Clyde Taylor Co.

National Labor Relations Board - Board Decisions

Apr 11, 1960

127 N.L.R.B. 103 (N.L.R.B. 1960)

CLYDE TAYLOR COMPANY 103
Having found that each Respondent has violated Section 8(a)(1), (2), and (3)
of the Act by maintaining in effect and observing provisions of the collective-bargain-
Ing agreement with Local 33 since October 8, 1956, and that the provisions referred
to were unlawful and constituted a coercion upon employees in respect to becoming
members of or contributing financial support to Local 33 as a condition of employ-
ment, it will be recommended that each Respondent refund to his employees any
moneys paid to Local 33 by reason of the unlawful provisions. It will further be
recommended that each Respondent cease and desist from giving effect to any
union-security provision affecting his employees except in conformity to Section
8 (a) (3) 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 a
1. Each Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 33 is a labor organization within the meaning of Section 2(5) of the Act.
3. By maintaining in effect and observing the union-security provisions of the
collective-bargaining agreement with Local 33 on and since October 8, 1956, each
Respondent has discriminated in respect to hire and tenure of employment of
employees to encourage membership in and the contribution of financial support
of Local 33 and thus has engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By maintaining in effect and observing the union-security provisions of the
contract with Local 33 since October 8, 1956, the Respondent has unlawfully con-
tributed support to and assisted Local 33 and thus has engaged in unfair labor
practices within the meaning of Section 8(a) (2) of the Act.
5. By the conduct referred to in subparagraphs numbered 3 and 4, above, each
Respondent has interfered with, restrained, and coerced his employees in the exer-
cise of rights guaranteed in Section 7 of the Act and thus has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Clyde Taylor, d/b/a Clyde Taylor Company and Frank M.
Houston, Benjamin F. Riley, J r., Lyle Fay Rinkel , and H. D.
Cutchen . Cases Nos. 12-CA-520, 12-CA-544, 12-CA-545, 12-
CA-807. April 11, 1960
DECISION AND ORDER
On May 5, 1959, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that he 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 and
1 For lack of supporting evidence, The Trial Examiner granted at the hearing a motion
by the Respondent to dismiss an allegation of the amended complaint that the Respondent
had threatened to file a civil action against the Charging Parties in the event they testi-
fied in this proceeding As no exception has been taken to the Trial Examiner's dis-
missal ruling , the allegation referred to is hereby dismissed pro forma.
127 NLRB No. 6.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel filed exceptions-to the Intermediate report and
supporting briefs.2
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 briefs, and the entire record in
the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, insofar as they are consistent with
the following Decision and Order.
As found by the Trial Examiner, the facts which gave rise to this
case are essentially as follows.
Prior to April 1958, Diehl, a partnership, was engaged in business
as mechanical contractors, including electrical contracting, sheet metal
work, pipeline construction, and plumbing. Diehl also operated a
wholesale supply business. In April 1958, Diehl decided to retire from
the contracting business. About April 1, 1958, Diehl organized and
began operating the Big Bend Supply Co., another Diehl partnership,
as successor to the wholesale supply business. Diehl made arrange-
ments for disposition of the electrical and plumbing businesses with
the respective superintendents of the electrical contracting and plumb-
ing departments, and made some disposition, the nature of which is
not disclosed, of the pipeline construction business. Diehl also made
an arrangement with the superintendent of the sheet metal depart-
ment, Clyde Taylor, the Respondent, to take over the sheet metal
business on May 19, 1958.4
However, Taylor did not consummate his agreement with Diehl
with respect to taking over the sheet metal business on May 19, 1958,
for on that day, Taylor and Local 57 of the Sheet Metal Workers, a
union which had had a contract with Diehl covering the sheet metal
department employees, failed to reach an agreement as to a new con-
tract. For that reason, Taylor told Diehl that he, Taylor, could not
at that time go into the sheet metal business. As Diehl had unfinished
2 The Respondent also filed with the Board a motion to supplement the record re-
questing the Board to make part of the record two affidavits attached to the motion. In
one of the affidavits , the Respondent , Clyde Taylor , denies having made critical statements
attributed to him by witnesses whose testimony was credited by the Trial Examiner. The
other affidavit is that of an attorney for Raymond Diehl Company, herein called Diehl,
Taylor's predecessor. In this affidavit, the attorney states that he made a side verbal
agreement with the attorney for the General Counsel to the effect that a settlement,
entered into by Diehl covering unfair labor practices involved here would not constitute
an admission of guilt In his Intermediate Report, the Trial Examiner appears to have
relied in part on Diehl ' s settlement agreement in concluding that Taylor and Diehl were
joint employers No reason has been shown as to why the matters contained in the
affidavits could not have been introduced at the hearing In making our unfair labor
practice findings and conclusions hereinafter , unlike the Trial Examiner , we do not rely
on Diehl's settlement agreement Accordingly , the Respondent's motion to supplement
the record is hereby denied
s The Respondent 's request for oral argument is denied, as the record , including the
exceptions and briefs , adequately presents the issues and the positions of the parties.
4 As Diehl had no experience in the sheet metal business Taylor had been hired to
conduct it and was given a free hand in running it.
CLYDE TAYLOR COMPANY 105
sheet metal jobs on hand, Diehl agreed, in substance, to disregard
Taylor's verbal agreement to take over the sheet metal business and, on
May 28, 1958, Diehl signed a new 1-year contact with Local 57.5
Nevertheless, Diehl desired to retire from the sheet metal business
as soon as possible. As in the past, Diehl continued to give Taylor a
free hand in running the sheet metal department. On August 1, 1958,
Taylor signed a lease, to take effect on August 18, 1958, for Diehl's
building and equipment.
On August 8, 1958, Taylor discharged Frank Houston, Local 57
steward, who had participated in the unsuccessful bargaining ne-
gotiations with Taylor and in the contract negotiations with Diehl in
Taylor's presence. In his capacity as union steward, Houston had
presented grievances concerning Taylor's alleged hiring of too many
apprentices and his use of unqualified laborers to do sheet metal work.
According to testimony credited by the Trial Examiner, shortly be-
fore Houston's discharge, Taylor told an employee : "Frank Houston
was getting too big for his own good in this union business and it
looked like he was going to let him go."
On Friday morning, August 15, 1958, according to testimony cred-
ited by the Trial Examiner, Taylor told the sheet metal employees
in substance that he was taking over the shop on the following Mon
day morning and that the employees could continue to work for him
unless "they wanted to stick with the Union." At the end of the work-
day, the four remaining complainants, Benjamin F. Riley, Jr., Lyle
Fay Rinkel, H. D. Cutchen, and Billy G. Jones, having indicated ad-
herence to the Union, were told, when they received their pay en-
velopes, that they were paid up in full and "to get their tools and
get out."
On August 18, 1959, Taylor took possession under the lease and
formally assumed the proprietorship of the sheet metal business.6
5 Beginning about May 1, 1958, Taylor had business cards printed in his own name,
giving Diehl 's location and telephone number. These cards were inserted in the sheet
metal employees ' pay envelopes ; Taylor also had stationery with his own name on it; and
one of Diehl 's trucks was repainted with Taylor 's name substituted for that of Diehl.
The cost of all this was footed by Diehl and not repaid by Taylor. Shortly after May 1,
1958 , the telephone in the sheet metal department was answered in the name of Taylor;
Taylor opened a bank account in his own name in June or July 1958 ; and, about the
same time , Taylor entered into sheet metal job contracts , which were thereafter verbally
assumed by Diehl and performed by Diehl.
