Lisa's Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lisa's Inc. and Mable Elizabeth Tilghman and Bernice Foster. Cases I 1-CA-6624 and 11-CA-6751 June 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 9, 1977, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supproting brief, and the Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Lisa's Inc., Grifton, North Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Respondent argues that, contrary to the Administrative Law Judge's conclusion, Erma Chapman did not testify that she was denied time off. But however her testimony is construed, it reflects that her requests for leave were treated more restrictively after the election. That, and not the degree of restriction, is the significant point. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard in Kinston, North Carolina, on November t The charge in Case I l-CA-6624 was filed by Tilghman on June 22, 1976; the charge in Case 11-CA-6751 was filed by Foster on October 4, 1976. Respondent denied the critical allegations in the complaint. The General Counsel filed a brief; Respondent did not. 2 At that time, charges were filed alleging that Respondent discharged four employees, including Erma Chapman, Mable Tilghman, and Bernice 230 NLRB No. 65 11 and 12, 1976, on a consolidated complaint, issued on October 20, 1976, alleging that Respondent violated Section 8(aX3) and (1) of the Act by discharging employees Mable Tilghman and Bernice Foster because they engaged in union activities.' Upon the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: FINDINos OF FACT 1. JURISDICTION Respondent, a North Carolina corporation with a facility in Grifton, North Carolina, is engaged in the manufacture of children's garments. During the past year, Respondent derived gross revenues in excess of $50,000 from the shipment of finished products to States other than North Carolina and purchased raw materials valued in excess of $50,000 from points outside North Carolina. I therefore find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Local 361, Tobacco Workers International Union, AFL- CIO-CLC, hereafter the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1973 the Union conducted an unsuccessful campaign to organize Respondent's employees.2 Another campaign among Respondent's employees to organize on behalf of the Union took place in late 1975 and early 1976. Employees Erma Chapman, Mable Tilghman, and Bernice Foster were leading advocates on behalf of the Union. They wrote, signed, and distributed leaflets. Together they accounted for most of the signed union authorization cards obtained from employees. They were officers of the plant organizing committee, attended union meetings, and visited employees at their homes on behalf of the Union. They were subpenaed by the Union to testify on its behalf at a representation case hearing before a Board agent upon the Union's election petition. Tilghman was the vice president of the organizing committee and was consulted by the Union at the representation hearing. Foster and Chapman were union observers in the election which was held at the plant on April 29, 1976. The Union lost that election. In the 1976 campaign, Respondent vigorously opposed the Union. Antiunion speeches were delivered to assem- bled employees by Feldman, whose home office is in New York City. On the day of the election, just after the voting, Respondent's attorney, Blossom, told the Union's repre- sentative at the polls, Rudolph Holly, that he was glad that Foster, for engaging in union activities. This case was settled and the employees were reinstated with backpay. The settlement agreement contained a nonadmission clause. Respondent's general manager, Bert Feldman, testified in this proceeding that the case was settled because of certain "gray areas" in the discharge of these employees. I do not consider this evidence probative one way or the other in determining whether Respondent, in this case, discriminatorily discharged Tilghman and Foster. 492 absent for a period of 4 days in September 1976 because of lack of transportation. At that time, she told Traylor, who was then plant manager, about her problem. She was not disciplined or reprimanded upon her return to work. There is testimony that employee Reel was absent for 3 working days the second week in June 1976 when she and her husband took their vacation in Nashville, Tennessee. She told her supervisor, Shelby Simpson, about her intent early in 1976 and mentioned it again to Supervisor Betty Manning in May and the week before her vacation. She took her vacation and no management official questioned or disciplined her about this matter. Her workload was normal just before and after her vacation. In addition, she took her normal vacation in July 1976. Reel also quit for 2 or 3 weeks in the fall of 1976 because the work "got on her nerves." She was rehired without any difficulty. Reel was not active in the union campaign. 