Lisa's Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 492 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lisa's Inc. and Mable Elizabeth Tilghman and Bernice
Foster. Cases I 1-CA-6624 and 11-CA-6751
June 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On March 9, 1977, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supproting brief, and the
Respondent filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Lisa's Inc.,
Grifton, North Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Respondent argues that, contrary to the Administrative Law
Judge's conclusion, Erma Chapman did not testify that she was denied time
off. But however her testimony is construed, it reflects that her requests for
leave were treated more restrictively after the election. That, and not the
degree of restriction, is the significant point.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard in Kinston, North Carolina, on November
t The charge in Case I l-CA-6624 was filed by Tilghman on June 22,
1976; the charge in Case 11-CA-6751 was filed by Foster on October 4,
1976.
Respondent denied the critical allegations in the complaint. The General
Counsel filed a brief; Respondent did not.
2 At that time, charges were filed alleging that Respondent discharged
four employees, including Erma Chapman, Mable Tilghman, and Bernice
230 NLRB No. 65
11 and 12, 1976, on a consolidated complaint, issued on
October 20, 1976, alleging that Respondent violated
Section 8(aX3) and (1) of the Act by discharging employees
Mable Tilghman and Bernice Foster because they engaged
in union activities.'
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINos OF FACT
1. JURISDICTION
Respondent, a North Carolina corporation with a facility
in Grifton, North Carolina, is engaged in the manufacture
of children's garments. During the past year, Respondent
derived gross revenues in excess of $50,000 from the
shipment of finished products to States other than North
Carolina and purchased raw materials valued in excess of
$50,000 from points outside North Carolina. I therefore
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Local 361, Tobacco Workers International Union, AFL-
CIO-CLC, hereafter the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In 1973 the Union conducted an unsuccessful campaign
to organize Respondent's employees.2 Another campaign
among Respondent's employees to organize on behalf of
the Union took place in late 1975 and early 1976.
Employees Erma Chapman, Mable Tilghman, and Bernice
Foster were leading advocates on behalf of the Union.
They wrote, signed, and distributed leaflets. Together they
accounted for most of the signed union authorization cards
obtained from employees. They were officers of the plant
organizing committee, attended union meetings, and
visited employees at their homes on behalf of the Union.
They were subpenaed by the Union to testify on its behalf
at a representation case hearing before a Board agent upon
the Union's election petition. Tilghman was the vice
president of the organizing committee and was consulted
by the Union at the representation hearing. Foster and
Chapman were union observers in the election which was
held at the plant on April 29, 1976. The Union lost that
election.
In the 1976 campaign, Respondent vigorously opposed
the Union. Antiunion speeches were delivered to assem-
bled employees by Feldman, whose home office is in New
York City. On the day of the election, just after the voting,
Respondent's attorney, Blossom, told the Union's repre-
sentative at the polls, Rudolph Holly, that he was glad that
Foster, for engaging in union activities. This case was settled and the
employees were reinstated with backpay. The settlement agreement
contained a nonadmission clause. Respondent's general manager, Bert
Feldman, testified in this proceeding that the case was settled because of
certain "gray areas" in the discharge of these employees. I do not consider
this evidence probative one way or the other in determining whether
Respondent, in this case, discriminatorily discharged Tilghman and Foster.
492
absent for a period of 4 days in September 1976 because of
lack of transportation. At that time, she told Traylor, who
was then plant manager, about her problem. She was not
disciplined or reprimanded upon her return to work.
There is testimony that employee Reel was absent for 3
working days the second week in June 1976 when she and
her husband took their vacation in Nashville, Tennessee.
