Kayser-Roth Hosiery Co., Inc.

National Labor Relations Board - Board Decisions

May 26, 1967

164 N.L.R.B. 1075 (N.L.R.B. 1967)

GREENSBORO HOSIERY MILLS
Greensboro Hosiery Mills, Inc., Division of
Kayser-Roth Hosiery Company, Inc. and
Industrial Union Department , AFL-CIO.
Case 11-CA-2912.
May 26,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On March 13, 1967, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not 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
Counsel 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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon a charge and
amended charges filed on November 24, 1965, and
January 6 and 20, 1966, against the above-named
Company, herein called the Company or Respondent, the
General Counsel of the National Labor Relations Board
issued a complaint and notice of hearing dated January 26,
' On April 11, 1966, General Counsel, by teletype, a copy of
which he sent to Respondent's counsel, requested me to take
official notice of Trial Examiner John Funke's Decision in Case
11-CA-2663, dated November 16, 1965, and then pending before
the Board on exceptions On February 1, 1967, the Board issued
its Decision and Order (162 NLRB 1275) finding that Respondent
had engaged in certain unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act The Board's recent decision in
Case 11-CA-2663 involves the same plant as in this proceeding,
164 NLRB No. 157
1075
1966, alleging that Respondent had violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
herein called the Act. Respondent filed an answer
admitting certain allegations of the complaint but denying
the commission of any unfair labor practices. A hearing
before Trial Examiner George J. Bott was held in
Greensboro, North Carolina, on April 4, 1966, at which all
parties were represented. Oral argument and briefs were
waived.'
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a North Carolina corporation with a plant
in Greensboro, North Carolina, where it is engaged in the
manufacture of hosiery products. During the 12 months
preceding the issuance of the complaint, which is a
representative period, Respondent manufactured, sold,
and shipped from its Greensboro plant products valued in
excess of $100,000 to points directly outside the State of
North Carolina.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, Hosiery Division,
AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The discharge of Mary G. Thomas (Sutherland)
1. The evidence
Mrs. Thomas was first hired in December 1964 as a
knitter. She signed a union card for the Union in January
1965 and distributed union literature at the plant's main
gate in April 1965 during an organizational campaign.
Thomas testified credibly that she handed union leaflets to
some of Respondent's supervisors and that she openly
wore a union pin in the plant. It also appears, however,
that half or more of the other knitters wore pins, and a
dozen or more employees distributed union literature
during the campaign.
In May 1965, Thomas had some dental problems and
was absent from work for a number of days. She testified
that she telephoned the plant on 3 consecutive days and
informed the switchboard operator about her illness.
According to her, the operator told her after the third call
that it was unnecessary for her to telephone everyday if
she were being treated by a doctor, but to bring a doctor's
certificate when she returned to work. This testimony was
contradicted by the switchboard operator,2 but it is a fact,
and I have taken official notice of the Board's findings for
whatever bearing they may have on the issues in this case.
Y Betty Smith, the Company's switchboard operator, testified
that she understands the Company's rule to be that employees
who cannot report for work must telephone the plant every day,
and she said that she had never told any employee differently
298-668 0-69-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as Thomas testified, that she did not telephone during the
rest of the week, but presented the Company with a
doctor's certificate when she returned to work and was
permitted to resume her job without incident.
Thomas was away from work for 8 days during July 1965
because of a death in her family. She notified the
Company by telegram from Nashville, Tennessee, where
she had gone during her grandmother's last illness, that
she would return to work as soon as possible.
On Friday, September 3, 1965, Thomas telephoned
Shelton, her supervisor, and told him she was leaving for
Nashville, Tennessee, because of her sister' s illness.
Shelton granted her permission to be off from work, and
she told him that she would communicate with him if her
sister did not recover. Thomas testified that she returned
to Greensboro on September 6. The plant was closed on
Labor Day, September 6, and on September 7 Thomas
said she telephoned Shelton and informed him that she
was unable to report for work because of an infected toe.
She told Shelton that she might use self-medication, but
that if the infection did not clear in a day or so, she would
see a doctor. Thomas said on September 8 she visited a
physician who prescribed penicillin and told her to treat
her toe at home.
On Saturday, September 11, Thomas went to the mill
for her pay. Shelton was on leave for a week and Jason
Brinkley was acting supervisor in his place. Thomas told
Brinkley that she had come for her check, and she said she
told him about her toe and showed it to him. According to
her, but Brinkley disputed this testimony, she also
informed him that she was under care of a doctor and ".. .
would be back as soon as the toe got well, and the doctor
released [her]."
