Twistex, Inc.

660 DECISIONS OF THE NATIONAL' LABOR RELATIONS BOARD Twistex, Inc. and National Association of Govern- ment Employees (SEIU/AFL-CIO). Case 1- CA-23472 17 April 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 30 October 1986 Administrative Law Judge Richard H. Beddow Jr. issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Twistex, Inc., South Grafton, Massachu- setts, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. Substitute the following for paragraph 1(d). i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings Member Babson and Member Stephens find it unnecessary to pass on the judge's application of the "small plant doctrine" in view of the other grounds relied on by the judge that establish the Respondent's knowledge of the union activity of employees Potter and Poulin. Additionally, Member Babson and Member Stephens note that no exceptions have been filed to the judge's finding that the Respondent did not violate Sec. 8(axl) based on Plant Manager Vouna's 8 October 1985 conversation with Potter 2 The General Counsel excepts, inter alia, to the judge's recommended remedy and Order to the extent that they provide backpay for Potter and Poulin based on their part-tune status, contending that these employees were entitled to recall to full-time positions. We note, however, that the complaint alleges that the Respondent unlawfully refused to recall Potter and Poulin from layoff and that as of the time of their layoffs they occu- pied part-time positions. Furthermore, we find that the evidence is insuf- ficient to establish that Potter and Poulin requested and were entitled to recall to full-time positions. Accordingly, we find the General Counsel's exceptions without ment The judge recommended that a broad cease-and-desist order issue against the Respondent We have considered this case in light of the standard set forth in Hickmott Foods, 242 NLRB 1357 (1979), and have concluded that the narrow cease-and-desist order is appropriate. We shall modify the judge's recommended Order accordingly. Despite his recom- mended Order, however, we note that the judge's recommended notice contains the narrow cease-and-desist language "(d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act:" - Ronald S. Cohen, Esq., for the General Counsel. Richard G. Remmes, Esq., of South Boston, Massachu- setts, for the Respondent. Robert Weihrauch, Esq., of Worcester, Massachusetts, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Boston, Massachusetts, on 16, 17, and 18 June 1986. The proceeding is based on a charge filed 10 January 1986,1 by National Association of Government Employees (SEIU/AFL-CIO). The Re- gional Director's complaint dated 20 March 1986 , alleges that Respondent Twistex, Inc., of South Grafton, Massa- chusetts, violated Section 8(a)(1) and (3) of the National Labor Relations Act by laying off and subsequently fail- ing and refusing to recall two employees because of their union or other protected concerted activities and by at- tempting to cause another employer to discharge one of the same employees. FINDINGS OF FACT 1. JURISDICTION Respondent is engaged in the manufacture, distribu- tion, and sale of yarn products. It annually ships goods valued in excess of $50,000 from its South Grafton loca- tion to points outside Massachusetts and it annually pur- chases and receives goods and materials valued in excess of $50,000 directly from points outside Massachusetts. It admits that at all times material it has been an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Twistex is primarily owned by Bruce Kiviat (as well as brothers Reed and Douglas Kiviat), however, it is not shown that he is actively engaged in company oper- ations. His father, Jerry (Jerome) Kiviat, owns the build- ing in which Respondent conducts its operations. Several other tenants are located in the same building. Jerome is shown to serve as Respondent's "engineering" consultant and he plays an active role in directing Respondent's fundamental operations. He is recognized by the employ- ees as being personally engaged in labor relations matters and the day-to-day plant operations. Jerome receives consultant fees that exceed the annual salary paid Plant Manager Sam Vouna. i All following dates will be in 1985 unless otherwise indicated. 283 NLRB No. 102 TWISTEX, INC. Jerome is also the president and owner of'Brentwood Yarn Mills. This company owns the machinery used by Respondent, as well as the raw materials it processes. In effect Respondent contract processes Brentwood's yarn for a set fee per pound. Brentwood has a manufacturing facility of its own located on Long Island, New York. It also uses the processing services of BRD Industries, of New Jersey, an operation similar to that of Respondent and owned by Bruce, Reed, and Douglas Kiviat. Both Respondent and BRD contract exclusively with Brent- wood, Richard Cadrin serves as the controller of both Respondent and Brentwood but maintains his office in South Grafton. Jerome Kiviat has his office at Brent- wood but visits South Grafton frequently and otherwise is in almost daily phone contact with plant manager Vouna or Cadrin. Vouna also holds a position on the payroll of both Respondent and Brentwood. Among other activities, Jerome Kiviat regularly has discussed employee wage levels with Vouna and Cadrin and Jerome, along with Vouna represented Respondent in a meeting with an investigator for the occupational Safety and Health Administration (OSHA). Cadrin testi- fied that the work capabilities of the three facilities are partially interchangeable and that Respondent has better machinery and can perform all the functions of the other plants plus