Kudzu Productions, Inc.

82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kudzu Productions, Inc. and Local 780, Internation- al Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. Case 10-CA-22748 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND DEVANEY On December 22, 1988, Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Kudzu Productions, Inc., Huntsville, Alabama, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(c) and re- letter the subsequent paragraph. "(c) Remove from its files any reference to the unlawful layoff of Earl Greenwell, and notify him in writing that this has been done and that this layoff will not be used against him in any way." 2. Substitute the attached notice for that of the administrative law judge. ' We agree with the judge that the Respondent 's selection of Earl Greenwell for layoff in July 1987 violated the Act. In so concluding, the judge found, inter aha, that the Respondent's layoff selection failed to follow NASA's instruction to lay off two "A" technicians and that it re- sulted instead in only one "A" technician's slot being eliminated The Re- spondent excepts and claims that the judge's analysis failed to take ac- count of the fact that it also demoted "A" technician Shannon Powers to a "B" technician slot. Thus, it claims it did eliminate two "A" technician slots We reject the Respondent's argument. The evidence that it offers in support of its claim is the testimony of its manager , Smith, who stated only that he "recommended" that Powers be moved from an "A" slot to a "B" slot Reference to the record, however, shows that in a postlayoff August 7, 1987 memorandum, the Respondent still listed Powers as one of its "current 'A' technicians." Thus, the Respondent has not shown that Powers was indeed demoted or that the judge was in error in his finding that the Respondent's layoff selection resulted in only one "A" techni- cian's slot being eliminated 8 The judge inadvertently failed to provide the usual expunction remedy We have made the appropriate modification in the Order and notice APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten you with retaliation be- cause of your support of Local 780, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, or any other labor organization. WE WILL NOT select you for layoff or lay you off or otherwise discriminate against you because of your activities on behalf of the above-named or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of rights guaranteed you under Section 7 of the Act. WE WILL offer Earl Greenwell immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of earnings or other benefits suffered by reason of the discrimi- nation against him with interest. WE WILL remove from our files any reference to his unlawful layoff and WE WILL notify him that this has been done and that this layoff will not be used against him in any way. KUDZU PRODUCTIONS, INC. Mary L. Bulls, Esq., for the General Counsel. John Wilmer and Scott Leeds Esgs. (Bell, Richardson & Sparkman), of Huntsville, Alabama, for the Respond- ent. Bernard M. Mamet Esq., of Chicago, Illinois, for the Union. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This case was tried at Huntsville, Alabama, on August 30-31, 1988. The charge was filed by Local 780, Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (the Union), on August 11, 1987,1 and the ' All dates are in 1987 unless otherwise stated. 295 NLRB No. 14 KUDZU PRODUCTIONS complaint was issued on June 6, 1988 . The primary issues are whether Kudzu Productions , Inc. the Respondent or the Company), violated Section 8(a)(3) and ( 1) of the National Labor Relations Act (the Act) by laying off its employee, Earl Greenwell, on July 26 allegedly because of his activities on behalf of the Union, and independent- ly violated Section 8(a)(1) of the Act by threatening em- ployees with discharge if they joined or engaged in ac- tivities on behalf of the Union. On the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel, Respondent, and the Union, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is an Alabama corporation with an office and place of business located in Huntsville, Alabama, where it is engaged in film and camera production work. During the calendar year preceding issuance of the com- plaint, Respondent provided services valued in excess of $50,000 to the National Aeronautical and Space Adminis- tration (NASA) which in turn during the same period purchased and received in Huntsville goods valued in excess of $50,000 directly from customers located outside the State of Alabama. The complaint alleges, Respondent admits, and I find that on the foregoing facts Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, Respondent at the hearing admitted , and I also find, that the Union is a labor orga- nization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Business Respondent began providing photographic services to NASA beginning in 1982 pursuant to a contract and in doing so utilized three employees at a NASA laboratory facility. These three employees, Clay Buie, David Draper, and Earl Greenwell, the alleged discriminatee herein, were hired by Respondent in 1982 specifically to service the NASA contract which involved essentially the printing and processing of motion picture films2 using standard equipment normally associated with such work. The three employees used for this work had back- grounds and substantial experience in such work. Re- spondent through its president, Charles Burruss, had spe- cifically sought out Greenwell to perform this work and had presented Greenwell's credentials to NASA to strengthen Respondent's claim to qualifications and abili- ty to perform under the contract . Moreover, Respondent appointed Greenwell as leadman following his employ- ment by Respondent in November 1982. Greenwell, Buie, and Draper worked in close association with NASA personnel and appear to have had little direct su- pervision by other personnel of Respondent who visited the laboratory only infrequently. 