Paramount Cap Manufacturing Co.

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