Twistex, Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1987

283 N.L.R.B. 660 (N.L.R.B. 1987)

660 DECISIONS OF THE NATIONAL' LABOR RELATIONS BOARD
Twistex, Inc. and National Association of Govern-
ment Employees (SEIU/AFL-CIO). Case 1-
CA-23472
17 April 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 30 October 1986 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion . The Respondent and the General Counsel
filed exceptions and supporting briefs.
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,1 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, Twistex, Inc., South Grafton, Massachu-
setts, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
Substitute the following for paragraph 1(d).
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
Member Babson and Member Stephens find it unnecessary to pass on
the judge's application of the "small plant doctrine" in view of the other
grounds relied on by the judge that establish the Respondent's knowledge
of the union activity of employees Potter and Poulin. Additionally,
Member Babson and Member Stephens note that no exceptions have been
filed to the judge's finding that the Respondent did not violate Sec.
8(axl) based on Plant Manager Vouna's 8 October 1985 conversation
with Potter
2 The General Counsel excepts, inter alia, to the judge's recommended
remedy and Order to the extent that they provide backpay for Potter and
Poulin based on their part-tune status, contending that these employees
were entitled to recall to full-time positions. We note, however, that the
complaint alleges that the Respondent unlawfully refused to recall Potter
and Poulin from layoff and that as of the time of their layoffs they occu-
pied part-time positions. Furthermore, we find that the evidence is insuf-
ficient to establish that Potter and Poulin requested and were entitled to
recall to full-time positions. Accordingly, we find the General Counsel's
exceptions without ment
The judge recommended that a broad cease-and-desist order issue
against the Respondent We have considered this case in light of the
standard set forth in Hickmott Foods, 242 NLRB 1357 (1979), and have
concluded that the narrow cease-and-desist order is appropriate. We shall
modify the judge's recommended Order accordingly. Despite his recom-
mended Order, however, we note that the judge's recommended notice
contains the narrow cease-and-desist language
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act:" -
Ronald S. Cohen, Esq., for the General Counsel.
Richard G. Remmes, Esq., of South Boston, Massachu-
setts, for the Respondent.
Robert Weihrauch, Esq., of Worcester, Massachusetts, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR ., Administrative Law Judge.
This matter was heard in Boston, Massachusetts, on 16,
17, and 18 June 1986 . The proceeding is based on a
charge filed 10 January 1986,1 by National Association
of Government Employees (SEIU/AFL-CIO). The Re-
gional Director's complaint dated 20 March 1986 , alleges
that Respondent Twistex , Inc., of South Grafton, Massa-
chusetts , violated Section 8(a)(1) and (3) of the National
Labor Relations Act by laying off and subsequently fail-
ing and refusing to recall two employees because of their
union or other protected concerted activities and by at-
tempting to cause another employer to discharge one of
the same employees.
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged in the manufacture , distribu-
tion, and sale of yarn products . It annually ships goods
valued in excess of $50,000 from its South Grafton loca-
tion to points outside Massachusetts and it annually pur-
chases and receives goods and materials valued in excess
of $50,000 directly from points outside Massachusetts. It
admits that at all times material it has been an employer
engaged in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act . It also
admits that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Twistex is primarily owned by Bruce Kiviat (as well
as brothers Reed and Douglas Kiviat), however, it is not
shown that he is actively engaged in company oper-
ations. His father, Jerry (Jerome) Kiviat, owns the build-
ing in which Respondent conducts its operations. Several
other tenants are located in the same building. Jerome is
shown to serve as Respondent's "engineering" consultant
and he plays an active role in directing Respondent's
fundamental operations. He is recognized by the employ-
ees as being personally engaged in labor relations matters
and the day-to-day plant operations. Jerome receives
consultant fees that exceed the annual salary paid Plant
Manager Sam Vouna.
i All following dates will be in 1985 unless otherwise indicated.
283 NLRB No. 102
TWISTEX, INC.
Jerome is also the president and owner of'Brentwood
Yarn Mills. This company owns the machinery used by
Respondent, as well as the raw materials it processes. In
effect Respondent contract processes Brentwood's yarn
for a set fee per pound. Brentwood has a manufacturing
facility of its own located on Long Island, New York. It
also uses the processing services of BRD Industries, of
New Jersey, an operation similar to that of Respondent
and owned by Bruce, Reed, and Douglas Kiviat. Both
Respondent and BRD contract exclusively with Brent-
wood, Richard Cadrin serves as the controller of both
Respondent and Brentwood but maintains his office in
South Grafton. Jerome Kiviat has his office at Brent-
wood but visits South Grafton frequently and otherwise
is in almost daily phone contact with plant manager
Vouna or Cadrin. Vouna also holds a position on the
payroll of both Respondent and Brentwood.
