Pillowtex Corp.

National Labor Relations Board - Board Decisions

May 28, 1971

190 N.L.R.B. 647 (N.L.R.B. 1971)

PILLOWTEX CORPORATION
Pillowtex Corporation and Mary Jo Hunt and Annette
Woodard . Cases 16-CA-4098-1 and 16-CA-4098-2
May 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 27, 1971, Trial Examiner Frederick U.
Reel issued his decision in the above-entitled proceed-
ing, finding that Respondent had not engaged in certain
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 excep-
tions to the Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was commited. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, and the
entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursiant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Fort Worth, Texas, on December 1, 1970, pursuant
to charges filed the preceding September 1 and a consolidated
complaint issued September 29, presents the question
whether Respondent, herein called the Company, discharged
the Charging Parties, hereinafter referred to as Hunt and
Woodard, on August 21, 1970, because of their union mem-
bership and protected union activity or because they threat-
ened a fellow employee. Upon the entire record,' including
my observation of the witnesses, and after due consideration
of the brief filed by the General Counsel, I make the follow-
ing:
' General Counsel 's motion to correct errors in the transcript was unop-
posed and is hereby granted
190 NLRB No. 127
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE
LABOR ORGANIZATION INVOLVED
647
The Company, an Illinois corporation, operates a plant at
Dallas, Texas, where it manufactures pillows and from which
it annually ships to points outside the State products valued
in excess of $50,000. The Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, herein
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The Union became the statutory bargaining representative
of the Company's employees in the spring of 1970 , winning
a close election following an organizing campaign in which
Hunt and Woodard took an active part. After the Union's
victory in the election, Hunt and Woodard continued their
active support of the Union, endeavoring to get new em-
ployees to become members, and also endeavoring to get
other employees to join. Bargaining negotiations were about
to commence in August 1970 at the time of the critical events
herein; however, neither Hunt nor Woodard became mem-
bers of the Union's bargaining committee.
B. The Alleged Threat and the Discharges
On August 14, 1970, employee Jimmy Rider complained
to the plant's general manager, W. C. Pulley, that Hunt and
Woodard had threatened Rider with physical violence at the
hands of two other employees, James Anderson and Clarence
Walker, unless Rider signed a union card.' After consulting
with company counsel, and obtaining a signed statement
from Rider concerning the threat, company officials spoke to
Hunt and Woodard about the matter. When they both denied
uttering any such threat, Company President Silverthorne
stated that whoever was telling an untruth in this matter
(either Rider on the one hand or Hunt and Woodard on the
other) would be discharged. On Thursday, August 20, Silver-
thorne told each of the employees that each would be asked
to take a polygraph or "lie detector" test. All three agreed,
but the next day Hunt and Woodard declined to submit to the
test unless Rider would take a lie detector test administered
by the Union. Silverthorne responded that he would not ask
Rider to do so, but Hunt or Woodard could ask him. Appar-
ently they did not press the matter with Rider. When Hunt
and Woodard declined to take the test, Silverthorne stated
that he would have to assume they were guilty and discharge
them. Woodard then agreed to take the test.
Rider and Woodard were examined by a licensed poly-
graph operator, who duly reported that Rider was truthful,
that Woodard lied when she denied threatening Rider, and
that Woodard deliverately moved her arm to distort the
graph whenever she was asked about Hunt's role in the mat-
ter. The Company thereupon discharged Woodard and Hunt.
Company President Siverthorne also spoke to Anderson, who
denied any knowledge of the alleged threats and stated that
The threat, according to Rider's testimony was uttered by Woodard, at
Hunt's prompting, as follows "If you don't take this card, I will whip your
butt. . If I don't do it, I will have it done James Anderson and Clarence
Walker will do it " Rider testified that the two women had threatened him
on previous occasions and that he had not taken their previous threats
seriously, but did so on this occasion which was the first time they had
referred to others as administering the threatened beating
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would not be a party to any attack on Rider. At the
hearing before me, Woodard and Hunt adhered to their deni-
als that they had made any threats to Rider and he adhered
to his version of the events.
C. Analysis and Conclusions
General Counsel contends that Hunt and Woodard did not
threaten Rider, and that under the doctrine of N.L.R.B. v.
Burnup and Sims, Inc., 379 U.S. 21, the Company's good-
faith, but mistaken, belief that they had done so is not a
defense to their discharge, which (in this view of the case)
arose out of their protected union activities. Alternatively,
General Counsel argues that even if the threat was made, the
Company would not have invoked the discharge penalty
against Hunt and Woodard but for their lawful union ac-
