Goldtex, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 935 (N.L.R.B. 1992)

935
309 NLRB No. 149
GOLDTEX, INC.
1 On September 29, 1992, Administrative Law Judge Philip P.
McLeod issued the attached decision. The Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Goldtex, Inc. and Amalgamated Clothing and Tex-
tile Workers Union, AFL–CIO–CLC. Cases 11–
CA–14824 and 11–CA–14864
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented here is whether the judge
correctly found that the Respondent violated Section
8(a)(3) and (1) of the Act when it laid off employees
in November 1991.1
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Goldtex, Inc., Goldsboro,
North Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Jasper C. Brown, Jr., Esq., for the General Counsel.
Thomas H. Keim, Jr., Esq. (Edwards, Ballard, Bishio, Sturm,
Clark and Keim, P.A.), of Spartenburg, South Carolina, for
the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Goldsboro, North Carolina, on May 20 and 21, 1992.
The charges which gave rise to this case were filed by Amal-
gamated Clothing and Textile Workers Union, AFL–CIO–
CLC (the Union) against Goldtex, Inc. (Respondent) on Jan-
uary 7 and February 11, 1992. On March 17, 1992, an order
consolidating cases, consolidated complaint and notice of
hearing issued which alleges, inter alia, that Respondent vio-
lated Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act (the Act) by laying off/terminating employees
Johnny F. Gervin, Bobby Richardson, James R. Reid, Bobby
R. Rutter, and Melvin D. Wright because of their activities
on behalf of, or support for, the Union, and because Gervin
testified before an administrative law judge in a related pro-
ceeding before the Board.
In its answer to the consolidated complaint, as amended at
the trial, Respondent admitted certain allegations including
the filing and serving of the charges; its status as an em-
ployer within the meaning of the Act; the status of the Union
as a labor organization within the meaning of the Act; and
the status of certain individuals as supervisors and agents of
Respondent within the meaning of the Act. Respondent de-
nied having engaged in any conduct which would constitute
an unfair labor practice within the meaning of the Act.
At the trial, all parties were represented and afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. At the trial on May 21,
the parties reached a non-Board settlement concerning allega-
tions involving Johnny Gervin. As a result, counsel for Gen-
eral Counsel withdrew allegations that Gervin was laid
off/terminated in violation of Section 8(a)(3) and (4) of the
Act. However, the parties stipulated that while no findings of
violations of the Act would therefore be appropriate, the par-
ties would be allowed to use the evidence relating to
Gervin’s layoff as background evidence for the remaining
issues in the case. Accordingly, Gervin’s layoff/termination
is discussed in full below, but no legal findings or conclu-
sions are drawn regarding Gervin.
Following the close of the trial, counsel for General Coun-
sel and the Respondent both filed timely briefs with me
which have been duly considered.
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Goldtex, Inc. is, and has been at all times material herein,
a Delaware corporation with a plant and warehouse located
at Goldsboro, North Carolina, where it is engaged in dyeing
and finishing woven and knitted fabrics. In the course and
conduct of its business operations, Respondent annually pur-
chases and receives at its North Carolina facility goods and
raw materials valued in excess of $50,000 directly from
points located outside the State of North Carolina. Respond-
ent also annually sells and ships from its North Carolina fa-
cility products valued in excess of $50,000 directly to points
outside the State of North Carolina.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Amalgamated Clothing and Textile Workers Union, AFL–
CIO–CLC is, and has at all times material, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At its Goldsboro, North Carolina facility, Respondent is
engaged in the business of dyeing, printing, and finishing
fabric. It employees approximately 275 to 300 production
and maintenance employees. In December 1989, Respond-
ent’s employees began a campaign to organize and be rep-
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resented by Amalgamated Clothing and Textile Workers
Union, AFL–CIO–CLC. The Union filed a petition for an
election with the Board on January 8, 1990, and an election
was held on March 1, 1990. The Union lost this election by
a substantial margin.