She told her supervisor, Shelby Simpson, about her intent
early in 1976 and mentioned it again to Supervisor Betty
Manning in May and the week before her vacation. She
took her vacation and no management official questioned
or disciplined her about this matter. Her workload was
normal just before and after her vacation. In addition, she
took her normal vacation in July 1976. Reel also quit for 2
or 3 weeks in the fall of 1976 because the work "got on her
nerves." She was rehired without any difficulty. Reel was
not active in the union campaign. 3
There is also uncontradicted testimony that employee
Ethel Lupton, who spoke against the Union in the 1975-76
campaign, sought I week off in June 1976 to babysit for her
visiting daughter's child. She called the plant to ask for the
time off. Later that day she was called back at her home
and was told that Traylor wanted to speak to her. The next
day in his office, he asked if she knew what had happened
to another girl who had wanted a week off, and also said
that she should come in or he would have to fire her.4
Lupton missed 2 days but returned to work the day after
her talk with Traylor. She was not disciplined for taking 2
days off.
Another employee took time off for I week in August
1976 without difficulty. This employee, Frances Wilson,
was not a union supporter. Wilson also took her normal
vacation in July. This testimony was uncontradicted,
although Head Supervisor Maria Smith testified that she
told Wilson that "it was okay" because the work was slack
at the time.
Shelby Simpson, who had been a supervisor for 3 years,
testified that the procedure for getting time off was that
employees asked her and she referred them to the plant
manager and then the plant manager would tell her
whether the time off had been given. Concerning absences
of I day due to sickness, she testified that she had the
authority to give time off provided the employee came in
with a written explanation. If an illness lasts longer than I
day, employees are required to call in.
Both Simpson and Supervisor Manning testified to lax
policies concerning absence from work. Supervisor Simp-
son explained that on any given day there are several
pocket setters absent from work. Both Simpson and
Manning testified that frequently employees took time off
to tend their children. Manning explained that employees
are often transferred from one department to another
because of absences. When asked if she reported absences
to the plant manager, Manning replied, "In some cases yes,
and in some no." Manning also testified that the majority
of the employees who are absent never mention it to the
plant manager.
4 Traylor was apparently referring to Mable Tilghman whose discharge is
discussed, infra.
the Union lost the election but he "hated to see all of these
people out of ajob."
None of the above has been alleged as violative of the
Act. However, Respondent concedes that it was opposed to
the Union and knew of the union activities of Tilghman
and Foster. Respondent alleges that Tilghman was dis-
charged for cause-taking a week off work unexcused-
and Foster quit as a result of Respondent's refusal to grant
her time off for a personal trip. Key to the General
Counsel's allegation that employee Tilghman was discrimi-
natorily discharged and Foster constructively discharged
for their union activities is the contention that Tilghman
and Foster, as well as Chapman, were the victims of
disparate treatment concerning time off because of their
union activity.
B. Respondent's Policy On Absences
The evidence shows that employees were absent for a
wide range of reasons and the procedures followed by
employees relating to absences were varied. Sometimes
employees would request time off in advance; other times
they would simply inform Respondent of an upcoming
absence. Still other times they would take the time without
notice or explanation until their return. Regardless of the
procedure followed, the absence would invariably be
excused. The reasons given for absences included caring
for children or other relatives; driving people to distant
places; funerals; vacations; personal illness or the illness of
relatives; and transportation problems. When they took
leave, some absent employees were working overtime and
some took off when their workload was normal. The
evidence shows that warning notices were issued to only
two employees who took time off in 1976: Callie Person
and Brenda Carmon.
There was testimony that Callie Mae Person, a pocket
setter, was absent I week in May 1976 because she had to
drive her mother to Baltimore to visit a sick uncle. She
notified her supervisor the last workday before taking off.
When she returned she was told to see Plant Manager John
Pressley and Assistant Plant Manager Guy Traylor. They
asked her why she was out and, after she explained the
situation to them, they cautioned her that she should have
a written excuse for such absences in the future. She was
permitted to return to work with a warning notice inserted
in her file. The warning notice states that her absence was
excused except for the last day, which was not excused, and
there is an indication that this was a first warning notice.
Person was not penalized in any other way for her absence.
