Pennwoven, Inc..

National Labor Relations Board - Board Decisions

May 2, 1951

94 N.L.R.B. 175 (N.L.R.B. 1951)

PENNWOVEN, INC. 175
the threat. In order, therefore, to make effective the interdependent guarantees
of Section 7, to prevent a recurrence of unfair labor practices, and to minimize
strife which burdens and obstructs commerce, and thus to effectuate the policies
of the Act, it will be recommended that the Respondent be ordered to cease and
desist from infringing in any manner upon the, rights guaranteed by 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 or LAW
1. International Printing Pressmen and Assistants' Union of North America,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2. All pressmen, press assistants and apprentices, platemaker, etcher, stripper,
cameraman, and offset pressmen and apprentices, and press assistants, employed
by the Respondent at its New Haven plant, excluding executives, foremen, office
and clerical employees, guards, professional employees, and supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. On April 11, 1949, International Printing Pressmen and Assistants' Union of
North America, AFL, was, and at all times since has been, the exclusive repre-
sentative of all employees in the appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as exclusive representa-
tive of the employees in the appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of George
Platt and Theodore Marak, thereby discouraging membership in the Union, the
Respondent engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not engaged in unfair labor practices by discriminating
in regard to the hire and tenure of employment of Marion Hirsch and Anthony
Gambardella ; by keeping under observation and surveillance the meeting places,
meetings, and activities of the Union or the concerted activities of its employees;
or by offering, promising, and granting a wage increase to its employees.
[Recommended Order omitted from publication in this volume.]
PENNWOVEN, INC. and AMERICAN FEDERATION OF LABOR . Case No.
6-CA-178. May 2, 1951
Decision and Order
On January 22, 1951, Trial Examiner Arthur Leff issued his In-
termediate Report in the above-entitled proceeding, finding that the
94 NLBR No. 43.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent also requested oral argument. This request is hereby
denied as, in our opinion, the record and the exceptions and brief
adequately present the issues and the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Houston, Mur-
dock, and Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case and hereby adopts the findings,1 conclusions, and recommenda-
tions of the Trial Examiner.
The Respondent excepts to the Trial Examiner's ruling denying
its motion that he disqualify himself and withdraw from the pro-
ceeding. After the Respondent had rested its case, the Trial Ex-
aminer entertained oral argument from opposing counsel. During
the presentation of his argument, counsel for the General Counsel
contended that certain facts were established by the record. When
the Trial Examiner expressed doubt as to the state of the record, coun-
sel for the General Counsel requested permission to recall a witness
for the purpose of adducing the testimony in question. The Trial
Examiner granted this request on the ground that the record was
deficient. The Respondent contends that the Trial Examiner there-
by aligned himself with the General Counsel as a prosecutor in the
case, and further, that the Trial Examiner, by suggestions and hints,
assisted the General Counsel in the prosecution of the case. We
find no merit in the Respondent's contention. On the other hand,
we find that the Trial Examiner's ruling and conduct in the fore-
going respect was in strict conformity with the Board's Rules and
Regulations which imposed on him the duty to inquire fully into the
1 The Intermediate Report contains certain minor misstatements of fact and inadver-
tences, none of which affects the Trial Examiner ' s ultimate conclusions , or our concurrence
in such conclusions Accordingly , we make the following corrections • (1) The repre-
sentation election in Case No. 6-RC-179 was held on December 16, 1948 , rather than
December 16, 1949 , ( 2) the Respondent hired two new employees, not three as the Trial
Examiner found , between the ages of 50 and 60 for work on shifts other than the third
during the period of September 1948 to .Tune 1950 ; ( 3) the record discloses that Jennie
Rayhorn and Lulabelle Becbtol are, respectively , 47 and 41 years old.
PENNWOVEN, INC. 177
facts of the case.2 We have thoroughly examined the record and are
satisfied that the Trial Examiner was concerned only with the ful-
fillment of his duty to obtain a complete record, that in no respect
did he associate himself with the prosecution of the case, and that
the Respondent was not prejudiced by the conduct of which it
complains.'
In addition to the formal motions made by the Respondent dur-
ing the hearing to disqualify the Trial Examiner, the Respondent
asserts in its brief that the Trial Examiner manifested such animosity
to the Respondent and its counsel as` to disqualify him for bias and
prejudice. As evidence thereof the Respondent alleges that the Trial
Examiner (a) made a sarcastic comment to Respondent's counsel
during his cross'examination of a witness; 4 (b) on 10 occasions in
the Intermediate Report referred to Respondent's counsel by his
last name only; (c) made certain findings of the fact in the Interme-
diate Report which are in conflict with the record ; and (d) found
every single issue of fact for the charging parties. As to (a) and
(b) above, we perceive in the record no indication of dislike for or
disrespect to Respondent's counsel. The allegedly sarcastic comment
by the Trial Examiner, in our opinion, was an isolated attempt at
harmless levity which does not reflect hostility or bias in the slightest
degree. Nor does the frequent reference to counsel by his last name
in the Intermediate Report reflect such animus, for this informal
technique, generally used by all Trial Examiners, was obviously ap-
plied in the interest of convenience. As to (c) and (d) above, we
2 National Labor Relations Board, Rules and Regulations, Series 5, amended August 18,
1948, Sec 203 35, then in effect.
3 Earlier in the hearing the Respondent had also moved for the disqualification of the
Trial Examiner on the ground that by denying the Respondent's motion to dismiss the
complaint, the Trial Examiner had relied on the authority of the Board's decision in
Cathey Lumber Company, 86 NLRB 157, enf. 185 F. 2d 1021, which the Respondent
asserted was at variance with the decisions of the courts of appeal in Joanna Cotton Mills
Co v N L R B, 176 F 2d 749 (C A 4), and Superior Engraving Company v. N. L R. B ,
183 F 2d 783 (C A. 7) The Respondent contended that the Trial Examiner's refusal to
be bound by court precedents constituted a violation of his oath to abide by the laws and
the Constitution of the United States Although the Respondent has not specifically
excepted to the Trial Examiner's denial of this motion to disqualify himself, we have care-
fully considered the foregoing circumstances and find the Respondent's contention to be
without merit
4 The Trial Examiner's comment occurred during the cross-examination of witness Lorden
by Counsel for the Respondent, as follows
Q. So that you have brushed up on your testimony for the purposes of this case, is
that correct''
A. My facts, yes, positively. I have to refer to them.
Q. But you haven't brushed up-
A (Interposing ) I daresay that you brushed up for the purposes of this case
Mr KAss I move that that remark be striken I think I am asking the questions
here, DIr Examiner.
Trial Examiner LEFF. Very well. The Trial Examiner will assume that DIr Kass
didn't brush up for the purposes of this hearing.
953841-52-vol 94-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that with the exception of the minor corrections noted herein,
the Trial Examiner's findings are consistent with the record which,
for the most part, consists of stipulated documentary evidence, and
unrefuted oral testimony. We note, moreover, that the Supreme
Court has held that even "total rejection of an opposed view cannot
of itself impugn the integrity or competence of a trier of fact." s Upon
careful consideration of the record, we are satisfied that the Respond-
ent's contentions as to the disqualification of the Trial Examiner are
without merit in their entirety.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Pennwoven, Inc., Lock
Haven, Pennsylvania, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the American Federation of
Labor, or in any other labor organization of its employees, by, dis-
criminating in regard to hire of employees.
(b) Interrogating its employees in any manner concerning their
union affiliation, activities, or sympathies; threatening them with eco-
nomic reprisal because of their union affiliation, activities, or sym-
pathies; or making promises of benefit to employees to induce'them
to abandon their affiliation with or their activities in behalf of the
American Federation of Labor or any other labor organization.