handle heavier yarns that the other plants cannot process. The assignment of work to any particu- lar plant is made by scheduling people who work under the direct supervision of Jerome Kiviat. Also, by letter dated 10 October Jerome notified Vouna of a decision to cut back production at Respondent's plant and directed Vouna to immediately layoff any "excessive part time help." Although the Respondent disclaims any ownership status by Jerome Kiviat, I conclude -that regardless of Bruce Kiiviat's titular position as president, the record shows such close and intimate control over the oper- ations by Jerome that it must be concluded that he served as a supervisor and agent acting for and on behalf of management and that his statements and actions perti- nent to the charges herein must be found to be attributa ble to Respondent. Respondent's manufacturing process involves three basic production ^ operations; twisting, binding, and winding/reeling and for the most part the production op- erations are located on the fourth floor of the Kiviat's building. The main production room contains the twist- ing and binding operations together with two winders and the core winder. The tube winding operation is in a separate room on the same, floor. Because of a general drop in the overall business 'gen- erated by Brentwood, Respondent started an experimen- tal hand-knit operation in the spring of 1985. In conjunc- tion with the hand-knit business, Respondent began plan- ning' for a retail store, which it opened on the fourth floor in the spring of 1986. , Tina Potter began working for Respondent in 1980 on a part-time basis. On graduation from high school in 1981, 'she became a' full-time employee. Potter started on skeining and then at various times performed all other production tasks including reeling, binding, twisting, and cone and tube winding. She was laid off during the win- 661 ters of both 1981 and 1982, but returned in April 1983. In late October 1984 she requested a raise from her base wage of $3.95 an hour and quit when Jerry Kiviat told her she would never make $5 an hour working for him. She returned to Respondent in April 1985 on a part-time basis and told Vouna she would consider going full time in September. During the latter half of September she performed, twisting and binding. on Respondent's new hand-knit project and returned to cone winding and pull skeining shortly before being laid off on October 11. Generally, she worked 4 morning hours, but often stayed latter at Vouna's request. Sandra Poulin was first employed by Respondent from 1979 to September 1981 and again from August 1983 to July 1984, predominently part time. She returned with Potter on a part-time basis in April 1985. She worked in all production jobs except seining and during the last period of employment performed binding cone winding, twisting, and, during the second week of October, tube winding. During the greater part of 1985, Respondent generally employed approximately 22 production employees. And, until October, production ran on three shifts. Poulin held employee number 20, while Mary Richard, described by Respondent as the senior part-time employee (apparently because of her continuous service record) was number 22, and Potter was'number 163. New employees hired in November received 400 series numbers. In early September Potter and Poulin spoke with Vouna about their perceived unsatisfactory working con- ditions. They specifically referred to eye, ear, and lung protection and requesting a water fountain, eye goggles, and ear plugs. Vouna said he would see about a fountain and suggested that the Company would reimburse them if they purchased other items themselves. Poulin testified that on two occasions in mid-Septem- ber Vouna' told them they could work all the overtime they wanted and when they mentioned the possibility of going full time he said to wait and see after the anticipat- edOctober raises went into effect. He also explained that they were,going to hire some new people and start up a "skeining" operation involving the packaging of yarn in quantities suitable for retail sale. Potter testified that Bouna said he had discussed their raises with Jerry and that they would get a 30-cent-an- hour increase but that they, should not discuss it with others as the others would not be getting as, much. She also confirmed Vouna's comments about available work, his offer of more hours, and the possibility of full-time work. When she indicated a reluctance to work more hours because of' a dissatisfaction with her pay rate, Vouna said he was' gong to hire others whether they went full time or not and repeated that they could' work as -much as they wanted as there was plenty of work. During the latter conversation with Vouna, he also indi- cated that they would receive 30-cent-an-hour raises. (The extra 10 cents apparently was designed to make up for a raise other employees had received the previous year when Potter and Poulin were, not working.) During mid-September, Vouna assigned Potter to the pull-skeining operation for several days of training on the 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD new job. Also in mid-September Poulin told Vouna that she did not want to work with employee Gina Perras who worked on a binding machine . The explanation for her statement was that Gina sat down much of the time and got away with a` lot of things because she was the girl friend of forman Bruce Boisvert. On 19 September Poulin, in Potter's presence and after discussing their dissatisfaction with working conditions, called the Occupational Safety and Health Administra- tion, and shortly thereafter received a complaint