B. Respondent’s Past Practice Concerning Layoffs
In March 1990, approximately 50 employees were laid off
by Respondent. Respondent’s president, Will Hopper, ac-
knowledged that seniority was the criteria utilized in select-
ing employees for this layoff. Further, various employees tes-
tified credibly that several layoffs have occurred in recent
years and that in each of these previous layoffs, seniority
was used as the basis for laying off employees. The record
supports a conclusion that prior to November 1991, layoffs
of employees, regardless of how small or how large, were
treated by Respondent as true layoffs, i.e., temporary in na-
ture, and employees were selected on the basis of seniority.
The record also reflects that prior to the advent of union
activity at Respondent’s facility, Respondent did not have an
employee handbook setting forth rules of conduct and com-
pany policies. In May or June 1990, approximately 3 months
after the Board-conducted election, Respondent implemented
an employee handbook. This handbook is lengthy (29 pages)
and detailed, covering basic policies and procedures, an equal
opportunity policy, a statement on unionism, a drug and alco-
hol policy, policies on paydays, meals, break periods, holi-
days, and vacations, to name only a few. It also describes
a retirement plan, insurance coverage, a promotion policy,
and much more. It sets forth a specific and detailed proce-
dure entitled ‘‘Layoffs And Recall From Layoffs.’’ In order
to give it accurate and adequate consideration, this policy is
quoted in its entirety:
While it is a goal of the Company to provide steady
employment, it may be necessary to adjust or reduce
the workforce to meet current business conditions or
production levels. If this should occur, you will be
given as much advance notice as possible, and we will
try to give you an estimate as to how long a layoff will
last. In the event this occurs, the following criteria will
apply:
1. Employees in a temporary status will be laid off.
2. Employees who wish to take voluntary layoff.
3. If a further reduction is required, regular employ-
ees will be laid off by department and classification de-
pending upon length of service with the Company, pro-
vided the remaining employees can maintain the oper-
ation in a satisfactory manner.
Employees shall be recalled by department and clas-
sification in reverse order from the order of layoff pro-
vided that they can do the work available without addi-
tional training. An employee may stay on layoff status
for six (6) months, or a period of time equal to the
length of their employment, whichever is less.
During any period of layoff, an employee who wish-
es to return to work shall keep their current address and
telephone number on file so the Company can contact
the employee concerning any openings. Failure to con-
tact the Personnel Department within five (5) days or
to report for work within ten (10) days from the post-
mark on the letter of notice of opening may cause the
loss of all seniority standing and opportunity for recall.
Layoffs may cause a loss in group health, life, and
other employee benefits. The benefit booklets furnished
to employees summarize continuation and conversion
rights. Employees should consult the Personnel Depart-
ment if they have questions concerning benefits upon
layoff.
C. The Prior Unfair Labor Practice Case
On November 5 through 8, 1991, a hearing was held be-
fore Administrative Law Judge J. Pargen Robertson involv-
ing allegations that Respondent had engaged in numerous un-
fair labor practices during the organizing campaign. Em-
ployee Johnny Gervin was one of the main employee wit-
nesses called to testify by counsel for General Counsel.
Gervin testified concerning conversations with Supervisor
James Williams about the Union; statements made by Will
Hopper, Respondent’s president, at employee meetings con-
cerning the Union; and a private conversation between him
and Hopper concerning the Union. In each case, Gervin’s
testimony was credited over the testimony of Respondent’s
witnesses, including Hopper. On the basis of Gervin’s testi-
mony, Respondent was found to have threatened employees
that they would be working less hours and that things would
pick up after the Board-conducted election; to have solicited
employees to withdraw their union authorization cards; and
to have promised employees that there would be changes at
Respondent’s facility after the Board-conducted election.
After testifying on November 4, Gervin sat down in the
back of the hearing room. Gervin testified that after he sat
down, he noticed that Respondent’s director of human re-
sources, Dave Parsons, who had been sitting in the hearing
room as Gervin testified, held up a note pad in such a way
that Gervin could see his name on the pad. Employee Mi-
chael Holloway, who was sitting beside Gervin, also noticed
Gervin’s name on Parsons’ note pad. Holloway testified that
he observed other names on the note pad as well, including
his own, but he recalled that Gervin’s name had an ‘‘X’’ be-
side it. Parsons admits he held up a note pad as described
which contained the names of employees, including Gervin’s.