9 Between August 18 and November 12, 1958 , Diehl continued Taylor and the sheet
metal employees on Diehl 's payroll and Diehl paid social security withholding taxes and
workmen's and unemployment compensation with respect to the sheet metal employees
and treated them as Diehl employees in making Government reports and for insurance
purposes . However, all such money paid by Diehl , including Taylor's salary, were
charged on Diehl's books to Taylor , and Taylor reimbursed Diehl for such disbursements
on a monthly basis Taylor completed such of Diehl 's sheet metal contracts as remained
unfinished on August 18, 1958, using the same employees who worked on Taylor jobs,
but with an allocation of their wages to Diehl . Since November 12, 1958 , Taylor has
not been indebted to Diehl and Diehl has had no interest in Taylor's business or any
relationship with Taylor , except as lessor.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In September 1958, as more fully set forth hereinafter, the Re-
spondent applied for and thereafter obtained a State court injunction
enjoining picketing by the Union.
In February 1959, according to the findings of the Trial Examiner,
the Respondent threatened to file a libel suit to force the complainants
in this case to withdraw their unfair labor practice charges, as more
fully related hereinafter.
1. The Trial Examiner asserted jurisdiction here on the basis of
the entire 1958 inflow of the sheet metal business (operated from
January 1 to August 18, 1958, by Diehl and the balance of 1958 by
Taylor), which exceeded $50,000. In view thereof, the Trial Ex-
aminer found it unnecessary for jurisdictional purposes, to consider
Diehl's 1958 operations apart from his sheet metal business. The
Trial Examiner further stated that, in his opinion, it would be im-
proper to do so because Taylor succeeded only to the sheet metal op-
erations and had no connection with Diehl's other enterprises.
The Respondent contends that the Trial Examiner erred (1) in
failing to apply the jurisdictional yardstick in effect at the time of
the alleged unfair labor practices and (2) in treating Taylor as suc-
cessor to Diehl.
In connection with (1) above, the Respondent contends that the
applicable jurisdictional yardstick here is that which was in effect
immediately before October 2, 1958, namely, direct inflow of $500,000
or indirect inflow of $1 million, a standard which was not met here.
We reject this contention. In Siemens Mailing Service, 122 NLRB
81, the Board announced that it would apply the new jurisdictional
standards, adopted on October 2, 1958, to all future and pending cases,
including unfair labor practice cases.' We also note that the alleged
independent 8 (a) (1) conduct here occurred after adoption of the new
jurisdictional standard. Accordingly, we conclude that the Trial
Examiner properly applied the current jurisdictional yardstick,
adopted on October 2, 1958, in the determination of this case.
As indicated above, the Respondent also contends that he is not a
successor to Diehl and that the complaint should be dismissed be-
cause, as the record shows, his 1958 operations, alone, when projected
on an annual basis, are insufficient to meet the present $50,000 stand-
ard. We find no merit in this contention. The Respondent argues
that he did not succeed to Diehl's sheet metal business because he
merely leased the situs of the business from Diehl and he did not con-
tractually assume any of Diehl's obligations. However, Taylor not
only continued without interruption the sheet metal business which
had been operated by Diehl but also took over completion of Diehl's
7 See also Mike Trama, 125 NLRB 151 , where under the declared policy in Siemens
Mailing Service, the Board asserted jurisdiction in a case which , at the time the revised
standards were adopted , was pending on appeal to the General Counsel because of the
Regional Director 's refusal to assert jurisdiction under the old standards.
CLYDE TAYLOR COMPANY 107
sheet metal contracts, billing Diehl for material and labor furnished
on such jobs. In addition, Diehl financed Taylor's operations from
August 18 to November 12, 1958, and Taylor used Diehl's equipment
and trucks, as well as the same building location, under the lease ar-
rangement, in the conduct of the sheet metal business . And, apart
from those who indicated adherence to the Union, Taylor invited all
Diehl sheet metal employees to continue working for Taylor and
Taylor continued the sheet metal business, in part, with Diehl em-
ployees. Under the circumstances, we conclude that Taylor was
Diehl's successor in the sheet metal business and that the Trial Ex-
aminer properly asserted jurisdiction on the basis of the combined
sheet metal operations of Diehl and Taylor during 1958.8
2. For the reasons indicated in the Intermediate Report, we agree
with the Trial Examiner that the Respondent discharged Frank M.
Houston on August 8, 1958, and discharged and denied employment
to Benjamin F. Riley, Jr., Lyle Fay Rinkel, H. D. Cutchen, and Billy
,G. Jones on August 15, 1958, all because of their union activities, in
violation of Section 8(a) (3) of the Act.
3. The Trial Examiner recommended that an award of backpay be
entered against Taylor for wages lost by the five discriminatees. We
agree with the Trial Examiner that, in effecting the discrimination,
Taylor did not act merely as Diehl's agent. With respect to Houston's
discharge on August 8, 1958, even if it be assumed, as the Respondent
contends, that Diehl was then the sole owner of the business, Taylor
not only had a free hand in running the business for Diehl but Taylor
also had a lease, to become effective on August 18, 1958, for the
premises and equipment, and an arrangement with Diehl to continue
Diehl's sheet metal business on the effective date of the lease. Thus,
Taylor had an inchoate proprietary interest in DieM's sheet metal
business at the time of Houston's discharge. In addition, Taylor
himself discharged Houston. With respect to the discrimination on
August 15, 1958, even if it be assumed, contrary to our finding above,
that, in discharging the employees, Taylor was acting only as agent
for Diehl, as the Trial Examiner found, "Taylor was ( also ) dealing
with them as applicants or as prospective employees of his own
and . . . denied them employment with him because they refused to
renounce the Union." Thus, with respect to the refusal-to-hire aspect
of the discrimination, Taylor acted as a principal. In view of the
foregoing, and the entire record in the case, particularly the status of
Taylor as the prospective lessee and successor of Diehl at the time of
the discrimination found and Taylor's active piirticipation in such
8In view of this determination , we do not reach and hence do not pass on the General
Counsel's exception to the Intermediate Report that the Trial Examiner should have
asserted jurisdiction not only on the basis of the 1958 operations of the sheet metal shop
but also "upon the basis of Diehl's operations as a whole"
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices , we conclude that the Respondent is responsible
for remedying the discrimination against the five employees.'
4. According to testimony credited by the Trial Examiner, Taylor
had a conversation with H. D. Cutchen, one of the Charging Parties,
on February 21, 1959, in which Taylor asked Cutchen whether he
"had signed the charges against him"; when Cutchen answered in the
affirmative , Taylor told Cutchen that he should not have done so, that
"we had caused him public embarrassment, . . . he had lost a lot of
money ... he was looking to get some of his money back, and we
were opening ourselves wide open to a libel suit"; and Taylor asked
Cutchen "to talk to some of the boys and try to get them to drop it." 10
On the basis of the foregoing, the Trial Examiner found that Taylor
impliedly threatened to sue for libel for filing charges, or unless the
charges were dropped, and concluded that such a threat coerced em-
ployees in their right to self-organization and thus violated Section
(a) (1).
