Scherer & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1442 (N.L.R.B. 1964)

1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No.
TL 6-1782, if they have any question concerning this notice or compliance with
its provisions.
Scherer & Sons, Inc. and Local No. 415, International Ladies'
Garment Workers' Union, AFL-CIO. Case No. 12-CA-1634.
June 30, 1964
DECISION AND ORDER
On December 27, 1962, Trial Examiner Thomas N. Kessel 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 it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices, and recom-
mended that the allegations of the complaint pertaining thereto be
dismissed. Thereafter, the General Counsel and the Respondent filed
exceptions to the Intermediate Report together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.'
The Trial Examiner found that the action taken by the employees to
restrain the picketing at the Respondent's plant was concerted activity
within the purview of Section 7 of the Act, and that the Respondent
unlawfully interfered with this protected concerted activity in viola-
tion of Section 8(a) (1) of the Act. More specifically, the Trial Ex-
aminer pointed to the signing of the authorization of power to Nellie
Kitchens to obtain counsel to remove the picket line and the signing
of the complaint to restrain the Union, as the protected concerted
activity unlawfully interfered with by the Respondent. In his ex-
ceptions and supporting argument, the General Counsel contends,
however, that inasmuch as the above-described activities were inspired
and directed by the Respondent, they are employer activity rather
than protected concerted employee activity within the meaning of
i The Respondent's request for oral argument before the Board is hereby denied as the
record, the exceptions , and the briefs adequately present the issues and positions of the
parties.
147 NLRB No. 128.
SCHERER & SONS, INC. 1443
Section 7 of the Act, and, as the employees herein were afforded by
Section 7 the right to refrain from participating in all activities di-
rected toward the removal of the picket line, it was this right to refrain
from such activities with which the Respondent unlawfully interfered
by sponsoring the employee petition in violation of Section 8(a) (1).
We find merit in the position taken by the General Counsel.
Section 7 guarantees to employees the right to decide to engage in
or refrain from engaging in activities for their mutual aid or protec-
tion? Here, however, as fully set forth by the Trial Examiner, the
employees' right to refrain from engaging in activities directed against
the Union was interfered with, for employees were encouraged, and
in some instances directly ordered, by the Respondent to participate in
activity designed to restrain the Union's picketing. We find, as con-
tended by the General Counsel, that the Respondent, by its interference
with the rights of its employees, violated Section 7 of the Act 3
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner with the modifications noted below,4
and orders that the Respondent, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order as modified.
1. Delete paragraph 1(a) of the Recommended Order and substitute
therefor, as paragraph 1(a) , the following :
"Ordering, encouraging, or otherwise inducing its employees to
restrain Local No. 415, International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organization, from peacefully
engaging in lawful picketing at the premises of Scherer & Sons, Inc."
2 Section 7, in pertinent part, provides:
Employees shall have the right to self -organization , to form , join, or assist labor
organizations , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , and shall also have the right to refrain from any
or all of such activities ... .
3In this regard , we note that the Trial Examiner also concluded , at one point in his
Intermediate Report, that the Respondent did interfere with its employees ' "freedom to
exercise their statutory right of refusal."
* The notice attached to the Intermediate Report shall also be modified by substituting
for the first paragraph therein , the following paragraph:
WE WILL NOT order , encourage , or otherwise Induce our employees to restrain
Local No. 415, International Ladies' Garment Workers' Union,* AFL-CIO, or any
other labor organization , from peacefully engaging in lawful picketing at our premises.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed September 16, 1960, by Local No . 415, International Ladies'
Garment Workers ' Union, AFL-CIO , herein called the Union , against Scherer &
Sons, Inc ., herein called the Respondent, the General Counsel of the National Labor
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board, herein called the Board, by the Regional Director for the Twelfth
Region issued his complaint dated May 5, 1961, alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. The complaint was subsequently
amended at the hearing. The Respondent's answer to the complaint and its amend-
ments denies the allegation'of statutory violation therein. Copies of the complaint,
the charge, and a notice of hearing Were duly served upon the parties. Pursuant to
said notice a hearing was opened before Trial Examiner Thomas N. Kessel at Miami,
Florida, on June 20, 1961. On June 21 the hearing was adjourned to permit en-
forcement of subpenas by the General Counsel. After a lapse of more than a year
the hearing was resumed on August 27 and closed on August 28, 1962. All parties,
were represented at the hearing by counsel. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence was afforded all parties.