Parsons testified that he was simply helping the court re-
porter, who was sitting several feet away from him, by pro-
viding the court reporter with the names and spelling of the
various witnesses. Parsons denied that he was attempting to
signal to Gervin that his name was on the note pad. Parson’s
testified rather incredibly that he was not even aware Gervin
was in the hearing room at the time.
Just a few days after Gervin testified, on November 13,
Gervin was permanently laid off, i.e., terminated. This matter
is discussed in greater detail below.
In addition to the matters testified to by Gervin, Judge
Robertson found that Respondent interrogated employees
about their union activities; threatened employees with loss
of jobs; prohibited employees from distributing union leaflets
during nonworktime in nonwork areas; threatened employees
that it would be futile to support the Union; threatened em-
ployees that Respondent would close its doors over the
Union; held out to employees that it had reassigned super-
visors because of employee complaints; and told employees
they were not permitted to even speak to one another be-
cause they might be talking about the Union. Judge Robert-
937GOLDTEX, INC.
son also found that Respondent issued warnings to and dis-
charged employees because of their activities on behalf of
the Union and because of testimony they had given to the
Board during the investigation of prior unfair labor practice
charges. Judge Robertson’s decision is now pending before
the Board.
D. The November 1991 Layoffs
On November 13, within 1 week after giving critical testi-
mony against Respondent at the unfair labor practice trial be-
fore Judge Robertson, Johnny Gervin and another employee
were laid off. On November 14, Bobby Rutter, a union sym-
pathizer, and another employee were laid off. On November
18, Bobby Richardson, one of the primary union activists,
and three other employees were laid off. In spite of past
practice, and in spite of the employee handbook, seniority
was not used as the basis for selecting employees who were
laid off. In December 1991, 26 more employees were laid
off. In January 1992, 16 additional employees were laid off.
Again seniority was not used as the basis for selecting em-
ployees who were laid off.
According to Respondent, job performance was the basis
for selecting employees laid off in November and December
1991 and January 1992. This claim is discussed in detail
below. As these layoffs are discussed, it is important to note
that counsel for General Counsel does not contest the eco-
nomic justification or need for layoffs during the late fall and
early winter of 1991–1992. However, counsel for General
Counsel does assert that Respondent discriminatorily selected
employees for layoff and used the occasion of the November
layoff to rid itself of the union adherents. To this extent,
therefore, counsel for General Counsel does contest both the
need for, i.e., the timing of, and the selection process used
in the November layoff.
The record reflects that during 1990 and throughout much
of 1991, Respondent enjoyed a substantial increase in busi-
ness. Respondent hired many new employees. Gradually, Re-
spondent expanded from a three-shift, 6-day-per-week oper-
ation to a four-shift, 7-day-per-week continuous operation.
The print department, color shop, and print finishing depart-
ments converted to this four-shift schedule in September
1990. The preparation, finishing, and inspection departments
were converted to the four-shift schedule in February 1991.
It was not until September 1991 that the dye house depart-
ment went to the same four-shift schedule. Respondent’s em-
ployee complement expanded from approximately 250 em-
ployees in March 1990 to a peak of approximately 330 em-
ployees in September 1991.
During and after August 1991, business orders declined. In
August, Respondent’s largest customer for fabrics produced
in the dye house department ceased all orders. Nevertheless
it was in September 1991 that Respondent expanded the dye
house department to a four-shift operation. Respondent’s
President Will Hopper, Human Resources Director Dave Par-
sons, and Director of Plant Operations Mike Gillespie dis-
cussed whether to keep the full complement of employees
and operate the plant fewer days per week or whether to lay
off employees and return to a three-shift operation. Hopper
testified:
We felt that if we could maintain at least a six day
schedule—which would give the employees thirty-six
hours, that they could sustain that for some reasonable
period of time. Reasonable being that we were trying
to get to the end of the calendar year of ’91 before we
had to do anything more drastic in the hopes that busi-
ness would improve and the economy would im-
prove. . . .
We made a decision that as far as the printing por-
tion of the plant is concerned—the print side of the
plant, that we would try to hold onto our entire work-
force until we reached January of ’92. And, if business
had not have picked up at that point, then we would
go through a curtailment and lay off a shift of employ-
ees. We also had a different situation really in the dye
house where the business—the reduction in business
was more drastic than it had been in the printing busi-
ness.