2 Respondent also maintained an office and facility in downtown Huntsville where it did other film and video production work. 83 In the fall of 1986 Respondent was awarded a new contract by NASA which expanded the scope of the work previously covered . Thus, the new contract in ad- dition to motion picture work called for color and black and white still photography , printing, and processing. It further specified the classifications of employees needed to perform the work, i .e., manager/photographer, lead technician/photographer, technician photographer/ "A" (Underwater/Laboratory and Laboratory), technician photographer "B" (Laboratory), technician photographer "C" (Laboratory), and Clerk/Photographer assistant. Job descriptions for the positions were provided by NASA also. Having obtained the new contract Respondent was obliged to hire several new people including a manager, Willis O. Smith. Greenwell became the lead technician under the new contract and Buie and Draper were classi- fied as "A" technicians. Color and black and white still photography processing was emphasized under the new agreement and this, in addition to other factors, pro- duced a decline in motion picture processing work. By the beginning of June, however, Respondent employed a total of seven "A" technicians including Greenwell, three "B" technicians, one "C" technician, and one clerk. B. The Union Activity The three old employees including Greenwell received wage increases under the new contract. However, Greenwell was dissatisfied with his raise because, he tes- tified, Burruss had earlier told him he would get a sub- stantial raise under the new contract. Moreover, he found the other two employees had received a substan- tially greater raise than he had . When he complained to Burruss, Burruss explained that "that " was all he had to work with. Greenwell suggested a wage determination by NASA might be in order and Burruss replied that if he did not like it he could quit. Greenwell also voiced complaints to Landon McCrary, Respondent's vice president, about the lack of employee fringe benefits. McCrary promised to look into the matter but, according to Greenwell , he never there- after made any report to Greenwell. As a result of his dissatisfaction Greenwell telephonically contacted Andrew J. Younger, business manager of the Union, in November 1986, and Younger on November 26 mailed Greenwell 30 blank union authorization cards. These cards were circulated by Greenwell and Draper and a sufficient number of executed cards were obtained to support a petition for an election filed with the Board. Greenwell's testimony that he got union cards signed is supported by Draper and is credited . His further testimo- ny that he talked in favor of the Union to many of the employees is likewise credited, although several employ- ees presented by Respondent herein testified they viewed Draper as the "organizer." Moreover, other testimony of Respondent's employee witnesses reveals that Bill Gorgus, a technician "A" color printer, was a more out- spoken union supporter among employees who clearly revealed his union sympathies to management in re- sponses to Burruss in meetings between Burruss and em- 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees called to relate management 's position in opposi- tion to the Union. Greenwell testified that on one occasion during the campaign, in November or December 1986, Manager Smith called Greenwell into his office and asked him what he thought about the Union . Greenwell replied that with a company like Respondent "you have to have a union." Smith told him he could not organize on compa- ny time, a warning that Smith repeated to both Green- well and Draper at a subsequent time after Smith had had a meeting with Respondent 's counsel.3 The union campaign culminated in an election in Feb- ruary 1987, which was, won by the Union. The Union was certified and bargaining between the parties began on March 25. C. References to Greenwell in Negotiations Respondent was represented at the first negotiating session on March 25 by Respondent's attorney, Wilmer, McCrary, and Cindy Harrington, a paralegal employee in Wilmer's firm. The Union was represented by Young- er and Draper. During this session, according to the tes- timony of Younger, the Union disputed Respondent's ability to make economic concessions and disclosed some figures obtained by Greenwell and supplied to Younger showing the value of Respondent's contract with NASA. These figures, based on Greenwell's testimony which is uncontradicted in this regard and credited, had been ob- tained by Greenwell from a posting of NASA contrac- tors and contract amounts on a NASA chalkboard.4 Younger testified that McCrary inquired of Younger where he had obtained the figures, and Younger identi- fied Greenwell as the source. McCrary, according to Younger, responded that he would have "his [Green- well's] ass" if those figures got out. On cross-examination Younger was less certain whether McCrary said "his" or "their ass." McCrary in testimony for Respondent testi- fied he could not recall any dispute arising at the meet- ing concerning figures obtained by Greenwell and denied that any threats were issued at the meeting . Further, he related that if anybody said anything at the meeting about having somebody's "ass" he didn't hear it. Younger's testimony on this point impressed me general- ly more positive than McCrary's which was couched largely in terms of an absent recall . Moreover, the re- sponse Younger attributed to McCrary is totally in keep- ing with a concern over the release of confidential infor- mation which McCrary himself claimed he expressed to Draper in August as discussed below. I therefore credit Younger over McCrary. Younger also testified that Greenwell's name came up again in a subsequent negotiating session. Draper largely supported Younger's testimony on this bargaining session 8 Smith denied questioning Greenwell about his union sympathies and also denied being aware of Greenwell 's union inclinations He admitted talking to Greenwell and Draper , however, and advising them that union solicitation could not take place on working time. 4 According to Greenwell, the posting was in a secretary 's office ac- cessible to people walking in from the street No contention was made herein that Greenwell obtained the figures illegally. and placed the date of it on June 11.5 Younger accused Respondent of having an intent to engage in surface bar- gaining and related as basis for that accusation reports to Younger that Manager Smith had been heard relating to a NASA official that Respondent would negotiate for a year, demoralize the employees, refuse to sign a contract with the Union, and call for a new election. Burruss inquired of Younger who told him, but Younger declined to identify the source , although in fact it was based upon matters related to him by Greenwell.6 Burruss according to Younger, remarked that it was Greenwell and proceeded to telephone Smith in the pres- ence of the others . Burruss, still according to Younger, told Smith what had been attributed to him, further told him to keep his mouth shut and said he would talk to him later. That Smith quickly recognized Greenwell as the source of Younger's accusation is established by Green- well's uncontroverted testimony that