Webb Furniture Enterprises, Inc.

WEBB FURNITURE ENTERPRISES 1305 Webb Furniture Enterprises , Inc. and United Furni- ture Workers of America, AFL-CIO. Cases 5- CA-13612 and 5-CA-14095 31 July 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 26 March 1984 Administrative Law Judge Bruce C. Nasdor issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed an answering brief. The Respondent also filed cross-exceptions and a supporting brief, and the General Counsel filed an answering brief to the cross-exceptions. On 24- September' 1984 the Board issued an Order Remanding the proceeding to the judge to consider further a certain 8(a)(1) allegation and cer- tain 8(a)(3) and (1) allegations of the amended con- solidated complaint and to issue a supplemental de- cision.' The Board deferred consideration of the remaining complaint allegations pending the judge's supplemental decision. On 8 March' 1985 the judge issued the attached supplemental deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions and an answering brief. The Board has considered the record and the at- tached decision and supplemental decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions,of the administrative law judge as modified. . In his original decision, the judge found that the Respondent violated Section 8(a)(1) of the Act by disparately applying its no-posting rule and main- taining and enforcing an overly broad no-solicita- tion rule, and violated Section 8(a)(3) and (1) by discharging employee Marcus Edwards for violat- ing the invalid no-solicitation rule. We affirm these findings, contrary to the Respondent's exceptions.3 i See 272 NLRB 312 (1984) 2 The Respondent and the General Counsel have excepted to some of the judge's credibility findings 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 3 The judge failed to reflect his finding that the Respondent's disparate application of its no-posting rule'violated Sec 8(a)(1) in his Conclusions of Law and recommended Order and notice to employees We shall issue new Conclusions of Law and a new Order and notice to employees to correct this omission and to reflect our findings below While we agree with the Judge that the Respondent's no-solicitation rule is unlawful, we find it so because it prohibits solicitation during "work hours" without the Respondent's permission, rather than for the reasons the judge states See 'Our Way. Inc, 268 NLRB 394, 395 (1983) The judge recommended dismissing the remain- ing 8(a)(1) allegations as well as allegations that the Respondent violated-Section 8(a)(3).and (1) by dis- charging employee Melton on 4,September 1981, and by laying off 24 employees on 5 February 1982. The General Counsel excepted only to- the dismissal of the 8(a)(1) allegations that Respondent Supervisor Cliff Edwards told employee Howard that employees wearing union T-shirts would regret it, that Respondent Foreman Gentry threat- ened to discharge employees who wore union T- shirts and buttons, and that Respondent Plant Su- perintendent Fry and Supervisor Parks interrogat- ed employee Higgins concerning his union activi- ties. The General Counsel also excepted to, the judge's alleged failure to articulate reasons for dis- missing the allegations concerning 17 of the 24 laid-off employees, and argued that the Board should remand the proceeding to the judge.4 The Board remanded the proceeding to the judge to issue a supplemental decision containing findings of fact, credibility resolutions, and conclu- sions of law regarding Supervisor Edwards' alleged threat and the alleged unlawful layoff of the 17 em- ployees. The judge 'recommended dismissal of the remanded allegations. The General Counsel except- ed to the recommended dismissal of the allegations that the layoffs of -employees Funk, Sexton, Hall, and Johnson were unlawful and reiterated the ex- ceptions to the judge's previous dismissal of the al- legations that the Respondent unlawfully interro- gated employee Higgins. The Charging Party did not except to the supplemental decision. We find merit to the General Counsel's exceptions and re- verse the judge's. findings, except with respect to employee Sexton's layoff. . . The Alleged Interrogation of Higgins From July through October 1981,5 the Union conducted an organizational campaign at the Re- spondent's facility, involving, inter alia, distributing newsletters and leaflets on a weekly basis. On 11 August employee Higgins -posted a union leaflet on the wall across from his work station. About 20 minutes later, Respondent Foreman Parks and Plant Superintendent Fry approached, and Fry asked Higgins if he had posted the union leaflet. When Higgins replied affirmatively, Fry instructed him to remove the leaflet because the Respondent 4 The General Counsel specifically excepted to the judge's dismissal of the allegations concerning the layoff of employees Dennis Funk, Paul Hall, David Johnson, Billy Ray Sexton, Susan Shaw, Robert Sizemore, Flossie Stoneman, and Harry Banks, Jr The Charging Party's sole exceptions went to the dismissal of allega- tions that the Respondent unlawfully laid off the same employees, plus employee Betty Goad 5 All dates are 1981 unless otherwise stated 275 NLRB No. 180 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not permit soliciting on company property. Al- though Higgins removed the union leaflet, a non- union advertisement posted beside the union leaflet remained. The judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by disparately applying its no-posting rule to prohibit union postings while permitting nonunion-related postings. The judge, however, recommended dismissing the allegation that the questioning of Higgins con- stituted unlawful interrogation. We disagree. When Fry asked Higgins if he posted the union leaflet, he placed Higgins in a position requiring him to reveal his union sympathies. The question served -no le- gitimate business purpose, having been asked pursu- ant to the disparate application of an unlawful no- posting rule, and the Respondent gave no assur- ances to Higgins against reprisals.6 Under the cir- cumstances, we find, contrary to the judge, that the Respondent interrogated employee Higgins in violation of Section 8(a)(1) of the Act.7 The Layoffs of Billy Ray Sexton, Paul-Hall, David Johnson, and Dennis Funk After losing the 14 October election," the Union filed objections, one of which was set-for hearing. The Union also distributed leaflets 1 or 2 days after the election and on 10 December stating, inter alia, that it would continue its efforts to unionize the Respondent's facility; On 5 February' 1982, - while the Union's election objection was still pending,9 the Respondent-laid off 24 employees. In finding the layoff lawful, the judge concluded,-contrary to the General -Counsel's contentions; that the Re- spondent's decision was "economically motivated" and that its proffered layoff, criterion was nondis- criminatorily applied. The Respondent alleged that it considered job performance, versatility, physical condition, and at- tendance 'equally in deciding which employees would be laid' off. If these factors resulted in a tie, the Respondent asserted it relied on seniority-as the deciding factor . As noted, the General Counsel ex- cepts to the judge's findings concerning the layoffs of employees ' Billy Ray' Sexton, ' Paul''Ha'll, David Johnson, and Dennis Funk, claiming that' the Re- spondent laid them ` off because , they -engaged, in e There is no evidence that Higgins was an open. and active union sup- porter at the time he'was interrogated • , ` • I - - Chairman Dotson agrees on the basis that the `question was asked pur- suant to the disparate application of a no-posting rule , . -' See generally' Rossmore House, 269 NLRB 1176 (1984), affd 760 F 2d 2624 (9th Cir 1985) 8 The election result was 188 votes for and 204 against the Union, with 20 challenged ballots The record shows the Union lost the election after resolution of the challenged ballots, but does not disclose specific num- bers 8 The Union withdrew its objection 23 February 1982 union activities, rather than for the reasons it stated - 10 In analyzing the layoffs of the four alleged dis- criminatees, we are guided by the principles set forth in Wright Line' i Under Wright Line, the' General Counsel has the initial burden of making a prima facie case that protected conduct was a "motivating factor:" in the employer's layoff of the employee. Once the Gen- eral Counsel has made such a,showing, the burden shifts to the employer to establish it ,the have taken the same action absent such conduct. i 2 Billy Ray Sexton Sexton was employed in the Respondent's ma- chine room at the time he was laid off. Before the 14 October 1981 election, Sexton signed union lit- erature on four occasions, signed a union card, at- tended 10 union meetings, wore union T-shirts and buttons 4 to 5 days a week, and passed out union literature before work on 10 occasions. Plant Su- perintendent Wilson admitted that -Sexton was an "experienced" machinist and a "good man," and Sexton testified that he received "a lot" of compli- ments on the quality of his work before the layoff. It is undisputed that nearly all the Respondent's supervisors observed Sexton passing out union lit- erature "at one time or another."- Plant Superin- tendent Fry admitted that he-examined the union literature to determine which employees had signed it and that he was in frequent contact with'-supervi- sors to determine the strength of the Union's sup- port in 'the ,various departments. We conclude that the Respondent had knowledge of Sexton's union activities: -,As previously noted, the judge found, and we agree, that the Respondent -committed' unfair labor practices 'against its employees consisting of main- taining and enforcing an "overly broad" no-solici- tation rule and discharging, an employee for violat- ing the rule, disparately: applying its no-posting rule, and interrogating an employee, concerning his to The, General Counsel thus has, not'excepted to the judge's'conclu- sion that the layoff was economically motivated, but only to his finding that these four employees were not discriminatorily selected for inclusion in the layoff `• i i 251 NLRB 1083 (1981), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Corp , 462 U S'393 (1983) i ' ' 12 , The Board's remand order specifically pointed out the judge's fail- ure to "carefully , analyze, each alleged unlawful layoff' under the Board's Wright Line test and determine whether the Respondent's alleged layoff criteria were nondiscrimmatorily applied in' each case The judge has nevertheless failed adequately to, address the individual discrimina- tees' layoffs under Wright Line, omitting entirely a discussion of the Gen- eral Counsel's prima facie case and did not consider important evidence presented by the Respondent to show that the Respondent would not have laid off three of the four alleged discriminatees absent their union activities WEBB FURNITURE ENTERPRISES union sentiments. Such conduct evidences union animus. We find that the Respondent's knowledge of -of Sexton's union activities, union animus, - and fre- quent compliments on Sexton's performance before the layoff establish a prima facie case that it laid Sexton off because of