The Respondent does not contest the Trial Examiner's findings of
fact as to what was said in the conversation in question. We adopt
thesb findings of fact. However, pointing out that the Trial Examiner
found that there was no express threat, the Respondent contends that
the conversation did not contain even an implied threat to sue for
libel or that, absent an express threat, there is no unfair labor practice.
We find no merit in these contentions. We agree with the Trial Ex-
aminer that Taylor impliedly threatened to sue for libel because of
the filing of the charges, or unless they were dropped, and that the
threat, in the context made, constitutes an unfair labor practice. Such
a threat, express or implied, is of a harassing nature. It would nor-
mally tend to intimidate an individual contemplating filing a charge,
from doing so, or one, who has filed a charge, to withdraw it. Accord-
ingly, we agre with the Trial Examiner that such a threat restrains
employees in the exercise of the right to file charges under the Act and
thus is coercive and violative of Section 8(a) (1). By this, we do not
mean to deny the existence of the normal right of all persons to resort
to the civil courts to obtain an adjudication of their claims. We
interdict here only the making of a threat by an employer to resort
to the civil courts as a tactic calculated to restrain employees in the
exercise of rights guaranteed by the Act.
9In Oriole Motor Coach Lines, Inc., tie Washington Suburban Lines, 114 NLRB 808,
809-810, the Board found the general manager of a bus company, as a successor, re-
sponsible to remedy 8(a) (5) and ( 1) unfair labor practices , particularly in view of his
status as prospective purchaser of the business at the time of the unfair labor practices
and his active participation in such unfair labor practices.
10 The above is essentially based on Cutchen 's testimony. Taylor gave a somewhat
different version but, in his testimony , admitted suggesting to Cutchen that the charges
be dropped and stating to Cutchen , after Cutchen had told Taylor that the charges
would not be dropped : "That's a bad thing to do to me after all this time. . . . It's
possible that things like that could leave people open to libel."
CLYDE TAYLOR COMPANY 109
5. The Trial Examiner also found that the Respondent violated
Section 8(a) (1) by obtaining a State court injunction banning peace-
ful picketing resorted to by the Union in protest against the discharges
hereinabove found to be unlawful. In making this finding, the Trial
Examiner reasoned that because of other conduct of the Respondent,
more fully set forth in the Intermediate Report,il his resort to the
State court was part of a bad-faith scheme to defeat union organiza-
tion. Accordingly, the Trial Examiner applied W. T. Carter and
Brother, et al., 90 NLRB 2020, as controlling here.
The Chairman and Members Rodgers, Bean, and Jenkins are of
the opinion that Carter was erroneously decided. They agree with
the view expressed by former Chairman Herzog in his dissenting
opinion in Carter that the Board should accommodate its enforcement
of the Act to the right of all persons to litigate their claims in court,
rather than condemn the exercise of such right as an unfair labor
practice. Accordingly, the Chairman and Members Rodgers, Bean,
and Jenkins hereby overrule Carter, insofar as it held that an em-
ployer violated the Act by obtaining a State court injunction, and
vote to dismiss the allegation that the Respondent violated Section
8(a) (1) by obtaining the State court injunction.
Member Fanning also votes to dismiss this allegation but solely on
the ground that the instant case is distinguishable from Carter. In
the Carter case, the Board found that an employer violated Section
8(a) (1) by obtaining a State court injunction barring the holding of
outdoor union meetings on the employer's property in a company-
owned town, where the employer was motivated by a desire to stop
union organization of its employees rather than by any bona fide
concern to protect the employer's property. In determining the eln-
ployer's motivation, the Board there relied on findings that the em-
ployer also violated Section 8 (a) (1) by : (1) refusing to permit the
holding of the outdoor meetings on company property; (2) causing
peace officers to prevent such meetings; (3) following union organ-
izers when they drove through the streets of the company-owned
town; and (4) using a reporter to take notes at two open union
meetings. In addition thereto, the Board also relied on findings that
the employer violated Section 8(a) (3) and (4) by discharging two
employees and evicting one from a company-owned house. In the
opinion of Member Fanning, these underlying unfair labor practices
are more pervasive than the Respondent's conduct here, relied on by
the Trial Examiner in finding employer bad faith; and the underlying
unfair labor practices in Carter, when contrasted with the conduct in
U This conduct consists essentially of the Respondent 's discrimination against the five
complainants and the threat to sue for libel , referred to above The Trial Examiner
also found that the subject matter of Taylor 's injunction suit was entirely within the
area in which State jurisdiction has been preempted by the National Labor Relations Act
and thus the State court had no jurisdiction to enjoin the picketing.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, bear a closer relationship to the obtaining of injunctive
relief. Even though, as the Trial Examiner found, the State court
had no jurisdiction to enjoin the picketing, Member Fanning is not
persuaded by the record in this case that the Respondent resorted to
the State court for injunctive relief in bad faith, that is, to defeat
union organization of his employees rather than to protect any legiti-
mate interest of his own. For the foregoing reason, Member Fanning
votes to dismiss the allegation that the Respondent violated Section
8(a) (1) by obtaining the State court injunction. In his view, W. T.
Carter is inapplicable here, and therefore the question of overturning
the rule in that case is not reached.
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, Clyde Taylor
d/b/a Clyde Taylor Company, Tallahassee, Florida, his agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Sheet Metal Workers Interna-
tional Association, Local No. 57, AFL-CIO, or in any other labor
organization of his employees, by discharging employees or by failing
and refusing to reinstate or to employ them because of their union
membership or other concerted activities, or by discriminating in any
other manner in regard to hire or tenure of employment, or any term
or condition of employment, to discourage membership in a labor
organization, except as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
(b) Threatening to sue employees because they have filed unfair
labor practice charges, or unless the charges were dropped.
(c) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to
form, join, or assist the aforementioned Union, or any other labor
organization, to bargain collectively through representatives of their
own choosing or to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except to the extent that such
right may be affected by an agreement authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Frank M. Houston, Benjamin F. Riley, Jr., Lyle Fay
Rinkel, H. D. Cutchen, and Billy G. Jones employment and immediate
CLYDE TAYLOR COMPANY 111
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss of pay he may
have suffered by payment to him of a sum of money equal to that
which he normally would have earned as wages from the date of the
discrimination against him (August 8, 1958, for Houston; August
15, 1958, for Riley, Rinke], Cutchen, and Jones) to the date of the
offer of employment or reinstatement, less his net earnings during
said period (Crossett Lumber Company, 8 NLRB 440, 497-498), and
less any sums received under the settlement agreement with Raymond
Diehl Company, said backpay to be computed on a quarterly basis in
the manner established by the Board in F. W. Woodworth Company,
90 NLRB 289;
(b) Post in his office or shop at Tallahassee, Florida, copies of the
notice attached hereto marked "Appendix A." 12 Copies of said
notice, to be furnished by the Regional Director for the Twelfth Re-
gion, shall, after being duly signed by the Respondent or his authorized
representative, be postedby the Respondent immediately upon receipt
thereof and maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the Respondent violated
Section 8 (a) (1) by threatening to file a civil action against the Charg-
ing Parties in the event they testified in this unfair labor practice
proceeding and by obtaining a State court injunction banning
picketing.