Among other activities, Jerome Kiviat regularly has
discussed employee wage levels with Vouna and Cadrin
and Jerome, along with Vouna represented Respondent
in a meeting with an investigator for the occupational
Safety and Health Administration (OSHA). Cadrin testi-
fied that the work capabilities of the three facilities are
partially interchangeable and that Respondent has better
machinery and can perform all the functions of the other
plants plus handle heavier yarns that the other plants
cannot process. The assignment of work to any particu-
lar plant is made by scheduling people who work under
the direct supervision of Jerome Kiviat. Also, by letter
dated 10 October Jerome notified Vouna of a decision to
cut back production at Respondent's plant and directed
Vouna to immediately layoff any "excessive part time
help."
Although the Respondent disclaims any ownership
status by Jerome Kiviat, I conclude -that regardless of
Bruce Kiiviat's titular position as president, the record
shows such close and intimate control over the oper-
ations by Jerome that it must be concluded that he
served as a supervisor and agent acting for and on behalf
of management and that his statements and actions perti-
nent to the charges herein must be found to be attributa
ble to Respondent.
Respondent's manufacturing process involves three
basic production ^ operations; twisting, binding, and
winding/reeling and for the most part the production op-
erations are located on the fourth floor of the Kiviat's
building. The main production room contains the twist-
ing and binding operations together with two winders
and the core winder. The tube winding operation is in a
separate room on the same, floor.
Because of a general drop in the overall business 'gen-
erated by Brentwood, Respondent started an experimen-
tal hand-knit operation in the spring of 1985. In conjunc-
tion with the hand-knit business, Respondent began plan-
ning' for a retail store, which it opened on the fourth
floor in the spring of 1986. ,
Tina Potter began working for Respondent in 1980 on
a part-time basis. On graduation from high school in
1981, 'she became a' full-time employee. Potter started on
skeining and then at various times performed all other
production tasks including reeling, binding, twisting, and
cone and tube winding. She was laid off during the win-
661
ters of both 1981 and 1982, but returned in April 1983. In
late October 1984 she requested a raise from her base
wage of $3.95 an hour and quit when Jerry Kiviat told
her she would never make $5 an hour working for him.
She returned to Respondent in April 1985 on a part-time
basis and told Vouna she would consider going full time
in September. During the latter half of September she
performed, twisting and binding. on Respondent's new
hand-knit project and returned to cone winding and pull
skeining shortly before being laid off on October 11.
Generally, she worked 4 morning hours, but often stayed
latter at Vouna's request.
Sandra Poulin was first employed by Respondent from
1979 to September 1981 and again from August 1983 to
July 1984, predominently part time. She returned with
Potter on a part-time basis in April 1985. She worked in
all production jobs except seining and during the last
period of employment performed binding cone winding,
twisting, and, during the second week of October, tube
winding.
During the greater part of 1985, Respondent generally
employed approximately 22 production employees. And,
until October, production ran on three shifts. Poulin held
employee number 20, while Mary Richard, described by
Respondent as the senior part-time employee (apparently
because of her continuous service record) was number
22, and Potter was'number 163. New employees hired in
November received 400 series numbers.
In early September Potter and Poulin spoke with
Vouna about their perceived unsatisfactory working con-
ditions. They specifically referred to eye, ear, and lung
protection and requesting a water fountain, eye goggles,
and ear plugs. Vouna said he would see about a fountain
and suggested that the Company would reimburse them
if they purchased other items themselves.
Poulin testified that on two occasions in mid-Septem-
ber Vouna' told them they could work all the overtime
they wanted and when they mentioned the possibility of
going full time he said to wait and see after the anticipat-
edOctober raises went into effect. He also explained that
they were,going to hire some new people and start up a
"skeining" operation involving the packaging of yarn in
quantities suitable for retail sale.
Potter testified that Bouna said he had discussed their
raises with Jerry and that they would get a 30-cent-an-
hour increase but that they, should not discuss it with
others as the others would not be getting as, much. She
also confirmed Vouna 's comments about available work,
his offer of more hours, and the possibility of full-time
work. When she indicated a reluctance to work more
hours because of' a dissatisfaction with her pay rate,
Vouna said he was' gong to hire others whether they
went full time or not and repeated that they could' work
as -much as they wanted as there was plenty of work.
During the latter conversation with Vouna, he also indi-
cated that they would receive 30-cent-an-hour raises.
(The extra 10 cents apparently was designed to make up
for a raise other employees had received the previous
year when Potter and Poulin were, not working.)
During mid-September, Vouna assigned Potter to the
pull-skeining operation for several days of training on the
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
new job . Also in mid -September Poulin told Vouna that
she did not want to work with employee Gina Perras
who worked on a binding machine . The explanation for
her statement was that Gina sat down much of the time
and got away with a` lot of things because she was the
girl friend of forman Bruce Boisvert.
