Simmons Co.

National Labor Relations Board - Board Decisions

Aug 15, 1994

314 N.L.R.B. 717 (N.L.R.B. 1994)

717
314 NLRB No. 121
SIMMONS CO.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899
(1st Cir. 1989).
We find no prima facie case that Respondent unlawfully caused
Florin’s earnings to decrease. Although, as discussed below, animus
was established through the speech of the plant’s general manager,
Saliture on November 15, 1991, we conclude that the General Coun-
sel failed to establish that any action or actions on the part of the
Respondent caused the decline in Florin’s earnings between 1991
and 1992. Thus, there is insufficient evidence to support an inference
that the decline violated Sec. 8(a)(3).
3 Objections to the election were filed. In a decision issued May
28, 1993, the Board found that on April 23, 1991, the Respondent’s
then vice president, Saliture, made a speech to the employees in
which he conveyed to them ‘‘the futility of their choosing the Union
as their bargaining agent and the inevitable loss of jobs if they made
such a choice.’’ The Board concluded that the speech constituted ob-
jectionable conduct and set aside the election. Simmons Co., 30–RC–
5233 (not reported in bound volumes).
4 The other named plaintiff was a former Simmons employee.
Simmons Company and Midwest Regional Joint
Board, Amalgamated Clothing and Textile
Workers Union, AFL–CIO–CLC. Cases 30–
CA–11635 and 30–CA–11959–2
August 15, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On August 5, 1993, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Gen-
eral Counsel filed exceptions, and a brief in support,
and the Charging Party filed exceptions, adopting the
General Counsel’s brief. The Respondent filed cross-
exceptions and a brief in support, and a brief in answer
to the General Counsel’s and the Charging Party’s ex-
ceptions. The General Counsel filed a brief in answer
to the Respondent’s cross-exceptions and a brief in
reply to the Respondent’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions except as modified
and to adopt the recommended Order.
We agree with the judge that the Respondent did not
violate Section 8(a)(3) and (1) of the National Labor
Relations Act by: issuing warnings to employee Florin
on December 3, 1991, January 15, 1992, April 29,
1992, and March 12, 1993; laying off Florin in De-
cember 1992. We find, however, contrary to the judge,
that the General Counsel made a prima facie showing
that these actions violated Section 8(a)(3) but we also
find that this showing was successfully rebutted by the
Respondent.2
As more fully discussed in the judge’s decision, the
Union conducted an organizational drive in 1991. Em-
ployee Jennifer Florin served on the organizing com-
mittee. Certain aspects regarding the creation and man-
agement of the employee stock ownership plan (ESOP)
became issues in the Union’s campaign. The Union
lost the election held on April 25, 1991.3 On Novem-
ber 6, 1991, Florin became a named plaintiff in a class
action suit regarding the ESOP.4 On November 15,
1991, plant General Manager Saliture, a named defend-
ant in the suit, addressed the plant’s employees. In the
speech he linked Florin and the Union to the suit and
stated that the Respondent felt that the suit was an at-
tack on the Company, stated that the employees did
not have to participate in the suit, and launched a
verbal attack on the Union. On December 16, 1991,
the plaintiffs in the suit filed a motion for an order
prohibiting the defendants from engaging in unsuper-
vised communications with class members regarding
the suit. An affidavit, signed by Florin, was attached
to the motion. The motion was granted January 16,
1992. On March 31, 1993, the Court approved a settle-
ment of the suit.
Saliture’s November 15, 1991 speech is sufficient to
establish that the Respondent perceived the filing of
the lawsuit as union activity, and that it was aware of
Florin’s role in the lawsuit. The speech also estab-
lished that the Respondent had animus towards the
Union in general as well as specifically towards the fil-
ing of the lawsuit and towards Florin. The issuance of
the warnings to Florin and her December 1992 layoff
all occurred while the lawsuit was pending. Therefore,
the timing of these adverse actions against Florin and
Saliture’s November 15, 1991 speech support the infer-
ence that Florin’s role in the lawsuit was a motivating
factor in the decisions to issue the warnings and to ef-
fect the layoff.
The judge, however, implicitly credited supervisor
Waldhart’s explanations as to the reasons the first three
warnings were issued to Florin. He noted that Florin
did not dispute the assertions of her mistakes and mis-
conduct contained in those warnings. The judge found
that the Respondent had established that these warn-
ings were sufficiently similar to other warnings issued
both to Florin and to other employees to establish that
there was no disparate treatment in the issuance of
these warnings. We agree.
The March 12, 1993, warning was for an incident
that occurred on March 11. Florin had complained to
supervisor Waldhart that employee Walquist, who op-
erated the same machine as Florin on the second shift,
had changed Florin’s markings on the machine. In
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We also agree with the judge that the manner in which Florin
complained, in and of itself, would not have justified the warning,
as other employees have used similar language, which members of
management had heard, without being disciplined.
1 All rulings made at the hearing are affirmed. The record includes
a stipulation of oral testimony entered into by counsel. The stipula-
tion is in lieu of certain pages of the record which were inadvert-
ently and inexplicably lost; counsel averted substantial delay, incon-
venience, and expense by reaching this stipulation and I appreciate
their cooperation.
making the complaint, Florin spoke in a loud voice
and stated that she had been running the ‘‘fucking ma-
chine’’ for 4 years and that no one was going to
change it without consulting her. We agree with the
judge that the warning was the outgrowth of a series
of incidents between Florin and Walquist for which
Florin had already been warned. The judge found that
the warning was issued primarily for ‘‘backlashing’’
Walquist and secondarily for the manner in which she
communicated her complaint to Waldhart.5 We con-
clude that the Respondent’s evidence is sufficient to
rebut the General Counsel’s prima facie case as to this
warning, and shows that the warning would have been
given even without Florin’s protected activity.
Concerning the December 1992 layoff, the quilting
work was slow and Florin and another employee in the
department were doing ‘‘make work.’’ After deter-
mining that a layoff is necessary within a department,
the Respondent’s practice, which it followed here, is to
solicit employees for a voluntary layoff. If there are no
volunteers, all other things being equal, the least senior
employee, in this case Florin, is laid off. Florin de-
clined an offer of work, in lieu of layoff, on another
shift in the quilt department as a replacement for a
more senior employee who had volunteered for layoff.