After the close of the hearing the parties filed briefs which have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. PERTINENT COMMERCE FACTS
The Respondent is a Florida corporation engaged in Miami, Florida, in the manu-
facture of belts, buttons, and notions used as accessories on outer garments produced
by garment manufacturers. The Respondent also performs certain services for these
manufacturers such as bias cutting. The Respondent stipulated that in 1959 it per-
formed services valued in excess of $50,000 for the customer firms listed by the
General Counsel in his amendment to the complaint. The Respondent would not,
however, stipulate that each of these firms annually distributes goods valued in excess
of $50,000 from its place of business in Florida to points outside the State. It
cannot, therefore, be determined from the foregoing that the Board's indirect out-
flow standard for the assertion of jurisdiction has been met, for this standard, as
declared in Jonesboro Grain Drying Cooperative, 110 NLRB 481, and Siemons Mail-
ing Service, 122 NLRB 81, requires proof that the nonretail enterprise over which the-
Board's jurisdiction is claimed has an annual indirect outflow of at least $50,000 of
goods or services to customers who themselves meet the Board's standards for asser-
tion of jurisdiction over them. See also New Jersey Poultry & Egg Cooperative
Association, Inc., 114 NLRB 536. The Respondent's refusal to stipulate that its-
customers listed in the complaint annually distributed across State lines goods valued
at more than $50,000 precludes findings that each of these customers is an enterprise
over which the Board would assert jurisdiction.
There is, however, proof in the record which shows that the Board's standard for
assertion of jurisdiction over the Respondent's operations has been met. Thus,
credited testimony reveals that during a relevant period each of the following Miami
firms with which the Respondent did business had annual out-of-State sales and
shipments from its place of business in Miami in amounts exceeding $50,000• Phyllis
Dee, Inc., Daisy's Originals, Inc., Melwrne Garment Co., Inc., Shayne of Miami,
Inc., Alix of Miami, Dorothy Lee, Inc., Janet Juniors of Miami, Inc., Serbin, Inc.,
and Harmony Fashions of Miami, Inc. The Respondent also stipulated that another
firm in the same category, Bennett Fashions, Inc., had out-of-State sales and ship-
ments in 1959 in an amount exceeding $50,000. Each of these customers is an
enterprise over which the Board would assert jurisdiction. The credited testimony
further shows that in 1959 the Respondent's sales and services to Phyllis Dee, Inc.,
amounted to $11,721; to Daisy's Originals, Inc., $699; to Melwine Garment Co., Inc.
in fiscal year November 1, 1958, to October 31, 1959, $7,169; to Shayne of Miami,
Inc., for fiscal year December 1, 1958, to November 30, 1959, $4,527; to Alix of
Miami for fiscal year February -1, 1959, to January 31, 1960, $334; to Dorothy Lee,
Inc., in 1959, $3,530; to Janet Juniors of Miami, Inc., in 1959, $210; to Serbin, Inc., in
1959, $33,199; and to Harmony Fashions of Miami, Inc., in 1959, $3,782. The Re-
spondent stipulated that its sales to Bennett Fashions, Inc., in 1959 were $29,790. The
sum of these sales and services is $94,961. From the foregoing I find that the Board's
Jonesboro and Siemons Mailing standards have been met and that the Act's purposes
will be effectuated by the Board's assertion of jurisdiction in this case over the Re-
spondent's operations.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits that the Union is a labor organization within the meaning.
of the Act.
SCHERER & SONS, INC. 1445
M. THE UNFAIR LABOR PRACTICES
On or about March 26, 1960, the Union placed pickets in front of the Respondent's
premises who picketed for several days thereafter until they were restrained by an
injunction issued by the Circuit Court of-the•llth Judicial Circuit in and for Dade
County, Florida. The plaintiffs designated in the complaint filed with the court
in the injunction proceeding were 48 persons employed by the Respondent com-
prising all but 1 of its total work force. The General Counsel contends in the
instant proceeding that the Respondent violated Section 8(a)(1) of the Act by in-
stigating and supporting, financially and otherwise, the concerted action of its em-
ployees in the procurement at the Respondent' s expense of the services of the law
firm, herein called the Marchant firm, to conduct the injunction proceeding, by
ordering its employees to sign the complaint filed in the injunction proceeding, by
instigating and supporting the filing of the said complaint, and by interrogating its
employees concerning their union membership, sympathies, and activities in con-
nection with the preparation of the said complaint. The General Counsel maintains
that the real party in interest in the injunction proceeding is the Respondent; that it
utilized its employees as a dummy or front in that proceeding and in the course
thereof infringed their rights guaranteed by Section 7 of the Act. All this is denied
'by the Respondent. The Respondent also relies on the Board's decision in Clyde
Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103, as precedent for dismissal
of the complaint.
