Spotlight Company, Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1971

188 N.L.R.B. 774 (N.L.R.B. 1971)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spotlight Company, Inc., and International Ladies'
Garment Workers ' Union, AFL-CIO. Case 26-CA-
3535
March 3, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 24, 1970, Trial Examiner Harry R. Hinkes
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was en-
gaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal as to those allegations.
Thereafter, the Respondent, the Charging Party, and
the General Counsel filed exceptions to certain por-
tions of the Decision, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
1. Contrary to the Trial Examiner, we find, in agree-
ment with the General Counsel's exception, that the
Respondent violated Section 8(a)(3) and (1) of the Act
by discriminatorily refusing to reinstate employee
Wilma Davis after her leave of absence had expired
on September 1, 1969.
Employee Davis was first hired in February 1964,
worked about 6 months, returned to the plant in 1966,
again quit after working about 8 months, and again
returned and was employed for the third time in Sep-
tember 1967. This time she worked until about the
middle of May 1969, when she asked for and obtained
a leave of absence for medical reasons. Meanwhile, in
April 1969, the Union had started its organizational
campaign at the plant. Before going on leave, Davis
discussed the Union with some of the other employ-
ees, attended several union meetings, and signed a
union authorization card. While still on leave, she
visited the plant in June and inquired about her vaca-
tion pay. Plant Manager Leiby refused to give her the
vacation pay on the ground that she had not worked
or would not work a sufficient length of time to entitle
her to it. At this time, she also presented a note to
Leiby from her doctor to the effect that she would be
off work for medical reasons until September.
Employee Davis then took up her claim with the
state labor board, which prevailed upon Leiby to re-
view the matter and pay Davis her vacation pay.
Thereafter, on July 23, 1969, Respondent was served
with the Union's charge in Case 26-CA-3396, alleg-
ing, among other things, that Respondent denied Wil-
ma Davis and seven other employees their vacation
benefits because of their union "membership and ac-
tivities." Davis had already received her vacation pay
when Respondent received the charge, and the charge
as to Davis was withdrawn and never made the basis
of a formal complaint. On September 1, Davis report-
ed to the plant with a doctor's release for work. Leiby
called her into his office and asked her to sign the
following statement which he had prepared:
I, Wilma Davis, hereby agree within two weeks
to make as much or more than my fellow-worker
on a like operation since I am experienced. If not,
I will leave the employment of Spotlight Co.,
Inc., no questions asked because of my inability
to do so.
Although the Examiner does not note the testimo-
ny, Leiby testified that during this interview he told
Davis that he did not like the way she had gone about
getting her vacation pay. Davis asked and was permit-
ted to take the statement home for her husband's
review. The following day, Davis told Leiby at the
plant that she did not think it necessary for her to sign
the statement. Leiby replied that she would have to
sign it or go home because she had not been making
production before she left. Davis refused to sign and
left the plant.
Davis' production quota had been $12.80 per day
on a piecework basis, but her average earnings had
been $8 and $10 per day. Leiby testified that her
production was "below average . . . on that same
particular operation." There is no evidence that Davis
had ever been reprimanded for low production. Leiby
also testified, when asked why he had insisted that
Davis sign the statement, that he was "building a
record for future use." Leiby had never before asked
an employee to sign such a statement, although he
testified that he had obtained oral agreements of this
nature from other employees.
We find, in agreement with the General Counsel
and the Charging Party, that the evidence clearly es-
tablishes a violation of Section 8(a)(3) and (1). In her
final period of employment, Davis had worked for 20
months without having been reproved for her failure
to meet the production quota. It was only after her
complaint about vacation pay to the state labor
188 NLRB No. 114
SPOTLIGHT COMPANY, INC.
board, and Respondent's receipt of an unfair labor
practice charge concerning and the same matter and
referring to Davis' union "membership and activi-
ties," that Leiby predicated continuance of her em-
ployment on an improvement in her production.
While Leiby's expressed concern, in his interview with
Davis, about the manner in which she had gone about
collecting her vacation pay can, as Respondent as-
serts, be construed as a reference to her resort to the
state labor board, it is clear that the appearance of
Davis' name in an unfair labor practice charge must
have compounded Leiby's displeasure. The charge, of
course, furnished Respondent with knowledge of Da-
vis' association with the Union, and the record else-
where-in the case of discriminatee Bryan-supports
a conclusion that Leiby kept abreast of the identity of
employees named in the charges filed by the Union.
Considering together this knowledge; Leiby's testimo-
ny that he intended to use the statement for "building
a record for future use"; the absence of any previously
demonstrated concern about Davis' production;
Leiby's stated dissatisfaction with Davis' efforts at
collecting vacation pay; and the unprecedented na-
ture of the written statement upon which Leiby condi-
tioned Davis' return, as well as the Respondent's
generally intense hostility to the union campaign as
established in this case and in Spotlight Company, Inc.,
181 NLRB No. 94, we conclude that the evidence
preponderates in favor of a finding that the
Respondent's requirement of a written statement
from Davis was a discriminatory act based on Davis'
union activities, in violation of Section 8(a)(3) and (1)
of the Act.'
2. The Trial Examiner further concluded that Re-
spondent discharged Floorgirl Mattie Dodson on Au-
gust 19, 1969, in violation of Section 8(a)(3) and
8(a)(1) of the Act. In reaching this conclusion, the
Trial Examiner determined that Dodson was not a
supervisor within the meaning of Section 2(11) of the
Act. We agree with Respondent's contention that
Dodson was a statutory supervisor, and for that rea-
son we shall dismiss this aspect of the complaint.
Dodson was one of seven or eight floorgirls em-
ployed by Respondent, each having assigned to them
some 20-25 sewing machine operators. A written list
of instructions was given to Dodson when Respon-
dent first hired her as a floorgirl in March 1968. The
list shows that floorgirls are required to perform such
functions as keeping work at the machines, being sure
that finished work does not accumulate, keeping their
sections neat, inspecting their operators' work, ex-
1 Chairman Miller disagrees with the conclusion of his colleagues that the
treatment accorded to Davis was violative of the Act For the reasons given
by the Trial Examiner, and because the Trial Examiner appears to have
believed Respondent 'siustification of its actions relating to Davis, Chairman
Miller would adopt the Trial Examiner 's recommendation of dismissal
775
plaining timework to the operators, and checking ma-
chines at the end of the day. Perhaps the written du-
ties most relevant to supervisory status are "See that
your operators are put on other machines or other
jobs if their machines are down for any length of
time," "Keep check on operators that they do not
spend excessive time in the Ladies Room or away
from machines for other reasons," and "See that all
Goal Sheets are filled out properly, all bins are
cleaned at least once a week. See that the machines
are cleaned, and covered when not in use (Have the
operators do this)."