On 19 September Poulin, in Potter's presence and after
discussing their dissatisfaction with working conditions,
called the Occupational Safety and Health Administra-
tion, and shortly thereafter received a complaint form.
On 30 September Poulin , together with Potter, filled
out, signed, and mailed a complaint to OSHA regarding
nine areas of concern including lack of hearing protec-
tion , cotton, and wool contamination in nose , eyes, and
lungs , and lack of drinking fountains.
On 2 October, Potter and Poulin met at the latter's
home with Dave Surpernant , a representative of the
Union . They received union literature and authorization
cards that they then took to work and distributed the
next day. Potter gave them personally to 4 or 5 employ-
ees and placed literature in the ladies' room and on
windshields of - vehicles in the employees' parking area,
including Foreman Boisvert's truck. Potter testified that
Boisvert - was 15 feet away and looking at her while she
distributed some literature in the twisting and binding
room. On 4 October, additional literature , which specifi-
cally listed Potter and Poulin as the persons to contact
for more information , was distributed in the same
manner as well as at the lunch table where they were ob-
served by Foreman Boisvert . Potter testified that Bosi-
vert then approached them , and stated they were not
going to form a union as Jerry Kiviat would not let
them. Boisvert admitted that he saw the union pamphlets
on the lunch table and that he then went to Vouna's
office and asked if Vouna knew what was going on out
there . Vouna replied affirmatively and, Boisvert observed
that a union leaflet was on Vouna 's desk . Boisvert denied
that he identified any particular employees as being in-
volved in the Union, however , he admitted that while a
group of employees, including Potter and Poulin, were
talking about the Union he said that "Jerry Kiviat would
not let the union in here and would close down first."
Boisvert also testified that the literature he found on
his truck and first saw in the plant did not have any em-
ployee names on them . He admitted, however, that he
heard rumors going around that Potter and Poulin were
trying to get a union in there, but denied that he told
that to Vouna.
On 7 October , without prior notice , to the staff, Jerry
Kiviat , Vouna, and Cadrin held a meeting with all the
day-shift ' production employees (approximately 10 people
were in attendance). Cadrin had a pad and pen and took
notes of what went on. Kiviat opened by stating that it
had been a year since their last meeting, it was time for a
meeting , and he wanted to hear any complaints the em-
ployees had. Respondent asserts that it has been Kiviat's
practice to have an annual meeting near 1 October and
to give a review of the company 's condition .' Potter,
however, recalled that the last company meeting had
been in August 1984 , and that they had several days ad-
vanced notice prior to the meeting . Potter asked for a
water fountain , clean lunch table , and a sanitary napkin
machine in the ladies ' room and spoke about her eyes
being bothered. Poulin asked for hearing protection and
mentioned ventilation , breathing dust, and not knowing
the makeup of the yarn . Other employees made com-
ments , both pro and con, regarding the suggestions.
During the 45-minute meeting Kiviat also told the em-
ployees that work was slow but that of his three plants,
Respondent would be the last place to have a layoff be-
cause he would take work from the other plants and
keep Respondent going . Cadrin testified that in response
to the complaints , Respondent ordered a water bubbler
and sanitary napkins and that after acting on these mat-
ters, he discarded his notes of the meeting.
On 8 October Potter and Poulin both received of 20-
cent-an-hour pay raises , rather than the 30 cents they had
expected. The next day they both spoke with Vouna
about it and he told them that because employees in the
plant were complaining about discrimination , he decided
to give everyone the same raise . During the same con-
versation Potter questioned why all the woman except
for Potter and Poulin were asked their preference for the
type of sanitary napkins and he replied it has all been
done by his secretary.
Also on 8 October Potter and Poulin observed an
OSHA inspector tour the plant in the company of Man-
ager Vouna. Both were given "boxes" for the taking of
some measurements and the next day when Potter asked
Vouna what had been going on, Vouna responded with a
question about who had made the OSHA complaint and
Potter said she had no idea who it was. Poulin also saw
Jerome Kiviat in the office but he did not look at her
and, when she left, the company mechanic commented
that , Kiviat was upset about OSHA being at the plant.
Potter also recalled that on 8 October they spoke with
Boisvert at the lunch table and he was upset because as a
result of the presence of its OSHA inspector he had been
required to vacuum the "fuzz" from the various ma-
chines.
On 10 October Vouna told Poulin and Potter that he
was cutting back on their hours. Poulin recalled that
they had been working more than 4 hours a day for 2
months . (Record indicates that for the last 3 weeks of
September, they averaged 20 hours a week or less, how-
ever, the first week of September and the next 2 weeks
in October generally reflect more than 4 hours a day.)
On 11 October Potter and Poulin were both told by
Vouna that they were laid off because work was slow
and because they had the least seniority of the part-time
workers.