Florin also declined an opportunity, again in lieu of
layoff, to bump a temporary employee from a less de-
sirable job. In these circumstances, we conclude that
the Respondent has rebutted the General Counsel’s
prima facie case that Florin’s layoff was discrimina-
torily motivated in violation of Section 8(a)(3) and (1).
Accordingly, we adopt the judge’s recommended
Order dismissing the complaint.
ORDER
The National Labor Relations Boards adopts the rec-
ommended Order of the administrative law judge and
the complaint is dismissed.
Paul Bosanac, Esq., for the General Counsel.
Townsell G. Marshall, Esq., and Charles W. Brown. Esq.
(Constangy, Brooks & Smith), for the Respondent.
Patrick Cronin, Director of Organizing, on behalf of the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Janesville, Wisconsin, on April 19 through
22, 1993, based on unfair labor practice charges filed on Jan-
uary 13 and December 24, 1992, as amended, by Midwest
Regional Joint Board, Amalgamated Clothing and Textile
Workers Union, AFL–CIO–CLC (the Union), and complaints
issued by the Regional Director for Region 30 of the Na-
tional Labor Relations Board (the Board), on June 30, 1992,
and March 11, 1993, as amended and consolidated. The con-
solidated complaint alleges that Simmons Company (Sim-
mons or Respondent) discriminated against its employee,
Jennifer Florin, by harassing her, by more closely scruti-
nizing her work, by issuing her warnings and reprimands,
and by laying her off because of her union or other protected
concerted activity, in violation of Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act). Respondent’s
timely filed answers deny the commission of any unfair labor
practices.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS
Preliminary Conclusions of Law
Respondent is a corporation with a plant and office located
in Janesville, Wisconsin, where it is engaged in the manufac-
ture and nonretail sale of mattresses and related items. In the
course and conduct of its business operations during the 12-
month period ending February 29, 1992, it purchased and re-
ceived goods and materials at its Janesville plant valued in
excess of $50,000 directly from points located outside the
State of Wisconsin. The complaint alleges, Respondent ad-
mits, and I find and conclude that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Janesville, Wisconsin plant is one of 15 Simmons
manufacturing facilities nationwide. At the time of this hear-
ing, there were about 111 employees working on 2 shifts.
They were not represented by any labor organization.
The general manager of the Janesville plant is Anthony
Saliture; Robert Bentley is the operations manager. James
Witt was the human resources director until June 1992; he
was replaced by Carmen Harstad. Charles Waldhart is the su-
pervisor over the quilt and receiving departments. Robert
Barton is senior vice president for human resources. These
individuals are all statutory supervisors. The alleged
discriminatee is Jennifer Florin, a first-shift quilt operator.
719SIMMONS CO.
2 Share value dropped to a low of 50 cents in January 1991 but
recovered to $1.42 in March of that year when Merrill Lynch Capital
Partners acquired a substantial stake in Simmons, at that price. That
acquisition reduced the shares held by the ESOP and the managers.
3 Information concerning these financial machinations is drawn
from uncontradicted and undisputed documents in the record, includ-
ing a Business Week magazine article distributed to the employees
by Saliture, a Janesville area newspaper article which had been post-
ed by the Employer, and pleadings from the ESOP lawsuit, dis-
cussed infra.
B. Union Activity
The Union commenced an organizational drive in early
1991, the only such activity faced by Respondent in at least
5 years. Among the employees active in that campaign was
Jennifer Florin. She served on the Union’s in-plant orga-
nizing committee, signed flyers and other literature, distrib-
uted union literature outside the plant, wore union buttons or
insignia, and posted a union sticker near her machine. Her
supervisor, Waldhart, observed the sticker and instructed her
to take it down. Barton acknowledged that he knew which
employees were on the Union’s organizing committee.
A representation petition (Case 30–RC–5233) was filed on
February 26, 1991. The Union failed to secure a majority of
votes in the election which was conducted on April 25, 1991.
Objections to the conduct of that election were filed by both
parties and a hearing was held in September 1991, at which
Florin testified on behalf of the Union. The hearing officer
recommended that one union-filed objection be sustained and
others dismissed. His report was pending before the Board
at the time of this hearing.
C. ESOP Activity
In 1986, a group of Simmons managers (including Saliture
and Barton) and Wesray Capitol Corporation, a leveraged
buyout ‘‘boutique’’ headed by former Secretary of the Treas-
ury William E. Simon, purchased Simmons from Wickes
Corp. for $120 million. In 1989, they created an employee
stock ownership plan (ESOP), with at least some of them re-
maining as the administrators of that plan, and sold about 11
million shares of Simmons to the ESOP for $241 million
($20 per share). At the time of the sale, that stock was inde-
pendently appraised at $4.10 per share.2 The purchase was
entirely financed with debt; neither the employees nor their
retirement plans were required to contribute. However, as the
ESOP was intended to be the basis for the retirement plans
in the future, Simmons ceased to make further contributions
to those plans.3
The ESOP became a significant issue in the union cam-
paign. In flyers and bulletins, as well as at meetings, the
Union and its organizing committee, including Florin,
charged that that the employees had been denied any role in
the ESOP decision, that that deal burdened the Company
with debt, weakening it, and had severely disadvantaged the
employees by depriving them of employer contributions to
their pension plan.
As a member of the Union’s organizing committee, Florin
signed and distributed flyers asserting the concerns about the
ESOP. Along with others, she also signed a letter to the
plan’s administrators requesting information about the plan;
the return address on that letter was the Janesville Labor
Temple. The Employer (not the ESOP administrators) re-
sponded, insisting that any such request be made by indi-
vidual participants or beneficiaries. At one point, Florin wore
a union-sponsored shirt which listed the managers involved
in the ESOP and their alleged profits. Saliture saw her and
commented that the amounts were wrong.
On November 6, 1991, Florin became a named plaintiff in
a class action suit against the ESOP administrators and other
Simmons managers and officers who had sold stock to the
plan, including Saliture and Barton, Wesray Capital, and
Simon. She did so at the suggestion of the Union’s attorneys.