Thomas did not work after September 2, and she did not
communicate with the Company after her conversation
with Brinkley on September 11 until Robert Beame,
representative of the Union, told her on September 23 that
he had heard that she had been discharged by the
Respondent. Thomas immediately telephoned the plant
and told Personnel Director Redding that she had learned
she had been fired despite the fact that she thought he
knew that she "was under a doctor's care." She said
Redding told her she had not been discharged but that the
Company assumed she had quit her job because it had not
heard from her. Thomas volunteered to come back to
work, but Redding would not permit it, she said, and told
her that Brinkley had made a notation when he saw her on
September 11 that she would return to work on
September 13, but since she had not returned and had not
telephoned, she was considered to have quit.
Thomas continued to insist that she had not quit, and
General Superintendent Shields got on the telephone.
Thomas said the conversation with him went like it did
with Redding. She said she asked him if he were "firing
her," and he denied it. In that case, she told him, she still
had a job and would return to work as soon as the doctor
released her, but Shields told her she could not do that,
because she "was off the payroll."
During the same telephone call Thomas also talked with
Robert Boyles, the assistant superintendent. She said the
gist of the conversation with him was as with the others,
she stating that she had been fired, and he denying it, but
indicating, in any case, that she had no job and "was off
the payroll."
Thomas also wrote to Superintendent Shields on
September 23. She told him that his "assumption that
[she] had quit was based on erroneous information," and
enclosed a statement from a doctor stating that she had
been and still was under his care because of "a severly
infected toe which has prevented her from working."
Respondent did not reply to Thomas' letter.
About a week after she sent the letter described above,
Thomas went to the plant "ready to go to work," according
to her. She saw Assistant Superintendent Boyles and told
him she was reporting for work, but Boyles told her that
"she was off the payroll" and would not be permitted to
work. Thomas again inquired if "he was firing" her, and he
replied that he was not. Boyles gave Thomas a
"Separation 'Notice," signed by Redding, personnel
director, stating that the employee had "voluntarily quit."
In more detail, the notice set out that Thomas had "Failed
to return or send word" and it was "assumed" she had
quit.
Thomas had denied under cross-examination that any
supervisor had spoken with her about her attendance
record. Asked if she told Supervisor Shelton that she
"could improve her attendance," she replied that "nothing
was said about my attendance" by Shelton. Shelton
testified, however, and I credit his testimony, that he
discussed Thomas' absenteeism with her in August 1965.
Although he conceded that his review of her record was a
"normal review" and that it was not unusual to talk with
employees about their attendance, he said that Thomas
had "excess absenteeism." He also said that Thomas
explained that she had been afflicted with a great deal of
trouble with her teeth, but when he noted that that
problem had now been eliminated, Thomas promised to
improve her attendance.
Shelton also testified that when Thomas telephoned him
after Labor Day and her trip to Nashville, she told him that
she was "too tired to report" and asked for the day off. He
did not specifically deny that Thomas said anything about
an infected toe and possible medical treatment, but the
clear implication of his testimony is that she asked
permission to be off work for 1 night only, and that he
granted it. Jason Brinkley, who substituted for Shelton
during the week of September 6, 1965, said that he heard
nothing from Thomas during that week, but on Saturday,
September 11, when she visited the plant to get her
paycheck, she told him that "she had a sore toe and that
she was going to the doctor and she would be back to work
Monday." Asked if Thomas made her statement
"conditional," he replied that the employee ". . . said she
would be back Monday." This testimony was contrary to
Thomas' answer under cross-examination that she did not
use the word "Monday" in her conversations with any
supervisor on September 11.
Harper Shields , general superintendent of the mill,
testified that Respondent has a rule that an employee must
telephone the plant on everyday of his absence unless he
has specifically been granted "sick leave." He added that
if an employee were "seriously ill in a hospital" he would
be placed on sick leave, but he maintained that employees,
at the risk of discharge, must either call daily or secure
official sick leave, and he said other employees have been
discharged in the past for "unexcused absences."
According to him, this was the situation in Thomas' case.
