Paramount Cap Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 13, 1957

119 N.L.R.B. 785 (N.L.R.B. 1957)

PARAMOUNT CAP MANUFACTURING CO. 785
protected" activities. If clearly understood, General Counsel's contention is that
the sole inference to be drawn from such conduct during negotiations is one of bad
faith, and that this inference so rar outweigus that wnicn may be drawn from the
negotiations themselves that a refusal to bargain conclusion must follow.
In reviewing all factors involved in this case the Trial Examiner has used more
words than he intended to at the outset. As has been said by his betters, of this and
earlier generations, words are inadequate conveyors of ideas.1° And the increase
of quantity seldom adds to their quality. Although the Trial Examiner, having writ-
ten them, thinks he has said that he is unable, upon analysis of all relevant elements,
to infer a motive of bad-faith bargaining from the Union's slowdown conduct, per-
haps that idea may be more clearly presented by means of a simple, mathematical
formulation of the problem.
There are three distinct elements involved in the case: (a) the intent to influence
bargaining; (b) the method at influencing bargaining; and ,(c) ultimate "bad-taith"
bargaining. General Counsel's formula, then, is:
(a) plus (b) equals (c)
It will hardly be questioned that, in formula fashion, greater weight should be given
to-that which is illegal, lesser weight to that which is not illegal but by the Board
has been found to be unprotected, and none at all to that which is neither illegal nor
unprotected. Let us assign, then, the value of 0 to (a), 5 to (b), and 10 to (c).
Substituting these values in the above formula:
O plus 5 equals 10
And of course this is not so. Legal intent plus unprotected method do not add up to
illegality, in this case and in the opinion of the Trial Examiner.
In summary, having given full consideration to the unprotected activities as evi-
dence bearing upon the ultimate question of bad-faith bargaining, the Trial Examiner
concludes and finds, because of their isolation in the light and weight of all other
evidence, including stipulations and concessions noted above, which clearly estab-
lishes good-faith bargaining, that General Counsel's complaint is not sustained by
the preponderance of evidence.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of Prudential occur in commerce within the meaning of the
Act.
2. Insurance Agents' International Union , AFL-CIO, is a labor organization with-
in the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices, as alleged in the
complaint, within the- meaning of Section 8 (b) (3) of the Act.
[Recommendations omitted from publication.]
10 "Conventional English," said Alfred North Whitehead, "is twin sister to barren
thought." ( The Philosophical Review, vol. XLVI, p. 183.)
Paramount Cap Manufacturing Co. and United Hatters, Cap &
Millinery Workers International Union, AFL-CIO. Case No.
14-CA-1529. December 13,1957
DECISION AND ORDER
On March 18, 1957, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above -entitled proceeding, finding that the
Respondent had- engaged in and was engaging in certain unfair labor
119 NLRB No. 119.
476321-58-vol. 119--51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case,' and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner with the following additions.
The Respondent contends that the complaint in this proceeding is
barred by the 6-month proviso to Section 10 (b) of the Act.' In
substantial agreement with the Trial Examiner, we find that the
complaint is not barred.
As found by the Trial Examiner, the Carters were refused reem-
ployment by the Respondent within 6 months of the filing and service
on the Respondent of the charge initiating this proceeding. In jus-
tification of its failure to reemploy the Carters, the Respondent
advanced certain reasons which the Trial Examiner, on the basis
of adequate supporting evidence, rejected as pretexts. The Trial
Examiner further found that the Respondent's refusal to reemploy
the Carters was unlawfully motivated by antiunion considerations.
In making this finding as to motivation, the Trial Examiner relied
both on the fact that the credited evidence failed to suggest any other
motivation and on affirmative evidence adduced in a prior representa-
tion case,4 involving events occurring more than 6 months before the
filing and service of the initial charge herein, which established in sub-
stance that the Respondent was hostile to the Union, that it threatened
reprisals for union activity, and that it had knowledge of union
activity by the Carters. In its exceptions the Respondent, relying
on the News Printing case,' contends principally that, contrary to the
mandate of Section 10 (b), the Trial Examiner, in making his find-
ings as to motivation, gave independent and controlling weight to
1 The Respondent 's request for oral argument is hereby denied, because in our opinion the
record and the exceptions and brief adequately set forth the issues and the positions of the
parties.
2 We note and correct the following minor inaccuracies in the Intermediate Report,
which , however , do not affect the correctness of the Trial Examiner 's conclusions or our
concurrence therein : ( 1) The initial charge herein was filed and served upon the Re-
spondent on July 30 , 1956 , and not on July 31, 1956 ; ( 2) the Respondent reemployed
Helen Higgins as a floorlady or floorgirl on February 11, 1956, and not on February 11,
1,945 ; and (3) the Trial Examiner stated that Seymour Carter could have worked 20 perfect
20-hour weeks during 1955, whereas he obviously meant 20 perfect 40-hour weeks.
3 Section 10 (b) of the Act reads in relevant part:
Provided, That no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is made. . . .
4 Paramount Cap Manufacturing Company, 116 NLRB 993.
5 News Printing Co., Inc ., 116 NLRB 210.
PARAMOUNT CAP MANUFACTURING CO. 787
events occurring more than 6 months before the filing and service of
the initial charge. We find no merit in this contention.
As the Board has consistently held,6 the Section 10 (b) proviso was
enacted as a statute of limitations and not a rule of evidence. Accord-
ingly, although the Board may not in making unfair labor practice
findings give independent and controlling weight to events occurring
more than 6 months before the filing and service of the operative
charge, evidence as to such events is nevertheless admissible and may
be considered as background to explain ambiguous and equivocal
conduct, including supplying the real reason where an untruthful rea-
son is given for conduct within the 6-month period. As the reasons
given for the refusal to reemploy the Carters within the 6-month
period are not entitled to credence and are therefore clearly untruth-
ful defenses or pretexts, leaving the real reason for such refusal un-
explained by events occurring within the 6-month period, we find that
consideration of the background evidence for the purpose of seeking
an explanation is warranted here .7 Upon consideration of the back-
ground evidence for that purpose we find, in agreement with the Trial
Examiner, that the Respondent discriminatorily refused to reemploy
the Carters in violation of Section 8 (a) (3) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Paramount Cap
Manufacturing Co., Bourbon, Missouri, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Hatters, Cap & Millinery
Workers International Union, AFL-CIO, or any other labor organ-
ization of its employees, by discriminating in regard to the hire and
tenure of their employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist United Hatters, Cap &
Millinery Workers International Union, AFL-CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to the extent
9 E. g., Brady Aviation Corporation, 110 NLRB 25 ; Axelson Manufacturing Company,
88 NLRB 761.
7 The News Printing case, supra, relied on by the Respondent, is therefore clearly
distinguishable from the instant case, because in that case there is no similar evidence
of equivocation requiring an explanation with respect to that Respondent's conduct within
the statutory 6-month period.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer employment to Seymour Carter and make him and Mary
Lorene Carter whole for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them, all in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(c) Post at its plant in Bourbon, Missouri, copies of the notice
attached to the Intermediate Report marked "Appendix A." 8 Copies
-of said notice, to be furnished by the Regional Director for the Four-
teenth Region (St. Louis, Missouri), shall, after being signed by the
Respondent's representative, be posted by the Respondent and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
CHAIRMAN LEEDOM and MEMBER RODGERS, dissenting :
In our opinion, this case is indistinguishable from the News Print-
ing case, supra. Accordingly, we would dismiss the complaint herein.
