Eye Care

National Labor Relations Board - Board Decisions

Jun 30, 1988

289 N.L.R.B. 738 (N.L.R.B. 1988)

738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
David Vainio , H. Marie Vainio , Kevin Vainio and
Leonard Vainio, d/b/a Professional Eye Care
and d/b/a Eye Care and International Associa-
tion of Machinists and Aerospace Workers,
Local Lodge 88, affiliated with International
Association of Machinists and Aerospace Work-
ers, AFL-CIO and District Lodge 85, Local 88,
International Association of Machinists and
Aerospace Workers, affiliated with International
Association of Machinists and Aerospace Work-
ers, AFL-CIO. Cases 19-CA-18510, 19-CA-
18646, 19-CA-19043, and 19-CA-19067
June 30, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On September 1, 1987, Administrative Law
Judge Richard D. Taplitz issued the attached deci-
sion . The Respondent filed exceptions, a supporting
brief, and a motion to reopen the hearing; and the
General Counsel filed a brief in support of the
judge's decision and an opposition to the motion to
reopen. i
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, David
Vainio, H. Marie Vainio, Kevin Vainio and Leon-
ard Vainio, d/b/a Professional Eye Care and d/b/a
Eye Care, Butte and Missoula, Montana, its offi-
' The Respondent has moved to reopen the heanng to introduce into
evidence the final decision of the State of Montana Department of Labor
and Industry , Unemployment Insurance Board, regarding the unemploy-
ment claim of Leonard Dalasera We grant the Respondent's motion to
the extent that we take notice that the unemployment decision (already
entered into the record ) is now final There is nothing in the Respond-
ent's motion that requires reopening the heanng or adds probative value
to the unemployment compensation decision already considered by the
judge See Supreme Dyeing & Finishing Corp, 147 NLRB 1094, 1095 fn 1
(1964)
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent alleges in its exceptions that the judge was biased
against the Respondent After carefully reviewing the record, we find no
basis to support this claim
cers , agents , successors , and assigns , shall take the
action set forth in the Order.
Eduardo Escamilla, Esq., for the General Counsel.
Kevin Vainio, Esq., of Butte , Montana, pro se.
Gary A. Taylor, of Butte, Montana, for the Charging Par-
ties.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
These cases were tried in Butte, Montana , on March 26,
April 7 and 8, and June 30, 1987. The charge in Case 19-
CA-18510 was filed on August 4, 1986, by Local Lodge
88, International Association of Machinists and Aero-
space Workers (Lodge 88). A complaint issued in that
case on September 10, 1986, alleging that David Vainio
d/b/a Professional Eye Care violated Section 8(a)(5) and
(1) of the National Labor Relations Act (the Act). The
charge in Case 19-CA-18646 was filed on September 29,
1986, by District Lodge 85, Local Lodge 88, Internation-
al Association of Machinists and Aerospace Workers (the
Charging Parties). An order consolidating those two
cases and an amended complaint issued on November 5,
1986. That amended complaint was further amended on
December 19, 1986. The charge in Case 19-CA-18646
was amended on January 2, 1987, and a second order
consolidating cases and second amended consolidated
complaint issued on March 9, 1987, against David
Vainio, H. Marie Vainio, Kevin Vainio and Leonard
Vainio, d/b/a Professional Eye Care and d/b/a Eye
Care (Respondents). The charge in Case 19-CA-19043
was filed by the Charging Parties on April 7, 1987, after
the hearing on the other cases had begun. On April 7,
1987, a motion to consolidate all three cases and to
amend the consolidated complaint was granted. The
complaint as then amended alleged violations of Section
8(a)(1), (3), (4), and (5) of the Act. After the hearing on
those cases had closed the General Counsel moved to
reopen the hearing in Cases 19-CA-18510, 19-CA-
18646, and 19-CA-19043 and to consolidate the com-
plaint in those cases with a new complaint that had
issued on May 12, 1987, in Case 19-CA-19067. The com-
plaint in Case 19-CA-19067, which was based on a
charge filed by the Charging Parties on April 15, 1987,
against David Vainio, H. Marie Vainio, Kevin Vainio
and Leonard Vainio, d/b/a Professional Eye Care (Pro-
fessional Eye Care) alleged an additional violation of
Section 8(a)(1), (3), and (4) of the Act. On May 15, 1987,
I issued an order to show cause why the motion should
not be granted. No opposition to the motion was heard
and the General Counsel's motion was granted by order
dated June 1, 1987. The hearing resumed and was com-
pleted on June 30, 1987.
Issues
The primary issues are
1. Whether Professional Eye Care (which is located in
Butte as well as a number of other places in Montana) is
289 NLRB No. 95
PROFESSIONAL EYE CARE
a single employer with Eye Care (which is located in
Missoula, Montana).
2. Whether the laboratory employees at Eye Care in
Missoula comprise an independent bargaining unit or
whether the bargaining unit for the laboratory employees
of Professional Eye Care in Butte should be extended to
cover the Eye Care laboratory employees.
3. Whether Professional Eye Care discharged and Eye
Care refused to hire Matt Grigsby because of his union
activity.
4. Whether David Vainio, one of the owners of Pro-
fessional Eye Care and Eye Care, assaulted John Flynn
because he testified in these proceedings.
5. Whether Professional Eye Care discharged Leonard
Dalasera because of his union activity and because he
gave testimony in Board and Board-related proceedings.
6. Whether Professional Eye Care reduced the number
of hours that employees worked without bargaining with
the Union.
7. Whether Professional Eye Care bargained with the
Union concerning a decision to move certain operations
to Billings , Montana.
8. Whether Professional Eye Care bargained with the
Union about a decision to lease or close its Butte lab.
9. Whether Professional Eye Care refused to give the
Union information necessary for bargaining.
10. Whether Professional Eye Care refused to bargain
in good faith with the Union.
All parties were given full opportunity to participate,
to introduce evidence, to examine and cross-examine wit-
nesses , to argue orally and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
the General Counsel and the Respondents.
On the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Professional Eye Care is an optical business with an
office and place of business in Butte, Montana. It is
owned and operated by David Vainio, H. Marie Vainio,
Kevin Vainio, and Leonard Vainio (the Vainio family)
and is engaged in the business of preparing, repairing,
and selling eyeglass lenses and contact lenses. The
Vainio family has operated Professional Eye Care and
other affiliated business enterprises, with common own-
ership, directors, management , and supervision; has for-
mulated and administered a common labor policy affect-
ing employees in such enterprises; has common bank ac-
counts and purchasing accounts; has shared common
premises and facilities; has provided services for and
made sales to each other; has interchanged personnel
with each other; and has held themselves out to the
public as a single, integrated business enterprise. Profes-
sional Eye Care and its affiliated enterprises constitute a
single, integrated business enterprise and a single employ-
er within the meaning of the Act. During the 12 months
immediately preceding issuance of complaint, Profession-
al Eye Care and its affiliated enterprises collectively had
gross sales of goods and services valued in excess of
739
$500,000 and sold and shipped goods and provided serv-
ices to customers outside of Montana or to customers
within Montana who were themselves engaged in inter-
state commerce by other than indirect means , of a total
value in excess of $50,000. Professional Eye Care and its
affiliated enterprises also meet the Board's jurisdictional
standards regarding the inflow of goods and materials
into Montana. Professional Eye Care is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The above findings are based on allegations of the
complaint in Case 19-CA-19067 which were admitted by
Professional Eye Care. Respondents acknowledge that
Professional Eye Care, as well as a number of affiliated
enterprises owned by the Vainio family, constitute a
single employer and are subject to the Board's jurisdic-
tion. However, Respondents consistently maintained that
Eye Care in Missoula is not such an affiliated concern
and is not a single employer with or successor or alter
ego of Professional Eye Care. The General Counsel has
introduced no evidence to indicate whether Eye Care in-
dependently meets the Board's discretionary jurisdiction-
al standards. Therefore, jurisdiction depends solely on
whether the General Counsel had established a sufficient
nexus between Eye Care and Professional Eye Care to
demonstrate that jurisdiction should be taken over Eye
Care because of Professional Eye Care's impact on inter-
state commerce. For the reasons set forth in detail
below, I find that Eye Care is a single employer with
Professional Eye Care and jurisdiction must therefore be
asserted over both.
Local Lodge 88, International Association of Machin-
ists and Aerospace Workers, AFL-CIO (the Union) is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On April 24, 1985, after an election held by the Na-
tional Labor Relations Board in Case 19-RC-11136, the
Board certified the Union as the collective-bargaining
representative of the employees of David Vainio d/b/a
Professional Eye Care in the following bargaining unit:
All laboratory employees employed by David
Vainio d/b/a Professional Eye Care at the facility
located at 225 South Idaho , Butte , Montana; but ex-
cluding all office clerical employees, guards and su-
pervisors as defined in the Act.
The Union's organizational drive led not only to the cer-
tification but to a plethora of litigation. On May 13,
1986, Administrative Law Judge Clifford H. Anderson
issued his decision in David Vainio, H. Marie Vainio,
Kevin Vainio and Leonard Vainio, d/b/a Professional
Eye Care, Cases 19-CA-17267, 19-CA-17445, 19-CA-
17511, 19-CA-17569, 19-CA-17570, 19-CA-17833, and
19-CA-17913 (JD-(SF)-52-86, Butte, Montana). Judge
Anderson found that Professional Eye Care violated Sec-
tion 8(a)(1) of the Act "by interrogating employees about
their union activities and sympathies and the sympathies
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of other employees , by soliciting employee complaints
and grievances and promising to remedy such griev-
ances, by threatening employees with closure of the fa-
cility or the subcontracting out of work if employees se-
lected the Union as their collective -bargaining represent-
ative, by harassing employees because of the employees'
union activities or because of their testimony in Board
representation hearings, by informing its employees that
it would be futile to choose the Union as [their] collec-
tive-bargaining representative , by threatening to bargain
in bad faith , and by changing the shifts and holiday pay
of employees because of their support for the Union."
He found that Professional Eye Care violated Section
8(a)(3) and (1) of the Act by discharging employees Bev-
erly Riley and Leonard Dalasera because of their union
activities or because of the union activities of other em-
ployees.' Judge Anderson further found that Profession-
al Eye Care violated Section 8(a)(5) and (1) of the Act:
a. By transferring personnel and work from its
Butte , Montana lab to its Idaho Falls , Idaho facility
without notice to the Union and without affording
the Union an opportunity to bargain concerning the
decision and the effects of such removal.
b. By unilaterally changing employees ' terms and
conditions of employment without first bargaining
with the Union in good faith regarding those
changes.
c. By engaging in a course of conduct designed
to undermine the Union and to avoid reaching
agreement with the Union , including dilatory com-
munication and scheduling of meetings with the
Union , failure to conduct bargaining in a business-
like fashion, making regressive proposals while fail-
ing and refusing to supply specific information con-
cerning those proposals or current conditions of em-
ployment of unit employees.
Judge Anderson recommended that the Board issue a
broad order that would prohibit Professional Eye Care
from in any manner interfering with , restraining, or co-
ercing employees in the exercise of rights guaranteed
under Section 7 of the Act.
In addition, Judge Anderson found that Professional
Eye Care did not violate the Act as alleged in certain al-
legations of the complaint . One of those allegations was
that Matt Grigsby was discharged because of his union
or protected activity. Professional Eye Care reinstated
Grigsby as part of a settlement agreement , after further
litigation in the United States District Court and the
Ninth Circuit Court of Appeals. The reinstatement pre-
ceded the issuance of Judge Anderson's decision and it
was the understanding of Professional Eye Care that
Grigsby was to be reinstated pending that decision.
However , Professional Eye Care kept Grigsby in its
employ after Judge Anderson 's decision issued. Gary
Taylor, business representative for the Union, credibly
testified that in July 1986 he had a conversation with
David Vainio in which Vainio said that he had no more
trouble with Grigsby since he came back to work but
I Dalasera was reinstated thereafter It is alleged in the instant case
that he was once again unlawfully discharged
that Grigsby's job would be phased out when the lab in
Missoula started. Subsequently Grigsby was discharged
from Professional Eye Care. The complaint in the instant
case alleges that Professional Eye Care discharged him
and Eye Care in Missoula refused to hire him because of
his union activity.
Exceptions were filed to Judge Anderson's decision
and the Board has not yet ruled in those cases. Although
I have taken official notice of Judge Anderson's decision,
in the absence of resolution by the Board, I have not
based my findings in this case on any of his findings. The
findings set forth below are based solely on the testimo-
ny of witnesses who appeared before me and the docu-
mentary evidence that was introduced in this case.
