Fourjay Industries Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1986

278 N.L.R.B. 276 (N.L.R.B. 1986)

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fourjay Industries Inc. and Tara S. Gardner. Case
- 9-CA-21633
29 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 26 June 1985 Administrative Law Judge Wil-
liam F. Jacobs 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.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative, law
judge as modified below- and orders that the Re-
spondent,, Fourjay Industries Inc., Dayton, Ohio,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
' The judge recommended that a broad cease-and-desist order issue
against the Respondent . However, we have considered this case in light
of the standards set forth in H,ckmott Foods, 242 NLRB 1357 (1979), and
have concluded that a narrow cease-and-desist order is appropriate. We
shall modify the judge's recommended Order accordingly
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 discharge or otherwise deny em-
ployment to employees because they concertedly
complain about their working conditions or engage
in protected concerted activity.
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 Tara Gardner and Marilyn
McKinney immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make them
whole for any loss of earnings and other benefits
resulting- from their discharge, less any net interim
earnings, plus interest.'
WE WILL expunge from our files any references
to the discharges of Tara Gardner and Marilyn
McKinney on 27 December 1984 and we will
notify them that this has been done and that the
evidence of these unlawful discharges will not be
used as a basis for future personnel actions against
them.
FOURJAY INDUSTRIES INC.
Mark G. Mehas-and Jack B. Baker, Esqs., for the General
Counsel.
Alex V DeMarco, Esq., of Vandalia, Ohio, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This
case was tried before me on 23 April 1985 at Dayton,
Ohio. The charge was filed 11 January 1985 by Tara S.
Gardner, an individual (Gardner), on behalf of herself
and Marilyn J. McKinney, also an individual (McKin-
ney). The complaint issued 25 February 1985 and was
amended on 13 March 1985. As amended, the complaint
alleges that Fourjay Industries- (Respondent) terminated
Gardner and McKinney because they engaged in pro-
tected concerted activity in violation of Section 8(a)(1)
of the Act. Fourjay, in its timely filed answer, denied the
commission of any unfair labor practices.
The parties were represented at the hearing and af-
forded full opportunity to be heard and to present evi-
dence and argument. Briefs were filed by both the Gen-
eral Counsel and Respondent.
On the entire record in the case, my observation of the
demeanor of the witnesses, and after giving full consider-
ation of the briefs, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation with offices and a
place of business in Dayton, Ohio, has been engaged in
the manufacture and nonretail sale and distribution of
audio speakers and related products. During the past 12
months, a representative period, Respondent, in the
278 NLRB No. 43
FOURJAY INDUSTRIES 277
course and conduct of its business operations , purchased
and received at its Dayton , Ohio facility products,
goods , and materials valued in excess of $50 ,000 directly
from points outside the State of Ohio.
The complaint alleges , the answer admits , and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The two discharges , Marilyn McKinney and Tara
Gardner, were hired by Respondent in September 1979
and April 1980, respectively, both as mold operators. In
September 1983 Gardner quit her job but after 2 months
her supervisor David "Ron" Bicknell called her up and
asked her to return for a couple of weeks because the
Company needed help. Gardner accepted the offer but
then stayed on the job until her discharge in December
1984.1
On 29 March Gardner received her biannual employee
performance review. Her attendance was evaluated as
acceptable and her personal habits as good . The quality
of her work, knowledge of her job, productivity, and at-
titude were all graded outstanding . Her total point score,
71, placed her in the overall category of outstanding.
Under "SUPERVISOR 'S COMMENTS" Bicknell noted, "Tara
has had health problems causing attendance problem.
She is a very good worker ." Bicknell recommended
Gardner for continued employment and for a wage in-
crease which she was awarded 5 April.