(c) 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 the American Federation
of Labor, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activ-
ities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which we find will effectu-
ate the policies of the Act :
(a) Offer to John Rayhorn, Jennie Rayhorn, and Lulabelle Bechtol
immediate employment with such seniority or other rights and priv-
ileges as each would have enjoyed had each been employed on the
date of discrimination found herein.
(b) Make whole John Rayhorn, Jennie Rayhorn, and Lulabelle
Bechtol in the manner set forth in that section of the Intermediate
" N L N B v Pittsburgh Steamshtip Co , 337 U. S. 656
PENNWOVEN, INC. 179
Report entitled "The remedy," 6 for any loss of pay each may have
suffered as a result of the Respondent's discrimination against him.
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to analyze the amounts of
back pay due and the right of employment under the terms of this
Order.
(d) Post at its plant in Lock Haven, Pennsylvania, copies of the
notice attached hereto and marked "Appendix." 7 Copies of said
notice, to be furnished by the Regional Director for the Sixth Region,
shall, after being duly signed by a representative of the Respondent,
be posted by it immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 the AMERICAN FED-
ERATION OF LABOR or in any other labor organization by discrimi-
nating in regard to hire of employees.
WE WILL NOT interrogate our employees in any manner concern-
ing their union affiliation, activities or sympathies, threaten
6 The Trial Examiner concluded that the Respondent ' s discrimination against Jennie
Rayliorn and Lulabelle Bechtol dates from April 25, 1949 . The record shows, however,
that the Respondent placed a job order for a bobbin winder for the first shift with the
Pennsylvania State Employment Service on February 21, 1949, and that this opening
'. as not filled until April 25, 1949 . Thus there was an opening for a bobbin winder on
April 18 , 1949, for which absent the discrimination , Jennie Rayburn , who had greater
seniority than Bechtol , would have been called Rayhorn ' s back pay, therefore , shall run
from April 18, 1949. On May 13, 1949, the Respondent again placed a job order for a
bobbin winder for the first shift , thus revealing another opening in that classification for
which , absent the discrimination , Bechtol would have been called. Bechtol ' s back pav,
therefore, shall run from May 13, 1949
In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be inserted before the words , "A Decision and Oider , ' the words , "A Decree of
the United States Court of Appeals Enforcing "
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them with economic reprisal because of their union affiliation,
activities or sympathies, or make any promises of benefit to em-
ployees to induce them to abandon their affiliation with or their
activities in behalf of the AMERICAN FFDERATION OF LABOR or any
other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist the AMERI-
CAN FEDERATION OF LABOR, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all of 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 to the employees named below immediate and
suitable employment with such seniority or other rights and
privileges as each would have enjoyed but for the discrimination
against them and make them whole for any loss of pay suffered
as a result of the discrimination : John Rayhorn, Jennie Rayhorn,
Lulabelle Bechtol:
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization, or to refrain
from such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employees because of membership or activity on behalf of any such
labor organization.
PENNWOVEN, INC.
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.
Intermediate Report
Erwin Lerton, Esq., for the General Counsel.
Bandler, Haas & Kass, by Julian Kass, Esq., and Richard L. Halpern, Esq.,
of New York City, for the Respondent.
PENNWOVEN, INC.
STATEMENT OF THE CAPE
181
Upon a charge and an amended charge,' filed by American Federation of Labor,
herein called the AFL, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania),
issued his complaint dated July 18, 1950, against Pennwoven, Inc., herein called
the Respondent , alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section
8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
61 Stat. 136, herein called the Act. Copies of the complaint , the amended
complaint, the charges, and a notice of hearing were duly served upon the
Respondent and the AFL.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) That particularly during December 1948, and at various times thereafter,
the Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, by statements tending to,
discourage AFL membership and activities ; by interrogating employees as to
how they would vote in a Board election ; by threatening employees with a cessa-
tion of plant operations and loss of their employment if the AFL won the election ;
by promising employees back pay if they voted against that AFL, and informing
them that they would not receive such back pay if the AFL won,; by informing
employees that the Respondent would not sign a collective bargaining agree-
ment with the AFL ; and by engaging in the conduct adverted to in paragraph
(2) below.
(2) That on or about April 18, 1949, and at all times since that date, the
Respondent refused and failed to employ Jennie Rayhorn, John Rayhorn, and
Lulabelle M. Bechtol because of their AFL membership and activities and in
order to discourage membership in that union.
In its answer duly filed the Respondent admitted it was engaged in commerce
within the meaning of the Act, but denied generally the allegations of the com-
plaint charging it with the commission of unfair labor practices. The answer
also alleged affirmatively that the unfair labor practices alleged in the complaint
were barred by the 6 months limitations proviso of Section 10 (b) of the Act.
Pursuant to notice, a hearing was held at Lock Haven, Pennsylvania, on
August 8 and 9, 1950, before Arthur Leff, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel and the Respond-
ent were represented by counsel. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence was afforded all parties.
At the opening of the hearing, the Respondent moved on the pleadings to dismiss
the complaint on the ground that the allegations of unfair labor practices
contained therein were barred under the 6 months limitations proviso of Section
10 (b) of the Act. The motion was denied. A motion made by the General
Counsel at that time, to strike from the answer the affirmative defenses alleged
1 The original charge was filed and served on April 28, 1949, the amended charge on
July 18, 1950. Both charges alleged violations of Section 8 (a) (1) and 8 (a) (3). The
original charge alleged that since on or about November 3, 1948, and at all times there-
after , the Respondent had failed and refused to reinstate and/or employ 20 named
individuals , including Jennie Rayhorn , John Rayhorn , and Lulabelle M. Bechtol , because
of their APL membership and activities, and by such acts and by "other acts and conduct"
had also interfered with, restrained , and coerced its employees in the exercise of their
rights guaranteed in Section 7. The allegations of discrimination contained in the
amended charge were restricted to the 3 individuals specifically named above , the Respond-
ent being charged with a discriminatory refusal to employ them on or about April 18, 1948,
and at all times since that date. The charge also asserted a violation of Section 8 (a) (1)
predicated upon the alleged discrimination and unspecified "other acts and conduct."
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therein, was also denied. At the end of the General Counsel's case the Respond-
ent moved on the evidence to dismiss the allegations of the complaint relating to
the Respondent's discriminatory refusal to employ Jennie Rayhorn, John Ray-
horn, and Lulabelle Bechtol upon the grounds (a) that the General Counsel
had failed to make out a prima facie case, and (b) that the discrimination, it
any, occurred more than 6 months before the filing of the charge The motion
on these grounds was denied with leave to renew at the close of the entire case.
At that time also, the Respondent moved to dismiss the allegations of independent
interference, restraint, and coercion. In support of this motion the Respondent
asserted (a) that the evidence failed to establish a prima facie case, and (b) that
the charge merely alleged a violation of Section 8 (a) (1) in general terms and
that the particular acts relied on were barred by the limitations proviso of
Section 10 (b) because they were first specified in the complaint served more than
6 months after their occurrence. This motion was denied. At the close of the
entire case, the Respondent moved to dismiss the complaint, and the separate
allegations contained therein, upon the ground that the General Counsel had
failed to sustain the burden of proof by a preponderance of credible evidence,
and also moved to dismiss the complaint upon the further ground that the-
allegations of discrimination were barred by the proviso of Section 10 (b). Ruling
was reserved on these motions, and they are now disposed of in accordance
with the findings of fact and conclusions of law made below. A motion made
by the General Counsel at the close of the case, to conform the pleadings to the
proof with respect to minor variances, was granted. Counsel for both parties
argued orally on the record at the hearing, and thereafter submitted briefs in
support of their respective positions
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Pennwoven, Inc., a Pennsylvania corporation, with its place of business at
Lock Haven, Pennsylvania, is engaged in the manufacture, sale, and distribu-
tion of steel, bronze, and aluminum wire cloth screening. During the year
preceding the hearing, the Respondent purchased raw materials, equipment,
and supplies having a value in excess of $1,000,000, of which more than 50
percent was shipped to its place of business from points outside the Common-
wealth of Pennsylvania. During the same period, the Respondent manufactured
at Lock Haven, Pennsylvania, products having a value in excess of $1,000,000,
of which more than 90 percent was shipped from its Lock Haven plant to points
outside the Commonwealth of Pennsylvania. The Respondent admits that it
is engaged in commerce within the meaning of the Act, and it is so found.
