Spotlight Co., Inc.

SPOTLIGHT COMPANY, INC. 491 Spotlight Company, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Case 26-CA-3750 August 3, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On March 25, 1971, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in the,unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's' Decision. Thereafter, the General Coun- sel' and the Charging Party filed exceptions to the Trial Examiner's Decision with supporting briefs.'The Respondent filed cross-exceptions to the Trial Exam- iner's Decision, a brief in support thereof, and a brief in answer to the exceptions filed by, the General Counsel and, the Charging Party. Pursuant, to-the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-excep- tions, And briefs, and the entire record in the case, and hereby adopts, the findings,' conclusions, and recommendations; of the Trial Examiner.3 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 Trial Examiner and hereby orders that the, complaint herein be, and it hereby is, dismissed in its entirety. i The General Counsel's exceptions, as well as those of the Charging Party, are in large part directed to the credibility findings made by the Trial Examiner.'° It is the Board's established policy, however, not to overrule a Trial Examiner's resolutions as to credibility unless, as is not the case here,,a clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3). 2 We hereby correct the following inadvertent, errors in the Trial Examiner's Decision: Under section-II; C, 2, the Board-conducted election was held on March 26, 1970, -rather than on March 6s 1970; and under section 11, E, Employee , Louise Lamon, on June 29, asked Floorgirl Murray, rather than Floorgirl Madden, to take off at 3 p.m., and in same section, Floorgirl Murray testified that the June 30 layoff of Harris and Lemon was occasioned by lack of work, rather than Harris and Murray. 3, In view of our disposition of this case, we deem it unnecessary to pass on the issues raised by the Respondent's cross-exceptions. TRIAL 'EXAMINER'S' DECISION SAMUEL M. SINGER, Trial ' Examiner: This proceeding was heard ^ before me in Texarkana, Texas, on various dates between December 1 and 9,'pursuant to a charge filed on July-27;-and complaint issuedon September 8-{as'amended October 29), 1970.1 `The complaint alleges that Respondent violated Section 8(axl), (3), and (4) of the National Labor Relations Act,' as amended. This is denied by Respondent. All parties were represented by counsel and wereafforded full opportunity to adduce relevant evidence, and conten- tions.-Briefs were received from all parties on or.-before February 4,1971. s - n - Upon -the entire records and my observation of the testimonial demeanor, of the witnesses, I make., the following:' FINDINGS AND CONCLUSIONS, 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED Respondent, an Arkansas corporation, manufactures lingerie at its plant here involved in Ashdown,Arkansas. It annually sells and delivers to purchasers in other States, and purchases and ,receives from sellers in other States, products valued in - excess - of $59,000.1, Bind that 4t° all material times 'Respondent has been and is;engaged in commerce within the meaning of tie Act. , - The Charing Party, herein called the Union, is a labor organization within the meaning of the Act. H. THE ALLEGED UNFAIR LABOR - PRACTICES A. Background the Board's Findings in, Prior Proceedings; the Issues in the Instant Case' The instant proceeding is a sequel to three prior complaint proceedings involving Respondent. In the- first (Case 26-CA 3396), the Board on ° March If,' 1970, affirmed Trial Examiner Pollack's December 31, '1969, Decision in which he found that ' Respondent violated Section 8(axl) of -the Act by interfering with, restraining, and coercing employees in their right to join and participate in the Union and 8(aX3) by laying off one employee and discharging-five others for Union activiiies' (181-NLRB°No. 94).3 In the second proceeding (Case 26-CA 3535), the Board on' March 3, 1971, affirmed, `with `modifications, Trial Examiner Hinkes' -Decision in which he found that Respondent discharged or refused to recall three employ in--violation of Section 8(ax3)"of the Act (188 NLRB'No. 114). In the third proceeding , (consolidated, Cases 26-CA-3622 and 26-RC-3693) tried before Trial Examiner Brown, the'Board on- March 4,1971, found that `Respon- dent engaged ' in certain 8(a)(1) conduct-on the ba'sis of which it also sustained the Union's objections to the March 1 Unless otherwise noted,JaU dates herein refer to 1970. 2 Transcript as corrected by my , order on notice dated ,February 17, 1971. s This case is now pending for enforcement in the,United States. Court of Appealsfor_the Eighth Circuit, No:,20,549. 192 NLRB No. 70 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '26, `1970, Board election and-set aside the election, lost by the Union (188 NLRB No. 128). While the,-unfair,,;laborpractices under,consideration in the above proceedings encompassed the period from April 1969 (when,the Union commenced its organizational drive) until around March, 1970 (whenthe Board conducted the representation election), the instant case deals with. unfair labor practices which, allegedly, commenced thereafter, in May 1970. The instant complaint alleges that Respondent unlawfully. laid off. three employees' on various dates; in May August, and, three others for 1 day (June 30);, that it unlawfully. discriminated-in,a job assignment to,oneof the laid-off `.employees; and, finally, , that it unlawfully dis- charged still another employee on May 8. At, issue is whether these layoffs were motivated by legitimate business reasons, and the discharge was for cause (as claimed by Respondent), or whether all the actions were motivated by Respondent's desire to punish employees for engaging in Union activities or because they had testified in prior Board proceedings or `had been involved in other protected activities. Also at issue is whether three of Respondent's floorgirls are "supervisors" within the meaning of the Act 4 B. Operations of Respondent; Supervisory Status of Floorgirls;Madden, Murray, and .Young 11 Respondent , commenced its lingerie operations at Ashdown. , in January 1964; currently it primarily manufac- tures women's sleepwear, with approximately 220.employ- ees. The plant consists of three departments; viz, cutting (15 employees), finishing, (30 employees), "and'sewing, (175 employees). The finishing department operations, include trimming, folding, boxing, bagging, assorting, and tagging. The sewing department has approximately 40 separate sewing operations, including shear lace binding, ; simple binding, bar'tack, zig zag, sleeve setting, and single needle. During the period here involved" (May-August 1970), Paul A. Leiby (Lieby) was the Ashdown general manager, answerable to ,Company President Jules Seiff," who lives in Allentown, Penusylvania.5 Leiby's responsibilities include supervision .over''the cutting department. His Wife, Emily,: is in charge, of the finishing departments and Lucille Sample ()lead;".floor,, supervisor) is in charge of the sewing department; `the two, department heads are also classified as "fore ladies." Working directly under Sample and, Emily Leiby are floorgirls. Paul Leiby testified that the dufies of all three floorgirls whose supervisory status is here in issue (Wanda Madden, ' Delphia Murray, and Charlotte Young);' are ".basically" the same.