Pillowtex Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1971

187 N.L.R.B. 693 (N.L.R.B. 1971)

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.