Dal-Tex Opitcal Co., Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1965

152 N.L.R.B. 1317 (N.L.R.B. 1965)

DAL-TEX OPTICAL COMPANY, INC. 1317
'Director , in writing , that it will comply with the foregoing Recommended Order, the
National Labor Relations Board issue an order requiring Respondent to take the
-aforesaid action.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in District 50, United Mine Workers
of America, or any other labor organization, by discharging or refusing to rein-
state any of our employees, or in any manner discriminating in regard to their
hire or tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate employees concerning their interest in, and inten-
tions with respect to, joining the above-named or any other labor organzation,
in a manner constituting interference, restraint, or coercion violative of Section
8(a)(1) of the Act.
WE WILL NOT request employees to supply copies of union literature about
union activities.
WE WILL NOT solicit employees to abandon their membership in the above-
named Union or any other labor organization.
WE WILL NOT offer employees permanent jobs or other benefits in a manner
violative of Section 8(a)(1) of the Act.
WE WILL NOT interfere with the right of our employees to make a free choice
in any election ordered by the National Labor Relations Board.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any and all such activities.
WE WILL offer to Hardy Wilson immediate and full reinstatement to his for-
mer or a substantially equivalent position without prejudice to seniority and other
rights and privileges, and make him whole for any loss of pay suffered as a result
of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or remain-
ing members of the above-named Union, or any other labor organization.
LOUISIANA MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 4459 Fed-
eral Building , 1520 Market Street, St. Louis, Missouri, Telephone No. Main 2-4142,
if they have any question concerning this notice or compliance with its provisions.
Dal-Tex Optical Company, Inc. and International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO. Cases Nos. 16-
C21-2069, 16-Cf1-2096, and 16-CF1-2119. June 9, 1965
DECISION AND ORDER
On April 6, 1965, Trial Examiner -Max Rosenberg issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
152 NLRB No. 135.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in certain unfair labor practices as alleged in the complaint
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Respondent filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,' and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Dal-Tex
Optical Company, Inc., its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order.
1 Respondent contends that the Trial Examiner improperly credited the testimony of
the complainants as against the testimony of the witnesses for Respondent It is the
Board's established policy not to overrule a Trial Examiner's resolutions as to credibility
unless the clear preponderance of all the relevant evidence convinces us that they are
incorrect. Such a conclusion is not warranted here Standard Dry Wall Products, Inc,
91 NLRB 544, 545, enfd 188 F 2d 362 (C A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Max Rosenberg in Dallas, Texas, on October 12 and 13, 1964, on complaint of the
General Counsel of the National Labor Relations Board and answer of Dal-Tex
Optical Company, Inc., herein called the Respondent.' The pleadings raised the
issues of whether Respondent violated Section 8(a)(3) of the Act by discharging
certain named employees,2 and also independently violated Section 8(a) (1) by other
acts and conduct. At the conclusion of the hearing, the parties waived oral argu-
ment. Briefs have been received from the General Counsel and the Respondent,
which have been duly considered 3
Upon the entire record and my observation of the witnesses, including their
demeanor while on the stand, I hereby make the following:
'The complaint , which issued on September 24, 1964 . is based on the various charges
and amended charges which were filed and served on June 17 , July 10 and 30, and Au-
gust 11, 17, and 31, 1964.
2 At the hearing, I granted the General Counsel's motion to strike the names of Doyle
Dean O'Bannon, Carol McGriff, Cheryle Sehmiedeke, Robert W Parker, and Vel Sizemore
from the complaint as alleged discriminatees
s The General Counsel 's unopposed motion to correct the record in certain minor respects
is hereby granted.
DAL-TEX OPTICAL COMPANY, INC. 1319
FINDINGS OF FACT AND CONCLUSIONS
1. THE RESPONDENT 'S BUSINESS
The Respondent , a Texas corporation , maintains its principal place of business in
Dallas, Texas, where it is engaged in the manufacture , sale, and distribution of whole-
sale optical goods. During the representative annual period, Respondent shipped
finished optical products valued in excess of $50,000 directly to customers located out-
side of the State of Texas, and during the same period it received goods and materials
directly from suppliers located outside of the State of Texas valued in excess of
$50,000. I find that Respondent is engaged in commerce within the meaning of Sec-
tion 2 ( 6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Machine Workers, AFL-CIO, herein
called the Union , is a labor organization within the meaning of Section 2 ( 5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The contentions
The complaint alleges that Respondent discharged Gene Smith , Robert Hicks,
Christa Cross , Janetta Louise Darland, Kathryn Kleinberg , and Ernest Fuentes
because they joined or assisted the Union and thereby violated Section 8 ( a)(3) of
the Act . It further alleges that Respondent independently violated Section 8(a)(1)
by interrogating its employees concerning their membership in and activities on
behalf of the Union ; by threatening employees with discharge or other reprisals if
they became or remained members of the Union or assisted that labor organization;
by keeping union meetings under surveillance; and by instituting changes in working
conditions because certain employees had joined or assisted the Union . Respondent
denies the commission of the alleged unfair labor practices . It contends that Smith
was terminated for going over the head of his supervisor to complain about work pro-
cedures to the supervisor of another department ; that Hicks was discharged for dis-
obeying orders given to him by his superior; that Cross was terminated because she
had cheated on her production records; that Darland , rather than having been dis-
criminatorily discharged , actually quit her employment without the exertion by
Respondent of statutorily proscribed pressures ; that Kleinberg was discharged solely
because of a run-in with a coworker , Margaret Nobles; and that Fuentes lost his job
because he failed properly to align his machines to insure the correct reproduction
of curves on optical lenses. Respondent further contends that the changes in work-
ing conditions which it instituted were not related to its employees' engagement in
union activities , and that the other acts of interference , restraint , or coercion alleged
in the complaint did not occur , or, if they did, Respondent was not legally responsible
for them because the individuals who indulged in them were neither supervisors nor
agents of Respondent.
B. The events
1. Background
This proceeding represents yet another chapter in the unhappy struggle between
the Union and the Respondent concerning the representation of the latter's employ-
ees. The struggle commenced in 1959 when the Union began organizing Respond-
ent's employees and filed a petition with the Board seeking an election in a unit of
production and maintenance employees The election was held on October 30, 1959,
and the Union lost . It thereupon filed objections to the election , as well as unfair
labor practice charges, alleging that the Respondent had violated Section 8(a)(1)
of the Act by threatening its employees with reprisals for supporting the Union, and
by promising them economic benefits if they withheld such support . In the ensuing
litigation , the Board , on March 14, 1961, found the violations as alleged, set the elec-
tion aside, and directed that a second election be conducted .4 In that proceeding,
the Board concluded that Cornelia Chitwood ( then known as Cornelia Banks), who
figures somewhat prominently in the instant case, was a supervisor of the stock depart-
ment and that Respondent was legally accountable for her acts of interference with,
and restraint and coercion of, employee rights guaranteed by Section 7 of the statute.
s Dal -Tea, Optical Company, Inc., 130 NLRB 1313 . The Respondent did not perfect
a court appeal from this decision of the Board
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter , the Respondent was again brought before the Board on charges by the
Union that the former had violated Section 8 ( a) (4) of the Act by discharging certain
individuals and changing the terms and conditions of employment of others because
they gave testimony , or appeared for the purpose of giving testimony , in the earlier
Board proceeding . On May 23, 1961 , the Board again found the violations as
alleged,5 and the United States Court of Appeals for the Fifth Circuit enforced the
Board's Order based on these findings.6 The second election was conducted on Sep-
tember 22 , 1961, and the Union again lost. This election was also set aside by the
Board on July 31, 1962, based upon its findings that the Respondent had interfered
with its employees ' freedom of choice because of the preelection speeches which it
addressed to them, and a third election was ordered .? In the meantime , and in a dif-
ferent proceeding decided on May 24, 1962, the Board found that the Respondent
violated Section 8(a) (3) by discharging certain employees because of their adherence
to the Union , and violated Section 8 (a)( 1) by engaging in the surveillance of union
meetings . The Board 's Order.8 which had the effect of reversing a contrary decision
of a Trial Examiner, was denied enforcement by the United States Court of Appeals
for the Fifth Circuit on the ground that the Board should have deferred to the ieso-
lutions of credibility which the Trial Examiner made in that proceeding 9 The chro-
nology of litigation is brought current with the institution of the present proceeding.
2. The discharges and the interference , restraint , and coercion
The Union 's latest organizational campaign commenced at Respondent 's plant on
June 7, 1964 . On and after that date , the Union solicited employees at the plant
gate and at union meetings . On June 11, Richard H. Crabtree, the Union 's Inter-
national representative , scheduled a meeting at a local restaurant in Dallas, Texas,
to explain to employees the reasons which prompted the current organizational drive
and to review with them the Union 's prior attempts to obtain representative status
at the plant . The meeting convened at 4 p . m. and was attended by 11 employees who
had been invited by the union leaders and who had been designated as members of the
employee organizing committee . About an hour later , Cornelia Chitwood entered
the meeting room, without any apparent invitation from the Union . Shortly after
making her appearance , and according to the testimony of Crabtree , Chitwood warned
the assembled employees that "those who might desire to support the Union or become
members of the Union would be discharged ." Chitwood went on to relate that she
was aware of an agreement between Irving Greenberg , Respondent 's president, and
other optical companies in the area , pursuant to which employees who were union
adherents and who were discharged therefor would not be considered for employment
with those companies . Chitwood further recited that, if the Union was successful in
its campaign , there would be a strike and the strikers would be replaced with a conse-
quent loss of wages. She stated that the Union would not pay the strikers , character-
ized the union representatives as crooks and racketeers , and proceeded to engage in
arguments with Crabtree and the employees in attendance . According to Crabtree's
further testimony, he recognized Chitwood as the individual who served as Respond-
ent's observer in a Board election held in 1961, and informed Chitwood and the
assembled employees that he suspected that she had come to the meeting in order
to engage in an act of surveillance for the Respondent , to which Chitwood replied
that "she was being paid time and one half by Mr. Greenberg to attend this meeting."
Crabtree then announced that he was leaving the meeting to write a letter to the
Board's Regional Office in Fort Worth, Texas , with copies to Greenberg and Chit-
wood, informing the recipients of the current organizational campaign , setting forth
the names of the employees who attended the meeting of June 11 and who constituted
the employee -organizing committee , and complaining of Chitwood 's attendance of
the union meeting and the coercive statements which she there made . That evening,
Crabtree composed the letter and, on the morning of June 12, posted it by registered
mail. Included among the names of the individuals on the organizing committee was
that of Gene Smith, an employee whose discharge is alleged herein to have been dis-
criminatorily motivated , and who attended the meeting.
Leslie Jacobs , an employee at the plant , testified that he attended the union meeting
on June 11. About an hour after it opened , Chitwood appeared and Crabtree
a Dal-Tex Optical Company, Inc, 131 NLRB 715.
6310E 2d58.
'Dal-Tea Optical Company, Inc, 137 NLRB 1782 This election was held on Sep-
tember 23, 1964.
8 Dal-Tex Optical Company, Inc ., 137 NLRB 274
9 325 F. 2d 78.
DAL-TEX OPTICAL COMPANY, INC. 1321
inquired whether she was "still for the Company." Chitwood replied that she was
"neutral" and the meeting continued. Gene Smith then informed Crabtree that
President Greenberg had sent letters to other optical companies requesting that they
not hire, for a period of 2 weeks, any employee who had been discharged by Respond-
ent for engaging in union activities, and Chitwood acknowledged that Greenberg
and the other companies had entered into such an agreement. Chitwood also warned
that Greenberg would close the plant if the Union successfully organized his employ-
ees because Respondent could not afford to pay union wages, and further stated that
"she was going to remember all the names of the employees that attended the meet-
ing " When Smith inquired as to whether Chitwood was receiving overtime pay for
attending the meeting, Chitwood replied that she was being paid time-and-a-half.