his union activities. The Respondent contends, however, that it laid off ' Sextoh because he, was originally hired as a spare hand and because the department's assistant foreman could readily assume his job duties. The record shows undisputedly that Sexton's function was to fill in for absentees in the depart- ment. Other employees were assigned to a specific machine 8 hours a day. Plant Superintendent Wilson testified without contradiction that he could do without Sexton "easier than he could the rest of [the employees]" because the assistant fore- man could take his place. Sexton was also the least senior employee-in his department. Under the cir- cumstances, the Respondent has thus rebutted the General Counsel's prima facie case by establishing Sexton would have been laid off in any event on a legitimate nondiscriminatory basis. We therefore dismiss the allegation that Sexton's layoff violated Section 8(a)(3) and (1) of the Act. Paul Hall Hall was -employed as a ripsaw operator-in the Respondent's rough end department when he was laid off. He signed union literature on one occasion and wore a union T-shirt' and buttons at least 3 days a -week before the election. He also solicited for the Union and distributed union cards. Several of the Respondent's supervisors, including Snow, Hale, and, Bailey, observed Hall wearing a union T- shirt, and at least two-supervisors observed Hall so- liciting. The Respondent therefore knew of Hall's union activities. The Respondent alleged absenteeism as the reason for Hall's layoff claiming that he had one of the two worst attendance - records in the depart- ment. The attendance records introduced by the General - Counsel show, however, that Baum- gardner and Aldred, two otheremployees -in the same department who did not 'sign union literature, had poorer attendance records than Hall and were retained.13 - We find that the' Respondent's knowledge of Hall's union activities, its above-noted union animus, and the proffered evidence of disparate treatment establish a prima facie case that `the Re- spondent unlawfully discharged Hall. i3 Baumgardner and Aldred were absent 45-1/2 and 26-1/2 days in 1981, respectively Hall was absent 25 days during the same period 1307 Turning to whether the. Respondent has-demon- strated that it would have laid Hall off absent his union' activities, the record is void of a valid expla- nation for the Respondent's disparate treatment of Hall. under its alleged layoff: criterion. The Re- spondent's contention, accepted by the judge, that Hall was laid off because he was not as "versatile" as the retained employees,'-is also unsupported by the -record. Although Wilson -testified generally -about Baumgardner's and Aldred's job duties, there is no, evidence that the two employees were more versatile workers than Hall or that the Respondent relied on their relative capabilities versus Hall's in choosing Hall for layoff. - The Respondent has thus failed to rebut the General Counsel's prima facie case by establishing that Hall would have been laid off notwithstanding his union activities. -We therefore find that Hall's layoff violated Section 8(a)(3) and (1) of the Act. David Johnson Johnson was employed in the Respondent's cabi- net room' at the time he was laid off. He signed union literature on four occasions, and his name ap- peared in' a 21 September union advertisement in a local newspaper.14 Respondent Superintendent Fry, as noted above, concededly read all union literature to determine who had signed it and Respondent President Ward admittedly read the newspaper -issue in which the union advertisement appeared. The Respondent was thus aware of Johnson's union activity. - Although Plant Superintendent Wilson asserted absenteeism as the reason for Johnson's layoff, the attendance records the General Counsel introduced show that employees Crowder and Robinson, both in the same department and neither of whom signed union literature,-- had poorer records than Johnson and were retained. 1-5 We - find that the Respondent's knowledge of Johnson's union activities, its union animus, and the evidence of disparate treatment establish a prima facie case that the Respondent laid Johnson off ille- - - - gally. ' - - 1 As •in the case of Hall, the Respondent has of- fered no persuasive explanation for the disparate treatment. Wilson testified unrefutedly that he laid off Johnson rather =than Crowder despite the latter employee's poorer attendance record, because Johnson's job, unlike Ci•owder's, could be "divid- ed" among other people , -in the department. Con- cerning Robinson, however; 'the record contains no 14 The advertisement listed employees who supported an ongoing strike by one of the Union's locals at another facility is Crowder and Robinson missed 56-1/2 and 37 days respectively in 1981 Johnson was absent 34 days 1308 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD explanation as to why the Respondent retained the employee with the inferior attendance record. i 6 As the,Respondent has thus failed to rebut the General Counsel's prima facie case of unlawful dis- crimination, we find that Johnson's layoff violated Section 8(a)(3) and (1) of the Act. Dennis Funk Funk was employed in department 3 of the Re- spondent's facility before being laid off. He signed union literature on two occasions. As disclosed above, Plant Superintendent Fry admittedly exam- ined the union literature to determine who signed it. We conclude that the Respondent had knowl- edge of Funk's union activities. Plant Superintendent Fry testified that Funk was laid off solely because of his high absenteeism rate. The attendance records submitted by the General Counsel disclose, however, that Western, another employee in Funk's department who did not sign union literature, had a worse absenteeism record than Funk and was kept on the job.17 We find' that the -Respondent's knowledge of Funk's union activities, its union animus, and, the evidence of disparate treatment establish a prima facie case of unlawful discrimination. As in the cases of Hall and Johnson, the Re- spondent has offered no convincing explanation for its unequal treatment of the two employees. I" We therefore find that Funk's layoff, violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By maintaining and -enforcing a rule prohibit- ing solicitation of employees during work hours without company permission; by disparately, apply-. ing its no-posting rule to prohibit union-related postings while permitting nonunion-related post- ings; and by coercively interrogating employees the Respondent has engaged in unfair labor prac- tices affecting 'commerce within ' the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discharging employee Marcus Edwards on ts perm on. out ss 11 August 1981, and by laying off , employees (b) Disparately applying its no posting rule to Dennis Funk, Paul Hall, and David Johnson .on 5 ermittin rohibit union-related ostings while p g p p nonunion-related postings. 16 Although the Respondent asserts it chose Johnson for layoff, rather •: _ (c) Coercively interrogating employees concern- than Robinson based on the greater number of `:unexcused " absences in , ' -' , Johnson s record, there is no record evidence showing that the Respond ing their union support or activities. ; ent distinguished between excused and unexcused absences in deciding to (d) Discharging, laying off, or otherwise dis- lay Johnson. off The record contains no description of the work performed-in this de- , criminating . against - any employee for supporting partment , , , _ of _ - i . =' - • 1. :United.' Furniture 'Workers of,America, or any ' 17 Western was absent 29 days in 1981, while Funk was absent only 20 other,union. days - -- .. . - - i 16 The Respondent contended that it chose Funk for layoff rather than (e) In any like or related • manner interfering Western because of the greater -number, of "unexcused" absences in with, restraining, or coercing employees in the ex- Funk's record However, as with Johnson, there is no record evidence showing that the Respondent distinguished between "excused" and "un- ercise -of the rights - guaranteed -them by Section 7 excused" absences in deciding to lay Funk off of the Act. February 1982 for their union activities, the Re- spondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section .8(a)(3) and (1) and Section 2(6) and (7) of the Act. 3. The Respondent did not otherwise violate Section 8(a)(1) or (3) of the Act. AMENDED REMEDY Having found' that the Respondent has 'engaged` in certain unfair labor practices, we shall order it to cease and desist 'and to take certain affirmative action designed to effectuate the policies of the Act. - ' . We shall order the Respondent to rescind its rule prohibiting solicitation by employees during work hours without- its permission. We shall order the Respondent to offer - Marcus Edwards, Dennis Funk,' Paul Hall, and David Johnson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or' privileges previously en- joyed, and to make them whole for -any loss of earnings they may have suffered as a result of the discrimination -,practiced against them. Backpay shall be computed as prescribed-in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as comput- ed in Florida Steel Corp., 231 NLRB 651 (1977). We shall order the Respondent to remove from its- files any reference to the unlawful discharge and layoffs, and to notify the employees in writing that' it has done so and that the discharge and layoffs will not be used against them in any way. ' - ORDER , The National Labor Relations Board orders that the Respondent, Webb Furniture Enterprises,' Inc., Galax, Virginia, its officers, agents, successors, and assigns, shall • ' ' 1. Cease and desist from (a) Maintaining and enforcing a, rule prohibiting solicitation of employees during work hours with- - ; i i i WEBB FURNITURE ENTERPRISES . -_ 1309 2. Take - the following affirmative action neces- sary-to effectuate the policies of the Act. - . (a) Offer Marcus Edwards, Dennis Funk, Paul Hall, and David Johnson immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them, whole for any loss of earnings and other ben- efits resulting from their discharge or layoff, in the manner set forth in the remedy section of the deci- sion. (b) Remove from its files any reference to the .unlawful discharge and layoffs, and notify the em- ployees in writing that it has done so and that the discharge or layoff will not be used against them in any way. (c) Preserve and, on request,' make available to- the Board or its agents for examination and copy- ing, all payroll records, social security payment -,records, timecards, personnel records and reports, and, all , other records necessary to analyze the amount of backpay due under the terms of the Order. - (d) Post, at its Galax, Virginia facility, copies of the attached notice, marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be - posted by the Respondent immediately upon re- ceipt and • maintained for 60 consecutive days in conspicuous places 'including all place where no- tices to employees are' customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices, are not altered, defaced, or covered by any other material. ,(e) Notify, the Regional . Director in writing within 20 days from the date of this Order,, what steps the Respondent has taken to comply. 