3 There is also uncontradicted testimony that employee Ethel Lupton, who spoke against the Union in the 1975-76 campaign, sought I week off in June 1976 to babysit for her visiting daughter's child. She called the plant to ask for the time off. Later that day she was called back at her home and was told that Traylor wanted to speak to her. The next day in his office, he asked if she knew what had happened to another girl who had wanted a week off, and also said that she should come in or he would have to fire her.4 Lupton missed 2 days but returned to work the day after her talk with Traylor. She was not disciplined for taking 2 days off. Another employee took time off for I week in August 1976 without difficulty. This employee, Frances Wilson, was not a union supporter. Wilson also took her normal vacation in July. This testimony was uncontradicted, although Head Supervisor Maria Smith testified that she told Wilson that "it was okay" because the work was slack at the time. Shelby Simpson, who had been a supervisor for 3 years, testified that the procedure for getting time off was that employees asked her and she referred them to the plant manager and then the plant manager would tell her whether the time off had been given. Concerning absences of I day due to sickness, she testified that she had the authority to give time off provided the employee came in with a written explanation. If an illness lasts longer than I day, employees are required to call in. Both Simpson and Supervisor Manning testified to lax policies concerning absence from work. Supervisor Simp- son explained that on any given day there are several pocket setters absent from work. Both Simpson and Manning testified that frequently employees took time off to tend their children. Manning explained that employees are often transferred from one department to another because of absences. When asked if she reported absences to the plant manager, Manning replied, "In some cases yes, and in some no." Manning also testified that the majority of the employees who are absent never mention it to the plant manager. 4 Traylor was apparently referring to Mable Tilghman whose discharge is discussed, infra. the Union lost the election but he "hated to see all of these people out of ajob." None of the above has been alleged as violative of the Act. However, Respondent concedes that it was opposed to the Union and knew of the union activities of Tilghman and Foster. Respondent alleges that Tilghman was dis- charged for cause-taking a week off work unexcused- and Foster quit as a result of Respondent's refusal to grant her time off for a personal trip. Key to the General Counsel's allegation that employee Tilghman was discrimi- natorily discharged and Foster constructively discharged for their union activities is the contention that Tilghman and Foster, as well as Chapman, were the victims of disparate treatment concerning time off because of their union activity. B. Respondent's Policy On Absences The evidence shows that employees were absent for a wide range of reasons and the procedures followed by employees relating to absences were varied. Sometimes employees would request time off in advance; other times they would simply inform Respondent of an upcoming absence. Still other times they would take the time without notice or explanation until their return. Regardless of the procedure followed, the absence would invariably be excused. The reasons given for absences included caring for children or other relatives; driving people to distant places; funerals; vacations; personal illness or the illness of relatives; and transportation problems. When they took leave, some absent employees were working overtime and some took off when their workload was normal. The evidence shows that warning notices were issued to only two employees who took time off in 1976: Callie Person and Brenda Carmon. There was testimony that Callie Mae Person, a pocket setter, was absent I week in May 1976 because she had to drive her mother to Baltimore to visit a sick uncle. She notified her supervisor the last workday before taking off. When she returned she was told to see Plant Manager John Pressley and Assistant Plant Manager Guy Traylor. They asked her why she was out and, after she explained the situation to them, they cautioned her that she should have a written excuse for such absences in the future. She was permitted to return to work with a warning notice inserted in her file. The warning notice states that her absence was excused except for the last day, which was not excused, and there is an indication that this was a first warning notice. Person was not penalized in any other way for her absence. There also was testimony that Brenda Carmon, a pocket setter, was issued a "Ist notice" for "excessive absenteeism, did not call in" on August 26, 1976. She was absent for 3 days in October 1976 because she did not have transporta- tion to the plant. She notified her supervisor the first day she was out but not the next two. On returning to work, she was questioned about why she did not call in the last 2 days of her absence, but she was not disciplined or reprimanded. She was working overtime before her absence. She was also 3 Supervisor Shelby Simpson testified she could not remember any conversation with Reel about time off but said she did not give her permission to take time off. Manning testified she might have had such a conversation with Reel. I credit Reel's testimony as more precise and reliable. LISA'S, INC. 