McKinney also received her biannual employee per-
formance review on 29 March . Like Gardner, McKin-
ney's attendance was graded acceptable while her per-
sonal habits were graded good . The quality of McKin-
ney's work and her knowledge of her job were evaluated
as very good while her productivity and attitude were
graded outstanding . Her total points were 70, which
placed her as an all round employee in the outstanding
category . Under "SUPERVISOR 'S COMMENTS" Bicknell
noted : "Marilyn's attendance held her score down some.
She is a good operator., She needs to have confidence in
herself. Sometimes her concentration is not real good!
But overall she does a good job."
Bicknell recommended McKinney , like Gardner, for
continued employment and a wage increase which she
subsequently obtained , effective 5 April . Her next review
was scheduled for 1 October.
McKinney's employment performance review was dis-
cussed with her on 6 April. During the discussion Bick-
nell told her that she was doing great work except for
her attendance and told her that he wished that he had
two more like Gardner and her. Apparently noting Bick-
nell's comments about her lack of confidence, McKinney
complained to Bicknell that he was checking her work
too much , always looking over her shoulder, taking parts
out of the press and that this was making her feel inad-
equate, as though she had been doing something wrong.
Bicknell replied that her work was great, that he
checked everyone's work, that she did not have self-con-
fidence, and that she should because she was a good
worker.
On 1 October McKinney received the employee per-
formance review scheduled earlier. This time both her
attendance and personal habits were graded "good," the
highest grade on the form for these categories. She was
evaluated outstanding for the quality of her work,
knowledge of her job, productivity, and attitude. McKin-
ney's points numbered 73 on the October review which
placed her, once again, as an employee, in the outstand-
ing category. Under "SUPERVISOR'S' COMMENTS," Bick-
nell entered, "Marilyn does a good job for me. Keep up
the good work." Once again under "SUPERVISOR'S REC-
OMMENDATION" Bicknell checked the blocks labeled,
"CONTINUED EMPLOYMENT" and "CONSIDERATION FOR
PAY RAISE." The raise was 'subsequently approved and
became'effective 4 October.
Bicknell discussed McKinney's performance review
with her on 5 October. Again he told her that she was
doing good work. By this day, according to Bicknell,
McKinney had gained confidence and, according to
McKinney, she did not have, much to say because Bick-
nell had let up with the close checking of her work.
McKinney testified that she felt that she and Bicknell
had come to an agreement on the subject.
Gardner also received her scheduled performance
review on 1 October. Her attendance was.evaluated as
acceptable and her personal habits as good. The quality
of her work, knowledge of her job, productivity, and at-
tendance were all graded outstanding. Her total point
score, 69, was at the very top of the "Very Good" cate-
gory. Under "supervisor's comments" Bicknell -noted,
"Tara is good at her job. My only criticism is her attend-
ance. She has, had a period of illness." Under "SUPERVI-
SOR'S RECOMMENDATIONS" Bicknell checked the boxes
marked "CONTINUED EMPLOYMENT" and "CONSIDER-
ATION FOR A PAY INCREASE." Gardner accepted her ap-
praisal without comment. Subsequently her raise was ap-
proved effective 4 October. Bicknell testified that Gard-
ner was normally pretty accurate and fairly quick but
had an attendance problem for a good many years, thus
supporting his written appraisal of her.
Bicknell testified that following their October employ-
ee performance review Gardner and McKinney began to
take advantage, of him by stretching and even breaking
the rules governing employees by frequently leaving
their work areas without authorization or reason. He ex-
plained that employees were to make all phone calls or
restroom visits during their 10-minute breaks, one in the
morning and one in the afternoon or during lunchbreak
but that Gardner in particular took far too many breaks.
Bicknell testified further that beginning about 1 Decem-
ber he noticed a ,change in the attitudes of Gardner and
McKinney toward their work. He admitted that they had
been good employees up to this point and though their
attitudes had suddenly changed, he never bothered to ask
either one why their attitudes had changed.