Aside from these written instructions, the plant
manager and Dodson's immediate supervisor, Floor-
lady Sample, testified that although the floorgirls can-
not hire, fire, or promote, they have the authority to
reprimand employees and to recommend transferring
them if they cannot do the work. The record, however,
does not show that Dodson personally took either of
these actions in the period prior to her discharge in
August 1969, and the Trial Examiner concluded from
this that the bare assertion that she had such supervi-
sory characteristics is insufficient.
There was also testimony from the floorlady that
Dodson, as well as the other floorgirls, selected em-
ployees for layoff when a slowdown in work occurred.
However, because of evidence that the Respondent
had a policy of rotating the layoff of employees "so
that the employees would have an approximately
equal amount of work time," the Trial Examiner con-
cluded that this power to select for layoff involved no
independent exercise of discretion, even though this
distribution of work was not formalized and appar-
ently depended on the floorgirls' recollection of prior
layoffs. Another floorgirl, Hoover, testified that the
applicable standard was "to be as fair as possible."
Hoover also testified that she was one who picked the
employees in her section to perform the overtime
work. The record further shows that Dodson, along
with the other floorgirls, attended management meet-
ings. The floorgirls received $1.75-$1.90 an hour; the
operators received piece rates, with an hourly min-
imum of $1.60.
In deciding that Dodson was not a supervisor, the
Examiner stated, "The issue before me, however, is
not whether all floorgirls are supervisors, but whether
Mattie Dodson was a supervisor. Indeed, it appears
that some floorgirls are or were supervisors. I note, for
example, that Floorgirl Olive Hoover testified that she
transferred operators, chose the layoffs, and assigned
the work to the operators? Hoover made it clear, how-
ever, that her observations were applicable to her own
section and that she did not know how [Floorlady]
2 Except for the first, the record shows that Dodson also performed these
functions
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sample handled the other sections" (emphasis sup-
plied).
We think that the distinction thus drawn by the
Trial Examiner between Dodson and the other floor-
girls is untenable . The floorgirls generally have the
supervisory authority to assign work, to maintain or-
der, to recommend discipline, to transfer operators
when necessary, and to select operators for overtime
and layoff. While the latter powers are supposed to be
exercised in accordance with the general company
policy of fair distribution of work, the selection ap-
pears to be left to the floorgirls' memories and is,
consequently, conceivably subject to their personal
prejudices. There is nothing in the record to show that
the floorgirls do not all possess the same inherent
powers and responsibilities. Similarly, there is no evi-
dence establishing that Dodson had been denied the
authority normally vested in the other floorgirls. Sim-
ply because Dodson may not have had the occasion
to exercise certain inherent supervisory powers during
her tenure as a floorgirl is not, we think, a sound
reason for distinguishing between Dodson and the
remaining floorgirls, as the Trial Examiner has done.
Accordingly, we conclude that Dodson was a supervi-
sor at the time of her discharge. Since we do not find
any special factors in this case which might support a
conclusion that the discharge of Dodson in her capac-
ity as a supervisor was nonetheless violative of Section
8(a)(1), cf . Jackson Tile Mfg. Co. v. N.L.R.B., 272 F.2d
181 (C.A. 5); N. L. R.B. v. Talladega Cotton Factory,
213 F.2d 208 (C.A. 5), we shall dismiss the complaint
allegation pertaining to Dodson.
Upon the basis of the foregoing findings and upon
the record as a'whole, we shall substitute the following
conclusions for the Trial Examiner' s first, second, and
fifth Conclusions of Law:
1. Mattie Dodson was a supervisor for the Respon-
dent within the meaning of Section 2(11) of the Act.
2. Respondent's discharge of Mattie Dodson on
August 19, 1969, was not violative of the Act.
5. Respondent imposed an improper condition
upon the reinstatement of Wilma Davis following her
leave of absence which ended on September 1, 1969,
because of her union activities, in violation of Section
8(a)(3) and (1) of the Act.
THE REMEDY
We have fouund in agreement with the Trial Exam-
iner that the Respondent engaged in conduct violative
of Section 8(a)(3) and (1) of the Act and, accordingly,
we adopt his remedial recommendations in that re-
gard, except insofar as they provide a remedy for the
discharge of Mattie Dodson. We have also found,
contrary to the Trial Examiner, that the Respondent
additionally volated Section 8(a)(3) and (1) by dis-
criminating against employee Wilma Davis. Accord-
ingly, we shall order the Respondent to reinstate Wil-
ma Davis with backpay for lost earnings together with
interest thereon at 6 percent per annum, as more fully
set forth in The Remedy section of the Trial
Examiner's Decision with respect to employees Sewell
and Bryan.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, as modified below, and
hereby orders that the Respondent, Spotlight Compa-
ny, Inc., Ashdown, Arkansas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as so
modified:
1. In paragraph 2(a) of the Recommended Order,
delete the name "Mattie Dodson" and substitute
therefore the name "Wilma Davis."
2. In footnote 4 of the Trial Examiner's Decision,
substitute "20" for "10" days.
3. Substitute the attached Appendix for the Trial
Examiner's Appendix.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage either membership in
the Union or concerted activities for the purpose
of mutual aid or protection by discharging or
otherwise discriminating against you because
you are engaged in union or concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights to self-organization, to form, join, or
assist the International Ladies' Garment Work-
ers' Union, AFL-CIO, or any other labor organi-
zation, to bargain collectively through
representatives of your own choosing or to en-
gage in other concerted activity for the purpose
of collective bargaining or other mutual aid or
protection or to refrain from any such activity.
WE WILL offer Wilma Davis, Lydia Marie Se-
well, and Polly Bryan immediate and full reins-
tatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss
of pay they may have suffered because of the
discrimination against them.
