Bausch & Lomb Optical Co.

National Labor Relations Board - Board Decisions

Jan 13, 1954

107 N.L.R.B. 790 (N.L.R.B. 1954)

'790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viously filed herein and that the Employer has no objection
thereto . The Board having duly considered the matter,
IT IS HEREBY ORDERED that the Petitioner's request to
withdraw petition be, and it hereby is, granted with prejudice
to) its filing a new petition for a period of 6 months from the
date of this Order, unless good cause is shown why the Board
should entertain a new petition filed prior to the expiration of
such period.
By direction of the Board:
Ogden W. Fields,
Associate Executive Secretary.
BAUSCH & LOMB OPTICAL COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS. Case No. 3-CA-485. Jan-
uary 13, 1954
DECISION AND ORDER
On March 30, 1953, Trial Examiner Stephen S. Bean issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed
in that respect. Thereafter, the General Counsel and the
Respondent filed exceptions to the Intermediate Report and
supporting briefs. The Respondent's request for oral argument
is hereby denied as the record and the exceptions and briefs
adequately present the issues and positions of the parties.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in the case., and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Bausch & Lomb Optical Company, Wellsville, New
York, its officers , agents, successors , and assigns, shall:
107 NLRB No. 157
BAUSCH & LOMB OPTICAL COMPANY 791
1. Cease and desist from:
(a) Discouraging membership in International Association
of Machinists, or any other labor organization of its employees,
by discriminatorily laying off or discharging or refusing to
reinstate any of its employees or by otherwise discriminating
in regard to their hire or tenure or conditions of employment,
because of their membership in, or activities on behalf of, any
such labor organization.
(b) Interrogating its employees concerning their union
membership, activities, affiliations, sympathies, or other
concerted activities.
(c) Warning or threatening its employees with discharge
or loss of benefits or other economic reprisals if they should
join, sympathize with, assist, or become active in behalf of the
Union or engage in other concerted activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
International Association of Machinists, or any other labor
organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all 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) Offer to Neil Bernard, Doris Brown, Charles McGill,
and Myrtle Olson immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges.
(b) Make whole the above-named individuals, and each of
them, for any loss of pay they may have suffered by reason of
the Respondent's discrimination against them, in the manner
set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Upon request, make available to the National Labor
Relations Board or its agents for examination and copying,
all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of back pay due.
(d) Post at its plant at Wellsville, New York, copies of the
notice attached to the Intermediate Report marked "Appendix."
Copies of said notice, to be furnished by the Regional Director
for the Third Region, shall, after being duly signed by an author-
ized representative of Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places at its
Wellsville plant, including all places where notices to employees
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for the Third Region in
writing, within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be -dismissed:
Insofar as it relates to Ruth Amidon, Violet Babbitt, Marjorie
Ball, Doris Barnett, Mary Benjamin, Mildred Bower, Grace
Caldwell, James Cline, Anna Coyle, Nedith Daniels, Martha
Driscoll, Marguerite Faber, Marian Fisher, Audry Gates,
Gertrude Gavitt, Lila Gorsuch, Catherine Gostley, Elymore A.
Graves, Hilda Hall, Marie Holiday, Lucy Hollister, Isabel
Houghtling, Kenneth Howard, Edna Hulse, Deliah Hutchinson,
Louise Ingalls, Gertrude Irvin, Crystal Miller, Huldah Neely,
Onalee Pakis, Kenneth Perkins, Dorothy Perry, Walter C. Rix,
Jr., Audrey Robinson, Everett Rossman, Gertrude Rowley, Peg
Shutt, Emma Slawson, Joan Watson, Dorotha Watson, and
Dorthy Whelpley; and
Insofar as it relates to promises or grants of economic bene-
fits , to observation and surveillance of meeting places of the
Union, and to instigation of or acquiescence inthe circulation of
an antiunion petition.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed on October 25, 1951, by International Association of Machin-
ists, herein called the Union, the General Counsel for the National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional Director
for the Third Region ( Buffalo, New York), issued his complaiat dated September 16, 1952,
against Bausch & Lomb Optical Company , herein called the Respondent , alleging that Re-
spondent had engaged in and was engaging in unfair labor practices i, ct`^q commerce
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) o, the N.:,. ,nal Labor
Relations Act, as amended , 61 Stat . 136, herein called the Act. Copies of the charge, the
complaint , and a notice of hearing were duly served upon the parties.
With respect to the unfair labor practices , the complaint , as amended at the beginning of
and during the hearing , alleged in substance that (1) Respondent has discriminated against
and continues to discriminate against 45 employees , i herein occasionally called complain-
ants, in regard to their hire or tenure or conditions of employment , because of their union
membership , sympathies , activities , and assistance , in violation of Section 8 (a) (3) and (1)
of the Act , and (2) Respondent engaged in independent violations of Section 8 (a) (1) of the
Act. 2
'Ruth Amidon, Violet Babbitt, Marjorie Ball, Doris Barnett, Mary Benjamin, Neil Bernard,
Mildred Bower, Doris Brown, Grace Caldwell, James Cline, Anna Coyle, Nedith Daniels,
Martha Driscoll, Marguerite Faber, Marian Fisher, Audrey Gates, Ger ode Gavitt, Lila
Gorsuch, Catherine Costley, Elynore A. Graves, Hilda Hall, Marie Holiday, Lucy Hollister,
Isabel Houghtling, Kenneth Howard, Edna Hulse, Delilah Hutchinson, Louise Ingalls , Gertrude
Irvin, Charles McGill, Crystal Miller, Huldah Neely. Myrtle Olson, Onalee Pakis, Kenneth
Perkins, Dorothy Perry, Walter C. Rix, Jr., Audrey Robinson, Everett Rossman, Gertrude
Rowley, Peg Shutt, Emma Slawson, Joan Watson, Dorotha Watson, and Betty Whelpley.
2 These alleged violations involved interrogations , warnings , or threats of reprisal, prom-
ises or grants of benefit, surveillance and the instigation of or acquiescence in the circulation
BAUSCH & LOMB OPTICAL COMPANY 793
Respondent filed an answer on or about October 10, 1952, in which it admitted the ju-
risdictional allegations of the complaint, denied the commission of the unfair labor practices
alleged, and set up certain affirmative defenses dealing largely with variations between the
charge and the complaint and the applicability of Section 10 (b) of the Act which provides
that no complaint shall issue upon any unfair labor practice occurring more than 6 months
prior to the filing and service of a charge
Pursuant to notice a hearing was held at Wellsville, New York, from November 13, 1952,
through November 21, 1952, and from December 3, 1952, through December 12, 1952 Leave
was granted and twice extended for the filing of briefs until March 2, 1953.
At the conclusion of the General Counsel's case, Respondent made a number of motions
on various grounds to dismiss the complaint, both in whole and in part. These motions were
denied, leave having been given to renew them at the conclusion of the hearing The motions
were again made at that time. I reserved rulings thereon They are disposed of in accord-
ance with findings and rulings contained or implicit in this report. By stipulation of counsel
line 20, page 1276, of the record is amended to read- "Well, I later found out--Mr. Sether's
little children." Arguments were waived. Excellent briefs were received from indefati-
gable counsel earlier this month. Respondent also submitted in narrative form proposed
findings of fact and conclusions of law To the extent that they may be regarded as requests
for findings and rulings they are granted insofar as they are not inconsistent with findings
made and conclusions reached herein.
Upon the entire record of the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I The Business of Respondent
Respondent, at all times material to these proceedings, has been a corporation duly
organized and existing by virtue of the laws of the State of New York and has maintained
its principal office and place of business at Rochester, New York The facility involved
in this proceeding is the plant of Respondent located in Wellsville, New York, where Re-
spondent is engaged in the manufacture of eyeglass frames , temples, and related products
During the course and conduct of its business operations here in the year 1951, Respondent
purchased raw materials, supplies, and equipment valued in excess of $100,111, more
than 95 percent of which was purchased from sources located outside the State of New York
and shipped directly to Respondent's plant in Wellsville, New York. During the same period,
Respondent's plant in Wellsville sold and shipped finished products valued in excess of
$100,000, more than 90 percent of which was sold and shipped to customers located out-
side the State of New York.
I find that Respondent is engaged in commerce within the meaning of the Act.
II. The Labor Organization Involved
International Association of Machinists is a labor organization admitting to member-
ship employees of Respondent.
III. The Unfair Labor Practices
A kaleidoscopic cross section of the community, comprising 64 people, appeared be-
fore me during the course of this hearing. Compassed about with so great a cloud of wit-
nesses, it is now my task to pierce the obscurity of fog, shadow, and conflict left in their
wake. Some findings may readily be made on uncontradicted evidence. Others will have
to be garnered and sifted from diametrically opposed testimony. In many instances, but
far from in all, I shall refer to statements of witnesses at variance with those of others
of an antiunion petition. In a bill of particulars the General Counsel named 20 alleged agents,
representatives, and employees of Respondent as having engaged in this conduct: viz, Raymond
Abbott, Marshall Buckley, Stewart Cross, Edward H. Duke, Evelyn Easton, Gerald Heath,
Cichard Hogan, Lewis Johnson, Elizabeth Blanche Kilmer, T. E MaGuire, Al MaAhon, John
B. Moore, Frank Parker, Rollin Perkins, Charles Presutti, Betty Roeske, Walter Sether,
Floyd W. Thompson, and Mrs. Floyd W. Thompson.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon which findings will be made and at least adumbrate my reasons for giving credence
to one person's word and not to anther's. I have been unable to credit some testimony
coming from both sides This and other evidence that is lacking in reliability or proba-
tiveness or substantiality neither requires nor merits exposition
A. Supervisors: agents
Section 2 (11) of the Act provides that the word "supervisors" means any individual
having authority in the interest of the employer to hire, transfer, suspend, layoff, recall,
promote, discharge, assign , reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such authority is not of a merely routine or
clerical nature , but requires the use of independent judgement The several authorities
listed in Section 2 (11) are stated in the disjunctive, and accordingly the courts have held
that possession of any one of the enumerated functions is sufficient to classify an indivi-
dual as a supervisor. N. L. R. B. v Budd Mfg Co., 169 F 2d 571, 576 (C. A. 6), certiorari
denied 335 U. S. 908 Ohio Power Co v N. L. R. B , 176 F 2d 385, 387 (C. A. 6), cer-
tiorari denied 338 U S 899; Red Star Express Lines v. N. L. R. B., 196 F. 2d 78, 80 (C.
A 2). While as the court stated in the Ohio Power case, supra "the wording of Section 2
(11) is unambiguous," it may be pertinent to observe that when the bill which became the
Taft-Hartley Act was reported out by the Senate Labor Committee, it contained a defini-
tion of "supervisor" identical with that ultimately enacted except that it did not contain
the phrase "or responsibly to direct them " S. 1126, 80th Cong , 1st Sess As the Commit-
tee Report accompanying the bill stated, in this definition "the committee has adopted the
test which the Board itself has made in numerous cases when it has permitted certain cate-
gories of supervisory employees to be included in the same bargaining unit with the rank
and file." S Rept. 106, 80th Cong , 1st Sess., p. 4. Or, as Senator Taft later stated on
the floor of the Senate , "The definition [of supervisor] in the bill is that which has been
used by the National Labor Relations Board for the past four or five years " (93 Cong
Rec 4678)
As noted above, this definition, formerly used by the Board, was expanded during the
debate on the bill to include the phrase "or responsibly to direct them." This phrase was
inserted on the floor of the Senate by the unanimous adoption of an amendment proposed
by Senator Flanders (93 Cong Rec 4678) In discussing his amendment, Senator Flanders
explained that the definition of "supervisor" in the committee bill seemed to cover ade-
quately everything except "the basic act of supervising " Elaborating, he stated (93 Cong.
Rec 4677-4678):
In fact, under some modern management methods, the supervisor might be deprived
of authority for most of the functions enumerated and still have a large responsibility
for the exercise of personal judgment based on personal experience, training and
ability. He is charged with responsible direction of his department and the men under
him He determines under general orders what job should be undertaken next and
who shall do it. He gives instructions for its proper performance. If needed, he gives
training in the performance of unfamiliar tasks to the worker to whom they are as-
signed. Such men are above the grade of "straw bosses, leadmen, set-up men, and
other minor supervisory employees," as enumerated in the Report Their essential
managerial duties are best defined by the words "direct responsibly," which I am
suggesting this legislative history makes it manifest that minor supervisory employees
including "set up men," in the generally accepted sense of the phrase, are not covered
by Section 2 (11) but that individuals who, other than in a routine manner "direct"
employees, assign them their work "under general orders and give them instructions"
and "training" when needed, are engaged in "the basic act of supervising."
Section 2 (13) of the Act provides that:
In determining whether any person is acting as an "agent" of another person, so as
to make such other person responsible for his acts, the question of whether the spe-
cific acts performed were actually authorized or subsequently ratified shall not be
controlling
BAUSCH & LOMB OPTICAL COMPANY 795
Although persons charged with unlawful conduct may not be "supervisors" an employer
may identify itself with them in the minds of its employees to the extent that it becomes
responsible for their conduct.
N. L. R. B. v Elkland Leather Co , 114 F 2d 221 (C. A. 3) certiorari denied 311 U. S.
705 N. L. R. B. v. Taylor-Colquitt Co.,'140 F. 2d 92, 93-94 (C. A. 4), N. L. R. B. v. Ameri-
can Furnace Co , 158 F. 2d 376, 379 (C. A. 7)
It is in the light of these principles that I turn to a consideration of the status of the 20
individuals whom it is alleged engaged in unlawful conduct imputable and chargeable to
Respondent
Walter Sether, T J MaGuire, Edward Duke, Gerald Heath, and J. B. Moore In the Wells-
ville facility Sanhedrin, Sether is Respondent's plant manager' MaGuire, its director of
labor relations, Duke, one of its group Leaders or assistant foremen, Heath, a foreman;
and Moore, the plant's employee counselor and director of industrial relations.
On the basis of stipulations and the evidence, I find that these five men were, at all times
material to the issues involved in this case, supervisors within the meaning of the Act
Richard Hogan While Respondent conceded that Hogan has been a supervisor within the
meaning of the Act since June 11, 1951, it is necessary in conjunction with the allegations
respecting his having unlawfully interrogated, threatened, and surveilled the activities
of employees, to determine whether he was earlier.
Respondent would have it appear that although it employed about 188 hands, nevertheless
it used the services of only 2 or perhaps 3 supervisors who spent all their time in produc-
tion before June 1951--an unlikely ratio of 1 supervisor to 60 or 90 rank-and-file employees.
Despite Respondent's counsel's statement early in the hearing, Hogan was not a "setup
man," as were other individuals asserted by the General Counsel to have been supervisors,
the status of whom is dealt with infra. On March 5 1951, he was appointed quality control
checker. This work required him to walk around the shop inspecting grooving, slotting,
bridge-forming, hinging fronts, and other operations, and entailed having working with him
7 or 8 inspectors who checked every piece In contradistinction to the duties of the 7 or 8
ordinary inspectors, Hogan went from machine to machine inspecting only samples in order
to prevent accumulation of faulty production by showing failures to meet specifications
to setup men for their immediate correction. Hogan testified that his relationship to the
work of the other inspectors was to answer their questions, show them whether or not they
should pass work, and attempt to train them, that his work differed from that of the other
inspectors in that they sat in one place inspecting every piece while he went all over the
floor seeing that the work was coming off machines according to specifications, that when
he saw an operator doing something that was not according to specifications he would show
it to the setup men and it would be taken care of immediately, that he had discretion as to
what work he inspected and whether or not it was to be considered as meeting specification,
and that when he observed defective work coming off the machines he would have the"opera-
tor shut the machine down or would show the faults to the operator who would then stop the
machine
On the credited testimony of Frank Parker, I find that at sometime prior to June 8,
1951, the day before Parker, a former employee of Respondent (alleged by the General
Counsel to have been a supervisor and denied by Respondent as having been such), was
discharged by Respondent, Hogan had been appointed group leader, a position which in the
instance of Duke, Respondent conceded to be of supervisory stature--and in addition to
Sether and Heath, Hogan had been Parker's direct superior. When Parker was let go, Hogan
took over additional duties formerly performed by the former. For about a month before
her layoff on May 24, 1951, Hogan was Violet Babbitt's immediate superior in the tumbling
room For over a month before her layoff on May 25, 1951, Hogan was Joan Watson's im-
mediate supervisor on front inspection and told her what to do even though there was no
setup required on her job When Watson had asked him, about 2 or 3 weeks before May
25, to be transferred to other work Hogan stated he did not understand why she was not satis-
fied with the job she was performing, that work was slack, there was not much else to do,
he liked her work there, and he did not want to transfer her. In March 1951, Hogan became
Dorotha Watson's immediate superior on front inspection, checked over and directed her
work and only he told her what to do next. On May 21, 1951, Crystal Miller was told by
Hogan, who had been her immediate superior and had assigned work to her in inspecting
fronts since March, and whojn she referred to in her testimony as "my immediate boss,"
to come into the office where Sether advised her and some other girls that they were being
laid off. In April, Sether found Miller reading a book while at work and called her into his
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office, asked Hogan to come in, and in the presence of the latter wrote out and handed her
a written warning notice 3 From around the first of 1951 until about July 6, when she was
laid off, Hogan was Huldah Neely's immediate superior. She took her orders from him and
him only.4 About a week before July 6, Hogan asked her to go into the office where Duke
told her she was being laid off. Albert Closser was Catherine Gostley's setup man. For
a period of time before June 21, 1951, when she was laid off, Hogan was the superior over
Closser and would look over the operative's work to see that it was properly done and find
out in the event there was something wrong with it whether it was the fault of the machine
or the operator In addition to these indications of his standing in the plant, Hogan was
one of a group- -including some persons whom it has not been proven were supervisors, it
is true--who attended monthly production meetings of management
Applying the tests set forth above to the facts as found, it becomes reasonably apparent
that as early as March 5, 1951, Hogan, the categorical conclusive testimony of Respondent
to the contrary notwithstanding, possessed many of the attributes of a "group leader"
over rank-and-file inspectors, setup men, and individual operators, and was clothed with
authority, in the exercise of independent judgment, to assign and responsibly direct other
employees and to order the corrections of faulty methods of production. That he was above
the grade of "straw bosses, leadmen, setup men, and other minor supervisory employees"
and that he was engaged in the "basic act of supervising" seems clear. The General Coun-
sel has so definitely tipped the scales as to impel the conclusion that at least by April 25,
1951 (the date 6 months before the filing and service of the charge) Hogan was a super-
visor within the meaning of the Act.
Marshall Buckley and Eldon Lewis Johnson. Respondent conceded that Buckley and John-
son have been supervisors within the meaning of the Act since July 11, 1951, and October
15, 1951, respectively Because I do not perceive that either engaged in any unlawful con-
duct before these dates,5 it is unnecessary to find whether they were supervisors earlier
Evelyn Easton, Arlene Heath, Phyllis Thompson There is no contention that these women
were other than rank-and-file employees. The General Counsel's claim that they were
agents for whose conduct Respondent was responsible is based on the following facts Easton,
an employee, contributed a cake on the occasion of a birthday party given to Respondent's
plant manager, Sether, signed a paper--which I find on the amalgam of the testimony of
Hulse, Benjamin, Olson, Barnett, Faber, Hollister, Rostman, Hall, Howard Houghtling,
Joan Watson, and Neely to whom I have referred above as well as that of others I shall
later name and of employees Dorothy Perry, Elynore A. Graves, and Audrey Gates, was
an antiunion petition--drew it to the attention of the latter three, and was present on May
15, 1951, in Moose Hall at a union meeting where a divided feeling of employees prevailed.
This meeting was attended by rank-and-file employees as well as by various persons claimed
to be supervisors. Heath is the wife of Gerald Heath who, as already appears is agreed
and has been found to have been a supervisor within the meaning of the Act. Before a union
meeting which took place in Union Hall about the middle of February 1951 (more than 6
months before the filing and service of the charge), Mr. and Mrs Heath and Duke were
seen across the street from the hall and after the meeting Mrs. Heath was seen alone outside
watching people as they left the building Mrs Heath was actually present on May 15, 1951,
in Moose Hall at a union meeting of employees which was attended as well as by various
persons claimed to be supervisors, after which "she wouldn't talk to Graves" who had
also been at the meeting Thompson, another rank-and-file employee, is the wife of Floyd
Thompson, concerning whom the General Counsel makes the contention (denied by Respond-
3 See footnote 21, infra.
4 As an example of this, Neely testified "if production called for 45's ... then Dick Hogan
would say, I'd like to have you girls work on 45's,' ... and we's ... get those boxes out "
5 It is not set forth in the General Counsel's bill of particulars that Buckley participated in,
instigated, or ratified the act of circulation of an antiunion petition, and consequently even if
it were a fact that employee Al McAhon engaged in this conduct in Buckley's presence, no
finding against Respondent in this particular would lie. Johnson appears to have actively
solicited union memberships in the spring of 1951. The bill of particulars lists him as having
engaged in interrogation and surveillance. Assuming, arguendo, that by that time he had
assumed some supervisory duties, it would be quite absurd to conclude on the record in this
case that Johnson's personal prounion efforts should be, by whatever alchemy, transmuted
into unlawful company antiunion conduct.
BAUSCH & LOMB OPTICAL COMPANY 797
ent) that he was a supervisor. She was among those present at the May 15 meeting, engaged
prominently in the discussions, and sat along the side of the room with various persons
asserted to be supervisors within the meaning of the Act.
I shall deal infra with the allegation that Respondent "engaged in observation and sur-
veillance of the meeting places, meetings or activities of the Union, or the concerted ac-
tivities of its employees"--in which conduct, among others, Easton, Heath, and Thompson
are claimed to have indulged. What I shall say there (to avoid a uuaam riders here) should
disclose the reasons for my being constrained to the belie it haf not been proven that
these three people were Respondent's espionage agents or that they were abroad for other
purposes than "that each by observation might satisfy his mind."
