Paramount Cap Mfg. Co. v. National Labor Rel. Bd.

• Citation: 260 F.2d 109
• Decision Date: 17 November 1958
• Docket Number: No. 15985.,15985.
• Parties: PARAMOUNT CAP MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

260 F.2d 109 (1958)

PARAMOUNT CAP MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15985.

United States Court of Appeals Eighth Circuit.

October 24, 1958.

Rehearing Denied November 17, 1958.

John R. Stockham, St. Louis, Mo. (Stockham, Roth, Buder & Martin, St. Louis, Mo., were with him on the brief), for petitioner.

Morris A. Solomon, Atty., National Labor Relations Board, Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Atty., National Labor Relations Board, Washington, D. C., were with him on the brief), for respondent.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

GARDNER, Chief Judge.

This matter is before us on petition to review and set aside an order of the National Labor Relations Board finding the Paramount Cap Manufacturing Company guilty of certain unfair labor practices in that it failed and refused to recall, or employ, or reinstate employees Mary Lorene Carter and Seymour Carter because of their alleged Union activities, and upon the cross-petition of respondent for decree of enforcement of said order.

The Paramount Cap Manufacturing Company is a corporation engaged in the manufacture of various kinds of sport and work caps at Bourbon, Missouri. At the times here in question it was employing between 120 and 130 employees at its Bourbon plant. The company was managed and operated as a family concern, Simon Rubenstein being president, his brother William Rubenstein being secretary-treasurer, and William's son, Norman Rubenstein, being vice-president and general manager.

About the second week of May, 1955, the United Hatters, Cap & Millinery Workers International Union, AFL-CIO, hereinafter called the Union, began a campaign to organize the Company's employees at its Bourbon plant, and later in May of that year, the company's vice-president, Norman Rubenstein, learned of this campaign from certain employees in the plant. Following this campaign the Union petitioned to be certified as the employees' bargaining representative, following which the National Labor Relations Board conducted an election to determine the employees' wishes. The Union lost the election and it then filed objections, alleging that the Company engaged in conduct which affected the result of the election. Upon a hearing on these objections the Board found that certain statements made by vice-president Norman Rubenstein had interfered with the employees' free choice in the election and thereupon the Board set aside the election and directed that a new election be held. However, a second election was never held because the Union withdrew its petition for certification. In the meantime, on July 30th, 1956, charges initiating the present unfair labor practices proceedings were filed with the Board, following which, and on October 9, 1956, the complaint herein was issued and served. The Company answered, admitting the commerce allegation of the complaint, and admitted that the Union is a labor organization, but denied the commission of any unfair labor practices. On hearing the Trial Examiner found the issues against the Company and specifically found that it had engaged in unfair labor practices in refusing to recall, or employ, or reinstate employees Mary Lorene Carter and Seymour Carter because of their Union activities. The Board adopted and approved the Trial Examiner's findings and thereupon entered its usual formal cease and desist order, which it is here seeking to have enforced, and which the Company seeks to have set aside.

The Company seeks to have the Board's order and decision set aside on substantially the following grounds: (1) The National Labor Relations Board and the Trial Examiner erred in giving independent and controlling weight to event in case No. 14-RC-2805 which occurred more than six months prior to the filing of the charge in the instant case; (2) the Trial Examiner and the Board erred in excluding certain relevant and material evidence; (3) the Trial Examiner and the Board erred in resolving alleged conflicts of credibility in favor of Lorene Carter and Seymour Carter and against the witnesses for the Company; (4) the Board and the Trial Examiner completely ignored the established practice of the Company with respect to recalls; (5) the Trial Examiner's Intermediate Report and the Board's Decision and Order are at variance with the Complaint; (6) the Board and the Trial Examiner erred in taking judicial notice of the transcript in Case No. 14-RC-2805.

At the hearing held contesting the fairness of the election both parties were represented, introduced evidence and examined and cross-examined witnesses. On July 27, 1956, the Union filed the charges forming the basis of the present controversy. At the hearing on the objections to the fairness of the election evidence was introduced as to certain statements and actions made by representatives of the Company, particularly Norman Rubenstein, indicating hostility toward the Union. Without detailing this evidence it is enough to say that it was found sufficient in character to invalidate the election. Some ten months subsequent to the election the present charges were filed.

During the course of the hearing the General Counsel requested the Board to take judicial notice of the record in the election contest case. This was objected to by counsel for the Company on various grounds but not on the specific ground that the events in the election contest case occurred more than six months before the filing of the charges in the instant case. Section 10(b) of the Labor Management Relations Act of 1947 (29 U.S.C.A. § 160(b)) provides in part that:

"* * * no complaint shall issue based upon any unfair labor practice occurring more than six months prior to

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