B. The Single Employer and the Single Bargaining
Unit Issues
1. Factual findings
The Vainio family, through Professional Eye Care,
which is also known as American Eye Care, owns and
operates approximately 16 eye care centers located
throughout Montana.2 The Vainio family consists of op-
tometrists David and Leonard Vainio, Attorney Kevin
Vainio, and their mother H. Marie Vainio. Glasses are
fitted at all Professional Eye Care centers. However
before Eye Care in Missoula began operating a laborato-
ry in early October 1986, substantially all the laboratory
work flowing from the Professional Eye Care stores was
performed in Professional Eye Care's laboratory in
Butte, Montana. Two types of work were done at that
Butte laboratory. One involved surfacing in which
curves were ground into the lenses . That work required
expensive heavy-duty equipment such as generators, cyl-
inder machines, and cutters. The other type of work in-
volved finishing and hardening. That consisted of laying
lenses out according to prescription, marking them,
edging them, shaping them to the shape of the frame
and, regarding plastic lenses, hardening and scratch-coat-
ing them. Shortly before the Eye Care Missoula labora-
tory opened, the surfacing equipment that had been lo-
cated in Professional Eye Care's Butte laboratory was
moved to the Missoula lab. Butte had duplicate finishing
machinery and one set of that machinery was also sent to
Missoula. At the time the Eye Care Missoula laboratory
opened, it was capable of performing both surfacing and
finishing work while Professional Eye Care's Butte labo-
ratory, which no longer had the surfacing equipment,
was only capable of doing the fmishing work. Surfacing
has to be performed on about 25 percent of the jobs, as
most lenses come from stock and only have to be fin-
ished. Butte now works with stock lenses and finishing
while Missoula works with stock lenses , surfacing, and
finishing.
At the time the Missoula laboratory opened, there
were four employees working at Professional Eye Care's
Butte laboratory. They were Matt Grigsby, Mike King,
Leonard Dalasera, and Richard Delano. One of those
employees, King, ceased working for Professional Eye
2 The addresses are set forth in R. Exh. 2.
PROFESSIONAL EYE CARE
Care in Butte and began working for Eye Care in Mis-
soula. Missoula is approximately 120 miles from Butte.
As is discussed in detail below, Matt Grigsby was dis-
charged by Professional Eye Care and was refused em-
ployment by Eye Care. For the reasons also set forth
below, I have found that the discharge by Professional
Eye Care was not violative of the Act but that Eye
Care's refusal to hire him was a violation. In analyzing
whether a majority of the employees at the Eye Care lab
desired union representation, Grigsby must be considered
an employee of Eye Care. The two other employees of
Professional Eye Care in Butte were, at the time of the
opening of the trial, still employed by Professional Eye
Care. a
The Eye Care lab in Missoula opened with three or
four employees.' The normal employee complement in
the Eye Care lab is four or five and at the time of the
trial there were four employees, one of whom was King
who previously had worked at Professional Eye Care.
All four of the employees work in the lab and none are
supervisors. The Eye Care facility in Missoula consists of
both a store and a lab. Two of the laboratory employees
sometimes go into the store and handle a problem there.
However, they are not engaged in dispensing or selling
in the retail outlet on a routine basis. At the Butte lab
also, the employees did not work strictly at the lab. 5
For a number of years Professional Eye Care had been
trying to open an optical store at the Southgate Mall in
Missoula. No lease was obtainable because another opti-
cal store already had a lease at the mall with a 3-year
"no competition" clause. After the 3 years expired,
David Vainio, through John Flynn, Professional Eye
Care's business manager, approached the mall's manage-
ment about a lease. The management of the mall was not
interested in another optical store but indicated that it
would be interested in a full service operation which in-
cluded examination, frames, and a complete lens prepara-
tion laboratory. David Vainio came to an agreement
with the mall management to open such a full-service es-
tablishment and signed a lease in his own name. He and
his wife were the only owners of the new facility that
8 During the course of the trial the complaint was amended to allege
that Dalasera was discharged in violation of the Act As is discussed in
detail below I have found that he was unlawfully discharged However,
before the last day of trial he was reinstated
4 At one point in his testimony , David Vainio testified that the Eye
Care lab opened with four employees, one of whom was Craig Tolman,
the manager However , later in his testimony , he averred that the lab
opened with four rank-and-file employees and that the usual employee
complement was four or five, all of whom are nonsupervisory At one
point in his brief, counsel for the General Counsel states that the Missou-
la lab opened with four "individuals ," including an admitted supervisor
At another point in his brief he states that the lab opened with two full-
time "lab employees" and two part-time "employees " I credit David
Vainio's testimony that the usual employee complement was four or five
The Eye Care store opened on August 28, lab equipment was moved
there about September 10, and the lab began operating in October 1986
5 Counsel for the General Counsel, in his brief, states that when Eye
Care commenced its lab operation , it had two full-time lab employees and
two part-time employees who also worked in the retail outlet operation
He argued that the part-time employees were not in the bargaining unit
The case law does not support that proposition Fleming Industries, 282
NLRB 1030 (1987)
741
was named Eye Care. The other members of the Vainio
family had no ownership interest in Eye Care.6
David Vainio owned half of the laboratory equipment
at the Professional Eye Care Butte laboratory. The other
half was owned by his brother Leonard Vainio. The two
brothers negotiated for David Vainio to buy Leonard
Vainio's half. The value of the equipment was put at
$60,000 and David Vainio gave Professional Eye Care a
check for $30,000 to pay for Leonard Vainio' s interest.
However, the transaction was not fully at arm 's length.
Both David and Leonard Vainio had access to the Pro-
fessional Eye Care account so that David Vainio in
effect was putting money into an account that he could
draw out of. David Vainio testified that the $30,000 was
allocated to Leonard Vainio even though it was in a
joint account with David Vainio.
On occasion David Vainio put his personal money into
the Professional Eye Care account on a temporary basis.
Before Eye Care opened at the mall, Professional Eye
Care had a retail store at that location. The store lost its
lease and discontinued business there. However, Eye
Care used the same phone number that had been as-
signed to the Professional Eye Care store.
David Vainio is fully in charge of the Eye Care facili-
ty in Missoula . He and his wife own it, he hired the man-
ager there, and he makes all key decisions including
those regarding labor relations. David Vainio is also the
primary person in charge of Professional Eye Care's
Butte laboratory. As is apparent from the discussion
below relating to the collective-bargaining negotiations,
David Vainio sets labor relations policies there as well as
in Missoula . Except when the position of business man-
ager is vacant, as it has been from time to time, there is
one business manager at the Professional Eye Care Butte
laboratory and another one at the Eye Care Missoula
laboratory. The business managers take care of the day-
to-day operations.
Eye Care and Professional Eye Care keep separate
records and use separate checking accounts. The govern-
ment ID number used at Eye Care is a personal one that
David Vainio had.
Gerald Baker, the accountant for both Professional
Eye Care and Eye Care, testified in some detail concern-
ing the books of both companies. He averred that when
Eye Care first opened, he was instructed by David and
Leonard Vainio that Eye Care was to be separate from
Professional Eye Care and the accounting records and
everything else were to be completely separate. He testi-
fied to a number of things, however, that raised ques-
tions as to their separate identities. He averred that he
was paid by both Eye Care and Professional Eye Care
but then he acknowledged that he had not received any
checks from Eye Care. Professional Eye Care has an in-
house computer in Anaconda that is used by both Eye
Care and Professional Eye Care. The Anaconda facility
makes the payroll for both companies though Eye Care
reimburses Professional Eye Care for the expenses. Pro-
6 These findings are based on the credited testimony of David Vainio
Though I do not believe that David Vainio was always fully credible,
there was no evidence to contradict his testimony in this regard and I
credit him
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fessional Eye Care does most of the purchasing of the
supplies for both companies because it can do so on a
mass basis. Baker testified that Eye Care reimburses Pro-
fessional Eye Care for such items as frames and lenses
that it receives from Professional Eye Care but the
manner of the payment indicates that there is less than an
arm's-length arrangement. Apparently there is no inven-
tory of the actual goods that are passed on from Profes-
sional Eye Care to Eye Care. The computation for the
payment by Eye Care to Professional Eye Care is based
on a percentage of sales made by Eye Care in relation to
the sales made by Professional Eye Care. Because Eye
Care purchases some of its materials from sources other
than Professional Eye Care, the use of the retail sales
percentages would not appear to give an accurate result
in determining how much Eye Care owed Professional
Eye Care for supplies.
Eye Care does separately pay such items as rent, ad-
vertising, insurance, and telephone. Baker testified that
Eye Care does a lot of work for Professional Eye Care
and that Eye Care pays its own employees and charges
Professional Eye Care for the labor costs.
John Flynn was the business manager for Professional
Eye Care. He credibly and in detail testified about the
relationship between Eye Care and Professional Eye
Care. He averred that on at least three occasions he
went to the Eye Care store in Missoula to work on their
accounts receivable. He testified that even though he
was business manager of Professional Eye Care, he had
never seen a billing for the supplies that Eye Care had
received from Professional Eye Care. Professional Eye
Care purchased supplies such as frames, lenses, contact
lenses, and solutions that were sent to the Butte facility
from where they were distributed to most of the other
stores and the Eye Care lab facility. He testified that Eye
Care ordered some of its own inventory and also took
some of the inventory from Professional Eye Care. He
also testified that Professional Eye Care has obtained
supplies and inventory from the Eye Care lab in Missou-
la and that there never has been an accurate billing be-
tween the two facilities. He credibly testified that pursu-
ant to the instructions of David Vainio, he has on occa-
sion withdrawn money from other accounts including
Eye Care's and put it into the Professional Eye Care
Butte account when there was not enough money in the
Professional Eye Care account to pay bills.
There is one medical insurance policy that covers all
Professional Eye Care employees. The employees of Eye
Care do not participate in that insurance plan except for
Craig Tolman, the business manager of Eye Care.
David Vainio often takes work from the Professional
Eye Care Butte lab to the Eye Care Missoula lab to have
it worked on and also takes work in the opposite direc-
tion. Two of the Professional Eye Care stores, Helena
and Great Falls, send all their work to the Eye Care lab
in Missoula. The rest of the work from the Professional
Eye Care operation goes to the Butte lab and David
Vainio then decides where he wants to take the work.
For the purpose of this case it must be assumed that
the opening of the Eye Care lab and the transfer of
equipment from Professional Eye Care to Eye Care were
wholly lawful. Unlawful conduct can only be found after
a respondent has been properly informed of an allegation
of wrongdoing and after that allegation has been fully
litigated . There is no allegation in the complaint that the
opening of the Eye Care lab was unlawfully motivated,
that the transfer of equipment was in any way unlawful,
or that there was a failure to bargain about such matters.
Testimony was allowed concerning the opening of the
Eye Care lab but solely in relation to allegations of
single employer, alter ego, or successor . (Jurisdiction
over Eye Care was alleged on the basis of its connection
to Professional Eye Care and Eye Care allegedly violat-
ed Sec. 8(a)(3) of the Act by refusing to hire Grigsby.)
In his brief, counsel for the General Counsel inexplicably
states "additionally at least one of the reasons why Eye
Care lab facility was established was Respondents ' desire
to rid itself of any union obligation." That assertion is to-
tally inconsistent with the position that counsel for the
General Counsel repeatedly took during the trial. In his
opening statement, counsel for the General Counsel spe-
cifically said that there was no issue regarding the failure
of Respondents to notify the Union about the move of
the lab to Missoula , that there was no allegation that the
transfer was in itself unlawful , and that there was no alle-
gation that the move was a violation of the Act. In the
course of the trial, counsel for the General Counsel re-
peated that there was no allegation in the complaint that
the opening of the Missoula store or the removal of the
equipment to Missoula was a violation of the Act.
Indeed , at one point Respondents attempted to introduce
evidence relating to their motivation in moving equip-
ment to Missoula and the General Counsel objected on
the ground that there was no allegation that the move
was unlawful . The objection was sustained and Respond-
ents were denied the opportunity to adduce testimony as
to the motivation for the move. At the General Coun-
sel's own request , the matter was not litigated . The Gen-
eral Counsel cannot now successfully claim that the Eye
Care lab facility was established because Respondents
wanted to rid themselves of any union obligation.