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manning also testified that before Pressley came in as plant manager, sometime in 1975, she had authority to grant time off for as long as a week. She testified that the policy changed when Pressley came in. There was no meeting of the employees to announce this change in policy, and they would not have known of it unless they spoke to the plant manager, or through word of mouth, according to Manning. Plant Manager Pressley testified that the Company "wanted to be as lenient as possible with time off, and allow time off as much as we could." He also testified that there was a warning notice policy for breaches of policy such as absenteeism. Employees would be given one or two warning notices and he testified that warning notices might be issued before the discharge of an employee, although not always. He did not remember any case during his 7 months as plant manager where he fired anyone for "being out other than just excessive absenteeism." He also testified that there would normally be warning notices for excessive absenteeism before a discharge. Plant Manager Traylor, who was terminated shortly before the hearing in this case, did not testify.5 The evidence also shows that Erma Chapman, who was president of the Union's organizing committee, was denied time off after the election, whereas before the election she was granted time off without difficulty. In February 1976, she had been off 5 full days for her brother's funeral after calling in. Since the election, when Chapman has requested time off, she has either been refused or told that she needs a note or special permission. Her requests included a request for time off for a doctor's appointment, for a death in the family, and to help her son get ready to leave for college. C. Tilghman's Discharge On Tuesday, June i, 1976, Tilghman had a conversation with Plant Manager John Pressley and told him that she was having trouble finding a babysitter for her 2-year-old child for the next week. Tilghman's aunt normally babysits, but she was unavailable that week. Tilghman said that if she could not find a babysitter she would have to take the week off to care for him. Pressley asked if there were any nurseries in the area and she said "no." Then either Pressley or Guy Traylor, assistant plant manager, who also was present, asked how far she lived from the nearest town and she told him.6 Pressley said that he had plenty of work for her to do at the plant. Afterwards he said that other people who worked I Respondent was also permitted to introduce documentary evidence in this proceeding to show that it terminated four employees in June 1976. The evidence in two cases consisted of separation slips provided by the North Carolina Employment Security Commission; they indicate that the employees "refused to perform" assigned work. The evidence in the two other cases consisted of "individual performance" sheets with penned notations of terminations for having "insubordinately refused to perform assigned work" and "Term 6-4-76, no babysitter." There was no other evidence concerning these terminations and I find the documents them- selves carry little if any weight in the resolution of the issues before me, particularly since they do not deal with the issue of absenteeism. 6 Tilghman lives in a rural area 15 miles from Kinston and 30 to 35 miles from New Bern. T The General Counsel in his brief moved that the transcript be corrected at p. 57, 1. 3, to add the word "if" so that the passage in Tilghman's testimony would read "and if you can't, you just can't." This motion was at the plant had babysitters and that he would ask around to see if one of them could provide a babysitter. He also said something to the effect that if she could not find a babysitter she couldn't. 7 Tilghman worked the rest of the week and, although she tried, she could not find a babysitter. On Friday, June 4, after work, Tilghman talked to Supervisor Shelby Simpson outside the office. She told Simpson about her conversation with Pressley and said that she still had not found a babysitter and would have to take the next week off. She told Simpson if she found a sitter she would come in to work. Simpson gave her a slip with her telephone number and told Tilghman to call her if she could come in the next week. Simpson then returned to the office where Pressley and Traylor were also present. Tilghman was unable to get a sitter and did not report for work on the following week. Tilghman returned to work on Monday, June 14, 1976. She clocked in and was told to report to Traylor in his office. Traylor asked her where she was the week before. Tilghman's uncontradicted and credited testimony con- cerning this conversation is as follows: Well, I went in; he asked me where was I last week, which was the week that I was off; I told him that I didn't understand, that I thought that it was under- stood, that if I didn't find a baby-sitter that I would take that week off, and he said, "Well, I had expected you to be back into work," and I said, "Well, I told Shelby on Friday, that was my supervisor, that I had not found anybody," and he said, "Yeah, I know, but I still expected you to be back into work," and I said, "Well, I don't understand because the other girls, employees, get time off, and there is no problem"; and he said, "Well, they got off because of important business"; and I said, "Well, my baby was important business to me, and I wasn't going to leave a two-year child at home by himself." And so he said, "Here is your layoff slip and your check." And I said "Mr. Pressley even offered to help me find someone,"-and he said, "Well, finding you a baby-sitter is not our responsibility," and I said, "I knew that." The layoff slip given to Tilgham had been filled out the previous Thursday and read "insubordinate refusal to perform assigned work."8 unopposed. The corrected transcript reflects Tilghman's testimony else- where in her description of Pressley's remarks. I therefore grant the motion. 