Shields testified that as he entered an office on
September 23, Supervisor Frazier was on the telephone
talking with Thomas. Frazier asked Shields if he would
speak with Thomas because he "couldn't get through" to
her. Shields talked with Thomas, and when she told him
GREENSBORO HOSIERY MILLS 1077
that she understood she had been terminated, he told her
that "we had assumed that you had quit because we hadn't
heard from you since you talked to Jason Brinkley ... on
the 11th of September, and told ... Jason that you would
be in on the 13th. And we haven't heard from you since, so
we assumed that you had quit." He said Thomas denied
she had quit, and insisted that she had been under a
doctor's care.
Shields pointed out that Thomas had been absent from
work 35 days during her employment which began in
December 1964. Asked if he would hire Thomas back if his
assumption that she had quit was erroneous, he said he
would not because of her past record of absences.
According to Shields, all supervisors involved, namely,
Shelton, Frazier, and himself, assumed that Thomas had
quit her employment. The three discussed it and decided
to terminate her. Shields made the ultimate decision, but
he also discussed the matter with Redding, personnel
director, first.
Thomas had testified under cross-examination that she
had no recollection of talking with Supervisor Frazier
when she telephoned the plant on September 23. Frazier
testified credibly, however, that "so far as [he]" knew he
was the first management representative to tell Thomas
that she had been terminated. He said that in the
telephone conversation he told her that "after being out so
many days with no word, we assumed that she had quit."
Carlysle Isley, director of public and industrial relations
of Respondent's hosiery division, testified that there is
only one set of rules governing employees conduct in the
20 plants over which he has jurisdiction. He stated that the
"written rules" do not include all policies of the Company
affecting employee behavior. In regard to the rule on
unreported absences, he said that it was in the nature of a
"disciplinary" rule, and that an employee whose
termination papers reads "assumed quit" is not eligible for
rehire.
2. Analysis, additional findings, and conclusions
The question is, of course, whether Thomas was
discharged because she failed to keep the Respondent
informed, as required by company rules, that she would
not report for work, as Respondent contends, or whether
she was terminated because of her union activities, and
her alleged noncompliance with a rule used as a cloak for
Respondent's real motive. This is a close case, and
although I am not completely satisfied with Respondent's
explanations for its treatment of Thomas and do not fully
credit its witnesses, neither do I credit Thomas in all
particulars, and I find that General Counsel has not
established by a preponderance of the credible evidence
that Thomas was discriminated against.
In regard to Respondent's defense, first of all, I do not
believe that there is a rule or a practice which required ill
or otherwise incapacitated employees to telephone the
plant about their status each and every day they are absent
after they have initially informed the Company that they
are unable to report for work. The written rule itself does
not say so. It reads, "Anyone who is unable to report for
work because of sickness or extreme emergency should
notify his supervisor at once. Dropping from payroll may
result from unexcused absence." Not only is the
Company's own regulation silent about daily reporting of
absences in all instances, but there is evidence that the
actual practice is contrary to Respondent's contention.
Thomas was absent from work in May 1965 for 6 days
because of illness. She did not telephone the Company on
the fourth, fifth, and sixth day she was away, and when she
finally reported for work and presented a doctor's
certificate certifying to her illness, Personnel Director
Redding noted that she had been ill, and permitted her to
return to her job with no criticism of her failure to report
daily. Similarly, in connection with Thomas' failure to
report her absences daily during the week in which she
was terminated, neither did she report her illness on each
day of the previous week, and, when she came in to get her
paycheck on September 11 and spoke with Brinkley and
Frazier, she was not reprimanded or reminded of the rule,
but was actually marked "sick" on the payroll records.
This evidence indicates that the rule or practice is not as
firm as Respondent says it is, and it is also consistent with
Thomas' testimony that, after telephoning the plant on 3
consecutive days in May to report her illness, the
switchboard operator told her that she didn't have to call
in everyday.
Respondent's own witnesses were not too certain about
the meaning of the rule. The most extreme was Mrs.
Smith, the PBX operator, who said she understood the
rule to mean that employees are required to telephone
everyday even if hospitalized.3 Superintendent Shields
insisted that the rule means that employees must
telephone everyday unless they have been granted "sick
leave" because of a serious illness, but he did not explain
how one acquires a "sick leave" status. Isley,
Respondent's director of public and industrial relations
who composed the rule, testified that that "one call could
take care of only one day" unless the employee intends to
be away "over a pretty good while," in which case the
employees should explain the circumstances to his
supervisor when he makes the first call. He also conceded,
however, that it would not be necessary to telephone daily
if an employee is going to be absent about a week.