` They distribute the work among{ the girls in , the. -units or sections; attend management pro- 4• By posihearing motion accompanying its beef, Respondent also raised the procedural objection that the charge was not properly sworn to under Sees_ 102.11 and 101 .2 of the Board's Rules and Regulations. The charge, filed by the, Union was signed "Root. L. Uhlig by JEY." Uhlig is, the Union's attorney of record and, according to uncontradicted sworn statements attached to the Union's opposition to, the motion, the initials JEY stand for James E. Youngdahl, a member or associate of Uhhg's-law firm whom Uhlig authorized to sign his name to the charge . Although the more desirable practice would' seem to be for- the signer of'the charge personally to sign the "declaration" in the charge , the Board has held that the charge and declaration may b6'-signed by his authorized Agent, followed by the agent's initials. See Walsh-Lumpkrn Wholesale Drug Company, 129 duction meetings and effectuate policiesthere determined; inspect and evaluate performance of operators and report thereon to the department heads ; ' and effectively recom- mend specific employees for overtime work .'The floorgirls are also consulted on- transfers- of employees from one unit to another and in selections for layoff. Although without authority to, hire and fire, their recommendations are concededly given "weight. "According to General Manager Leiby, the floorgirls are expected to get employees "to work faster or - ... to do better work""-'and ' to `warn or "reprimand" them if they fail to°do so."' -- Based on the foregoing, and, the'entire record, I find that Floorgirls'Madden;;Murray; and Young have authority; "`in the interest of the employer ... responsibly to direct" employees under them within , the meaning of,Section 2(11) of the'Act: and, therefore, that all three are supervisors for whose:conduct Respondent is accountable. See, e.g., Square BindingFand,Ruling Co.,.Inc., 146 NLRB 206, '209-210, and cases there cited..Although in iLts answerRespondentidenies ,that the. three girls are supervisors , at , the hearing it admitted- that at least one of them (Murray), is.' It is noteworthy that in the representation,proceeding Respon- dent took'` the position that ` all'eight sewing department floorgirls, as well as finishing department'floorgirl Murray, should be 'excluded from the unit as "supervisors"-a position approved by the Regional 'Director.' And>Leiby admitted at the, instant hearing that subsequent to this determination he told the , ;floorgirls that they 'were "supervisors." C. The Layoffs of Winfrey Scarbrough, and Ethel Mears 1. Introduction At the hearing, General Counsel did not dispute Respondent's legitimate . business , need to effect layoffs during the May-August period; he contended 'only that Respondent discriminatorily-selected for layoff the particu- lar employees named in' the `complaint because of 'their Union activities and/or because they had testified in a prior Board proceeding or engaged in other protected concerted activity. The uncontroverted evidence shows that summer (May-August) layoffs are common in the industry, resulting from-seasonal style changes; such'layoffs are concentrated especially from =Mother's Day (May) through inid-July. Prior, to the 1970 layoffs here involved it was ,Company policy to rotate layoffs, so as to-afford:"eat least a couple of days" work for all employees in a given week,,,Even so, however, better producers were allowed more work days than 'slower ones. Credited evidence establishes that NLRB 294, 295; H'& W Construction Company, Inc., 161 NLRB 852, 860, in. 1. Be that as it may, the motion here is denied'on the ground that,, as, in Walsh-Lumpkin, "Respondent can point to-no prejudice resulting from 'the alleged improper, signing." It should' be noted that' Respondent in its answer admitted service of the charge filed by the Union and that this question was raised for the first time after the hearing. a In September 1970, when Vecchione was made general manager, Leiby, became assistant general manager. Since Leiby was the general manager during substantially the entire 1970 peliod,here involved, he will tseidentified as such. 6 Unless otherwise indicated, subsequent 'references to "Leiby" are ` to Paul rather than to Emily Leiby. SPOTLIGHT COMPANY, INC. Respondent applied a new layoff policy for its May-August 1970 layoffs. Under the-new policy the lowest producers were laid off before the better producers, without affording= the 46W-producers even a day's work in any given week. The new policy was introduced to' meet Company President Seiff's repeated- complaints to the -Ashdown managerial staff (Paul and Emily'Leiby and Sample) and some of the, floorgirls that "'`makeups'-merejust too high.? According to General Manager Leiby, makeups,- which should have' averaged no °more than 8 or 16percent, were as much as'18 to 22 percent in `l970: ;While the record as to when the new policy was formulated and as; to the nature of notice given , employees respecting the new policy,is confusing, credited evidence establishes that` those laid off between May and August 1970 were apprised of the new policy `before (or as they were) being laid off. In any event, it is undisputed that prior to, departing for vacation in June, Emily Leiby, formally vannounced the new layoff policy to the finishing department stating that. low producers. would be first to go in-slack times without reference to any rotation systems Plant Manager, Leiby credibly testified that,.Respondent had- more than ,,the usual seasonal layoffs in 1970 for two major reasons.First, Respondent'sproduction'manager in October 1969-February 1{ 970 (Friedman) introduced the "unit system" in the plant, under which the factory, was divided into six-parts, each operating as if it were-a separate factory with its own work force (operators, binders, trimmers, etc.)" and 'each', completing the styles handled' "from beginning to end."-e` ` According to ' Leiby, "there- wasn't much leeway" in interchanging operations' and operators, so ' that "if a girl [was] absent that does an operation ..` . that' means there's no work'for the . . . girl that follows her [on ,the next operation]. It's like an assembly ;line" Secondly, Leiby pointed out that Respon- dent'experienced- "radical "style change[s]" in 1969-70 in having to shift, from "frilly stuff" to long gowns, (culottes and other sleepwear), so,that layoffs, would have to be made, until the Company acquired new materials and ^patterns and, adequately trainedpersgnnel to handle the new styles.,, Leiby also testified; that the, six units set up by Friedman were ""recently" (prior to the hearing in December 1970) reduced to three by the new general manager (supra,, fn. ,5) to allow management more "leeway" in, transferring operators from one machine to-another within larger units. ? "Makeup" represents the difference between an employee's, actual' earnings and-the amount paid the employee in accordance with "minimum wage standards ($1.60 per hour or $12.80 per' 8-hour day).. - 8 References in prior Trial Examiner Decisions - to Respondent's layoff rotation policy obviously refer to Company policy in effect before the 1970 seasonal - (May-August) lay-off-a period not involved > in the prior proceedings. However, as hereinafter noted (fn. 28), the rotation system remained in effect even in the 1970 , season as to "tune" workers (e.g.,,, baggers and boxers) as opposed to producti on workers (the great bulk of the work force). 9 Prior, to this innovation (when Leiby was in full charge of production as well as other plant, functions), the factory'operated-'as "one big unit" with each, category of operators (seameri, binders, etc.) centralized"in' one area. to The validity of Winfrey's,discharge is not here in issue. According, to counsel for ChargingTarty, a review-of the Regional Director's failure to issue a complaint upon 'a charge alleging a discriminatory discharge was pending before the General Counsel at the time of the instant hearing. 