There also was testimony that Brenda Carmon, a pocket
setter, was issued a "Ist notice" for "excessive absenteeism,
did not call in" on August 26, 1976. She was absent for 3
days in October 1976 because she did not have transporta-
tion to the plant. She notified her supervisor the first day
she was out but not the next two. On returning to work, she
was questioned about why she did not call in the last 2 days
of her absence, but she was not disciplined or reprimanded.
She was working overtime before her absence. She was also
3 Supervisor Shelby Simpson testified she could not remember any
conversation with Reel about time off but said she did not give her
permission to take time off. Manning testified she might have had such a
conversation with Reel. I credit Reel's testimony as more precise and
reliable.
LISA'S, INC. 493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manning also testified that before Pressley came in as
plant manager, sometime in 1975, she had authority to
grant time off for as long as a week. She testified that the
policy changed when Pressley came in. There was no
meeting of the employees to announce this change in
policy, and they would not have known of it unless they
spoke to the plant manager, or through word of mouth,
according to Manning.
Plant Manager Pressley testified that the Company
"wanted to be as lenient as possible with time off, and
allow time off as much as we could." He also testified that
there was a warning notice policy for breaches of policy
such as absenteeism. Employees would be given one or two
warning notices and he testified that warning notices might
be issued before the discharge of an employee, although
not always. He did not remember any case during his 7
months as plant manager where he fired anyone for "being
out other than just excessive absenteeism." He also testified
that there would normally be warning notices for excessive
absenteeism before a discharge.
Plant Manager Traylor, who was terminated shortly
before the hearing in this case, did not testify. 5
The evidence also shows that Erma Chapman, who was
president of the Union's organizing committee, was denied
time off after the election, whereas before the election she
was granted time off without difficulty. In February 1976,
she had been off 5 full days for her brother's funeral after
calling in. Since the election, when Chapman has requested
time off, she has either been refused or told that she needs a
note or special permission. Her requests included a request
for time off for a doctor's appointment, for a death in the
family, and to help her son get ready to leave for college.
C. Tilghman's Discharge
On Tuesday, June i, 1976, Tilghman had a conversation
with Plant Manager John Pressley and told him that she
was having trouble finding a babysitter for her 2-year-old
child for the next week. Tilghman's aunt normally babysits,
but she was unavailable that week. Tilghman said that if
she could not find a babysitter she would have to take the
week off to care for him. Pressley asked if there were any
nurseries in the area and she said "no." Then either
Pressley or Guy Traylor, assistant plant manager, who also
was present, asked how far she lived from the nearest town
and she told him.6
Pressley said that he had plenty of work for her to do at
the plant. Afterwards he said that other people who worked
I Respondent was also permitted to introduce documentary evidence in
this proceeding to show that it terminated four employees in June 1976. The
evidence in two cases consisted of separation slips provided by the North
Carolina Employment Security Commission; they indicate that the
employees "refused to perform" assigned work. The evidence in the two
other cases consisted of "individual performance" sheets with penned
notations of terminations for having "insubordinately refused to perform
assigned work" and "Term 6-4-76, no babysitter." There was no other
evidence concerning these terminations and I find the documents them-
selves carry little if any weight in the resolution of the issues before me,
particularly since they do not deal with the issue of absenteeism.
6 Tilghman lives in a rural area 15 miles from Kinston and 30 to 35 miles
from New Bern.
T The General Counsel in his brief moved that the transcript be corrected
at p. 57, 1. 3, to add the word "if" so that the passage in Tilghman's
testimony would read "and if you can't, you just can't." This motion was
at the plant had babysitters and that he would ask around
to see if one of them could provide a babysitter. He also
said something to the effect that if she could not find a
babysitter she couldn't. 7
Tilghman worked the rest of the week and, although she
tried, she could not find a babysitter. On Friday, June 4,
after work, Tilghman talked to Supervisor Shelby Simpson
outside the office. She told Simpson about her conversation
with Pressley and said that she still had not found a
babysitter and would have to take the next week off. She
told Simpson if she found a sitter she would come in to
work. Simpson gave her a slip with her telephone number
and told Tilghman to call her if she could come in the next
week. Simpson then returned to the office where Pressley
and Traylor were also present. Tilghman was unable to get
a sitter and did not report for work on the following week.