SPOTLIGHT COMPANY, INC 777
All our employees are free to become or refrain
from becoming members of the above-named Union
or any labor organization.
SPOTLIGHT COMPANY, INC
(Employer)
Dated By
(Representative) (Title)
Arkansas with a plant and place of business located in
Ashdown, Arkansas, where it is engaged in the business of
manufacturing lingerie. During the year preceding the is-
suance of the complaint Respondent in the course and con-
duct of its business operations purchased and received at its
Ashdown, Arkansas, plant goods and materials valued in
excess of $50,000 directly from points outside the State of
Arkansas and during the same period Respondent sold and
shipped from its Ashdown, Arkansas, plant products valued
in excess of $50,00 directly to points located outside the
State of Arkansas. The complaint alleges, the Respondent's
answer admits, and I find that the Respondent is now and
has been at all times material herein an employer enga ed
in commerce within the meaning of Section 2(6) and (7f of
the Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 746 Federal Office Building, 167
North Main Street, Memphis, Tennessee 38103,
Telephone 901-534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES , Trial Examiner : The original charge in
this proceeding was filed by International Ladies' Garment
Workers' Union , AFL-CIO, hereinafter referred to as the
Union , on November 26, 1969 , and served on Spotlight
II THE LABOR ORGANIZATION
The complaint alleges, Respondent's answer admits, and
I find that the Union is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
On March 6, 1970, the Acting Regional Director for Re-
gion 26 of the National Labor Relations Board directed an
election to be held among the production and maintenance
employees of this Respondent pursuant to a petition filed by
this Union.' This finding of the Director was not appealed
to the Board by the Union, but counsel for the Respondent
concedes that neither the General Counsel nor the Union
are necessarily bound by the Director's findings in this pro-
ceeding on the issue of whether employee Dodson, a floor-
Company, Inc., hereinafter referred to as the Respondent or
Employer, on or about the same date. Pursuant to this i Case 26-RC-3693. In his decision the Acting Regional Director noted
charge the complaint was issued on January 2, 1970, alleg- that the parties had disagreed as to the status of eight floorgtrls in the sewing
trig that the Respondent had committed unfair labor prac- department The employer contended that they should be excluded from the
tice5 within the meaning of Section 8(a)(1) and (3) of the unit as supervisors while the petitioner contended that they should be mclud-
Act, in refusing to recall employees PollB Bryan and Wilma
ed as rank-and-file employees The Director found the eight floorgirls were
g y supervisors within the meaning of the Act and excluded them from the unit
Davis. A first amended charge was filed by the Union on The sewing department has 152 machine operators who work in sections
February 18, 1970. This charge together with an ranging in size from 20 to 24 operators There is one floorgirl assigned
amendment to the complaint was served on the Respondent to each section The floorgirls distribute work as evenly as possible
on or about February 19 1970, alleging that the Respondent among the operators, check and report the production of the operators,
had committed unfair labor practices in violation of Section consult with operators on how to bring up low production and advise
8(a)(1) and (3) of the Act in discharging employees Marie the sewing department forelady of any failure on the part of an operator
Sewell and Mattie Dodson. By answer duly filed Respon- to keep up production Additionally, they assign operators from their
dent denied the alleged discharges as well as the alle ed
regular machines to other machines where vacancies occur and act
jointly with other floorgtrls to shift operators from one section to another
refusals to recall an denied the commission of any unfair as the need arises They also assure that layoffs are conducted by rota-
labor practices. non, distribute pay checks to the operators, schedule operators for
A hearing was held before me in Ashdown, Arkansas, on overtime and attend management meetings with the plant manager and
April 7 and 8, 1970, at which all parties were represented the department forelady where they make appraisals of operators and
and afforded full opportunity to participate, examine wit- join in discussing production and repairs They have the authority to
nesses , and adduce relevant evidence. Briefs have been filed orally warn operators, about excessive talking and staying away from
by counsel for each of the parties and have been given their machines too long The operators are paid on a piecework basis,
careful consideration.
while the floorgirls are paid an hourly rate ranging from $1.75 to $1.90
Upon the entire record in this I make the
per hour Because they work on piecework, some operators who have
proceeding, high productivity receive pay in excess of their floorgirl. The operators
following: and floorgirls punch a time clock, receive the same vacation, insurance
FINDINGS OF FACT
I JURISDICTION
Spotlit Company, Inc., is now and has been at all times
material erein a corporation doing business in the State of
and other fringe benefits The floorgtrls do not possess the authority to
hire or fire employees and when they recommend the discharge of an
operator because of low production, the department forelady makes an
independent investigation The above circumstances, including the ab-
normally high ratio of employees to supervisors that would exist if the
floorgirls were found not to be supervisors, lead to the conclusion that
they possess the authority responsibly to direct the work of employees
under them
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
girl, was a supervisor within the meaning of the Act.
On March 17 , 1970, the Board issued its Decision in
Spotlight Company, Inc., 181 NLRB No. 94 , wherein it
adopted the findings, conclusions , and recommendations of
Tral Examiner Melvin Pollack on a complaint against said
Company pursuant to charges filed by said Union. In his
decision Trial Examiner Pollack recommended the issuance
of a broad cease-and-desist order , having found that the
Respondent had violated Section 8 (aXl) of the Act in a
variety of ways interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed them in
Section 7 of the Act . Respondent's unlawful conduct was
found to have started immediately after the Union had
handbilled Respondent's plant in April 1969 and to have
continued into May 1969.
On April 24, 1969, the Union sent the Respondent a
telegram listing the names of 32 employees who were mem-
bers of the Union's organizing committee and, on May 2,
1969, supplemented the telegram with a letter adding seven
additional names of employees as members of the Union's
organizing committee . Included in these lists of names were
the names of employees Mattie Dodson , Polly Bryan, and
Lydia M. Sewell , the last of whom is variously referred to
as Lydia Sewell , Marie Sewell , and Lydia Marie Sewell.
B. Mattie Dodson
1. The supervisory issue
Dodson was hired as a floorgirl in March 1968. Accord-
ing to Respondent General Manager Paul Leiby, floorgg^^irls
were given a written description of their job duties wl ►en
hired. This job description states:
Keep work at machines at all times . If the operator is
to be changed, have the work, thread, etc., there in
advance. Keep them on one job as long as possible.
