Pillowtex Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 40 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pillowtex Corporation and International Brotherhood
of Firemen & Oilers. Case 10-CA-13407
March 15, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On November 16, 1978, Administrative Law Judge
Robert W. Leiner issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief,
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Pillowtex Corporation,
Atlanta, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, except that the attached notice is
substituted for that of the Administrative Law Judge.
I Although we adopt the Administrative Law Judge's conclusions in full,
we disagree with his characterization of the events of January 1978 herein as
"impasse." Inasmuch as the Administrative Law Judge has correctly found
that Respondent had bargained in bad faith, we need not pass upon the issue
of impasse.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented
and afforded the opportunity to present evidence in
support of their respective positions, it has been
found that we have violated the National Labor Rela-
tions Act in certain respects and we have been or-
dered to post this notice and to carry out its terms.
WE WILL NOT refuse to bargain collectively
with International Brotherhood of Firemen &
Oilers, the Union, as the exclusive representative
of all employees in the appropriate unit de-
scribed below, and, if an agreement is reached,
embody it in a signed contract. The appropriate
unit is:
All production and maintenance employees
employed by us at our plant located in At-
lanta, Georgia, but excluding the expediter, all
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
WE WILL NOT discriminate against unfair la-
bor practice strikers by failing to reinstate them
immediately upon their unconditional request
therefore.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of our employees in
the exercise of their rights to engage in activities
protected by Section 7 of the Act.
WE WILL make whole for loss of pay any un-
fair labor practice striker whom we have rein-
stated for the period commencing with the em-
ployee's offer of unconditional return to work
and ending with the date of reinstatement, plus
interest.
PILLOWTEX CORPORATION
DECISION
ROBERT W. LEINER, Administrative Law Judge: This
matter was heard in Atlanta, Georgia, on August 28 and
29, 1978, upon a complaint filed by the General Counsel of
the National Labor Relations Board, together with a notice
of hearing, dated March 24, 1978, and Respondent's timely
answer filed April 14, 1978. The underlying charge and
amended charge were filed on February 2 and February 28,
1978, by International Brotherhood of Firemen and Oilers,
herein called the Union or Charging Party. The complaint
alleges violation of Section 8(aX 1), (3), and (5) of the Act in
that Respondent, Pillowtex Corporation, allegedly not only
failed to bargain with the Charging Party in good faith
(which conduct resulted in an alleged unfair labor practice
strike) but allegedly refused to reinstate the unfair labor
practice strikers. In the course of the hearing, however, it
was stipulated that the strikers were ultimately reinstated to
their former jobs and positions.
After the close of the hearing, General Counsel and Re-
spondent submitted briefs which have been duly consid-
ered.
Upon the entire record made in this proceeding, includ-
ing my oberservation of the demeanor of the witnesses as
they testified, and with due consideration of the briefs, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation, maintains an office,
place of business, and production facility located at 300
241 NLRB No. 6
40
PILLOWTEX CORPORATION
Wharton Circle, S.W., Atlanta, Georgia, where it is en-
gaged in manufacturing pillows. In the past 12 months, a
representative period, Respondent sold and shipped goods
valued in excess of $50,000 directly to customers located
outside the State of Georgia. Respondent is, and has been
at all material times, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and I so find.
It. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Firemen & Oilers, as Re-
spondent admits, is and has been at all material times, a
labor organization within the meaning of Section 2(5) of the
Act.
lit. THE ALLEGED UNFAIR LABOR PRACTICES
Pursuant to the Union's petition for certification, a
Board-conducted election was held on August 26, 1977, in a
unit of Respondent's production and maintenance employ-
ees,' and on November 17, 1977, the Charging Party was
certified as the statutory representative of Respondent's em-
ployees in that unit. Respondent admits that at all times
since that certification, the Union has been and is the statu-
tory bargaining representative of the unit employees.
The parties stipulated that the Union and Respondent
engaged in approximately 14 collective-bargaining sessions
during the period commencing December 6, 1977, and end-
ing May 2, 1978. It was further stipulated that on February
1, 1978, certain production and maintenance employees en-
gaged in a strike; that on February 2, 1978, the Union
made, on their behalf, an unconditional offer to return to
work; and that Respondent ultimately reinstated the strik-
ing employees, notwithstanding it had told some of them
that they had been economic strikers who were perma-
nently replaced.' Finally, it was agreed that on February 3,
1978, certain additional employees engaged in a strike in
support of those employees who had struck on February 1
and whom Respondent said it had permanently replaced.
The employees striking on February 3 made an uncondi-
tional offer to return on February 6 and were reinstated
during the period of February 6 through March 8, 1978.
Subsequent to the election of August 26, 1978, a union
negotiating committee was named among the employees.
These four employees were Sadie Murray, Cecelia Herman,
' The unit, which Respondent admits is appropriate within the meaning of
Sec. 9(b) of the Act, is:
All production and maintenance employees employed by Respondent at
its Atlanta, Georgia facility but excluding the expediter, all office cleri-
cal employees, professional employees, guards and supervisors as de-
fined in the Act.
At the time of the hearing, Respondent employed approximately 100 em-
ployees in its Atlanta plant of whom approximately 85 were unit employees.
It employs approximately 610 employees in its plants throughout the coun-
try.
2 The dates of ultimate reinstatement were also stipulated. An unspecified
number of striking employees returned to work on the next day (February 3)
after the unconditional offer to return, but many were directed by Respon-
dent to return on February 6 and thereafter. The striking employee last
reinstated was reinstated on April 10, 1978. See fn. 8, supra. On the basis of
the above stipulation, and in the absence of evidence to the contrary, I
conclude that those strikers appearing on a list prepared by Respondent were
permanently replaced and that their ultimate reinstatement to unit jobs was
not in those positions which they had held prior to the strike.
Patsy Jackson, and Anna McNair. The four employee ne-
gotiators were also named shop stewards in the unit. The
principal negotiator for the Union was International Repre-
sentative Edward Draper; the principal negotiator for Re-
spondent was Richard Kerner.
The Collective-Bargaining Session of December 6, 1977
At the first meeting the Union presented 20 written pro-
posals (including its economic package of 55-cents-per-hour
wage increase, shift differential, and paid vacations) and
stated that other demands would be subsequently pre-
sented. Respondent agreed to review them. Draper said
that although the Union had the power to accept any Com-
pan)' proposition, the Union would nevertheless seek ratifi-
cation from the unit members. Similarly, Respondent said
that any agreement would have to go to its board of direc-
tors before final approval. Although the parties agreed that
all items "agreed upon" would be reduced to writing and be
"signed off," they also agreed that such agreed-upon items
would nevertheless remain "tentative" until a final written
agreement was executed.