19 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " - WE WILL NOT maintain and enforce a rule pro- , hibiting you from soliciting during work hours without our'permission: - WE WILL NOT disparately apply our no-posting rule to prohibit union-related postings while per- mitting nonunion-related postings. - WE WILL NOT coercively question you about your union support or activities. WE WILL NOT discharge, lay off, or otherwise discriminate against you for supporting United Fur- niture Workers of America, or any other union. WE WILL -NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Marcus Edwards, Dennis Funk, Paul Hall, and David Johnson immediate and full reinstatement to -their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings or. other benefits resulting from their discharge or layoff, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge or layoff and that the discharge or layoff will not be used against him in any way. WEBB FURNITURE ENTERPRISES, INC. DECISION STATEMENT OF THE CASE BRUCE C.-'NASDOR, Administrative 'Law Judge. The charge in' Case 5-CA-13612 was filed by the Union ,against Webb Furniture Enterprises, Inc.' (Respondent) on August 14, 1981 The first amended charge, in that case was filed by the Union on August 27, 1981. The second amended, charge in. Case 5-CA- 13612 was filed by the Union on September 10, 1981. The charge in Case 5-CA-13612 was filed by the Union on February 23, 1982. The first amended charge in Case 5-CA-14095 was filed by the Union on: March 7, 1983. The complaints and notices of hearing: were consolidated -on April 22, 1982, , and the" amended consolidated complaint and APPENDIX' i • NOTICE TO:EMPLOYEES. POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD 2 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. _notice of hearing issued on March 9,' 1983. An amend- ment to the amended consolidated complaint and notice of hearing; issued -on'June ,13, 1983 The amended con- solidated, -complaint: alleges that Respondent discrimina- torily discharged two active union adherents and perma- "nently laid off a group of employees in violation of Sec-, tion 8(a)(3) of the Act. Respondent in its answer denies the allegations At the hearing the General Counsel made a motion which was granted 'to withdraw paragraphs 5(a) through (f) of the complaint and to withdraw the i Name appears as amended 1310 DECISIONS OF NATIONAL,' LABOR RELATIONS BOARD -name of Terry Higgins ' as an alleged discriminatee from paragraph 6(b) of the complaint. The, consolidated com- plaint also alleges that Respondent committed various in- dependent violations of Section 8(a)(1) of the National Labor Relations Act (the Act). On the entire record,2 including my observation, of the demeanor of the witnesses and after due consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Virginia corporation , is engaged in the manufacture of wooden furniture at its plants in Galax, Virginia . During the preceding 12 months, a representa- tive period, Respondent purchased and received materi- als and supplies valued in excess of $50,000 directly: from points located outside the State of Virginia. At all times material, Respondent is and has been .,an employer en- gaged in commerce and in operations affecting' com- merce as defined in Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION United Furniture Workers of America, AFL-CIO (the Union), is now and has been at all times 'raterial , a labor organization within ' the meaning ' of :Section 2(5) of the Act. • III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues ' 1. Whether Respondent committed 'various and sundry independent violations of Section 8(a)(1) of the Act. 2. Whether Respondent violated Section 8(a)(1) and (3) of the Act by discharging Marcus Edwards and James Melton. -.3. Whether Respondent violated Section 8(a)(1) and (3) of the Act by permanently laying off a group of 24 employees. , - B. The Facts The Union, by its International Representative Charles Thomas, first commenced to organize Respondent's em- ployees in July 1981. To this end the Union distributed newsletters and leaflets on a weekly basis. Several of Re- spondent's employees participated in preparing this mate- rial. The Union distributed union buttons and T-shirts to the employees during the first and last weeks of Septem- ber 1981. Union authorization cards also were distributed to employees. ' . A representation 'election was held on October 14, 1981. The results. for the Union 188,'no votes, 204, and 20 challenged ballots. The'resolution of the challenges resulted in the Union losing the election. The Union then filed objections and one of the objections was set for 'hearing. Thereafter, on February '23,-'1982; the' Union withdrew the objection. - 2 The General Counsel's unopposed motion to correct the transcript granted ' An employee, Marcus Edwards, -arrived at the plant known as Webb 13 on August 11; 1981, at approximately 6:30 a. m. He commenced to distribute union leaflets out- side of the door next to the timeclock. Edwards'. foreman Steve Semones watched him from approximately 12 feet away. At 6:56 a.m. Edwards stopped passing - out the leaflets and reported to his .work station . His normal starting , time is 7 a.m. At 8 :15 a.m. Semones told him to report ib the personnel manager's, office.--,He Aid so. Present were Foreman Semones, Personnel Manager Dennis Bryant, and Plant ' Superintendent Warren Fry. Fry told Edwards that he' had been soliciting and ac- cused him of having placed a union leaflet on the bulle- tin board. At that point Fry told Edwards he was fired and handed him a termination slip,4 which states that Edwards had been "soliciting on company time." Re- spondent - takes the position that Edwards was validly terminated for violating the Company's rule against dis- tributing literature on company property. The rule reads as follows. There must be no solicitation of employees during work hours, for collections, donations, or sales, unless prior arrangement has been made and permis- sion granted by the superintendent.5 • Edwards denied placing any union literature on the bulletin board . ' Respondent concedes that Edwards did not distribute literature during work time but he had been distributing on company property. There is no dis- pute as to this. The General Counsel elicited testimony from the employees that they ,had been permitted to ac- tually solicit during worktime for causes totally unrelated to the Union. For example, employees testified that leaf- lets of fiddler's conventions, flea markets, and the Red Cross are "routinely posted on Respondent 's bulletin lioard.'Moreover, raffle tickets, Amway, and Avon prod- ucts as well 'have been sold by employees during work- time with the knowledge of Respondent's supervisory hi- erarchy Employees have also collected donations for ill coworkers during worktime James Melton was employed in plant 1, in the rough end department . His duties included cleaning the break- room. In July 1981, Melton attended union meetings, dis- tributed union literature , at the front gate of the plant, and signed a union card . He testified that .he was in view of supervisory personnel while distributing ; literature at the front gate of the plant . His name also appeared in union literature distributed at the plant on September 1, 1981. Approximately 2 to 3 weeks prior to Melton's dis- charge, Supervisor Stamper saw Melton wearing a union badge on-his hat and made reference to it stating that he - would ' like .to tell -Melton what he could do with it. Melton responded that he would like for D. E. Ward, president of Respondent, to see how he liked his hat. 3 Respondent operates two facilities approximately seven -tenths of. a mile apart They are referred to as Webb 1 and Webb 2 4 In evidence as G C Exh 8 5SeeGC Exh 6,rule5 WEBB FURNITURE ENTERPRISES 1311 On September 4, 1981, the day of his discharge, Melton testified that he was bending over a table in the breakroom wiping the table He also had a cigarette in his hand-and he acknowledged that he dropped the ciga- rette when he saw Bryant, Respondent's personnel man- ager. Bryant testified that when he entered the break- room he found Melton sitting with a rag in one hand resting on the table and a cigarette in the other. Bryant also testified ° that Melton dropped the cigarette. Bryant accused Melton of smoking and Melton showed his empty hands to Bryant who then told him to report to the office. Melton's supervisor, Semones, told Melton ,that in view of the fact that Bryant had caught -him smoking he would have to fire him. Melton advised Se- mones that no one had told him that he could not smoke a cigarette while he was cleaning the breakroom Dennis Bryant, Respondent's personnel director, testi- fied with respect to the high risk of fire at the furniture plant and the strictly enforced rule forbidding smoking during worktime anywhere in the plant. He testified 'that employees are allowed to smoke in* the breakroom but only at specified times, that is, during their breaks. At the end of break periods, supervisors' inspect the break- room to be sure that all cigarettes are extinguished. There is uncontradicted-testimony that two employees were caught smoking during work hours and were fired. Moreover, Respondent's termination form includes sever- al categories as a basis for termination, including smok- ing on the job. - - Melton later admitted that he had been warned not to smoke in the breakroom during worktime. - Marcus, Edwards was accused by a supervisor of smoking a cigarette during worktime. Edwards consist- ently denied that he had been smoking. Semones told Edwards he was going to fire him for smoking but de- cided against it Edwards again emphatically denied that he had been smoking. Carroll Lineberry, an employee of Respondent, testi- fied that in September 1981 he was smoking a cigarette in the lumber yard between 10 and 11 a.m., on worktime. According to his testimony, he was wearing a union T- shirt at that time Marvin Snow, a foreman in the rough end department, approached Lineberry and told him he was fired for smoking. Another employee who Lineberry knew as Thomas, but -did not know his last name, was also smoking a cigarette but not wearing a union T-shirt. Lineberry allegedly asked if Snow was going to fire the other employee as well. Snow allegedly replied that he was not going to fire anyone and for Lineberry to return to work According to Lineberry,'Snow stated: "You see how easy we can frame you and get you fired." ' ' Snow admitted that hewas aware that Lineberry was wearing either-a union button' or T.