Tilghman returned to work on Monday, June 14, 1976. She
clocked in and was told to report to Traylor in his office.
Traylor asked her where she was the week before.
Tilghman's uncontradicted and credited testimony con-
cerning this conversation is as follows:
Well, I went in; he asked me where was I last week,
which was the week that I was off; I told him that I
didn't understand, that I thought that it was under-
stood, that if I didn't find a baby-sitter that I would
take that week off, and he said, "Well, I had expected
you to be back into work," and I said, "Well, I told
Shelby on Friday, that was my supervisor, that I had
not found anybody," and he said, "Yeah, I know, but I
still expected you to be back into work," and I said,
"Well, I don't understand because the other girls,
employees, get time off, and there is no problem"; and
he said, "Well, they got off because of important
business"; and I said, "Well, my baby was important
business to me, and I wasn't going to leave a two-year
child at home by himself."
And so he said, "Here is your layoff slip and your
check."
And I said "Mr. Pressley even offered to help me
find someone,"-and he said, "Well, finding you a
baby-sitter is not our responsibility," and I said, "I
knew that."
The layoff slip given to Tilgham had been filled out the
previous Thursday and read "insubordinate refusal to
perform assigned work."8
unopposed. The corrected transcript reflects Tilghman's testimony else-
where in her description of Pressley's remarks. I therefore grant the motion.
8 The above is based on the credited testimony of Tilghman who
impressed me as a reliable and candid witness. Pressley's testimony was in
conflict in one significant particular. He testified that, in his first
conversation with Tilghman, he did not excuse her absence. Pressley did not
impress me as a reliable witness on this issue. For example, his testimony in
part was evasive and contradicting. He seemed so anxious to emphasize that
he did not excuse Tilghman's absence that at one point on cross-
examination he testified that he told her she would be fired if she took the
week off but subsequently modified that to say that he simply told her that
her reason was not excusable. On another occasion, in discussing the time
off of employee Person, his testimony on direct was evasive. He also testified
that he told Tilghman he would help her find a babysitter, which
corroborated Tilghman's testimony and makes it unlikely that he made it
clear that the absence was unexcused, as he testified.
494
LISA'S, INC.
Tilghman had been employed at Respondent's plant in
Grifton since Respondent purchased the plant in 1971. She
had worked at the plant for the former owners as well,
spanning a total period of 15 years. She was a pocket setter
and had been complimented often on her work by her
supervisors. She was often assigned to do special work
because of her sewing ability.
Before June 1976, Tilghman had often been absent and
had never been refused a request for time off or criticized
in any way for taking time off. Some of the absences due to
her sickness or the sickness of her children may have been
as long as I week but none of them was for failing to find a
babysitter.9
D. Foster's Discharge
Foster had worked for Respondent since it began
operating the Grifton plant and, before then, for the former
owners, a total of almost 15 years. She was a pocket setter.
In late April 1976, Foster made a request to Pressley for
a week off beginning June 8, 1976, in order to attend a
western music festival in Nashville, Tennessee, with her
husband. Pressley said he would get back to her later on
her request.
Foster testified that a few days later, her supervisors,
Maria Smith and Betty Manning, told her she had the week
off and that "everything was okay." Foster then went
ahead and made travel and other arrangements for her trip
to Nashville.
In either late May or early June, when Traylor was
promoted to plant manager, Foster asked Supervisor
Manning whether she should ask him about her time off
request. Foster testified that Manning said "no" and that
"everything was still okay."
Supervisor Betty Manning testified that Foster asked her
for a week off in early 1976. She said that she had to check
with Pressley who said to wait and see. She testified that
she conveyed this to Foster. She also testified that Foster
asked if she should talk to Traylor who in late May or early
June had been promoted to plant manager. She said it
might be a good idea. She said she does not recall telling
Foster pointblank that her vacation was approved. Rather
she recalls telling her if it was all right with Pressley it was
all right with her.
