American Licorice Co.

National Labor Relations Board - Board Decisions

Jul 27, 1990

299 N.L.R.B. 145 (N.L.R.B. 1990)

AMERICAN LICORICE CO 145
American Licorice Company and Noelia Cornejo.
Case 32-CA-10332
July 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 8, 1989, Administrative Law
Judge Michael D Stevenson issued the attached
decision The General Counsel filed exceptions and
a supporting brief The Respondent filed cross-ex-
ceptions and a brief in support of cross-exceptions
and in opposition to the General Counsel's excep-
tions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings,' and conclusions only to the extent
consistent with this Decision and Order
Noeha Cornejo, the Charging Party, was em-
ployed as a packer by the Respondent from 1983
until she resigned on June 30, 1989 She quit be-
cause the Respondent's night plant manager, Ken-
neth Hamilton, had refused her earlier request to
transfer from the day shift to the night shift (also
called the swing shift) The General Counsel con-
tends that Hamilton denied the requested transfer
in retaliation for Cornejo's participation in protect-
ed concerted activities, and thus violated Section
8(a)(3) and (1) of the Act The General Counsel
also argues that because the unlawful denial of the
transfer caused Cornejo's resignation, she was con-
structively discharged, also in violation of Section
8(a)(3) and (1) The judge agreed with the General
Counsel that the denial of the transfer was unlaw-
ful, but found that Cornejo was not constructively
discharged For the reasons set forth below, we
affirm the judge's finding that Cornejo was unlaw-
fully denied the opportunity to transfer, but we re-
' The Respondent has excepted to certain of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cw
1951) We have carefully examined the record and find no basis for re-
versing the findings
In part III, A,1 of his decision the judge inadvertently stated that
Night Plant Manager Kenneth Hamilton could not recall whether he had
raised his voice during a discussion with employee Ana Azucena In fact,
when asked if he had raised his voice, Hamilton answered, "Not that I
remember" The judge also, in part III, A,4 of his decision, stated that a
faction of employees resented the assignment of a machine operator's job
to employee Linda Stewart The record does not indicate that any such
"faction" existed We correct these inconsequential errors
verse his finding that she was not constructively
discharged
Cornejo had, at times, worked on the swing
shift, most recently from October 1987 until Janu-
ary 1988 In November 1987, Cornejo and other
night-shift employees signed a grievance expressing
dissatisfaction with several conditions on the job,
including allegations that night-shift "floorlady"
Maria Padilla was speeding up the production
line 2 Cornejo drafted the grievance because she
was more proficient in English than the other em-
ployees Seven of the eight women, and four of the
five men, on the night shift signed the grievance
Mercedes Lopez took the grievance to Day-Shift
Shop Stewardess Margie Bntton, 3 who filed it
with Union Business Agent and Vice President
Richard Faletti On December 7, a grievance meet-
ing was held It was attended by Hamilton, Padilla,
Faletti, Cornejo, and nearly all the other employ-
ees who had signed the grievance Cornejo trans-
lated, and also participated to a significant extent in
the substance of the discussions 4 All issues were
resolved to the satisfaction of the parties
In January 1988, Cornejo and other night-shift
employees were transferred to the day shift 5 Cor-
nejo remained on the day shift until February 1989,
when she went on maternity leave On April 24,
the day before she thought she would be released
by her doctor to return to work, she called Hamil-
ton to request a transfer to the swing shift 6 She in-
formed him that she needed to transfer to the night
shift because she could not afford a babysitter for
her four children, that her former babysitter had
left, 7 that she was worried about safety problems
in her neighborhood, 8 and that she wanted to be
home to take care of her children during the day,
and to work nights when her husband could be
home with the children 9 According to Cornejo's
2 Hamilton testified that Padilla Informed him that Cornejo had also
complained personally to Padilla about the alleged speedup
3 There was no night-shift steward
4 Cornejo, Faleto, and Padilla all testified that Cornejo did most of the
talking at the meeting
5 There is no contention that this transfer was unlawful
°A few days earlier, Cornejo had called the Respondent to request a
transfer to the night shift A secretary initially told her that she could
start to work on the night shift on Apnl 25, but later called Cornejo back
to say that she was not wanted on the night shift Cornejo then called
Adolfo Fernandez, the Respondent's plant manager, and explained why
she had to transfer to the night shift Fernandez called her back and told
her that he had talked to Hamilton, and that Hamilton refused to accept
her on the night shift Cornejo thereupon made her call to Hamilton
7 Cornejo's sister-In-law had lived with Cornejo's family and taken
care of the children until March, when she returned to Mexico
3 A child in the neighborhood recently had been kidnapped
° Cornejo had explained her need to transfer in similar terms to Fer-
nandez
299 NLRB No 22
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
credited testimony, Hamilton replied that he did
not want her on the night shift because she was a
troublemaker He admitted that he had no com-
plaints about her work, but said that 5 years ago
when she was on the swing shift, she had caused
problems, and that 2 years ago she had caused
trouble again Cornejo responded that Hamilton
had not even been on the swing shift 5 years
before, and that if he was referring to the griev-
ance filed in 1987, nearly all the affected employees
had signed it and she could not understand why he
was picking on her Hamilton then claimed that he
had talked to some of the employees who had
signed the grievance, and that they told him Cor-
nejo had threatened them into signing it Cornejo
replied that she knew that was not true, and hung
up Hamilton did not mention that there were no
openings on the night shift 10
Cornejo never returned to the night shift In-
stead, she used part of her vacation, and then
worked for 2 weeks on the day shift, during which
time she left her children with her mother-in-law,
who was visiting from Mexico 11 Although Cor-
nejo had hoped that something could be done to
enable her to go back on the swing shift, her hopes
were unrealized As noted, she finally resigned on
June 30
The judge found that Cornejo had engaged in
protected concerted activity, that her participation
was known to the Respondent, 12 and that her pro-
tected activities were a motivating factor in Hamil-
ton's decision to deny her request for a transfer He
also rejected as pretextual the Respondent's conten-
tion that the only reason Hamilton denied the
transfer was that Cornejo had been a "troublemak-
er" in other respects, unrelated to her protected ac-
tivities We affirm the judge's findings, but only for
the following reasons
It is undisputed that the Respondent knew that
Cornejo had signed the 1987 grievance and that
she had taken part in the meeting in which the
issues addressed in the grievance were discussed
and resolved The Respondent contends, however,
that there is no evidence that it knew that Cornejo
1 ° Hamilton admitted having called Cornejo a troublemaker, but
denied having told her that she was a troublemaker because she had
threatened other employees Into signing the grievance He further ac-
knowledged that no one had told him, prior to his telephone conversa-
tion with Cornejo, that Cornejo had made such threats
" Cornejo testified that her mother-In-law was unwilling to keep the
children any longer
" The judge based his findings in part on an incident in 1984, in which
Cornejo and others had signed a petition protesting the layoff of another