2. Analysis and conclusions with regard to single
employer issue
In Blumenfeld Theatres Circuit, 240 NLRB 206, 214-
215 (1979), enfd. 626 F.2d 865 (9th Cir. 1980), the Board
adopted my decision which read as follows:
In Radio & Television Broadcast Technicians Local
Union 1264, IBEW v. Broadcast Service of Mobile,
Inc., 380 U.S. 255, 256 (1965), the Supreme Court
held that in determining whether enterprises consti-
tute a single employer : "The controlling criteria, set
out and elaborated in Board decisions , are interrela-
tion of operations , common management, central-
ized control of labor relations and common owner-
ship."16 Though the Board and the courts have not
always agreed on how to apply the standards enun-
ciated by the Supreme Court, the decision of the
Court of Appeals for the District of Columbia in
Local No. 627, International Union of Operating En-
gineers, AFL-CIO [South Prairie Construction Com-
pany and Peter Kiewit Sons' Co.] v. NLRB, 518 F. 2d
PROFESSIONAL EYE CARE
1040 ( 1967), appears to be controlling . In that case
the court of appeals reversed the Decision of the
Board in Peter Kiewit Sons' Co. and South Prairie
Construction Co., 206 NLRB 562 (1973). Part of the
circuit court 's decision was affirmed by the United
States Supreme Court in South Prairie Construction
Co. v. Local No. 627, International Union of Operat-
ing Engineers, AFL-CIO, 425 U.S. 800 (1976). The
Board had made two separate findings . The first
was that two entities did not constitute a single em-
ployer and the second was that each entity had a
separate appropriate bargaining unit for collective-
bargaining purposes . The court of appeals disagreed
and found both a single employer and a single unit.
On appeal the Supreme Court affirmed that part of
the court of appeals ' decision which found that the
two entities were a single employer and reversed
and remanded to the court of appeals that part of
the decision which related to the unit question.''
As the Supreme Court has affirmed the circuit
court's decision with regard to the single employer,
the language of the circuit court is of particular im-
portance . That circuit court held 518 F.2d at 1045-
46:
Guidelines for "Single Employer" Status
In Radio Union v. Broadcast Service of Mobile,
Inc., 380 U.S. 255... (1965), the Supreme Court,
in a per curiam opinion affirming a "single em-
ployer" holding below, said:
"The controlling criteria , set out and elaborated
in Board decisions , are interrelation of operations,
common management , centralized control of
labor relations and common ownership."
The court cited several NLRB decisions includ-
ing one affirmed in Sakrete of Northern California,
Inc. v. NLRB, 332 F.2d 902 (9th Cir. 1964), cert.
denied, 379 U.S. 961 . . . (1965). In Sakrete, the
Ninth Circuit stated, at 907:
"even if the substantial evidence shows interrela-
tionship of operations, centralized control of
labor relations , or common management only at
the executive or top level, we do not agree that
this precludes application of the single employer
concept."
It pointed out that these three criteria "deal not
with power and authority, as such, but with its
exercise," and that such criteria, "on any level,
are considerations in addition to the factor of
common ownership or financial control."s
Although the Supreme Court in Radio Union,
supra, commented that the record in that case
was more than adequate to show that all of the
four "controlling criteria" were present, it does
not appear that all four criteria must be present.
In one of the NLRB cases cited, Canton, Carp's,
125 NLRB 483 (1959), the Board observed that it
had on several occasions made a fording of a
single employer status in the absence of a
743
common labor relations policy, and even when it
had been affirmatively shown that each of two
corporations held to be a single employer estab-
lished its own labor relations policy. In another
of the NLRB cases cited , V.I.P. Radio, Inc., 128
NLRB 113 (1960), the Board found that there
was little or no employee interchange; but 90
percent stock ownership of the second corpora-
tion, the same officers and directors, and central-
ized control of "general labor policy" and oper-
ations resulted in a "single employer" holding. In
still another cited NLRB case , Overton Markets,
Inc., 142 NLRB 615 (1963), the Board noted, at
619, that the circumstances were not "character-
istic of the arm's length relationship found among
unintegrated companies ."9 Its conclusion that
there was a "single employer" for purposes of the
Act rested on consideration of "all the circum-
stances" of the case.
From the foregoing, we conclude that " single
employer" status, for purposes of the National
Labor Relations Act, depends upon all the cir-
cumstances of the case, that not all of the "con-
trolling criteria" specified by the Supreme Court
need be present; that, in addition to the criterion
of common ownership or financial control, the
other criteria, whether or not they are present at
the top level of management , are "controlling"
indicia of the actual exercise of the power of
common ownership or financial control; and that
the standard for evaluating such exercise of
power is whether , as a matter of substance, there
is the "arm's length relationship found among un-
integrated companies."10
9 In a later decision, NLRB v. Welcome-American Fertilizer
Co., 443 F 2d 19, 21 (9th Cir 1971), the Ninth Circuit, citing
Sakrete, said that no one of the four criteria is controlling.
9 The "arm's length" test makes meaningful the Board's ref-
erence in Canton, Carp's, Inc., supra at 484, to "realities of com-
mercial organization ." It was applied by this court in American
Fed of Television & Radio Artists v NLRB, 149 U.S App D C
272, 462 F 2d 887 (1972).
10 Petitioner relied heavily on NLRB v Royal Oak Tool &
Mach Co, 320 F 2d 77 (6th Cir 1963) in which the court said,
at 81.
"It requires a greater degree of credulity than is possessed
by this Court to accept the view that [the subsidiary' s operating
officers] could inaugurate or establish a labor policy that
did not meet with the absolute approval [of the board of direc-
tors of the parent company]."
So too, we are persuaded that South Prairie's president,
having decided or, at least , recommended that South Prairie be
activated in Oklahoma , was not a free agent to alter South Prai-
rie's nonunion policy
16 See also Sakrete of Northern California, Inc., 140 NLRB 765
(1963), enfd 332 F 2d 902 (9th Cir 1964), cert. denied 379 US
961 (1965).
17 On remand the Board issued a Supplemental Decision re-
ported at 231 NLRB 76 (1977) in which it noted that the Supreme
Court had affirmed the circuit court's finding that the two entities
were a single employer . The Board reconsidered the smgle-unit
question and concluded that, even though the entities were a single
employer, separate units were appropriate
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board has consistently followed those guidelines.
Malcolm Boring Co., 259 NLRB 597 (1981). The princi-
ples were restated in Airline Bus Service, 273 NLRB 561
(1984), in which the Board used the same criteria in de-
termining whether nominally separate businesses operat-
ing simultaneously are sufficiently interrelated so that
they may be treated as a single , integrated business enter-
prise. See also Emsing's Supermarket, 284 NLRB 302
(1987).
In the instant case Professional Eye Care and Eye
Care are interrelated in their operations. Both do the lab
work that is generated by the Vainio family stores. Sup-
plies are purchased by Professional Eye Care and distrib-
uted to Eye Care. Work coming into Eye Care is often
sent to be done at Professional Eye Care and vice versa.
Professional Eye Care has drawn money from an Eye
Care account when Professional Eye Care's funds were
short. There is a clear functional relationship between
Eye Care and Professional Eye Care that can only be de-
scribed as an interrelation of operations. Eye Care and
Professional Eye Care have common management at the
decision-making level. David Vainio is the "boss" at both
enterprises. In addition, he controls labor relations at
both enterprises. He makes all such decisions at Eye
Care and, as indicated by his conduct in the negotiations
discussed below and by his and Flynn's testimony, he has
the final voice regarding labor relations at Professional
Eye Care. Regarding "common ownership" David
Vainio and his wife own all Eye Care while David
Vainio and three other members of his family own all
Professional Eye Care. Moreover, as is set forth above,
the practices of Professional Eye Care and Eye Care as
well as the casual arrangements for the distribution of
work and supplies strongly indicate that the two organi-
zations do not have an arm's-length relationship but deal
on a family basis.
The situation in the instant case is similar to that
which was present in Hahn Motors, 283 NLRB 901
(1987). There, the same person was the chief executive
officer for each of the companies involved; that person
exercised virtually unrestricted operational, financial, ad-
ministrative, and labor relations control over both com-
panies; that person and his wife owned all of one compa-
ny and 35 percent of the other company with practically
the entire remainder of the other company inuring to the
beneficial interest of that person's mother and sister; and
there was functional integration of the two companies.
Taken as a whole, the Board found that the two compa-
nies did not maintain an arm's -length relationship such as
is found among unintegrated companies, and that the two
constituted a single employer.
Applying the case law cited above to the instant case,
I find that Eye Care and Professional Eye Care consti-
tute a single employer. As such they are jointly and sev-
erally liable for any backpay due and for otherwise rem-
edying their unfair labor practices. Emsing's Supermarket,
supra.
In his brief, counsel for the General Counsel presents a
number of alternative theories regarding the relationship
between Eye Care and Professional Eye Care. The
thrust of one of those theories is that Eye Care is the
successor of Professional Eye Care. I find that theory
unpersuasive. In United Food & Commercial Workers
(R & F Grocers), 267 NLRB 891, 892-893 (1983), the
Board adopted that part of Administrative Law Judge
William J. Pannier III's decision which held that the
successorship doctrine applies where there is a bona fide
change in ownership of an enterprise and there is a sub-
stitution of one employer for another under circum-
stances where the predecessor employer either termi-
nates its existence or otherwise ceases to have any rela-
tionship to the ongoing operation of the successor em-
ployer. In the instant case, Eye Care and Professional
Eye Care are both in existence. It is true that in Louis
Pappas' Restaurant, 275 NLRB 1519 (1985), the Board
held that a successor obligation is not defeated by the
mere fact that only a portion of a former union-repre-
sented operation is subject to sale or transfer to a new
owner. However in that case the employees in the con-
veyed portion constituted a separate appropriate unit and
those employees comprised a majority of the unit under
the new operation. As the United States Supreme Court
held in NLRB v. Burns Security Services, 406 U.S. 272
(1972), a succcessor employer finding is appropriate
where a bargaining unit remains unchanged and a major-
ity of the employees hired by the new employer are rep-
resented by a recently certified bargaining agent. As
found below in the instant case , the lab employees of
Professional Eye Care constitute an independent and sep-
arate unit from the lab employees of Eye Care and a ma-
jority of the employees in the Eye Care bargaining unit
did not come from Professional Eye Care. There is no
basis for finding a successorship.
Counsel for the General Counsel also argues that Eye
Care is an alter ego of Professional Eye Care. Once a
single employer is found there is little need to resolve
the question of alter ego. In both situations there is a
finding that there is only one enterprise. However, in
both situations the one enterprise can have operations at
two different locations and the case will often turn on
whether the two locations constitute a single bargaining
unit in which the enterprise has to bargain with the
union or constitute two independent bargaining units
where bargaining is only required in one. In Hahn
Motors, supra, the Board, after finding a single employer
relationship, went on to conclude that it was unnecessary
to reach the question whether an alter ego relationship
existed. In any event, I do not believe that the facts as
set forth above warrant a finding of alter ego . The crite-
ria used in determining alter ego were reiterated by the
Board in Continental Radiator Corp., 283 NLRB 234
(1987), in which it was held:
In Advance Electric, 268 NLRB 1001, 1002 (1984),
the Board stated that it will find alter ego status
where two employers have "`substantially identical'
management, business purpose, operation, equip-
ment, customers, and supervision, as well as owner-
ship ." In addition , the Board considers whether
there has been any hiatus in operations, whether the
companies use the same building, and "whether the
purpose behind the creation of the alleged alter ego
was legitimate or whether, instead, its purpose was
PROFESSIONAL EYE CARE 745
to evade responsibilities under the Act."e No one
factor is determinative of alter ego status.
6 268 NLRB at 1002 , quoting Fugazy Continental Corp., 265
NLRB 1301 , 1302 (1982), enfd . 725 F.2d 1416 (D.C. Cir. 1984).
An alter ego theory is generally used where an employer
disguises its continued operation of a facility by the cre-
ation of another entity in order to evade bargaining re-
sponsibility. That is not the situation in the instant case.
Though David Vainio owns Eye Care and he along with
other family members (two brothers and a mother) own
Professional Eye Care, there is not a substantial identity
of ownership. The two facilities are 120 miles apart, they
maintain their own identities, and there is no finding that
Eye Care was opened for any improper reason. As set
forth above, I must assume that Eye Care was opened
for lawful reasons. O. Voorhees Painting Co., 275 NLRB
779 (1985).
3. Analysis and conclusions with regard to the
separate bargaining unit issue
In Peter Kiewit Sons' Co., 231 NLRB 76 (1977), enfd.
595 F.2d 844 (D.C. Cir. 1979),' the Board emphasized
the difference in approach in resolving a single employer
question and a scope of unit question, holding:
In determining whether a single employer exists we
are concerned with the common ownership, struc-
ture, and integrated control of the separate corpora-
tions; in determining the scope of the unit, we are
concerned with the community of interests of the
employees involved.
The Board goes on to indicate that in resolving the unit
question where there is more than one operation of a
single employer, such factors as bargaining history, func-
tional integration of operations, differences in the types
of work and skills of the employees, extent of centraliza-
tion of management supervision, and the extent of inter-
change and contact between the groups of employees are
to be considered. Some of those factors are discussed
above. There is a bargaining history at the Professional
Eye Care lab but none at the Eye Care lab; there is some
functional integration of operations as discussed above;
there is centralization of top management but not of day-
to-day operations; and there is no interchange or contact
between the groups of employees except for some of the
initial hiring.