form. On 30 September Poulin, together with Potter, filled out, signed, and mailed a complaint to OSHA regarding nine areas of concern including lack of hearing protec- tion, cotton, and wool contamination in nose, eyes, and lungs, and lack of drinking fountains. On 2 October, Potter and Poulin met at the latter's home with Dave Surpernant , a representative of the Union. They received union literature and authorization cards that they then took to work and distributed the next day. Potter gave them personally to 4 or 5 employ- ees and placed literature in the ladies' room and on windshields of - vehicles in the employees' parking area, including Foreman Boisvert's truck. Potter testified that Boisvert -was 15 feet away and looking at her while she distributed some literature in the twisting and binding room. On 4 October, additional literature, which specifi- cally listed Potter and Poulin as the persons to contact for more information, was distributed in the same manner as well as at the lunch table where they were ob- served by Foreman Boisvert . Potter testified that Bosi- vert then approached them , and stated they were not going to form a union as Jerry Kiviat would not let them. Boisvert admitted that he saw the union pamphlets on the lunch table and that he then went to Vouna's office and asked if Vouna knew what was going on out there. Vouna replied affirmatively and, Boisvert observed that a union leaflet was on Vouna's desk. Boisvert denied that he identified any particular employees as being in- volved in the Union, however, he admitted that while a group of employees, including Potter and Poulin, were talking about the Union he said that "Jerry Kiviat would not let the union in here and would close down first." Boisvert also testified that the literature he found on his truck and first saw in the plant did not have any em- ployee names on them. He admitted, however, that he heard rumors going around that Potter and Poulin were trying to get a union in there, but denied that he told that to Vouna. On 7 October, without prior notice ,to the staff, Jerry Kiviat, Vouna, and Cadrin held a meeting with all the day-shift 'production employees (approximately 10 people were in attendance). Cadrin had a pad and pen and took notes of what went on. Kiviat opened by stating that it had been a year since their last meeting, it was time for a meeting, and he wanted to hear any complaints the em- ployees had. Respondent asserts that it has been Kiviat's practice to have an annual meeting near 1 October and to give a review of the company's condition.' Potter, however, recalled that the last company meeting had been in August 1984, and that they had several days ad- vanced notice prior to the meeting . Potter asked for a water fountain, clean lunch table, and a sanitary napkin machine in the ladies' room and spoke about her eyes being bothered. Poulin asked for hearing protection and mentioned ventilation, breathing dust, and not knowing the makeup of the yarn. Other employees made com- ments, both pro and con, regarding the suggestions. During the 45-minute meeting Kiviat also told the em- ployees that work was slow but that of his three plants, Respondent would be the last place to have a layoff be- cause he would take work from the other plants and keep Respondent going. Cadrin testified that in response to the complaints, Respondent ordered a water bubbler and sanitary napkins and that after acting on these mat- ters, he discarded his notes of the meeting. On 8 October Potter and Poulin both received of 20- cent-an-hour pay raises, rather than the 30 cents they had expected. The next day they both spoke with Vouna about it and he told them that because employees in the plant were complaining about discrimination, he decided to give everyone the same raise . During the same con- versation Potter questioned why all the woman except for Potter and Poulin were asked their preference for the type of sanitary napkins and he replied it has all been done by his secretary. Also on 8 October Potter and Poulin observed an OSHA inspector tour the plant in the company of Man- ager Vouna. Both were given "boxes" for the taking of some measurements and the next day when Potter asked Vouna what had been going on, Vouna responded with a question about who had made the OSHA complaint and Potter said she had no idea who it was. Poulin also saw Jerome Kiviat in the office but he did not look at her and, when she left, the company mechanic commented that , Kiviat was upset about OSHA being at the plant. Potter also recalled that on 8 October they spoke with Boisvert at the lunch table and he was upset because as a result of the presence of its OSHA inspector he had been required to vacuum the "fuzz" from the various ma- chines. On 10 October Vouna told Poulin and Potter that he was cutting back on their hours. Poulin recalled that they had been working more than 4 hours a day for 2 months. (Record indicates that for the last 3 weeks of September, they averaged 20 hours a week or less, how- ever, the first week of September and the next 2 weeks in October generally reflect more than 4 hours a day.) On 11 October Potter and Poulin were both told by Vouna that they were laid off because work was slow and because they had the least seniority of the part-time workers. On leaving Respondent's area of the plant both went to another company, located in the same building, and applied for jobs. Both testified that the supervisor said he would love to hire them and indicated he was aware of something going on about some union activity upstairs. Subsequently, on 4 November, Potter obtained a job with Hospital Data. During 1985 Hospital