II. THE ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
The Respondent's plant has been operated since 1942 under collective bar-
gaining contracts with Local No. 12318, District 50, United Mine Workers of
America, herein called District 50. The term of the 1947 contract expired on
PENNWOVEN, INC. 183
11Iarch 31, 1948. Shortly before its expiration, the Respondent and District 50
entered into an interim agreement, under which they agreed to continue the
old contract, in effect pending the adoption of a mutually acceptable job evalua-
tion program and the execution of a new contract. The interim agreement fur-
ther provided that any new wages resulting from the job evaluation program
would be given retroactive application to April 1, 1949
While negotiations for a new contract were still pending, a group of em-
ployees, dissatisfied with the representation of District 50, began a movement
to have the AFL substituted as collective bargaining representative. Included
in this group were the three employees who are alleged in the complaint to have
been discriminated against.
Jennie Rayhorn had been president of the District 50 local from 1944 to 1947,
and in 1948 was vice president and a member of the negotiating committee of that
local. Jennie Rayhoin assumed the leadership of the AFL group and acted
as chairlady of its organizing campaign. Along with her husband, John Ray-
horn, and Lulabelle Bechtol, Jennie was in the original group of employees
who called on the AFL for organizational assistance. Thereafter she partici-
pated most actively in the AFL organizing meetings which were held at her
home, at the home of another employee, Marguerite Barnard, and at public
halls in Lock Haven. Jennie conducted her solicitation activities openly at the
meetings and at the plant. She addressed the ,meetings at the public hall,
where a majority of the plant employees was present. In addition, she alone
distributed AFL membership application cards to employees on the first shift,
and succeeded in signing up some 90 percent of the employees on that shift.
Lulabelle Bechtol was also prominent on the AFL organizing committee, func-
tioning as a membership drive official. Charged with the responsibility of
signing up employees on the third shift, Bechtol succeeded in securing over
25, signed AFL application cards on that shift. John Rayhorn does not appear
to have played a particularly prominent part in the AFL organizing drive, but
he, like his wife, Jennie, and Lulabelle Bechtol, signed an AFL application
card, and together with them and others was in attendance at the various AFL
organizational meetings that were held in May and early June.
By the middle of June 1948, the AFL organizational campaign had succeeded
to a point where the AFL was ready to test its strength in an election. In mid-
June, the AFL notified the Respondent in writing that it represented a sub-
stantial number of its employees and warned the Respondent not to enter into
contractual relations with any labor union until it has received approval from
the Board. In reply, the Respondent advised the AFL that it was then under
contract with District 50. At the time, the Respondent was still negotiating with
District 50 for a new contract, but the negotiations had not yet been concluded,
and the interim agreement was the only contract in effect.
At a negotiating meeting held shortly after the AFL communication was
received by the Respondent, Julius Kass, who was representing the Respondent,
questioned the members of the District 50 negotiating committee as to whether
they had signed AFL cards. All but Jennie Rayhorn replied they had not.
Jennie Rayhorn told Kass that it was none of his business, since it was her
"American right" to do as she chose. -
On June 21, 1948, the AFL filed a petition with the Board seeking certification
as the collective bargaining representative in the production and maintenance
unit that had been represented by District 50.
Until June 30, 1948, the Respondent's plant had been operated on a 3-shift
basis. It was customary for the plant to close down about the end of June
for the purpose of permitting the Respondent's employees to take their annual
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation. On June 30, 1948, the day before the plant closed for the annual vaca-
tion period, the Respondent posted a notice advising the employees that when
the plant reopened on July 19, 1948, operations would be conducted on a 1-shift
basis, and that the employees who were to be selected to work on that shift
would be notified. When the Respondent's plant resumed operations on a
1-shift basis on July 19, 53 employees were recalled. Jennie Rayhorn, John
Rayhorn, and Lulabelle Bechtol were not among them.
Under the last contract with District 50, extended by the interim agreement,
and then claimed by the Respondent to be still in force, it was provided that
the principles of seniority were to be recognized for the purposes of layoffs and
rehiring. With specific regard to. layoffs, the contract provided :
In case of lay-offs, the last employed shall be the first employee laid off.
In cases of rehiring, the furloughed employee having the most seniority
shall be the first employee re-hired. No new employee will be rehired to
perform any work until such work has been offered to laid-off employees who
are qualified to perform the work.
Jennie Rayborn, a wire screen weaver, had been employed by the Respondent
since April 1933, and stood ninth on the Respondent's seniority list which then
contained the names of 154 employees. John Rayhorn, a wrapper 2 with seniority
dating from June 1, 1939, was fifteenth on the plant seniority list and the oldest
wrapper in point of service. Bechtol, a weaver who had worked in that classi-
fication for a year and a half after serving previously as a bobbin winder and
a floorgirl, had worked continuously in the plant since May 1, 1945, and stood
fifty-first on the plant seniority list. Among those recalled were employees with
less seniority than the 3 named employees, including employees junior to them in
service in identical job classifications. There is no suggestion in the record
that the 3 were not qualified competently to handle the jobs they had held prior
to the July 1 layoff.
Under date of July 19, 1948, the AFL organizer wrote the Respondent's presi-
dent a letter reading as follows :
DEAR SIR
We have been advised by the employees of Pennwoven Inc. that the
seniority rights that they previously enjoyed are being disregarded by Penn-
woven Inc. in your recent rehiring and recall program.
Please be advised that even under the Taft-Hartley Act, this is an unfair
labor practice. I refer you to Section 8 (a) (3) of the National Labor Re-
lations Act, unamended by the Labor-Management Relations Act of 1947.
Please be advised, if the seniority that the employees of Pennwoven Inc.
have enjoyed in the past is not continued, we will file unfair labor practice
charges immediately.
Very sincerely yours,
_ HENRY H. STERLING,
Organizer, American Federation of Labor.
The Respondent did not reply to this letter. No unfair labor practice charges
were filed by the AFL at that time.
Also on July 19, 1948, some 22 employees, including Jennie Rayhorn, John
Rayhorn, and Lulabelle Bechtol, filed grievance reports with the Respondent
through District 50. The grievance reports signed by each of the 3 named
employees read identically as follows :
2 As a wrapper, Rayhorn operated a machine which wrapped wire screening.
PENNWOVEN, INC. 185
I think I have been discriminated against by the Pennwoven Wire Inc. as
employees are working having less seniority and ability to do the job. I
demand I be paid for all lost time from July 19, 1948 until grievance is
settled.
When the grievances came up for consideration , Julius Kass represented the
Respondent . At the grievance meeting, Kass expressed the view that the griev-
ances were without merit because seniority right under the contract had been
lost by the AFL "dual movement ." With specific reference to Jennie Rayhorn,
Kass observed that she was too much of a "trouble maker" and not good for the
Company, adding that he did not think she would ever get back to the wire mill.