Maria Smith, the head supervisor at the plant, testified
that she spoke with Foster about her time-off request but
that she never approved the time off. She testified that she
told Foster the time was all right with her if it was all right
with Pressley. Pressley testified that he told Foster he had
to wait and see on her request. He also testified that he
explained to Foster that his policy of absences was that
time off was based on the workload at the time of the
absence.
On the Monday before Foster was to begin her vacation,
she was told to talk to Plant Manager Traylor about her
I also credit Tilghman's testimony over that of Simpson to the extent that
there is a conflict. Simpson was reluctant to admit that she gave Tilghman
her telephone number as Tilghman testified. Yet she conceded that the
number on G.C. Exh. 8 was her telephone number and that she may have
given it to Tilghman. Simpson also testified that she was surprised when
Tilghman told her on Friday that she would not be in the next week and that
she said she needed her "real bad." Yet I find it incredible that Simpson did
not talk to Presley or Traylor about Tilghman's requested absence. The two
week's vacation. Foster went to see Traylor. Her testimony
about that meeting, which is uncontradicted, is as follows:
I started to explain to Mr. Traylor about my week's
vacation. I told him that I had discussed it with Mr.
Pressley and Betty Manning about three months
before; also that I had discussed it with Betty Manning
about a week before. Mr. Traylor said that he and Mr.
Pressley had discussed it, and that I could not have the
week off, that I was needed, that I was a good operator.
I told him that I had made plans, made reservations,
and had mailed money to Nashville, Tennessee for the
reservations, and for the Fan Fare tickets, and that it
was too late to get my money back, that I couldn't see
my husband going by himself, and that I wanted to go
with him. Mr. Traylor said that we had a week set aside
for vacation.
I told him that I realized that but what I wanted to
go for was for one week out of the year, and that was
the second week of June. He still wouldn't let me have
the week off, and so I said, "I hate to do it but I guess
that I will have to resign." I got my things and left.
Q. How much money had you sent for advance
reservations?
A. Approximately $150.
Q. Was there any way that you could get that
money back at that time?
A. No.
She left the plant and the next day left for Nashville where
she and her husband stayed for I week. There is no
evidence that she went back to the plant on her return
home.
In harmonizing the above testimony, I find that Foster
was not specifically told that she could have her week off
although nothing was said to her that she would not be able
to have the week off. That the time off had not been firmly
granted is shown by her admitted request as to whether she
should bring the matter to Traylor's attention. In addition,
the statement made in Foster's affidavit, i.e., that Manning
"thought" the time-off request would be "okay" is more
compatible with the testimony of Pressley, Manning, and
Smith and with management's lenient reaction to time-off
requests in other instances, which appear in this record and
have been discussed supra in section II, B. For these
reasons, I also credit Manning's testimony that she said it
would be a good idea to see Traylor who had just been
named plant manager. I also believe it likely that this
conversation took place in early June as Foster stated in
her affidavit because it was given at a closer point in time
to the events herein. Consequently, it is not unusual that
Traylor's request to see Foster and to finally and firmly
deny the time-off request occurred on Monday, June 7, the
day before she was scheduled to leave for Nashville.
men were in the office the Friday Simpson spoke to Tilghman. Pressley
admitted he was going to help her try to find a babysitter, and there is other
testimony that supervisors have almost daily contact with the plant
manager.
9 Her procedure for taking time off on these occasions was to call in and
notify a secretary or a supervisor. She would call in the day before if it were
for personal business, or the day of an illness if it was for this purpose. She
was also off for I month because of illness in early 1976.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find based on the above that Foster was not
specifically told that her time-off request had been granted.
Prior to June 1976, Foster had been absent from work for
funerals, illness, and long weekend vacations. She would
ask for time off in advance or, in the case of illness, call in
on the same morning. She was never refused time off.