8 The above is based on the credited testimony of Tilghman who impressed me as a reliable and candid witness. Pressley's testimony was in conflict in one significant particular. He testified that, in his first conversation with Tilghman, he did not excuse her absence. Pressley did not impress me as a reliable witness on this issue. For example, his testimony in part was evasive and contradicting. He seemed so anxious to emphasize that he did not excuse Tilghman's absence that at one point on cross- examination he testified that he told her she would be fired if she took the week off but subsequently modified that to say that he simply told her that her reason was not excusable. On another occasion, in discussing the time off of employee Person, his testimony on direct was evasive. He also testified that he told Tilghman he would help her find a babysitter, which corroborated Tilghman's testimony and makes it unlikely that he made it clear that the absence was unexcused, as he testified. 494 LISA'S, INC. Tilghman had been employed at Respondent's plant in Grifton since Respondent purchased the plant in 1971. She had worked at the plant for the former owners as well, spanning a total period of 15 years. She was a pocket setter and had been complimented often on her work by her supervisors. She was often assigned to do special work because of her sewing ability. Before June 1976, Tilghman had often been absent and had never been refused a request for time off or criticized in any way for taking time off. Some of the absences due to her sickness or the sickness of her children may have been as long as I week but none of them was for failing to find a babysitter.9 D. Foster's Discharge Foster had worked for Respondent since it began operating the Grifton plant and, before then, for the former owners, a total of almost 15 years. She was a pocket setter. In late April 1976, Foster made a request to Pressley for a week off beginning June 8, 1976, in order to attend a western music festival in Nashville, Tennessee, with her husband. Pressley said he would get back to her later on her request. Foster testified that a few days later, her supervisors, Maria Smith and Betty Manning, told her she had the week off and that "everything was okay." Foster then went ahead and made travel and other arrangements for her trip to Nashville. In either late May or early June, when Traylor was promoted to plant manager, Foster asked Supervisor Manning whether she should ask him about her time off request. Foster testified that Manning said "no" and that "everything was still okay." Supervisor Betty Manning testified that Foster asked her for a week off in early 1976. She said that she had to check with Pressley who said to wait and see. She testified that she conveyed this to Foster. She also testified that Foster asked if she should talk to Traylor who in late May or early June had been promoted to plant manager. She said it might be a good idea. She said she does not recall telling Foster pointblank that her vacation was approved. Rather she recalls telling her if it was all right with Pressley it was all right with her. Maria Smith, the head supervisor at the plant, testified that she spoke with Foster about her time-off request but that she never approved the time off. She testified that she told Foster the time was all right with her if it was all right with Pressley. Pressley testified that he told Foster he had to wait and see on her request. He also testified that he explained to Foster that his policy of absences was that time off was based on the workload at the time of the absence. On the Monday before Foster was to begin her vacation, she was told to talk to Plant Manager Traylor about her I also credit Tilghman's testimony over that of Simpson to the extent that there is a conflict. Simpson was reluctant to admit that she gave Tilghman her telephone number as Tilghman testified. Yet she conceded that the number on G.C. Exh. 8 was her telephone number and that she may have given it to Tilghman. Simpson also testified that she was surprised when Tilghman told her on Friday that she would not be in the next week and that she said she needed her "real bad." Yet I find it incredible that Simpson did not talk to Presley or Traylor about Tilghman's requested absence. The two week's vacation. Foster went to see Traylor. Her testimony about that meeting, which is uncontradicted, is as follows: I started to explain to Mr. Traylor about my week's vacation. I told him that I had discussed it with Mr. Pressley and Betty Manning about three months before; also that I had discussed it with Betty Manning about a week before. Mr. Traylor said that he and Mr. Pressley had discussed it, and that I could not have the week off, that I was needed, that I was a good operator. I told him that I had made plans, made reservations, and had mailed money to Nashville, Tennessee for the reservations, and for the Fan Fare tickets, and that it was too late to get my money back, that I couldn't see my husband going by himself, and that I wanted to go with him. Mr. Traylor said that we had a week set aside for vacation. I told him that I realized that but what I wanted to go for was for one week out of the year, and that was the second week of June. He still wouldn't let me have the week off, and so I said, "I hate to do it but I guess that I will have to resign." I got my things and left. Q. How much money had you sent for advance reservations? A. Approximately $150. Q. Was there any way that you could get that money back at that time? A. No. She left the plant and the next day left for Nashville where she and her husband stayed for I week. There is no evidence that she went back to the plant on her return home. In harmonizing the above testimony, I find that Foster was not specifically told that she could have her week off although nothing was said to her