The Juvenile Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

May 13, 1957

117 N.L.R.B. 1513 (N.L.R.B. 1957)

THE JUVENILE MANUFACTURING COMPANY, INC. 1513
the Board in Washington, D. C., an original and six copies of excep-
tions, serve a copy upon the other party, and file a copy with the Re-
gional Director. If no exceptions are filed, the Board will adopt the
Trial Examiner's recommendations.]
[The Board further ordered the above-entitled matter referred to
the Regional Director for the Nineteenth Region for the purpose of
dealing with Allen's ballot, arranging a hearing, issuing appropriate
notice.]
The Juvenile Manufacturing Company, Inc. and San Antonio
Joint Board, International Ladies' Garment Workers ' Union,
AFL-CIO. Case No. 39-CA-476. May 13,1957
DECISION AND ORDER
On June 20, 1956, Trial Examiner William E. Spencer issued his
,Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8 (a) (1) of the Act, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner further found that the Re-
spondent had not violated Section 8 (a) (5) as alleged. Thereafter,
exceptions were duly filed by the Respondent, the Union, and the
General Counsel, and briefs were filed by the Respondent and the
General Counsel. The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the following
modification.
We agree with the Trial Examiner that the Respondent did not
violate Section 8 (a) (5).1 We also agree with his concluding finding
that the Respondent did violate Section 8 (a) (1). We base this
agreement on the fact that the Respondent exceeded the bounds of law-
ful cooperation with a group of its employees during the period of time
here in issue, and thereby interfered with, restrained, and coerced
its employees in the exercise of their statutory rights.
i The Union moved to reopen the hearing for the purpose of adducing evidence to
refute the Trial Examiner's subsidiary finding that its majority was coerced . The Union
bases this motion on the fact that it had objected at the hearing to the supporting testi-
mony offered by the Respondent. The motion is hereby denied, as the Union has advanced
no satisfactory reason foi having failed to adduce its evidence at the hearing.
117 NLRB No. 201.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, we do not agree with the Trial Examiner's further finding
that the Respondent, in addition, engaged in unlawful conduct by
.effectively exercising its right of free speech with the result that the
employees abandoned the Union. This exercise of free speech, as the
Trial Examiner admitted in his Intermediate Report, was not unlaw-
ful, was within the letter of the law, and contained no threats of re-
prisal or promises of benefit. We cannot agree with the Trial Exam-
iner that the Respondent may be restricted in the manner in which it
exercises its right of free speech. Accordingly, we do not adoptithese
additional findings of the Trial Examiner .2
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, The Juvenile
Manufacturing Company, Inc., San Antonio, Texas, and its officers,
agents, successors, and assigns :
1. Cease and desist from lending aid or support to withdrawals
from San Antonio Joint Board, International Ladies' Garment Work-
ers' Union, AFL-CIO, or to petitions for repudiation of the said
Union, whether calling for an election or otherwise; or from in any
other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the said Union or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its plant in San Antonio, Texas, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, after
being duly signed shall be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
2 Member Murdock would simply affirm the Intermediate Report on the 8 (a) (1) as
well as the 8 ( a) (5), as read in context he does not believe that the Trial Examiner's
treatment of the 8 ( a) (1) issue was improper
3In 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 a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
THE JUVENILE MANUFACTURING COMPANY, INC. 1515
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 Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
MEMBER JENKINS took no part in the consideration of the above
Decision,and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act,_as_amended, we hereby notify you that:
WE WILL NOT lend aid or support to withdrawals from the San
Antonio Joint Board, International Ladies' Garment Workers'
Union, AFL-CIO, or to petitions for repudiation of the said
Union, whether calling for an election or otherwise; or in any
other manner interfere with, restrain, or coerce our employees in
the exercise of the right to self-organization, to form labor organ-
izations, to join or assist the said Union or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, and to engage in 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 requiring mem-
bership in a labor organization as a condition of employment, as
authorized in the Act.
All our employees are free to become or remain members of
the above-named Union, or any other labor organization.
WE WILL NOT discriminate in regard to their hire or tenure of
employment or any term or condition of employment because of
membership in or activity on behalf of any such labor organization.
TFIE JUVENILE MANUFACTURING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Repres'entative ) ( Title)
This notice must remain posted for 60 days from its date, and
must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act (61 Stat . 136), herein called the Act, against The Juvenile Manufacturing Com-
pany, Inc., herein called the Respondent , the Employer , or the Company, upon
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges filed by San Antonio Joint Board , International Ladies' Garment Workers'
Union, AFL-CIO , herein called the Union, and upon complaint and answer, was
heard before the duly designated Trial Examiner upon due notice in San Antonio,
Texas, on various dates beginning December 5 , 1955 , and ending December 20,
1955, and in St . Louis, Missouri , on December 12, 1955. The allegations of the
complaint , admitted with respect to jurisdiction but otherwise denied by the answer,
are, in substance , that in violation of Section 8 (a) (1) and ( 5) and Section 2 (6)
and (7 ) of the Act, the Respondent on and after February 4, 1955, refused to bargain
with the Union , the duly designated representative of a majority of its employees in
an appropriate unit, and engaged in other specified conduct constituting interference,
restraint , and coercion within the meaning of the Act.
All parties were represented by counsel at the hearing, participated therein, and
were afforded full opportunity to present and to meet material evidence and to engage
in oral argument and to file briefs . There was oral argument after the taking of the
evidence and briefs were submitted by each of the parties on or before February 3,
1956. All motions not specifically ruled on at the hearing are disposed of by the
findings and conclusions below.
Upon consideration of the entire record in the case, and from my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Texas corporation with principal office and place of business
in San Antonio , Texas, is engaged in the manufacture, sale, and distribution of
children 's clothing . During the 12-month period ending . December 31, 1954, a
representative period , it purchased raw materials valued in excess of $1,500 ,000, of
which more than 75 percent was shipped to the San Antonio plant from points outside
Texas. During the same period Respondent sold products consisting of manufactured
goods valued in excess of $3,500,000 , of which more than 50 percent was shipped from
the San Antonio plant to points outside Texas.
On the foregoing admitted facts it is found that the Respondent is engaged in com-
merce within the meaning of the Act and that it will effectuate the policies of the Act
for the Board to assert its jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
San Antonio Joint Board , International Ladies' Garment Workers ' Union, AFL-
CIO, and its constituents , Local 180 and Local 487, are labor organizations within the
meaning of Section 2 ( 5) of the Act. The Board is composed of delegates of the
two local unions affiliated with the ILGWU, and is the governing body through which
contracts are negotiated on behalf of the local unions.
III. THE UNFAIR LABOR PRACTICES
Foreword
This is the case of the Employer and the Union who, without benefit of employee
consent, made a bargaining compact in 1938 and continued the relationship there-
after, without interruption and with what appears to have been a remarkable degree
of agreement and "cooperation ," until February 4, 1955, when the compact was
dissolved with strong and perhaps profane words hurled at each other by the afore-
said self-appointed principals , while the real principals in interest , the employees,
found themselves in the unaccustomed position of being wooed for their allegiance
by both Union and Employer, now recast in the role of rivals, each now posing as the
foremost champion of those rights. With this frame of reference we come to the
issues.
The precise issues to be decided are whether the Respondent on and after February
4, 1955, unlawfully refused to bargain with the Union as the exclusive representative
of its employees in an appropriate unit , and engaged in other conduct violative of
employee rights under the Act.
Among persons whose names will appear frequently are: Harold M. Scherr,
Respondent 's vice president and general manager; Meyer Perlstein , a vice president
and southwest regional director of the Union; Rebecca Taylor, manager of the San
Antonio Joint Board of San Antonio Locals of the Union. Scherr and Taylor have
their respective offices in San Antonio ; Perlstein 's office is in St . Louis. There are
approximately 289 employees who, as constituents of the appropriate unit, are
;affected by the present dispute.
THE JUVENILE MANUFACTURING COMPANY, INC. 1517
A. Bargaining relationship prior to February 19, 1953
In 1938 the Respondent signed a contract with the Union as the bargaining repre-
sentative of its.production employees. At that time, according to Harold Scherr,
only a few of Respondent's employees were actually in the Union. It was his
testimony that his father, then in charge of operations, now deceased, signed with
the Union because of losses suffered by competitors in the local area due to strikes
and because his "only hope was to make the best possible arrangements with Mr.
Perlstein." In short, he signed because he believed he would be better off eco-
nomically to sign than not to sign.
After the contract had been signed, Scherr introduced Perlstein to the employees
and later Scherr and his father talked to the employees in small groups. They told
the employees that "under the circumstances it was best that they co-operate with
the union to the very fullest extent, that a contract had been signed and from the
standpoint of the company" the company "would appreciate everything that they
could possible do to make the relationship successful and permanent." Further
according to Scherr, the employees were advised, in effect, that they would be re-
quired to belong to the Union. I find this to be the fact.
From this date sometime in 1938 until at least February 4, 1955, the Respondent
recognized and bargained with the Union as exclusive representative of its employees
in an appropriate unit, and, with the possible exception of an interim between contracts
occurring in 1952, until at least February 19, 1953, the date of the execution of the,
most recent contract between these parties, there prevailed closed or union-shop
conditions. It was customary throughout this period for Respondent to inform
applicants for employment that there was a union shop in the plant and that they
would be asked-or required, as the case may be-to become union members as
soon as the qualifications for permanent employment had been established. On
occasion, vacation checks were held up until delinquent union dues had been paid.
At no time were employees polled on their choice in the matter of representation.
The earliest contract in evidence was for a 2-year term effective from August 20,
1947. Article I of this contract provided:
The Company agrees to employ none but members in good standing of the
International Ladies' Garment Workers' Union. All workers employed by the
Company on this date, and/or workers that will be employed by the Company
in the future, shall become and remain members in good standing of the Union
during the life of this agreement. . . . It is agreed, however, that the Company
shall not be required to discharge a worker who is not in good standing unless
and until the Union shall have given the Company at least thirty (30) days'
notice in writing. The Company, when in need of additional workers, shall
have the right to employ such workers as it desires, and after a trial period of
four (4) weeks, such new workers engaged by the Company shall become and
remain in good standing members of the Union during the term of this agreement.
This modified closed shop continued in force, under contract renewals, until May 31,
1952, and while there was no formal renewal after that date, it appears that the
terms of the old contract generally were continued until the most recent contract,
dated February 19, 1953, was executed.
B. Union-security provisions of the 1953 contract
New and different union-security provisions appeared in the 1953 contract. With
the preamble that "the parties hereto desire to establish a standard of conditions under
which the workers employed by the Employer who are members of the Union shall
be employed during the term of this contract," article II of the contract provided,
after the usual recognition clause:
The Employer appreciates that the Union is a constructive and stabilizing force
in the industry, and promotes efficiency of operation. Both parties to the
agreement, therefore, desire that the shop shall operate with unionized personnel
to the extent permitted by law. This can best be realized if all workers now
employed, and those hereafter employed were to become and remain members
of the Union in good standing. The Employer and the Union agree to co-operate
in every proper way, and within the limits permitted by Federal and State law,
towards this end.
This contract further provided for a checkoff of union membership dues. Checkoff
cards bearing the signature of the employee were used for this purpose. These cards
also served as applications for membership in the Union and authorizations for the
Union to act in a representative capacity. A substantial number of the checkoff-
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards were signed in November and December 1952, prior to the
execution of the new contract but probably during the period of negotiations. With
the checkoff in effect there obviously was no longer any occasion to withhold union
dues from vacation pay or to make vacations in any way dependent on the payment
of union dues. However, there may have been some carry-over of prior practices
through 1953, with respect to employees who signed checkoff cards but were de-
linquent in their dues at the time the checkoff went into effect.
The 1953 contract, by renewal, remained in effect until February 19, 1955. There
was no contract or bargaining on a contract after that date.
C. The refusal to bargain
By letter dated December 2, 1954, Perlstein, for the Union, requested a conference
with Scherr for the negotiation of a new agreement which, the letter proposed, would
provide for wage increases, pay for additional holidays, increased health and medical
benefits, and establishment of a retirement fund for aged workers. Rebecca Taylor,
the Union's local representative, arranged for a conference to be held in Scherr's office
on the morning of February 4, 1955. No issue is raised by Respondent's delay in
complying with the Union's initial request, as this was due to Scherr's absence from
this country under the auspices of the United States Foreign Operations Administra-
tion. i The understanding between Taylor and Scherr was that Perlstein on his
arrival in San Antonio would meet privately with Scherr and canvass with him the
new contract proposals before they were submitted at a bargaining conference at-
tended by a wider representation of both parties, and it was understood that Scherr
had certain confidential data relating to the Union's proposed retirement plan which
he would submit to Perlstein and Taylor but which he would not be willing to divulge
to -a larger audience of union representatives. There was nothing novel in this
;arrangement. It had been the custom in prior negotiations of contracts for Scherr
and Perlstem to meet privately for the purpose of attempting to reach accord on
contract proposals before throwing the matter open to negotiating committees, and
Peristein, before his arrival in San Antonio, was duly advised by Taylor of the nature
of the conference she had arranged for'him.