Keep finished work moved as it is done. Do not let it
pile up in the operators way.
Match all trim, yokes, etc., for your operators. Stack
their work in size ranges for them.
Keep all empty boxes moved to the Cutting Depart-
ment. Keep your section cleared and as neat as possi-
ble.
Keep all work separated, so you know where every
style is.
See that your operators are put on other machines or
other jobs, if their machines are down for any length
of time.
Keep check on operators that they do not spend exces-
sive time in the Ladies Room or away from machines
for other reasons.
See that all Goal Sheets are filled out properly, all bins
are cleaned at least once week. See that the machines
are cleaned, and covered when not in use. (Have the
operators do this.)
At the end of the day, check all machines and make
sure there is work to start on the next morning. Ask the
operators to turn machines off at the end of the day.
Do not visit with your operators or other floor girls.
Do not carry messages for your operators unless it
pretains [sic] to getting rides during the overtime peri-
ods.
If your operators need a part replaced, get it as quickly
as possible and put it in the correct bundle.
Please see that no operator gets up to get her work or
has to wait for it.
See that all thread and lace is used off the spools before
the operator discards it.
Check your operators work, also check to see if the
number is on the card and the card on the bundle.
All time work given to the operators must be explained.
The hour started and stopped on time work should be
listed on the daily work sheets.
NO TIME WORK is given an operator for repairing
her own work.
If a ticket is missing from a bundle a VOID ticket from
THAT bundle will be accepted if it contains the opera-
tion, style number, price and signed by a service or
floor lady.
Leiby testified that when the floorgirls were hired and
from time to time thereafter they were reminded that they
were supervisors. They were not, however, authorized to
hire, fire, promote, or discharge other employees on their
own initiative. Counsel for the Respondent argues that
Dodson as a floorgirl could effectively recommend the Kir-
ing of an applicant citing the fact that she had recommend-
ed the employment of her sister as a floorgirl. Leiby
admitted, however, that there was considerable family rela-
tionship at the plant among the employees and other em-
ployees had recommended their immediate relatives be
hired just as Dodson did. Such recommendations do not
establish supervisory activities. See Edinburg Mfg. Co., 164
NLRB 121, 123. Leiby also stated that Dodson as a floorgirl
had authority to reprimand employees. He admitted, how-
ever, that he knew of no instance where Dodson had done
so nor could Lucille Sample, Dodson' s immediate supervi-
sor, recall any occasion in which Dodson disciplined an
employee. Similarly, Sample could not recall Dodson ever
recommending that an employee was not capable of work
in her section. Sample also testified that floorgirls were
"supposed to speak to ... [employees who are derelict in
their duties] and see that they don't do it, that they don't
spend too much time away from their machines or visiting."
However, she could not recall any occasion in which Dod-
son had disciplined an employee. Sample's testimony to the
effect that floorgirls recommend transfering employees who
are not capable of doing the work and discipline offending
operators would appear, therefore, to be inapplicable to
Dodson. The absence of any evidence that Dodson exer-
cised the alleged supervisory authority should negate the
bare assertion that she, in fact, possessed this authority.
Security Guard Service, 154 NLRB 8, 10.
A close examination of the written job description given
the floorgirls when they were hired fails to reveal duties that
would properly be supervisory in nature by requiring the use
of independent judgment. Supervisor Sample testified, how-
ever, that this job description just "shows ... the work
schedule." Sample went on to testify that Dodson selected
employees to be laid off when Sample notified her of a
slowdown in work. At first blush this would appear to be
SPOTLIGHT COMPANY, INC. 779
supervisory work. It appears, however, that it was company
policy to rotate the layoff of employees so that the employy-
ees would have an approximately equal amount of work-
time . The selection of an employee to be laid off, therefore,
instead of requiring independent judgment by the floorgirl,
merely required some recollection of the order in which the
rotation was carried out.
It thus appears that the duties of floorgirls described by
the Acting Regional Director at Case 26-RC-3693 are not
entirely applicable to Mattie Dodson. Specifically, it appears
that Dodson did not advise her floorlady of any failure on
the part of an operator to keep up production nor did she
act jointly with other floorgirls to shift operators as the need
arose. The Acting Regional Director also relied on the ab-
normally high ratio of employees to supervisors that would
exist if the floorgirls were found not to be supervisors. I do
not disagree. If all the floorgirls were found not to be super-
visors, Supervisor Sample would be the immediate supervi-
sor of some 150 or more operators. The issue before me,
however, is not whether all floorgirls are supervisors but
whether Mattie Dodson was a supervisor. Indeed, it appears
that some floorgirls are or were supervisors. I note, for
example, that Floorgirl Olive Hoover testified that she
transferred operators, chose the layoffs, and assigned the
work to the operators. Hoover made it clear, however, that
her observations were applicable to her own section and
that she did not know how Sample handled the other sec-
tions . It follows, therefore, that the brief of counsel for the
Respondent misses the mark in relying heavily on Hoover's
testimony regarding her work duties as floorgirl.
I conclude that a preponderance of the evidence submit-
ted in this proceeding indicates that the duties of Mattie
Dodson were routine and perfunctory and did not require
the exercise of independent judgment. Moreover, her au-
thority did not encompass activities which the Act defines
as supervisory nor is there evidence that she could effective-
ly recommend such action by others. Nor does Dodson's
attendance at management meetings of floorgirls establish
her supervisory status. Sample described the meetings as
discussions of "production and just the general things that
they had to know about." There is no suggestion of manage-
ment decisions in such discussions, nor an indication of the
extend of their participation. See Edinburg Mfg. Co., supra.
2. The termination
Dodson signed a union card and became a member of the
Union's organizing committee around April 1969. The Re-
spondent was notified of her participation. Dodson attended
several meetings of the Union and obtained the signatures
of four or five employees to union cards.
General Manager Leiby testified that he told his floorgirls
not to engage in union activities. In addition he told Dodson
separately that she was to stay away from union activities.