The relocation of a bargaining unit does not necessari-
ly destroy that unit. In Hahn Motors, supra, the Board
found that two companies constituted a single employer
and that the relocation of service department employees
to a new facility 7 miles away did not destroy the com-
munity of interest that had existed within the plantwide
unit so as to justify depriving those employees of contin-
ued representation. There the Board found that the re-
spondents' efforts to fragment the unit by unilaterally im-
7 See also Malcolm Boring Co., supra.
posing the geographical separation of 7 miles could not
defeat the employees' right to representation.
In the instant case, the single employer has two lab fa-
cilities. They are located 120 miles apart so that it may
be assumed that they draw from different labor pools.
The normal or representative employee complement at
the Eye Care lab in Missoula is four or five employees.
As found below Matt Grigsby, who had formerly
worked for Professional Eye Care, was unlawfully
denied employment at Eye Care. For the purposes of de-
termining the employee complement of Eye Care,
Grigsby must be added to the list. If he is added then the
normal employee complement would be five or six. One
employee, King, who had worked for Professional Eye
Care, left his work there and began working for Eye
Care. Thus for our purposes two employees out of the
five or six in the Eye Care lab bargaining unit were for-
merly in the Professional Eye Care lab bargaining unit.
There is no evidence that any of the other employees in
the Eye Care lab bargaining unit desired the Union to
represent them. No matter how it is counted, the Union
has not been selected by a majority of the Eye Care lab
employees to represent them.8 If the General Counsel's
contentions are correct, then those employees will not
have an opportunity to express their wishes as to repre-
sentation. Under all the circumstances of this case and
with particular reliance on the fact that the two laborato-
ries are separated by a distance of 120 miles, that there is
no basis for assuming that the Missoula lab was opened
to thwart union activity or in violation of the Act, and
that there is nothing to indicate that a majority of the
employees at the Missoula lab desire union representa-
tion, I do not believe that Respondents' obligation to
bargain at Butte, Montana, should be extended to cover
the employees employed in Missoula, Montana.9 In
reaching this conclusion I have also considered the fact
that the outstanding certification by the Board is limited
to employees "employed by David Vainio d/b/a Profes-
sional Eye Care at the facility located at 225 South
Idaho , Butte, Montana."
The complaint as amended alleges that the laboratory
employees .of Professional Eye Care and Eye Care con-
stitute an appropriate bargaining unit ; that the Union re-
quested Professional Eye Care and Eye Care to recog-
nize and bargain with it as the representative of the em-
ployees in that unit, which included employees of Eye
Care; and that Professional Eye Care and Eye Care vio-
lated Section 8(a)(5) of the Act by refusing to recognize
8 Even if the lab opened with three employees , one of whom had
worked for Professional Eye Care, and Grigsby is added to make four,
there would only be two out of the four employees who indicated a
desire for union representation . That is less than a majority.
8 The complaint does not allege and the General Counsel does not
contend that the Eye Care lab is an accretion to the Professional Eye
Care bargaining unit . That issue will therefore not be addressed except to
note the Board 's holding in Melbet Jewelry Co., 180 NLRB 107 (1969),
that:
We will not, however, under the guise of accretion, compel a group
of employees, who may constitute a separate appropriate unit, to be
included in an overall unit without allowing those employees the op-
portunity of expressing their preference in a secret election or by
some other evidence that they wish to authorize the Union to repre-
sent them.
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and bargain with the Union in that unit . As I have found
that the Eye Care laboratory unit is a separate bargaining
unit and that the Union does not represent a majority of
the employees in that unit, those allegations in the com-
plaint must be dismissed . The complaint as amended also
alleges that as a result of Professional Eye Care's and
Eye Care's refusal to bargain in that unit, Grigsby was
terminated from his employment with Professional Eye
Care. As I have found that Respondents had no duty to
bargain in the Eye Care lab unit, that allegation must
also be dismissed . The amended complaint also alleges
that Grigsby was discharged from Professional Eye Care
and refused employment by Eye Care in violation of
Section 8(a)(3) of the Act. Those allegations are dis-
cussed in detail below.
C. The Discharge of Grigsby by Professional Eye Care
and the Refusal to Hire Him by Eye Care
1. Factual findings
Matt Grigsby began working for Professional Eye
Care as a surface grinder in January 1985. After the
Union began its organizational drive, Grigsby engaged in
union activities. In the summer of 1985 Professional Eye
Care discharged Grigsby. The legality of that discharge
was litigated before Judge Anderson. In January 1986,
before Judge Anderson's decision issued, Grigsby was re-
instated pending that decision. Judge Anderson found
that Grigsby's discharge was not in violation of the Act.
However, Professional Eye Care kept Grigsby in its
employ thereafter. In July 1986, which was several
months after Judge Anderson's decision issued, David
Vainio told Union Business Representative Gary Taylor
that Professional Eye Care did not have any more trou-
ble with Grigsby since he came back to work, but that
Grigsby's job would be phased out when the lab in Mis-
soula started. At the time Grigsby was reinstated, Profes-
sional Eye Care knew of his union activity. Grigsby
became a union officer in the summer of 1986.
About August 18, 1986, Grigsby was told by Craig
Tolman, who was to become the business manager for
Eye Care, that there was a lab opening up in Missoula
and that Grigsby could apply. The following day he
picked up an application from his business manager, John
Flynn, and sent it in . About August 29, 1986, Grigsby re-
ceived a letter signed by Business Manager John Flynn
notifying him of the termination of Grigsby's job special-
ty area at the American Eye Care (Professional Eye
Care) lab due to the sale of the surfacing equipment to
another optical practice. The letter went on to state that
it was anticipated that Grigsby's job would last from 7 to
14 days depending on when the equipment was delivered
to the buyer's location. The equipment was delivered
from Professional Eye Care's lab in Butte to Eye Care's
lab in Missoula about September 10, 1986. On September
13, 1986, Grigsby spoke to David Vainio about working
for Eye Care and David Vainio said that he would have
to talk to Craig Tolman. On September 15, 1986, about 5
days after the equipment was removed from Butte,
Grigsby was discharged. He was told that his services
were no longer needed and the equipment that he had
operated had been removed from the premises.10 After
Grigsby applied for work at Eye Care, he spoke to
Tolman, who informed him that Tolman would have to
talk to David Vainio about the application. Grigsby was
not employed by Eye Care.
John Flynn, the business manager for Professional Eye
Care, had a number of conversations concerning Grigs-
by's application with both Tolman, the business manager
of Eye Care, and with David Vainio. In one conversa-
tion with Tolman, Tolman asked Flynn to evaluate
Grigsby's application and Flynn replied that he thought
Grigsby ought to go with the piece of equipment be-
cause he had worked on it for a long time, knew it well,
and could do a good job. Tolman said, "Well, what
about his union deal?" and Flynn replied by saying that
he did not think Grigsby would bring the Union over
there. In another conversation Tolman told Flynn that
he was not going to hire Grigsby because he had too
many doubts about him.
Flynn also talked to David Vainio about bringing
Grigsby from Butte to Missoula . David Vainio said that
he did not want to take Gngsby over there because he
would start the Union there. Flynn replied that he did
not think that he would start the Union. Thereafter,
Flynn had several conversations with David Vainio in
which Flynn requested that Grigsby be taken over to
Missoula and in which David Vainio said that he would
not do so because he did not want Grigsby to start the
Union over there. I t
2. Analysis and conclusions
The complaint alleges two separate violations of the
Act regarding Grigsby. One is that Professional Eye
Care fired him in violation of the Act and the other is
that Eye Care refused to employ him because of his
union activity. The legal analysis to be applied in cases
of allegedly unlawful discharge or refusals to employ
was recently restated by the Board in Joseph De Rario,
DMD, P.A., 283 NLRB 592 (1987), in which it was held:
10 Grigsby credibly testified that about a week and a half before his
termmnation, members of the Vaimo family saw him picketing on behalf
of the Union at an establishment that was unconnected with the Vaimo
family . I credit that testimony despite the denials of some of the Vamios.
However, that additional union activity occurred after he had been noti-
fied in writing that he was to be terminated.
" These findings are based on the credited testimony of Flynn.
Tolman did not testify David Vainto did not specifically deny that he
made the remarks attributed to him by Flynn David Vaimo testified in
effect that he left the decision regarding Gngsby's hiring to Tolman He
averred that he discussed that subject with Tolman and he told Tolman
to talk to Grigsby about the possibility of fitting him into the lab He fur-
ther averred that he did not have any feelings one way or another about
hiring him. He denied that he had any discussion with Tolman about re-
fusing to hire Gngsby because of his union involvement Kevin Vaimo's
testimony in that regard was not consistent with that of David Vamio
Kevin Vamso averred that David Vamio felt that they should not hire
Grigsby in Missoula because of something Gngsby did in the past I do
not credit either Kevin or David Vainio Flynn, as business manager of
Professional Eye Care, was testifying in a manner adverse to his own in-
terest and his demeanor as he testified was such as to convince me that
he was a forthright witness who was prepared to tell the truth regardless
of the consequences to himself His testimony concerning his conversa-
tions with Tolman and David Vainio was fully credible
PROFESSIONAL EYE CARE
In NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the Supreme Court affirmed
the test enunciated by the Board in Wright Lineio
for determining whether an employee was dis-
charged because of the exercise of Section 7 rights.
Under Wright Line the General Counsel, under Sec-
tion 10(c) of the Act, has the burden of establishing
a prima facie case that the employee's protected
conduct was a substantial or motivating factor in
the employee 's discharge or other adverse action
taken by the employer. Once the General Counsel
satisfies this burden , the employer can avoid liability
under the Act by proving by a preponderance of
the evidence an affirmative defense that it would
have taken the same action even if the unlawful mo-
tives had not existed.
'o Wright Line , 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st
Cir 1981 ), cert. denied 455 U S . 989 (1982), approved in NLRB v.
Transportation Management Corp, 462 U S 393 (1983).
Consideration will be given first to the allegation that
Professional Eye Care discharged Grigsby because of his
union activity. The General Counsel has established that
Grigsby was active on behalf of the Union; that Profes-
sional Eye Care knew of that activity; that David
Vainio, who set labor policy for Respondents, was ex-
tremely hostile toward employees who engaged in union
activity (as demonstrated by his statements to Flynn);
and that Grigsby was discharged. The General Counsel
has established a prima facie showing that Grigsby was
discharged because of his union activity. 12 However, I
believe that Respondents have proved by a preponder-
ance of the evidence that Grigsby would have been dis-
charged from Professional Eye Care even if the unlawful
motives had not existed . Grigsby was a surface grinder.
The machines on which he worked were taken from
Professional Eye Care's Butte lab and moved to Eye
Care's lab in Missoula 120 miles away . The two labs con-
stitute separate bargaining units . As set forth in detail
above , the removal of the equipment was not a violation
of the Act and Respondents did not unlawfully refuse to
bargain about the removal. Grigsby's position was not
filled by any new hire. There simply was no work for
Grigsby to do in the Butte lab after the equipment he
normally worked on was removed. Under these circum-
stances, I believe that Respondents have sustained their
affirmative defense . I therefore recommend that that alle-
gation of the complaint be dismissed.
Regarding Eye Care's refusal to hire Grigsby, an en-
tirely different question is presented . Regarding that
issue , the General Counsel again has established a prima
facie case that Grigsby was not hired because of his
union activity. However, here, Respondents have not es-
tablished their affirmative defense. The credible evidence
establishes that Grigsby was not hired because David
12 See Associated Milk Producers, 259 NLRB 1033, 1035 (1982), enfd
711 F 2d 627 (5th Cir 1983), in which the Board held-
The elements of protected activity on the part of the discharged em-
ployee, employer knowledge of the protected activity, and employer
animus toward the Union, taken together, are sufficient to establish a
prima facie case of unlawful discharge
747
Vainio feared that he would bring the Union from Butte
to Missoula. David Vainio admitted as much to Flynn.13
I find that Eye Care refused to hire Grigsby on and after
September 15, 1986, because of Grigsby's union activity
and thereby violated Section 8(a)(3) and (1) of the Act.
D. The Violence Against Flynn
Professional Eye Care 's business manager John
Flynn" testified in this proceeding on March 26, 1987.
He was called as a witness for the General Counsel. The
hearing took place in an upstairs courtroom at a State of
Montana courthouse in Butte , Montana . During his
direct testimony Flynn gave evidence that was adverse
to the interests of his Employer, Professional Eye Care.
He testified in substance that David Vainio had admitted
to him that Grigsby was not hired at Eye Care because
David Vainio feared that Grigsby would bring the Union
there. He also testified to details of the relationship be-
tween Eye Care and Professional Eye Care which
helped establish that they are a single employer. When
he finished his direct examination , the hearing was re-
cessed for lunch and he left the courtroom and walked
downstairs in the courthouse to use the telephone. He
entered the telephone booth and picked up the receiver.