Stewart Cross, Elizabeth Blanche Kilmer, Al McAhon, Charles Presutti, and Evelyn
Easton.. The General Counsel contends that these rank-and-file employees circulated a
paper or petition upon which employees could sign as an indication of their opposition
to the Union, that this conduct was ratified, or acquiesced in, by Respondent to the extent
and with the result that they became its agents.' Cross handed a paper of this sort to em-
ployee Edna Hulse in February or March 1951 (which was more than 6 months before the
date of the filing and service of the charge), and gave a paper of this character to employee
Mary Benjamin in May 1951, to employee Myrtle Olson 2 or 3 weeks before May 25, 1951,
and to employee Betty Whelpley a week or two before June 1, 1951. Kilmer presented the
petition to employee Myrtle Olson 2 or 3 weeks before May 25, 1951, to employee Doris
Barnett about 2 months before May 25, 1951 (again, more than 6 months before the filing
and service of the charge), to employee Marguerite L. Faber, a few days before June 1,
1951, to employee Lucy Hollister shortly before June 1, 1951, to employee Everett E.
Rossman at an unstated time, to employee Hilda M. Hall along the latter part of her em-
ployment which terminated on July 27, 1951: and, to employee Kenneth Howard 11 or 2
months before June 1, 1951 (which would be probably more than 6 months before the filing
and service of the charge). Setup Man Albert Closser observed McAhon taking a paper
around to the girls working as groovers about 3 weeks before June 1, 1951. A week or
two before that date, McAhon gave employee Isabel Houghtling a paper in effect stating
that employees were satisfied without the Union and asked her if she wanted to read it,
and about 31 or 4 weeks before May 25, 1951, he and Presutti laid down in front of em-
ployee Joan Watson a paper stating that the employees were satisfied with the way the
Company was treating them and they did not want a vote for the Union. In May, McAhon
also presented the paper to employee Huldah Neely.
Presutti's approaches with the document were to Joan Watson about 31 or 4 weeks before
May 25, 1951, to Audrey Gates in March 1951 (again more than 6 months prior to the filing
and service of the charge). The General Counseldoes not assert that Cross, Kilmer, McAhon,
or Presutti were supervisors within the meaning of the Act. I shall deal later with the al-
legation that Respondent "instigated or acquiesced in the circulation of an anti-union pe-
tition on Respondent's time and property." Suffice it to say here that in my opinion, for
reasons subsequently to be disclosed, the proof falls short of showing that they were Re-
spondent's agents.
Raymond Abbott, Frank Parker, Rollin Perkins, and Floyd W. Thompson. These four
employees are called "setup men." Respondent generally describes the work of employees
given this title as involving the setting up of machinery and fixtures and seeing that the
machines operate properly, that work is available for and provided to the operators, and
that work comes off in the desired quantity and of s., tisfactory quality. Setup men have
instructions from their superiors to tell operators to go from one machine to another
when work is finished on a given machine or priority in productions is desired. They also
attend periodical production meetings, referred to in connection with Hogan's status, where
such matters as sales, anticipated production quotas, safety, the Union, and the proper
running of machines were discussed.
Employee James V. Cline testified that from April until June 29, 1951, Marshall Buckley
was his immediate superior and that Buckley and Abbott told him what to do, by which he
meant that Abbott would tell him certain work would have to be done first, that Abbott
criticized him for throwing soap, told him he had better telephone in every time he was
sick and that if he did not, he would come back some day and would not find a job, and
'Although the name of Betty Roeske is included in the General Counsel's bill of particulars,
there is no evidence that she circulated a petition.
337593 0 - 55 - 52
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that on one occasion Abbott signed and gave him an exit pass. Employee Walter C. Rix, Jr.,
testified that at the time he was separated on May 8. 1951, Abbott was superintendent over
the mudding and joining section, was his immediate superior and told him what to do.
Parker testified credibly that he was first employed by Respondent at Rochester, New
York, in May 1942 and. was transferred to the Wellsville plant in January 1947 where he
set up machines and showed employees how to operate them; that from April 25, 1951,
up until the time of his discharge in June 1951, he was overseeing and setting up machines
in the front section that for a while earlier than January 1, 1951, he had issued exit passes
but that this matter was later taken care of by the personnel department or the plant man-
ager ; that he checked and controlled employees' timecards against the orders that came
off machines that he was told by the plant manager on June 9, 1951, to instruct employees
not to spend too much time in the smoking room but declined to do so because he considered
such action the responsibility of Hogan who had been appointed group leader, that at the
request of supervision, he rated employees according to their ability, this being a routine
matter that was handled with every employee; that about 8 or 10 months before June 1951,
he reported an employee for poor quality workmanship; that when additional employees
were required, higher management would line up prospects and he and other setup men
would then interview them, show them around the plant, and see whether they were adapt-
able to jobs that were open, that a year or longer before being discharged he had recom-
mended an employee who was hired to set up machines, that when work ran out on a ma-
chine, he would tell employees to move to another and that it was to a certain extent pretty
routine with experienced employees to walk from one machine to another as they know when
to do it Parker and the other persons who are described by Respondent as setup men were
paid on a day rate higher than other hourly rated employees, while in general the opera-
tors of the various machines were paid on a piecework basis. There was testimony that
Parker's paycard was marked "supervision" a heading placed on the card by timekeepers.
It appears from the testimony of Lila Gorsuch that Parker was her immediate superior
until he left the plant and that when she asked for time off she would get an exit slip, fill
it out, have Parker put his initials on it, and then go to Sether or Heath for their approval,
and that when she missed work because of illness she would have Parker notified; that
when she held back work she knew that Parker did not like it and he told her once to turn
it in. Audrey Robinson testified that when she was first employed in October 1950, Parker
interviewed her, took her through the plant , showed her the different operations, and told
her she was being considered for the job; thereafter she was hired by Moore, and Parker
showed her the kick press operation on which she went to work, that Parker was her im-
mediate superior and from the time she was hired until the time she was first laid off
in July 1951 (she thinks), he told her what to do Dorothy Perry testified that throughout
the period May 1950 to June 1951, Parker was her immediate superior, that he did some
of the setup work and that no one else than he told her what to do. Gertrude Irvin's testi-
mony was to the effect that during the entire time she worked on the bridge forming opera-
tion between May 16, 1949, and June 29, 1951, until he left, Parker was her immediate
superior, and that no one other than Parker told her what to do, that when she held back
work Parker would always look in the drawer and see that she was holding back cards for
the next day, and that when her machine had to be set up for a different size, Parker would
give her a box of material to work on and told her what box to work on. Kenneth Perkins
(not to be confused with his brother, Rollin Perkins), testified that, until he left. Parker
was his immediate superior in the profiling operation upon which he worked with Charles
McGill and Neil Bernard for nearly 2 years, told him what to do, issued exit passes
to all 3 profilers, which they in turn took to the front office before signing out, answered
questions concerning what to do when trouble arose, whether the job should be redone
or could be worked through, and directed them what to do when there was not enough stock
punched ahead or if someone was off, that Parker would have to set up their machines when
they had special jobs and would tell them when they were in the midst of running a certain
size to tear down and set up operations for special jobs; that he had been criticized by
Parker approximately 5 or 6 times for spending too much time in the smoking room, and
that one time he told the profilers to knock off fooling as he would take them into the office
Marian Fisher recalled that Parker showed the operatives how to set up, adjusted, and
tightened the hinging machine, would tell them what hinge went in different styles, instruct
them to work on certain "rush" operations out of order, and tell them where there was
work available Louise Ingalls testified that Parker taught her how to pad-cement, to operate
BAUSCH & LOMB OPTICAL COMPANY 799
the kick press, and to hinge, and that no other person ever taught her an operation Elynore
A. Graves recounted that about 8 weeks after February 1, 1951, Parker, when the head-
ing machine on which he had been working broke down, requested Heath for 2 employees
to come over and work on his side in the front department, that this request was granted
and she and Leona F Fauzey were put over there. Mildred Bower testified that Parker
was her immediate superior on the hinging operation for 212 to 3 years before he was laid
off, that insofar as getting work was concerned, no one other than he told her to do any-
thing and that he was the setup man on the hinging machine, that Parker gave instructions
to take jobs which were wanted to be gotten out in a certain length of time, and instructed
people as to how to run their machines. It appears from Audrey Gates' testimony that she
considered Parker her superior, that he transferred her from grooving to plaquing or to
drilling or hinging, taught her how to perform these operations, trained her, and in a
routine manner told her the order of work that she was to perform. Betty Whelpley testi-
fied that on September 8 1949, she took an eye test and a written quiz; that Parker came
into the office, looked at the test, told her he would call her when she was needed, and
before she had gotten beyond earshot of the plant called her back and asked her if she
would go to work the next morning
Sether testified that Parker left Respondent's employ in June 1951; that during the calen-
dar year 1951, up to then he was a setup man, that he believed Duke was Parker's super-
visor and that Parker did not exercise any supervisory functions with respect to Gorsuch,
Robinson, Perry, Irvin, Perkins, Fisher, Bower, Gates, and Whelpley. There was no similar
denial with respect to Ingalls and Graves. He also testified that he, not Parker, hired Whelpley
and that if Parker's timecard was marked "supervision," it was done so without authority
Sether further categorically testified that setup men (which classification, I remind the
reader again, Respondent asserts includes among others, not only Parker, but also Abbott,
Rollin Perkins, and Thompson) have no authority to hire or to recommend hiring, have
never done hiring or recommended hiring, have no authority to transfer or to recommend
transferring, have never exercised any authority to transfer or recommend it; have no
authority to assign or recommend the assignment of employees to different jobs, have
no authority to suspend or recommend suspension, and have never exercised either, have no
authority to lay off or recommend it and have never exercised either, have no authority to
promote or recommend promotion and have never exercised either, have no authority to
discharge or recommend discharge and-have never exercised either, have no authority to
adjust or recommend the adjustment of grievances and have never exercised either, have no
authority to reward or recommend reward and have never exercised either, have no authority
to discipline or recommend it and have never exercised either; and have no authority to
responsibility direct the activities of other employees.
Rollin Perkins, according to a stipulation to dates, was a machine operator until March
12, 1951, on which date he became a setup man remaining such until he left the Company's
employ on July 25, 1952 He, as did the other employees characterized as setup men, at-
tended production meetings Myrtle Olson testified that when she was on the day shift on
the job of inserting cores in acetate temples on which she started working about the middle of
April 1951, Perkins gave her most of her work, and that the two machines were set up by
Perkins and Johnson and one or the other would tell her that the machine was set up and
that was the job which she would be on next Violet Babbitt recalled that she got an exit
pass from Perkins Lucy Hollister testified that on her day-shift job which consisted of
sidewalling to which she was assigned in March 1951, Perkins was her supervisor and
told her what to do, that on occasion Perkins would instruct her to report to somebody
else who would put her to work, that Perkins turned in her timesheets, and that Perkins
gave her an exit. pass about a week or two before June 22, 1951, the last day she worked.
Marjorie Ball testified that Perkins was present when Sether called her, Olive Wilkins,
Coletta Ennis, Olive Allen, and complainants Benjamin and Whelpley into the office and
told them they should turn in all they did each day Delilah Hutchinson referred to Perkins
as "just one of the setup men " It appears from the testimony of Dorothy Perry that Per-
kins was her immediate superior while she was sanding temples, and that no one other
than he told her what to do and that Perkins did the setup on machines in the temple sec-
tion Kenneth Perkins testified that his brother, Rollin, was a setup man. Peg Shutt testi-
fied Perkins and others were her superiors on the night shift, that Perkins was her first
day supervisor, that Mary Benjamin taught her most about the operation but that Perkins
gave her some instructions, checked her work and the setup of the machine, and told her
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what she was doing wrong and how to handle the holder. Mary Benjamin testified that when
the night shift first started in July 1950, Perkins was her immediate superior for not more
than a month or two and that he again became her immediate superior for a while when she
returned to work on the day shift in the first part of or in April or May of 1951, that Per-
kins and others set up her machine and would start the blanking machine operators off
with whatever size they wanted them to run, that Perkins was then boss over everything,
that if she wanted to be excused from work or was not coming in for work, she talked with
him and that everything was talked over with him first Doris Brown testified that Perkins
was her second, in point of time, superior on the paddle mill for about 3 months before
her discharge on July 6, 1951; that he and he alone told her what to do, and that "the only
thing they told me was the orders to take first Mr. Perkins done that" and that if there
happened to be a rush order he would tell her to leave the order she was doing and do the
emergency job. Marie Holiday--who incidentally comported herself on the stand in the
ideal manner we are apt to assume while in law school all witnesses do, and learn through
experience they rarely ever do--testified that Perkins was a setup man. Betty Whelpley
testified that in the spring of 1950, she asked Perkins for a transfer to a particular job
on temples, that she thinks the request was talked over between Parker and Perkins, and
she was given the job where Perkins was her immediate superior; that Perkins taught her
the job, did the major portion of the setup work on her machines, told her what work he
would like done next, and checked the work to see that it met specifications; that she saw
Perkins' signature on a paper (which I have found supra was an antiunion petition), that
on January 26, 1951, Perkins told her and another girl to go into Sether's office where the
latter gave her a written warning for talking and running around the plant too much
Sether testified that he could not remember how Whelpley's transfer occurred, that
Perkins was a setup man, that neither he nor any setup man had authority on his own ini-
tiative to effect a transfer, that Perkins had no supervisory duties of any kind, that he
would instruct employees how to do a job, check timecards, see that work was at the ma-
chines, check it to see if it was done according to specifications, and tell employees after
finding out what orders were to be taken first, the sequence in which work should be done.
Thompson's title during all material times was "setup man." At the beginning of Myrtle
Olson's employment in the autum of 1950, he came around to give her work. Anna Coyle
testified that the last part of February or the first part of March 1951, Sether told her
Thompson would be her setup man or her foreman, that she does not know which he did
say, that she went to work under Thompson, that at the time of her layoff in June 1951,
Thompson did the setup work and was her immediate supervisor, that in October 1951,
when she applied for reemployment Sether indicated he could not take her back and when
asked if he could reconsider, replied he could ask her foreman but did not think he would,
that in March, Heath had promised her she could have Esther Bissell's job on the paddle
mill when Bissell left, that when the latter did leave about the first of May and she learned
that Bernice Yannie instead of she was going to have that job, she appealed to Thompson who,
she thinks, said he did not remember Heath's promise. Edna Hulse testified that when she
went on days Thompson was her immediate superior, that he was the only one who told
her what to do, took her off one operation if there was lack of work there and placed her
on another, that a month before the latter part of June 1951, Thompson criticized the over-
knocking-down of blanks which caused the temples to bulge and she was asked to do a box
of work over again. Elynore A Graves testified that Thompson was setup man on the temple
machine when she was working there Marie Holiday testified that Thompson was her im-
mediate superior for 2 or 3 months after Reginald Cornelius left Respondent's employ
(March 8, 1951), that he told her what to do and to go from one operation to another; that
she considered Thompson her foreman during that period when she was taken off one ma-
chine and moved to another machine and that he assigned her to the new machine, that
her best estimate was that Thompson transferred her from 2 machines or 2 operations
2 or 3 times a week and that Thompson checked the quality of her work to see if it was
meeting specifications Betty Whelpley testified that Thompson set up her machine on
scoring, gave her the work, and told her what to do
Sether testified that Thompson has never had any supervisory duties. It appears from
the testimony of Thompson himself that his duties consisted of setting up machines, de-
termining whether or not the machines are properly set, acting as more or less of a trouble-
shooter when machines worked improperly and instructing new employees how to operate;
that he performed his work upon instructions from his group leader and on the basis of
BAUSCH & LOMB OPTICAL COMPANY 801
production sheets given him and not on his own initiative Thompson reiterated Sether's
testimony concerning the limited extent of his own authority and that of setup men in,general
In determining the status of these four men, we are concerned of course with their actual
authority and their real standing as representatives of Respondent and not merely with
nomenclature. The resolution of the law question is not simple Reasonable men, I believe,
could arrive at contradictory conclusions, yet not be attainted with demonstrable error
The instance of Parker provides a riddle It is extremely close The circumstances
surrounding Abbott's, Perkins', and Thompson's, responsibilities and authority give me
less pause. N. L. R. B. v. Quincy Steel Casting Co., 200 F. 2d 293, 296 (C. A. 1); see also
N. L. R. B. v. North Carolina Granite Corp., 201 F. 2d 469 (C. A. 4). We must measure
the facts against the Act's definition of the word "supervisor," and the interpretations
of that phrase as well as of the word "agent."
In my o0inion, the credible testimony does not quite come up to the mark of showing
the possession and exercise of that type of individual and independent judgment and dis-
cretion contemplated by the phrase "responsibly to direct" used in the Act, even with
respect to Parker. It necessarily follows then, that I should find, as I do, that the General
Counsel neither has sustained the burden of proving that Abbott, Parker, Perkins, and
Thompson, at times material to the issues involved in this case, were supervisors within
the meaning of the Act nor has he--as I feel he did in the case of Hogan--"identified them
with management in such a way as to cause employees to look to them for guidance re-
garding the Respondent 's policies." 7
B. Discrimination respecting employment
1. Contentions and fundamental principles
The basic issue raised by the discharges or layoffs of 43 employees and the failures
to reinstate some of them and by the failures to reinstate 2 others is the motive for such
action. The General Counsel contends that Respondent's true reason was the union member-
ship, sympathy interest, assistance, or other concerted activities of the complainants.
Respondent has advanced other entirely unrelated reasons.
As the Fourth Circuit has recently stated in N L. R B. v. English Mica Co , 195 F
2d 986, 987:
Whether, in view of all the circumstances, the discharges were in good faith for
the reasons given or whether these were mere pretexts for discharge on the real
ground of union membership and activity was a question to be decided by the Board
upon the conflicting evidence and the conflicting inferences to be drawn therefrom
As we said in Hartsell Mills Co v. N. L. R. B., 4 cir , 111 F 2d 291, 293
It must be remembered, in this connection, that the question involved is a pure
question of fact; that, in passing upon it, the Board may give consideration to
circumstantial evidence as well as to that which is direct, that direct evidence
of a purpose to violate the statute is rarely obtainable.
2. Union campaign , bargaining request, election
Starting in early 1951 and continuing through the spring, the Union conducted a member-
ship campaign among the Respondent ' s production and maintenance employees , including
toolmakers and diemakers and factory clerical employees employed at Wellsville. On
February 19, 1951, it wrote Respondent asserting it represented a majority of these em-
ployees and requesting a conference for the purpose of discussing recognition and the
terms of a collective-bargaining agreement. Following a petition filed by the Union on
February 27, 1951, the Board on May 7. 1951, directed an election which was held on June
1 The Union lost the election by a vote of 97 to 64, 10 votes having been challenged.8
7 Cinch Manufacturing Company, 98 NLRB 118, but see Harrison Steel Sheet Co., 94 NLRB 81,
s Among the votes challenged were those of certain setup men whom Respondent claims the
Union had previously informally agreed should properly be included in the appropriate unit
which the Board determined should comprise all production and maintenance employees
employed at Respondent's Wellsville plant, including toolmakers and diemakers, but ex-
cluding office clerical employees, guards, professional employees, and all supervisors as
defined in the Act.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The layoffs and discharges in general
During a period of time before and after the election , the 45 employees whom the General
Counsel contends were victims of unlawful discrimination , were laid off, discharged, or
left Respondent ' s employment or failed of reinstatement Some were reinstated , some were
denied reemployment , and many others were not recalled . Respondent was aware of the
union activities and tendencies of many of its approximately 1889 employees during the
late winter and spring of the year , and had reason to believe or suspect others were sympa-
thetic with its aims and that others opposed it . I expect to make reference subsequently,
in specific instances , to the matter of Respondent 's knowledge or otherwise , of divers
complainant ' s predilections and the extent to which they may or may not have supported
the union movement . Exclusive of 14 among the 45 named complainants , 46 new employees
were hired and 1 former employee was reinstated between May 5, 1951, and January 15,
1952. Of these, 3 were discharged in September , November , and December 1952 and 1
quit on August 16, 1951. Of the complainants , 11 were reinstated between August 13, 1951,
and January 2, 1952, and continued to remain in Respondent ' s employment after the first
of 1952. Three others among the complainants were reinstated in 1951, but before the end
of the year were no longer employed Of approximately 143 nonsupervisory people, not
named in the complaint , who were employed by Respondent at the time of the election on
June 1, 1951, 85 were still working for Respondent at the time of the hearing and the 58
remaining had either quit or been discharged or laid off . Thus it would seem that although
on January 15, 1952, Respondent had in its employ in the neighborhood of 149 people--as
against about 188 some 6 or 7 months earlier - -it had by then hired 15 more new employees
than the number of complainants who were not reinstated and also that by the time of the
hearing , 27 more of Respondent ' s June 1, 1951, employees than the number of unreinstated
complainants were off the payroll.
4 1951 business conditions
There was a drop between March and July 1951 from 65,000 units to 24,000 units in
monthly orders received for the production of all plastic or zyl frames made by Respondent
in Wellsville This was attributable to a loss in popularity of this type of frame in favor
of the gold filled types made in Rochester , where the number of units shipped increased
monthly from 24,000 in January 1,951 to 134,000 in August and thereafter to 168,000 in
March of the following year There was a temporary increase in orders for all plastic
or zyl frames up to 48,000 units in September but by July 1952 the orders were dwon to
21,000 units for the month The balance orders, or the dollars of shippable orders, for
this frame remaining at the end of the month , reached its nadir since March 1950 at the
end of August 1951, having decreased from $ 76,000 at the end of October to approximately
$8,000 This balance rose from that point to $ 35,000 at the end of the year where it again
stood , after a substantial intermediate drop, at the end of August 1952 The number of frames
shipped monthly from the plant went from 62,000 in March to 23,000 in July 1951, increased
to 41,000 in February 1952, and again stood at 23,000 in August 1952. In January 1951,
the inventory of finished products stood at the highest peak in the history of the Wellsville
plant in the amount of $345,000. This was gradually reduced to $ 280,000 by the end of the
year and to $ 265,000 in April and May 1952 Thereafter it grew to $ 305,000 in July and
August.
5. Respondent ' s knowledge of and attitude toward union activities before April 25, 1951
The findings in this subsection are not those of unfair labor practices.