Smith , following Burruss' phone call, summoned Greenwell to his office, related that Burruss had called him and chewed him for remarks attributed to Smith , and questioned Greenwell whether he had talked to Younger . Smith's testimony confirms Greenwell's in this respect but goes further. Thus, Smith testified that he verified with Greenwell that Smith had only stated that both sides had to reach agreement during negotiations, that bargaining had to be in good faith , and that a contract would have to be signed by both sides before an agreement could be effec- tive. Subsequent negotiations took place and Greenwell's name again came up in the negotiations . However, the subsequent references to Greenwell came in the discus- sion regarding his layoff which will be set detailed below. D. The Alleged Unlawful Threats The complaint alleges two independent violations of Section 8(a)(1) of the Act, both attributed to McCrary, one about April 1, and the other August 7. These allega- tions attribute to McCrary threats to employees of dis- charge for union activities and are based on the testimo- ny of Greenwell and Draper. Greenwell testified that he was absent from work for 8 weeks beginning in early March due to back surgery. During the period of his recuperation in the first part of April, McCrary visited Greenwell at his home having brought him either papers or motion picture film for 5 This meeting was attended by the same individuals as the March meeting except that Burruss replaced McCrary. 6 Greenwell's testimony establishes that he did in fact overhear certain remarks by Smith in this regard but examination of such remarks reveals that they were completely legal and far short of confirming the accusa- tion of Younger. In addition, no violations of the Act were alleged based on remarks attributed to Smith , and the evidence supports no findings of independent violations of the Act by him. Moreover, although the parties never reached terms on a collective-bargaining agreement notwithstand- ing negotiating through February 1988, after which a decertification peti- tion was filed, there is no contention herein that Respondent in any re- spect refused to bargain in good faith in violation of Sec . 8(aX5) and (1) of the Act. KUDZU PRODUCTIONS 85 conformation work.? During the course of the visit they discussed the union negotiations, and McCrary, accord- ing to Greenwell, stated that if Respondent lost the [NASA] contract over the Union he was going to hold a grudge against those responsible and was going to use all his resources to get even. Greenwell further testified that he told McCrary that he should not take it personally, that it was "just business," to which McCrary replied, "Yeah, business." It was Draper's testimony that in early August a meet- ing with employees was conducted by Burruss to inform them of the status of negotiations with the Union. Fol- lowing the meeting McCrary called Draper into a hall- way and told him that if Respondent lost the NASA contract because of the Union they would use everything they had to get even with whoever was responsible. Draper replied that he was poor man with nothing to lose and if McCrary wanted to use all his resources to get even to go ahead. While McCrary acknowledged his visit with Green- well, he placed it in March. He admitted that union ne- gotiations were discussed but was unsure how the sub- ject came up. He admitted only that he expressed con- cern over the ability of Respondent to pay union wage demands. But he denied that anything was said about getting even with anybody. Moreover, he denied know- ing who was "working for the Union " because based on his recollection they had not gotten into negotiations at that -time. With respect to Draper's testimony McCrary admitted meeting with Draper on August 7 or 8 after a meeting with employees . However, McCrary's version of his remarks to Draper was that he told Draper financial information had been released in the meeting which Re- spondent did not want to get out to competitors and added that if it did get out Respondent would be forced to seek legal recourse against the Union , Draper, or whoever. Asked at the hearing herein if he stated that if the Union caused the Company to lose a contract they would get even, McCrary said he could not recall making such a statement. Asked further if he ever made any statement like that he replied that he had not to his knowledge. Weighing the testimony of Greenwell and Draper on the one hand against that of McCrary on the other I credit the former. Both appeared to be candid witnesses with clear recall . McCrary's references to an absent recall demonstrated either a poor memory or a reluc- tance to respond emphatically to questions. In either event, his credibility was seriously undermined. More- over, the testimony of Greenwell and Draper is mutually supportive, since they attribute to McCrary the same vindictive response to a perceived threat to Respondent's business as a result to employee representation by the Union. I conclude McCrary made the remarks attributed to him. I further conclude that such remarks constituted coercive threats in violation of Section 8(a)(1) of the Act as alleged for they were made in the context of a per- 7 Greenwell and his wife maintained equipment and a facility at their home for motion picture conforming work and performed such work from time to time for Kudzu as well as other businesses on a per job basis. Greenwell explained that during the time of McCrary 's visit Green- well's wife was doing some conforming work for Kudzu. ceived threat to Respondent resulting from lawful union negotiations, and implicitly included with the Union as targets for retaliation employee supporters of the Union. It is abundantly clear from Draper's response to McCrary that Draper viewed the threat as directed to him. Cf. Transportation Management Corp., 256 NLRB 101, 107 (1981), enf. denied on other grounds sub nom. NLRB v. Transportation Management Corp., 674 F.2d 130 (1st Cir. 1982), rev. 462 U.S. 393 (1983). E. The Alleged Discriminatory Layoff of Greenwell 1. The material facts In June, Greenwell remained the lead technician per- forming motion picture printing work , equipment mainte- nance, and supply functions. However, it is largely un- disputed, and I accept as established, that employee Bill Gorgus, an "A technician" who performed primarily color still print work, was considered the primary color printer having particular skills and experience in such work. In addition, most of the lesser skilled or experi- enced color still printers as well as Manager Smith con- sidered Gorgus the authority on color print work and approached