American Optical Co.

National Labor Relations Board - Board Decisions

Jun 10, 1941

32 N.L.R.B. 455 (N.L.R.B. 1941)

In the Matter of AMERICAN OPTICAL COMPANY and UNITED OPTICAL
WORKERS UNION, LOCAL No. 853, C. I. O.
Case No. R-2550.-Decided June 10, 1941
Jurisdiction : optical equipment manufacturing industry.
Investigation and Certification of Representatives : existence of question: dis-
pute as to appropriate unit ; refusal to accord union recognition until it is
certified by the Board : election necessary.
Unit Appropriate for Collective Bargaining : optical shop workers, excluding
stockmen, messengers, clerical, maintenance, and supervisory employees.
Mr. S. G. Lippman, of Chicago, Ill., for the Union.
Mr. Otto Jaburek, of Chicago, Ill., for the Company.
Mr. Charles W. Schnzeider, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 7, 1941, United Optical Workers Union, Local No. 853,
affiliated with the Congress of Industrial Organizations, herein called
the Union, filed a petition with the Regional Director of the Thir-
teenth Region (Chicago, Illinois) alleging that a question affecting
commerce had arisen concerning the representation of employees of
American Optical Company, Chicago, Illinois, herein called the Com-
pany, and requesting an investigation and certification of repre-
•sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. OIL April 30, 1941, the
National Labor Relations Board, herein called the Board, acting
Pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On May 2, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the Union.
Pursuant to notice, a hearing was held on May 12, 1941, at Chicago,
32 N. L. R. B., No. 93.
455
456 DECISIONS OF NATIONAL LA130R RELATIONS BOARD
Illinois, before Stephen M. Reynolds, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Company and the Union
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses and
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing, the Trial Examiner made several
rulings on motions and objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner .and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
American Optical Company is a Massachusetts or business trust
having its principal offices in Southbridge, Massachusetts. It is en-
gaged in the business of filling optical prescriptions and manufactur-
ing optical and lens equipment. In connection with its manufacture
of equipment, it operates two factories-one at Southbridge, Massa-
chusetts, and one in Buffalo, New York. In connection with its opti-
cal business, it maintains 240 branch offices throughout the country.
These branch offices fill optical prescriptions and act as sales outlets
for the selling of optical equipment. No instruments are manufac-
tured in the branch offices. The unit involved in this case is the
Chicago branch office. The chief raw materials used at Chicago are
glass and metal for spectacle frames. 1111940 the Chicago office bought
raw materials to the value of $200,000, 90 per cent coming from
sources outside the State of Illinois. During the same period, the
Company's sales at the Chicago office were approximately $600,000.
About 40 per cent of the products sold ware shipped by the Chicago
office to points outside the State of Illinois. -
H. THE ORGANIZATION INVOLVED
United Optical Workers Union, Local No. 853, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 7, 1941, the Union notified the Company that it had been
designated as the bargaining agent for a majority of the employees of
the Company in the alleged appropriate unit. Negotiations looking
toward a consent election were undertaken but were terminated when
the parties were unable to agree as to the appropriate unit. The
AMERICAN OPTICAL COMPANY 457
Company thereupon refused to recognize the Union as the statutory
representative of its employees until the Union had been certified by
the Board. The Trial Examiner stated that the Union had submitted
evidence showing that it represents a substantial number of employees
in the unit which is alleged to be appropriate.'
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The emit desired by the Union consists of all optical shop employees
excluding stockmen, messengers, clerical and maintenance employees,
and supervisory employees. This unit is satisfactory to the Company
with the exception of five employees whom the Company wishes to
include in the unit on the ground that they are optical workers, but
whom the Union wishes to exclude. We shall consider the disputed
individuals separately.
Raymond, _VeMahon is listed on the pay roll as a maintenance
employee and lens hardener. The Union alleges that McMahon's
duties are substantially maintenance in character. However, 60 per
cent of McMahon's time is devoted to lens hardening, that is, the
treating of lenses to withstand abnormal shocks. Since this is pro-
duction work, McMahon will be included in the appropriate unit.