On December 14 a union negotiating committee of some 20 odd rank-and-file
employees had been elected and while its composition was to a substantial degree
identical with that of the Union's shop committee which existed principally for the
adjustment of grievances with management, the negotiating and shop committees
were separate functional entities. That a good many of the same employees served
on both committees is immaterial: the shop committee might have been designated
a negotiating committee with the special function of negotiating a contract, and that
would not have affected its authority to act in the latter capacity? It is clear that
this negotiating committee, formed shortly after Perlstein's letter to Scherr calling
for the negotiation of a new contract, was formed for the purpose of participating
in those negotiations, and it was Taylor's credited testimony that when she arranged
for the meeting between Perlstem and Scherr, it was agreed that at the time he met
with Perlstein or later, Scherr would schedule a meeting with the negotiating com-
mittee "That meeting," Taylor credibly testified, "was agreed upon for that date
[February 4] with Mr. Perlstein, a conference with Mr. Perlstein, with the direct
agreement that a meeting would be set at that time or later to meet with the negotiat-
ing committee."
It may be that the election of a negotiating committee prior to Perlstein's arrival
in San Antonio on February 3, had some bearing on his behavior when on the morn-
ing of February 4 he communicated by telephone with Scherr and refused to meet
with the latter in his office, demanding instead that Scherr meet with him and the
negotiating committee without a preliminary conference, although he well knew
that the conference arranged by Taylor was for him to meet privately with Scherr
before calling in the negotiating committee, as had been the custom in the past.
Scherr explained to Perlstein that he had assembled data on the Union's contract
proposals which he wished to canvass with Perlstein privately, but Perlstein replied
in effect that he was unwilling to bypass the negotiating committee and that if
Scherr wanted to see him privately he could see him in Perlstein's hotel room but
that a meeting with the negotiating committee must follow. Scherr replied that he
1 See July 3, 1954,'issue of the Saturday Evening Post
2These findings are made because of what appeals to have been a disposition on the
part of Respondent's counsel to question the existence of a committee with negotiating
functions separate and distinct from the functions of the shop committee, a not entirely
unreasonable "disposition" due to the witness Taylor's confusion of terms when referring
to the two committees.
THE JUVENILE MANUFACTURING COMPANY, INC. 1519
was not prepared at that time to go before the committee and in any event when
he did so he would want his attorney present.
The conversation presently became highly charged emotionally and there is conflict
in the testimony as to precisely what was said. According to Scherr, Perlstein became
profane and abusive whereupon he, Scherr, terminated the conversation by hanging
up. This, I think, is substantially correct, although how profane and how abusive
Perlstein was I do not know inasmuch as Scherr did not testify as to the actual
language used except to characterize it as profane and abusive. On the basis of
the entire testimony, it is equally clear to me that during this conversation-Scherr
refused to set a date for meeting with Perlstein and the negotiating committee, and
that he proposed that in the event such a meeting was held the Respondent be per-
mitted to call in rank-and-file employees representing all departments of operation
as well as its attorney and managerial representatives, and made the further proposal
that negotiations be held before the entire body of employees. In view of these
rather unorthodox proposals, I would be unable to say that Perlstein's choler, on
this occasion, was without provocation.3
I am aware that Scherr's version of this telephone conversation with Perlstein is
so persuasively phrased that if there were nothing more I could accept the para-
phrase in Respondent's brief that when Perlstein gave as a reason for his refusal to
meet with Scherr privately that the workers were entitled to know what was going
on, Scherr replied in effect "that that was certainly satisfactory to him and that he
preferred to have a large group of workers present and, if Perlstein would agree to
it, he would prefer to have the meeting before all the employees." But there was
more. Taylor was in Perlstein's hotel room at the time he made his call to Scherr,
and her testimony on what she heard Perlstein say in his telephone conversation with
Scherr fully corroborates Peristein's to the effect that the latter made his meeting
privately with Scherr conditional on Scherr's setting a date for meeting with the
Union's committee. Her further testimony on her meeting with Scherr in the latter's
office shortly after the termination of the telephone conversation, testimony which I
credit, establishes that Scherr's proposal to have management designate rank-and-file
employees to attend the bargaining conference was no idle or merely tactical retort.
Taylor who for some 15 years had served the Union in a representative capacity
at the local level, went directly from Perlstein's hotel room to Scherr's office where
she expressed her concern to Scherr over Perlstein's refusal to meet with him
privately, as had been planned, and in effect, apologized for Perlstein's intemperate
language She asked Scherr to reconsider his position and agree to meet with Perlstem
and the Union's committee, but Scherr, while reiterating his willingness to meet with
Perlstein privately, as previously. arranged, refused to meet with Perlstein and the
committee. Scherr told her that if there was to be a meeting with the negotiating
committee, he wanted his attorney present and should also have the right to "bring
people out of the plant, the rank and file, from each department or better yet the
whole factory." Taylor replied that this latter suggestion was ridiculous.
If the matter had ended here it might still be thought that Scherr, smarting over
what he reasonably considered Perlstein's unreasonableness in refusing the private
conference as arranged and agreed upon beforehand, was speaking out of anger
and pique, but the fact is that though, in ensuing weeks, Taylor reiterated her request
that he meet with the Union's negotiating committee for purposes of negotiating a
contract, he continued to refuse to set a date for such a meeting and to so qualify
any assent to such a meeting that it became apparent that he no longer had a good-
faith intention of meeting and bargaining with the Union on a contract. His actual
state of mind is further revealed by letters he addressed to Perlstein, the first being
dated February 14, 1955. This was written in reply to a communication addressed
to him by Perlstein, dated February 8. The Perlstem letter stated, inter aka:
Upon my arrival I called you on Friday morning, February 4, to fix a specific
hour for the conference. According to our Miss Rebecca Taylor, you wanted
3It would be difficult to imagine a proposal more likely to stir a veteran trade unionist
to wrath than that management should usurp the right of the Union to make its own
designation of rank-and-file employees from among those it represented, to assist it in
negotiating a contract The reverse,situation would be if the Union proposed to designate
Respondent's officers and foremen to represent it at the bargaining table. In all candor,
I must add, however, that upon my observation of him as a witness, I do not think
Perlstein was a hard man to provoke Elderly, under the care of a physician, too infirm
to travel to San Antonio to testify, he was a belligerent, crabbed, evasive witness, un-
reasonably apprehensive of being "trapped" by Respondent's counsel His testimony is
relied on only where fully corroboiated.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first to talk to me personally, and have the conference with the negotiating
committee, which includes a committee elected by the workers, of workers em-
ployed in your shop to meet with the representatives of your firm later in the
day.
You declined to meet me at my hotel for the personal conversation you wanted
to have with me and insisted that I must come to your office in the plant where
you would meet with Rebecca and me, but on conditions that no one of your
workers or.their negotiating committee will be present, something that I had
to refuse for obvious reasons. The workers in your plant are also represented
by a negotiating committee they have elected, consisting of workers employed
by your Company. This committee cannot and must not be ignored.
You refused to meet with this negotiating committee of your workers and
even after I offered to meet with you alone at your office if you would fix a
time for the meeting with the full negotiating committee, you were stubborn and
unyielding, insisting that you would not meet under any circumstances with
the committee of the workers.
I told you your request was unreasonable, unfair, a disservice to labor-
management as well as general human relations, and a serious affront to the
people you employ. The many reasons I gave you why it should not be done
the way you wanted it left you unmoved, and you continued your stubborn re-
fusal to participate in any conference unless the negotiating committee of your
workers is eliminated.
Scherr, in reply, stated inter alia:
As our people very well know, I have never refused to meet with any single
person or any group or committee of workers that wished to confer with me
on any subject whatever. This policy will not be changed as long as our plant
continues to operate. You requested a conference which Rebecca arranged
on the fourth of February. It was my understanding (and Rebecca's under-
standing) that this was to be a meeting here at the plant between you and me.
Rebecca dutifully called the afternoon previously to confirm the time, place,
and conditions of this conference.
To refresh your memory, thirty minutes before the meeting was to take
place, you called to change the ground rules, advising me that our (sic?) com-
mittee had demanded a meeting with me. I agreed that this could take place
but stipulated that if a committee representing the union took part in the
negotiations, that inasmuch as the issues raised by you had such a momentous
bearing on the company's future, certainly the company should have the
privilege of inviting a committee to the meeting. representative of all depart-
ments and sections. It had become obvious hat the course you charted
threatened not only the security of the company but all of its workers as well.
I also suggested the possibility of having an open meeting to which all of our
workers might be invited. They, too, are entitled to know the facts.
When I attempted to convince you of the urgency of having a truly representa-
tive body of workers at the meeting, you became hysterical and abusive, and
the conference came to an abrupt end. You failed to keep your appointment
with me, which I have made in good faith.
After a detailed discussion of the Union's contract proposals and a dismissal of
the Union's suggestion of arbitration, the letter continued:
We will meet with you and anyone else you select to earnestly attempt to
resolve these very serious demands you have thrust upon us.
At the same time you must remember that it is perfectly proper for the com-
pany to invite any or all of its work force to participate in this meeting or, in
the event of an open hearing, to listen to your presentation and our reply.
In further letters to Perlstein dated February 22 and March 3, 1955, respectively,
Scherr continued to make it a condition precedent to further bargaining conferences
that the Respondent be permitted to name rank-and-file employees of its own
,choosing to attend such conferences. Thus, in the February 22 letter:
We have never objected to having a conference with you. We do strongly
object, however, to having a conference with the few people you select to repre-
sent the union. Of the 419 people employed by this company 292 are nonunion,
and since we consider your demands at this time a threat to our collective secu-
rity, we would certainly want a representative group from our entire plant to
hear your presentation. . . .
THE JUVENILE MANUFACTURING COMPANY, INC. 1521
and in the letter of March 3:
This company has at no time refused to meet with you or your representatives,
nor will it ever. We do strongly object to a meeting with only a few people
present, representing the Union, if we do not have the privilege of having
whomever we choose to invite as representatives of the Company. We do not
believe in closed-door, star-chamber meetings.4 All of our people are entitled
to know the issues raised by your intemperate demands.
These letters, while privately addressed, were actually distributed among the
employees and, I doubt not, prepared with that in mind. Making full allowance for
political overtones, it is nevertheless clear that while declaring its willingness to
meet "with any single person or any group or committee of workers that wished
to confer with me on any subject whatever," 5 the Respondent at the same time
was persisting in its failure, which after a time amounted to a refusal, to comply with
the Union's standing and repeated request that it meet with Perlstein and the Union's
committee for purposes of negotiating a contract, and was insisting that it, the
Employer, be permitted to invite rank-and-file employees of its choosing to such a
meeting. Obviously, the Respondent's suggestions were nothing short of a proposal
to usurp the prerogatives of the Union as representative of employees in the ap-
propriate unit; to dictate the composition of the Union's own negotiating unit; and
generally, arrogate to itself the duties and responsibilities vested exclusively in the
Union as the employees' representative. At no time did the Union question the
Respondent's right to be represented at bargaining conferences by its attorney or
such managerial personnel as it chose to designate for that purpose. Obviously,
the Union's choice as to whom among rank-and-file employees it wished to repre-
sent it at the bargaining table, so long as it was not exercised in some manner
clearly antithetical to bona fide bargaining, was not the Respondent's proper
concern, just as the Respondent's choice of representatives from among its man-
agerial staff was not the Union's proper concern, and I am confident that no one
was more fully informed in such matters than was this Respondent.
I can only conclude that Respondent's refusal to set a date for meeting with Perl-
stein and a negotiating committee of the Union's choice, and its insistence on the
privilege of inviting whomever it chose from among rank-and-file employees to at-
tend bargaining conferences, establishes beyond doubt its lack of good faith with re-
spect to the negotiation of a contract.6 While it is true that Scherr met with Taylor
and the Union's shop committee on February 16, and continued to extend a sort of
partial recognition to the Union, it was well known to both parties that that shop
committee meeting was for the purpose of adjusting grievances, its traditional role in
the past, and had nothing to do with the negotiation of a contract. Nor was the Union
required to continue to repeat its request for a bargaining conference. Its request
was a continuing one and the Respondent knew it.
In evaluating Respondent's position on and after February 4, when Respondent
refused Taylor's request that a date be set for a bargaining conference and from which
date Respondent is found to have refused to bargain, it is considered whether the re-
fusal was justified as a reasonable and logical outgrowth of the telephonic encounter
between Perlstein and Scherr on the morning of February 4.
Objectively considered, there was nothing in Perlstein's demands on February 4
to which the Respondent could reasonably object, except his last minute attempt to
vary the arrangements previously made for the meeting by Taylor. While it had been
the pattern in the past for Perlstein to meet with Scherr preliminarily to bringing in
other personnel representative of each party, I know of no reason why such a pattern
once established had to be continued without variation. If Perlstein did not wish
to review Respondent's data on contract proposals privately, but instead wished to
have the Union's negotiating committee present from the start, this surely was within
the province of the Union's discretion as bargaining representative, and if the
Respondent had wage or other data which it could lawfully withhold in the presence
of a committee of workers, this was of course within the Respondent's discretion.
Nor can I find anything unreasonable in Perlstein's insistence that Scherr set a date
4 As observed in the Union's brief, it was Perlstein's refusal to meet with Scherr
privately that touched off the "paper war I"
6A dubious position, to say the least, since the Union was the exclusive representative
of all employees in the appropriate unit, if it was anything, and the Respondent was
bound to deal with it exclusively, if at all, as the said representative of employees, in all
matters pertaining to the subject matter of collective bargaining
6 L G Evcrist, Inc., 103 NLRB 308.
423784-57-vol . 11"7-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for meeting with the negotiating committee. Certainly, in view of the late change in
plans Respondent was under no duty to comply instantly, but the request itself
was not unreasonable, and the Respondent well knew because of its understanding
with Taylor that it would be called upon and expected to set a date for such a
meeting. In fact, it had agreed with Taylor that such a meeting would be held.
