Pillowtex Corp.

PILLOWTEX CORP. Pillowtex Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW. Case 16-CA-3939 January 5, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On September 18, 1970, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision 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 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 and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.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 Trial Examiner and hereby orders that the Respondent, Pillowtex Corporaticn, Dallas, Tex- as, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.3 i We hereby correct the following inadvertent error in the Trial Examiner's Decision Under section III, A, entitled "Burse's Union Activities," the record shows that Burse appeared at the Board's office in Fort Worth, Texas, on February 11, rather than on April 11, as found by the Trial Examiner 2 The Respondent's exceptions, in large part, are directed to the Trial Examiner's credibility resolutions 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, the preponderance of all the relevant evidence convinces us they are incorrect, Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) i In footnote I1 of the Trial Examiner's Decision, substitute "20" for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 693 WILLIAM W. KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard in Dallas, Texas, on July 16, 1970,1 with all parties participating pursuant to due notice upon a complaint2 issued by the General Counsel on June 11. The complaint, as amended at the hearing, in substance, alleges that since about March 20 Pillowtex Corporation, in violation of Section 8(a)(1) and (3) of the Act, discontinued its policy of advancing money to employees because they joined or assisted the Union, and on or about April 8 discharged Thomas C. Burse, and refused to reinstate him because he joined or assited the Union or engaged in concerted activities for the purpose of mutual aid or protection. In its duly filed answer Pillowtex denied the commission of any unfair labor practices. All parties were represented and were afforded an opportunity to adduce evidence, to examine and cross- examine witnesses, and to file briefs. Briefs have been received from the General Counsel and Respondent and have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent, a corporation organized under and existing by virtue of the laws of the State of Illinois, maintains an office and place of business in Dallas, Texas, where it is engaged in the business of manufacturing pillows. During the past year, Respondent in the course and conduct of its business operations sold and distributed products of a gross value in excess of $100,000. During the same period of time, Respondent shipped and transported products valued in excess of $50,000 from its plant in Dallas, Texas, in interstate commerce directly to States of the United States other than the State of Texas. Respondent admits, and I find, at all times material herein that it has been engaged as an employer within the meaning of Section 2(6) and (7) of the Act ii. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, at all times material herein, that the Union as been a labor organization within the meaning of Section 2(5) of the Act. All dates hereafter refer to the year 1970 unless otherwise noted 2 Based upon a charge filed on April 10 by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, hereafter referred to as the Union 187 NLRB No. 104 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE ALLEGED VIOLATIONS A. Burse's Union Activities Thomas C Burse was employed by Respondent from 1962 until about April 8 operating a feather washing machine. He was regarded as a competent worker and received wage increases during his period of employment On January 14 he attended a union meeting where he signed a union authorization card He also received a number of such cards and successfully solicited 14 or 15 employees at the plant to sign them . Only he solicited such cards and he returned the signed ones to the union representative . It was stipulated that the Union had demanded recognition as the exclusive bargaining repre- sentative of Respondent's employees on or about January 17. On the morning of April 11 Burse appeared at the Board's office in Fort Worth , Texas, pursuant to the Union's subpena to testify in a representation hearing involving Respondent. He sat at counsel table with the union representative but was not called upon to testify. Mr John Silverthorn, Respondent's president, also appeared at that hearing . Following the ending of that hearing Burse did not report for work that afternoon although the hearing closed at 12:02 p.m . and he returned to Dallas where the plant is located. The following morning when he reported for work Mr. W. C Pulley, Respondent's treasurer and general manager, in the presence of Alton Gaston , the plant superintendent , asked Burse why he failed to report for work the previous afternoon . When he replied that the union representative told him that it was too late in the day to do so, Pulley stated "It's all right for you to get a union. It is all right . But, as long as you are working here, you remember that we are paying you , not the Union." 