Before he could close the door to the telephone booth,
David Vainio propped himself against the open door.
Flynn asked David Vainio to please move so that he
could make his call and David Vainio stood there with
his arms folded so that Flynn could not close the door.
David Vainio stood there with his mouth set and a mean
look in his eye. He did not respond to Flynn's request
that he move so that the door could be closed. Flynn
asked David Vainio once again to move and again
Vainio did not answer. Flynn then lifted his arm to try
to close the door and in the process he touched David
Vainio on the arm or shoulder with two forgers. At that
point David Vainio punched Flynn in the mouth. Flynn
momentarily blacked out and when he came to he was
sitting in the phone booth with his glasses off and his lip
bleeding. David Vainio was standing over him in front
of the phone booth saying, "He hit me first, he assaulted
me." Kevin Vainio then came to the phone booth and
said that Flynn had hit David Vainio first and that he
was filing charges against him.
These findings are based on the credited testimony of
Flynn. Flynn denied that he actually pushed David
Vainio but he acknowledged in his testimony that he
tried to "nudge" David Vainio out of the way and he
put two fingers on his shoulder or arm. Captain Albert
Johnson, a detective captain for the Butte Silver Bow
Law Enforcement Agency, interviewed Flynn about the
13 For the weight that the Board and the courts have given to such
"outright confessions" of unlawful conduct , see Advance Installations, 257
NLRB 845, 848 (1981), enfd 698 F 2d 1231 (9th Cir 1982).
14 There was some confusion about Flynn's title. He was business man-
ager from February 1986 until March 1987 when he was verbally in-
formed by David Vaimo that his duties were changed to that of rental
property manager However Kevin Vamio testified that Flynn's job title
did not change When Flynn questioned the Vamios about the matter,
Kevin Vanno wrote to him saying that he was still business manager
That letter was received by Flynn on March 30 On that day Flynn left
Respondent's employ
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
incident. He testified that Flynn told him that when he
tried to close the door, he touched David Vainio on the
shoulder to try to push him out of the way but that he
did not even put a full hand on his shoulder. Captain
Johnson also testified that Flynn told him that he did not
make any gesture that might make David Vainio think
that he was about to hit him. It is clear that Flynn did
touch David Vainio before David Vainio punched him.
It is also clear , however, that the touching was simply
part of an attempt to close the telephone booth door and
whether it could be characterized as a "pushing" or a
"nudging" or simply an accident, it was not of such a
nature as to give David Vainio any reason for concern
or any reason to believe that he had to protect himself.
The Vainio family lined up en masse to support David
Vainio. David Vainio testified in substance that he
walked over to the telephone booth to ask Flynn a ques-
tion concerning certain documents and that Flynn, with-
out any provocation, punched him in the jaw. David
Vainio acknowledged that he did strike Flynn but he tes-
tified that he did so only after Flynn had punched him.
Kevin Vainio, David Vainio's brother, and H. Marie
Vainio, their mother, testified that they witnessed the
entire event and that Flynn punched David Vainio on
the jaw while David Vainio stood there with his hands
in his pockets and that David Vainio then replied by
striking Flynn. Marie Vainio, David Vainio's wife, testi-
fied that when he came home that night he had a mark
on the left side of his chin that was not there when he
had left that morning . Between the testimony of Flynn
and the four Vainios, who testified about the incident, I
unhesitantly credit Flynn and discredit the Vainios.
David Vainio's version of the incident, as corroborated
by the rest of his family, is inherently implausible. Flynn
had just testified in a manner that was damaging to
David Vainio. As indicated above, I believe he did so
because he was an honest witness. There is no indication
that he had any reason to bear the type of anger against
David Vainio that would lead to an unprovoked assault.
If David Vainio is to be believed, then Flynn punched
his boss with no apparent motive. On the other hand, it
is easy to understand why David Vainio would have
been extremely angry with Flynn. Flynn had just testi-
fied in a way that could have hurt David Vainio very
badly. Immediately after that testimony was given, ac-
cording to the testimony of Flynn, David Vainio fol-
lowed him to the telephone booth, blocked the door of
that booth, and punched him in the mouth. My observa-
tion of the demeanor of the witnesses as they testified
also supports what I believe to be the inherent probabil-
ities of the situation . Flynn was an extremely convincing
witness. His demeanor was such as to lend credence to
his testimony. That was not true regarding the Vainios.
They appeared to be circling the wagons to defend the
family without too much concern over the accuracy of
the facts they presented.
After the luncheon recess Flynn resumed the stand to
give a short description of what happened. He was then
excused so that he could get medical attention and the
case was put over for several weeks. On the resumption
of the trial, Flynn resumed the stand and was cross-ex-
amined by Respondents.
The complaint alleges, the answer admits, and I find
that Professional Eye Care' s business manager John
Flynn was a supervisor within the meaning of the Act.
Supervisors are generally excluded from protection
under the Act but there are several exceptions to that
general rule . Those exceptions relate to situations in
which the action against a supervisor interferes with the
exercise of employees' Section 7 rights. Where, as here,
the supervisor was assaulted for giving testimony adverse
to the employer's interest at an NLRB proceeding, the
supervisor must be protected because of the need to vin-
dicate the rights of employees. Pontiac Osteopathic Hospi-
tal, 284 NLRB 442 (1987). As the Board held in Parker-
Robb Chevrolet, 262 NLRB 402 (1982), enfd. 711 F.2d
383 (D.C. Cir. 1983):
an employer may not discharge a supervisor for
giving testimony adverse to an employer's interest
... at an NLRB proceeding. . . . [T]he protection
afforded supervisors stems not from any statutory
protection inuring to them, but rather from the need
to vindicate the employees' exercise of their Section
7 rights.
I find that Respondents, through David Vainio, violat-
ed Section 8(axl) of the Act by assaulting Flynn because
Flynn gave testimony adverse to Respondents' interest at
an NLRB proceeding.
E. The Discharge of Dalasera
Leonard Dalasera is an optician who is employed by
Professional Eye Care. He was active on behalf of the
Union and Respondents were aware of that activity.'s
He testified on behalf of the General Counsel in the in-
stant case and also in an NLRB injunction proceeding
before a United States district court judge.
Dalasera was discharged on April 10, 1987. The reason
given for the discharge was that he had falsified his time-
card by not showing that he left work for about 20 min-
utes at the request of the police to be interviewed con-
cerning cross-charges filed by Flynn and David Vainio
in the assault incident discussed above.
Dalasera was reinstated on May 26, 1987. The General
Counsel took the position that Dalasera was reinstated
subject to the outcome of this case and, in effect, that
Dalasera is entitled to an unconditional offer of reinstate-
ment.
On March 13, 1987, Dalasera appeared before U.S.
District Court Judge James Batt in Billings, Montana,
where he testified about matters relating to an injunction
obtained by the Board against Respondents. After the
trial David Vainio refused to speak to him. When he
asked David Vainio a question, Vainio would just whis-
tle and walk away. Dalasera had to get another person
who worked with him to ask David Vainio a question so
that he could get an answer. That refusal to talk to him
' 6 In the case heard by Administrative Law Judge Anderson, it was
alleged that Dalasera was discharged in violation of Sec. 8(aX3) of the
Act The fudge found meet to that contention Whether that finding is
sustained in the exceptions before the Board , Respondents knew from its
participation at that trial that Dalasera was a union activist
PROFESSIONAL EYE CARE
lasted until April 9, 1987, when David and Leonard
Vainio spoke to him about an alleged falsification of his
timesheet. He was discharged the following day.
David Vainio assaulted Flynn in the phone booth on
March 26, 1987. The following Monday, March 30, 1987,
Flynn returned to work at Professional Eye Care. Dala-
sera was also working that day . That morning Dalasera
received a phone call at work from Albert Johnson, the
Butte , Montana chief of detectives . Johnson said he was
conducting an investigation into the alleged assault and
he asked Dalasera to come to the police station to give a
statement concerning what he saw .' a Dalasera asked
Johnson whether he could come during his lunchbreak
or after work. Johnson replied that those times were not
acceptable and he asked Dalasera to come right away.
He told Dalasera that Dalasera only worked a half a
block away and it should not be a problem.
At that time Flynn was the only management official
on the premises. Both David and Leonard Vainio were
out of town. Flynn was a supervisor. Dalasera called
Flynn from the lab and reported to him what Johnson
had said. Dalasera asked Flynn for permission to go to
the police station and Flynn told him he could go. Flynn
also told him that whatever time he lost from work he
could make up the same day. Flynn credibly testified
that when he spoke to Dalasera about going to the police
station , he assumed that Dalasera would not log the time
in and out to reflect that meeting and that Dalasera
would make up the time during lunch or after work.
That procedure had been followed before and there had
been no problems.
Dalasera left the lab at 11:23 a.m. and drove his car a
half block or a block to the police station where he ar-
rived at 11:25 a.m. Detective Johnson taped an interview
and Dalasera left the police station at 11:43 a.m. He
drove directly back to the lab where he arrived at about
11:45 a.m. All in all he was gone from the lab about 22
minutes.
Dalasera made up the lost time on the same day. That
morning he had reported for work about 7:50 a.m. which
was 10 minutes before his normal time . He left for lunch
about 12:05 or 12:10 p.m., instead of 12 noon." At the
end of the day Dalasera worked till 5:05 or 5:10 p.m.'s
The employees of Professional Eye Care fill in their
own time records. Dalasera filled in his time report for
March 30 with the hours 8 to 12 and 1 to 5. He had re-
ceived permission to go to the police station from Super-
visor Flynn; he had made up the missed worktime as he
had been instructed to do by Flynn; and he filled out the
time records as both he and Supervisor Flynn under-
16 Dalasera did not witness the actual assault but he did see some inci-
dents that led up to it
17 Flynn testified that he saw Dalasera leave at 12 05 or 12 .10 p.m and
Dalasera testified that he left about 12.10 p.m Mane Vamio, David Vain-
io's wife, testified that she went to the lab at 1205 that day and Dalasera
was not there I believe that the testimony of Flynn and Dalasera was
more reliable than that of Mane Vainto and I find that Dalasera did work
some 5 or 10 minutes during his lunch hour.
18 This finding is based on the credited testimony of Dalasera. Mane
Vamto said that she came to the lab at 5 05 p.m and found that the door
was locked She averred that she did not see Dalasera 's car outside To
the extent that Mane Vainio's testimony is inconsistent with that of Dala-
sera, I credit Dalasera
749
stood they should have been filled out. Flynn credibly
testified that on a number of occasions he had authorized
employees to take off from work for about 15 minutes
for personal reasons and to make up the time the same
day without showing the short "in and out" periods on
the time records. Flynn also credibly testified that on oc-
casion he told David Vainio that that procedure was
being used." 9
On April 9, 1987, David, Kevin, and H. Marie Vainio
met with Dalasera. Union Representatives Taylor and
Duggan were also present. The Vainios accused Dala-
sera of falsifying his time records by not putting down
the time he had been away from work at the police sta-
tion. Dalasera replied that he had Flynn's permission to
go and that he had made up the time.
The Vainios took action against Dalasera the next day,
without discussing the matter with Flynn, who had
given permission for Dalasera to leave, or with the de-
tective, who had requested him to come to the police
station. On April 10, 1987, Dalasera was given a letter
signed by David Vainio stating that he was suspended
without pay from his employment because of misstate-
ments on his timecard for hours worked on March 30.
The letter stated that the suspension would continue in-
definitely until Dalasera or his representatives produced
cause why he should continue in employment. The letter
referred to a statement on the bottom of the timecard
that indicated that falsification of hours was cause for
immediate discharge and went on to state that at the
March 9 meeting, the sole justification offered for Dala-
sera's conduct was that he was requested by a police of-
ficer to be at the police station and that he had the per-
mission of Flynn to go there. The letter then stated that
Dalasera was not justified in falsifying the hours on the
timecard.
The sequence of events set forth above establishes that
Dalasera did not falsify his timecard . He correctly under-
stood from Flynn and from observing the past experi-
ences of other employees that short periods of absence
from work that were authorized by Flynn could be made
up without encumbering the time records with the de-
tails of the minutes "in and out." It is not unusual for
employers to have some "de minimis" procedure regard-
ing bookkeeping. Otherwise an employee would have to
punch in and out every time he went to the bathroom.
Supervisor Flynn had established such a procedure and
David Vaimo was aware of it because Flynn had on oc-
casion told him of it. Yet, the Vainios discharged Dala-
sera without even interviewing Flynn about the incident.