According to Dodson, Leiby told her that he was going to
get rid of the girls that had started the Union, especially
Mrs. Altenbaumer. He added that he wanted Dodson to get
on the Company's side and request her card back. Although
Leiby denied saying that he intended to get nd of the em-
ployees who had started the Union and requesting Dodson
to et her union card back I credit the testimony of Dodson.
fn June Leiby ordered Dodson to tell Altenbaumer she
2 The Act at Section 2(11) defines "supervisor" as "any individual having
authority , in the interest of the employer , to hire, transfer , suspend , layoff,
recall, promote , discharge , assign , reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances , or effectively to
recommend such action
had been discharged. Although Dodson protested that her
job duties did not include transmission of a discharge deci-
sion from management to an employee she nevertheless
complied with these instructions. Altenbaumer' s discharge
has been found to be in violation of Section 8(a)(3) of the
Act in the decision of the Board cited earlier (Case 26-CA-
3396).
In August 1969 Supervisor Sample decided to transfer
Dodson from her section to another section and to bring in
the other section's floorgirl (Madden) to work in Dodson's
former section. The planned move was told to Madden but
not to Dodson. On August 19 a meeting of the floorgirls was
held at which Respondent President Seiff announced a 5-
cent-per-hour raise for the floorgirls. Sample announced the
transfer of Dodson and Madden.
Immediately after the meeting Dodson went into Leib 's
office and told him of her dissatisfaction with the transfer.
She told him that she did not know if she would keep on
working and Leiby admits that she did not tell him she was
quitting. As Dodson left Leiby's office she met Sample and
complained to her that Sample should have told her of the
transfer before announcing it publicly at the meeting. She
asked Sample for an apology and, according to Dodson,
Sample said, "I am sorry. Dodson retorted, "You are
darned right, you are." According to Sample, however, Dod-
son added, "You are dirt. You are trash." Sample further
testified that Dodson followed her around, talking in a loud
voice and disturbing the whole section. According to Dod-
son, however, she merely told Sample that she did not know
"but that I was going to quit." She then asked Sample how
much she would have if she took the new section to which
Sample replied, "You won't have any because you have
already quit."
Sample testified that after Dodson had called her "dirt"
and "trash" she reported the incident to Leiby and Presi-
dent Seiff. Later Dodson came to her once again and told
her that she had changed her mind and was not quitting,
whereupon Sample went back to Leiby's office and reported
the second conversation. Between these two conversations
with Dodson, Sample had a conversation with Floorgirl
Betty Hill who told her that she heard Dodson say "the
bitch," and "the sorry thing" as she left the meeting. Hill
admitted, however, that she did not know to whom Dodson
was referring. In further explanation Hill testified that any
word that is used with anger is bad and that it was not the
language which Hill deemed improper but Dodson' s tone of
voice. She admitted further, however, that other operators
have used angry tones of voices but that she had never
reported such incidents to management.
Leiby also testified that President Seiff and Respondent
Engineer Levine told him that Dodson had said she was
quitting. Neither of these individuals testified.
I have considered the different versions of Dodson's be-
havior following the meeting and I have observed the de-
meanor of the witnesses as they testified on this subject. I
conclude that Dodson's version should be credited rather
than the versions given by Leiby, Sample and Hill. It fol-
lows, therefore, that Dodson did not quit but was dis-
charged. Leiby admits that Dodson never told him she was
quitting. He rests his belief that she had quit upon the re-
ports he received from Supervisors Sample and Levine as
well as President Seiff. Both Seiff and Levine allegedly told
him that they heard Dodson say she was quitting but neither
of these two men testified. Even if we assume arguendo that
they heard Dodson say she was quitting, the question still
remains whether such an expression indicated only a future
intention to quit. Leiby attempted to supply the missing link
when he testified that Sample told him Dodson had quit. On
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being shown an affidavit he had made earlier , however,
Leiby modified his testimony saying that Sample had told
him Dodson was going to quit . Sinularly , Sample in her
testimony stated that Dodson had told her she was quitting,
which she reported to Leiby. This however, contradicts the
version given by Leiby in his earlier affidavit which I as-
sume to be the correct version . Moreover , there is no ques-
tion but that Dodson continued at her post after the meeting
had ended and after she had allegedly told Sample that she
"had quit . Her continuation of her work duties clearly nega-
tes any resignation and is consistent at most with an inten-
tion to quit at a future time . Nevertheless, Respondent
seized upon the situation and declared Dodson a voluntary
quit, despite her protestations that she had not quit . There-
after Respondent took the position that it could not rein-
state her to her former job because she had engaged in
improper conduct . I find even this position untenable. The
improper conduct, if I were to believe the testimony, of
Sample , was Dodson 's calling Sample "dirt" and "trash." I
deem it significant , however, that Leiby made no mention
of this abusive language when first testifying about
Dodson's termination , nor did he make any mention at that
time of Hill's report to Sample about Dodson 's profanity.
Indeed , it appears that the profanity was not offensive to
Hill who reported it to Sample . It was only the angry tone
of voice employed by Dodson that Hill found improper.
Even that , however , was not unusual in the plant and Hill
admitted having heard such tones of voice previously with-
out reporting same to any supervisor . On balance I conclude
that versions given by Leiby, Sample , and Hill on the Dod-
son termination should not be credited and find that Dod-
son was discharged 'pruportedly for having called her
supervisor "dirt" and `trash" and for having used profanity.
I find further , however , that Dodson was not guilty of that
conduct and that therefore the stated motive for her dis-
charge (or refusal to reinstate) is false and pretextual. The
language of the court in Shattuck Denn Mining Corp. v.
N.L.R.B., 362 F.2d 466 (C.A. 9), is appropriate:
In his decision, the trial examiner reviewed the evi-
dence in detail and found that Olvera was not insubor-
dinate , that Kentro had no reasonable ground to
believe that Olvera was insubordinate , that the stated
grounds for discharge were a pretext, and that the real
motivation was to discourage the union 's filing of griev-
ances and its aggressive pursuit of bargaining . He con-
cluded that the discharge was discriminatory, in
violation of Section 8(a)(3), and constituted restraint
and coercion , in violation of section 8(a)(1).
