Shedd'S Food Products

National Labor Relations Board - Board Decisions

Mar 31, 1989

293 N.L.R.B. 584 (N.L.R.B. 1989)

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