- Edward Zdziarek is a lap cutter. The lap cutter in an optical shop
cuts metal dies called "laps" which are used as forms for the abrasion
of rough glass into lenses of the proper curvature. The work of
abrading the rough glass against the lap is done by the surface grinder,
who is conceded to be an optical worker. It appears that ordinarily
lap cutting and surface grinding are performed by the same indi-
vidual. In the instant case, however, the volume of business of the
shop is great enough to warrant the utilization of Zdziarek exclu-
1 The Trial Examiner stated that the Union submitted 27 undated membership cards, all
bearing apparently genuine signatures , 18 of which bore names of persons on the Company's
pay roll for the week ending May 3, 1941 . There are approximately 38 employees in the
unit hereinafter found to be appropriate.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sively on lap cutting. We find that Zdziarek is engaged in produc-
tion work . We will include him in the unit.
John Donovan is an edger and inspector . He bevels the edges of
the lenses , mounts the lenses in the frames , and inspects the finished
product for conformance to optical standards and the optical pre-
scription . Ordinarily , this would warrant his inclusion in the unit.
However, Donovan also performs supervisory duties in the absence of
the superintendent . Accordingly, we shall exclude him from the unit.
Alfred P. Hofmann and William Rosenbaum are engaged exclu-
sively in the maintenance of the machines with which the optical
employees work. The Company desires their inclusion in the unit
on the ground that the optical and maintenance work are closely re-
lated. However, the maintenance men are not eligible for member-
ship in the Union. Two other organizations , the United, Electrical,
Radio and Machine Workers Union , and the International Associa-
tion of Machinists , admit them to membership . The Board has often
found a unit composed only of production employees to be appropri-
ate. We will exclude the maintenance employees from the unit.
We find that all optical shop workers , excluding stockmen, mes-
sengers, clerical , maintenance , and supervisory employees , constitute
a unit appropriate for the purposes of collective bargaining and that
said unit will insure to the employees of the Company the full bene-
fit of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by an
election by secret ballot.
The Union requests that only persons employed on the date it filed
its petition be eligible to vote, on the ground that changes in the Com-
pany's pay roll since that date may have adected its majority status.
The Company desires that a current pay roll be used to determine:
eligibility to vote. It stated that it does not anticipate any substantial
changes in personnel. We shall follow our usual practice and direct
that the employees of the Company eligible to vote in the election shall
be those in the appropriate unit employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to such limitations and additions as are set forth in the
Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
AMERICAN OPTICAL COMPANY
CONCLUSIONS of LAW
459
- 1. A question affecting commerce has arisen concerning the repre-
sentation of employees of American Optical Company, Chicago, Illi-
nois, within the meaning of Section 9 (c) and Section.2 (6) and, (7)
of the Act.
2. All optical,shop workers of, the Company,, excluding stockmen,
messengers, clerical, maintenance, and supervisory employees, con-
stitute a unit appropriate for' the purposes' of collective barg fining
within the nieanilig of, Section 9 (b) of, the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act
and pursuant 'to Article III, Section' 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the, purposes of collective bargaining
with 'American Optical Company, Chicago, Illinois, an election by
secret' ballot shall be"conducted as'early as possible, but not later than
thirty (30) days froin,the date of this Direction of Election, under the
direction and supervision of the Regional Director for-the Thirteenth
Region, acting in this matter as agent for the National Labor Relations
Board; and subject to Article III, Section 9, of said Rules and Regula-
tions, among all optical shop workers 'of the American Optical Com-
pany, Chicago, Illinois, who were employed by it during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or 'in the active military service or training
of the United States or temporarily laid off, but excluding stockmen,
messengers, clerical, maintenance, and supervisory employees, and
employees who have since quit or been discharged for cause, toa de-
termine whether or not they desire to be represented by United Optical
Workers Union, Local No. 853,1affiliated with the Congress of Indus-
trial Organizations, for the purposes of collective bargaining.