13 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to it Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX A
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, I hereby notify my employees that :
I WILL NOT discourage membership in Sheet Metal Workers
International Association, Local No. 57, AFL-CIO, or in any
other labor organization of my employees, by discharging em-
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees or by failing and refusing to reinstate or to employ them
because of their union membership or other concerted activities,
nor will I discriminate in any other manner in regard to hire
or tenure of employment, or any term or condition of employ-
ment, to discourage membership in a labor organization, except
as authorized by Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
I WILL NOT threaten to sue employees because they have filed
unfair labor practice charges or unless the charges be dropped.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to form, join,
or assist said Sheet Metal `Yorkers International Association,
Local No. 57, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing or to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
I WILL offer to Frank M. Houston, Benjamin F. Riley, Jr.,
Lyle Fay Rinkel, H. D. Cutchen, and Billy G. Jones employment
and immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their sen-
iority or other rights and privileges, and make them whose for
any loss of pay they may have suffered as a result of my discrimi-
nation against them.
All my employees are free to become or to remain members of the
abovementioned Union or any other labor organization.
CLYDE TAYLOR, D/B/A CLYDE TAYLOR COMP ANY,
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
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard at Tallahassee, Florida, on March 9-11,
1959, with all parties represented. The complaint, issued on February 16, 1959, by
the General Counsel of the National Labor Relations Board and based on charges
duly filed and served, alleged in substance (as amended) that Respondent had engaged
in unfair labor practices proscribed by Section 8(a) (3) and (1) of the Act by: (1)
discriminatorily discharging Frank M. Houston on August 8, 1958, and Benjamin F.
Riley, Jr., Lyle Fay Rinkel, H. D. Cutchen, and Billy G. Jones on August 15, and
thereafter refusing to employ or to reinstate them; (2) by securing an injunction on
CLYDE TAYLOR COMPANY 113
September 10 against picketing which his employees had resorted to in protest of
Respondent 's unfair labor conduct ; and (3 ) by threatening on February 15, 1959,
to sue the Charging Parties for libel and slander because they had filed the charges
herein and by threatening further to proceed civilly against them in the event they
testified in this proceeding.
Respondent 's answer filed on March 8 , 1959, denied the unfair labor practices, as
alleged, and denied that the discharged employees were his employees . Respondent
also denied that he was a successor to Raymond Diehl Company and denied the
Board 's jurisdiction over his operations.
As litigated at the hearing the principal issues concernd the jurisdictional question,
Respondent 's relations with the Raymond Diehl Company , and whether the dis-
charged employees were his or Diehl's. The remaining issues concerned the alleged
threats in February and the coercive effect of obtaining the injunction against picket-
ing. Respondent made various motions to dismiss the complaint in whole or in part,
all of which were denied except as follows: the Trial Examiner granted ( for lack
of supporting evidence ) the motion to dismiss the portion of the amended complaint
which charged that Respondent had threatened to proceed civilly against the Charging
Parties if they testified against him . Ruling was reserved on motions relating to
jurisdiction and to the injunction question . Those motions are disposed of herein.
We turn immediately to the jurisdiction question , which was litigated at length and
which requires consideration of the relationship between Respondent and the Ray-
mond Diehl Company.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS-JURISDICTION
Raymond Diehl Company , a copartnership composed of Raymond Diehl, Sr.,
and his son , Raymond Diehl, Jr., was engaged in a number of enterprises prior to and
during 1958. Its operations as mechanical contractors included electrical contract-
ing, sheet metal work, pipeline construction , and a plumbing department , and it also
ran a wholesale supply business . Clyde Taylor was superintendent of the sheet metal
department , Tom Dunn of the electrical contracting business , and Joe Russell of the
plumbing department.
In April 1958 , the Diehis decided to go out of the contracting business, and to
that end they began to make plans looking to the eventual transfer of some or all
of the various departments . Big Bend Supply Company, another Diehl partnership,
was formed and began operating around April 1, as successor to the wholesale supply
business , and in May an agreement was reached with Taylor (consummated later)
to take over the operation of the sheet metal business . Similar agreements were
reached later with Russell for the plumbing department and with Dunn for the
electrical contracting business . Though Diehl also got out of the pipeline construc-
tion business , the evidence does not indicate what disposition was made of it.
Gross revenues of the Diehl Company for 1958 were $ 1,012 ,598.43 and total
purchases were $463,799 .60, of which out-of-state purchases accounted for $371,-
039 68 Gross revenues of Big Bend Supply Company for 1958 were $46,685.01 and
total purchases were $85.940 . 53, of which out-of-State purchases accounted for
$77,346.48. If only the operations of the sheet metal shop are considered , Diehl's
extrastate purchases for that department in 1958 aggregated approximately $46,-
379.96 , and Taylor 's purchases from August 18 to December 31, 1958 , received
indirectly from out-of-State sources, totaled $ 13,017 ($ 10,750 of those being from
Big Bend).
It is plain that if Taylor's operations were considered in isolation and if his volume
of business from August through December were projected over a period of a year,
the Board 's present jurisdictional standard ( i.e., $50,000 ) would not be met. It is
just as plain , however, that the operations of the sheet metal department for the
calendar year met that standard ($46,379 96 plus $13,017 ). It is therefore un-
necessary to consider the remainder of Diehl 's business, nor do I find it proper to
do so , since Taylor succeeded only to the sheet metal operations and had no con-
nection with Diehl 's other enterprises
I therefore conclude and find that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers International Association , Local No . 57, AFL-CIO, is a
labor organization within the meaning of the Act.
560940-61-vol. 127-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharges
The issues concerning the alleged discriminatory discharges require consideration
of background events surrounding the original agreement under which Taylor was
to take over from Diehl the operation of the sheet metal department. See section
I, supra. Formulation of the plans began as early as April, and in late April or early
May Taylor began to put on, with Diehl's full knowledge and consent, visible indicia
that the sheet metal business was his. Thus, he had business cards printed in the
name of his company, giving Diehl's location and telephone number, and he inserted
those cards under the flaps of the employees' pay envelopes, which did not otherwise
indicate the employer's name. He also had business stationery printed in the name
of his company and had Diehl's truck repainted with the name Clyde Taylor Com-
pany. All bills for the foregoing were paid with funds advanced by Diehl. Also
beginning in May, the telephone in the sheet metal shop was answered, at Taylor's
direction, in the name of Clyde Taylor Company. In June Taylor also began, with
Diehl's consent, to enter into contracts in his own name which were accepted and
performed by Diehl, and in June or July Taylor opened a bank account in the name
of his business.
Though the consummation of the agreement was originally scheduled to take place
on May 19, it was postponed indefinitely for the sole reason that Taylor refused to
enter into a contract with Local No. 57 of the Sheet Metal Workers Union, which
represented the employees in the sheet metal shop and with which Diehl had previous
contracts. The evidence concerning the attempted negotiations and the strike which
followed is relevant on the question of the motive of the subsequent discharges.
When Taylor refused to negotiate with representatives of Local 57 on Monday
morning, May 19, the employees immediately struck. On Friday the employees
went in to pick up their pay. Frank Houston testified that Taylor called them
separately into his office and directed them to pick up their tools. Houston refused
because he did not consider himself as fired or as quit but as being on strike in pro-
test of Taylor's refusal to negotiate. On May 26, another union committee made a
further unsuccessful attempt to negotiate a contract with Taylor. Lawrence Sawyer,
an employee, testified that following that meeing, Taylor called him on the telephone
and that, upon his affirmance that he was the spokesman for the men, Taylor said, "I
want you to tell them for me to come to the shop and take their tools out. I'm
through fooling with them and I want no further part of them." Sawyer gave the
message to the employees.