On leaving Respondent's area of the plant both went
to another company , located in the same building, and
applied for jobs. Both testified that the supervisor said he
would love to hire them and indicated he was aware of
something going on about some union activity upstairs.
Subsequently , on 4 November, Potter obtained a job
with Hospital Data.
During 1985 Hospital Data Systems rented portions of
the second floor in the building owned by Jerome Kiviat
and 'utilized by Respondent . Its president ,, Richard An-
derson, testified that while he was absent his foreman
had hired some additional help from within the building.
TWISTEX, INC.
On his return in the early part of November, he visited
Vouna's office at the latter's request Vouna told Ander-
son that he had a personnel problem because a girl he
had hired, Tina Potter, was vindictive and a troublemak-
er and Vouna suggested that it would be in everyone's
best interest if Anderson discontinued her employment.
Anderson also recalled that Vouna had referred to some
relationship she had with a,,union . Vouna admitted that
Anderson's recollection was substantially correct but
stated he said nothing about -"union cards" Vouna added
that he had just received the OSHA citation reflecting
Potter's and Poulin's names, knew they were working
downstairs, and, he just wanted to tip Anderson off that
they were troublemakers. Potter testified that her fore-
man -from Hospital Data told her she might be laid off
because Respondent had spoken with Anderson, said she
was a troublemaker, and was upset that she had been
hired.2
During the first week of December Poulin saw news-
paper ads by Respondent for full-time employees. She
called Vouna who told-her he had no more openings at
the time. Vouna admits that he was hiring at that time,
but did not consider Poulin because he assumed she was
seeking part-time work and he wanted full-time binding
and, twisting operators.
On 14 January 1986, Potter listened on an extension
phone while Poulin called Vouna and asked if any full-
time employment was available. He answered in the neg-
ative and when she asked if he knew when she might be
called back to work he said he had no idea.
Potter also testified that in a conversation with Vouna
in September, prior to her layoff, she had learned of Re-
spondent's plans; to open a retail outlet and had told him
she had 6 months of retail experience and would like to
work in the planned store. Vouna indicated it would be a
good idea but to just wait as he did not know when it
would all happen. Vouna recalled the conversation but
testified that he subsequently did not place the ads or do
the hiring for the positions that were filled.
Plant Manager Vouna testified that at the end of
August, Respondent had run out of wool orders, which
resulted in the end of reeling (skeining) operations, and
that a major cotton order being produced for a manufac-
turer of sweaters was placed on hold early in October.
Consequently, it was decided that the third shift should
be eliminated, effective 9 October, in order, to stretch out
the work and reduce the number of employees. Vouna
stated the change to a two-shift operation: automatically
reduced production by one-third and 'resulted in there
not being enough day shift work in tube winding to keep
Poulin, Potter, and two other employees who performed
that function, occupied. Potter and Poulin were consid-
ered to be the least senior employees in tube winding be-
cause both had, returned to work in April 1985 after quit-
ting in the early fall of 1984, and it was considered to be
company policy that part-time employees be laid off first.
Vouna also indicated that in addition to the economic
reasons for their layoff, he also considered ',their intracta-
ble attitude as evidenced by their past work history, in-
2 Although Respondent objected to the hearsay nature of this state-
ment, its objection was not pursued on brief.
663
eluding Poulin's leaving without notice in April after re-
turning for only I week as a full-time employee (she then
went to part time) and because she threatened to quit
rather than, work as a "binder", in the main production
area because she could not get along with the First-Shift
Foreman Boisvert and employee Gina Perras.
III. DISCUSSION
The issues in this case arose from the events surround-
ing a brief union organizational, attempt by two employ-
ees and their contemporaneous filing of a complaint with
OSHA about working conditions. A -review of the
record leads to the conclusion that the Company re-
sponded with the layoff of the involved employees and a
subsequent refusal to recall them.
As noted above, I conclude that'Jerome Kiviat exer-
cises effective control over Respondent and two other
companies engaged in the same business and that he is a
supervisor and agent of Respondent whose statements
and actions pertaining to the involved complaint proper-
ly are attributable to Respondent. I also find Foreman
Bruce Boisvert is a statutory supervisor within the mean-
ing of Section 2(11) of the Act.3
Boisvert admitted that when he first saw union litera-
ture being distributed he told a group of employees, in-
cluding Potter and Poulin, that Jerry„ Kiviat would not
let the union in and would close down first. On' cross-
examination Respondent attempted to minimize the
nature of this threat by obtaining an answer from Bois-
vert that this was only his personal opinion and was not
based on any comments by Kiviat, however, it is well es-
tablished that'a supervisor' s statement to employees that
threatens plant closure if a union is organized constitutes
illegal interference. Accordingly, I find that Boisvert's
statement of 8 October is attributable to Respondent and
that the statement interfered with `the union activity of
employees in violation of Section 8(a)(1) of the Act, as
alleged.