Data Systems rented portions of the second floor in the building owned by Jerome Kiviat and 'utilized by Respondent . Its president,, Richard An- derson, testified that while he was absent his foreman had hired some additional help from within the building. TWISTEX, INC. On his return in the early part of November, he visited Vouna's office at the latter's request Vouna told Ander- son that he had a personnel problem because a girl he had hired, Tina Potter, was vindictive and a troublemak- er and Vouna suggested that it would be in everyone's best interest if Anderson discontinued her employment. Anderson also recalled that Vouna had referred to some relationship she had with a,,union. Vouna admitted that Anderson's recollection was substantially correct but stated he said nothing about -"union cards" Vouna added that he had just received the OSHA citation reflecting Potter's and Poulin's names, knew they were working downstairs, and, he just wanted to tip Anderson off that they were troublemakers. Potter testified that her fore- man -from Hospital Data told her she might be laid off because Respondent had spoken with Anderson, said she was a troublemaker, and was upset that she had been hired.2 During the first week of December Poulin saw news- paper ads by Respondent for full-time employees. She called Vouna who told-her he had no more openings at the time. Vouna admits that he was hiring at that time, but did not consider Poulin because he assumed she was seeking part-time work and he wanted full-time binding and, twisting operators. On 14 January 1986, Potter listened on an extension phone while Poulin called Vouna and asked if any full- time employment was available. He answered in the neg- ative and when she asked if he knew when she might be called back to work he said he had no idea. Potter also testified that in a conversation with Vouna in September, prior to her layoff, she had learned of Re- spondent's plans; to open a retail outlet and had told him she had 6 months of retail experience and would like to work in the planned store. Vouna indicated it would be a good idea but to just wait as he did not know when it would all happen. Vouna recalled the conversation but testified that he subsequently did not place the ads or do the hiring for the positions that were filled. Plant Manager Vouna testified that at the end of August, Respondent had run out of wool orders, which resulted in the end of reeling (skeining) operations, and that a major cotton order being produced for a manufac- turer of sweaters was placed on hold early in October. Consequently, it was decided that the third shift should be eliminated, effective 9 October, in order, to stretch out the work and reduce the number of employees. Vouna stated the change to a two-shift operation: automatically reduced production by one-third and 'resulted in there not being enough day shift work in tube winding to keep Poulin, Potter, and two other employees who performed that function, occupied. Potter and Poulin were consid- ered to be the least senior employees in tube winding be- cause both had, returned to work in April 1985 after quit- ting in the early fall of 1984, and it was considered to be company policy that part-time employees be laid off first. Vouna also indicated that in addition to the economic reasons for their layoff, he also considered ',their intracta- ble attitude as evidenced by their past work history, in- 2 Although Respondent objected to the hearsay nature of this state- ment, its objection was not pursued on brief. 663 eluding Poulin's leaving without notice in April after re- turning for only I week as a full-time employee (she then went to part time) and because she threatened to quit rather than, work as a "binder", in the main production area because she could not get along with the First-Shift Foreman Boisvert and employee Gina Perras. III. DISCUSSION The issues in this case arose from the events surround- ing a brief union organizational, attempt by two employ- ees and their contemporaneous filing of a complaint with OSHA about working conditions. A -review of the record leads to the conclusion that the Company re- sponded with the layoff of the involved employees and a subsequent refusal to recall them. As noted above, I conclude that'Jerome Kiviat exer- cises effective control over Respondent and two other companies engaged in the same business and that he is a supervisor and agent of Respondent whose statements and actions pertaining to the involved complaint proper- ly are attributable to Respondent. I also find Foreman Bruce Boisvert is a statutory supervisor within the mean- ing of Section 2(11) of the Act.3 Boisvert admitted that when he first saw union litera- ture being distributed he told a group of employees, in- cluding Potter and Poulin, that Jerry„ Kiviat would not let the union in and would close down first. On' cross- examination Respondent attempted to minimize the nature of this threat by obtaining an answer from Bois- vert that this was only his personal opinion and was not based on any comments by Kiviat, however, it is well es- tablished that'a supervisor's statement to employees that threatens plant closure if a union is organized constitutes illegal interference. Accordingly, I find that Boisvert's statement of 8 October is attributable to Respondent and that the statement interfered with `the union activity of employees in violation of Section 8(a)(1) of the Act, as alleged. Also on 8 October the plant was visited by an OSHA investigator and it is alleged that subsequently Vouna in- terrogated Potter about who had made the 'complaint. The only evidence' relative to, this allegation indicates that Vouna made a comment that he was trying to find out who made a complaint in response to Potter's ques- tion to him about what was going on with the presence of the OSHA investigator. Under these circumstances, I do not find that his answer rises to a level that would tend, to restrain, coerce, or interfere with employees' rights, see Rossmore House, 269 NLRB 1176 (1984), and I fmd that Respondent is not shown to have violated the Act in this respect, as alleged. 