Kudzu Productions, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 82 (N.L.R.B. 1989)

82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kudzu Productions , Inc. and Local 780 , Internation-
al Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the
United States and Canada . Case 10-CA-22748
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
DEVANEY
On December 22, 1988, Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Kudzu Productions, Inc., Huntsville,
Alabama, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(c) and re-
letter the subsequent paragraph.
"(c) Remove from its files any reference to the
unlawful layoff of Earl Greenwell, and notify him
in writing that this has been done and that this
layoff will not be used against him in any way."
2. Substitute the attached notice for that of the
administrative law judge.
' We agree with the judge that the Respondent 's selection of Earl
Greenwell for layoff in July 1987 violated the Act . In so concluding, the
judge found , inter aha , that the Respondent 's layoff selection failed to
follow NASA's instruction to lay off two "A" technicians and that it re-
sulted instead in only one "A" technician 's slot being eliminated The Re-
spondent excepts and claims that the judge 's analysis failed to take ac-
count of the fact that it also demoted "A" technician Shannon Powers to
a "B" technician slot. Thus, it claims it did eliminate two "A" technician
slots We reject the Respondent 's argument . The evidence that it offers in
support of its claim is the testimony of its manager , Smith , who stated
only that he "recommended" that Powers be moved from an "A" slot to
a "B" slot Reference to the record , however, shows that in a postlayoff
August 7 , 1987 memorandum, the Respondent still listed Powers as one
of its "current 'A' technicians." Thus, the Respondent has not shown that
Powers was indeed demoted or that the judge was in error in his finding
that the Respondent 's layoff selection resulted in only one "A" techni-
cian 's slot being eliminated
8 The judge inadvertently failed to provide the usual expunction
remedy We have made the appropriate modification in the Order and
notice
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 threaten you with retaliation be-
cause of your support of Local 780, International
Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United
States and Canada, or any other labor organization.
WE WILL NOT select you for layoff or lay you
off or otherwise discriminate against you because
of your activities on behalf of the above-named or
any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of rights guaranteed you under Section 7 of
the Act.
WE WILL offer Earl Greenwell immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges previously enjoyed, and
WE WILL make him whole for any loss of earnings
or other benefits suffered by reason of the discrimi-
nation against him with interest.
WE WILL remove from our files any reference to
his unlawful layoff and WE WILL notify him that
this has been done and that this layoff will not be
used against him in any way.
KUDZU PRODUCTIONS, INC.
Mary L. Bulls, Esq., for the General Counsel.
John Wilmer and Scott Leeds Esgs. (Bell, Richardson &
Sparkman), of Huntsville, Alabama, for the Respond-
ent.
Bernard M. Mamet Esq., of Chicago, Illinois, for the
Union.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON , Administrative Law Judge.
This case was tried at Huntsville, Alabama, on August
30-31, 1988. The charge was filed by Local 780, Interna-
tional Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States
and Canada (the Union), on August 11, 1987,1 and the
' All dates are in 1987 unless otherwise stated.
295 NLRB No. 14
KUDZU PRODUCTIONS
complaint was issued on June 6, 1988 . The primary issues
are whether Kudzu Productions , Inc. the Respondent or
the Company), violated Section 8(a)(3) and ( 1) of the
National Labor Relations Act (the Act) by laying off its
employee, Earl Greenwell, on July 26 allegedly because
of his activities on behalf of the Union, and independent-
ly violated Section 8(a)(1) of the Act by threatening em-
ployees with discharge if they joined or engaged in ac-
tivities on behalf of the Union.
On the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel, Respondent, and
the Union, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Alabama corporation with an office
and place of business located in Huntsville , Alabama,
where it is engaged in film and camera production work.
During the calendar year preceding issuance of the com-
plaint , Respondent provided services valued in excess of
$50,000 to the National Aeronautical and Space Adminis-
tration (NASA) which in turn during the same period
purchased and received in Huntsville goods valued in
excess of $50,000 directly from customers located outside
the State of Alabama . The complaint alleges, Respondent
admits, and I find that on the foregoing facts Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
The complaint also alleges , Respondent at the hearing
admitted , and I also find , that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent 's Business
Respondent began providing photographic services to
NASA beginning in 1982 pursuant to a contract and in
doing so utilized three employees at a NASA laboratory
facility. These three employees, Clay Buie, David
Draper, and Earl Greenwell, the alleged discriminatee
herein , were hired by Respondent in 1982 specifically to
service the NASA contract which involved essentially
the printing and processing of motion picture films2
using standard equipment normally associated with such
work . The three employees used for this work had back-
grounds and substantial experience in such work. Re-
spondent through its president , Charles Burruss, had spe-
cifically sought out Greenwell to perform this work and
had presented Greenwell 's credentials to NASA to
strengthen Respondent 's claim to qualifications and abili-
ty to perform under the contract . Moreover, Respondent
appointed Greenwell as leadman following his employ-
ment by Respondent in November 1982. Greenwell,
Buie, and Draper worked in close association with
NASA personnel and appear to have had little direct su-
pervision by other personnel of Respondent who visited
the laboratory only infrequently.
2 Respondent also maintained an office and facility in downtown
Huntsville where it did other film and video production work.
83
In the fall of 1986 Respondent was awarded a new
contract by NASA which expanded the scope of the
work previously covered . Thus, the new contract in ad-
dition to motion picture work called for color and black
and white still photography , printing, and processing. It
further specified the classifications of employees needed
to perform the work, i .e., manager/photographer, lead
technician/photographer , technician photographer/ "A"
(Underwater/Laboratory and Laboratory), technician
photographer "B" (Laboratory), technician photographer
"C" (Laboratory), and Clerk/Photographer assistant. Job
descriptions for the positions were provided by NASA
also.