Also on 8 October the plant was visited by an OSHA
investigator and it is alleged that subsequently Vouna in-
terrogated Potter about who had made the 'complaint.
The only evidence' relative to, this allegation indicates
that Vouna made a comment that he was trying to find
out who made a complaint in response to Potter's ques-
tion to him about what was going on with the presence
of the OSHA investigator. Under these circumstances, I
do not find that his answer rises to a level that would
tend, to restrain, coerce, or interfere with employees'
rights, see Rossmore House, 269 NLRB 1176 (1984), and I
fmd that Respondent is not shown to have violated the
Act in this respect, as alleged.
'turning to the layoff and, refusal to recall aspects of
this proceeding, applicable law requires that-the General
Counsel meet an initial burden of presenting sufficient
evidence to support an inference that the employees'
union or other protected, concerted activities' were the
motivating factor in the employer's decision to lay off
3 The record shows that Botsvert was regarded as a supervisor by the
employees, he admittedly could and did hire, fire, and discipline employ-
ees and he was a salaried worker who received essentially twice the rate
other production employees were paid.
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and not recall the employees. Here, the record shows
that Potter and Poulin openly distributed union leaflets
during the early part of October. This occurred in front
of Foreman Boisvert and lead to his admitted comment
that Kiviat would not- let the Union in and would close
the plant.
Secondly, after having first made certain personal
complaints to Vouna about perceived unsatisfactory
working conditions, Potter and Poulin filed a complaint
with OSHA on 30 September. These complaints were
also repeated by Potter and Poulin in the unannounced
general meeting of all employees called by Kiviat on 7
October. On the morning of 8 October, when the OSHA
inspector visited the plant and brought the complaint to
the attention of Vouna and, apparently, Jerome Kiviat,
the investigator's notes indicate that Vouna asked him to
test the two employees he believed to be the "source of
all this" with a "dosimeter" and that Respondent stated
the "complaint arose from an ongoing effort to unionize
the shop." Potter and Poulin were both tested. Later that
same day Vouna met with Cadrin and assertedly made
the decision, to lay off both employees. The subject of
the OSHA complaint involved working conditions and
Potter's and Poulin's joint complaints to Vouna regard-
ing the same matters (as well as pay rates), clearly con-
stitute a protected, concerted activity, see A. N. Electric
Corp., 276 NLRB 887 (1985). On 11 October they were
told of their layoff and, subsequently, no effort was made
to recall them, despite the fact that ads were placed for
new employees, some new employees were hired, and
Potter and Poulin both made inquires about returning to
work. Under these circumstances, _ I conclude that the
General Counsel has met his initial burden by presenting
a prima facie showing sufficient to support an inference
that the employees' union activity and their protected,
concerted OSHA complaint were the motivating factors
in Respondent's layoff decision as well as its apparent
subsequent decision to not recall them from layoff status.
Accordingly, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in
Wright Line, 251 NLRB 1083 _(1980), see also NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983), to
consider Respondent's defense and, in the light thereof,
whether the General Counsel has carried his overall
burden.
Although Respondent denies that Plant Manager
Vouna had any knowledge of Potter's and Poulin's union
activity at the time of their layoff, the record does estab-
lish that by 4 October, when Vouna was told about
union activity by Boisvert, he already had possession of
a union leaflet brought to him by his secretary and he
had acknowledged that he was aware of what was going
on. Although -it was not established that the leaflet seen
by Vouna specifically identified Potter and Poulin, Bois-
vert admitted that rumors were going through the plant
identifying them as the persons trying to get a union
started.
As noted, Respondent's operation involved 22 or
fewer production employees (9 or 10 in a shift), working
in an open environment in which Supervisors Boisvert
and Vouna were regularly present and in which Potter
and Poulin openly distributed leaflets, some of which
carried their names . While Boisvert and Vouna deny that
Boisvert identified the union activitis to Vouna, Boisvert
testified that he assumed Vouna already knew and I do
not credit Vouna's bear disavowal of knowledge. Under
these circumstances, it is appropriate to apply the "small
plant rule" and infer the presumptive likelihood that
Vouna had knowledge of the employees' open activities,
inasmuch as there is sufficient other information, includ-
ing the admitted rumors and presence of leaflets with
Potter's and Poulin's name, and the conveyance to
Vouna of a leaflet by his 'secretary, to independently
infer Respondent's knowledge of their union activity. See
D & D Sewing Co. v. NLRB, 801 F.2d 636 (3d Cir. 1986).