It is undisputed that the Union did not at times material represent any of the Re-
spondent's employees and that the Respondent had no contractual relations for its
employees with the Union or any other labor organization. The Union represented
through its counsel at the hearing that it had picketed only for informational purposes
and had not attempted to organize the Respondent's employees or to solicit their
membership. Before the picketing began the Union sent a letter to the Respondent
dated March 23, 1960 , stating unequivocally that the picketing which was contem-
plated was not intended for organizational or recognitional purposes but was to be
only informational. No appeals were made to the employees by the pickets or
by signs they carried which stated merely: "Scherer & Sons doing work on union gar-
ments without union contract, I.L.G.W.U., Local 415, AFL-CIO." The picketing
was peaceful, no one was molested in any way or prevented from entering the Re-
spondent's premises , and no employees were deterred from working.
Nellie Kitchens, presently employed by the Respondent as an acting floorlady, has
worked for the Respondent for about 8 to 10 years. In March 1960 she had
been employed as a rank-and-file employee, albeit she was regarded by the Respond-
ent as one of its abler and more reliable employees. Kitchens played a dominant
role in the activities which led to the procurement of counsel for the injunction
proceeding and the signing of the complaint by the employees to initiate that pro-
ceeding. The General Counsel contends that in the conduct of these activities she
was the Respondent's agent.
Concerning the events which culminated in the Union's restraint by the State
court the record shows that after the picketing started a meeting of Respondent's
employees was held on its premises , during working hours, with the knowledge of
its president, Joseph Soberer. The latter had -deposed on July 11, 1960, in the in-
junction proceeding, that he had attended the meeting and responded to the inquiry
of employees that the purpose of the Union's picketing was to "get us to join the
Union" and that by "us" he meant "the girls" who worked for the Respondent.
Kitchens testified that there was such a meeting of all employees to discuss the picket-
ing and that the meeting resulted from the proposal of a group of employees to see
what could be done about the picketing. She denied securing Scherer's permission
to hold the meeting. She insisted that she did not summon.the employees to the
meeting but that they came of their own accord. While some of the employees were
hourly paid none had pay deducted for time spent at the meeting. Nor were they
reprimanded for leaving their work to attend the meeting. Kitchens testified that
Scherer did not attend. I find he did as he admitted in his deposition on July 11,
1960, which I regard as more reliable than Kitchens' memory at the hearing before
me on August 28, .1962. .
According to Kitchens the employees agreed at the aforementioned meeting to
obtain legal services to stop the picketing. , She related that after the meeting she
went to the Respondent's office and had one of the office girls call Attorney Perkins
of the Marchant firm to arrange for his services . Either before this call.was placed
or directly afterward Kitchens prepared a document in the nature 'of a power of
attorney for signature by the employees authorizing her in their behalf to secure
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a lawyer to start legal proceedings to "get rid of the pickets." 1 She related that
after she had written the authorization at the desk of one of the Respondent's office
girls she circulated it among the employees who signed it at their places of work.
She claimed she did not ask permission from Scherer to circulate the document among
the employees and that she did not tell him that this was being done . She assumed,
however, that the Scherer brothers knew that the power of attorney was being signed
by the employees because no attempt was made to hide this fact from them and they
were continually entering the plant from the office.