employee from the night shift Applying the "small plant doctrine," the
judge found that the Respondent knew of Cornejo's involvement We
find it unnecessary to rely on the judge's analysis or his findings concern-
ing the Respondent's knowledge of Cornejo's actions in this respect Our
analysis is based entirely on the Respondent's actions taken against Cor-
nejo as a result of her participation in the 1987 grievance
was involved in the grievance to any greater
degree than the other night-shift employees, none
of whom were disciplined or otherwise retaliated
against for their role in the gnevance It follows,
according to the Respondent, that the judge erred
in finding that Cornejo was retaliated against for
her participation in the grievance, particularly be-
cause all the issues addressed were resolved to the
satisfaction of all concerned We find no ment in
that argument
There is ample evidence in the record that the
Respondent knew or believed that Cornejo was
one of the ringleaders, and possibly the principal
driving force, behind the 1987 grievance Accord-
ing to Hamilton, Cornejo complained individually
to Padilla about the alleged speedup of the produc-
tion line, and Padilla informed Hamilton about
Cornejo's complaint, which was also one of the
four subjects of the grievance Although Hamilton
denied having known that Cornejo was the author
of the grievance," Padilla testified that everybody
knew that that was the case Cornejo testified that,
at the grievance meeting, she not only translated
but contested both Hamilton's and Padilla's conten-
tions concerning the alleged speedup, complained
that employees were assigned to do more than one
job, and questioned Padilla about why she had
moved an employee from one position to another
Moreover, according to the credited testimony,
Hamilton indicated to Cornejo that he considered
her a "troublemaker" because he had received re-
ports that she had threatened other employees into
signing the grievance 14 Whether or not Cornejo
actually made such threats, 15 Hamilton's statement
" Faletti also testified that he had not known that Cornejo had wntten
the grievance
i4 testified that when he uses the word "troublemaker" he
means "someone that interrupts the norm with people, that Interrupts the
norm with operations, that creates inefficiencies" Although he explained
that when he used the term with reference to Cornejo, he meant that she
was argumentative, intimidated other employees, and did not have the
Company's best interests at heart (among other things), he also admitted
on cross•examination that the December 7 grievance meeting "pretty
much interrupted the norm" Further insight Into what Hamilton consid-
ers "troublemaking" is found in employee Ana Azucena's credited ac-
count of a meeting she had with Hamilton a few days before the gnev-
ance meeting Hamilton asked Azucena if she had signed the grievance,
and she replied that she had He then asked what her complaint was, and
she told him about the speedup of the machines Hamilton became upset,
said that "this is my job," and asked her why the employees were caus-
ing problems, since in 2 weeks they were going to work on the day shift
" The judge did not determine whether Cornejo made the alleged
threats Cornejo denied having made them Padilla testified that one em-
ployee, Socorro Rubi, had told her that she had signed the grievance be-
cause she was afraid Cornejo would do something to her if she did not,
Padilla denied telling Hamilton of this conversation Rubl, called as a re-
buttal witness, denied that Cornejo had threatened her, and claimed that
all the employees had signed voluntarily In any event, the Respondent
does not defend Hamilton s refusal to grant the requested transfer on the
ground that Cornejo had threatened employees into signing the gnev-
ance, Indeed, Hamilton denied knowing anything about the alleged
Continued
AMERICAN LICORICE CO 147
establishes that, even if he did not know that she
had written the grievance, he believed that she was
one of its active promoters because she was in-
volved in attempting to persuade the swingshift
employees to sign it 16 On the basis of all the fore-
going, then, we reject the Respondent's contention
that it had no knowledge that Cornejo was in-
volved in the 1987 grievance to a greater extent
than most other night-shift employees 17
The judge also found that on April 7, 1989, the
Respondent had transferred employee I Ramos
from the day shift to the night shift, and that its
failure to honor Cornejo's request for a similar
transfer constituted disparate treatment of her in re-
taliation for her protected activities We do not
rely on this finding, because there is no indication
in the record that Ramos was transferred at his
own request and not at the Respondent's initiative
We nonetheless agree with the judge that the Re-
spondent engaged in disparate treatment of Cor-
nejo Hamilton admitted that it is the Respondent's
practice to accommodate a day-shift employee's re-
quest to transfer to the night shift if there is an
opening on the night shift The Respondent's de-
parture from that policy in Cornejo's case, in retal-
iation for her protected activities, is sufficient evi-
dence of its intent to discnmmate against her
The Respondent argues, however, that the judge
erroneously rejected its contention, based on Ham-
ilton's testimony, that there were no openings on
the swing shift on April 24, when Cornejo applied
for a transfer It argues, contrary to the judge, that
a list of all employees hired or transferred into the
night shift since March 1, 1989 (G C Exh 6) con-
tains no evidence of a vacancy on the night shift
on April 24 We find no merit in that argument To
begin with, even if no night-shift vacancy existed
on April 24, the credited testimony indicates that
Hamilton did not rely on that fact when he denied
Cornejo's request Also, that no vacancies for Apnl
24 appear on the list relied on by the Respondent
does not belie the judge's finding, because that list
threats at the time he made the decision Thus, we need not consider
whether the Respondent properly could have denied Cornejo the transfer
on that ground Cf NLRB v Burnup & Suns, 379 U S 21 (1964)
1 ° In adopting the judge's finding, we do not mean to suggest that
"troublemaker," when used by employers, necessarily means one who en-
gages in protected activities See, e g, Guarantee Savings & Loan, 274
NLRB 676, 679 (1985) We agree with the judge, however, that the cred-
ited testimony establishes that Hamilton used the term in that sense
" The Respondent also argues that we should not find Cornejo's pro-
tected activities to have been a factor in the denial of the transfer because
those activities were remote in time (roughly 17 months before the trans-
fer was denied) We reject that argument, and note that the actions on
the part of Cornejo that Hamilton claims to have relied on in denying her
transfer were even more remote in time than the 1987 gnevance See
below, fn 19 and last par of sec I of this decision Further, as noted
above, the credited testimony shows that Hamilton specifically relied on
Cornejo's Involvement in the 1987 grievance when he rejected her re-
quest to work on the night shift
indicates only the dates of employment actions
(e g, hires, transfers, resignations), it does not pur-
port to be a list of vacancies or the dates when va-
cancies developed Finally, and significantly, the
list does establish that four employees were hired
as packers on the swing shift between May 17 and
22, after Cornejo had made her request for a trans-
fer and well before she resigned Thus, even if
there were no vacancies on the night shift on (April
24, there clearly were at least four such vacancies
afterwards, any one of which Cornejo could have
filled 18
We further affirm the judge's finding that the
Respondent's asserted nondiscnmmatory reasons
for refusing to allow Cornejo to transfer to the
swing shift were pretextual In so finding, we note,
as the judge did, that Cornejo was never disci-
plined for any of the actions the Respondent now