3 B. Burse's Requests for a Loan Are Denied The Company has an established practice of accommo- dating employees who were in need of money by (1) granting requests for small advances during the week, the amount of which they had already earned at the time of their requests, and then deducting that amount from their next paychecks, and (2) upon request making loans for more substantial sums which were repaid by withholding a part of each succeeding paycheck until the loan was paid off. Employees were eligible for loans based upon their length of employment, dependability, and probability of continued employment over a period sufficiently long to permit repayment of the loan The procedure followed in obtaining such loans, insofar as pertinent herein, was for the employee to ask Plant Superintendent Gaston to obtain Mr Pulley's approval for the requested loan After consulting Mr. Pulley, Gaston advised the employee as to the result and, if favorable, the employee received the money No interest was charged on such loans. On several occasions during his employment Burse had ' Pulley in his testimony, in substance corroborated the foregoing statement, and uncontrovertedly stated further that he told Burse he had the right to participate in any union activity he desired provided it did not interfere with his work or that of any other employee 4 Burse was uncertain as to the date, placing it at first as early as obtained loans from the Company. Sometime in the latter part of March 4 Burse requested a loan of $200 to pay off a note on his car According to Burse, he was informed by Gaston that he could not obtain a loan because of the then current high interest rates being charged on loans. The next day Burse asked for a loan of $75 and was told by Gaston that they were not making any loans on account of the union activities going on and not until he saw how the Union was going. Gaston testified that Burse first requested a loan of $200 which was refused and on the following day requested a loan of $75 which was also turned down. He did not deny the statements attributed to him by Burse with respect to the reasons for refusing his request for each loan. Pulley testified that he refused to approve the loans to Burse because he knew that Burse had on several occasions made threats to quit because of his low wages, and was concerned whether Burse would remain in the Company's employ long enough to repay the requested loans. He, however, admitted that he had approved a loan to Burse in October 1969 despite the fact that he was then aware that Burse had threatened to quit because of his low wages, and, in explanation of his refusal to approve a loan in March, stated that Burse's threats to quit had become more intensified. Burse readily admitted that he as well as other employees when seeking a raise generally resorted to threats to quit in an attempt to pressure the Company into granting raises. Clarence Walker, an employee for the past 3 years, testified without contradiction that he had requested and received a loan on January 18 or 19 from the Company, that he was told by Gaston at the time that future loans might not be granted because of certain activities going on in the plant, and that at the time union activities were going on in the plant. Thereafter, Walker received loans and advances from the Company. C The Termination of Burse's Employment Gaston testified that, later in the day on which Burse's request for a $75 loan was denied, Burse advised him that although he had been on the job for 8 or 9 years he was unable to get raises or promotions to which he was entitled or to make as much money as he thought he should, and that he, accordingly, had decided to go to California to find a better job and gave him 3 weeks' notice of quitting. Gaston testified further that on the following Monday, March 23, he called the Texas Employment Bureau to obtain a replacement for Burse, and interviewed several applicants on Friday, March 27, when he hired one who reported for work on March 30 or 31.5 Burse worked on March 23 , 24, and 25. On March 25 he received a telephone call from his sister in Los Angeles notifying him that his brother had died that day. He reported for work the following morning (Thursday), and advised Gaston about his brother's death and requested that he be given his paycheck that afternoon (Friday was January and then in March , about a week before he received notice of his brother's death on March 25 Gaston placed the date as March 20 As appears hereafter, he told Burse that he hired a replacement at a later date, and stated that the replacement reported for work on April 6 or 7 PILLOWTEX CORP the regular payday) for work performed during that week because he had to make preparations to go to Los Angeles to attend his brother's funeral. Burse also advised Gaston that, if he were unable to obtain enough money to go to Los Angeles, he would report back for work. According to Burse, Gaston replied, "Well, that is perfectly alright Go ahead and take all the time you want. Until you get things straightened out " Gaston testified that he advised Burse that they were in a bind,6 and that he would appreciate his return as quickly as possible, but that Burse gave no definite return day, and stated he would try to get back the latter part of the following week. After Burse left the plant that day he unsuccessfully attempted to borrow money for fare to Los Angeles. On the following Monday, his brother in Chicago telephoned to him and arranged to drive to Los Angeles via Dallas where he would pick up Burse. His brother arrived in Dallas on Thursday (April 2) and they left for Los Angeles the following day, arriving there on Saturday (April 4) when they attended the funeral. When his brother decided to remain in Los Angeles for a few days, Burse, short of money, wired his wife in Dallas to send him $30 for return bus fare He received the money on Monday and immediately left for home, arriving in Dallas on Tuesday afternoon (April 7) Burse admittedly never informed Respondent about his delayed departure for Los Angeles, nor did he communicate with the Company during his entire absence. Burse reported for work on the following morning, Wednesday. He