Foster's workload at the plant the weeks immediately
before June 7, 1976, was average and she was not working
overtime. Foster was a highly regarded employee who had
been offered but refused a job as assistant supervisor. She
had been praised for her work and was assigned special
work.
E. Discussion and Concluding Findings
1. Tilghman
In view of the evidence I have discussed above in section
II, B, I find that Respondent had a lax and liberal policy
concerning absences and time off. Up until the election of
April 29, 1976, time-off requests were routinely granted for
all employees for various reasons. I also find that, on the
record in this case, Respondent treated time-off requests
from, and absences of, union activists Erma Chapman,
Bernice Foster, and Mable Tilghman differently after the
election of April 29, 1976, than time-off requests from, and
absences of, other employees who were not union activists.
In view of this disparate treatment, as well as other
evidence surrounding Tilghman's discharge, I find that
Respondent discharged Tilghman not for cause, as it
contends, but because of her union activities as General
Counsel contends.
Respondent's antiunion posture and knowledge of
Tilghman's union activity is undisputed. Tilghman had
been the vice president of the organizing committee and
was identified as a leading union adherent by virtue of her
presence at the representation case hearing on behalf of the
Union. She was a highly regarded veteran employee whose
discharge occurring shortly after the April 29 election was
inexplicable except by reference to her leadership role in
the union campaign. It is unlikely that such an employee
would be discharged for taking time off to care for a 2-
year-old child in circumstances where she notified Respon-
dent of her absence in advance and she was not warned
that discharge or discipline would occur if she took the
time off.
The reason advanced for Tilghman's discharge-insu-
bordinate refusal to do assigned work-was inaccurate.
The testimony clearly shows that Tilghman was ostensibly
discharged for taking a week off from work to take care of
her child. The credited testimony indicates that Tilghman
had notified management officials of her need to take the
time off and her inability to get a babysitter. The credited
testimony also shows that Respondent's officials did not
tell Tilghman that she could not have the time off or that
she would be disciplined for taking the time off. In view of
the overwhelming testimony concerning Respondent's lax
time-off policy, as well as the credited testimony concern-
ing the conversations management officials had with her,
Tilghman had every reason to believe that her time-off
request had either been granted or would be treated as
excused without penalty or discipline. In these circum-
stances, Respondent's recourse to insubordination as its
reason for terminating Tilghman warrants the inference
that it knew it needed to buttress its reason for the
discharge, and is further evidence that neither this reason
nor her absenteeism was the real reason for its action.
The evidence shows that Respondent treated Tilghman
differently than it treated other employees who were absent
for extended periods for various reasons in 1976. Many of
these other employees were not union supporters. The
evidence also shows in the face of a lax and liberal time-off
policy that Respondent denied time-off requests of union
supporters Chapman, Foster, and Tilghman. Except for
two employees who were warned, none of the other
employees were disciplined for taking time off which, in
many cases, was unexcused. Tilghman's uncontradicted
testimony also indicates that Traylor recognized the liberal
time-off policy was being tightened in Tilghman's case,
when he responded to her statement that others had taken
time off with no problem with the statement that in other
cases this was done for important business. Respondent
has not shown that other absences that were excused or
permitted were limited to important business in any
manner different than Tilghman's need to care for her 2-
year-old child. Respondent's discharge of Tilghman in
these circumstances shows disparate treatment explainable
only by reference to her recent leadership role on behalf of
the Union.
Tilghman's discharge is unusual in other respects.