The complaint (Civil Action No. 91C-0948-S) was filed in
the United States District Court for the Western District of
Wisconsin. It was brought on behalf of the named plaintiffs
(Florin and Alan L. Mundt, a retired Simmons employee)
and ‘‘all others similarly situated.’’ The complaint defined
the class as all those, other than the defendants, who were
beneficiaries or participants in the Simmons ESOP. It alleged
that the defendants, including Barton as both a plan adminis-
trator and seller of stock and Saliture as a seller of stock,
breached their fiduciary duties, engaged in conflicts of inter-
est, excluded the plan’s employee beneficiaries from partici-
pating in the decisions respecting the acquisition of the stock,
and violated the Employee Retirement Income Security Act
[ERISA], 29 U.S.C. § 1001 et seq., in various respects. It
sought return of all profits made by the defendants to the
plaintiffs and other class members.
On November 15, 1991, Saliture addressed the Janesville
employees on the subject of the ESOP lawsuit. In that talk,
he referred to Florin as one of those who had filed the suit
and pointed out that while Simmons Company was not
named as a defendant, it was contractually obligated to pay
the costs of defending the suit for the ESOP trustee and
those of its managers named as defendants. He went on:
I’m sure you can understand why Simmons Company
feels that this lawsuit is an attack on the Company and
part of a continuing effort by the Amalgamated Cloth-
ing and Textile Workers Union to drive a wedge be-
tween the employees and management at Simmons. The
Company further believes that this lawsuit amounts to
nothing more than a vendetta against Simmons Com-
pany by the union because we beat them so badly in
the election at Janesville this year. They couldn’t beat
the Company in the election, so they are now suing
some of its managers . . . the Union spent a ton of
money trying to get in our Janesville plant. They tried
to create distrust among our employees over the
E.S.O.P. issue. You sent them a resounding message
that you did not believe them and they were not want-
ed. I told you they were losers. Now it is clear that they
are poor losers. . . . Simmons will never stand by and
let this union destroy our relationship or our Company.
Let’s keep moving forward together and leave this
union in the dust behind us.
At the conclusion of his speech, Saliture passed out copies
and stated, ‘‘Make sure Jennifer gets two copies, one for her
and one for her lawyer, Damon Silvers.’’ Saliture had re-
ferred to Silvers as the Union’s ESOP spokesman in his
speech.
On November 21, 1991, Saliture was quoted in an article
in the Janesville Gazette, blaming the Union for the class ac-
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 To the extent that G.C. Exh. 6 would indicate that two quilters
were trainees, I must find that exhibit in error. Other records intro-
duced by Respondent establish that they had earlier completed their
training period. General Counsel does not appear to argue otherwise.
5 The record is devoid of evidence that Waldhart altered those
computer-based assignments to Florin’s detriment.
tion suit, claiming that it was ‘‘union-motivated because they
lost the election,’’ and defending the sale to the ESOP. In
that article, he is further quoted as referring to prior organi-
zational campaigns at the Janesville plant and boasting that
‘‘I beat the Teamsters 3 to 1 and I beat the UAW 2 to
1. . . . Now I’ve beaten the Textile Workers 2 to 1, but they
won’t let it go at that. They get this suit going . . . [the
plant is better off without a union] because it gives us flexi-
bility. . . . We don’t have to worry about a strike.’’ This ar-
ticle was posted in management’s locked bulletin board.
In December, plaintiffs’ counsel filed a motion for an
order prohibiting the defendants from engaging in unsuper-
vised communications about the suit with members of the
class. Attached to the motion was Florin’s affidavit. That
motion was granted on January 16, 1992.
On March 31, 1993, the court approved a settlement of the
class action suit. The settlement provided for the payment of
a minimum of $12 million to the ESOP beneficiaries or into
the ESOP accounts of the ESOP participants. It would appear
from the announcement of that settlement, issued by Sim-
mons Company on Simmons letterhead, that all ESOP par-
ticipants, and not just those who had elected to join the class
action, benefited from the settlement.
D. Alleged Discrimination
1. The quilt department generally
As of December 21, 1992, there were about 18 employees
(counting Florin who was then on layoff) in the quilt depart-
ment, including 6 quilters and 3 material handlers. They
were under the supervision of Charles Waldhart. Employees
bid into these positions and, when they complete their train-
ing periods, assume them with their original seniority. At rel-
evant times, Florin had the lowest seniority among the quilt-
ers.4 There is a practice within the quilt department that a
senior operator who runs out of work may bump a junior op-
erator who has 2 or more hours of work remaining on his
or her machine.
The quilt department is at the beginning of the production
process, preparing the panels which are the outer covering of
the mattresses. They are assembled from an outer layer of
material, filler, and backing. These are cut and quilted to-
gether on machines which stitch various patterns on the
product.
There are five quilting machines. On the day shift, number
1, operated by Judy Jass, runs the borders. Number 2 is oper-
ated regularly by Alice Markee. Numbers 3 and 4 are high-
speed machines, known as 4300s, run by George Garber and
Bob Anderson, respectively. Garber has run number 3 since
it was installed in early 1992. Number 4 was installed in
March 1993. The fifth machine, which operates at speeds be-
tween that of numbers 1 and 2 and the 4300s, is the machine
regularly operated by Florin. That machine is run by Mark
Walquist on the second shift.
The quilting machines can run different sizes and patterns.
The operators are given quilt cards which tell them which
panels to run and the number required. Each quilt card re-
quires a changeover, with different materials to be run
through the quilter and different needle patterns and cams.
The employees work on an incentive, being paid for each
panel. The incentive standard includes such down time as is
required by needle breaks and cutter sharpening. The opera-
tors are separately compensated for each quilt card in order
to even out the earnings of an operator who is assigned
shorter runs and has consequently more down time in
changeovers.
Respondent does not produce its mattresses and boxsprings
for inventory. It produces on a made-to-truckload system.
Respondent has a computerized assignment system whereby
the days’ orders are assigned by a computer which has the
parameters of each quilting machine (speed and available set-
ups). The computer attempts to assign those orders in the
most efficient fashion, assigning the longest runs to the fast-
est machines and in such a way as to avoid changeovers. Its
assignments are not absolute, however. They are reviewed by
Waldhart who adjusts them to take into account factors not
programmed into the computer.5
The quilt cards are color coded for priorities. Red cards
are to be done first, followed by yellow and green. Where
time permits, red and yellow cards for the same panels may
be combined to eliminate a changeover. The highest priority
are ‘‘hot beds,’’ those pieces which, for one reason or an-
other, must be completed that day, by noon or earlier.