Gardner testified with regard to this period of employ-
ment that employees were in the habit of using the
phones, left their work stations to do so, and that no one
1 Hereafter all dates are in 1984 unless otherwise indicated. was ever criticized, for this. ,Gardner testified with partic-
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ularity that Bicknell never once warned her about using
the phone. Nor is there record evidence that either
McKinney or Gardner was ever warned or criticized for
making phone calls, visiting the restroom, or leaving
their work station prior to the day of their discharge.2
In early November, according to Gardner, while she
was working in the assembly room, Bicknell approached
her and said, "I know I've been going through your
work quite a bit, but its not you. I've just got a lot of
things on my mind." Gardner agreed that Bicknell had,
indeed, been going through her work quite a bit. On sev-
eral occasions, including early November, Bicknell came
up to Gardner, patted her on the back, and said, "Good
job, kid," or "You're one of the best workers I've got."
During November Respondent was producing, among
other products, the SS8-WX, a plastic grill and speaker
which fits into the ceiling. Production employees includ-
ing Gardner were responsible for assembling these SS8-
WXs by placing four paper blocks between the grill and
speaker and having the grill, through chemical reaction,
glued to the speaker by means of these papers. The em-
ployees had to assemble, check, and pack the assembled
speakers, and place their initials or numbers on the boxes
after inspection. There were frequent problems with get-
ting the grills to stay stuck to the speakers and when
such problems arose Gardner would simply use a new
paper to restick the grill to the speaker. All of "the pro-
duction workers including Gardner had trouble with the
SS8-WX product because the gluing papers came off oc-
casionally for all of the employees. This was the appar-
ent reason that Bicknell checked all of the work so close-
ly, i.e., because the SS8's were such a problem. Howev-
er, despite the many problems with production and the
very close inspection of the assembler's work, Gardner
credibly testified that none of her work on the SS8-WX
speakers was faulty and denied that Bicknell ever talked
to her about her work or ever criticized her for the qual-
ity of her work, regardless of how closely he checked it.
According to McKinney, Bicknell's checking out of the
SS8-WX speakers on the production line, in November,
became fanatic as he constantly watched her over her
shoulder as she worked on the pieces. This constant
checking of her work by Bicknell irritated McKinney
just as it had earlier in -the year before Bicknell ceased
his close surveillance of her.
In mid-December Bicknell called Gardner into his
office. He told her that he did not want to make her mad
but that he had to talk to her about her attendance. He
said that other employees felt that he was showing her
favoritism by permitting her to be absent so often. - He
complained that Gardner was missing too many days and
he needed her at work. He said that he recognized that
Gardner had had a lot of problems" but asked her, to'try
to improve her attendance. Though Gardner had missed
a number of days prior to this discussion with Bicknell,
she had always advised him in advance of the necessity
2 On the day of her discharge Bicknell accused Gardner of leaving her
work station four tunes that morning. Gardner stated that she had done
so ,three times for valid reasons and explained that this was due, in part,
because she had started work 2 hours earlier than usual that morning.
a Gardner, had, in fact, suffered several major illnesses as had other
members of her family, thus accounting for her numerous absences.
of her forthcoming absence and following this conversa-
tion she was never absent again.
According to Gardner's testimony, Bicknell's inspec-
tion of her work became even more intense in mid-De-
cember than it had been earlier. Bicknell testified that he
paid no more attention to supervising Gardner and
McKinney than he did to other employees. In any case,
both Gardner and McKinney were extremely annoyed
with Bicknell's approach toward supervision, in particu-
lar his tendancy, in -their view, to minutely check out or
to closely inspect their work and their production. Con-
sequently, just before Christmas, on Friday, December
21, when Bicknell distributed boxes of chocolates to all
of the employees in his department, as was his practice
each holiday season , Gardner decided not to accept the
gift. Rather, she wrote the following note:
Ron:
Thank you very much for the candy but I don't
feel like I really deserve it considering how my
work has been . Thank you anyway.