We have then an untimely effort by Perlstein to "change the ground rules" for a
meeting with Scherr and intemperate language which, as I have previously indicated,
cannot be said to have been entirely without provocation. However, aftef some 15
years of dealing with Perlstein it is hardly likely that the Respondent was unac-
quainted with the fact that he was by nature a somewhat choleric and explosive in-
dividual and yet, according to Respondent's witness and attorney, Bernard Ladon,
he was affectionately referred to by Respondent as "the little man." It may well
be that Perlstein exceeded the bounds of propriety in his conversation with Scherr, and
I have no doubt he did, but not to the extent, I think, that Respondent could there-
after reasonably and in good faith refuse to meet with him and the negotiating com-
mittee chosen by the Union. There is no suggestion, in fact, in Scherr's subsequent
conversations with Taylor, or in his written communications addressed to Perlstein
but intended also for the consumption of his employees, that his refusal to meet with
the Union after February 4 for purposes of negotiating a contract was predicated
in any way on Perlstein's explosive language toward the close of the telephone con-
versation on February 4. I am quite certain that it was not.
The fact is that sharp differences had arisen between the Respondent and the
Union over the Union's proposed retirement plan, differences which, as stated in
Respondent's brief, were first exposed in the 1953 negotiations and which are fully
explicated in the voluminous letters and pamphlets which followed the breaking off
of negotiations in 1955. Apparently the Union was prepared aggressively to follow
through on its demands, and the Respondent was just as aggressively determined to
resist the effectuation of those demands. The merits of the controversy do not
properly concern us. In the intensity of the controversy on this subject of collective
bargaining, however, we find what I believe to be the reason why after many years
of-dealing with the Union as the bargaining representative of its employees, the Re-
spondent suddenly in 1955 terminated the relationship. In short, it entered into the
bargaining relationship with the Union because it believed it to be to its economic
advantage to do so, and it terminated that relationship for the same reason.
Finding as I do that on and after February 4, 1955, the Respondent refused to bar-
gain collectively with the Union, I turn to the more complex and difficult question of
whether at the time the refusal occurred the Union was the bona fide representative
of a majority of employees in an appropriate unit.
D. The appropriate unit and the Union's majority therein
The unit agreed upon by the parties and found herein to be appropriate is com-
posed of all Respondent 's production employees employed at its San Antonio plant,
exclusive of designers and supervisors. A small group of production employees within
the unit , for reasons not fully disclosed , were never required to pay union dues, but
this need not concern us here.
Admittedly, as of February 4, 1955, a very large majority of the some 287 employees
then in the unit had signed checkoff cards and these cards also specifically authorized
the Union to act in a representative capacity. As of this date, actual dues deductions
were being made from the payroll for the selfsame majority for transmittal to the
Union and therefore the Respondent was fully aware of the Union's majority. It
is the Respondent's position, however, that the Union was not the freely chosen repre-
sentative of these employees but, on the contrary, that the Union's authorizations
were obtained through coercion and fraud Therefore, the Respondent contends, it
was under no duty to bargain with the Union on February 4, 1955, or at any time
thereafter. If the Respondent is right in the one thing, it is of course right in the
other.?
E. The Union's representative status
1. The period of the last contract
It was the General Counsel's position at the hearing and in his brief that in
passing on the Respondent's contention that the Union's majority was tainted because
of fraud and coercion and therefore without substance in law, the Trial Examiner
should consider material only the period coincident with and following the execution
of the 1953 contract. Should I follow the General Counsel in this I would likely
7N. L R B v. Dadouiian Export Corporation . 138 F 2d 891 (C A 2).
THE JUVENILE MANUFACTURING COMPANY, INC. 1523
follow him the rest of the way, because I doubt that the evidence on the period from
February 1953 to February 1955, considered apart from what went before, establishes
fraud or coercion to a degree that could reasonably be said to have so tainted the
Union's majority as to deprive it of representative status. Inasmuch as I do not regard
the General Counsel's contention in this respect a frivolous one, I will review briefly
here what I have studied intensively, the character and scope of the evidence relating
to this period.
As has been stated, the union or closed-shop provisions of the 1947 contract were
deleted from the 1953 contract, and I do not believe that the language substituted
therefor in the 1953 contract is, on its face, unlawful. The gist of this language is
that the parties "desire that the shop shall operate with unionized personnel to the
extent permitted by law"-desire is not unlawful under the Act-and "agree to co-
operate in every proper way, and within the limits permitted by Federal and State law,
towards this end." There obviously is an area of cooperation between employer and
a duly chosen representative of employees in encouraging unionized personnel which
is permissible and which no doubt has wide and commendable practice in many busi-
nesses where collective bargaining is an accepted and traditional part of the fabric of
employer-employee relationships. And, I think, it is significant of a change in the
bargaining relationship that neither party pressed for a retention in the 1953 contract
of the closed- or union-shop clause of previous contracts.8
However, while the 1953 contract is so worded on the subject of union security
that it may not be said to require either a closed or union shop, there is some am-
biguity in the preliminary language wherein it is agreed that the "parties desire to,
establish a standard of conditions under which the workers employed by the Em-
ployer who are members of the Union shall be employed during the term of this
contract," not entirely dispelled by the later qualifying language, and therefore it is
necessary to scrutinize the practice of the parties under this contract to determine
whether the bounds of permissible cooperation were in fact exceeded.
There is the testimony of Respondent's personnel officer, Moreau Tucker, that
it was customary to inform applicants for employment of the existence of a union
shop, and to instruct them that after a period of apprenticeship they would be asked
to affiliate with the Union and would be "expected" to do so, and that this practice
continued under the 1953 contract. Scherr also testified that prior practices con-
tinued under the 1953 contract. The testimony of a substantial number of rank-
and-file employees testifying for the Respondent, is that Tucker told them as appli-
cants for employment that after a period of weeks they would be "invited" to join
the Union, and, as witness Opal Langford testified, "Mrs. Tucker had used the word
invited and there's quite a difference in `required' and `invited.' " Langford was
first employed in January 1955. Olive Lynn, employed in December 1953, testified
as Respondent's witness that Tucker advised her on the occasion of her hiring that
she would be "asked" to join the Union at a later date In fact, although Respondent
called numerous rank-and-file employees as witnesses, I do not find that any of them
testified that they were informed by Tucker in 1953 or later that they would be
"required" or "expected" to join the Union. Rebecca Taylor having been informed
that a newly hired employee, Mildred Holub, had stated that she was not required
to affiliate with the Union, went to Tucker and asked her if she had told Holub,
that membership was required. It is Taylor's credited testimony that Tucker re-
plied, "No, I didn't, Rebecca.. . . You know, there is a law, and I can't." a Finally,
it is established that at least two employees during this period refused union affilia-
tion and were not discriminated against in any way because of the refusal. Upon
the basis of the entire testimony, I am convinced that the Respondent's one-time
practice of informing applicants for employment that union affiliation was required
as a condition of employment was discontinued under the 1953 contract or at some:
earlier date.'°
8The Respondent opposed the inclusion of the language in question on the ground
that it was unlawful, but did not pursue its disagreement to the point of impasse or, for
that matter, substantial compromise
9It is immaterial here whether Taylor was complaining because Tucker apparently was
no longer informing newly hired employees that they were requited to join the Union
the point is whether or not such information was being given them There is also Tuckei's
testimony denying that she told Holub that she was not required to join the Union : the
point of inquiiy here, however, is whether she told her that she was required to join.
"Practices during the period between the expiration of the old contract on May 31.
1952, and the execution of the new one in 1953, are not sufficiently developed for detailed
findings
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The practice of withholding of vacation pay until dues ' delinquencies had been
made up in whole or in part, was , for the most part , discontinued because of the
checkoff provisions of the 1953 contract , but not entirely so, for it appears from
Taylor's admissions that the practice was continued through the 1953 vacation period
with respect to those signing checkoff cards who were delinquent in payment of
union dues when the checkoff went into effect . The record does not disclose whether
this practice affected a substantial number of employees . There is Taylor 's further
admission that on the basis of written authorizations dues delinquencies may have
been made up out of vacation paychecks as late as the vacation period of 1954.
Such authorizations , however, may have been voluntarily given, and there is no
evidence that they were not.
There is some evidence that supervisors functioned as union agents during this
period but this is not , in my opinion , established to an appreciable degree. Antonio
M. DeAlva, at one time a union chairlady , collected dues, processed employee com-
plaints, handed out union membership applications , and generally functioned as a
union agent for a substantial period of time, including , according to her testimony,
the period after she became a forelady in 1945 or 1946. Admittedly, however, she
ceased collecting dues after the checkoff went into effect, there being no occasion for
it, and while she testified that she handed out checkoff cards to new employees during
the period of the 1953 contract , she was unable to recall the name of a single one of
these or to relate any conversation she had with them, though she was positive that
she did hand out several checkoff cards during this period. It was further established
through Taylor 's credited testimony that it was some years prior to 1953 since
DeAlva had acted 'as a union chairlady and that she stopped paying union dues in
1952 or 1953 at which time she informed Taylor that she was withdrawing from
the Union because of her supervisory position . Assuming without finding, however,
that DeAlva testified truthfully in the matter of handing out checkoff cards to new
employees during the period of the 1953 contract , there were at most no more than
a half-dozen of these, and such action could not reasonably be said to have tainted
the Union's majority, previously established.
The bulk of the evidence for the period, quantitatively speaking, by which the
Respondent would show coercively or fraudulently obtained union authorizations, is
found in the testimony of certain of Respondent 's rank-and -file employee witnesses.
Employee Olive Lynn , employed in December 1953, testified on direct examination
that Loyce Lovell, a member of the Union's shop committee , told her in the spring
of 1954 that she would have to belong to the Union in order to receive vacation
benefits and a wage increase-or bonus-under the 1953 contract . Her further
testimony on direct examination that the Union's chairlady, Lucy Nicholson, told
her that she would have to belong to the Union in order to receive the aforesaid
benefits, on cross-examination was developed as follows:
Q And isn't it a fact that she [Nicholson] told you in that conversation
that the union had been responsible for getting the five percent increase for
the people?
A. She had.
Q. And that is all she said about the five percent increase and vacations, isn't
that right?
A. That's right, sir.
Labor organizations are accustomed , I believe, to claim credit for benefits to em-
ployees under contracts they negotiate , and I have yet to see a decision in which
such claims are determined to be either coercive or fraudulent . On redirect, how-
ever, Lynn reverted to her original testimony.
Continuing with employees testifying for the Respondent:
Opal Langford, employed in January 1955, testified that shortly after her employ-
ment Lovell came to her table in the company cafeteria and said that Langford
would be required to join the Union; later, Lovell told her if she did not show her
willingness to become a union member by attending a union meeting, the girls would
refuse to work with her and her forelady would be forced to get rid of her. Such
statements were unquestionably coercive, but apparently had little effect on Langford.
Langford reported to her forelady on the Lovell threat and was told that it made
no difference to her forelady whether she joined the Union or not, that she, the
forelady, was not in the Union herself and did not see why it should make any
difference in Langford's work whether she joined or not. Langford did not attend
the union meeting and did not join the Union . Further, concerning loss of vacation
pay for failure to affiliate with the Union, Langford admitted that she got her idea
of this from union bulletins taking credit for such benefits and "implying" that
without the Union they would be lost. Her testimony on cross-examination:
THE JUVENILE MANUFACTURING COMPANY, INC. 1525
Q. Well, did you infer from these bulletins that you would lose your vacation
and rest periods?
A. No, I never once believed that I would, but I thought that that is what
I was meant to believe.
Employee Evadna Ripps, employed in February 1953, testified that in November
1954, she heard Lovell tell a new employee, Mildred Holub, that she would have
to join the Union or be fired, and that Lovell asked her, Ripps, presumably for
purposes of intimidating Holub, if she recalled an incident occurring some years
previously, 'when a girl was discharged for failure to pay union dues. According to
Ripps, Holub answered Lovell by saying, "Well I still aint going to join the Union."
As for her own reaction, Ripps testified: "I know I was pretty burned up. I told
Mildred . `Well, you don't have to join the Union if you don't want to join the
Union!' I said, `there's a new law passed since that time!' I said, `if you want to
join the Union you can, but if you don't want to you don't have to!"' Holub did
not join the Union. Ripps also testified that Lovell told her she would have to main-
tain union dues payments or be fired. She admitted however that she knew she did
not have to belong to the Union.
Employee Elisa Salazar, employed October 1953, testified on direct examination
that her supervisor, Edith Moser, told her to join the Union and some 4 to 6 months
after her employment she did so. On cross-examination, she admitted that the
subject of union affiliation arose between her and Moser when she told the latter
that she wanted to contribute to the credit union, and Moser replied that she had
to join the union before she could put money into it or take it out. It is obvious from
this testimony on cross-examination that Moser was referring to the credit union
and that Salazar so understood her at the time. Salazar also testified that after she
had withdrawn from the Union following a speech by Scherr on February 16, 1955,
Norma Durst, a union adherent but not at that time an officer or representative of
the Union," told her that she would lose her job because of her withdrawal and
would be fined by the Union. Assuming without finding that Durst made this state-
ment, it was made after Salazar's withdiawal and is therefore irrelevant to the matter
of the Union's majority at the time the refusal to bargain occurred.