asserts as the basis for the denial of her transfer re-
quest 19 Moreover, all Cornejo's actions on which
the Respondent claims it relied occurred before
October 1987, when she was returned to the night
shift 20 The Respondent thus condoned her actions
not only by failing to discipline her, but by putting
her on the night shift in 1987 despite her record of
behavior, which the Respondent claims rendered
her unsuitable to return to that shift in 1989 Simi-
larly, Hamilton did not reassign Cornejo to a dif-
ferent crew, or take any other action against her,
even after he was told in 1987 that Cornejo alleg-
edly had threatened Padilla, that Padilla allegedly
was frightened of Cornejo, that Cornejo allegedly
had slashed another employee's tire covers, and
that Cornejo had cursed floorlady Nunes 21 That
10 We shall leave to the compliance stage of these proceedings the de-
termination of whether vacancies existed on the night shift at any time
between April 24 and May 17
19 In fact, because Cornejo never was disciplined for a threat she alleg-
edly made to Padilla in 1983, the judge disbelieved Padilla's testimony
that the threat was made The judge thus found that this action, which
Hamilton claimed to have relied on in denying Cornejo's request for a
transfer, never happened
20 The extent of the Respondent's actual knowledge of Cornejo's ac-
tions before 1987 is not clear from the record Hamilton, who became
night plant manager in 1986 or 1987, testified that he was told about most
of the problems Cornejo allegedly had caused only after she had returned
to the night shift in 1987 The "floorladies" who testified about their
problems with Cornejo are not statutory supervisors, and evidently did
not inform Hamilton or Fernandez (both admitted supervisors) about
most of those problems Both floorladies Maxine Kenney and Beverly
Nunes, however, testified that they informed Fernandez immediately
about one Incident in 1983 in which Cornejo caused such a disturbance
on the job (including cursing Nunes) that production had to be stopped
so that the floorladies could sort the situation out Hamilton testified that
he learned of this incident in early or mid-1987, apparently before Cor-
nejo returned to the night shift in October 1987
2i testimony, which the Respondent appears to adopt, was
that it is the Respondent's policy, when confronted with an employee
who has a problem on one crew, to assign the employee to a different
crew, instead of imposing discipline The judge made no finding concern-
ing this matter
Continued
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hamilton took not even the minimal action of reas-
signing Cornejo in 1987, when to do so apparently
would not have discommoded her, and yet refused
her request for a transfer in 1989 when to do so
almost inevitably would force her to resign (see
part II, below), further convinces us that the Ham-
ilton's asserted reasons for his action were pretex-
tual 22
II
Although he found that the Respondent had un-
lawfully denied Cornejo's request to transfer, in re-
taliation for her protected activities, the judge
found that she was not constructively discharged
He reasoned that Cornejo's child care burdens23
were essentially personal and not work related, be-
cause her working conditions on the day and night
shifts were essentially the same He also found that
neither Hamilton nor anyone else had intended to
cause a change m Cornejo's working conditions so
difficult or unpleasant as to force her to resign He
found, instead, that Hamilton wished only to pre-
vent Comejo's return to the night shift, it was im-
material to Hamilton whether she worked on the
day shift or quit We reverse
As the judge noted, the standards for finding a
constructive discharge are
First, the burdens imposed upon the employee
must cause, and be intended to cause, a change
in his working conditions so difficult or un-
pleasant as to force him to resign Second, it
must be shown that those burdens were im-
posed because of the employee's union activi-
ties
Crystal Princeton Refining Co, 222 NLRB 1068,
1069 (1976) The judge erred, however, in finding
that, because conditions were the same on the day
and night shifts, the burdens placed on Cornejo by
the Respondent's refusal to transfer her were essen-
tially personal and not work related, and that they
therefore were outside the rule of Crystal Princeton
It is true that, in nearly every case in which a
constructive discharge is found to have taken
place, the employer has changed the employee's
working conditions for the worse to such a degree
As we have noted, Cornejo was transferred to the day shift in January
1988 That transfer, however, appears to have been routine, and the Re-
spondent does not contend otherwise
22 Because the Respondent's proffered nondiscriminatory reasons for
denying Cornejo's transfer have been found to be pretextual—te , they
either did not exist or were not, in fact, relied on—the Respondent's con-
tention that It did not violate Sec 8(a)(3) because It would have taken the
same action even absent her protected activity, Wright Line, 251 NLRB
1083 (1980), is devoid of merit Limestone Apparel Corp, 255 NLRB 722
(1981), enfd 705 F 2d 799 (6th Cu . 1982)
22 The judge credited Cornejo's testimony regarding the cost and
availability of child care
that the employee is forced to resign 24 We do not
believe, however, that the Crystal Princeton test can
be read so narrowly as to apply only when an em-
ployer has changed an employee's working condi-
tions 25 In St Joseph's Hospital, 247 NLRB 869,
873, 880 (1980), an employee who openly support-
ed the union requested a reduction in working
hours because she had enrolled in college The em-
ployer denied the request in retaliation for the em-
ployee's union activities, and the employee re-
signed The Board adopted the judge's finding that
the employee had been constructively discharged,
even though the employer had not changed her
working conditions, but had only refused to grant
her request for a change in hours that would have
enabled her to accommodate personal, nonwork-re-
lated burdens similar to those assumed by Cornejo
The same result must be reached here Cornejo
had a problem that prevented her from continuing
to work on the day shift She informed Hamilton
of the nature of the problem, and told him that she
needed to transfer to the night shift as a result The
Respondent could have accommodated her request,
at least by May 17, but refused to do so for unlaw-
ful reasons, even though it reasonably should have
foreseen tilt its decision would force her to quit
In these circumstances, a constructive discharge
may properly be found We see no distinction in
principle between transferring an employee to a
less desirable shift, and refusing to allow her to
transfer from a shift on which she can no longer
work to one on which she could (assummg posi-
tions on the latter are available which she is able to
fill) In either instance, if the employer's action is
taken for unlawful reasons and forces the employee
to resign, a constructive discharge has occurred
The judge also erred in finding that Cornejo was
not constructively discharged because Hamilton
did not specifically intend to cause her to resign,
but only wanted to keep her off the night shift
Contrary to the judge, the test for intent is not lim-
ited to whether the employer specifically intended
to cause the employee to quit, but includes wheth-
er, under the circumstances, the employer reason-
ably should have foreseen that its action would
have that result Keller Mfg Co, 237 NLRB 712,
723 (1978) 26 We find that this test has been met in
54 See, for example, Manufacturing Services, 295 NLRB 254 (1989) (dis-
criminatory transfer to different shift), Bennett Packaging Co, 285 NLRB
602 (1987) (change in starting time)
25 In any event, by departing from Its usual policy of permitting em-
ployees to transfer from one shift to the other when vacancies exist, the
Respondent did change Cornejo's working conditions
26 This is simply an example of the general principle that one is pre-