Jacobs then left the meeting in company with employee Herbert Jones.
Spencer Tucker, another employee of Respondent, testified that he attended the
meeting on June 11 at which Chitwood appeared. Prior to clocking in on the follow-
ing morning, Tucker entered the plant cafeteria where he observed Chitwood sitting
with Maurice Stein, Respondent's vice president. As Leslie Jacobs and Herbert Jones
entered the cafeteria, Chitwood pointed out Jacobs and Jones to Stein.
Gene Smith, who had been employed by Respondent since April 1964, attended
the union meeting on June 11 , and engaged in a conversation with Chitwood. Smith
testified that he had met Chitwood on several occasions in the course of his work at
the plant. Smith asked Chitwood whether she was being paid for attending the meet-
ing. Chitwood at first replied that she was receiving overtime pay, but then stated
that "I am here on my own." At this juncture, Chitwood told Smith that the latter
had no business attending the meeting because he had not worked for Respondent
sufficiently long enough to become acquainted with Respondent's officials, and she
noted that she had worked for Respondent for a long time and that President Irving
Greenberg was "a wonderful person." Chitwood then remarked that "if the Union
went through, we would all be out of work " Smith inquired as to the reason for this,
and Chitwood replied that Greenberg could not afford to pay union wages. When
one of the employees in attendance suggested that closing the plant would cause a
complete loss of revenues to Greenberg, Chitwood stated that Greenberg was "mak-
ing enough money" from other interests and that "he does not need Dal-Tex."
Smith further testified that he had learned from a friend who was employed at
another optical company in the area that it had received a letter from Respondent
requesting that any employee who had been discharged by Respondent should not
be hired by the company for a period of 2 weeks. Chitwood was questioned concern-
ing this circumstance and replied that "She did not know anything of the letter, but
there was a verbal agreement, among them that you were not suppose [sic] to hire
someone for at least 2 weeks. If they were fired or quit or anything like that. That
is to keep you from stealing employees." Smith then informed Chitwood that it was
evident to him that she did not wish to learn what the "Union could do for her or
anything about it" and he requested that she "shut up because I was there for that
purpose because I wanted to know what it could do for me." This comment pro-
voked Chitwood to anger and she unsuccessfully attempted to strike Smith. When
interrogated as to the reasons which Chitwood assigned for her presence at the meet-
ing, Smith testified that Chitwood stated that "she had come there on her own because
she wanted to find out more about the Union."
Chitwood was called as a witness and testified that she had been employed by
Respondent for some 13 years. She was not questioned concerning her attendance
at the meeting on June 11 or the statements attributed to her, and , therefore, the
testimony of Crabtree , Jacobs, and Smith is undenied . However, President Green-
berg testified that he did not know that Chitwood attended this meeting; that he did
not direct her to attend ; and that he did not pay her overtime for her attendance.
Greenberg denied that he had any agreement , either verbal or written , with any other
optical company concerning the employment of individuals who had been discharged
by Respondent, and further denied that he told anyone at the plant that it would be
closed if the Union was successful in the organizational campaign. According to
Greenberg, prior to the third election on September 23, 1964, he gave his supervisors
explicit instructions concerning the procedures to be followed, "What they should
not do, so that we would be up here as we are today I was very implicit with them.
They had gone through two elections prior to this. I think my supervisors did pretty
well this time, they did not-there was not very many complaints with them. I was
specific. I outlined to them exactly what they could and what they could not do."
The General Counsel apparently concedes that Chitwood, at the times material
herein , was not a supervisor within the meaning of the Act . However, he alleges that
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she acted on and in behalf of the Respondent when she attended the union meeting
of June 11, that her presence thereat constituted unlawful surveillance of the union
activities of Respondent's employees, and that her statements amounted to threats of
reprisal for engaging in such activities, all of which are legally chargeable to the
Respondent. Respondent denies responsibility for Chitwood's conduct.
In International Association of Machinists, Tool and Die Makers Lodge No. 35
(Serrick Corp.) V. N.L.R.B.,10 the Supreme Court cautioned that an employer may
be held accountable under the statute for acts of misconduct committed by others
"even though the acts of the so-called agents were not expressly authorized or might
not be attributable to him on strict application of the rules of respondeat superior."
Adverting to such misconduct in the context of the National Labor Relations Act,
the Court noted that, "We are dealing here not with private rights ... nor with tech-
nical concepts pertinent to an employer's legal responsibility to third persons for
acts of his servants, but with a clear legislative policy to free the collective-bargaining
process from all taint of an employer's compulsion, domination, or influence. The
existence of that interference must be determined by careful scrutiny of all the fac-
tors, often subtle, which restrain the employees' choice and for which the employer
may fairly be said to be responsible." The Court added that, where employees have
just cause to believe that individuals "were acting for and on behalf of the manage-
ment, the Board would be justified in concluding that they [the employees] did not
have the complete unhampered freedom of choice which the Act contemplates."
In my judgment, I am convinced that a careful study of all the circumstances sur-
rounding Chitwood's employment history with Respondent, her prior inroads upon
the statutory rights of Respondent's employees, and her conduct and statements at
the union meeting, fall within the mold of employer responsibility as encompassed
by the above-quoted language from the Supreme Court's decision. I am also con-
vinced that Chitwood's conduct impinged upon the rights guaranteed to Respondent's
employees under Section 7 of the Act.
It is undisputed that Chitwood had been employed by Respondent for approxi-
mately 13 years 11 and that, as the Board found, with the approbation of the Court
of Appeals for the Fifth Circuit,12 she was a statutory supervisor who, in 1959,
threatened employees with discharge if they voted for the Union in the forthcoming
first election, and made promises of benefit if they rejected the Union, all of which
conduct violated Section 8(a)(1) of the Act and all of which was chargeable to
Respondent. In the second election held in 1961, Chitwood served as an observer
for Respondent. According to President Irving Greenberg, Chitwood was simply
an "ordinary" employee during the period from June to September 1964 while she
worked in the dispatch department and ordered eyeglass frames from outside sup-
pliers when the Respondent did not have the frames in stock; that she was paid a
regular hourly rate; and that she did not direct the work of any other employee.13
However, Greenberg conceded that Chitwood was one of the highest paid employees
in the department. Janetta Louise Darland, an employee who impressed me as a
credible witness, testified that Chitwood worked in a separate office in the depart-
ment, and that Darland, as well as employees Nancy Gray and Lanelle Josserand,
were assigned to perform work for Chitwood. On such occasions, Chitwood
instructed them in their work tasks. These assignments would be made either by
Chitwood alone , or in consultation with Vice President Stein or Bernard Bembaum,
the supervisor of the department.
It is also uncontroverted that Chitwood attended the meeting on June 11 without
apparent invitation by the Union, and that she uttered threats of economic reprisal
and made other coercive statements strikingly similar to those which brought her
and the Respondent before the Board in the earlier proceeding. Chitwood also told
the assemblage that she was being paid overtime by Greenberg for attending the
meeting. Chitwood then engaged in an angry colloquy with Gene Smith, during
which she berated the latter for his attendance at the meeting because he was a new
employee and had not worked for Respondent long enough to learn that President
Greenberg was "a wonderful person" and to become acquainted with the other offi-
cials of the Company, and in the course of which she attempted to strike Smith.
10 311 U.S 72
13 Inasmuch as Respondent commenced operations at its plant in Dallas, Texas, in 19:11,
It is apparent that Chitwood was one of its most senior employees
12 See 310 F 2d 58, 60.
13 There is nothing in the record to indicate when Chitwood reverted from the status of
supervisor to "ordinary" employee.
DAL-TEX OPTICAL COMPANY, INC. 1323
Chitwood also told the assembled employees that Greenberg had obtained a verbal
agreement from other optical employers in the area pursuant to which employees
who were discharged for union activity would be denied employment by these
employers for a 2-week period. During her attendance at the meeting, Chitwood
informed the employees that "she was going to remember all the names of the
employees that attended the meeting ." It is also uncontroverted that, prior to the
commencement of work on the morning of June 12, Chitwood was observed by
employee Tucker as she pointed out Leslie Jacobs and Herbert Jones, who had
attended the meeting the day before, to Vice President Stein.
It is undenied that, on the morning of June 12, Union Representative Crabtree
sent a registered letter to the Board's Regional Office, with a copy to President Green-
berg, in which the former advised that the Union had begun another organizational
drive at the Respondent's plant, which set forth the names of employees who had
attended the meeting on June 11 and who were then selected to serve on the orga-
nizing committee, and which indicated that Chitwood had stated at the meeting that
she was being paid overtime by Respondent to attend, that supporters of the Union
would be discharged, and that they would be unable to find employment in the indus-
try because of an agreement between Greenberg and other optical manufacturers.
Despite the letter, the receipt of which Respondent does not deny, the Respondent
took no steps to disavow or repudiate Chitwood's acts or conduct.
On the basis of the foregoing, I conclude and find that Chitwood was no "ordinary"
employee in the sense that Greenberg sought to portray her. Because of her previ-
ous incursions upon the statutory rights of employees when she occupied the status
of a supervisor at the plant, her service to Respondent as an observer at the Board
election in 1961, and her assignment and direction of employees in the dispatch
department, I find that Respondent's employees had reasonable cause to believe that
Chitwood was acting for and on behalf of the Respondent when she appeared at the
meeting on June 11 and uttered the statements which Crabtree, Jacobs, and Smith
attributed to her. I also find that Respondent was apprised of Chitwood's conduct
by the Union's letter of June 12, and took no action to disavow or repudiate that
conduct. Accordingly, by standing mute, I find that Respondent ratified and adopted
Chitwood's statements and conduct, and thereby knowingly reaped their coercive
rewards.14 I therefore conclude and find that, on June 11, 1964, Respondent vio-
lated Section 8 (a) (1) of the Act by engaging in the surveillance of its employees at
union meetings , and by threatening employees that they would be discharged for
assisting or joining the Union, that they would be denied employment by other optical
companies in the area because of their engagement in protected, concerted activities,
and that the plant would be closed if the Union was successful in its organizational
campaign.
Gene Smith was employed by Respondent in April 1964, and was discharged on
June 12 of that year, solely because, as Respondent asserts, he complained to supe-
riors who were not his supervisors about certain work procedures. Smith worked
in the layout section under the supervision of Dan Wall where he hand-cut lenses.
After Smith made the initial cut on the lenses, they were conveyed to the edging
department, which was supervised by Arthur Liske, where additional operations
would be performed. Thereafter, they were returned to Smith who would conclude
his work upon them. According to Smith, it was important that the work of his lay-
out section and that of the edging department be synchronized to avoid a pileup of
lenses in either area, and Liske and Wall had devised a system to prevent this. Smith
testified that, on June 5, Liske informed Smith "That if we had any trouble with the
system, whatsoever, and all, for me to come to him and let him know and he would
straighten it out and in other words, not just sit back and let it mount up."
Smith first learned of the Union's campaign on the morning of June 10, 1964, when
he met some union representatives at the entrance to Respondent's parking lot and
received a leaflet from them. He stated that he observed Vice President Stein viewing
the scene from a plant window. That evening, Smith signed a union authorization
card at home and gave it to a union representative on his return to work on June 11.