Although it is appreciated that all written rules must be
interpreted, I am convinced that Respondent has no
consistent and unwaivering policy or rule in regard to
reporting absences, but in fact exaggerated the
inflexibility of the alleged rule in Thomas' case.4
As indicated, I am troubled about certain other factors
appearing in the testimony of Respondent's witnesses, and
so I do not credit them completely. Shelton was Thomas'
immediate supervisor. He said that Thomas had been
given permission to be absent on the Friday before Labor
Day and when she returned on September 7, 1965, which
was the day after Labor Day, she telephoned him, said she
was "too tired to report" and would like the night off.5
3 But it must be noted that Thomas also admitted that at one
time she understood that one was required to telephone everyday,
but it was Smith, the switchboard operator, who explained that
she need not if she were ill.
4 It must also be noted, however, that the Board found in
Greensboro Hosiery Mills, Inc, 162 NLRB 1275, by adopting the
Trial Examiner's findings , that the same rule involved here "is
certainly no clear mandate for daily reporting" and that a
reasonable construction of it "is that an employee is required to
report his absence and that, if no more than a few days will be
needed, no further notice is necessary " This is the opposite of
Isley's interpretation that daily reporting is required for short
periods, but not for long
S Thomas worked on the second shift
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas, on the other hand, testified that she telephoned
Shelton on September 7 and told him she had an infected
toe. It later appeared in her testimony that she had also
talked with Shelton on September 8. I note that Thomas'
official absentee record is marked "S," meaning sick, for
September 8, and "F," meaning sickness in family, for
September 7. It may be, therefore, that there were two
telephone calls as Thomas said, but Shelton's reliance on
the alleged "too tired to work" call without any reference
to the "infected toe" communication on September 8
seemed to me to be an attempt by omission to make
Thomas' attitude look worse than it actually was.6
Superintendent Shields' account of the events
surrounding Respondent's decision to terminate Thomas
on September 16 is unclear and does not appear to be
completely in accord with the testimony of other company
supervisors. Shields testified that he told Thomas during
his conversation with her on September 23 when she
telephoned to protest her discharge that "we" assumed
she had quit her employment because no one had heard
from her since she talked with Brinkley on September 11.
He also said that he, "together with" Frazier and Shelton,
made the decision to discharge Thomas and that they were
together "at the last" when they made the decision. He
added that, while discussing Thomas, Frazier and Shelton
both said they "assumed" that Thomas had quit. It
appears from Shelton's testimony, however, that after
Thomas telephoned him on September 7 and reported that
she was "too tired" to come to work, he had nothing "else
to do with her case." There is nothing in his testimony
about "assuming" that Thomas had quit or about
discussing the matter with Shields. Frazier said he
couldn't recall whether Shelton told him that he
"assumed" that Thomas had quit, although he said, "We
all discussed it and were in agreement." Shelton,
Brinkley, and Frazier all knew on September 11 that
Thomas had or claimed to have an infection which
incapacitated her, yet from Shields' version of events one
would assume that the subject of illness was not
mentioned when Thomas' termination was discussed with
his subordinates. His bareboned account leads me to
conclude that it was, but that he chose to ignore Thomas'
problem, close his eyes to the possibility that she might
still return, and "assume" she had quit for reasons of his
own.
Shields also testified, however, that, even if he was in
error in his assumption that Thomas had quit her
employment, he would not rehire her because of her
record of absences, and, in my opinion, Thomas' absentee
record, plus her failure to keep the Company better
informed about her intentions after she left Brinkley on
September 11, having merely advised him that she would
be in on the following Monday if she had recovered, is as
logical and reasonable an explanation for her termination
as is her union activity.
Thomas had an abnormal absentee record, and she was
not candid about it. She understated her absences in an
affidavit she gave a Board agent, and she also was evasive
and again understated her record when she was cross-
examined about it. Company records show that she was
absent on approximately 35 days between the time she was
hired in December 1964 and discharged in September
1965, and this was substantially more than she admitted to
in her affidavit and at the hearing. Thomas also stated in
her pretrial affidavit that no supervisor had ever said
anything to her about being absent too often and she
maintained that position at the hearing, but she conceded
under cross-examination that there was some discussion
with Shelton about the trouble she was having with her
teeth. Shelton testified credibly that he discussed Thomas'
attendance record with her, and that she mentioned her
dental problems, but promised to improve her attendance.
Thomas' evasiveness and lack of candor in this area is a
good indication that she was aware that her employment
record made her vulnerable.