He agreed , however, to submit the grievances to arbitration . The selection
of an arbitrator was left to Kass and to District 50 Regional Director Joseph
Gallagher . However, no arbitrator was selected and after the Board issued
its Decision and Direction of Election in the AFL representation proceeding, the
Respondent refused to proceed further with the grievances until the question
concerning representation was resolved . The grievances were allowed to drop
at that point , and were never further processed.
On August 2, 1948, the Respondent resumed operation of its second shift,
recalling about 40 additional employees who had been laid off on June 30. Again
Jennie Rayhorn , John Rayhorn , and Lulabelle Bechtol received no notice to
return, although employees junior to them in point of service and experience
were recalled.
Shortly before the second shift resumed operations , Bechtol called on Plant
Superintendent Bubb for a job. Bubb said he knew of no opening, but promised
to remember her if one should occur . Bechtol at that time asked whether she
would have to join District 50 if she were recalled , expressing the view that the
plant would be better off without that union . Bubb's only comment was that it
would be up to her to decide . Immediately after the second shift began opera-
tions, Bechtol again called on the Respondent for a job. She was told by Per-
sonnel Director Harold Fiedler that those who were to return had already been
selected and that there was no opening for her. In October or November 1948,
Bechtol again visited Fiedler , advising him that pressing family responsibilities
made it urgent for her to secure a job . The response was the same-there was
no opening then, but she would be called if one came up. Bechtol never heard
from the Respondent and did not further communicate with it until her letter of
April 16, 1949 , to which reference will be made below. The Rayhorns, after
their layoff on June 30 , did not-except for the grievance complaints filed by
them-communicate with the Respondent until April 16, 1949.
In September 1948, the AFL was offered a deal under which Jennie Rayhorn,
John Rayhorn, and Lulabelle Bechtol might be restored to their jobs. AFL
Regional Director Henry A. McFarland and AFL Organizer Martin McIntyre
were invited by Charles Johnson, a member of the executive board of the United
Brotherhood of Carpenters and Joiners, and a friend of Kass, to meet with Kass
at Johnson 's office in New York City . At the New York meeting , Kass proposed
to `,`settle the differences " between the AFL and the Respondent by this arrange-
ment : If the AFL would agree to accept the incentive wage plan the Respondent
had put into effect in March 1948, the Respondent in return would ( 1) recognize
the AFL without an election ; ( 2) reinstate to their former positions Jennie
Rayhorn , John Rayhorn , and Lulabelle Bechtol ; and (3 ) review individually
through the grievance procedures the cases of other employees who the AFL
claimed were discriminated against and allow determination on whether or not
they should come back to turn on their individual records.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the course of the New York meeting the cases of Jennie and John Rayhorn
and Bechtol were discussed-particularly that of Jennie, against whom Kass
appeared to harbor personal antagonism. Kass made no effort to conceal his
knowledge of their activities on behalf of the AFL. What is more, he candidly
admitted that it was at his advice that the Respondent was keeping Jennie from
working, and her husband and Bechtol as well.
The AFL representatives agreed to refer Kass' proposal to the employees.
On October 6, 1948, an AFL representative submitted the proposal to a committee
of some 20 employees, including Jennie Rayhorn and Lulabelle Bechtol. The
employees rejected the proposal because of their unwillingness to accept the
wage incentive plan.
At the hearing in the representation proceeding held on October 25, 1948,
an issue arose concerning the voting eligibility of employees laid off on June
30, and not yet recalled. Kass, on behalf of the Respondent, stated it was his
client's firm intention to continue permanently on a two-shift operation, and
in the event of any increase in business to establish another operation elsewhere
in the United States. Employees who had not been recalled after July 19, he
said, were in the position of permanently laid-off employees.
On November 23, 1948, the Board issued its Decision and Direction of Election
in the representation proceeding (Case No. 6-RC-179). The Board overruled
the contention of the Respondent and District 50 that their March interim
agreement constituted a bar to the proceeding. Referring to the approximately
20 laid-off employees who had never been recalled, the Board alluded to the
Respondent's representation at the hearing, that it did not intend to rehire or
replace these employees due to a change in shift arrangements and curtailed
operations, and found on the basis of that representation that these employees
had been permanently separated from employment and consequently were in-
eligible to vote. The Board directed an election among the Respondent's pro-
duction and maintenance employees to determine whether or not they desired
to be represented by the AFL. The name of District 50 was omitted from the
ballot because of its noncompliance with Section 9 (f) and (h) of the Act.
Between the date of the issuance of the Direction of Election and the election,
the Respondent-as will hereinafter more fully appear-engaged in conduct,
which, it is found, was calculated to bring about the defeat of the AFL in the
election.
The election was held on December 16, 1949.' The AFL lost by a vote of
44 to 42. No objections to the election were filed.
After the election, the Respondent again recognized District 50 as the ex-
clusive bargaining representative of its employees, and on February 2, 1949,
entered into a new collective bargaining agreement with it. The agreement
contained a seniority provision with regard to the rehiring of laid-off employees
identical in language to the provision of the old contract, quoted above.'
On January 24, 1949, the Respondent resumed the operation of its third
shift. In hiring for the third shift, the Respondent followed the policy of employ-
ing only young males through the Pennsylvania State Employment Service.
But it is not claimed, nor does it appear, that the policy of hiring only young
8 Jennie Rayhorn acted as the AFL observer at the election.
4 But while both the old and new contract defined qualifications for a job as meaning
"ability to do a job in a workmanlike manner," the new contract added the caveat that
the "decision shall be in the sole discretion of the Company," and that questions of "the
reasonable application of the standard of qualification shall be subject to the grievance
procedure."
PENNWOVEN, INC. 187
males was applied, at least on a strict basis, to the other shifts. Between Septem-
ber 1, 1948, and April 16, 1949, the Respondent rehired some 9 additional em-
ployees who had been laid off on June 30, 1948, besides hiring some 36 new
employees for work on shifts other than the third. Included among them were
14 weavers-the classifications held by Jennie Rayhorn and Bechtol when they
were laid off; 8 bobbin winders-positions which these employees at times had
filled ; and 1 wrapper-the classification occupied by John Rayhorn. The 3 named
employees were still not recalled, however.
Under date of April 16, 1949, Jennie Rayhorn, John Rayhorn, and Lulabelle
Bechtol each addressed a separate letter identical in form to the Respondent
reading as follows :
APRrL 16, 1949.
PENNWOVEN, INC.
Lock Haven, Pa
GENTLEMEN:
My employment with Pennwoven, Inc. was severed on June 30, 1948 by
the Company when the second shift was temporarily eliminated. I was laid
off without regard for my seniority which was guaranteed to protect my
job under the then existing labor agreement between Pennwoven, Inc. and
Local #12318 of District 50-United Mine Workers of America, which at
that time was recognized by Pennwoven, Inc., as the sole and exclusive
bargaining agency for all production and maintenance employees of Penn-
woven, Inc
At the time of my lay-off on June 30, 1948 I was employed by Pennwoven,
Inc., for 16 years and 3 months,' and should have been retained because
employees with less seniority were retained in your employ.
Since my lay-off on June 30, 1948 Pennwoven, Inc., has hired new employees
without offering me reinstatement to my former job.
^ have been available for re-employment at all times since June 30, 1948
and am available at this time, but to date have not received any offer
from Pennwoven, Inc. of re-employment.
I believe my separation from employment with Pennwoven, Inc., and
refusal of re-employment was and is due solely to my membership in and
activities on behalf of American Federation of Labor and my efforts to
induce my fellow employees to join the A F. of L. and have the A. F. of L.
certified as bargaining agent for production and maintenance employees
of Pennwoven, Inc.