$ This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order ." In the event that this Order is en-
forced by a decree of a United States Court of Appeals , shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed against the Respondent , Paramount Cap Manufacturing
Co., by the Union, United Hatters, Cap & Millinery Workers International Union,
AFL-CIO , the General Counsel of the National Labor Relations Board 1 issued
his complaint dated October , 9 1956, alleging that Respondent has engaged in and
is engaging in unfair labor practices affecting commerce within the meaning of
1 The General Counsel and the staff attorney appearing for him at the hearing are re-
ferred to herein as the General Counsel, and the National Labor Relations Board as the
Board.
PARAMOUNT CAP MANUFACTURING CO. 789
Section 8 (a) (1) and ( 3), and Section 2 (6) and ( 7) of the National Labor Rela-
tions Act , as amended , 61 Star. 136 , herein called the Act. Copies of the charges,
the complaint, and the notice of hearing were duly served upon the parties.
With respect to the unfair labor practices the complaint , as amended at the
hearing , alleged in substance that on or about February 8 , 1956, and thereafter,
Respondent refused to recall or employ or reinstate Mary Lorene Carter , herein
called either Lorene Carter or Lorene ; and on or about July 18, 1956, and there-
after, Respondent refused to recall or employ or reinstate Seymour Carter, herein
called either Carter or Seymour, husband of Lorene ; because of their membership
in, and activities on behalf of , and in order to discourage membership in, the
Union. In its answer Respondent admitted the commerce allegations of the com-
plaint, admitted that the Union is a labor organization , and denied the commission
of any unfair labor practices.
Pursuant to notice a hearing was held in Sullivan , Missouri, on November 19
and 20, 1956 , before Alba B. Martin, the duly designated Trial Examiner. All
parties were represented by counsel and were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence relevant to the
issues. Over the vigorous objection of the Respondent , judicial notice was taken,
for background purposes , of a prior representation proceeding involving the same
employer-action which was consistent with Board precedent . News Printing Co.,
Inc., 116 NLRB 210; Winter Garden Citrus Products Cooperative , 116 NLRB 738;
N. L. R. B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131 (C. A. 1),
enforcing 96 NLRB 850; B . M. C. Manufacturing Corporation , 113 NLRB 823,
825; J . S. Abercrombie Company, 83 NLRB 524, 525.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Missouri corporation with its principal office and place of business
at Bourbon, Missouri, the plant herein involved. It has two other plants, both in
Missouri. At the Bourbon plant it makes caps-cloth caps, hunting caps, baseball
caps, work caps of various kinds, sport caps, fishing caps of cloth and leather, and
felt caps. During the 12 months prior to the issuance of the complaint, Respondent
sold and shipped from its Bourbon plant to points outside of Missouri, caps valued
at more than $50,000. It is held that Respondent is engaged in commerce within
the meaning of the Act, and that within its present jurisdictional standards it will
effectuate the purposes of the Act for the Board to take jurisdiction hereof.
When Respondent first located in Bourbon, Missouri, in 1936, it was the only
manufacturing plant within a radius of 15 miles; now there are 10 others. It is a
family business, Simon Rubenstein being president, William Rubenstein, brother of
Simon, being secretary-treasurer, and Norman Rubenstein, son of William, having
had the title for the past 10 years of vice president and general manager. Norman
Rubenstein is herein called either Norman or Rubenstein.
According to the informed statement of Norman Rubenstein the capmaking indus-
try is a seasonal industry and the general practice in the industry is to employ for
the peak periods and to lay off for the low periods, always on a mass basis. It is
the Respondent's practice, on the contrary to avoid mass layoffs during low periods
and to give its employees steady employment the year round wherein practicable.
In its relations with its employees it operates with a minimum of rules and consider-
able flexibility. It is standard practice for working women to work for a while
and then stay at home for a while, their working lives thus finding an adjustment with
their other duties as wives and mothers and daughters.
About one-half of the Respondent's approximately 130 employees work in the
sewing room or department, which occupies about one-half of the second floor of the
plant. As both the Carters had always worked in the sewing department when
they worked for Respondent, we are primarily concerned with it.
It. THE LABOR ORGANIZATION INVOLVED
United Hatters, Cap & Millinery Workers International Union, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background facts
1. The election and the objections
At an unspecified time some years before the events herein, the Union made some
effort-apparently unsuccessful and not developed in the record-to organize the
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at the Bourbon plant . The present organizing effort began during about
the second week in May 1955 ; Norman Rubenstein testified that he first heard of
it in late May 1955 . Pursuant to a Board Decision and Direction of Election dated
August 26, 1955,2 an election was held on September 23, 1955. Of the approxi-
mately 126 eligible voters, 123 cast ballots; of these, 27 were for the Union, 83
were against the Union , and 13 ballots were challenged .3 Thereafter the Union
filed timely objections to conduct affecting the results of the election , and the Board
directed that a hearing be held .4 In his report the hearing officer, Thomas N. Kes-
sel, found that certain conduct by the Employer interfered with the employees' free
choice of a bargaining representative at the election and recommended that the re-
sults of the election be set aside and that a new election be directed . The Board
adopted these findings and recommendations and set aside the election .5 The sec-
ond election was never held because on September 25, 1956, the Board granted, with
prejudice , the Union 's request to withdraw the petition.
Specifically , the hearing officer based his findings upon certain statements by
Norman Rubenstein. He found, contrary to Norman's denial, that the day after
an employee , Herbert Hopwood , had gone with a union organizer to the homes of
three employees to solicit their signatures on union cards, in late August or early
September 1955 , Norman said to him in the plant that:
He had heard [Hopwood ] had been horsing around with these other guys,
and . . . every time he heard of it, he got mad, and if he heard about it again,
he was going to fire [him].
In making this finding the hearing officer rejected Norman's testimony that at the
time of this conversation Norman did not know that Hopwood had been out solicit-
ing with a union organizer or had signed a union card . He found that Mr. Ruben-
stein had such knowledge because: the latter's remarks to Hopwood implied
knowledge of Hopwood 's activities ; the plant was situated in a small town and the
Employer during the hearing had contended that "many" a person's activities in a
small town 6 are commonly known; and Norman admitted that he had discussed the
Union during the union campaign with 90 percent of the employees as privately as
possible. Norman had testified that "in many cases they came to me, they gave me
letters about rumors, gossip and the union organizers visiting them." [Emphasis
supplied by the hearing officer.] Hearing Officer Kessel found further, that on
September 13, 1955, 10 days before the election, Norman made a coercive statement
to another employee whom Norman had engaged in conversation to the effect that
although the employee was a slow worker he could keep his job, but that if the
Union got in , Norman could not promise him anything . The hearing officer found
this statement coercive because it was "tantamount to a warning that his employ-
ment would be seriously jeopardized by a union victory through abandonment of the
Employer's tolerance toward him."