2. Leatha Winfrey 493 " Winfrey, hired in October 1969, was laid off a total of 33 days between ' May 15 and August 5, '1970; ,. she . was discharged on October 31, -1970, allegedly because of-poor, production. The complaint 'alleges that Winfrey was selected for the various layoffs in May-August for discriminatory reasons, i.e., because of` her "Union activities.10- Respondent , contends' (br., p. 19) that the layoffs were "in accordance with soundbusiness practice due to her admitted below"rate'of production" Winfrey worked as a binder in the" sewing-, department under Floorgirl Young. She was I of the 54 members on the Union- Election Committee "formed"for, the purpose` of encouraging all employees"'of Respondent to vote "yes" in the March 6, 1970, election. Winfrey testified that she wore a Union` button, attended seven or eight Union meetings, and spoke to other i mployees about superior working conditions in union shops. Beforeworking for Respondent she had worked for a unionized employer, whom she had identified in her employment application. Winfrey's regular operation-was shear lace binding. She was put'on single binding for 2 days (May 1 and 3)11 and subsequently on a bar" tack operation for 3 days (July 21-23). Winfrey's floorlady(Young) testified credibly that of the three binders' in her section only Winfrey was regularly on shear lace'binding;' that the two other binders (Nelson and Simmons) normally worked on simple binding; that of the three, Nelson was the best; that Nelson was so versatile that she could perform ,equally, well on simple and shear lace binding and could move with ease from style to style; that Simmons was the next best operator; and that Winfrey was the poorest,-with most repairs-on garments-12 Winfrey admitted, and the,work'records produced by Respondent establish:, (I)° that she consistently made less than her production quota ($1.60 per hour or, $12.80 per day), thereby requiring Respondent to "make up" the difference to "bring her earnings up to the minimum wage; and (2) that she was_ailower producer than Nelson.13 - Floorlady Young also testified credibly and without contradiction that whenever Winfrey was out of her regular (shear, lace binding)- work, she" would report this (as she would other, cases , involving -other employees) to her,, superior,;Forelady Sample. Unless other-work for which she was qualified was available, Sample would ; direct Young to lay off Winfrey with instructions tohave Winfrey 11Winfrey, who apparently preferred shear lace binding,' claimed that, that operation was no more' "complicated" than simple (or plain)'binding. She testified, however, that the latter involves "simply taking the bind that goes, over 'the end of a Tgarment and sewing, it over it,"' while shear lace binding involves "shearing, binding, and putting lace on the piece." General Manager Leiby indicated that simple binding was a less complicated and "easier' operation. - 12 As-noted, the above findings are based on the credited testimony of Floorlady Young who impressed me as an essentially honest and forthright witness. Young was no,_Ionger -employed by Respondent at the time of the hearing and- had no personal interest in. the outcome - of -the case.' Furthermore, as hereafter noted, she was not , unfriendly to the Union cause, having signed a card and attended a Union meeting at the start of the organizational campaign, apparently, before she was informed of her supervisory status. - 13 Respondent's production records show that while Winfrey averaged $1.05 an hour-between the week ending March 7 and August 15, 1970, Nelson averaged $ 1.39. (See Reap. Exh. 2 C.) 494- DECISIONS OF NATIONAL TABOR- RELATIONS BOARD keep in contact with the plant to see when to return to work. According to Young's credited testimony, Winfrey's Union sympathies ,or,,aetivities were never mentioned in making the, decision ,to lay her •off.14 As already_ noted, during the period here,inyolved (May-August), Winfrey was, assigned , to. two, operations other titan her regular operation:; Thus, she worked on simple binding on -May, I and3 when she ran out of ryshearf lacing; however, she earned only $4.52 on the first day and $5.35 on the second, and, according to Young, she also had "a lot of repairs " Winfrey was also tried on a bar tack machinea,for ^3 dais in. July, but she earned only between $3.15,and$6.43 on tliosedays. , , The recordthows that while Winfrey was laidoff,for,33 days, during May-August, Simmons was off .14 "days, and Nelson, *hp, best , of the three "bin ders) none,, Forelady Sample testified that she regarded Simmons as'a better operator ,than Winfrey; and, that Winfrey was also laid off~ more , frequently than Simmons "because of she= type of work ,she . did," explaining ^ that Winfrey was 'normally, confined to a shear Face , brndinng operation. On the other. hand, ` Mittie Hill, who did shear lace binding in another unit, was laid off ,only once during the period in question, but Hilt had a good , earnings record and ,was capable of doing good simple as well asr good ,,shear lace ,binding.15 According.. to; Respondent's ,records,, only one other girl in binding (Linda, Ware) was laid off as frequently as Winfrey (34es in 14) ay-August);` Sample explained that, as°in the cased of Winfrey, Ware's "earnings were low and [she'had] lots of repair." 3. Mildred Scarbrough ° Scarbrough, hired in September 1968; was laid }off 31 days,,froin- May-18 through July 18. The complaint alleges that the layoffswere unlawfully motivated because she had engaged' in Union- activity ' and because -she had - given testimony,- in "a" prior-, Board- proceeding.'=,--Respondent' contends that, as in the case of Winfrey, the layoffs Were based on- lack',of work, and that Scarbrough was one .of those selected for - most layoffs because ' of her , poor production record. Scarbrough worked, regularly as- a,' zigzag, machine operator - in -the sewing 'department - under , Floorgirl ' Madden. 4-Insofaras appears, her only Union- activity, consisted of, membership on' the Union Election Commit- tee. She was one of several employees who-testified in prior Board• proceedings. Scarbrough was, the only ,operator ,in Madden's unit who devoted full time to zigzag operation. Whet out of that work, `she Was assigned to the single- needle machine, a more common operation in the' unit. Madden credibly testified that -before laying Scarbrough off ,14 General Counsel witness Booth's testimony, in,which ,she attributed to Floorgirl Young a statement (or acquiescence by Young in Booth's statement) that Winfrey was laid off frequently because she wasa =member of `the Union's Election Committee, amounts at best to an expression 'of personal opinion byYoung that Booth's Union role was a°factor in the layoffs.' As already - noted;, it was ' Sample ' (not. Young) who, made the decision to lay off. - Young, a- friend of- Booth,, was' an early Union sympathizer. In' any event,,it is tb'benoted that Booth also quoted Young as saying that-Winfrey's frequent layoffs were due to the fact that Winfrey "can't do the regular binding" on which she already was "tried" and that there just 'was not -enough shear' lace binding work in the unit. Young herself .could not `"remember" the statement - Booth attributed to her, asserting also that she did not "think" she made it. ' ' - in May, she tried ,to obtain other work-,for:;her, (Thus„,2-, weeks prior to her May layoff she was assigned to binding; and during _the, layoff itself.(June), she was recalled to_,set sleeves-an operation on,which „she remained until- the work ran out. Sleeve-setting was `,ran entirely different operation"-for ,Scarbrough, for which she was, specifically, trained by Madden;, she, was permanently` assigned -to, it at-. the end of :her seasonal, layoff,,stillworking at it at the time ofthe hearing. On Friday,, May ' 15,,,Madden notified ' Scarbrough that she would be laid off on Monday (Mayy18) because of lack of work To Scarbrough's inquiry„ "how long she thought [she] might be laid off," Madden replied, "Just one or two, days,- I think, but you never can tell" because of the manner' in ` which' work goes up and down. When Scarbrough checked the situation` the following week, she was told that work was still "slack" and that she would be notified when to return. -Shortly, thereafter Scar`brough,'accompanied,by employee Booth, went to Madden's `home to check on -the matter further. "When told that it 'was-,"still slack,"' Scarbrough'said she would. be gone for about 2 weeks to visit her mother in California. Madden said that this would be mutually,'beneficial for both and suggested that she-call' upon her return. Scarbrough did, so but was told =by,-the office girl, that it was still slow, whereupon she spoke directly .to Forelady Sample, who told her she did not know when-there would be -work and -that ,-when Scarbrough returned she, would probably, have ,to work on a new, machine.16 Later (around June 20) Scarbrough„ acco3npa- nied by employee Booth, again went to Madden's home, told Madden, that she, heard new employees were being hired, and asked,why' the Company did noty train some, of, the laid-offirls rather than hire new emplbye'es.17 Madden said that She- did not know why and that she Would try; to , see' "at she could 'do about finding some work for' Scarbrough: On June 22 or 23, Scrabi'ough was recalled 'to' work.1s - Onthe morning of June 30; Scarbrough told Madden that she "mightpossibly need to be off" at 3 o'clock-that day-to attend "the` Unemployment Compensation, `hearing for another employee (Mary Lou Mears, infra `sec: F); but"that' she 'would `let her know definitely-later iii'the' day"; Madden said "all right" Shortly after lunch,-` when Scarbrough' confirmed that she would need to be off at 3' pm., Madden said that since , she had , no work for her "anyway" she could leave when she - completed the garments she was then working on. Scarbrough left that day of :45 ptim. She'reinained in layoff status on June 1-3 and again on July 13-14, (the whole plant was ;shut,down on weekends and the July 4-12 vacation period) Is Conceding that Hill and another shear lace binder (Burton) employed in `a unit other than Winfrey's were better producers, Winfrey explained that the two operators "had been there longer than V' 3 Is-As previously noted, Scarbrough was recalled between layoffs and put to work on a sleeve machine. 