It was Virginia Monk's testimony that in June 1953, just before vacation time,
Nicholson informed her that she would have to pay up at least 6 of 9 weeks' dues
delinquency in order to receive her vacation pay. This apparently referred to a
delinquency existing at the time Monk signed a checkoff card. Monk complied, but
apparently never made up any more of her dues' delinquency and received her vaca-
tion the following year without hindrance. She also testified to statements made
by Lovell after she, Monk, had withdrawn from the Union following Scherr's speech
on February 16, 1955. Her testimony in sum stands for what is admitted: that
persons in arrears in payment of dues at the time the checkoff went into effect, were
in some instances in 1953 told that their vacation pay would be held up until the
matter had been satisfactorily adjusted with the Union.
The testimony of these five witnesses for the Respondent was not, on the whole,
very impressive. The cross-examination of Lynn, Langford, and Salazar, demon-
strated that on direct examination they had "slanted" their testimony to favor the
Respondent's position, and Ripps, forthright in her antiunion leanings and exact
in her recollection of persons and events reflecting discredit on the Union was very
vague when questioned about her knowledge of the role played by Theo Bilhartz,
an officer of the Respondent, with respect to the preparation of questions to be asked
of Respondent's counsel at a meeting in which the latter was to address the
employees.12
u Respondent correctly contends that a state of intimidation denying the rights of
employees freely to choose their bargaining representative, may be brought about by
conduct not stemming directly from officers or agents of either the employer or the union
involved. This is not a matter of whether the Union is "bound" by such statements, and
therefore citations in the Union's brief are inapposite. Years ago, following a hearing
at which this Trial Examiner presided, the Board set aside an election because of an
atmosphere of intimidation generated by persons acting independently of the parties im-
mediately involved P D Gwaltney, Jr and Company, Inc, 74 NLRB 371, at 378, 379,
380. The status of, the person making the threat, and the apparent ability of that person
to effectuate the thing threatened, is, however, relevant to the weight to be attached to
testimony in such a matter Obviously, a threat stemming from Rebecca Taylor would be
more likely to intimidate an employee aware of Tayloi's position in the Union, than a
threat from a rank-and-file union member such as Durst.
12 This incident developed hereinafter.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Giving the testimony as much credit as it can reasonably claim , what it simmers
down to is that in Respondent's entire plant a single union committeewoman, Loyce
Lovell, and the Union's chairlady, Nicholson, were still, during the period of the
1953 contract, attempting to scare a few new employees into affiliating with the
Union and having very little luck. In view of the fact that Respondent in prepara-
tion of its defense admittedly interviewed some hundred or more rank-and-file em-
ployees, and quizzed them concerning the Union, and further in view of my observa-
tion of the admirable thoroughness and meticulousness with which Respondent's
attorney marshalled and presented his evidence of union coercion, I think I am
safe in assuming that if there had been other incidents of a fraudulent or coercive
character occurring during this period, they would have been apprehended by this
able and indefatigable attorney and brought to our attention. All the more, then,
am I not' convinced that the few isolated incidents set forth above amount to, or
give rise to an inference of a general or widespread program of misrepresentation
and intimidation during the period of the 1953 contract which, standing alone , should
cause this Board to count the Union's majority a nullity, and the Respondent's duty
to bargain with it discharged.
As the Respondent's attorney argues, with appropriate citations, in order to show
a coerced majority it was not incumbent on Respondent to establish incidents
directly involving a majority of employees in the appropriate unit. Neither can the
Respondent establish its point by a scattering of incidents involving at most no
more than 1 dozen out of the nearly 300 employees in the unit, unless the incidents
are of such character and scope that it may reasonably be inferred that their impact
reached a majority. That is not shown to my satisfaction for the period of the 1953
contract. From the evidence before me, it would be just as reasonable to infer
from the admissions of several employees testifying that they well knew they were
not required to join the Union, that a majority of employees were equally well in-
formed.13 I do not draw that inference, though I do infer that there doubtless were
a substantial number quite as well informed in the matter as those testifying. What
is shown is that some newly hired employees may have been, and in several instances
were addressed in an intimidatory manner by 2 or 3 union zealots, and may have
been invited to sign checkoff cards by Forelady DeAlva, but as indicated above, not
only did such isolated instances of intimidatory tactics fail of their objective,14 show-
ing, if anything, that employees hired during this period were generally well informed
on their rights in the matter and were not gullible enough to be taken in by such
instances of attempted intimidation as was shown,15 but if all newly hired employees
had been subjected to such treatment it would not have affected the Union majority
established, as it was, during the period of the negotiation and execution of the 1953
contract. Nevertheless, our inquiry has been material and pertinent in determining
whether there prevailed throughout this period such an atmosphere of intimidation
and/or misrepresentation that employees would be unlawfully restrained from
withdrawing from the Union and cancelling their checkoff cards. I think that is not
established. At least two employees did withdraw and with impunity: others
refused to join.
I shall not review here the withdrawals in large numbers which followed a speech
by Scherr on February 16, and the initiation of petitions for an election which later
ensued, for if the duty to bargain existed at all it existed on February 4, and between
February 4 and February 16, the Respondent's refusal to negotiate a contract with
the Union was firmly established, and by his very act in addressing the employees
as he did on February 16 and by conferences with groups of employees thereafter,
and the character of his remarks and by letters addressed to employees beginning
1a For instance, the testimony of Evadna Ripps • "Well, for weeks and months [prior to
February 17, 1955] us girls had been talking among ourselves that we wanted out of the
union since we know we didn't have to belong to the union . . "; and Witness Maude M
Johnson, "Well, I will tell you, we all thought until the Taft-Hartley Act went in that
we had to belong to the union But after that . we were all smart enough to
know we didn't have to belong to the union .11
14I am aware that the actual effects of attempted intimidation need not be shown, but
the Extent to which employees are informed on their rights and aie vigilant in their
exercise is a part of the context and is certainly material to the issue of coercion as
affecting a union majority, unless we are to tailor logic to fit the Pfocrustean measure-
ments of a formula
Ii As we have been reminded by the Ninth Circuit Court of Appeals, in exonerating
an employer from the charge of coercion, it is no longer "proper to assume that the
American employee is a craven individual, afraid to stand up and express himself freely
on the subject of his own welfare." N. L R B. v. Roberts Brothers, 225 F 2d 58
THE JUVENILE MANUFACTURING COMPANY, INC. 1527
-February 18,16 Scherr was undermining the authority of the bargaining representa-
tive. Assuming therefore a duty to bargain, defections from union ranks on and
after February 17 would be attributable to the Respondent's unfair labor
practices.17
We come then to what I regard as a crucial test of the Union's representative
status; namely, whether there was sufficient carryover of the effects of prior unlawful
practices to nullify the Union's majority as shown by the checkoff and authorization
cards.
2. The period predating the 1953 contract
It is the uncontested evidence, as already summarized, that the Respondent made
a bargaining compact with the Union about 1938 without affording its employees a
voice in the matter, and that from 1938 to 1947 employees were required to affiliate
with the Union as a condition of employment. The union-security provisions of the
10 These various acts and statements will be dealt with in more detail in a later section
on allegations of 8 (a) (1) violations.
171n addition to the evidence reviewed above, Respondent's attorney offered to prove
that if so permitted to testify, some hundred or mole rank-and-file employees would
testify that they never voluntarily affiliated with the Union but were members solely
because they thought membership was required of them. The offer was refused it
should be borne in mind that when speaking of "freedom of choice" as guaranteed by
the Act, we are not speaking in terms of absolutes, and if we were we would immediately
be involved in a philosophical discussion of whether absolute freedom of choice exists
among mortals anytime, anywhere The Act does not guarantee absolute freedom of choice.
No law could. All the Act guarantees is protection against such interference, restraint,
coercion, or misrepresentation as may reasonably be said to prevent a person of average
intelligence and sensibilities from following his or her own convictions with respect to
union representation If because of employer expressions of hostility toward labor organi-
zations, unaccompanied by threats or promises of reward or misrepresentation, an
employee decides in his own mind that it would be "dangerous" for him to affiliate
with the union and therefore desists therefrom, lie has not been denied freedom of
choice within the meaning of the Act These may still be people who like Sweet Alice
of the ballad, Ben Bolt, which beguiled our elders, "laugh with delight at the sight of a
smile , and tremble with tear at a frown." The Act is not designed for the protection
of such tender sensibilites Weie it permissible to question employees about their
mental states with respect to union affiliation, it would be permissible and necessary to
probe further into the whys and wherefores of the said mental states, and then it would
become necessary to determine whether the aforesaid whys and wherefores were imaginary
or purely abstract-in which event we would be thrown for a total loss-or, if they mate-
iialized as concrete acts or statements, we would then have to determine whether those acts
and statements could be said to halve amounted to misiepeesentation or intimidation such as
would reasonably deprive employees of the freedoms guaranteed by the Act. We would then
have come full circle and the unveiling of mental states would have represented wasted
time and effort, for the Respondent was given the utmost leeway-too much, I think,
in retrospect-in introducing evidence on statements and conduct, no matter how trivial
or remote, which would tend to establish fiaud or coercion. To have permitted the
inquiry into mental states as proposed, would actually have amounted to nothing more or
less than a poll of employee opinion, taken publicly in the presence of Union and
Employes, after months of acrimonious exchange and iivalry between the two, and after
the Respondent in the preparation of its defense in this case had called large numbers
of employees individually to its office where, frequently in the piesence of Scherr and/or
other, officers of the Respondent, they had been quizzed about the Union and asked to
incorporate such information as the Respondent considered of use in its defense, in
written signed statements In a recent case the Board set aside an election where on
the day preceding the election the employees were interviewed in small groups in their
employer's plant during working hours and by their employee's attorney who expressed to
them the employer's antiunion but noncoercive sentiments Supreme Trailer Company,
115 NLRB 962 See also, Red River Broadcasting Co , Inc, 115 NLRB 1212, and cases
cited therein. Here employees were not only interviewed individually during working
hours by an employer known to them to be hostile to the union, but were quizzed on
their views concerning the union, and though in the balancing of interests such conduct
for purposes of pieparing a defense is, under current decisions, not violative of the Act,
it is nevertheless interference of much greater degree than that found sufficient to nullify
a secret poll in cases noted above. Obviously, this healing was neither the time nor the
place for the taking of such a poll, and had it been taken it would have been utterly
lacking in probative weight
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1947 contract provided for a modified closed shop, inasmuch as newly hired em-
ployees after a period of apprenticeship were required to affiliate with the Union
and were not hired in the first instance if they indicated an unwillingness later to
join the Union. No election having been held to obtain employee consent to a
union shop, and the practices under the agreement exceeding what is permissible in
a union shop, this contract was violative of the Taft-Hartley Act and to the extent
that it provided for compulsory membership of any sort it was violative of the so-
called Texas Right-to-Work law,18 effective April 8, 1947, or thereabouts. This
unlawful provision was continued in effect until May 31, 1952, and, possibly, until
the execution of the 1953 contract.
In implementation of the agreement, employee applicants were informed that
after they had served a trial period they would be required to join the Union, and to
facilitate the collection of union dues employees were advised that their vacation pay
might be withheld, and in some instances it was withheld, until the dues' delinquency
was made up in whole or in part. Also during this period some persons of super-
visory rank served as officers of the Union, participated in bargaining conferences,
collected dues for the Union and performed various other functions which in sum
would serve as daily and forceful reminders to rank-and-file employees that the
Union and the Respondent were working hand-in-glove and that they could not,
with impunity, challenge that combination. While the probative evidence is slight
as to persons actually denied employment during this entire period because of refusal
to affiliate with the Union, or actually discharged or laid off because of failure to
maintain union membership, too slight standing alone, in my opinion, to establish
a general course of unlawful trespass of employee rights, this evidence, such as it is,
has its chief significance in. indicating by negative inference the wholesale surrender
by employees of their basic rights under the Act in the face of the combined eco-
nomic might of Union and Employer and the paternalism so suavely and persuasively
practiced by the latter.