Of particular disagreement in the testimony was whether,
at this first meeting on December 6 or at any other time,
Kerner and Draper reached an oral "gentlemen's agree-
ment"' wherein all noneconomic issues would be merely
negotiated (according to Draper) or actually resolved (ac-
cording to Kerner) prior to the discussion of any economic
issues. Kerner alleges (and Respondent insists, br., p. 2) that
an agreement requiring resolution was made.' Draper asserts
that he agreed only that for purposes of orderly presenta-
tion, noneconomic issues would be taken up first. Draper
denied that any binding agreement requiring preliminary
absolute resolution of all noneconomic issues was intended
or made, or that any agreement precluded him from dis-
cussing economic issues along with noneconomic issues.' It
is clear from Kerner's testimonial confusion as to what was
agreed upon (see footnote, above) that while the parties
may have agreed on the discussion of noneconomic issues
3 It is assumed, arguendo, that, if otherwise enforceable, an agreement is
not rendered unenforceable by its being denominated a "gentlemen's agree-
ment."
'Kerner testified at various points at the hearing:
[At the January 13 meeting I reminded [Draper] of the agreement
that we had made back on December 6th that we would negotiate all the
non-econormcs first and that we had major non-economic issues still to
be resolved. Emphasis supplied].
[Did you say at the January 13 meeting that] the agreement was that
the parties had agreed not to discuss economic issues until the non-
economic items had been resolved? Ans. "That's correct." Emphasis
supplied].
Our initial agreement on the 6th of December said that we agreed
that we would discuss the non-economics before moving on to the eco-
nomics. [Emphasis supplied.
Q. Did you have anything other than the agreement to discuss non-
economics before reaching economic issues?
A. Our agreement made on the 6th of December was that we would
negotiate, discuss and negotiate non-economics before moving on to eco-
nomics [Emphasis suppliedl.
[We agreed that] we would negotiate and reach agreernent on the non-
economic items before moving on to economic issues [Emphasis sup-
pliedl.
Employee Cecelia Herman, a member of the union negotiating commit-
tee, corroborated Draper and testified that she was present at the first (De-
cember 6) negotiating session and that Draper agreed only to discuss non-
economic items before discussing economic items.
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first, there was no agreement requiring resolution of all eco-
nomic issues first as a condition of thereafter discussing eco-
nomic issues. Thus, in this discussion between laymen,
there was no legally effective meeting of the minds as to the
nature of their oral "agreement." I therefore must conclude
that, as Draper testified and General Counsel argues, the
"agreement" was nothing more than an order of presenta-
tion rather than an agreement to preclude the discussion of
all economic issues until all noneconomic issues were fully
resolved.
At this first meeting the parties, having first discussed the
possible effect on their bargaining of repeal of Section 14(b)
of the Act, the Union demanded that Respondent agree to
a checkoff clause of union dues. This demand was there-
after repeated in subsequent meetings.
The Collective-Bargaining Sessions of December 20, 1977
At this session, Kerner went through each union pro-
posal. To some proposals he stated that there was no prob-
lem, to others he said he would offer different language;
and with regard to the request for checkoff, he said at this
meeting and at all subsequent meetings, that the collection
of union dues was a "private matter" between the Union
and its members, and that Respondent was "philosophi-
cally opposed" to the collection of union dues on behalf of
the Union. At this meeting and during the collective-bar-
gaining session of the next day, the parties discussed certain
production bonus computations which had come into exis-
tence in 1977. When the Union pointed out that the unit
employees faired better under the old production quota
methods, Respondent agreed to return to the old method of
bonus computation.
The Collective-Bargaining Session of December 29, 1977
At this meeting, the parties discussed and agreed upon
the Union's request for recognition, safety and health stan-
dards, the scope of the unit, and the unit description. Cer-
tain unspecified other union and Respondent proposals
were discussed. The Union again demanded that a checkoff
of union dues appear in the contract, and Respondent re-
fused.
The Collective-Bargaining Sessions of January 4, 5, and 6,
1978
At these sessions, the parties reviewed Respondent's pro-
posals concerning management rights to which the Union
raised objection. The parties discussed noneconomic mat-
ters such as job classification, arbitration, seniority, and
rate protection. In each of these meetings, the Union re-
quested, and Respondent refused to agree to, a checkoff
clause. The parties agreed on and initialed unspecified boil-
erplate clauses. At the meeting of January 6, Kerner noted
but did not disclose (G.C. Exh. 4) that Respondent would
never agree ("go to wire on") to the checkoff request. Al-
though the testimony is not entirely clear, Kerner took the
position on January 6 that although there were "major dif-
ferences" regarding the no-strike, no-lock-out clause, se-
niority, and management rights, Respondent had not taken
the position on those issues that it would not budge.
The Collective-Bargaining Session of January 13, 1978
At this meeting, the Union presented four to five pages of
hand written demands including the grievance and arbitra-
tion provision, seniority, and checkoff language. Respon-
dent submitted to the Union Respondent's final noneco-
nomic offer (G.C. Exh. 2). At the time of this presentation,
Kerner told Draper that this noneconomic package was si-
lent on some items, including the checkoff issue. Kerner
told Draper that Respondent did not intend to make any
offer on checkoff, but continued to refuse on philosophical
grounds to accede to the Union's request for a checkoff.
The parties also disagreed on at least two other noneco-
nomic matters: the recall rights of laid-off employees and
the return to the bargaining unit of supervisory employees.
When Respondent told the Union that it had made its final
offer on noneconomic issues and asked the Union to agree
to it, the Union refused. Draper remarked that the Union
required a checkoff clause in every one of its contracts; that
it "appeared" that they were at an impasse and that the
parties should proceed to discuss economic issues. In pass-
ing, Kerner told Draper that if the Union agreed to Re-
spondent's noneconomic package, such an agreement
would exclude the omitted checkoff matters as being
banned from further discussion.
I credit Draper's further testimony that he asked Kerner
if it would be necessary for the Union to withdraw its
checkoff request before Respondent would discuss eco-
nomic items, and that Kerner said that it would be neces-
sary. I also credit Draper's testimony that Kerner ulti-
mately said, on January 13, that Respondent had made its
final noneconomic offer and that the Union would have to
agree to it before Respondent would agree to discuss any
economic issues. The credibility resolution in this regard is
fully consistent with Respondent's position taken through-
out the hearing that it would not agree to a checkoff clause,
and that a resolution of economic issues had been agreed
upon by the parties as a precondition of discussing eco-
nomic issues.
After Respondent made this "final" noneconomic pro-
posal which Draper found unacceptable, Draper requested
that the parties commence negotiating economic issues be-
cause, as he said, the parties had been unable to agree on all
noneconomic issues and that bargaining on economic issues
might "wash out" the disagreements on the noneconomic
issues. 6 Kerner refused and reminded Draper of their agree-
ment to resolve all noneconomic matters before reaching
economic matters. There is no dispute that as of this Janu-
ary 13 meeting, noneconomic issues other than the checkoff
matter had not been agreed upon. These included the no-
strike, no-lock-out clause, the management rights clause,
and seniority.
6 Contrary to Kerner's testimony that Draper did not request moving to
economic issues before January 25, Kerner admitted on cross-examination
that on January 13 Draper "suggested" that due to the impasse on noneco-
nomic matters, the parties should proceed to economic matters. Kerner ad-
mitted that the reason Draper gave was that the discussion of economic
matters might "wash out" the disagreements they faced on the noneconomic
items.
42
PI LLOWTEX CORPORATION
Kerner's January 16, 1978. Letter to Draper
On January 16. 1978, Kerner wrote (Resp. Exh. I) to
Draper referring to their prior meeting of January 13, 1978:
When we adjourned last Friday, I had the feeling
there was some confusion as to where these negotia-
tions were going.