'turning to the layoff and, refusal to recall aspects of this proceeding, applicable law requires that-the General Counsel meet an initial burden of presenting sufficient evidence to support an inference that the employees' union or other protected, concerted activities' were the motivating factor in the employer's decision to lay off 3 The record shows that Botsvert was regarded as a supervisor by the employees, he admittedly could and did hire, fire, and discipline employ- ees and he was a salaried worker who received essentially twice the rate other production employees were paid. 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and not recall the employees. Here, the record shows that Potter and Poulin openly distributed union leaflets during the early part of October. This occurred in front of Foreman Boisvert and lead to his admitted comment that Kiviat would not- let the Union in and would close the plant. Secondly, after having first made certain personal complaints to Vouna about perceived unsatisfactory working conditions, Potter and Poulin filed a complaint with OSHA on 30 September. These complaints were also repeated by Potter and Poulin in the unannounced general meeting of all employees called by Kiviat on 7 October. On the morning of 8 October, when the OSHA inspector visited the plant and brought the complaint to the attention of Vouna and, apparently, Jerome Kiviat, the investigator's notes indicate that Vouna asked him to test the two employees he believed to be the "source of all this" with a "dosimeter" and that Respondent stated the "complaint arose from an ongoing effort to unionize the shop." Potter and Poulin were both tested. Later that same day Vouna met with Cadrin and assertedly made the decision, to lay off both employees. The subject of the OSHA complaint involved working conditions and Potter's and Poulin's joint complaints to Vouna regard- ing the same matters (as well as pay rates), clearly con- stitute a protected, concerted activity, see A. N. Electric Corp., 276 NLRB 887 (1985). On 11 October they were told of their layoff and, subsequently, no effort was made to recall them, despite the fact that ads were placed for new employees, some new employees were hired, and Potter and Poulin both made inquires about returning to work. Under these circumstances, _ I conclude that the General Counsel has met his initial burden by presenting a prima facie showing sufficient to support an inference that the employees' union activity and their protected, concerted OSHA complaint were the motivating factors in Respondent's layoff decision as well as its apparent subsequent decision to not recall them from layoff status. Accordingly, the testimony will be discussed and the record evaluated in keeping with the criteria set forth in Wright Line, 251 NLRB 1083 _(1980), see also NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), to consider Respondent's defense and, in the light thereof, whether the General Counsel has carried his overall burden. Although Respondent denies that Plant Manager Vouna had any knowledge of Potter's and Poulin's union activity at the time of their layoff, the record does estab- lish that by 4 October, when Vouna was told about union activity by Boisvert, he already had possession of a union leaflet brought to him by his secretary and he had acknowledged that he was aware of what was going on. Although -it was not established that the leaflet seen by Vouna specifically identified Potter and Poulin, Bois- vert admitted that rumors were going through the plant identifying them as the persons trying to get a union started. As noted, Respondent's operation involved 22 or fewer production employees (9 or 10 in a shift), working in an open environment in which Supervisors Boisvert and Vouna were regularly present and in which Potter and Poulin openly distributed leaflets, some of which carried their names. While Boisvert and Vouna deny that Boisvert identified the union activitis to Vouna, Boisvert testified that he assumed Vouna already knew and I do not credit Vouna's bear disavowal of knowledge. Under these circumstances, it is appropriate to apply the "small plant rule" and infer the presumptive likelihood that Vouna had knowledge of the employees' open activities, inasmuch as there is sufficient other information, includ- ing the admitted rumors and presence of leaflets with Potter's and Poulin's name, and the conveyance to Vouna of a leaflet by his 'secretary, to independently infer Respondent's knowledge of their union activity. See D & D Sewing Co. v. NLRB, 801 F.2d 636 (3d Cir. 1986). Respondent also denies that it knew Potter and Poulin were behind the OSHA complaint until after the layoff, when, on 19 October it received a document that specifi- cally carried their names-. As otherwise noted, Respond- ent told the OSHA investigator that it believed it 'knew the source of the complaint and then' specifically directed testing of Potter and Poulin. Otherwise, the sequence of direct complaints to Vouna and Kiviat on the same spe- cific subjects covered in the OSHA complaint independ- ently support an inference that Respondent knew or be- lieved at the time Potter and Poulin