2. Warnings and reprimands
Respondent follows a progressive disciplinary system, be-
ginning with a verbal warning (which is actually given to the
employee on a written form), followed by a verbal written
warning, written reprimands, suspensions of varying lengths,
and, ultimately if reluctantly, discharge.
The complaint alleges four reprimands and warnings,
issued to Florin on and after December 3, 1991, as discrimi-
natory. However, she had received some disciplinary warn-
ings prior to that time.
Thus, on June 28, 1991, all six of the quilt operators, in-
cluding Florin, were issued a verbal warning (in writing) re-
garding operator-caused quilt repairs. On August 2, 1991,
Florin was issued a written verbal warning for failing to
work up to her performance levels. It noted that she had pro-
duced only 80 yards of product in 5-1/2 hours. Waldhart’s
notation implies that she purposely held her production down
because she had wanted to run a different machine and ob-
jected to a needle change. The form on which the warning
issued has a printed line, ‘‘These matters will be reviewed
within ll days.’’ Waldhart had filled in the blank to state
that it would be reviewed within 1 day. On August 22, 1991,
Florin was issued a verbal reprimand and was called in to
Witt’s office for a counseling session because of a confronta-
tion with Waldhart. At issue was her failure to follow his in-
structions to work on the hot beds first, to change over to
those panels when he spoke to her about it, and the manner
in which she reacted to his instructions. The memorandum
of that counseling session indicates that she had become
upset, screamed at Waldhart, and gestured with her hands in
a way which he took as threatening. In the course of that
counseling session, she accused Waldhart of harassing every-
721SIMMONS CO.
6 The first charge in this matter was filed on January 13, 1992;
the warnings of August 2 and 22, 1991, were thus within the 10(b)
limitations period. As noted, they were not alleged as discriminatory.
7 It should be noted, in this regard, that Waldhart had only been
the quilting department supervisor since early 1991.
8 I find no inconsistency between his claim that he reviewed every-
one’s work on a daily basis and his subsequent statement that he
‘‘went back to the days to try to figure out why her rate was as low
as it was’’ when he wrote up the warning after the week had been
completed.
9 Included in these four was one item involving only 3 (and appar-
ently an additional 4) inches of scrap caused by the use of the wrong
sized cutter. These would not be considered panels. Standing alone,
that scrap would not have warranted a warning. However, it did not
stand alone; it followed three other items involving more significant
amounts of scrap caused by her failure to change cams. I note that
it was Florin who recorded this as scrap, not Waldhart. Similarly in-
significant is the fact that on the scrap record of April 14, where
Florin had indicated that a problem with the cutter had caused four
items of scrap, Waldhart had written ‘‘These count.’’ Florin was not
disciplined for any errors on April 14.
one if they did not do things ‘‘his way.’’ Florin was advised
that her conduct could be deemed insubordination, which
was grounds for discharge, and that her disruptive behavior
could jeopardize her continued employment.6
On December 3, 1991, Florin was issued a verbal written
warning (the first alleged as discriminatory) for failing to
check her setups before running her machine. It noted that
she had run 11 panels in the wrong setup, resulting in scrap,
and had previously been talked to about such mistakes on
several occasions. Waldhart testified that he would not write
up an employee for the first such infraction but only if the
conduct was repeated. He acknowledged that other operators
made mistakes with their setups; he was not asked and did
not say if any others had done it repeatedly. The warning
states that ‘‘These matters will be reviewed on a daily
basis.’’ Waldhart admitted that this was the first time he had
inserted ‘‘on a daily basis’’ on the form in lieu of giving a
number of days within which a review would be made.7
Florin was laid off from December 30, 1991, to January
14, 1992. When she returned to work, Waldhart issued her
a detailed written reprimand asserting that her production
rate had fallen excessively in the week ending December 14
and that she had failed to follow his instructions respecting
changeovers on December 26, 1991. Specifically, Waldhart’s
notes, attached to the warning, asserted that she had run at
113 percent of actual on December 9, 117 percent on De-
cember 10, had stretched out her workday on December 11
by claiming an unnecessary 1.5 hours of down time, put in
a full 8 hours on December 12 by working 3.67 hours on
her regular machine at 149 percent of actual and the remain-
der of the day on another machine (on which she had been
cross-trained) at only a 102-percent rate. Waldhart noted that
her quarterly average was 118 percent of actual and he con-
cluded that ‘‘It is obvious that she milked out quilter #6 as
she finished her sch. in exactly 8 hrs.’’
With respect to Friday, December 13, Waldhart’s notes in-
dicate that Florin worked 8 hours at only 98 percent of ac-
tual, ‘‘which is way below her average.’’ It further noted that
she should have cleared her schedule but left 78 yards unfin-
ished; that work was finished on December 16 in 1.5 hours.
Waldhart’s conclusion, stated in those notes, was that Flor-
in was:
doing whatever it takes to work 8 hrs . . . causing
other problems in the quilt area as we are trying to
keep our manning to a minimum. On Thursday when
she knew she could bump onto an easier machine, she
hurried herself, then managed to stretch out her time on
the other machine. On Friday, she either mis-judged her
time, or as previously documented, she was trying to
prove a point.
The notes indicate that Waldhart spoke with Florin on De-
cember 17. She blamed the short runs and high rate of
changeovers for her falling productivity. He testified that, ac-
cording to payroll, the other operators ran at or above their
quarterly averages with the same kind of runs.
On a separate page, Waldhart noted that on December 26,
he had directed Florin not to change the needle setting on
her quilter but to switch over to another machine already set
up with the different pattern, so as to avoid a problem on
her machine. Reviewing her payroll record for that day, how-
ever, he found that she had claimed changeover time. He dis-
allowed the changeover time and told her that he would not
pay her for that changeover on December 27. She claimed
it anyway, and he again crossed it out. When Waldhart called
her into his office for this discussion, leadperson Sherri
Thompson was present as a witness. Waldhart took this pre-
caution because of his awareness that she was a plaintiff in
the ESOP lawsuit.