The hearing officer found, thirdly, that 1 week before the election, having sum-
moned 2 women employees to his office and discussed a matter relating to a union
pamphlet, Norman , in ending the conference , stated, according to the credited
version:
I can't tell you girls how to vote, but if you think anything of your job
and want to keep on continuing working here, see that the doors of the factory
remain open... .
-and then he paused and looked at them . Kessel found that , "it was evident to
them from what he had said to them before this meeting and from his openly de-
clared opposition to the [Union ] in the course of this union campaign that he desired
them to vote against the Petitioner [ Union ] in the forthcoming election . His admoni-
tion about continuing to work and seeing that the doors remained open, although
broken off at this point ... could only be interpreted as a warning that continuation
of the plant's operation and retention of their jobs depended upon the rejection of
the Petitioner [Union]. Manifestly this was coercion."
z Not reported in printed volumes of the Board Decisions and Orders.
8 See Board's Supplemental Decision and Order, 115 NLRB 747.
* Footnote 3, supra.
6 Second Supplemental Decision , Order , and Direction of Second Election, 116 NLRB
993, of which I took judicial notice.
6 Bourbon , Missouri , had a population of about 500 or 600 at the time of the hearing.
PARAMOUNT CAP MANUFACTURING CO. 791
2. The Carters' union activity and the Respondent's knowledge thereof
The two Carters, husband and wife, were most active in the Union's organizing
drive from its beginning, about the second week in May 1955, until the election on
September 23, 1955. They prepared a list of the Company's employees, and using
that as a guide they showed the union organizers where the employees lived. Fre-
quently they rode in the same car with an organizer. In many cases they them-
selves talked with the employees about signing union cards. In other cases one of
them would visit employees with an organizer. Sometimes they talked with em-
ployees just outside the Bourbon plant or on the streets of Bourbon, but mostly they
talked with them at the employees' homes evenings, several days a week during the
entire campaign. The 2 Carters together obtained signatures on cards from about
20 to 35 employees, and in addition signed up a few individually. Although there
was some contradiction between them as to details concerning the manner in which
they assisted the organizers, I do not believe, as contended by Respondent, that they
had any intent to mislead the Trial Examiner or the Board.
During this period they frequently stopped in the evening, during or after their
"home calls" at a local gathering place, Cottage Inn, where, on one occasion, a
company supervisor, Norman Eisenberg, passed within 4 feet of the 2 Carters as
they sat at a table with Yates, and where, on another occasion, when the 2 Carters
were there with Yates, one Johnnie Ernie, a floorman with Respondent and a
supervisor within the meaning of the Act,7 was there and spoke to Seymour. In
testifying, Norman Rubenstein admitted that he had heard that Lorene had received
some gifts from the Union for her baby (who was born October 21, 1955), and that
about the same time he had heard that Lorene had been seen with Everett Yates.
Norman testified further that during the union campaign he had heard that Yates
was buying a lot of beer for various employees, and that he had heard Seymour
Carter's name mentioned in connection with that. Norman testified also that during
the union campaign he talked with "perhaps 50 percent of" his employees about
the Union's attempted organization of the plant-and later stated that his earlier
testimony before Thomas N. Kessel on the point was the truth, namely, that he
talked with 90 percent of his employees on the subject during the period. He
testified here that he had taken the initiative and contacted about 10 percent of
those with whom he had spoken, but in his prior testimony before Kessel he had
asserted that he had contacted about 50 percent and the other half had contacted
him. He confirmed here his prior testimony to the effect that "in many cases"
the employees "came up to me and they gave me letters about rumors, gossip and
the union organizers visiting them." [Emphasis supplied.]
Lorene Carter testified that very early in the union organizational campaign, when
Yates' gray Nash frequently called at the Carter home to pick up one or both of
the Carters, William Rubenstein asked her, as she was working at her sewing
machine, what she thought of unions. Lorene testified that she replied that, "there
wasn't any harm in them because there was several of them all over the country...."
Mr. Rubenstein replied, "Well, we don't need one in here." According to Lorene,
within the next several days, "Mr. Bill" again came to her machine and said, "You
know that gray Nash that sets up at your house. . . When Lorene did not
answer, Rubenstein left; he returned a few moments later and said, "You know
7 "Officially" under the forelady who was in charge of the entire sewing department,
nevertheless Ernie, according to his uncontradicted and credited testimony, did not take
orders from her but took them only from "one of the bosses"-meaning one of the Ruben-
steins. With respect to the inband, lining, and finishing sections, he was responsible for
lining up the work for the sewing machine operators, and for seeing that they were kept
busy. He testified that he also inspects the work in the inband section and if it is faulty
work he has the operators fix it. He stated further that as a rule the forelady does not ob-
serve the work of the inband section until it has left the section, so that he is the one
primarily responsible for it. On one occasion he told Norman Rubenstein that Seymour
Carter's work was poor. When Seymour was laid off for lack of work in early May 1955,
it was he, rather than the forelady, who checked the orders for winter caps and found there
were none, then checked the cutting room and saw they were cutting no winter caps.
Thereupon, without consulting the forelady, insofar as the records reveals, he told Norman
Rubenstein that he had no more work for Seymour and recommended that Seymour be laid
off. Norman approved, and Ernie then laid off Seymour. On the basis of this testimony,
I conclude that Ernie has authority, in the interest of the Respondent, responsibly to direct
employees and effectively to recommend their layoff ; and that he is, therefore, a super-
visor within the meaning of Section 2 (11) of the Act.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all union people are just jailbirds. . Next time you see Mr. Yates up there you
ask him how many years he spent in the penitentiary."
William Rubenstein denied the above remarks attributed to him and stated
that he never talked to anybody about the Union. As Lorene Carter impressed
me as a more forthright and credible witness than William Rubenstein, and in the
light of the entire record considered as a whole, I credit her testimony concerning
her conversations with William Rubenstein.
Although Norman Rubenstein denied that he had learned anything about the
organizing efforts of the Carters, the preponderance of the evidence impels a
contrary conclusion. Seymour Carter testified, and Norman did not specifically
deny, that when Carter first applied for reemployment, in June 1955, Norman
asked Seymour if the latter had anything to do with the Union; and Seymour
replied that, "me and my wife got the cards signed." In addition, for weeks during
the summer of 1955, the Carters rode around the small town of Bourbon in the
same automobiles with union organizers. One of the organizer's cars was sufficiently
in the mind of a company vice president, father of Norman, that he referred to it,
as well as the organizer, in a conversation with Lorene. The Carters talked with
many employees about joining the Union, and Norman talked with some 90 percent
of the employees during the union campaign about the Union. At least 50 percent
of the 90 percent with whom Norman talked, voluntarily raised the subject with
him. In the cases of at least two employees who were working for Respondent
during the union campaign, Herbert Hopwood and the slow worker, Norman
Rubenstein's remarks to them indicated knowledge by him of their union activities.