Taylor reported to Diehl that as he could not reach an agreement with the men,
he would be unable to go into business at that time Diehl stated that since he had
some jobs to be completed, he saw no alternative but to break their verbal agreement
and himself to negotiate an agreement with the Union. Such an agreement was
negotiated on May 28. Though Taylor was present, he did not participate except
to make it clear that he was there only at Diehl's request and not to sign a contract
with the Union. The contract covered a term from May 29, 1958, to June 30, 1959,
with provision for automatic annual renewal.
Taylor continued as Diehl's superintendent. Diehl testified, however, that he
wanted to get out of the sheet metal business as quickly as he could and that from
May to August, he gave Taylor a free hand in running the sheet metal department
and in working out whatever means he wished to get started in that business.
In the meantime, Frank Houston, who had participated in the attempted negotia-
tions with Taylor and the final negotiations with Diehl, continued to serve as steward
for Local 57. In that capacity he began processing certain grievances concerning
Taylor's alleged hiring of too many apprentices and his use of uniqualified laborers
to do sheet metal work. The first of those arose shortly after the contract was
signed and the other around the first of August. Though Houston dealt with
Diehl's office manager, Tom Corbett, Taylor was fully aware of Houston's activities.
Indeed the latter grievance was made by Lyle Rinkel, who testified that he himself
talked with Taylor about it and that Taylor said in part that, "Frank Houston was
getting too big for his own good in this union business and it looked like he was go-
ing to have to let him go." Taylor's testimony contained no denial of that con-
versation
On August 8, Taylor discharged Houston when paying him off, with the state-
ment, "This catches you up." Taylor testified that Diehl's jobs were coming to an
end between August 1 and 15, that he had more men than he needed, that some
nine men were terminated, and that Houston was terminated for lack of work and.
not because of his membership in the Union.
CLYDE TAYLOR COMPANY 115
Rinkel testified, however , that a few days after Houston 's discharge , he spoke to
Taylor again about how he stood on the layoff list, that Taylor asked whether he
belonged to the Union and when he affirmed that he did, Taylor replied that he was
on the layoff list. Taylor continued by reminding Rinkel of their earlier conversa-
tion when he had said he would let Houston go to "take care of his union," and
that he could have used Houston for 2 or 3 weeks to good advantage. Taylor
showed Rinkel a list of names of persons whom he had contacted and stated that
they would come to work on being called on the telephone. Taylor also informed
Rinkel that he was going to take over the business and asked if Rinkel wanted to
forget the Union and work for him.
Taylor testified to a single conversation with Rinkel in which Rinkel asked how he
stood on the layoff list. He testified that he replied that the work might get to the
point where all the employees might have to go unless other work was obtained.
Taylor admitted referring to his plan to enter business for himself, but denied that
he inquired about Rinkel's union membership or sentiments. He was not questioned
about, and did not deny, any of Rinkel's testimony concerning his references to
Houston. The latter fact, when considered in the light of the entire evidence in
the case, including the events on August 15, now to be summarized, impel the credit-
ing of Rinkel's testimony.
Five witnesses for the General Counsel, including Taylor's foreman, Hubert
Cutchen, gave mutually corroborative testimony concerning the circumstances of
their discharge on August 15, which can be summarized as follows: After speaking
first with Grady Rogers (a new employee hired after Houston's discharge), Taylor
spoke to the employees before they started to work. He told them he had reports
that they did not like it because he had a nonunion man (Rogers) working for him,
that he was taking over the shop on Monday morning, that he was not going to
run a union shop, that anyone who wanted to work for him could do so, but if
they wanted to stick with the Union, they could take their tools and leave and that,
"This union s - - t has got to go."
Some argument ensued between Taylor and an employee named Gleaton, who
threatened to quit on the spot, but Foreman Cutchen smoothed things over, though
Taylor adhered to the "choice" he had given the employees that they either forget
the Union and come to work with him or take their tools with them. Taylor also
stated that he was going to get and was going to keep plenty of work.
At the end of the workday, Taylor inquired of the employees, as he paid them
off, whether they had decided to stay with the Union qr work for him. Those who
indicated adherence to the Union were given two separate pay envelopes i and were
told that they were paid up in full and to get their tools and get out. Rinkel,
Benjamin F. Riley, Jr., Billy G. Jones, and H. D. Cutchen were the four employees
so discharged.
Taylor testified that when he arrived at the shop on the morning of the 15th,
Rogers reported that he had been "cornered" the previous night by some of the em-
ployees who told him his best choice was to get out of town and who "left the impres-
sion" they would put sugar in his gas tank. Taylor referred to Rogers when he
talked with the other employees, and told them he intended to run an open shop
under the fifth amendment to the Florida constitution; that a closed shop was
against the law in Florida to the best of his knowledge; that he would run an open
shop; and that those who wanted to work with him under those conditions could do
so. He denied having stated that the employees would have to get out of the Union
to work for him, but testified he said, "This union shop has got to go." [Emphasis
supplied.] Taylor testified that a union shop meant to him that under an agree-
ment with a union an employer was required to have a certain ratio of mechanics
and apprentices which varies according to the locality, and that according to his
understanding nonunion men do not work in a union shop?
Rogers was not called as a witness, his whereabouts being unknown. The Gen-
eral Counsel's witnesses denied making the threats which Rogers had allegedly re-
ported to Taylor. They testified that though they had talked with Rogers about
joining the Union, he demurred because Taylor had hired him with the understand-
ing he was nonunion.
1 One covered the full workweek ending on Wednesday and the other 2 days' pay for
Thursday and Friday work
2 The evidence showed not only that Diehl's contract did not contain a union-shop
clause, but that two nonunion employees worked for Diehl on sheet metal work. The
evidence also established that a number of Diehl's employees had been hired without
referral from the Union.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent attempted to corroborate Taylor by the testimony of Arlin V.
Maynard, but it developed that Maynard was busy answering the telephone most
of the time and could neither see nor hear what was going on. Indeed , Maynard
admitted on cross-examination that the telephone was "ringing continuously that
morning" and that he was "shuttling back and forth." Maynard testified , however,
that from the "little bit he could catch," Taylor told .the employees he was going to
have an open shop and that he did not hear Taylor state that the employees would
have to leave the Union if they were going to work for the Clyde Taylor Company.
Of prime consideration in resolving the foregoing credibility question is the fact
that the testimony of the General Counsel's witnesses was mutually corroborative,
while Maynard's testimony is without weight or value as corroborative of Taylor.
Furthermore, Rinkel's credited testimony concerning his previous conversations with
Taylor showed that Taylor was committed to making the dropping of union mem-
bership a condition to working for him. Taylor's testimony cannot, therefore, be
credited where it conflicts with the testimony of the General Counsel's witnesses.
The evidence thus made out a simple and classic case of an employer who was
firmly and openly committed to requiring , as a condition of employment, that em-
ployees renounce their union membership . Indeed, that Taylor's disposition was to
defeat by any means efforts by employees to engage in collective bargaining and
other concerted activities was manifest both from preceding events (May 19 to 26-
threats to discharge employees who were on strike ) and subsequent events (see
sections B and C, infra). For the moment , however, it suffices to find that Taylor's
discharge of Houston on August 8,3 and of the other four employees on August 15,
was plainly and literally discrimination proscribed by Section 8(a)(3) of the Act
unless the evidence supports the defense that no employment relationship existed
between Taylor and the dischargees , based on contentions that there was a formal
and final transfer of the business on August 18, that the employees were Diehl's on
August 15, and that they did not report for work on or after August 18.