Our "final non-economic offer" on Friday was just
that. A final attempt on by the Company to resolve the
remaining non-economic issues. After discussing these
proposals with you at the bargaining table, it became
apparent we still had many major issues to be resolved
and in your words "It appears we are at an impasse".
Ed, I frankly have to agree with you.
Economics, of course, encompass the remaining is-
sues to be negotiated. However, you will recall at the
outset of these negotiations, both parties agreed that
all the non-economic issues would be resolved before
we went on to negotiate the economic issues.
In view of the significant differences that exist be-
tween us in the area of non-economics, I sincerely
doubt that trying to negotiate the economics would be
fruitful in reaching a final, overall agreement.
On the other hand, if you feel we could accomplish
some tangible, positive results by continuing our meet-
ings again next week, then I will certainly make myself
available at anytime during the seek.
If you would like to discuss this, please give me a
call. I plan to be in the office all this week.
Cordially,
Richard E. Kerner
Director of Personnel
As the result of this letter from Kerner, Draper tele-
phoned Kerner and set up a meeting for January 24, 1978.
The January 24, 1978, Collective-Bargaining Meeting
At the January 24 collective-bargaining session, Draper
told Kerner that there would be a union meeting on the
next day, January 25; that a discussion of economic issues
might help to move along the noneconomic issues; that
Draper would like to take the Company's economic offer to
the employees; and that Respondent should make an eco-
nomic proposal so that it could be taken to the employees.
Draper also told Kerner that the Union would be willing to
recommend the noneconomic package offered by Respon-
dent if the dues checkoff matter were moved into the eco-
nomic issues for discussion. Kerner refused the last pro-
posal and told Draper that their agreement relating to
economic and noneconomic discussions precluded discus-
sion of the checkoff provision among the economic issues,
and that the Union had first to execute the noneconomic
paragraphs in Respondent's final noneconomic package of-
fer. When Draper said that many of the paragraphs in the
noneconomic proposal had economic implications, Kerner
responded by saying: "What if the company has no eco-
nomic plan"? Draper said that Respondent had to have an
economic proposal.
Kerner told Draper, with regard to Draper's request to
move on to economic matters, that sometimes such discus-
sions work, but he said that in view of the still significant
unresolved noneconomic problems, the mere discussion of
economic issues did not normally wash away the unre-
solved noneconomic problems. The Union's economic de-
mand, since December 1977, consisted of a 55-cent-per-
hour wage increase for unit employees, a shift differential of
25 cents per hour, and a vacation of 2 weeks to each em-
ployee who had I year of service with Respondent.
Kerner told Draper that he would review the Union's
proposals and respond to Draper's demands.
The January 25 Collective-Bargaining Session
The parties met the next day, January 25, 1978. At this
session, Respondent again insisted on the "gentlemen's
agreement" of not discussing economic issues before
noneconomics were resolved; both parties agree that, at this
meeting, Draper told Kerner that he had made no agree-
ment with Kerner to first resolve all noneconomic problems
before discussing economic issues. Draper told Kerner that
he agreed only to first "discuss" all noneconomic items.
Draper then accused Kerner of bargaining in bad faith
by insisting on the resolution of noneconomic matters be-
fore discussing the economic items.
When Draper asked Kerner whether he was saying that
the Union must, in particular, withdraw its checkoff de-
mand and agree to Respondent's noneconomic package be-
fore Respondent would move on to discuss economic issues,
Kerner admits that he answered "yes" to this question,'
although he phrases it in a slightly differently way, that he
would not proceed to economic issues unless the Union
"drop" the checkoff.
After Draper accused Kerner of bargaining in bad faith
by the device of the "gentlemen's agreement," Draper said
that in view of this situation, he was withdrawing from
agreement all of the tentatively "signed off' and dated
agreements that the parties had initialed.
The Union Meeting of Employees on January 25, 1978
As Draper had informed Kerner earlier that day, a union
meeting was held about 3:30 p.m. at a local motel. How-
ever, some employees checked out of Respondent's plant at
2 p.m., and about 20 employees came to the motel with the
four committeemen. At the meeting, Draper explained to
the employees that the Company was taking an unlawful
position, both by insisting on the withdrawal of the checkoff
provision before discussing economic issues and by its re-
fusal to negotiate on wages. On this statement, the employ-
ees said that they wanted to strike immediately. but Draper
advised against the strike telling them that it would not be
advisable. Draper recommended instead that the 20 em-
ployees vote to permit any future lawful action against Re-
spondent without his having to again call all the employees
to another meeting. The employees voted in favor of such a
right.
' Kerner denied saying this to Draper on January 13 and January 25.
Respondent inaccurately states that Kerner said merely that noneconomic
issues would first have to be "resolved."
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a subsequent union meeting of January 31, 1978, the
negotiating committee told Draper that the employees were
upset and wanted to strike immediately. Although Draper
again told them that it was an ineffective method of resolv-
ing their problem, at least two of the negotiating committee
members told Draper that the employees were going to
walk out the next day at noon. Draper said he would be at
the motel. That evening committeeman Cecelia Herman
told Draper that the employees were going to strike at
lunchtime on the next day, February 1, 1978.
The Strike of February 1, 1978
It is undisputed that around 10:30 a.m. on February I,
unit employees, after discussing the matter with the negoti-
ating committee's shop stewards, agreed to walk out in pro-
test over the fact that they had been told that Respondent
had refused to bargain. At 11:30 a.m. at least 36 employees
walked out of Respondent's plant and punched out. It was
stipulated at the hearing that on the next day, February 2,
1978, Draper, on behalf of the striking employees, made an
unconditional application for the employees to return to
work. It was further stipulated that Respondent, by Kerner,
received that application from Draper, told Draper that the
employees had engaged in an economic strike and as eco-
nomic strikers had been permanently replaced, and that he
was turning them away. Draper then asked Kerner for, and
Kerner gave him, a list of those employees who had been
permanently replaced. Only an unspecified minority of the
February I strikers were permitted to return to work on
February 3; the balance being told by Kerner that they
were permanently replaced. Thus, the "permanently re-
placed" strikers appeared on the list.
It was stipulated at the hearing that 36 permanently re-
placed strikers, by virtue of Respondent's action following
the employees engaging in the February 1 strike, were nev-
ertheless offered reinstatement by Respondent and ulti-
mately were reinstated, at least those employees alleged in
the complaint.'
The Strike of February 3, 1978
On February 3, 1978, the employees who had struck on
February I who were permitted to return to work on Feb-
' The following is the stipulated list of employees who, having engaged in
the February I strike, were permanently replaced. This listing, agreed upon
by the parties, does not include the names of the employees, if any, who are
not permanently replaced, or who did not engage in the strike that day: L.G.
Price, reinstated February 7, 1978: B.L. Copeland, reinstated February 6;
D.A. Harris reinstated February 16; R. Stegall, reinstated February 6; S.M.