These, then, are the basic and decisive facts of the 1938-53 period, and it is
needless to review here the testimony of numerous rank-and-file employees testifying
for the Respondent, much of it. uncontradicted and credible, some of it uncon-
tradicted and not credible,19 but in sum sufficient probatively to bolster and supple-
ment the more basic evidence of a practice of foreclosing employees from a choice
in the matter of representation throughout the period now under scrutiny. What
we have then for this period of some 15 years, is an unlawfully assisted and perhaps
employer-dominated union purporting to act as the employees' exclusive bargaining
representative, and an absolute suppression of employee freedom of choice by Union
and Employer working jointly to that end. The key question at this point is:
was there in 1953, or earlier, a sufficient cleavage or break in this union-employer
combine versus employee rights, to free employees from past practices of coercion
and restraint and thereby give validity to the checkoff-authorization cards which
form the basis for the General Counsel's claim of a legal duty on the part of the
Respondent to recognize and bargain with the Union? If there was anything subject
to this construction earlier than the 1953 contract, there is no evidence of it other
is (Article 5207a), Section 3 "Any contract which requires or prescribes that em-
ployees or applicants for employment in order to work for an employer shall or shall
not be or remain members of a labor union, shall be null and void and against public
policy "
30 Notably, the group of employees who though they required an interpreter because they
spoke no English, were able to testify in Spanish on the contents of a speech they heard
Scherr deliver entirely in English, and others of the same group, present in the hearing
room while these were testifying, whose later testimony on the Scherr speech was tailored
to take care of the obvious discrepancy by purporting to be derived from a translation
of its contents as rendered to them in Spanish by other, bilingual employees-this latter
hearsay I would not, of course, extend credit to any of this group of witnesses, for
much the same reasons that caused me to discredit a group of witnesses in Dadourian
Export Corporation, 46 NLRB 498, p 8, footnote 16 of the Intermediate Report. (Had I,
in that case, credited the Respondent's witnesses I would have reached the same con-
clusions reached by the court Footnote 7, supra ) As observed by the Ninth Circuit
Court of Appeals, that undisputed testimony must be credited, " is an ancient fallacy
which somehow persists despite the courts' numerous rulings to the contrary " N. L. R B.
v. Howell Chevrolet Company, 204 F. 2d 79 (C A 9) Observation of the witness'
demeanor both on and off the witness stand, is it legitimate element in the Tiial Examiner's
appraisal of credibility. International Chemical lVorlcers Union, 115 NLRB 772, and
citations therein
1
THE JUVENILE MANUFACTURING COMPANY, INC. 1529
than the expiration in May 1952, of the old unlawful contract, and such evidence
as there is indicates a continuation of prior practices until the execution of the
new contract.
3. Conclusions on the issue of the Union's representative status as of
February 4, 1955
The issue is more complex than it might seem on casual approach.
As previously indicated, I am convinced that from the date the 1953 contract was
signed to the Respondent's refusal to bargain on a new contract with the Union,
no employee was told by responsible officers of either Union or Respondent that
membership was required. I am further convinced that employees during this
latter period could, as at least two employees did, withdraw from the Union and
countermand their checkoff authorizations without encountering any discrimination
whatever in their work and working conditions The two employees who did with-
draw from the Union appear to have done so openly and it would be absurd to sup-
pose that such news did not get around. The admission of several employees that
they well knew they could not be required to affiliate with the Union or to main-
tain union membership, raises an inference that at least some other employees, as
alert and well informed as these, had the same knowledge. Furthermore, in view
of Respondent's "open door" policy which encouraged a close working relationship
between Respondent's officers and employees,20 it seems reasonably clear that em-
ployees in doubt as to the requirement of union membership, had only to go to
Scherr or to Tucker, the personnel officer, as they were invited to in any matter that
concerned them, to get the correct information.21 Nevertheless, as far as I can
tell from the evidence, out of a unit of some 289 employees, only 2 saw fit to cancel
checkoff authorizations during this period. Making full allowance for the 3 or 4
instances where union representatives or adherents attempted, unsuccessfully it
seems, to intimidate a few new employees into an affiliation the latter did not desire,
there were no new instances of coercive or fraudulent practices during the period
of this last contract of such substantial and widespread character as to lead to a
conclusion that employees in numbers sufficient to affect the Union's majority were
thereby intimidated into retaining their checkoff and membership authorizations.
Nevertheless, I am convinced after listening to the testimony of numerous rank-
and-file employees and observing their demeanor while they were testifying, that
there were substantial numbers of employees who signed checkoff cards and authorized
the Union to represent them who were actually hostile to the Union and, perhaps,
labor organizations in general. We have the phenomena, then, of such employees
as Evadna Ripps, militantly antiunion and yet signing a checkoff card and remaining
in the Union, though by her own admission she was fully informed on her rights
in the matter. The explanation lies in the unusual degree of rapport existing be-
tween this management and these employees. After some weeks of observing and
listening to numerous rank-and-file employees testifying for the Respondent, in
the presence of Respondent's principal officer, it would be impossible not to take
cognizance of the rapport existing between this executive officer and these employees,
and this together with the plain implications of some of the testimony, convinces
me that many of Respondent's employees, though not necessarily a majority of them,
were in the Union because the Respondent had made it plain to them that it wanted
them to be in the Union, and that some and perhaps many of these employees,
though they well knew during the period of the 1953 contract that they were not
required to join the Union, made no individual or concerted effort to withdraw their
memberships until bargaining between the Respondent and the Union had broken
down, and the erstwhile partners to an erstwhile unlawful compact were bitterly and
publicly assailing each other, and Scherr had assembled them for the purpose of de-
claring their right to withdraw from or to remain in the Union, at the same time
and subsequently making it unmistakably plain to anyone who was not already aware
of it from the published exchange of correspondence between the parties, that the
20 Respondent's brief • "An atmosphere of easy informality exists in the plant between
the employees and management Mr. Scherr, principal company executive, is normally
referred to by the employees by his first name His office is always open to them to
discuss personal or private matters."
n As in the case of Employee Petra Arredondo who in December 1953, inquired of
Scherr if she had to continue membership in the Union and if "there was any law that
required her to do so," and was informed by Scherr that there was no such requirement.
Arredondo thereupon withdrew from the Union. At least one other employee inquired,
received the same advice, and withdrew.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was now in bitter opposition to the Union. The matter is graphically
illustrated by an abortive move to withdraw from the Union by a group of employees
in the bundling department, which occurred in January 1955.
Six girls in this department, dissatisfied at being required to pay union dues
whereas certain male employees of the same department were not subjected to this
requirement, after inquiring of someone "higher up," and being told by that person,
unidentified in the record, that they could withdraw from the Union if they wanted
to, went to Morean Tucker and asked her to type up a withdrawal form.22 Tucker
told them she could not comply without discussing the matter with Scherr who was
then out of town. She mentioned the matter to Scherr on his return and apparently
received a negative or noncommittal answer because nothing was done by Tucker,
and-what is significant-nothing was done by the girls with respect to the with-
drawal until after Scherr made his February 16 speech. There is also the enlightening
testimony of Evadna Ripps:
Well, for weeks and months us girls had been talking among ourselves that we
wanted out of the union since we know we didn't have to belong to the
union . . . but we really were afraid Mr. Scherr might throw us out if we
caused a commotion over it, and when he gave us the lead, that we could get
out of the union if we wanted to, well naturally all of us went wild.23
I do not mean, of course, to suggest or to imply that there is anything "wrong"
or unlawful about an employer exercising a persuasive influence over his employees
in matters of representation. If an employer through the practice of benign
paternalism and appurtenances of personality or a democratization of procedures, is
able to persuade his employees to forego union representation, such conduct falls
outside the reach of the Act and therefore of our reproach. Nevertheless, we have
here a situation which cannot properly be ignored in a realistic evaluation of the
employees' freedom or lack of it in matters of representation, for if it cannot be
said that an employer violates the Act by the mere persuasiveness of his personality
and methods when opposing union representation, neither can it be said that em-
ployees are denied the freedoms guaranteed them by the Act if because of that
selfsame persuasiveness when directed toward the retention of the union as bar-
gaining representative, they affiliated with the union and did not thereafter withdraw
until a volte-face by their employer. To state the same proposition in a different
context: if employees, not really wanting union representation but voting for it out
of a sense of loyalty to and cooperation with management or just plain toadyism,
as the case may be, shortly thereafter find management in bitter opposition to the
union over the latter's bargaining demands and for that reason want the union's
certification forthwith set aside, they will meet with no success because at the time
they designated the union their bargaining representative they had all the freedom
of choice the Act guarantees. See footnote 17, supra.
It is this more than any other single factor presented by the evidence that has
given me pause in what might otherwise have been a fairly easy decision, for it is
not possible to gauge the extent to which employees were in the Union voluntarily,
though primarily because they believed the Respondent wanted them in the Union,
and to what extent they-or a majority of them-were in the Union because of past
unlawful practices requiring union membership as a condition of employment. Con-
sidering, however, that the burden of proof was on the General Counsel to show by
a predominance of the probative evidence that the Union's majority was bona fide
as of the date the refusal to bargain occurred, we must take cognizance of the some
15 years of involuntarily imposed membership and must find that the effects of past
coercion and restraint had been substantially dissipated, before we can conclude that
the Union's majority of February 4, 1955, was a freely chosen one.
In reaching an ultimate conclusion I have been guided by long-established precepts
reaching back into the Wagner Act days when so-called employee representation
plans which flourished in the Twenties came under the scrutiny of Board and courts,
and such terms as "cleavage" and "line of fracture" were the key words of numerous
decisions. We were told that the "effects of long practice persist" and "a long
continued influence does not suddenly evaporate." Southern Bell Telephone & Tele-
graph Co., 319 U. S. 50. "The theory is that in cases such as this, where an un-
affiliated union seems to the employees at large to have evolved out of an earlier
joint organization of employer and employees, the Board may take it as datum,
in the absence of satisfactory evidence to the contrary, that the employees will
suppose that the company approved the new, as it did the old, and that their choice
as Testimony of Lola Baker, Tucker.
23 See footnote 41, infra
THE JUVENILE MANUFACTURING COMPANY, INC. 1531
is for that reason not as free as the statute demands." Westinghouse Electric and
Mfg. Co., 112 F. 2d 657 (C. A. 2), affirmed 312 U. S. 660. "Satisfactory evidence
to the contrary" might be a showing that there had been such a'hiatus or cleavage
that it could reasonably be said that the effects of company domination had been
dissipated , and an unequivocal statement by the employer dissociating himself from
employer participation accompanied by appropriate conduct, might be thought to
mark the required cleavage, or a lapse of time accompanied by acts demonstrating
the independence of the erstwhile company dominated organization might be deemed
sufficient . Such reasoning seemed quite sound to me at the time it was applied
to alleged instances of company -dominated unions and it is equally sound today
when applied , by analogy, to the situation here. On this premise we turn to
a further analysis of such evidence as tends to establish in 1953 a break with
prior unlawful practices.
The union-security provisions of the 1953 contract provided a "break" inasmuch
as neither a closed nor union shop was mandatory under those provisions. And,
as argued by the General Counsel, a negotiating committee of employees participated
in at least the closing bargaining sessions on this contract ; it appears further that
the contents of the contract were published to the employees by presentation at a
union meeting. Unfortunately for purposes of establishing such a cleavage as would
make it clear to rank-and-file employees generally that they were now free to join
or not join the Union , the union -security provisions of the contract are not phrased
in plain unequivocal language. In fact, the preliminary language to the effect that
both parties to the contract "desire that the shop shall operate with unionized
personnel to the extent permitted by law" and that "this can best be realized if all
workers now employed, and those hereafter employed were to become and remain
members of the Union in good standing ," sounds very much as if the parties intended
to continue as they had in the past while now paying lip service to applicable laws.
I am convinced that this contract by and of itself could not reasonably be said
to have had such an impact on employee thinking that they were by it fully informed
that their right to join or not join the Union would be respected in the future by
the contracting parties. In reaching this conclusion , I am mindful that a large
number and perhaps a majority of the Respondent's employees are Spanish -speaking
people; that some and perhaps many of them , while presumably literate enough in
their own tongue, are by no means literate in the use and comprehension of the
English language . It would strain credulity to suppose that these employees , assum-
ing that copies of the contract were made available to them, would understand that
under this contract union affiliation was no longer required of them. Had there been
a single clear explanatory statement published to them by either the Union or
the Respondent conveying to them the intention of the parties under this contract to
respect their freedom of choice on union representation , we might then be able to say
that the "effects of long practice" had been dissipated, but there was no such un-
equivocal explanatory statement nor, insofar as shown by this record, any explica-
tion whatever of the union -security provisions by either party. I incline to the view
that the parties to the contract, no matter how legitimate their intentions as to
future action , were content to let the "effects of long practice " persist. In 1938
management had issued the order that employees were to "co-operate " by affiliating
with the Union "or else," and those orders were not actually countermanded openly
and publicly until February 16, when Scherr made his speech.
With respect to the checkoff -authorizations cards, it is true that there is no sub-
stantial evidence that duress or misrepresentation was employed in obtaining em-
ployee signatures , and it must be assumed that the employees knew what they were
signing, as I have no doubt they did. But large numbers of these signatures were
obtained between November 1952, and the execution of the 1953 contract , presum-
ably in the expectation that the new contract would provide for a checkoff of union
dues, but before any action whatever had been taken which could be construed as
informing employees that union affiliation was no longer required of them as a
condition of employment . It is upon these cards , accompanied as they were in most
instances by actual union membership, that the General Counsel rests his claim
of the Union 's majority . It seems to me that the evidence weighs with heavy
preponderance against a conclusion of voluntariness on the part of employees then
signing those cards, employees who for years had been given to understand by
Union and Employer that they had no choice in the matter of union affiliation. And
they were not told anything different when the checkoff cards were presented to
them for their signatures!
Again, we may be asked to believe that in the 2 years under the 1953 contract
employees must have come to realize, as unquestionably some and perhaps many of
them did, that they were no longer required to maintain their union affiliation and
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore we should infer voluntariness of continued affiliation from their failure,
with few exceptions , to cancel their previously given authorizations . Had the
majority at any time during this period been composed of employees newly hired
during this period, such an argument would be impressive for, as previously found,
new employees during this period were not informed by responsible representatives
of either party that union membership was required as a condition of employment
and, I think, would not reasonably infer that it was . But a large majority of the
authorizations were signed by old employees , i. e., persons employed prior to the
execution of the 1953 contract. Nevertheless , in my opinion , the growing realiza-
tion among employees during the 1953 contract period that they could refuse union
affiliation with impunity, provides the strongest support to be found for the General
Counsel 's position in this record.