These findings are vigorously attacked , and heavy
reliance is placed on cases indicating that the mere fact
that good cause for a discharge does not exist is not a
basis for inferring that the discharge was based upon
an unlawful motive , that the fact that an employee is
engaged in union activity is not , taken alone , proof that
the discharge was for that reason , that suspicion is not
enough to support a finding , that an employer may
discharge for any reason or no reason and so has no
burden to justify his action, that inferfences must be
based upon evidnce , that it is not thejob of the Board
to judge the seventy of punishment imposed by the
employer, that lack of anti-union bias is to be consid-
ered in the employer's favor , and that the Board may
not infer an unlawful motive if the evidence equally
supports an inference of lawful motive . [Footnotes
omitted.]
Actual motive , a state of mind , being the question,
it is seldom that direct evidence will be available that
is not also self-serving . In such cases , the self-serving
declaration is not conclusive; the trier of fact may infer
motive from the total circumstances proved. Otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book. Nor is the trier of fact - here the trial examin-
er - required to be any more naif than is a jud ge. If
he finds that the stated motive for a discharge is false,
he certainly can infer that there is another motive.
More than that, he can infer that the motive is one that
the employer desires to conceal - an unlawful motive
- at least where, as in this case, the surrounding facts
tend to reinforce that inference.
Here the Respondent knew that Dodson was a member
of the Union's organizing committee and had even gone so
far as to demand that she cease and desist from such activi-
ties. Moreover, the Respondent's union animus is fully set
forth in the earlier proceeding against it, reported at 181
NLRB No. 94. Respondent's real motivation for the dis-
charge was to get rid of a union adherent, indeed a union
leader, whom it found in the midst of its floorgirls, some of
whom possessed supervisory attributes. Dodson's discharge
was therefore discriminatory in violation of Section 8(aX3),
and constituted restraint and coercion in violation of Sec-
tion 8(a)(1).
C. Lydia Marie Sewell
Lydia Mane Sewell was first hired by the Respondent in
1963. For several months in 1966 she worked in binding,
and in July 1968 Sewell voluntarily quit, but not until her
supervisor, Sample, had promised her a position when she
could return. In March 1969 Sewell had her daughter in-
quire about returning to work and that evening was recalled
by the Respondent . Once again her supervisor was Sample
and she was assigned to work in binding . In that department
employees were paid by the iece produced but were guar-
anteed $1.60 per hour or $12.80 per 8-hour day. Sewell did
not make her production quota, averaging only between $7
and $10 per day. She had, however, done better in her
previous period of employment with the Respondent. She
explained that better production was possible then due to
the difference in styles produced as well as the better condi-
tion of the machines worked on. Sewell complained to her
floorgirl, Hill, about the poor machine she had from March
1969 on, but no significant improvements were made. Al-
though Hill was called to testify by counsel for the Respon-
dent, she was not asked about this complaint from Sewell.
Sewell received no reprimands for her low production al-
though Sample did testify that she asked Sewell "if she
could produce a little more." On the other hand Sewell
heard Sample tell Floorrirl Hoover to give Sewell the more
difficult work because `some of the other girls would mess
it up." Hoover in her testimony confirmed that Sewell did
the harder work and that this slowed her production. She
testified further that Sample told her it did- ot matter and
that Leiby agreed. Indeed, Hoover testified that Sample told
her what work to assign to Sewell because Sewell did better
work. Although Sample denied assigning Sewell's work, I
credit Hoover s testimony noting that she is no longer em-
ployed by the Respondent having left voluntarily and would
have no reason apparently to testify falsely or to color her
testimony.
There is no doubt, however, that Sewell's production was
low. Records of the Respondent indicate that Sewell's pro-
duction was the worst in the binding department with the
exception of two employees, one of whom quit on May 10
and the other quit June 28. Neither of these two employees
were discharged for their low production. On May 27, 1969,
SPOTLIGHT COMPANY, INC.
Sewell was informed by Floorgirl Hoover that there was
insufficient work for the employees that afternoon. Later
Sample told her that she would not be called back because
Leiby "doesn't feel like your work has picked up." Leiby in
his testimony stated that Sewell was laid off because of this
excessive "makeu ." He admitted, however, that he knew
the binding employees were not making production and
that it was unusual for an employee to make production in
binding.
Sewell 's name was on the list of organizing committee
members for the Union that was sent to the Respondent on
April 24. As such she solicited for the Union and obtained
signatures to 10 union cards. She also attended committee
meetings for the Union, and testified that although she and
Sample were freindly at the plant prior to April 25, 1969,
Sample became unfriendly and avoided her thereafter. I
find it significant that the Union's notification of the organ-
izing committee membership as well as the first union meet-
ing occurred on April 24, 1969.
Counsel for the Respondent argues that Sewell was dis-
charged for her low production. He states that "there is no
such thing as harder or easier work. If sewing operations or
certain garment styles take longer to perform the piece rate
is higher." This undoubtedly is the purpose for different
rates on different types of work. It does not follow, however,
that the differences in rates compensate exactly for the dif-
ferences in the time involved. Moreover, I credit the testi-
mony of Hoover that Sewell 's low production was due to the
more difficult work she was required to do. Further, there
is no contradiction of Hoover's testimony that Leiby said
the production quota made no difference as long as the
employees did good work. Counsel for the Respondent also
cites record evidence indicating that Sewell's rate of prod-
uction on a certain style was substantially lower than the
rate of another operator doing the same style the following
day. This does not explain, however, Respondent's failure
to discharge two operators whose production was even low-
er than Sewell's, choosing instead to permit these two opera-
tors to continue in the employ of the Respondent despite
their lower production until they quit voluntarily. Counsel
for the Respondent also notes the "oral admonition" for
Sample. This is apparently in reference to Sample's request
of Sewell that "she ... produce a little more." I do not regard
this language as a admonition. It is a request, of course, but
it does not carry with it the necessary implication that
Sewell's low production was cirtical. No warning or threat
of discipline accompanied this so-called oral admonition.
Considering, therefore, that Sewell was discharged without
any warnin gg, su esting illegal motivation (Dunclick Inc.,
159 NLRB I0, 1 and was not recalled thereafter although
it is admitted that many new employees were hired by the
Respondent during the months that followed the events
involved in this proceeding, coupled with Leiby's admission
that it was unusual for production to be made in the bindin
department, as well as Respondent's admitted knowledge of
Sewell's leadership in union activities, drives me to the con-
clusion that her discharge was not based on her production
but was discriminatory and designed to discourage mem-
bership in the Union in violation of Section 8(a)(3) of the
Act.