On June 11, Smith noticed that the number of lenses which his layout section received
had vastly increased. As his supervisor, Don Wall, was absent from work on that
date, Smith sought out the counsel of Arthur Liske because Smith did not know with
whom he should consult regarding lenses which were conveyed to his section. Smith
was not immediately able to contact Liske, so the former sent a note to Liske in a
tray of lenses which was being conveyed to Liske's department in which Smith wrote,
11 See The Coachman's Inn, 147 NLRB 270.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"I was told to send the trays in small numbers-I have-if you want to send them
in large numbers-I can-I received a stack of 38 & one of 14 a few minutes later-
let me know if you want these in small number as previously arranged or in the
same way they were given to me-I'm sure it would be appreciated." About an hour
later, Liske walked by Smith's work station and the latter asked Liske whether he had
received the note. Liske replied that he had, "but that it was not his department's
fault." When Smith explained that he was unaware of this, Liske stated, "Well,
I [Smith] have no right to write him any note or anything like that, and it was not
his department's fault and that was that."
After the end of his work shift, and, as recounted above, Smith attended the union
meeting on June 11 and engaged in a series of angry exchanges with Cornelia Chit-
wood, during which Chitwood berated him for attending the meeting. When Smith
reported for work on the morning of June 12, he noticed that his timecard had been
removed from its accustomed place A few hours later, he was summoned by Wall
and the latter informed Smith that "he was sorry but he was going to have to let
me go." Smith inquired as to the reason for his discharge, and Wall replied,
"Because I had overstepped my bound talking to Arthur Liske." On cross-examina-
tion by Respondent's counsel, Smith was shown a written warning notice dated
June 9, 1964, signed by Wall, which recited that Smith had violated company rules
because he "sent note with a stack of jobs to different department and complained
of the way he received his work instead of going to his supervisor Employ [sic]
was still in training and seemed slow in his work." Smith asserted that this was the
first time that he had seen such a warning notice, and denied that he had sent his
note to Liske on June 9.
Don Wall testified that he was absent from the plant on June 11, and that when
he returned on June 12, Arthur Liske informed him that Smith had left the layout
section on June 11 and had gone to the edging department to complain to Liske
about the work, and that Smith was discharged for this reason. Wall then claimed
that Smith was discharged on June 12 "because he was under the training period„
he left the department and went to another supervisor complaining about his work.
He was discharged mainly for irritation in the whole department. He was told not
to leave the department." Finally, Wall proclaimed that Smith was terminated
because "He was not working any, he was just fooling around," and then added the
further reason that Smith "was just a poor employee." According to Wall, he had
seen the note which Smith sent to Liske on June 9 and this prompted him to give
Smith a written warning notice which recited that Smith had violated company rules
by sending the note and which stated that Smith "was still in training and seemed
slow in his work." Wall further testified that he instructed Smith, when the latter
was first employed, not to leave his section, although Respondent's work rules pro-
vide that "All employees shall remain in their own departments except during meal
or coffee time, or excused by his immediate supervisor, unless it is in relation to his
or her job." [Emphasis supplied.] Wall concluded his testimony by stating that he
did not know that there had been a union meeting on June 11; that be had never seen
Smith wearing a union button; that he was unaware that Smith was active in or had
joined the Union; and that he did not have any conversations with Cornelia Chitwood
concerning the Union.
The testimony of Arthur Liske rounds out this episode. He had a conversation
with Smith on the same date he received Smith's note in which the latter "said the
work is not coming through like it should to him and I told him that was not my busi-
ness. He should go and see his supervisor about that That is all I talked to him.
That is all the dealings that I ever had with him." Liske testified that he was not
angry with Smith because the latter had sent a note along, and did not suggest to
Wall that Smith be discharged for doing so. Liske denied telling Smith that he
should come to Liske if he had any difficulties or needed advice.
Gene Smith impressed me as a sincere young man who earnestly sought to be an
asset to Respondent's business operations, and I credit his testimony. Based thereon,
I find that, on June 5, after Liske and Wall had developed a system for the orderly
conveyance of lenses between their respective departments, Liske instructed Smith
to inform him of any difficulties encountered in the use of the system. On June 10,
Smith obtained a leaflet from a union organizer at the plant gate. On June 11, while
Wall was absent from the plant, Smith encountered production difficulties which, in
accordance with Liske's prior instructions, prompted Smith to send a note to Liske
seeking advice in the matter and, on the same day, Smith spoke to Liske about the
subject and was told to speak to Smith's superiors about it. Smith's testimony is
uncontroverted that, at the conclusion of his work on June 11, he attended the union
DAL-TEX OPTICAL COMPANY, INC. 1325
meeting where he engaged in heated exchanges with Chitwood, whom he had pre-
viously met at the plant. During these exchanges, Chitwood remarked that he
should not have attended the meeting because he was a new employee who had not
had sufficient time to become acquainted with Respondent's officials, and Chitwood
attempted to strike him when the latter asked Chitwood to "shut up" so that he could
listen to the union representative discuss the Union's organizational aims. I have
theretofore found that Respondent, through Chitwood, engaged in an unlawful act
of surveillance by her attendance at the meeting, and otherwise interfered with the
statutory rights of its employees. As Smith proved to be Chitwood's severest antago-
nist at the meeting who provoked her to anger and attempted violence, and as Chit-
wood had known Smith because of their dealings at the plant in the past, I deem it
reasonable to infer from all of the circumstances that Chitwood reported his attend-
ance and utterances at the meeting to representatives of Respondent and, for this
reason, Smith was discharged on the following morning. I am fortified in this con-
clusion by the implausible testimony of Wall concerning the reason for Smith's
termination.
Despite Respondent's contention that Smith was dismissed solely because he had
circumvented Wall to complain to Liske, Wall commenced to dance a testimonial
quadrille. At the outset, he assigned this reason for Smith's separation from
Respondent's employ. He then explained that Smith was terminated for the addi-
tional reasons that the latter "was not working any, he was just fooling around";
that "he [Smith] was discharged mainly for irritation in the whole department"; and
that Smith actually "seemed slow in his work," although Wall did not illuminate
this record with a single supportable instance of such misconduct. Then, in an
attempt to bolster his testimony that Smith's discharge was precipitated by his con-
tinued disobedience to Wall's instructions which forbade counseling with supervisors
outside the department, rather than because Smith attended the union meeting, Wall
swore that he read the note which Smith had sent to Liske on June 9, and that, as
a consequence thereof, he issued a warning notice to Smith on that date. According
to Wall, he learned from Liske on June 12 that Smith had once more consulted with
Liske on June 11 and this circumstance triggered the discharge. However, Wall's
testimony in this regard gains no credible support from Liske's, for the latter averred
that he received the note and had the conversation with Smith concerning production
procedures on the same date, which is fixed in the record as June 11. In light of
Liske's version of the pertinent events, as well as Smith's testimony that he had never
received a written warning notice during his tenure of employment, I am convinced
that Wall's testimony concerning the notice and the reason for Smith's discharge is
a product of contrivance. I therefore find that, sometime after the union meeting
on June 11, Respondent was apprised by Chitwood of Smith's attendance and utter-
ances at the meeting and discharged him on the following morning for this reason.
By doing so, I conclude that the Respondent thereby violated Section 8(a)(3) of
the Act.
Robert Hicks worked in the shelloff department under the supervision of David
Coates, and Leo Senders was his leadman. He was employed in 1961 by Respondent,
and was discharged on June 11, 1964, under circumstances to be detailed hereinafter.
Hicks' duties consisted of pulling eyeglass lenses which were mounted on metal blocks
and handing them to a fellow employee for polishing or fining. The lenses would
then be taken to the adjacent edging layout department, which is supervised by Don
Wall, with whom Hicks had daily contact during the course of his work. Hicks first
learned of the Union's attempt to organize Respondent's employees on the morning
of June 9 while he and four fellow employees were having lunch in his car on
Respondent's parking lot. He obtained union authorization cards from a union
organizer at the plant gate which he distributed to the individuals in his automobile.
As Hicks proceeded to sign the authorization card, using the roof of his vehicle for
support, he noticed that Wall was observing this activity from a plant window some
50 feet away.
On June 11 he reported for work with a union membership card on his person.
His supervisor, Coates, was not at work that day. About 9 a.m., while he was
exhibiting the card to his fellow employees, leadman Senders approached, looked at
the card, and left the area At 10:30 a.m., Senders appeared at Hicks' work station
and requested the latter's assistance. When Hicks told Senders, "Just a minute, let
me finish these hot jobs," Senders replied, "No, you are not, you are going with me."
Hicks followed Senders to the office of President Greenberg. Greenberg was not
present, and Senders proceeded to summon him. When Greenberg arrived, he dis-
missed Senders and escorted Hicks into the office where he told the latter, "You can-
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not follow orders ." Hicks asked for an explanation , but Greenberg merely repeated
his statement and instructed the personnel manager to draw up Hicks' final paycheck.
Greenberg concluded the conversation by stating , "We do not need anyone around
here who cannot follow orders ." Hicks explained that he had been given specific
instructions by Supervisor Coates that "hot jobs" were always to be given priority
over other work, and that it would have taken only 30 seconds to complete the hot
job on the morning of June 11 when Senders requested his assistance . He denied
that Senders had made any other requests for aid that morning and denied that he
had ever received any warning notices from the Respondent in the 3 years of his
employment . Hicks further testified that he was the only employee in his depart-
ment who displayed a union membership card on June 11.
Senders testimonially portrayed his version of the events on June I1 leading to
Hicks' discharge as follows. During Coates' absence, Senders was in charge of the
shelloff department which had approximately nine employees . On the morning of
June 11, Senders ' work began to pile up with the result that he asked Hicks to help
out. Hicks ignored the request, so Senders performed the chore himself. Sometime
later, Senders again instructed Hicks to assist in eliminating the work overload, but
Hicks once more declined to do so. When this occurred a third time that morning,
Senders could tolerate it no longer and directed Hicks to accompany him to Green-
berg's office where Hicks was discharged . On cross-examination by the General
Counsel , Senders initially claimed that this was not the first occasion on which Hicks
was insubordinate , that "I have quite a little trouble with this person , I do not know
why. He was good-he was a good worker in the beginning and later on , I do not
know, something happened ." According to Senders , Hicks became a "bad worker"
when "he stopped obeying orders ," a circumstance which developed "maybe five or
six weeks before" his discharge . With this development , Senders informed Coates
that "Hicks do not want to listen to me" and also told Greenberg that "I have one
person [Hicks ] with me which I would like to see something done, either talk to him
and get him straightened out and if not to replace him." However, when pressed on
this issue , Senders made the remarkable confession that he had "no trouble whatso-
ever" with Hicks prior to his discharge, and that he had never had any arguments
with Hicks . Finally, Hicks' testimony that Senders observed the former displaying
his union membership card to fellow employees on the morning of June 11, and that
Hicks informed Senders that the former was working on a "hot job" when the
request for assistance was made, stands undenied.
Coates testified that, sometime in April 1964 , Senders complained that he was
having "a bit of difficulty-trouble with several of the employees at this particular
time ." As a consequence , Coates assembled the employees and instructed them that
Senders was the leadman in the department and they were to follow his orders.
Coates conceded that he did not single Hicks out on this occasion for any disobedi-
ence of Senders ' instructions , and he did not individually warn Hicks for such con-
duct. Coates readily admitted that a "hot job" in the shelloff department had priority
over any other type of work , that Senders was aware of this priority classification of
work , and that Coates had instructed his employees to give preference to these jobs
over all others.