that she would not be able to have the week off. That the time off had not been firmly granted is shown by her admitted request as to whether she should bring the matter to Traylor's attention. In addition, the statement made in Foster's affidavit, i.e., that Manning "thought" the time-off request would be "okay" is more compatible with the testimony of Pressley, Manning, and Smith and with management's lenient reaction to time-off requests in other instances, which appear in this record and have been discussed supra in section II, B. For these reasons, I also credit Manning's testimony that she said it would be a good idea to see Traylor who had just been named plant manager. I also believe it likely that this conversation took place in early June as Foster stated in her affidavit because it was given at a closer point in time to the events herein. Consequently, it is not unusual that Traylor's request to see Foster and to finally and firmly deny the time-off request occurred on Monday, June 7, the day before she was scheduled to leave for Nashville. men were in the office the Friday Simpson spoke to Tilghman. Pressley admitted he was going to help her try to find a babysitter, and there is other testimony that supervisors have almost daily contact with the plant manager. 9 Her procedure for taking time off on these occasions was to call in and notify a secretary or a supervisor. She would call in the day before if it were for personal business, or the day of an illness if it was for this purpose. She was also off for I month because of illness in early 1976. 495 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find based on the above that Foster was not specifically told that her time-off request had been granted. Prior to June 1976, Foster had been absent from work for funerals, illness, and long weekend vacations. She would ask for time off in advance or, in the case of illness, call in on the same morning. She was never refused time off. Foster's workload at the plant the weeks immediately before June 7, 1976, was average and she was not working overtime. Foster was a highly regarded employee who had been offered but refused a job as assistant supervisor. She had been praised for her work and was assigned special work. E. Discussion and Concluding Findings 1. Tilghman In view of the evidence I have discussed above in section II, B, I find that Respondent had a lax and liberal policy concerning absences and time off. Up until the election of April 29, 1976, time-off requests were routinely granted for all employees for various reasons. I also find that, on the record in this case, Respondent treated time-off requests from, and absences of, union activists Erma Chapman, Bernice Foster, and Mable Tilghman differently after the election of April 29, 1976, than time-off requests from, and absences of, other employees who were not union activists. In view of this disparate treatment, as well as other evidence surrounding Tilghman's discharge, I find that Respondent discharged Tilghman not for cause, as it contends, but because of her union activities as General Counsel contends. Respondent's antiunion posture and knowledge of Tilghman's union activity is undisputed. Tilghman had been the vice president of the organizing committee and was identified as a leading union adherent by virtue of her presence at the representation case hearing on behalf of the Union. She was a highly regarded veteran employee whose discharge occurring shortly after the April 29 election was inexplicable except by reference to her leadership role in the union campaign. It is unlikely that such an employee would be discharged for taking time off to care for a 2- year-old child in circumstances where she notified Respon- dent of her absence in advance and she was not warned that discharge or discipline would occur if she took the time off. The reason advanced for Tilghman's discharge-insu- bordinate refusal to do assigned work-was inaccurate. The testimony clearly shows that Tilghman was ostensibly discharged for taking a week off from work to take care of her child. The credited testimony indicates that Tilghman had notified management officials of her need to take the time off and her inability to get a babysitter. The credited testimony also shows that Respondent's officials did not tell Tilghman that she could not have the time off or that she would be disciplined for taking the time off. In view of the overwhelming testimony concerning Respondent's lax time-off policy, as well as the credited testimony concern- ing the conversations management officials had with her, Tilghman had every reason to believe that her time-off request had either been granted or would be treated as excused without penalty or discipline. In these circum- stances, Respondent's recourse to insubordination as its reason for terminating Tilghman warrants the inference that it knew it needed to buttress its reason for the discharge, and is further evidence that neither this reason nor her absenteeism was the real reason for its action. The evidence shows that Respondent treated Tilghman differently than it treated other employees who were absent for extended periods for various reasons in 1976. Many of these other employees were not union supporters. The evidence also shows in the face of a lax and liberal time-off policy that Respondent denied time-off requests of union supporters Chapman, Foster, and Tilghman. Except for two employees who were warned, none of the other employees were disciplined for taking time off which, in many cases, was unexcused. Tilghman's uncontradicted