held that filing of grievances by employees in a manner which bypasses the Union is nevertheless pro- tected conduct Crown Wrecking Co, 222 NLRB 958, 962 (1976) In finding that General Counsel has established a prima facie case showing that Comejo's protected con- certed activities were a motivating factor in Hamilton's refusal to allow her transfer to the night shift, I note that Respondent was aware of Cornejo's protected activities Proof of employer knowledge is shown by the April 24 telephone call between Cornejo and Hamilton In that call, both participants admit that Namilton referred to Cornejo as a "troublemaker" This term is frequently 5 See also Meyers Industries, 281 NLRB 882 (1986), affd sub nom Prill v NLRB, 835 F 2d 1481 (D C Or 1987) Compare Daly Park Nursing Home, 287 NLRB 710 (1987) 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD used to refer to a person who engages in union or other protected concerted activities See Guarantee Savings & Loan, 274 NLRB 676, 679-180 (1985), In United States Steel Corp, 279 NLRB 16 fn 2, 19-20 (1986), the Board affirmed the 8(a)(1) and (3) violations found by the ad- ministrative law judge based on the respondent's refusal to transfer the discnminatee The Board also noted the use of the term "troublemaker" in the case and its con- text, as connoting protected activities by the chscrimma- tee 6 Returning to the April 24 telephone call, I now credit Cornejo's version of the remaining part of the conversa- tion I find no reason to believe that Hamilton told Cor- nejo that she couldn't be transferred because there were no openings As a basis for my finding, I note that Re- spondent never produced any files or records to prove that no vacancy existed on the night shift at the time in question Further, during the hearing, Respondent's at- torney stated, the problem here is not that she was a trouble- maker because of any grievances that she filed, but that she was a troublemaker in many other areas, and that was why she was not offered the opportuni- ty to go back to the night shift (Tr 116-17) [Em- phasis added ] Still additional reasons exist to credit Cornejo For ex- ample, an employee named Ramos was transferred from the day shift to the night shift on April 7, just 2 weeks before Cornejo talked to Hamilton No explanation of this transfer was offered Accordingly, I find here evi- dence of disparate treatment, in that Respondent appar- ently applied a different standard to an employee it had identified as a union "troublemaker" compared to other employes who desired to transfer to the night shift See Fern Terrace Lodge, 297 NLRB 8, 9 (1989) Finally, Cornejo was more credible in her version of the telephone call than was Hamilton In light of this finding, the remarks made by Hamilton in the April 24 telephone call constitute an admission by Respondent's supervisor and agent that the transfer was being denied due to Cornejo's protected activities in 1984 and 1987 See NLRB v Globe Products Corp, 322 F 2d 694, 696 (4th Cir 1963) 7 I turn briefly to consider the question of Cornejo's dis- ciplinary record with Respondent None exists To the extent that the facts as found would indicate that Cor- nejo could have properly been disciplined, particularly for her behavior toward floorlady Nunes, I find that Re- 6 Another term frequently used as a code word for a person's protect- ed concerted activities is to have a "bad attitude" Bronco Wine Co, 256 NLRB 53, 54 (1981) In Virginia Metalcrafiers, 158 NLRB 958, 962 (1966), both "troublemaker" and "bad attitude" were found by the Board to refer to protected activities In the instant case, Padilla referred to Cornejo as having a "bad attitude" (Tr 196, 232, 234) Paddla's poor re- lationship with Cornejo was based in part on the latter's protected activi- ties and Padilla conveyed her reaction to Hamilton who in turn relied upon this information in refusing to approve Cornejo's request for trans- fer 7 Even if I were to credit Hamilton's version of events in part, his re- quest for assurances from Cornejo that she wouldn't cause trouble in the future would not be helpful to Respondent's case See John C Mandel Security Bureau, 202 NLRB 117 (1973) It is clear that Hamilton is really asking Cornejo to refrain from protected concerted activities spondent did not really view the conduct as warranting discipline, and in effect, Respondent condoned the al- leged misconduct See General Electric Co, 292 NLRB 843 (1989), Dow Chemical Go, 152 NLRB 1150, 1151, 1162-1163 (1965) Even if Cornejo had been disciplined however, it is debatable whether said discipline could properly be the basis for the denial of a transfer to the day shift Thus an employer may adopt rules to maintain workplace disci- pline Standard-Coosa-Thatcher Carpet Yarn v NLRB, 691 F 2d 1133, 1141 (4th Cir 1982) Yet Cornejo's con- duct in protesting the work assignment of a fellow em- ployee was not "offensive, defamatory or opprobrious" Arguably, Cornejo's behavior toward Nunes might be characterized as "intemperate, inflammatory or insult- ing," which is not sufficient to lose the protection of the Act Continental Pet Technologies, 291 NLRB (1988) Since Respondent condoned Cornejo's behavior by never disciplining her, the above discussion is academic More to the point, I find that Respondent's reasons for refusing to transfer Cornejo to the night shift to be pre- textual rather than dual motivation That is, the reasons advanced by the employer for refusal of the transfer either did not exist or were not in fact relied upon, there- by leaving intact the inference of wrongful motive estab- lished by the General Counsel Limestone Apparel Corp, 255 NLRB 722 (1981), enfd 705 F 2d 799 (6th Cir 1982) In summary, I find that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to permit Cornejo to transfer to the night shift for the reasons offered Ray- mond Engineering, supra, Lear Siegler, 277 NLRB 782 (1977) 2 Was Cornejo constructively discharged by the denial of the transfer? Having found the violation of the act as charged, our inquiry is not ended Paragraph 6 of the complaint al- leges that as a result of Respondent denying her transfer request, Cornejo was forced to quit her job and thus was unlawfully or constructively terminated I turn to consid- er this issue In