This action constitutes a violation of my rights as a worker under the
National Labor Relations Act as amended, and also constitutes an unfair
labor practice by Pennwoven, Inc., under the Act.
Before seeking redress under the provisions of the National Labor Rela-
tions Act, I am herewith informing you of my availability for reemployment
and would appreciate an early statement of my status as an employee of
Pennwoven, Inc.
Very truly yours,
The-letters were not answered.' As will hereinafter more fully appear, open-
ings subsequently occurred for jobs for which the employees in question were
5 This is from the letter of Jennie Rayhorn. John Rayhorn's letter stated he had been
employed for 118 years and 1/2 month" ; Bechtol's for "3 years and 1 month."
8 The letters were received on April 18, 1949, the date from which the complaint alleges
discrimination.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
qualified. But they were not called, the jobs being filled instead by new em-
ployees. .
With this general review of what occurred, we turn now to a more detailed
analysis of the acts of interference, restraint, and coercion and the discrimina-
tory refusal to employ with which the complaint specifically charges the Re-
spondent.
B. Interference, restraint, and coercion
During the preelection period in December 1948, the Respondent, directly and
through responsible supervisory employees, engaged in the following conduct
which, it is found, interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed by Section 7 of the Act:'
(1) About a week before the election, the Respondent posted a notice on its
plant bulletin board announcing that retroactive pay under the wage increases
negotiated by District 50 would, if possible, be paid to the employees before
Christmas. The night before the election employee Ethel Weber was ques-
tioned by her foreman, Worton Mitcheltree, on how she was going to vote.
When she refused to make this disclosure, Mitcheltree warned her, "Well if
you vote for the American Federation of Labor, if the American Federation of
Labor gets in, nobody gets any back pay."
(2) About 5 days before the election, Mitcheltree approached employee Mar-
guerite Barnard at her work station and interrogated her as to how she would
vote in the election. When Barnard told him she favored the AFL because she
thought it could do more for the employees than District 50 had been doing,
Mitcheltree replied, "Well, I don't know about that." On the day before the
election, Mitcheltree questioned another employee, Edith Hill, concerning her
choice in the election. To Hill's response that it was none of Mitcheltree's
business, Mitcheltree rejoined, "If I was,you, if you know when you are better
off, you better vote `no'." On the day of the election, Mitcheltree called in an-
other employee, Ernest Naso, questioned him as to whom he was voting for,
-and upon being told that he favored District 50, instructed him how to cast
his ballot.
(3) The day before the election, Russel Bubb, foreman of the shipping and
wrapping department, told Frank Bartley, a stock clerk, in the presence of an-
other employee, Paul Seasholtz, that he did not care how the employees voted,
but then went on to add that if the AFL won, and if as a result the Respondent
had to restore John Rayhorn to his former job, he figured that Bartley would
be out of work.' Bubb repeated these remarks to Bartley on the day of the
election.
(4) On the day of the election Personnel Director Harold Fiedler told em-
ployee Ada Boob that if she did not vote for District 50 she probably would not
have a job, since he did not think the Respondent would come to terms with
the AFL
(5) On the day of the election Assistant Plant Manager Carl Stover, Sr.,
told Jennie Powell and another employee, "You better play dumb and vote
`no,' because if the American Federation of Labor gets in, I won't have a job,
you won't have a job or none of us will have a job."
(6) About 2 hours before the election Assistant Plant Manager Stover asked
employee Ward Watkins whether he intended to vote. When Watkins replied
7 All findings are based upon uncontradicted and credited testimony.
8 When the plant had reopened after the June 30 shutdown, James Sayers, who had
formerly worked as a stock clerk, was given John Rayhorn's job as a wrapper. Bartley
was recalled on August 2 to take Sayers' former job.
PENNWOVEN, INC. 189
he did not, Stover requested Watkins to come back with him "and talk things
over." Stover told Watkins, "You know, if we lose out, I would lose my job and
you would lose your job and couldn't afford it. Because Mr. Lewis [the presi-
dent of the Respondent] thinks he couldn't start all over again." Watkins voted.
The Respondent contends that the statements of its supervisory employees
referred to above constituted expressions of opinion, immunized from the reach
of Section 8 (a) (1) by the provisions of Section 8 (c) and by the constitutional
guaranty of free speech. I am unable to agree. Interrogation of employees
concerning their union sympathy or voting intentions, such as was engaged
in by Mitcheltree in his questioning of employees Weber, Barnard, Hill, and
Naso and by Assistant Plant Manager Stover in his questioning of Watkins,
has long been recognized as a form of illegal interference, falling outside the
statutory and constitutional privilege of free speech. See Standard-Coosa-
Thatcher Company, 85 NLRB 1358, and cases there cited. The adroitly timed
announcement of the Respondent's intent to pay before Christmas, if possible,
retroactive wages negotiated by a labor organization which would be displaced
as collective bargaining agent if the AFL won, was, I am persuaded, designed for
the purpose of causing the employees to reject the AFL as bargaining repre-
sentative by holding out to them a promise of benefit ; as such it constituted
illegal intereference not shielded by Section 8 (c). See Hudson Hosiery Co.,
72 NLRB 1434; Joy Silk Mills v N. L. R. B., 185 F 2d 732 (C. A. D. C.). Mitchel-
tree's related observation tto Weber that employees could expect no back pay
if the AFL won, constituted a clear threat of economic reprisal. The state-
ments made by Personnel Director Fiedler and Assistant Plant Manager Stover
to various employees on the day of the election, indicating that the Respondent
could not deal with the AFL and that the plant would close down if the AFL
won, may not in context be fairly viewed as mere expressions of innocent per-
sonal opinion In light of their timing, their pattern, and the positions oc-
cupied by those making the utterances, the statements must be viewed, as they
are here, as having been deliberately contrived to confront them to whom they
were made with the threat of a plant shutdown as retaliation for an AFL victory..
Bubb's statements to Bartley, concerning the effect upon the latter of an AFL
victory, were also, it is found, outside the privileged area of Section 8 (c). Since
it lay within the Respondent's power to determine whether or not Bartley was
to continue working, regardless of the outcome of the election, and since Ray-
horn's return did not necessarily mean that Bartley must be disposed from all
plant work, I am persuaded that Bubb's significantly timed and reiterated
statement was not merely the expression of a personal opinion, but was wilfully
calculated to be coercive in character, as in fact it was.
The Respondent further contends that, under Section 10 (b) the conduct above
described may not be considered as a basis for unfair labor practice findings,
because the charges only alleged a violation of Section 8 (a) (1) in general
terms without specifying the particular conduct relied upon and because the
complaint which did specify such conduct was not served until more than 6
months after the acts were committed. This contention is found to be without
merit See Cathey Lumber Company, 86 NLRB 157; Kansas Milling Co. v.
N. L. R B., 185 F. 2d 413 (C. A. 10).
C. Discrimination
The complaint alleges the Respondent discriminatorily failed and refused to
employ Jennie Rayhorn, John Rayhorn, and Lulabelle Bechtol on and after
April 18, 1949 The General Counsel contends that the failure to employ them
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after receipt of their letters of April 16, 1949, constituted a separate violation
of Section 8 (a) (3), independent of any discrimination with regard to their
hire and tenure of employment that may have occurred earlier. What went
before is relied upon only for the purpose of explaining and interpreting what
followed. The Respondent, on the other hand, argues that the General Counsel
has failed to show by a preponderance of the evidence that the Respondent ever
discriminated against these persons to discourage membership in the AFL.