Waldhart acknowledged that this was the first time he had
issued such a detailed warning. He was reviewing her work
on a daily basis, as he claimed he was doing with each of
the employees.8
Florin did not contradict Waldhart’s warning regarding her
production in the week ending December 16. She had no
independent memory of the December 26 and 27 incidents.
However, she had made notes concerning those days. Those
notes, while not made entirely contemporaneously with the
events and somewhat self-serving, indicate that she had had
some disagreements with Waldhart about which machines
she should run and how much time she should be allowed
to degrease her machine after a preventative maintenance.
On April 29, 1992, after talking to her several times,
Waldhart issued Florin a written reprimand detailing errors
on 3 different days. On April 13, she had run six panels with
the wrong setup and on April 15 ran four more with the
wrong cam or blade.9 On April 22, one panel was destroyed
because of a cutter malfunction; she failed to rerun it, neces-
sitating that another operator do it. The warning noted that
she had been verbally warned about her failure to check the
setups in December.
Florin did not receive another warning until March 12,
1993. That warning stemmed from an incident on the pre-
vious day when Florin became upset because Walquist, the
second-shift employee who operated the same machine that
she did, had removed her markings. She complained to
Waldhart. In stating her complaint, Florin screamed at
Waldhart and stated as she walked away that she ‘‘had been
running the fucking machine for four years and no one was
going to change it without consulting her.’’ Waldhart told
her that it was his responsibility to deal with the second-shift
employee, not hers, and that he was not going to put up with
that sort of language.
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The accusations that Florin was harassing other employees did
not originate with Respondent. They arose from complaints by
Walquist. Respondent, it appears, took seriously any employee com-
plaint of harassment, even when not based on sex or race. After the
March 1993 warning, Bentley held a meeting of all of the operators
to deal with the dissension between the first and second shift and
between operators on the same shift.
11 Given the factory environment, their lack of any motive to dis-
semble, and the nature of the arguments, I deem it likely that the
employees used the language they claimed. I also deem it likely that
use of such language during emotional outbursts was common
enough to pass unnoticed.
The written warning recited management’s view of the
facts of the incident, noted that she had previously been
talked to about ‘‘back-lashing’’ another employee, and stated
that it was the supervisor’s responsibility to deal with prob-
lems in the department, not hers. She was told, ‘‘we expect
a sane and rational attitude in all discussions about fellow
employees or management. Your outbursts and disruption on
the floor will not be tolerated.’’ She was also told that man-
agement had decided to treat this as a lower level of viola-
tion and merely issue a written warning. However, suspen-
sion or discharge was threatened for further violations.
This was not the first time that management had discussed
Florin’s problems with Walquist with her. In September
1992, she met with Harstad in regard to Walquist’s com-
plaints that she was harassing him (by complaining about his
work and changes he made on the machine they shared). She
was told to take her complaints to Waldhart. Again in Feb-
ruary 1993, Walquist complained to Bentley that Florin was
harassing him.10 Florin met with Bentley, Walquist, and
Waldhart on February 26. At that time, Florin was told to
pay attention to her own work, not that of others, and to
cease her backlashing of other employees.
The Simmons Employee Handbook prohibits the use of
profane or abusive language. According to Bentley, the pro-
hibition of profane or abusive language is uniformly applied;
employees sometimes swear in the plant, occasionally in loud
voices. When this is heard by management, it is ‘‘ad-
dressed.’’ Where employees have become loud and emo-
tional, they have not always received a warning but they
have been told that their conduct is inappropriate and will
not be tolerated, he said. Respondent introduced no warnings
or other discipline issued for the use of profane or abusive
language.
Foul language is sometimes heard in the Simmons plant
but it appears to be less common than in many industrial set-
tings. When Bentley spoke with the employees about dissen-
sion in the department, he was heard to say that he was tired
of ‘‘all this bullshit.’’ Employee Dennis Ames claims that
Bentley and Waldhart were present when he was ‘‘ranting
and raving’’ about the operation of his machine, swearing at
it. He also testified that he had heard Waldhart use the infa-
mous ‘‘F’’ word, saying that he, Waldhart, ‘‘had fucked up.’’
Susan Ball testified that she got upset during a meeting with
Bentley over a dispute with the material handler, screamed
and yelled, called him a liar, told him to get his ‘‘head out
of his ass.’’ She also allegedly referred to the situation as
‘‘bullshit.’’ Bentley had no recollection of her swearing or
calling him a liar. Neither Ames nor Ball was disciplined for
their outbursts.
In another incident, Garber and material handler Dorn
were arguing over whose responsibility it was to remove
rolls of fabric. Waldhart described them as screaming at each
other, ‘‘almost fighting,’’ when Garber called him over.
Garber described the dispute to Waldhart and, according to
Dorn, Waldhart threw the rolls of material into the aisle.
Dorn claimed to have called Waldhart an ‘‘asshole’’ and,
when he was told that he could not talk that way to the man-
agers, said he did not ‘‘give a shit’’ what Waldhart thought,
he was ‘‘pissed off.’’ Dorn received no written or verbal
warning. However, Waldhart attempted to discuss the inci-
dent with him in his office. Dorn insisted on discussing it
with Bentley instead. Waldhart denied that he heard Dorn
use any foul language.11
Florin was not the only employee Waldhart disciplined.
On February 6, 1991, he issued a verbal admonition to Pat
Abbott respecting the quality of her work; it threatened fur-
ther disciplinary action ‘‘if the problem is not corrected. On
August 21, 1991, he issued a written warning to Ava Bluer
regarding the quality of her work. On December 16, 1991,
he gave Alice Markee a ‘‘written counseling’’ and reprimand
on the quality of her work. Mark Walquist was given a
verbal warning on February 6, 1992, for misruns and repairs;
that warning, like Florin’s December 3, 1991 warning, con-
cluded by stating that his performance would be reviewed on
a daily basis. Alice Markee was given another written rep-
rimand on February 10, 1992, for quality problems. George
Garber received a verbal reprimand for failing to check his
setups on February 19, 1992; it also provided that his work
would be reviewed on a daily basis. Walquist was issued a
written reprimand on February 20, 1992, for misruns and re-
pairs.