Murray, reinstated March 14; A. McNair, reinstated February 6; A.D. Fin-
ney, reinstated February 6; C. Herman, reinstated February 21; L. Grier,
reinstated February 6; L. Taylor, reinstated February 6; G. Cantrell, rein-
stated March 7; W. Westley, reinstated March 9; S. Bynum, reinstated Feb-
ruary 7; G. Mathis, reinstated February 6; J. Adam, reinstated February 6;
C. Russell, reinstated March 9; S. Simmons, reinstated March 13; J. Thur-
mon, reinstated February 13; R. Burton, reinstated February 6; E. Huffman,
reinstated February 6; R. Weldon, reinstated March 9; John Murray, rein-
stated March 9; P. Thurmon, reinstated March 7; J. Wilder, reinstated Feb-
ruary 22; R. Smith, reinstated February 7; Y. Butler, reinstated February 7;
E. Thomas, reinstated April 5; T.L. White, reinstated March 9; D. Pressnell,
reinstated February 24; S. Pressnell, reinstated February 6; B. Scott, rein-
stated February 13; E. Foreman, reinstated April 5; Carolyn Harris, rein-
stated April 10; R. Giffin, reinstated February 6; S. Gordon, reinstated Feb-
ruary 6; and L. Gaye,. reinstated February 27, 1978.
ruary 3 and additional unit employees engaged in a strike.
The motivation for this February 3 strike was to attempt to
force Respondent to reinstate the employees whom Respon-
dent stated had been permanently replaced after participa-
tion in the February I strike.
On the next working day after the February 3 walkout,
February 6, the entrances to the plant were blocked in such
a way that all employees had to report to Kerner and Plant
Manager Osborne. It was admitted by Kerner that on Feb-
ruary 6, the employees who had struck on February 3 re-
quested their jobs back. It was stipulated at the hearing that
at least 10 employees who had participated in the February
3 strike, in addition to those who had participated in the
February I strike, were reinstated and returned to Respon-
dent's employment.9
The Collective-Bargaining Session of March 8, 1978
The next collective-bargaining session was on March 8,
the first meeting since January 25.
Kerner testified that whereas in the January 13 collec-
tive-bargaining session Draper had merely requested or
"suggested" that Respondent bargain on economic issues,
on March 8, 1978, Draper demanded Respondent's eco-
nomic proposals. In particular, Kerner remembered that
Draper said that all he really wanted was Respondent's an-
swer to his demand for the 55-cent-an-hour wage increase
for unit employees. Kerner told Draper that since Draper
had withdrawn his tentative agreement on the non-eco-
nomic matters, Kerner wanted a review of all of the non-
economic matters on which they now had agreement. The
session was spent reviewing these matters. Draper said that
they were wasting time, and that he wanted to discuss eco-
nomic matters. Nothwithstanding that, Kerner reiterated
that Draper was breaking their agreement to resolve non-
economic matters first; Kerner told Draper that he would
present Respondent's economic proposals at their next
meeting and was not prepared to discuss them then.
The Meeting of March 13, 1978
At the opening of the March 13 meeting, Kerner told
Draper that Respondent had given consideration to the
Union's economic and noneconomic demands and now was
making a complete economic and noneconomic offer. The
noneconomic matters were in writing and reflected some
changes from Respondent's prior "final" noneconomic of-
fer. The changes contained some unspecified movement fa-
vorable to the Union's position in the no-strike clause. The
noneconomic matters offered by Respondent contained
both Respondent's own proposals on the matters not agreed
on and contained the language of the noneconomic matters
on which agreement had been reached.
With regard to Respondent's economic proposal, it was
not in writing but was a verbal statement. Kerner told
'The reinstatements of the February 3 strikers are as follows: Marjorie
Coates, Catherine Gay, Jeanette Petty, and Patsy Jackson were reinstated on
February 6. Robert Middlebrooks was reinstated on February 7. Helen Mi-
nor, reinstated on February 13; Pauline Leveritte reinstated on February 23;
Catherine Bell, reinstated on March 2; Gerald Lang, reinstated on March 6;
and Carrie Stringer, reinstated on March 8, 1978.
44
PILLOWTEX CORPORATION
Draper that Respondent's economic position was that there
would be no change in the wage rates and economic bene-
fits of the unit employees, that the Respondent was com-
petitive in the Atlanta area on its wage rates, and "That's
our final economic offer."
At this meeting, Draper submitted an alternative method
to his request for checkoff. In lieu of a contractual checkoff
of wages, Draper suggested that employees be paid with
two checks on payday: one check for $8 (representing
monthly union dues) and a second check for the balance of
the employee's wages. Kerner said that he would consider
the matter. After a luncheon break, Kerner returned and
said that Respondent found the proposal unacceptable,
called it a subterfuge, and rejected it.
With regard to Respondent's final economic offer of
March 13, Draper told Kerner that it was not acceptable to
him or to the committee and that they would not recom-
mend it to the unit. It is also uncontested that at this time
there were noneconomic issues other than the checkoff issue
on which the parties did not agree. These issues included
seniority and return of supervisors to bargaining unit posi-
tions.
The April 25 Collective-Bargaining Session
In the next collective-bargaining session, April 25, 1978,
Draper offered a second alternative to the checkoff clause.
Draper suggested that a chair and table for union use be
placed in Respondent's plant on the second and fourth Fri-
days of each month, which were paydays, to permit the
employees to pay their union dues at the table. Later in the
day, Respondent refused the table and chair idea, again
stating that Respondent was philosophically opposed to
participation in the collection of union dues, deeming it a
matter which was to be settled between the Union and its
members.
At this April 25 meeting, the Union changed its eco-
nomic position in a manner not specified in the record. Ker-
ner, however, described the change as an actual shift and
movement. In any event, Kerner left the room to consider
the Union's change of position and, when returning, said
that Respondent's final economic and noneconomic posi-
tion was on the table, and he rejected the Union's changed
economic offer. Kerner refused to discuss the checkoff alter-
natives any further.
There was a meeting on May 2, 1978, between the par-
ties. Draper could not recall the substance of the meeting
but recalled only that there was no agreement.
Some 10 days after the May 2 meeting, the Union con-
tacted the Federal Mediation and Conciliation Commis-
sioner and asked for a further meeting. The commissioner
sent Kerner a letter requesting a new meeting. In response,
Kerner acknowledged receipt of the commissioner's letter
regarding the further meeting but said that the commission-
er's letter failed to mention a specific reason for the meet-
ing. Kerner said that Respondent's position had not
changed as outlined in his prior discussions with the com-
missioner and with Ed Draper.'°
10 General Counsel adduced evidence of a third alternative by the Union
relating to the checkoff provision. This third alternative related to the use of
an armored car to enter Respondent's premises where the Respondent's em-
ployees' paychecks could be cashed; at the same time the union dues would
Discussion and Conclusions
In brief, Respondent argues that the parties (I) reached
impasse, certainly no later than January 13, 1978, on the
Union's demand for a dues-checkoff clause and Respon-
dent's refusal; (2) that the Union's request on January 13
and 24-25, 1978, for Respondent to discuss economic items
in order to seek to avoid this impasse did not impose an
obligation on Respondent to do so in view of the Union
having entered into an agreement to resolve all noneco-
nomic issues prior to bargaining on economic issues, and
there remained other (aside from impasse on checkoff) un-
resolved, noneconomic issues (no-strike clause, arbitration,
seniority); (3) that even if there were no binding agreement
relating to the resolution of unresolved noneconomic issues,
Respondent's good-faith belief that such an agreement ex-
isted permitted Respondent to refuse to bargain on eco-
nomic issues; (4) that the unit employees' strikes of Febru-
ary I and 3, 1978, were the result of the impasse reached on
the subject of checkoff and not of any unfair labor practice;
(5) that the Union insisted on a checkoff as a condition of
executing an agreement through March 1978 and that its
goal in seeking to bargain on economic issues was to have
Respondent trade checkoff in exchange for union compro-
mises on economic issues; (6) that the March and April
union alternatives to its checkoff proposal did not affect the
prior impasse and the nature of the February strikes; and
(7) that when the Union, on January 25, 1978, repudiated
the agreement to resolve noneconomic issues first, and on
March 8 made its demand for bargaining on economic is-
sues, Respondent, on March 13, in good faith, promptly
presented a complete contract proposal containing an eco-
nomic package.