But if there was discrimination-it argues alternatively-the discrimination
originated as early as July 19, 1948, when the Respondent first failed to recall
them to work. It was then, if at all, says the Respondent, that the violation
occurred, imposing a duty upon the alleged discriminatees if-they would remedy
the wrong to file unfair labor practice charges within 6 months from that time.
And, according to the Respondent, by their failure to file charges within 6
mouths of the original discrimination, their right to assert against the Re-
spondent a violation of Section 8 (a) (3) became forever barred under the
proviso to Section 10 (b), and was not subject to revival by a continued failure
and refusal of the Respondent to recall them after their subsequent requests
for reemployment.
Although the specific violation alleged is a discriminatory refusal to employ
on or after April 18, 1949, events preceding that date are relevant to evaluate
the Respondent's conduct during the period in issue. And the events that may
be considered need not be confined to those occurring within 6 months prior to
April 28, 1949, when the original charge was filed. By now it must be regarded
as well settled that Section 10 (b), while it precludes the issuance of com-
plaints based upon unfair labor practices happening more than 6 months before
the filing of a charge, does not forbid consideration of earlier conduct for the
purpose of throwing light upon the specific conduct attacked as an unfair labor
practice.'
On the record of this case, there can be little doubt that the Respondent's
failure to recall Jennie Rayliorn, John Rayhoin, and Lulabelle Bechtol after
the plant resumed operations on July 19, 1948, is traceable to their identification
by the Respondent with the leadership of the AFL movement. Among the
significant circumstances which cumulatively impel that conclusion are: The
Respondent's otherwise unexplained failure to recall these employees in ac-
cordance with the seniority provisions of the then existing contract ; Kass'
statement at the grievance meeting that seniority rights had been lost by the
AFL "dual movement" ; Kass' reference at that meeting to Jennie Rayhorn
as a "troublemaker," although the record fails to show that she had caused
the Respondent any trouble other than by her organizational and concerted
activities ; the Respondent's anxiety to retain its wage incentive plan to which
District 50 had agreed and to which it thought the AFL might be opposed ; the
Respondent's proposed deal with the AFL conditioned upon the AFL accepting
that plan; the Respondent's campaign of hostility and opposition to the
AFL after the AFL employee group had rejected the Respondent's proposed
deal because of the employees' objection to the wage incentive plan ; and the
Respondent's recognition immediately after the election of District 50 which
favored that plan. Indeed, Kass' revelation at the New York City meeting that
0 See, e. g, Potlatch Forests, Inc, 87 NLRB 1193 : Axelson Mannfacturing Company,
88 NLRB 761; Crowley's Milk Company. Inc, 88 NLRB 1049 ; Luzerne Hide and Tallow
Company, 89 NLRB 989; El Mundo, Inc, 92 NLRB 724.
PENNWOVEN, INC. 191
Jennie Rayhorn, John ltayhorn, and Lulabelle Bechtol were known by the Re-
spondent to be actively identified with the AFL and that it was at his advice
that the Respondent was keeping them from working, coupled with his expressed
willingness to cancel what was in effect a blacklisting of these employees if, but
only if, the AFL would agree to go along with the Respondent's wage incentive
plan, does not in my opinion reasonably permit any other conclusion.
In view of the rejection by the AFL employ ee group of the condition precedent
laid down by the Respondent and the fact that the Respondent for no other reason
that is apparent continued thereafter to refrain from recalling the Rayhorns
and Bechtol, although it recalled others junior to them in point of service and
hired new and inexperienced, employees in jobs the three were competent to fill,
it is clear, and it is found, that there was no abandonment by the Respondent
of the discriminatory policy it had adopted with regard to them.
Basically, it is the General Counsel's position that the Respondent's failure
to employ the three after they had notified it of their availability for reemploy-
ment by their letters of April 16, 1949, was due to an application of that dis-
criminatory policy.
The preliminary question arises. Assuming this to be so, did the failure to
employ them at that time constitute, as the General Counsel asserts, a new act
of discrimination and a separate and distinct unfair labor practice? Or was it
merely, as the Respondent argues, an inseparable part of an act of discrimina-
tion which was committed, if at all, when the policy was first applied to deny the
three their former jobs upon the resumption of plant operations in July 19489
If the General Counsel is wrong and the Respondent right, it would follow that
no unfair labor practice may now be found because no charge was filed within 6
months from the accrual of the unfair labor practice
On this point, I ain satisfied the law is on the side of the General Counsel.
Section ;S (a) (3) imposes a continuing obligation upon employers not to dis-
criminate with regard to hire That obligation is not suspended with regard
to employees who have been discriminated against in the past. The Board has
consistently held that where an employee has been discriminatorily discharged,
a subsequent refusal to reemploy him because of the same discriminatory consid-
erations constitutes a separate, distinct, and independent unfair labor practice."
Since the employer's statutory duty not to discriminate is a continuing one, each
breach of it gives rise to a new violation for which a remedy will lie." And the
fact that the breach takes the form of an additional application of a discrimina-
tory policy previously put into effect does not make it any the less an independent
violation. Potlatch Fos ests, Inc, 87 NLRB 1193, is a case in point There the
Board held that where a discriminatory seniority policy was applied during the
statutory period, it constituted an independent unfair labor practice not pro-
tected from attack by Section 10 (b), even though the policy to which effect was
given was inaugurated some 16 months before the filing of the charge.
30 See, e. g. Moltrup Steel Products Compama/, 19 NLRB 471. enfd . 121 F 2d 612
(C A 3) , Brenner Tanning Co , Inc, 50 NLRB 894, enfd 141 F 2c1 62 (C A. 1) ; J. A.
Bentley Lumber Company , 83 NLRB 803
"An analogy is to be found in the law of remedies and statutes of ]imitation as applied
in the field of torts where the wrongful act is of a continuous or recurrent character,
it is generally held that separate causes of action arise from each successive injury, and
that relief for those arising within the limitations period may be had even though the
limitations period has run troin the (late of the original wrong See, 34 American Juris-
prudence §§ 130, 131, 160, and cases there cited
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am unable to agree with the Respondent that adoption of the General Coun-
sel's approach would vitiate Section 10 (b) by permitting the revival of a dead
claim through the mechanism of a request for reemployment. And I do not con-
sider apposite to this case the rule upon which the Respondent relies, that where
a statute creates a cause of action and fixes the time within which a suit for its en-
forcement may be commenced , the running of the limitations period ends not
only the remedy but the substantive right of action and corresponding liability.
Cf. blathewy v. Porter, 158 F. 2d 478, 479 (C A. 2). Here no dead claim is sought
to be revived . The Respondent 's alleged illegal failure and refusal to reemploy
the three individuals involved on and after April 18, 1949, is not predicated on
the theory that the requests for reemployment operated as a renewal of the
Respondent's lapsed liability to remedy rights that had been violated in the
past. The alleged violation here does not flow from a failure to cure a past
violation . It springs , rather, from the statute itself, and is founded upon an
alleged additional and independent breach after April 18, 1949, of the Respond-
ent's continuing statutory obligation not to discriminate with regard to hire. To
adopt the Respondent 's approach would mean in effect that an employer who
has once discriminated against an employee but has escaped prosecution there-
for, is to be left free to continue discriminatorily blacklisting that employee for-
evermore . There is nothing in the Act itself or in its legislative history to sug-
gest that Congress intended to confer such a permanent license upon an em-
ployer under any circumstances . The Respondent 's approach is not only at
variance with the principles indicated ; it is offensive both to the spirit of the
Act and to one's sense of right.