-shirt but he denied that the' incident. occurred. He testified that he is always warning employees about smoking but specifically denied this incident. - • - I ' ' Lineberry testified-that for.5 years'he had gone out ap- proximately four times a day during working hours to smoke but no other supervisor had ever seen him. He could not remember -the last name of "Thomas," who was, working at the time and smoking with him Thomas worked in the same department as Lineberry, was work- ing at the time of the trial, but was, not called as a wit- ness- to corroborate Lineberry's version of the incident. Lineberry testified that in September 1981 he -was wearing a union T-shirt, when Snow told him that he had the wrong kind of shirt on and to "take your shirt off." Lineberry testified that on the day of the election; Oc- tober 14, 1981, Snow advised him to vote "no" or Re- spondent would find a way to get him Furthermore, ac- cording to Lineberry he was served with a subpoena ad testificandum which he showed to Snow on July 1, 1983, the last workday prior to the hearing. Snow said he did not think Lineberry had to go to the hearing and that Snow would check with Respondent and get back to him. Snow never did get in touch with Lineberry re- garding this matter Snow testified he never had any conversation with any employee about voting in the union election, nor did he tell them they would be fired if they did not vote against the Union. Snow and Lineberry's• accounts of the inci- dent are similar. Lineberry approached Snow on Friday, July 1, showed him his subpoena, 'and asked whether he was required to appear Snow replied, "He didn't think so" but would check with Respondent. Snow never got back to -Lineberry because of the intervening holiday of the 4th of July. Lineberry appeared at the hearing on July 11. Luther Jones was called as a witness by the General Counsel to support paragraph 5(g) of the complaint that Foreman Wade Gentry threatened employees who wore union T-shirts and badges with discharge At the hearing Jones denied overhearing a conversation 'where Gentry told a "Mr Nelson"s that-employees who wore union T- shirts and badges would be gotten rid of. Jones denied that this conversation occurred, and testified that he lied about everything' in his affidavit. He testified he had no conversation with any supervisor regarding the Union Moreover, Gentry testified he never told any employees that people wearing union T-shirts and badges would be gotten rid of, nor did he have any conversation about the Union with Luther Jones. Apparently the testimony of Gary Higgins was ad- duced to support the allegation in paragraph -5(h) of the complaint that David Phillip Parks interrogated employ- ees concerning their union activities and desires. Higgins testified that-on August 11 he posted -a union leaflet on the wall across. from-,his -work station. Approximately 20 minutes thereafter, Foreman:Parks of the cabinet room in Webb 2-and Fry approached him.-Fry asked if Higgins had put the union leaflet on the wall and Higgins replied affirmatively Fry instructed him to' remove the leaflet because -Respondent did not allow soliciting on company property. `Neither' Fi•y riot Parks, referred to an' alleged leaflet' advertising- a• free fiddler's convention which was posted beside the union leaflet' Higgins removed the union leaflet but the fiddler's convention leaflet remained on the wall. This testimony also related to paragraph 5(u) of the complaint 6 Assistant Foreman James Nelson 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The testimony of Deliah Howard and Flossie Stone- man relates to paragraphs 5(i) and 0) of the complaint. Howard, who was wearing a T-shirt at the time, testified that in September 1981 she was approached by her fore- man Clifford Edwards and told that people who had those T-shirts on would dread it. Edwards denied saying anything to Howard about people wearing T-shirts. Stoneman testified that a few days before the election she was approached by Edwards who told her "that if they got that thing in here all the employees would see it rough." Stoneman looked at him and he said "you know what thing." Stoneman then asked him what thing he was talking about and he replied, "You know what thing," and walked away. A few days later, Edwards in- structed Stoneman to report to the office of Foreman Conley Hale. Hale allegedly told Stoneman he did not want her to talk about the Union in the plant. She re- plied she had not done so and he said that was all right. Stoneman stated that as far as union meetings were con- cerned she had as much right to go to a union meeting as to a company meeting Hale repleid-that she was cor- rect. Hale testified that he did not tell Stoneman whe was not to talk about the Union in the plant, rather he told her not to harass the workers or threaten anyone. Hale testified that employees Bonnie Davis and Edith Anders complained that Stoneman had threatened them. Para- graphs 5(k), (1), and (nn) of the complaint allege that Su- pervisors Conley Hale and Holbrook Bailey7 engaged in independent violations of Section 8(a)(1) of the Act. Employee Bettie Goad testified that- approximately 2 weeks before the election Foreman Marvin Hale" asked her if she liked her ' job. She replied affirmatively and Hale told her that if she stayed out of the Union she would always have a job. She stated she thought the em- ployees needed a union because of the safety problems and because they needed additional wages. Hale alleged- ly promised her that Respondent would improve work and safety conditions in the plant, and give her a raise. Hale denied the statements Goad attributed to him. Paul Hall, who was wearing a union T-shirt at the time, testified that approximately 4 weeks prior to the election Supervisors Conley Hale and Holbrook Bailey were watching him perform at his work station. Accord- ing to his testimony Hale who was standing • behind Hall's machine wrote "Paul" in a notebook. Hall testified further that Hale and Bailey then went to Brewer who was also wearing a T-shirt and wrote something in a notebook. He testified that they thereafter approached -only those employees" who were wearing union T-shirts. Bailey testified that as a general foreman over the cab- inet room he tours the plant frequently to observe any- thing that could be a bottleneck in keeping the material moving through the plant, for example machines in need of repair. He also checks on production, how much -work a particular employee or machine is producing. Bailey does this on occasion by observing and taking Discussed infra e By a second amendment to the amended consolidated complaint and notice of hearing, the General Counsel substituted "Marvin Hale" for "Conley Hale" in pars 5(1) and 5(n) of the amended consolidated com- plaint notes on a machine for extended periods of time up to 10 minutes. While engaging in this check, Bailey takes notes on a small pad or notebook. Hale, as Bailey's immediate superior, sometimes accompanies Bailey on these tours. Bailey did not recall specifically watching Hall' but tes- tified he may have checked on Hall's production at some time. Bailey and Hale did tour the plant- during the summer of 1981 but according to Bailey's" testimony it was not for the purpose of noting union supporters. He testified that he never wrote down Hall's name as he toured the plant and moreover he did not take any notes regarding the Union during the campaign. Paragraph 5(o) of the complaint has been discussed above in the relating of the testimony of Carroll Line- berry. _ Jimmy Brewer testified that 2 months before the elec- tion, in the presence of his foreman Marvin Snow,' he told coworker Howard Edwards that he thought he would sign a union card. According to Brewer, when he returned to work, Snow approached him and stated that he should not sign a union card and that there was no sense in the Union. Brewer replied he- needed more money, and Snow answered that he would get Brewer more money after "this thing blows over." - On cross-examination Brewer admitted that he had al- ready signed a union card before the alleged conversa- tion with Snow took place. Brewer also testified that he had asked for a raise 2 or 3 months prior thereto. Snow denied making any of the comments attributed to him by Brewer. In August 1981, Virgil Shaw, a union adherent, was instructed by his foreman Willard Burcham to report to the. office of George Wilson, superintendent of Webb 2. Present with Shaw, Wilson, and Burcham was Conley Hale, Wilson's. assistant, Wilson told Shaw that employ- ees had accused him of harassing them. Shaw denied this and requested to confront these individuals. Wlson re- fused and warned Shaw to remain at his job station and not speak to his coworkers. After -this warning, Shaw testified that he never again engaged in conversation on worktime He testified that other employees who were not union supporters continued to engage in conversation on worktime. Shaw testified that in October 1981, he was told by Burcham that he was not to carry on con- versations during worktime Burcham also allegedly told union supporter Charles Melton the same thing. Shaw's work station was near the employee restroom and water fountain. Burcham testified that during em- ployees' sojourns to these locations, past Shaw, Shaw would yell at them concerning the Union and employees would gather in conversation: When this occurred Bur- cham told all the employees including Shaw 1o quit talk- ing and get back to- work. - Respondent allowed casual conversations during worktime, but, would not allow em- ployees to leave their machines and gather in conversa- tion as, according to the testimony, would happen at Shaw's work station.. Shaw admitted -that lie did not know whether employees who were talking duffing worktime' were warned or admonished. Moreover, Wilson testified that he had received complaints from employees about harassment by Shaw when they went to WEBB FURNITURE ENTERPRISES • 1313 the water fountain or restroom. Wilson warned Shaw about this, and Shaw admitted receiving such a warning. C. The Layoffs ofFebruary 5, 1982 On February 5, 1982, Respondent laid off 24 employ- ees. Respondent takes the position that the layoff was economically motivated , while the General Counsel con- tends there was no legitimate business justification for the layoff. Respondent rehired 3 of the 24 laid-off em- ployees. Funk and Shinault were both active union ad- herents. David Johnson may or may not have been active. In January 1982, D. E. Ward , Respondent's president, found that for 4 consecutive months Respondent's pro- duction had exceeded its shipments . During 2 of those 4 months, Respondent received more cancellations than orders, and during 3 of those 4 months had taken in less than $ 1 million in income in orders. Thus, Respondent- was building up inventory for 4 straight months. D. E. Ward testified that the furniture market held in January 1982 was not a good market He also testified that the furniture market is very closely tied to the housing in- dustry which was in a depressed state in early 1982 In August 1981, Respondent slowed down its hiring as a measure to combat the poor economic climate and business conditions . Ward determined in January 1982 that further cutbacks were unavoidable and decided that a layoff was preferable to a reduction in hours. He deter- mined, by comparing production figures to shipment fig- ures, that a total decrease of 10 percent in Webb's work force might be necessary. He was going to lay off 5 per- cent in February 1982, and 6 weeks later if necessary, lay off another 5 percent . The possibility of the second layoff was communicated to the employees in a letter Respondent sent to them explaining the February 5 layoff. Normal attrition