him for advice on such work . Greenwell, the evidence shows, although highly skilled in motion pic- ture work, had no significant training or experience in still color print work and did color printing only on a sporadic and very infrequent basis, his time being filled with other duties . Nevertheless, as lead technician Greenwell received a higher rate of pay than any other unit employee. It is undisputed that on June 26 NASA pursuant to op- tions and rights under its contract with Respondent di- rected Respondent to layoff two "Photographer A" technicians effective August 1. Respondent through its attorney, Wilmer, advised Younger telephonically on July 9 of the NASA directive . Wilmer also told Younger that a female employee had resigned so that only one ad- ditional employee would have to be laid off and that Re- spondent had decided to lay off Greenwell. Younger protested saying that Greenwell was the Union's organiz- er, that he was the oldest employee, and that he was the lead technician. Wilmer expressed surprise that Green- well was the organizer and stated that the bulk of Re- spondent's work at that time was color still print proc- essing and that Greenwell could not do that work. Younger insisted that Greenwell could do the work and said he would verify it with Greenwell. Wilmer asked for any other suggestions regarding the layoff selection. Younger replied that the junior people should be laid off first, but Wilmer countered that was not acceptable to Respondent. Following contact with Greenwell in which Green- well verified that he was capable of performing color still print work, Younger called Wilmer on July 10 and so advised Wilmer. Wilmer disagreed saying that as far as Respondent was concerned Greenwell could not do the work. Nevertheless, Younger secured Wilmer's ac- quiescence in announcing any decision on the layoff se- lection until July 17 when the parties had another bar- 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaining session scheduled at which time they could dis- cuss the layoff further. The July 17 meeting took place as scheduled and was attended by the same individuals as the June meeting with the addition of the Union's . attorney, Bernard Mamet. Greenwell's selection for layoff was discussed with the Union maintaining that he was capable of per- forming color still print processing, while Respondent contended he could not and in fact had not done such work in the past . Respondent maintained that it was nec- essary to retain all its other employees because of par- ticular skills they possessed and which were required under the NASA contract. The parties discussed a chart drawn by Draper showing the various skills of each em- ployee and showing that Greenwell could do the neces- sary color print work. The chart further reflected that Greenwell possessed every skill required in Respondent's work except for, diving and underwater photography, skills possessed by only two other employees, Buie and Danny Reeves. Buie, however, was not skilled in color print processing, and he did not have copy camera skills. Reeves; 'on the other hand had no motion picture skills. Draper possessed the same skills as Greenwell. Of the three other "A technicians" employed at that time, Rick Trussell had no color print experience, according to Draper's chart, and the others, Bill Gorgus and Shannon Powers, had no copy camera experience . Of the three "B technicians" at the time, Jackie Gill, Kelley Steed, and Lang, only Gill had significant color print processing ex- perience . The one "C technician," Becky Grigsby, had no color print abilities , according to Draper's chart. Notwithstanding extended discussion regarding Drap- er's chart and Greenwell's abilities Wilmer and Burruss persisted in the position that Greenwell could not per- form color print work, while Mamet insisted that Re- spondent check out Greenwell 's skills in that area. Re- spondent continued to maintain that Greenwell was the logical choice for layoff because of his inability to do color print processing which had replaced motion pic- ture processing in providing Respondent with the great- est volume of work. Respondent officially effectuated the layoff by letter from Burruss to Greenwell dated July 31 in which it de- scribed the layoff as temporary and promised to give Greenwell the opportunity to return to work for Re- spondent if the eliminated "slots" were restored by NASA. Greenwell had previously been advised of the contemplated layoff by Younger , and had received word of the final layoff decision prior to July 31 . On July 26 he met with Burruss and McCrary regarding the layoff, and Greenwell at that time protested that it was unfair since he was the oldest employee, was the most skilled, and was the only one who could operate the optical spe- cial effects printer . Greenwell raised the subject of color still printing, but Burruss said that had nothing to do with it, that the layoff was strictly a.business decision, a point confirmed by McCrary with, according to Green- well's testimony, a chuckle. Thereafter, Greenwell re- turned to the lab where he discussed the matter with Smith asking Smith if Smith was "out to get him." Smith denied that he was . However, Smith, according to Greenwell's testimony, confirmed that someone else was out to get Greenwell although he failed to identify who and cautioned Greenwell not to repeat his remarks. Greenwell's layoff was again the subject of discussion at another bargaining session between the parties on August 5 . In that session Younger pointed out that Greenwell, after the July meeting and prior to his layoff, had done color print processing. Burruss responded that Greenwell had probably done such work at Younger's direction, and 10 Younger conceded as much .8 In spite of Younger's contention that Greenwell 's having done the work proved his ability to do it, Wilmer replied that Greenwell's layoff was a business decision, and Respond- ent was no longer going to discuss it. On August 7 Respondent announced to employees that Gorgus was appointed lead technician effective August 3 "because of his demonstrated abilities to produce and to assist other employees with the production of color still prints." On the same day, in a memorandum to Smith, Burruss stated because of the elimination of two "A technician" slots he felt it important to utilize the re- maining personnel as efficiently as possible. Further, and in view of the decrease . in motion picture work require- ments, he directed Smith to immediately utilize all "A technicians" in the production of color prints regardless of their primary work assignments . The memo listed the five "A technicians" and