were laid off that they were responsible and I cannot ' find Vouna's denial in this respect to be credible. While I conclude that these circumstances are sufficient to establish Respondent's knowledge, I also conclude that this inference is further supported by the timing of the layoffs and,- as discussed below, the pretextual quality of Respondent's asserted justifications for its action and for its subsequent failure to recall them from layoff. These factors also establish a basis for the inference that Respondent was aware of the employees' protected activity and that such knowledge is directly, linked to their respective layoffs and Respond- ent's subsequent failure to recall them. See Dr. Frederick Davidowitz, D.D.S. a Professional Corp., 277 NLRB 1046 (1985). Respondent's principal defense rests on its claim that a reduction in its work force was required because of a de- cline in orders. Vouna testified that when there are lay- offs Kiviat usually orders him to lay off "a certain amount of hours" and, when work decreased in 1984, Respondent cut hours back by 20 percent instead of laying off employees. However, in October Kiviat de- parted from the norm by ordering the layoff of "exces- sive" part-time employees. Also, in 1982 Respondent asked for volunteers as an alternative to layoffs,, however, no such request was made in 1985 even though it knew of two employees who were pregnant and had already indicated they would be leaving work in December. Vouna's attempted explanations for the variance were contradictory and un- persuasive. For example, he first said he did not cut hours in 1985 because when he did that in 1984 it caused some third-shift employees to quit. However, Vouna also testified at the hearing, and in his affidavit, that he had decided to eliminate the third shift with the hope that this would cause the same third-shift employees to quit. Vouna further testified he did not cut back hours be- cause he did not want to unfairly, penalize all the em- TWISTEX, INC. ployees, yet he attempted to force third-shift employees to quit. Subsequent to the alleged unfair labor practice in 1985, Respondent again utilized cuts in hours for reduced work loads in 1986, and there were no apparent layoffs. Respondent presented an exhibit and testimony regard- ing the numbers of production employees at its several related plants. This shows that between weeks 42 (the week Potter and Poulin were laid off) and 43, Respond- ent's Tvriistex plant had a reduction of three production employees while the BRD, plant showed an increase of one production employee and the Brentwood plant showed no change. It appears that the only involuntary cutback imposed on employees at any of the three plants was the layoffs of Potter and Poulin . This is to be con- trasted to 1984 when during the months of October through December the number of production employees of Respondent increased while the number of production employees at- BRD decreased from 52 to 14 and the number of production employees at Brentwood de- creased by one in the same period . The 1984 practice was consistent with the assurance given in October 1985 by Jerome. Kiviat that production would be shifted to Respondent from other plants (it was considered that the work force at both of its other facilities was considered to be more elastic and could be more readily replaced after a layoff than at Twistex, yet, only a week later, this practice was not followed. During that period of time the union organizational drive activated by Poulin and Potter occurred and, as urged by the General counsel, the evidence establishes that Respondent departed from its normal practice in de- ciding to have a layoff at the plant and in implementing that layoff, thus supporting an inference that Respond- ent's actions were unlawfully motivated. See Heartland Food Warehouse, supra. Under these circumstances; I find that Respondent's principal stated economic reason for the layoff of Potter and Poulin is pretextual .- Although some decrease in production occurred, it appears that this was manipulated by Jerome Kiviat to adversely affect Respondent's plant despite his assurances to the contrary. Significantly, Respondent stated it selected Potter and Poulin as they were the least senior part-time workers (but based on then current time rather than total or origi- nal starting date) but also has asserted various other rea- sons, including the assertion that they were doing wind- ing, a function no longer needed, and were reluctant to work in twisting and binding. These reasons must be contrasted with the showing that both Potter and Poulin were qualified and experienced in all job functions and that any reluctance to work was directed at working conditions in a particular location where management failed to correct a situation where foreman Boisvert gave preferential treatment to his girlfriend . Also, in a letter dated February 25, 1986, from Respondent to OSHA, Respondent listed , seven reasons for selecting them for layoff including the assertation that their attendance was poor, that Potter had quit 1 year earlier after demanding a 25-percent pay increase and had been laid off twice before, and that Poulin had previously quit twice and had been fired once. 665 Under these circumstances, I conclude that the appar- ent shifting and subsequent buildup of additional reasons for their layoff only serves to further underscore its un- lawful motive and the pretextual nature of their layoff. See J & G Wall Baking Co., 272 NLRB 1008 (1984). Respondent's reasons and testimony also are rendered suspect by the timing of the layoff almost immediately after the visit of the OSHA