Right at the time that the dye house got staff for four
shifts, seven days a week—as business was fairly soft,
right at that point and time—in fact in that same month
of August and early September, we lost the biggest cus-
tomer that we had in the dye house. That customer was
responsible for running thirty-five to forty percent of
our total production in that department. We lost that ac-
count . . . in August of ’91.
Nowhere does Respondent offer any evidence of a change
in the level of business or in its operations which neces-
sitated or even precipitated a layoff in November, only days
after the unfair labor practice trial before Judge Robertson.
Whatever drastic business events occurred in the dye house
took place in August 1991. Yet in September 1991 the dye
house was changed to a four-shift operation. Nothing of any
drastic nature occurred between then and the layoff in No-
vember 1991. Hopper himself admits that as early as Sep-
tember 1991 a decision was made to try to maintain the full
complement of employees working a somewhat reduced
schedule until January 1992. Respondent offers no evidence
of any event which might have specifically precipitated the
need for a layoff in November. Other evidence, discussed in
greater detail below, also evidences that the November layoff
occurred quite precipitously.
E. December 1991 and January 1992 Layoffs and
January 1992 New Hires
At some point Respondent began to prepare for the possi-
bility that layoffs would be necessary in early January 1992.
As indicated, Respondent decided not to follow its own lay-
off procedure set forth in the employee handbook. Instead,
it decided to label the anticipated reduction in force as ‘‘per-
manent’’ and to select employees for layoff on the basis of
‘‘job performance.’’ To that end, Respondent had its legal
counsel prepare an evaluation form which could be used to
rate each employee in a quantitative manner. The evaluation
form was supplied to Respondent by counsel in late Novem-
ber 1991. Thus, although Respondent had reason to believe
as early as September 1991 that future layoffs were probable
and although Respondent enlisted counsel to prepare and
provide an evaluation form which would be used to rate all
employees, Respondent nevertheless effectuated the Novem-
ber layoffs even before counsel was able to provide the eval-
uation form. Once again it must be observed that Respondent
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has shown no business justification or need for rushing the
November layoff in this manner.
Once the rating evaluation form was provided to Respond-
ent by counsel, a form was completed for each employee in
the plant. While Parsons admitted that in November, Re-
spondent laid off employees by department, in December
1991 and January 1992 Respondent laid off employees ac-
cording to their individual jobs, with higher evaluated em-
ployees being retained and lesser evaluated employees being
terminated. Hopper admitted that Respondent waited until
January 1992 to reduce the plant from four shifts, 12 hours
per day, to three shifts, 8 hours per day.
Although Respondent chose to label the November and
December 1991 and January 1992 layoffs as ‘‘permanent’’
and therefore terminate employees, the record reflects that
the reduction in force in late 1991 was not so different from
other reductions in force as to make it obvious why Re-
spondent chose to treat it so differently. The March 1990
layoff involved 50 employees. It was essentially the same
size and therefore just as dramatic as the December 1991 and
January 1992 layoffs combined. Nevertheless, seniority was
used for the March 1990 layoff. Indeed, even after that lay-
off, Respondent published its employee handbook in which
it specifically stated that layoffs would be by seniority. Al-
though Respondent suggest that the layoff procedure set forth
in the handbook is limited only to ‘‘temporary layoffs,’’ no-
where does the handbook state or infer any distinction be-
tween temporary and permanent layoffs. Nor has Respondent
shown any particular business reason for treating the Decem-
ber 1991 and January 1992 layoffs as permanent rather tem-
porary as in the past. While Respondent argues that it treated
the layoffs as permanent because it did not know when em-
ployees might be recalled, the layoff procedure spelled out
in the employee handbook specifically anticipates layoffs
which might last up to 6 months. Exhibits introduced by
counsel for General Counsel reflect that as early as February
1992 Respondent began to hire new employees into produc-
tion and maintenance jobs, including jobs in the dye house,
set-making department, and print finishing department. In the
1 month period from March 2 to April 3, 1992, Respondent
hired four new employees to work in dye house jobs. During
the first 4 months of 1992, Respondent hired 22 new em-
ployees, 16 of whom were hired to fill production and main-
tenance jobs.