Respondent 's defense can be summarily rejected even if his basic premises were
to be accepted. Thus, the evidence concerning Taylor's relationship to Diehl and
the employees prior to August 18 established that Taylor himself qualified as an
"employer" within the statutory definition (Section 2(2) ), i.e., "any person acting
as an agent of an employer, directly or indirectly." Indeed, Taylor was much more
than an ordinary agent for, from sometime in May, Diehl had given him a free
hand to run the business as if it were his own. Taylor was therefore responsible as
an employer for the discriminatory discharges which he had made and is responsible
for remedying them. Nor would Taylor Abe absolved if it were assumed on a purely
legalistic basis, that the employees were only Diehl's on August 15, for it was plain
that at the time of the discharges , Taylor was dealing with them as applicants or as
prospective employees of his own and that he denied them employment with him
because they refused to renounce the Union. Phelps Dodge Corp. v. N.L.R B., 313
U.S. 177, 182-187; N.L.R.B. v. Hearst Publications, 322 U.S. 111, 128-131; N.L.R.B.
v. George D. Auchter Company, et al., 209 F. 2d 272, 277 (C.A. 5).
The foregoing conclusions render immaterial evidence concerning Taylor's running
of the business after August 18 and the relationships between him, Diehl, and the
employees Indeed, Respondent relies on it only to support his claim that he was
the employer beginning August 18. Actually, the only sound conclusion which can
be drawn from that evidence, which is briefly summarized in the footnote,4 is that
Taylor and Diehl were joint employers down to November 12, a fact which Diehl
implicitly acknowledged by entering into a settlement agreement with the Regional
3 Rinkel's credited testimony established that Houston was discharged because of his
union activities and not because of lack of work as Taylor testified Taylor 's statements
to the other dischargees on August 15 confirmed that conclusion
+A lease covering Diehl's building and equipment was entered into on August 1, to
take effect on August 18, and on that date Taylor took possession under the lease and
formally assumed the proprietorship . However , Diehl continued to carry on his payroll
as his employees both Taylor and the sheet metal employees and continued to make re-
ports on them as his employees to governmental agencies and for insuronoe purposes
Diehl also paid all social security and withholding taxes and workmen 's and unemploy-
ment compensation . The payroll work, the bookkeeping , and the preparation of the
above reports was handled by Diehl's office as before . All moneys paid by Diehl as afore-
said, including Taylor's salary, were charged to Taylor on Diehl's books, and monthly
statements were rendered and monthly settlements or adjustments were made.
Taylor completed , as Diehl's superintendent, such of Diehl 's contracts as were un-
finished on August 18 (which had been bid originally in Taylor 's name ), using the same
employees who worked on his own jobs, but with an allocation of their wages Until
CLYDE TAYLOR COMPANY 117
Director on February 24, 1959, and which provided in part for payment of a portion
of the back wages due some of the discriminatees herein. But whether Taylor was
the employer, whether he and Diehl were joint employers, or whether the former
relationship be considered as continuing , the result is unchanged; Taylor was an
employer of the discharged employees and is responsible for remedying the unfair
labor practices which he committed.
B. Interference, restraint, and coercion
1. The threatened libel suit
H. D. Cutchen testified that on February 21, 1959, he met Taylor while picking
up mail at the post office and that Taylor asked whether he had signed the charges
against him. When Cutchen affirmed that he had, Taylor said that Cutchen should
not have done so, that "we had caused him public embarrassment, and he had lost
a lot of money and he was looking to get some of his money back, and we were
opening ourselves wide open to a libel suit. .. . Taylor concluded by asking
Cutchen "to talk to some of the other boys and try to get them to drop it." Cutchen
agreed to do so, but suggested that his father (Hubert) would probably have more
effect on them. Cutchen later reported both to his father and to Riley (one of the
Charging Parties) his conversation with Taylor. On cross-examination Cutchen tes-
tified that he told Taylor he would not drop the charges but would let them ride and
see what happened, and that Taylor said nothing about what he would do if
Cutchen testified in this proceeding. Riley confirmed Cutchen's report of the matter
to him, and testified that he was so concerned about avoiding a libel suit that he
feared to sign the settlement agreement as to Diehl.
Taylor admitted having a conversation with Cutchen at the time and place which
Cutchen fixed and that it concerned the charges. He admitted asking if Cutchen had
"signed a complaint" against him, asking why he had done so, and telling Cutchen
he should not have done it. Taylor also admitted that he suggested that Cutchen
"could drop," or that "he ought to drop," the charges, and that when Cutchen
stated he would let them stand, he concluded the conversation by stating, "That's
a bad thing to do to me after all this time.. . iIt's possible that things like that
could leave people open to libel." [Emphasis supplied.] Taylor denied that he
asked Cutchen to talk to the others about dropping the charges, but testified that he
might have said, "You fellows shouldn't have done that."
Taylor's testimony thus substantially corroborated Cutchen's, the main difference
being that under Taylor's version the implied threat of a libel suit was more heavily
veiled. However, Cutchen's testimony of a more explicit phrasing of the threat
was wholly in keeping with Taylor's earlier actions and statements surrounding the
discriminatory discharges. Indeed, Taylor's entire course of conduct as disclosed
herein showed that his disposition and intent was, at all times since May 19, to
defeat at all hazards attempts by his employees to engage in protected concerted
activity.
Cutchen's testimony is therefore credited. Though it showed no express threat to
sue for libel, the threat was plainly implied and was at best thinly veiled. But
threats are not less coercive because expressed in veiled or indirect terms. "When
statements such as these are made by one who is a part of the company manage-
ment, and who has the power to change prophecies into realities, such statements,
whether couched in language of probability or certainty, tend to impede and coerce
employees in their right of self-organization, and therefore constitute unfair labor
practices." N.L.R.B. v. W. C. Nabors, d/b/a W. C Nabors Co., 196 F. 2d 272,
276 (C.A. 5). And see Sunnyland Packing Company, 106 NLRB 457, 461 (enfd.
211 F. 2d 923 (C.A. 5) ), where the point is more fully covered.
It is therefore concluded and found that by threatening to sue the Charging Parties
on February 21, 1959, because they had filed the charges, or unless they dropped
the charges, Respondent engaged in interference, restraint, and coercion proscribed
by Section 8 (a)( 1 ).
2. The picketing ; the State court injunction
Beginning late in August some six of the employees picketed Taylor's jobs in
protest of the discriminatory discharges . The picket sign bore the legend "METAL
expiration of Diehl's business licenses in October, Taylor operated under those licenses
without obtaining new ones for his own business.
The foregoing arrangements between Diehl and Taylor continued until November 12.
Since then the sheet metal business has been operated solely as Taylor's enterprise ; he
is no longer indebted to Diehl, and Diehl has no interest in the business save as lessor.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WORKERS DENIED CONSTITUTIONAL RIGHTS. CLYDE TAYLOR
COMPANY."
On September 23 Respondent applied to the circuit court of Leon County, without
notice, for the entry of a temporary restraining order against Local 57 from picket-
ing certain construction projects on which Respondent was performing sheet metal
work as a subcontractor . The complaint , which also sought a permanent injunction,
contained the following allegations , which are set forth in full because of their
relevance to the question of the jurisdiction of the court:
III.