A. Impasse
The evidence shows that at least as early as January 4,
1978 (G.C. Exh. 4), and thereafter, union agent Draper said
he would not recommend an agreement, regardless of other
terms, without a dues-checkoff clause; and that at the Janu-
ary 13 bargaining session, he said that the parties were at
"impasse" on checkoff. On the other hand, at the same
January 13 meeting, Draper requested that Respondent dis-
cuss economic issues precisely because the parties, unable
to agree on all noneconomic issues, might "wash out" the
disagreements on noneconomic issues by discussing and
perhaps agreeing on economic issues. Indeed, Respondent
inferred this to be Draper's strategy when, after his early
January insistance on a dues-checkoff clause, he thereafter
requested that they discuss economics (Resp. brief, page 8).
The evidence, it seems to me, therefore shows that at no
time prior to the strike of February 1, 1978, was there any
legal "impasse."
be paid. Kerner credibly testified, however, that the only time the armored
car was mentioned was to alleviate check cashing problems that the employ-
ees were experiencing at neighborhood banks; and that nothing was men-
tioned about the checkoff provisions nor did the armored car have anything
to do with an alternative for checkoffs.
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. No impasse occurred
Once the parties reach impasse on a mandatory subject
of bargaining, and no subsequent event removes the im-
passe, the employer, as here, would be relieved of any duty
to further negotiate. Taft Broadcasting Co., WDAF AM-FM
TV, 163 NLRB 475 (1967), enfd, sub nom. American Feder-
ation of Television and Radio Artists, A FL-CIO, Kansas City
Local, 395 F.2d 622 (D.C. Cir. 1968). Impasse, as Respon-
dent asserts (br. p. 7), citing Yama Woodcraft, Inc., d/b/al
Cal-Pacific Furniture Mfg. Co., 228 NLRB 1337 (1977), has
been defined as that point in time in negotiations when the
parties are warranted in assuming that further bargaining
would be futile. Alsey Refactories Company, 215 NLRB 785,
footnote I (1974). Here, on January 13, there was no ex-
change between the parties, each advising the other that its
position was firm and intractable, Lumber & Sawmill Work-
ers, Local 2647 et al. (Cheney California Lumber Co.), 130
NLRB 235, 238 (1961). On January 13, the Union, having
made no progress on checkoff and while saying that the
parties appeared to be at impasse on the checkoff issue,"
requested bargaining on economic issues. No speculation is
necessary to conclude what Respondent interpreted the
Union's request to mean: Respondent knew (Resp. br. page
8) that Draper, by asking Respondent to discuss economic
issues (the Union had presented its economic demands on
December 6 and 20), was willing to change its position on
economics. When the Union's implicit offer of January 13
to change its economic position is coupled with Respon-
dent's January 16 letter inviting the Union (Resp. exh. I) to
continue to bargain (albeit doubting that subsequent nego-
tiating on ". . . economics would be fruitful in reaching a
final overall agreement"), it cannot be said that, as of Re-
spondent's January 16 letter or the subsequent meetings of
January 24-25, when Draper sought to discuss economics,
the parties were at the end of their bargaining rope, H. E.
Fletcher Co., 131 NLRB 474, 483 (1961); Builders Institute
of Westchester County, supra.
I conclude that, at least through January 25, 1978, when
the Union was seeking to discuss economic issues to get
around Respondent's insistance that it would not become
involved in any checkoff, there was no futility in bargaining
and thus no impasse if for no other reason than Respon-
dent's explicit invitation for continuing bargaining on eco-
nomic issues in its letter of January 16. Dallas General Driv-
" Use of words like "impasse" or "deadlock" by the parties, even relating
to overall issues, do not necessarily imply that future bargaining would be
futile. The Westchester County Executive Committee Representing the Sub-
ordinate Unions Numbers 20, et atl. (Builders Institute of Westchester County),
142 NLRB 126, 127, fn, 2 (1963). It may be noted that in that case, where no
impasse was found, as in the instant case, no date was set for future meetings
prior to the strike although the mediator in that case said that future meet-
ings would be called. Further, here, no mediator invited future meetings-
Respondent invited the future meetings of the parties to discuss economic
issues. Thus, as the Board noted (Builders Institute of Westchester County, at
127): such bargaining devices or scare words such as "impasse" or "dead-
lock" are not binding legal conclusions:
An impasse should not be mechanically inferred simply because the
parties have failed to reach complete agreement after some specified
number of negotiating sessions or whenever one party announces that
his position is henceforth fixed and no further concessions can be ex-
pected.
ers, Warehousemen and Helpers, Local Union 745, Teamsters
(Empire Terminal Warehouse Co.), 355 F.2d 842 (D.C. Cir.
1966).
2. Any impasse through January 25, 1978, was broken
While it is true that on January 13 Draper said that the
parties appear to be at impasse, Respondent failed to rest
on the asserted impasse on checkoff and thereafter refuse to
bargain on economic issues. Instead, by its letter of January
16 to the Union (Resp. Exh. 1) it agreed that "Economics,
of course, encompass the remaining issues to be negoti-
ated."
Indeed, pursuant to Respondent's January 16 letter to
Draper, the parties actually met on January 24 and 25.
When, on January 25, Draper requested discussion of eco-
nomic items, Kerner refused on the grounds of their "gen-
tlemen's agreement" and demanded that the Union agree to
the Respondent's noneconomic package before Respondent
would discuss economic issues.
Thus even if impasse existed on January 13, it was surely
broken by Respondent's January 16 letter not only inviting
further bargaining, but also (after expressing sincere
doubts), recognizing that bargaining on economic issues
might yield results. Thus assuming, arguendo, that the par-
ties were at impasse on January 13 on checkoff issues, Ker-
ner's statement to Draper on January 16 shows that contin-
ued subsequent negotiations on economic issues might be a
way around their noneconomic differences. I conclude that
by such an invitation and by the subsequent bargaining on
January 24 and 25 (a) to engage in subsequent negotiations
and (b) to negotiate on economic issues Respondent effec-
tively waived any right to rely on a January 13 impasse as a
basis for thereafter refusing the Union's request to bargain
on economic issues. The Goodyear Tire & Rubber Company,
217 NLRB 73 (1975).
In fact, on January 24-25, Draper requested (as he had
done on January 13) what Kerner, on January 16, had actu-
ally invited: discussion of economic issues as a device
around their noneconomic differences.2 Draper was met
with a refusal based only on their "gentlemen's agreement"
to "resolve" all noneconomic issues, including checkoff, be-
fore discussing economic issues, and Kerner's insistance
that the Union "drop" the checkoff demand and agree to
Respondent's noneconomic package before Respondent
would discuss economic issues.