Manufacturing Services, 295 NLRB 254 (1989), an employee was transferred mvoluntanly from one depart- ment to another After finding that the transfer was un- lawfully motivated, the Board directed its attention to the question whether the employee's posttransfer resigna- tion was a constructive discharge The administrative law judge concluded that the transfer was not converted to an unlawful constructive discharge, because even as- suming that the working conditions were more difficult after the transfer, they were not both "difficult and un- pleasant," under EDP Medical Computer Systems, 284 NLRB 1232 (1987) In finding that the administrative law judge had erred in his application of the test for determining when an employee has been constructively discharged, the Board stated as follows [N]either [EDP Medical] nor its antecedents were intended to be read as establishing a twofold test for ' AMERICAN LICORICE CO 155 conditions sufficient to create a constructive dis- charge Thus in Algreco Sportswear Go, 271 NLRB 499, 500 (1984), relied on in EDP Medical, the Board reiterated the test set forth in Crystal Prince- ton Refining Go, 222 NLRB 1068, 1069 (1976 First, the burdens imposed upon the employee must cause, and be intended to cause, a change in working conditions so difficult or unpleasant as to force him to resign Second, it must be shown that those burdens were imposed because of the employee's union activities [Emphasis added ] [I]t is necessary to consider all the circumstances cumulatively including what difficulties ensue from the transfer and whether the resulting burdens were intended to and did cause [the employee] to resign I have credited Cornejo9s testimony regarding the bur- dens placed upon her with respect to child care For the following reasons, however, I find that a constructive discharge did not occur and that Cornejo voluntarily re- signed her position First, Cornejo performed essentially the same work under the same working conditions on both the day shift and night shift Accordingly, the burdens placed on her by Respondent's unlawful refusal to transfer were essen- tially personal, were not directly work-related and were therefore outside the rule of Crystal Princeton Refining Go, More importantly, I find no intent by Hamilton or anyone else on Respondent's behalf to cause a change in Cornejo's working conditions so difficult or unpleasant as to force her to resign In forcing Cornejo to continue the status quo, Hamilton was motivated only by his desire to keep Cornejo away from himself and his crew, because of his belief that she was a "troublemaker" Whether Cornejo continued to work on the day shift as she did for a period of 2 weeks after returning from ma- ternity leave, or whether she quit was completely imma- terial to Hamilton who desired only not to work with her on the night shift This is the essential difference be- tween the instant case and the case of Bennett Packaging, 285 NLRB 602 (1987), cited by General Counsel In Ben- nett, management changed the starting time for an em- ployee's work shift for the specific purpose of forcing her to quit the job due to babysittmg problems I find that Bennett may be easily distinguished from the instant case See Avecor, Inc , 296 NLRB 727, 744 (1989) For the above reasons, I will recommend to the Board that this segment of the case be dismissed 9 CONCLUSIONS OF LAW 1 American Licorice Company is an employer en- gaged in commerce 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 8 In making this finding, I do not rely on Respondent's resignation form which in boilerplate language recites "The undersigned employee acknowledges that termination of employment with our company is vol- untary" 3 By discnmmatonly denying employee Noelia Cor- nejo a transfer from the day shift to the night shift begin- ning April 25 and ending June 27, because of her con- certed protected activities, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act 4 Other than specifically found herein, Respondent has engaged in no other unfair labor practices THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, I will recommend that Respondent be ordered to cease and desist and to take certain affirma- tive action to effectuate the policies of the Act Specifi- cally because I have found that Respondent unlawfully denied Noeha Cornejo a transfer from the day shift to the night shift, I will further recommend that Respond- ent be ordered to make Noeha Cornejo whole for any loss of eammgs and benefits she suffered as a result of the discrimination against her from April 24, 1989, to the date she voluntarily resigned her position, effective June 27, 1989 This ba.ckpay remedy shall be computed in ac- cordance with F W Woolworth Go, 90 NLRB 289 (1950), with interest computed in the manner prescribed in New Horizons for the Retarded 9 Last, I will recommend that Respondent be ordered to cease and desist from in any like or related manner Inter- fering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ° ORDER The National Labor Relations Board orders that the Respondent, American Licorice Company, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Denying employees transfers to the night shift or otherwise discrimmating against them because of their union or other protected concerted activities (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make Noel's Cornejo whole for any loss of earn- ings and other benefits suffered by her as a result of the 9 In accordance with the Board's decision in New Horizons for the Re- tarded, 283 NLRB 1173 (1987), 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 ''' 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" 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discnmmation against her, in the manner set forth in the remedy section of this 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 (b) Post at its facility in Union City, California, copies of the attached nctice marked "Appendix " 1 Copies of " 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" the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent in both English and Spanish 12 immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customanly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply "Bacardi Corp , 296 NLRB 1220, 1221 fn 2(i989)