investigator, by the apparent repudiation of Kiviat's assurances that Respondent's fa- cility would be the last to have a layoff, and by the con- tradictory statements of its various principals . For exam- ple, Vouna testified that he made the decision to lay off the two employees on 8 October, yet a letter of instruc- tions from Kiviat clearly implies that the decision was made by Kiviat on 10 October. However, Cadrin in- formed OSHA that the decision to lay them off was made on 11 October. Also, Vouna's affidavit stated that a decision was made on 1 or 2 October to lay off a full- time employee or two part-time employees. Vouna also testified that Kiviat told him to lay off one full-time em- ployee and he then decided to lay off two part -timers, however, Kiviat's letter clearly states that Kiviat ordered the elimination of "all excessive part-time employees." Vouna attempted to portray the 'elimination of the third shift and the layoffs as part of the same decision-making process and testified that the decision to lay off the two employees was made at the same time it was decided to eliminate the third shift but in his affidavit he stated he made the decision to eliminate the third shift weeks before 8 October, and Cadrin's letter to OSHA clearly separated the two events. I, conclude that the totality of Respondent's motiva- tional defense is_ pretextual and I find that Respondent has failed ' to show that `it would have laid off either Potter or Poulin absent the start of the Union 's organiza- tional drive and the visit of the OSHA investigator and Respondent's suspicions that each of them was engaged in union activity and in the making of a complaint to OSHA. Respondent has failed to meet its burden under Wright Line, supra, and, as the General Counsel otherwise has shown by, a preponderance of the evidence that both Potter and Poulin were laid off because of their protect- ed activities and, I further conclude that Respondent thereby violated Section 8(a)(1) and (3) of the Act as al- leged. The conclusion reached regarding Respondent 's moti- vation for the layoff are reinforced by a review of Re- spondent's actions subsequent to the layoff. After Potter was hired by another employer, in the same building as Twistex, a building owned by Kiviat (and after Respondent had received an OSHA document specifically identifying Poter and Poulin as the complain- ing parties), Vouna admitted asking her new employer to get rid of her because she was vindictive and a trouble- maker. I also credit that the Company's president, who independently testified that Vouna made a reference to Potter's involvement with a union. This action by Vouna constitutes a separate violation of Section 8(a)(1) of the Act, as alleged. 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Production continued during the fall of 1985, and Re- spondent experienced some turnover of employees. Re- spondent placed newspaper ads for , and hired several new production employees . Potter and Poulin both spoke to Vouna about coming back to work. Poulin specifically telephoned Vouna in December asking for work right after Vouna began advertising for full-time help. Vouna explained that he did not hire Poulin because he assumed she was calling for part-time work, yet the record shows that one former employee on disability and one new em- ployee were put on in November as part-time employees. Respondent's work records also show that numerous employees, including newly , hired workers, consistently had weekly - wages in the range between $98 and $62 (Mary Richards a retired, part-timer also consistently worked 20 hours), from November 1985 through January 1986, whereas a comparable 40 hour production wage apparently would be at least in the $135 range. Also, reg- ular production workers regularly worked between 2 and 15 hours overtime each week and received signifi- cantly greater wages. A comparison for the last half of 1985 of the numbers of production employees at Respondent and at the two other companies controlled by Kiviat also indicate that Twistex went from a consistent level of 20 employees in the third quarter to a fluctuation between 18 and 14 in the fourth, while BRD went from a third quarter 12-15 range to a higher 16-20 range in the fourth quarter, and Brentwood went from a third quarter 24-30 range to a consistent 27-in the fourth quarter. Under these circum- stances, it appears that little effort was made to assign more production to Respondent's plant despite the fact that , it had better machinery, Kiviat had promised the employees that he would do so, and that had been the practice iii the past. Under these circumstances, I fmd that Respondent had ample opportunity to recall Potter and Poulin from layoff but never sought to do so . Moreover, it specifical- ly denied their request for recall . I' further find its at- tempt to find a distinction between their asserted status as part-time employees, qualified in only one area of op- eration, to be contrary to its operational practices and clearly pretextual . Respondent clearly knew of Potter's and Poulin's OSHA complaint by this time and it also is shown that it mentioned Potter's union activity when it attempted to get an independent employer to terminate her. I therefore conclude that the motivating factor behind Respondent's failure to recall them from layoff was their union and protected concerted activity and I conclude that Respondent is therefore shown to have violated Section 8(axl) and (3) of the Act in this respect, as alleged. Under all these circumstances , I conclude that Re- spondent has not met its burden of showing that -Potter and Poulin 'would have been laid off