and a hiring freeze made the second layoff unnecessary. ' Ward testified that during his 28 years with Respond- ent there have been seven or eight layoffs In the late 1970s, for example, Respondent was forced to discontin- ue its upholstery operation and to close down a plant Other layoffs occurred in the 1950s, 1960s, and 1970s. The layoffs are permanent and Respondent has no method of recalling employees who were laid off, but on some occasions has rehired employees on an individual basis. They are considered new hires. Although employees were given a raise on February 8, 1982, this raise had' been decided on and announced in December 1981, in Respondent's Christmas letter to em- ployees. This occurred prior to Respondent's realization that a layoff was necessitated . Therefore, since Respond- ent had already announced the raise , it decided in Febru- ary to honor its promise and grant the raise. The General Counsel argues alternatively that even if the layoffs were economically motivated Respondent dis- criminatorily selected employees on the basis of their union activity. The record reflects that out of the entire complement of approximately 436 employees ; 156 of them at one time or another signed union literature which may or may not have been read by management . Of the 24 employees who were laid -off, 15 were employees who had signed the literature At least one of the laid-off employees, Mary Brown, was antiunion and had actually signed an antiunion peti- tion. Warren Fry, plant superintendent at Webb 1, testified that the antiunion petition which was circulating around the plant was seen by him and, he was aware that Brown was procompany and antiunion. Ward testified that Respondent has used the same pro- cedure in laying off employees ever since he has been with the Company, 28 years. The first thing that is con- sidered is job performance Thereafter, versatility, physi- cal condition, and attendance. These criteria are neces- sary because when there is a layoff Respondent operates short-handed, which necessitates having to shift people from one job to another. In the event that two employ- ees are essentially equal in all other categories, seniority is considered. The two plant superintendents, Fry and George Wilson, instruct the foremen to rate their em- ployees using these criteria to rank them in order of who is most and least expendable. Employee ratings were reduced to writing but not re- tained when it became apparent that the second layoff would not occur. The foremen returned their ratings to their respective superintendents and neither Fry nor Wilson changed any ratings, but gave them to John Stout, vice president of manufacturing. Neither Ward nor Stout changed any of the ratings The superintend- ents determined how many people to lay off from each department, based on their overall knowledge of and ex- perience with the plant, its personnel, and its require- ments. Based on .the rankings, Fry and Wilson recom- mended who,should be laid off. Ward testified that in the past, and also with respect to the current layoff, it is Re- spondent's practice to eliminate employees who are mar- ginal, but not such poor employees as to warrant their discharge. Respondent acknowledged that not all of the employees laid off on February 5 were in this category but all were individuals that Respondent determined it could best afford to operate without based on its criteria. The General Counsel chose to litigate those employees who engaged in union activity to varying degrees. I will briefly summarize the General Counsel and Respondent's position with respect to individuals, although Respond- ent's modus operandi regarding layoffs has already been explicated.. Guy Arnold, Gary Higgins, and Roger Shinault Arnold signed a union card, attended meetings, distrib- uted literature in front of the plant, and on two occasions signed union literature Respondent avers that Arnold was chosen for layoff because of his excessive absentee- ism. Arnold admitted that- in the past he had been warned about his absenteeism by foremen Parks On direct examination Arnold was unable to name any su- pervisory personnel who saw him passing out literature at the plant. Moreover, Thomas, the Union's internation- al representative, could not specifically recall Arnold's union activity 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Higgins distributed union literature in 'front of the plant and on two occasions signed union literature. -He testified that while distributing -literature he was seen by management personnel. According to his testimony, Hig- gins signed a union card and distributed approximately 25 cards. He also wore union T-shirts and buttons in the plant on a dail y basis Respondent contends that Higgins -was also selected for -layoff due to his excessive absenteeism. He testified that in 1981 he had 15 to 20 unexcused absences and in January 1982, 5 unexcused absences. Higgins -admitted that a month before his layoff he was warned by his su- pervisor that his attendance would have to improve. Shinualt testified that he signed union literature on three occasions and wore union T-shirts. Fry 'testified that Shinault was chosen for layoff because of his excess absenteeism. His attendance record is in evidence as Re- spondent's Exhibit 6. Robert Sizemore Sizemore wore a union T-shirt and button in the plant. He distributed union cards and also distributed literature in front of the plant. He testified he was observed by Ward, Stout, Bryant, and his foremen Frazier. His name also appeared in union literature. According to his testi- mony, Frazier' complimented him on his work and told him that he would get Sizemore some raises. Sizemore had worked for Respondent several times ,prior to his last date of employment. Respondent contends that his attendance record was poor and he was not experienced on several of the key machines, thus lacking 'versatility Moreover, Sizemore had a history of.leaving his job at Respondent's plant to engage in work in the construction' industry and at sawmills. Construction -work in Galax, Virginia, paid'higher 'wages than Respondent. Sizemore acknowledged 'that in between his jobs at Webb he worked in construction. and sawmills At-the time-"of the hearing Sizemore was working at a sawmill. - Dennis Funk Funk signed the union literature on two occasions. Fry testified that Funk was selected for layoff due to his, ex- cessive absenteeism. He was absent approximately 20 days in 1981, but the General' Counsel points out that employee George- Western who was absent 29 days, did not sign union literature and was not-laid off. Therefore, the General Counsel's theory is that Respondent laid off Funk because of his union activity rather than laying off Western who had a higher absenteeism record It is noted, 'however; that, Funk' has beer" rehired since his layoff. John Hale Jr. On September 21, 1981, an advertisement appeared in the local Galax newspaper, the Gazette. Hale's name ap- peared in the advertisement along with several hundred other names supporting a strike against the New Galax Mirror Corporation. The names purport to be Respond- ent's employees. - Through testimony and. documentary evidence, Re- spondent's Exhibits'' 7 and 8, Respondent contends that Hale was selected for layoff because of his excessive ab- senteeism and lateness. Harry Banks Jr. Banks worked' for Respondent on 'approximately four occasions.' In 1980, Respondent fired him for drinking and rehired him some months later: He signed a union card, attended ' union meetings, and wore union T-shirts and buttons in the plant . On two occasions his name ap- peared in the onion literature and also in the September 21, 1981 newspaper advertisement . Banks also distributed literature in front of the plant and testified he was ob- served by management personnel. Respondent contends through the testimony of Fry that Banks was chosen for layoff because of his bad ab- senteeism record, poor attitude, and the fact that he' was a problem employee. He frequently wandered off of his -job into other departments, where he' is alleged to have bothered employees who were working, and he left his machine unattended . He was suspected of -smoking on the job but had never been caught. His foremen testified that Banks'- job required him to . remove lumber as it came out of the machine and stack it. He did not have to feed the machine or set it up,. nor was there any reason for him to go throughout the plant' leaving his machine unattended. His supervisor Bowen testified contrary to him that he did not tell Banks he was a good worker, that he would get him a raise, or that he would try to keep him Banks admitted that he had been counseled about his absenteeism. James Bolt Bolt did not testify, but Gary Higgins testified that he saw Bolt wearing a T-shirt in the plant one day, some- time prior to the election. Fry testified that Bolt was chosen for layoff because of his excessive absenteeism and poor quality of work Moreover, his job was.an un- skilled position. Norman Gibson Gibson wore a union button on his cap at work and distributed union cards. Gibson testified that he told his foreman Stamper that he thought the Union "would be a good thing." Gibson was one, of three truckdrivers at Respondent's plants, the other two' drivers were not in his department He drove a -truck, for Webb I and Anders drove for -Webb 2. The truck at Webb-2 was more necessary . to Respondent because the plant did not have laundry facilities as did Webb 1. Anders had to transport rags from- Webb 2 to Webb 1 for cleaning, but the, reverse was not true. Furthermore, the only support room Webb maintains • is in Webb 1, so Anders was needed to transport supplies to Webb 2. Moreover, 'Anders had 2 more yeais seniority than Gibson. Paul Hall and Jimmy Brewer Hall wore union T-shirts and signed union literature and distributed cards. Brewer signed a "union card and on four occasions signed , union literature . He also wore union T-shirts and 'buttons in the 'plant. Brewer had a WEBB FURNITURE ENTERPRISES conversation with his foreman Snow, wherein he indicat- ed•that he was in favor of the Union. Respondent con- tends that Hall and Brewer were selected for layoff be- cause of their excessive absenteeism 'and the fact that they had the two worst attendance records in the depart- ment. One other individual may have had a somewhat worse record, but they ran a very close second. y_ .,o4;.:.