Respondent also denies that it knew Potter and Poulin
were behind the OSHA complaint until after the layoff,
when, on 19 October it received a document that specifi-
cally carried their names-. As otherwise noted, Respond-
ent told the OSHA investigator that it believed it 'knew
the source of the complaint and then' specifically directed
testing of Potter and Poulin. Otherwise, the sequence of
direct complaints to Vouna and Kiviat on the same spe-
cific subjects covered in the OSHA complaint independ-
ently support an inference that Respondent knew or be-
lieved at the time Potter and Poulin were laid off that
they were responsible and I cannot ' find Vouna's denial
in this respect to be credible. While I conclude that these
circumstances are sufficient to establish Respondent's
knowledge, I also conclude that this inference is further
supported by the timing of the layoffs and,- as discussed
below, the pretextual quality of Respondent's asserted
justifications for its action and for its subsequent failure
to recall them from layoff. These factors also establish a
basis for the inference that Respondent was aware of the
employees' protected activity and that such knowledge is
directly, linked to their respective layoffs and Respond-
ent's subsequent failure to recall them. See Dr. Frederick
Davidowitz, D.D.S. a Professional Corp., 277 NLRB 1046
(1985).
Respondent's principal defense rests on its claim that a
reduction in its work force was required because of a de-
cline in orders. Vouna testified that when there are lay-
offs Kiviat usually orders him to lay off "a certain
amount of hours" and, when work decreased in 1984,
Respondent cut hours back by 20 percent instead of
laying off employees. However, in October Kiviat de-
parted from the norm by ordering the layoff of "exces-
sive" part-time employees.
Also, in 1982 Respondent asked for volunteers as an
alternative to layoffs,, however, no such request was
made in 1985 even though it knew of two employees
who were pregnant and had already indicated they
would be leaving work in December. Vouna's attempted
explanations for the variance were contradictory and un-
persuasive. For example, he first said he did not cut
hours in 1985 because when he did that in 1984 it caused
some third-shift employees to quit. However, Vouna also
testified at the hearing, and in his affidavit, that he had
decided to eliminate the third shift with the hope that
this would cause the same third-shift employees to quit.
Vouna further testified he did not cut back hours be-
cause he did not want to unfairly, penalize all the em-
TWISTEX, INC.
ployees, yet he attempted to force third -shift employees
to quit . Subsequent to the alleged unfair labor practice in
1985, Respondent again utilized cuts in hours for reduced
work loads in 1986 , and there were no apparent layoffs.
Respondent presented an exhibit and testimony regard-
ing the numbers of production employees at its several
related plants. This shows that between weeks 42 (the
week Potter and Poulin were laid off) and 43, Respond-
ent's Tvriistex plant had a reduction of three production
employees while the BRD, plant showed an increase of
one production employee and the Brentwood plant
showed no change . It appears that the only involuntary
cutback imposed on employees at any of the three plants
was the layoffs of Potter and Poulin . This is to be con-
trasted to 1984 when during the months of October
through December the number of production employees
of Respondent increased while the number of production
employees at- BRD decreased from 52 to 14 and the
number of production employees at Brentwood de-
creased by one in the same period . The 1984 practice
was consistent with the assurance given in October 1985
by Jerome. Kiviat that production would be shifted to
Respondent from other plants (it was considered that the
work force at both of its other facilities was considered
to be more elastic and could be more readily replaced
after a layoff than at Twistex, yet, only a week later, this
practice was not followed.
During that period of time the union organizational
drive activated by Poulin and Potter occurred and, as
urged by the General counsel, the evidence establishes
that Respondent departed from its normal practice in de-
ciding to have a layoff at the plant and in implementing
that layoff, thus supporting an inference that Respond-
ent's actions were unlawfully motivated. See Heartland
Food Warehouse , supra. Under these circumstances; I find
that Respondent 's principal stated economic reason for
the layoff of Potter and Poulin is pretextual .- Although
some decrease in production occurred, it appears that
this was manipulated by Jerome Kiviat to adversely
affect Respondent 's plant despite his assurances to the
contrary.
Significantly, Respondent stated it selected Potter and
Poulin as they were the least senior part-time workers
(but based on then current time rather than total or origi-
nal starting date) but also has asserted various other rea-
sons, including the assertion that they were doing wind-
ing, a function no longer needed, and were reluctant to
work in twisting and binding. These reasons must be
contrasted with the showing that both Potter and Poulin
were qualified and experienced in all job functions and
that any reluctance to work was directed at working
conditions in a particular location where management
failed to correct a situation where foreman Boisvert gave
preferential treatment to his girlfriend . Also, in a letter
dated February 25, 1986, from Respondent to OSHA,
Respondent listed , seven reasons for selecting them for
layoff including the assertation that their attendance was
poor, that Potter had quit 1 year earlier after demanding
a 25-percent pay increase and had been laid off twice
before, and that Poulin had previously quit twice and
had been fired once.