and not recalled absent their union activity and protected concerted activ- ity in filing their OSHA complaint, compare Dorothy Shamrock Coal Co., 279 NLRB 1298 (1986). The General Counsel otherwise has met , her overall burden of proof and I further conclude that Respondent thereby violated Section 8(a)(1) and (3) of the Act, as alleged. CONCLUSIONS OF LAw 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7)'of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening that the plant would be shut down before a union would be let in, Respondent has inter- fered with, restrained, and coerced employees in the ex- ercise of their rights guaranteed them by Section 7 of the Act, and thereby has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By attempting to cause another employer to dis- charge Tina Potter, in retaliation for her union and pro- tected concerted activity, Respondent has violated Sec- tion 8(a)(1) of the Act. 5. By laying off employees Tina Potter and Sandra J. Poulin on 11 October 1985 and by subsequently failing and refusing to recall them from lay off because of their union activity and protected concerted activity, Re- spondent has violated Section 8 (aX3) and (1) of the Act. 6. The Respondent has not otherwise engaged in con- duct violative of the Act as alleged in `the complaint. - REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find , it necessary to order it to cease , and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily laid off and failed , to recall employees Potter and Poulin, - 1 fmd it necessary to order it to offer them reinstatement to their former positions with compensation for loss of pay and , other benefits, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Flori- da Steel Corp., 231 NLRB 651 (1977). It also shall remove from its files any,reference to-the separation and notify them that it has been done and that evidence of such unlawful action will not be used as a basis for fur- ther action against them. See Sterling Sugars, -261-NLRB 472 (1982). Otherwise, because of the serious nature of the violations and an overall display of a general disre- gard for the employees' fundamental rights, I fmd it nec- essary to issue a broad Order , requiring the Respondent to cease and desist from infringing in any other manner on rights guaranteed employees by Section 7 of the Act. Hickmotr Foods, 242 NLRB 1357 (1979). As a part of the relief, sought, the General Counsel also seeks imposition of a so-called ' "visitatorial clause" whereby the Board would be authorized ' to engage in certain discovery activities in order to monitor compli- ance. Although the imposition of such a provision re- cently has become a common practice, there is no show- ing that' it is of particular applicability or usefulness in dealing with the type of unfair labor practice involved in this proceeding. Accordingly, the request 'is denied and no visitatorial clause will be imposed as part of the order herein. TWISTEX, INC. 667 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Twistex, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with the closure of its busi- ness before it would allow a union. (b) Attempting to cause another employer to discharge former employees in retaliation for their union or other protected concerted activity. (c) Laying off or failing and refusing to offer recall to any employees or otherwise discriminating against them for engaging in union organization activity or other pro- tected concerted activity. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Tina Potter and Sandra A. Poulin immediate and full reinstatement to their former or equivalent posi- tions and make them whole for the losses they incurred as a result of the discrimination against them in the manner specified in the section above entitled "Remedy," and remove from its files any references to these separations on 11 October 1985, and notify them in writing that this has been done and that evidence of this unlawful separation will not be used as a basis for future personnel actions against them. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its South Grafton, Massachusetts, facility copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily 4, If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." posted. Reasonable steps shall be taken by the ]Respond- ent to ensure' that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED, that the complaint be dis- missed insofar as it alleges violations of the Act other than those found above. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT threaten employees with the closure of our business before we would allow a union. WE WILL NOT attempt to cause any other employer to discharge any' of our former employees because they en- gaged in union organization activity or other protected concerted activity. WE WILL NOT layoff or refuse to recall employees laid off or otherwise discriminated against for engaging in union organization activity or other protected concerted activity. WE WILL NOT in any like or related manner interfere with, coerce, or restrain our employees in the exercise of the rights set forth above. WE WILL offer Tina Potter and Sandra A. Poulin im- mediate and full reinstatement to their former or equiva- lent position and make them whole for any losses they incurred as a result of the discrimination against them in the manner specified in the section entitled "Remedy." WE WILL remove from our files any references to their separations, and notify them in writing that this has been done and that evidence of this unlawful separation will not be used as a basis for future personnel action against them. TWISTER, INC.