On at least one occasion the Carters were seen in the presence of a union organizer
at a local gathering place, and spoken to by a company supervisor. Sometime
shortly after the birth of Lorene's baby on October 21, 1955, Norman Rubenstein
heard that Lorene had received gifts from the Union for the new baby and that
Lorene had been seen with Yates. Rubenstein heard further that Yates had been
buying beer for Seymour Carter, among others. On the basis of the above evidence,
and on the basis of the entire record considered as a whole, I believe and find that
Respondent knew, during 1955, that both of the Carters actively assisted the union
organizers during the union campaign, and were actively engaged in getting union
cards signed.
The association of the Carters with Yates and other union representatives, begun
during the organization and preelection campaigns, was still continuing up to the
hearing herein. Mrs. Carter testified, in substance, that Yates and a business agent,
Gene Gillam, sometimes came out to the Carter home during the month before
the hearing.
B. The nonemployment of Lorene Carter and Seymour Carter
In amending his complaint at the beginning of the hearing, the General Counsel
announced as his theory of the case that the Carters, as applicants for further
employment with Respondent, were on the same basis as any other applicants for
employment; that is, that under the Act they had a right not to be refused employ-
ment because of their union activities. This case involves whether they, or either
of them, were denied employment by Respondent for that reason, as asserted by
the General Counsel, or for other reasons, as asserted by Respondent.
1. Lorene Carter
Prior to February 8, 1956, the alleged beginning of the discrimination against
her, Lorene Carter had gone to work for Respondent four different times, once in
1945, once in September 1950, once in February 1952, and once in October 1953.
The first time she had worked about 1 week. The second time she worked from
September 1950 to March 1951. The third time she had worked from February
1952 to September 1952. The fourth time she had worked from October 1953 until
June 6, 1955.
Lorene Carter was a sewing machine operator, and during the course of her
previous employment with Respondent she had performed a number of opera-
tions. During her first employment she had sewed the completed inband into the
lining of the cap. The inband is the piece folded inside the cap which, when
unfolded, covers the ears and back of the neck. During her second employment she
had basted on inbands "a little bit" and sliced on inbands. During her third employ-
ment for about a month she had sewed sweatbands into summer caps (this was
called finishing ) and spent most of the time stitching fronts. Stitching fronts meant
sewing ornamental stitches on the beak or bill or tip of the cap. During her fourth
employment she had mostly stitched fronts, but had also sewed elastic bands on the
PARAMOUNT CAP MANUFACTURING CO. 793
back of golf caps and made leather straps to go on leather caps. Sometime during
her previous employments she had also "put the binding around lapels, a little bit,"
had done a little finishing on winter caps, had bound "lapels" somewhat, had worked
on a "lapel job," sewing mouton onto cloth, and had made cuffs. All of these
were sewing machine operations. There were many other sewing machine opera-
tions that she had never performed.
Twice Lorene Carter had left her employment in expectation of giving birth to
a baby-in March 1951 when she was expecting her third child, and in June 1955
when she was expecting her fourth.
When she was ready to work after the birth of her baby on October 21, 1955,
Lorene applied at the Company for work four different times-in December 1955,
January 1956, March 1956, and September 1956. Respondent did not contend that
it was not aware that she was available for employment, but contended, in substance,
that there was no work available for her-until, that is, October 24, 1956, after the
issuance of the complaint herein, when she was rehired. The principal issue in this
portion of the case, as I see it, is whether she should have been hired rather than
some of the 19 others who were hired between February 8, 1956, and October 23,
1956, to fill vacancies as sewing machine operators. Although during this period
Respondent employed also a number of employees for vacancies in departments
other than the sewing department, Respondent contended, and the General Counsel
did not disprove, that Respondent had a policy of not employing sewing machine
operators in the other departments (cutting, blocking, and packing).
Of the 19 operators hired for the sewing room between the beginning of the
6-month period prior to the filing and service of the original charge (February 1,
1956) and the reemployment of Lorene Carter on October 24, 1956, 12 3 had
worked in Respondent's sewing room before (here called new employees), 6 9 had
never worked for Respondent before (here called new employees), and the record
is unrevealing as to the 19th, Bernice Halmick,10 who was employed February 8,
1956, and terminated February 10, 1956.
Of these 19 openings , Respondent considered Lorene Carter for none of them,
for several alleged reasons. Norman Rubenstein, who did most of the hiring,
testified that he considered Lorene qualified only to stitch fronts and to work on
inbands, and that he considered Lorene for employment during 1956, only when
Respondent needed someone to stitch fronts on October 24, at which time he hired
Lorene. He did not consider her for the inband vacancy on July 18, 1956, for the
alleged reason that she had previously told Norman that she did not want to work
in inbands (which Lorene denied). Although, as seen above, during her employ-
ment with Respondent Lorene had performed a number of sewing machine opera-
tions , the fact is that she had never performed the work of some of these 19 vacancies.
including sizing , cover making, sewing on fronts, lining making, sewing eyelets,
and repairing. As to others of the openings, however, she had in fact had some
experience performing the operations, although short experience. For a workweek
in 1945 she had sewn in inbands, and for about a month in 1952 between February
and September, she had worked at finishing on summer caps. Also she had finished
some on winter caps. In 1956 Bernadine West, an old employee, was hired
March 19 and Anna Sabatino, an old employee, was employed April 5, both as
finishers, presumably on summer caps.
The defense that Lorene was unqualified to perform the jobs for which she was
not considered during 1956 was inconsistent with an affidavit executed by Norman
on September 5, 1956, in which he stated, "The above covers all of the reasons why
Lorene hasn't been called back as of this date." The "above" reasons included poor
attendance record, poor quality work, and a statement that Respondent had not had
any work in which Lorene "specialized," but did not state that she was unqualified
to perform the jobs that were filled after she applied for work. Nor does the filling
of 6 of the jobs with new and, insofar as the record shows, inexperienced, employees,
8 Vernis Frye, cover maker ; Bernadine West, finisher ; Viola Stalons, sizer ; Birdie
Sappington, sewing on fronts ; Anna Sabatino, finisher ; Jessie Rowland, inbands ; Helen
Pennock, cover maker ; Pearl Albright, cover maker ; Carole Bandy, lining maker, sewed
eyelets ; Delores Beckett, cover maker ; Bonnie Ernie, cover maker ; Ruth Schelick, repair
girl.
6 Mae Halmick, sewed on fronts ; Erma Duncan, cover maker ; Wanda Imboden , sizer ;
Lois Summers, cover maker ; Marlene Merkel, sewing in inbands ; Marjorie Kitchen, covers
and sizing.
so Bernice Halmick was a sewing machine operator, but Norman Rubenstein did not re-
member what operation she performed or whether she was an old or a new employee.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give weight to the defense that Lorene Carter, aged 36 and still a young-appearing
woman, was unqualified to do the work after nearly 3 years of employment with
Respondent.
Concerning Lorene's poor attendance as a defense, there are many words in the
record and a few hard facts based on Respondent's records. The hard facts are
that Lorene and Seymour Carter had irregular attendance records, but not bad
enough to have been discharged or laid off because of them; and that several other
employees, who had such poor attendance records that they were laid off because
of them, were later rehired and given another chance despite their earlier records.