Concluding this phase of the case, President Greenberg stated that , on the morning
of Hicks' discharge , Senders reported that he had refused to follow orders after being
instructed to perform a specific job on several occasions . Greenberg summoned
Hicks and inquired as to the reason for the latter's refusal to perform the work
assigned to him by Senders. Hicks replied that "he was following orders. He was
trying to follow orders , but he wanted to do a certain thing first ." According to
Greenberg , he again asked Hicks the reason for his disobedience and, when Hicks
failed to reply, Greenberg discharged him. There is nothing in Greenberg 's testi-
mony to support Senders' assertion that he had previously complained to Greenberg
about Hicks' disobedience to orders.
Based upon uncontroverted testimony , I find that Hicks signed a union authoriza-
tion card in Respondent 's parking lot on June 9 and that , on the morning of June 11,
Senders observed Hicks exhibiting his union membership card to his fellow employees
in the department. Later that morning, Senders asked him for assistance to which
Hicks replied , "Just a minute , let me finish these hot jobs." It is undisputed that
"hot jobs" possessed an absolute degree of priority in the department , that Coates
had instructed the employees to accord this priority to them, and that Senders was
fully apprised of this. I credit Hicks' testimony that he could have finished the hot
job in 30 seconds, and that this was the only request that Senders made for help on
DAL-TEX OPTICAL COMPANY, INC. 1327
that day. I find that, when Hicks was escorted into Greenberg's office, Greenberg
was aware that Hicks was in the midst of working on "hot jobs" when he was
approached by Senders for assistance, in view of Greenberg's testimony that Hicks
stated "He was trying to follow orders, but he wanted to do a certain thing first."
[Emphasis supplied.] I do not credit Senders' testimony that Hicks had been dis-
obedient in the past, in view of his admission that he had "no trouble whatsoever"
with Hicks prior to the latter's discharge, and because of the lack of any testimonial
corroboration by Coates or Greenberg that Hicks had engaged in any such prior
misconduct 15
In short, I find it incredible that Greenberg would discharge Hicks for "failing to
follow orders" when both Greenberg and Senders knew that Hicks was engaged in
the higher duty of working on "hot jobs," a duty which was demanded by Respond-
ent in preference to all other work. Rather, I deem the inference reasonable and
proper that, when Senders learned that Hicks had obtained a membership card in
the Union on the morning of June 11, the former conveyed this intelligence to
Greenberg and that Greenberg discharged Hicks solely for this reason I therefore
find and conclude that Hicks' discharge offended the provisions of Section 8(a)(3).
Christa Cross, another alleged discriminatee, was employed by Respondent on
November 16, 1962, at a starting rate of $1.15 per hour At the time of her dis-
charge on July 2, 1964, she was making $1.50 per hour and had been given a wage
increase as late as May 21, 1964. Cross worked as an edger in the edging depart-
ment under the supervision of Arthur Liske, which department employed approxi-
mately 43 employees, and Benny Fay Bagwell and Raymond Keith were her leadmen
In the performance of her duties, Cross operated two machines which edged such
items as cataract lenses, plastic lenses, and shell top lenses. Because these items
were designed to fit into metal frames, special attention had to be paid to their edging
and Cross was the only 1 of the 14 edgers designated to perform this work. In the
course of her duties, Cross received lenses and their frames in a metal tray, accom-
panied by the appropriate doctor's prescription. After the lenses had been edged,
Cross initialed the prescription and they would then be taken to a handstoner for the
performance of further work upon them. Cross and her fellow edgers were required
to keep a tally of the number of lenses edged each hour, and this tally was made on
a slip of paper. At the end of the hour, an employee named Lela Page would visit
Cross' work station and copy down on a production report the number of lenses
which Cross had written on her tally sheet. According to her uncontroverted testi-
mony, after these hourly transcriptions were made on the report, Cross would
deposit the sheet in a waste basket at the end of the day to avoid littering. Cross'
normal, hourly production ranged from 30 to 38 pairs of lenses. The employee-
production reports from June 29 through July 2, 1964, were introduced into evi-
dence by Respondent 16 These exhibits show that, on June 29, Cross' hourly pro-
duction of lens pairs were 34, 37, 30, 35, 33, 35, 24, 38, and 37. For June 30, the
report discloses that Cross' hourly production was 34, 34, 32, 37, 35, 42, 38, 40,
and 42 lens pairs. For the following day, July 1, the figures were: 36, 38, 38, 39,
37, 43, 38, 37, and 48. On July 2, her report indicates that Cross produced 62 pairs
for the first hour of work, and thereafter she produced 41, 31, 39, 33, 32, 32, 37, and
22 pairs, respectively.
Cross first became aware of the Union's attempt to organize Respondent's employ-
ees on June 10, 1964, when the Union began distributing leaflets to the employees.
She testified that on June 22, Bagwell, the leadman over the edging machine opera-
tors, approached her work station and asked Cross how the latter felt about the
Union. Cross replied that she "did not know anything about the Union, that my
husband told me to stay out of the Union because it means only trouble." Bagwell
commented that it was "the best thing to do." Later that day, Bagwell questioned
"For some unaccountable reason, Respondent introduced into evidence the written
claim which Hicks made to the Texas Employment Commission on June 12, 1964, in
support of his request for unemployment compensation. The claim recites that "I was
discharged by Leo Sanders [sic] leadman because he said I had failed to obey orders
He did not let me explain that David Coates, foreman, had given me orders to do what
I was doing before he left the place. And since Coates is over Sanders I thought I
had better finish what he told me to do This has not happened before and Coates
normally gave me orders but was not at plant when I was released. No prior trouble
of this kind " I accept this evidence as corroborative of Hicks' assertions that he had
not previously been disobedient to Senders and that he was laboring on "hot jobs" when
he was asked to aid Senders
16 These are Respondent's Exhibits Nos. 11(a) through 11(f).
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cross as to her knowledge of the union sentiments of another employee in the
department. On June 24 Cross signed a union authorization card. On the morning
of July 2 she reported for work at her usual hour wearing a union button on her
smock. Cross' testimony that this was the first occasion on which she wore a but-
ton, and that she was the only employee in her department who did so, is undenied.
When she commenced work on that day, Bagwell approached, picked up some of
the lenses which she had edged the previous day, and stated that her work was
"bad" because it was off-axis and off-center. Cross then received a visit from her
superior, Arthur Liske, who also checked her work but did not speak to her. About
8:30 a.m., Cross was summoned by Bagwell to Liske's office where Liske handed her
a violation notice and requested that she read and sign it. The notice recited that
Cross had violated company rules by "Unwillingness to follow instructions and
supervision. Continued harrassing [sic] and rough language towards fellow employ-
ees, after strong verbal warning 6/23/64. Poor work quality. Bad attitude towards
supervisors. Campaigning for IUE during company hours." Cross testimonially
denied that she had received a verbal warning about the use of foul language on
June 23, denied that she solicited for the Union during working hours, and denied
that she had ever been insubordinate. Cross refused to sign the violation notice,
and Liske directed her to return to work. During the balance of the day, Bagwell
and leadman Keith checked Cross' work on approximately 12 occasions and com-
plained that her work was of poor quality. According to Cross, the number of
checks which the leadman made on July 12 was inordinate because, theretofore,
they had inspected her work infrequently and only when she requested that they do so.
On the afternoon of July 2, Cross was edging a cataract plastic lens when it
slipped in her machine because the air pressure in the machine's compressor had
dropped to zero. Previously, when this occurred, Cross would inform Bagwell who
would make out a work order for the repair of the machine On this occasion,
however, Cross reported the matter directly to Liske because "Bagwell was after me
all day" and she "was scared to ask him to do me a favor." At the end of the work-
day, Cross proceeded to the timeclock to punch out and noticed that her timecard
was missing . Bagwell instructed her to proceed to Liske's office to receive her pay-
check. Upon entering the office, Liske handed her a regular paycheck and a final
check, and asked whether Cross desired to know why she was being discharged.
Liske then stated that Cross "was fired for cheating on my production," and remarked
that "they watched me all day." When Cross inquired, "How come after two years
I worked here all of a sudden I was cheating on my production?" Liske replied,
"Well, we watched you all day." In her testimony, Cross categorically denied that
she had falsified her production records on July 2 or at any other time, and denied
that her handstoner had to await on her production that day. Cross further testi-
fied that the production report for July 2, which constitutes Respondent's Exhibit
No. 11(f), falsely reflected her production for the first hour as amounting to 62
pairs of lenses, and neither contained that figure nor her assertedly lesser production
figures for the afternoon hours, when it was submitted by Respondent to the Texas
Employment Commission to contest her claim for unemployment compensation 17
She also averred that, on the date of her discharge, neither Liske, Bagwell, nor Keith
told her that she had been cheating on production until the moment she was actu-
ally terminated. It is also Cross' testimony that she had never previously been criti-
cized by any representative of Respondent for the quality or quantity of her work
until the date of her discharge, and that she had never previously been accused of
falsifying her production records.
With respect to the duties and responsibilities of Bagwell, Cross testified without
contradiction that Bagwell generally was in charge of the edging machine operators
and that "he sets up machines. He sizes machines and he helps you out if you have
a problem on your machine." Cross recounted that, when she received her last
wage increase on May 21, 1964, Bagwell told her that he had recommended the
raise, that he personally handed it to her, and that Bagwell informed Cross a week
in advance that the raise would be forthcoming. It is Cross' further undenied tes-
timony that Bagwell independently exercised the authority to grant time off to her
that he disciplined a fellow employee named Ellie Lipe for hanging up patterns
which Cross used in the course of her work, and that, "When there was a lot of mis-
takes made, he [Bagwell] would come and talk to you about it and tell you about the
mistakes you made the day before and tell you to watch them."
17 Cross testified that she was denied unemployment compensation because she could
not controvert Respondent's production report for July 2, 1964, inasmuch as she deposited
her daily tally sheets in a wastebasket to avoid littering.
DAL-TEX OPTICAL COMPANY, INC. 1329
To support its defense that Cross was discharged for cheating on her production
rather than because of her union activity, Respondent's counsel called Liske, Bag-
well, and Keith to the stand. The candor of none of these witnesses impressed me.
Moreover, their testimony is so fraught with internal contradictions and inconsist-
encies as to fail to measure up to the most minimal standards of plausibility. Thus,
Liske testified that he discharged Cross on July 2 solely because she had cheated on
her production records and that he first learned of this conduct at 1 p.m , when
Bagwell and Keith "reported to me that her production was not correct." Accord-
ing to Liske, he did not personally investigate this matter, but relied exclusively
upon the information which Bagwell and Keith supplied to him, and at this point in
time he ordered the leadmen to make a check of Cross' actual production. Despite
the fact that this knowledge first came to him at 1 p.m., Liske testified that the
leadmen reported back at 12:05 p in. that, for the hours from 12 to 4 p.m., Cross
actually produced 12, 19, 16, and 24 pairs of lenses rather than the 33, 32, 32, and
37 pairs which she reported on the employee-production report. Liske next testi-
fied that he spot checked the quality of the work which the edgers were turning out
on the morning of July 2 and he, alone, noticed that Cross was producing inferior
work, whereupon he instructed Bagwell to attempt to correct the situation, which
Bagwell did. According to Liske, Cross then began to turn out better work, but
"to do that she had to-she must have slowed down because he [Bagwell] found that
the production lust dropped off. And that is why I told my leadmen to check the
amount of work." Finally, Liske asserted that his reason for ordering the check
was because he had become "suspicious" of Cross' production when he noticed that
the handstoner to whom Cross supplied work was standing around idle, although
Liske admitted that he did not know whether Cross had cheated on her production
on the morning of July 2.