testimony also indicates that Traylor recognized the liberal time-off policy was being tightened in Tilghman's case, when he responded to her statement that others had taken time off with no problem with the statement that in other cases this was done for important business. Respondent has not shown that other absences that were excused or permitted were limited to important business in any manner different than Tilghman's need to care for her 2- year-old child. Respondent's discharge of Tilghman in these circumstances shows disparate treatment explainable only by reference to her recent leadership role on behalf of the Union. Tilghman's discharge is unusual in other respects. Respondent has a warning notice system which was in effect in 1976 providing for first and second warning notices for a number of offenses, including absence. The record shows that warnings were issued to employees for absences in May and August 1976. Carmon was issued a warning for "excessive absenteeism, did not call in" and employee Person was warned for taking a week off in late May 1976; she was excused for only I day. Tilghman was not issued a warning before her discharge and had never been issued a warning for absenteeism in the past. Pressley testified that warnings were issued before discharges in some cases and, in view of the notices issued to Person and Carmon, I must conclude that discharge for absenteeism was preceded by warning notices. Thus, the failure to issue either a verbal or written warning to Tilghman, and instead her discharge for what the evidence shows was a nonob- jected-to absence, of which she notified management in advance, is strong evidence that her discharge was for other reasons. The inference of illegality becomes conclusive when I consider Pressley's testimony that in his 7 months as plant manager he can only remember discharging employees for excessive absenteeism. Tilghman's case does not fall in this category. In the face of this evidence and the failure to warn Tilghman, it is clear that Respondent's peremptory discharge of Tilghman was not based on her taking a week's absence in June 1976, but rather on her activities on behalf of the Union. At the hearing it appeared that Respondent sought to defend Tilghman's discharge on the ground that it needed Tilghman because she was a double-needle pocket setter at that time. Although two of Respondent's witnesses testified that this was the case, I cannot accept this testimony or Respondent's defense in view of the credited testimony 496 LISA'S, INC. herein. Manning testified that there were three or four experienced double-needle machine operators present the week of Tilghman's absence who were not working on double-needle machines. Manning also testified that the shifting of employees from one department to another occurred "fairly often" and there is testimony, which I credit, that working on the double-needle machine was little different from working on a regular pocket-setting machine. Moreover, I credit Tilghman's testimony, which was corroborated to a certain extent by Foster, that her workload at the time was normal. That she was not particularly needed at this time is also confirmed by the testimony that employee Person, a pocket setter, was absent the week before and, the same week Tilghman was out, employee Reel was off for 3 days. In these circum- stances, Respondent was not shown that there was any greater need for Tilghman to report to work during the week of June 7 than there was for numerous other employees who were granted time off during 1976 with no difficulty. Accordingly, I find and conclude that Respondent's discharge of Mable Tilghman was based in whole or in part on her activities on behalf of the Union and thus violated Section 8(aX3) and (1) of the Act. 2. Foster I find that the General Counsel has not shown by a preponderance of the credited evidence that Respondent constructively discharged employee Bernice Foster because of her union activities. The evidence tending to support the General Counsel's case is that Foster was a veteran and a highly regarded employee who had been a known union activist. Also tending to support the General Counsel's position is that Foster was subjected to a denial of her time-off request in the face of evidence of disparate treatment against leading union supporters when it came to time-off requests. However, the flaw in the General Counsel's case is that he has not convincingly shown that Foster's admitted resignation was a constructive discharge caused by Respondent making her continued employment intolerable so as to force her to quit her job. As I view the evidence, Foster had not been granted time off for her Nashville vacation which would have been in addition to her normal vacation time. The matter was left unresolved until the Monday before she was to leave when she spoke to Plant Manager Traylor, who told her she could not be spared and could not have the time off. Although the denial of the time off for Foster was unusual and perhaps discriminatory in view of Respondent's lax policy on absences and the extensive grants of time off for various reasons, including vacations, to other employees who were not so active in the Union, the uncontradicted evidence was that Foster quit her employment. When Foster quit there was no threat that her taking the unexcused absence would have resulted in her discharge. 