Merry Christmas
/s/ Tara
The note was clearly meant to be not only a sarcastic re-
jection of Bicknell 's gift but a means of bringing to his
attention Gardner's dissatisfaction with "this way he had
been treating her, going through her work and checking
it so closely" and "making her feel inadequate about her
job."
After writing and, signing the note she showed it to
McKinney and explained her intentions. After reading
the note McKinney stated that she"agreed with its con-
tent, then signed her name to it just below Gardner's.
McKinney testified that she did not accept the ''choco-
lates and signed the note for the same reasons that Gard-
ner had, namely the way Bicknell had been so closely
checking her work. After both employees had signed
their names to the note, Gardner took the two boxes of
chocolates and together with the note placed them on
Bicknell's desk. Then she and McKinney left for the day
and for the Christmas holidays. Bicknell was not present
at the time Gardner placed the note and chocolates on
his desk.
Later, after Gardner and McKinney had left for the
day, Bicknell discovered the chocolates and the note on
his desk. He testified that he did not understand, that the
gifts were personal and not work related, and that by re-
fusing his gifts Gardner and McKinney had hurt his feel-
ings and upset his holidays.
On the first workday after the holidays, 26 December,
while McKinney was at her-work station in the mold de-
partment, Bicknell approached her and asked her why
she had not accepted the chocolates. McKinney replied
that they should discuss the matter in his office rather
than there in the working area. Bicknell started' to walk
away then turned and said, "I want you to know you've
really hurt my feelings." McKinney described Bicknell as
looking angry.
On 27 December Bicknell called Gardner and McKin-
ney into his office. He asked - them . what the problem
FOURJAY INDUSTRIES 279
was, Gardner replied that she did not like the way Bick-
nell was going through her work and checking it so
closely and felt also that she had been singled out by him
to be criticized for her attendance. She explained that
other employees including McKinney had as many ab-
sences as she had. Bicknell then asked McKinney what
her problem was. McKinney replied, "Basically, my
problem is the same as Tara's the way you've been
checking our work."
Thereafter both the subjects of close supervision and
of attendance were discussed. With regard to the former,
the SS8-WX job came up. McKinney had been working
on this product at the time and Bicknell had always been
intense about inspecting the SS8-WX line. She com-
plained that Bicknell checked her work more closely
than he checked the work of other employees and that it
was as though he were trying to find something wrong
with her work. Gardner voiced a similar grievance.
Bicknell explained that there had been problems with the
product and that close inspection was necessary; that the
Company was behind schedule and was working over-
time; that it needed good parts quickly; and that Bicknell
was checking all work to make sure the Company was
sending good parts out . Despite this explanation both
Gardner and McKinney rejected what he had to say on
the matter. They continued to make accusations concern-
ing his checking up on them as though he were looking
for something with' which to find fault. Bicknell testified
that he did not like these accusations ; that it put him on
the defensive and as boss he did not feel as though he
should be put on the defensive.
With regard to the attendance issue Gardner accused
Bicknell of singling her out for a warning when there
were other employees with attendance records as bad as,
or worse than, hers. When she specifically mentioned
McKinney, Bicknell took out McKinney's card and read
it off, noting that she had five excused and two unex-
cused absences. Gardner then named two other employ-
ees and accused Bicknell of being only critical of her at-
tendance and not that of the other employees. Bicknell
stated that her accusation was untrue. He agreed that the
two-named employees did, in fact, have attendance prob-
lems but that he had taken care of those problems. Gard-
ner, however, rejected Bicknell's statement, became emo-
tional, started to cry, and was accusatory, thus putting
Bicknell once again on the defensive which, he testified,
he did not deserve. Finally, amidst the turmoil, Bicknell
stated that he did not think this was going to work out
and that he was going to let Gardner go right then. As
Gardner started toward the door, Bicknell turned to
McKinney and said, "You can go with her!" McKinney
asked, "Am I fired?" and Bicknell replied, "Yes!"