The testimony of Respondent ' s continent wide (other than for Rochester and Wellsville)
director of labor relations , MaGuire , and its former director of industrial relations at
the Wellsville plant, Glenn Helm, relative to the attitude of Respondent's officials with
respect to the principle of collective bargaining, is in decided conflict. The former testi-
fied he was sent to Wellsville when it became know the Union filed a representation pe-
tition and that his "objective was to see that the rights of the employees were protected
9 A few of whom were laid off before the election but qualified to vote thereat.
BAUSCH & LOMB OPTICAL COMPANY 803
and to do everything possible to see that we didn't become involved in an unfair labor prac-
tice." The latter testified that in 1947, Kenneth Piper, the Respondent's director of in-
dustrial relations at Rochester, instructed and informed him to "take all necessary pre-
cautions in preventing or causing any type of labor organization. In other words, do every-
thing possible to prevent an organized labor movement organization ... in all my hirings
and so forth, to prevent, as near as possible, organization, attempt to organize . . I had
to clear all hirings through the director in Rochester at that time and report any activities,
if such there was such, to the director if there was any talk of organization or if there
should be any union in the shop to- -any unrest among the employees, to organize. If there
was any talk of it in the shop to report it to Rochester " Henry G Lyon, director of indus-
trial relations, with his office located in Rochester, testified that when the Wellsville plant
was opened and since, the Company's policy toward labor organization has been that it
has "felt that it is up to individuals to determine whether they wanted to be represented
or not," that Respondent's policy toward labor organizations has not changed any since
the plant was opened in 1947 and that it is substantially the same today as it was at that
time. It was stipulated that if Piper were called he would testify that he was not hired
for any purpose in connection with antiunion activities, nor was he given any instructions
to tell anyone else to be antiunion, and that he would deny that he had ever told Helm to
engage in any antiunion activities
I do not believe it was MaGuire's aim to protect the interests of employees when the
Company felt they traversed its own, nor that he did so Helm was discharged by Respondent.
His testimony, which finds support in Mary Benjamin's, must undergo the same careful
scrutiny as that to which the evidence given by many of the other witnesses who feel they
were unfairly treated, must be subjected it was no great concession on Lyon's part to
state that the Company's policy was consonant with that which the Act requires. In attempt-
ing to search out indications of, and arrive at conclusions concerning Respondent's stand-
point, the conduct and statements of its officials before and after the election are more
revealing than pronouncements at the hearing Therefore reference to this conduct and
these statements becomes necessary. Occurrences which took place more than 6 months
before the filing and service of the charge, because of the provisions of Section 10 (b)
of the Act, may of course not be conjoined with any unfair labor practice but they may
be given weight in forming conceptions concerning knowledge of, and attitude toward, union
activities. While no one of the following factors, if standing alone, would be sufficient con-
clusively to demonstrate antiunion animus, when they are viewed in their entirety and
evaluated in the light of Respondent's entire course of conduct they lead to the conviction
that it desired to, if indeed it did not strive to, hold the Union at bay
About April 10, 1951, MaGuire called Neil Bernard into the office because of his "ac-
tivities around and the commotion that was around regarding this union activity" and in
the presence of Sether and Heath, after asking him if he could do anything about the in-
crease in scrap that was going on throughout the shop, stated that he and Sether were getting
tired of people calling them up all times of the night making complaints that they did not
want a union and to the effect that if the Union came in they would quit, and inquired of
Bernard "if he didn't think that something could be done about it to put the people at ease."
The latter part of March, in Sether's office, Sether in the presence of MaGuire told Mildred
Bower that they had brought her in for the purpose of asking about an activity that was going
on in the plant that was disturbing employees and because they felt she could tell them
about it He referred to the number of people hanging around her machine and told her
she should discourage this practice He then questioned her as to what was going on, why
the employees were dissatisfied, who was trying to organize a union, who was active in
it and why MaGuire told her that the Company did not want employees to engage in union
activities on company time and it was incumbent on her to cooperate with the Company
and that it could be made very uncomfortable for her if she did not. 10 In March, Doris
InSether admitted he might have had some conversation with Bower if she had expressed
dissatisfaction, and originally testified he did not recall talking to her about the Union. He
also testified that he did not ask any employees whether they were in the Union although
many of them told him on which side they stood. MaGuire testified that Sether did all the
talking at this meeting. Neither Sether nor MaGuire expressly denied that Bower was told
she had been brought in for the purpose of inquiring about the current activity that was
disturbing employees and was asked what was going on, why employees were dissatisfied
or who, other than herself, might be active in, and trying to, organize the Union.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown was called in the presence of Sether, MaGuire, and Heath, where Sether said they
had been told she was a leader in the Union, that there was a lot of disturbance and con-
fusion in the plant, and that all talking had to stop. MaGuire stated he did not understand
why the employees wanted a union and that he had never heard of a union contract that
would do any more for employees than Respondent was doing. Brown stated that rates
were being cut and cited what she considered a couple of examples. Sether insisted that
such was not the case and told Brown that she should stay at her bench at all times except
during the morning and afternoon breaks, that if she could do more work than she had
been doing she would be paid for it. The first week of April, Moore told Brown who had
complained to him about being closely watched, that she had been reported a leader in
the Union and that she was a marked woman. 11
At a nonunion meeting in Odd Fellows Hall about March 6, 1951, Sether told Grace Caldwell
and others there assembled that machinery which had been shipped in for use in a case
department had been "shipped out because of this controversy that was going on" that
Respondent did not know how things were going , but had intended to have a case department
until this came up 2
About a month before April 12, 1951, MaGuire asked Violet Peterson, payroll clerk
and timekeeping supervisor, if she had heard rumors about and what she thought of the
Union, whether she had talked to two other timekeepers, Gertrude Gavitt and Onalee Pakis,
about the Union and if she was sure neither cared for it About April 1951, but before April
25, Sether in response to an inquiry from Hilda Hall respecting Respondent's attitude toward
the Union, stated that if it came in the Company did not have to go on with the expansion
it had in mind and that unless it did, there would not be enough jobs and it would not be
able to keep all its employees 13 In February 1951, Moore asked Marie Holiday if she
had heard anything of a union In February 1951, Sether and MaGuire visited Edna Hulse's
machine and asked her how she felt about the Union She replied she was in favor of it.
MaGuire told her the Company had a plan that was just as good as a union. 14
In March 1951, MaGuire stated in the presence of Sether, to Delilah Hutchinson and Myrtle
Quackenbush that the Company was discontinuing the night shift due to the fact that there
were so many temples in stock and that if the Union did not get in the Company was plan-
ning on building a half million dollar project in Wellsville but if the Union did get in, the
Company was going to discontinue operations and move out of Wellsville ss
11 Sether admitted conversations with Brown about the Union and although he stated he
could not remember what they were about, he denied that he told her he understood she
was a leader. MaGuire asserts that it was Brown who interjected the union talk into the
conversation; that he assured her her union participation had no bearing on the treatment
accorded her and that she acted as though she were trying to be fired. Moore was not a
witness.
12 Sether testified machinery had been shipped in but he did not think it had been shipped
out.
13Sether testified that he might have had a conversation with Hall in which he said there
was no truth to the rumor that the plant would close if the Union got it, that he did not
remember the conversation but he never had a conversation with Hall in which he said
the Company did not have to go on expanding and could cut some off the day shift. I find
there was a conversation and that Hall's testimony expresses its more accurate version.
14 MaGuire denied that he or Sether asked her how she felt about the Union. He did not
deny that he told her about a plan, testimony concerning which indeed was brought out in
Respondent's cross-examination of Hulse.
i5 Sether testified that he never heard MaGuire make this statement. MaGuire testified
that he did not make such a statement and that he did not know anything about what the
Company's plans in Wellsville were, that he had heard rumors to that effect and scarcely
a day went by when someone did not ask him if the Company would move out. This denial
on the part of Mr. MaGuire does not convince me that Hutchinson has not recounted the
statement with fair accuracy. MaGuire constantly, during the course of his testimony,
denied statements attributed to him and although I fully appreciate the fact that a man
of his experience in labor relations would not be likely indiscriminately to promise benefits
or threaten reprisals. I am unable to bring myself to believe that the testimony given by
such witnesses, as Doris Brown, Myrtle Olson, Marguerite Faber, Violet Peterson, Albert
Closser, Edna Hulse, Frank Parker, Catherine Gostley, Mildred Bower, and Elynore A.
Graves were invariably false and MaGuire's denials or "clarifications" invariably truthful.
BAUSCH & LOMB OPTICAL COMPANY 805
6. Conduct, attitude, and knowledge of Respondent after April 25, 1951
The following circumstances furnish still further evidence of Respondent's hostility
to the Union and its awareness of its employees' union activities and inclinations.
Ten days or 2 weeks before the election, which took place on June 1, 1951, MaGuire
asked Betty Whelpley on 2 successive days how she felt about the Union. She told him she
favored it and on the second day, MaGuire told her he had heard she was in favor of the
Union and said that if the Union came in there would not be any more paid holidays, that
employees would have to work a certain length of time before having paid vacations and
that the main plant at Rochester would cut Wellsville's orders with the result that eventually
layoffs would ensue In the early part of May 1951, Hogan told Huldah Neely that if the Union
should come in, it would probably mean her job because the plant would either move to
Rochester or close down.
On the Tuesday preceding May 25 or 26, Myrtle Olson was called into the office where
MaGuire told her he had heard she had quite a bit to say about the Union, that he would
not be laying her off if he had hired her before the other girl that was doing the same opera-
tion and asked her how it happened that she had decided against the Company. When Olson
disagreed with an assertion made by MaGuire that she had been given jobs where she could
make good money, MaGuire stated it would not do any good if the Union got in because
Bausch & Lomb would move out of Wellsville and that a lot of poor victims would suffer
due to her and others like her. Olson replied that she did not care if the plant did move
that she was for the Union A little while later Heath came up to her machine and stated
that if the Union came in the Company would move its plant out of Wellsville Two days
later , MaGuire called her into the office and told her that she was a troublemaker, had
created more trouble than anybody else hired by Bausch & Lomb, and asked her if she
did not think he had enough trouble without her causing him more. Olson became upset
and cried and then MaGuire said that if she had signed the antiunion petition, things might
have gone on differently with her. 16
About 3 weeks before Joan Watson was laid off, on May 25, 1951, she spoke to Sether
while they were in the packing room, telling him that she had heard a rumor around the
plant that if the Union got in the plant would close down. Sether stated that he could not
speak for the Company but if the plant were his and the Union got in he would close it down
rather than have trouble with the Union and lose money 17 Probably 3 or 4 weeks before the
voting day Hogan asked Dorotha Watson what she thought or how she felt about the Union.
l6MaGuire's version of these conversations was that he called Olson into his office be-
cause he had heard that she had been talking about the layoff of Nedith Daniels and that he
told her he did not accuse her of talking about it but that if she had done so, he was asking
her to refrain from such talk; that Olson denied that she had said anything about the Daniels
incident and that she became very much upset during the conference but finally apologized
for her "actions" and as she left, stated she was glad she had not been discharged because
if she had, she would not draw unemployment insurance. MaGuire further testified that he
did speak to Olson the following day but it amounted to no more than passing the time of
day. In the light of MaGuire's earlier inquiry of Violet Peterson as to whether or not she
had heard rumors about the Union and what she thought of it and whether neither Gertrude
Gavitt nor Onalee Pakis cared for the Union, and Edna Hulse as to how she felt about the
Union as well as his inquiries after April 25, 1951, of Betty Whelpey as to what she thought
of the Union and his assertion that if the Union came in there would not be any more paid
holidays, that they would have to wait longer before having paid vacations and that eventually
layoffs would ensue, and from my observation of Olson as a truthful witness, I find her
testimony entirely credible.
i7Sether's testimony was that he does not remember any such conversation as was testified
to by Watson but if he did have a conversation with her it was not as she described it, that he
does not recall whether or not he talked with her about a rumor that the plant would close if
the Union came in but there were so many conversations relative to that subject that he
cannot remember them all. Sether then testified that he had more conversations with Arnold
Bentley than anybody else and that his answer was alwas that the plant would not close down
regardless of a union and whether or not there was an election. Upon my impression of
Watson as a reliable witness and on the basis of Sether's uncertain memory I believe that
the former's description of the conversation constitutes a fair paraphrase of what was said
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 4 or 5, 1951, Respondent's vice president, C. S. Hallauer, at a social gathering
in Wellsville attended by a group of Respondent's officials, supervisors, and setup men
and their wives, congratulated those present upon the failure of the Union to organize the
plant and stated the Company was going to step up production and to keep in its employ
the same line of people that it had working at that time.
7. Reduction-in-force policy
At the time of the various layoffs, Respondent's policy with respect to reduction in work-
ing force was to recognize length of continuous service to the greatest degree consistent
with efficient operation and to make every effort to put displaced senior employees ie in
other jobs.
The overall policy of retaining employees having greater seniority in preference to
those having lesser, was somewhat modified by placing upon supervision the responsibility
of governing layoffs regardless of length of service in instances of "ascertainable dif-
ference between employees in ability, demonstrated performance, attendance, physical
fitness or where specialized knowledge and training is necessary." In those cases where
there appears no such difference or necessity, the Respondent's course was first to trans-
fer or lay off, when a reduction of employees on jobs in their department became required,
employees with the shorter length of company service.
8. The alleged discriminatory layoffs, discharges, and refusals to reinstate in detail
It is with obedience to, and in the context of, the facts, principles, circumstances, and
considerations found, discussed, and related in subsections B, 1 through 7, that I next must
address myself to the task of finding in the mass of evidence--often in diametrical con-
flict--the truth respecting the reasons for the various discharges, layoffs, and nonrem-
statements of each and every complainant and of concluding in each and-every instance
whether or not the Act has been violated. This is not a "mas discharge case" to which
an easy escape and facile formula of disposition may be applied. Justice to Respondent
and each complainant demands a separate answer for each person. Since all actors play
distinct roles in different dramas having diffuse denouements, I must in effect decide 45
individual cases. I shall take them up in alphabetical order, always endeavoring to remember
that truth is a sensitive companion, difficult to catch up with, and likely to flee if suspicion
appears.
Ruth Amidon was first employed by the Company on March 7, 1947, about 2 months after
the start of setting up machinery in the plant. She filed fronts for 2 months and thereafter
did grooving. She was considered a good worker and employee by Parker and Albert Clos-
ser 19 who set up her machines. In February 1951 she signed an application card for member-
ship in the Union and thereafter attended 3 or 4 union meetings , one of which was at Moose
Hall where the General Counsel alleges (a matter that will subsequently be explored) Re-
spondent engaged in surveillance. Some 2 weeks before Amidon was laid off on August 6,
1951, Duke told her if she did not do better work, the Company would get somebody who
could do it. At the time of the layoff, Moore told her that she was temporarily laid off
for lack of work and that she would be called back as soon as work picked up. 20 About the
isRespondent's policy manual, in a paragraph entitled "Policy" under the heading "RE-
DUCTION OF WORK FORCE, " which emphasizes the high degree of recognition to be
accorded length of service, concludes with the sentence : "However, every effort is made
to place such displaced employees in other jobs ." It is obvious that in their context, the
words "such displaced employees" mean those employees possessing seniority whose
jobs the requirements of production sometimes make unnecessary
19 Although Duke testified he once asked Closser if he thought Amidon 's work was right
and if he would "mike" it to see.
20Respondent denied that any of the laid -off employees , with the exception of Gertrude
Rowley were told they would be called back. On the cumulative and mutually corroborative
testimony of Amidon , Violet Babbitt, Doris Barnett , Neil Bernard, Mildred Bower, James V.
Cline , Martha Driscoll , Marguerite Faber , Marian Fisher , Audrey Gates , Lucy Hollister,
Isabel Houghtling , Delilah Hutchinson , Louise Ingalls , Crystal Miller , Huldah Neely, Myrtle
Olson , Audrey Robinson , Gertrude Rowley, Dorotha Watson , and Joan Watson, I believe that
these 20 employees as well as others were in substance informed they would be notified
when work became available
BAUSCH & LOMB OPTICAL COMPANY 807
time of the service of the charge in October, Amidon went to the plant and asked Sether
if she could get her job back. Sether informed her she could not and that the reason she
was laid off was because she always had a frown on her face and was never satisfied with
anything that anybody tried to do for her. Zi When she and Isabel Houghtlmg, who accompa-
nied her, told Sether that they knew new girls were being hired, he told her they were,
but that Respondent was satisfied so they probably would not be called back. Although Amidon
had seniority going back to 1947, she was laid off after Isabel Houghtling and Catherine
Gostley who had worked a shorter time than she. Houghtling, who had greater seniority
than Gostley, was laid off before the latter. These three comprised all of the full-time
grooving section workers until a full-time job became available on November 13, 1951,
and Gostley, possessing the least seniority among the three, was recalled at the request
of Duke who was friendly with her husband. Amidon and Houghtling have never been reem-
ployed.
Viewed in the general perspective of the length of service and degree of union adher-
ence of all 45 complainants, there is rather more ground for believing that Amidon, one
of the Company's very earliest employees, has been discriminated against because of her
membership in the Union and attendance at its several meetings than for suspecting that
many others with no better work records and relatively new with the Company, whose
union proclivities where less pronounced, were likewise discriminated against. 'Die fact
remains, however, that after August 6 there were no full-tune workers remaining on Am-
don's job and it has not been shown that she possessed that degree of versatility so de-
monstrated to have been the attribute of many of her coworkers, as to have rendered them
more fit than she to shift from one operation to another as required by the exigencies of
production. True it is, that Sether's explanation for not needing or wanting Amidon lacks
consistency and one may well question why this long term employees' alleged physical
infirmities (and, I credit her testimony that she was never unable to perform her job be-
cause of any physical condition) and temperamental foibles should happen to become so
revulsive at about the time her name appeared at the top of the list on an unfair labor
practice charge filed against Respondent. But this latter question goes rather to the alle-
gation of a refusal to reinstate than to that of discriminatory layoff. Considering all the
circumstances, I feel that Amidon was laid off for cause; to wit, lack of work and that
if she was discriminated against it was by virtue of her not having been reinstated after
August 6, rather than by having been laid off on that date. The temporary nature of some
of the layoffs, the attrition among old employees, and the new hirings have all been pointed
out above. In assuming the genuineness of Respondent's assertion of its reason for not having
taken on Amidon when she requested a job in October, it is significant to note that Gostley,
who also applied for membership in the Union, in Febrgary 1951, became its temporary
conductor, attended several meetings including that at the Moose Club, talked to Hogan
about the Union, and had at one time been warned in behalf of MaGuire about spending
too much time talking to another employee, was rehired on November 13. Now the facts
are, that Gostley, who had a year's less seniority than Amidon, was sought out for employ-
ment about a fortnight after Amidon had been refused work. This in itself may form the
basis for an argument--although in my opinion not a forceful one--of discrimination as
against Amidon. Then again it might be said that I should infer that by November 13, when
Respondent had fully pondered the charge, it had become at least partially repentant to
the extent of making some amends to Gostley. I cannot thus however pile the Pelion of
inference on a supposititious Ossa. It is further true, that an employer does not neces-
sarily have to discharge or refuse to reinstate all employees whom it knows, believes,
or suspects have engaged in union activities, before it can be found guilty of violating Sec-
tion 8 (a) (3) of the Act. Nevertheless it is a conjurable fact that Respondent did reinstate
one employee, in preference to another, who on this record seems to have been a slightly
less diligent union disciple. There was no one to deny that Respondent's appraisal of Gostley's
iiSether's version of this conversation was that he told her he felt she was very unhappy
at the plant, it was very difficult to get along with her and that he did not feel he could give
her consideration. He testified his actual reason was that Amidon did not have the physical
qualifications for the job and should not be working for Respondent at all. At another point
he testified that she was laid off for lack of work.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abilities as being superior to those of Amidon, was unwarranted. In deciding any close
question of fact or motive one must guard against the tendency, which is natural to most
of us humans, to lend a more receptive ear to an accusation than to a denial. Perhaps
that was the very need for the development in our jurisprudence of the concept of placing
the burden of proof on the accuser.
Here I cannot say that the evidence preponderates on either score in favor of the General
Counsel's dual contentions.
Violet Babbitt was first employed by Respondent July 10 or 11, 1950, worked on the
scoring machine, on the side miller, on the slot machines, the drills, and the kick press,
and in cleaning fronts, inspecting temples, and in the tumbling room. She signed a union
card, tendered her by Johnson, and attended union meetings in union hall, outside the first
of which in February 1951, she was seen by Heath and Duke, and one in Moose Hall when
she was seen by Hogan and various setup men. On May 21, 1951, Sether informed her and
others that they were going to be laid off for lack of work. She was told that she would
be called back. At about this time Heath told her that during the period of employment
she had had 26 days' excused absences and 11 days' unexcused absences and that if she
took any more time off he would have to let her go. Her layoff was effective May 28 or 29.
She voted in the election on June 1. She later heard that Respondent was hiring help but
she was not called back and did not ask for a job. Babbitt was laid off before either Hilda
Hall or Delilah Hutchinson although she had more seniority than they. Respondent's asserted
reason for this was the fact of her absences from work amounting to 37 in number, 11
of which were unexcused. Respondent's rules, which I find on conflicting evidence were
distributed to or accessible to all employees, included: No. 11--"Frequent tardiness or
absence without permission" and No. 24,-"Absence from duty without giving proper notice
to and receiving permission from foremen--" as causes for discharge in proper cases.
On May 18, 1951, Babbitt was given a written warning notice on this account. 22
Elizabeth Blanche Kilmer, upon whose employment status I have already ruled, a senior
among the temple inspectors, observed that Babbitt was careless, left work undone, mixed
up temples and was irregular in her attendance, and that Hall and Hutchinson' were somewhat
better inspectors than Babbitt although even they never became really good inspectors. Hall,
who never received a written warning, was rather less allegiant to the Union than was
Babbitt. About 41 to 5i months after Hall went to work in December 1952,23 when she in
apparent sweet reasonableness asked Sether what was the Company's viewpoint regarding
the Union and how its advent would affect employees, he replied that it was not true that
if the Union got in, the Company was going to be moved but that it did not have to go on
with the expansion program it had in mind and that, unless the Company did expand it would
not have enough jobs to be able to keep on all the night shift. Hall signed the petition op-
posing the Union which was presented to her by Kilmer.U Babbitt and Hutchinson were
equally conspicuous in their union activities although neither was especially prominent
in its support. The latter apparently signed a union membership application card with some
22 These warning notices, which will be mentioned frequently in this report, were intro-
duced by Respondent in 1943 They constitute dated written records issued by a foreman
or department head describing a specific violation of company rule or incident of unsatis-
factory workmanship or conduct on the part of given employees. The purpose of the notice
is to record the fact of a discussion of a correction or reprimand between a foreman and
an operator in order that if the question of layoff later comes under consideration it may
be known that an employee previously had his shortcomings brought to his attention and
had been given an opportunity to make correction. The warning notice is frequently issued
after a verbal correction or reprimand. On occasions where a first infraction of company
rules is of such character as to indicate the application of some disciplinary action short
of discharge no warning notice is given. Frequently these notices bear a notation that lack
of further notice to a given employee within a certain number of months, usually 4, will
indicate that the situation concerning which the employee was criticized or reprimanded
has been satisfactorily corrected.