directed that : "If any of these people are not presently capable of producing quality color printing you and Bill Gorgus should immediately develop an effective and workable cross training plan to bring them up to production level as soon as possible." Respondent admitted herein that Greenwell 's layoff se- lection was not based in any respect upon the quality or quantity of his past work . Indeed, Smith prepared a job reference for Greenwell dated July 29 in which he highly recommended Greenwell and stated: Earl Greenwell has performed in an exemplary manner as Lead Technician while working at the Photographic Branch of Marshall Space Flight Center. He has been an asset in Motion Picture, Op- erating and Maintaining Still Photo Processing Ma- chines, and keeping all Supply needs well attended. Respondent at various times subsequent to the layoff of Greenwell hired a total of six new employees based on the testimony of Draper which was uncontradicted in this regard. Of these two were "C" technicians while one was an "A." The other three new hires were hired at the direction of NASA to employ instrumentation (high speed camera) photographers. While Smith testified that Greenwell was contacted regarding the instrumenta- tion photography work and allowed to apply for such work his experience and qualifications for the work were deemed to be inferior to those actually hired.9 8 It appears that production work orders could be picked up and per- formed by any employee consistent with their ability and available time without specific assignment by the lab manager. s Ironically, at the time of the hearing Greenwell was employed by the Federal Government as an instrumentation photographer KUDZU PRODUCTIONS 2. Arguments of the parties Briefly stated , it is the position of the General Counsel and the Union that while the decision for a layoff was directed by NASA and was therefore not discriminatory, Respondent's selection of Greenwell for layoff was pre- textual and that the real reason for the selection was Greenwell's union activity and support . Contrary to Re- spondent's position herein that it was unaware of Green- well's union inclinations they point to the revelations at the bargaining sessions as well as other factors which in- dicated to Respondent Greenwell's union activity and support. They further contend that Respondent 's union animus was reflected by McCrary's threats as found above. Finally, as evidence of pretext they point to, inter alia, Greenwell's status as the senior employee, his pos- session of great skill in motion picture work and the transferability of such skills to color still processing work with little or no training even assuming Greenwell had not done prior color print work, Greenwell's unblem- ished work record, and the established fact that he had demonstrated that he could in fact perform color pro- duction work. Respondent, on the other hand, argues that it was un- aware of Greenwell's union sympathies at the time it ini- tially selected him for layoff. Other individuals like Gorgus and Draper were more likely targets for discrim- ination if Respondent had been inclined to unlawful dis- crimination, the argument goes. Respondent points out that, on the contrary, Gorgus had been promoted. Fur- ther, Respondent contends that its selection of Greenwell was in logical keeping with its effort to retain the widest range of skills possible to perform its NASA contractual obligations recognizing the diminished requirements for motion picture work and the increasing requirements for color still print processing . Finally, as evidence of the absence of unlawful discrimination, Respondent claims that offers were made through Wilmer to retain Green- well as a "C" technician and train him for color still print processing. The Union's refusal of the offer is ap- parently the basis for Respondent 's failure to recall Greenwell for a subsequent "C" technician opening. Its failure to recall or employ him for the instrumentation photography positions was claimed by Respondent to be due to his lack of qualifications for such work. Conclusions Analysis of this case starts with the application of those principles enunciated by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cit. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Wright Line points out that it is at first incumbent upon the General Counsel to establish a prima facie case that the action taken against the employee involved was based upon proscribed considerations . Once such a prima facie case is shown the burden shifts to the respondent to demonstrate that it would have taken the same action against the employee even absent his protected activities. The establishment of a prima facie case in the case sub judices requires proof of respondent's knowledge of the union sympathies or support of Greenwell, respondent's 87 animus toward the union supportive of a finding of un- lawful discrimination, and the invalidity of, or pretextual nature of, the grounds asserted by respondent for the layoff selection. I conclude on the credited evidence that the General Counsel has satisfied her burden here of es- tablishing a prima facie case that Greenwell's layoff se- lection was premised upon his protected union activities. Although the evidence will not support a conclusion that Respondent was specifically aware that Greenwell was the employee who initially contacted the Union' ° and began the union movement the record evidence pro- vides an ample basis for concluding, and I so conclude, that Respondent at the time of Greenwell's layoff selec- tion was well aware of his union sympathies and support. Thus, at the March 25 negotiating session Greenwell was identified to Respondent as having supplied financial in- formation to the Union which credited evidence shows McCrary deemed sufficiently critical to evoke a vehe- men response. Greenwell was also identified at the June 11 meeting by Respondent as the source of other infor- mation provided the Union, and Greenwell was, as a result, immediately confronted by Smith regarding the accuracy of the information. But Respondent was aware of Greenwell's union inclinations even during the course of the union campaign . Greenwell's testimony, which was not specifically contradicted in this regard and which I in any event credit in light of Greenwell's straightforward and candid manner in testifying, that he once revealed his union sympathies in response to Smith's question whether a union was needed at Re- spondent's business. Moreover, that Smith regarded Greenwell as a union supporter was demonstrated by Smith's calling Greenwell and Draper into his office where both were advised of their