Respondent has a warning notice system which was in
effect in 1976 providing for first and second warning
notices for a number of offenses, including absence. The
record shows that warnings were issued to employees for
absences in May and August 1976. Carmon was issued a
warning for "excessive absenteeism, did not call in" and
employee Person was warned for taking a week off in late
May 1976; she was excused for only I day. Tilghman was
not issued a warning before her discharge and had never
been issued a warning for absenteeism in the past. Pressley
testified that warnings were issued before discharges in
some cases and, in view of the notices issued to Person and
Carmon, I must conclude that discharge for absenteeism
was preceded by warning notices. Thus, the failure to issue
either a verbal or written warning to Tilghman, and instead
her discharge for what the evidence shows was a nonob-
jected-to absence, of which she notified management in
advance, is strong evidence that her discharge was for other
reasons. The inference of illegality becomes conclusive
when I consider Pressley's testimony that in his 7 months
as plant manager he can only remember discharging
employees for excessive absenteeism. Tilghman's case does
not fall in this category. In the face of this evidence and the
failure to warn Tilghman, it is clear that Respondent's
peremptory discharge of Tilghman was not based on her
taking a week's absence in June 1976, but rather on her
activities on behalf of the Union.
At the hearing it appeared that Respondent sought to
defend Tilghman's discharge on the ground that it needed
Tilghman because she was a double-needle pocket setter at
that time. Although two of Respondent's witnesses testified
that this was the case, I cannot accept this testimony or
Respondent's defense in view of the credited testimony
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LISA'S, INC.
herein. Manning testified that there were three or four
experienced double-needle machine operators present the
week of Tilghman's absence who were not working on
double-needle machines. Manning also testified that the
shifting of employees from one department to another
occurred "fairly often" and there is testimony, which I
credit, that working on the double-needle machine was
little different from working on a regular pocket-setting
machine. Moreover, I credit Tilghman's testimony, which
was corroborated to a certain extent by Foster, that her
workload at the time was normal. That she was not
particularly needed at this time is also confirmed by the
testimony that employee Person, a pocket setter, was
absent the week before and, the same week Tilghman was
out, employee Reel was off for 3 days. In these circum-
stances, Respondent was not shown that there was any
greater need for Tilghman to report to work during the
week of June 7 than there was for numerous other
employees who were granted time off during 1976 with no
difficulty.
Accordingly, I find and conclude that Respondent's
discharge of Mable Tilghman was based in whole or in part
on her activities on behalf of the Union and thus violated
Section 8(aX3) and (1) of the Act.
2. Foster
I find that the General Counsel has not shown by a
preponderance of the credited evidence that Respondent
constructively discharged employee Bernice Foster because
of her union activities. The evidence tending to support the
General Counsel's case is that Foster was a veteran and a
highly regarded employee who had been a known union
activist. Also tending to support the General Counsel's
position is that Foster was subjected to a denial of her
time-off request in the face of evidence of disparate
treatment against leading union supporters when it came to
time-off requests. However, the flaw in the General
Counsel's case is that he has not convincingly shown that
Foster's admitted resignation was a constructive discharge
caused by Respondent making her continued employment
intolerable so as to force her to quit her job.
As I view the evidence, Foster had not been granted time
off for her Nashville vacation which would have been in
addition to her normal vacation time. The matter was left
unresolved until the Monday before she was to leave when
she spoke to Plant Manager Traylor, who told her she
could not be spared and could not have the time off.
Although the denial of the time off for Foster was unusual
and perhaps discriminatory in view of Respondent's lax
policy on absences and the extensive grants of time off for
various reasons, including vacations, to other employees
who were not so active in the Union, the uncontradicted
evidence was that Foster quit her employment. When
Foster quit there was no threat that her taking the
unexcused absence would have resulted in her discharge.
0o The cases cited by General Counsel are readily distinguishable on
their facts. In all of those cases, the employer by his discriminatory action
and harassment of prounion employees made continued employment
intolerable or forced the employee to quit his or her job. The standard is
necessarily an objective one since any other guide would permit the
abdication of a personnel decision to the whims and sensitivities of
Her resignation came I week before Tilghman's discrimi-
natory discharge, the first manifestation of Respondent's
discriminatory treatment of union supporters with respect
to time-off requests. However, in view of Respondent's
otherwise permissive and unpredictable policy on time-off
requests, I cannot presume that she would have been
discharged if she had gone on the trip. Thus, even assuming
that the denial of Foster's time-off request was discrimina-
tory, I do not belive it presented such undue harassment
that continued employment would have been intolerable.