Liske's assertion that Cross' production had fallen off during the morning hours
and that this circumstance prompted the check is hardly supported by documentary
evidence submitted by the Respondent itself. This evidence, which represents the
employee-production report for July 2, shows that, for the first hour of work on
that day, Cross produced 62 pairs of lenses. When confronted with this report,
Liske stated that an operator such as Cross could produce over 60 pairs per hour
and that "it would not surprize me." However, Liske then admitted that the figure
of 62 pairs with which Cross was credited for the first hour on July 2 was wrong
and that it actually represented her production for the first hour and a half that day.
The three remaining hourly periods before Cross' production check show that she
produced 41, 31, and 39 pairs, respectively. Respondent does not contend that these
production figures falsely represented Cross' production on that morning, and,
according to Respondent's own exhibits, they fairly portray Cross' production on
June 29 and 30 when no complaint was made concerning the quality or quantity of
her work. Moreover, these hourly figures do not differ in material degree from
those of Cross' fellow employees for that day When questioned as to whether
Cross had ever cheated on production in the past, Liske attempted to fence with
counsel and intimated that Cross might have done so but that he had never probed
to find out. Liske then conceded that any previous shortages on Cross' part would
have been uncovered because of the nature of Respondent's quantity control proce-
dures and that no such shortages had been evidenced in the past.
Liske acknowledged that Cross was a "good operator" during her tenure of
employment and that he had given her several wage increases because "she was giv-
ing me fair production" during that period. He also acknowledged that he had
neither checked on nor complained of the quality of Cross' production in the past
Liske further acknowledged that he was aware that Cross was active on behalf of
the Union when he first observed her wearing a union button. In light of Cross'
undenied testimony that she first wore a union button in the plant on the morning
of her discharge, it is apparent that this knowledge came to Liske at that time.
Regarding the warning notice which he gave to Cross on the morning of July 2,
Liske testified that he had been informed by Bagwell that Cross had used "rough
language" on the previous day, had refused to obey orders, and had turned out infe-
rior work. Liske also testified that he had given Cross a verbal warning about the
use of foul language on June 23, but then admitted that the warning was occasioned
by Cross' needling of a fellow employee. Although the written warning of July 2
lists "Campaigning for IUE on company hours" as part of Cross' misconduct, there
is nothing in Liske's testimony which remotely suggests that she had done so. Round-
ing out Liske's testimony, he stated that it was part of Bagwell's duties to report to
Liske if the employees in the department "get out of line," that Bagwell possessed
7 8 9-7 3 0-6 6-v o 1 15 2-8 5
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the authority to correct minor breaches of discipline, and that Bagwell also "helps
train the people and he helps me check work and he helps me see that the work gets
out."
Benny Fay Bagwell testified that he was a leadman in the edging department and,
that on the morning of July 2, he had occasion to check on Cross' work because its
quality was poor, during which he pointed out her mistakes and assisted her on cor-
recting them Sometime before the lunch break, which extends from 11.30 a m. to
12:05 p.m , he noticed that Cross' handstoner had nothing to do and this occasioned
him and Keith to check upon her production. The investigation started at 1 p.m.
and disclosed that Cross' actual production amounted to 12, 16, 19, and 24 pairs of
lenses rather than the figures which she reported to Lela Page. Bagwell claimed
that he reported this discrepancy to Liske, although there is nothing in his testi-
mony to indicate that Liske had ordered Bagwell to conduct the check or that a
report was to be made to Liske. Bagwell further testified that he did not inform
Cross of the production investigation and did not report to her any discrepancies
which he uncovered. Bagwell stated that, on July 1, Cross' production was below
par and she used course language. However, he offered no evidential support to
Liske's testimony that Cross had failed to follow instructions or disobeyed her supe-
riors, or that Cross had in any manner campaigned on behalf of the Union. Finally,
Bagwell testified that he had not spoken to Cross concerning the Union.
Raymond Keith, a leadman in Cross' department, averred that on the morning of
July 2 he and Bagwell were instructed by Liske to make a check on Cross' production,
At first, Keith testified that this inspection was prompted by the fact that Cross'
handstoner had nothing to do, a circumstance which Keith observed "early that
morning." When questioned as to whether this was the sole reason for making the
check, Keith made the curious statement that, "Well, the fellow with the figures, the
score was not coming out the same like it should." Keith also testified that he and
Bagwell were directed to conduct the check "early in the morning," which contra-
dicts the testimony of Liske and Bagwell that the check was ordered at 1 p in., and
that, as a result, he observed that Cross produced less than the figures which appeared
on her production report. Moreover, Keith's testimony fails to establish that Cross
had refused to follow supervision or disobeyed her supervisors, or that she in any
fashion campaigned for the Union. Keith finally testified that he and Bagwell occa-
sionally discussed with Liske which employees should receive wage increases, and
that, on occasion, he and Bagwell attended supervisors' meetings
I credit the testimony of Christa Cross, who impressed me as an honest witness,
and find that on June 22, 1964, Bagwell interrogated her concerning her feelings
about the Union as well as the union sentiments of a fellow employee. I further
find that, prior to her discharge on July 2, she had never been criticized by any
representative of management for poor production or for cheating on her production
reports. I find that, when she reported to work on July 2, she wore a union button
in the plant for the first time and, for the first time, Liske and Bagwell became aware
of her union adherence. I also accept Cross' testimony that she did not falsify her
production records on the afternoon of July 2 and that the production which she
reported to Lela Page was true and correct, and I discredit the contrary assertions
of Liske, Bagwell, and Keith I find that, when Liske and Bagwell learned that
Cross had cast her lot with the Union, they searched for a pretext upon which to
discharge her because of this, and seized upon a transparent scheme to pin the label
of dishonesty upon her. The transparency of the scheme is accentuated, not only
by the conflicting reasons and conditions which they assigned for conducting the
production check so precipitously after learning that the Union had enlisted Cross'
support, but by the written warning which Cross received from Liske shortly after
she reported for work on July 2. The warning recites that Cross had engaged in
misconduct by campaigning for the Union on company time, yet there is absolutely
nothing in the testimonial assertions of Liske, Bagwell, or Keith to support this
recitation, save the recitation itself. Accordingly, I find that the Respondent dis-
charged Cross, not because of any irregularities in her production reports, a reason
which I am convinced was fabricated, but because she supported and assisted the
Union in its organizational campaign by wearing a union button in the plant By
the foregoing conduct, I conclude and find that Respondent thereby violated Sec-
tion 8(a) (3) of the Act.
The General Counsel contends that Bagwell is a supervisor within the meaning of
the Act and that, on June 22, 1964, he interrogated Cross concerning her union
activities and those of a fellow employee in violation of Section 8(a)(1) of the Act
T`-e Pesnondent argues that it is not responsible for this conduct because Bagwell
neither possessed nor exercised the requisite statutory indicia of supervisory author-
DAL-TEN OPTICAL COMPANY, INC. 1331
ity. It is undisputed that Bagwell independently granted time off to Cross, disci-
plined employees in his department, and effectively recommended Cross for a wage
increase. Moreover, he attends supervisory meetings and, in collaboration with
Liske and Keith, determines which employees merit wage increases. In view of the
foregoing, I conclude and find that Bagwell is a supervisor within the meaning of
Section 2(11) of the Act, that Bagwell's interrogation of Cross on June 22, when
viewed in the entire context of this case, constituted interference, restraint, and
coercion within the purview of Section 8(a)(1) of the Act, and that the Respond-
ent is chargeable with this misconduct.
Janetta Louise Darland first began working for Respondent in 1959 and quit her
job early in 1961. She returned to work for Respondent in January 1962, and her
employment was terminated on July 23, 1964. The General Counsel contends that
Darland was discharged on the latter date because of her activities on behalf of the
Union. Respondent claims that Darland voluntarily quit. Darland was employed
in the wholesale department under the supervision of Bernard Bernbaum, who char-
acterized her as "one of my better workers." She had received two wage increases
since her reemployment, the last for assuming additional duties in the department.
Darland admittedly had a persistent record of reporting late for work prior to June 27,
1964, when she went on vacation, and she received a written warning notice from
Bernbaum on June 24 concerning her tardiness on that date. Darland's problem
stemmed from the fact that she and her husband drove to their respective places of
employment in the same car and, as her husband's starting time was later than hers,
she had difficulty getting to work at the appointed hour. On the date she went on
vacation, Darland informed Bernbaum that she would attempt to resolve her trans-
portation problem during her vacation period and that, if she was unable to do so,
she would "probably quit."
Darland returned from vacation on July 6 and reported for work on time that
morning. She told Bernbaum that she had made transportation arrangements to
insure against tardiness and Bernbaum expressed satisfaction upon the receipt of this
news Darland joined the Union on July 6 She testified t(Zat. on the following
morning, she reported for work wearing a union button and that three other employ-
ees in the department also began to wear such a button On July 8, the employees
were individually summoned to Bernbaum's office where they were instructed "that
there would be no more goofing in the bathroom, to smoke. We were no longer
allowed to talk at our work stations, and that the work was to be gotten out faster
and that we were to literally scramble for it. He did not intend to assign us any-
thing, we were to hop and run to get it done." This admonition was again addressed
to the employees at a later date According to Darland, there were periods during
the day when she and her fellow employees would catch up with their work When
this occurred, they would occupy their time by sitting and conversing, or by visiting
the restroom to smoke (smoking at their work stations was prohibited), and Bern-
baum had never previously interdicted this activity.
Darland further testified that she reported for work on time from July 6 to 22.
On July 23, she remained home because of an illness and instructed her husband to
telephone Bernbaum and report her absence. That afternoon, Darland's husband
informed her that he had forgotten to place the call, whereupon Darland telephoned
Bernbaum. In the ensuing conversation, Darland told Bernbaum that she was ill
and explained that she had not called earlier because she understood that her hus-
band would do so. According to Darland, Bernbaum replied "I am sorry, Louise,
you are too late. You have been relieved or released " Darland testified that she
first learned of Respondent's rule which required that employees report their absence
due to illness on or before noon on the date of the absence when she appeared before
the Texas Employment Commission on July 24, 1964.18 She concluded her testi-
mony by stating that she had failed to comply with this rule on occasions in the past
without suffering any disciplinary consequences
Bernard Bernbaum supervises the employees in the wholesale department. He
testified that Darland had a consistent record of tardiness in the morning for periods
ranging from 20 to 40 minutes, and that he had cautioned her on numerous instances
concerning the matter, including the issuance of a written warning on June 24, 1964.
However he tolerated Darland's tardiness during this period because she was one of
his "better workers" and he "did not want to lose her " Bernbaum acknowledged
ie Respondent's work rules provide that employees must telephone the Respondent be-
tween the hours of 8:30 a in and noon whenever they intend to absent themselves from
work Darland testified that she had received a copy of these rules when she was first
employed in 1959 but did not read them.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he became aware that Darland was active on behalf of the Union when she
commenced wearing a union button, although he was not certain as to the exact
date on which this occurred. He testified that, on July 15, 1964, he adjusted Dar-
land's reporting time "to accommodate" her timely attendance although Bernbaum
initially asserted that the adjustment was made to facilitate work schedules, and
there is nothing in the record to show that Darland was tardy or had difficulty in
getting to work on time when she returned from vacation on July 6. When the
adjustment was made, Bernbaum stated that he informed Darland that, "If you are
going to be late or if you are going to be absent, I will consider your action that you
quit." On July 23, Darland failed to appear for work. Late that afternoon, he
received a telephone call from Darland in which she stated that her husband had
neglected to report her absence for that day, but did not assign any reason for the
absence and Bernbaum did not solicit any reason. Bernbaum responded that "this
is just too bad, because you and I have gone over this thing, we have changed the
hours to suit your purpose, and this is it. I just consider that you quit." Bernbaum
further explicated the reasons for Darland's discharge by averring that, "With the
reassignment of hours, she still did not come to work or report in and I-therefore-
as I stated previously with our understanding as to how we were to work; I consid-
ered her action as being she just was not interested and she was quitting." Bernbaum
went on to state that Darland must have been aware of Respondent's rule that
absences were to be reported by noon on the date of the absence, because he had
informed her of the requirement when she was reemployed in 1962.19
Under questioning by the General Counsel, Bernbaum conceded that he would
never discharge an employee who was ill and failed to account for this absence by
calling him before noon on the day of the absence, and that he had not previously
warned Darland for failing to make a timely report of an absence due to illness.