F. The Choices of Gervin, Rutter, and Richardson
for Layoff
Hopper testified that Respondent used employee ‘‘job per-
formance’’ as the basis for the November layoff. Having said
that, the record nevertheless reflects that it was not job per-
formance but attendance which Respondent relies on for hav-
ing chosen Gervin for layoff. Director of Human Resources
Dave Parsons admitted that Respondent did not notify or
warn the employees prior to implementing the new ‘‘per-
formance’’ layoff criteria. Supposedly Respondent decided to
reduce the number of employees in the dye house. As indi-
cated earlier, Respondent made this decision to lay off by de-
partment although later in December 1991 and January 1992
it laid off employees by individual jobs. Dye house employ-
ees rarely get performance warnings because material which
is misdyed can be bleached and redyed. Therefore, in evalu-
ating dye house employees, Respondent looked at other fac-
tors.
Gervin was employed as a jet operator in the dye house
at the time of his layoff. He had also worked as a set-maker
for 2 years prior to his transfer to the dye house. As argued
by Respondent, Gervin’s attendance was the worst in the de-
partment. Gervin had received two warnings for excessive
absences in 1991. Be that as it may, Gervin was not in a po-
sition in mid-November to be terminated pursuant to Re-
spondent’s attendance policy. According to Respondent,
Frank Lowry, department head of the dye house, reported to
his Supervisor Bill Roberts that one jet machine operator
from each of the four shifts could be eliminated and still
meet production needs. Parsons gave Lowry a list of four
names, supposedly people who were expendable. Only two
of these people, however, Gervin and James Howard, were
actually laid off. The other two jet operators were transferred
to other jobs.
On November 13, Gervin was informed of his layoff by
Supervisor Mike Skipper as Skipper gave Gervin his pay-
check. Gervin testified credibly that as Skipper was giving
him the paycheck, Skipper stated that Respondent should
have moved Gervin back to the set-maker department instead
of laying him off, and that he (Skipper) didn’t understand it.
Skipper acknowledged that Gervin should have been moved
to the set-making department because he had more seniority
than the other employees in this area. It is apparent that Re-
spondent did not even share with supervisors the different
standards it was using to effect the November layoff. This
fact is simply one more indication that Respondent acted pre-
cipitously in making that layoff.
Respondent has offered no compelling reasons why a lay-
off was effected in mid-November 1991, just days after the
unfair labor practice trial before Judge Robertson, why it ig-
nored its own stated policy regarding layoffs, why it chose
to treat those layoffs as permanent unlike layoffs in the past,
or why Respondent was suddenly willing for the first time
to give up not only more senior but more experienced em-
ployees. In short, all of Respondent’s reasons for effecting a
November layoff, or for choosing Gervin, fail to withstand
scrutiny. At every turn the record supports a conclusion that
Respondent hastily decided on the November layoff and used
it as an excuse to rid itself of certain union adherents, par-
ticularly Gervin who had just given damaging testimony
against Respondent in the unfair labor practice trial before
Judge Robertson.
Bobby Rutter, also laid off in November, had been em-
ployed in the print-finishing department for 4 years. Rutter
primarily operated equipment known as the ‘‘Arioli steam-
er,’’ but he was also experienced in the operation of a high-
temp steamer and the rope washer. While Rutter was not par-
ticularly active during the union campaign, he did support
the Union and told his supervisor so. Rutter testified credibly
and without contradiction that during the early part of the
union campaign in 1990, Supervisor Charles Smith ap-
proached him in the work area and asked Rutter how he felt
about the Union. Rutter told Smith that he supported the
Union.
On November 14, Rutter was informed by Supervisor
David Ellis that he was being laid off. Ellis told Rutter that
he had one point, i.e., one performance warning, against him
and that his seniority did not matter. Rutter, who had the sec-
939GOLDTEX, INC.
ond highest seniority in his department, acknowledged that
he had received a written warning in August for defective
cloth. Parsons admitted that there were other employees in
the print-finishing department who had been issued written
warnings during the past year and were not laid off. Indeed,
the record reflects that at least two employees in the print-
finishing department who were junior to Rutter had received
written warnings for running defective cloth, the same thing
for which Rutter received his warning, but were retained.