23 Presumably in April 1951, but the evidence is not sufficient to warrant a finding that this
conversation took place on or after April 25
24 It will be recalled that I have adverted to this petition in the discussion of the status of
Kilmer, Cross, McAhon, and Presutti where I said, as I again say here. I shall deal here-
under with the allegation that Respondent was responsible for its circulation.
BAUSCH & LOMB OPTICAL COMPANY 809
hesitation after talking with Johnson quite some time and attended about 4 meetings, at 1
of which , held about May 15, 1951 , Hogan and several setup men were present. There
was no evidence that Hutchinson had ever received a written warning as had Babbitt. The
General Counsel by showing a disparity of treatment between employees to the disadvantage
of one ostensibly more union -inclined has, under the facts and circumstances of this aspect
of the case , raised a suspicion that Respondent violated the Act in laying off and not rein-
stating Babbitt but that is not enough to establish a case of discrimination.
Marjorie Ball was hired July 5 , 1950 , and was laid off July 22, 1951 , for lack of work.
She was reemployed August 22, 1951 , following several requests made by her husband,
also employed by Respondent . She continues to work for the Company . She did not sign
a union card. She did not attend a union meeting. If this be discrimination , it was to Mrs.
Ball's advantage , at least admidst the 45 complainants.
Doris Barnett was hired June 7, 1950 , and was laid off May 25, 1951 . On the Monday
before the latter date , she and others had been informed that they were to be laid off be-
cause of lack of work , told that they would be able to come back and vote in the election
on .rune 1, and that they would be called back to work when there was need of more employees
or added employees . Barnett signed a union-membership application in February 1951
and declined to sign the antiunion petition . It does not appear that she attended any union
meetings . She neither returned seeking work nor was she called back by Respondent, who
considered her a nice person but a slow worker. After having been notified of the impending
layoff, Barnett asked MaGuire why she had been selected rather than Nedra Burrows,
who had been working for the Company a shorter length of time . Burrows had, however,
worked longer than she on the particular job of cleaning hinges which she was doing in
May and MaGuire informed Barnett that she was being laid off because of that fact. At
the time of her layoff this girl was doing part -time work on both hinge cleaning and as-
sembly . A change of method eliminate the need for hinge cleaning . On the assembly job
Barnett worked with Ruth Hendrick , who was elected temporary treasurer of the Union
in March 1951 , and with Betty Geffers , both of whom are still in Respondent 's employ.
Barnett had less seniority than either Hendrick or Geffers . The General Counsel has not
proved discrimination here.
Mary Benjamin was one of the first employees hired and worked on a variety of opera-
tions including drilling, riveting , grooving, and scoring until she was discharged on No-
vember 21 , 1951. She applied for membership in the Union in February 1951 , procured
Anna Coyle 's signature to an application in April or May , and in May declined to sign the
antiunion petition presented to her by Cross . She attended 2 union meetings , 1 in February
and 1 in April. Benjamin was considered to be a good operator and had taught Peg Shutt
how to perform the operation of temple scoring. Respondent 's main defense with respect
to Benjamin is that she was discharged for cause.
The circumstances were as follows : In November 1951, it became known to Sether that
Benjamin and others , including Betty Whelpley , Olive Wilkins , Marjorie Ball, Peg Shutt,
and Coletta Ennis were failing, at the end of the day , to turn in all the work they had com-
pleted, because of their apprehension that piece -work rates would be reduced if it became
known that they were able to produce more than a given amount of work. When Whelpley
had been criticized for not staying at her machine she said that she had time on her hands
and could produce more units a day . After admonition and reassurances , Whelpley for a
time increased her production from approximately 4,5000 to 4,800 units a day which gave
her earnings of approximately $ 11 a day, to a production of 5,500 to 6,000 units per day
with a resultant increase in earnings to approximately $14 a day . On the Monday or Tuesday
before Thanksgiving , Sether called Benjamin and the above -named employees into his office
and told them that he expected, and was instructing , them to turn in all their work regardless
of whether they had any ahead. The employees involved agreed that they would comply
with Sether 's expectations and instructions and he assumed that everything was in order.
It appears that Benjamin told Marjorie Ball and some of the newer girls to hold back work
and that if they turned in all they produced , they would be apt to get their piece -work rates
cut. Sether testified that he had explained to Whelpley and Wilkins that such a result would
not ensue , that if they could make more production they should do so and that nothing would
be done to the price. Whelpley told MaGuire that she was afraid to turn in all her work
because if she did she would incur Benjamin's disapproval.25
25 Whelpley denied Duke 's testimony , somewhat substantiated by MaGuire ' s, to the effect
that Benjamin bothered her, interfered with her work , and that she felt uncomfortable
working beside her.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day following Sether ' s conversation with these employees , he, Duke, and
Johnson checked Benjamin ' s work at quitting time and found 5,000 to 6,000 blanks
scored, but not turned in The other workers on this operation , with the exception
of Whelpley had complied with the previous day's instructions . Thereupon Benjamin
and Whelpley were discharged . A few days later Benjamin talked to Sether at the
plant and when she told him that she was being gotten rid of because Johnson, who
had signed her up for the Union , had later been promoted to group leader , the latter made
no reply. Subsequently , in talking to Duke, Benjamin alluded quite inelegantly to Sether
and MaGuire.
In point of time, Benjamin's discharge was considerably removed from any active union
agitation , most of which seems to have subsided after the election nearly 6 months earlier.
I have no doubt that Respondent was aware of her interest in the Union . The circumstance,
that when upon her return after November 21, seeking Sether 's reconsideration or infor-
mation concerning unemployment insurance, Sether made no reply to her reference to
Johnson and the Union , when coupled with the facts of Benjamin 's ability and the absence
of any previous warning notice , are sufficient to give one pause before concluding that her
disobedience of orders was the real reason for the imposition of such a severe penalty
as discharge . Although Respondent had no formal rule--despite Sether's testimony--re-
specting the holding back of work , its Rule # 9 subjected employees to discharge for "failing
to carry out any reasonable order by a representative of the management ." I take it that
Respondent does not rely upon this lady's rather Rabelaisian references to Sether and
MaGuire in connection with its Rule #4 proscribing "uncivil or insulting language in willful
contempt of authority " as a cause for discharge or refusal to rehire . As it goes almost
without saying that an employer may discharge an employee for any reason, good, bad, or
indifferent , or for no reason at all, without violating the Act, providing his reason is not
one condemned by the Act, it is scarcely necessary to point out that a discharge of an
employee who attempts to arrogate to herself an employer 's prerogative of determining
the quantity of production , is a discharge for good cause. I am constrained to rule here
that the General Counsel has failed to prove that Mary Benjamin was discharged for other
than cause.
Neil Bernard, one of the early employees at Wellsville , went to work there the first of May
1947. His first assignmgnt was the repairing of frames after which he was put on a setup job
and finally given the work of profiling until he was laid off on July 16 , 1951 . He was elected
temporary vice president of the Union, attended 8 to 10 meetings between February and June
1951 and the Board hearing in the representation proceeding on April 10, 1951 . His union
activities and interests were well known to Respondent . Prior to the date of the election he,
Charles McGill and Kenneth Perkins , the 2 other profilers, had been working about 40 hours a
week. A week or so after the election , they were notified that their work time was being re-
duced to 3 days a week and it was arranged that 1 of them should work Monday, Tuesday, and
Wednesday , 1 Tuesday , Wednesday , and Thursday , and 1 Wednesday , Thursday , and Friday.
Perkins was laid off and McGill was transferred to another job on June 22 . On the morning of
July 16, Hogan told Bernard to go home when he had finished his last order and that he would
be informed when he was wanted. Thereafter there was some talk about the possibility of a
couple of hours work a day being available . The following day, in response to a telephone call,
he went back to the plant where Duke announced Respondent had no work for him , that it had
orders for acetate fronts but the cams were not fixed, that it probably would be about 6 weeks
before they were ready and he would let Bernard know when they were. After that he received
no word from the Company , although Perkins who had less seniority was rehired on August
20 and put to work on temple repair. Duke testified he knew Bernard was an officer of the
Union but did not know anything about Perkins . Bernard and McGill had received an equally
divided meritorious award totaling approximately $ 5,200 for a suggestion for the slitting or
cutting of slips enabling the maintenance of a closer tolerance and the saving of material. On
July 6, 1951 , Doris Brown, another union officer , while passing by Bernard's place of work on
the way back from the restroom , spoke briefly to him. Later that day Duke sent her to Heath's
office . The latter, referring to a warning slip previously issued to Brown on March 28 for
spending too much time away from her work bench, informed her she had talked to Bernard
that morning , and forthwith discharged her. By his own admission . Bernard had msipiently
indulged with McGill in "hooting " Sether and "giving him a wolf call." When told to desist
they both agreed to, apparently kept their promise and thereafter refrained from this playful
practice which must be recognized as a prime means of making enemies and alienating people--
including bosses . About a month before the election , Sether had told Bernard and McGill to
BAUSCH & LOMB OPTICAL COMPANY 811
stop bothering the sweeper with whom they joined in such turnabout manifestations of mirth
(more adolescent than one would perhaps normally expect of men of their years but nonethe-
less an understandable reaction to the monotomy of their tasks) as greasing shovel and broom
handles. As testified to by MaGuire, from all accounts the quantity and quality of Bernard's
work was good. Hogan's testimony that maybe at times the fronts produced by Bernard would
be too large or too small, does little to detract from this appraisal of his ability. Both Duke
and Hogan testified to the effect that they did not want Bernard back because, inter alia, he
had engaged in horseplay. Respondent offered the further testimony, of employee Kilmer--_
who it will be recalled was active in the circulation of the antiunion petition--that although she
worked nearer the time clocks than Bernard and McGill, because of shifting around, pushing,
and shoving a little bit here and there they would be out of the plant and in the parking lot
before she could even get to the time clock. Respondent's stand at the hearing with respect to
the allegation that Bernard was discharged and that it failed and refused to reinstate him be-
cause of his union interests and activities is, that it should be dismissed because it affirma-
tively appears that he was laid off properly for lack of work and that he was not rehired for
good and sufficient cause.
Bernard had worked both as setup man and a profiler. Out of approximately 55 male
employees, exclusive of the complainants who were working on June 1, 1951, about 30
are still employed at the plant. Since Bernard 's separation, at least 12 males have been
hired or reinstated. Although it does not appear what type of work most of these latter
employees have been performing, it is an altogether reasonable assumption that at least
some of them have been performing work in which Bernard is skilled. It is even more
certain that most of these same 42 men are junior to Bernard, who was hired practically
at the inception of the opening of the Wellsville plant . Respondent's primary policy was to
recognize seniority to the greatest degree consistent with efficient operation and to make
every effort to place employees, whose work had run out, on other jobs. 26 That there was
lack of work for profilers in June and July cannot be gainsaid. But bearing in mind Bernard's
skill acquired as a setup man, itself a job involving far more all round mechanical aptitude
and operative versatility than the work of turning out a single item such as the repetitive
job of profiling, there arises the question as to why he was selected for layoff rather than
other men among the 55 or so who were retained, most of whom were his juniors. Also to
be considered is the question as to why he was not reinstated rather than some or all of
the men who were hired or reinstated after his separation. Respondent's evidence is that
Bernard was undesirable because of his personal conduct. Yet its assertion at the hearing
was that he was laid off properly for lack of work. Its brief emphasizes horseplay as a
controlling factor in the failure to reinstate. Certainly, he was told at the time of his sepa-
ration that lack of work was the cause. There is no evidence in the record that he was
informed at that time that "horseplay," or shifting around, pushing, and shoving, for that
matter, were considerations entering into his selection for layoff. This, despite Respond-
ent's policy that "the department head is to notify each employee as to the reason for the
reduction in force, the effective date of the reduction and the reason he was selected."
An employer's explanations for treatment that are inconsistent with positions which he
later adopts, of course, do not of themselves spell out discriminatory motivation. But when
there appear to exist circumstances from which it may reasonably be concluded that a
discharge was made on the real ground of union membership and activity, the absence
of a satisfactory explanation, or the interposition of a different reason therefore, renders
weighty the contention that the actual reason for the discharge was discriminatory in charac-
ter. The circumstances in this aspect of the case that MaGuire by virtue of his calling upon
Bernard because of "activities around the place and the commotion that was around re-
garding this union activity" and asking him "if he didn't think that something could be done
about it to put the people at ease"' point clearly to the fact that Bernard was regarded as
one of those who was primarily responsible for the union agitation, which as has been found
and will continue to be shown, was distastefulto Respondent. The discharge of Brown, another
senior employee, who as it will later develop had been told by Moore she had been reported
26 On the testimony of Bernard and Duke, I am satisfied that Bernard was not offered
another job when he was taken off profiling on July 16, despite Hogan's apparent effort
to make it appear that when it was suggested he might do repair work, Bernard said he
would rather do his farming. In fact, as I understand Respondent's position, at the hearing,
it does not appear that such latter claim was then asserted.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a leader in the Union and that she was a marked woman, immediately after her talking
with Bernard significantly discloses a correlation between the treatment accorded both
Bernard and Brown and their union activities . Nor can there be brushed aside lightly the
disparity of dealing with Bernard on the one hand, and on the other hand, not only with
Kenneth Perkins whom Respondent argues has been affirmatively shown to have opposed
the Union but also with the bulk of other male employees who were either not in favor of
the Union , or not known to have supported it, or considered by Respondent to have been
opposed to it or who were not hired until after the cessation of organizing activities. That
Sether himself attached no especial importance to Bernard 's addiction to capers is re-
vealed by his testimony to the effect that he did not consider this aberation of sufficient
moment to warrant drastic action and nothing came ofit. Here we are faced with what
amounts to the discharging , under the color of a layoff, hard upon his conspicuous activity
as a leader in the Union 's unsuccessful attempt to gain recognition as the bargaining re-
presentative of Respondent 's employees , of a long-term employee whose good record of
workmanship has not successfully been impeached and whose ingenuity and interest in his
work had been recognized by a very substantial award of merit . It is in the light not only
of the relatively few features respecting Bernard's case concerning which the limitations
of time enable me to make specific reference , lest this report go on interminably, but
also of the multiplicity of circumstances disclosed by the entire record and adverted to
in numerous other connections , that I come to the conclusion that Respondent retahatorily
laid off and failed to reinstate Bernard because , of its disapproval of his leadership in,
and its hostility toward , the Union and in order to set an example before other employees
who might be tempted to resurrect the union movement , of the disastrous results attend-
ant upon union activity.
Mildred Bower was first employed by Respondent the week of January 20, 1947, and
worked thereafter as a milling machine operator , anoperation that has since been discontinued.
She thereafter performed all of the various jobs that are involved in the making of fronts.
She continued to work for the Company until August 1, 1951 , at a time when she was hinging
fronts , an operation in which she had been engaged for 22' years. In February or March 1951,
she applied for membership in the Union . She passed out union -application cards to Ruth
Anderson and others--was 1 out of 5 employees who attended the first union meeting and
was present at other meetings until April 8, at which time she was granted a leave of absence
until the end of the month . She became a trustee of the Union and was present at its last
meeting on the eve of the election . On May 15, she was called into Heath's office and told
that she should have known better than to have run a box of hinges through slots which
binded them too tightly . Although Bower drew Heath's attention to the fact that she had
drawn the setup man 's and Hogan 's attention to the fact that the slots in the fronts were not
correct but told to run the hinges , nevertheless Heath wrote out a paper, which he said was
a warning notice on account of poor work , but which he did not show to her. On July 20,
Duke told her that work was slack and although she was the employee longest with the
Company still there , he was going to let her go because she had received a warning, that
she would be recalled when work picked up but that she should not come back or call in
for work . At this time , Bower knew that work was slack in the plant, very slack as far as
she was concerned , and that only Marjorie Kelsey was left actually working on fronts,
although Charlotte Cornelius remained on her job of milling pads. She was never recalled.
It appears that Parker 's rather high opinion of Bower as a worker was not shared by all
of Respondent 's officials . There is no doubt that her presence at union meetings , attended
by Hogan as well as by Thompson and Rollin Perkins , setup man a grade above rank and
file employees in stature although not supervisors or agents in the technical sense, who
were antipathetic to the Union and in intimate contact with management through attendance
at production meetings and otherwise , was well known to Respondent.
It is Respondent 's position that Bower was laid off for lack of work , that no one has been
hired since for the job she was doing, and that she was never employed because she did
not seek reemployment , because her work performance was below average and because
she once had been the recipient of a warning notice for poor workmanship. Therefore it
moved for the dismissal of the allegation respecting Bower on the specific ground that
it affirmatively appears she was laid off properly for lack of work and that she was not
rehired for good, sufficient cause . It is at least a 'suspicious circumstance that the alleged
poor workmanship of Bower, an employee of top seniority , knowledge of whose union ac-
tivities I find Respondent possessed and which it does not deny , did not become intolerable
BAUSCH & LOMB OPTICAL COMPANY 813
during the years before the union membership and recognition campaign. Her conduct
during the characteristically skillful cross-examination of Respondent's counsel notwith-
standing Bower is a person of such presence and persistency as to command the respect
of and to exert influence over, her fellow employees. There well may have lurked in Re-
spondent's collective mind the idea that by ridding itself of such a.presence and influence
the likelihood of further union agitation might be diminished. But in my judgment the evi-
dence considered with all the manifold factors in the case and in the light of its overall
perspective, does not go quite far enough to warrant the conclusion that Respondent would
have conducted itself with respect to Bower otherwise then it did and when it did, had she
not been thought so unregenerate a union partisan and so effective an influence.
Doris Brown was first employed January 28, 1947, and remained with the Company until
she was discharged on July 6, 1951. She had done coring, lathing, milling, paddle forming,
and drilling work. Her last job was that of a paddle mill operator . She signed a union-mem-
bership application in February 1951. She did not sign the antiunion petition. She attended
4 meetings, became a trustee of the Union, and voted in the election. Respondent does not
specifically deny knowledge of Brown's union activities as it has in the case of 31 other
complainants and I find it was aware of the fact that she held office in the Union. This
finding is supported, among other ways, by the testimony'that Sether had been told Brown
was active in the Union and by MaGuire's testifying that Bentley told him she was an offi-
cer.
On March 21, 1951, there took place the conversation elsewhere expatiated upon, between
Sether, MaGuire, Heath, and Brown where the subjects of the whys and wherefores of Brown's
leadership in the Union, the cutting of rates and staying at her bench were bandied. After
this. Brown endeavored to stay put, leaving her station only on calls of necessity, pertly
posting purpose proclamations the while. On March 28, Brown had spoken to the nurse
in the plant hospital and on her way back to the bench engaged in a short conversation
with Clara Smith concerning a matter not related to their work. She was then called into
the office where in the presence of MaGuire and Heath, Sether showed her a warning slip
he had made out, for not staying in her own department and spending too much time away
from her work bench.27 About a week later, Brown complained to Moore who, be it re-
membered, was the personnel man--that she felt she was being picked on, that Sether,
MaGuire, and Heath had talked to her about the Union and about not staying at her bench
and that she did not understand why she was being watched--as confirmed by Lila Gorsuch
--while other girls could run around the plant and do as they pleased. Moore replied that
Brown had been reported a leader in the Union, that she was a marked woman and that
she must do just as she was told.
On the afternoon of July 6, Brown was sent into Heath 's office where, as related above,
Heath called her attention to the March 28 warning slip, told her she had talked to Bernard
that morning and discharged her. Brown appealed this action to Moore, who reminded her
that he had told her that she was a marked woman and should be very careful about what
she did. Before March 28, 1951, no rigid restriction had been placed upon Brown and other
employees with regard to where they wanted to go in the plant. It appears that thereafter
such employees as Mary Cook, Anna Coyle, Louise Farwell, Marjorie Tucker, Evelyn
Easton, Marjorie Ball, Edith Hogan, and Bernice Yannie continued to circulate and talk
at points away from their posts of duty. Sether and MaGuire admitted that still others may
have engaged in this practice. They could not recall that warning notices went to any of
them. In October or November , after Heath- -who as appears from Brown 's leaving slip
she felt had a personal grudge against her--had left the Company, Brown asked Sether
for work. The latter parried the request, said he would talk it over and let her know. He
did not communicate with her and later she telephoned him. Sether said he did not have
anything for her but indicated that Brown might come to the plant for a talk.28 Respondent's
timekeeper considered Brown a very good worker and observed that she often remained
at work during the regular rest periods . Sether told her that he liked the work she did.
271 find contrary to Sether's conclusory testimony that Brown did not enter with him into
a written agreement, which she did not live up to.
28 Frequent reference was made to "The Doris Brown unemployment insurance hearing"
of September 25, 1951, the official transcript of which proceeding, Respondent's counsel
showed a witness during this hearing. No finding or inference is made from the fact that
such a hearing was held.
337593 0 - 55 - 53
8 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marie Holiday, who as I have taken pains to emphasize , was a very reliable witness, and
who worked next to Brown at times, testified that Brown did not talk to fellow employees
or leave her bench any more than any other employees . On the other hand, Vina Smith
and Phyllis Thompson swore that she did 29 I credit Holiday's testimony substantiated by
that of Violet Peterson and others , not only because of its intrinsic worth but also because
of the at least partial corroboration it receives from Sether ' s own testimony as to Brown's
behavior for a period of time after March 21 30
In considering whether the reason advanced by Respondent for having discharged Brown
was the real reason or only a pretext adopted in an attempt to conceal its antiunion moti-
vation, we are not called upon, as we are in 41 other instances of alleged unlawful conduct,
to weigh the effect of the state of business upon her release from employment . Here the
single contention is as set forth in Respondent ' s motion, that the case as to Brown should
be dismissed "on the specific ground that it affirmatively appears that (she was ) discharged
for good and proper cause " Brown's case thus differs for example from that of Bower
just discussed She like Bower , however , was a senior employee . There is no suggestion
that until the time the union campaign was vigorously being waged , or before the time
she had refused to sign the antiunion petition and had indeed become an officer , the fact
of her leaving her machine and talking to fellow employees had been subjected to criticism
When the union agitation assumed disturbing proportions she and one other 31 of the approxi-
mately 188 employees seem to have been singled out to be commanded to cleave closely
to their jobs So far as has been shown by substantial evidence , during the next 32' months,
Brown left her bench to talk to fellow employees on but two occasions whereas at least
a half dozen of her associates who were not laid off or discharged continued to visit without
apparent let or hindrance . In fact so assiduous was Brown at her work that she even re-
frained from taking regular rest periods during this period Had her work not been so
pleasing to Sether and if she had not been such a very good worker as the timekeeper tells
us she was , it would be somewhat easier to believe Respondent 's explanation for her dis-
charge . When it appears that she was told to refrain from leaving her work and talking
during the course of a conversation where her leadership in the Union was-discussed,
and advised by management that she had been reported a leader in the Union and a marked
woman , it becomes not only less easy, but in my opinion a disrega r d of probabilities to
accept that explanation . Considering all of these factors together with Respondent's hos-
tility toward the Union, its awareness of Brown's union activities , the summary character
of her discharge immediately after being accused of talking with the vice president of
the Union, and the fact that talking with employees other than officers of the Union when
engaged in by her consorts was not generally considered either an offense calling for cor-
rection or an infraction of any published rule or policy , I cannot escape arriving at the
conclusion that Respondent seized upon a relatively trivial act on the part of Brown as a
pretext for ridding itself of an active union adherent
Grace Caldwell did not enter Respondent ' s employ until February 12, 1951, worked as
a frame inspector , having the least seniority in the group , and was laid off May 25, having
been told that all departments were being cut for financial reasons. She signed the anti-
union petition in April , did not join the Union , told Sether she was against the Union, was
asked by MaGuire if she wanted to vote at the election and did so 6 days after her layoff.
She was recalled to work August 13, 1951, and given a job as profile inspector In January
1952 she took sick leave and has not worked for Respondent since Whatever inferences
may be susceptible of being drawn elsewhere from the disparity of treatment accorded
union opponents on the one hand, and union protagonists on the other , certainly within the
strict confines of the allegations concerning Caldwell , the General Counsel takes nothing
James V Cline was first employed in October 1950, was out for awhile in April 1951,
and resumed working until he was laid off on July 29, 1951 His job consisted of repairing
temples He signed the antiunion petition , did not join the Union, attended no meetings,
29 Smith and Thompson were , exclusive of setup men, 2 of only 3 of about 100 employees,
currently working for Respondent , who had worked with Brown and hence acquainted with
her work, who were called as witnesses by Respondent.
3o Although Sether somewhat grudgingly testified " I will have to say that for a period of
time she stayed at her bench pretty well ." MaGuire testified that "within a couple of days
she was just going around doing the same thing as she had done before."
311. e., Betty Whelpley , of whom more later.
BAUSCH & LOMB OPTICAL COMPANY 815
and voted in the election Duke told Cline his layoff was due to lack of work- -a fact of
which he was aware--that he might be hired back and that if anything came up he would
let him know. Although the General Counsel laid ground work here for an argument based
upon disparity of treatment respecting certain other employees involved, he made no head-
way toward showing that Cline was discriminated against Nothing having been proven, it
is as unnecessary for me to struggle with the question of whether or not Respondent was
justified in its treatment of this young man because of his admitted rollicksomeness as
it was needless for Respondent to have interposed such essay of exoneration.
Anna Coyle, another short-term employee who worked from November 28, 1950, to June
15, 1951, when she was laid off, joined the Union in late April or early May. Heath told
her there was lack of work and Sether told her, when she questioned the fact that she was
being let go and Betty Roeske and Joan Van Buskirk" who had been hired after she came
into the plant were being retained, that the layoff was temporary In October, having learned
that Respondent was hiring help, she applied to Sether for a position. He stated her appli-
cation form was very good but that she had had a little trouble with supervisors and that
he did not think he could take her back Thereafter she was neither called to work by the
Company nor did she reapply It is quite apparent that Coyle was not an entirely satis-
factory employee and that she was given to argumentation and emotional upsets when super-
visors talked to her about her work. Her participation in the affairs of the Union was nomi-
nal and doubt exists as to whether Respondent suspected or believed, let alone knew, of
her union affiliation Plausible reason for declining to reinstate Coyle has been advanced
Good reason for her having been laid off in June has been shown. In my opinion, the General
Counsel has fallen short of establishing discriminatory treatment here.
Nedith Daniels had worked only from February 1951 to May 25, 1951, when she was
laid off along with Crystal Miller and Joan Watson. Five days earlier , she had been told
by Moore that there was no work and advised to get another job if she could. She had ap-
plied for membership in the Union, apparently with some hesitation, and attended 1 meeting.
She did not sign the antiunion petition . On November 26, 1951, she was recalled and has
since remained in Respondent's employ. The General Counsel has not convinced me that
Respondent's assertion that its decision to reinstate this mother of 2 blind children in
preference to other employees possessing greater seniority, upon grounds of good employee
and public relations was not true. Nor has he shown that her layoff was discriminatorily
motivated.
Martha Driscoll was hired March 11, 1947, and worked hinging fronts and pad-profiling
until she was laid off on or about August 7, 1951 Betty Graves, the only other person doing
pad-profiling, had been laid off earlier. Moore told her she would be called back when
work picked up In February she signed a union application form. She attended no union
meetings Since August 7 no one has been hired for the job she was doing before that date
although, as will appear , other people performed the work on a part-time basis. In October
Driscoll went back to the plant and asked Sether why she had not been recalled. Sether re-
plied that it was because she had not cooperated while she was in the plant. Driscoll re-
joined that she thought after working there for 4 years, management should have found out
before that she lacked in cooperation. 33
Duke testified that Driscoll was not given the reemployment she sought because he had
found her unhappy with the work she was doing, she seemed difficult to get along with,
seemed to have difficulty in respect to the number of pieces produced in the required quan-
tity, did not have any versatility as far as he could see and because in comparison to Char-
lotte Cornelius (wife of a former setup man who left Respondent's employ March 8, 1951),
who did pad-profiling on a part-time basis after August 7, 1951, Cornelius made more money,
seemed to be able to get the job done better with less trouble on setup and less trouble
with her setup man , and got a better product and more of it out of the machine. Hogan
testified that the reason that Driscoll was not rehired was that she seemed to be dissatis-
fied with the rate, once or twice wanted a new time study and was not satisfied with such
32 Van Buskirk had worked for Respondent in 1948.
i3Sether's account of this conversation was that he and Driscoll discussed a proposed new
operation necessitating before its adoption a restudy of the job and an estimate of the amount
of time and the rate to be set for its performance. He then stated that he does not remember
actually offering Driscoll a job and that he felt that she did not feel that she wanted to
cooperate and make the job work.
8 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
study or studies when made, and because, although he felt and said more production than
Driscoll was turning out should be accomplished, "she just kind of shrugged her shoulders
and didn't try."
It was brought out during the course of Respondent's case that in addition to Cornelius,
Lena Hoyt Green performed the same type of work as Driscoll had done, after the latter's
layoff The record is not clear on the point, but the inference from the testimony that Green
can perform other operations is, that Green did other work as well. A further tenable
inference is, that between the two, Cornelius and Green did as much pad-profiling after
August 7. 1951, as Driscoll had done before and that the work was there for Mrs. Driscoll
to do if Respondent had not chosen to lay her off and had not refused to reinstate her. Indeed,
this fact does not appear to be controverted. There is evidence that Green's average ac-
complishments as a pad-profiler, as reflected by her earnings during a 4-week period
in September and October 1951 were half again greater than Driscoll's during a 6-week
period in June, July, and August. When broken down a bit, these comparative figures are
not strikingly impressive since they show that Green's maximum hourly earnings were
but 12 percent higher than Driscoll's maximum hourly earnings. In any event, Respondent
received its quid pro quo whether from Green's labor or from Driscoll's, even though
the former apparently made more productive use of its machinery. I am not entirely satis-
fied that the various and variable reasons advanced by Respondent for its treatment of
Mrs. Driscoll, the mother of 6 children, 12 years of age and older, a person whom I believe
to be faithful, honest, and sincere, whose attitude and work from aught that appears had
been entirely acceptable to Respondent throughout the years until the time of the attempted
unionization of the plant and for whom I am sure work she was qualified capably to perform
was, or could have been made available on and after August 7, were the real reasons for
its conduct in laying her off and in not only failing to call her back as promised by Moore
but in refusing to reinstate her when she did apply. However, this lack of conviction lies
on the negative side. In order to hold aid employer in violation of Section 8 (a) (3) of the
Act, something of a more positive nature than speculation, conjecture, and surmise must
appear
I cannot but feel that Respondent' s treatment of Mrs. Driscoll was exceedingly harsh.
Yet, I should allow myself to be incensed by the circumstances of what amounts to her
having been cast aside after years of faithful service Such is the restraint neutrality exacts
One's sentiments have no bearing on the issue at hand. An employer may discharge an
employee for a good or a bad reason or for no reason at all, through sheer whim or even
malevolent design without violating the Act so long as the reason, whim, or design actuat-
ing his conduct is not of a character proscribed by the Act. We are placed in, and entrusted
to the responsibility of, the positions we occupy to decide these cases with complete ob-
jectivity, in accordance with the facts and the law applied thereto. Driscoll's union activi-
ties were but of the slightest (as indeed one might expect of a woman having her heavy home
responsibilities) and it is far from clear--although this factor need not be controlling--
whatever they amounted to, that they were known to Respondent. As the General Counsel
has not dispelled the doubt as to proof of unlawful discrimination that rests in my mind, I
am constrained to recommend the dismissal of the allegation
Marguerite Faber was in Respondent's employ from the spring of 1947 to June 22,
1951 She filled a variety of positions, the last being that of pad-cementer. Before the
start of union activity in early 1951, she and others were told that it was planned to reduce
piece-work rates. At this time, the pad operators were allowed to turn in around $ 10 worth
of production a day After the campaign was under way, nothing further concerning rate
cuts was heard and Sether told the operators they could turn in as much work as they pro-
duced In February 1951 Faber signed a union-application card. She attended 2 meetings,
at the second of which Hogan and 3 setup men were among the 30 or so present. In June,
Duke warned her on account of unexecused absences She protested that she always tele-
phoned the plant when she was going to be absent and expressed surprise that she was
for the first time receiving such a warning after having been in the plant for nearly 5 years.
A few days before the election, Blanche Kilmer asked her to sign an antiunion petition. She
apparently declined to do so She was notified of her impending layoff by Duke who said
there was lack of work. Faber had worked longer as a pad-cementer thau Frances Rauber
and had worked longer at the plant than Marian Fisher The latter was laid off on June 29
and reinstated September 12, 1951 Rauber, temporary recording secretary of the Union,
was not laid off and is still working Louise Ingalls, who had still less seniority than Rauber
BAUSCH & LOMB OPTICAL COMPANY 817
was laid off the same day as was Faber and recalled November 26, 1951. On June 22, the
day of the effectiveness of her layoff, Moore told a group including Faber, Louise Ingalls,
Isabel Houghtling, and Marjorie Ball that the layoff was temporary, that those who had
been with the Company the longest would be the first called back when work picked up
and that he did not want anyone telephoning or calling at the office because,the Company
had the employees' telephone numbers and would call them when they were needed. After
she left Moore, Faber saw Duke privately, told him that his warning earlier in June was
cooked up as a preliminary to the layoff and in anger likened the plant to a "rat trap."
She was not called back to work Faber had been absent from work on 5 separate days in
April 1951 and her time records indicate Respondent had her listed as having had 25 unex-
cused absences before that, over a period of time dating back to March 8, 1949. Duke asserts
Respondent's reason for laying off Faber 34 and retaining Rauber, who had less seniority,
was Faber's absenteeism and its reason for reemploying Ingalls and not reinstating Faber
was that Ingalls was recalled (thus supporting the evidence of many witnesses who testified
that they were told when laid off that they would be recalled) because "she had been a
good pad-cementer before and it takes quite a long time to train a person on pad-cementing
and I felt she was doing good work." Faber gave Rauber her training It does not appear who
trained Ingalls. Respondent's position at the hearing was the complaint with respect to
Faber should be dismissed on the specific ground that it affirmatively appears that she
was laid off properly for lack of work and that she was not rehired for good, sufficient
cause. Certain it is, that in its conduct vis-a-vis Faber, Respondent did not comport with
the principal tenet of its reduction-in-force policy, that length of continuous service with
the Company will be recognized to the greatest degree. Accordingly, in justifying or ex-
plaining its departure from this policy in its treatment of Faber, Respondent must, as it
has, rely on the exception to the general policy and seek to demonstrate that there was
an ascertainable difference between Rauber, Ingalls, and perhaps Fisher, on one side of
the border, and Faber on the other side, in ability, demonstrated performance, attend-
ance, physical fitness or in a situation where specialized knowledge or training is necessary.
On the evidence before me, I am satisfied that Faber was the equal if not the superior of
Rauber whom she had trained as well as of Fisher, in ability, performance, physical fit-
ness, and special knowledge or training No evidence was offered with respect to the at-
tendance of Rauber, Ingalls, and Fisher, so it is quite impossible to make any finding of
"ascertainable difference" in this regard It may be said that an inference of good attend-
ance on the part of Rauber, Ingalls, and Fisher may be drawn from the failure of the General
Counsel to procure and introduce evidence that in this connection the record of these em-
ployees did not excell that of Faber The tatter's interest in the Union surpassed that of
many other employees and I believe that Respondent was aware of her membership, her
attendance at meetings, and her refusal to join in the antiunion petition. But Respondent
also knew that Union Secretary Rauber was even more closely identified with the Union
than she and did not assert at the hearing that it does not affirmatively appear that it had
knowledge of Fisher's union activities. The mere fact that an employer does not discrimi-
nate in regard to the hire or tenure of employment of all employees known to have joined,
sympathized with, and to have been active in behalf of, a union does not necessarily prove
that he may not have discriminated against others, including indeed, under some circum-
stances, employees whom he knew or believed were not union sympathizers But this fact
is of some importance in the face of a claimed application of a reduction-in-force policy
extending preference on the basis of "attendance," where as here, it has been shown that
a separated employees' attendance record even if not distinctly poor is far from perfect
and it has not been shown that other employees who were not separated, were equally or
more irregular in their presence at work. There is enough to this allegation, considered,
as it must be, in the setting of the entire case, to make out a prima facie instance of dis-
crimination In its effort by going forward with evidence tending to control or refute the
facts and inferences that could be reasonably found and drawn from the General Counsel's
case, the Respondent has, in my opinion, by a close margin been successful.
Marian Fisher was first employed by Respondent on June 13, 1950, and worked hinging
fronts, drilling, and on the kick press It does not appear that she joined the Union although
she attended 1 union meeting presided over by Bernard and Charles McGill at which she
recalls that Parker, Thompson, Edith Hogan, Arlene Heath, Ruth Hendrick, and Frances
34 Note a similar reason given in the instance of Babbitt
8 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rauber were among the approximately 20 people who were present . She voted at the election.
A week before June 29 Hogan gave her a week ' s notice of layoff and told her work was very
slack and that she would be considered to be called back if work should pick up. Audrey
Robinson , the other full-time kick press operator , was laid off at the same time . Fisher
had greater seniority than Robinson In September 1951 she went to the office and saw
Sether who told her there was work available and rehired her at Duke 's request . Fisher
remains in the Company ' s employ . She does not seem to have been discriminated against
as alleged
Audrey Gates was first employed about October 19 , 1950, and worked at plaquing , groov-
ing, and in the dipping room . In the opinion of her setup man, Albert Closser , she was not
so good a groover as the others performing that operation . She signed the petition in op-
position to the Union and voted in the election . She attended no union meetings . She was
laid off July 6, 1951 , a week after the layoff of Gertrude Irvin who had the greater seniority
Duke had informed her that the layoff was due to lack of work and that she would be called
back when business improved . She had observed that work on her job was slack . She was
notified to return to work on August 8, 1951 Sether testified she was called back because,
certainly , a supervisor asked for her . Gates remained in Respondent ' s employ until she
quit on October 6, the day Hogan wrote out a warning notice stating in substance that the
cause of the notice was excessive speed , failure to check work , and breaking cutters. She
had been observed by Brown as a person who ran around and talked during working time.
Before July 6 there had been no criticism of her work After August 8, Hogan constantly
complained about the way she was doing her work and the fact that she was breaking cutters.
Respondent ' s position with respect to Gates are that- ( 1) Since it affirmatively appears
that she was apparently opposed to the Union it could not have discriminated against her
for antiunion activities ; ( 2) the reason for her not being presently employed is that she
voluntarily quit her employment ; and, (3) it affirmatively appears that she was laid off
in proper order and after her layoff for lack of work she was rehired . The General Counsel's
theory is apparently that Gates was laid off as a part of a general scheme predicated on
an antiunion motivation regardless of the presence or absence of union predilection on the
part of particular individuals , or Respondent's knowledge or suspicion thereof. On all
the facts and circumstances here , I cannot subscribe to this contention . No matter what
may be the impact of the, fact of the indulgence displayed toward this relatively new and
comparatively unsatisfactory employee , who it may readily be inferred was at least not
favorable to the Union, in contradistinction to the lack of consideration shown toward other
older and more capable employees who were strong union supporters , it is my opinion that
insofar as Mrs Gates personally is concerned , the General Counsel has failed to make
out a case
Gertrude Gavitt , who did not testify , had been a timekeeper when she was laid off, on
or about April 6, 1951 , $ more than 6 months before the filing and service of the charge.
The General Counsel claims that she was discriminatorily denied reinstatement after
April 25 , 1951 , About a month before April 12, 1951 , MaGuire engaged in a conversation
with Violet Peterson who at the time was payroll clerk and who supervised timekeeping.
After asking Peterson I if she had heard rumors about the Union and what she thought of
the Union , MaGuire inquired whether she had talked to Gavitt and Onalee Pakis, the other
timekeeper , about the Union and whether she was sure that neither Gavitt nor Pakis cared
for it MaGuire then showed Peterson a list of people which he stated were in favor of
the Union and pointed out Gavitt ' s name on the list . 38 About the same time Heath told Peterson
that Gavitt was spreading union propoganda . The reason for the layoff was that Respondent
effected a change in the timekeeping system whereby instead of requiring operators to
bring their workcards to the timekeeping bench where the timekeepers would record the
time and return the cards to the operators , the operators recorded their own time and the
setup men checked off the work to see that it was done. Pakis was offered employment
$Sether testified however that the date was April 28 , 1951, which would be within the
6- month period.
%MaGuire 's account of the last part of this conversation was that he told Peterson,
Gavitt would not be included in the bargaining unit ; that she might have misunderstood
"unit" for "union," and that the paper he had in his hand was a notation of the compo-
sition of the unit and contained no names . I believe Peterson 's account is the more reliable
of the two.
BAUSCH & LOMB OPTICAL COMPANY 819
several months after her layoff Gavitt did not return seeking work . Although there is
good reason to assume , as Peterson testified , that MaGuire was disturbed that the idea of
Gavitt favoring the Union even greater reason for finding that Heath knew she was one
of its vocal protagonists , I do not feel that the General Counsel presented more than a
scintilla of evidence that she was discriminated against by having laid off n (assuming
the date was April 28 and hence 3 days within the statutory period of limitations) or by
not having been sought out for reemployment . It does not appear here as it does in so many
other cases that employees were told at the time of their layoffs that they would or might
be recalled . That Respondent had cause for changing its timekeeping system and Gavitt's
resultant layoff and that the change was not motivated by antiunion considerations, finds
ample support in the record.
Lila Gorsuch first went to work for the Company in May 1950 . Her main job was that
of slotting . She joined the Union in February 1951 and attended 2 union meetings at one
of which Thompson , Parker, Perkins , and Johnson were present . She voted in the election.
Moore stated production was down when he notified her of her layoff which occurred on
June 29, 1951 . Thereafter Gorsuch neither sought nor was she offered work . Before her
layoff she had indicated she was dissatisfied with her wages. Duke testified he would not
have reemployed her had she applied, for this reason, because he did not want a dissatis-
fied employee and because he later heard shewas pregnant . A baby was born to Mrs . Gorsuch
in July 1952 . A company rule provides that women who become pregnant may not work after
the first 4 months of pregnancy or within a year after the date of birth of their child. Re-
spondent 's records disclosed 19 unexcused absences of from 4 to 8 hours each on the part
of Gorsuch from June 30, 1950, to February 26, 1951. During the last 4 months of her em-
ployment it appears that she was absent from work from 4 to 8 hours on 10 different days.
Since Gorsuch's layoff, no one has been hired to perform the slotting operation on a full-
time basis although there are 3 or 4 employees who have been doing it part time. Respondent
takes the position that Gorsuch was laid off properly for lack of work and that since the
time of her layoff she has not been available for rehiring . This latter position is not en-
tirely consistent with Duke 's testimony that he would not rehire her even had she asked
for a job. Moreover it is clear under Respondent ' s own rule that this lady's pregnancy
would not have made her unavailable for rehiring until February 1952, about 7 months
after her layoff. Mrs. Gorsuch firmly believes because of rumors that everyone who was
favorable to the Union would be fired and her setup man ' s warnings that it would be unwise
for her to be seen in the presence of the union's temporary president and vice president,
that her union membership and her attendance at its meetings were the causes of her layoff
Such beliefs , however , are not evidence of a character sufficient to constitute a basis for
a conclusion of law In her instance , I am of the opinion that the layoff, along with similar
layoffs of several other operators , was occasioned by business conditions . I am satisfied
that Respondent's failure to recall her sometime before February 1952 was not due to
her unavailability but I do not feel the preponderance of the evidence warrants a conclusion
that such failure was due to Respondent ' s hostility toward , or opposition to, the Union
or its resentment over her participation in its affairs
Catherine Gostley first went to work for Respondent in March 1948 continuing until Sep-
tember 1949 She returned to the Company's employ in May 1950 and worked there until
she was laid off on June 29, 1951. She performed several different types of operations but
during the year before June 1951, she had concentrated on grooving Gostley was considered
a good worker but had been criticized for talking too much with Union President McGill
during working hours In February 1951 Gostley applied for membership in the Union
She was elected to the temporary office of conductor of the Union and attended several
meetings, the last of which took place in May when Hogan, Parker, Rollin Perkins, and
Floyd Thompson were present 38 She voted in the election Sether and Hogan testified they
knew Gostley was interested in the Union Duke and Moore told her and a number of other
v+ This matter was not pleaded and not directly litigated.
38 It will be noticed that from time to time I have emphasized the fact that various em-
ployees were present at a meeting attended by these men I do this because , as I expect
later to find, knowledge of the attendance of the employees named came to management
through the intermediary of some or all of these individuals. It is of course of no moment
whether such knowledge was gained through supervisors , or setup men, or rank -and- file
employees, or any other source.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operators they were being laid off because work was slack . Of the three groovers , Isabel
Houghtling having seniority over Gostley was laid off first , Gostley second and Amidon,
having the greatest seniority last. She was recalled to work by Duke, friendly with her
husband, on November 13, 1951 , and still remains in Respondent ' s employ as a full-time
grooving operator . On these facts, although her recall may have been an act of amity or
repentance , it does not appear to me that it has been sufficiently established that Gostley
was discriminated against as alleged Nor am I able to subscribe to the theory that her
reinstatement was a crafty defensive manoeuvre conceived to conceal a fell purpose of
Respondent in dismissing other known devotees of Unionism.
Elynore A Graves was employed about February 1, 1951 , on machine piece work when
her earnings without overtime would have been $34 to $ 36 a week. On April 30, on the
advice of Sether, Graves accepted a job, which he told her offered more security, in the
stockroom at $24 a week without overtime She was granted a leave of absence on account
of sickness on June 13. She drew sick benefits for 26 weeks In October 1951 Sether told
her that he had an inspection job available and suggested she procure her physician ' s opinion
as to her ability to handle it. Graves told him she could not take the work because it would
make her nervous On January 4 or 5, 1952, and on occasions thereafter , she applied for
work and was refused reinstatement . Sether had talked with a physician who suggested he
did not think Respondent had the type of work which was suited to Graves ' physical con-
dition The General Counsel contends that this refusal to reinstate was in violation of Sec-
tion 8 (a) (3) of the Act . Respondent moved to dismiss this aspect of the case on the ground
that the alleged violation occurred after October 25, 1951, the date upon which the charge
was filed . The motion is without merit. The Board has jurisdiction to consider violations
subsequent to the filing of the charge but prior to the issuance of a complaint . N. L. R B.
v. Morris Harris et al , d /b/a Union Mfg. Co ., 200 F 2d 656, 658 (C. A. 5) enforcing 95
NLRB 792 Graves refused to sign the antiunion petition which Evelyn Easton asked Leona
Fausey to have her sign She did not join the Union . She attended a union meeting the night
before the election Thompson, who was standing in front of union hall where the meeting
was to have been held , saw her Hogan was among those present at a meeting which she
attended earlier at Moose hall . Graves was also present at a general meeting held in Odd
Fellows hall early in March , where MaGuire presided after having been introduced by
Sether as personnel manager from Rochester In a talk to employees who had gathered
there , MaGuire stated that their guess as to whether or not Respondent planned to expand
its plant in Wellsville was as good as his. A couple of months after her unsuccessful at-
tempts to procure work at Respondent ' s plant in January 1952, Graves was offered a po-
sition by Worthington Pump Co., which she declined to accept , although she needed work,
because in her opinion it might have made her nervous and because she was not qualified.
She had been under the care of a physician who had advised her against accepting work
that would cause nervous tension
Dr Elmore G. Harness , a physician called as a witness by Respondent , apparently had
not examined Mrs. Graves since 1948 or possibly 1949 but on the foundation of some gen-
eral knowledge of the nature of a stomach operation she had undergone and a circulatory
affliction of her legs and her nervous condition , testified he had advised Sether it would
be unwise to put Graves back on the employment roll It should not be necessary for me
to encumber this unavoidably lengthy report by a recitation of all the reasoning that leads
me to conclude that there is sound basis for granting Respondent ' s motion to dismiss on
the merits , the allegations respecting Mrs. Graves
Hilda Hall went to work for the Company on December 20, 1950, worked principally
hinging temples during the night shift for 3 or 4 months until that shift was disbanded and
thereafter worked days also at hinging , and occasionally on inspection , which she had diffi-
culty in learning and on drilling until July 27 or 30, 1951, when she was laid off. A week
or so after she started working days ( I find about April 15, 1951, and in any event prior
to April 25, 1951 ), Hall asked Sether what Respondent ' s viewpoint respecting the Union was
and how the Union would affect the employees Sether replied that the rumor that the plant
would be moved if the Union got in was not true, but that the Company did not have to go
on with the expansion it was contemplating which would provide jobs for more people and
unless it did expand, the Company would not have enough jobs and would not be able to
keep on all the employees on the day shift About 2 months after she went to work on the
day shift , Hall signed the antiunion presented to her by Blanche Kilmer . According to Hutch-
inson , she attended a union meeting where Hogan and some setup men were present She
BAUSCH & LOMB OPTICAL COMPANY 821
did not vote at the election. At the time of the layoff, Buckley told her and Delilah Hutch-
inson that they were being let go because there was no work. Babbitt who had greater sen-
iority than either Hall or Hutchinson had been laid off before July 27. Hall did not return
seeking work nor was she communicated with by the Company. It does not appear that
Hall became a member of the Union. The fact that she signed the'antiunion petition more
outweighs the fact of her presence at a union meeting, insofar as either may furnish a
clue indicative of Respondent's motivation. There is force to Respondent's contention that
the allegation in respect to Hall should be dismissed because it affirmatively appears
that she was apparently opposed to the Union and that accordingly it could not have dis-
criminated against her for her prounion activities.
Marie Holiday went to work for Respondent plaquing temples on December 5, 1950. Sub-
sequently she performed various other operations such as side milling and molding to which
she was moved by Thompson and an experimental job of blanking temples until she was
laid off July 16, 1951. She voted in the June 1 election She had signed a union card in April
and attended one union meeting She did not sign, but passed on, the antiunion petition. In
February 1951 Moore asked her if she had heard anything of a union and she said no. A
week before being laid off, Duke advised her that there was no work, a fact of which she
was aware, and that she was going to be laid off. Holiday moved from the vicinity of Wells-
ville to Rochester, New York, in May 1952. Although there is more substance to the General
Counsel's case here than in such instances as Ball 's, Caldwell's, Cline's, Fisher's, Hall's,
and probably Coyle's and others still to be discussed, I am not satisfied by General Counsel's
proof or on the record as a whole that Respondent unlawfully discriminated against Miss
Holiday.
Lucy Hollister was first employed by the Company October 2, 1950. She worked first
on the night shift, then on the day shift, paddling, drilling, plaquing, hinging, heading, and
curling until she was laid off, on June 22 or 25, 1951, from the side-milling job, as she
asserted in her "Statement of Employer Leaving," 39 on account of slack work. Two em-
ployees having greater seniority were not laid off from side milling. Later, one of these,
Arlene Heath quit, and the other, Louise Farwell. was discharged. Hollister applied for
membership in the Union about January 1951 and attended the first meeting held for the
night shift Shortly before the election she declined to sign the antiunion petition submitted
to her by Blanche Kilmer to whom she stated she was neutral At the time she was notified
she was to be laid off, Moore told her and two other girls who were also being laid off
that he did not want them to haunt the office and that they would be called back when they
were wanted Hollister did not seek reemployment On a Saturday, when working was op-
tional, Hollister reported for work and finding that the material was wet, decided not to
work on it but asked for, and received, permission to leave. Respondent's expressed reasons
39 The evidence discloses that at least 23 of the complainants were requested by Respond-
ent to fill out and sign these statement forms at the time they were laid off, or discharged.
Most of the employees who signed them, wrote the word "yes" in the blank space following
the words "Were you laid off on account of slack work" and admitted at the hearing that
they observed that work was slack at the time. Others testified to the effect that they wrote
"yes' because they were told work was slack at the time. Others testified to the effect that
they believed the Company wanted them to do so and did not wish to antagonize its officials
from whom they hoped to receive or were led to believe they would receive, reemployment.
Still others, in addition to writing "yes," added various qualifying remarks, in the spaces
following the printed phrases, "If dissatisfied with work or working conditions, in what
way were they unsatisfactory" or "If none of these reasons apply to your case, please state
in your own way your reason for leaving." Thus, Hollister wrote, in addition "The rate was
put too low" and Myrtle M. Olson wrote," I understand this is a temporary layoff do [sic] to
slack work and if I am called back, will likewise return." Gertrude M. Irvin stated she was
dissatisfied with wages and Doris Brown, who wrote "No" following the printed phrase
"Were you laid off on account of slack work" and added that her reason for leaving was
"personal grudge by Jerry Heath." Others indicated such reasons for leaving as a claim of
poor work, pregnancy, acceptance of another position and lack of help for child care. No
evidence to show the purpose of Respondent's use of the "Statement" was offered and I make
no finding with respect thereto. It well may be, that when used by an employer so disposed,
it could become a device whereby proof of discrimination might be made difficult. Obviously
an employee about to lose his livelihood is more likely to agree to a statement of reason
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for not having reemployed Hollister are that she did not return asking for work , was dis-
satisfied with her wages , resented being shifted from one job to another , and lacked ver-
satility . Here again , I am of the opinion that the General Counsel has no more than spread
some sort of suspicion of the Act's violation.
Isabel Houghtling was employed and worked on various assignments from April 1947
to June 22, 1951, with the exception of a period from November 30, 1950, to March 9, 1951,
until she was laid off from her job grooving fronts on which she was considered to be a good
worker Catherine Gostley, the last remaining full - time front grooving operator , was laid
off a week or so later . In April 1951 Houghtling applied for membership in the Union and
in company with Ruth Amidon went to a union meeting held at union hall some time before
April 25. Heath and Duke were walking along the street opposite the building in which the
meeting was held at the time Houghtling alighted from an automobile . 40 She later attended
another union meeting at the Moose Club shortly before the election . At these meetings,
Hogan and several setup men were among those present A week or two before the election
she declined to sign the antiunion petition presented to her by Al McAhon in the presence
of Buckley , who be it remembered , Respondent conceded to have been a supervisor within
the meaning of the Act since July 11, 1951 , and whose status before then , since I do not
perceive that he engaged in any unlawful conduct up to that time I have found unnecessary
of ascertainment . I am satisfied , however , that knowledge of Houghtling ' s declination was
imparted to management .41 Duke told her she was being laid off for lack of work and Heath
told her she would be called back when work picked up. In October or November 1951,
Houghtling went to the plant with Ruth Amidon , seeking work . In response to her inquiry
as to why she had not been called back when others had, Sether stated the reason was that
she had had so many unexplained absences . Sether also told Amidon at this time that she
had not been called back because he could never satisfy or please her . Between October
15, 1947, and November 26, 1948 , Houghtling was absent 16 times without excuse and 9
days with excuse . Between December 1 , 1948 , and September 6, 1949, she was absent on
16 days without excuse and on 8 days with excuse Between September 12, 1949, and July
5, 1950 , she was absent on 18 days without excuse and on approximately 17 days with ex-
cuse. From July 11, 1950. to June 11, 1951, Houghtling was absent from work without ex-
cuse on 14 days and stayed out with permission on 25 days in addition to the period of
a little over 3 months, above referred to. On at least one occasion about a year before
Houghtling was laid off, Sether had talked with Closser , the setup man, about Houghtling's
frequent absences and had suggested to.Closser that he give her a regular written warning
notice. The latter was not done but Closser did remonstrate with Houghtling and ask her
to attempt to be more regular in her attendance it was known that there had been some
sickness in Houghtling's household and apparently Respondent tolerated her relatively
high degree of absenteeism because of this fact There is further evidence that Sether
talked to Parker about Houghtling ' s frequent absences and that Parker in turn did request
Houghtling to be more regular in her work . MaGuire questioned Sether and Duke ' s determi-
nation to lay off Mrs . Houghtling because of the fact of her long seniority When he learned
about this employee's record of absenteeism he agreed that in accordance with company
policy she could with propriety be laid off before other employees who had worked for
shorter periods of time were laid off.
Relatively speaking, it appears that Houghthng ' s interest in the Union was somewhat
more pronounced than that of a substantial number of employees who were laid off or dis-
charged during the late spring , summer or early autumn of 1951. Certain it is that Re-
spondent ' s officials were aware of the fact that she had applied for membership in the
Union, that she had attended at least one union meeting and that she had refused to sign
the antiunion petition Testimony proffered by the Respondent was to the effect that Hought-
ling , during the period of her employment , had been absent without excuse on 65 occasions
assigned by his employer and be assured of unemployment compensation , than to insist upon
giving another reason, no matter how true he may believe it to be, which he feels might
preclude the payment of benefits . For a discussion of a quite similar situation see Bell
Bakeries, Inc., 97 NLRB 1423, 1435, and footnote 12.
401 shall later revert to the general subject of Respondent 's notice of its employees'
union activities in its broader aspects
411 intend to deal later with the general subject of knowledge in this respect, so far as it
applies to all of the employees who signed or did not sign the petition.
BAUSCH & LOMB OPTICAL COMPANY 823
and that her excused absences amounted to 140. The records do not entirely substantiate
this claim of absenteeism but it is clear that she was a frequent offender in this respect.
It is somewhat difficult to reconcile Sether ' s reason for not reinstating Houghtling , to wit:
that her excessive absenteeism made her undesirable , in the light of the fact that through-
out the years, apart from two more or less abortive protests on his part to setup men, no
strenuous objection to her failure to report for work more regularly had been raised. On
the other hand , it is of course apparent that once having gone through the undoubtedly dis-
tasteful experience of letting a senior employee go, it was much easier not to rehire her
than to have laid her off in the first place . In my opinion it would be merely conjectural
to conclude that Houghtling was laid off on June 22, 1051, about the time so many employees
were laid off when business conditions as shown above warranted a reduction in force,
because of her union activities Whether the Respondent ' s refusal to reinstate her was
motivated by its objections to the Union or her participation in it. activities , presents
a somewhat more difficult question . Although there can be reasonable doubts about this
aspect of the case , I am not persuaded that the General Counsel has sustained the burden
of proof.
Kenneth Howard , who has resided in Buffalo, New York, since August 1951. was first
employed by the Company in November 1950. His first job was profiling on fronts. Later
he became a frame and temple polisher and by the time of his layoff, on July 20, 1951,
he was working on a job of cutting and polishing temples. He worked under the general
direction of Duke and was told what to do by Marshall Buckley. In February 1951, he signed
a union-membership application that was handed to him by Arnold Bentley, another polisher.
Shortly before the election , which was held on June 1, 1951, Blanche Kilmer submitted
to him the antiunion petition which he did not sign He voted at the election and about a
week before July 20, 1951, Duke and Buckley told him that work was getting slack and
that he would have to be laid off . It appears that Howard was one among other young men
employed by Respondent who from time to time engaged in such pranks as throwing ham-
mers for the purpose of startling fellow employees and tossing about such objects as wadded
up gloves , paper , and soap There is no substantial evidence that any individuals whom I
have found to occupy supervisory positions undertook to reprimand employees for thus
giving vent to their animal spirits although they were cautioned by Abbott on occasion.
Buckley, concerning whose status as a supervisor after June 11, 1951, there is no doubt,
testified that Howard was laid off because of the fact that the job of temple repair polisher
in which he and James Cline were engaged was abolished , that Howard did not apply for
reemployment and that he would not have taken him back if he had so applied because of
his constantly and repeatedly engaging in such "horseplay " as throwing soap and hammers,
tipping over chairs and things of like character and also because during the relatively short
period of his employment , Howard had been absent without excuse on 20 days in addition
to having been absent on 3 other days with excuse I believe there is merit in Respondent's
position that Howard was laid off properly for lack of work. Although I do not agree with
Respondent's contention that the portion of the allegation respecting its failure to rehire
Howard should be dismissed on the grounds that he has not been available for rehiring
(since it may well be he would not have moved out of town if he had not been laid off) , I
am satisfied that Respondent has advanced a more reasonable basis for my finding that
it had good cause not to reinstate him, than has the General Counsel set forth, for my
finding that he was discharged in the first place because of his union activities.
Edna Hulse was first employed by the Company on December 12, 1950, continuing to
the date of her layoff on June 18 , 1951. At first she worked on the night shift as a slot
machine operator . In April 1951, the night shift was discontinued and she went to work
days plaquing, riveting , and plugging holes in the ends of the temples . Early in 1951, Hulse
signed a union membership application at the behest of Johnson (see footnote 5). In January,
having heard rumors that operators were limited in the amount of piecework they could
turn in daily , Hulse asked Sether if there was any limitation upon the amount that could be
produced . Sether replied that there was no limitation at that time and that if there should
be any imposed in the future he would tell the employees about it . When Hulse first went
to work she had been told that employees could not turn in more than $11 worth of piece-
work each day. In February 1951 Sether and MaGuire visited her machine and asked her
how she felt about the Union. She replied that she was in favor of it. MaGuire told her
the Company had a plan that was just as good as a union . At one time she was sent to the
office where Sether told her that some of her work had been slotted wrong and that she
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be more careful She never received a written warning . Neither did she receive
any further oral warning from management after Sether had thus spoken to her Late in
February or early in March, employee Stuart Cross handed her the antiunion petition.
She did not sign it . On the Friday before the last uay she worked , Duke told her that she
was to be laid off because of lack of work She returned to the plant looking for work late
in the year and talked to Sether who said there were no openings in machine work but that
she could come back in as an inspector . She declined to accept the inspector's job
Apart from her having joined the Union , and possibly , from her conduct in refraining
from signing the antiunion petition there is little evidence of Hulse's participation in union
affairs It does not appear that she attended any union meetings Neither , although it is of
but little consequence , has it been established that she voted in the election . On the basis
of all the testimony concerning Mrs Hulse , a consideration of all the evidence and the
facts particularly attendant upon her hiring , work history , layoff of , and the declination
of the offered job by this lady, I conclude , notwithstanding her frank avowal of partisanship,
that there has been no violation of the Act proven here.
Delilah Hutchinson was first employed by the Company on January 2, 1951, and worked
until March 17, 1951 , when she was laid off temporarily when the night shift was discon-
tinued She returned to work on April 9, 1951 , and was again laid off on July 27, 1951.
During her employment she performed a variety of jobs including drilling temples , running
a kick press, edging , slotting , and sorting temples . After some apparent hesitation, Hutch-
inson signed a union-membership application card which was brought around by Johnson.
She attended a union meeting which was held around the middle of February and thereafter
went to about three others In March, MaGuire stated in the presence of Sether to Hutchin-
son and Myrtle Quackenbush that the Company was discontinuing the night shift due to
the fact that there were so many temples in stock and that if the Union did not get in the
Company was planning on building a half million project in Wellsville but if the Union did
get in the Company was going to discontinue operations and move out of Wellsville. At
a meeting which was held around the middle of May, Hogan and various setup men were
present and observed the rank - and-file employees who were in attendance . She was noti-
fied of her layoff by Buckley . He said the reason for the layoff was that the Company had
so many temples in stock. In the presence of Hilda Hall , Hutchinson asked Buckley if the
layoff was temporary or permanent and he replied there was no reason why. they should
not be called back when the Company had completed the leather case department . Before
she left she handed her pass to Moore who told her there would be no need of her contact-
ing the plant and that she would be communicated with later if she were needed.
Hutchinson was laid off after Violet Babbitt, who had more seniority than she, was pre-
viously laid off. At the time she was let go she was working with Hilda Hall on what was
called Wellsville inspection No additional people have been hired to perform this work
since the layoffs . Although Hutchinson came back seeking work on occasion during the
period after the night shift was discontinued and before she was rehired in the spring of
1951 , she made no attempts to procure work after the layoff in the summer . That lack
of work was the occasion for her being laid off is entirely apparent . I am not satisfied
that Respondent violated the Act in not recalling her Although it is argued with some force
that there was no occasion for her to seek work after this time because of statements
made to her by supervision to the effect that she would be called back if needed - and that
work did become available in the leather case department , nevertheless there is some
significance to be attached to the fact that she did not seek work after her layoff in the
summer as she had sought it in the spring , and considerable weight to Respondent's po-
sition or contention that it was not anxious to retain in its employment individuals who
expressed no particular desire to or interest in working in its plant
Louise Ingalls first went to work for the Company in March 1949, continuing until she
was laid off on June 22 or 23, 1951 She , as was the case with most of the complainants,
engaged in various types of work and displayed considerable versatility during the course
of her employment . Sometime before the election , which I repeat , was held on June 1, 1951,
she applied for membership in the Union and attended two union meetings. She signed the
antiunion petition She was notified of her layoff by Duke who said work was slack and that
she would be called back as soon as it picked up. In November 1951 she received a tele-
phone call from the plant as a result of which she returned and was rehired on November
26, 1951, by Duke She was laid off a second time after having worked 3 or 4 weeks and
later was again recalled and still continues in Respondent ' s employ. Ingalls had a rela-
BAUSCH & LOMB OPTICAL COMPANY 825
tively low seniority and was laid off together with Marguerite Faber, who had been in the
Company's employment for a much longer period . There is insufficient substantial evi-
dence to warrant a finding that Mrs. Ingalls was discriminated against . To some degree
her reinstatement points in the opposite direction.
Gertrude Irvin was employed on May 16, 1949, and was laid off on June 29, 1951. She
signed a union -application card which she received from Mildred Bower and attended 2
union meetings, 1 held at the Moose Club and the other at union hall. As she was about
to enter the building in which the latter meeting was held , she observed Heath and Duke
sitting in Heath's automobile which was parked a short distance from there in sight of
the entrance The day of this meeting was not definitely established by Irvin's testimony
although it apparently took place shortly before April 25, 1951. At the earlier meeting
held in the Moose Club, Hogan and various setup men as well as a group of rank-and-file
employees were in attendance. Irvin was notified of her impending layoff by Duke, who
in reply to her question as to why she was selected for layoff and employees possessing
greater seniority were to be retained , stated that the selections were to be made accord-
mg to a determination of how few people Respondent could get along with and what people
could do the jobs better. On the actual day of her layoff she was called in with about 6
other employees to Moore's office and rather inconclusive discussions with respect to the
matter of seniority and layoffs ensued Moore stated, however, that employees would be
called back to work in accordance with the length of time each had worked in a given de-
partment where work might become available. She was not called back to work. Irvin be-
came a mother in May 1952 and was aware of Respondent ' s policy that women were not
to be employed after the first 4 months of pregnancy and within 1 year after the birth of
a child At the time of her layoff, she answered in the affirmative the question "Were
you laid off on account of slack work? " In the space following the printed words in the
separation slip "Were you dissatisfied with wages?" she wrote "Yes." Although it ap-
pears that Mildred Bower gave Irvin a number of membership - application forms at her
home , the record is bare of evidence that Irvin made any attempt to procure memberships.
Respondent takes the position that Irvin was not rehired for the reasons that she did not
seek reemployment, at the time she was laid off, she was dissatisfied with the wages and
that she had had a baby, thereby making her ineligible for reemployment under the policy
concerning which I have made findings in the earlier part of this report. There was in
my opinion a valid economic reason for Mrs. Irvin's layoff and I am unconvinced that the
layoff was motivated by Respondent's opposition to the Union, even though I am satisfied
that Respondent knew or believed that this employee was a supporter of the Union. Irvin
would have been eligible for reemployment under Respondent's policy with respect to preg-
nancy up until sometime about December 1951 Very few others among the complainants
had been called back to work before this time. Respondent's testimony is to the effect
that she was a capable worker and its advancement of the fact that she apparently was
not satisfied with wages as a reason for not calling her back is not impressive. One may
well suspect that her union membership and attendance at two of its meetings were factors
in Respondent's failure to call her back. But I am constrained to the conclusion that the
General Counsel has not raised more than a suspicion , albeit a fairly strong one.
Charles McGill was first employed by Respondent on January 21, 1947, approximately 1
week after the plant started in operation. From then on until June 6, 1951, he was chiefly
engaged in profiling , although he had been a setup man on punching , milling, slotting, bridge
forming, drilling, riveting, and heading machines for a period of about 4 months in the
late summer and fall of 1947. He was elected temporary president of the Union approxi-
mately the first of March 1951 and continued in that capacity throughout the rest of his
employment. His occupancy of that position was well known to Respondent's officials who
from time to time consulted with him concerning matters relating to employees . He talked
about the union to fellow employees . He presided at the series of union meetings at one
of which he photographed a number of individuals, claimed in these proceedings to be super-
visors, who were present. Sometime before April 10, 1951, McGill complained to Sether
that he was not progressing in the organization and asked him what might be his future
prospects. Sether replied that maybe it would be possible for him to advance, that Respond-
ent was considering bringing a materials control to add to the setup, and that McGill proba-
bly had as good a background for the job as anyone Approximately 2 weeks before July 6,
1951, his work was reduced to 3 days a week, at the base rate, on a job to which he was
transferred in the tumbling room, with the result that his weekly earnings dropped an
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
average of $ 80 when he had been working 6 days a week to about $ 24. Kenny Perkins re-
garded as an "average operator" by Hogan and who had less seniority than McGill, was
retained as a profiler until June 23 and reemployed on August 20. Early in 1951 Sether
had criticized him for horseplay in general and for greasing the sweeper ' s broom handle
in particular , but did not issue him a written warning , and in April 1951, MaGuire told
him that people had told him they had been threatened by others that McGill was going to
beat them up if they did not join the Union . McGill denied the substantiality of the alleged
reports and McGill stated that such conduct would not be countenanced . MaGuire asked
McGill and Bernard if there was not something they could do to stop the "confusion, the
usual confusion that takes place at some peak in organization."
In late 1950 and in May 1951, McGill received amounts totaling approximately $ 2,600
as his share of the meritorious award which I have described above, in discussing Neil
Bernard ' s case.
Because of the fact that he could not live on $24 a week , he quit Respondent 's employ-
ment on July 6, 1951 About a month before the time Neil Bernard and Doris Brown were
laid off , Respondent 's vice president , C S Hallauer, at a social gathering held in Wells-
ville attended by a group of Respondent ' s officials , setup men and their wives, during the
course of a talk , congratulated those present upon the failure of the Union to organize
the plant and said the Company was going to step up production and to keep on the same
line of people as it had working at that time
Respondent contends that McGill voluntarily quit , the General Counsel, that he was con-
structively discharged , and that the reason for such discharge was his union activity and
Respondent 's animosity theretoward Under all the circumstances here, I am persuaded
and find that Respondent ' s conduct in not merely disillusioning McGill in the hopes of ad-
vancement which Sether' s talk with him before April 10 were sufficient to engender, but
further , in reducing his income by about two -thirds to a point far below a living wage,
virtually forced his resignation and that such conduct had as a primary motivation the
fact that McGill, the upon president , actively led and expoused the cause of unionism among
the Wellsville employees . It is most apparent that Respondent considered McGill respon-
sible for the "confusion" attendant upon the attempt to organize and warned him that any
unusual pressure he might exert upon employees to bring about their affiliation with the
Union would not be allowed to be continued As has been repeatedly stated during the course
of this report , there is no doubt that there was economic justification for some reduction
of force in the late spring and early summer of 1951. It has also been pointed out that
there was need of retaining throughout the year, a large number of employees without
apparent substantial reductions in earnings ,ffi most of whom possessed far less seniority
than McGill, a man so skilled that he qualified for and performed setup work, and so val-
uable as to have received especial recognition for his services . Even if it be true that
there was not sufficient work to require the full-time services of a profiler during the
short period between June 23 and August 20, I am convinced that Respondent would have
retained McGill, its senior profiler , during that time doing such profiling as was needed
and would have assigned to him, on a part-time basis if need be, some of the many tasks
which his experience in setting up punching , milling, slitting , bridge forming , drilling,
riveting , and heading machines thoroughly qualified him to perform, thereby enabling him
to earn wages fairly equivalent to those he had been receiving throughout the years, if
it had not been for its objections to his union activities and apprehensions that so long
as he remained at the plant there would be a continuance , or renewal , of agitation for Union,
even though it had onl:e lost an election I find therefore that by constructively discharg-
ing Charles McGill, Respondent violated Section 8 (a) (3) and (1) of the Act. And whether
his discharge be viewed as a violation of Section 8 (a) (1) or 8 (a) (3) of the Act, I would
find it necessary in order to effectuate the policies of the Act to recommend that he be
reinstated with back pay
+t Thus it appears that the following male employees , none or practically none of whom
were involved in union affairs who were in the bargaining unit at the time of the election
on June 1, 1951, still remained in the Company's employment : Donald Hendrick , Phillip
Duke, Willis Perry , Allen McAhon , Walter Deery , Leonard Lewis , Earl Brown, Lawrence
Wigent, Dana Boyle , Raymond Abbott , Frank Farwell , Donald Marshall , Carl Phillips,
Walter Vossler , Robert Black, James Artlip , Roger Lewis, Laurence Rossman , Jack Mason,
Eugene Dressig , Gerald McClure , Edward Curtis , Richard Lee , Robert Ball , and Calvin
Carpenter.
BAUSCH & LOMB OPTICAL COMPANY 827
Crystal Miller first went to work for the Company in September 1950. She worked on
the kick press for about 3 months and thereafter was on the drilling and other machines
and also did work inserting plaques on the temples She applied for membership in the
Union in February 1951 but did not attend any union meetings . In the latter part of April
or the early part of May 1951 (I find that the date was sometime after April 25, 1951),
Miller , who had observed that the antiunion petition was being circulated , told Sether that
she would not have signed the paper if it had been presented to her as she did not figure
that it was anyone' s business whether or not she belonged to the Union. She also asserted
that if a prounion paper were passed around discharges would follow . Sether replied that
if she wanted to change her mind and sign the antiunion petition it would be "O.K."
On May 21, 1951, at a time when she was doing inspection work, she and other employees
were called into the office by Hogan where they were addressed by Sether who told them
that there was not very much work, that layoffs would take place according to seniority
and that when work picked up they would be called back Her layoff occurred on May 25
or 26, 1951. She was not called back, neither did she return to the plant seeking employ-
ment On May 12, 1951, Miller was given a written warning for " loitering on the job."
Miller explained the circumstances attendant upon the receipt of this warning by saying
that she had undergone considerable mental distress and was reading a book concerning
children ' s schooling during working hours to relieve her mind, when she was discovered.
It is quite apparent that Miller ' s layoff was in conformity with seniority , she and Joan
Watson having been let go before Dorotha Watson, Lennie Bennett, who is still working,
Bernice Dennis, who quit, and Huldah Neely, who was laid off on July 9, 1951. Although
her remarks to Sether and his reply thereto are of some significance with respect to the
question as to whether or not her layoff was in any way motivated by her union allegiance
and Respondent ' s hostility to the Union , it is quite apparent that her union activities, as
such, were minimal . Her case , as all others , must be considered in the crucible of con-
comitant circumstances I am quite unconvinced that a violation of Section 8 (a) (3) of the
Act has been shown here
Huldah Neely: As appears in the next paragraph above, Neely was laid off on July 9,
1951 She was first employed by Respondent on October 19, 1948 She worked on assembling
temples and fronts and eventually was assigned to inspection work at an hourly rate of
95 cents She applied for membership in the Union in February 1951, receiving her card
from Monica Baldwin. She attended one union meeting which was held sometime in the
month of February in the latter part of May 1951, Hogan asked her how she liked her
job, stating that he had always liked her and that if the Union should come in it would proba-
bly mean that she would lose her job because the plant would probably either move to Ro-
chester or close down. On another occasion in May, after Al McAhon had asked her to
sign the antiunion petition and she had refused to sign it, she had another conversation
with Hogan When she stated to Hogan that she did not think it was right to circulate an
antiunion petition because there were signatures on the paper of people who favored the
Union and that some people who did not sign the paper would be judged as being against
the Union, Hogan's reply was to the effect that if Mrs. Neely did not approve of the circu-
lation of the paper she might go into the office and make a protest. At this time Neely
told Hogan that she was in favor of the Union
On Monday before the Friday on which she was laid off, Moore called a group of girls
into his office and announced that they would be called back in the order in which they
were laid off, that they should not call the office because when Respondent was ready to
receive employees back they would be called Neely was not called back, nor did she apply
for reemployment Duke testified that Neely was not reemployed because she never expressed
any desire for reemployment, never came to the plant seeking a job, nor got in touch with
Respondent in any way, because she was a difficult person to train to work up to Respondent's
standards , had on more than one occasion allowed faulty work to get through inspection
and because she was not the type of operator that he was particularly anxious to go out and
find. Hogan testified that the reason why Lennie Bennett was kept on and Mrs. Neely was
laid off was that Bennett was extremely capable on both second and third inspection whereas
Neely did third inspection but could not do second inspection very well and that Respondent
felt it needed someone that could do both second and third inspection very well. Here again
the question as to whether or not this employee received treatment at the hands of the Re-
spondent which was violative of Section 8 (a) (3) of the Act is not free from doubt. She had
worked for the Company rather longer than the average length of time of all employees
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and possessed more seniority than some of the women who were retained. Her prounion
sympathies were more pronounced and more openly proclaimed than those of most of the
employees who were not laid off On the other hand, we must bear in mind the fact that
there were layoffs of some employees who apparently opposed the unionization of the plant
and that with the exception of the retention of Bennett, who was kept on for satisfactorily
explained reasons, Neely was laid off in the regular order of seniority and that the Company's
policy of regarding ascertainable differences in ability between employees was not proven
not to have been applied to her case. In my opinion the weight of the evidence does not
warrant a finding of discrimination here.
Myrtle Olson was first employed October 6, 1950, and was laid off about May 25, 1951.
She first worked on the night shift. In April 1951 she was transferred to the day shift on
a job of inserting cores in temples She applied for membership in the Union in January
1951, signing a card which she returned to Johnson She attended a union meeting about
February 21, 1951, held in union hall and a number of others on subsequent dates. Two
or 3 weeks before she was laid off, Blanche Kilmer and Stuart Cross handed her the anti-
union petition 2 or 3 times She declined to sign the petition On the Monday prior to May
25 or 26, Moore called her, Joan Watson, Crystal Miller, Doris Barnett and 1 or 2 others
into his office, told them they would be laid off the following Friday and that they would
be rehired as soon as work was available. The following day she was called into the of-
fice where MaGuire told her he had heard she had quite a bit to say about the Union, that
he would not be laying her off if he had hired her before the other girl that was doing the
same operation and asked her how it happened that she had decided against the Company.
When Olson disagreed with an assertion made by MaGuire that she had been given jobs
where she could make big money, MaGuire stated that it would not do any good if.the Union
got in because Bausch & Lomb would move out of Wellsville and that a lot of poor victims
would suffer due to her and others like her. Olson replied that she did not care if the plant
did move, that she was for the Union A little while later Heath came up to her machine
and stated that if the Union came in the Company would move its plant out of Wellsville.
One or two days subsequently, MaGuire called her into the office and told her that she was
a trouble maker, had created more trouble than anybody else hired by Bausch & Lomb and
asked her if she did not think he had enough trouble without her causing him more. Olson
became upset and cried and then MaGuire said that if she had signed the antiunion petition
things might have gone on differently with her She did not return to the plant seeking work
after she was laid off and has not been recalled. 4B
The other operator who inserted cores in temples was Lila McGinley who possessed
3 years greater seniority than Olson Sether testified that the reason for Olson's layoff
was lack of work, that she was never reemployed, in the first place, because she never
asked for reemployment and, in the second place, because she was not a satisfactory,
but an unstable operator. He added that if Olson had come back seeking work he would
not have considered her for reemployment In this case the General Counsel has made
out a prima facie case of discriminatory treatment. It is my opinion that Respondent suc-
cessfully met the contention with respect to Olson's layoff by showing that it was occasioned
by justifiable economic cause. The decision to layoff was made before the coercive state-
ments on the part of MaGuire and Heath and I do not feel that they can justifiably be taken
as evidence of reasons that prompted the original decision However, these statements
assume significance in conjunction with the failure of Respondent to recall Olson when
work picked up. As already appears other employees were sent for. Olson was not. In
addition to this there were a large number of women employees hired from time to time
after May 5, 1951, and although it does not appear that any of them were hired for the
precise job that Olson happened to be doing at the time of her layoff, nevertheless it is
apparent that she would have been capable of performing the jobs assigned to such em-
ployees as Vivian Sweet, Hazel Ingalls, Ida Unfus, Joan Jackson, Mary Carey, Gertrude
Curtin, Joyce Acker, Doris Dodson, Patricia D'Arcy, Evelyn Sizer, Maxine Cook, Lena
Hoyt, Joyce Shutt, Wylda Clair, Beryl Davis, Helen Gath, Ruth Curry, Delores Schroeder,
Sharlayne Patten, Betty Barnes, Dorothy Green, Delett Hann, and Mildred Bartlett who
430n May 25, 1951, Olson signed a "Statement of Employees Leaving" in which appears
in her own handwriting the word "Yes" after the printed words "Were you laid off on
account of slack work?" At the bottom of this slip, Olson wrote "I understand this is a
temporary lay off do (sic) to slack work and if I am called back will likewise return "
BAUSCH & LOMB OPTICAL COMPANY 829
were newly hired after Olson was laid off. Accordingly, I concluded that the allegation
that Respondent unlawfully failed and refused to reinstate Myrtle Olson has been sustained.
I see no merit in Respondent ' s contention that one reason for Olson ' s not having been re-
employed was her failure to apply for reinstatement . Such application was unnecessary
because she had been assured she would be rehired as soon as work was available This
promise was not kept. If the other reason were true, application would have been a futile
gesture Such employees as Audrey Gates, Grace Caldwell, Marjorie Ball, Audrey Robin-
son, and Marian Fisher had been reinstated by September 12, 1951. Five others among
the complainants were reinstated on various dates between November 13 and 26, 1951.
The production records discussed in an earlier portion of this report, show that by Sep-
tember 1 and October 1, there was a substantial increase in orders from the level that
pertained at the end of May 1951 Taking these factors into consideration , I find that the
date on which Respondent failed and refused to reinstate Myrtle Olson was October 1,
1951.
Onalee Pakis was hired by the Company in July 1948. She first did temple inspection,
then went on a job at sizing and later engaged in final inspection of frames. She thereafter
became a timekeeper working under the supervision of Violet Peterson. She neither signed
a union application card nor attended any meetings She was laid off on April 28, 1951,
when the system of timekeeping was changed. She returned to the plant in October 1951
and asked Sether and Buckley for work The former said that he would have a job for her
but that she could not make as much money as she had been earning when she was laid
off. Sether asked her if she liked inspection and told her that she had been a good inspector.
Pakis was offered this job. She did not accept it, having telephoned after it had been offered
to her that she had to stay home and take care of her mother. As she did not appear after
that time, her rehiring was canceled out. It is not alleged that Pakis was discriminatorily
laid off. There is no substance to the contention that she was discriminatorily denied re-
employment.
Kenneth Perkins was first employed in July 1949 as a polisher. After about 2 years he
was put to work on the profiling machine where he remained until his layoff on June 22,
1951, at which time he was working under Hogan. The two other profilers at the time were
Bernard and McGill. He did not apply for membership in the Union although he was asked
to do so by both Bernard and one McGill The antiunion petition was seen by him, probably
5 weeks before the last day he worked, lying on a bench. He did not sign it then but did
sign it later on. Hogan notified him on the Monday before Friday, June 22, the layoff date,
that he was to be laid off on account of lack of work and because he did not have seniority
on the machine. In the latter part of August 1951, he was reemployed on the same job he
had when he was laid off in June and continued working until the middle of September when
he left to go to school The disparity of treatment accorded Bernard and McGill, the union
vice president and president on the one hand, and that extended to their junior, Perkins,
who had refused to apply for membership in the Union and had in fact signed the antiunion
petition, on the other hand, is of no little significance It tends to support my previously
expressed findings that both Bernard and McGill were discriminated against It also fur-
nishes weight to Respondent ' s contention that Perkins himself was not discriminated against.
I find that such is the situation here.
Dorothy Perry first went to work for the Company in February 1949 and performed a
number of operations until she was laid off in February 1950. She was recalled to work
in May 1950 She was again laid off on June 30, 1950, at a time when she was engaged in
an operation of dipping fronts Before her layoff she was told by Hogan to go into the office
where, in the presence of Hogan and Heath, Duke told her and other employees that they
were to be laid off because of lack of work. Mrs. Perry signed a union - membership appli-
cation card which she received from Gertrude Irvin in February 1951. Since leaving Re-
spondent's employment she had a baby born in February 1952 Charlotte Cornelius was
the other person performing the same operation as was Perry on June 30 . Cornelius had
greater seniority than Perry and was not laid off Since June 30 no one has been hired for
the job that Perry was performing. Perry did not seek reemployment Not enough has been
shown here to warrant the conclusion that Perry was discriminatorily treated.
Walter C. Rix, Jr , first went to work for the Company in November 1950 as a joiner
and mudder. He also repaired temples and fronts He was laid off on May 8, 1951. He had
applied for membership in the Union early in 1951 and attended 2 or 3 union meetings.
He declined to sign the antiunion petition which was presented to him by Jack Mason. Prior
337593 0 - 55 - 54
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to April 1951, Duke had on occasion corrected Rix's work and given him oral reprimands
with respect to his poor workmanship on joining On April 12, 1951, Duke handed him a
written warning on account of poor workmanship and idling After that date there was no
perceptible improvement in Rix's workmanship and because of this reason he was dis-
charged on May 8, 1951. In my opinion, it cannot be said that General Counsel has sus-
tained the burden of proving that Respondent discriminated against this man within the
meaning of Section 8 ( a) (3) of the Act.
Audrey Robinson was first employed in October 1950 by Moore and started in as a kick
press operator She signed a union-membership application form at the first union meet-
ing, which was held in February 1951, and attended 2 or 3 later meetings. She did not sign
the antiunion petition which was given her by Charlotte Cornelius some time in April 1951.
Prior to her layoff which took place on June 29, 1951, she was called into the office where
in the presence of Lila Gorsuch, Marion Fisher, Betty Graves, Catherine Gostley, and
Gertrude Irvin, Moore stated that there would have to be a layoff on account of surplus
production, that their names would be put on a list and that they would be considered before
any new girls were hired. She was called back to work by Hogan on August 22, 1951, and
remained at work until she quit in December of that year
Contrary to the allegation, Mrs Robinson was not denied reinstatement, neither can it
be found here, in my opinion, that she was originally laid off because of her union activities
or Respondent's opposition thereto.
Everett Rossman first went to work for Respondent in November 1950 as a repairer of
fronts, continuing on that job with the exception of the last day or so before he was laid
off on July 16, 1951. About a month before June 1, 1951, Sether criticized him for talking
too much and not attending to his job. He did not sign a union card and it does not appear
that he ever attended any union meetings. But it does appear that he attended one meeting,
which was described by various witnesses as a nonumon meeting, held about the middle
of May where Hogan as well as some of the setup men were present. Shortly before his
layoff, Sether told him he would have to go because of slack work. "Rossman had observed
that work was slack before the time of his layoff. He had been given a written warning notice
for loitering in the plant and not performing his work schedule on April 12, 1951 Between
the time of his layoff and June 1952, no one had been hired on a full-time basis for the
repair job upon which Rossman had. been working just before his layoff. However, a full-
time worker in this position was hired in June 1952. Respondent's reasons for not rein-
stating Rossman were that he had never sought reemployment and that Respondent had con-
siderable trouble keeping him at his bench and had been obliged to give him several oral
reprimands for this as well as a written notice Two or 3 weeks before he was laid off,
Rossman received an additional oral warning from Hogan for having left his work 15 min-
utes early 3 days in a row. Rossman was paid by the hour. Bearing in mind all the facts
and circumstances of this entire case, as I have attempted to and still shall continue to
attempt to in passing on the merits of each 8 (a) (3) allegation, and analyzing and comparing
the facts and situations surrounding the layoffs and discharges of all the complainants
both perspectively and individually, I am satisfied that Rossman was discharged for cause
as asserted by Respondent and not because of his union activities as alleged by the General
Counsel.
Gertrude Rowley was first employed by the Company in April 1949 on a job of second
inspection of fronts. Later she started working on the first inspection of fronts and con-
tinued in that position until she was laid off on July 6, 1951 She was always paid by the hour.
She signed a union-membership application and attended union meetings, the last one of
which took place before the election of June 1, 1951 About a week before the layoff, she
was called into the office by Hogan where he and Duke told her that she was going to be
laid off on account of lack of work. She later was present in a group comprising Emma
Slawson, Huldah Neely, and Dorotha Watson, when Moore said they were being laid off on
account of lack of work and that they would be called back when work picked up. She was
called back to work in January 1952 by Sether who had telephoned her husband at a plant
where the latter works. She worked then for about 6 or 7 weeks and was laid off again for
a couple of weeks when she was again notified to come back to work by Duke. It is quite
clear that when Mrs. Rowley was originally laid off work was slack, as she acknowledged
in her testimony. It cannot be said in face of the actual fact that she was recalled to work,
that there is merit in the General Counsel's allegation that she was discriminatorily re-
fused reinstatement
BAUSCH & LOMB OPTICAL COMPANY 831
Peg Shutt was first employed by Bausch & Lomb in July 1950 . Her main job was that of
scoring temples . She signed a union -application card and attended one union meeting which
was held after the night shift on which she was working for a time , had gotten through
Moore notified her about a week before she was laid off, on June 22, 1951, that the Company
did not have enough work and that some people would have to be let go. She applied for re-
employment to Sether several times after June 22 and was reemployed by him on November
19, 1951 , first inspecting temples and later on her regular job of scoring temples Monoto-
nously to the General Counsel I suppose, but nevertheless unhesitatingly, I here find that
a case of discrimination has not been made out
Emma Slawson was first employed by Respondent on June 13 , 1950, and continued on
until about July 8, 1951 , when she was laid off. She never signed a union-membership ap-
plication form nor became a member of the Union nor attended a union meeting . She signed
the antiunion petition which came to her attention during the lunch period Moore notified
her that she was to be laid off about a week before its effective date In December 1951,
she telephoned Sether asking him if work had picked up and was requested to come to his
office where she talked to Duke and was given work on December 26 performing inspec-
tion and riveting until she was laid off in February or March 1952 After 2 or 3 weeks
following 2 or 3 telephone calls on her part she was again restored to work However,
a consideration of the circumstances here may bear upon conclusions respecting Respond-
ent's disparate treatment of other persons who did support the Union , I see no evidence
of discrimination against Mrs Slawson.
Dorotha Watson was first employed by Bausch & Lomb on October 6, 1949. She performed
various jobs and was an assembler when she was laid off on July 6, 1951 . She did not apply
for membership in the Union but did attend a union meeting in Moose hall shortly before the
time of the election . About 3 or 4weeks before the election , Hogan asked her what she thought
about the Union . She replied that she did not think it was his business . Sometime between
a week and a month before the election Winnie Friedmore gave her the antiunion petition.
Watson testified she does not recall whether or not she signed this paper About a week
before the election she was called into the office and, in the presence of Hogan, Duke told
her she was being laid off for lack of work and as 'oon as work picked up she would be
called back She was recalled to work on November 19, 1951, by Hogan and resumed the
job that she had been performing at the time of her layoff. She herself did not make any
effort to be recalled . She left Respondent ' s employment on February 15, 1952 , because
of pregnancy and is familiar with Respondent ' s policy precluding reemployment of mothers
until a year after their child is born . Quite obviously no discrimination here has been es-
tablished
Joan Watson was first employed by the Company in November 1950 and started in temple
plaquing under Reginald Cornelius. She later performed such operations as drilling and
curling temples, plugging temple ends , front inspection , and cleaning hinges . She was laid
off on May 25, 1951 , at a time when she was assigned to the job of front inspection on which
she had been engaged for over a month under the direction of Hogan . She declined to sign
the antiunion petition which was presented by Charles Presutti and Al McAhon . She signed
a union-membership application card in March or April . About 3 weeks before she was
laid off, she spoke to Sether while the 2 were in the packingroom , telling him that she had
heard a rumor around the plant that if the Union got in, the plant would close down. Sether
stated that he could not speak for the plant but if the plant was his and the Union got in,
he would close it down rather than have trouble with the Union and lose money . About a
week before she was laid off, Heath called her and a number of employees into the office
where Sether told them that work was slack , that they were to be laid off and that they
would be the first to be hired back when work picked up. Watson pointed out to Sether that
there were some girls in the plant who had been hired after she had been employed, who
were being retained . Sether stated that selections were being made on the basis of depart-
mental seniority rather than overall shop seniority . About a week after she was laid off.
she made an inquiry as to whether or not she might be rehired and was informed that work
had not picked up but that her name was on the list . She was never recalled to work Mrs
Watson became a mother 1 month prematurely on January 24, 1952 . She understands that
the Company ' s policy was that expectant mothers should inform the plant nurse when they
became 2 months pregnant and they would continue working until a date never to exceed
the beginning of the fifth month of pregnancy and might not return to work until 1 year
after the child was born.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's reasons for not having reemployed Mrs. Watson are that she never re-
quested reemployment after the first week and that she shortly thereafter became unavail-
able for reemployment because of her imminent expectancy. Under all of the myriad cir-
cumstances in this entire case which have been alluded to from time to time during my
discussion of its various features and which of course cannot be expected to be reiterated
in connection with every single finding I am required to make, I am quite unconvinced that
the evidence relating peculiarily to Joan Watson is sufficient to support a finding of dis-
crimination
Betty Whelpley: For some reason or other Whelpley, to whose case we have at long
last plodded, received marked attention from both counsel Her testimony consumes 57
pages of the record and references to her appear on 93 other pages. Certainly she was
a plant favorite for a time and somewhat of a confidante of management. Essentially, the
situation respecting Whelpley's discharge on November 21, 1951, for the alleged reason that
she held back work in violation of orders, is similar to, and bound up with the case of
Mary Benjamin, which it will be recalled was discussed in the alphabetical order adopted
many pages back Whelpley was hired on September 8, 1949, and during the course of her
employment performed such operations as slotting fronts, drilling, riveting, heading, cut-
ting off, and stamping and inspecting For a considerable period before her discharge she
worked scoring temples She signed a union-membership application card in January 1951
and attended 3 or 4 union meetings, at 1 of which at least Hogan and some setup men were
present She declined to sign the antiunion petition which was presented to her by Stuart
Cross Ten days or 2 weeks before the election which took place June 1, 1951, as she was
leaving the plant nurse's room, MaGuire asked her how she was getting along. She replied
she was getting along "0 K " Then MaGuire asked her how she felt about the Union. When
she replied she favored it, MaGuire stated he would like to talk to her sometime. The
following day, Duke came to her and told her that MaGuire was in Sether's office Upon
her repairing there, MaGuire again asked her how she felt about the Union and when she
repeated that she was for it MaGuire stated that he had heard such was the case. He then
said that if the Union came in there would not be any more paid holidays, that employees
would have to work a certain length of time before having paid vacations and that the main
factory at Rochester would cut the Wellsville orders and that eventually there would be
layoffs
Very apparently Whelpley was an adept and rapid operator Consequently, she was able
to produce more than a day's quota of work each day and still have sometime to leave her
station and circulate around the plant Before November 21, 1951, she had received 3 written
warnings for not staying at her place of work The last of these involved a temporary sus-
pension. A main issue here is whether there had been communicated to Whelpley before the
date of her discharge, ostensibly for not turning in work she had completed, instructions
that she should turn in all such work Whelpley's testimony in effect was that she did hold
back work but does not remember receiving instructions not to. On the other hand, Duke
testified credibly that in the presence of Whelpley and Mary Benjamin, he told Sether the
girls seemed to be afraid that their rates would be cut and they would be unfavorably re-
garded by other operators if they should turn in all they produced each day and that Sether
told them they were in the plant to turn in what they produced and to have no fear. Johnson
testified that he and Duke prior to November 21, told Whelpley and Olive Wilkins that it was
contrary to the company policy to hold back work that they should do as many pieces as
they could and that there was no limitation on the amount of work they could do. In addition,
both Duke and Johnson as well as Sether, testified that all employees had received similar
instructions and that all but Whelpley and Benjamin had complied with them. For substan-
tially the same reasons as those which I indicated in my discussion of the circumstances
surrounding the discharge of Mrs Benjamin, I do not feel that the General Counsel has
sustained the burden of proving that Respondent's treatment of Whelpley had as its genesis
antiunion considerations Considerable latitude had been shown this engaging girl, no great
respecter of regimentation, who apparently was the only employee who had received 3
written warnings without being discharged The reason for her ultimate discharge was
plausibly explained it is my feeling that it is more probable that Respondent's action on
November 21, 1951, at a time remote from my manifestations--meagre apart from her
frank avowal of her being on its side--of union activity on Whelpley's part, was taken for
the reasons than it asserted that she was discharged for the reasons alleged in the com-
plaint
BAUSCH & LOMB OPTICAL COMPANY 833
C. Interference , restraint , and coercion
1. Interrogation concerning union membership , activites , affiliations,
sympathies , or other concerted activities
I conclude that , in the context and presence of the threats made by Sether , Hogan , MaGuire,
and Heath which have been previously pointed out and concerning which findings are to be
made in the subsection immediately following , and the additional findings of antiunion atti-
tude and discriminatory conduct which have been made , this allegation has been sustained
and that by the following conduct Respondent interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby
violated Section 8 (a) (1) thereof
(a) MaGuire ' s inquiries of Betty Whelpley on 2 successive days about 10 days or 2 weeks
before'June 1, 1951 , as to how she felt about the Union.
(b) MaGuire ' s fdquiry of Myrtle Olson on the Tuesday preceding May 25, 1951, as to
how it happened that she had decided against the Company
(c) Hogan's inquiry of Dorotha Watson , 3 or 4 weeks before June 1,1951 , as to what she
thought about the Union Syracuse Color Press , Inc , 103 NLRB 377, and cases'^ited therein.
2 Warning or threatening employees with discharge or loss of
benefits or other economic reprisals if they joined , sympa-
thized with, assisted or were active in behalf of the Union,
or engaged in other concerted activities
I find that this allegation has been sustained and that by the following conduct Respondent
interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act and thereby violated Section 8 ( a) (1) thereof.
(a) MaGuire 's statement to Betty Whelpley 10 days or 2 weeks before June 1, 1951, that
if the Union came in there would not be any more paid holidays , that employees would have
to work a certain length of time before having paid vacations and that the main plant at
Rochester would cut Wellsville 's orders with the results that eventually layoffs would ensue.
(b) Hogan ' s statement to Huldah Neely in the latter part of May 1951 that if the Union
should come in it would probably mean her job because the plant would either move to
Rochester or close down
(c) MaGuire ' s statement to Olson on the Tuesday preceding May 25, 1951, that it would
not do any good if the Union got in because Bausch & Lomb would move out of Wellsville
and a lot of poor victims would suffer due to Olson and others like her
(d) MaGuire ' s statement to Olson on the Thursday preceding May 25 that if she had signed
the antiunion petition things might have gone on differently with her.
(e) Heath's statement on the same day to Olson that if the Union came in the Company
would move its plant out of Wellsville.
(I) Sether ' s statement to Joan Watson about 3 weeks before May 25, 1951, that he could
not speak for the plant but if it were his , and the Union got in, he would close it down rather
than have trouble with the Union and lose money
3 Promising or granting employees economic benefits in an effort to
induce them to refrain from joining , sympathizing with, assisting,
or being active on behalf of the Union , or engaging
in other concerted activities
I find that the General Counsel has not sustained the burden of establishing this allegation,
and shall therefore recommend that it be dismissed.
4 Engaging in observation and surveillance of the meeting places, meetings or
activities of the Union , or the concerted activities of its employees
I find that the General Counsel has not sustained the burden of establishing this allega-
tion, and shall therefore recommend that it be dismissed.
As I have indicated from time to time in discussing the meetings that were attended by
numerous complainants , Hogan and various setup men were present on occasion Although
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am satisfied that through the intermediary of these persons, knowledge of the identity
of rank-and-file employees who attended the meetings both before and after April 25, 1951,
became known to Respondent's higher management, I nevertheless do not feel that the
evidence warrants the conclusion that Hogan or the setup men, who indeed seem to have
been invited to at least two of the meetings, attended them either at the behest of Respondent
or for the purpose of surveillance The adventitious appearance outside the meeting places
of setup men and others who were sufficiently high in Respondent' s councils to be included
in those who attended production meetings, was not enough in my opinion under the circum-
stances of this case to warrant a finding of unlawful observation Obviously neither Heath's
nor Duke's presence outside union hall nor Hogan's nor the setup men's appearance inside
meeting places before April 25, 1951, can be found to have been unfair labor practices,
no matter what may have been their motives
5 Instigating or acquiescing in the circulation of an antiunion petition
I find that the General Counsel has not sustained the burden of establishing this allega-
tion, and shall therefore recommend that it be dismissed
The testimony of such witnesses as: Hulse, Benjamin, Olson, Barnett, Faber, Hollister,
Rossman, Hall, Howard, Houghtling, Holiday, Dorotha and Joan Watson, Miller, Rix, Robinson,
Perry, Graves, Gates, and Neely (see my discussion of Respondent's claim that Evelyn
Easton was an agent for whose conduct Respondent was responsible, supra) leaves no doubt
that the paper that was circulated mainly by Kilmer and also by Presutti, McAhon, and
Cross was an antiunion petition. When, where, how, and by whom this petition was prepared
however is not disclosed Whether such preparation was undertaken by Respondent's offi-
cers remains a matter of pure speculation and conjecture Although I have no doubt that the
Respondent's officials were aware of the fact of circulation, I find no evidence warranting
the conclusion that they instigated such circulation The question as to whether or not Re-
spondent's officers acquiesced in its circulation is closer. It is true that MaGuire had
told Bower in March that he did not want employees to engage in union activities on company
time. From this it can 'be argued that the permitting of antiunion activities on company
time and property was an act of discrimination against the Union. However, there is evi-
dence, which was undenied, that a prounion petition was also distributed. It does not so
clearly appear that Respondent was aware of the circulation of the prounion petition as
it appears that it was aware of the circulation of the antiunion petition Yet there is no
conclusive evidence to show that to have been the case and I am inclined to the belief that
both papers were openly passed around during working hours and that employees were
opportuned to sign them In any event, there is no doubt that the antiunion paper was widely
distributed, passed from hand to hand and at times left on work benches for all to see
The question as to whether or not Respondent acquiesced in the distribution in the anti-
union petition- -entirely apart from the problem as to whether or not such acquiescence,
if any, constitutes an unfair labor practice--is close, but under all of the circumstances I
do not feel that the General Counsel has sustained the burden of proving a violation of
the Act in such conduct standing alone" I do feel, however, that Respondent came to know
the names of those people such as Rollin Perkins, Russell Cross, Mary Austin, Louella
McConnell, Marguerite Tucker, Evelyn Aston, Russell Halsted, Phyllis Thompson, and
Jack Mason who signed the petition equally as well as it became aware of the fact that
it was circulated by Kilmer, Presutti, Cross, and McAhon That the fact of signing or
not signing had some significance in the mind of Respondent is clear from MaGuire's state-
ment to Olson that if she had signed, things might have gone on differently with her
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce
44Superior Company, Inc., 94 NLRB 586.
BAUSCH & LOMB OPTICAL COMPANY 835
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor practices
affecting commerce, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. By interrogat-
ing employees concerning union membership, activities, affiliations, sympathies or other
concerted activities and by warning or threatening employees with discharge or loss of
benefits or other economic reprisals if they joined, sympathized with, assisted or were
active in behalf of the Union or engaged in other concerted activities, Respondent has evinced
a purpose and disposition to thwart the self-organization of its employees and deprive them
of their rights under the Act. In view of this, and of the other unfair labor practices herein
found, there is, in my opinion, a likelihood not only that such acts may be repeated but that
other unfair labor practices may be resorted to by Respondent in an effort to prevent self-
organization of its employees. To minimize the likelihood of recurrent unfair labor prac-
tices and to assure to employees the enjoyment of their statutory rights, it will be recom-
mended that Respondent be ordered to cease and desist from in any manner interfering with,
restraining, or coercing its employees in the exercise of their right to self-organization
Having found that Respondent discriminated in regard to the hire and tenure of employ-
ment of Neil Bernard on July 16, 1951, Doris Brown on July 6, 1951, Charles McGill on
July 6, 1951, and Myrtle Olson on October 1, 1951, I will recommend that Respondent offer
each of them reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges. I will further recommend that
Respondent make each of them whole for any loss of pay individually suffered by means
of Respondent's discrimination, by payment to each of them of a sum of money equal to
that which he or she normally would have earned as wages from the date of discrimination
to the date of offer of reinstatement, less his or her net earnings during such period. The
back pay shall be computed on a quarterly basis in the manner established and enunciated
by the Board in F W Woolworth Co , 90 NLRB 289, and Respondent shall make available
to the Board, payroll and other records to facilitate the checking of amounts due. As the
evidence does not establish that Respondent discriminated in regard to the hire or tenure
of employment of. Ruth Amidon, Violet Babbitt, Marjorie Ball, Doris Barnett, Mary Benja-
min, Mildred Bower, Grace Caldwell, James Cline, Anna Coyle, Nedith Daniels, Martha
Driscoll, Marguerite Faber, Marian Fisher, Audrey Gates, Gertrude Gavitt, Lila Gorsuch,
Catherine Gostley, Elynore A Graves, Hilda Hall, Marie Holiday, Lucy Hollister, Isabel
Houghtling, -Kenneth Howard, Edna Hulse, Delilah Hutchinson, Louise Ingalls, Gertrude
Irvin, Crystal Miller, Huldah Neely, Onalee Pakis, Kenneth Perkins, Dorothy Perry, Walter
C Rix, Jr , Audrey Robinson, Everett Rossman, Gertrude Rowley, Peg Shutt, Emma Slaw-
son, Joan Watson, Dorotha Watson, and Betty Whelpley, nor that it promised or granted
employees economic benefits in an effort to induce them to refrain from joining, sympa-
thizing with, assisting or being active on behalf of the Union, or engaging in other con-
certed activities nor that it engaged in observation and surveillance of the meeting places
of the Union or the concerted activities of its employees, nor that it instigated nor acquiesced
in the circulation of an antiunion petition on company time and property, I shall recommend
dismissal of the allegations appertaining thereto.
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
I make the following
CONCLUSIONS OF LAW
1 International Association of Machinists is a labor organization within the meaning of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Neil Bernard,
Doris Brown, Charles McGill, and Myrtle Olson, thereby discouraging membership in
a labor organization, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act
3. Respondent did not discriminate in regard to the hire and tenure of employment of
Ruth Amidon, Violet Babbitt, Marjorie Ball, Doris Barnett, Mary Benjamin, Mildred Bower,
Grace Caldwell, James Cline, Anna Coyle, Nedith Daniels, Martha Driscoll, Marguerite
Faber, Marian Fisher, Audrey Gates, Gertrude Gavitt, Lila Gorsuch, Catherine Gostley,
Elynore A Graves, Hilda Hall, Marie Holiday, Lucy Hollister, Isabel Houghtling, Kenneth
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard, Edna Hulse, Delilah Hutchinson, Louise Ingalls, Gertrude Irvin, Crystal Miller,
Huldah Neely, Onalee Pakis, Kenneth Perkins, Dorothy Perry, Walter C Rix, Jr., Audrey
Robinson, Everett Rossman, Gertrude Rowley, Peg Shutt, Emma Slawson, Joan Watson,
Dorotha Watson, and Betty Whelpley
4. Respondent by interrogating employees concerning union membership, activities,
affiliations, sympathies or other concerted activities, and by warning or threatening em-
ployees with discharge or loss of benefits or other economic reprisals if they joined, sympa-
thized with, assisted or were active in behalf of the Union, or engaged in other concerted
activities, interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
5 Respondent has not promised or granted employees economic benefits in an effort
to induce them to refrain from, joining, sympathizing with, assisting, or being active in
behalf of the Union or engaging in other concerted activities, nor engaged in observation
and surveillance of the meeting places of the Union or the concerted activities of its em-
ployees, nor instigated nor acquiesced in the circulation of an antiunion petition on company
time and property
6 The unfair labor practices referred to in paragraphs 2 and 4 immediately above are
unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of
the Act
[Recommendations omitted from publication ]
APPENDIX
NOTICE TO ALL EMPLOYEES
OF OUR WELLSVILLE, NEW YORK, PLANT
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership in International Association of Machinists,
or any other labor organization of our employees , by discriminatory discharges, lay-
offs or refusals of reinstatement , or by discriminating against them in any other man-
ner in regard to the hire and tenure of their employment or any term or condition
of their employment
WE WILL NOT interrogate our employees concerning their union membership,
activities , affiliations , or sympathies or their other concerted activities or threaten
them with discharge or loss of benefits or other reprisals if they should join, sympa-
thize with, assist , be active in behalf of the above-named union , or should engage in
other concerted activities or in any other manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor orga-
nizations , to join or assist the above- mentioned union, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all 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
WE WILL OFFER to the following named employees immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to any of the
rights or privileges they formerly enjoyed , and make them whole for any loss of pay
suffered as a result of the discrimination against them
Neil Bernard Charles McGill
Doris Brown Myrtle Olson
All our employees are free to become or remain members of the above-named union
or of any other labor organization or to refrain from so doing, except to the extent that
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 837
this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to the hire or tenure of employment or any term
or condition of employment against any employee because of membership in or activity
on behalf of any such labor organization.
BAUSCH & LOMB OPTICAL COMPANY,
Employer.
Dated ................ By............................................................................................. .
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and CARLOS
BEALL
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and PAUL
DUNBAR
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and ALVIN
CHATBURN
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and J. M.
NIEHAUS
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and WILLIS
BRADSHAW
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Over-the-Road and City Transfer Drivers, Helpers, Dock-
men & Warehousemen , Local No. 41, AFL and CARLOS
BEALL
INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUF-
FEURS, WAREHOUSEMEN & HELPEAS OF AMERICA,
Over-the-Road and City Transfer Drivers, Helpers, Dock-
men & Warehousemen , Local No . 41, AFL and PAUL DUNBAR
INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Over-the-Road and City Transfer Drivers , Helpers, Dock-
men & Warehousemen , Local No. 41, AFL and ALVIN
CHATBURN '
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Over-the-Road and City Transfer Drivers, Helpers, Dock-
men & Warehousemen , Local No. 41, AFL and J. M. NIEHAUS
107 NLRB No. 158.