Having obtained the new contract Respondent was
obliged to hire several new people including a manager,
Willis O. Smith . Greenwell became the lead technician
under the new contract and Buie and Draper were classi-
fied as "A" technicians . Color and black and white still
photography processing was emphasized under the new
agreement and this, in addition to other factors, pro-
duced a decline in motion picture processing work. By
the beginning of June, however, Respondent employed a
total of seven "A" technicians including Greenwell,
three "B" technicians, one "C" technician , and one clerk.
B. The Union Activity
The three old employees including Greenwell received
wage increases under the new contract . However,
Greenwell was dissatisfied with his raise because, he tes-
tified, Burruss had earlier told him he would get a sub-
stantial raise under the new contract . Moreover, he
found the other two employees had received a substan-
tially greater raise than he had . When he complained to
Burruss, Burruss explained that "that " was all he had to
work with . Greenwell suggested a wage determination
by NASA might be in order and Burruss replied that if
he did not like it he could quit.
Greenwell also voiced complaints to Landon
McCrary, Respondent 's vice president , about the lack of
employee fringe benefits . McCrary promised to look into
the matter but, according to Greenwell , he never there-
after made any report to Greenwell . As a result of his
dissatisfaction Greenwell telephonically contacted
Andrew J. Younger, business manager of the Union, in
November 1986, and Younger on November 26 mailed
Greenwell 30 blank union authorization cards. These
cards were circulated by Greenwell and Draper and a
sufficient number of executed cards were obtained to
support a petition for an election filed with the Board.
Greenwell 's testimony that he got union cards signed is
supported by Draper and is credited . His further testimo-
ny that he talked in favor of the Union to many of the
employees is likewise credited, although several employ-
ees presented by Respondent herein testified they viewed
Draper as the "organizer." Moreover , other testimony of
Respondent 's employee witnesses reveals that Bill
Gorgus, a technician "A" color printer, was a more out-
spoken union supporter among employees who clearly
revealed his union sympathies to management in re-
sponses to Burruss in meetings between Burruss and em-
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees called to relate management 's position in opposi-
tion to the Union.
Greenwell testified that on one occasion during the
campaign , in November or December 1986 , Manager
Smith called Greenwell into his office and asked him
what he thought about the Union . Greenwell replied that
with a company like Respondent "you have to have a
union ." Smith told him he could not organize on compa-
ny time, a warning that Smith repeated to both Green-
well and Draper at a subsequent time after Smith had
had a meeting with Respondent 's counsel.3
The union campaign culminated in an election in Feb-
ruary 1987, which was, won by the Union. The Union
was certified and bargaining between the parties began
on March 25.
C. References to Greenwell in Negotiations
Respondent was represented at the first negotiating
session on March 25 by Respondent 's attorney, Wilmer,
McCrary, and Cindy Harrington , a paralegal employee
in Wilmer's firm. The Union was represented by Young-
er and Draper . During this session, according to the tes-
timony of Younger, the Union disputed Respondent's
ability to make economic concessions and disclosed some
figures obtained by Greenwell and supplied to Younger
showing the value of Respondent 's contract with NASA.
These figures, based on Greenwell's testimony which is
uncontradicted in this regard and credited, had been ob-
tained by Greenwell from a posting of NASA contrac-
tors and contract amounts on a NASA chalkboard.4
Younger testified that McCrary inquired of Younger
where he had obtained the figures , and Younger identi-
fied Greenwell as the source . McCrary, according to
Younger, responded that he would have "his [Green-
well's] ass" if those figures got out. On cross-examination
Younger was less certain whether McCrary said "his" or
"their ass ." McCrary in testimony for Respondent testi-
fied he could not recall any dispute arising at the meet-
ing concerning figures obtained by Greenwell and denied
that any threats were issued at the meeting . Further, he
related that if anybody said anything at the meeting
about having somebody 's "ass" he didn 't hear it.
Younger's testimony on this point impressed me general-
ly more positive than McCrary's which was couched
largely in terms of an absent recall . Moreover, the re-
sponse Younger attributed to McCrary is totally in keep-
ing with a concern over the release of confidential infor-
mation which McCrary himself claimed he expressed to
Draper in August as discussed below. I therefore credit
Younger over McCrary.
Younger also testified that Greenwell 's name came up
again in a subsequent negotiating session . Draper largely
supported Younger's testimony on this bargaining session
8 Smith denied questioning Greenwell about his union sympathies and
also denied being aware of Greenwell 's union inclinations He admitted
talking to Greenwell and Draper , however , and advising them that union
solicitation could not take place on working time.
4 According to Greenwell, the posting was in a secretary 's office ac-
cessible to people walking in from the street No contention was made
herein that Greenwell obtained the figures illegally.
and placed the date of it on June 11.5 Younger accused
Respondent of having an intent to engage in surface bar-
gaining and related as basis for that accusation reports to
Younger that Manager Smith had been heard relating to
a NASA official that Respondent would negotiate for a
year, demoralize the employees , refuse to sign a contract
with the Union , and call for a new election.
Burruss inquired of Younger who told him, but
Younger declined to identify the source , although in fact
it was based upon matters related to him by Greenwell.6
Burruss according to Younger , remarked that it was
Greenwell and proceeded to telephone Smith in the pres-
ence of the others . Burruss, still according to Younger,
told Smith what had been attributed to him , further told
him to keep his mouth shut and said he would talk to
him later.