We come, then , to the question of whether the proof supports the allegation
of the complaint that on and after April 18, 1949, the Respondent discriminatorily
refused to employ Jennie Rayhorn , John Rayhorn, and Lulabelle Bechtol. Since
what is involved here is a claim that the Respondent committed a separate and
distinct violation of its statutory obligation , not that it failed to remedy a pre-
vious one , the burden was on the General Counsel to establish these elements of
the alleged violation: (1) That on and after April 18, 1949, the Respondent had
job openings which the alleged discriminatees were qualified to fill; ( 2) that
normally, and absent a discriminatory motive, the Respondent would have con-
sidered them for employment in such jobs, either because it was on notice that
they were available for and desired employment , or because of a policy to con-
sider laid-off employees , or for some other reason; ( 3) that they were rejected
or denied consideration for such jobs on account of their union membership and
activity rather than on the basis of some permissible criterion.
Parst : Were there job openings which the discriminatees were qualified to fill?
On that the record shows the following :
John Rayhorn had been employed by the Respondent for about 9 years as a
wrapper, operating a machine that wrapped wire screening . On April 13 , 1949, 5
days before the Respondent -received his letter , the Respondent filed a job order
with the Pennsylvania State Employment Service for a wrapper to work on the
first shift . According to the Respondent 's hiring records, no wrapper was hired
between that date and April 18; indeed, it was not until August 22, 1949, that
the records show the Respondent succeeded in hiring an employee in that classi-
fication. The wrapper employed on that date was hired for the first shift. At
the hearing the Respondent made no claim that the job order of April 13 was
filled or withdrawn in the interim. Since it was stipulated that beginning Jan-
uary 1949 , all hires were made through the Pennsylvania State Employment
Service, and the record of job orders filed with the Service reveals no other order
PENNWOVEN, INC. 193
for a wrapper during that time, it is reasonable to infer, and it is found, that
the April 13 job order remained on file but unfilled until August 22, 1949, and
that the Respondent had an opening for an employee in that classification
throughout the intervening period.
Jennie Rayhorn and Lulabelle Bechtol when last employed were classified as
weavers. Rayhorn had worked some 16 rears in that classification , and Bechtol
about a year and a half. Before being promoted to the weaver classification,
Bechtol had performed other plant operations , including 1 year's work as a
bobbin winder , a less skilled classification . Rayhorn also had worked on occa-
sions as a bobbin winder and was qualified to perform that operation. The
Respondent's records show that on shifts other than the third,12 the Respondent
hired apprentice weavers on May 17 and May 20, 1949 , and a weaver on Septem-
ber 12, 1949. On September 19, the Respondent filed a job order with the Em-
ployment Service for two weavers , male or female , with some wire mill ex-
perience. It would seem that the Service was unable to supply employees with
the requisite qualifications , for the Respondent ' s hiring records reflect that the
only hirings in the weaving classification after that date were of apprentice
weavers, one being hired on October 4, 1949, and the other on October 27, 1949.
With regard to bobbin winders,-the record reflects that the Respondent placed
job orders for employees in that classification on shifts other than the third
on April 11, May 31, June 9, and October 10, 1949. The job orders specified
that no experience was required. The Respondent's employment records dis-
close that after April 18, 1949, in that year, bobbin winders were hired on April
25, May 11, May 16, May 31, June 2, and December 23. It is found that Jennie
Rayhorn and Lulabelle Bechtol were qualified by experience and training to
perform each of the afore-mentioned weaving and bobbin winding jobs for which
vacancies occurred or new employees were hired after April 18, 1949.
Second: Would the alleged discriminatees finder normal circumstances have
been considered for employment in such jobs?
Absent some other compelling reason, it is reasonable to assume that an
employer who has been notified by trained and experienced former employees
that they are available for reemployment will consider them for suitable job
vacancies in preference to untrained , inexperienced , and untested new job
applicants. That is particularly true, where, as here, the Employer is operating
under a policy, formalized by a collective bargaining agreement, that no new
employees will be hired to perform any work until such work has first been offered
to qualified laid-off employees.
In this case , the Rayhorns and Bechtol were laid -off employees to whom the
contractual rehiring provisions were expressly applicable . Moreover , by their
letters of April 16, 1949, they had placed the Respondent on specific notice that
they were available for and desired reemployment. Their letters, to be sure,
were not confined to a notice of availability for reemployment ; they also charged
discrimination in the past and expressed an intent to seek redress under the Act
if reemployment were not granted But so far as present reemployment was con-
cerned, no terms were set or strings attached. Although perhaps not agreeing
to waive their claims for past discrimination , the Rayhorns and Bechtol did not
in their letters condition their requests for present reemployment upon the Re-
spondent agreeing to redress the earlier claimed discrimination by the reimburse-
12 Although there were a number of hires and job orders for weaver and bobbin winders
on the third shift , they are disregarded here because, as noted above , it was stipulated
that it was the Respondent ' s policy to hire only young males for work on that shift.
933841-52-vol 94-14
194 t DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of wage losses or otherwise. In legal effect the letters operated, it is found,
as unconditional requests for reemployment. They clearly establish what is
important here, that the Respondent was effectively put on notice that the Ray-
horns and Bechtol were seeking reemployment. And the element of notice was
not canceled out either by the added assertion of past discrimination or by
the indicated belief that reemployment was due as a matter of contractual and
legal right. Contrary to the Respondent's contention, the letters did not lose their
character as applications for reemployment because they were admittedly drafted
and mailed by a union organizer and no application was made by personal visit
to the Respondent's employment office. As was stated by the Seventh Circuit
Court of Appeals, answering a similar contention, "An application for work may
be made personally or through an agent in any manner which reasonably brings
notice of the application to the employer." N. L. R. B. v. Lightner Publishing
Corp., 128 F. 2d 237, 239. Nor was the Respondent, as it further claims, justified
in disregarding the letters as proper applications for reemployment because they
threatened invocation of the Board's processes if necessary. The Act protects
employees in their right to file such charges, and to deny employment or reem-
ployment on that account would itself be discriminatory.
It is found that on and after April 18, 1949, the Respondent was on continuing
notice that the Rayhorns and Bechtol desired and were available for employment
by the Respondent in jobs for which they were qualified.13
Third: What were the Respondent's reasons for rejecting or denying con-
sideration to the Rayhorns and to Bechtol for suitable vacancies occurring
after April 18, 1949?
The Respondent offered no evidence to show that the Rayhorns and Bechtol
were not competent to fill the job vacancies which have been referred to above.
Nor did it offer any evidence relating specifically to the three named indl%iduals
to explain why they were not chosen. The Respondent confined its case to the
following: (a) Proof in the form of a stipulation that commencing in January
1949, all new hires were made through the office of the Pennsylvania State Em-
ployment Service; (b) proof, likewise stipulated, that it was the Respondent's
policy to hire only young males for the third shift; (c) testimony of L P. Bubb,
its plant manager, that it was the Respondent's policy to fill job vacancies on the
first and second shifts "mostly-or entirely" by upgrading from the third shift
qualified "young fellows," it being the Respondent's objective eventually to reduce
the age of workers in the plant.
None of this applies to explain the Respondent's failure to consider the Ray-
horns and Bechtol for employment. With regard to (a) above, the documtentary
evidence reflects that the policy of hiring through the Employment Service had
no application for former or laid-off employees in the category of the Rayhorns
and Bechtol, to whom, as has been seen, the then existing contract gave prefer-
ence in consideration over new employees. There is evidence that 2 such employ-
ees were recalled to work in January 1949, 2 in February, and 1 in May. With
regard to (b) above, it is undisputed that the policy referred to was not extended,
at least on a strict basis, to new employees hired for the fit st and second shifts.