17 Company records (Resp. irxh. 4), show that Respondent hired 13 new employees for the sewing department and 6 for the finishing department between May 15 and June 23 (the duration of Scarbrough's first and longest layoff), but none as zigzag operators (Scarbrough's regular job). Is The findings in the -above paragraph are based-primarily on credited testimony of Scarbrough,, in part , corroborated by employee' Booth and Floorgirl Madden. SPOTLIGHT COMPANY, INC. Floorgirl Madden testified credibly that in addition to Scarbrough, employee Nona Cobb operated the zigzag machine-in her unit. While Scarbrough was laid off 31, days in - the- 1970 layoff -,season, Cobb was off only 1 day. However; -Madden,-credibly - testified and Respondent's work -records establish that Cobb was a far better - producer-normally averaging above or near the $1.60 production rate -while Scarbrough consistently did not.19- Furthermore, Cobb, ,was a more versatile worker, "more adaptable , to different styles," and maintained .her quota when moved to, the simple needle operation . The record further shows that employees in other units classified as "zigzag" operators were laid -off frequently, one of them (Littie Dunn; )characterized , by Forelady Sample as low producer) as many as 31 days in the 1970 layoff season.20 Scarbrough - herself had been laid off frequently in prior years (before the events here -involved)-20 days in 1969 (May 15-August 7) and 28 days in 1968 (May 25 July 20). 4. - Ethel Mears Mears, first employed by Respondent in October 1966, was laid off 14 days between May 22 and July 25, 1970. She is one of the employees found in Case 26-CA-3396 to have been. discriminatorily discharged "either because Respon- dent knew or, believed her to be a union sympathizer or because Respondent , wished to `cover' its discriminatory motivation in dischaarging Mary Lou Mears [her „sister-in- law, infra, sec. F.]" (181 NLRB No. 94.) After Respondent offered her "full reinstatement to [her ] former or substan- tially equivalent job,", Mears reported to work on January 19, 1970,Told there was no opening ,as bagger (her former job_ classification),, Mears agreed to work as trimmer. The, complaint alleges that Mears' layoffs in May July 1970 and her-assignment to,the trimming operation in, January, 1970 were discriminatorily motivated =because of Union, sympa- thies and because she previously testified in a Board proceeding. As found in Case 26-CA-3396, Mears was a member of the Union's organizing committee. `Shortly after she was hired in October 1966, Mears worked as a trimmer (she had been a folder the first 3 months) under Floorgirl Murray . _ About a year, later (January _1968) she became a bagger, working under Mrs. Leiby. When reinstated on January 19, 1970, the then production ,-manager (Friedman) asked her if she would take a trimmingt positio,n..When Mrs. Leiby, who was present , at the interview,-explained she had no bagging or boxing, position available at the time, Mears agreed to take, a trimming job "until there was anopeningin bagging."In August, Mears asked,,' rs. Leiby about returning to bagging, but the latter said that "there was no opening" for that position thensand that none was "apt" to open in the near future. Mears has since worked as a trimmer.21 19 Scarbrough averaged only $1 . 15 between the weeks ending March 7 and May 16-as compared to $1.92 for Cobb..,(See Resp. Exh. 2;8.) 20 Dunn is not ,listed on the Union's telegrams to Respondent as I of, the 54 members of the Union Election Committee;, there is no claim that she was a Union member. 21 The findings in the -above paragraph are based primarily- on the credited testimony of Ethel Mears; Mrs. Leiby's testimony is not inconsistent in essential respects, except that she placed Mears"request to be restored to the bagging position in nud-September after she had 495 While a bagger is classified as a "time" worker whose, earnings are based on an hourly ($ 1.60) rate; a trimmer is: classified as a production worker whose earnings are based on incentive rates-except that the trimmers (like all production workers) are guaranteed the $1.60 minimum hourly ($12.80 daily)- pay. , The bagger's job consists essentially of removing garments from a box, marking or identifying the top garment in ,the box with a picture and number, and placing, boxes of garments on a buggyjor, transmittal to the shipping department. Trimming entails placing unboxed garments (laid out on a stick) upon a rack,, inspecting the garments for loose threads and needed repairs, and then placing the garments across a horse for transmittal ',to the folders. Mears, who was 62 years old, considered trimming to, be "harder than bagging" because (in her words) "it's harder on your eyes, it's harder on your body." Mrs. , Leiby, who made the- decisiontolayoff trimmers, testified that she had selected Mears more frequently,than others because Mears was her "lowest- producer"; she denied, that Mears' Union sympathies entered into the decision-22 - Mears conceded, that she had, never met the minimum production -quota ($1.60 hourly earnings) in trimming. The table below shows a comparison of her earnings with -those of other trimmers ,in the plant during the 24/2 months before- the 1970 seasonal layoff,, together, with the number of days each trimmer was laid off, during that season:23 Hourly Average Earnings Layoff- Days _ (3/7--5/23),(5/22-/25) Hears (Ethel) $1.09 15 Henderson 1.25 6 Hunch 1.57 0 House 1.19 7 Rose 1.60 2-1/2_ Hill 1.76 2 Jones 1.68, 3-1/2 Jester 1.68 3-1/2' Tabler 1.98 3-1/2 Harris 1.64 3-1/2 Mears admitted that she Was also laid off frequently ,in the 1968 summer layoff season, prior to advent ;of the Union in the plant and at a time when she worked as a bagger.24 Respondent's records show 'that she was'off 28 reminded Meats (at the request of the new general manager, Vecchione) of her.poor-trimming production. 22 Mears wasa member of the Union-Election Committee. 23 The table-is based on kesp. Exb. 2A, listing all 14 trimmers in the finishing department supervised by Mrs. Leiby. Four of the fourteen were excluded from the computation for -obvious reasons-three because they were hired after May 23, 1970, and one because she quit in June-1970. 24 Mears was not on Respondent's payroll during most -of, the 1969 season; as previously noted, she was found to have been discharged (Continued) 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days from May 25-July 20; 1968-3 of-, the 28, however; at ` her own req 5. Conclusions a. Whether Respondent laid `off the employees here involved for legitimate economic reasons or'for discrimina. tory, and unlawful reasons (i.e., to punish them for Union" activities and/or for testifying in a prior'Board proceeding) - presents only- a question of fact, resolution of 'which depends upon a weighing of all the attendant circumstances "to determine" what motivation' truly dominated the Employer in "laying off or`discharging the, employee['s}." N. LX B. v. Jones, Sausage `Co., 257' F.2d 878, 882 °(C.A. 4).