0o The cases cited by General Counsel are readily distinguishable on their facts. In all of those cases, the employer by his discriminatory action and harassment of prounion employees made continued employment intolerable or forced the employee to quit his or her job. The standard is necessarily an objective one since any other guide would permit the abdication of a personnel decision to the whims and sensitivities of Her resignation came I week before Tilghman's discrimi- natory discharge, the first manifestation of Respondent's discriminatory treatment of union supporters with respect to time-off requests. However, in view of Respondent's otherwise permissive and unpredictable policy on time-off requests, I cannot presume that she would have been discharged if she had gone on the trip. Thus, even assuming that the denial of Foster's time-off request was discrimina- tory, I do not belive it presented such undue harassment that continued employment would have been intolerable. Although Foster may have suffered some monetary loss due to the denial of time off there is no firm evidence, except her own conclusionary testimony, that the amount was not refundable. Foster's husband could still go on the trip and utilize the reservations. Even had the discriminato- ry denial of time off been alleged, litigated, and proved, the appropriate remedy would have included at most the reimbursement of nonrefundable expenses for the trip. But this does not mean that Foster could quit her job and insist on taking the trip. For although the denial of time off may have made her trip inadvisable, it did not make her job intolerable. As the Board has stated, "the mere existence of unlawful conditions, which do not require employees to take affirmative action in derogation of their rights [is not] sufficient justification for considering abandonment of employment as a constructive discharge." Walker Electric Company, 142 NLRB 1214, 1215 (1963). See also Central Credit Collection Control Corp. d/b/a Federal Collectors, 201 NLRB 944, 949-950 (1973); Action Wholesale, Inc. d/b/aA. L French Co., 145 NLRB 627, 628 (1963).'° Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW I. By discharging employee Mable Tilghman because of her union activities, Respondent engaged in an unfair labor practice within the meaning of Section 8(aX3) and (1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not otherwise violated the Act. THE REMEDY The recommended Order will contain the conventional provisions in cases involving findings of unlawful dis- charge, in violation of Section 8(aXI) and (3) of the Act. This will require Respondent to cease and desist from the unfair labor practice found, to offer reinstatement with backpay to Mable Tilghman, and to post a notice to that effect. In accordance with the usual requirements, rein- statement shall be to Tilghman's former position or to a substantially equivalent position, without prejudice to her seniority and other rights and privileges. Tilghman shall be made whole for any loss of earnings she may have suffered by reason of the discrimination against her, by payment to individual employees. In the instant case, although the denial of a time-off request presented a dilemma for Foster. it was a personal dilemma which did not make continued employment intolerable; she chose to go on a vacation and resigned her job in circumstances which do not demonstrate that she was forced by Respondent to make that choice. 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her of a sum of money equal to that which she normally would have earned from the date of the initial discrimina- tion to the date she is offered reinstatement by Respon- dent, less net earnings, if any, during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The Respondent, Lisa's Inc., Grifton, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, support for, or activi- ties on behalf of, Local 361, Tobacco Workers Internation- al Union, AFL-CIO, or any other labor organization, by discriminating in any manner against any of its employees in regard to their hire and tenure of employment, or any term or condition of employment, because of their union membership, sympathies, or activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Mable Tilghman immediate and full reinstate- ment to her former job or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for such loss of pay she may have suffered as a result of Respondent's discrimination against her in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its premises in Grifton, North Carolina, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region II, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED, that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. It In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTIncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Lisa's Inc., violated the National Labor Relations Act, and ordered us to post this notice. The Act gives all employees these rights: To form, join, or help unions To choose a union to represent you in bargaining with us To act together for your common interest or protection To refuse to participate in any or all of these things. WE WILL NOT discharge you or otherwise discrimi- nate against you because you have engaged in orga- nizing activity for, or are a member or supporter of, Local 361, Tobacco Workers International Union, AFL-CIO, or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer Mable Tilghman immediate and full reinstatement to her former job or to ajob substantially equivalent, without prejudice to her seniority or other rights and privileges, and we WILL make her whole for any loss of pay she may have suffered because we discharged her, with interest at the rate of 6 percent per annum. LISA'S INC. 498