sumed to Intend the natural and probable consequences of his acts
AMERICAN LICORICE CO 149
this case Cornejo informed Hamilton that she
needed to transfer to the night shift because she
could not afford a babysitter for her four chil-
dren," that her former babysitter had left, that she
was concerned about problems in her neighbor-
hood, and that she needed to go on the swing shift
so that she could take care of her children during
the day Possessed of that information (which he
apparently did not dispute) Hamilton reasonably
should have foreseen that his refusal to grant Cor-
nejo's request would force her to resign That he
was, subjectively, indifferent to that result is beside
the point
For the foregoing reasons, we reverse the judge
and find that the Respondent constructively dis-
charged Cornejo, in violation of Section 8(a)(3)
and (1) We shall modify the judge's recommended
Order to provide that she be reinstated, on the
night shift if she still so desires, and that she be
made whole from the date of the discrimination to
the date of her reinstatement, as provided in F W
Woolworth Go, 90 NLRB 289 (1950), with interest
as provided in New Horizons for the Retarded, 283
NLRB 1173 (1987)
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
3
"3 By discrimmatonly denying employee Noelia
Cornejo a transfer from the day shift to the night
shift beginning April 25, 1989, and by constructive-
ly dischargmg her, because of her concerted pro-
tected activities, the Respondent has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act"
ORDER
The National Labor Relations Board orders that
the Respondent, American Licorice Company,
Union City, California, its officers, agents, succes-
sors, and assigns, shall take the actions set forth in
the Order as modified
1 Substitute the following for paragraph 1(a)
"(a) Denying employees transfers to different
shifts, constructively discharging them, or other-
wise discriminating against them because of their
union or other protected concerted activities"
2 Substitute the following for paragraph 2(a)
"(a) Offer Noelia Cornejo immediate and full re-
instatement to her former job or, if that job no
27 Although the Respondent makes much of the fact that Cornejo did
not look for another babysitter (other than to ascertain that her neighbor,
who was a licensed babysitter, could not care for the Cornejo children),
it apparently does not dispute her pnnmpal contention, which was cred-
ited by the judge, that she could not afford a sitter in any case
longer exists, to a substantially equivalent position,
in either case on the night shift if she so requests,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole, with interest, for any loss of earnings
and other benefits suffered as a result of the dis-
crimination against her in the manner set forth in
the Decision and Order"
3 Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly
"(b) Remove from its files any reference to Cor-
nejo's unlawful discharge, and notify her in writing
that this has been done and that the discharge will
not be used against her in any way"
4 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discnmmate against you by deny-
ing transfers to different shifts, or constructively
discharge, you, because of your union or other pro-
tected concerted activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Noeha Cornejo immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, in either case on the night shift if she so re-
quests, without prejudice to her seniority or any
other rights or privileges previously enjoyed, and
WE WILL make her whole for any loss of earnings
and other benefits suffered by her as a result of the
discrimination against her, plus interest
WE WILL notify Cornejo, in writing, that we
have removed from our files any reference to her
discharge and that the discharge will not be used
against her in any way
AMERICAN LICORICE COMPANY,
Valerie Hardy-Mahoney,-Esq , for the General Counsel
Steven Thomas Davenport, Jr. Esq (Finkle, Davenport &
Barsamtan), of Walnut Creek, California, for the Re-
spondent
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
MICHAEL D STEVENSON, Administrative Law Judge
This case was tried before me at Oakland, California on
August 21 and 24, 1989, 1 pursuant to a complaint issued
by the Regional Director for the National Labor Rela-
tions Board for Region 32 on June 23, and which is
based on a charge filed by Noeha Cornejo, an individual
(Cornejo), on May 15 The complaint alleges that Ameri-
can Licorice Company (Respondent), has engaged in
certain violations of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act)
Issues
Whether Respondent refused to permit its employee
Cornejo, to transfer from the day shift to the night shift,
because Cornejo circulated an employee petition con-
cerning work-related problems and/or because Cornejo
filed a grievance, or because Cornejo engaged in other
protected concerted activities
If Respondent refused the transfer for the reasons cited
above, whether such refusal constituted a constructive
discharge or layoff
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and to cross-
examine witnesses, to argue orally, and to file briefs
Briefs, which have been carefully considered, were filed
on behalf of General Counsel and Respondent
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent admits that it is a California corporation
engaged in the manufacture and wholesale distribution of
licorice and licorice candy products and that it is located
in Union City, California It further admits that dunng
the past year, in the course and conduct of its business, it
has sold and shipped goods or provided services valued
in excess of $50,000 directly to customers located outside
the State of California Accordingly, it admits, and I
find, that it is an employer engaged in commerce and is a
business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Bakery, Confec-
tionery and Tobacco Workers International Union, Local
125, AFL-CIO, (the Union), is a labor organization
within the meaning of the Act
'All dates herein refer to 1989 unless otherwise indicated
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
1 Background
On June 30, Charging Party 2 Noeha Cornejo resigned
her position as a packer with Respondent On the resig-
nation form, Cornejo wrote as the reason for her resigna-
tion
American Licorice Company has denied me avail-
able employment on the evening shift because of a
grievance which was filed by 12 employees includ-
ing me against the swing shift manager and floor-
lady concerning work related problems This oc-
curred over two years ago [G C Exh 2]
To examine the facts and circumstances surrounding this
resignation, I turn to the record
Respondent's production workers have been represent-
ed by the Union since 1973 In 1977, the Union struck
Respondent for approximately 5 weeks Since that time
relations between Respondent and the Union were char-
acterized as good, by Richard Faletti, vice president and
business agent for the Union and witness at hearing
Over the years vanous collective-bargaining agreements
have been negotiated and during all times material to this
case, one or more labor agreements have been in force
and effect No collective-bargaining agreement, past or
present, has contained a provision dealing with the right
of employees to transfer between shifts The bargaining
agreement does provide for the resolution of grievances
and one or two union shop stewards have been designat-
ed to assist employees in the preparation and filing of
gnevances 3 No shop steward is employed on the night
shift sometimes called the swing shift
In early March 1983, Cornejo was hired as a packer
for the night shift Currently, the night shift operates be-
tween 4 30 p m and 1 a m During Cornejo's tenure with
Respondent, she experienced occasional layoffs in the fall
months of the year which are Respondent's slow time
After Cornejo returned from the first such layoff in
February 1984, the floorlady with whom she worked
had changed Floorladies were in charge of the night
shift until late 1985 or early 1986 when Kenneth Hamil-