After Kitchens' call was received by the Marchant firm, Attorney Perkins directed
Attorney Schenerlein of the firm to handle the matter. Schenerlein is not certain
whether he went to the plant the day of Kitchens' call or the next day, or whether
she saw him at his office before he went to the plant, but in any event he prepared
the complaint for filing in the- State court and took it with him to the plant accom-
panied by his secretary. When he arrived there he met President Joseph Scherer
to whom he made clear the purpose of his visit and was informed by Scherer that
it was "all right with him." Scherer summoned Kitchens and introduced her to
Schenerlein and then departed. Schenerlein handed the complaint to Kitchens
and instructed her to have the employees read and then to sign it. His secretary
accompanied Kitchens into the plant for the purpose of performing the necessary
notarial functions involved in the signing by the employees. Schenerlein remained
in an office at the plant until they completed this activity. Kitchens went with the
secretary to a room in the plant called the bias room to receive the employees as they
came there to sign the complaint.
After Kitchens,and the notary had stationed themselves in the bias room together
with an employee who could explain to the Spanish-speaking employees 'what was
involved, Kitchens informed the employees they were ready for them. She testified
the employees were not ordered to come but did so voluntarily. As they arrived in
groups, she explained to them that the purpose of the complaint was primarily to
get rid of the pickets and thus "we'd get rid of the union too." It was her personal
belief that by picketing the Union intended "to get the employees to join"'it. She
"had no time for the Union" and "didn't want any part of it." She approved of
neither the Union nor its picketing. Concededly, the Respondent was opposed to
the picketing and desired its termination.
Although Kitchens was aware that the procurement of the employees' signatures
to the complaint would require them to take time from their work, she did not feel
compelled to obtain the Respondent's permission. Neither Kitchens nor Schener-
lein were able to recall how long it took to obtain the signatures. When this was
accomplished Schenerlein left the plant with the complaint. The next day it was
filed and an ex parte restraint of the picketing was obtained from the court.
At variance with President Scherer's and Kitchens' versions of voluntarism by
employees in the signing of the complaint is the testimony of Jill Clark, formerly
employed by the Respondent, that on the day of the signing she had been approached
at her worktable by Scherer who asked whether she had signed. When she in-
formed him she had not, he asked her to do so. She thereupon went to the bias
room together with another-employee and her foreman, Julio Figueros, who was in
charge of her section. There she heard Kitchens explain to a group of employees
that the purpose of the complaint was to remove the pickets and "to keep the Union
out." Clark stated to Figueros that she wanted to know more about the matter
as she knew nothing about the Union. He admonished her to remember "which side
fherl bread was buttered on." She signed . While she would not characterize
Scherer's request to sign the complaint a command , Clark explained that she signed
because "if your boss tells you to do something, you do it."
1 Kitchens testified that the authorization on the document was copied by her from an
identical document which had been used in September 1959 when two separate injunction
proceedings, one for the Respondent and another for its employees, had been instituted
by the Marchant firm in the Dade County Circuit Court to restrain the picketing in which
the Union had then engaged against the Respondent. According to Kitchens the authori-
zation which had been used in 1959 had been drafted with the assistance of Attorney
Perkins' secretary. It stated • "All of is who signed this piper picked Nellie Kitchens to
get a lawyer for us and asked her to get the lawyer to file a law case for all of us to
try and get rid of the Pickets who are interfering with us and our bosses work. We
asked her to do everything necessary for us and give her our rights to act, this
Mar-29-60." Below this authorization on the same page appeared the 47 signatures of
employees.
SCHERER & SONS, INC. 1447
Ann Thomas , formerly employed by the Respondent , testified that on the day
when the complaint was signed , Seymour Scherer (presumably Samuel Scherer, the
Respondent 's secretary-treasurer ) came to her place of work and asked whether
she had signed the complaint . She replied that she had not , whereupon he told
her to do so immediately . She complied . She acknowledged that in fact she had
wanted to get rid of the pickets and that she had not been threatened or offered
benefits to sign the complaint.
President Scherer denied there is any understanding between the Respondent and
the Marchant firm regarding payment of fees for the injunction suit against the
Union by the Respondent 's employees . Schenerlein testified that fees for this serv-
ice were the concern of Attorney Perkins. The latter represented during legal
argument at the hearing that "in this instance , I have worked for nothing." Testify-
ing later, Attorney Perkins revealed that he received from Kitchens $24 which had
been collected from a few employees and that this had covered the costs of filing
the complaint and the premium for the bond which the plaintiffs in the suit were
required to post . He further testified that he is still looking to the Respondent's
employees for payment for his services of "whatever the traffic will bear." He esti-
mated his services to be worth $ 1,000 or more , and added , "and this case isn't over
yet, it's still going on." Attorney Schenerlein revealed that his firm ordinarily bills
clients at an hourly rate of $50 for services rendered . He conceded that in the
deposition proceedings alone in the injunction suit , he had spent 231/2 to 241/2
hours. He has never computed the value of the legal services in the injunction
proceeding . No bill for fees has ever been sent to Kitchens or the employees.