testified that Gaston approached him while he was putting on his work clothes and told him that some changes had been made since he had left, that because he had been gone so long and had not returned on Monday, he (Gaston) presumed Burse had decided to remain in Los Angeles, and that he had been replaced. When Burse replied that he just got back, Gaston stated, "Well, you gave me a three weeks' notice " Burse denied ever giving him such notice, but Gaston reiterated that he had been replaced, and told him he would receive a check for 2 days' work. Gaston testified that in this conversation he told Burse when he didn't show up in a reasonable length of time he had hired someone else to replace him and now did not have a place for him. He explained that inasmuch as Burse had already given him a 3 weeks' notice to quit which would be up on April 10, and, since he was under the impression Burse had decided to remain in California, he had pulled the night crew off and had a surplus of men on the day crew in order to train Burse's replacement, which left no place for Burse. As for the check which was given to Burse, both Pulley and Gaston testified that it was in payment for 3 days on which Burse would have worked because his notice to quit would not have expired until April 10, and that since he was an old employee who had been replaced they felt ethically obligated to pay him for those 3 days. 6 Apparently referring to the fact that Burse was the only feather washer on the day shift, and his absence would interfere with production 7 Furthermore, although Pulley denied he had actual knowledge of Burse's union activities, he apparently knew that union activities were going on , and that he normally would have expected Burse to have D. Contentions and Conclusions 695 The General Counsel contends that Burse was denied a loan and subsequently discharged because of his union activities Respondent takes the position that at the time Burse was denied a loan he failed to meet one of the "entitling" qualifications in that he probably would not continue long enough in the Company's employ to repay the loan. Respondent also contends that Burse quit and was not discharged. 1. The refusal to grant Burse a loan It appears, and I find, that Burse was the sole solicitor of union authorization cards in the plant. His appearance at the Board representation hearing on the morning of February 1 l when he sat at union counsel table, and his conversation on the following morning with Pulley readily identified him as a union supporter to the knowledge of Respondent 7 I, however, do not construe Pulley's remarks in that conversation as establishing union animus. His statement that Respondent, not the Union, was paying Burse, indicated that Burse was subject to company requirements insofar as his working hours were concerned and not to the recommendations or directions of his union representative in that respect. Burse testified that his request for a loan was denied first because interest rates were so high and then because of the union activities going on in the plant, and that a favorable response for a loan would be withheld until there was an indication of how well the Union was doing. Walker also testified that Gaston told him future loans would be jeopardized because certain activities, which he understood to be union activities, were going on in the plant. Gaston did not deny the testimony in this respect of either Burse or Walker. In fact, there was no reference in his testimony to the conversations in which these statements were assertedly made. Respondent based its refusal to loan either the $200 or $75 requested on the ground that Burse had become a poor risk because of his threats to quit, which potentially could sever his employment and thereby preclude the Company from making the necessary installment deduc- tions from his future wages. However, there was no specific evidence other than generalized rumors or knowledge presented to support Pulley's conclusion that Burse's threats to quit had been intensified since the preceding October when he approved a loan to Burse.8 I find that Respondent's asserted reasons for refusing the loan are unpersuasive, and credit the testimony of Burse as to Respondent's motive in denying him a loan. Walker's testimony also shows that Respondent was taking a dim view of making loans to employees while union activities were going on. I, therefore, conclude that Burse was refused the loan because of his union activities in violation of Section 8(a)(1) of the Act. participated in the union activities It would not be unreasonable under the circumstances to infer that he suspected Burse's involvement in the union activities x His notice to quit was allegedly given after the refusal of his last request for a loan 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The termination of Burse's employment Whether Burse was discriminatorily discharged or quit depends primarily upon the credibility resolution of whether he, as asserted by Gaston, gave him a 3 weeks' notice to quit . No doubt, Burse was angered by the refusal of his request for a loan. It would appear more likely and reasonable that he would have then and there given vent to his anger by immediately giving notice of quitting . Instead, vent to his anger by immediately giving notice of quitting. Instead , according to Gaston , it was sometime later that afternoon when Burse approached him and expressed his disenchantment with the job because of his inability to advance or increase his earnings , and stated further that he had discussed the situation with his wife , that he had decided to go to California and try his luck for a newjob, and that he gave a 3 weeks' notice to quit . Yet, in the same conversation, he allegedly