- In determining this question it should'be borne in mind that an employee may be "laid off or discharged "for a good reason, a poor reason, or no reason at all, so long as`'the terms of the statute are not-violated." N.L.R.B. v. Condenser Corporation of America,`r128' F.2d 67,'75 (C.A. 3). -In''the absence of d'iscri, ination, the Board may not substitute"its, judgment for that of the employer-in selections for layoff. "These are matters to be "determined by the management. .. "'(NLR.B. v. Montgomery Ward & Co., 157 F.2d 486; 490 (C.A. 8)). - Based on the entire record, I find that General Counsel has failed to meet the burden, which is his, ,of establishing by a preponderance of the substantial credible. evidence that the layoffs here involved were unlawfully motivated. b. To begin with, it is undisputed that the 1970 summer (May-August) layoffs were economic, i.e., seasonal layoffs, motivated by business need, including semiannual style changes. General Counsel's and the Union's contention that Respondent unlawfully discriminated against the three employees here involved because of their Union activities and/or, prior testimony is ' rnotsupported by the record. The record shows that Respondent applied a new layoff policy in the 1970 summer season: Instead of rotating,, layoffs to give all employees at least 1 or 2 days' work each week (as it had done formerly), Respondent introduced the policy of laying off its lowest producers first and of retaining its best as long as possible. Insofar" as appears, this served °a legitimate business purpose, particularly in view of the unusually high "makeups" (amounts added to employees' pay to bring earnings up to the minimum $1.60 hourly wage rate) Respondent was then,experiencing. Furthermore, as, found supra (sec. C, 1), Respondent was faced with more than the usual layoff requirements in the 1970 summer season: (1) because of introduction of the new "unit system," which rendered less feasible than formerly the interchange' of operations and'operators; and `(2) because of the radical 1969-70 style'' changes in sleepwear, which, necessitateii' suspension of production until acquisition' of new materials`and"patterns and'the training df a work force' to handle new styles. c. The credited evidence establishes that the -.three employees selected for layoff were among the lowest (if not the lowest) producers. Winfrey consistently made less than minimum, production and was the poorest producer of the three binders- in her--unit. Scarbrough (a,zigzag operator) unlawfully in June 1969 andwas not'reinstated until January 19, 1970 averaged far below the expected ($1.60 hourly) ratee,,;,And Ethel Mears (a trimmer) conceded that she never- mett the; minimum .production quota; indeed, ,her hourly ,earnings were the lowest of all trimmers in, the finishing department. ; Other ;poor-producers,-, not, members, of .the . Union. organizing ' or election`,, committee,,,were also, laid off._ frequently-among- them Linda Ware (a binder) who was off as'many as 34 days, and Little>Dunn•(a zigzag operator) who-was off, 3-1 days in the 1970 summer, layoff season.., Moreover; Scarbrough, who was off 31 days in that (1970) , season, was off almost as many times (28'days)in the 1968 summer season-, long _before advent, of the Union. The comparison is even more striking in the case,ofMears who was laid off 28 days in the 1968 summer season as compared to 14 in the `1970 season. d. The basic ,Union activity with which the three alleged discriminatees were, identified'consisted ofmembership on the,Union organizing, or election committee. However, the, record (Resp. Exh. 8) shows that among the employees least laid off were members of the, committee-at least 21 of them not a single day. Indeed, three committeemen (Leona Altenbaumer, Patricia Chafin, and Jean ' Greer e)-who, like Ethel Mears,' were found to have 'been unlawfully discriminated against in Case 26-CA-3396 and (like Mears) were offered reinstatement in January=1970-were laid off no more ^ than I day each in' the' 1970 summer season-.25 All three had production records,far-better than those of-the employees-alleged to'have been-discriminated against in''the instant case. While; as General Counsel aptly states 6r., p. 17),' it is quite true that failure to discriminate against all Union activists does not necessarily negate other violations, it is'nonetheless a relevant factor in ascertaining motive. The point is that this recorddoesnot-support the complaint allegation,that'Respondent singled out the three' employees' named inthe compl'snIl t (Winfrey,' Scarbrough, and `Ethel Mears)' for repea`d layoffs.'because they were prounZ' or'because they testifiedin'a prior Board hearing. e. ` 'be 'sure, ` there is 'in this case, , ass- in manylayoff s and discharges for cause, countervailing evidence- tending to, indicate discriminatory motive.- This' includes the fact, stressed by General Counsel (br., p.17)' that'"Respondent's hostility - toward' 'organizing -efforts, on behalf of the employees is amply shown, by the - [three ] prior , cases" (supra, sec. A), wherein-Respondent was on no-,less than three occasions found in violation of Section 8(a)(1) and (3) of the Act. However, as the Board has stated, "The fact that there It" been a historyof unlawful hostility to unioniza= tion- does not serve alone as a substitute for proof that the action taken in' -thepr'esentinstance was' discriminatorily motivated; nor does' it serve to` shift the burden to' the Respondent to establish its'innocence. To conclude' . that because the Respondent' has repeatedly violated, the' Act, it `may be taken ' -for ' granted' that [the-' alleged discriminatee] was a `marked person,' is to say that its employees who have, engaged in union ,activities with its knowledge are thereafter forever immune from. the imposition of any dis,cciplinary,action'by the-Respondent. This is` a conclusion that we cannot accept. "The Act's grant of rights to, employees to, engage in organizing activities, to ss, Altenbaumer was laid-off , 1, day, Greene a EIfff,^day,,and Chafm no days. SPOTLIGHT COMPANY; INC. belong to a union,'and to engage in collective bargaining was not intended -,to -deprive management of its right to manage its business and to maintain production and discipline [footnotes omitted]." J. P. Stevens & Co., 181 NLRB No. 87 (75,LRRM 1371, 1374). See also N.L.R.B. v. Bangor Plastics, Inc., 392 F.2d 772, 777 (C.A. 6). Additionally, there is evidence that Respondent hired new employees during the layoff period instead of training and transferring the alleged- discriminatees to-take the jobs -occupied by, new employees. However, Respondent's evidence shows, that Respondent could not usually determine which operations would require changes in operators, (i.e.,, more or fewer girls)-until after the complete line of, new seasonal styles was received (normally in the middle or end of July); according to Respondent, it was more economical to place operators whose work had run out. on layoff status, until, the new styles were received. Further, according, to Respondent, .it, was only, after receiving its complete- line that it was in a position accurately to determine whether it would be necessary to restrain current-operators, Finally„the record shows that one of the three alleged discriminatees (Winfrey) was in fact assigned to two operations other than her regular one (from shear lace binding to simple binding and bar tack work) before being laid off, .but she performed no better at those than- at her regular, -operation; and that a second alleged' discriminatee (zigzag operator Scarbrough) was tried on, simple binding (prior to her. layoff) and sleeve setting.(during her layoff)-the latter,"an entirely different operation" for which she was successfully trained by her floorgirl and one which, she is still-performing. As to Ethel Mears, there is evidence that Respondent could have assigned her to bagging (her, job, before her discharge, in June 1969, supra, sec. C,4) had it been so disposed-there being evidence- that. Respondent on. June 16 (during,the layoff period) hired a new employee (Goodman) who did bagging. However, I do, not deem this factor sufficient to overcome the other circumstances already alluded to which compel the conclusion that Mears' . layoff was not discriminatorily motivated. The worst that can be said about Respondent's action is that it was unjustifiable and arbitrary, but a layoff or discharge motivated even by caprice is not proscribed by the statute. Accordingly, considering ,the record as a whole, I find and conclude, that the preponderance of evidence does not support the allegation of. the complaint that the layoffs, of Winfrey,- Scarbrough, and Ethel Mears were violative of Section 8(a)(3) and/or Section 8(a)(4) of the Act. D. .The Assignment of Ethel Mears to the Trimming Department General Counsel maintains that apart from discriminato- rily subjecting Ethel Mears to repeated layoffs (supra, sec. C, 4),- Respondent further unlawfully discriminated against her when it assigned her to the trimming operation after reinstating her .on January 19, ,1970. General Counsel's 26 As noted .supra; fn. 3, Case 26-CA-3396 is presently pending before the Court of Appeals far,the Eighth Circuit. 