rights on union solici- tation on Respondent's premises. Respondent seeks to' ex- plain Smith's delineation of solicitation rights to Green- well on the premise that it initially viewed Greenwell as a supervisor. While that might justify advising him of so- licitation rights the fact that he was advised of such rights in the presence of, and together with, Draper who Respondent admittedly viewed as a union organizer war- rants the inference that Smith viewed both as union or- ganizers. Respondent's union animus is' clearly demonstrated by McCrary's threat to retaliate to the previewed threat of loss of the NASA contract flowing from union economic demands. Particular resentment against Greenwell for re- vealing to the Union financial data considered confiden- tial by Respondent was also revealed by McCrary. That resentment was increased by Greenwell's disclosure to the Union, within a month of his layoff selection, state- ments relied upon by the Union to make accusations against Respondent which Burruss particularly resented. Smith too was obviously disturbed when he called 10 Respondent's total work force was less than 10 employees, a fact which might justify application of the small -plant principle to infer knowledge of Greenwell's union involvement (see Permanent Label Corp., 248 NLRB 118 (1980); Wiese Plow Welding Co., 123 NLRB 616 (1959)). Such an argument has not been advanced here . In view of this and in light of direct evidence of Respondent 's knowledge of Greenwell 's union sympathies I find it unnecessary to consider the "small plant " basis for inferring knowledge here. 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Greenwell in as a result of the Union 's accusations. Re- spondent's conduct and statements in the incidents supply the basis for motivation to retaliate against Green- well in particular for his protected activities. The circumstances of Greenwell 's layoff selection must be examined in the context of Respondent 's knowl- edge of his union support and its dissatisfaction with such support. A particularly significant factor demon- strating discrimination in Greenwell 's layoff is Respond- ent's disregard of his longevity with Respondent. An em- ployer is not legally required to follow seniority in lay- offs absent a contractual commitment or in situations where seniority has not in the past been a basis for layoff selection . Pullman Power Products, 275 NLRB 765, 767 ,(1985). However, layoffs out of seniority may suggest discrimination because it disregards an experience factor normally associated with longevity on the job . It is the consistency with past practice which undercuts suspicion that a layoff out of seniority is discriminatory. Ibid. Here no past practice in layoff selection was shown, so there is nothing to substantiate Respondent's disregard of Green- well's seniority . Moreover, Greenwell's selection was contrary to assurances when he was initially hired that Respondent would seek to give him job security. Al- though Burruss disputed Greenwell's precise testimony that when hired in 1982 he was told by Burruss that he would be the last laid off, Burruss at least conceded that he told Greenwell that Respondent would take advan- tage of every possibility to utilize Greenwell's skills in whatever capacity possible if Respondent did not contin- ue under the NASA contract. Burruss' admitted commit- ment was totally disregarded in Greenwell 's layoff selec- tion. Also forgotten by Burruss were remarks attributed to him in uncontradicted testimony of Greenwell that in 1985 when Burruss used job security arguments to per- suade Greenwell against accepting a position with an- other employer. These prior remarks and commitments together with Greenwell 's status as Respondent's oldest employee in terms of length of employment plainly point to discrimination in Greenwell's layoff. Other clear evidence of discrimination against Green- well is found in Respondent's disregard of Greenwell's 20-year experience in the film industry as well as his ex- emplary work record with Respondent . It is true, of course, that Greenwell had only limited experience with color print processing work. I am not so naive as to be- lieve on this record that Greenwell was a highly compe- tent production color printer. No such claim was made by the General Counsel, the Union, or Greenwell him- self. Obviously, competence, speed, and proficiency, as in most work, increases with experience . Nevertheless, Greenwell's years of experience and achieved expertise in color motion picture printing constituted work in a re- lated field, which if not wholly transferable or inter- changeable with color still print processing skills would at least give Greenwell an "edge" over novice color printers in the "B" and "C" technician classifications re- tained by Respondent. Indeed , Gorgus, called as a wit- ness by Respondent and who was no longer employed by Respondent at the time of the hearing, testified that color printing could be learned "on the job," and the ability of a person to change from motion picture proc- essing to color printing would depend on aptitude and ability to perceive color. The equipment used in color printing could be learned in several minutes , according to Gorgus. Moreover, Gorgus testified that although he had seen Greenwell do some color print work which was not of a high quality he conceded that it was Green- well's work on personal pictures and not production work for Respondent. The one production color print job which Gorgus observed Greenwell do , a safety chart, Gorgus testified was of acceptable quality. Gorgus' testimony regarding color printing skills was supportive of that of Younger, who further testified that "timing" in motion picture processing, a skill possessed by Greenwell, was considered the highest skill obtainable in the trade. "Timing," according to Younger 's testimo- ny which impressed me as credible , involved correction of the film in color, and that this was a skill transferable to color print processing. Working with color, whether motion picture or still printing, and regardless of how changes in the color are achieved in either process, would logically seem to sharpen that perception of color which Gorgus' testimony shows was the primary factor in competent color still printing production. Other evidence of discrimination in Greenwell 's layoff selection is found in Respondent's unwillingness to test Greenwell's color printing ability. Respondent relied in- stead on the general statement of Smith that in Novem- ber, 1986, he had told all the motion picture processors including Greenwell to sharpen up their color print skills in view of the