related that his wife had obtained a new job which she was reluctant to give up, thereby indicating that she was averse to moving to California . This discordant note would appear to cast doubt on Gaston's testimony that Burse nevertheless gave him a notice to quit. Burse denied ever having given an actual notice of quitting, although he had threatened to do so on occasion to induce the Company to grant him a wage increase. Nor does it appear that such threats to quit , which became a general practice , were seriously regarded by Respondent. Respondent's argument that Burse's prolonged absence and his failure to communicate with the Company tend to support its position that there was ample justification for its belief that he was not going to return from California becomes ineffectual if Burse's testimony is credited that Gaston told him to take as much time as necessary on his trip . Also, Gaston was surely aware of Burse's financial plight and his difficulties in financing a quick trip , only the week before Burse was denied a loan. Moreover, even according to Gaston, Burse told him he would try to return the latter part of the week of March 29, and his actual return to Dallas was on the following Tuesday afternoon, a delay of only 2 more working days. It also appears that, upon Burse's return on April 8, Gaston told him that when he didn't show up in a reasonable length of time he went ahead and hired somebody . This conflicted with his earlier testimony that he contacted the Texas Employment Bureau on March 23 for a replacement and hired one on March 27, which was the day after Burse left and long before his expected return Also, Gaston stated at first that the replacement reported for work on March 30 or 31. Later, he testified that the replacement reported for work 1 or 2 days before Burse returned . These inconsistent statements not only impugn his testimony concerning when and how he hired a replacement but also reflect on his other testimony. Based on the foregoing considerations and the demeanor of the witnesses, I credit Burse's denial of having given a 3 weeks' notice to quit on March 20, the day on which his request for a $75 loan was denied I find further that Burse was accorded such time as necessary to attend his brother's funeral, and that his return to work on April 8 was not so unreasonably late as to warrant his discharge . As appears, and found above , Respondent was motivated to refuse a loan to him because of his union support, thereby indicating union animus. I find that such animus also motivated Respondent to discharge him on April 8 in violation of Section 8(a)(3) of the Act, notwithstanding Respondent's contention that he had "quit" by giving a notice to that effect and being absent for an unreasonably long time. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent 's opera- tions described in section I, above , have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. At all times material herein, Respondent has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 2. At all times material herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. 3. By denying loans to Burse on March 19 and 20, because of his union support or activities, Respondent interfered with, restrained, or coerced employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1). 4. By discharging Burse on April 8 , and thereafter refusing to reinstate him in order to discourage union activities, Respondent discriminated in regard to the hire and tenure of his employment in violation of Section 8(a)(3) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act . I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . Having found that Respondent has discriminatorily discharged Burse, I shall recommend that it offer him reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. Backpay shall be computed on a quarterly basis and in a manner consistent with the Board policy set forth in F. W. Woolworth Company, 90 PILLOWTEX CORP. NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716. Upon the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend the following: RECOMMENDED ORDERS Respondent Pillowtex Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to grant loans to employees in accordance with its established practice because of their union support or activities. (b) Discouraging membership and activities in Interna- tional Union, United Automobile, Aerospace & Agricultur- al Implement Workers of America, UAW, or any other labor organization, by discriminating in regard to the hire and tenure of its employees, or by discriminating in any other manner in regard to any term or condition of employment. (c) 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 which is deemed necessary to effectuate the policies of the Act: (a) Offer Thomas C. Burse immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as the result of his discharge in the manner set forth in the section of this Decision 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 plant in Dallas, Texas, copies of the attached notice marked "Appendix " 10 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.li 697 9 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOr refuse to grant loans to employees in accordance with our established practice because of their union support or activities. WE WILL NOT discharge or discriminate against our employees because they have joined or supported International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL offer Thomas C. Burse full reinstatement to his former job or, if that job no longer exists, to an equivalent job and pay him for any loss of earnings he may have suffered as a result of his discharge. PILLOWTEX CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.