ton became night plant manager A lengthy witness at
hearing, Hamilton is a statutory supervisor who made
the ultimate decision to deny Cornejo's request for trans-
fer to the night shift Before arnval at the Union City
plant, Hamilton had worked about 12 years at a second
Respondent plant in San Francisco Employed there as a
technical manager, meaning supervisor of safety, quality
control, sanitation and hazardous material, Hamilton
2 Transcript page numbers skip from p 465 to 486 General Counsel
should determine whether the Board may have been Inadvertently
charged by the Court Reporter for the missing pages, and if so, should
take appropnate corrective measures It does not appear that any material
has been omitted from the transcript
3 After December 7, 1987, the date of a gnevance hearing described
below, Cornejo applied to the Union for appointment as a union steward,
but was turned down
AMERICAN LICORICE CO 151
transferred to the Union City plant night shift after the
San Francisco plant closed
s Unlike Hamilton, the floorladies are members of the
bargaining unit and are not statutory supervisors More
akin to lead persons, at least one floorlady continued
working on the night shift even after Hamilton's arrival
Cornejo first worked with floorlady Maxine Kenny,
who started with Respondent in 1976 at the San Francis-
co plant Kenny testified at the hearing, and in general I
found her to be a mature and credible witness who
played only a tangential role in the events in questions,
In any event, Cornejo's first experience in working with
Kenny was uneventful
When Cornejo returned from her first layoff in Febru-
ary 1984, floorlady Maria Padilla had replaced Kenny
Since 1977, Padilla had worked for Respondent on the
day shift At first all went well and Cornejo and Padilla
became friends Sometime m 1984, acting on orders from
plant manager Adolfo Fernandez, Padilla caused the
layoff of Comejo's friend and coworker on the night
shift named Lidia Garza What happened next is sharply
disputed Padilla testified that on the night Garza was
laid off, about 12 30 a m, Cornejo and a coworker
named Diaz confronted Padilla Cornejo allegedly began
hitting her fist into the palm of her other hand and stated
"Maria, you have to be careful as you're going to pay
for this"
Cornejo denied the gesture and the remarks, but did
admit to circulating a petition among the bargaining unit
menbers protesting Garza's layoff Several persons, in-
cluding Cornejo herself, signed the petition Although
the record is not clear what became of this petition, I
find, contrary to Padilla's testimony, that Padilla was
aware of its circulation As basis for this finding, I note
that between 12 to 15 women worked on the night-shift
packing line and were involved with the petition Under
the "small plant" doctnne,4 this small group together
with the small area in which they, together with Padilla
worked, raises an inference that Padilla must have been
aware of the concerted protected activity
Padilla testified that she reported Cornejo's remarks
and gestures to Fernandez and to Dolores Valle, a senior
floorlady Fernandez, Valle and Diaz failed to testify
Because Cornejo was never disciplined for her activities,
I do not believe Padilla that Cornejo made the gestures
or remarks attnbuted to her
Shortly after the Garza matter, someone put sugar in
the gas tank of Padilla's car This was reported to the
police who investigated the matter No one was ever ac-
cused of this cnminal act However, Padilla testified that
an employee named Dolores Loza told Padilla that Loza
had heard Cornejo remarking to a group of female em-
ployees in the ladies' room during a break that Cornejo
said she didn't put the sugar in the gas tank, but she
could cut four tires with a knife A short time later an-
other employee named Filomena Zamora allegedly told
Padilla that Cornejo had cut the tire covers of an em-
ployee named Linda Stewart In disregarding all of this
4 Coral Gables Convalescent Home, 234 NLRB 1198 (1978), enfd mem
588 F 2d 826 (5th Cif 1979), Clark & Wilkins Industries v NLRB, 887
F 2d 308 fn 10 (D C Or 1989)
testimony, I note that Loza, Zamora, and Stewart did
not testify Loza is no longer employed by Respondent
and Zamora was on vacation at the time of the hearing
So far as the record shows, Respon, an made no attempt
to secure the attendance of any of these persons nor to
continue the matter until Zamora returned from vaca-
tion
In January 1985, after returning from a 2-or 3- month
layoff, Cornejo had accumulated sufficient seniority to
opt for a day-shift position where she reported to floor-
lady Valle Then in October 1987, at a time when she
had customarily been laid off, Cornejo was transferred
back to the night shift where Padilla continued her job
as floorlady Relations between the two women again
went well for awhile However Padilla claimed to over-
hear Cornejo say in the ladies' room that she hated to
work with Maria Cornejo denied this remark and none
of the employees to whom it was made corroborated Pa-
dilla's testimony I credit Comejo's denial
In November 1987, Cornejo drafted m English a griev-
ance Apparently prepared in the form of a petition, the
grievance could not be located at the time of hearing
However, all agree generally on its four-part content
that Padilla caused the candy line to speed up, that em-
ployees were assigned work outside their classification,
that male employees were sometimes assigned to the pro-
duction line in place of absent females, and that inad-
equate numbers of employees were expected to perform
too much work, due to the reluctance of Respondent to
recall sufficient employees from layoff
With Cornejo translating the grievance for the mostly
Spanish-speaking employees, almost all affected employ-
ees signed it It was then presented to the day-shift shop
steward Margie Bnttan, who in turn transmitted the doc-
ument to Faletti
On December 7, a formal grievance meeting was held
about 4 p m in Respondent's lunch area A few minutes
before the meeting began, Hamilton called into his office
a Spanish-speaking employee named Ana Azucena The
only other person present was Padilla who acted as in-
terpreter Hamilton asked Azucena if she had signed the
grievance and she admitted that she had He then asked
Azucena what the problem was According to Hamilton,
Azucena "clammed up" and refused to answer He
couldn't recall if he raised his voice while meeting with
her
According to Azucena, she answered Hamilton that
Padilla had speeded up the machines Padilla, denied this,
as she was interpreting At one point, Hamilton became
upset and indicated the petition was infringing on his job
Azucena admitted that she couldn't tell if Padilla was in-
terpreting correctly I credit her account of the meeting
Hamilton admitted calling a second petition-signer
named Tony Delgado into his office to ask him the same
questions he asked Azucena Delgado refused to answer
questions until the public grievance hearing and did not
testify in this case
Once the grievance hearing began, Respondent was
represented by Hamilton, Fernandez, Padilla, and Valle
All or most of the concerned employees including Cor-
nejo were there Faletti presided over the meeting
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After discussion, all matters were resolved to the satis-
faction of the participants More specifically, Faletti dis-
missed the paragraph relating to the assignment of men
to women's jobs on the grounds that all employees had
equal employment opportunity He also explained to the
persons in attendance that during the slow season, it was
sometimes necessary to assign additional jobs to employ-
ees in lieu of layoffs As to the claimed insufficient
number of employees, Falett found this dispute related
to high absenteeism, about which he could do little Fi-
nally, although Padilla denied that she was responsible
for speeding up the line, Fernandez promised to monitor
the speed of the line to ensure that the day shift and
night shift did equal work No further controversy has
arisen over any of these four matters