Following the termination of Gardner and McKinney,
on 27 December, Bicknell wrote two memoranda con-
cerning the discharges:
December 27, 1984
After talking to Tara Gardner this morning at
10:12 a.m . in my office, I decided to terminate her
from her job in the molding department. She has
had a very negative attitude towards me in particu-
lar, and her work in general . She has also had a se-
rious absentee record for which she was warned.
She has missed 25 1/2 days this past year plus she
has been tardy 12 times. Recently her work has
been questionable, apparently due to her negative
attitude . She leaves her work station and uses the
phone without permission among other things. In
my opinion her presence was disruptive of the busi-
ness of our department.
/s/ David R. Bicknell
December 27, 1984
Marilyn McKinney was, dismissed at 10:10 this
morning when in my opinion her negative attitude
was disrupting the operation of our department. She
and a co-worker have been disrespectful to me in
particular, and their co-worker in general , by their
negative actions. Marilyn has shown a lack of inter-
est in that she is frequently absent (19 times this
year and tardy 5 times). She resented her work
being checked and stated so. Her work while ade-
quate most of the time was suspicious at others. I
feel her friendship with a co-worker who was also
dismissed led to this unresolvable situation . I defi-
nitely feel that this move was a wise and just deci-
sion on my part after giving it much thought.
/s/ David R. Bicknell
These memoranda were sent to the Ohio Bureau of Em-
ployment Services, apparently on the day of the dis-
charge.
About 1 January 1985 Gardner and McKinney visited
the offices of the Ohio Bureau of Employment Services
to file for unemployment benefits. While there, they
were informed that the bureau had received letters from
Respondent indicating reasons for their discharges. The
following day they were given permission to copy these
letters which turned out to be the above memoranda
written by Bicknell concerning their discharges. With
regard to the content of these memoranda Gardner testi-
fied that Bicknell had never complained to her about at-
titude and the first she had heard about Bicknell's dissat-
isfaction with her attitude was when she read the memo-
randum at the bureau office.
Conclusion
There appears to be no argument that Gardner and
McKinney were indeed terminated on 27 December but
there appears to be some question as to the reason for
their termination. Respondent's brief points out that
Bicknell was concerned about the attitude of Gardner
and McKinney. Gardner testified that she had never
heard anything, about her attitude until she read about it
in Bicknell 's memorandum of 27 December, written after
discharge. There is no inconsistency here. I find that
Bicknell was not concerned with Gardner's attitude until
she and McKinney manifested displeasure with Bicknell
by concertedly rejecting his Christmas gift with a note
indicating unhappiness with the way he chose to closely
supervise their work and then later concertedly made
their determined stand to argue their position at, what
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turned out to be, their exit interview. Indeed, both Gard-
ner's and McKinney's attitudes were evaluated as out-
standing both in March and October. I find, therefore,
that Bicknell's criticism of Gardner's attitude was, in
effect, a dissatisfaction with her insistence upon making
her and her coworkers' grievances known, both through
the rejection note and through the 27 December argu-
mentative discussion about the employees' grievances.
Indeed, he as much as said so in his memorandum of 27
December.4
Respondent's brief notes that the record reflects that
Bicknell was concerned about Gardner's and McKin-
ney's attentiveness, or lack thereof, to their assigned
tasks. Yet, on the day they were fired, the discussion that
took place had nothing to do with the attentiveness of
the terminated employees, but rather with the overatten-
tiveness of Bicknell and his tendancy to so closely super-
vise their work. Nor is there any indication in the record
that Bicknell, before 27 December, ever criticized either
Gardner or McKinney for failure to be attentive to their
assigned tasks. Finally, inattentiveness was never men-
tioned as such in Bicknell's memoranda of 27 December.
I find that inattentiveness was not a true consideration
behind Respondent's decision to terminate Gardner and
McKinney.