27 Based on Harris' credited testimony, which in most essential respects jibes with that of Murray., 28 As previously noted (see. C, 1), although Respondent abandoned its 497 position presupposes: (1) that the trimmer position to which Mears was reinstated (supra, sec. C,-4) did not constitute "full reinstatement" to her "'former or substantially equivalent" position, namely,' , the bagging operation; as required by the Board's order in Case 26r-CA-3396; and (2) that failure to comply witti,, a Board order, constitutes a separate violation, of the Act. While there is indeed, evidence (see supra, sec. C,4 4) establishing, substantial differences between the position of bagger (a "time" worker) and of trimmer;(a production or incentive job) to indicate .,that the two positions are .not "substantially equivalent", and, further, that there were bagger openings to which Mears could have been reinstated (if not at the time of reinstatement, certainly ,when Respondent later hired new employees, who performed bagging operations), it is unnecessary to makeany findings on this point here. I agree with Respondent (br., p. 36) that the question posed by General Counsel is, one properly to be determined at the compliance stage after,enforcement-of the Board's order, an a court proceeding.26 Failure to comply with a Board order does not, itself, constitute: a further violation of the Act. Cf. Canton Sign Co., 186 NLRB No. 39. E, The 1-Day Layoff of Employees Harris, Lamon, and Clift The complaint alleges that Respondent discriminatorily laid off the above-named employees because of their Union and protected concerted activities. All three attended a State Unemployment Compensation Board hearing involv- ing employee Mary Lou Mears (infra, sec. F). It, is _ stipulated that Mary Lou Mears' compensation hearing opened in Texarkana, Texas, on June, 16 and was continued to 4 p.m., on June ;30.,Eva Harris,, a trimmer in the finishing department working under Floorgirl Murray, was given permission to take off the last working hour (3:,15-4:15, p.m.) ,on June 46 to appear as a witness for Mears on, that day. Informed that she would be unable to testify (the hearing had to, be continued because of an accident to Mary Lou Mears' husband), Harris went home without going to the hearing. Around 4 p.m. on June 29, Floorgirl Murray asked Harris if she was going to take off the next day (presumably to attend the June 30 ,hearing). Harris testified that when she replied "Yes," Murray said, "Well, just take off all day then because' we gotta have someone here we can depend upon" the entire day.27 On June 29,1 Employee Louise Lamon, a boxer in the finishing department, also asked Floorgirl Madden ' for permission to take off at 3 p.m. the next day (June 30) to attend Mears' hearing. According to Lamon, Murray said "it was [her] time to be off and [she] could just take the whole day" off. Disputing Murray's statement that it was her turn to take off, Lamon said that Murray "better keep her records straight . . . because [Murray] was off last." 28 According to Lamon, she had been off previously in June. On, cross-examination she also stated that when Murray layoff rotation 'policy in the 1970 layoff season insofar as production workers in the sewing department were concerned, it continued to apply a rotation system in laying off hmeworkers (like boxers) in the finishing department where the "unit system" was not introduced, 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told, her ' to take -the---whole day' off, Murray also said she "needed someone "she could depend on" and""to be present all day.'- - ' ' Ruby Clift, "a' finishing- department folder, testified that the `day `before Mears' confpensation hearing (June 29), Floorglrl Murray asked if she was going to the hearing the next day. Clift replied, "Well, I really don't know, I haven't talked to anybody that's told me to " .. nobody told me." According to Clift, Murray also said that she "'wanted to know "who' to "depend' on"the next day. She admitted that she did not in fact ask management for permission to be off, but nonetheless took the day off to go to the compensation hearing because"'I felt that I' was =involved. She-also 'admitted `that no' one in management actually told her not to- report to work on June 30 . Clift testified that she had overheard Murray ask Harris if she was "going to the trial,"" but she did not hear Harris' response. Floor girl 'Murray testified thatt the June 30 ' layoff'"of Harris and Murray was occasioned by lack of work-and that "it`was,really their turn to be 'off." She also testified that she could` not, afford to allow the two girls to come in on June 30`and' then quit 1-1/2`hours before the end of the day because only half of the finishing department was scheduled to work on that date ; that the work in that department "is -more like an assembly line" wherein "one person depends on the other" and with "half a crew [off ] if one person misses, it fouls up everybody"; that with the small work force available, there - was less opportunity to shuffle and interchange employees for the various opera- tions;`and that insofar as Lannon (a boxer) is concerned, she operated'on June 30 `with =only` two of` her four boxers. Records produced ' by' Respondent `support Murray's testimon)' that a considerable number of finishing depart- 'ment employees `(at " least 10 others besides Larson and Harris) were laid off 'on 'June-30; that among 'these were triminers'(like'Harris) "and 'boners (like -Lamon) who' were 'not on the 'Union organizing`or election committee; 29 and that included in the laid-off group' were trimmers like Taber and boxers like Verdia Williams who Were each laid off `previously in June 1970 fors-2-1/2 `days.30 I credit Murray's testimony and find her explanation for the" 1-day (June 30) layoff of Harris and Lamon plausible and reasonable. ' I clinclucie 'that ' the preponderance of substantial credible evidence does not support the allega- tion in the complaint that their 1-day (June 30)-layoff was violative of `Section 8(a)(3) or (4) of the Act. Insofar as Clift is concerned, it appears that General Counsel did not even establisha prima facie case of violation- particularly (1) in view of Clift's admission that she had not asked 'manage- ment for permission ` to take time to attend the June 30 unemployment compensation ` hearing; and (2) her further admission that no one told her not to report to work on 29, While Harris was on the Union Election Committee, Lamon was not; but the latter did sign a Union card and attended a' meeting. 30 Lamon, who impressed me as a witness 'gomg to great length. to support General Counsel's (and her own) case,'admitted that Respondent's attendance record showing she was laid off one-half day in June (prior to June - 30) "sounds correct"; in April-May she was off only I day. -According to' Respondent's records, Harris °was laid off 1-1/2 days (3 half days) In June (prior-to June 30) and 1-1/2 days in March-May 1970.' 