While Hopper testified that the complexity of the department
and the equipment within the department demanded that em-
ployees who could operate multiple pieces of equipment and
who were the most qualified employees be retained, the
choices of Richardson and Rutter for layoff belie this posi-
tion. In its posttrial brief, Respondent even argues that cer-
tain employees were retained while others were laid off be-
cause those retained were capable of operating equipment
which was not even being used at the time. This argument,
that certain employees were kept because they might be
needed in the future, represents circuitous logic undermining
any layoff decision.
Employee Bobby Richardson was one of the most active
union supporters, and this was well known to Respondent. In
fact, Richardson was prohibited by his supervisor from at-
tending the captive-audience meetings held by corporate
president Hopper during the campaign for the stated reason
Richardson had made up his mind, and so there was no need
for him to go to these meetings. Respondent admits this fact.
Richardson had been employed by Respondent since 1978
and had worked in the print finishing department for 6 years.
He had also worked in the preparation department for 1 year
and in the warehouse for 4 years. Richardson was the most
senior employee in the department at the time he was laid
off/terminated in November. He worked as the exit operator
on the rope-loop machine, a position of considerable respon-
sibility since the person doing this job must check the quality
of the cloth, draft paperwork, and log information into a
computer connected to the machine.
On November 18, Richardson was notified by Supervisor
Ellis that he was being laid off. When Richardson asked
why, Ellis stated that he did not know anything about it and
referred Richardson to Parsons. Richardson testified credibly
that his own immediate supervisor, Furney Jarman, also told
Richardson that he did not know why Respondent was laying
off Richardson, and that Respondent was making a big mis-
take. Again the evidence indicates that in November Re-
spondent did not share its reasons for laying off employees
even with its own supervisors.
On November 18, Richardson also met with Parsons about
his layoff. Parsons told Richardson that he was being laid off
because of his work record, and specifically because Rich-
ardson had received two written performance warnings with-
in the past year. These warnings had been issued on January
23 and April 17, and Richardson pointed out to Parsons that
he had not received a written warning within the past 6
months. Parsons responded that the Company was going on
the record within the past year. Richardson pointed out to
Parsons that he had seniority over all the other employees in
the department, and that some of the employees had only 2
or 3 months’ seniority at the time. I credit Richardson that
Parsons responded he could not hold that against those less
senior employees.
Richardson testified credibly that after being laid off, he
returned to his work area and noticed that Supervisor Jarman
was in the process of training employee Eric Scott to per-
form Richardson’s job as exit operator on the rope-loop ma-
chine. Prior to that time, Scott had filled the middle position
on that machine. Respondent argues that Richardson should
be discredited because records reflect Scott worked on the
rope-loop machine beginning May 15, 1991, and was still on
the machine prior to the November 1991 layoff. These facts
do not discredit Richardson who testified that Scott was
being moved from one position on the machine, the middle
position, to Richardson’s position as the exit operator. Rich-
ardson testified that Scott had been employed by Respondent
only 3 months at the time of Richardson’s layoff. Records
reflect that in fact Scott had worked for Respondent 6
months. Richardson testified credibly that while Scott was
being trained to do Richardson’s old job, he also observed
that employee Benny Whitley had taken over Scott’s old job
as middle man. While Richardson testified that Whitley had
only worked for Respondent 1 month, records reflect that
Whitley had actually been working 4 months. Whitley’s 4
months and Scott’s 6 months both pale in comparison to
Richardson’s 13 years, with the last 6 years in Respondent’s
print-finishing department. While Parsons testified that em-
ployees were only transferred to previously held jobs, I do
not credit this testimony. I credit Richardson as to what he
saw. Supervisor Sammy Hines acknowledged that Respond-
ent had to train an employee to operate the exit end of the
rope-loop machine after Richardson’s layoff. I find that be-
cause of the layoff in November, certain print finishing de-
partment employees were transferred to jobs they had not
previously held. This fact substantially undermines Respond-
ent’s argument that it retained the most qualified employees
and gave particular weight to retaining employees who could
operate multiple pieces of equipment.