That Smith quickly recognized Greenwell as the
source of Younger's accusation is established by Green-
well's uncontroverted testimony that Smith , following
Burruss' phone call , summoned Greenwell to his office,
related that Burruss had called him and chewed him for
remarks attributed to Smith , and questioned Greenwell
whether he had talked to Younger . Smith's testimony
confirms Greenwell 's in this respect but goes further.
Thus, Smith testified that he verified with Greenwell
that Smith had only stated that both sides had to reach
agreement during negotiations , that bargaining had to be
in good faith , and that a contract would have to be
signed by both sides before an agreement could be effec-
tive.
Subsequent negotiations took place and Greenwell's
name again came up in the negotiations . However, the
subsequent references to Greenwell came in the discus-
sion regarding his layoff which will be set detailed
below.
D. The Alleged Unlawful Threats
The complaint alleges two independent violations of
Section 8(a)(1) of the Act, both attributed to McCrary,
one about April 1, and the other August 7. These allega-
tions attribute to McCrary threats to employees of dis-
charge for union activities and are based on the testimo-
ny of Greenwell and Draper.
Greenwell testified that he was absent from work for 8
weeks beginning in early March due to back surgery.
During the period of his recuperation in the first part of
April, McCrary visited Greenwell at his home having
brought him either papers or motion picture film for
5 This meeting was attended by the same individuals as the March
meeting except that Burruss replaced McCrary.
6 Greenwell 's testimony establishes that he did in fact overhear certain
remarks by Smith in this regard but examination of such remarks reveals
that they were completely legal and far short of confirming the accusa-
tion of Younger. In addition , no violations of the Act were alleged based
on remarks attributed to Smith , and the evidence supports no findings of
independent violations of the Act by him. Moreover , although the parties
never reached terms on a collective-bargaining agreement notwithstand-
ing negotiating through February 1988, after which a decertification peti-
tion was filed , there is no contention herein that Respondent in any re-
spect refused to bargain in good faith in violation of Sec . 8(aX5) and (1)
of the Act.
KUDZU PRODUCTIONS 85
conformation work .? During the course of the visit they
discussed the union negotiations , and McCrary , accord-
ing to Greenwell, stated that if Respondent lost the
[NASA] contract over the Union he was going to hold a
grudge against those responsible and was going to use all
his resources to get even . Greenwell further testified that
he told McCrary that he should not take it personally,
that it was "just business ," to which McCrary replied,
"Yeah , business."
It was Draper's testimony that in early August a meet-
ing with employees was conducted by Burruss to inform
them of the status of negotiations with the Union. Fol-
lowing the meeting McCrary called Draper into a hall-
way and told him that if Respondent lost the NASA
contract because of the Union they would use everything
they had to get even with whoever was responsible.
Draper replied that he was poor man with nothing to
lose and if McCrary wanted to use all his resources to
get even to go ahead.
While McCrary acknowledged his visit with Green-
well, he placed it in March . He admitted that union ne-
gotiations were discussed but was unsure how the sub-
ject came up. He admitted only that he expressed con-
cern over the ability of Respondent to pay union wage
demands . But he denied that anything was said about
getting even with anybody . Moreover , he denied know-
ing who was "working for the Union " because based on
his recollection they had not gotten into negotiations at
that -time . With respect to Draper's testimony McCrary
admitted meeting with Draper on August 7 or 8 after a
meeting with employees . However, McCrary's version of
his remarks to Draper was that he told Draper financial
information had been released in the meeting which Re-
spondent did not want to get out to competitors and
added that if it did get out Respondent would be forced
to seek legal recourse against the Union , Draper, or
whoever . Asked at the hearing herein if he stated that if
the Union caused the Company to lose a contract they
would get even, McCrary said he could not recall
making such a statement . Asked further if he ever made
any statement like that he replied that he had not to his
knowledge.
Weighing the testimony of Greenwell and Draper on
the one hand against that of McCrary on the other I
credit the former . Both appeared to be candid witnesses
with clear recall . McCrary's references to an absent
recall demonstrated either a poor memory or a reluc-
tance to respond emphatically to questions. In either
event, his credibility was seriously undermined. More-
over, the testimony of Greenwell and Draper is mutually
supportive , since they attribute to McCrary the same
vindictive response to a perceived threat to Respondent's
business as a result to employee representation by the
Union . I conclude McCrary made the remarks attributed
to him . I further conclude that such remarks constituted
coercive threats in violation of Section 8(a)(1) of the Act
as alleged for they were made in the context of a per-
7 Greenwell and his wife maintained equipment and a facility at their
home for motion picture conforming work and performed such work
from time to time for Kudzu as well as other businesses on a per job
basis . Greenwell explained that during the time of McCrary 's visit Green-
well's wife was doing some conforming work for Kudzu.
ceived threat to Respondent resulting from lawful union
negotiations , and implicitly included with the Union as
targets for retaliation employee supporters of the Union.
It is abundantly clear from Draper's response to
McCrary that Draper viewed the threat as directed to
him. Cf. Transportation Management Corp., 256 NLRB
101, 107 (1981 ), enf. denied on other grounds sub nom.
NLRB v. Transportation Management Corp ., 674 F.2d 130
( 1st Cir . 1982), rev . 462 U . S. 393 ( 1983).
E. The Alleged Discriminatory Layoff of Greenwell
1. The material facts
In June, Greenwell remained the lead technician per-
forming motion picture printing work , equipment mainte-
nance, and supply functions . However, it is largely un-
disputed , and I accept as established , that employee Bill
Gorgus, an "A technician" who performed primarily
color still print work , was considered the primary color
printer having particular skills and experience in such
work. In addition, most of the lesser skilled or experi-
enced color still printers as well as Manager Smith con-
sidered Gorgus the authority on color print work and
approached him for advice on such work . Greenwell, the
evidence shows, although highly skilled in motion pic-
ture work , had no significant training or experience in
still color print work and did color printing only on a
sporadic and very infrequent basis, his time being filled
with other duties . Nevertheless, as lead technician
Greenwell received a higher rate of pay than any other
unit employee.