Despite the fact that Bernbaum stated that "I do care about my girls," he acknowl-
edged that he made no inquiry into the reason for Darland's absence.
With regard to his meeting with employees concerning their visits to the restroom,
Bernbaum testified on direct examination that the meeting occurred "around the latter
part of June, I believe." According to him, he called the meeting "because the girls
would be off the floor unnecessarily-well, let me say that they would be off the floor
from five to fifteen minutes." Inasmuch as the restroom was a "two-seater," as
Bernbaum put it, "there is no reason for four, six or eight girls to congregate in the
ladies room and just sit there and stay in there or spend their time in there." Bern-
baum further stated that there were times when his employees were without work to
perform, but this was "not very often." On cross-examination, Bernbaum conceded
that the meeting was held on July 8 (the day after Darland began wearing the union
button) and that there were "many times" when his employees had slack periods in
the course of the workday during which they were permitted, prior to July 8, to visit the
restroom to smoke or to converse until work arrived. He stated that on July 8 he for-
bade more than two girls to enter the restroom at the same time, assigning as the rea-
son therefor that the room contained a "two-seater," but then admitted that no such
restriction had been imposed prior to that date even though the room had the same
limited seating capacity. When questioned as to whether the new work rules were
prompted by the display of union buttons by employees in the department, Bernbaum
replied in the negative and stated that he first observed employees wearing buttons
in the latter part of July. He then acknowledged that he could not be certain as to
the exact date. When queried as to whether he would reemploy Darland, Bernbaum
replied, "Why not, as far as I personally am concerned," but he then quickly retorted
that this was not to be construed as an offer of reemployment.
With respect to the restroom episode, President Greenberg testified that he was
the one who instructed Bernbaum to curb the congregation of employees in the rest-
room. According to Greenberg, "I would imagine that even prior to the organiza-
tion by the Union, I have complained to Mr. Bernbaum, at least, twenty times about
our girls congregating in the restrooms. Mr. Bernbaum would call the girls together;
for two or three days I would see an improvement; then, it would go right back to the
way where it was before." Greenberg did not deny that the wholesale department
experienced slack periods, but stated that, "it may be a personal opinion, but I always
feel that there is work in any one of my departments at any one given time."
Listening to Bernbaum's testimony, and observing his demeanor while on the stand,
I became convinced that he was basically disposed to speak the truth but could not con-
sistently or completely bring himself to do so. This was particularly evidenced by
19 Darland was already serving her first tour of employment when Bernbaum was hired
by Respondent to supervise the wholesale department in which she worked
DAL-TEX OPTICAL COMPANY) INC. 1333
the efforts of Respondent's counsel to rehabilitate his testimony when it collided with
Respondent's asserted defense to Darland's loss of employment, and by the implausi-
ble reasons which he assigned for her termination. In spite of Respondent's assertion
that she had quit her employment, Bernbaum, at the outset of his testimony, was
quick to profess that Darland had been discharged by him. After being shown a copy
of her termination notice of July 23 to "refresh" his recollection, Bernbaum then con-
fided that Darland had voluntarily relinquished her employment by failing to report
her absence on that date. Finally, Bernbauin conceded that Darland had "quit" her
job because he had determined that she was not worthy of continued employment, and
that he affirmatively informed her of this circumstance.
Although Darland had a consistent record of tardiness prior to July 7, 1964, the
date on which she first wore a union button, Bernbaum found no substantial discontent
with her work habits. During that period, she had been assigned additional duties
and had received two wage increases , and Bernbaum candidly admitted that she was
a "good worker" whose services he did not wish to lose. However, with the display
of a union button on her smock, Bernbaum's attitude changed. He admitted that, on
July 8, the day following the appearance of the button, he instructed the girls in his
department that they no longer could congregate in the restroom to smoke or con-
verse during slack periods which occurred "many times" during the workday. On
July 15, Bernbaum adjusted Darland's work hours to "accommodate" her, although
Darland's testimony is uncontroverted that she informed him on July 6 that she had
made satisfactory transportation arrangements to insure her timely presence at the
plant at her original reporting hour, and despite the fact that she had no history of
tardiness after that date. Bernbaum also conceded that he had never discharged an
employee who failed to make a timely report of an absence due to illness, and that
he "cared" about the well-being of his girls. In view of his expression of policy and
compassion, I find it implausible that Bernbaum would have failed to inquire into
the reason for Darland's absence, if in fact she did not inform him of the reason,
and to so precipitously discharge her, in view of the esteem in which he held her
working abilities which manifested itself as late as the hearing in this matter when
Bernbaum asserted that he would reemploy her "as far as I personally am concerned."
I am convinced that Darland's straightforward testimony possesses the quality of
credibility and I find that, when she telephoned Bernbaum on July 23 to report her
absence, she informed him that she was absent because of illness. Inasmuch as Dar-
land, under Respondent's self-professed policy, would not have been terminated for
such an absence, I conclude and find that Respondent utilized this circumstance as a
pretext and that Darland actually was separated from Respondent's employ because
she assisted the Union by wearing a campaign button in the plant. Respondent's,
conduct in this regard is violative of Section 8(a) (3), and I so find. I also find, based
on the credited testimony of Darland, which was generally corroborated by the tes-
timony of Bernbaum himself, that, on July 8, after Bernbaum noticed the upsurge of
union activity in his department, he forbade the employees to converse in the depart-
ment and restricted their use of the restroom during slack work periods, thereby cur-
tailing privileges which the employees had theretofore enjoyed. I conclude that, by
so doing, Respondent inhibited the rights of employees guaranteed in Section 7 of the
Act, and consequently violated Section 8(a)(1),20
Kathryn Kleinberg was also employed in the wholesale department under Bern-
baum's supervision. Originally hired in January 1962, she was terminated on Au-
gust 29, 1964, at which time she was one of the most senior employees in the depart-
ment. So far as this record stands, Kleinberg had never once been criticized for her
work performance or personal conduct during the entire course of her employment.
Kleinberg joined the Union on June 10, and commenced to wear a union button while
at work either in late June or early July. Prior to July, Kleinberg devoted the major
portion of her working time to "redos," which constitute written requests from cus-
tomers to have a particular order reprocessed, and which have priority over other
work. As the departmental work force began to dwindle between June and August 29,
either because employees quit or, like Darland, were discharged, Kleinberg
assumed additional duties. In the middle of July, she was also assigned to handle
"inquiries," which are written customer requests for an acknowledgement of an order
and an inquiry as to the reason for the delay in filling the order. Additionally, she
was designated to operate an IBM billing machine, and she took dictation. On or
about July 26 Margaret Nobles was transferred into the department. Nobles, who is
the wife of Respondent's personnel manager, was then a supervisor in the stenciling
department and, at one lengthy span of time in the past, had worked for Bernbaum
20 See Hoffman-Taff, Inc., 135 NLRB 1319, 1323-1325.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the department. According to Bernbaum, he "was left with a hole in the depart-
ment" with the termination of Darland, and consequently Nobles was assigned to the
department as a "leadwoman" to assist him, although her duties were the same as
those of any rank-and-file employee. This assignment was made directly by President
Greenberg due to her previous experience there.
Events abided until August 20 On that date, according to Kleinberg's testimony,
she noticed that Nobles was commingling redos and inquiries which were kept in sep-
arate bins, which caused a consequent slowdown in Kleinberg's work. Kleinberg
reported this happenstance to Bernbaum with the suggestion that perhaps Nobles
might not be too familiar with the work. A day or two later, Kleinberg observed
Nobles remove some inquiries from the bin and place them in her pocket. Kleinberg
did not comment on this occurrence because she believed that Nobles intended to
make temporary use of the material and then return it A few days thereafter, Klein-
berg was summoned to Bernbaum's office, where Bernbaum showed her the same
inquiries and stated that Nobles had informed him that Kleinberg had thrown them
into the trash Kleinberg denied that she had done so, whereupon Bernbaum
remarked "that he could not understand how my work had been slipping since I had
been so efficient in the past." Kleinberg repeated that she had not thrown the inquiries
in the trash, to which Bernbaum replied that "that was still no excuse."
Klemberg further testified that, later that day, she noticed that certain items from
an alphabetical file of inquiries which contained certain important information and
which should not have been removed, had been taken out of the file by Nobles. Klein-
berg reported this to Houey, the assistant supervisor, who suggested that she draft a
sign reading "Please see me before taking anything out of the file," which Klemberg
did. However, a short time later, Nobles again removed material from the file. Klein-
berg once more reported this to Houey, who told her to go directly to Bernbaum.
When Klemberg apprised Bernbaum of Noble's actions, Bernbaum told her "not to
worry about it." The next day, Nobles informed Kleinberg that the former decided
to maintain a detailed record to check on Kleinberg's handling of the redos and
inquiries. Kleinberg relayed this information to Bernbaum, who suggested "that I
should go out and set up a book of my own to protect myself." After Kleinberg
reported for work on the morning of August 28, Nobles approached her work station
and stated that Kleinberg had made an error in an inquiry and that Bernbaum had
requested that she correct it. Klemberg replied that no error had been committed
and explained why this was so, to which Nobles countered, "Well, we will see about
that " Later that same day, Nobles deposited a "lost in the mail inquiry" on Klein-
berg's desk and asked the latter to look into the matter. Because of the crush of
work, Klemberg informed Nobles that she would attend to the matter as soon as
possible, at which point Nobles picked up the inquiry and angrily redeposited it on
Klemberg's desk. When Kleinberg persisted in deferring action on the inquiry,
Nobles carried it to Bernbaum's office. A short time later, Kleinberg was directed to
report to Bernbaum where he told her "that I was going to have to learn to cooperate
with Mrs. Nobles" Kleinberg stated that she would be more than happy to do so
if the cooperation would be reciprocal, whereupon Bernbaum warned that she would
have to cooperate "or else." Klemberg asked whether he intended to discharge her.
Bernbaum stated, "No, but I can force you to quit." Kleinberg responded that she
would not quit but that "If you want me out of here you will have to fire me "
On the afternoon of August 28, just prior to punching out, Kleinberg was instructed
by Bernbaum to give Nobles the remaining inquiries and explain the extent to which
Kleinberg had processed them because Nobles would work a few hours later that
afternoon According to Kleinberg, she fully complied with these instructions. The
following morning, she was called into Bernbaum's office where the latter displayed
the tray of inquiries which she had given to Nobles on the preceding day. Bernbaum
accused her of failing to follow instructions, in that she did not inform Nobles of the
point at which she had ceased processing the inquiries, and remarked that "You are
going to have to cooperate with Margaret or else I am going to suspend you for two
days." Kleinberg protested that she had followed his instructions, that she had
apprised Nobles concerning the inquiries, and that she was willing to cooperate with
Nobles. At this juncture, Bernbaum stated that he was suspending her for 2 days.