The Respondent pays the Marchant firm a monthly retainer of $75. This fee
was raised from $ 50 monthly in September 1961. According to Perkins , the increase
had nothing to do with the services in the injunction suit but coincided with similar
increases in retainer fees of other clients.
Kitchens testified that she made no agreement with counsel for payment of fees
for the injunction suit . She signed no contract for fees or costs. She was never
told how much she and the other employees would be charged. When the injunc-
tion suit was processed for the Respondent 's employees against the Union in Sep-
tember 1959 she was not billed for these services. She had then collected $75 or
$80 from the employees which she had turned over to Perkins . She had obtained his
services in 1959 after she had asked President Scherer for the name of a good labor
attorney and he had suggested that she speak to Perkins.
Concerning the allegation in the complaint that the Respondent has violated the
Act by interrogating its employees concerning their union activities and sympathies,
the General Counsel relies only upon the fact that the complaint in the injunction
proceeding alleges that none of the employees want to be members of the Union
and that they are satisfied with their working conditions and have no grievances
against the Respondent. The General Counsel was unable to advise whether this
allegation in the complaint exceeded the Florida statutory requirements with respect
to the necessary allegations of the complaint. On the other hand , counsel for the
Respondent advised that the foregoing allegation was in conformity with correct
pleading.
Analysis and Conclusions
The General Counsel theorizes that when the Respondent 's employees signed the
power of attorney authorizing Kitchens to procure counsel to restrain the Union's
picketing , and when thereafter they signed the complaint to start the legal action
which resulted in the Union's restraint , they concertedly engaged in activities pro-
tected by Section 7 of the Act . The General Counsel argues that notwithstanding the
informational character of the picketing and its lack of organizational appeal to the
Respondent 's employees , they had reason to believe , and did believe, that the pur-
pose of the picketing was to secure their membership and to represent them in col-
lective bargaining with the Respondent . The General Counsel reasons that if
the concerted action of the employees was taken to prevent these activities by the
Union , it constituted the exercise of the right guaranteed employees by Section 7
of the Act to form , join , or assist labor organizations or to refrain therefrom. The
General Counsel further maintains that the employees had the right to assist the
Union by refusing to cross its picket line , or to refrain from such assistance. He
notes that the "business of labor organizations is to seek the support and assistance
of employees and their respect" for picket lines despite the absence of direct orga-
nizational appeal by the pickets.
The Charging Party contends that the Respondent 's employees actually felt that
the Union's picketing "constituted a threat to their working conditions and job se-
curity" and consequently took action to eradicate the threat by legal restraint of
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. This action by the employees, argues the Charging Party, involved the
exercise of their right guaranteed by Section 7 to engage in concerted activities for
their mutual aid or protection or to refrain therefrom.
The Respondent's brief ridicules as "pure poppycock" the notion that the concerted
activities of the Respondent's employees constituted the exercise of rights guaranteed
by Section 7 of the Act. The Respondent attacks the validity of the General
Counsel's and the Charging Party's theories on the ground that the employees, as
shown by the record, acted in accord with their personal desires when they resorted
to court action to restrain the picketing. In the Respondent's opinion , it cannot be
properly theorized that the concerted activity of the Respondent's employees was
protected by the Act unless it is first proved that they would not have engaged in this
activity were it not for the Respondent's compulsion.
The General Counsel and the Charging Party also assert that the circumstances of
this case, particularly the signing by employees of the authorization and complaint
in the injunction suit, should be equated to the preparation and signing by em-
ployees of a petition to decertify a labor organization as their certified representative
for collective bargaining. They argue that an employer violates Section 8(a)(1)
of the Act when he interferes with, restrains, or coerces employees in the course of
their decertification activities. Without attacking the validity of the comparison
sought to be made with a decertification proceeding, the Respondent maintains that
the theory has no applicability in this case because of lack of proof that it initiated or
fostered the signing of the documents herein involved.