Despite having been earlier warned, and then laid off by Norman for irregular
attendance and poor work, Evelyn Graddy, an examiner, was reemployed on
February 15, 1956. Norman testified that when rehiring her he told her that "if
she could attend work regularly we could use her"-evidently making no reference
to improving her work. Bonnie Ernie, a cover maker, worked for Respondent from
June 16, 1954, until January 29, 1955, when she was laid off "because of her irregular
attendance and her failure to make her time." Norman "recalled her" on Sep-
tember 24, 1956, and as of the middle of November, when Norman was testifying,
she was "now doing her work properly and attending work regularly." Upon dates
not given in the record Gladyne Isgriggs was laid off for irregular attendance and
later "recalled." No explanations for the irregular work habits of these employees
were offered by Respondent, nor were any reasons given as to why each of them
was given another chance.
With respect to 3 other employees with poor attendance records, who were
terminated during 1955 and reemployed during 1956 despite their bad records, the
record contains the number of perfect weeks (40-hour weeks-five 8-hour days)
they were on the payroll and so could have worked during 1954 and 1955, and by
contrast, the number of perfect weeks they actually worked. Although these figures
have weight, they do not carry conclusive weight, because they do not include the
number of weeks the employees worked almost, but not quite, 40 hours. During
1954 Helen Higgins could have worked 33 perfect weeks and she worked 17; Anna
Sabatino could have worked 30 perfect weeks and she worked 19; Viola Stalons
could have worked 12 perfect weeks and she worked 10. During 1955 Helen Higgins
could have worked 28 perfect weeks and she worked 19; (Sabatino was not employed
during this year); Viola Stalons could have worked 14 perfect weeks and she
worked 6.
Norman Rubenstein characterized the attendance record of Higgins during 1954
and 1955 as good, "with two exceptions. First [the chronology is not given, not
even what year], her mother who normally cares for her son became ill and Helen
had to take care of the boy, and then the boy became ill and she took off and cared
for him. Her son had trouble with his tonsils or adenoids, or something like that.
He is a young fellow, under 5 years old, or he was at the time, and she had trouble
with him so she took off to care for him." Higgins was reemployed February 11,
1945, as a floorlady or floorgirl, at which she had had previous experience.
Norman characterized Viola Stalons' attendance record as "average, . or a
little below average." Having "trouble with" a pregnancy, she took off about 2
weeks in a row, and in addition took off other time. . . she came to me with
a letter from her doctor asking if she could be excused from work for awhile, and
we told her to take off and when she regained her health to come back." Stalons
was reemployed March 5, 1956. as a sizer, at which she had had previous experience.
With reference to Anna Sabatino , during 1954 Norman testified that "there was
a good reason for her failure to work complete weeks. She has a grandchild for
which she feels responsible. It is stricken with Polio, a little girl. She has had 3
or 4 operations, and she felt it was her responsibility when needed to stay home
and care for her, and she always reported to us when she had to stay home with
her. . We appreciated the conditions and never made a fuss about it."
With reference to the attendance record of Evelyn Graddy, named above , during
1954 (she did not work during 1955) the record shows that out of a possible 13
perfect weeks she in fact worked 5 perfect weeks.
Norman Rubenstein credibly testified that he has a general impression in his
mind of the attendance record of each of his employees. The record establishes,
however, that he did not actually check the absentee records of Lorene and Seymour
Carter until requested to do so by the General Counsel' s agent during the investiga-
tion of the case, in about Seotemher 1956.
The record has the number of hours worked each week during 1954 and 1955 of
both the Carters. The record has this full attendance information on only the
Carters, so that a complete comparison of the Carters' records with the other
employees' records is impossible . Seymour's record is given below in this report.
PARAMOUNT CAP MANUFACTURING CO. 795
During 1954 Lorene could have worked 50 perfect weeks. In fact she worked
twenty-two perfect 40-hour weeks, two 39-hour weeks, one 38-hour week, five 36-
hour weeks, three 35-hour weeks, eleven 32-hour weeks, and six less-than-32-hour
weeks. Thus, during 1954, Lorene had a perfect attendance record for 22 weeks,
and in addition missed less than 8 hours, the equivalent of 1 day, during 11 weeks,
and in addition was absent the equivalent of 1 day during 11 weeks.
During 1955 Lorene could have worked 25 perfect weeks. In fact she worked
six perfect 40-hour weeks, two 38-hour weeks, three 36-hour weeks, one 35-hour
week, one 34-hour week, eight 32-hour weeks, and six less-than-32-hour weeks.
Thus, insofar as a comparison is possible (based upon incomplete figures and
figures uncompared by Norman until, at the earliest, September 1956), the follow-
ing emerges: (1) There are no figures at all concerning the records of Bonnie Ernie
and Gladyne Isgriggs; (2) in 1954, Evelyn Graddy worked less than half of her
possible number of perfect weeks, Helen Higgins and Seymour Carter worked about
half of their possible number, Sabatino worked about two-thirds of her possible
number, Lorene Carter worked less than half, and Stalons did considerably better;
(3) in 1955, Helen Higgins worked less than two-thirds of her possible number of
perfect weeks, Seymour worked about one-half of his, and Lorene and Stalons, pre-
sumably during the early months of their pregnancies, worked between one-third
and one-half of their possible number of perfect weeks. These figures do not
include the almost-perfect weeks of the Carters and do not give Seymour any credit
for overtime.
Norman Rubenstein testified that about 75 percent of his employees have a less-
than-perfect attendance record, and that "less than ten percent" have a poor attend-.
ance record-"I would say less than ten percent, where there wasn't some notice
of the absenteeism or if they weren't laid off for a day or two. . . Thus,
absenteeism, or lack of notice, was not confined to the Carters. Letha McCleary,
who worked in Respondent's office for some 5'/2 years prior to her voluntary ter-
mination in July 1956, and who impressed me as a very honest and credible witness,
testified that Lorene "attended work as regularly as most mothers do tnat are work-
ing for a living. With children at home you can't just work every day and every
day. There could be sickness and lots of reasons why a mother has to stay home."
Lorene testified in rebuttal that her attendance was "as regular as most of the
others." This testimony is credited.
In substance Respondent contended that one of the reasons the Carters were not
rehired was that they failed to give notice to the Company in advance when they
were going to be absent. Lorene testified, in substance, that as her voluntary
absences were usually due to illness of her babies or because they could not get
their car started in winter, she seldom ever knew in advance that she would not
be at work the following day; that when she did know, she gave notice. The
Carters lived some 21/2 miles from the plant, in the country. They did not have
a telephone, and the nearest telephone was about a 15-minute walk away. In any
case, the strongest admonition the Carters ever received from the Company con-
cerning -bsenteeism was that when they returned from an absence they would be
asked about it and the Company invariably accepted their explanation. Several
times they were asked to be more regular, but apparently nothing was said about
notice. There is no evidence that they, or the other employees, were ever instructed
to inform the Respondent in advance of any absences, or that any employees were
ever disciplined for being absent or failing to give. notice, and still kept working
as employees. As has been shown above, some employees were laid off (in these
instances the equivalent of discharge) for absenteeism, but there is no evidence that
any employees were ever disciplined for absenteeism and kept on at work. And
whatever their defects in this regard, the Carters were never discharged for absen-
teeism, and others were.