D. Polly Bryan
Polly Bryan started working for the Respondent in Au-
gust 1968 . She was instructed in the binding operations as
well as other operations and as a result was told by Supervi-
ngsor Sample that she would not be subject to layoff duri
the slack season . Consequently she worked steadily through
781
the winter of 1968-69. Although her production quota was
$12.80 a day she averaged only about $9 to $12. Neverthe-
less she received no reprimand for her work ( nor was she
commended). She learned about the Union in April 1969
and became a member of the organizing committee. Her
name was submitted on the list of employees on the organiz-
ing committee submitted by the Union to the Respondent
on April 25, 1969. She attended union meetings , distributed
literature in front of the plant, and obtained signatures to
10 to 14 union cards. Manager Leiby admitted knowing that
Polly Bryan was on the organizing committee.
On June 3 Bryan presented a statement from her doctor
and requested a leave of absence. The medical statement
spoke of a 6- to 8-week leave of absence but Bryan was not
aware of that. Bryan underwent surgery and because of
subsequent complications remained off work and under a
doctor s care until August 27 when she was given a release
to return to work on September 1.
Bryan returned to the plant on August 28 and met with
Leiby. She gave him the doctor's release and in response
Leiby told her that she had been away 12 weeks instead of
the expected 6 to 8 weeks. He also told her he had hired a
new employee to replace her and could not fire the new
employee to put her back to work. He added, however, that
he would call her back when he needed someone.
In mid-September Bryan telephoned the office of the
Respondent and was told again that she would be called
when needed. It is undisputed that Respondent has hired
many new employees subsequent to the events involved in
this proceeding. Polly Bryan, nevertheless, was not recalled.
General Manager Leiby was asked, "Why wasn't she re-
called?" Leiby replied:
Well, I started to take on more duties in the other part
of the factory and I just didn't watch over all the firing
and hiring and I don't do all the hiring and firing.
don't know how many girls she hired in just the binding
department alone at at time.
Again he was asked, "Why wasn't Polly Bryan recalled?"
A. I don't know. At that particular time I just didn't
have enough binding work.
Q. Since that time other employees have been re-
called, hired in the binding department, have they not?
A. Yes, but since then the charge was filed.
Q. Yes, but other employees have been hired since
the last of August for the binding department?
A. I am almost sure they have.
Q. As a matter of fact you know there have been?
A. Yes.
Q. Now why didn't you call Mrs. Bryan?
A. Because I don't do all the hiring.
Q. Is that the reason?
A. That is right.
Q. Is that the only reason that you didn't recall her?
A. That's the only reason.
Upon being shown an earlier affidavit given by him to the
NLRB, Leiby testified that "the number one reason" for not
recalling Bryan was that she could not make a quota. In
spite of that, however, he admitted that it was unusual for
one to make production in binding. Nevertheless, he insist-
ed that that was the reason he did not recall her.
I find Leiby's testimony most unimpressive. One would
expect that if Bryan was not making the production expect-
ed of her something would have been said to her about it.
Nothing was. Moreover, even if her production was low
there would be little reason to prefer hiring inexperienced
and untrained new employees in preference over Bryan. It
seems clear to me that the more reasonable explanation for
Respondent's failure to recall Bryan is its knowledge of her
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
active participation in union activities . I deem it significant
that when Leiby was asked if other employees had been
hired even though Bryan was not , he answered "yes, but
since then the charge was filed."
Counsel for the Respondent cites precedent for finding
no unfair labor practice where an employer discharges an
employee for overstaying a leave of absence . Such preced-
ent, however, is based on failure to prove discrimination in
the discharge , as where the employee's union activities were
unknown to the employer . But here Bryan's union activities
were well known to the Respondent . Moreover, Respondent
failed to contradict Hoover's testimony that other employ-
ees, including herself and employee Lanstrell , were not dis-
charged or even reprimanded for overstaying their leaves of
absence . There is a clear inference of discrimination in
Respondent's treatment of Bryan for overstaying her leave.
I conclude that Respondent's failure to recall Bryan fol-
lowing her leave of absence was not due to her extended
absence nor to her poor production but was motivated by
Respondent's union animus and desire to undermine the
effectiveness of the umon campaign in violation of Section
8(a)(3) of the Act.
E. Wilma Davis
Respondent first hired Wilma Davis in February 1964.
After working about 6 months she quit voluntarily on ac-
count of pregnancy. She returned to the plant in 1966 where
after working about 8 months she again quit , having lost her
means of transportation . She was employed for the third
time in September 1967.
Davis first heard of the Union's organizational campaign
in April 1969. She talked about the Union with some of the
other employees , attended several union meetings, and
signed a union authorization card.
In May 1969 she asked for and obtained a leave of ab-
sence for medical reasons . The following month she visited
the plant to inquire about her vacation pay. This was re-
fused her in the belief that she had not worked a sufficient
length of time, or would not work a sufficient length of time,
to entitle her to the vacation pay. At the same time Davis
presented Leiby with a note from the doctor indicating that
she would be off work until September.
Davis wrote the state labor board in an effort to collect
her vacation pay. Leiby was called by that board, whereup-
on he reviewed the matter and paid Davis her vacation pay.
Thereafter, Respondent received the Union's charge in Case
26-CA-3396, in which Respondent was charged with an
unfair labor practice involving its denial of vacation pay to
Wilma Davis, among others.
On September 1 Davis reported to the plant with a
doctor's release for work. Leiby called her into his office
and asked her to sign a statement which he had prepared.
The statement read:
I, Wilma Davis, hereby agree within two weeks to make
as much or more than my fellow-worker on a like oper-
ation since I am experienced. If not , I will leave the
employment of Spotlight Co., Inc., no questions asked
because of my inability to do so.