tivity.
The question whether to credit Rider on the one hand or
Hunt and Woodard on the other is manifestly difficult. There
is no suggestion of any hostility between them arising out of
any other matter, so as to suggest that Rider wanted to make
trouble for the other two. There is no suggestion that the
Company urged Rider to make his complaint so as to create
a ground for discharging Hunt and Woodard I can find no
reason, in short, for Rider to have invented his tale. I think
it probable that in their efforts to get Rider to sign a card,
Hunt and Woodard made some "threat," which they did not
intend to carry out, and very possibly did not expect Rider
to take seriously, and that they thereafter "panicked" when
Rider and the Company ballooned the matter to serious pro-
portions. In any event, under Burnup and Sims, General
Counsel bears the burden of proving that the discharged
employees did not engage in the misconduct in question. On
this record I find that he has not sustained his burden of
proof.
This does not quite end the matter, for even if Hunt and
Woodard engaged in the unprotected activity of threatening
Rider, the extent of the penalty meted out for that offense
may have been influenced by their prominence in the union
movement. General Counsel introduced some evidence that
some months earlier employee Beverly Jackson heard that
employee Wanda Drummer had "threatened [her] life" by
threatening to "cut [her] neck off." Jackson told her super-
visor, but the matter did not result in any searching inquiry,
to say nothing of lie detector tests and discharges. The super-
visor, Al Gaston, handled the matter, without involving
higher management, by talking to Drummer. The disparate
treatment between that case and this does not establish a
discriminatory motive here, for in the earlier case different
levels of supervision were involved; the earlier "threat" was
reported as mere heresay; and the very extreme character of
the threat detracted from its seriousness. Another supervisor,
Lillie Rollins, heard Drummer say that she "was going to get
Beverly if it was the last thing she ever did." Rollins handled
the matter by quietly admonishing Drummer, but Rollins'
calm disposition of that incident sheds little light on Pulley's
and Silverthorne's conduct in the case at bar. There is also
evidence that employee Marshall threatened certain em-
ployees of Mexical lineage that he would report them to
immigration officials if they refused to sign union cards. Mar-
shall denied making the threats, and Pulley warned him that
if he made such threats in the future he would be discharged.
General Counsel argues that the failure to resort to a lie
detector procedure in Marshall's case shows that the Com-
pany "blew-up" the Hunt-Woodard affair because of their
union activity. But Marshall's was also a "pro-union" threat,
and the difference appears to be that the Company took less
vigorous action in his case because it viewed a threatened
physical beating as more serious or more disruptive than
Marshall's threats.
Somewhat militating against the Company in the instant
case is the fact that it apparently regarded the making of the
threat as more serious than the threat itself. The Company
never mentioned the threat to the Union, and never men-
tioned it to one of the two men who were named as the
prospective inflictors of the proposed beating. Apparently the
Company made no serious effort to provide Rider with physi-
cal protection against the threatened beating. Nearly a week
elapsed between the time the Company heard of the threat
and the time it even spoke to the two girls about it. Also it
should be noted that the Company apparently had no other
reports of similar threats by Hunt or Woodard Under all the
circumstances one may well wonder whether the Company's
reaction to Rider's report and Hunt's and Woodard's denials
did not partake of the overextreme. Some penalty short of
discharge might seem more appropriate in the case of em-
ployees of 15 and 5 years' service, respectively, who had
uttered what the Company, after slight investigation, was
ready to regard as an empty threat to a fellow employee. To
be sure the Company expressed readiness to fire whichever
employee was untruthful, but it may well have been con-
vicned that Rider was telling the truth, and that this appear-
ance of evenhandedness would enable it to fire the union
supporters. One may well speculate that if Rider had threat-
ened to beat up Hunt or Woodard if they persisted in solicit-
ing his card, the Company might have reacted less vigorously
to their complaint.
But all these doubts and speculations avail us little. It is not
for the Board to give over-the-shoulder guidance in determin-
ing what discipline the Employer should mete out. I note
further that the Union had already established itself as bar-
gaining agent, and that neither Hunt nor Woodard was on the
bargaining committee, a fact which would make their dis-
charge, if discriminatory, a mere act of vengeance by the
Company. In that connection I note that the Company at the
hearing offered them reinstatement.
Upon full consideration of all the facts, I find that General
Counsel failed to sustain the burden of proof in this case, and
I therefore recommend dismissal of the complaint.
CONCLUSIONS OF LAW
The preponderance of the evidence does not establish that
the Company engaged in the unfair labor practice alleged in
the complaint.
Upon the foregoing findings of fact, conclusions of law, and
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.