Having by its conduct broken or waived any prior check-
off impasse, Respondent was now refusing to bargain on
economic issues, a mandatory subject of bargaining, which
it had invited. A refusal to bargain on a mandatory subject
of bargaining violates Section 8(a)(5) of the Act." N.L.R.B.
v. Wooster Division of Borg-Warner Corporation, 356 U.S.
342, 349 (6th Cir. 1958). If the party's behavior is, in effect,
n On January 24, Draper offered to capitulate on all noneconomic differ-
ences except checkoff if Respondent would bargain on checkoff among the
economic issues.
I" Under Sec. 8(aX5) of the Act, it is an unfair labor practice for an em-
ployer "to refuse to bargain collectively with the representatives of his em-
ployees . . ." Collective bargaining is defined in Sec. 8(d) of the Act as the
". mutual obligation . . . to meet at reasonable times and confer in good
faith with respect to wages, hours and other terms and conditions of employ-
ment, or the negotiation of an agreement. .... "
46
PILLOWTEX CORPORATION
a refusal to negotiate, or if it directly obstructs or inhibits
the active process of discussion (as Kerner did here), the
Board is authorized to order cessation of such behavior.
Contrary to Respondent's assertion, Respondent's subjec-
tive good faith (for 8(a)(5) violations), on the issue on which
he refuses to bargain, is no defense even if the party shows
good-faith bargaining on other matters. N.L.R.B. v. Benne
Katz, d/b/a Williamsburgh Steel Products Co., 369 U.S.
736, 743 (1962): Yama Woodcraft Inc., dbla Cal-Pacific
Furniture Mfg. Co., 228 NLRB 1337 (1977).
Thus, unless Respondent, by virtue of its "agreement"
with Draper, was privileged to refuse to discuss economic
issues (especially where, as here, it had itself invited Draper
to enter into such economic discussions if he thought it
might ". . . accomplish some tangible positive results by
continuing our meetings .... " (Resp. Exh. I) and Draper
sought to do so)" then Respondent's refusal violated Sec-
tion 8(a)(5) of the Act, as alleged.
B. The "Gentlemen's Agreement"
The above conflicting testimonies between Draper and
Kerner with regard to the substance of their agreement re-
garding the discussion of noneconomic issues demonstrate
that contrary to Respondent's assertion, Kerner could not
and did not arrive at an agreement with Draper requiring
resolution of all noneconomic issues before economic issues
were reached. Kerner changed his testimony on the point
through an entire spectrum of variations from a mere agree-
ment to discuss, (as Draper insisted on January 25), to an
agreement to discuss and negotiate, to negotiate, to an agree-
ment to resolve, and to an agreement to negotiate and reach
agreement.
Since Kerner did not know what the terms of his "gentle-
men's agreement" were, and since Draper denied that the
agreement included a resolution of noneconomic issues be-
fore economic issues were discussed, I cannot and do not,
on this record, conclude that the preponderance of evidence
(or any credible evidence) shows that an agreement requir-
ing the preliminary resolution of outstanding noneconomic
issues was concluded by the parties.
Kerner's January 16 letter to the Union, wherein he de-
scribes the parties' agreement as one requiring noneco-
nomic issues be first "resolved," is not impressively to the
contrary. First, Kerner was unable to credibly testify (with
the letter easily at hand) what the terms of the agreement
encompassed and consistently contradicted himself on the
point. Second, communications between adverse parties
during negotiations are vehicles peculiarly susceptible to
self-serving statements and are therefore untrustworthy as
proof of the truth of their contents.
Further, I do not believe, as would Respondent, that
Draper's silence on the issue until January 25 demonstrates
'" No explanation appears in this record as to why Respondent, on the one
hand, wrote to the Union on January 16 (knowing of the alleged agreement
to first resolve noneconomic matters) inviting further meetings and discus-
sions on "economics" (the "remaining issues to be negotiated") and then, on
January 24 25 refused to discuss the subject on which it had itself invited
discussion. Certain ominous inferences are at hand, including a desire by
Respondent to cement the parties into a noneconomic impasse by postpon-
ing economic bargaining to the end of negotiations. See particularly
N.L.R.B. v. Patent Trader, Inc., 415 F.2d 190 (2d Cir. 1969), modified on
rehearing 426 F.2d 791 (1970).
that he believed that the "agreement" required a resolution
of all noneconomic items. (Resp. br. p. 2). While it is true
that a party's silence or inaction may, at times, be a defense
(showing acquiesence, waiver, etc.), AN.L.R.B. v. Spunn-Jee
Corporation and the James Textile Corporation, 385 F.2d
379 (2d Cir. 1967), reversing and remanding 152 NLRB 943
(1965), Draper's silence in response to Kerner's letter con-
cerning the content of their agreement is too ambiguous to
necessarily infer an agreement to Kerner's assertion.
Finally, in view of Draper's denial and Cecelia Herman's
corroborating testimony, I do not credit Kerner's testimony
that at the January 13 meeting Draper agreed to the resolu-
lion of noneconomic issues before economic issues were dis-
cussed. The circumstances, as demonstrated by Kerner's
varying testimony, are far too ambiguous with regard to the
content of the agreement to credit Kerner's testimony on
this point.
Thus, the preponderance of credible evidence fails to
show that the parties reached agreement requiring the reso-
lution of all noneconomic issues before economic issues
could be discussed. Rather, I credit Draper who testified
that he agreed to Kerner's suggestion that they negotiate
and attempt to resolve all noneconomic issues before going
on to economic items.
In view of Respondent's failure to come forward with
proof," I conclude that no agreement of the parties permit-
ted Respondent to refuse to bargain on the mandatory eco-
nomic issues as requested by the Union. I further conclude
that in the absence of such an agreement, Respondent vio-
lated Section 8(a)(5) of the Act by refusing, on and after
January 24, 1978, to discuss economic matters, notwith-
standing that the Union first requested discussion of eco-
nomic issues on January 13.
Where, as here, any impasse on noneconomic issues hav-
ing been waived by Respondent, Respondent's refusal to
bargain about economic matters because it was privileged
by agreement to do so and its insistence that the Union
accept Respondent's full noneconomic package as a condi-
tion of Respondent's discussing economic issues, comes
within the holding of Yama Woodcraft, Inc., supra, where a
violation of Section 8(a)(5) was found in similar conduct.
Absent impasse, or as here, if there was impasse, it was
broken if one of the parties insists that noneconomic issues
be completely resolved on terms favorable to it before it
will discuss economic issues, impasse is virtually guaran-
teed. Such a "procedural straight jacket"'" is uncompatible
with the statutory duty to negotiate in a manner which fa-
cilitates agreement.