It is undisputed that on June 26 NASA pursuant to op-
tions and rights under its contract with Respondent di-
rected Respondent to layoff two "Photographer A"
technicians effective August 1. Respondent through its
attorney, Wilmer, advised Younger telephonically on
July 9 of the NASA directive . Wilmer also told Younger
that a female employee had resigned so that only one ad-
ditional employee would have to be laid off and that Re-
spondent had decided to lay off Greenwell. Younger
protested saying that Greenwell was the Union 's organiz-
er, that he was the oldest employee , and that he was the
lead technician . Wilmer expressed surprise that Green-
well was the organizer and stated that the bulk of Re-
spondent's work at that time was color still print proc-
essing and that Greenwell could not do that work.
Younger insisted that Greenwell could do the work and
said he would verify it with Greenwell. Wilmer asked
for any other suggestions regarding the layoff selection.
Younger replied that the junior people should be laid off
first, but Wilmer countered that was not acceptable to
Respondent.
Following contact with Greenwell in which Green-
well verified that he was capable of performing color
still print work, Younger called Wilmer on July 10 and
so advised Wilmer. Wilmer disagreed saying that as far
as Respondent was concerned Greenwell could not do
the work. Nevertheless, Younger secured Wilmer's ac-
quiescence in announcing any decision on the layoff se-
lection until July 17 when the parties had another bar-
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining session scheduled at which time they could dis-
cuss the layoff further.
The July 17 meeting took place as scheduled and was
attended by the same individuals as the June meeting
with the addition of the Union's . attorney , Bernard
Mamet . Greenwell's selection for layoff was discussed
with the Union maintaining that he was capable of per-
forming color still print processing , while Respondent
contended he could not and in fact had not done such
work in the past . Respondent maintained that it was nec-
essary to retain all its other employees because of par-
ticular skills they possessed and which were required
under the NASA contract . The parties discussed a chart
drawn by Draper showing the various skills of each em-
ployee and showing that Greenwell could do the neces-
sary color print work . The chart further reflected that
Greenwell possessed every skill required in Respondent's
work except for , diving and underwater photography,
skills possessed by only two other employees , Buie and
Danny Reeves . Buie, however, was not skilled in color
print processing, and he did not have copy camera skills.
Reeves; 'on the other hand had no motion picture skills.
Draper possessed the same skills as Greenwell. Of the
three other "A technicians" employed at that time, Rick
Trussell had no color print experience , according to
Draper's chart , and the others , Bill Gorgus and Shannon
Powers, had no copy camera experience . Of the three "B
technicians" at the time , Jackie Gill, Kelley Steed, and
Lang, only Gill had significant color print processing ex-
perience . The one "C technician ," Becky Grigsby, had
no color print abilities , according to Draper 's chart.
Notwithstanding extended discussion regarding Drap-
er's chart and Greenwell 's abilities Wilmer and Burruss
persisted in the position that Greenwell could not per-
form color print work, while Mamet insisted that Re-
spondent check out Greenwell 's skills in that area. Re-
spondent continued to maintain that Greenwell was the
logical choice for layoff because of his inability to do
color print processing which had replaced motion pic-
ture processing in providing Respondent with the great-
est volume of work.
Respondent officially effectuated the layoff by letter
from Burruss to Greenwell dated July 31 in which it de-
scribed the layoff as temporary and promised to give
Greenwell the opportunity to return to work for Re-
spondent if the eliminated "slots" were restored by
NASA. Greenwell had previously been advised of the
contemplated layoff by Younger , and had received word
of the final layoff decision prior to July 31 . On July 26
he met with Burruss and McCrary regarding the layoff,
and Greenwell at that time protested that it was unfair
since he was the oldest employee, was the most skilled,
and was the only one who could operate the optical spe-
cial effects printer . Greenwell raised the subject of color
still printing , but Burruss said that had nothing to do
with it, that the layoff was strictly a.business decision, a
point confirmed by McCrary with, according to Green-
well's testimony , a chuckle. Thereafter , Greenwell re-
turned to the lab where he discussed the matter with
Smith asking Smith if Smith was "out to get him." Smith
denied that he was . However, Smith , according to
Greenwell 's testimony , confirmed that someone else was
out to get Greenwell although he failed to identify who
and cautioned Greenwell not to repeat his remarks.
Greenwell 's layoff was again the subject of discussion
at another bargaining session between the parties on
August 5 . In that session Younger pointed out that
Greenwell , after the July meeting and prior to his layoff,
had done color print processing. Burruss responded that
Greenwell had probably done such work at Younger's
direction , and 10 Younger conceded as much . 8 In spite
of Younger 's contention that Greenwell 's having done
the work proved his ability to do it, Wilmer replied that
Greenwell's layoff was a business decision , and Respond-
ent was no longer going to discuss it.
On August 7 Respondent announced to employees that
Gorgus was appointed lead technician effective August 3
"because of his demonstrated abilities to produce and to
assist other employees with the production of color still
prints ." On the same day, in a memorandum to Smith,
Burruss stated because of the elimination of two "A
technician" slots he felt it important to utilize the re-
maining personnel as efficiently as possible . Further, and
in view of the decrease . in motion picture work require-
ments, he directed Smith to immediately utilize all "A
technicians" in the production of color prints regardless
of their primary work assignments . The memo listed the
five "A technicians" and directed that : "If any of these
people are not presently capable of producing quality
color printing you and Bill Gorgus should immediately
develop an effective and workable cross training plan to
bring them up to production level as soon as possible."