3. The December 1992 layoff
November through February is Respondent’s slowest sea-
son. Florin was laid off from December 30, 1991, through
January 13, 1992, along with one or two other employees;
no claim was made of discrimination with respect to that lay-
off.
In December 1992, Florin could see that a layoff was
coming. She and Alice Markee had been cutting squares, a
make-work job given them when the quilting work was slow,
and had been told by Bentley that they could only cut so
many squares. Bentley also observed that a layoff might be
necessary. Daily orders and shipments were decreasing and
there was not enough work to fully occupy the quilt opera-
tors at their machines; they were spending increasing
amounts of their time on other functions. Waldhart had re-
ported that he did not have enough work for all of his quilt-
ers.
Respondent conducts layoffs by department according to
qualifications, experience, ability, and seniority. All other
things being equal, seniority is determinative. Respondent
also has a practice, when a layoff is required, of soliciting
voluntary layoffs, starting with the most senior employee.
When he determined that there should be a layoff among the
quilters, Bentley instructed Waldhart to ask if any of the op-
erators wanted to take a voluntary layoff. Walquist and Sue
Ball volunteered. Ball’s request, however, was rejected be-
cause she was a utility worker, one who filled in for workers
in different jobs throughout the plant. She was not a quilter
and did not work on Florin’s job while Florin was on layoff.
723SIMMONS CO.
12 Florin also believed that Waldhart was discriminatorily adding
work to her quilt cards, thereby giving her longer runs but fewer
changeovers and denying her the changeover bonus. Her contentions
are inconsistent. On several occasions, Waldhart rejected Florin’s
claims for down time for such items as cleaning her machine after
a preventative maintenance. The record indicates that he allowed her
as much time as was allowed other operators for those items. He
also disallowed down time for items which had been included in the
incentive standard.
Florin was asked if she wanted to fill in for Walquist on
the second shift while he took the voluntary layoff. After
consulting with her husband, she declined. Walquist’s request
for the voluntary layoff was denied because there was no one
to replace him on the second shift. Florin was then offered
the opportunity to bump a temporary employee in tip-off.
She declined that as well and, as the least senior employee
in quilting, was laid off on December 14, 1992. She re-
mained on layoff until January 5, 1993, when the disability
of another employee created an opening for her to return.
At the time of Florin’s layoff, two other employees were
already on layoff, one from boxspring taping and utility,
since about November 2, 1992, and another from flat cut and
sew, since November 17, 1992. Both apparently remained on
layoff at least until the end of the year. One employee, Mark
Schricker, was laid off on December 15, 1992, However, he
was recalled at the beginning of the following week.
No other employees were laid off either in the weeks im-
mediately preceding or following Florin’s layoff. Bentley ex-
plained that there were no layoffs in boxsprings because of
a retraining project. There were none in matt finish because
of employees out on disability and none in contourflex be-
cause of changes in the product lines.
4. Loss of income
Most of Florin’s earnings come from her incentive pay. In
1991, she earned nearly $28,000. In 1992, however, she
earned only a little over $23,000, a decrease of 17 percent.
In the same period, the earnings of the other quilt operators
increased (but no figures were provided). Bentley could offer
no explanation. Neither could Carolyn Mergens, Respond-
ent’s corporate industrial engineer coordinator. She testified
that while it was not necessarily unusual for an employee’s
earnings to drop by as much as $4000 from one year to the
next, she would conclude ‘‘that something is definitely going
on’’ if the earnings of three out of four operators increased
while those of the fourth decreased. She posited that there
might have been a change in the amount of overtime or that
an operator might be slowing down, taking longer to do the
changeovers. She did not claim that either had happened
here.
Florin believed that Waldhart’s assignment of shorter runs
with more frequent changeovers contributed to her reduced
earnings. Respondent’s records show that there was no sig-
nificant difference in the number of changeovers assigned to
Florin and those assigned to any of the other quilters. More
significantly, the number of changeovers would not have ma-
terially affected her earnings under Respondent’s compensa-
tion system, which balances changeovers against production
so as to equalize earnings.12
In 1992, Florin was on layoff status for 4 weeks and out
on a disability for 1 additional week. Her layoff in the begin-
ning of 1992 was the first she had experienced since she
started in quilting in 1986. At least one of the other quilters,
Judy Jass, had been out for an extended period of time in
1991, over 11 weeks, due to disabilities and injuries. Jass
lost only 1 week in 1992. No other records of time worked
by the operators in either 1991 or 1992 were offered.
In mid-February, Respondent combined two needle set-
tings. As a result, a needle setting which Florin considered
advantageous was removed from her machine and assigned
to one of the 4300 high-speed machines. Following the
change, Florin’s quarterly average declined by $1.12 and
$1.75 per hour in the next two consecutive quarters. Re-
spondent believes that the decrease was occasioned by her
lessened effort; that is speculation. What is clear is that the
reassignment was motivated by the advantage of running
these setups on the fastest machine, a legitimate business jus-
tification. There is no contrary contention.
For what it is worth, I note that while Florin’s quarterly
averages in the first half of 1991 exceeded those of Jass and
Markee (the two quilters operating machines equivalent to
Florin’s), she dropped behind them in the remainder of that
year and all of 1992.
Evidence was introduced regarding Florin’s vulnerability
to being bumped by the more senior operators (particularly
Jass) and regarding the start up of the second shift in 1992.
These factors may have had some small effect on her earn-
ings but are too negligible to explain the substantial decrease
she suffered. There was no evidence that Waldhart encour-
aged more senior employees to bump Florin.
Based on the foregoing, I am compelled to conclude that
Florin’s earnings decreased primarily because of her layoffs
and time lost to a disability along with the decrease in her
quarterly averages. The earnings of Jass and Markee appear
to have increased due to the improvements in their quarterly
averages; Jass apparently benefited from losing less time in
1992 than she did in 1991.