I have no present difficulty in the light of the entire record in concluding that
the activities in which the Respondent's employees engaged constituted concerted
activity involving the exercise of rights guaranteed them by Section 7 of the Act. I
find that it was the clearly expressed purpose of Nellie Kitchens, the leader of the
employee activities, to remove the Union's pickets from the area of the Respondent's
premises in order to prevent the organization of the employees. Furthermore, this
purpose was communicated by Kitchens to the employees who joined her to get rid
of the pickets and the Union. By the concerted signing of the authorization of power
to Kitchens to obtain counsel to get rid of the pickets and the signing of the com-
plaint to restrain the Union, the employees were exercising their guaranteed right
to refrain from joining or assisting the Union . It is immaterial to this conclusion
that the Union may not have been picketing to organize them or to secure recogni-
tion from the Respondent as their bargaining representative. The fact is that the
employees believed this was the Union's objective and acted to prevent the fulfillment
thereof. Moreover, the record shows employee fear that picketing would disrupt
the Respondent 's business with consequent harm to their jobs. The action taken by
the employees to restrain the picketing was therefore a concerted activity by them
for mutual aid or protection within the literal language of Section 7, and this is so
irrespective of the nonorganizational character of the picketing. That the record
may show a uniform desire by the employees to get rid of the pickets and the Union
is not relevant to the question of whether their activity was protected by Section 7.
This argument by the Respondent pertains, instead , to whether the Respondent by
restraint or coercion violated the Section 7 rights of its employees. There is no
necessity to equate the signing of the authorization and complaint by the employees
with the Section 7 right of employees to prepare and process a decertification petition
free from their employer's interference, restraint, or coercion. All that need be
observed is that just as in a decertification proceeding employees are protected from
such conduct by their employer,2 so here were the employees protected from in-
fringement by the Respondent of their Section 7 rights. I proceed to a considera-
tion of whether there was such infringement of employee rights.
Contrary to the Respondent, a finding that it violated the statutory rights of its
employees does not depend upon a prior determination that in fact they were
compelled to participate against their will in the injunction proceedings against the
Union. It has long been established Board and court law that the test whether
Section 8(a)(1) of the Act has been violated is the tendency of the proscribed con-
duct to interfere with the free exercise of rights guaranteed employees under the
Act and not the effect upon them of that conduct 3 I am persuaded that the Re-
spondent's conduct did have such tendency.
As I view the totality of the Respondent's conduct I am satisfied that its employees
were deprived of their guaranteed freedom to decide, without interference, restraint,
or coercion whether to participate in the signing of the authorization or the complaint.
2 Sperry Gyroscope Company, Division of Sperry Rand Corporation, 136 NLRB 295.
3 Sewell Manufacturing Company, 72 NTLRB 85, enfd. as modified 172 F 2d 459
(C.A. 5) ; The Red Rock Company, et al , 84 NLRB 521, 525
SCHERER & SONS, INC. 1449
First, there is unrefuted evidence, which I credit, that the Respondent's officials, Presi-
dent Joseph Scherer and Secretary-Treasurer Samuel Scherer, directed employees
Clark and Thomas to sign the complaint. These were, in effect, commands from
superiors which reasonably left no alternative to the employees but to comply. While
the record does not establish that Foreman Figueros is a supervisor within the mean-
ing of the Act and his statement to Clark about knowing on which side her bread is
buttered is therefore not a threat attributable to the Respondent, the comment serves
in his case as a revealing indication of the reasonable interpretation of employees as
to what was required of them by their employer. Clark's observation that em-
ployees must obey the bidding of their boss illuminates the impact upon her of
the directive to sign the complaint. Although there is no proof of a direct order to
other employees to sign, I believe the prevailing circumstances created for them the
same impression of compulsion.
The Respondent's employees could not have been so naive as to have believed
that legal services worth thousands of dollars were rendered to them gratis without
an ulterior purpose. They knew, because President Scherer had so informed
Kitchens, that the Marchant firm was the Respondent's own counsel. While the law
firm was obtaining an injunction for the Respondent in September 1959 against the
Union it conducted a parallel proceeding for the employees. Surely the employees
had good reason then for belief that they were not billed for legal services because
the action brought in their name was a benefit to their employer. When, in
March 1960, the same law firm offered them the identical services without any un-
derstanding that payment was expected or would be demanded of them, they could
not have avoided the belief, stronger now than the first time, that the action in their
name was really for their employer's benefit. Such belief was reenforced by the
facility with which Kitchens was able to secure counsel's immediate response by a
mere telephone call.