Respondents did introduce some evidence to show that
employees were disciplined for abusing worktime but
none of those situations were comparable to the instant
case. One employee, Pam Kroll, was discharged on April
26, 1987, because her office in Helena was closed and the
lights were off when that office was supposed to be
open. There was no indication that she was absent with
supervisory approval. Another employee, Lavon Hun-
inghake, was removed from her position as office manag-
19 1 do not credit David Vamio's testimony to the effect that he had
no knowledge that such a procedure was being used
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er in Copper City and transferred to Butte because she
took time off while on the clock. Again, there is no indi-
cation that she had the permission of a supervisor to take
the time off.
David Vainio testified that prior to February 4, 1987,
the payroll was made up before work for the payroll
period had actually been completed . In substance, an em-
ployee was guessing as to what his hours would be near
the end of the payroll period. Under such circumstances
an employee could not be criticized if the time he antici-
pated to work was incorrect. A new system was institut-
ed whereby all payroll reports were completed before
the payroll was made up. Respondents contend that they
held employees much more accountable for their time-
cards after the change. However, that would have little
to do with the instant case. Dalasera was fully accounta-
ble for properly filling out his time reports. Under the
circumstances set forth above, he simply did nothing
wrong.20 I find that the reasons advanced by Respond-
ents for the discharge of Dalasera were purely pretex-
tual.
The General Counsel has established that Dalasera
was active on behalf of the Union and testified on behalf
of the General Counsel in Board and Board-related court
hearings; that Respondents had knowledge of Dalasera's
activities; that Respondents harbored a virulent animosity
against people who engaged in such activities (as indicat-
ed by David Vainio's actions in assaulting Flynn); that
Dalasera was discharged a short time after he gave testi-
mony at a Board hearing; and that the Respondents' as-
serted reason for the discharge was pretextual. Regard-
ing Respondents' defense, it is also noted that the chain
of events leading to Dalasera's leaving work to go to the
police station was triggered by Respondents ' own mis-
conduct (David Vainio's assault on Flynn). The General
Counsel has established a strong prima facie case to es-
tablish that Dalasera was discharged because of his union
activity and his testimony before the Board and court.
Respondents have come forward with no credible evi-
dence to rebut that case.21 Using the criteria set forth in
Wright Line,22 I find that Respondents discharged Dala-
sera on April 10, 1987, because of Dalasera's union activ-
ity and because he gave testimony in Board and Board-
related court proceedings. In doing so, Respondents vio-
lated Section 8(a)(1), (3), and (4) of the Act.
F. The Refusal-to-Bargain Allegations
1. Background
The complaint alleges that Respondents unlawfully re-
fused to bargain in a number of different ways. One pri-
mary allegation is that Respondents refused to extend the
Butte bargaining unit to Missoula when the Eye Care lab
20 In a proceeding before the Montana Labor Department, it was held
that Dalasera was disqualified from receiving unemployment benefits be-
cause he was discharged for violating company policy regarding falsifica-
tion of timecards I have fully considered that decision , which was based
on a hearing held on the telephone . Nonetheless, I must give primary re-
liance to the record in this case that led to the findings set forth here
21 I do not credit David Vaimo's assertion that he disregarded Dala-
sera's union activity in deciding to suspend him
22 See the analysis set forth in C, 2, above
began operations. As is discussed in detail above, that al-
legation has been found to lack merit. The complaint
also alleges that Professional Eye Care unlawfully re-
fused to provide information to the Union, made unlaw-
ful unilateral changes in the hours of employment at the
Butte lab, and refused to bargain in good faith with the
Union. For the reasons set forth in detail below, I be-
lieve that those allegations are meritorious. In addition,
the complaint, as amended, alleges two other incidents
that General Counsel contends constituted refusals to
bargain. They relate to a decision to move to Billings
and a decision to lease or close the Butte lab. Those alle-
gations have not been sustained.
2. The decision to move to Billings
The complaint, as amended, alleges that on or about
March 3, 1987, Respondent informed the Union of its de-
cision to remove unit work and equipment from its
Butte, Montana facility to a new facility in Billings,
Montana.
On January 26, 1987, Kevin Vainio wrote to the
Union saying that American Eye Care was considering
installing a lab in Billings , that American Eye Care did
not have a present intention to close the lab in Butte, and
that it was hoped that the workload in Butte would not
be reduced. The letter went on to state that American
Eye Care hoped that final arrangements could be made
within 2 weeks, that the Union could bargain within that
timeframe, and that it would welcome any input the
Union had.
Representatives of Respondents and the Union met to
discuss the letter on March 4, 1987. Kevin and David
Vainio told Union Representatives Duggan and Taylor
that they had taken over a laboratory in the Billings area
and that they had made a deal to put some of the equip-
ment from Butte in that lab. David Vainio said that they
had to talk about that to the Union to get the Union's
approval. Duggan replied that Respondents always man-
aged to notify them after they had already decided to do
something rather than to negotiate. Kevin Vainio said
that nothing was in concrete and they could revoke the
action. Either Kevin or David Vainio said that they
were going to establish an optical outlet in Billings, that
it would have laboratory equipment similar to Butte, and
that they wanted to move some equipment from the
Butte lab there.23
In fact no equipment was ever moved from Butte to
Billings . Professional Eye Care had purchased another
company's practice in Polson, Montana, and the equip-
ment from that practice was moved to Billings. That
equipment was never set up in Billings , but as of the date
22 These findings are based on the credited testimony of Duggan. Tay-
lor's testimony was somewhat different from that of Duggan . Taylor
averred that the Vaimos said that there might be a reduction of work and
the number of people at Butte , that Duggan objected to the loss of work
and said they had a right to negotiate before they made the move and not
after, and that the Vainios said that they had not made the move and
were contemplating it, but that it did not matter because they were going
to make the move I believe that Duggan was a more accurate witness
than Taylor and I credit him , particularly with reference to Duggan's as-
sertion that the Vainios said that nothing was in concrete and they could
revoke the action
PROFESSIONAL EYE CARE
of the trial was still sitting on the floor . The only lab
work that was done in Billings was the retinting of lenses
that come from the Butte or Missoula labs and had not
been done properly there . Instead of inconveniencing the
patient for 4 or 5 days by shipping the lenses back to the
other labs, they were retinted in Billings . There is no
edging, finishing , hardening , or grinding done in Billings.
The amount of tinting done at Billings does not cause
the employees at the Butte lab to lose any hours of work
and no hours were cut at Butte because of that tinting.24
The complaint does not allege that the removal of the
tinting work was a violation of the Act. It is limited to
the assertion that on or about March 3, 1987 , Respond-
ents informed the Union of the decision to remove unit
work and equipment to Billings . The facts set forth
above establish that what Respondents did was inform
the Union of their intention to take certain actions. Their
subsequent conduct clearly established that that state-
ment of intention was nothing more than a proposal for
bargaining . After negotiating with the Union, Respond-
ents did not carry out their stated intention . No equip-
ment was moved from Butte to Billings and the Billings
laboratory was not opened except to the very limited
extent that retinting work was performed where it had
been improperly performed in the other labs. I therefore
find that Respondents did not unlawfully inform the
Union of its decision25 to remove unit work and equip-
ment from Butte to Billings as alleged in the complaint.
3. The decision to lease or close the Butte lab
The complaint , as amended during the course of the
hearing , alleges that on or about March 26 , 1987, Re-
spondents informed the Union that they were closing
their lab facility in Butte , Montana.
On March 25 , 1987, Union Business Representative
Taylor received a telephone call from Kevin Vainio who
told him that the Vainios were thinking about leasing the
lab. Kevin Vainio also told Taylor that they were going
to give Dalasera the first option to lease the lab and that
they were contemplating getting out of the laboratory
business altogether in Butte . He said that they were
going to lease it out and if they could not lease it out,
they were going to close it.26
Later in the day on March 25, 1987 , Vainio wrote to
Taylor "to confirm dates for bargaining on the lease of
the laboratory and equipment ." The letter goes on to
give dates that Respondents were available for bargain-
ing. The letter was delivered to the Union that day. The
following day , March 26 , 1987, Taylor replied to the Re-
spondents ' March 25 letter saying that he could not meet
24 These findings are based on the uncontradicted testimony of Flynn
and David Vain
211 See the discussion of "decision" bargaining in the following section
26 These findings are based on the credited testimony of Taylor David
Vaimo testified that they anticipated leasing out the Butte lab, that he
and his brother felt they should divest themselves of the lab in general
and spend most of their time doing examinations, and that they seriously
considered leasing the Butte lab, the Missoula lab , and any other lab that
they might have David Vaimo acknowledged that they notified the
Union of their intention to lease the Butte lab, but he denied that he said
anything about closing the lab Where David Vainio 's testimony conflicts
with that of Taylor, I credit Taylor
751
immediately because of prior scheduling and he needed
up to 3 weeks to schedule meetings.
On March 25, 1987, David Vainio spoke to Leonard
Dalasera about leasing the lab. David Vainio said that he
was going to lease the lab and that Dalasera had the first
option to lease it . He also told Dalasera that he would
lease it to someone else if Dalasera was not interested.
David Vainio told Dalasera that if he leased it , he could
negotiate with the Union.
As of the last day of the trial Respondents were still
operating the Butte lab. There is no indication in the
record that there was any further discussion between Re-
spondents and the Union over Respondents ' proposal to
lease or close the Butte facility.
The complaint alleges that Respondents violated the
Act by informing the Union that they were closing their
lab facility in Butte . Assuming for the purpose of argu-
ment that Respondents had an obligation to bargain
about going out of the lab business as well as the effect
of such a lease or closure on the bargaining unit employ-
ees, the facts set forth above do not establish a violation
of the Act. There are two parts to a decision -making
process . An employer must make a decision with regard
to what he wants to do. That decision deals with his
own mental processes and is not subject to bargaining. It
is quite another matter when the employer takes action
based on that decision . At that point there may well be a
duty to bargain . In the Lange Co., 222 NLRB 558, 563
(1976),27 the Board affirmed the decision of Administra-
tive Law Judge William J. Pannier III, which held in
part as follows:
Counsel for the General Counsel , however,
argues that Respondent 's conduct is tainted by
virtue of the fact that it had already made the deci-
sion to transfer and lay off employees before advis-
ing the Union. Yet, in no case has the Board held
that an employer must defer making a decision con-
cerning terms and conditions of employment until it
has first conferred with the representative of its em-
ployees . The requirement is that , after reaching the
decision , the employer must then notify the repre-
sentative and afford the opportunity to discuss that
decision and to consider alternative proposals. Thus,
in Ozark Trailers, Incorporated, 161 NLRB 561
(1966), the Board made it clear that the illegality
lay not in the fact that the employer had first made
the decision before consulting with its employees'
representative . The illegality lay in the implementa-
tion of that decision prior to affording the repre-
sentative an opportunity to advance and discuss al-
ternative courses of action . Id. at 568.
This is also illustrated in Moffitt Building Materi-
als Company, et a!., 214 NLRB [655] (1974), where
the Board found that the employer had not violated
the Act even though it had made a decision to liqui-
date its business without so much as a fare-thee-well
to the bargaining representative , and where the
latter then learned of that decision , but made no
27 See also Lemon Tree, 231 NLRB 1168 (1977), enfd 618 F 2d 51 (9th
Ctr 1980)
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
effort to bargain with the employer. Id. Similarly, in
Association of Motion Picture and Television Produc-
ers, Inc., 204 NLRB 807 (1973), the representative
first learned of the decision when it was announced
by the employer. Nonetheless, no violation was
found as no bargaining was thereafter requested by
the representative. If, as is contended in the instant
case, it were the making of the decision prior to
consulting with the representative that constituted
the violation, then violations would have been
found in both of these cases. See also: A- V Corpora-
tion , 209 NLRB 451, 453-454 (1974).
Indeed, to accept the General Counsel' s argu-
ment in this matter would be to create great insta-
bility in bargaining relationships, for if formulation
of decisions had to be deferred, then bargaining
would be reduced to being conducted hypothetical-
ly in a vacuum. Employers are entitled to first
reach a decision. This provides the starting point
for any bargaining which then might follow. How-
ever, employers must then be willing to consider
the alternatives proposed by the bargaining repre-
sentatives before implementing those decisions.
Respondents have not implemented any decision they
may have made to lease or close their Butte lab and have
given the Union advance notice of their intention and
have provided the Union with a fair opportunity to bar-
gain. Respondents have not violated the Act by inform-
ing the Union of a decision to lease or close their lab fa-
cility and that allegation of the complaint must be dis-
missed.
4. The request for information
The complaint , as amended, alleges in substance that
the Union requested and Respondents refused to furnish
the sales agreement for the equipment that was trans-
ferred from the Butte lab to the Missoula lab, as well as
the lease agreement between David Vainio and the
Southgate Mall in Missoula for the Eye Care Missoula
lab. The background facts needed to put that information
in context are set forth in detail above. Also as found
above the Eye Care lab in Missoula constitutes part of a
single employer with Professional Eye Care in Butte
even though each has a separate bargaining unit for labo-
ratory employees.