Defendant unions have never sought to negotiate with the Plaintiff as the
representative of Plaintiff's employees, in fact, said unions do not represent the
vast majority of the Plaintiff's employees, if any at all. No labor controversies
exist, nor have negotiations in relation to any labor dispute ever been instituted,
inaugurated, or carried on between the Plaintiff and the alleged unions. The
said unions have never been authorized by the majority of Plaintiff's employees
to represent them, nor have any of the employees authorized said unions to
represent them as far as is known to your Plaintiff.
IV.
The Plaintiff has never refused to recognize the Defendant unions, and has
never refused to negotiate with said unions. Said unions have never established
that the employees of your Plaintiff have chosen them as their representatives,
nor have the unions informed your Plaintiff of any object to be accomplished
by the picketing. The Plaintiff has never been requested by said unions to
negotiate with them, and has never been advised by the unions that the unions
are the bargaining agents for his employees, nor has Plaintiff been advised by
said unions that they are the labor organizations representing Plaintiff's em-
ployees. In truth and in fact, no demand or grievance of any nature whatsoever
of the Plaintiff's employees has, to the present time, been made of or placed
before the Plaintiff. There is no labor dispute between Plaintiff and the De-
fendant unions; there has been no denial of any constitutional rights by the
Plaintiff to any of his employees.
The complaint alleged further that the pickets carried a sign or poster which
falsely and fraudulently alleged that Taylor had denied certain constitutional rights
to metal workers (see legend above) and that:
Such representations in said posters are false and untrue, and were known by
the Defendants to be false and untrue. Said statements are made for the
purpose of deceiving the public. The picket lines were placed on said jobs for
an unlawful and illegal purpose, and in placing said picket lines around said
jobs, Defendants well knew that union employees of other sub-contractors of
the general contractors would not work on said jobs while said unlawful picket
was present, and that said union employees of other sub-contractors of said
general contractors would cease and terminate their work. When the pickets
appeared at the jobs mentioned above, there was a strike, walk-out or cessation
of work by union employees of other sub-contractors on said jobs. With such
a work stoppage, work of other sub-contractors necessary to be performed in
order for your Plaintiff's work to progress, terminated, all to the injury of your
Plaintiff.
The court entered a temporary injunction, enjoining Local 57, "its officers, agents,
servants, employees, successors in office, members and representatives . and all
persons combining or conspiring with them," from picketing Taylor's jobs referred
to in the complaint. On December 28, after a hearing, the court announced its
findings orally in favor of the plaintiff and ordered that the injunction be made
permanent. The final decree was entered on March 20, 1959 (after a further
hearing on the Union's petition for rehearing), granting a permanent injunction
against the Union, but eliminating its "members" from the scope of the decree.
The findings of the court were contained in part in a written opinion issued contem-
poraneously. So far as material to the present issues, the court found that the
picketing was peaceful, and no violence occurred or was threatened at or around
the places of picketing; 5 and that though the court had jurisdiction over the parties
6 Neither did Respondent 's evidence in the present proceeding establish that the Union
or the pickets engaged in violence in the area of the picketing . Stanley J. Hickey
testified that while he was working for Taylor on the school of education job during the
CLYDE TAYLOR COMPANY 119
and the subject matter, it had not acquired jurisdiction of the individual members
of the Union, and that the injunction should not have extended to them.
Concluding Findings
The sole question presented here is whether the obtaining of the State court in-
junction, under all the circumstances shown by the present record, constituted interfer-
ence with, restraint, or coercion of employees in the exercise of rights which are guar-
anteed by Section 7 of NLRA. We start with the court's acknowledgment that it
was without jurisdiction of the individual union members, who remained, never-
theless, under the proscriptions of the injunction for roughly 6 months. It was also
plain that the subject matter of Taylor's injunction was entirely within the area in
which State jurisdiction has been wholly preempted by NLRA.
It is unnecessary to make a complete review of the once confusing line of pre-
emption cases which emanated from the Supreme Court since Joseph Garner, et al.,
t/a Central Storage and Transfer Company v. Teamsters, Chauffeurs, etc., Local
Union No. 776, 346 U.S. 485, since the cases noted below definitively established
that the Florida court was without jurisdiction. We begin with Lloyd Weber, et al. v.
Anheuser-Busch, Inc., 348 U.S. 468, 481, where the Court, after summarizing its
prior holdings in this field and after acknowledging that State courts had faced a
problem, set up the following rule for their guidance in determining whether State
jurisdiction existed:
Where the moving party itself alleges unfair labor practices, where the facts
reasonably bring the controversy within the sections prohibiting these practices,
and where the conduct, if not prohibited by the federal Act, may be reasonably
deemed to come within the protection afforded by that Act, the state court
must decline jurisdiction in deference to the tribunal [NLRB] which Congress
has selected for determining such issues in the first instance.6
Taylor's petition was to be measured against that rule, since its allegations formed
the sole basis for the entry of the preliminary injunction. Although the petition did
not charge the Union with specific violations of NLRA, it charged in essence that
there was picketing by a minority union which induced employees of other em-
ployers to engage in strikes and work stoppages with the object and the result of
causing economic injury to Respondent's business. Conduct of that type has con-
ventionally formed the basis of Board holdings that Section 8(b) (4) and/or 8(b)
(1) (A) were violated.
As the allegations brought the case within the prohibitions of NLRA, the State
court was required, pursuant to the Weber rule, to decline jurisdiction. Indeed,
in Hotel Union v. Sax Enterprises, Inc., 358 U.S. 270, 271, where the allegations
were substantially identical with Taylor's,7 the Court summarily reversed the Florida
Supreme Court's affirmance of an injunction against picketing, stating:
picketing, the carpenters ordered him off the job and then escorted him out past the
picket line and told him not to return because he was interfering with their work.
Hickey testified that the carpenters were not Taylor's employees and that the picket,
whom he recognized as a former employee of the Diehl Company, said nothing to him.
Respondent also offered testimony by J. D. Lewis concerning a visit to his home by
Frank Houston and two nonemployees of Taylor during which attempted intimidation
was claimed As this incident did not occur in the area of picketing and as Respondent's
counsel was unable to suggest any relevancy except as to the probative weight to be
given the testimony of other witnesses concerning the picketing, the testimony was
rejected
6 See Amalgamated Clothing Workers v LaVigne, Inc., 43 LRRM 2516, 2518, where a
Florida Court of Appeals correctly applied that rule in reversing an injunction against
peaceful picketing
See also the most recent pronouncement of the Supreme Court, San Diego Building
Trades Council v. J. S. Carman, et al., 359 U.S 236, decided April 20, 1959, where the
Court repeated and emphasized its rule, stating that, "When it is clear or may fairly be
assumed that the activities which a State purports to regulate are protected by Section 7
of the Taft-Hartley Act, or constitute an unfair labor practice under Section 18, due re-
gard for the federal enactment requires that state jurisdiction must yield." The Court
continued that even where it is not clear whether the particular activity is governed by
Section 7 or Section 8, but is arguably subject to them, "the States as well as the federal
courts must defer to the exclusive competence of the National Labor Relations Board,"
which is the primary tribunal for adjudicating such issues.
?Taylor's petition carefully tracked most of the allegations in the Sam case. Compare
the quoted portions, supra, with those which are set out in Sam Enterprises, Inc. v.