^ Billy Ray Sexton Sexton signed a union card, attended- meetings, wore T-shirts, and distributed literature. His name also cep-' peared in union literature on four occasions. Sexton testi- fied that on one occasion he handed union literature to' Supervisor John Stout and that Ward and Burcham passed him while he was giving out literature and looked in his direction. George Wilson, superintendent 'of Webb 2, testified that the reason Sexton was selected for layoff was- that -he ' had ben originaly hired as a spare hand to move from place to place and from machine to machine. Fur- thermore, that Respondent could do without him easier' than it could the rest of the employees in that depart. ment because the assistant foreman'could take his place and act as a floater. Wilson testified that -Sexton's func- tion was to fill in when somebody else was absent. More- over, according to the testimony, the other individuals in the department were assigned to particular machines. Sexton had the least seniority in his department. Flossie' Stoneman Stoneman wore union T-shirts attended union meet- ings, allowed her name to appear in union; literature and in the newspaper advertisement. Respondent contends that she'was chosen for layoff because she had reached 65 years of age in August 1981, and was drawing her own Social Security benefits as well as Social Security benefits of her deceased husband. Therefore, Wilson felt that other employees needed income more than she did. Furthermore, Stoneman's job in the finishing room was to touch up furniture, a totally unskilled function which' could be done by any employee. Respondent has 'a histo- ry of rehiring retired employees who are skilled, and al- lowing them to work as much as possible without a Social Security, disqualification.. Stoneman' was not a skilled employee' At the time of her, layoff, Stoneman was merely brushing glaze behind the drawers of the fur- niture, a job which no retirees are presently performing. Mary White White signed a'union card, wore T-shirts and buttons, and signed the union literature on three occasions. The unrefuted testimony is that White was chosen for layoff because she had the highest absenteeism in her depart- ment. Furthermore, Wilson testified- that when the de- partment was shorthanded and the plant was busy, White would slow down. Her foreman -Edwards • complained about White on several occasions, claiming that she was not doing her job, and that she left work without permis- sion. 1315 David Johnson Johnson 'signed union literature on five occasions and his name also appeared in the 'newspaper advertisement. Respondent's witness Wilson testified that Johnson had one of the ,worst attendance records in his department al- though an individual named Crowder had an attendance record that was somewhat -worst than Johnson's, Crowder had 2 years more seniority. Moreover, accord- ing to Respondent, Johnson's job could be covered by other employees while ; the same was not true of Crowder's job. Wilson testified that Johnson's job could be divided 'Respondent has rehired Johnson since his layoff. Bettie Goad Goad signed a union card, wore union T-shirts and buttons, and also signed the union literature on.three oc- casions: Respondent's hierarchy acknowledges that Goad was a good worker but denies any promise of a raise. Respondent contends that Goad was selected for layoff because- the, glue room where she-worked-only operated on an average of 3 or 4 days a week. During the remain- der of the week glue room employees filled in around the plant. This fill-in work often involved such jobs as loading and packing furniture, heavy work in the cabinet room and lumber yard, mowing grass, and shoveling snow. Wilson did not think, due to her relative lack of strength and size, that Goad would be able to perform any of these functions: She admitted that when not working in the glue room she worked elsewhere but she had never worked in the lumber yard or shipping depart- ment, and had never mowed grass or shoveled snow at Respondent's plant., Although employee' Stamper was junior to Goad, Re- spondent decided to retain him because it felt he could be utilized in many of -the heavier fill-in positions which Goad would not be able to perform. Susan Shaw Shaw attended union meetings, signed a union card, wore a union T-shirt and button, and signed articles on three occasions which appeared in the union literature. Her name also appeared in the literature on four other occasions. She also distributed literature at the plant, and according to' her testimony, she was observed by several management individuals - Shaw also signed one of the unfair labor practice charges. , Respondent contends that she was chosen for layoff due to her frequent displays of volatile temperment to coworkers and -managers . One of Shaw's duties was to perform repair work on pieces of furniture which were returned to her by the plant inspectors On several occa- sions, according to, the testimony of Wilson, she threw temper tantrums- and. cursed at these inspectors who brought the work back to' her. Wilson testified that he received many complaints about her temperment and at- titude, including complaints from inspectors Norman and Bright who complained that Shaw cursed them. Wilson began receiving complaints about- her approximately 6 months prior to -the layoff, receiving at least three or 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD four complaints a 'week Two or-three weeks before the layoff, the complaints were coming with more-frequency and Wilson told her that if she did not refrain from curs- ing her coworkers she would be fired. She denies 'that she ever cursed any employee or man- agement person. Her notes which were made immediate- ly after her layoff reflect that she referred to Conley Hale as a "son of a bitch." She admits that these are her notes in her handwriting. IV. CONCLUSIONS AND ANALYSIS Respondent maintained initially that Edwards was dis- tributing union literature on company time and property. Management learned later that the distribution did not occur during worktime. Respondent now takes the posi- tion that Edwards violated work rule 5, "which disal- lows, distribution of literature and company property." Upon reading the rule I am -struck by the fact that it makes no reference whatsoever to company property. Moreover, the rule is- overly -broad since it does not allow employees to solicit during break periods, • meal- times, or other times during the day when employees are not engaged in performing work. Therefore, Edwards was discharged for violation of an invalid no-solicitation rule which is clearly a violation of Section 8(a)(1) and (3) of the Act The preponderance of the evidence convinces, me that Respondent strictly enforces a rule forbidding - smoking during worktime anywhere in the plant. Melton admitted that he had been warned not to smoke in the breakroom during worktime. When caught smoking in the break- room when he was supposed to be working, he" quickly dropped the cigarette in an attempt to hide the fact that he was smoking. There is also uncontradicted testimony that at least. two, other employees were immediately ter- minated for smoking, during working hours.' Nor am I convinced that there,.was any disparate treatment with respect to individuals caught smoking. I therefore recommend that the 8(a)(1) and (3) allega- tions relating to Melton be dismissed. The allegations that Snow engaged in- various inde- pendent acts of 8(a)(1) conduct were introduced into the record through the testimony of Lineberry and Brewer. Snow 'denied with some specificity the allegations. Thus, the issues in this regard must be resolved by credibility - determinations - Although I was - sitting a couple of -feet from Line- berry, his testimony was barely audible. Counsel for the parties also had a great deal of difficulty in hearing this witness, who may possibly have had, toot much to drink What was audible, sounded rehearsed, and, aimed at in- volving Snow in the commission.of -unfair. labor: prac- tices. ' Brewer testified that he intentionally, -in the; presence of Snow, told an individual that, he was =going -to-sign a union card. Brewer testified - further .that-. Snow- said he should. not sign the card and that he- would get .Brewer -i' more -money "after the Union thing blows over."" It- was only on cross-examination that Brewer admitted that he had already signed a union authorization card before the alleged conversation took-,place. -Furthermore, on cross- examination Brewer- testified that Snow promised he would get him more money "quick as it blows over," and the.union was never mentioned. He also testified that he had asked-Snow for a raise previously and Snow replied that wages were frozen because of the Union. He then admitted that the Union had,not yet begun its orga- nizational campaign at that time. - In my opinion Brewer is to be completely-discredited. He attempts to set up a scenario where a supervisor is entrapped into engaging in 8(a)(l)--conduct ,do not: be- lieve it happened at all, despite the provocative nature of Brewer's actions even if they were a reality. I therefore recommend dismissal of the allegations of 8(a)(1) conduct attributed to Snow. With respect to the amendment alleging that Snow "instructed' employees not to appear at the NLRB hear- ing," there is nothing probative in the record to support this allegation., The evidence is clear that Lineberry ap- proached Snow, showed him the subpoena, and asked whether he was . required to appear Snow replied that he did not think so, but he would check with Respondent. He never got back to Lineberry because of the interven- ing 4th of July holiday. This is a far cry from instructing an employee not to appear at a trial, and. I recommend dismissal of this allegation. I fully credit the testimony of Luther Jones, that he lied when he gave his- affidavit and "made up" a conver- sation involving Foreman Gentry. - , His affidavit is completely unreliable, unlike the affida- vit in Bart & Co., 236 NLRB 242 (1978), a case relied on by the General Counsel. -Moreover,- there is no ,evidence that Jones, who cannot read, understood the statement when he signed it. My observation of Jones, coupled with, my perusal of the affidavit, leaves no doubt in my mind that the-language contained therein is the language of the investigator-not Jones. An individual who is not sure of his address and does not even know his own tele- phone number does not articulate, "I will relate the situa- tion herein." - - - I recommend dismissal of 'the allegation relating to Wade Gentry. ' ' The allegation that David Phillips Parks interrogated employees concerning their union- activities and desires should be dismissed for lack of evidence. Although Gary Higgins testified 'that he- was- asked and required to remove a union leaflet from the bulletin board, this is not interrogation as contemplated in the Act: There is evidence that Respondent disparately applied its no-posting 'rule prohibiting union-'related' solicitations and -postings while permitting. nonunion- -related solicita- tions or postings. Therefore, this is' in* violation of Sec- tion 8(a)(1) of the Act and I will so recommend that it be remedied. - I- consider the. statement of ,Foreman Edwards to --Stoneman, too -vague and ambiguous to; come within the purview of Section 8(a)(1) of the Act, ;and I recommend dismissal of that allegation; Moreover, I credit "Hale that he had reason to believe Stoneman had been harassing employees and he therefore told her not to threaten or harass anyone -in , the plant. I therefore, recommend dis- missal of this allegation. , , . :WEBB FURNITURE ENTERPRISES ', 1317 Marvin Hale, a foreman in the glue room who worked for Respondent for 25 years, denied the statements attrib- uted to him by Goad. I fully credit Hale's denial and dis- credit the testimony of Goad. - • Record evidence . reflects that Foreman Bailey is re- quired, pursuant to his duties, to frequently tour the plant checking on production. He often observes