We are frequently reminded these days , and no doubt wisely, that with the growth
of labor unions and a more widely dispersed sophistication among employees with
respect to labor relations , the Act need not be so strictly construed , in some respects,
as it formerly was, in the protection and preservation of employee rights under the
Act. It may well be that I do a disservice to the some 287 employees herein in-
volved in concluding as I do, that on February 4, 1955, they-or at least a majority
of them-were still too shackled by past unlawful practices to exercise a genuine
choice as to whether they wanted to retain the Union as their bargaining representa-
tive and, in reaching this conclusion , I do not mean to imply that any of these
employees is "a craven individual , afraid to stand up and express himself freely on
the subject of his own welfare." Footnote 15, supra. Short of a sociological
survey of the appropriate area with emphasis on its development in the field of labor
relations , I would hesitate to say, without datum for proof, that we should conclude,
instead, that there existed a degree of employee enlightenment and sophistication in
labor relations which of itself insures that well before February 4, 1955, any possible
lingering effects of past unlawful practices had been dissipated, and that the old
standards involving such terms as "cleavage " and "line of fracture" have been
rendered obsolete. The circumstances do not seem to me to justify the taking of
official notice that such is the case.
Finally, there is the argument that inasmuch as the Respondent was itself a party
to every instance of unlawful deprivation of employee rights under the Act, it may
not now take advantage of the results of its own wrongdoing as justification for its
refusal to bargain . This, of course, expresses a well-grounded principle in Equity.
And it is true that the Respondent shares equal responsibility with the Union for
some 15 or more years of suppressing employee freedom in the choice of representa-
tion. It is idle for the Respondent to contend that the Union "compelled" it to
embark upon and persevere in this unlawful course of conduct 24 Doubtless the
Union did offer the apple of unlawful employee restraint and the Respondent did
eat thereof , but except for what was no more than token resistence to the phrasing
of union -security provisions in the 1953 contract , it appears to have had a good
appetite for the proffered fruit and it is only lately, when the Union showed signs
of "getting out of hand," that its digestion has appeared to be seriously impaired
from having eaten thereof . I recognize , too, the danger to the stability of bargain-
ing relationships inherent in accepting as good defense the Respondent's own unlaw-
ful practices , where the Respondent is saying , in effect, because I have violated the
Act for some fifteen years you must not now find me in violation of the Act. Clearly
in such a situation as where an employer authorizes his supervisors to conjole and
intimidate employees into voting for union representation, that employer would
not normally succeed in getting the election set aside because of interference by the
aforesaid supervisors. N. L. R. B. v. Underwood Machinery Company, 80 NLRB
1264, enfd . 179 F. 2d 118 . In numerous other situations , we have a nice balancing
of interests, with the overall design of the Act for the stabilizing of bargaining rela-
tionships not always entirely consistent with unfettered choice in the matter of
employee representation , as in the 1-year certification rule. There can be no general
all-inclusive rule in such a matter, and each case will have to be viewed on its own
facts. In the intensity of such litigation as we have here, with thrust and counter-
thrust between Employer and Union, we are apt to forget that we are not primarily
concerned with the rights of either the Union or the Employer but that our real
principals in°interest are the employees . This is not a question , such as is posed
in the Union's brief, of whether the Respondent is to have its cake and eat it too,
but whether the employees are to be afforded the freedom of choice guaranteed them
zs Scherr , in his February 16 address to employees stated , inter alia • "If demands
are made on the company that it can ' t possibly meet, no power on earth can force the
company to comply "
THE JUVENILE MANUFACTURING COMPANY, INC. 1533
by the Act. I do not think that in its course of bargaining with the Union over
many years this Respondent has been deliberately and consciously building for itself
a defense against such a time as it might no longer find it expedient to deal with the
Union, and here we are not viewing the Respondent's unlawful conduct alone but
the joint unlawful conduct of Employer and Union. I know of no authority for
asserting the overall design of stabilizing bargaining relationships in derogation of
freedom of employees in their choice of representation, in such a situation.
Finding as I do that a predominance of the probative evidence fails to establish
that as of February 4, 1955, or thereafter, the Union was the bona fide representative
of employees in an appropriate unit, Respondent's refusal to bargain with the Union
on and after that date was not violative of the Act 25
IV. INTERFERENCE, RESTRAINT, COERCION
A. Written and oral statements
With respect to independent 8 (a) (1) violations of the Act, the complaint alleges
in substance that the Respondent solicited employees to withdraw from the Union,
and assisted in the said withdrawals; suggested that the employees form their own
labor organization; and promised as a reward for withdrawing from the Union, the
following benefits: A pension or retirement fund; a company sponsored health clinic;
sick benefit insurance. These allegations are based principally upon various oral and
written statements made by Scherr to employees, beginning with a speech made in the
plant during working hours on February 16, 1955, and the circulation on company
premises of withdrawal petitions prepared at the request of employees by Respondent's
personnel director, Tucker.
By publishing to the employees his February 8 letter to Scherr on the latter's re-
fusal to meet with union representatives, Perlstein chose to carry directly to the em-
ployees his dispute with Scherr and thereby initiated what has been referred to herein
as the "paper war." There were many letters and documents of various kinds ex-
changed between Union and Employer during the ensuing weeks and months, and
published to or addressed directly to the employees, and they were patently designed,
for the most part, to solicit and solidify employee support. In addition to written
communications, there is Scherr's speech to the employees on February 16, meetings
between Scherr and groups of employees, and a meeting of employees on about March
29 called for the purpose of having Respondent's attorney, Ladon, address the em-
ployees on the Respondent's failure to obtain an election on its RM petition, pre-
viously filed with and rejected by the Board.
At the outset it is noted that the Union having carried its arguments over its con-
tract proposals directly to the employees, the Respondent had the right to answer
those arguments before the same tribunal; the Union having chosen to attack, the
Respondent had the right to defend and counterattack, all within well-defined limits.
Under the decisions, the Respondent was free to express its opinions on whether the
Union merited the employees' continued support, for neutrality is no longer required
of employers in the matter of employee representation. The Respondent availed itself
liberally of its privileges in communications with employees on and after February 16,
and at least to the extent that it sought to counter union claims and proposals and
to disseminate its antiunion propaganda without threats or promises of benefit, it was
acting permissibly under current and prevailing decisions.
An issue that was instrumental in touching off the dispute between the Union and
the Respondent was the Union's demands with respect to a retirement or pension
fund. The Union chose to carry its fight on this proposal to the employees, and the
Respondent countered by attacking the Union's proposal and by setting forth by
way of counterproposal its own views with respect to retirement and pension benefits.
In doing so, the Respondent suggested that employees would already be enjoying
increased benefits except for the Union's "obstructionism." Thus, in his letter to
employees dated February 18, Scherr stated: "We agree that our people have to have
increased medical benefits and a retirement fund. We feel that had it not been for
the political obstructionism of the Union, as represented by Mr. Perlstein, these
things might already have been possible." Impliedly, then, once the Union's ob-
structionism had been removed, those benefits would be forthcoming. In his letter
'SIn view of these ultimate findings it may appeal that the detailed analysis of the
refusal itself and the period of the 1953 contract was unnecessary, and were this a final
instead of an intermediate decision that would be true Since the Board may not agree
with these ultimate findings, I consider it best to remove the potentiality of further delay
in the disposition of the case, by stating fully my findings and conclusions on all issues
raised by the pleadings
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Perlstein dated February 14, published to the employees, Scherr had stated that
unless the Union engaged the Respondent in "a costly fight or strike" it should be able
to begin making payments into a retirement fund of its own devising by August or
September of 1955. I do not construe such statements as a promise of benefits in
return for withdrawals from the Union, but as arguments and propaganda to counter
the Union's accusations and claims. Except for the provocation of the Union's at-
tacks and the Respondent's undeniable right to answer, a different construction of this
language might well lie.
With respect to the alleged promise of a company sponsored health clinic, the
situation is similar. Apparently under union contracts a health clinic had been estab-
lished for employees of local employers subscribing to such contracts, supported by
contributions prorated among such employers, of whom the Respondent was one and,
it seems, the largest contributor. The Union claimed credit for the establishment
and maintenance of the clinic, as unions are wont to do with respect to benefits de-
rived by employees from union contracts, and the Respondent retorted that the idea
of the clinic was its own in the first place and that the Union made no contribution to
it whatever. This was of course argumentative and an argument in which we have
no part. In his letter to employees dated February 21, Scherr stated in effect that
about half of the total expense of maintaining the clinic was paid by the Respondent,
and then concluded:
Doesn't it stand to reason that if we didn't have to support the other companies,
we would have considerably more funds with which to operate our own Clinic
for our own people. Wouldn't a Clinic perhaps on our premises, or situated in
a convenient first floor location be an improvement over the present arrange-
ment? I can assure you that we will fight very hard for the privilege of offering
these improvements to you.
There is certainly a very strong implication here of benefits to flow from the re-
jection of the Union but, we must ask, was the Respondent so restricted in its right
to answer the Union on the issue that it could not express an opinion on what it
considered to be an alternate plan more desirable than that achieved under the union
contract, and to indicate that it would work toward the realization of such an alternate
plan? The issue here seems very close, but I construe Scherr's statement as being more
of an argument on what kind of clinic would best serve the interests of Respondent's
employees, than an actual promise of benefits to flow from rejection of the Union.
However, in this I may very well be mistaken.
In his conference with a group of employees from the coat department following
his speech of February 16, and in response to questions, Scherr advised these em-
ployees that they could withdraw from the Union without loss of benefits received
under union contracts, and could form a union of their own, though without company
participation.
In a letter to employees dated February 18, Scherr stated, inter alia:
It is becoming more evident by the minute that a majority of the workers of the
Company want to form their own, independent organization on a strong and
honest basis to deal directly with the Company. In this way they can pay dues,
if they elect, to themselves.
In his letter of February 21, we find this, following a denunciation of the Union
on the grounds that it denied the employees a "democratic voice and control" of
union affairs:
A free and independent organization could function with elected, not selected
or appointed representatives. As an example, if your elected representatives of
the Santone Federal Credit Union don't handle your money the way you want
them to, you may elect new ones!
A further reference to the Santone Federal Credit Union appears in Scherr's
letter of February 23:
Your Santone Federal Credit Union started in 1951 with a capital of $24.00;
today it is a $50,000 corporation-your corporation, run. by your elected
representatives! The Union started many years ago, and its local treasury is
virtually bankrupt! This merely shows the effectiveness of the intelligent,
democratic manner in which our people, completely independent of this com-
pany and other companies in town, can manage their own affairs!
The foregoing represents 'a clear and open advocacy of the formation of a com-
pany union in lieu of affiliation with the Union. There is very little development on
the Santone Federal Credit Union which the Respondent puts forward as a model
THE JUVENILE MANUFACTURING COMPANY, INC. 1535
for the formation of a company union, and, of course, if the said Credit Union is in-
dependently controlled by employees, without managerial participation, there is no
harm in suggesting it as a model. Otherwise, Respondent would have been ad-
vocating the formation of a company dominated union, unlawful since 1935, and
I would want very substantial evidence before assuming that to be the case.
It is a little difficult at times to determine just where the privileges of Section 8
(c) of the Act end. There are no threats attached to Scherr's advocacy of a company
union, and no promises of benefits from management to ensue from its formation,
though there is a militant argument that the employees would find it beneficial.
Again, though not entirely without doubts, I must find that the written and oral
statements do not of themselves constitute a violation of the Act, though accompany-
ing conduct, if any, designed to supplement the oral and written arguments would
demand close scrutiny. It is one thing for an employer to sing the praises of an
independent company union but quite another to participate in its formation thereby
robbing it of its bona fide independent character from the start. In fact, it is ques-
tionable whether employees interested in and desirous of truly independent action
with respect to a labor organization, want, need, or would invite the advice of their
employer.
I have no such doubt with respect to the allegation of a promise of sick benefit
insurance as a reward for withdrawals from the Union. Here the Respondent was
merely arguing that by subscribing to the existing group insurance plan in Re-
spondent's organization, the employees would gain more in the way of sick benefits
for less money than they were receiving from the Union for the amount paid the
Union in dues. As stated in Respondent's brief, this clearly was not a promise of
anything; it was an argument, without threat or promise, and as such is properly
left to the judgment and good sense of the employees.
In general, except that it repeatedly affirmed the employees' right to join or not
join the Union and the Respondent's intention to respect that right, Respondent's
oral and written antiunion propaganda was distinctive chiefly for its lack of
novelty. In it, the Respondent refers to those "of us" who are not Union, equates
confidence in the Respondent with repudiation of union affiliation,26 and beginning
with Scherr's speech to assembled employees on February 16, when he announced
the termination of the union contract and referred to the "191 of us" who do,not
belong to the Union, on through the communications which followed in ensuing
months, we find many of the stereotypes of antiunion propaganda, such as the
references to "absentee landlords" in St. Louis and New York; 27 the appellation
of "professional agitator" ,bestowed on one of the Union's representatives; 28 the
claim that the Union is interested primarily if not solely in collecting union dues and
squandering them in riotous living, 29 references to certain union practices and
claims as "brain washing" and the employment of "threats, confusion, professional
agitation, and the big lie", 30 and indictment of the Union's alleged opposition to an
election as following the example of Hitler and Mussolini who "feared elections
and would not let the people vote." 31 Along with these letters went certain en-
closures, such as reprints from the April 1954 issue of Fortune on "The Scandals
in Union Welfare Funds"; an article from the Reader's Digest called "Wanted: A
Bill of Rights for the Union Man", and a typical effusion by the eminent columnist,
Westbrook Pegler, entitled "Unions Are Un-American." 32
20 Letter of February 24 • "We shall never forget your continuing loyalty and under-
standing at this time " Letter of February 18, after announcing that "285 of us are
now non-union !"-"We greatly appreciate the expressions of confidence most of you are
placing in the Company We will do eveiything humanly possible to always deserNe
this confidence !"