As she preceded out of the office, Klemberg observed Bernbaum with a pink slip in
his hand walking in the general direction of the front office where he engaged in a
conversation with Vice President Stein and Nobles When the conversation ended,
Bernbaum informed Kleinberg that he had changed his mind and that he was dis-
charging her instead of suspending her With that, Kleinberg left the plant.
Bernbaum testified that Nobles was brought into his department at the end of
July to work at the mail table and assist with the redos and inquiries. On or about
August 22, he instructed Kleinberg, at the end of her workday, to verbally report to
DAL-TEX OPTICAL COMPANY, INC. 1335
Nobles where to resume with the inquiries on that day "instead of just writing a note
and saying, Mr. Bernbaum said to carry on." Nobles informed him that Kleinberg
had not verbally reported but instead gave the former a note "saying that Mr. Bern-
baum said to follow this up." On a Tuesday, which apparently was August 25, Bern-
baum brought this circumstance to Klemberg's attention. Klemberg was absent from
work on August 26 and 27. On Friday, August 28, Bernbaum brought the matter up
again, and again instructed Kleinberg to make a verbal report to Nobles. On the
following morning, Nobles told him that Kleinberg had left a note and did not leave
any verbal instructions. Bernbaum testified that she saw the note and that it was
written by Klemberg. He became irritated because Klemberg had disregarded his
orders, and consequently summoned her to his office to inquire into the reason for her
disobedience. Klemberg stated that she would not work with Nobles, but did not
give any reason therefor When Bernbaum insisted that Kleinberg must work with
Nobles and obey his orders, she again declined to do so and remarked, "I do not
care if you fire me." Bernbaum warned that this attitude would result in her suspen-
sion, but Kleinberg expressed indifference. Because he had become angry, Bern-
baum decided to terminate the discussion. According to Bernbaum, he determined
that it would be profitless to abate a decision any longer, so he again summoned
Kleinberg and once more inquired whether she would work with Nobles Receiving
a negative reply, he discharged her. Bernbaum admitted that he had never warned
Kleinberg for failing to cooperate with other employees in the past, stating that "this
was a matter that came up in the last week." He also stated that Kleinberg's activity
on behalf of the Union was "obvious" to him because she had worn a union button
in the plant He further acknowledged that he had been informed by Vel Sizemore, a
former employee in the department, that she had relinquished her employment because
she could not get along with Nobles because of "incompatibility." 21
Nobles testified that, from the time she was transferred into the department until
Kleinberg was discharged on August 29, she worked very closely with the latter and
"We had no problems." When questioned concerning Klemberg's failure to provide
her with the requisite information at the end of the day, Nobles stated, "What I think
happened there, was the inquiry situation which we were trying to get under better
control-more of a reference of trying to find the work. She was told to check with
me at the end of the day before she left on what her procedures had been and what
she had done." Nobles was then queried as to what precisely were Klemberg's short-
comings in this respect She replied that "The only thing that she did on a Friday
afternoon, she left-she brought me a tray of inquiries with just a note with instruc-
tions to give to me. She did not tell me what she had done with each individual one
as she was suppose to have done. I ask Mr. Bernbaum what I was to do with them
and he said that [Kleinberg] was suppose to have instructed me so I could follow up
what she had done to get the information we needed. She did not do that " Despite
her testimony that she received only one such note from Kleinberg, and that the "only
thing that [Kleinberg] did on a Friday afternoon" was to give her the note, Nobles
recanted and testified that she reported Kleinberg's shortcomings on "several occa-
sions." Finally, Nobles testified that she had not placed any inquiries in her pocket
or otherwise had secreted them.
I credit the testimony of Kathryn Kleinberg, much of which is undemed, not only
because she impressed me as a truthful witness, but because the testimony of Bern-
baum and Nobles is too contradictory and implausible to warrant acceptability.
Klemberg had been employed by Respondent for more than 21/2 years and had never
received a warning, either written or verbal, concerning her work performance or her
personal conduct, until she was discharged This was indeed a remarkable employ-
ment record when contrasted with the record of other employees whose discharges
were brought in issue in this proceeding. On July 23, 1964, her fellow employee Dar-
land was discharged by Bernbaum for the reason, as I have heretofore found, that
she assisted the Union by wearing a campaign button at work. Shortly thereafter,
Nobles was transferred into the department to fill in the void which resulted from Dar-
land's departure. From July 26, the date of Nobles' accession, to August 20, Klein-
berg and Nobles apparently toiled in harmony because there is no record evidence of
any friction between them However, Nobles' testimony that she and Kleinberg
"had no problems" at any time prior to the latter's discharge is belied by the uncon-
troverted testimony in this record. Thus, Kleinbeig testified without contradiction
that, on August 20, she observed Nobles commingling redos and inquiries, and she
reported this fact to Bernbaum. Kleinberg then testified that, a day or two later,
n The complaint alleged that Sizemore was discharged by Respondent on July 27, 1964,
because she joined and assisted the Union. At the hearing, this allegation was withdrawn
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she noticed that Nobles had removed some inquiries from the bin and place them in
her pocket. Nobles testimonially denied that she had done so. However, it is undis-
puted that , a few days thereafter , Kleinberg was summoned into Bernbaum 's office
where he showed her the same inquiries and was told by Bernbaum that he learned
from Nobles that Klemberg had thrown them into the trash. Despite Kleinberg's
denial of the accusation, Bernbaum made the surprising comment that "that was
still no excuse" and remarked that "he could not understand how my work had been
slipping since I had been so efficient in the past." It is further uncontroverted that,
a short time later, Kleinberg noticed that Nobles had moved material from an alpha-
betical file, contrary to standard procedure, which she reported to Bernbaum and
was told "not to worry about it." In light of Nobles' undenied aberrations, she was
either an occupational "goofball" or was singled out by Respondent to play a leading
role in a plot to rid itself of Kleinberg because of her union adherence. In view of
Nobles' status as a "leadwoman" who had worked in the department for many
years, and the events which subsequently transpired, I am hard-pressed to believe
that she was the former. It is undenied that, on August 27, Nobles informed Klein-
berg that the former intended to maintain a detailed record to check on Kleinberg's
doings in the department, and that Kleinberg reported this to Bernbaum. Bernbaum
then made the remarkable suggestion that she "should go out and set up a book of
my own to protect myself." It is also uncontroverted that, on August 28, Nobles
criticized Kleinberg for failing to attend to a "lost in the mail inquiry" for which the
latter was called into Bernbaum's office and warned that he would force her "to
quit" unless she learned to cooperate with Nobles. Kleinberg made it clear that she
would not leave voluntarily and that Bernbaum would have to discharge her.
With respect to the circumstances surrounding her discharge, I credit Kleinberg's
testimony that she was instructed by Bernbaum on August 28 to explain to Nobles
how far she had progressed with the inquiries that day, and that she faithfully did so.
According to Bernbaum , he first told Kleinberg to give Nobles verbal instructions
on the subject about a week earlier but, instead , she sent along a note . Despite a
warning concerning this procedure , Kleinberg again sent Nobles a note on August 28.
On the following morning, she was discharged for refusing to cooperate with Nobles
and for failing to provide the latter with verbal instructions . On the other hand,
Nobles testified that she had received only one note from Kleinberg and this occurred
solely on Friday , August 28 , although Nobles then proclaimed that this disobedience
to instructions occurred on "several occasions ," an exaggeration in which even Bern-
baum did not venture to indulge 22
Janetta Louise Darland credibly testified that a total of four employees, including
herself, wore union buttons in the wholesale department. With her discharge on
July 23, and the departure of Vel Sizemore on July 27, only two employees, includ-
ing Kleinberg, openly continued their union activity. Based upon the credited and
uncontroverted testimony, I am convinced that Respondent injected a deliberate
irritant, in the form of Margaret Nobles, into Kleinberg's work-a-day life in the hope
that it would succeed, as it did in the case of Vel Sizemore, in making conditions for
this known union adherent so unbearable that she would quit her employment. But
Kleinberg quickly demonstrated that she was made of stronger fibre and refused to
be pressured into quitting. When this became evident to Respondent, I find that it
seized upon a pretext to set her up for discharge . I conclude that Kleinberg's dis-
charge was occasioned, not because of any refusal on her part to "cooperate" with
Nobles, but because Respondent was bent on ridding itself of a dolorous, union
thorn-in-side, and that her discharge violated Section 8(a)(3) of the Act.
Ernest Fuentes was hired by Respondent in June 1963 and was discharged on
August 13, 1964. He was employed in the surface department as a cylinder finer
under the supervision of Pierre Josserand, and David Johnson was his leadman.
Fuentes joined the Union on June 8, 1964, and, beginning on June 30 , he wore a
union button at work until the date of his discharge. According to Fuentes, 5 of the
16 employees in the department initially wore buttons on their smocks, but 2 subse-
quently removed them.
On August 9, 1964, Fuentes had some green onions at his work station which he
intended to eat with his lunch. He forgot to do so, and they remained near his
machines overnight. The following day, he received a warning notice from Johnson,
who told Fuentes that "eating candy out at the machines would be all right, but as
rd It is interesting to note that the Respondent , which maintained an extensive dossier
on its employees after the current union campaign began, as evidenced by Gene Smith's
note to Arthur Liske, for example, was singularly unable to produce any of the "notes"
which Kleinberg allegedly transmitted to Nobles
DAL-TEX OPTICAL COMPANY, INC. 1337
far as specifically onions, this was going a little bit too far." During this conversa-
tion, Johnson remarked that Fuentes "had been a pretty good boy up until this thing
had come up and that was it." Johnson did not explain what he meant by the phrase
"this thing had come up ." On the afternoon of August 12, Josserand assembled his
employees and announced that he would read them a memorandum which he had
prepared a week earlier , "but he saw that nothing had changed so he was going
ahead and read it." Josserand recited that "he did not want anybody to leave their
station or to talk to anyone for any reason whatsoever. If there were some lenses
that were to be corrected or checked to take it either to himself personally or to
David Johnson , no one else " Josserand also stated "from that day one [sic], Au-
gust 12, that he was going to be spot checking axes on the machine himself, personally,
and if he found any that were out of line, that he would take steps to correct this
matter himself ." At this juncture, Johnson interrupted and suggested that it might
be a good idea if the cylinder finers were required to check, clean , and load their
machines with lenses each afternoon so that they would be immediately ready for
production the following morning. Josserand agreed, and the suggestion was put
into effect that day.
Fuentes operated 3 machines which contained 12 axes and hence were capable of
grinding 12 lenses at a time. He testified that on the afternoon of August 12 he
cleaned, checked , and loaded his machines as the employees had been instructed to
do. When he reported for work on August 13, he noticed that his timecard was
missing. Johnson approached and told Fuentes to report to Josserand 's office. Upon
entering , Josserand informed Fuentes that the former had found that three out of
eight of the axes on Fuentes ' machine were out of line and that he "was not going
to put up with this any longer ." Josserand then directed Fuentes to return later for
his final paycheck . A brief argument ensued over Fuentes' entitlement to vacation
pay. As Fuentes prepared to leave the office, he told Josserand that the latter "was
already in enough trouble [with] the National Labor Relations Board," to which
Josserand retorted that "he knew that he would have to appear in Court and that
I could tell the National Labor Relations Board that anyone that he has ever fired
has never been hired back by him ." 23 According to Fuentes , he had never previously
been warned or reprimanded because the axes on his machines were out of line but
had, in fact , been complimented on his work.