anticipated increase in such work and that Greenwell had shown no interest in doing so . However, there was no showing that Smith ever suggested that jobs would depend upon sharpening such skills, that he ever followed up on his initial direction on this matter, that he ever repeated his instructions at any other time prior to the layoff, or that prior to the layoff work was so slack as to allow Greenwell to ignore his other as- signed and normal duties to allow him to enlarge upon his color print skills. Respondent's unwillingness to test Greenwell's color print ability, particularly in light of the claim of Green- well and the Union that Greenwell could perform color print work, further shows a very determined and stead- fast desire to get rid of Greenwell and thus points out Respondent's ulterior motivation. Noteworthy is the fact that it was only after Greenwell's layoff that Respondent sought to verify its position that Greenwell could not do color printing by McCrary's examination of color print job orders signed by Respondent 's employees showing that out of 6000 orders Greenwell had only done the work on 2. Obviously this fails to establish Greenwell's inability to color print. Similarly demonstrative of Respondent 's ulterior moti- vation is its failure to check the color print skills of those employees not laid off. Thus, Burruss' August 7 memo constitutes clear recognition that other employees did not have well-developed or "production" color printing capabilities. Yet those individuals were only then re- quired to develop their skills in this regard . Greenwell's alleged lack of such skills as a basis for layoff selection under these circumstances establishes disparate treatment. KUDZU PRODUCTIONS Also to be noted in assessing Respondent's layoff se- lection is the fact that Respondent failed to follow NASA's instruction to lay off two "A" technicians. It disregarded those instructions by laying off the lead technician and accepting the resignation of a lower rated employee. Even considering that Respondent's layoff of Greenwell and promoting Gorgus to lead position did reduce the "A" technicians by one it still did not elimi- nate the other "A" slot directed by NASA. Instead, Re- spondent absorbed whatever extra cost was involved in not laying off the second "A" technician thereby disput- ing any contention of economic concerns in its manipula- tions to effectuate Greenwell's layoff. Even Burruss' testimony was contradictory regarding the economic basis of Greenwell's selection at first testi- fying that money was not a concern in the layoff of Greenwell but later testifying that he could not keep Greenwell "from an economic standpoint." Likewise contradictory was Smith's testimony to the effect that he selected Greenwell for layoff because he had heard com- plaints from NASA personnel about Greenwell being leadman and his subsequent testimony that that was not the reason. t t Further inconsistency in Respondent's posi- tion is shown in the statements attributed to both Wilmer and Burruss by Mamet, Younger, and Greenwell. Thus, by Greenwell's testimony, uncontradicted in this regard, Burruss on July 26 told Greenwell that the layoff was not related to his color print ability and that Greenwell's layoff was simply a business decision . Wilmer made the comment at the August 5 meeting in refusing to discuss Greenwell's layoff further that the issue was no longer Greenwell's color print ability and that the layoff was a business decision. Still more evidence of Respondent 's unreasonable and disparate treatment of Greenwell is found in its failure to recall him following the layoff in complete disregard of its commitment at the time of layoff to recall him if the "A" slots were restored. Obviously "A" slots became vacant as shown by the promotion of both Gill and Powers to such positions after Greenwell 's layoff. Green- well was not recalled. And even assuming those hired for the three instrumentation photographer positions pos- sess greater qualifications for the positions than Green- well, Draper's undisputed testimony shows other new employees were hired instead of recalling Greenwell, one at least in the "A" classification. In its defense Respondent relies heavily on the claim that it offered the Union a demotion of Greenwell to the "C" classification in lieu of a layoff to establish the ab- sence of any intent to unlawfully rid itself of Greenwell. Wilmer, his paralegal Cindy Harrington, and Burruss all related that such an offer was made to the Union at the July 17 meeting, and Wilmer further testified he made such an offer to Younger in the July 9 telephone conver- sation. Younger denied that any such offers were made. It is clear that no such offer was ever communicated to Greenwell. Considering the contradictory testimony in i i Close examination of Smith's testimony regarding the NASA "com- plaints" reveals no specific complaint regarding Greenwell's job perform- ance. Rather, NASA only questioned the appropriateness of a motion picture processor as leadman when most of the work involved color printing. 89 light of the record as a whole, I believe that Wilmer did in fact make reference to demoting Greenwell to a "C" position instead of laying him off both in his July 9 tele- phone conversation with Younger and at the July 17 meeting. However, for a number of reasons I do not accept the testimony that a specific offer was made in this regard. First, Respondent never communicated such an offer to Greenwell, and Burruss, who according to Wilmer had the responsibility for communicating the offer to Greenwell strangely was never able to orally reach him and made no attempt to communicate with him by mail. Moreover, Burruss could have communicat- ed such an offer to Greenwell at the meeting with Greenwell on July 26 when he laid Greenwell off, but he did not do so. Wilmer's claim that it was not offered to Greenwell at that time because it was the subject of negotiations is unpersuasive and illogical , since Burruss' claimed efforts to contact Greenwell regarding the offer took place after, according to Wilmer's further claim, the offer 'had already been rejected by Younger on July 9. Secondly, Respondent never explained on this record how it could have retained Greenwell as a "C" techni- cian and still meet NASA's instructions to lay off two "A"s. Who would have been laid off instead of Green- well, and how would that have served to meet Respond- ent's production and flexibility requirements? One can only conclude that somebody else would have had to be laid off. Thus, a specific and concrete offer of a "C" po- sition to Greenwell could only confirm that there was at least one other