Analysis And Conclusions
It is now well settled that in cases alleging violations of
Section 8(a)(1) and (3) of the Act turning on employer moti-
vation, the Wright Line tests are employed. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Wright Line has made it clear
counsel for General Counsel is not required to prove that
‘‘but for’’ union activity the employer would not have made
the decision it did. Rather, the initial burden of proving a
prima facie case requires that General Counsel demonstrate
‘‘protected conduct’’ was ‘‘a motivating factor’’ in the em-
ployer’s decision. If this burden is met, the burden then shifts
to the employer to show that the same action would have
taken place even in the absence of protected conduct.
I find that counsel for General Counsel has met its burden
of proof establishing that employee union activity was a mo-
tivating factor in Respondent’s decision to effect a layoff in
November 1991 and that it was also a factor in selecting cer-
tain employees to be laid off. At the beginning of August
1991, Respondent’s business was thriving. Much of its oper-
ation had been converted from three to four shifts. Its em-
ployee complement had been and was continuing to increase.
In August, however, Respondent suffered a major economic
setback when one of its largest customers ceased all orders.
Respondent’s top management met to consider whether to
lay off employees immediately or whether to try to continue
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Because the parties settled allegations involving Johnny Gervin
and counsel for General Counsel withdrew those allegations from the
complaint, I make no finding that Gervin’s termination violated the
Act. While there is no evidence that Reid and Wright engaged in
union activity or otherwise supported the Union, the record reflects
and I have found that the November layoff was itself precipitated
by employee union activity in general and specifically by the unfair
labor practice hearing before Administrative Law Judge Robertson.
There is no need to show that each and every employee selected for
the layoff was chosen because of individual union activities or senti-
ments. The entire group of employees laid off in November was dis-
criminated against, including Reid and Wright as well as Rutter and
Richardson. Other employees laid off in November were not named
in the complaint, and I therefore make no finding regarding them.
to operate as it was for some period, with hopes that the lost
business might be replaced. Respondent decided on the latter
option, to try to maintain its full employee complement at
least until early 1992 in hopes of securing new business. Re-
spondent even went ahead and expanded the dye house oper-
ation from three to four shifts in spite of having lost this
major customer.
Respondent offered no evidence that there were any other
major setbacks or changes in its operation after the Novem-
ber 1991 unfair labor practice trial before Administrative
Law Judge Robertson. At that trial evidence was introduced
that in response to employee union activity, Respondent had
interrogated employees about their union activities; solicited
employees to withdraw union authorization cards; prohibited
employees from distributing union leaflets during non-
worktime in nonwork areas; threatened employees that they
would work less hours because of the Union; threatened em-
ployees with loss of jobs; promised employees that it would
listen to and work out their problems if they abandoned the
Union; held out to employees that it had reassigned super-
visors because of employee complaints; threatened employ-
ees that it would be futile to support the Union; threatened
employees that it would close its doors over the Union; and
issued warnings to and discharged employees because of
their activities on behalf of the Union and because they had
given testimony to the Board during the investigation of prior
unfair labor practices. One of the critical employee witnesses
to testify against Respondent was dye house employee John-
ny Gervin.
Once it became clear a layoff in late 1991 or early 1992
would be advisable, Respondent decided to scuttle its estab-
lished practice of laying off employees by seniority. Instead,
Respondent decided to select employees for layoff based on
what it considered to be merit, and Respondent’s counsel
began to prepare a form which Respondent would use to
evaluate all employees in order to quantitatively assess merit.
After the unfair labor practice trial, however, Respondent did
not wait for counsel to develop this form. Instead, only days
after the unfair labor practice trial had concluded, Respond-
ent began to lay off employees, starting first with employee
Johnny Gervin who had given critical testimony not just
against Respondent in general but against Corporate Presi-
dent Will Hopper as well. Within a matter of only a few
days, Respondent continued by laying off a group of employ-
ees which included two known union supports, one of whom
had been so active on behalf of the Union he had been pro-
hibited from attending captive audience meetings held by Re-
spondent with employees.