Josserand testified that he discharged Fuentes on August 13 "For misconduct, spe-
cifically failure to follow very specific and explicit instructions regarding on-the-line
maintenance of machinery , specifically the proper alignment of the machine to make
sure that the machine would exactly reproduce the curve of the tool onto the lens."
With respect to the events leading to the discharge , Josserand stated that it was
Fuentes' responsibility to insure that his spindles were loaded and that the axes were
checked so that production could begin immediately in the morning . On the after-
noon of August 12, Josserand inspected Fuentes' machines and observed that six axes
were "definitely off." Josserand could not testimonially bring himself to state that
he had previously warned Fuentes concerning this matter , but stated that it was
"continuously stressed " to employees during the training period. When questioned
as to how he learned that Fuentes had improperly set the axes on August 12, Josse-
rand asserted that "It has been my policy for three years , and will continue to be my
policy in the future to perform routine inspections of machine to make sure that
they are properly aligned." However, Fuentes' testimony stands undenied that, on
August 12, Josserand announced to the employees that "from that day on , August 12,
that he was going to be spot checking axis on the machine himself, personally ....
[Emphasis supplied.]
Josserand further testified that he summoned Fuentes to his office on the morning
of August 13, informed him that the machines were out of alignment, and discharged
him for this reason. Fuentes denied that his machines were improperly aligned
because he had set them correctly the evening before, to which Josserand replied that
"I had not taken any hearsay statements from anyone . I was there , I actually checked
as In making this statement , Josserand was eminently correct. He had appeared in
an earlier Board proceeding involving the same parties ( 137 NLRB 274 ) in which Jos-
serand was alleged to have engaged in an unlawful act of surveillance of Respondent's
employees , and to have discriminatorily discharged two employees The Trial Examiner
who heard that case dismissed the complaint In its decision , the Board reversed this
dismissal and ordered the reinstatement of the two employees On appeal to the Fifth
Circuit Court of Appeals , the court refused to enforce the Board 's Order ( 325 F. 2d 78)
and the employees involved were not rehired
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them myself." Josserand acknowledged that he observed Fuentes wearing a union
button in the plant, and that he had told Fuentes when the latter was discharged that
he had never been required to rehire any employee whom he had discharged, which
statement was made in reference to proceedings before the Board
David Johnson was on the witness stand briefly. He was present on the morning
of August 13 when Josserand informed Fuentes that the latter had not properly
checked the machines on the preceding afternoon, and that Fuentes was being dis-
charged for this reason. Although Josserand was unwilling to testify that he had
previously warned Fuentes of this deficiency, Johnson displayed no such reluctance
and, according to him, Josserand had warned Fuentes "repeatedly about it." When
questioned as to whether he had tested Fuentes' machines with Josserand on the
preceding day, Johnson at first replied in the negative, stating that Josserand "got
another boy to help him check that. He was back there I was in the machine shop,
busy." Johnson then made the curious remark that "I did not want to take his word
(an apparent reference to the other `boy') for it and I went back and they were off."
I credit Fuentes' testimony because I consider his testimonial utterances more
forthright and plausible. Fuentes had been complimented on his work performance
and "had been a pretty good boy" until he enlisted in the tanks of the Union and
began wearing a union button in the plant on June 30. Fuentes testified that he had
never been warned or reprimanded for failing properly to align the axes on his
machines until the date of his discharge, and even Josserand failed to controvert this
testimony. On August 12, Josserand called a meeting of employees to instruct them
about their future work deportment and, for the first time, Johnson suggested a new
procedure for setting up the machines, a procedure which Josserand accepted with,
alacrity although there is no plausible explanation in the record as to the necessity
for such a procedure in light of past practices. The following morning, Fuentes was
discharged, assertedly for failing properly to align the axes on his machines, although
at no time did either Josserand or Johnson volunteer to show Fuentes the exact man-
ner or extent of his deficiency, a policy which Josserand pursued in the past with
respect to other types of work deficiencies, and although no announcement was made
by Josserand in his meeting with the employees on August 12 that a similar deficiency
would lead to discharge.
I am persuaded that, during the month of August, with an impending third Board
election the following month, Respondent realized that it still had two employees
in the surface department who persisted in wearing union buttons indicating their
continued adherence to that labor organization, and decided to do something about
it I find that, to accomplish Fuentes' discharge under the cloak of legitimacy, the
Respondent fabricated the ground of improper alignment of axes, a fault with which
Fuentes had never previously been charged. I conclude and find that Fuentes did
not improperly align the axes on his machines on August 12, and that the real reason
for his discharge the following day was due to his membership in and his assistance
to the Union. By effecting Fuentes' discharge, I find that Respondent violated Sec-
tion 8(a) (3) of the Act.
Finally, the General Counsel alleges that Respondent violated Section 8(a)(1) of
the Act by certain statements which David Johnson made to employee Henry Garcia.
Garcia was employed in the surface department in which Josserand was the super-
visor and Johnson was a leadman. Garcia testified without contradiction that he
requested and obtained permission from Johnson to absent himself from the plant
in order to take a physical examination for induction into the Armed Forces, and
that Johnson "will baul people out whenever the breakages are up or whenever bad
work is sent out." As heretofore found in connection with the discharge of Earnest
Fuentes, and based upon undenied testimony, Johnson effectively recommended the
change in working procedures to Josserand which triggered Fuentes' discharge, and
Johnson warned Fuentes about keeping green onions at his work station.
Garcia credibly testified that, on June 24, while he was wearing a union button
at the plant, Johnson approached, observed the button, and stated, "I see somebody
has been recruiting you." Garcia replied, "No, I was recruiting." Sometime later,
Johnson again visited Garcia and, pointing to the button, remarked, "Don't you know
you can get fired for wearing that button."
Johnson denied that he had any discussions with Garcia concerning the Union,
denied that he had interrogated Garcia concerning recruiting, and denied that her
told Garcia that the latter would be discharged for wearing the button I have here-
tofore discredited Johnson's testimony in connection with Fuentes' discharge, and
I perceive no reason to believe that his present denials in this connection were truth-
fully made. Respondent further contends that it is not responsible for Johnson's
DAL-TEX OPTICAL COMPANY, INC. 1339
utterances because he was not a supervisor within the meaning of the Act. I do not
agree. Based upon undisputed testimony, I find that Johnson possessed and exercised
the power to grant time off to employees, to discipline them, and effectively to recom-
mend changes in their work assignments, all of which constitute statutory indicia
of supervisory authority within the purview of Section 2(11) of the Act Accord-
ingly, I conclude and find that Respondent violated Section 8(a) (1) by the foregoing
conduct of Johnson.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act, I will recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act
Having found that Respondent discriminatorily discharged Gene Smith, Robert
Hicks. Christa Cross, Janetta Louise Darland, Kathryn Klemberg, and Ernest Fuentes,
I will recommend that Respondent offer them immediate and full reinstatement to
their former or substantially equivalent employment and make them whole for any
loss of pay they may have suffered by reason of the discrimination practiced against
them, by payment to them of a sum equal to that they would normally have earned
from the date of the discrimination to the date of offer of reinstatement, less their
net earnings during said period The backpay provided for herein shall be com-
puted in accordance with the Board's formula set forth in F. W. Woolwoi th Company,
90 NLRB 289, with interest thereon at the rate of 6 percent per annum in the man-
ner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
Because of the nature and extent of the unfair labor practices engaged in by
Respondent, which evince a continued attitude of opposition to the purposes of the
Act in general, I deem it necessary to recommend that Respondent cease and desist
from in any other manner infringing upon the rights of employees guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and conclusions, and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
I Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act
3 By discharging Gene Smith, Robert Hicks, Christa Cross, Janetta Louise Dar-
land, Kathryn Kleinberg, and Ernest Fuentes, thereby discriminating in regard to
their hire and tenure of employment, in order to discourage membership in and
activity on behalf of the above-named labor organization, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act
4 By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has also engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I recommend that Respondent , Dal-Tex Optical Company, Inc, Dallas,
Texas, its officers , agents, successors , and assigns, shall
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of International Union
of Electrical , Radio and Machine Workers, AFL-CIO, or any other labor organiza-
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of its employees , by discharging any employee or in any other manner discrim-
inating in regard to hire or tenure of employment , or any term or condition of
employment.
(b) Interrogating employees concerning their membership in and activities on
behalf of the Union , in a manner constituting interference , restraint , or coercion
within the meaning of Section 8(a)(1) of the Act; threatening employees with dis-
charge or other reprisals if they become or remain members of the Union or assist
that labor organization ; keeping union meetings under surveillance ; and instituting
changes in working conditions because employees join or assist the Union.
(c) 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 the above -named labor organization , 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.
2. Take the following affirmative action which I find is necessary to effectuate the
policies of the Act.
(a) Offer to Gene Smith , Robert Hicks, Christa Cross, Janetta Louise Darland,
Kathryn Kleinberg , and Ernest Fuentes, immediate and full reinstatement to their
former or substantially equivalent employment , and make them whole for any loss
of pay they may have suffered as a result of the discrimination against them, in the
manner set forth in the section of this Decision entitled "The Remedy "
(b) Notify the above-named individuals if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended , after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the 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 ascertain any
backpay due under the terms of this Recommended Order.
(d) Post at its plant in Dallas, Texas , copies of the attached notice marked "Appen-
dix." 24 Copies of said notice, to be furnished by the Regional Director for Region
16, shall, after being duly signed by a representative of Respondent, be posted by
Respondent immediately upon receipt thereof , and be maintained by it for a period
of 60 consecutive days thereafter , in conspicuous places, including all places where
notices to employees 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 Region 16, in writing , within 20 days from
the date of receipt of this Decision , what steps the Respondent has taken to comply
therewith 25
24 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order"
25In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , In writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Interna-
tional Union of Electrical , Radio and Machine Workers, AFL-CIO, or any other
labor organization , by discharging any of our employees or in any other manner
discriminating against our employees in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
LAURA JAYNE, INC. 1341
WE WILL NOT coercively interrogate our employees concerning their mem-
bership in and activities on behalf of the Union ; threaten our employees with
discharge or other reprisals if they become or remain members of the Union or
assist the Union; keep union meetings under surveillance ; or, institute changes
in working conditions because employees join or assist the Union.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor organi-
zations, or to join or assist International Union of Electrical , Radio and Machine
Workers, AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer Gene Smith, Robert Hicks, Christa Cross, Janetta Louise Dar-
land, Kathryn Kleinberg , and Ernest Fuentes immediate and full reinstatement
to their former or substantially equivalent employment and make them whole
for any loss of pay suffered as a result of our discrimination against them.
All of our employees are free to become or refrain from becoming members of
the above -named Union , or any other labor organization.
DAL-TEX OPTICAL COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Meacham
Building, 110 West Fifth Street, Fort Worth , Texas, Telephone No. Edison 5-4211,
Extension 2131 , if they have any question concerning this notice or compliance with
its provisions.
Laura Jayne, Inc. and International Ladies' Garment Workers
Union, AFL-CIO and Honesdale Dresses Association , Party to
the Contract . Cases Nos. 4-CA-3239 and 4-CA-3348. June 9,
1965
DECISION AND ORDER
On March 3, 1965, Trial Examiner A. Bruce Hunt issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Exam-
iner further found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint, and he recommended
the dismissal of these allegations. Thereafter, Respondent filed excep-
tions to the Trial Examiner's Decision and a supporting brief. The
Charging Party filed cross-exceptions and a supporting brief, and a
brief answering Respondent 's exceptions.
152 NLRB No. 139.