She asked for and received permission to take the note
home for her husband to review. Davis returned to the plant
the following day and told Leiby she did not think it was
necessary that she sign the note. Leiby told her she would
have to sign it or go home because she had not been making
production before she left. The production quota for Davis
was $12.80 per day on a piecework basis, but her average
earnings had been between $8 and $10 per day. The only
evidence with respect to her production compared to others
is the uncontradicted testimony of Leiby that Davis was
"below average when it came to the operators on that same
particular operation , other girls were making better than she
was." Davis nevertheless refused to sign the note and in-
stead demanded a statement from Leiby for the purpose of
filing for unemployment compensation benefits. Leiby re-
plied that such a statement was unnecessary in order to get
compensation, but Davis threatened to remain in the office
and if necessary follow Leiby all over the plant until she got
such a statement. Leiby then told his secretary to call the
police, whereupon Davis left.
Counsel for the General Counsel urges a finding that
Respondent violated Section 8(a)(3) of the Act by dis-
charging and failing to reinstate Davis on September 1,
1969. In support of this argument , he cites Respondent's
failure to mention Davis' low production to her until after
Leiby had prepared the statement for her to sign . He argues
that if Davis were guilty of low production Respondent
would have mentioned it to her when Davis visited the plant
in June to inquire about vacation pay. The discussion in
June, however, centered about her vacation pay and the
termination of her leave which was due in September. A
discussion of her low production at that time would not be
necessarily in order inasmuch as Davis was not applying for
reinstatement at that time. There would be no reason for
Leiby to talk about her low production not knowing if or
when she would ask for reinstatement.
Counsel for the General Counsel also argues that discrim-
inatory motivation is shown by Leiby's insistence that Davis
sign a written note promising to do better work. Admittedly,
Leiby made no such demand upon any other employee. He
explained, however, that he had made such requests of other
employees orally, but that since Wilma Davis had such a
"erratic work record" and was "constantly low," and fur-
ther since the Company had spent $2,000 training her, he
felt a written statement from Davis was necessary . I credit
Leiby's testimony in this respect, and find as a result insuffi-
cient evidence of discriminatory treatment toward Davis.
Counsel for the General Counsel also cites Leiby's testi-
mony to the effect that he was trying to build a record for
future use by having Davis sign this statement, arguing that
no employer need build a record if there is no unlawful
motivation. I do not agree. Records are prepared and kept
for many purposes other than ones involving illegal motiva-
tion. In this instance, the record could be deemed necessary
to avoid later arguments on whether Davis had been warned
on her low production.
Finally, I note that unlike Dodson, Bryan, and Sewell,
Davis was not a member of the organizing committee of the
Union, did not distribute literature at the plant, nor obtain
signatures from other employees to the union cards. There
is nothing to indicate that the Respondent was aware of any
union activities on the part of Davis. Counsel for the Gener-
al Counsel argues, however, that this knowledge came to the
Respondent when it received the Union's charge in Case
26-CA-3396 involving Respondent's denial of vacation pay
to Wilma Davis and other employees. Davis, however, re-
ceived her vacation pay before Respondent received the
charge, and in any event it appears that the charge was
withdrawn and never made the basis of a formal complaint.
I consider this insufficient evidence of Respondent's knowl-
edge of Davis' union activities, which were apparently mini-
mal. I conclude and find that the General Counsel has not
sustained his burden of proof to establish that Respondent
has committed an unfair labor practice in refusing to rein-
state Wilma Davis.
SPOTLIGHT COMPANY, INC. 783
CONCLUSIONS OF LAW (b) In any manner interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self-organi-
1. Mattie Dodson was not a supervisor for the Respon-
dent within the meaning of Section 2(11) of the Act.
2. Respondent discharged Mattie Dodson on August 19,
1969, for her union activities, in violation of Section 8(a)(3)
and 8(a)(1) of the Act.
3. Respondent discharged Lydia Marie Sewell on May 27,
1969, and refused to recall or reinstate her thereafter be-
cause of her union activities, in violation of Section 8(a)(3)
and 8(a)(1) of the Act.
4. Respondent refused to recall Polly Bryan following her
leave of absence which ended on September 1, 1969, be-
cause of her union activities, in violation of Section 8(a)(3)
and 8(a)(1) of the Act.
5. Counsel for the General Counsel has failed to meet his
burden of proof to establish that Respondent's failure to
recall Wilma Davis following her leave of absence which
ended on September 1, 1969, was due to her union activities,
in violation of Section 8(a)(3) and 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and take certain affirmative action which
I find necessary to effectuate the policies of the Act.
Having further found that the Respondent discharged
employees Mattie Dodson and Lydia Marie Sewell and re-
fused to recall employee Polly Bryan in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that the Res-
pondent offer them immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole for
any loss of earnings suffered by reason of the discharge or
failure to recall by payment of a sum of money equal to that
which they normally would have earned as wages from the
date of discharge or refusal to recall to the date of
Respondent's offer of reinstatement less any net earnings
during this period and in the manner described in F. W.
Woolworth Co., 90 NLRB 289, together with interest thereon
at 6 percent per annum as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sion of law, I recommend that the Respondent, Spotlight
Company, Inc., its officers, agents, successors, andpassign,
shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or concerted
activities for the purpose of mutual aid or protection by
discharging or otherwise discriminating against employees
because they have engaged in union or concerted activities.
zation , to form, tom, or assist the Union or any other abor
organization , to bargain collectively through representa-
tives of their own choosing , or to engage in other concerted
activity for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any such activi-
ty.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Offer to employees Mattie Dodson, Lydia Marie Se-
well, and Polly Bryan immediate and full reinstatement to
their former jobs or , if those jobs no longer exist, to substan-
tially equivalent positions , without prejudice to their senior-
ity or other rights and privileges , and make them whole for
any losses they may have suffered by reason of the discrim-
ination aggainst them 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 , person-
nel records and reports , and all other records necessary to
analyze the amount of backpay due under this Recom-
mended Order.
(c) Post at its Ashdown , Arkansas , place of business cop-
ies of the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional Director for
Region 26 , after being duly signed by Respondent 's repre-
sentative , shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any other
material.
(d) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision what steps Respon-
dent has taken to comply herewith.4
IT IS FURTHER ORDERED that those portions of the complaint
as to which no violation has been found are hereby dis-
missed.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , 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 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 be changed to read "Posted pursuant to a judgment of the
United States Court of Appeals enforcing an order of the National Labor
Relations Board "
° In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "