American Optical Co.Download PDFNational Labor Relations Board - Board DecisionsApr 18, 195193 N.L.R.B. 1547 (N.L.R.B. 1951) Copy Citation AMERICAN OPTICAL COMPANY 1547 2. The Respondent , The Radio Officers' Union of the Commercial Telegraphers Union, AFL, is a labor organization within the meaning of Section 2 ( 5) of the .amended Act. .3. By restraining and coercing employees and prospective employees in the 'exercise of a right guaranteed in Section 7 of the amended Act, the Respondent did engage in and has continued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the amended Act. 4. By causing A. H. Bull Steamship Company, an employer, to discriminate against a prospective employee in violation of Section 8 (a) (3) of the amended Act, the Respondent engaged in , and is engaging in, unfair labor practices within the meaning of Section 8 (b) (2) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the amended Act. (Recommended Order omitted from publication in this volume.] AMERICAN OPTICAL COMPANY and UNITED OPTICAL AND INSTRUMENT WORKERS of AMERICA, LOCAL No. 28, "CIO. Case No. 1-CA-676. April 18,1951 Decision and Order On January 9, 1.951, Trial Examiner Sidney L. Feiler issued his Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices and recommended dismissal of the allegations of the complaint relating thereto. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner 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 briefs and exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, including his dismissal of the complaint with respect to the discharge of William Morin. Order Upon the entire record in this case and pursuant to Section 10 (c) ,of the National Labor Relations Act, the National Labor Relations 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Murdock and Styles]. 2 At the hearing the Respondent moved that the complaint be dismissed on the ground that the record did not show any allegation or proof that the Union was in compliance with Section 9 (f), (g), and ( h) of the Act. For the reasons stated in Lion Oil Company, 76 NLRB 565 , we affirm the Trial Examiner ' s denial of this motion. 93 NLRB No. 265. 1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board hereby orders that the Respondent, American Optical Com- pany, its officers, c gents; successors, and assigns, shall : 1. Cease and desist from : (a) Questioning employees at its Worcester branch concerning their- union affiliation and sympathies. (b) Promising employees at its Worcester branch benefits if union organization at this branch is rejected. (c) Engaging in like or related acts or conduct interfering with, restraining, or coercing employees at said branch in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of mutual aid or pro- tection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: - (a) Post at its Worcester, Massachusetts, branch, copies of the notice attached hereto and marked Appendix A 3 Copies of said no- tice, to be furnished by the Regional Director for the First Region, after being signed by an authorized representative of the Respondent, shall be posted by the Respondent at its Worcester Branch and main- tained 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 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 First Region in writing with ten (10) days from the receipt of this Decision and Order what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent discriminatorily discharged William J. Morin. Intermediate Report and Recommended Order Mr. Joseph Lepie, for the General Counsel. Messrs. Gerard D. Reilly, of Washington, D. C., and Juliana A. Wilhelm, of Southbridge , Mass., for the Respondent. Mr. James A. Beattie , of Boston , Mass, for the Union. 3 The notice shall be amended by substituting in the caption the phrase , "A Decision and Order" for "The Recommendations of a Trial Examiner ." If this Order is enforced by a decree of ii United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." AMERICAN OPTICAL COMPANY 1549 STATEMENT OF THE CASE Upon a charge filed by United Optical and Instrument Workers of America, Local No. 28, CIO, herein called the Union, against American Optical Company, herein referred to as the Respondent, the General Counsel of the National Labor Relations Board' by the Regional Director for the First Region ( Boston, Massachusetts), issued a complaint dated September 8, 1950, against said Respondent alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat 136, herein called the Act. With respect to the unfair labor practices the complaint alleges in substance that: (1) The Respondent on or about April 14, 1950, discharged William Morin because of his union membership and activities; (2) the Respondent from on or about April 10, 1950, has interrogated its employees concerning their union affiliation; (3) has warned its employees to refrain from assisting , becoming members of or remaining members of the Union; and (4) has promised its employees benefits if the Union was unsuccessful in organizing its employees The Respondent in its answer dated September 15, 1950, admits certain juris- dictional allegations, but denies the commission of any unfair labor practices. The Respondent prior to the hearing also filed a motion to dismiss the complaint on the ground that the charge attached to the complaint does not show that the compliance status of the Union has been verified in accordance with the requirements of the Board's Rules and Regulations and because it does not appear that there has been compliance with all the requirements of Section 9 (f), (g), and (h) of the Act. This motion was referred to Trial Examiner Robert E. Mullin, who on September 26, 1950, issued an order denying the motion 'Pursuant to notice, a hearing was held at Worcester, Massachusetts, from October 10 through October 13, 1950, before the undersigned Sidney L. Feller, the Trial Examiner designated by the Chief Trial Examiner. All the parties R ere represented by counsel or a representative. Full opportunity to be heard and to examine and cross-examine witnesses was afforded all parties. At the beginning of the hearing the Respondent renewed its motion to dismiss the complaint on the basis that there was no allegation therein that the Union had complied with the filing requirements set forth in the Act The motion was denied At the conclusion of the General Counsel' s case-in-chief the Re- spondent renewed its motion to dismiss on the ground that no evidence was submitted to show compliance with Section 9 (f), (g), and (h) of the Act, and also because there had been a failure of proof This motion was denied. At the conclusion of the taking of testimony the General Counsel moved to conform the pleadings to the proof as to formal matters. This motion was granted as to all pleadings without objection. The parties then waived oral argument. Opportunity was afforded them to file briefs and/or proposed findings of fact and conclusions of law. Briefs were received from the General Counsel and the Respondent. Upon the entire record and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Massachusetts business trust having its principal office and place of business in Southbridge, Massachusetts. While it manufactures 1 The General Counsel and the attorney representing him at the bearing are referred to as the General Counsel. The National Labor Relations Board is referred to as the Board. 1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and sells noncorrective sunglasses , safety equipment, clothing, specialty products, and instruments, the major portion of its business is the manufacture, sale, and distribution of ophthalmic equipment and material (i. e., materials for the cor- rection of vision). It maintains a plant at Southbridge, Massachusetts, where, lenses, frames, mountings, refracting equipment, and machinery for optical laboratory use are produced. In the last 12 months the Respondent purchased materials and equipment, for use at its Southbridge plant, valued in excess of & million dollars, of which in excess of 50 percent was shipped from points out- side the State of Massachusetts to the Southbridge plant. During the same- period its total sales were valued at approximately 10 million dollars of which. over 75 percent was shipped to points outside the State of Massachusetts. Ophthalmic or corrective supplies and equipment are shipped to, zone offices located throughout the country from which most of these products are sent to, 280 branches in the United States and 40 in Canada for ultimate, use and sale. Branch offices operate as ophthalmic prescription laboratories filling prescrip- tions at the request of members of the eye-care profession and also supplying raw materials and equipment to members of the ophthalmic profession. The unfair labor practices set forth in the complaint are alleged to have oc- curred at the Worchester, Massachusetts, branch of the Respondent. This branch is one of 23 like branches under the jurisdiction of New England Zone Manager Howard H. McEvoy, whose headquarters are in Boston. The Worcester branch serves customers in Worcester County, Massachusetts, and Putnam , Connecticut. Its annual use of materials is in excess of $100,000' of which the largest item is lenses received from the Southbridge, Massachusetts, plant. Its annual sales are in excess of $230,000. Of these total sales approxi- mately 60 percent is made to members of the ophthalmic profession and the principal work performed at this branch is the filling of prescriptions by lab- oratory workers. The Respondent concedes that it is engaged in commerce within the meaning of the Act in its business operations, including those of the Worcester branch, and the undersigned so finds.' II. TIIE LABOR ORGANIZATION INVOLVED United Optical and Instrument Workers of America, Local No. 28, affiliatecl with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent 3 III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events The Worcester branch occupies approximately 1,300 square feet of space which is partitioned into four rooms. One room serves as the general office, another as the stockroom, a third as the surface grinding room where lenses are ground to prescription requirements, and in the fourth room laboratory technicians grind the edges of lenses and fit them into frames. In March 1950 the Worcester staff consisted of a branch manager, Nils A. Pierson, four office girls, one office boy. and nine laboratory workers. 2 The Borden Company, Southern Division, 91 NLRB 628 Other cases in which the- Board has asserted jurisdiction over the operations of the Respondent can be found at 32 NLRB 455, 33 NLRB 950, and 63 NLRB 924. 3 The Union has been certified at different times as collective bargaining representative in seven units in the New England zone covering 25 percent of all employees in the zone- AMERICAN OPTICAL COMPANY 155r It was customary for the laboratory workers to eat lunch together in one of the laboratory rooms. In the beginning of March 1950, these men began to discuss, the Union. At about the middle of the month they delegated one of their group,, Francis Foster, to contact the Union. Foster communicated with James A Beattie, a representative of the Union, and arranged to have him meet with the men at the home of another employee,, William J Morin. Morin's home was chosen because Morin, in addition to being an employee of the Respondent, was also a licensed optometrist and conducted business as an optometrist at his home in Leominster, Massachusetts, in.evening hours and other nonworking periods, and he wished to be available at his home on the night of the meeting for any patients who might appear. The union meeting took place on the night of April 4. Seven of the laboratory workers met with Beattie on that night at Morin's house. The Union was dis- cussed and the men signed membership cards. On April 5, Beattie sent a letter to the Respondent requesting recognition for a unit of the laboratory workers at the Worcester branch. On April 7 a reply was sent him suggesting that the Union seek a Board-conducted election in order to determine whether the em- ployees wished union representation. On April 6 Beattie filed with the Board a petition seeking a Board-conducted- election. Notice of the filing of this petition and the beginning of an investigation concerning it, was sent the Respondent and the Union on April 11. Beattie re- ceived his notice by mail on the morning of April 12. Pursuant to a Board deci- sion an election was held on June 9, 1950, in a unit consisting of all the laboratory workers at the Worcester branch. The balloting resulted in a 4-4 tie on the question of union representation with one challenged ballot-Morin's. No further action has been taken pending the outcome of this proceeding. B. Acts of interference, restraint, and coercion Soon after the Union made its demand for recognition, Pierson engaged indi-_ Nidual employees in conversations concerning it. The first such conversation took place about April 10 with Foster. Others occurred later but the dates of these could not be fixed acurately by the witnesses. However, Pierson even- tually spoke with seven of the nine laboratory employees. He did not speak' with Morin or Peter Paul Pastore. Pierson testified as follows concerning the substance of these conversations: A. The conversations were all generally along the same line. Naturally, they differed some. I brought out the fact that we had received this request for Union recognition. I asked them what they thought their possible causes for such a request might be, and generally what they thought any gripes might be, or anything like that, that would cause any dissatisfaction. Trial Examiner FEII.ER : Anything else? The Witness : I believe I asked them if they thought that it would be a generally good thing for the organization, that is, the employees as a group. There was considerably more conversation back and forth, but I think that is the meat of the conversations. Poster's version of his conversation with Pierson concerning the Union is as, follows : He asked me what I knew about the Union, and I told him not too much, and he said he didn't want me to mention any names or implicate anyone and proceeded to say he didn't think it was too good an idea, that for men that were in Springfield, where there was a Union, we were equally as well off as they... . 1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pierson denied that he made any reference to conditions in Springfield during his conversation with Foster although he admitted that it was possible that he had made such a reference. He maintained that he stopped Foster and asked liim if he had heard about the Union's request for recognition and that it was in that connection that Foster replied that he did not know too much about it. Timothy O'Connor, Jr., also had a conversation with Pierson concerning the Union. His testimony as to what was said is as follows : A. Mr. Pierson asked me if I knew about the Union, and I said yes. He says, "The Union out in Springfield hasn't done anything good for the employees out there. By the time they get done paying their Union dues, they're no better off than we are, that we'd have no more family life there in the A. 0." Trial Examiner F EILE1: In what? The Witness : We'd have no more family life in the A. O. Trial Examiner FEILER: With the Union? The Witness : With the Union in there, and if we wanted a favor, we won't be able to ask Mr. Pierson. We would have to go through channels in the Union and what-not. That's about all he said that I can remember. No further testimony was offered as to these conversations There is no serious conflict in the testimony of Pierson. Foster, and O'Connor and the under- signed has accepted their testimony as indicated in the finding herein. Pierson testified that the idea of speaking to the employees concerning the Union was his own idea and that he did not seek or obtain DMIcEvoy's approval to speak to the employees. However, he testified, he (lid speak with Lawrence E. Haskins, assistant zone manager of the Boston zone and McEvoy's adviser on labor relations, who approved the idea. He further testified that he reported to Haskins and McEvoy as to what men he had spoken to and what the con- versations were about The Respondent contends that Pierson's remarks were not violative of the Act because there was no attempt to inquire into union activities, but merely an attempt to find out whether the Union's request for recognition was mo- 'tivated by any employee grievances The undersigned does not agree. Contrary to the contention of the Respondent, the undersigned finds that there was interrogation here which sought to probe the union sympathies of those questioned. Pierson himself testified that he asked the employees whether the Union would be a good thing for the employees as a group. Obviously, the answer to that question in each case would reveal whether or not the employee was or was not in favor of the Union. ( uestions as to what employees "think" or "feel" about a union are violative of the Act' Pierson's questioning in this case similarly violated the employees' right to the privacy of their own opinions concerning activities protected by the Act and, as such, constituted a violation of Section 8 (a) (1) of the Act.' Pierson's motives, even if they were innocent, :ire immaterial in this connection.' The fact that, as Foster testified, Pierson did not attempt to secure the names of union members does not detract from the violation of the Act inherent in the questioning itself. Moreover, this was not an isolated spur-of-the-moment impulse on the part of Pierson. Ultimately, lie questioned seven of the nine employees in the appropriate unit. His su- periors knew what he was doing and received reports from him concerning the conversations. 4 Morristown Knitting Mills , 80 NLRB 731, 745. 5 Standard-Coosa-Thatcher Company, 85 NLRB 1358. The F C. Russell Company, 92 NLRB 206. AMERICAN OPTICAL COMPANY 1553 It has also been held that asking employees if any reports of a union had come to their attention is violative of the Act.' Foster and O'Connor were both asked such a question by Pierson. The undersigned agrees with the Respondent that Pierson's disparagement of the Union was not violative of the Act. As to O'Connor's testimony that Pierson told him that with the Union representing the employees the men would not be able to ask him for favors but would have to proceed through the Union, insofar as Pierson did not restrict his statement to the processing of grievances, he clearly misstated the implications of union representation. However, the undersigned concludes that this remark, in the absence of further comment by Pierson clarifying his meaning, was not violative of the Act. The Respondent contends that the questioning of employees by Pierson was not within the allegations of the complaint wherein it is alleged in part that the Respondent "interrogated its employees concerning their union affiliation." Pierson's questioning did have the effect of requiring employees indirectly to reveal their union affiliation and sympathies and this violation, therefore, is within the scope of the pleadings. In addition, there was full litigation of the circumstances under which Pierson questioned the laboratory workers. The complaint further alleges that the Respondent violated the Act by promis- ing its employees benefits if the Union was unsuccessful. The evidence on this point deals with occurrences on the night before the representation election held among the laboratory workers of, the Worcester branch when a dinner was given for them by the Respondent. It was the only dinner ever given by the Respond- ent for these employees. Pierson was the only management representative attending. He testified that the idea for the dinner was his, but that McEvoy approved the suggestion when he told McEvoy that the purpose of the dinner would be to have an open discussion, allow the employees to say anything they might choose to, and also, he, Pierson, would probably express his personal opinion to some extent. The Respondent paid for the dinner. Pierson's testimony as to what was said at the dinner is as follows : Q. What did you say? A. I brought up the matter by simply stating that I believed we all real- ized that we had an important thing in front of us the following day, and I thought possibly there was something that some of the fellows, some questions the fellows might like to ask me, anything they might like to say. That opened a general discussion that lasted a considerable length, with practically everybody-if not everybody-taking part. Q. Did you warn these employees against joining the Union or voting for it? A. No. I did not. Q. Did you make any threats at all? A. No. Q. To use the words of the Complaint, did you promise the employees benefits if the Union was not successful in an election? A. No. Q. You have been quoted here as saying that you would have a freer hand at giving them raises if the Union was not successful. Did you say any- thing along that line? A. Well, yes, I did. In doing that, there was more to it. I pointed out that if they elected to have a Union, that the only way any changes of any ' The Warren Company, Incorporated, 90 NLII.B 689. 943732-51-99 1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kind could be made, would be, as I understood it, through Union negotiation. That would be the only way to make changes of any kind ; whereas if they were not organized as a Union, I could make changes on the basis of merit simply by recommending, certainly giving we a freer hand. Pierson further testified that in the past he had recommended merit increases for individual employees to McEvoy and that in practically every case his rec- ommendation had been followed. He also added that at the dinner he men- tioned that $62 was the top union wage but that if increases were based strictly on merit an employee could earn according to his ability and value to the Company rather than according to any stipulated contract rate. Three employees who attended the dinner at Pierson's invitation testified concerning what was said there. Francis E. Foster testified that Pierson said that he was not in favor of the Union and that if the men did not vote for it, the Boston office would probably give him a freer hand in giving raises; that the Union was not working too well in other branches of the Company, such as Springfield. Timothy O'Conner, Jr., agreed with Foster's version; he also added that Pierson stated that even if the men did get $62 a week that would be as far as they would go, whereas, if the men voted against the Union, he would probably have a free hand to make raises in the future. Peter Paul Pastore testified that Pierson stated that it would make him very happy if the men voted against the Union and that it took something like this to give the Company a "kick in the pants" and that if the men would vote against the Union he would get a freer hand and would see what he could do. The undersigned, from his observation of the, witness, credits the testimony of Foster, O'Connor, and Pastore and concludes from all the evidence that Pierson did more than indicate that without a union, merit increases could be made on recommendation whereas with a union such changes would have to be negotiated. The credited testimony indicates that Pierson strongly hinted that the defeat of the Union would result in liberal treatment in the awarding of raises. It constituted a promise of financial benefit if the men voted against the Union and, as such, was violative of the Act.8 C. The discharge of William J. Morin William J. Morin was discharged by Pierson at the close of business on April 14. Morin had been employed by the Respondent since 1937 as a lens grinder although he had not always worked full time. He studied optometry from 1939 until 1943 and worked for the Respondent only during the summer months of that period. After his graduation he returned to the Respondent's full-time employ and so continued until his termination. He was stationed in the Worcester branch from September 1943. Dr. Morin received his State license in 1946 and in May of that year opened his own office at his home for the private practice of optometry on his own free time. The Respondent was aware of this private practice because Morin brought his prescriptions to the Worcester branch for completion and the Respondent maintained records for him as well as other customers showing the monthly amount of purchases of supplies or of prescription work and each year an entry was made on his records showing his estimated or projected purchasing power. The Respondent does not assert that it discharged Dr. Morin because of his work as a laboratory employee ; rather it maintains that it took the action it did because of certain 8 Medo Photo Supply Corp . v. N. L. R. B., 321 U. S. 678, 686 ; May Department Stores Co. v. N. L R. B, 326 U. S 376, 385. AMERICAN OPTICAL COMPANY 1555 action taken and the possibility of additional action by the Massachusetts Society of Optometrists. The action on which the Respondent relies was originated by Dr. Fred H. Gathercole, an optometrist with offices in Fitchburg, Massachusetts. Dr. Gather- cole testified that he had patients in the adjoining city of Leominster where Dr. Morin practiced and that some of those patients told him that their friends and neighbors had been able to obtain professional services from Dr. Morin at prices substantially less than Dr. Gathercole's and other optometrists'. Dr. Gathercole attended the annual convention of the New England Council of Optometrists on March 12, 1950, and there, he met and spoke with John P. Regan, sales manager of the Respondent for the New England zone. The substance of their conversation, according to Dr. Gathercole, was as follows- A. I registered a complaint with him that he had in his employ a man who was charging sub-standard fees and I was getting complaints from patients of mine from Leominster. And the point I wanted to make to him was that I didn't think it was fair for them to hire a man who took: advantage of having his living provided for and then could, on his spare- time without any extra overhead, do work at sub-standard fees. I just: was not finding fault with Dr. Morin as I was with the American Optical! Company conducting that kind of a situation, and the purpose of it was that I thought they would say to Morin, "Well, if you are going to work for us and practice optometry and compete with the other optometrists, you have got to do it in such a way that there is no objection." That was my point in making the complaint. Q. Who brought up the subject of Dr. Morin? Did you bring it up or did Mr . Regan? A. I brought it up. Q. What did Mr. Regan say? A. Well, he sort of nodded his head -in a gesture of understanding my complaint and my position of what I was complaining about. But he- said, "You know, there is nothing very much that we can do about it. Why don't you take it up with your Society? I should think that that that would, be the place to take it to get action, would be to take the matter up with. your Society." Regan in his testimony was not in any substantial disagreement with Dr. Gathercole. He testified that Dr. Gathercole complained to him that Dr. Morin was charging substandard fees and that he told Dr. Gathercole that the question of charging substandard fees would seem to be a matter for the State society rather than the Respondent. Regan did not report this conversation to McEvoy. On March 28, Dr. Gathercole presented the following motion at a meeting of the Wachusett District of the Massachusetts Society of Optometrists as recorded in the minutes of that meeting "A motion was made and passed that the chairman take up with the executive committee the matter of an optometrist practicing in the District, charging sub-standard fees while working for a wholesale laboratory." On April 12, Dr. Howard A. Bemis, chairman of the Wachusett district, went to, Boston to attend a meeting of the executive committee of the State society and to present the above resolution for consideration. But before attending the meet- ing he visited the offices of the Respondent. His purpose in going there, he- testified, was to see Regan in order to find out whether he had actually suggested to Dr. Gathercole that action against Dr. Morin be initiated in the State society. Regan was not in and Dr. Bemis then went to McEvoy, showed him a copy of the motion, and told McEvoy that he intended to present it to the executive 1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee when it met that day. Dr. Bemis did not have an exact copy of the motion as recorded in the minutes of the meeting; the resolution as he had recorded it and as he showed it to McEvoy read as follows : That the Chairman of the Wachusett Society be instructed to present the Executive Board of the Massachusetts Society of Optometrists, the matter of an optometrist practicing in a community within the Wachusett District, in an unethical manner while also in the employ of a wholesale laboratory. Dr. Bemis also told McEvoy that the resolution was directed at Dr. Morin. Dr. Bemis further testified that his purpose in showing the resolution to McEvoy was not to register any complaint against Dr. Morin with McEvoy, but that he merely thought that -this was a logical way to bring up the matter and to get facts for presentation to the State society. He also testified that he told McEvoy that he did not want to present the resolution because he did not think it suf- ficiently important. McEvoy stated, according to Dr. Bemis, that the Respondent had been dissatisfied with the situation for a long time. Dr. Bemis denied that McEvoy asked that the resolution not be presented that day. However Dr. Bemis was not certain as to all the conversation at this time and the undersigned credits the following testimony from McEvoy indicating that he did ask for a delay : "Well," I said, "Mr. Regan is not here and I am very much surprised. Does this motion have to go in today?" He said, "Yes, it has to go into this afternoon's Executive Board meeting." I said, "Well, I am highly upset about this because it looks to me like a black mark against the American Optical Company, and I just wish that there was a little more time to look into it because, as you can see, I am concerned about it." "Well," he said, "I am sorry. This has to go in today." On his way to the meeting Dr. Bemis also met Arthur J. Stearns, a sales repre- sentative for the Respondent whose territory included the Fitchburg area. Dr. Bemis showed Stearns a copy of the motion, told him that it referred to Dr. Morin, and also told him that he was going to present it before the executive committee that day. Stearns immediately went to McEvoy and said that it was dangerous to have such a motion presented to any committee of optometrists. He referred to other trouble that the Respondent had been having with optometrists in the area and stated that this merely added fuel to the fire and that "we" had to move to liquidate the cause of the conditions that had caused the motion to be presented. Although Stearns had received some reports of Dr. Morin's practice he had not made any reports concerning these to his superiors and in fact, had not met Dr. Morin as of that time. McEvoy replied that he had asked Dr. Bemis to delay action. McEvoy next had a conversation with Dr. Alden I. Clason, another member of the executive board of the State society. McEvoy told Dr. Clason of Dr. Bemis' visit to him and of the motion directed at Dr. Morin. He asked whether anything could be done to hold up the motion until he could investigate further. Dr. Clason replied that he would try to be of assistance and in a later conversation with Dr. Bemis persuaded the latter not to offer the motion at that meeting. McEvoy telephoned Regan on the evening of the 12th and asked him to relate his conversation with Dr. Gathercole. Regan did so and informed McEvoy that the gist of Dr. Gathercole's complaint was that Dr. Morin was charging sub- standard rates. The next day, McEvoy telephoned Pierson, and, according to the former's testi- mony, told him that Dr. Bemis had shown him a motion relating to Dr. Morin's practicing at home at Leominster at night and on other nonworking times while AMERICAN OPTICAL COMPANY 1557 working at the Worcester laboratory and further told Pierson that it would only hurt the Respondent if the situation continued and that the only thing to do was to discharge Dr. Morin. He instructed Pierson to discharge Dr. Moi in the next day, to explain to him the reason for his discharge and the Respondent's position, and that Dr. Morin also should be given vacation and severence pay. Pierson stated that the discharge of Dr. Morin would leave him shorthanded but McEvoy insisted that the discharge would have to be made at that time. It is undisputed that McEvoy did not talk with Dr. Morin concerning Dr Gathercole's motion be- fore directing Dr. Morn's discharge nor did he give Dr. Morin the choice of any alternative short of discharge. McEvoy's testimony as to his reasons for deciding co discharge Dr. Morin and why he did not give him any alternative is as follows : A. There were several reasons I went over very carefully. I felt that if I gave him the choice and that he decided to remain with the Company, that it would be impossible to police his practice at night, that we would have a festering sore with the optometrists in the locality in which he did practice nights and weekends ; and then, of course, he had the equipment for re- fracting eyes in his office It seemed to me that there would be a great desire on his part, perhaps, to examine two or three pair of eyes over a weekend, with resultant disturb- ance in the area. That was my first reason. Secondly, I didn't feel that it was in my province and as a representative of the American Optical Conrpany to say to him, "You either practice or you work for us". I thought that his professional career probably meant more to him than anything else, he having spent considerable money on his educa- tion, in the purchase of his equipment, and the laying out of his office, and that it didn't seem to me that I had the right to give him that choice. At another point, McEvoy testified that Morin's charging of substandard fees was none of his business. On the next day, April 14, Pierson spoke with Dr. Morin shortly before quitting time and hold him that a complaint had been made by an optometric group that he was practicing optometry while engaged by the Respondent as a lens grinder at the same time and that McEvoy had given instruction that he should be discharged.' He referred Dr. Morin to McEvoy if he should need any help. Dr. Morin made no protest at that time about the Respondent' s action. Sub- sequently Dr. Morin had an exchange of letters with McEvoy concerning the computation of his final pay but he had no further discussions with McEvoy nor did they at any time discuss the discharge. The charge in this case was filed on April 18. No further action was taken by the Massachusetts Society of Optometrists against either Dr. Morin or the Respondent. Sometime before April 24, McEvoy telephoned Dr. Bemis and told him that Morin had been discharged because it was not the policy of the Respondent to employ optometrists who also engaged in private practice. Dr. Gathercole learned of the discharge from Dr. Morin himself and, at the April 18 meeting of the Wachusett district, he introduced a motion, which was passed, rescinding the previous motion on the basis that the matter had been taken care of. McEvoy further testified that his decision to discharge Dr. Morin was made without consultation with the legal department of the Respondent but that when the charge herein was received he forwarded it to that department. He was 9 Dr. Morin also testified that Pierson told him that if he kept on working for the Respondent while practicing , the optometric group would press charges against him and it would be a black mark against his name and that the Company did not want this to happen. His testimony is credited. 1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then requested by it to secure a copy of the original motion from the Wachusett district. He made such a request of Dr. Bemis and received a letter dated April 22 setting forth the original motion with a comment by Dr. Bemis, that since McEvoy had initiated an inquiry which resulted in action , the Wachusett district had directed its chairman not to present the motion to the executive board. McEvoy testified that the Respondent had no written policy forbidding optom- etrists working in its laboratories to engage in their own practice during non- working time. However, he testified that there was a general policy against such practice but that he took no action against Dr. Morin because he had not received a complaint about it. When Bemis showed him a copy of the motion, he continued, he construed it as a complaint against the Respondent for allowing such a situation to continue. Regan testified that after Morin was licensed he discussed his practice with McEvoy and stated that he felt that Morin would leave the Respondent's employ eventually. McEvoy also testified that while there was no written policy against private practice of optometrists in the Respondent's employ, he had set up a policy of his own against such practice when he employed a Dr. Galloway several months before Dr. Morin's discharge. At that time, he testified, he told Dr. Galloway that he could not engage in private practice and that Dr. Galloway assured him that he would not do so. However, McEvoy continued, he never talked to Dr. Morin about this regulation nor did he notify any of the branch offices of this policy. He intended to carry out this practice and exercise control of the situation since he reviewed all new applications of employment. At the time of Dr. Morin's discharge there were no other optometrists employed in the New England zone other than Dr. Galloway. However, in the past, optometrists had been so employed and had worked for the Respondent while they were empowered to engage in private practice under State law. When McEvoy was asked why he accepted Dr. Galloway's promise not to engage in private practice but did not seek to obtain a similar promise from Dr. Morin, and had further testified that he would not rely on it even if he did receive one, he replied that the distinction between the two cases was that Dr. Morin, to McEvoy's knowledge, had equipment to engage in private practice and had been doing so whereas Dr. Galloway, at least. to McEvoy's knowledge, did not have such equipment. Another point developed by the Respondent through its witnesses was that optometrists frequently, in forwarding prescription work to a laboratory, in- cluded thereon the names of the patients involved and that it was possible for a laboratory worker by looking at the prescription to find out the names of the patients of different optometrists and probably learn other details of the nature and extent of the business of optometrists. The testimony on this point as to methods and procedures in the Respondent's laboratory was conflicting in some detail but does establish that a laboratory worker such as Dr. Morin would on oc- casion have an opportunity to see some of the prescriptions that were handled in the laboratory. However, Dr. Morin worked and brought his own prescriptions to the Worcester laboratory, whereas his area competitors would normally use the Fitchburg laboratory. While it was theoretically possible for prescriptions issued by Dr. Morin's area competitors to be sent to the Worcester laboratory, this would have been the exception rather than the rule and there is no proof that this happened to any extent. No contention was ever made by the Re- spondent that Dr. Morin ever secured confidential information which he could use. Furthermore, when McEvoy was asked to state directly his reason for deciding to discharge Dr. Morin, he did not list this factor in stating his reasons AMERICAN OPTICAL COMPANY 1559 although he later, in response to a leading question, did say that the possibility of abuse of confidential information by a professional man was in the back of his mind in reaching his decision. On Monday, April 17, Pierson called the Worcester laboratory workers to- gether and told them about Dr. Morin's discharge. He testified that his purpose in doing so was that he felt that something should be said to the employees because of the suddenness of Dr. Morin's discharge. He testified that he told the employees that he thought there would be some speculation concerning Dr. Morin 's discharge and that he thought it fair to tell them why the discharge had been made. He announced that there had been a complaint from an op- tometric group in writing and that it had been decided by the management that the only way to clear up the matter was by discharging Dr. Morin. He further testified that he did not recall saying anything about the Respondent receiving prior complaints or that he told the employees that there had been other prior verbal complaints before but that the most recent complaint had been in writing and therefore the Respondent could not ignore it as it had the others. Five of the employees who listened to Pierson's announcement testified con- cerning it. They were in general agreement that Pierson stated that the Re- spondent had had prior verbal complaints but had done nothing about it until it had received a written complaint and that the gist of the complaint, according to Pierson, was that Dr. Morin was practicing optometry while working for the Respondent at the same time. Pierson, as has been previously noted, could not recall whether he did make any statements concerning the receipt of prior complaints. The undersigned credits the testimony of the employee witnesses. Conclusions There is no proof that the presentation of the original motion to the Wachusett district was directed against Dr. Morin because of his union activities. At the time Dr. Gathercole complained to Regan about Dr. Morin's practices, the Worcester laboratory workers had not yet attempted to communicate with the Union. At most, they had begun discussing it among themselves. The de- meanor, while testifying, of Dr. Gathercole and his entire testimony established that at no time did he enter into any arrangement to furnish a pretext for Dr. Morin's discharge. Regan's suggestion to Dr. Gathercole,that substandard charges by Dr. Morin would seem to be a matter for the State society was undoubtedly an effort to avoid the necessity for the Respondent having to take action in view of the failure of any proof showing that Regan then knew or had any reason to know of any union activities by Morin and also in view of proof in the record evi- dencing friendship between the two men. The General Counsel contends, however, that although the resolution was not inspired by Morin's union activities, McEvoy seized upon it as a convenient pretext to rid the Respondent of a union adherent. Some of the undisputed facts which lend support to this contention are: .Morin was discharged 10 days after a union meeting was held at his home and shortly after notice had been sent the Respondent of the filing of the rep- resentation petition. He had been a satisfactory employee for many years ; yet he was discharged without warning. McEvoy knew that he was engaging in private practice, but made no effort to stop him. Even when McEvoy, according to his testimony, adopted a rule against private practice by employees, he did not publicize it nor did he bring it to the attention of Morin. 1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McEvoy did not investigate the resolution other than to ascertain from Regan that the gist of Dr. Gathercole's complaint to him was that Morin was charging substandard fees. McEvoy did not give Morin any alternative nor did he have any discussion with Morin in an effort to reach a solution satisfactory to everyone concerned. Other points which have been argued are : McEvoy obviously and suspiciously misconstrued the original resolution which was directed against Morin and not, as McEvoy testified he understood it, at the Respondent's toleration of Morin's private practice while in its employ. Also, that McEvoy persisted in that error after Regan had told him that Morin's fee-charging practices were the cause of the attack on him. In this connection, it has been pointed out, McEvoy testified that Morin's fee-charging practices were none of his business. Another licensed optometrist, Dr. Galloway, had been allowed to choose between engaging in private practice or giving it up in order to work for the Respondent. Dr. Bemis did not present the resolution to McEvoy as a formal complaint. The conduct of Pierson which has been found violative of the Act indicates that the Respondent was opposed to the efforts of the Union to organize the Worcester branch. * * * * * * * Although Dr. Bemis did not present the resolution to McEvoy as a formal complaint against the Respondent, McEvoy's reaction to it, before he had had any time for reflection or to concoct any plan, as the General Counsel suggests, was that the resolution was aimed at the Respondent. Such a construction was not unreasonable and Dr. Bemis did not indicate that McEvoy was in error in making that assumption. Actually, Dr. Gathercole testified that he held the Respondent to blame for what he regarded as a bad situation rather than Dr. Morin and wanted it to take action. It is true that Dr. Bemis had not presented the resolution to McEvoy as a formal complaint, but certainly McEvoy's efforts to prevent it going further cannot be regarded as unreasonable. The General Counsel contends, however, that McEvoy's persistence in the position that the resolution was aimed at the Respondent permitting Morin to work for it and also engage in private practice even after Regan told him that Dr. Gathercole was protesting Morin's fee practices, further evidences MeEvoy's discriminatory motives. Actually, Dr. Gatherbole was complaining of one aspect of the employer-employee relation between the Respondent and, Morin-its subsidizing Morin (as Dr. Gathercole saw it) so that he could suc- cessfully charge substandard fees. This idea, though not always clearly ex- pressed, motivated much of the interchange among those who played a part here. It explains the position of the Wachusett district in dropping action against Morin, once he had been discharged. Their action, in turn, lends sup- port to McEvoy's belief that the Respondent would avoid trouble by discharging Morin. The undersigned is persuaded that the evidence indicates that McEvoy upon learning of Dr. Gathercole's resolution decided to take steps to avoid antagoniz- ing organized optometrists who collectively were the major customers of the Respondent. Under all the circumstances, his decision to discharge Morin to avoid any further entanglements might be criticised as unfair to Morin, harsh, and lacking in courageous support of an experienced employee, but it falls short of establishing that McEvoy's decision was improperly motivated. McEvoy's failure to consult with Morin before the discharge was not unreasonable since AMERICAN OPTICAL COMPANY 1561 McEvoy was acting primarily to protect the Respondent and, to a certain extent, himself. Morin could not be of help in determining what was necessary for such protection. The evidence indicates that professional practice by employees in the New England zone had not constituted a serious problem before Morin's case and there had been no rule forbidding such dual activity. McEvoy testified that he had adopted such a rule several months before Morin's discharge, when he employed Dr. Galloway ; but this was more of a mental reservation than a rule since it was never publicized. McEvoy clearly did not expect trouble from these dual activities or felt each situation would adjust itself. Dr. Morin's case did contain points of difference from that of Dr. Galloway which did not make unreasonable McEvoy's decision to retain Dr. Galloway, but to release Dr. Morin. It is true that Morin was discharged while organizational activity was at its height, within 10 days of the union meeting at Morin's home, and 3 days after the Respondent was sent notice of the filing of the representation petition. However, there is no direct proof that the Respondent had any notice of the meeting at Morin's house. Pierson, McEvoy, and Regan specifically denied having any knowledge of that meeting before Morin's discharge. The General Counsel contends that knowledge of Morin's activities may be inferred from Pierson's questioning of the laboratory employees, the timing of the discharge, the lack of merit in the Respondent's defenses, and the size of the unit and laboratory. Pierson did question employees and in his conversations asked questions having the tendency to cause employees to reveal their union sympathies, but there is no evidence that in any conversation he attempted to find out the union sympathies or membership of employees other than the employee with whom he was then speaking. One witness for the General Counsel testified that Pierson told him not to reveal names. There is no evidence that Pierson asked any employee about union meetings nor is there any evidence that any employee told him of the meeting at Morin's house. Pierson did not question Morin. The timing of the discharge certainly is a factor that warrants consideration, but it does not in itself warrant the finding that the Respondent had.knowledge of Morin's activities. The undersigned has already dealt with the Respondent's defenses. They are not without merit, as the General Counsel contends. Finally, while the Board has sometimes held that it might be presumed that in a small plant knowledge of union activities will come to the attention of an employer, this is not an irrebuttable presumption. In those cases other factors lend, support to the conclusion. Here there is no such support. Rather the evidence indicates that although, as McEvoy testified, the Respondent had no interest in Morin's fee practices as such, once McEvoy had notice that the Respondent might be embroiled in a controversy between the State society and Morin, he took action to disassociate the Respondent from Morin by discharging Morin. The undersigned concludes that the preponderance of the evidence does not establish that McEvoy was motivated in his decision by Morin's union membership or concerted activities. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that the Respondent has engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent violated the Act by questioning em- ployees at its Worcester branch concerning their union affiliations and sym- pathies and by promising those employees benefits if the Union was defeated in its organizing campaign. The undersigned from his study of the evidence Js convinced that a broad cease and desist order is not necessary in this case, but that it is necessary that the Respondent be ordered to refrain from vio- lating the Act by any conduct like or related to that which has been found violative of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. United Optical and Instrument Workers of America, Local No. 28, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By questioning employees at its Worcester branch concerning their union affiliation and sympathies and by promising those employees benefits if the Union was defeated in its organizing campaign, the Respondent has interfered with and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of .Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. It has not been established that the Respondent discharged William J. Morin because of his union or concerted activities. [Recommended Order omitted from publication in this volume.] DONOVAN, JAMES, WISHER, & BECKER and INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER. Case No. 21-RC-1705. April 18, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Daniel J. Harrington and George H. O'Brien, hearing officers. The hearing officers' rul- ings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member .panel [Members Houston, Reynolds, and Styles]. i At the hearing the Petitioner was permitted to amend the unit description. 93 NLRB No. 255. Copy with citationCopy as parenthetical citation