Respondent admitted herein that Greenwell 's layoff se-
lection was not based in any respect upon the quality or
quantity of his past work . Indeed , Smith prepared a job
reference for Greenwell dated July 29 in which he
highly recommended Greenwell and stated:
Earl Greenwell has performed in an exemplary
manner as Lead Technician while working at the
Photographic Branch of Marshall Space Flight
Center . He has been an asset in Motion Picture, Op-
erating and Maintaining Still Photo Processing Ma-
chines, and keeping all Supply needs well attended.
Respondent at various times subsequent to the layoff
of Greenwell hired a total of six new employees based
on the testimony of Draper which was uncontradicted in
this regard . Of these two were "C " technicians while
one was an "A." The other three new hires were hired
at the direction of NASA to employ instrumentation
(high speed camera) photographers . While Smith testified
that Greenwell was contacted regarding the instrumenta-
tion photography work and allowed to apply for such
work his experience and qualifications for the work were
deemed to be inferior to those actually hired.9
8 It appears that production work orders could be picked up and per-
formed by any employee consistent with their ability and available time
without specific assignment by the lab manager.
s Ironically, at the time of the hearing Greenwell was employed by the
Federal Government as an instrumentation photographer
KUDZU PRODUCTIONS
2. Arguments of the parties
Briefly stated , it is the position of the General Counsel
and the Union that while the decision for a layoff was
directed by NASA and was therefore not discriminatory,
Respondent 's selection of Greenwell for layoff was pre-
textual and that the real reason for the selection was
Greenwell's union activity and support . Contrary to Re-
spondent 's position herein that it was unaware of Green-
well's union inclinations they point to the revelations at
the bargaining sessions as well as other factors which in-
dicated to Respondent Greenwell's union activity and
support . They further contend that Respondent 's union
animus was reflected by McCrary's threats as found
above. Finally, as evidence of pretext they point to, inter
alia, Greenwell 's status as the senior employee, his pos-
session of great skill in motion picture work and the
transferability of such skills to color still processing work
with little or no training even assuming Greenwell had
not done prior color print work, Greenwell's unblem-
ished work record, and the established fact that he had
demonstrated that he could in fact perform color pro-
duction work.
Respondent , on the other hand , argues that it was un-
aware of Greenwell's union sympathies at the time it ini-
tially selected him for layoff. Other individuals like
Gorgus and Draper were more likely targets for discrim-
ination if Respondent had been inclined to unlawful dis-
crimination , the argument goes . Respondent points out
that, on the contrary, Gorgus had been promoted. Fur-
ther, Respondent contends that its selection of Greenwell
was in logical keeping with its effort to retain the widest
range of skills possible to perform its NASA contractual
obligations recognizing the diminished requirements for
motion picture work and the increasing requirements for
color still print processing . Finally, as evidence of the
absence of unlawful discrimination , Respondent claims
that offers were made through Wilmer to retain Green-
well as a "C" technician and train him for color still
print processing . The Union's refusal of the offer is ap-
parently the basis for Respondent 's failure to recall
Greenwell for a subsequent "C" technician opening. Its
failure to recall or employ him for the instrumentation
photography positions was claimed by Respondent to be
due to his lack of qualifications for such work.
Conclusions
Analysis of this case starts with the application of
those principles enunciated by the Board in Wright Line,
251 NLRB 1083 (1980), enfd . 662 F.2d 899 (1st Cit.
1981), cert . denied 455 U.S. 989 ( 1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Wright Line points out that it is at first incumbent
upon the General Counsel to establish a prima facie case
that the action taken against the employee involved was
based upon proscribed considerations . Once such a prima
facie case is shown the burden shifts to the respondent to
demonstrate that it would have taken the same action
against the employee even absent his protected activities.
The establishment of a prima facie case in the case sub
judices requires proof of respondent's knowledge of the
union sympathies or support of Greenwell, respondent's
87
animus toward the union supportive of a finding of un-
lawful discrimination , and the invalidity of, or pretextual
nature of, the grounds asserted by respondent for the
layoff selection . I conclude on the credited evidence that
the General Counsel has satisfied her burden here of es-
tablishing a prima facie case that Greenwell 's layoff se-
lection was premised upon his protected union activities.
Although the evidence will not support a conclusion
that Respondent was specifically aware that Greenwell
was the employee who initially contacted the Union' °
and began the union movement the record evidence pro-
vides an ample basis for concluding, and I so conclude,
that Respondent at the time of Greenwell 's layoff selec-
tion was well aware of his union sympathies and support.
Thus, at the March 25 negotiating session Greenwell was
identified to Respondent as having supplied financial in-
formation to the Union which credited evidence shows
McCrary deemed sufficiently critical to evoke a vehe-
men response . Greenwell was also identified at the June
11 meeting by Respondent as the source of other infor-
mation provided the Union , and Greenwell was, as a
result, immediately confronted by Smith regarding the
accuracy of the information . But Respondent was aware
of Greenwell 's union inclinations even during the course
of the union campaign . Greenwell 's testimony, which
was not specifically contradicted in this regard and
which I in any event credit in light of Greenwell's
straightforward and candid manner in testifying , that he
once revealed his union sympathies in response to
Smith's question whether a union was needed at Re-
spondent 's business . Moreover, that Smith regarded
Greenwell as a union supporter was demonstrated by
Smith 's calling Greenwell and Draper into his office
where both were advised of their rights on union solici-
tation on Respondent 's premises . Respondent seeks to' ex-
plain Smith 's delineation of solicitation rights to Green-
well on the premise that it initially viewed Greenwell as
a supervisor. While that might justify advising him of so-
licitation rights the fact that he was advised of such
rights in the presence of, and together with , Draper who
Respondent admittedly viewed as a union organizer war-
rants the inference that Smith viewed both as union or-
ganizers.