665
Under these circumstances , I conclude that the appar-
ent shifting and subsequent buildup of additional reasons
for their layoff only serves to further underscore its un-
lawful motive and the pretextual nature of their layoff.
See J & G Wall Baking Co., 272 NLRB 1008 ( 1984).
Respondent's reasons and testimony also are rendered
suspect by the timing of the layoff almost immediately
after the visit of the OSHA investigator, by the apparent
repudiation of Kiviat's assurances that Respondent's fa-
cility would be the last to have a layoff, and by the con-
tradictory statements of its various principals . For exam-
ple, Vouna testified that he made the decision to lay off
the two employees on 8 October , yet a letter of instruc-
tions from Kiviat clearly implies that the decision was
made by Kiviat on 10 October . However , Cadrin in-
formed OSHA that the decision to lay them off was
made on 11 October . Also, Vouna 's affidavit stated that
a decision was made on 1 or 2 October to lay off a full-
time employee or two part -time employees . Vouna also
testified that Kiviat told him to lay off one full-time em-
ployee and he then decided to lay off two part -timers,
however, Kiviat's letter clearly states that Kiviat ordered
the elimination of "all excessive part-time employees."
Vouna attempted to portray the 'elimination of the third
shift and the layoffs as part of the same decision-making
process and testified that the decision to lay off the two
employees was made at the same time it was decided to
eliminate the third shift but in his affidavit he stated he
made the decision to eliminate the third shift weeks
before 8 October, and Cadrin's letter to OSHA clearly
separated the two events.
I, conclude that the totality of Respondent 's motiva-
tional defense is_ pretextual and I find that Respondent
has failed ' to show that `it would have laid off either
Potter or Poulin absent the start of the Union 's organiza-
tional drive and the visit of the OSHA investigator and
Respondent's suspicions that each of them was engaged
in union activity and in the making of a complaint to
OSHA.
Respondent has failed to meet its burden under Wright
Line, supra, and, as the General Counsel otherwise has
shown by, a preponderance of the evidence that both
Potter and Poulin were laid off because of their protect-
ed activities and, I further conclude that Respondent
thereby violated Section 8 (a)(1) and (3) of the Act as al-
leged.
The conclusion reached regarding Respondent 's moti-
vation for the layoff are reinforced by a review of Re-
spondent's actions subsequent to the layoff.
After Potter was hired by another employer, in the
same building as Twistex, a building owned by Kiviat
(and after Respondent had received an OSHA document
specifically identifying Poter and Poulin as the complain-
ing parties), Vouna admitted asking her new employer to
get rid of her because she was vindictive and a trouble-
maker . I also credit that the Company 's president, who
independently testified that Vouna made a reference to
Potter's involvement with a union. This action by Vouna
constitutes a separate violation of Section 8(a)(1) of the
Act, as alleged.
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Production continued during the fall of 1985, and Re-
spondent experienced some turnover of employees. Re-
spondent placed newspaper ads for , and hired several
new production employees . Potter and Poulin both spoke
to Vouna about coming back to work. Poulin specifically
telephoned Vouna in December asking for work right
after Vouna began advertising for full-time help. Vouna
explained that he did not hire Poulin because he assumed
she was calling for part-time work , yet the record shows
that one former employee on disability and one new em-
ployee were put on in November as part-time employees.
Respondent's work records also show that numerous
employees, including newly , hired workers, consistently
had weekly - wages in the range between $98 and $62
(Mary Richards a retired , part-timer also consistently
worked 20 hours), from November 1985 through January
1986, whereas a comparable 40 hour production wage
apparently would be at least in the $135 range . Also, reg-
ular production workers regularly worked between 2
and 15 hours overtime each week and received signifi-
cantly greater wages.
A comparison for the last half of 1985 of the numbers
of production employees at Respondent and at the two
other companies controlled by Kiviat also indicate that
Twistex went from a consistent level of 20 employees in
the third quarter to a fluctuation between 18 and 14 in
the fourth, while BRD went from a third quarter 12-15
range to a higher 16-20 range in the fourth quarter, and
Brentwood went from a third quarter 24-30 range to a
consistent 27-in the fourth quarter. Under these circum-
stances, it appears that little effort was made to assign
more production to Respondent 's plant despite the fact
that , it had better machinery, Kiviat had promised the
employees that he would do so, and that had been the
practice iii the past.
Under these circumstances, I fmd that Respondent had
ample opportunity to recall Potter and Poulin from
layoff but never sought to do so . Moreover, it specifical-
ly denied their request for recall . I' further find its at-
tempt to find a distinction between their asserted status
as part-time employees, qualified in only one area of op-
eration, to be contrary to its operational practices and
clearly pretextual . Respondent clearly knew of Potter's
and Poulin's OSHA complaint by this time and it also is
shown that it mentioned Potter 's union activity when it
attempted to get an independent employer to terminate
her. I therefore conclude that the motivating factor
behind Respondent's failure to recall them from layoff
was their union and protected concerted activity and I
conclude that Respondent is therefore shown to have
violated Section 8(axl) and (3) of the Act in this respect,
as alleged.