Subsequently, Cornejo returned to work as did Padilla
In early December, the latter entered the hospital for
medical treatment In January 1988, before Padilla re-
turned from medical leave, Cornejo was transferred back
to the day shift where she worked until February Cor-
nejo then went on maternity leave for the birth of her
fourth child Cornejo expected to return to work on or
about April 25
2 Cornejo's attempted transfer back to night shift
As Cornejo prepared to return to work, her children's
ages were 7, 5, 3, and the baby A relative had been
watching the children but after the birth of the baby the
relative was no longer available Cornejo believed that
other child care possibilities were too expensive Accord-
ingly, a few weeks before April 25, Cornejo called Re-
spondent's office to request a transfer back to the night
shift The reason for this request was to enable Cornejo's
husband who worked days to watch the children at night
while Cornejo worked After first being told by a com-
pany secretary there would be no problem, a few days
later Cornejo was told by the same secretary that the
transfer was not possible because "they don't want you"
Cornejo next called Fernandez and explained why it
was necessary for her to transfer to the night shift Fer-
nandez promised to look into the matter and call her
back which he did about an hour later Fernandez said
that Hamilton would not accept her on the night shift
and suggested that Cornejo call Hamilton directly to ex-
plain her situation Cornejo did just that
On April 24, Cornejo called Hamilton and explained
her babysittmg problem to him She also mentioned she
was concerned about neighborhood safety due to a
highly publicized child kidnapping which had occurred
near her home Hamilton responded by saying he didn't
want her on the night shift because she was a "trouble-
maker" The remainder of the conversation is sharply
disputed According to Hamilton, he told Cornejo that
while there were no openings on the night shift at the
time, he would consider her for transfer in the future if
she gave assurances that she wouldn't be a troublemaker
To this, Cornejo allegedly responded, "You will have to
check with Maria Padilla" When Hamilton persisted
that he wanted assurances from Cornejo, she concluded
the conversation by saying, "You will be hearing from
me"
Cornejo's version of the conversation includes Hamil-
ton's admission that he had no complaints regarding her
work, but that 5 years ago, Cornejo caused problems and
that 2 years ago, she caused trouble again To this Cor-
nejo responded that "5 years ago you weren't on the
swing shift and 2 years ago, if you are referring to the
grievance, most of the other women and men signed it as
well" Then Hamilton stated that he had heard that Cor-
nejo had threatened some of the women into signing the
petition Cornejo concluded by saying she knew this
wasn't true and then hung up Cornejo denied that Ham-
ilton had said no positions were available or that he
would consider Cornejo for a position in the future if she
promised not to be a troublemaker
I will resolve this major credibility issue, in the Analy-
sis and Conclusions segment of this decision In conclu-
sion of this segment, I note that after talking to Hamil-
ton, Cornejo took 2 weeks' vacation and then returned
to work for 2 weeks on the day shift before resigning
During the final 2 weeks of work, Cornejo made tempo-
rary arrangements for child care with a relative
3 Respondent's transfer policy
Subject to seasonal variations, Respondent employs ap-
proximately 150 employees on the day shift and 70 on
the night shift As noted above, the labor agreement does
not deal with transfers between the day and night shift
However, by looking at Respondent's custom and prac-
tice, it is possible to ascertain a policy regarding shift
transfers
Generally, Respondent begins recalling its laid-off em-
ployees m the spring of each year, the beginning of its
busy season Most of these recalled employees are as-
signed to the night shift and then by seniority those from
the night shift who wish to transfer to days for available
openings are permitted to do so Few, if any, day-shift
employees are interested in working nights, so it is neces-
sary to hire from outside for a vacancy On the other
hand, generally if there is room on the night shift and a
day-shift employee desired to transfer, the transfer would
be granted (Tr 10)
General Counsel offered an exhibit admitted into evi-
dence by stipulation of the parties This document con-
tained a list of 23 employees designated by a check mark,
who have held positions on the night shift since March
1 (G C Exh 6) According to this list, most persons
placed on the night shift were new employees and a few
were rehired apparently from layoff status A single
person, I Ramos, transferred from the day shift to nights
on April 7
4 Additional Facts Regarding Cornejo's Behavior
at Work
During 1983 and 1984, Beverly Nunes was the floor-
lady on nights Now a production worker on the day
shift, Nunes was called as a witness by Respondent to
describe her experiences with Cornejo Sometime during
the time she was floorlady, Nunes awarded a desirable
machine operator job to an employe named Linda Stew-
art A faction of employees led by Cornejo, some of
whom had greater seniority than Stewart, resented the
AMERICAN LICORICE CO 153
s..
job assignment This led to an overt dispute apparently
triggered when an employee named Filomena Zamora
received conflicting job directions from Nunes, her right-
ful supervisor, and from Cornejo, her de facto leader
Zamora reacted to this conflict by sitting down on the
floor and crying Cornejo seized the moment to attack
Nunes verbally, by saying, "You did it now bitch Go
back where you belong, and mind your own fucking
businessi" At first, Cornejo didn't recall using any ob-
scene language toward Nunes, (Tr 118), but conceded
she might have (Tr 119) I find that she did speak to
Nunes as Nunes testified After Nunes called senior
floorlady Kenny to return to the plant from her home to
restore order in the plant, Nunes complained to her that
Cornejo had used the "F" word toward her
About 7 15 p m Kenny held a group meeting with the
women involved in the dispute Tempers cooled and
eventually all returned to work The following day both
Nunes and Kenny reported their versions of the incident
to Fernandez including Cornejo's use of profanity Fer-
nandez, however, took no action
Kenny also testified that Cornejo had a bad attitude
because she frequently complained about job assign-
ments In addition, Cornejo didn't like to help train new
employees and complained about this to Kenny She also
was impatient
According to Faletti, Respondent was very lax in dis-
ciplining its employees Personality problems, he testi-
fied, were normally resolved by transferring the affected
employee to a different crew It is unnecessary to con-
firm or rebut this characterization Instead, I look to cer-
tain General Counsel exhibits obtained from Respond-
ent's files and records The documents relate to discipli-
nary action taken against Respondent employees For ex-
ample, Leticia Vega was terminated after several inci-
dents of harassing other employees and of using abusive
and obscene language toward them (G C Exhs 4(a)-
(m)) Another former employee, George Breffa, behaved
and was treated similarly (G C Exhs 5(a)-(m)) Finally
former employees Lloyd Quartaroh and John Simao
were terminated for bad attitudes and other transgres-
sions (0 C Exhs 3(a)-(d)) All of this is important be-
cause during the hearing, the parties stipulated that there
was no formal or informal record of any discipline in
Cornejo's file (Tr 144) I would expand on the stipula-
tion to find that during the time employed by Respond-
ent, Cornejo was never disciplined for any reason In
fact, Hamilton testified that there is no reason why Cor-
nejo couldn't be hired by Respondent for the day shift
(Fr 351 )
B Analysis and Conclusions
1 Was Cornejo refused a transfer to the night shift
due to her concerted protected activities'?