employee on Respondent's work force whose services Respondent could do without easier than Greenwell's. Thirdly, Wilmer's bargaining notes do not refer to any discussion of a specific offer of a "C" position to Green- well. It is unlikely that he would have omitted such an offer from his notes if it had in fact been made. And Harrington's testimony that her notes do not reflect the offer to Greenwell because Younger directed that no notes be made of the discussion was not substantiated by Wilmer whose testimony differed from Harrington's in other respects. Accordingly, and considering the vague- ness generally regarding the negotiations I do not accept such testimony as establishing a specific offer. Finally, Respondent's failure to offer Greenwell recall to a "C" position instead of subsequently hiring a new employee in such position plainly points out that Re- spondent never specifically offered to the Union to put Greenwell in a "C" position. With a charge in this case pending from August 11 it is likely that Respondent would have recalled Greenwell to any available job and specifically to a "C" position if in fact it had once of- fered to the Union to retain him in such a position. After all, it has been observed that a lower paying job is better than no job at all. See Arlington Hotel Co., 273 NLRB 210, 215 (1984). Thus, a failure to recall Greenwell is in- consistent with any prior offer to retain him. According- ly, I credit Younger's testimony as being more consistent with the established facts and circumstances that no spe- cific offer was made to retain Greenwell in a "C" posi- tion. 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Even assuming that Respondent made an offer to retain Greenwell in a "C" position, Respondent could reasonably predict it would be rejected by the Union in light of Greenwell's skills, seniority and experience. The Union's rejection of such an offer would be even more predictable in view of Younger's disclosure initially to Wilmer, and before any alleged offer was made, that Greenwell was the Union's main organizer. Such an offer then could not have been made in good faith and fails to reveal any absence of discrimination in Respond- ent's layoff selection. In response to the defense that other union activists more prominent than Greenwell were retained it is suffi- cient to note that the Board has held that where dis- criminatory motive is otherwise established a violation of the Act is not disproved by evidence that similar dis- criminatory action was not taken against all union adher- ents. See Pullman Power Products, supra at 767 . In the in- stant case it is also to be noted that other union activists were not shown to have engendered the same ire that Respondent exhibited with respect to Greenwell's re- ports to the Union. The Board has stated that a judge's personal belief that the employer's stated reason for discharge was insuffi- cient to warrant the action taken is not a substitute for evidence that the employer would not have relied on this reason alone. Bronco Wine Co., 256 NLRB 53, 54 fn. 8 (1981). Put another way, in the absence of discrimination the Board may not substitute its judgment for that of the employer in selections for layoff. Spotlight Co., 192 NLRB 491 , 496 (1971). It has also said that suspicion of unlawful motivation is not enough , and evidence must permit a positive finding (which may be based on cir- cumstantial evidence) that union activity was a 'contribut- ing factor. Ravsel-ide, Inc., 284 NLRB 879, 880 (1987), quoting Briarwood Hilton, 222 NLRB 986,(1976). Consid- ering the credited evidence in this case and the record as a whole, I conclude that the General Counsel established a prima facie case that Greenwell's layoff selection was based upon union considerations in violation of Section 8(a)(3) and (1) of the Act. I conclude that the burden shifted to Respondent to demonstrate that Greenwell would have been selected for layoff even in the absence of his protected union activities, and finally I conclude on the evidence discussed above, and not on personal belief, that Respondent's asserted reasons for its selection of Greenwell are lacking in substance, are unconvincing and are pretextual . Consequently, I find Respondent failed to satisfy the burden shifted to it. Bridgeway Olds- mobile, 281 NLRB 1246 (1986). Accordingly, the 8(a)(3) and (1) violations with respect to Greenwell alleged in the complaint are found to be proved. CONCLUSIONS OF LAW 1. Respondent, Kudzu Productions, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Local 780, International Alliance of Theatrical Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatory laying off and refusing to recall Earl Greenwell because of his support of the Union, Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By coercively threatening employees with retalia- tion because of their support of the Union Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Respondent having discriminatory selected Earl Greenwell for layoff, it must offer him reinstatement and make him whole for any loss of earnings and other bene- fits, computed on as quarterly basis from the date of his layoff to the date of a proper offer of reinstatement less any interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).12 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edls ORDER The Respondent, Kudzu Productions, Inc., Huntsville, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Selecting employees for layoff or discharge or oth- erwise discriminating against them for supporting Local 780, International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada or any other labor organiza- tion. (b) Coercively threatening employees with retaliation because of their support of the above named or any other labor organization. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.' 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Earl Greenwell immediate and full reinstate- ment to his former job, or if that job no longer exists to a substantially equivalent position , without prejudice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of earnings Is Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. 13 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. KUDZU PRODUCTIONS 91 and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying all pay- roll records, social security payment records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its laboratory facility in Huntsville, Ala- bama, copies of the attached notice marked "Appen- dix."14 Copies of the Notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's duly authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."