the work of a particular employee on a particular machine and takes 4otps.,for. periods of, time up to 10 minutes. Hale is his immediate supervisor and sometimes accom- panies him on these inspection tours Bailey takes the notes on a small notebook or pad I therefore conclude that the testimony of Hall relates to Bailey's conducting a normal inspection tour and he was not engaging in sur- veillance. I recommend dismissal of this allegation ' In my view Respondent did not engage in any viola- tion of the Act in seeking to limit the conversations' be- tween Shaw and employees who were on their way to the restroom or water fountain. Respondent had a right to maintain some semblance of order, and the facts re- flect that 'Respondent does allow casual conversations during worktime, but does not allow employees to leave thier machines and gather in conversations at other em- ployees' work stations. I therefore recommend dismissal of this allegation. V. THE LAYOFFS OF FEBRUARY 5, 1982. , I am convinced by a preponderance of the evidence that the'layoff was economically motivated. Ward testified credibly and forthrightly regarding Re- spondent's dilemma upon receiving cancellations, and the overall -condition of the furniture industry which is di- rectly affected by the housing industry. Even prior .to that time, as early as August: 1981, business conditions were on the decline and Respondent began to slow down in its hiring. By comparing production figures to shipment figures Ward determined that a decrease of 10 percent in, the work force would be necessary. He decided to lay off 5 percent in February 1982 and then if necessary 6 weeks later lay off another 5 percent Therefore, Respondent announced, in a letter the possibility, of the necessity for a' second layoff. However, it became unnecessary in view of attrition combined with the hiring freeze. I am also cognizant of the fact that this all occurred after the' Union lost the, election. Therefore, it cannot be argued that the purpose of the layoff was to undermine - the Union.,, Respondent adduced unrefuted evidence that layoffs were not an uncommon occurrence. Respondent's layoffs are, permanent and it has no formal method of recalling laid-off employees but has from- tune to time rehired laid- off employees on an individual basis. Respondent's reason for the raise appears to me to`be a sound business judgment' not inconsistent with its deci- sion to layoff. If, it had withheld the raise, the morale problems would have' been aggravated in this climate of - layoffs.` The function of Respondent's new plant is not to produce furniture, rather it is to produce particle board for Respondent's production of furniture: The testimony is unrebutted that the laid-off employees do not, possess the skills necessary to perform the highly skilled jobs for the production of particle board. -The General Counsel's alternative theory is that even if the layoffs were economically motivated Respondent discriminatorily selected employees on the basis of their union activity. - I find and conclude that the layoff of February 5, 1982, was economically motivated and justified and not in violation of the Act. I therefore recommend dismissal of this allegation. I have set forth in some detail the union activity, or lack of same, of the laid-off employees I have also de- tailed Respondent's modus operandi' in its selection of employees for layoff It becomes obvious that the laid-off employees, "a - mixed bag," are representative of the total employee complement of 436 employees. Some were pro-union, some antiunion, and others perhaps of no persuasion. Some were. union activists, some were more active, and some were not active at all In my opinion Respondent applied its criteria for layoff as it had done for many years in the past, on a nondiscriminatory basis. A survey of the laid-off employees on an individual basis reveals employees who were borderline although not employees who might warrant discharge under normal conditions, but these were not normal conditions. Excessive absenteeism was a valid basis for selection for' layoff of several of the employees, although admit- tedly some did not possess worse records. In those in- stances the relative merits of other employees were looked at. Some were versatile and some had more expe- rience in a particular operation Other employees had at- titudinal problems or produced poor quality work. The Respondent felt that in at least one case an employee who was drawing social security did -not need the job as much as some other employee. I find that Respondent chose those for layoff on a nondiscriminatory basis. The record reflects that some of the laid-off employees were rehired subsequent to the layoff and there is no his- tory of unfair labor practices attributed to Respondent. I recommend that the allegation that Respondent vio- lated Section 8(a)(1).and (3) of the Act by instituting the layoff on February 5,.1982, be dismissed. CONCLUSIONS OF LAW 1. Webb Furniture Enterprises , Inc. is an employer en- gaged in commerce - within , the meaning of Section 2(6) and (7) of-the Act: 2 -United -Furniture Workers of America, AFL-CIO is a labor organization within -the.meaning of Section 2(5) of. the Act. - • 3.-Respondent's no-solicitation ; rule is overly broad in .not informing employees . that solicitations are allowed during break • periods, mealtimes , and other times when they are :' not working, i and as such violates Section 8(a)(1).of?the Act. 4. By discriminating in regard to the tenure of-employ- ment of Marcus Edwards because of his concerted and union activity, Respondent 'had violated Section 8(a)(1) and (3) of the Act. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1318 5 The aforesaid unfair labor practices affect commerce:- within the meaning of Section -2(6) and (7) of the Act. 6. There is no evidence to support the allegation that Respondent violated Section 8(a)(1) of the Act' in any other regard unless specifically found herein. - - 7. Respondent did not discharge James Melton in vio-• lation of Section 8(a)(1) and (3) of the Act. THE REMEDY Having, found that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and take certain affirmative . action necessary to effectuate the policies of the Act. I further recommend that Respondent be ordered to re- scind its unlawful no-solicitation, rule. - Having found that Respondent discriminatorily dis- charged Marcus Edwards, I.recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other .rights and privileges. In addition, I recommend that Respondent make him whole for any loss he may have suffered by reason of the discrimination against him, by payment to him of the sum of money equal to that, which , he would normally have earned form the date of his termination, less net earnings during said period. Backpay shall be computed according to, F. W. Woolworth Co., 90 NLRB.289 (1950), and with inter- est computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). The Respondent shall remove from its files any refer- ence to the unlawful discharge of Marcus Edwards and notify him in writing that this has been done and that the. discharge will not be used ,against him in any way. [Recommended Order omitted from publication.] SUPPLEMENTAL DECISION STATEMENT OF THE CASE - BRUCE C NASDOR, Administrative Law Judge. On March 26, 1984, I issued a decision in the case: The Gen- eral Counsel and the Charging Party filed exceptions and supporting briefs, and the 'Respondent filed an answering brief and cross-exceptions with a supporting brief. The . General Counsel filed an answering brief to the cross-ex- ceptions. - . , Thereafter, the National- Labor- Relations Board, on - September 24, 1984, at 272 NLRB 312 (1984), remanded;, the case for further consideration- with respect to an 8(a)(1) allegation and certain 8(a)(1) and (3) allegations. Specifically, the Board concluded that I failed to find whether a supervisor, Edwards, in fact made an alleged statement and, if he did, whether it- -violated Section 8(a)(1) of the Act. ' . The Board also concluded that my findings with re- spect to 17 employees named as alleged discriminatees were vague and did not address the Wright Line test. i In 1 Wright Line, 251 NLRB 1083 (1981),-enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) - 1 'view of the Board's judgment that I.capsuliied with re- spect to the alleged discriminatees, I' will discuss each employee individually. On October 22, 1984, counsel for the Respondent filed "Respondent's brief to the administrative law -judge- on remand "' On October 26, '1984, the General Counsel filed a motion to strike Respondent's brief stating, inter alia, 2 'that the Board's rules and regulations do not pro- vide vide for the filing of briefs after a remand On November 2, 1984, Respondent filed a response to the General Counsel's motion. The General Counsel's motion is granted. According- ly, I will not consider Respondent's brief, which was filed after the remand. FINDINGS OF FACT AND CONCLUSIONS OF LAW Pursuant to the Board 's Order, these findings of fact and conclusions of law are intended to' supplement those in my original decision. ' A. The Alleged 8(a)(1) Violation 1. fully credit the testimony of Supervisor Clifford Ed-, wards that he did not make the remark attributed to him by Deliah Howard. Edwards testified in a forthright manner and made a sincere effort to recount events as they occurred. By contrast Howard, in my view, embel- lished. With regard to the statement as issue, I believe her testimony was contrived. . Accordingly, I recommend that this allegation of Sec- tion 8(a)(1) of the Act be dismissed. B. The Alleged Discriminatees 1. Guy Arnold Because of ' the evidence set forth in my original deci- sion I am dubious of whether Arnold engaged in any union activity openly. Respondent' contends that Arnold was chosen for layoff because of his excessive absentee- ism and that Respondent was able to do without Arnold because his job was unskilled. I do not credit Arnold's testimony which attempted to establish his union activity. I fully credit the testimony of Respondent's witnesses relating to Guy Arnold. In my opinion, Respondent has met its burden of proof by es- tablishing that the layoff of Arnold would have occurred absent any union activity. See Wright Line. 2. Gary Higgins Higgins admitted his horrendous record of unexcused absences. Moreover,' he acknowledged warnings that he would be terminated if his attendance did not improve. Respondent avers that Higgins was chosen for layoff be- cause of his excessive absenteeism. In my opinion Re- spondent met its burden of proof 'under the relevant test enunciated in Wright Line. 2 The General Counsel'also cited Michael M. Schafer, 261 NLRB 272 (1982), which I deem inapposite I WEBB FURNITURE ENTERPRISES 1319 3. Roger Shinault I fully credit the testimony of Fry, coupled with Shin- ault's record of absenteeism, in evidence as Respondent's Exhibit 6. 