When one looks at the standards which Respondent claims
to have used in choosing which employees to lay off and
which employees to keep, it becomes even more clear that
union activity was a key factor in selecting employees for the
layoff. Respondent’s asserted reasons for laying off certain
individuals while retaining others simply does not withstand
scrutiny and is so illogical as to itself suggest an unlawful
motive. Respondent claimed that it tried to retain employees
who could run multiple pieces of equipment. At the same
time, Respondent laid off, actually terminated, experienced
employees who were capable of exactly that while replacing
them with relatively new employees who had to be trained
in order to even perform the job. In deciding which employ-
ees to terminate and which employees to keep, Respondent
gave preference to employees who were so new that they had
not even been employed for the whole review period which
Respondent was using as the basis for evaluating employee
qualifications. Last but not least, when Respondent was con-
fronted with the fact that certain employee union activists
were terminated while other employees with the same num-
ber of performance warnings were retained, Respondent
claimed to have kept those other employees because they
were capable of operating machines which were not even
being used. Time and time again Respondent’s purported ex-
planation for terminating union supporters while retaining
other employees is proven to be utterly illogical at worst and
circuitous at best. For all these reasons, counsel for General
Counsel has established a strong prima facia case that em-
ployees’ union activities were a motivating factor in both Re-
spondent’s decision to effect a layoff in November and in
Respondent’s choice of certain employees to be terminated.
At the same time, and for much the same reasons, Respond-
ent has failed to show that the named discriminatees would
have been laid off/terminated even if they had not engaged
in union activity or supported the Union. Accordingly, I find
that by laying off/terminating Bobby Richardson, Bobby
Rutter, James Reid, and Melvin Wright, Respondent violated
Section 8(a)(1) and (3) of the Act.1
CONCLUSIONS OF LAW
1. Respondent, Goldex, Inc. is, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL–CIO–CLC is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
3. By laying off/terminating Bobby Richardson, Bobby
Rutter, James R. Reid, and Melvin Wright because employ-
ees engaged in activities on behalf of, and supported the
Union, Respondent thereby violated Section 8(a)(1) and (3)
of the Act.
4. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (3) of
941GOLDTEX, INC.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National 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 Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Goldtex, Inc., Goldsboro, North Carolina,
it officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off/terminating employees because employees
engage in activities on behalf of, or support for, Amal-
gamated Clothing and Textile Workers Union, AFL–CIO–
CLC or any other labor organization.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Bobby Richardson, Bobby Rutter, James R. Reid,
and Melvin Wright immediate and full reinstatement to their
former positions or, if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to their se-
niority and other rights and privileges.
(b) Make whole Bobby Richardson, Bobby Rutter, James
R. Reid, and Melvin Wright for any loss of earnings or bene-
fits they may have suffered by reason of the discrimination
against them by paying them a sum of money equal to the
amount they normally would have earned from the date of
said discrimination to the date of Respondent’s offer of rein-
statement, less net income earnings, with backpay to be com-
puted in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
(c) Expunge from its files any reference to the
layoff/termination of Bobby Richardson, Bobby Rutter,
James R. Reid, and Melvin Wright and notify them in writ-
ing that this has been done and that evidence of the unlawful
terminations will not be used as a basis for future personnel
actions against them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Goldsboro, North Carolina facility copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT lay off/terminate employees because they
engage in activities on behalf of, or support, Amalgamated
Clothing and Textile Workers Union, AFL–CIO–CLC, or
any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Bobby Richardson, Bobby Rutter, James R.
Reid, and Melvin Wright immediate and full reinstatement to
their former positions, or, if those positions no longer exist,
to substantially equivalent positions without prejudice to their
seniority and other rights and privileges.
WE WILL make whole Bobby Richardson, Bobby Rutter,
James R. Reid, and Melvin Wright for any loss of earnings
or benefits they may have suffered by reason of the discrimi-
nation against them by paying them a sum of money equal
to the amount they normally would have earned from the
date of said discrimination to the date of Respondent’s offer
of reinstatement, less net income earnings, with appropriate
interest.
WE WILL expunge from our files any reference to the
layoff/termination of Bobby Richardson, Bobby Rutter,
James R. Reid, and Melvin Wright and notify them in writ-
ing that this has been done and that evidence of the unlawful
terminations will not be used as a basis for future personnel
actions against them.
GOLDTEX, INC.