At a negotiating session in September 1986 Kevin
Vainio took the position that Professional Eye Care had
no duty to bargain about the Missoula lab. He told the
union representatives that the equipment from Butte had
been sold to David Vainio and that David Vainio was
the sole operator of the Missoula lab. Union Representa-
tive Duggan asked to see a copy of the sales agreement
and a copy of the lease on the Missoula lab. Kevin
Vainio replied that it was none of the Union 's business.
However, a few moments later , Kevin Vainio had Flynn
bring a copy of what appeared to be the last page of a
lease. In addition, at some undisclosed time after the bar-
gaining session, Kevin Vainio called the union office and
told Taylor that the lease would be made available for a
certain cost. Taylor offered to let Respondents use the
Union's copying machine. By letter dated November 12,
1986, Kevin Vainio offered the Union a copy of the lease
and the related documents. However, the letter went on
to state:
When we receive payment of the sum of $26.50,
which represents a reasonable cost for copies and
copying by our employees, we will be happy to
provide you with a copy. This amount is for 53
pages at the rate of $.50 per page, which is the
amount charged by the federal courts for copies.
By letter dated November 17, 1986, Taylor informed the
Respondents that he would not pay any money or fees
for any documentation that the Union needed from the
Respondents. In the letter Taylor stated that the Union
had its own copying machine and if Respondents
brought the documents to the Union office, the Union
would make a copy for itself and another for Respond-
ents. The evidence does not indicate that any further
action was taken by either Respondents or the Union and
the documents were not given to the Union.
The information sought by the Union was reasonably
related to its need to evaluate whether work was being
unlawfully diverted from the Butte lab to the Missoula
lab, whether Eye Care was part of a single employer
with Professional Eye Care, and whether the Union had
the right to represent the lab employees of Eye Care. A
union may require information that will help determine
whether a recipient of transferred work is in some way
related to the transferring employer where it represents
the employees of the transferring employer. Bentley-Jost
Electric Corp., 283 NLRB 564 (1987). Information that
goes to the core of the employer-employee relationship is
presumptively relevant. Where the information sought
goes to matters occurring outside of the unit, relevance
must be proven. Calmat Co., 283 NLRB 1103 (1987).
Here the General Counsel has established that the re-
quested information was needed by the Union for it to
evaluate how it should proceed with its collective-bar-
gaining responsibilities. However, the finding that the in-
formation sought was relevant does not end the inquiry.
As the Board held in Century Air Freight, 284 NLRB 730
(1987), an employer and a union should bargain in good
faith regarding conditions under which relevant informa-
tion is to be furnished. Here the condition that Respond-
ents imposed was that the Union pay $26.50 for 53 pages
of photocopies at 50 cents a page. Though the Union re-
fused to pay that amount, it did offer to make the photo-
stats itself. Respondents neither accepted that offer nor
made any counterproposal. It simply did not furnish the
documents. As the Board held in Tower Books, 273
NLRB 671 (1984), enfd. mem. 772 F.2d 913 (9th Cir.
1985):
Here, the Union requested information such as the
names , addresses, and job classifications of only 12
employees, and their wages, hours, and other terms
and conditions of employment. The information
sought was basic and encompassed matters which
employers are required to provide to enable unions
to bargain intelligently and to fulfill their obliga-
tions as the selected representative of the employ-
PROFESSIONAL EYE CARE
er's employees.3 The cost and burden of compliance
ordinarily will not justify an initial , categorical re-
fusal to supply relevant data.4 "If there are substan-
tial costs involved in compiling the information in
the precise form at the intervals requested by the
Union, the parties must bargain in good faith as to
who shall bear such costs . . . ."5 The Respondent
expressed no willingness to bargain about costs. Ad-
ditionally, the onus is on the Respondent to show
that production of the data would be unduly bur-
densome. There is nothing in the record to substan-
tiate such a claim. On the contrary, it can be in-
ferred from the Respondent's failure to produce evi-
dence of substantial cost in response to the Union's
claim that the cost would be "de minimis," that the
costs for compiling basic information on only 12
employees was indeed negligible. Mindful that each
case of what constitutes good-faith bargaining must
turn on its particular facts, it is clear that the Re-
spondent's refusal to supply the information-while
neither justifying its request for costs nor offering to
bargain over the matter-was unreasonable. A lack
of good faith can be inferred therefrom.
3 See, e.g, Union Carbide Corp, 197 NLRB 717 (1972).
* See Electrical Workers IUE v. NLRB, 648 F.2d 18 at 26 (D C
Cir 1980)
5 Food Employers Council, 197 NLRB 651 (1972) Contrary to
the assertion of our dissenting colleague , this case indicates that
there is indeed a sound basis in the law for the Union's request that
the Respondent demonstrate a burdensome financial impact before
the Union would discuss costs
I believe that case is controlling in the instant situation.
Here Respondents started with an outright refusal to fur-
nish the relevant information. Later Respondents offered
to furnish information at a set fee but did not propose to
bargain about the fee. When the Union offered to make
the photocopies itself, Respondents did not accept the
offer or make any counterproposal. Under these circum-
stances, a lack of good faith can be inferred.
I find that Respondents violated Section 8(a)(5) and (1)
of the Act by refusing to furnish the Union with photo-
copies of David Vainio's lease on the Eye Care Missoula
facility and the sales agreement under which David
Vainio purchased equipment from Professional Eye Care.
5. The changes in hours
Until June 16, 1986, Respondents' employees at the
Butte lab worked a regular 8 -hour day, 40-hour week.
On June 16, 1986, their hours were reduced to 6 hours a
day.
Sometime in May 1987 Business Manager Flynn had a
conversation with Leonard Vainio in which they dis-
cussed the possibility of a cut in hours. Leonard Vainio
told Flynn that the Department of Labor might require
substantial back wages for overtime, but it was not a
problem because they would cut hours until they made
up the lost wages . On June 15, David Vainio instructed
Flynn to cut the hours of the lab employees to 6 hours a
day. The same day Flynn told employees Leonard Dala-
sera , Mike King , Gregg Wedlek, and Matt Grigsby that
their hours were to be reduced. The cut in hours was put
753
into effect the following day. No notice was given to the
Union about Respondents ' intention to change the hours,
and the Union did not become aware that the hours had
been changed until June 25, 1986.
Except for a few exceptional days where the employ-
ees worked 8 hours, the 6-hour workday remained in
effect until August 20, 1986, when the workday was re-
duced to 5 hours. Not long before that, the Labor De-
partment issued an order requiring the payment of back
wages for overtime. On August 19, Leonard Vainio told
Flynn to reduce the hours and David Vainio authorized
him to send out a notice to that effect.
On August 19, 1986, Flynn drafted a letter to Union
Representative Taylor telling him that due to economic
and business considerations, the hours worked in the
Butte lab "have been" reduced to 5 hours a day effective
August 20. The following day, August 20, Flynn distrib-
uted a notice to employees Dalasera, King, Grigsby, and
Valeno, which stated in part that their hours were re-
duced to a 5-hour day effective immediately. After noti-
fying the employees that their hours had been reduced,
Flynn notified the Union of the change by delivering the
letter that he had drafted the previous day.
The 5-hour day for Butte lab workers remained in
effect until September 5 or 6, 1986, when the hours were
raised to 8 hours a day. They remained at that level
thereafter.
There is no contention by the General Counsel that
the change in hours was motivated by antiunion consid-
erations . The sole question presented is whether the
changes in hours were unlawful because Respondents
made them unilaterally without giving the Union an op-
portunity to bargain about them. Respondents justified
their action on several grounds. None were persuasive.
Both Kevin and David Vainio testified that before reduc-
ing the hours they made a number of phone calls to the
Union but were unable to reach Union Representative
Taylor because he was out of town. They both asserted
that Taylor did not always respond to the telephone
messages they left with his office.28 Taylor's telephone
records establish that the Vainios did call him and did
leave messages . Kevin Vainio testified that on one occa-
sion he left a message that he wanted to talk to Taylor
about reduction in hours. I do not credit Kevin Vainio's
testimony in that regard. Other than that evidence, there
is nothing to indicate that the Union was informed of
Respondents' desire to reduce hours until after the hours
were in fact reduced. Regarding the August 20 reduction
in hours, Respondents did notify the Union in writing,
but only after the change had been put into effect. Obvi-
ously, Respondents knew how to use the mail. Under
these circumstances, I do not believe that Respondents
made a reasonable effort to notify the Union of their in-
tention to reduce the hours and did not give the Union
any opportunity to bargain about the matter until after
the hours were changed.
zs I credit Taylor's testimony to the effect that he always did answer
his messages . However , he acknowledged that he was often out of town
His delays in returning calls might well have led the Vamios to believe
that he was ignoring their calls.
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondents also contended that there was a time lag
between the time they requested bargaining and the time
that the Union would make its representatives available
for bargaining . However, Respondents cannot be heard
to complain about the possibility of the Union's delaying
a response to a notice of intention to reduce hours when
such a notice was never given. The Union was never
given an opportunity to bargain.
Respondents also contend that they had the right to
change the hours because of an agreement on a manage-
ment-rights clause . Prior to the events in question here,
the Union had proposed a management-rights clause that
included the right of the employer to schedule the work
subject to the terms of the agreement. Initially, Respond-
ents said they had no objection to that clause but then in
a counteroffer Respondents proposed a management-
rights clause that would specifically have given them the
right to determine "employee hours" as well as the
scheduling of work. The Union never agreed to that
change . There was no agreement either on that clause or
on a contract in general . Even if there were an agree-
ment on that clause and the clause was subject to the in-
terpretation that Respondents wish to give it, the clause
would have no operative effect until an agreement was
reached on a contract as a whole. Agreement on one
part of a contract is in the usual case contingent on
agreement concerning the rest of the contract . Respond-
ents did reduce the hours of work of the employees in
the Butte lab without notifying the Union of their inten-
tion to do so and without affording the Union an oppor-
tunity to bargain about it.
Where, as here, an employer is bargaining with a
Board-certified union, it violates Section 8 (a)(5) and (1)
of the Act if it unilaterally and in the absence of impasse
makes changes in the terms and conditions of employ-
ment of its employees . NLRB v. Katz, 369 U.S. 736
(1962); St. Elizabeth Community Hospital, 240 NLRB 937
(1979). The Union is the duly certified representative of
Professional Eye Care's laboratory employees; hours of
work constitute a mandatory subject of bargaining;
though the unit was small, the change in the number of
hours worked was substantial and applied to the entire
bargaining unit; the changes were made without prior
notice to the Union and without any opportunity on the
part of the Union to bargain about them before they
were put into effect; and Professional Eye Care has not
come forward with any credible defense that would jus-
tify the unilateral change in hours. By reducing the
number of hours worked as set forth above, Professional
Eye Care has violated Section 8(a)(5) and (1) of the Act.
6. The failure to bargain in good faith
The second amended consolidated complaint alleges
that Respondents failed to bargain in good faith with the
Union. The general law regarding good-faith bargaining
has been set forth at length in such cases as West Coast
Casket Co., 192 NLRB 624 (1971), enfd. in pertinent part
469 F.2d 871 (9th Cir. 1972), and Borg-Warner Controls,
198 NLRB 726 (1972). Section 8(d) of the Act requires
the employer and the union to confer in good faith with
respect to wages, hours, and other terms and conditions
of employment. That section does not compel either
party to agree to a proposal, but there must be a good-
faith effort to reach an agreement. Each case stands on
its own and good faith must be determined by scrutiniz-
ing the totality of the parties' conduct. As was held in
West Coast Casket Co., supra at 636:
From the context of an employer's total conduct, it
must be decided whether the employer is lawfully
engaged in hard bargaining to achieve a contract
that it considers desirable or is unlawfully endeavor-
ing to frustrate the possibility of arriving at any
agreement. Sunbeam Plastics Corporation, 144
NLRB 1010.
Professional Eye Care and the Union held bargaining
sessions on July 24 and September 19, 1986. The com-
plaint alleges that Respondents manifested bad faith in
those sessions. The parties had engaged in bargaining for
some time before then. By December 13, 1985, at least
some progress had been made. At that meeting Kevin
Vainio told the union representatives that there was
agreement regarding union security, hours of work, fore-
men working, discrimination, posting of contract, bi-
monthly pay periods, successor clause, grievance and ar-
bitration , moonlighting clause, management rights , funer-
al leave , jury duty , civil rights clause, minimums, and
language concerning the length of the agreement. Kevin
Vainio also told the Union that open issues included
wages, vacation, insurance, holidays, report and callout,
and jurisdiction. At that meeting Union Representative
Duggan asked Kevin Vainio for a written counterpro-
posal before the next meeting . They met again on Janu-
ary 17, 1986. Professional Eye Care had no counterpro-
posal and once again Duggan asked for one. David
Vainio was present at that meeting. He said that his
bottom-line position was that wages and costs had to be
frozen, but later David Vainio proposed to cut Dala-
sera's pay from $7 to $5 and the pay of other lab em-
ployees from $4.50 an hour to $4 an hour. David Vainio
said that all Professional Eye Care had to do was talk to
the Union about those things and it did not have to agree
with the Union on anything. He told the union represent-
atives that John Flynn would talk to them until 5 p.m.
and he left the meeting.