5. Other alleged discriminatory conduct
The complaints, as amended, alleged discrimination by
harassment and close scrutiny of Florin’s work in addition to
allegations of a discriminatory layoff and discriminatory
warnings and reprimands. In response to Respondent’s mo-
tion for a more definite statement, General Counsel specified
that the harassment and scrutiny issues involved the reassign-
ment of work resulting in decreased earnings, closer moni-
toring of her work, criticism of routine mistakes and regular
checking of scrap, reduced allowances for downtime, failure
to train on high-speed machines, changes in priority of work
assignments, assignment of work to make layoff more likely,
and accusations that she was harassing other employees and
encouraging other employees to exercise their seniority over
(and bump) her. In his brief, the General Counsel further nar-
rowed the discrimination allegations to her 1992 loss of in-
come, four warnings and reprimands, her December 1992
layoff and, generally, a contention that Respondent had en-
gaged in a discriminatory course of conduct. I will deal with
the specific allegations enumerated in the response to Re-
spondent’s motion only briefly and to the extent that they
have not been alluded to in the foregoing discussion.
The record reveals that Waldhart reviewed everyone’s
work. Where verbal reprimands were issued, the reprimand
form provided for further review of the employee’s work.
Florin was the first employee told that her work would be
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 I.e., that the ESOP suit was a protected activity engaged in for
the mutual benefit of the employees and was concerted in that it
sought to induce group action, the inclusion of other employees in
the class, and to secure group benefits. Meyers Industries, 281
NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987) (Prill II), cert. denied 487 U.S. 1205
(1988).
14 While it is true that these issued after her involvement in the
Union’s organizational campaign, they were not alleged as discrimi-
natory (although the first charge was timely with respect to them)
and I am not at liberty to find that they were. I note that they came
3 or more months after the election and before the filing of the
ESOP lawsuit. There was nothing in their timing which would nec-
essarily indicate discriminatory motivation.
reviewed on a daily basis but she was not the only one.
Similarly, the record reflects that the Sherri Thompson, the
lead person, checked scrap on a regular basis, sometimes as
often as three times in a day. Scrap was a serious enough
concern for Respondent to pay a bonus based upon how little
scrap the employees could produce. The record contains no
evidence that Florin’s scrap was checked any more fre-
quently than that produced by anyone else.
When the first high-speed quilter was installed, it was as-
signed to George Garber, the most senior quilter. The second
high-speed quilter was brought into the department in March
1993. It was also assigned by seniority to Bob Anderson.
The more senior operators have had some training on them.
Markee began to train on it but did not pursue the training.
Jass has had some training. Florin has asked Bentley several
times if she could train on the high-speed machines and has
been told her that she would train when there was time. On
one occasion within the month before the hearing, Bentley
allowed her some training time when she was out of other
work at the end of a day. At the time of the hearing, a less
senior employee had been brought into the department with
the intention that he would take over Florin’s job and she
would be given the opportunity to learn the operation of the
high-speed quilter.
E. Analysis and Conclusions
1. Union and/or protected concerted activity
Both counsel argue at length on the question of whether
Florin’s role in the ESOP lawsuit was protected concerted
activity. While I lean strongly toward the position asserted
by the General Counsel,13 I need not reach that question.
Florin had clearly and openly engaged in union activity dur-
ing the organizational campaign. Just as clearly, the ESOP
lawsuit, filed in her name, was a continuation of that union
activity. More significantly, it was perceived by the Em-
ployer as union activity and it was Simmons, not the ESOP
administrators, which reacted to that suit. Repeatedly, Re-
spondent, through Saliture, referred to it as union activity,
even describing it as part of the Union’s ‘‘continuing effort
. . . to drive a wedge between the employees and manage-
ment at Simmons.’’ He identified Florin as being in league
with the Union in the filing and maintenance of that civil ac-
tion. Even if Saliture was mistaken in his belief that it was
union activity, that mistaken belief would afford employees
protection against whatever discrimination it might engender.
New River Industries, 299 NLRB 773 fn. 1 (1990); Herbert
F. Darling, Inc., 287 NLRB 1356 (1988).
2. Alleged discrimination
The more difficult question here is whether Respondent
discriminated against Florin. In answering that question, one
must look carefully at what happened and not merely at
when it happened. Beyond a doubt, Florin’s fortunes at Sim-
mons’ Janesville plant declined following her involvement in
the organizational campaign and the ESOP lawsuit. She re-
ceived four warnings, suffered a layoff, and saw her earnings
reduced by over $4000 in a year. Were these the result of
employer action motivated by her union activity or can that
conclusion be reached only by post hoc reasoning.
Jennifer Florin is a courageous woman. She literally put
her name, if not her neck, on the line to protest what, at least
to those of us who are financially unsophisticated, would ap-
pear to be a grievous example of the financial abuses of the
roaring eighties. Her reward, however, must come from the
satisfaction that some remedy was achieved in settlement of
the ESOP action. I am unable to find that her misfortunes
at work were the product of unlawful employer motivation.
With respect to the warnings and reprimands, I note first
that Florin had received two warnings (in addition to the
group warning of June 28, 1991) before she received those
alleged to be discriminatory.14 These warnings were for the
same alleged failings for which she was subsequently rep-
rimanded, the quality of her work, her failure to work up to
performance levels and her loud, abusive, and potentially in-
subordinate behavior. I note, too, that her comments in the
counseling session which accompanied the August 22, 1991
warning evidence an ongoing personality conflict with her
supervisor, Waldhart.
The warnings cited in the complaint, when examined ob-
jectively, are neither so disparate from those issued to other
employees or so unreasonable as to evidence discrimination.
Thus, the December 3, 1991 warning for failing to check her
setups resulting in 11 scrapped panels, is not unreasonable in
a quality oriented operation. It is also consistent with the
warnings given Walquist and Garber on February 6, 19, and
20, 1992, for setups and misruns. The admonition that her
work would be reviewed on a daily basis was similarly con-
sistent with Walquist’s and Garber’s warnings. That she was
the first employee to be so advised is insufficient to establish
that Waldhart discriminatorily chose to so advise her.
Counsel for the General Counsel accuses Waldhart of
seeking an excuse to discipline Florin and seizing on a cou-
ple of off days in the week ending December 14 to issue her
a warning. He notes that Florin was close to her quarterly
average on two of the days discussed and that, for the quar-
ter, her performance actually improved. This contention is
wide of the mark. My reading of this warning is that it was
directed, primarily, at what Waldhart perceived as an inten-
tional ‘‘milking’’ of several work days so as to be paid for
a full 8 hours when her work could have been completed in
less. The facts cited by Waldhart and not contradicted by
Florin would tend to support his conclusion. The warning
was not issued for failing to achieve her average production
on those days when she came close. To find that Respondent
should not have warned her for poor performance on those
days when Waldhart suspected that she was ‘‘dogging’’ it
because her overall performance for the week or the quarter
was acceptable would require an impermissible substitution
725SIMMONS CO.