'Respondent's position that Shinault was chosen for layoff because of his absenteeism 'is credible. Moreover, no specific evidence was adduced to refute Respondent's evidence. Respondent has met its burden under Wright Line.. 4. Robert Sizemore I resolve any conflicts in the testimony between -Fry and Sizemore in favor of Fry. Fry impressed me as a witness who attempted to be unambiguous and exacting in his testimony. His overall demeanor evidenced an as- suredness. By way of contrast, Sizemore impressed me as being vague, with no real regard for specifics I believe that he falsely colored his testimony Respondent's reasons for choosing Sizemore for -layoff, his poor attendance record, ' lack of _ versatility, and the fact that he was not always available for work perferring to work in the saw mills, all provide valid reasons for choosing Sizemore for layoff I discredit Sizemore's testi- mony that he was experienced on several machines. The individual retained by Respondent, McLean, did not have an absentee record as poor as Sizemore's. Another individual was considered for layoff, but he was more skilled and more efficient than Sizemore and had-some college background. This evidence stands unrefuted in the record. Accordingly, Respondent met, its burden under the Wright Line test. 5. Dennis Funk Although Funk was absent 9 days -less than Western, there is no record evidence to support the proposition that Respondent was illegally motivated to rid itself of Funk. As discussed in my original decision, some of the' borderline employees might not have been discharged under normal conditions, but Respondent had to make choices for layoff due to its economic posture at the time. Moreover, although Funk signed union literature ,on two occasions, he was but I of 156 employees involved in this participation. It is also noted that he was rehired after the layoff. I conclude, based on all of the evidence, that Respondent did not discriminatorily lay off Funk. Respondent has met-its burden under Wright Line. 6. John Hale Jr. 7. Harry Banks Jr I fully credit the testimony of Fry and Foreman Bowen over that of Banks. Fry's demeanor was dis- cussed earlier Bowen -appeared to me to be a witness who succeeded. in giving unerring testimony with de- tailed specifics. Conversely, Banks in my opinion was not credible. He,distorted and in.my view concocted his ver- sion of his duties. I believe that there was no necessity to leave his machine and wander off to other departments. Moreover, I believe Bowen's testimony wherein he denied telling Banks that he tried to keep him, that Banks was a good worker or that Bowen would get him a raise. - Respondent also advanced Banks' -. poor absenteeism record as a basis for choosing him for the layoff. He ad- mitted being warned. Accordingly, I conclude that Re- spondent met its Wright Line burden and would have chosen Banks for layoff absent any union activity. 8. James Bolt Employee Gary Higgins testified that he saw Bolt wearing a union T-shirt in the plant one day prior to the election. The unrebutted testimony of Fry reflects that Bolt was chosen for layoff because of excessive absentee- ism and the poor quality of his work. Bolt worked in an unskilled position and he did not testify in his own behalf. Accordingly, I conclude that the layoff of Bolt was not discriminatorily motivated. 9. Norman Gibson Gibson drove a truck for plant 1 , and George An- drews drove -for plant 2 .- Respondent contends that the truck of plant 2 was more necessary since that plant did not have laundry facilities The only laundry facilities were located at plant 1 . The only supply room of Re- spondent is in plant 1. Respondent contends that An- drews had to transport rags from plant 2 to be cleaned at plant 1 , but not the reverse. Moreover Andrews was needed to transport supplies to plant 2 . Respondent chose'to lay off Gibson rather than Andrews because Andrews had 2 more years seniority over Gibson. I conclude that Respondent met its burden of proof under the test enunciated in Wright Line. There is no evi- dence to support the contention that Gibson was laid off discriminatorily. 10. Paul Hall Respondent, in its efforts to pare down its employee By no stretch of the imagination can I conclude that -complement, laid off Hall because of his excessive absen- Hale's limited union activity was the motivating force in teeism and his- lack of versatility in his job performance. Respondent's choice for his layoff. His record of lateness ', Those who were retained, although in one instance an and absenteeism is abominable.3 Based on the evidence, I , individual with a worse absentee 'record, were more able cannot infer that Respondent was even aware of Hale's to perform other functions on a variety of saws. There is union activity. Accordingly, I believe that Respondent nothing in the record to show that Respondent was dis- chose.Hale for-layoff because of his absenteeism and late-, criminatorily motivated to single out Hall because of any ness record. Moreover, Respondent has met, its burden as union'activity. enunciated in Wright Line. I conclude that Respondent has met its Wright Line 3 In evidence as R Exhs 7 and'8 burden and would have chosen Hall for layoff absent any union activity. 1320 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD 11 Jimmy Brewer In 'my original decision I completely discredited. Brewer in the context of the 8(a)(1) allegations. Brewer was also caught up in Respondent's endeavor to cut its work force. Respondent avers that its basis for selecting Brewer for layoff was his excessive absentee- ism.' There is no evidence to support the proposition that Brewer was- selected for layoff because of any union ac- tivity, and Respondent has imet the criteria set forth in Wright Line. 12. Billy Ray Sexton Sexton, the last to be hired in his department, was hired as a spare hand. As such he moved from place to place. Respondent contends it could do without him easier than other employees because the assistant fore- man can perform his job and act as a floater. Sexton had the least seniority in ' his department, while those with more seniority had been assigned to specific machines. Accordingly Respondent has met the Wright Line burden of proof. 13. Flossie Stoneman As is set forth in my original decision, Stoneman's job in the finishing room was an unskilled position which' could be performed by any other employee. Wilson felt that other employees needed income more than Stone- man did because-she was 65 years of age in August 1981, and was drawing her own Social Security benefits as well as the Social Security benefits of her deceased hus- band. This was the basis for Respondent's choice of Stoneman for layoff. The record in, my opinion reflects that Respondent was not discriminatorily motivated in laying off Stoneman but the basis for the layoff was for fair and equitable reasons with regard to other employ- ees. Accordingly, I find that Respondent has met the tests enunciated in the Wright Line decision. 14 Mary White . Respondent chose White for layoff for several reasons. She had the highest absenteeism in her department, the finishing room. When the plant got busy and it was working with less than the normal employee comple- ment, she would slow down creating a hindrance be- tween herself, her coworkers, and her supervisors. Fore- man Edwards complained about White on several occa- sions telling her that she was not properly performing her job. Moreover, she had left work without permis- sion.- Her affidavit contains what amounts to an admis- sion that her immediate superior, Edwards, was unhappy with her attitude,and work. I conclude that Respondent had ample reasons for selecting White for layoff and it has met the -test enunciated in the Wright Line decision 15 David Johnson Johnson, who has since been rehired by Respondent, had one of the worst absenteeism records in his depart- ment. Employee Crowder also had a poor absenteeism record, but Respondent retained him because he had 2' years more seniority over Johnson. Moreover, Johnson's job could be covered by other employees, while, accord- ing to Respondent, the same was not true of Crowder's job. These facts stand unrebutted in the record. The General Counsel takes the position that since neither Crowder nor another employee, Robinson,4 signed union literature, and were not laid off Johnson's layoff must have been motivated by union activity because he had signed union literature. This is simply grasping at straws and falls far short of the proof necessary to show that Respondent chose to lay off Johnson because of his union activity. It should be noted that I have considered all of the evidence and the relative merits of Robinson, Johnson, and Crowder and find that they were all mar- ginal employees with respect to their attendance. Re- spondent is'certainly within its rights in discovering an item to tip the scales in favor of one employee vis-a-vis another employee. I conclude that Respondent was not discriminatorily motivated in choosing Johnson for layoff and has met the tests enunciated in the Wright Line decision'. 16. Bettie Goad I believe Goad was laid off legitimately for the reasons propounded by Respondent and set forth in my original decision. Respondent reasonably believed that Goad could not perform the difficult physical labor required under the circumstances. Although Randy Stamper had less seniority than Goad, Respondent reasonably believed that he was better suited for the jobs requiring muscle and physical strength Accordingly, I conclude that Respondent met its Wright Line burden and would have chosen Goad for layoff absent any-union activity. Furthermore, I resolve any conflicts in the testimony' between Goad and Respondent's, witnesses in favor of' Respondent's witnesses • They were candid in admitting that Goad was a good worker and they made no at- tempts at pretext In any event, it appears to me that the discrepancies are pure hearsay testimony on the part of Goad and would in no event change my ultimate resolu- tion even if beleived. 17. Susan Shaw. I find Shaw to be an unreliable and incredible witness, based, inter alia, on her categorical denials and the in- consistency between her testimony and written notes. Her demeanor and overall manner on the witness stand convince me that Respondent chose her for layoff as a result of her temper and volatility. I fully credit Re- spondent's witness Wilson, who impressed me as sincere in his efforts to explain the reasons for choosing Shaw for layoff I also believe Ward that Higgins would have been laid off had she not quit Accordingly I find and conclude that Shaw was not laid off discriminatorily, and Respondent has met the tests set forth in the Wright Line decision 4 Robinson also had a poor absenteeism record WEBB FURNITURE ENTERPRISES CONCLUSIONS OF LAW5 I Respondent, by its supervisor and agent Clifford Edwards, did not engage in conduct violative of. Section - 8(a)(1) of the Act. 2. Respondent's layoff was economically motivated. 5 These conclusions of law are intended to supplement those in my original decision appearing at 272 NLRB 312 (1984) 1321 3 Respondent's selection ofemployees for layoff was not' motivated by their union and/or concerted activities, but rather was based- on lawful, nondiscriminatory crite- ria. 4. The allegations of the-complaint that Respondent engaged in conduct violative of Section 8(a)(3), and other conduct violative of Section 8(a)(1), independently and derivatively of the Act, have not been supported by substantial evidence. 4',