In effect, Norman Rubenstein stated that he condoned or tolerated absenteeism
in employees while they were actively employed by Respondent, but that he held it
against them in considering them for reemployment. This testimony was inconsistent
with other parts of his testimony, where he held in substance that Respondent main-
tained standards of dependability and regular attendance.
Norman Rubenstein testified that the statements made in his affidavit dated Sep-
tember 5, 1956, were and are correct. One of these statements was that, "Lorene
has always had a poor attendance record." [Emphasis supplied.] Although this
may be true, Respondent has rehired or recalled her three different times despite
this record. The record does not suggest that Respondent's attitude or policies
towards absentees became more strict during 1956 than it had been during previous
years. As Respondent has thrice hired Lorene despite her bad record, it does not
appear that absenteeism was the real reason why Lorene was not reemployed the
fourth time during the first three quarters of 1956.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been seen above, Norman's September 5, 1956, affidavit gave poor quality
work as one of the reasons why Lorene was not reemployed sooner during 1956.
At the hearing Norman did not give this as one of the reasons, although he did
state that the statements in the affidavit were the truth. At the hearing, in general
statements several times repeated, he gave quality of work of an old employee as
one of the items he weighed when considering whether to rehire the old employee
or employ a new one; but though he referred to poor quality work by Seymour, he
made no reference to poor quality work by Lorene. If in fact she had done poor
quality work, or made a habit of doing so, it is reasonable to believe that Respondent
would have called this to her attention; but Lorene's testimony stands unrefuted that
she was never reprimanded nor criticized by any company officers or supervisors
for doing faulty work. Under all the circumstances of the case I find that the
quality of Lorene's work had no part in the consideration of whether or not to
reemploy her.
Norman Rubenstein testified that, "it's difficult to say what is the main reason"
for the nonemployment of Lorene. "There is a variety of things that go into it."
Asked if he gave equal weight to each reason, whether one factor was more im-
portant than another, Norman replied, "You just have to take the whole picture
and consider the whole thing. I can't in all honesty say that I consider this more
than that, or give weight to one thing more than the other."
2. Seymour Carter
Prior to July 18, 1956, the beginning of the discrimination against him as pleaded
in the complaint, Seymour Carter had gone to work for Respondent twice, once
in 1950, and once in 1953. The first time he worked from August 1950 until
August 1952. The second time he worked from July 1953 until May 5, 1955.
Thus, in all he worked for Respondent about 4 years. During all of this time
he always worked in the inband section of the sewing department. He performed
all four of the operations in the inband section, namely, basting, trimming, slicing,
and binding. He was laid off May 5, 1955, for lack of work in the inband section.
During the last several months of his employment prior to May 5, 1955, as work
declined in the inband section because of the seasonal nature of its operation,
Seymour was the only employee who worked full time in the inband section,
although several others worked part time there and part time in other sections.
In at least March, April, and May 1955, just prior to his layoff, Seymour was
the only employee in inbands who was making samples, although two others were
working in inbands some during this period. Samples had to be well made so that
salesmen could sell the product. Samples had to pass the plant's inspectors.
During 1954 Seymour could have worked 49 perfect 40-hour weeks. In
fact he worked one 44-hour week, one 43-hour week, three 41-hour weeks, twenty
40-hour weeks, three 391/2-hour or 393/4-hour weeks, six 36-hour weeks, one
35-hour week, one 33-hour week, six 32-hour weeks, and seven less-than-32-hour
weeks.
During 1955 Seymour could have worked 20 perfect 20-hour weeks. In fact
he worked ten 40-hour weeks, one 35-hour week, six 32-hour weeks (including one
week of 313/4 hours), and three less-than-32-hour weeks.
According to the credited testimony of Seymour Carter, on a number of occa-
sions he was sent home for part of a day for lack of work. The above figures do
not reflect the number of hours lost for lack of work.
Seymour's union activities began about a week after his layoff on May 5, 1955-
at which time an uncle of Seymour's introduced Seymour and Everett Yates and
the latter asked Seymour if he would help get cards signed. As has been pointed
out above, up until the hearing herein union representatives continued to visit the
Carter home.
After his layoff May 5, 1955, Seymour Carter applied for work with Respondent
some six times between then and the hearing herein. He first applied in June
1955. On these occasions he talked with either Norman Rubenstein or an office
girl, and was always told, in substance, that there was no work for him then.
At the hearing Respondent did not contend that it was unaware Seymour had
applied. Norman Rubenstein testified that he considered Seymour for reemploy-
ment only when he needed someone to work on inbands. Of the 19 operators
hired for the sewing room from January 31, 1956. until the he'rine herein. only
1 was hired for work in the inband section-Jessie Rowland on July 18, 1956. In
substance the General Counsel contended that Respondent d;d not emnlov Carter
on that occasion, in order to discourage membership in the Union, thereby discrimi-
nating against Carter in violation of the Act. As Carter had worked in no other
PARAMOUNT CAP MANUFACTURING CO . 797
section or department, the record does not show that Carter was qualified to work
elsewhere than in inbands.
The peak season in inbands in 1954 was in the late summer and early fall, at
which time there were six employees assigned to making inbands for winter caps,
including Seymour Carter. As this work fell off, beginning in December or Janu-
ary 1955, the other five employees were transferred out of that section, one by
one, and most of them went to work on summer caps. One of those transferred
out during January or February 1955, was Jessie Rowland, who did her best work
doing basting in the inband section, but who did not always "make her time" doing
basting. That is, even at her best operation, she did not always turn out the
required minimum production. After a few weeks making covers, at which she
failed to make the required minimum, she was laid off for failing to "make her
time."
After Seymour was laid off May 5, 1955, there was no full-time employees in
the inband section until sometime the following month, in June. Sometime during
the last half of 1955, 3 of the 6 employees referred to above were transferred back
into inbands, but Seymour and Jessie Rowland were not reemployed. In the early
part of 1956 for a month or so, no one worked in inbands. Then, one by one,
the same 3 employees were put back into inbands, and a fourth of the original 6
was brought in intermittently. Then, in July 1956, Respondent sent word to Jessie
Rowland to come in, and she was reemployed to do basting in the inband section.
In an affidavit dated September 10, 1955, Norman Rubenstein stated, inter alia:
A Mrs. Jessie Rowland, whose work was marginal and was laid off on March
26, 1955 and later recalled because there were no experienced employees or
new employees who were available so Mrs. Jessie Rowland was recalled and
put on her former job even though at the time she was laid off we considered
her work as marginal. [Emphasis supplied.]
The record at the hearing established that at the time Rowland was reemployed
in inbands in July 1956, Seymour Carter, an experienced employee, was available
for employment, and that Norman Rubenstein knew that he was available and
considered him for this July 1956 opening. So when asked by his own counsel
why he reemployed Jessie Rowland instead of Seymour Carter, in July 1956,
Norman said nothing about there being no experienced employees available.
