NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,431, SIMMONS COMPANY and MIDWEST REGIONAL JOINT BOARD, AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO-CLC., (Aug. 15, 1994), National Labor Relations Board, (Aug 15, 1994)

SIMMONS COMPANY and MIDWEST REGIONAL JOINT BOARD, AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO-CLC.

314 NLRB No. 121.Case Nos. 30-CA-11635 and -11959-2. August 15, 1994 Michael O. Miller, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Paul Bosanac, for General Counsel. Townsell G. Marshall and Charles W. Brown (Constangy, Brooks & Smith), for Respondent. Patrick Cronin, for Charging Party.

Layoffs--Discriminatory--Just Cause Found.--Although the General Counsel made a prima facie case that an employer discriminated against a known union organizer by issuing her disciplinary warnings and, thereafter, by laying her off, the employer successfully rebutted that showing. There was no disparate treatment of the employee with regard to the warnings and the employee, as the least senior worker in her department, rejected other work that would have precluded her layoff. Section 8(a)(3).

Back reference: ¶4095.201.

From Text of Board’s Decision

The National Labor Relations 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 except as modified and to adopt the recommended Order.

We agree with the judge that the Respondent did not violate Section 8(a)(3) and (1) of the National Labor Relations Act by: issuing warnings to employee Florin on December 3, 1991, January 15, 1992, April 29, 1992, and March 12, 1993; laying off Florin in December 1992. We find, however, contrary to the judge, that the General Counsel made a prima facie showing that these actions violated Section 8(a)(3) but we also find that this showing was successfully rebutted by the Respondent. [2]

As more fully discussed in the judge’s decision, the Union conducted an organizational drive in 1991. Employee Jennifer Florin served on the organizing committee. Certain aspects regarding the creation and management of the employee stock ownership plan (ESOP) became issues in the Union’s campaign. The Union lost the election held on April 25, 1991. [3] On November 6, 1991, Florin became a named plaintiff in a class action suit regarding the ESOP. [4] On November 15, 1991, plant General Manager Saliture, a named defendant in the suit, addressed the plant’s employees. In the speech he linked Florin and the Union to the suit and stated that the Respondent felt that the suit was an attack on the Company, stated that the employees did not have to participate in the suit, and launched a verbal attack on the Union. On December 16, 1991, the plaintiffs in the suit filed a motion for an order prohibiting the defendants from engaging in unsupervised communications with class members regarding the suit. An affidavit, signed by Florin, was attached to the motion. The motion was granted January 16, 1992. On March 31, 1993, the Court approved a settlement of the suit.

Saliture’s November 15, 1991 speech is sufficient to establish that the Respondent perceived the filing of the lawsuit as union activity, and that it was aware of Florin’s role in the lawsuit. The speech also established that the Respondent had animus towards the Union in general as well as specifically towards the filing of the lawsuit and towards Florin. The issuance of the warnings to Florin and her December 1992 layoff all occurred while the lawsuit was pending. Therefore, the timing of these adverse actions against Florin and Saliture’s November 15, 1991 speech support the inference that Florin’s role in the lawsuit was a motivating factor in the decision to issue the warnings and to effect the layoff.

The judge, however, implicitly credited supervisor Waldhart’s explanations as to the reasons the first three warnings were issued to Florin. He noted that Florin did not dispute the assertions of her mistakes and misconduct contained in those warnings. The judge found that the Respondent had established that these warnings were sufficiently similar to other warnings issued both to Florin and to other employees to establish that there was no disparate treatment in the issuance of these warnings. We agree.

The March 12, 1993, warning was for an incident that occurred on March 11. Florin had complained to supervisor Waldhart that employee Walquist, who operated the same machine as Florin on the second shift, had changed Florin’s markings on the machine. In making the complaint, Florin spoke in a loud voice and stated that she had been running the “fucking machine” for 4 years and that no going was going to change it without consulting her. We agree with the judge that the warning was the outgrowth of a series of incidents between Florin and Walquist for which Florin had already been warned. The judge found that the warning was issued primarily for “backlashing” Walquist and secondarily for the manner in which she communicated her complaint to Waldhart. [5] We conclude that the Respondent’s evidence is sufficient to rebut the General Counsel’s prima facie case as to this warning, and shows that the warning would have been given even without Florin’s protected activity.

Concerning the December 1992 layoff, the quilting work was slow and Florin and another employee in the department were doing “make work.” After determining that a layoff is necessary within a department, the Respondent’s practice, which it followed here, is to solicit employees for a voluntary layoff. If there are no volunteers, all other things being equal, the least senior employee, in this case Florin, is laid off. Florin declined an offer of work, in lieu of layoff, on another shift in the quilt department as a replacement for a more senior employee who had volunteered for layoff. Florin also declined an opportunity, again in lieu of layoff, to bump a temporary employee from a less desirable job. In these circumstances, we conclude that the Respondent has rebutted the General Counsel’s prima facie case that Florin’s layoff was discriminatorily motivated in violation of Section 8(a)(3) and (1).

Accordingly, we adopt the judge’s recommended Order dismissing the complaint.