Respondent's brief also states that Bicknell was con-
cerned with Gardner's and McKinney's poor attendance
record. This is true. In Gardner's March Employee Per-
formance Review, Bicknell commented, "Tara has health
problems causing attendance problems," then recom-
mended her for a pay increase, which she received. In
Gardner's October Employee Performance Review,
Bicknell commented, "Tara is good at her job. My only
criticism of her is her attendance. She has had a period
of illness," then recommended her for another pay in-
crease, which she received. In mid-December Bicknell
spoke with Gardner once again about her attendance but
took no action against her. Thereafter, Gardner had per-
fect attendance right up to the day of her discharge. In
my opinion, if Bicknell was concerned enough to take
action against Gardner because of her attendance record,
he would have done so at the time he discussed the sub-
ject,with her or earlier, at the time of her performance
reviews, not weeks later, after she had apparently re-
formed.
I find that Gardner and McKinney were quite obvi-
ously dissatisfied with Bicknell's very close supervision
of their work. They voiced their dissatisfaction by con-
certedly refusing the gifts of candy which Bicknell gave
them and by signing the note which pointedly, if some-
what sarcastically, announced their displeasure with his
close supervision. When Bicknell took umbrage at their
action and called them into the office to discuss the
matter, Gardner and McKinney maintained their position
both with regard to the close supervision issue and the
4 G C Exh. 4 "Marilyn McKinney was dismissed at 10 10 this morn-
ing when in my opinion her negative attitude was disrupting the oper-
ation of our department . , She resented her work being checked and
stated so I feel her friendship with a co-worker who was also dis-
missed led to this unreasonable situation " Thus, Bicknell not only object-
ed to the subject matter of their grievance but to the concerted nature of
their pursuing its solution
matter of Bicknell 's alleged singling out of Gardner for
criticism of her attendance record . The more the two
employees argued their position the angrier Bicknell
became, primarily because, as he testified ,- he was put on
the defensive and as boss he did not feel as though he
should be put on the defensive. I find that Bicknell ter-
minated Gardner and McKinney because they concerted-
ly complained about their ' working conditions , that this
concerted activity was protected under the Act and that
by discharging the two employees for the reasons stated,
Respondent violated Section 8(a)(1) of the Act.5 All
other reasons proffered by Respondent for their termina-
tions were pretextual.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative actions de-
signed to effectuate the policies of the Act.
Having found that Respondent unlawfully terminated
Tara Gardner and Marilyn McKinney, I shall recom-
mend that Respondent offer them immediate reinstate-
ment to their former positions or, if such jobs no longer
exist, to substantially equivalent positions, without loss of
seniority or other rights and privileges, discharging, if
necessary, any replacement, and make them whole for
any loss of earnings they may have suffered by reason of
their unlawful terminations, by payment to them of sums
of money equal to the amounts that they normally would
have earned from the date of their termination to the
date of which a bona fide offer of reinstatement is made,
with interest thereon to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).6
CONCLUSIONS OF LAW
1. Respondent is, and at all times material has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by
terminating Tara Gardner and Marilyn McKinney be-
cause they concertedly complained to Respondent re-
garding their working conditions, in order to discourage
employees from engaging in protected concerted activi-
ties, thus interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act.
s Chrysler Credit Corp, 241 NLRB 1079 (1979)
s See generally Psis Plumbing Co, 138 NLRB 716 (1962).
FOURJAY INDUSTRIES
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The Respondent, Fourjay Inudustries Inc., Dayton,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise denying employment to
employees because they concertedly complain about
their working conditions or engage in protected concert-
ed activities.
(b) 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) Offer Tara Gardner and Marilyn McKinney imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered
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
281
as a result of the discrimination against them, in the
manner 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) Remove from its files any reference to the unlawful
discharges of Tara Gardner and Marilyn McKinney and
notify the employees in writing that this has been done
and that the discharges will not be used against them in
any way.
(d) Post at its Dayton, Ohio facility copies of the at-
tached notice marked "Appendix."8 Copies of the notice,
on forms provided by the Regional Director for Region
nine, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
'tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 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 "