On the contrary, the documentary proof discloses that among new hires on
1z In view of the charges served on the Respondent about April 28, 1949, alleging, enter
alma, a continued failure and refusal to "reinstate and/or employ" the individuals involved,
and the subsequent pendency of the charges, the Respondent cannot be heard to say that
it did not remain on notice or that it could iegaid the application as having thmeafter
been abandoned by lapse of time Cf The Toledo Desk and Fixture Company, 65 NLRB
1086. 1099
PENNWOVEN, INC. 195
shifts other than the third during the period between September 1948 and June
1950, there were 2 employees over 37, 7 between the ages of 40 and 50, 3 between
the ages of 50 and 60, and 1 aged 63.14 A substantial number of the employees
hired throughout this period were women. With regard to (c) above, Bubb's
.testimony that vacancies on the first and second shifts were filled "mostly or
entirely" by upgrading young fellows from the third is refuted by the docu-
mentary evidence. According to Bubb, this policy was put into effect when the
third shift resumed operations on January 24, 1949. Yet the record shows that
of 25 new employees hired between that date and April 18, 1949, 20 were hired
directly for work on the first or second shifts. And since April 18, 1949, some
20 new employees (or roughly 30 percent of all employed since that date) were
hired directly for shifts other than the third. A substantial number of them
were women What is mote, the documentary evidence reflects that no such
policy was applied in the case of laid-off employees.
On the entire record, and in view of the Respondent's failure satisfactorily to
explain its rejection of the Rayhorns and Bechtol on the basis of nondiscrimina-
tory considerations, the only reasonable inference to be drawn is that the Re-
spondent's failure after April 18, 1949, to employ or reemploy the Rayhorns and
Bechtol, while hiring new and inexperienced employees for jobs the three were
qualified to fill, was attributable to further and continued applications of the dis-
criminatory policy, in the nature of a blacklisting, it had previously adopted with
regard to them because of their identification with the AFL and its activities 1i
I am fully satisfied that the General Counsel has sustained his burden of proof
by a preponderance of evidence. It is concluded and found that by failing and
refusing because of their union membership and activities to employ John Ray-
horn on April 18, 1949, and Jennie Rayhoin and Lulabelle Bechtol on April 25,
1949, as well as on subsequent occasions when, as found above, vacancies
existed for jobs they respectively were qualified to fill and/or other inexperi-
enced employees were hired for such jobs, the Respondent discriminated with
regard to their hire, thereby discouraging membership in the AFL. By such
conduct, it is further found, the Respondent not only violated Section 8 (a) (3).
but Section 8 (a) (1) of the Act as well.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations described in Section I, above, have a close, inti-
mate, and 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
14 According to the Respondent, young males were defined generally as those under 30
There is no evidence in the record as to the ages of Jennie Rayhorn, John Rayhorn, and
Bechtol , but during argument Respondent ' s counsel stated that John Rayhorn was 65
years of age. Jennie Rayliorn and Lulabelle Bechtol, though both obviously over 30,
appeared to be many years younger than John Rayhorn
15 Consideration has been given the Respondent 's contention that any possibility of a
discriminatory motive is disproved by the fact that in August 1948 it recalled to work
Marguerite Barnard , who, the record shows, had also been very active at the start of
the AFL organizational movement. I have weighed this fact along with others, but in
my, opinion it alone is not enough to rebut the inference, in view of more convincing
evidence in the record pointing unmistakably toward discrimination against the thiee
hei e involved The, Act forbids an employer from discriminating against any of his
employees, and lie is not excused from the consequences of his conduct merely by showing
lie has knowingly refrained trom discriminating against others The Toledo Desk and
Fixture Company , supra , Steuart -11"arner Corporation , 55 NLRB 593, 610
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent has engaged in unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain
affirmative action.
It has been found that the Respondent discriminated in regard to the hire of
John Rayhorn, Jennie Rayhorn, and Lulabelle Bechtol. It will be recommended
that the Respondent be ordered to offer each of them immediate employment
with such seniority or other rights and privileges as each would have enjoyed
had each been employed on the date of the discrimination found above, in the
the case of John Rayhorn, April 18, 1949, and in the cases of Jennie Rayhorn
and Lulabelle Bechtol, April 25, 1949, and further that it shall make them whole
for any loss of pay each may have suffered as the result of the Respondent's
discriminatory refusal to hire from the respective dates of discrimination found
above to the date employment is offered. Consistent with the policy of the
Board enunciated in F. W. Woolworth Company, 90 NLRB 289, it will be recom-
mended that the loss of pay be computed on the basis of each separate calendar
quarter or portion thereof during the period from the Respondent's discrimina-
tory action to the date of a proper offer of employment. The quarterly periods,
hereinafter called "quarters," shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting from a sum
equal to that which these employees normally would have earned for each
quarter or portion thereof, their net earnings (Crossett Lumber Company, 8
NLRB 440; Republic Steel Corporation v. N L R. B.,°311 U. S. 7), if any, in
other employment during that period. Earnings in one particular quarter shall
have no effect upon the back-pay liability for any other quarter. It is also
recommended that the Respondent be ordered to make available to the Board
upon request payroll and other records to facilitate the checking of the back
pay due (F. W. Woolworth Company, supra).
The Respondent's infractions of the Act, herein found, disclose a fixed pur-
pose to defeat self-organization and its objectives. Because of the Respondent's
unlawful conduct and its underlying purposes, I am persuaded that the unfair
labor practices found are related to other unfair labor practices proscribed by
the Act, and that the danger of their commission in the future is to be antici-
pated from the course of the Respondent's conduct in the past The preventive
purposes of the Act will be thwarted unless the remedial order is coextensive
with the threat. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
thus to effectuate the policies of the Act, it will be recommended that the Re-
spondent be ordered to cease and desist from infringing in any manner upon
the rights guaranteed by 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. American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating with regard to the hire of Jennie Rayhorn, John Rayhorn,
and Lulabelle Bechtol, thereby discouraging membership in the American Federa-
tion of Labor, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
STONE & WEBSTER ENGINEERING CORPORATION 197
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
STONE & WEBSTER ENGINEERING CORPORATION and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 395, PETITIONER . Case No.
39-RC-286. May °2, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Elmer Davis, hearing officer.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Murdock ,and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, an international engineering and construction
firm, is engaged in the construction and expansion of powerhouse facil-
ities at Beaumont, Texas, for the Gulf States Utilities Company, a
multimillion dollar public utility serving users in Louisiana and Texas.
Two projects are involved here. One, which has taken approximately
18 months to build, is now reaching completion and the other, which
will require a similar amount of time to complete, has been recently
begun. Each project involves expenditures in excess of $6,500,000, of
which approximately 50 percent is for the purchase of materials and
supplies outside the State of Texas.
The International Brotherhood of Carpenters and Joiners of Amer-
ica, Local 753, AFL, hereinafter called the Intervenor, contends that
the Board should not assert jurisdiction over these operations of the
Employer, essentially for the reason that the work is sporadic, variable,
and uncertain. Upon the record before us we find no merit in this
contention.1 Inasmuch as the Employer purchases supplies and ma-
terials valued in excess of $500,000 from outside the State of Texas
we find that it will effectuate the policies of the Act to assert jurisdic-
tion in this case. 2
Accordingly, we find that the Employer is engaged in commerce
within the meaning of the Act.
3 The Plumbing Contractors Association of Baltimore , Maryland, Inc., 93 NLRB 1081;
Ozark Dam Constructors , 77 NLRB 1136.
a Federal Dairy Company , Inc., 91 NLRB 638.
.94 NLRB No. 39.