27 Letter of Februaiy 21
28 lhid
'0Letters of February 28, Maich 1, and others For instance, letter of September 7:
"Last year, the International Ladies' Garment Workers' Union paid almost 11/, million
dollars in salaries and expenses to its organizers, agitators, and professional
troublemakers "
ao Letter of February 21.
31 Letter of February 23
32It may be complained that these references are "out of contest" They ari' but
they have been considered in context and much time has been consumed thereby To
reproduce in this report the voluminous propaganda air, toto would tax the resources of
the agency It is all in the exhibit file, easy of access to whomever it concerns in an
official capacity.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is by no means the first time this Trial Examiner has been called on to review
subject matter of this character for the purpose of deciding whether it constitutes
an unlawful invasion of employee rights under the Act.33 It seems reasonably
clear that it is with respect to matter of this character that the Board has said it
"prefers to leave to the good sense of the voters the task of appraising such propa-
ganda." Trinity Steel Co., 97 NLRB 1486, at 1487. Nevertheless it is necessary to
consider this material as a part of an entire situation, for it is a far cry from neutral-
ity; it provides a frame of reference for accompanying conduct; and while not un-
lawful it necessarily had an impact on employee thinking, as it was intended to,
overshadowing for many, I have no doubt, Respondent's repeated assurances that
they were free to remain in the Union if they chose to do so and would not be
discriminated against, although I believe those assurances to have been sincere.
It is appropriate and proper that we should take all this into consideration in deter-
mining whether the Respondent exceeded permissible limits in the matter of with-
drawals from the Union.34
B. The withdrawals
Petitions or letters of withdrawal from the Union and cancellation of the checkoff
authorizations were for the most part prepared and circulated in Respondent's plant
following Scherr's speech to employees on February 16 and a meeting between Scherr
and a group of employees in Production Manager Bilhartz's office either following
Scherr's speech on February 16 or on the following morning. These letters and/or
petitions, most of them dated February 17, were signed by 117 employees. They
were prepared at the request of employees by Respondent's Personnel Director
Tucker, and circulated in the plant during working hours, employees being approached
for their signatures while at their work stations, all with the knowledge and assent
of Harold Scherr, all as admitted by Scherr with commendable candor.
Respondent's defense to this allegedly unlawful procedure, is threefold: (1) that
the petitions were initiated, sponsored, and circulated by non-managerial employees;
(2) that it was customary for Tucker to assist employees in their personal affairs,
and that petitions of various sorts were customarily circulated in the plant during
working hours; and (3) that far greater privileges had been extended to the Union
in the past, and, contemporaneously with the circulation of the withdrawal petitions,
the Union was permitted to distribute its propaganda both in and outside the plant
and its agents were permitted to carry on their activities within the plant.
(1) In a sense, certainly the petitions were initiated by employees, for it was
employees who went to Tucker and asked her to draw up the forms for them, and it
was nonmanagerial employees who actually circulated the petitions, there being no
evidence that managerial employees actually solicited employees to sign. It is equally
clear to me that except for Scherr's speech on February 16 and his later conference
with a group of employees, the petitions would not have been circulated. One of
those who requested Tucker to prepare the forms was Mildred Mills, an employee
of the bundling department, who as one of some six employees as early as January
had approached Tucker for the latter's assistance in preparing withdrawals from the
Union, and because no such assistance was forthcoming at that time, let the matter
drop and did not renew her request until after Scherr's speech and the conference in
Bilhartz' office. This is not to say that employees like Mills and her associates in
the bundling department did not want to withdraw from the Union or were pressured
into withdrawing by any action by the Respondent. The point is that the Respondent
provided the "tip-off" that such action would now meet with company sanction, or,
as expressed by Evadna Ripps, "When he [Scherr] gave us the lead, that we could
get out of the union if we wanted to, well naturally all of us went wild.. .. 35 But
Scherr did much more than just inform the employees of their right to join or refrain
from joining the Union and the Respondent's intention to respect that right. At the
same time he imparted this salutary information, he departed from any semblance of
neutrality in the matter, for he chose the same occasion for launching his attack
on the Union, and in his followup conferences with some 15 employees of the coat
department, called at the request of 1 or more of the said employees, and in answer
to questions put to him by the said employees, advised them that they were not
' See, for instance, Grand Central Aircraft Co., Inc., 103 NLRB 1114, enfd. 216 F. 2d
572 (C. A. 9).
in this campaign to of ganize the union the employer was set against it ;
and every equivocal act that was done may be properly viewed in the light of
Respondent's animus toward the effort to organize its men." N. L B B. v Houston and
North Texas Motor Freight Lines, Inc, 193 F 2d 394 (C A. 5) ; cert denied 343 U. S 934.
3c There was much testimony that Scherr's remarks met with loud and frequent applause.
THE JUVENILE MANUFACTURING COMPANY, INC. 1537
required to belong to the Union, would lose no benefits previously acquired by with-
drawing from the Union, that they could have a union of their own though without
company participation, and a health clinic and health insurance of their own for
less money than they were paying the Union in dues.36
It was against this background of positive and personal assurances by Respondent's
executive officer that they would lose nothing by disaffiliating with the Union but
stood to gain by it, that the withdrawal petitions were actually launched, and while,
as found, those assurances came within the letter of the law they nevertheless gave
impetus and aid and support to the activities of certain employees who independently
wanted to revoke their checkoff authorizations. This support became even more
tangible and conspicuous when Scherr, after consultation with his attorney, directed
his personnel director to prepare the withdrawal forms for employees who requested
them. Tucker not only prepared the forms but she actually assumed custody of them
by holding them in her office at such times as they were not being circulated in the
plant and at least some employees were instructed to go to her office for the purpose
of affixing their signatures and did so.37
(2) It is not doubted that Tucker was accustomed to extend her cooperation to
employees in such personal matters as the writing of letters, and that from time to
time petitions had been circulated in the plant both on and outside of company time,
though there is some question whether such petitions were customarily circulated by
rank-and-file employees. To argue that this justified active assistance to employees
in a matter of union repudiation is to argue a non sequitur. The Respondent could
lawfully contribute any amount of money it wanted to on the occasion of employee
illness or death, or to purely recreational occasions such as picnics, without affording
the least justification for contributing money toward the formation of a labor or-
ganization or the repudiation of one. The one thing is lawful; the other is not.
The situation is the same here, except as to degree. Furthermore, as remarked in
the Union's brief, that the preparation of the withdrawal petitions was no routine
accommodation is established by the fact requests for this assistance were honored
only after the Respondent had broken with the Union.
(3) It is equally true that unlawful assistance rendered to the Union in the past,
would not make lawful assistance of the same category rendered to those who wanted
to be rid of the Union, and as developed at some length in prior sections of this
report, there is no question that for some 15 years or more the Respondent rendered
unlawful assistance to the Union. All of that came to an abrupt and decisive end
on February 16 when Scherr announced the termination of a contract under which
the Respondent had pledged itself to cooperate within proper and lawful limits
toward the end that all production employees "become and remain members of the
Union in good standing." It is true and something to be considered that after
Scherr's break with the Union, union representatives were still permitted to visit
with employees in Respondent's cafeteria. This fact loses a good deal of significance,
however, when it is understood that Respondent's cafeteria was a semipublic place
where friends and relatives of the employees were free to come, and employees when
in the cafeteria were presumably there on their free time. It is a nice question,
therefore, whether the Respondent could lawfully exclude the Union's representatives
from conferring with employees on the latter's own time in such a semi-public place.
In any event it is clear that on and after February 16, the Union customarily dis-
tributed its literature outside the Respondent's plant and confined the activities of
its organizers when on company premises to Respondent's cafeteria. In short,
neither by its action nor its words nor to all appearances did the Respondent occupy
a position of neutrality as between those who wished to remain in the Union and
those who did not, and I think there could not have been among Respondent's em-
ployees even one so dull of perception as not to grasp this and be impressed by it.
Respondent's entire position as expressed in its speeches and written material was
that the Union was a bad thing and the employees would be better off without it. A
Se Credited testimony of Maude M Johnson, and others who in varying degrees had to
be "refreshed" on cross-examination concerning Scherr's statements at this meeting further
than his assurances that they were free to join or not join the Union. Since he had
already stated that very plainly in his speech, obviously these would have been no occa-
sion for a followup conference if this was all the information this group of employees
was seeking The fact that the conference was "sparked" by employee questions would
afford no justification, of course, for statements which would otherwise be violative of
the Act.
84 One employee was directed by Forelady DeAlva to go to Tucker's office if she wanted
to sign the petition, but was not solicited by DeAlva to sign
423784-57-vol 117-98 -
1538 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
more open solicitation and fomentation of withdrawals from the Union , short of
threats and promises of benefits , could hardly be imagined.
As stated in Respondent 's; brief it is a nice question just where lawful "cooperation"
ends and unlawful interference begins, but under the circumstances of this case,
weighed for their reasonable impact on the employee mind, I am of the opinion that
the bounds of lawful cooperation were exceeded . With the Respondent in the person
of its executive officer identifying itself with those "of us " who do not belong to the
Union, and informing employees in effect that not only would they lose nothing by
repudiating the Union but stood to gain by it; with employees circulating withdrawal
petitions prepared in the office of Respondent 's personnel director , openly in the
presence of supervisors during working hours,38 and with some employees actually
signing the petitions in the office of the personnel director , I think it would be a
reasonable assumption among employees generally that the Respondent not only
approved the withdrawal petitions and was sponsoring them but that it would be the
better part of wisdom if not of valor to sign them , inasmuch as copies with signatures
were filed with the Respondent-this despite Scherr 's repeated assurances that their
choice in the matter would be respected . It has some bearing on the matter, I think,
that some eight employees who signed the withdrawal letters later reaffiliated with
the Union , though without dues-paying requirement , and that those renewals of
membership were all obtained at the employees ' homes or at the union hall, but in
any event away from the plant 39
I conclude that under the circumstances of this case , the Respondent by soliciting,
fomenting , and lending aid and support to the circulation of the withdrawal letters
and petitions , interfered with , restrained , and coerced its employees within the mean-
ing of Section 8 (a) (1) of the Act 40
C. The election petitions
Close on the heels of the withdrawal letters and petitions, whose circulation was
fomented and actively assisted by the Respondent, the Respondent on February 23
filed an RM petition for an election with the Board. On March 25 the Board's Re-
gional Director dismissed the petition. Whether it was properly or improperly dis-
missed is not our concern in this proceeding. The action of dismissal was published
to the employees by the Union on the morning of March 28. At noon that day a
group of employees requested a conference with Scherr. The purpose, as testified to
by Evadna Ripps, a leader in this group: "Well, we wanted to see Mr. Scherr, and
I-we decided we would go ask Mr. Scherr if we could get a petition of our own;
we didn't know exactly how the petition should go or should be handled." Scherr
was out of town, but at 3 p. in. of that day a group of 3 or 4 employees, including
Ripps, met with Production Manager Bilhartz and Personnel Director Tucker.
Bilhartz did not testify but according to Ripps' testimony the employees asked Bilhartz
if the employees could get up a petition of their own for an election, and he replied that
"as far as he knew" they could, but that the Company could not be involved in the
matter. As Ripps testified, he told them, "if you get up a petition you will have to
go on your own and get it." Also during this meeting Ripps gave Bilhartz a list of
written questions which, according to her testimony, had been asked by employees
with whom she was associated. Ripps asked Bilhartz if he thought Scherr would
answer the questions, and suggested that a "general meeting" be called for that pur-
pose. Bilhartz thought this was a good idea and said he would refer the matter to
Scherr on the latter's return?'
38 When Norma Durst, prounion, complained to her supervisor that the petitions were
being circulated on company time, her supervisor replied, "Norma, go back to your
machine That is all right. She has peimission and the girls wanted it"
05 Taylor's credited testimony.
40 There is respectable authority cited in Respondent's brief for an argument to the
contrary, but I do not believe that the cited authority is "on all fours" with the facts of
this case. For the cited authority, see Chicago Rawhide Mtg. Co. v N L R R., 221 F.
2d 165 (C A. 7) ; H. H. Erikson, etc, d/b/a Detroit Plastic Products Company, 114
NLRB 1014; N. L R B v. Cleveland Trust Co, 214 F 2d 95 (C A. 6), N L It. B. v.
West Ohio Gas Co., 172 F. 2d 685 (C A. 6). In none of these cases, as I view them,
was company assistance, such as it was, lendeied against a background of such animus
toward a labor organization and such identification with a withdrawal movement, as is
encountered here.