Hotel Union, 80 So. 2d 602, 604-605.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Florida courts were without jurisdiction to enjoin this organizational
picketing, whether it was activity protected by Section 7 of the National Labor
Relations Act, as amended, 29 U.S.C. Section 157, Hill v. Florida ex rel,
Watson, 325 U.S. 538, or prohibited by Section 8(b)(4) of the Act, 29 U.S.C.
Section 158(b)(4), Garner v. Teamsters Union, 346 U.S. 485. See Weber v.
Anheuser-Busch, Inc., 348 U.S. 468, at 481. This follows even though the
National Labor Relations Board refused to take jurisdiction, Amalgamated
Meat Cutters v. Fairlawn Meats, 353 U.S. 20. [Emphasis supplied.]
The Court observed that the record there did not disclose violence sufficient to
give the State jurisdiction under United Automobile Workers v. Wisconsin Board,
351 U.S. 266, pointing out that in none of the Florida cases did the trial courts make
any finding of violence, and that in some of them an affirmative finding of no
violence was made (as is the case here).
We turn then to the question whether the obtaining of an injunction which the
State court was without jurisdiction to issue constituted, under the facts in this case,
an unfair labor practice under Section 8 (a) (1) of the Act.
In W. T. Carter and Brother, et al., 90 NLRB 2020, the Board found such a
violation where the obtaining of the injunction against the holding of union meet-
ings was pursuant to the employer's policy of complete exclusion of organizational
activity and was motivated by its desire to prevent the organization of its employees
rather than by any bona fide concern to protect its property. The Board pointed
out that the right to resort to the Courts is no absolute but is limited, for example,
by the law of malicious prosecution and the wrongful initiation of civil proceedings,
and that the law establishes the principle that there is an abuse of process where
process is invoked in bad faith. The Board did not consider the question of the
State court's jurisdiction and, seemingly, assumed its existence.
Though there are apparently no subsequent Board decisions which have followed
Carter, there is none which has overruled it.8 Speculation on the continued vitality
of Board precedents is a luxury which is denied to Trial Examiners, even where the
courts have expressed disagreement with Board holdings. Insurance Agents Inter-
national Union, AFL-CIO (The Prudential Insurance Company of America, 119
NLRB 768; Novak Logging Company, 119 NLRB 1573; Scherrer and Davissan Log-
ging Company, 119 NLRB 1587. Aside from that, there is substantial evidence of
recognition that Carter exists as a precedent.
Initially, it was the subject of a case note in 64 Harvard Law Review 507, where it
was considered to be a proper and practical (though unprecedented) solution of the
problem of what the Board can do to preserve the rights guaranteed by the Act where
a State court injunction interferes with those rights. Much more significant, how-
ever, was the Supreme Court's citation of the case in Amalgamated Clothing Work-
ers of America v. Richman Brothers Co., 348 U.S. 511, 520, as an example of the
Board's power, under appropriate circumstances, to condemn as an unfair labor
practice an employer's resort to a State court in relation to conduct which is obvi-
ously within the present Act and outside the bounds of State relief. Indeed, as the
Court noted, the Board's brief as amicus curiae (February 1955) acknowledged the
Carter holding, but argued that it was limited to situations in which the employer's
resort to the State court is part of a bad-faith scheme to defeat union organization
and the underlying union conduct which has been enjoined is protected by the
present Act.
Does the evidence here bring the present case within the Carter holding? The fol-
lowing brief recapitulation of Taylor's conduct showed that from May until after
the issuance of the complaint herein, Taylor's disposition and intent was to defeat
at all hazards and by any means the efforts of his employees to engage in protected
concerted activities for their mutual aid and protection:
May-Reneged on agreement to take over sheet metal shop solely because of
unwillingless to continue recognition of, and to contract with, Union which repre-
sented Diehl's employees.
May-Made two attempts to discharge employees who were on strike in protest
of Taylor's refusal to negotiate.
August-Discriminatorily discharged Frank M. Houston because of his repre-
sentation of fellow employees in grievance matters.
s Pexas Foundries, Inc, 101 NLRB 1642, 1689, distinguished Carter in part on the
ground that the principal basis on which the petition there under consideration was
predicated, I e , the employment of coercive tactics in conjunction with the strike activities,
was found by the court (of component jurisdiction) to be fully substantiated
CLYDE TAYLOR COMPANY 121
August-Informed Rinkel that he was on layoff list because of his union member-
ship and that Rinkel should renounce the Union if he wanted to work for Taylor.
August-Discriminatorily discharged employees on August 15 and conditioned
their further employment with him on their renunciation of union membership.
September-Resorted to State court action to enjoin peaceful picketing by his
employees in protest of their discriminatory discharges.
February-Threatened a libel suit to force employees to withdraw their unfair
labor practice charges.
Here as in Carter the obtaining of the injunction fitted inextricably into the pattern
of the employer's conduct, which was plainly designed to exclude and to put a com-
plete stop to all forms of concerted activity among his employees. Here, also, the
record showed no legitimate business which would be paramount to the employees'
guaranteed rights (see Sections 7 and 13) to engage in such activity. Or assuming
that the employees were engaged in the type of conduct alleged in Taylor's petition
and that Taylor was entitled to protection from it, ready relief was available from
the 'Board under Sections 8(b),(4) and 10(1). In any case, there was no other
tribunal with jurisdiction to adjudicate the issues. San Diego Building Trades v.
J. S. Garnion, et al., supra, footnote 6.
The entire circumstances thus impel the conclusion that Taylor's resort to court
action to prevent picketing by his employees, no less than his other conduct sum-
marized above, was for the purpose of preventing his employees from exercising
the rights guaranteed to them under the Act, 'rather than for the purpose of advancing
any legitimate interest of his own. It is so found.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices. I shall
recommend that he cease and desist therefrom and that he take certain affirmative
action of the type conventionally ordered in such cases which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act.
For reasons which are stated in W. T. Carter and Brother, et al., 90 NLRB
2020, 2026, I shall recommend that Respondent make appropriate motions to the
State courts to vacate the injunction which he obtained against the picketing herein 9
For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61,
and cases there cited, I shall recommend a broad cease and desist order.
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. Sheet Metal Workers International Association, Local No. 57, AFL-CIO, is a
labor organization within the meaning of the Act.
2. By discharging Frank M. Houston on August 8, 1958, and Benjamin F. Riley,
Jr., Lyle Fay Rinkel, H. D. Cutchen, and Billy G. Jones on August 15, 1958, and
by thereafter failing and refusing to reinstate or to employ them because of their
union membership and activities, Respondent engaged in discrimination to discourage
membership in a labor organization and thereby engaged in unfair labor practices
proscribed by Section 8(a) (3) and (1) of the Act.
3. By threatening on February 21, 1959, to sue the charging parties for libel
because they had filed the unfair labor practice charges against him or unless the
charges were dropped, and by proceeding in the State court to secure an injunction
against picketing engaged in by his employees, Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in Section 7 of the Act
and thereby engaged in unfair labor practices proscribed by Section 8(a) (1).
4. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondent's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommendations omitted from publication.]
O The final decree, though eliminating union members as such, made no reference to
Carter's employees, who were shown by the present record to have engaged in the picket-
ing and who are entitled to be wholly freed from the restraints of the injunction, both as
to themselves and as to their Union which supported them in their protected concerted
activity.