31 Unless otherwise indicated, all references in this section to Mears are to Mary Lou (not Ethel) Mears. June 30. Indeed, Respondent's records (Reap. Exh. 8) do not list her as one of the employees laid off for lack of work on June 30. F. The Discharge of 'Mary Lou Mears 1. The facts Mary Lou Mears, ' a- folder and ,sister in-law - of Ethel Mears, was one of the employees found discriminatorily discharged" (on June 18, 1969) ,in Case 26-CA=3396.31 She was reinstated to her former position'on'January'21, 1470, with assurances from ' the then- production manager (Friedman) that she would be treated "as if nothing ever happened-" She was discharged on May- 8, 1970,` after engaging in a fight with- her supervisor,' Floorgirl,,Murray. General Counsel contends that-Respondent's-reason for'the discharge is pretextuousand that she was in fact discharged (as 'the amended complaint alleges) because of Union activities and/or prior testimony ina Board proceeding. Mears testified that ' Fioorgirl Murray continuously avoided her ever since returning to work in January, explaining that Murray spoke to her only ,"wheni she had 'to" about work. According to Mears; Murray would "never acknowledge" her- requests •for tickets 32' as she would for others, although (as Mears admitted) she would ultimately bring them to her.33 Mears- also admitted that ' Murray's delay did not interfere with her-production and earnings. The record shows that Murray would usuallytake as`much as 10 to 20 minutes -`to bring tickets to employees ; between attending to other chores such as distributing Work, picking up garments in, need oflrepair, carrying bundles --from 'folders to trimmets, and checking with her own -superior (Mrs. Sample). Sherrill ' Wise, • Floorgirl Murray's niece, frequently engaged in conversations with Mears, who workedwith her "side by-"side." Murray "asked Wise "a couple of- times" before "not -to talk and-keep 'at work. "`On the afternoon of May 6, she came to Vise's table and' told her that she wanted her to "quit speaking" to'Mears because Mears "was getting her in trouble:' After Murray walked away, Wise turned to Mears and said, :"She may be my aunt, but she can't pick my friends." Mears commented, "I know that Dephia [Murray]-hates 'me, butI didn't realize she hated me that `much." In a later conversation " with Mrs. L'eiby (Murray's superior), Wise asked "why it was Dephia Murray was getting -on to [her] about talking." Mrs. Leiby assured her that Murray' only wanted her'"to keep up ... production." When Wise asked "was it because of the union,"-Mrs. Leiby said "no," opining that Murray "was looking out for [her ] good." Wise later told Mears that they "couldn't talk any more. "34 32 The tickets were placed on completed bundles to identify the folder or operator,responsible for the work. Thus,' Mears testified, "She [Murray] didn't take any longer in bringing nay tickets, it was that I had to Took no and look around to see her because she would never acknowledge the fact that I had asked for one like the other girls. If one of the other folders says,'Delphia;'I need,a ticket.' She would say,'okay' or 'just in a minute.' Or " some response." 34 The findings in the ` above paragraph are based on fire composite credited testimony of General Counsel witnesses Wise and , Mears. 'I do not credit Mears' testimony, denied by Wise, that the -latter had expressed SPOTLIGHT COMPANY, INC. Mears testified that after twice requesting tickets from Murray on the morning of May 7, she told Murray, "I still need a ticket onr:that bundle I folded a while ago" According to Mears, Murray "turned around and in a real low voice [said]. `Kiss my-' "On cross-examination Mears indicated, that, she (Mears) actually could not hear the words without observing, Murray's "lip movement"' Murray denied making -the remark, In any event, shortly afterward Murray " slammed " (Mears' characterization) a ticket on,Mears' table;without saying a word. At the morning break that same day (May 7), employee Gift askedMearsvuhy she appeared so `,`upset " Mears said "something about the tickets ... that we always have to holler, for., ..." lift "understood ,,' that Mears also said that she "was going to have to do something, she was going to,have to .get after [Murray ] :.+ `. to beat her up." Clift tried "to talk her put of it" and Mears agreed she would not "fight,Murray.35 At lunchtime (12 noon) on the same day (May 7), Mears -initiated ,a, scuffle or`"fight" with Floorgirl Murray which led to her discharge the next morning. Mears testified: Q. [By Mr. Henderson] On this date what hap- pened when the noon buzzer went off? A. I clocked out "'usual and went outside and I went out' to talk to Delphia IMurrayl and see if I could find ' out what kind of trouble I was getting Sherrill [Wise] in to. But when I got outside the door , I hollered, "Hey, Delphia." * * * * Q. (By Mr. Henderson) Approximately how far from her when you first called to her? A. - I'd-say four-or five foot [sic]. * * * * * - Q. After calling to her and getting no response, what, if`anything, happened? A. 'I just went to pieces: So I ran up behind her and grabbed her by the hair of the head. Q. - And then what happened? A. Well, in the scuffle I got hair pulled out and scratches. I think I hit her a time or two and we were pulled apart. Q. What did you hit her with? A. My fist. Q. Can you recall where you hit her? A. No,,l don't. Q. Can you recall the general area? A. Somewhere in the face. Q. Did you scratch her? A. No, notthat I recall. Q. What about you? Did she do anything to you? A. Yes., .1 had two bad scratches on my arm and I had three finger bruises-and my arm-the scratches and bruises were, on my right arm and the back of my left hand was swollen and bruised. the opinion that Murray wanted Wise to cease talking to her because of Mears' pro-Union- sympathies. Wise, a college student no longer in Respondent's employ, impressed me as a forthright 'and credible withness. 35 Based on the-testimony of `Cleft, one of the alleged discnminatees in 499 Q. You say your blouse was torn. Where was it torn? A. My bouse was torn all the way up one side up under the arm. According to Mears, the incident lasted 2 or 3 minutes when she was separated from Murray with the following exchange: She [Murray] says, "God damn you, Mary Lou, I bate you, but Sherrill I do care about and you are getting her in trouble." And I told, her, I said, ",God damn you, Delphia, I have never gotten anyone in trouble down here, much less Sherrill and she will tell you so herself if youwill ask her." Several witnesses, including Murray, testified that as the two -women were being separated, Mears said "something about she would teach [Murray] to he about her in the court," (a reference to Murray's testimony in the prior Board hearing). Two witnesses to the scene heard Mears say she was supposed to have returned to work (in January) "without any prejudice:' One of them alsorecalled Mears telling Murray that "if she had to do it over again, she would do it again." Murray "looked like she was pretty well beat up" and was helped to her car to get home. Informed of the encounter, General Manager Leiby summoned Mears to his office, to which Mears then went, accompanied by two coworkers (Scarbrough and Hedrick). Mears testified: We walked in the office and Paul [Leiby] , .. turned around and he said, "They tell me that you beat up on Delphia [Murray]'a while ago." I said, "That's right, out in the parking lot and on my own time." He said, "Well that is no excuse. We don't have anything like that going on around `here." He said, "I'm going to send you home until I can find out about =this and I'll notify you when to come back." I said, "Paul, does that mean that I'm fired?" And he started to yell, and I said, "Paul, don't raise your voice to me because I don't have to stand here and let you talk to me like that." So in a more calmer voice, he said, "I said I was sending you home until I can get to the bottom of this and I'll notify you when to come back." I said, "Paul, aren't you the Plant Manager?" He said, "Yes." I said, "Well, I have a letter with your signature stating that I was to be reinstated down here with all rights and privileges and no prejudices." I said, "You know-or you can't tell me that you are so blind that you haven't seen, much less heard, some of the things that have gone on back there. You know I've been shown nothing but prejudices since I've come back to work." I said, "You know that Sherrill [Wise] had Emile [Leiby] in the bathroom for about 30 minutes yesterday afternoon." He said, "Well, that's between Emile and Sherrill." I said, "Also, Paul, you know that Delphia and Emile both lied on me on the witness stand at our .hearing." ... He said, "I don't care what Delphia or Emile does on the witness stand or otherwise, that gives you no excuse to beat up anybody." I says, "Then you are sending me home?" this case (supra sec. E), who was recalled as a Company witness, Mears denied telling Chit or anyone else ' that she was "going to get" Murray. General Counsel' witnesses Hedrick and Harris, who participated in the morning break talk, did not dispute Cliff's testimony. 