Thomas' sensitivity about absenteeism is evidence that
Respondent's asserted dissatisfaction with it is not
unreasonable. However, Respondent did not terminate
Thomas because of her past record, but allegedly because
she did not continue to keep Respondent informed about
her status after she talked with Brinkley on September 11.
Thomas' testimony about what she told Brinkley about her
intentions was evasive and contradictory. She first
testified that she showed Brinkley her toe, told him that
she was still under a doctor's care, and "would be back as
soon as the toe got well and the doctor released" her.
Later, under cross-examination, she said she did not use
the word "Monday" in her conversation with her
supervisor on September 11, and she was "absolutely
sure" about it. It appeared that Thomas had applied for
unemployment benefits after her termination and the
claims deputy of the Employment Security Commission of
North Carolina had made a determination in her favor.
Shown the award and referred to a finding in it to the
effect that she had told Brinkley that she would be back to
work Monday if her toe was healed sufficiently, she
admitted that she had mentioned "Monday" in her
conversation with Brinkley.' Although I find that Thomas
did not flatly state that she would return Monday, as
Brinkley had testified, but rather said she would be back
Monday if her toe was sufficiently healed, I find in her
evasion and self-contradiction a tacit admission that she
felt that she had been derelict in leaving her supervisor
with an impression that he might expect her on Monday
and then failing to notify the Company until September 23
that she was still ill. Thomas was somewhat careless about
her job and her testimony on this point shows that she
sensed it.
Thomas also admitted that during her September 23
conversation with Shields after she had learned that she
had been terminated there was some discussion about why
she had not telephoned the Company sooner. She said that
she told Shields that she hadn't called because she had no
telephone and had to use her neighbors'. I also find in this
conversation some evidence that Respondent was
concerned about the employee's failure to keep it advised
about her plans and that Thomas also felt that she should
have done more in that regard than merely tell Brinkley on
September 11 that she would be back to work on Monday
"if her toe had healed sufficiently."
When an employer seeks to justify the discharge of an
active union member on a ground that is false or
6 On the other hand, I am skeptical about Thomas' denial of the that she reported it twice after her return.
"too tired to work" telephone call, because she admitted to two
telephone calls, and, therefore, the first must have related to 9 Brinkley is erroneously called Mr. Jayson in the claims
something other than an infected toe, because there is no claim deputy 's determination
GREENSBORO HOSIERY MILLS 1079
unreasonable it may be justifiably inferred that the
employer's real motive was discriminatory, particularly
where the employer has expressed hostility toward the
union and engaged in other antiunion conduct. As the
Board recently found in Greensboro Hosiery Mills, Inc.,
162 NLRB 1275, Respondent discharged an employee
because of her union activity and "engaged in other unfair
labor practices reflecting a determined opposition" to the
Union ' s organizing campaign . I have found that
Respondent exaggerated and distorted the real meaning of
its rule about reporting to make it appear more rigid than it
actually is, and I have also found some inconsistencies in
Shield ' s testimony about the decision to terminate
Thomas. Nevertheless, although Respondent's decision to
remove Thomas from the payroll only 4 workdays after she
had reported her illness and its refusal to reinstate her
when she protested that she had not actually quit, but had
been incapacitated, may seem harsh, Thomas, on the
other hand , had a substantial number of absences during
her 9 months of employment and was negligent in keeping
Respondent informed about when she would return to
work. Despite the fact that the Company terminated
Thomas as an "assumed quit " on September 16, it cannot
be ignored that it was another full week before Thomas
telephoned the Company and then only because she had
heard of her termination. How long she would have kept
silent is a matter of speculation , but in any case, under all
the circumstances, I cannot find that Respondent's action
in terminating her when it did and refusing to accept her
explanation about her illness is such a departure from
normal that it strongly suggests illegal discrimination.
Whatever Respondent 's rule means, it is not unreasonable
for an employer to expect some more definitive words from
an employee who left the plant stating that she would
return on Monday " if" well . One telephone call to the
Company advising it that the contingency had not
occurred would have eliminated the problem. Thomas set
herself up for discharge, and, as I have indicated, her
testimony indicated that she sensed it herself.
I find and conclude that Respondent did not violate
Section 8(a)(1) and (3) of the Act by discharging and
refusing to reinstate Mary G. Thomas.
CONCLUSIONS OF LAW
1. Respondent Greensboro Hosiery Mills, Inc., Division
of Kayser-Roth Hosiery Company, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I recommend that the
complaint be dismissed in its entirety.