43 Most of the findings on the election petitions are based on Ripps' testimony, Ripps
being the only witness testifying in detail on the topic She was Respondent's witness,
strongly biased against the Union, and her testimony was not altogether consistent or
THE JUVENILE MANUFACTURING COMPANY, INC. 1539
Still according to Ripps, she discussed the matter of an employee petition with her
associates Ann King and Beatrice Guerra, the latter one of those who had circulated
the earlier withdrawal petitions, that evening, and the next morning, March 29,
they decided to get up a petition. During the morning Ripps, and presumably her
associates, discussed the petition with fellow employees. Ripps said she told them,
"You don't have to be for the union or against the union. We just want to vote,"
and that many of them agreed to this. At noon that day Ripps, Guerra, King, and
Josephine Biesenbach, whom they had asked to accompany them because she worked
on a different floor of the plant, went to see an attorney whose office was within a
block of the plant, and was referred by him to other attorneys in the same building.
A discussion ensued on the preparation of a suitable petition, and the girls were
promised that appropriate forms would be prepared and ready for them at 5 o'clock
that same afternoon. This group of employees then returned to their jobs, the en-
tire transaction, according to Ripps, having taken place on the employees' own
time.
At about 4 o'clock that same day the employees were assembled in Respondent's
cafeteria and were there introduced by Scherr to Respondent's attorney, Bernard
Ladon, who addressed them. Ladon informed the employees that he had been ad-
vised that there was a meeting of the Union scheduled at 5 o'clock that afternoon,
and that employees were free to leave for the purpose of attending that meeting.
Further, according to Ladon, he told the employees that the Respondent's petition
for an election had been denied and assigned Tucker's assistance in the matter of
the withdrawal petitions as the reason for the denial. Continuing, according to his
testimony, he told the employees:
However, I am going to tell you exactly what we plan to do. We are not going
to quit. We are going to take this up to the office at the Regional Director at
Forth Worth ... and if we lose there, by golly, we are going to fight this thing
through to the finish because we believe we are right.
Besides extolling the virtues of free elections in language to which no American in
his right mind would take exception,42 and the Respondent's intention to abide by the
results of such an election though "Of course, we want to win," he discussed the
Board's election procedures, explaining, "a company can petition the Board to hold
an election, the union can petition the Board for an election, the employees, them-
selves, can petition the Board for an election."
Following his address, according to Ladon, either Scherr or Bilhartz told him
there had been a number of questions asked by employees, and Ladon then turned
to the employees and said, "Now, I have been advised that you people have a number
of questions that you want to ask. . If you will write your questions out I will
try to answer them as best I know how." Pursuant to this invitation some 20-odd
questions in writing were sent up to Ladon and he answered some or most of them.
Most of them were unsigned. Taking at random the first six that appear in the
exhibit file, we find this: (1) "If the Union went on strike would the members of
the Union or the no union members be allowed to work?" (2) "If you signed the
contract would all those who are out of the Union have to join again?" (3) "If
you have the majority of the people why not just forget the union-it is your com-
pany, your place"; (4) "I know we don't need the Union, the Union didn't hire me";
(5) "Some of the girls would like to know when and how we can get our $3.00 back
that we donated for the hospital that was never built"; (6) "And the five per cent we
now get would we continue to receive this if we are in or out of the Union?" There
is no reason to believe that any statements made by Ladon in response to the questions
satisfactory. Admitting on cross-examination that she was fully aware in 1954 that
union affiliation was not required, she also testified "we were scared" for Scherr "to hear
what we were saying," about getting out of the Union, and "we really were afraid
Mr. Scherr might throw us out if we caused a commotion over it," and at still another
point she testified that on hearing Lovell tell a new employee that she would have to
join the Union or be fired, she, Ripps, was "pretty burned up," and told the new em-
ployee "you don't have to join the Union if you don't want to join the Union ! . . . there's
a new law passed since that time ! . . I conclude on the basis of her entire testimony
that, well informed on her rights in the matter, she still would not assert them for fear
of incurring Scherr's displeasure. Her dependence on managerial direction and support
is clearly shown in the matter of the election petitions.
42 This from an employer who by its own admission had for some 17 years "cooperated"
with the Union in denying its employees any voice whatever in their choice of whether
or not to be represented by a labor organization. But stranger things have happened in
war-and politics, and who would deny the most arrant sinner a locus poeiiitentiae!
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were coercive . As a matter of fact , many of the questions submitted had already
been answered repeatedly by Scherr in his spoken and written propaganda.
At or near the conclusion of Ladon's speech, Ripps and her associates got the
petitions at the office of their attorney and on the following day circulated them in
the plant and all over the plant though not, according to Ripps, during working
hours. These petitions were submitted for employee signatures on declarations by
their sponsors that they merely called for an election, but actually they did more
than that . The text of this first petition , accompanied by a translation into Spanish,
read:
We the undersigned employees of the Juvenile Manufacturing Company do not
desire to have the International Ladies Garment Workers' Union -A. F. L.
as our bargaining representative and we desire the board to permit us to have
an election for the purpose of deciding whether the Union has a majority.
This petition , as seen, was no less a direct repudiation of the Union 'than were the
withdrawal petitions of an earlier date, and this fact was discovered and objected
to by certain employees , whereupon Ripps and others then engaged in circulating
the petition "scratched" out the reference to the Union. The petition already bore
a substantial body of names at that time . A union organizer , Arthur Sockol, then
in the cafeteria , discovered what was being done and advised employees not to sign,
telling them that the petition was not "legal ." Ripps complained to Scherr about
Sokol's intervention but Scherr refused to intervene , saying, "I can 't tell that man
to stay out of there " and "I think you can take care of yourself."
In midafternoon Ripps left the plant , went to the attorney 's office and there had
new petitions drawn with the language objected to deleted. On the following day,
and for several days thereafter , these new petitions were circulated in the plant.
A table was set up near the plant entrance in a corridor outside the cafeteria and for
some 3 or 4 days Ripps or some one or more of her associates sat at this table and
solicited employees to sign the petition . It was her testimony that all of this was
done outside of working hours. Following the circulation of the petitions , Ripps filed
election petition forms with the Regional Office'of the Board, enclosing a copy of
the petitions with signatures ; she also sent a copy of the latter to the Respondent.
Action on the election petition has been delayed , presumably because of the filing
by the Union of unfair labor practice charges and the subsequent issuance of a
complaint.
As I view it, the initiation and circulation of the election petitions followed sub-
stantially the same pattern as the earlier withdrawal petitions . On learning that the
Respondent's petition for an election had been denied, a small group of antiunion
employees , some of whom were active in the matter of the earlier withdrawals,
began discussing getting up another petition but before making any move sought
the advice of their Employer . Having been advised by Respondent 's production
manager that they could proceed with a petition of their own-but, of course, with-
out company participation-they went outside the Company for the actual prepara-
tion of the petitions , a departure from the prior withdrawal procedure . Before
the petitions were actually prepared , however, and therefore before their circulation
had been initiated , but obviously with company knowledge of what was in the offing,
all the employees were assembled in the Respondent 's cafeteria to hear a speech by
Attorney Ladon. What was the real purpose of this speech ? The employees had
already been advised that Respondent 's election petition had been denied . It would
be hard to escape the conclusion that the speech was rendered primarily for the
purpose of giving the employees the go-ahead signal on the circulation of a petition,
of their own; to warn them of what had befallen the Respondent 's petition because
of the assistance received in the matter of withdrawals from Tucker, and at the same
time to foment and stimulate interest in an employee -circulated petition . It little
matters whether during his speech Ladon said specifically , as employee Castillo
testified he did, that Respondent having failed in its petition the girls could go ahead
and file a petition of their own and the Company would back them , for all of this
was clearly implied if not actually said.43
43 Laden testified that lie had not heard of an employee petition at the time he spoke
and that there was no discussion of one, but admitted that he explained that "a petition
would have to be filed by them or a petition could be filed by the company or a petition
could be filed by the union . " Respondent 's witness , employee Ruby Bloxhani Purr,
testified he said , "that the first petition we signed was no good , we would have to get
another one , and we would have to do this outside of the plant and during hours, like
the lunch hour, that was no way connected with the plant. . " Ripps testified , "Well,
THE JUVENILE MANUFACTURING COMPANY, INC. 1541
The question and answer period which followed his address was clearly a carefully
staged piece of business . Ripps had handed Bilhartz some written questions the day
before and had suggested that Scherr call a meeting for the purpose of answering
questions . Actually, prior to Ladon's speech a box had been prepared for written
questions and placed in the cafeteria 44 Doubtless , there were other questions
actually written out during Ladon's presence in the cafeteria but the idea was not
exactly a spontaneous one, and the questions were patently designed for the most
part to afford additional assurances to employees from the authoritative voice of
Respondent's attorney that they had nothing to lose by getting out of the Union,
though their freedom to remain in the Union if they chose to do so was also af-
firmed. Since most of the questions had already been answered in Scherr 's written
or spoken statements , it seems fairly obvious that the added emphasis of answers
from Respondent 's counsel on this occasion coming contemporaneously with the
announcement from Respondent of the dismissal of its petition , and on the eve
of the circulation of still another petition among the employees , was for the purpose
of giving added impetus to a new withdrawal movement , initiated by pretty much
the same small group of employees that had been identified with the earlier with-
drawal petitions . And a withdrawal movement was exactly what the first petition
circulated by Ripps and associates was. The second petition circulated on the
following day was, however , a petition for an election, as both petitions were pur-
ported to be.
As in 'the case of the withdrawals , I am of the opinion that the Respondent ex-
ceeded permissible bounds of cooperation in the matter of the election petitions,
for I am convinced that under all the circumstances disclosed by the testimony, em-
ployees generally would believe , and reasonably so, that the real driving force be-
hind the circulation of these petitions was the Respondent 's desire to rid itself of
any obligation or threat of obligation to deal with the Uniori as the employees'
representative. No time to speak of was allowed to pass after the rejection of
Respondent 's election petition for the dissipation of the effects of what I have found
to have been Respondent 's unlawful intervention in the matter of the withdrawals,
before the new petitions were circulated , and employees generally would reasonably
believe that these new petitions carried the same Employer blessing so conspicuously
bestowed on the withdrawals . Here, as in the case of the withdrawal petitions, there
was no actual neutrality or show of neutrality although union representatives were
tolerated in such a semipublic place as the Respondent 's cafeteria . The activities of
a small group of antiunion employees were too carefully dovetailed with Ladon's
appearance and speech for this to have been merely coincidental , and while the
Respondent was careful to avoid any of the more flagrant manifestations of inter-
ference such as threats and specific promises of benefit , there was nevertheless, in
my opinion , interference and restraint flowing from Respondent 's active inter-
vention in a matter in which the employees ' independence of action should be given
every safeguard provided by the Act. There is perhaps nothing more important
under the Act than its guarantees that employees . shall be genuinely free of inter-
ference, restraint , and coercion in the matter of choosing or rejecting a bargaining
representative.
It is found that by encouraging , sponsoring, and lending aid and support to the
initiation and circulation of employee petitions for an election , the Respondent inter-
he said the employees , yes, could get up their petition That was one way he stated it."
Ladon , I have no doubt , was a very busy attorney and his recollection of the exact
language used in his speech, much of it devoted as it commendably was to extolling the
virtues of free elections , may therefore have been a bit inexact , but in any event it was
inexact His testimony was by no means consistent as to the time and manner in which
he obtained petition forms from the Board 's office, and his recollection was also faulty
as to his presence when Scherr made his speech on February 16, and in his denial that
he talked to Scherr prior to advising Tucker with respect to withdrawals . I do not find,
however, that he actually supplied employees with forms petitioning for an election. He
denied this and I credit his denial.
4 Ripps' testimony on cross -examination
Q Now, isn't it a fact that Theo Bilhartz actually told you and others in your
presence to write down these questions and put them in a box before the meeting?
A. Well, he may have.
Q. Well, isn ' t it a fact he did
A I don't recall , sir, whether he did or not , but I know that we were going to
have a question box, but I don 't recall if he told us
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with, restrained , and coerced its employees within the meaning of Section 8
(a) (1) of the Act.45
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2. The Union 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 employees in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section'8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not refused to bargain with the Union within the meaning
of Section 8 (a) (5) of the Act. '
[Recommendations omitted from publication. ]
45 It may be objected that interference in the matter of the election petitions is not
specifically alleged in the complaint . It is my opinion , however, that the allegation with
respect to support of withdrawals is broad enough to cover this phase of the case, and in
any event it was fully litigated.
The Great Atlantic and Pacific Tea Company and Shibley A.
Hider
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 88, AFL-CIO i [The Great Atlantic and Pacific
Tea Company] and Shibley A. Hider. Cases Nos. 14-CA-1390
and 14-CB-391. May 13, 1957
DECISION AND ORDER
On January 17, 1956, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents, namely, The Great Atlantic and Pacific Tea Company,
hereinafter called the Company, and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 88, AFL-CIO, herein-
after called the Union, had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions and briefs.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and the briefs, and the entire record in the
case 2 and hereby adopts the findings, conclusions, and recommenda-
i The AFL and CIO having merged subsequent to the hearing in this proceeding, we
are amending the identification of the affiliation of the Union accordingly
2 The Respondent Company's request for oral argument before the Board is hereby
denied as the record , exceptions , and briefs adequately present the issues and positions
of the parties
117 NLRB No. 200