I begin with the by now familiar analysis required by
Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899
(1st Cir 1981), cert denied 453 U S 989 (1982), ap-
proved in NLRB v Transportation Management Corp,
462 U S 393 (1983) Most commonly applied in cases
where an unlawful discharge is alleged to have occurred,
the Wright Line analysis is equally applicable where an
unlawful refusal to transfer is alleged to have occurred
See, e g, Raymond Engineering, 286 NLRB 1210 (1987)
In order to establish a pnma facie violation of Section
8(a)(1) and (3) of the Act, General Counsel must estab-
lish that protected conduct was a "motivating factor" in
the employer's decision Once this is established, the
burden will shift to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct Wright Line, at 1089
With the Wright Line analysis in mind, I turn to the
record to determine first whether Cornejo engaged in
protected concerted activities In 1984, Cornejo orga-
nized or participated in activities to protest the termina-
tion of a fellow employee Apparently a petition was
prepared, circulated, and signed by Cornejo and other
employees Protest of a lawful discharge is a protected
activity 48 Am Jur 2d Labor & Labor Relations Sec
943 5
More recently, in November 1987, Cornejo again
drafted, participated in, and signed a petition leading to a
more formal grievance hearing on December 7, 1987
Again I find that Cornejo was engaged in protected con-
certed activities In Hawthorne Mazda, 251 NLRB 313,
315 (1980), affd mem 659 F 2d 1089 (9th Cir 1981), the
Board stated,
Section 7 of the Act guarantees employees the
right to engage in concerted activities for the pur-
pose of mutual aid or protection employees
who band together for the purpose of presenting
grievances to their employer are engaged in pro-
tected, concerted activities within the meaning of
Section 7 It follows that an individual employee's
attempt to induce fellow workers to join in a peti-
tion regarding a common grievance is protected ac-
tivity Similarly, an employee engages in protected
activity when he presents to the employer griev-
ances on behalf of other employees [Citations omit-
ted]
During the course of her concerted activities referred
to above and described in the Facts, Cornejo held no
office with the Union and was never a union steward
Although stewards were employed by Respondent, no
steward worked on the night shift In any event, the
Board has held that filing of grievances by employees in
a manner which bypasses the Union is nevertheless pro-
tected conduct Crown Wrecking Co, 222 NLRB 958, 962
(1976)
In finding that General Counsel has established a
prima facie case showing that Comejo's protected con-
certed activities were a motivating factor in Hamilton's
refusal to allow her transfer to the night shift, I note that
Respondent was aware of Cornejo's protected activities
Proof of employer knowledge is shown by the April 24
telephone call between Cornejo and Hamilton In that
call, both participants admit that Namilton referred to
Cornejo as a "troublemaker" This term is frequently
5 See also Meyers Industries, 281 NLRB 882 (1986), affd sub nom Prill
v NLRB, 835 F 2d 1481 (D C Or 1987) Compare Daly Park Nursing
Home, 287 NLRB 710 (1987)
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
used to refer to a person who engages in union or other
protected concerted activities See Guarantee Savings &
Loan, 274 NLRB 676, 679-180 (1985), In United States
Steel Corp, 279 NLRB 16 fn 2, 19-20 (1986), the Board
affirmed the 8(a)(1) and (3) violations found by the ad-
ministrative law judge based on the respondent's refusal
to transfer the discnminatee The Board also noted the
use of the term "troublemaker" in the case and its con-
text, as connoting protected activities by the chscrimma-
tee 6
Returning to the April 24 telephone call, I now credit
Cornejo's version of the remaining part of the conversa-
tion I find no reason to believe that Hamilton told Cor-
nejo that she couldn't be transferred because there were
no openings As a basis for my finding, I note that Re-
spondent never produced any files or records to prove
that no vacancy existed on the night shift at the time in
question Further, during the hearing, Respondent's at-
torney stated,
the problem here is not that she was a trouble-
maker because of any grievances that she filed, but
that she was a troublemaker in many other areas,
and that was why she was not offered the opportuni-
ty to go back to the night shift (Tr 116-17) [Em-
phasis added ]
Still additional reasons exist to credit Cornejo For ex-
ample, an employee named Ramos was transferred from
the day shift to the night shift on April 7, just 2 weeks
before Cornejo talked to Hamilton No explanation of
this transfer was offered Accordingly, I find here evi-
dence of disparate treatment, in that Respondent appar-
ently applied a different standard to an employee it had
identified as a union "troublemaker" compared to other
employes who desired to transfer to the night shift See
Fern Terrace Lodge, 297 NLRB 8, 9 (1989)
Finally, Cornejo was more credible in her version of
the telephone call than was Hamilton
In light of this finding, the remarks made by Hamilton
in the April 24 telephone call constitute an admission by
Respondent's supervisor and agent that the transfer was
being denied due to Cornejo's protected activities in
1984 and 1987 See NLRB v Globe Products Corp, 322
F 2d 694, 696 (4th Cir 1963) 7
I turn briefly to consider the question of Cornejo's dis-
ciplinary record with Respondent None exists To the
extent that the facts as found would indicate that Cor-
nejo could have properly been disciplined, particularly
for her behavior toward floorlady Nunes, I find that Re-
6 Another term frequently used as a code word for a person's protect-
ed concerted activities is to have a "bad attitude" Bronco Wine Co, 256
NLRB 53, 54 (1981) In Virginia Metalcrafiers, 158 NLRB 958, 962
(1966), both "troublemaker" and "bad attitude" were found by the Board
to refer to protected activities In the instant case, Padilla referred to
Cornejo as having a "bad attitude" (Tr 196, 232, 234) Paddla's poor re-
lationship with Cornejo was based in part on the latter's protected activi-
ties and Padilla conveyed her reaction to Hamilton who in turn relied
upon this information in refusing to approve Cornejo's request for trans-
fer
7 Even if I were to credit Hamilton's version of events in part, his re-
quest for assurances from Cornejo that she wouldn't cause trouble in the
future would not be helpful to Respondent's case See John C Mandel
Security Bureau, 202 NLRB 117 (1973) It is clear that Hamilton is really
asking Cornejo to refrain from protected concerted activities
spondent did not really view the conduct as warranting
discipline, and in effect, Respondent condoned the al-
leged misconduct See General Electric Co, 292 NLRB
843 (1989), Dow Chemical Go, 152 NLRB 1150, 1151,
1162-1163 (1965)
Even if Cornejo had been disciplined however, it is
debatable whether said discipline could properly be the
basis for the denial of a transfer to the day shift Thus an
employer may adopt rules to maintain workplace disci-
pline Standard-Coosa-Thatcher Carpet Yarn v NLRB,
691 F 2d 1133, 1141 (4th Cir 1982) Yet Cornejo's con-
duct in protesting the work assignment of a fellow em-
ployee was not "offensive, defamatory or opprobrious"
Arguably, Cornejo's behavior toward Nunes might be
characterized as "intemperate, inflammatory or insult-
ing," which is not sufficient to lose the protection of the
Act Continental Pet Technologies, 291 NLRB (1988)
Since Respondent condoned Cornejo's behavior by
never disciplining her, the above discussion is academic
More to the point, I find that Respondent's reasons for
refusing to transfer Cornejo to the night shift to be pre-
textual rather than dual motivation That is, the reasons
advanced by the employer for refusal of the transfer
either did not exist or were not in fact relied upon, there-
by leaving intact the inference of wrongful motive estab-
lished by the General Counsel Limestone Apparel Corp,
255 NLRB 722 (1981), enfd 705 F 2d 799 (6th Cir
1982)
In summary, I find that Respondent violated Section
8(a)(1) and (3) of the Act by refusing to permit Cornejo
to transfer to the night shift for the reasons offered Ray-
mond Engineering, supra, Lear Siegler, 277 NLRB 782
(1977)
2 Was Cornejo constructively discharged by the
denial of the transfer?