15 If that had been the sole basis for this warning, I would have
been inclined to find disparate treatment as other employees have
gotten away with similar language and worse.
16 It is immaterial that her criticisms of Walquist’s actions may
have been understandable or even correct.
of the trier of fact’s judgment for that of the Employer. See
Stamping Specialty Co., 294 NLRB 703 (1989). Secondarily,
I note that the warning was issued for a refusal to follow
Waldhart’s directions on December 26; she did not directly
dispute his facts regarding that incident.
All that is unique about the January 14, 1992 warning is
the length of the explanatory materials. They indicate that
Waldhart took great pains to review her work for the subject
period. Waldhart acknowledged that he went back and re-
viewed her work for the week; he also acknowledged exer-
cising caution in dealing with her because of her role in the
ESOP lawsuit. I find nothing discriminatory in such conduct.
Florin did not receive another warning until April 29,
1992. She did not dispute the assertions in that warning that
she had made mistakes on her setups on April 13 and 15 or
that she had failed to rerun a panel destroyed by a cutter
malfunction. Neither did she dispute the assertion that she
had been verbally warned about such errors in December.
This warning is consistent with prior warnings she had been
given and with warnings given other employees. Even as-
suming that Waldhart engaged in a bit of ‘‘overkill’’ in cit-
ing her for creating 3 inches of scrap on April 15, that was
merely one minor aspect of the warning. It would have been
highly suspicious had he issued her a warning for that error
alone but he did not do so. There is no basis for concluding
that the April 29 warning, in and of itself, was discrimina-
tory.
Florin did not receive another warning until March 12,
1993. The 10-month time lapse between warnings is some
indication that there was no pattern of seeking out incon-
sequential incidents and issuing warnings. Further, the warn-
ing appears to be the outgrowth of a series of incidents, run-
ins with Walquist, for which Florin had previously been cau-
tioned. This warning was not merely for her use of profane
and loud language to her supervisor.15 As it states, it is pri-
marily for repeatedly ‘‘backlashing’’ another employee, and
for attempting to assume the managerial prerogative of criti-
cizing employees.16 Secondarily, it is critical of the mode of
her communication with Waldhart. Given the undisputed de-
scription of this incident, and earlier conduct for which she
had been warned, I can not find that this warning was either
so unreasonable or so disparate as to appear discriminatory.
I am unable to find that the warnings issued to Jennifer
Florin, whether viewed individually or as a group, were mo-
tivated by her union activity. Four warnings issued over a 1-
1/2-year period, with no suspensions or termination, and with
as much as 10 months between the last two warnings, does
not evidence a pattern of discrimination, particularly where
the warnings were consistent with prior warnings issued to
this and other employees and involved undisputed mistakes
and errant behavior.
I am similarly unable to conclude that Florin was
discriminatorily selected for layoff in December 1992. Most
significant to this conclusion is the fact that, when Respond-
ent decided to lay off a quilter, it had no way of controlling
who would be laid off. Any one of the more senior quilters
could have volunteered for the layoff; given that it was the
Christmas season, it would not have been unforeseen that
someone would do so. In fact, Walquist did. Had Florin been
willing to work nights, she would have continued working
and he would have been laid off. Neither could Respondent
have known that Florin would decline to bump the temporary
employee in order to remain at work. Granted that the
temporary’s job was probably less desirable than Florin’s
quilter position, it was still a paying job and it would not
have involved a permanent transfer.
General Counsel points to the lack of other layoffs in the
plant at the time of Florin’s layoff. In fact, there were two
others on layoff and a third person was laid off, albeit brief-
ly, right after she was. Moreover, the history of layoffs in
this plant, at least for the last 2 years, has been of layoffs
involving only one or two workers. Given this history and
Bentley’s explanation of why individuals from other depart-
ments were not laid off, no evidence of discrimination can
be found in the fact that no one else was laid off for any
significant period immediately before or after Florin’s layoff.
Finally, I must reject the contention that Respondent some-
how discriminatorily caused Florin to earn less in 1992 than
she did in 1991. There is no evidence of any discriminatory
conduct by Respondent which might have caused this de-
crease. All that has been shown is a temporal connection and
a suspicion that ‘‘something is definitely going on.’’ This,
particularly in light of the absence of any significant evi-
dence of animus, is insufficient to sustain General Counsel’s
burden of proof under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981). There is no evidence of
any adverse action taken by the employer which brought
about this result and thus no prima facie case. See Farmer
Bros. Co., 303 NLRB 638, 649 (1991). Absent a prima facie
case, there is no shifting of the burden to require Respondent
to explain what happened. Thus, there is no basis for the
drawing of any adverse inferences from Respondent’s failure
to provide an explanation or to proffer documents which
might do so.
Moreover, the record would seem to explain much of this
decrease. Florin was absent due to layoffs for 4 weeks in
1992; she lost another week due to an injury. It appears that
she had no comparable periods of unemployment in 1991. At
least one of the other quilters with whom she was being
compared, Jass, lost far more time in 1991 than she is likely
to have lost in 1992. During 1992, Florin lost certain profit-
able work (or work which she liked and considered profit-
able) which was transferred to the high-speed quilter. None
of this resulted from any discrimination against her. Finally,
and notwithstanding the observation of her leadperson that
Florin aggressively sought to earn as much as possible, her
warnings and the substantial drop in her quarterly averages
for several consecutive quarters would seem to indicate that,
intentionally or not, she was not working to her full capacity.
Accordingly, as I am compelled to conclude that General
Counsel has failed to put forth a prima facie case of dis-
crimination, I shall recommend that the consolidated com-
plaint be dismissed in its entirety.
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
On the basis of the foregoing findings of fact and conclu-
sion of law and on the entire record in this proceeding, I
issue the following recommended17
ORDER
The complaint herein is dismissed in its entirety.