500 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD And he said, "That's right." And I said, "All right, I'm going home, Paul. But I want to let you know before I go home that I am°going to call the NLRB because I do have rights and I do have privileges." He said, "q1at's true, you do have'privileges and it's your right tatty to get them." And with that we walked out of the office. The accounts of the Leiby-Mears interview given by other witnesses; including Leiby,,are, consistent in essential respects. Leiby credibly testified that he also asked Mears why she had not' come to him previously about her claimed mistreatment, to which Mears responded that she, "was going to." 36 According to --Leiby," he had talked to "numerous employees to find out what justdid happen" in the parking lot. altercation, mentioning some of-them; he also obtained a brief written description of the episode from one employee.-Additionally, he obtained Murray's version of the event 37, On the next day (May,8, payday), when Mears went to the plant to pick up her check, Respondent's office girl handed her the following letter signed by Leiby: The Company has investigated the incident=o€ May 7, 1970,, in ;which you were involved in a fight with floor girl, Delphia Murray, on the Company's parking, lot during the noon lunch period. Enormousjsicl employee witnesses have stated that-you assaulted Mrs. Murray without provocation and injured her with your hands. The Company can not condone your gross misconduct on its premises in attacking and injuring a co-employee. Your conduct is ,in violation of the Company's working rules, Page 7 of the -Employee's, Hand ,,Book and constitutes grounds for dismissal. Because of the seriousness of the infraction, the Company is terminating your employment. The Company rule referred to provides that dischargeable offenses include "Engaging inany acts or conduct which do or, may , contribute_Jo the, injury of any worker, such as fighting, scuffling or horse-play." 2. Conclusions On the basis of the substantially undisputed evidence summarized above, including ` Mary Lou Mears' own account of ,the May T"fight," I find and conclude that Mears' discharge was motivated-by her misconduct-an assault against ,', her 'supervisor; and, therefore,- that the discharge was privileged lawful.' It is clear 'that Mears instigated the altercation because, as she admitted, she was upset about the way Floorgirl Murray had been treating her, including the way Murray had ignored (although she ultimately, admittedly complied with) her' requests for tickets' to be 'placed on bundles. Murray's most recent instruction to her niece, folder Wise, not to converse with Mears and to attend to production triggered Mears' outburst. As Mears herself', testified,- "I just went to pieces ... ran" up behind' her fMurrayl and grabbed her by the 36 Mears admitted that she had never complained to management about the way Murray had treated her. 37 Respondent offered in evidence a written report of an investigation of the incident prepared by Leiby. On General Counsel's objection to the offer on the ground that it was not a business record prepared in the course of business (as claimed by Respondent), but a "self-servicing" memorandum, I reserved decision on admission of the document. Leiby having testified at the hearing on the subject matter of the memorandum hair of the head...." In my view, it matters•not whether ,Mears' grievances against Murray wereireal or, imagined. An employee is not justified innresorting to violent self-help to settle her, differences with a' supervisor; the statute discourages' "private retribution." Renfro 'Hosiery , Mills, Inc., 122 ^ NLRB 929, 930, -942:' As' indicated; Mears conceded ' that she had never: attempted to take up her complaints against Murray with -the,Tatter-'s superiors. r '- As`in the,case 'of the allegeddiscrimiiiatorylayoffS (stipi.a, secs. C and E), General Counsel' andthe Union rely on the history of Respondent'si"antiunion animu 's' to `show',that Respondent was really outto1, get Mears , because she was-a loyal Unionist and had given- testimonyin'a prior Board hearing; and that Respondent merely seized upon the May 7 altercation as apretext'to get rid of her. However', as''the Board' has stated, "The-mere , fact that an"eaiptoyer may desire to terminate an employee because''he 'engaged 'in unwelcome concerted activities does not, ofltself, establish tlie,unlawfulness-of a subsequent discharge. If'an-employee pfdvtdes ` an employer with 'a= sufficient' cause' foie' his dismissal by engaging"in conduct for, whicl he would' have been terminated in,' event, and the employer discharges him for that reason, the circumstance that ' the `employer welcomed ,the opportunity to 'discharge doe-s„`not make it discriminatory and therefore unlawful " Kldte'Hol't Compa- ny, 161 -NLRB 1606,, 1612. "Although union activity may not serve as the basis for a discharge, neither may ,such activity serve as an insurance policy against discharge." N.L.R.B. v. Grand Foundries, Inc., 362 F.2d 702, 710 (C.A. 8). In further support ,of their position that Mears' discharge was pretextuous, Respondent and the Unionn.relyon a prior (a year earlier) "slapping - incident"_, ;between Floorgirl Murray and another employee (Penney), which {incident did not result in discharge . However, that episode appears to have been minor in scope and effect in comparison to the May, 7 altercation, ^ even if General, Counsel,;,witness Penney's disputed account were "fully, credited Penney testified that- Murray "slapped" her after Penney called Murray "an old devil." Penney hit Murray back on the arm and that was the end of the episode. When, Leiby called upon the two women to explain the incident, they-differed as to whether Penney had called Murray "a devil" (as claimed by Penney) or "a bitch" (as claimed by- Murray). Although Leiby first wanted Penney to go home for the day to "cool off," he ultimately agreed to forget the whole episode if, as he told them, "you girls, think you can settle down and finish your day's work and apologize to each other," which they did. Penney 'admitted,d however, that Leiby told both that he "wouldn't stand"- for, thatkind of conduct. It is noteworthy ; that no disciplinary action whatever (let alone discharge) was visited upon `Penney, although Penney was a known Union supporter.38 ` I conclude that the preponderance of substantial credible (investigation of the incident), I find the memorandum to be superfluous and unessential to the conclusion, rendered herein. Accordingly, it is excluded from the record. 36 Another incident relied on by the Union ft, p.. 9), but apparently not ,by General Counsel, involved employee Ola'Mae Su mmerall, who was involved in a fight on the Company parking -lot (in; July 1970)- with. a nonemployee who had accused Summerall,of "running around" with her husband. Leiby settled 'the matter by calling the police to handle the SPOTLIGHT COMPANY, INC. evidence does not support the allegation of the complaint, that Respondent's discharge, of Mary Lou Mears was violative of Section 8(a)(3) and (4) of the Act. CONCLUSIONS OF LAW 1. Respondent ; is an employer engaged in commerce within the meaning of theAct. 2.. Wanda Madden, Delphia Murray, and Charlotte Young are,,as alleged in the complaint supervisors within the meaning of the Act. 501 3. It has not been established that -Respondent laid off or discriminatorily discharged the employees named in the complaint in violation of Section 8(a)(1), (3), and (4') of the Act. RECOMMENDED ORDER Upon- the basis of the foregoing- findings of. fact and conclusions of-law, and upon the entire record in the,case, it is recommended that the, complaint be dismissed in its entirety. ' "outside person" and by' admonishing Summerall that he "could not condone fighting" on Company, property. This episode with a stranger is clearly dissimilar from the'described hair-pulling match with a supervisor.