In view of the conclusion that no binding agreement ex-
isted, it is unnecessary to reach or decide General Counsel's
I conclude that General Counsel proved a primafacie violation of Sec.
8(aX5) by proof, as here, of Respondent's refusal on January 24 to discuss
economic issues after waiver of any pnor impasse on the Union's checkoff
demand. The burden of coming forward on the issue of the nature of the
gentlemen's agreement passed to Respondent since it asserts that the agree-
ment obviated any obligation to bargain on a mandatory subject of bargain-
ing. The "gentlemen's agreement" is a matter of defense on which Respon-
dent must shoulder the burden of coming forward to meet the General
Counsel's prima facie case. notwithstanding that the overall burden of proof
of the 8(aX5) violation rests on General Counsel.
" See Hustad. Use and Abuse of Ground Rules in Labor Negotiations, 15
Air Force JAG Rev. 102, 105-6 cited in Yama Woodcrafi, Inc. supra.
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further assertion-that any such agreement would be un-
lawful under public policy pronouncements in favor of un-
obstructed bargaining, N.L.R.B. v. Insurance Agents' Inter-
national Union, 361 U.S. 447 and N.L.R.B. v. Katz, supra.
Respondent asserts that the Board has never passed on the
status of such agreement, but its citation of H. K. Porter Co.,
Inc., Disston Division-Danville Works v. N.L.R.B., 397 U.S.
99 (1970) seems wide of the mark since that case failed to
deal with the issue of procedural impediments placed in the
path of bargaining on substantive issues.
C. The Strikes of February I and 3, 1978
The evidence shows, and Respondent concedes (Resp. br.
p. 3) that the February I strike occurred because the Union
(Draper) told employees on January 25, 1978, at the union
meeting that Respondent was unlawfully refusing to bar-
gain over economic items. Indeed, the February I strike
was due to the shop stewards telling employees that Re-
spondent was refusing to bargain lawfully and the walkout
was to protest that conduct.
I have found that Respondent did violate Section 8(a)(5),
commencing January 24, by refusing to bargain on eco-
nomic issues and I further conclude, in the absence of any
evidence to the contrary, that the February I strike was
caused by and did not merely follow Respondent's unlawful
conduct. Cf. Tufts Brothers, Incorporated, 235 NLRB 808
(1978).
The strikers, commencing with the initial February 1
walkout, were therefore unfair labor practice strikers, not
economic strikers and could not be permanently replaced.
In accordance with the stipulation of the parties, the
striking employees unconditionally requested reinstatement
on the next day, February 2, and were thereafter all rein-
stated."
The evidence shows, however, that few of the returning
unfair labor practice strikers were actually reinstated on the
next working date, February 3; that although a few strikers
returned to work on February 3, the 36 unfair labor prac-
tice strikers appearing on Respondent's February 2 list, pre-
sented to Draper, were told by Respondent that they were
permanently replaced; and that the strike of February 3
resulted therefrom. Since Respondent was obliged not only
to offer the February I strikers, following their February 2
unconditional offer to return, "immediate and full reinstate-
ment," Newport News Shipbuilding and Drydock Co., supra,
but also to refrain from threatening or permanently replac-
ing them, I conclude that the strike of February 3 by the
February I strikers and other unit employees to protest Re-
spondent's permanently replacing many of the February
strikers and refusing them immediate reinstatement also
constituted an unfair labor practice strike. It was stipulated
that all these strikers of February 3 were also ultimately
reinstated.'
7 1 must assume, in the absence of General Counsel's assertion or proof to
the contrary, that the employees were reinstated to unit positions or substan-
tially equivalent positions.
1 The fact that under the ordinary Board rule, unfair labor practice strik-
ers' backpay commences to run 5 days after their unconditional offer to
return to work, does not relieve the employer of his obligation to "immedi-
ately reinstate" them. Newport News Shipbuilding and Dry Dock Company,
236 NLRB 1637 (1978). Where the employer "... unduly delays or ignores
Respondent's advising these unfair labor practice strikers
that they were permanently replaced and the failure to offer
immediate and full reinstatement to all strikers in both
strikes violates Section 8(aX3) and (1) of the Act. Mastro
Plastics Corp., and French-American Reeds Mfg. Co., Inc., v.
N.L.R.B., 350 U.S. 270, 278 (1956). That the "replaced"
unfair labor practice strikers were ultimately reinstated
does not obviate Respondent's initial unlawful conduct, it
merely limits Respondent's backpay liability.
D. The Effects of Bargaining After the Strike
The subsequent bargaining resulted in the Union de-
manding a response to its economic demands and providing
alternatives to its checkoff demands. Respondent refused
the two checkoff alternatives (separate checks and separate
tables) and countered with a complete economic and non-
economic offer. The economic offer, a "final offer," was to
maintain the economic status quo.'9 Respondent's noneco-
nomic offer to the Union contained, inter alia, apparently
minor Respondent concessions on the no-strike language.
The Union rejected the economic package offered by Re-
spondent. Respondent rejected all Union alternatives to the
checkoff. The Union did not withdraw its alternatives to
checkoff and did not accept Respondent's noneconomic
package.
The Union presented its economic and noneconomic pro-
posals at the first meetings in December 1977. At the collec-
tive-bargaining session, 3 months, I 1! collective-bargaining
sessions, and 2 strikes later, Respondent, in response to the
Union's "demand" for an economic counteroffer, informed
the Union that it was not yet prepared to do so. The ground
was that it was necessary to review the theretofore agreed-
upon noneconomic provisions which the Union withdrew
upon Respondent's unlawful refusal to bargain on wages.
Although Respondent makes much, in conclusionary terms,
of other noneconomic issues which remained unresolved,
upon the resumption of post-strike bargaining, the Union
had abandoned the one demand to which Respondent had
"philosophical" objections the checkoff clause. Whatever
the feasibility or wisdom of the Union's alternative posi-
tions on separate checks or separate tables for the collection
of union dues, neither position was a contractual checkoff
position. In response to this union retreat, Respondent of-
fered a "take it or leave it" wage offer keep the status quo.
Respondent termed its wage offer "a final offer."
It would seem that by such conduct Respondent was en-
gaging in "bargaining" calculated to ensure that no agree-
ment would be reached; or, in the alternative, that an
any unconditional offer to return to work . . the 5-day period serves no
useful purpose and backpay will commence as of the date of the uncondi-
tional offer to return to work." National Car Rental System, Inc., Car Rental
Division, 237 NLRB No. 23 (1978). Here, Respondent told the listed unfair
labor practice strikers that they were permanently replaced economic strik-
ers; this conduct induced the February 3 unfair labor practice strike. Not-
withstanding that some of both classes of unfair labor practice strikers re-
turned to work on February 3 and 6, many others did not return to work for
many weeks. Respondent, by such conduct, therefore rejected and unduly
delayed, respectively, the unconditional offer to return to work and the rein-
statement of the strikers. Cf. Drug Package Company, Inc., 228 NLRB 108,
121 (1977) (Then Member Fanning and Member Jenkins, dissenting in part).
" There is no union assertion that Respondent's position that it was "com-
petitive" in its wage rates in the Atlanta area was untrue.
