Ward Products Corp.

National Labor Relations Board - Board Decisions

Jul 10, 1979

243 N.L.R.B. 354 (N.L.R.B. 1979)

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