Rather, his position was that Respondent rehired Rowland because-
. . . Jessie Rowland is a baster, that is her specialty, she does it well and
we are satisfied with it. She is dependable and we can kind of pretty well
count on her to be there every day, and we needed a baster, so we called her
in to do that work.
This defense of specialties within the inband section was consistent with an affidavit
of Norman's dated September 26, 1956, in which he said:
Another reason why we called Rowland back rather than Carter was that we
needed an individual skilled on the basting operation, and that was Rowland's
specialty. Carter specialized in slicing and binding.
but inconsistent with other more credible testimony at the hearing, which established
that Seymour performed all the operations in the inband section-basting, trimming,
slicing, and binding, and was no more a specialist in one operation than in another.
Carter testified that he did basting, tramming, slicing, and binding. ^o did his imme-
diate supervisor, Johnnie Ernie, who said nothing about any specialties or specialists
within the section.
At the hearing, all of the evidence by both the General Counsel's and Respond-
ent's witnesses, was that Seymour Carter had been laid off on May 5, 1955, because
of lack of any work to be done in the inband section where he worked. Poor
quality work and a poor attendance record were asserted as reasons why he was
not rehired in July 1956, but were not given as reasons for his layoff in May 1955.
But in an earlier affidavit (dated September 10, 1956) Norman Rubenstein had
stated:
Seymour Carter was laid off because of lack of work, marginal performance,
irregular attendance. . . . Seymour hasn't been recalled for the reasons
of his layoff and we haven't needed him in the section.
As to irregular attendance and "marginal" performance as defenses to his
rehire, the hard facts of the situation are that Carter had never been laid off for
either cause, and that others, including Jessie Rowland, had been laid off for one
of these reasons and were rehired despite them. The names and circumstances con-
cerning the layoff and rehire of some of the marginal employees have been given
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above in the section herein devoted primarily to Lorene Carter . As has also been
seen above , Jessie Rowland , a marginal employee because she was slow in pro-
ducing, was laid off for failing to "make her time" at making covers and was later
rehired instead of Carter to baste in inbands even though, by her own admission,
she sometimes failed to "make her time" at basting, which was the operation Norman
characterized as her "specialty."
As to Carter's alleged poor quality of work as a defense , it was not poor enough
to prevent him from being the only full-time employee working on inbands for
several months just prior to his layoff in May 1955; and the only one during that
period who made samples , which had to be well done, even though others worked
there part time and could have made the samples when they were there. Further
indications that Carter's normal work was not really of poor quality was Norman
Rubenstein 's testimony that in general during his last several months of employment,
Seymour's work was satisfactory ; and Johnnie Ernie's statement that although
Carter's work was poor, Ernie mentioned that fact to Norman only one time, although
a part of Ernie's lob was to tell one of the Rubensteins about poor qu9!ity work if
"it keeps happening repeatedly ." Further, the record contains specific reference
to only one incident , possibly two, and general reference to "a number of times,"
where Carter 's work was returned to him because of defects , a record of perform-
ance scarcely consistent with a normally poor quality of work over a period of some
4 years.
3. Conclusions
In view of the inconsistencies and self-contradictions between Norman Ruben-
stein 's testimony at the hearing and his earlier , though not much earlier , affidavits,
concerning the reasons for the nonemployment of Lorene and Seymour Carter, his
testimony did not recommend itself for full credence concerning these reasons.
In view of these inconsistencies and self-contradictions ; in view of the generalized
nature of his testimony concerning these reasons and his modifications of them from
time to time to suit the convenience of the moment ; in view of his uncertainty as
to the main reasons and the weight he gave each reason ; and on the basis of the
entire record considered as a whole, the significant portions of which have been
discussed above, I do not credit the reasons stated by Rubenstein as being the
true reasons for the nonemployment of the Carters during 1956 . Rather, I find
they are pretexts.
As the entire record shows, Respondent discriminated against the Carters during
1956 in its employment practices. Neither of the Carters had been laid off for
either irregular attendance , failing to give notice of absence, or poor quality work
or slow production, but they were denied employment during 1956, allegedly for
one or more of these reasons. Other employees , Evelyn Graddy , Bonnie Ernie, and
Gladyne Isgriggs, were laid off for one or more of these reasons but were rehired
despite them . At least 2 of these 3, Graddy and Ernie, were reemployed during
1956. In addition , Respondent held a sympathetic understanding towards the im-
perfect attendance records of Helen Higgins, Viola Stalons , and Anna Sabatino
and reemployed each of them during 1956 despite their earlier bad attendance
records. The record contains evidence that the Carters , also, had situations in their
lives which , when they worked there, Respondent in all likelihood knew about and
considered sympathetically . Rubenstein must certainly have known that the Carters
had four young children whose illnesses must have had a considerable bearing upon
the attendance record of the working mother, and , indeed , of the working father.
Further, Seymour Carter had a service -connected disability which caused him to
have to go to Jefferson Barracks , Missouri , several times during 1955. Yet, while
excusing or overlooking the attendance records of the others , and reemploying them,
Rubenstein refused to recall the Carters during 1956 allegedly because of their
attendance records.
Certain background facts , relating to the Carters ' union activities and Respondent's
knowledge thereof, and showing Respondent 's hostility towards the Union, were
received in evidence and are here considered for whatever assistance they give
in casting light upon , clarifying the reason for, imparting meaning to, and assisting
in the evaluation of 11 this discriminatory or disparate treatment practiced against
the Carters by Respondent during the post-limitation period, which treatment was
alleged as an unfair labor practice . ( The initial charge herein was filed and served
upon the Respondent on July 31, 1956. The 6 -month period prior to that date
11Y. L. R. B. v. Clausen, et at ., 188 F. 2d 439 (C. A. 3), enfg. 89 NLRB 989; Textile
Machine Works, Inc., 96 NLRB 1333, 1349-50, enfd. 214 F. 2d 929 (C. A. 3) ; Senorita
Hosiery Mills, Inc., 115 NLRB 1304, 1305, footnote 3; Brady Aviation Corporation, 110
NLRB 25, 27, enfd. 224 F. 2d 23.
PARAMOUNT CAP MANUFACTURING CO. 799
began to run on February 1, 1956.) These background facts show, as has been
found above, that the Carters were most active in getting the union cards signed
and that Respondent had knowledge of this activity. Post-limitation evidence
proved that the Carters' association with the union representatives continued up
until the hearing herein.
The background facts established, further, Respondent's complete hostility towards
the Union, and that it threatened reprisals. Thus, the day after employee Herbert
Hopwod had visited the home of three employees with a union organizer, Norman
warned him that if he heard about it again, he was going to discharge Hopwood.