48
PILL.OWTEX CORPORATION
agreement would be on terms it would dictate. When the
Union abandoned its absolute checkoff demand, Respon-
dent then closed the door by submitting a final position-
take it or leave it. In the light of its past unfair labor prac-
tices, and its statement to Draper that Respondent might
not have a wage proposal, such post-strike "bargaining"
cannot be said to be good-faith bargaining, notwithstanding
the fact that Respondent is under no affirmative duty to
grant a wage increase. Respondent, by such cat and mouse
tactics, showed it had no "serious intent" to reach a com-
mon settlement ground. Romo Paper Products Corp., 220
NLRB 519 (1975), and cases cited
Even assuming that Respondent's subsequent table bar-
gaining, viewed in isolation, amounted to "good faith" bar-
gaining, Respondent may not escape the consequences of
having caused an unfair labor practice strike by its insis-
tence on fragmented bargaining, Vanderbilt Products, Inc.,
129 NLRB 1323 (1961), enfd. 297 F.2d 833 (2d Cir. 1961);
unlawfully threatening the unfair labor practice strikers
with permanent replacement, not reinstating them immedi-
ately; and then, with unfair labor practice strikers still unre-
instated, bringing the Union to the bargaining table as a
defeated enemy. To say that Respondent's subsequent bar-
gaining was mere "hard bargaining," that it washed the
slate clean when it then made an economic offer no self-
respecting union could accept, and then refused to bargain
at all with regard to this first, final, and only wage offer flies
in the face of the prohibitions imposed on parties not to
engage in mere surface bargaining or shadow boxing to a
draw. While I am not at all suggesting that Respondent was
obliged to make any concession with regard to wages, it was
not engaged in the good-faith collective bargaining required
by Section 8(a)5) of the Act when it made a take it or leave
it offer on wages and refused thereafter to bargain with the
Union after the Union capitulated on the checkoff clause.
N.L.R.B. v. Herman Sausage Co., Inc., 275 F.2d 229 (5th
Cir. 1960); Carpenters District Council of Jacksonville, Flor-
ida, et al., 221 NLRB 876 (1975); Romo Paper Products
Corp., supra; N.L.R.B. v. Reed and Prince Manufacturing
Company, 205 F.2d 131, 139 (Ist Cir. 1953); cert. denied
346 U.S. 887; Local Union 103, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO
et al. (Associated General Contractors of America, Evomville
Chapter, Inc.), 190 NLRB 741, 742 (1971). Respondent's
conduct comes directly within the proscription of N.L.R.B.
v. Reed & Prince Manufacturing Company, supra, 134-135,
wherein the court stated that while the Board:
... cannot force an employer to make a "concession"
on any specific issue or to adopt any particular posi-
tion, the employer is obliged to make some reasonable
effort in some direction to compose his differences with
the union, if Section 8(aXS5) is to be read as imposing
any substantial obligation at all.
I therefore conclude that Respondent's post-strike bar-
gaining neither vitiated nor cured its prior violations of Sec-
tion 8(a)(5) and, indeed, continued to demonstrate bad-
faith bargaining.
Upon the basis of the foregoing findings of fact, and the
entire record, I make the following:
CONCLISIONS OF LAW
I. Pillowtex Corporation, Respondent herein, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Firemen & Oilers, the
Union herein, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees employed
by Respondent at its Atlanta, Georgia, facility but exclud-
ing the expediter, all office clerical employees, professional
employees, guards, and supervisors as defined in the Act
constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since August 26, 1977, the Union has been, and is
now, the exclusive representative of all employees in the
aforesaid bargaining unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. The strikes by Respondent employees of February 1
and 3, 1978, were unfair labor strikes from their inception.
6. By refusing, commencing January 24, 1978, to permit
discussion of economic issues in contract negotiations until
all noneconomic terms were agreed on, by requiring as a
condition of any such discussion that the Union agree to
accept Respondent's terms on noneconomic issues, and by
refusing to bargain on its economic offer, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act
7. By refusing to reinstate immediately unfair labor prac-
tice strikers to their former positions of employment upon
their unconditional applications for such employment on
February 2 and 6, 1978, and by permanently replacing the
listed February I economic strikers, Respondent violated
Section 8(a)(3) and (1) of the Act. Weather Tee Corporation,
238 NLRB 10 (1978).
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(aX)I), (3) and (5) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Notwithstanding that Respondent ultimately reinstated all
unfair labor practice strikers, it told them and they were
permanently replaced and rejected and unduly delayed
such reinstatement for many of the strikers, National Car
Rental System, Inc., 237 NLRB 23, supra. I shall therefore
order that each of the strikers be made whole for any loss of
earnings he or she may have suffered as a result of Respon-
dent's refusal to reinstate them commencing with the date
when the unconditional offer was made as to them, and
until reinstatement, by paying to each of them a sum of
money equal to that which each would have earned as
wages, less any net earnings during such period, together
with interest, to be computed in the manner prescribed by
the Board in F W. Woolworth Company, 90 NLRB 289
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1950), and Florida Sleel Corporation. 231 NLRB 651
(1977).20 See Weather 7ee Corp.. supra.
Having found that Respondent has refused to bargain in
good faith with the Union, it will be recommended that
Respondent, in good faith, bargain collectively, upon re-
quest, with the Union as the exclusive representative of the
employees in the appropriate unit and, if an understanding
is reached, embody such understanding in a signed agree-
ment.
As in Yama Woodcrafi, Inc., d/h/a Cal-Pacific Furniture
Manufacturing Co., supra, the General Counsel has not
sought an extension of the certification year (see Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962)) but appar-
ently seeks only a general bargaining order to remedy the
unlawful refusal to bargain. Here, as in Yama Woodcraft,
some 9 months into the certification year have gone by and
Respondent has not bargained in good faith. Under these
circumstances, rather than provide an extension period of
approximately 2-1/2 months from the resumption of the
negotiations, I am of the view that a general bargaining
order is more meaningful. See Federal Pacific Electric Com-
pany, 215 NI.RB 861 (1969).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2 '
The Respondent, Pillowtex Corporation, Atlanta, Geor-
gia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
International Brotherhood of Firemen and Oilers, herein
called the Union, as the exclusive representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its Atlanta, Georgia facility
but excluding the expediter, all office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
(b) Discriminating against its employees who engage in
an unfair labor practice strike by refusing to reinstate them
2 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and recommended Order, and all objections thereto
shall he deemed waived for all purposes.
immediately upon their unconditional offer to return to
work in their former positions of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of all employees in the afore-
said appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment and, if an agreement is reached, embody such
understanding in a signed agreement.
(b) Make whole all those unfair labor practice strikers of
February I and 3 for any loss of earnings they may have
suffered by reason of the refusal to immediately reinstate
them by payment to each a sum of money equal to that
which each employee would normally have earned during
the period commencing when the unconditional offer for
reinstatement was made to the date of Respondent's rein-
stating such employee. Backpay shall be computed on the
basis of calendar quarters in accordance with the method
described above in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its premises in Atlanta, Georgia, copies of the
attached notice marked "Appendix." 22 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by Respondent's represent-
ative, shall be posted 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 no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
22 In the event that this Order is enforced by a judgment of a United States
court of appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of a United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
50