Having found the violation of the act as charged, our
inquiry is not ended Paragraph 6 of the complaint al-
leges that as a result of Respondent denying her transfer
request, Cornejo was forced to quit her job and thus was
unlawfully or constructively terminated I turn to consid-
er this issue
In Manufacturing Services, 295 NLRB 254 (1989), an
employee was transferred mvoluntanly from one depart-
ment to another After finding that the transfer was un-
lawfully motivated, the Board directed its attention to
the question whether the employee's posttransfer resigna-
tion was a constructive discharge The administrative
law judge concluded that the transfer was not converted
to an unlawful constructive discharge, because even as-
suming that the working conditions were more difficult
after the transfer, they were not both "difficult and un-
pleasant," under EDP Medical Computer Systems, 284
NLRB 1232 (1987)
In finding that the administrative law judge had erred
in his application of the test for determining when an
employee has been constructively discharged, the Board
stated as follows
[N]either [EDP Medical] nor its antecedents were
intended to be read as establishing a twofold test for
' AMERICAN LICORICE CO 155
conditions sufficient to create a constructive dis-
charge Thus in Algreco Sportswear Go, 271 NLRB
499, 500 (1984), relied on in EDP Medical, the
Board reiterated the test set forth in Crystal Prince-
ton Refining Go, 222 NLRB 1068, 1069 (1976
First, the burdens imposed upon the employee
must cause, and be intended to cause, a change in
working conditions so difficult or unpleasant as
to force him to resign Second, it must be shown
that those burdens were imposed because of the
employee's union activities [Emphasis added ]
[I]t is necessary to consider all the circumstances
cumulatively including what difficulties ensue from
the transfer and whether the resulting burdens were
intended to and did cause [the employee] to resign
I have credited Cornejo9s testimony regarding the bur-
dens placed upon her with respect to child care For the
following reasons, however, I find that a constructive
discharge did not occur and that Cornejo voluntarily re-
signed her position
First, Cornejo performed essentially the same work
under the same working conditions on both the day shift
and night shift Accordingly, the burdens placed on her
by Respondent's unlawful refusal to transfer were essen-
tially personal, were not directly work-related and were
therefore outside the rule of Crystal Princeton Refining
Go,
More importantly, I find no intent by Hamilton or
anyone else on Respondent's behalf to cause a change in
Cornejo's working conditions so difficult or unpleasant
as to force her to resign In forcing Cornejo to continue
the status quo, Hamilton was motivated only by his
desire to keep Cornejo away from himself and his crew,
because of his belief that she was a "troublemaker"
Whether Cornejo continued to work on the day shift as
she did for a period of 2 weeks after returning from ma-
ternity leave, or whether she quit was completely imma-
terial to Hamilton who desired only not to work with
her on the night shift This is the essential difference be-
tween the instant case and the case of Bennett Packaging,
285 NLRB 602 (1987), cited by General Counsel In Ben-
nett, management changed the starting time for an em-
ployee's work shift for the specific purpose of forcing
her to quit the job due to babysittmg problems I find
that Bennett may be easily distinguished from the instant
case See Avecor, Inc , 296 NLRB 727, 744 (1989)
For the above reasons, I will recommend to the Board
that this segment of the case be dismissed 9
CONCLUSIONS OF LAW
1 American Licorice Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
8 In making this finding, I do not rely on Respondent's resignation
form which in boilerplate language recites "The undersigned employee
acknowledges that termination of employment with our company is vol-
untary"
3 By discnmmatonly denying employee Noelia Cor-
nejo a transfer from the day shift to the night shift begin-
ning April 25 and ending June 27, because of her con-
certed protected activities, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act
4 Other than specifically found herein, Respondent
has engaged in no other unfair labor practices
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act, I will recommend that Respondent be
ordered to cease and desist and to take certain affirma-
tive action to effectuate the policies of the Act Specifi-
cally because I have found that Respondent unlawfully
denied Noeha Cornejo a transfer from the day shift to
the night shift, I will further recommend that Respond-
ent be ordered to make Noeha Cornejo whole for any
loss of eammgs and benefits she suffered as a result of
the discrimination against her from April 24, 1989, to the
date she voluntarily resigned her position, effective June
27, 1989 This ba.ckpay remedy shall be computed in ac-
cordance with F W Woolworth Go, 90 NLRB 289
(1950), with interest computed in the manner prescribed
in New Horizons for the Retarded 9
Last, I will recommend that Respondent be ordered to
cease and desist from in any like or related manner Inter-
fering with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7 of the
Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' °
ORDER
The National Labor Relations Board orders that the
Respondent, American Licorice Company, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Denying employees transfers to the night shift or
otherwise discrimmating against them because of their
union or other protected concerted activities
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Make Noel's Cornejo whole for any loss of earn-
ings and other benefits suffered by her as a result of the
9 In accordance with the Board's decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987,
shall be computed at the "short-term Federal rate" for the underpayment
of taxes as set out in the 1986 amendment to 26 U S C § 6621
''' If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discnmmation against her, in the manner set forth in the
remedy section of this decision
(b) Preserve and on request make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(b) Post at its facility in Union City, California, copies
of the attached nctice marked "Appendix " 1 Copies of
" If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
the notice, on forms provided by the Regional Director
for Region 32, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent in both English and Spanish 12 immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customanly posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
"Bacardi Corp , 296 NLRB 1220, 1221 fn 2(i989)