Thus, Norman warned a slow worker that his employment would be seriously
jeopardized in the event of a union victory at the polls, by abandonment of the
Respondent's tolerance towards him. Further, Norman warned two women em-
ployees, as found by Hearing Officer Kessel, that continuation of the plant's opera-
tion and retention of their jobs depended upon the rejection of the Union. As a
preliminary to tais last finding, Kessel stated that -'it was evident to tnem tr, m .
his openly declared opposition to the Petitioner [Union] in the course of this union
campaign. .. . . The openly declared opposition referred to was made in a speech
by Norman to the employees the day before the Board-ordered election, which
speech, while it was held to be noncoercive, was found to be • calculated to m ress
the employees with foreboding of the consequences of the intrusion of the Petitioner
[Union] into the plant where they [the employees] had for so long enjoyed the v rious
advantages enumerated [in the speech] by Rubenstein... . Although William
Rubenstein's remarks to Lorene Carter, to the effect that "we don't need a union in
here," and that "all union people are just jailbirds" show hostility, no such finding
is rested upon them because they were views, arguments, or opinions free of any
threat or promise and were therefore protected under Section 8 (c) of the Act.
The courts and the Board have held that a state of affairs once shown to exist is
presumed to continue to exist until the contrary is shown. N. L. R. B. v. Whittier
Mills Co., 111 F. 2d 474, 478 (C. A. 5); N. L. R. B. v. National Motor Bearing Com-
pany, 105 F. 2d 652, 660 (C. A. 9); N. L. R. B. v. Piqua Munising Wood Products,
109 F. 2d 552, 554 (C. A. 6); Bakery & Confectionery Workers Union, etc. (Arnold
Bakers, Inc.), 115 NLRB 1333, see particularly the concurring opinion of Board
Member Rodgers; see also Bordo Products Company, 117 NLRB 313. In the instant
case, in the absence of any evidence that Respondent's hostility towards the Union,
and its threats of reprisal, were ever abandoned in favor of policies and practices
more in keeping with the law, it must be presumed that they continued up until at
least the hearing herein.
The discriminatory or disparate treatment found above to have been practiced
against the Carters after February 1, 1956, must have been motivated by Respondent's
hostility against the Union, for the credible and credited evidence neither suggests nor
develops any other possible motive if, as has been found above, Respondent's defense
is not to be believed. In view of Norman's openly declared opposition to the or-
ganization of his employees and his threats of reprisal in one form or another against
employees for visiting employees' homes with a union organizer or in the event of a
union victory, it is reasonable to believe, which I do, that he took care that the
Carters, once off the payroll and known to many employees for their active support
of the union movement, should remain off the payroll for a goodly time, as an object
lesson to the other employees and in order to discourage membership and activity in
the Union. Under all the circumstances of the case, and on the entire record consid-
ered as a whole, I hold that on February 8, 1956, and at all times thereafter until
October 24, 1956, in the case of Lorene Carter, and on July 18, 1956, and at all times
since then, in the case of Seymour Carter, Respondent refused employment to the
Carters, and each of them, for the purpose of discouraging membership and activity
in the Union, thereby discriminating in regard to the hire and tenure of employment
in violation of Section 8 (a) (3) and (1) of the Act.
In reaching the above holding, I have given independent and controlling weight to
the evidence of discriminatory employment practices after February 1, 1956 (the
beginning of the post-limitation period), as between the Carters on the one hand and
other employees on the other hand, as found herein. Independent and controlling
weight has not been given the background or period-of-limitation evidence, which has
clarified the reason for and imparted meaning to the discriminatory or disparate treat-
ment of the Carters but has not been considered as a substitute for it. This case is
therefore to be distinguished from News Printing Co., Inc., 116 NLRB 210.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities, set forth in section III, above, occurring in connection
with Respondent's operations described in section I, above, have a close, intimate, and
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial relation 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.
V. THE REMEDY
Respondent having refused employment to Lorene Carter from February 8, 1956,
until October 24, 1956, because of her union activities, I recommend that Respondent
make her whole for any loss of pay she' may have suffered by reason of Respondent's
discrimination against her, by payment to her of a sum of money equal to that which
she normally would have earned as wages during that period of time, less her net earn-
ings during said period. Said back pay shall be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
Employment in the inband section, the only place in the factory Seymour Carter
ever worked, being periodic, and the record suggesting that the spring of the year is
apt to be its slack season, I recommend that Seymour Carter (who has been discrimi-
nated against, because of his union activities, at all times since July 18, 1956) be
given any full-time employment now existing in the inband section, or if none now
exists that he be given the next full-time employment becoming available in the inband
section. I recommend, further, that Respondent make Seymour Carter whole for
any loss of pay he may have suffered by reason of Respondent's discrimination
against him, by paying to him a sum of money equal to that which he normally
would have earned as wages from July 18, 1956, until the date that he is offered
employment by Respondent pursuant to the recommendations herein, less his net
earnings during said period of time. Said back pay shall be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289.
The violations of the Act committed by the Respondent are persuasively related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from the Respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, I shall recommend that the Respondent be ordered to cease
and desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Paramount Cap Manufacturing Co. is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. United Hatters, Cap & Millinery Workers International Union, AFL-CIO, is a
labor organization within the meaning of the Act.
3. By discriminating in regard to the hire and tenure of employment of Seymour
Carter and Mary Lorene Carter, thereby discouraging membership in the labor or-
ganization named just above, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Hatters, Cap & Millinery
Workers International Union, AFL-CIO, or any other labor organization
of our employees by discriminating in any manner with regard to their hire
and tenure of employment, or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS 801
to join or assist United Hatters, Cap & Millinery Workers International Union,
AFL-CIO, or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer employment to Seymour Carter in accordance with the
recommendations of the Intermediate Report.
WE WILL make whole Seymour Carter and Mary Lorene Carter for any loss
of pay suffered by them for reason of the discrimination practiced against them,
in accordance with the recommendations of the Intermediate Report.
All our employees are free to become, remain , or refrain from becoming members
of the above-named Union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with Section 8 (a) (3) of
the amended Act.
PARAMOUNT CAP MANUFACTURING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
International Association of Heat and Frost Insulators and
Asbestos Workers, AFL-CIO, Local 31 and Prescott Jentzel, its
business agent [Rhode Island Covering Company] and John
Frank and Joseph S. Aguiar. Case No. 1-CB-284. December 13,
1957
SUPPLEMENTAL DECISION AND ORDER
On December 29, 1955, the National Labor Relations Board issued
a Decision and Order in the above-entitled case,' finding, inter alia,
that Respondent Union had violated Sections 8 (b) (1) (A) and 8
(b) (2) of the Act by causing Rhode Island Covering Company to
discriminate against two of its employees, John Frank and Joseph
S. Aguiar. The Board therefore ordered Respondent Union to make
whole these employees for any loss of earnings they may have suf-
fered because of the discrimination against them.
Thereafter the Regional Director for the First Region issued, and
duly served, a back-pay specification, and a notice of further hearing
to determine the amounts of back pay due Frank and Aguiar. A
hearing, before Trial Examiner Sydney S. Asher, Jr., was held in
the matter on December 30, 1955. On April 5, 1956, the Trial Ex-
aminer issued his Supplemental Intermediate Report, attached hereto,
in which he found that specific amounts of back pay were due Frank
and Aguiar, and in which he recommended that Frank and Aguiar be
1114 NLRB 1526.
119 NLRB No. 108.
476321-58-vol. 119-52