The employees could visualize other meaningful generosities from their employer.
Kitchens was given the freedom of the plant and the employees were allowed time
from their productive work without even having to obtain their employer's permis-
sion to hold a meeting, to sign an authorization, and to go to the bias room to have
a legal document explained before they signed it. No one lost pay for time taken
from work for these activities conducted on the Respondent's premises with its full
knowledge and consent, and, in the case of two employees, pursuant to the directives
of its officials. To this must be added the fact that one of the signers with the em-
ployees was Nathan Kaufman, concededly a supervisor within the meaning of the
Act. The coercive implication of this supervisor's signing the complaint could not
have been lost upon the employees.
It was apparent to the employees that the Respondent willed their participation in
the legal proceeding against the Union. I will not speculate about the Respondent's
reasons for not itself filing a complaint to enjoin the Union, for the result would have
been the same, as evidenced by the 1959 experience , whether the injunction against
the Union were obtained in a suit in which the Respondent or its employees were the
plaintiff. Attorney Perkins in effect testified that the Respondent took advantage
of the suit by the employees to save money.4 I can readily perceive other advan-
tages to the employer such as the public opinion value of a suit by employees against
the Union and the inculcation of employee animus toward the Union as a means of
defeating future attempts to organize them. But whatever the Respondent's motives,
the employees had reason to understand that if this was what their employer wanted
this was what they had to do.
The foregoing conclusions do not require a finding that Nellie Kitchens had actually
been designated by the Respondent as its agent to lead the employees into their legal
action. The record demonstrates sufficiently that even if this relationship had not
been formally established the employees had reason to believe she was acting in
the Respondent's behalf. The employees could not have failed to notice that she
had taken time from work with the knowledge and consent of the Respondent's
officials to supervise the signing of the authorization and the complaint, that she
had access to President Scherer's office to make the call to the Respondent's lawyers,
and that she secured their willing services without charge to them. It would seem
unlikely to employees that Kitchens could enjoy such privileges and be so provident
4 Perkins was asked to explain why an injunction suit was not brought in the name of
the Respondent in March 1960 as had been done in September 1959 He testified:
Well, we had a wonderful experience in 1959. We had two suits and got two in-
junctions and one of the things that my client objected to was money Its not
unusual, and we may have filed one had we not been able to get this injunction, r
don't know , I discussed it with him.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without an agency arrangement between her and the Respondent. Kitchens un-
doubtedly was regarded by the employees as the hand of management. What she
said must have reasonably been interpreted by them as coming from the Respondent.
The limitations thus imposed on the choice of employees to sign or not to sign
the authorization and complaint presented to them by Kitchens were too severe to
permit a conclusion that in these matters they retained freedom to exercise their
statutory right of refusal.
Concerning the allegation of unlawful interrogation of employees as to their union
membership and sympathies, I find no evidence to support a finding. The assertion
in the complaint filed in the State court action that the signing employees were not
members of the Union is a purely formal allegation in a pleading drafted by an
attorney with no intention thereby to acquire knowledge from the signing employees
of their union membership or sympathies. I find therein no element of coercion
which must be present in any case of unlawful interrogation. I shall recommend
dismissal of this allegation.
There remains for consideration the Respondent's contention that the Board's hold-
ing in the Clyde Taylor, d/b/a Clyde Taylor Company decision (127 NLRB 103),
compels dismissal of the instant complaint. There the Board had declared lawful
the obtaining by an employer of a State court injunction to restrain the peaceful
picketing by a union to protest the employer's discharge of certain employees which
the Board found violative of the Act. The Trial Examiner had found that the
employer in Clyde Taylor had obtained the injunction as part of a bad-faith scheme
to defeat union organization. Without commenting about this finding, a majority
of the Board reversed the Trial Examiner's conclusion that the employer had vio-
lated Section 8(a)( I) of the Act by obtaining the injunction. In so doing the Board
overruled its prior holding in W. T. Carter and Brother, et al., 90 NLRB 2020,
and declared
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.