Under all these circumstances , I conclude that Re-
spondent has not met its burden of showing that - Potter
and Poulin 'would have been laid off and not recalled
absent their union activity and protected concerted activ-
ity in filing their OSHA complaint, compare Dorothy
Shamrock Coal Co., 279 NLRB 1298 ( 1986). The General
Counsel otherwise has met , her overall burden of proof
and I further conclude that Respondent thereby violated
Section 8(a)(1) and (3) of the Act, as alleged.
CONCLUSIONS OF LAw
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7)'of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening that the plant would be shut down
before a union would be let in, Respondent has inter-
fered with, restrained , and coerced employees in the ex-
ercise of their rights guaranteed them by Section 7 of the
Act, and thereby has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
4. By attempting to cause another employer to dis-
charge Tina Potter , in retaliation for her union and pro-
tected concerted activity , Respondent has violated Sec-
tion 8(a)(1) of the Act.
5. By laying off employees Tina Potter and Sandra J.
Poulin on 11 October 1985 and by subsequently failing
and refusing to recall them from lay off because of their
union activity and protected concerted activity, Re-
spondent has violated Section 8 (aX3) and (1) of the Act.
6. The Respondent has not otherwise engaged in con-
duct violative of the Act as alleged in `the complaint. -
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find , it necessary to order it
to cease , and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily laid off and
failed , to recall employees Potter and Poulin, - 1 fmd it
necessary to order it to offer them reinstatement to their
former positions with compensation for loss of pay and ,
other benefits , in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in Flori-
da Steel Corp ., 231 NLRB 651 (1977). It also shall
remove from its files any,reference to-the separation and
notify them that it has been done and that evidence of
such unlawful action will not be used as a basis for fur-
ther action against them. See Sterling Sugars, -261-NLRB
472 (1982). Otherwise, because of the serious nature of
the violations and an overall display of a general disre-
gard for the employees ' fundamental rights, I fmd it nec-
essary to issue a broad Order , requiring the Respondent
to cease and desist from infringing in any other manner
on rights guaranteed employees by Section 7 of the Act.
Hickmotr Foods, 242 NLRB 1357 (1979).
As a part of the relief, sought, the General Counsel
also seeks imposition of a so-called ' "visitatorial clause"
whereby the Board would be authorized ' to engage in
certain discovery activities in order to monitor compli-
ance . Although the imposition of such a provision re-
cently has become a common practice, there is no show-
ing that' it is of particular applicability or usefulness in
dealing with the type of unfair labor practice involved in
this proceeding . Accordingly , the request ' is denied and
no visitatorial clause will be imposed as part of the order
herein.
TWISTEX, INC. 667
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Twistex, Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with the closure of its busi-
ness before it would allow a union.
(b) Attempting to cause another employer to discharge
former employees in retaliation for their union or other
protected concerted activity.
(c) Laying off or failing and refusing to offer recall to
any employees or otherwise discriminating against them
for engaging in union organization activity or other pro-
tected concerted activity.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Tina Potter and Sandra A. Poulin immediate
and full reinstatement to their former or equivalent posi-
tions and make them whole for the losses they incurred
as a result of the discrimination against them in the
manner specified in the section above entitled
"Remedy," and remove from its files any references to
these separations on 11 October 1985, and notify them in
writing that this has been done and that evidence of this
unlawful separation will not be used as a basis for future
personnel actions against them.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its South Grafton, Massachusetts, facility
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
4, 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.
5 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."
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 the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED, that the complaint be dis-
missed insofar as it alleges violations of the Act other
than those found above.
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.
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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten employees with the closure of
our business before we would allow a union.
WE WILL NOT attempt to cause any other employer to
discharge any' of our former employees because they en-
gaged in union organization activity or other protected
concerted activity.
WE WILL NOT layoff or refuse to recall employees laid
off or otherwise discriminated against for engaging in
union organization activity or other protected concerted
activity.
WE WILL NOT in any like or related manner interfere
with, coerce, or restrain our employees in the exercise of
the rights set forth above.
WE WILL offer Tina Potter and Sandra A. Poulin im-
mediate and full reinstatement to their former or equiva-
lent position and make them whole for any losses they
incurred as a result of the discrimination against them in
the manner specified in the section entitled "Remedy."
WE WILL remove from our files any references to
their separations, and notify them in writing that this has
been done and that evidence of this unlawful separation
will not be used as a basis for future personnel action
against them.
TWISTER, INC.