Respondent 's union animus is ' clearly demonstrated by
McCrary's threat to retaliate to the previewed threat of
loss of the NASA contract flowing from union economic
demands . Particular resentment against Greenwell for re-
vealing to the Union financial data considered confiden-
tial by Respondent was also revealed by McCrary. That
resentment was increased by Greenwell' s disclosure to
the Union , within a month of his layoff selection , state-
ments relied upon by the Union to make accusations
against Respondent which Burruss particularly resented.
Smith too was obviously disturbed when he called
10 Respondent 's total work force was less than 10 employees, a fact
which might justify application of the small -plant principle to infer
knowledge of Greenwell 's union involvement (see Permanent Label Corp.,
248 NLRB 118 (1980); Wiese Plow Welding Co., 123 NLRB 616 (1959)).
Such an argument has not been advanced here . In view of this and in
light of direct evidence of Respondent 's knowledge of Greenwell 's union
sympathies I find it unnecessary to consider the "small plant " basis for
inferring knowledge here.
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Greenwell in as a result of the Union 's accusations. Re-
spondent 's conduct and statements in the incidents
supply the basis for motivation to retaliate against Green-
well in particular for his protected activities.
The circumstances of Greenwell 's layoff selection
must be examined in the context of Respondent 's knowl-
edge of his union support and its dissatisfaction with
such support . A particularly significant factor demon-
strating discrimination in Greenwell 's layoff is Respond-
ent's disregard of his longevity with Respondent. An em-
ployer is not legally required to follow seniority in lay-
offs absent a contractual commitment or in situations
where seniority has not in the past been a basis for layoff
selection . Pullman Power Products, 275 NLRB 765, 767
,(1985). However , layoffs out of seniority may suggest
discrimination because it disregards an experience factor
normally associated with longevity on the job . It is the
consistency with past practice which undercuts suspicion
that a layoff out of seniority is discriminatory . Ibid. Here
no past practice in layoff selection was shown , so there is
nothing to substantiate Respondent 's disregard of Green-
well's seniority . Moreover, Greenwell's selection was
contrary to assurances when he was initially hired that
Respondent would seek to give him job security. Al-
though Burruss disputed Greenwell's precise testimony
that when hired in 1982 he was told by Burruss that he
would be the last laid off, Burruss at least conceded that
he told Greenwell that Respondent would take advan-
tage of every possibility to utilize Greenwell 's skills in
whatever capacity possible if Respondent did not contin-
ue under the NASA contract . Burruss' admitted commit-
ment was totally disregarded in Greenwell 's layoff selec-
tion . Also forgotten by Burruss were remarks attributed
to him in uncontradicted testimony of Greenwell that in
1985 when Burruss used job security arguments to per-
suade Greenwell against accepting a position with an-
other employer . These prior remarks and commitments
together with Greenwell 's status as Respondent 's oldest
employee in terms of length of employment plainly point
to discrimination in Greenwell 's layoff.
Other clear evidence of discrimination against Green-
well is found in Respondent's disregard of Greenwell's
20-year experience in the film industry as well as his ex-
emplary work record with Respondent . It is true, of
course, that Greenwell had only limited experience with
color print processing work. I am not so naive as to be-
lieve on this record that Greenwell was a highly compe-
tent production color printer. No such claim was made
by the General Counsel , the Union, or Greenwell him-
self. Obviously , competence , speed , and proficiency, as
in most work, increases with experience . Nevertheless,
Greenwell 's years of experience and achieved expertise
in color motion picture printing constituted work in a re-
lated field , which if not wholly transferable or inter-
changeable with color still print processing skills would
at least give Greenwell an "edge" over novice color
printers in the "B" and "C" technician classifications re-
tained by Respondent. Indeed , Gorgus, called as a wit-
ness by Respondent and who was no longer employed
by Respondent at the time of the hearing, testified that
color printing could be learned "on the job," and the
ability of a person to change from motion picture proc-
essing to color printing would depend on aptitude and
ability to perceive color . The equipment used in color
printing could be learned in several minutes , according
to Gorgus . Moreover , Gorgus testified that although he
had seen Greenwell do some color print work which
was not of a high quality he conceded that it was Green-
well's work on personal pictures and not production
work for Respondent . The one production color print
job which Gorgus observed Greenwell do , a safety
chart, Gorgus testified was of acceptable quality.
Gorgus' testimony regarding color printing skills was
supportive of that of Younger, who further testified that
"timing" in motion picture processing , a skill possessed
by Greenwell , was considered the highest skill obtainable
in the trade . "Timing," according to Younger 's testimo-
ny which impressed me as credible , involved correction
of the film in color, and that this was a skill transferable
to color print processing . Working with color, whether
motion picture or still printing, and regardless of how
changes in the color are achieved in either process,
would logically seem to sharpen that perception of color
which Gorgus ' testimony shows was the primary factor
in competent color still printing production.
Other evidence of discrimination in Greenwell 's layoff
selection is found in Respondent 's unwillingness to test
Greenwell 's color printing ability . Respondent relied in-
stead on the general statement of Smith that in Novem-
ber, 1986, he had told all the motion picture processors
including Greenwell to sharpen up their color print skills
in view of the anticipated increase in such work and that
Greenwell had shown no interest in doing so . However,
there was no showing that Smith ever suggested that
jobs would depend upon sharpening such skills, that he
ever followed up on his initial direction on this matter,
that he ever repeated his instructions at any other time
prior to the layoff, or that prior to the layoff work was
so slack as to allow Greenwell to ignore his other as-
signed and normal duties to allow him to enlarge upon
his color print skills.