Although Foster may have suffered some monetary loss
due to the denial of time off there is no firm evidence,
except her own conclusionary testimony, that the amount
was not refundable. Foster's husband could still go on the
trip and utilize the reservations. Even had the discriminato-
ry denial of time off been alleged, litigated, and proved, the
appropriate remedy would have included at most the
reimbursement of nonrefundable expenses for the trip. But
this does not mean that Foster could quit her job and insist
on taking the trip. For although the denial of time off may
have made her trip inadvisable, it did not make her job
intolerable. As the Board has stated, "the mere existence of
unlawful conditions, which do not require employees to
take affirmative action in derogation of their rights [is not]
sufficient justification for considering abandonment of
employment as a constructive discharge." Walker Electric
Company, 142 NLRB 1214, 1215 (1963). See also Central
Credit Collection Control Corp. d/b/a Federal Collectors,
201 NLRB 944, 949-950 (1973); Action Wholesale, Inc.
d/b/aA. L French Co., 145 NLRB 627, 628 (1963).'°
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCLUSIONS OF LAW
I. By discharging employee Mable Tilghman because
of her union activities, Respondent engaged in an unfair
labor practice within the meaning of Section 8(aX3) and (1)
of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not otherwise violated the Act.
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of unlawful dis-
charge, in violation of Section 8(aXI) and (3) of the Act.
This will require Respondent to cease and desist from the
unfair labor practice found, to offer reinstatement with
backpay to Mable Tilghman, and to post a notice to that
effect. In accordance with the usual requirements, rein-
statement shall be to Tilghman's former position or to a
substantially equivalent position, without prejudice to her
seniority and other rights and privileges. Tilghman shall be
made whole for any loss of earnings she may have suffered
by reason of the discrimination against her, by payment to
individual employees. In the instant case, although the denial of a time-off
request presented a dilemma for Foster. it was a personal dilemma which
did not make continued employment intolerable; she chose to go on a
vacation and resigned her job in circumstances which do not demonstrate
that she was forced by Respondent to make that choice.
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her of a sum of money equal to that which she normally
would have earned from the date of the initial discrimina-
tion to the date she is offered reinstatement by Respon-
dent, less net earnings, if any, during such period, to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The Respondent, Lisa's Inc., Grifton, North Carolina, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, support for, or activi-
ties on behalf of, Local 361, Tobacco Workers Internation-
al Union, AFL-CIO, or any other labor organization, by
discriminating in any manner against any of its employees
in regard to their hire and tenure of employment, or any
term or condition of employment, because of their union
membership, sympathies, or activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Mable Tilghman immediate and full reinstate-
ment to her former job or, if such position no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her
whole for such loss of pay she may have suffered as a result
of Respondent's discrimination against her in the manner
set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its premises in Grifton, North Carolina, copies
of the attached notice marked "Appendix."' 2 Copies of
said notice, on forms provided by the Regional Director for
Region II, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED, that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
It In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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."
APPENDIX
NOTIncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence, the National Labor Relations Board found that
we, Lisa's Inc., violated the National Labor Relations Act,
and ordered us to post this notice.
The Act gives all employees these rights:
To form, join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest or
protection
To refuse to participate in any or all of these
things.
WE WILL NOT discharge you or otherwise discrimi-
nate against you because you have engaged in orga-
nizing activity for, or are a member or supporter of,
Local 361, Tobacco Workers International Union,
AFL-CIO, or any other union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act.
WE WILL offer Mable Tilghman immediate and full
reinstatement to her former job or to ajob substantially
equivalent, without prejudice to her seniority or other
rights and privileges, and we WILL make her whole for
any loss of pay she may have suffered because we
discharged her, with interest at the rate of 6 percent per
annum.
LISA'S INC.
498