The Respondent maintains that the conduct complained of in the instant case does
not differ from that held lawful by the Board in Clyde Taylor. I do not agree. In
accord with the views of the General Counsel and Charging Party, I find the facts
of the instant case differ fundamentally from those in Clyde Taylor. What is com-
plained about here is not the institution of court proceedings by the Respondent,
but the coercion of employees by it to start such proceedings. Clyde Taylor is,
therefore, not a controlling precedent in this case and does not preclude the finding
I have made that the Respondent by its conduct violated Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section II, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies 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. Scherer & Sons, Inc., is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local No. 415, International Ladies' Garment Workers' Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, as hereinabove related, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
SCHERER & SONS, INC. 1451
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in this proceeding , it is recommended that Scherer & Sons, Inc.,
Miami , Florida, its officers , agents, successors , and assigns shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act by requiring them or creating the im-
pression that they are being required to take legal action to restrain Local No. 415,
International Ladies' Garment Workers' Union , AFL-CIO , or any other labor
organization , from peacefully picketing the premises of Scherer & Sons, Inc., for
any lawful purpose.
• (b) In any like or related manner interfering with , restraining, or coercing its em-
ployees in the exercise of their right to self-organization , to form , join , or assist
Local No. 415 , International Ladies' Garment Workers' Union , AFL-CIO;' or
any other labor organization , to bargain collectively with 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 engaging in any
such activities as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post at its plant in Miami , Florida, copies of the attached notice marked
"Appendix." 5 Copies of said notice , to be furnished by the Regional Director for
the Twelfth Region , shall, after being duly signed by an authorized representative of
the Respondent , be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Twelfth Region , in writing , within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps it has taken to comply therewith.6
3. It is recommended all allegations of the complaint as to which specific findings
of violation have not been made be dismissed.
In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order"
6In the event that this Recommended Order be adopted by the Board , this provision
Shall be modified to read: "Notify the Regional Director for the Twelfth Region, in
writing, within 10 days from the date of this Order , what steps the Respondent has
taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interfere with , restrain , or coerce our employees in the exercise
of their rights guaranteed by Section 7 of the National Labor Relations Act
by requiring them or creating the impression that we are requiring them to take
legal action to stop Local 415, International Ladies' Garment Workers ' Union,
AFL-CIO, or any other labor organization , from peacefully picketing our
premises for any lawful purpose.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , or to join or assist Local 415 , International Ladies' Garment
Workers' Union , AFL-CIO, or any other labor organization , to bargain collec-
tively through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from engaging in such activities as guaranteed in
Section 7 of the Act.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of any labor organization.
SCHERER & SONS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office , Ross Build-
ing, 112 East Cass Street, Tampa, Florida , Telephone No. 223-4623, if they have
any question concerning this notice or compliance with its provisions.
Gay-Gibson , Inc. and District Lodge No . 71, International Asso-
ciation of Machinists, AFL-CIO and Kansas City Joint Board
of the International Ladies' Garment Workers' Union, AFL-
CIO, Party to the Contract , Intervenor. Case No. 17-CA-22392.
June 30, 1964
DECISION AND ORDER
On April 6, 1964, Trial Examiner Leo F. Lightner issued his De-
cision in the above-entitled proceeding, finding that the Respondent.
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Intervenor filed exceptions and a brief, and the
General Counsel filed an answering brief, cross-exceptions, and a
supporting brief. Respondent did not file any exceptions to the Trial
Examiner's Decision, nor any brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds than no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner,' as modified below :
1 We find it unnecessary to pass upon , and do not adopt, the Trial Examiner 's finding
of unlawful interrogation.
2 At one point in his Decision , the Trial Examiner Inadvertently referred to June 12,
rather than June 10, as one of the dates when Respondent engaged in 8(a)(1) activity.
Also , we find the Trial Examiner 's reference to The Zia Company , 108 NLRB 1134, in-
apposite to our disposition of this ease.
Unlike the Trial Examiner , for the reasons stated by Member Leedom in Duralite Co.,
Inc., 132 NLRB 425, 429, footnote 10, he would order the Respondent to reimburse each
of its sewing machine mechanics and maintenance employees for all fees, dues, and other
moneys unlawfully extracted from them pursuant to the Respondent 's union -shop contract
with the Intervenor.
147 NLRB No. 161.