Respondent 's unwillingness to test Greenwell 's color
print ability , particularly in light of the claim of Green-
well and the Union that Greenwell could perform color
print work, further shows a very determined and stead-
fast desire to get rid of Greenwell and thus points out
Respondent 's ulterior motivation . Noteworthy is the fact
that it was only after Greenwell's layoff that Respondent
sought to verify its position that Greenwell could not do
color printing by McCrary 's examination of color print
job orders signed by Respondent 's employees showing
that out of 6000 orders Greenwell had only done the
work on 2. Obviously this fails to establish Greenwell's
inability to color print.
Similarly demonstrative of Respondent 's ulterior moti-
vation is its failure to check the color print skills of those
employees not laid off. Thus, Burruss' August 7 memo
constitutes clear recognition that other employees did
not have well-developed or "production" color printing
capabilities . Yet those individuals were only then re-
quired to develop their skills in this regard . Greenwell's
alleged lack of such skills as a basis for layoff selection
under these circumstances establishes disparate treatment.
KUDZU PRODUCTIONS
Also to be noted in assessing Respondent's layoff se-
lection is the fact that Respondent failed to follow
NASA's instruction to lay off two "A" technicians. It
disregarded those instructions by laying off the lead
technician and accepting the resignation of a lower rated
employee . Even considering that Respondent's layoff of
Greenwell and promoting Gorgus to lead position did
reduce the "A" technicians by one it still did not elimi-
nate the other "A" slot directed by NASA. Instead, Re-
spondent absorbed whatever extra cost was involved in
not laying off the second "A" technician thereby disput-
ing any contention of economic concerns in its manipula-
tions to effectuate Greenwell 's layoff.
Even Burruss' testimony was contradictory regarding
the economic basis of Greenwell's selection at first testi-
fying that money was not a concern in the layoff of
Greenwell but later testifying that he could not keep
Greenwell "from an economic standpoint ." Likewise
contradictory was Smith 's testimony to the effect that he
selected Greenwell for layoff because he had heard com-
plaints from NASA personnel about Greenwell being
leadman and his subsequent testimony that that was not
the reason . t t Further inconsistency in Respondent 's posi-
tion is shown in the statements attributed to both Wilmer
and Burruss by Mamet, Younger, and Greenwell. Thus,
by Greenwell 's testimony , uncontradicted in this regard,
Burruss on July 26 told Greenwell that the layoff was
not related to his color print ability and that Greenwell's
layoff was simply a business decision . Wilmer made the
comment at the August 5 meeting in refusing to discuss
Greenwell 's layoff further that the issue was no longer
Greenwell 's color print ability and that the layoff was a
business decision.
Still more evidence of Respondent 's unreasonable and
disparate treatment of Greenwell is found in its failure to
recall him following the layoff in complete disregard of
its commitment at the time of layoff to recall him if the
"A" slots were restored. Obviously "A" slots became
vacant as shown by the promotion of both Gill and
Powers to such positions after Greenwell 's layoff. Green-
well was not recalled . And even assuming those hired
for the three instrumentation photographer positions pos-
sess greater qualifications for the positions than Green-
well, Draper's undisputed testimony shows other new
employees were hired instead of recalling Greenwell,
one at least in the "A" classification.
In its defense Respondent relies heavily on the claim
that it offered the Union a demotion of Greenwell to the
"C" classification in lieu of a layoff to establish the ab-
sence of any intent to unlawfully rid itself of Greenwell.
Wilmer, his paralegal Cindy Harrington , and Burruss all
related that such an offer was made to the Union at the
July 17 meeting, and Wilmer further testified he made
such an offer to Younger in the July 9 telephone conver-
sation . Younger denied that any such offers were made.
It is clear that no such offer was ever communicated to
Greenwell . Considering the contradictory testimony in
i i Close examination of Smith 's testimony regarding the NASA "com-
plaints" reveals no specific complaint regarding Greenwell 's job perform-
ance. Rather , NASA only questioned the appropriateness of a motion
picture processor as leadman when most of the work involved color
printing.
89
light of the record as a whole , I believe that Wilmer did
in fact make reference to demoting Greenwell to a "C"
position instead of laying him off both in his July 9 tele-
phone conversation with Younger and at the July 17
meeting . However, for a number of reasons I do not
accept the testimony that a specific offer was made in
this regard . First, Respondent never communicated such
an offer to Greenwell , and Burruss , who according to
Wilmer had the responsibility for communicating the
offer to Greenwell strangely was never able to orally
reach him and made no attempt to communicate with
him by mail. Moreover, Burruss could have communicat-
ed such an offer to Greenwell at the meeting with
Greenwell on July 26 when he laid Greenwell off, but
he did not do so . Wilmer's claim that it was not offered
to Greenwell at that time because it was the subject of
negotiations is unpersuasive and illogical , since Burruss'
claimed efforts to contact Greenwell regarding the offer
took place after, according to Wilmer's further claim, the
offer 'had already been rejected by Younger on July 9.
Secondly, Respondent never explained on this record
how it could have retained Greenwell as a "C" techni-
cian and still meet NASA's instructions to lay off two
"A"s. Who would have been laid off instead of Green-
well, and how would that have served to meet Respond-
ent's production and flexibility requirements? One can
only conclude that somebody else would have had to be
laid off. Thus, a specific and concrete offer of a "C" po-
sition to Greenwell could only confirm that there was at
least one other employee on Respondent 's work force
whose services Respondent could do without easier than
Greenwell's.
Thirdly, Wilmer's bargaining notes do not refer to any
discussion of a specific offer of a "C" position to Green-
well. It is unlikely that he would have omitted such an
offer from his notes if it had in fact been made. And
Harrington 's testimony that her notes do not reflect the
offer to Greenwell because Younger directed that no
notes be made of the discussion was not substantiated by
Wilmer whose testimony differed from Harrington's in
other respects . Accordingly , and considering the vague-
ness generally regarding the negotiations I do not accept
such testimony as establishing a specific offer.
Finally, Respondent 's failure to offer Greenwell recall
to a "C" position instead of subsequently hiring a new
employee in such position plainly points out that Re-
spondent never specifically offered to the Union to put
Greenwell in a "C" position . With a charge in this case
pending from August 11 it is likely that Respondent
would have recalled Greenwell to any available job and
specifically to a "C" position if in fact it had once of-
fered to the Union to retain him in such a position. After
all, it has been observed that a lower paying job is better
than no job at all. See Arlington Hotel Co., 273 NLRB
210, 215 (1984). Thus, a failure to recall Greenwell is in-
consistent with any prior offer to retain him. According-
ly, I credit Younger's testimony as being more consistent
with the established facts and circumstances that no spe-
cific offer was made to retain Greenwell in a "C" posi-
tion.
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Even assuming that Respondent made an offer to
retain Greenwell in a "C" position, Respondent could
reasonably predict it would be rejected by the Union in
light of Greenwell 's skills, seniority and experience. The
Union's rejection of such an offer would be even more
predictable in view of Younger's disclosure initially to
Wilmer, and before any alleged offer was made, that
Greenwell was the Union 's main organizer . Such an
offer then could not have been made in good faith and
fails to reveal any absence of discrimination in Respond-
ent's layoff selection.
In response to the defense that other union activists
more prominent than Greenwell were retained it is suffi-
cient to note that the Board has held that where dis-
criminatory motive is otherwise established a violation of
the Act is not disproved by evidence that similar dis-
criminatory action was not taken against all union adher-
ents . See Pullman Power Products , supra at 767 . In the in-
stant case it is also to be noted that other union activists
were not shown to have engendered the same ire that
Respondent exhibited with respect to Greenwell's re-
ports to the Union.
The Board has stated that a judge's personal belief that
the employer 's stated reason for discharge was insuffi-
cient to warrant the action taken is not a substitute for
evidence that the employer would not have relied on this
reason alone. Bronco Wine Co., 256 NLRB 53, 54 fn. 8
(1981). Put another way, in the absence of discrimination
the Board may not substitute its judgment for that of the
employer in selections for layoff. Spotlight Co., 192
NLRB 491 , 496 (1971 ). It has also said that suspicion of
unlawful motivation is not enough , and evidence must
permit a positive finding (which may be based on cir-
cumstantial evidence) that union activity was a 'contribut-
ing factor. Ravsel-ide, Inc., 284 NLRB 879, 880 (1987),
quoting Briarwood Hilton, 222 NLRB 986,(1976). Consid-
ering the credited evidence in this case and the record as
a whole, I conclude that the General Counsel established
a prima facie case that Greenwell's layoff selection was
based upon union considerations in violation of Section
8(a)(3) and (1) of the Act. I conclude that the burden
shifted to Respondent to demonstrate that Greenwell
would have been selected for layoff even in the absence
of his protected union activities , and finally I conclude
on the evidence discussed above, and not on personal
belief, that Respondent 's asserted reasons for its selection
of Greenwell are lacking in substance, are unconvincing
and are pretextual . Consequently , I find Respondent
failed to satisfy the burden shifted to it. Bridgeway Olds-
mobile, 281 NLRB 1246 (1986). Accordingly, the 8(a)(3)
and (1) violations with respect to Greenwell alleged in
the complaint are found to be proved.
CONCLUSIONS OF LAW
1. Respondent, Kudzu Productions, Inc., is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, Local 780, International Alliance of
Theatrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatory laying off and refusing to recall
Earl Greenwell because of his support of the Union, Re-
spondent engaged in unfair labor practices within the
meaning of Section 8 (a)(3) and (1) of the Act.
4. By coercively threatening employees with retalia-
tion because of their support of the Union Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent having discriminatory selected Earl
Greenwell for layoff, it must offer him reinstatement and
make him whole for any loss of earnings and other bene-
fits, computed on as quarterly basis from the date of his
layoff to the date of a proper offer of reinstatement less
any interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).12
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
edls
ORDER
The Respondent , Kudzu Productions , Inc., Huntsville,
Alabama, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Selecting employees for layoff or discharge or oth-
erwise discriminating against them for supporting Local
780, International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the
United States and Canada or any other labor organiza-
tion.
(b) Coercively threatening employees with retaliation
because of their support of the above named or any
other labor organization.
(c) 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) Offer Earl Greenwell immediate and full reinstate-
ment to his former job, or if that job no longer exists to
a substantially equivalent position , without prejudice to
his seniority or any other rights and privileges previously
enjoyed , and make him whole for any loss of earnings
Is Under New Horizons, interest is 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.
13 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
KUDZU PRODUCTIONS 91
and other benefits suffered as a result of the discrimina-
tion against him, 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 and reports,
and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its laboratory facility in Huntsville, Ala-
bama, copies of the attached notice marked "Appen-
dix."14 Copies of the Notice , on forms provided by the
Regional Director for Region 10, after being duly signed
by the Respondent 's duly authorized representative, shall
be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
14 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."