On June 25, 1986, David Vainio called the Union and
asked to schedule a meeting . The following day Union
Representative Duggan wrote to David Vainio. The
letter said that the Union could not meet on such short
notice and that the Union's schedule did not allow a
meeting at that time or the following week. It went on
to state that during the meeting of January 17, 1986, the
Union had requested a written counterproposal, which
had not yet been received. In the letter Duggan took the
position that a written proposal was needed for any
meaningful negotiations to take place and reference was
made to David Vainio's verbal rescission of certain ac-
tions taken by Kevin Vainio at the previous meeting of
December 13, 1985.
The parties did meet for a bargaining session on July
24, 1986. David Vainio and Flynn represented Profes-
sional Eye Care. Duggan and Taylor represented the
Union. David Vainio arrived at the meeting 15 or 20
PROFESSIONAL EYE CARE
minutes after it was scheduled to start. He began by
complaining about Dalasera's work. He said that Dala-
sera was going to have to be reprimanded or have his
wages cut to $5 an hour. Duggan replied that they
would have a grievance and disciplinary procedure if a
contract was agreed to, but at that point they should dis-
cuss negotiations. There was discussion about the open-
ing of the Missoula lab and how it would affect the
Butte lab.
In mid-1985 the Union had given Professional Eye
Care a proposed contract. At the July 24, 1986, meeting
Professional Eye Care gave the Union a document enti-
tled "Changes to Machinists Union Contract." The docu-
ment was an article by article response to the Union's
original proposal showing "no change," "omit," or pro-
posing new language . The Professional Eye Care's pro-
posal called for $5 an hour for people able to perform all
lab duties, and $4 an hour for people able to perform
only certain duties. The Union's original proposal called
for a full grievance procedure culminating in binding ar-
bitration. Professional Eye Care's counterproposal al-
lowed for the filing of grievances, but contained a provi-
sion stating that if no agreement was reached on the
grievance, the decision of the employer prevailed. Pro-
fessional Eye Care's proposal also provided that all costs
of grievances were to be borne by the Union. Under
Professional Eye Care's proposal there would be no
binding arbitration, all costs of arbitration would be on
the Union, and the decision of an arbitration board
would be taken into consideration by the employer but
not be binding on it. The Union's proposal allowed au-
thorized representatives of the Union to contact employ-
ees during shop hours as long as the contacts did not un-
reasonably interfere with the duties of the employees and
as long as other conditions were met. Professional Eye
Care's proposal was that no agent of the Union could
contact employees during work hours. Professional Eye
Care's proposal ended with a clause that would provide
for costs incurred by careless acts of employees being re-
corded and subtracted from the employees' pay.
Flynn also gave the Union a document entitled "Lab
Quality Guidelines" which set forth procedures for qual-
ity control and employee discipline. During the course of
the meeting David Vainio stated that there would be no
contract unless he was permitted to recover any costs
that were brought about by either negligence or the will-
ful destruction of property by his employees. Duggan
questioned the legality of that type of clause.
Less than an hour after negotiations began, David
Vainio left the meeting. Before he left, Duggan requested
that he be given something in writing to show that
Flynn had authority to bargain. David Vainio signed a
document stating that he authorized Flynn to bargain in
his place when necessary.29 After David Vainio left, the
meeting only lasted another half hour. During that time
they discussed Professional Eye Care's proposals.
Duggan said that they had already reached agreement on
a clause for working foremen. Flynn replied that David
Vainio now wanted that clause out. Duggan said that
29 Flynn credibly testified that the only authority he had at the July 24
negotiating session was to finish the discussion and to obtain knowledge.
755
Professional Eye Care's wage proposal was less than the
one that it had proposed on two previous occasions.
Flynn replied that the Union would have to talk to
David Vainio about wages. Duggan referred to a number
of other proposals that Professional Eye Care had at one
time agreed to and now wanted deleted, and Flynn re-
plied each time that he could not do anything about it
because David Vainio wanted it out. There was talk
about the jurisdiction clause originally requested by the
Union. That clause was not geared to the work of labo-
ratory employees. Duggan said that he recognized that
some of the Union's proposals were boilerplate and did
not apply to an optical lab so that before the next meet-
ing he would draft another document that better de-
scribed the work of people the Union was bargaining
for. He sent a full contract proposal to Professional Eye
Care on August 13, 1986.30
The next negotiating session was scheduled to take
place at 9 a.m. on September 19, 1986. In arranging for
the meeting, the Union had requested that Professional
Eye Care furnish a written counterproposal in advance.
David Vainio arrived for the meeting half an hour late.
At that time he and his brother Kevin met with Duggan,
Taylor, and Matt Grigsby, one of Professional Eye
Care's employees. David Vainio said that there would be
no negotiations as long as Grigsby was in the room.
Duggan replied that it was the Union's prerogative to
decide who would be on the negotiating committee.
David Vainio then said that there would be no agree-
ment unless there was some method for him to recover
losses that employees were responsible for. Duggan said
that it was not appropriate to talk about employee defi-
ciencies at that time because they were there to negotiate
a labor agreement. Duggan brought up the subject of the
Missoula lab and Kevin Vainio said that the Union al-
ready had had an opportunity to negotiate on that.
About 15 minutes after the negotiating session began,
David Vainio and Flynn left the meeting. Shortly there-
after Kevin Vainio left. He came back with Flynn and
Flynn said that he was not representing Professional Eye
Care and he had no authority to do so. Duggan remind-
ed Flynn that at the July 24 meeting David Vainio had
given the Union a written document authorizing Flynn
to bargain. Flynn replied that he was only authorized to
talk to the Union and that he was not able to strike any
deal. At that point Duggan asked Kevin Vainio to
supply a document authorizing him to bargain. Kevin
Vainio obtained a statement signed by David Vainio
saying that Kevin Vainio was authorized to bargain as
the need arose. At that point Kevin Vainio asked
Duggan to show his authority to bargain for the Union.
Duggan showed him his union credential card.
The meeting resumed with Kevin Vainio and Flynn
representing Professional Eye Care. Duggan asked for
Professional Eye Care's written proposal and Kevin
so These findings are based on the credited testimony of Duggan. He
appeared to have a very good memory and his demeanor was such as to
indicate that full reliance could be placed on his testimony. His testimony
was in part corroborated by that of Taylor and Flynn. To the extent that
testimony of David and Kevin Vainio is inconsistent with that of
Duggan, I credit Duggan and do not credit David and Kevin Vainio.
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Vainio gave him another copy of the "Changes to Ma-
chinists Union Contract" that had been discussed in the
previous meeting . There was talk about the Missoula lab
and Kevin Vainio asserted that the Union had abandoned
its right to negotiate.
While the parties were going over Professional Eye
Care's proposals, David Vainio returned to the meeting
and asked how things were going . David Vainio said,
"Have we reached a stalemate yet? Let's get these pick-
ets going , I'm tired of fooling around ." Duggan an-
swered that there was a long way to go in negotiations
before there was any kind of impasse. David Vainio then
said that he was getting tired of all the time he was
spending with this "thing." He asked why they did not
call the thing "quits." David Vainio then went on to say
that they would never have any agreement unless the
agreement prohibited union representatives from being
on the premises. David Vainio said that he did not want
to see "you people" on the premises any more . He then
left the meeting.
After David Vainio left, Kevin Vainio discussed some
of the Union's proposals. He said that Professional Eye
Care did not agree to the union shop proposal . Duggan
replied that Professional Eye Care had agreed to it on
three other occasions. Kevin Vainio said that Profession-
al Eye Care wanted to make sure that the Union was not
treating any of the people with favoritism and that all of
them were paying dues. Duggan replied that they could
accomplish that by agreeing to a checkoff provision.
Kevin Vainio said that that was not what he meant and
that he wanted the right to inspect the union records.
Duggan replied that the internal union records were
none of his business and that they were not even a
proper subject for bargaining.
After further discussion concerning the Missoula lab,
the parties went on to direct their attention to the man-
agement-rights clause that had been proposed by the
Union and that had previously been agreed to by Profes-
sional Eye Care. Kevin Vainio said that he wanted to
add something to the management -rights clause concern-
ing employee hours . Duggan said that the Union's man-
agement-rights clause had been tentatively agreed to at
three or four previous meetings. Kevin Vainio replied
that he wanted to change it "because it's September 19."
They then spoke about hours and overtime. Duggan said
that the Union's proposal accommodated a complaint
that Professional Eye Care had made in previous meet-
ings by allowing a 6 to 10 a.m. starting time , which he
understood Flynn had wanted at the July 24 meeting.
Kevin Vainio took the position that it should be a 6 a.m.
to 10 p.m. starting time . When Duggan said that Profes-
sional Eye Care was taking a regressive position, Kevin
Vainio replied that times do change. As the meeting pro-
gressed , Kevin Vainio retreated from other offers that he
had previously made.
The parties broke for lunch at 12:15 p.m. that day, at
which time Duggan again reminded Kevin Vainio that
he expected copies of the lease and sales agreements on
the Butte equipment . Kevin Vainio said that he had no
intention of giving either of those documents , but that he
would have a proposal for the Union when he got back.
They returned from lunch about 1:40 p.m. and Kevin
Vainio gave Duggan a five-page handwritten document
called "Labor Agreement," that was extremely difficult
if not impossible to read . It was accompanied by three
pages of the Union 's proposal on which handwritten
changes were made . Kevin Vainio said that the union-se-
curity clause meant that he wanted the right to inspect
internal union records to determine that the Union was
not lying to him about people paying dues and how
much they paid . In the management-rights clause , he spe-
cifically added the right to determine hours. The meeting
adjourned about 2 p.m.sl
I find that Professional Eye Care did not engage in
good-faith bargaining . David Vainio, the key negotiator
for Professional Eye Care , was late for meetings and left
them early ; he went through the motions of giving au-
thority to bargain to Flynn when Flynn had no real au-
thority (i.e., Flynn told the Union that it would have to
talk to David about wages); David Vainio played cat-
and-mouse games with the Union in which his brother
Kevin would agree to a union proposal and then David
would veto it; many of Professional Eye Care's offers ap-
peared to be whimsical rather than serious (a 6 a.m. to 10
p.m. starting time for employees in a business that ap-
peared to be open from 8 a .m. to 5 p .m.); David Vainio's
remarks indicated that he was not serious about negotia-
tions (he was tired of fooling around and wanted to get
the pickets going); David Vainio made statements about
prohibiting union agents from coming on the premises;
and Professional Eye Care insisted on inspecting internal
union records . In addition, as found above, Professional
Eye Care demonstrated its bad faith by refusing to fur-
nish documents needed by the Union to intelligently bar-
gain . Taken as a whole, Professional Eye Care's conduct
indicates that it had no desire to reach an agreement but
was taking whatever actions were necessary to thwart
one. I find that Professional Eye Care did not bargain in
good faith and therefore violated Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
1. Respondents Professional Eye Care and Eye Care
constitute a single employer and are jointly and severally
liable for any backpay due and for otherwise remedying
their unfair labor practices.
2. Eye Care violated Section 8(a)(3) and (1) of the Act
by refusing to hire Matt Grigsby on and after September
15, 1986, because of his union activity.
3. Respondents , through their agent David Vainio,
violated Section 8(a)(1) of the Act by assaulting John
Flynn because Flynn gave testimony adverse to Re-
spondents ' interest at an NLRB hearing.
4. Professional Eye Care violated Section 8(a)(1), (3),
and (4) of the Act by discharging Dalasera on April 10,
1987, because of Dalasera 's union activity and because he
gave testimony in Board and Board-related court pro-
ceedings.
81 These findings are based on the credited testimony of Duggan,
which was substantiated in part by Taylor and Flynn To the extent that
the testimony of David and Kevin Vainio is mconsistent with that of
Duggan , I do not credit Kevin and David Vainio.
PROFESSIONAL EYE CARE
5. Professional Eye Care violated Section 8(a)(5) and
(1) of the Act by
(a) Refusing to honor the Union's request to supply it
with photocopies of David Vainio's agreement to buy
equipment from Professional Eye Care and with David
Vainio's lease on Eye Care's Missoula premises.
(b) Changing the hours of employment of employees
in the Professional Eye Care laboratory bargaining unit
without notifying the Union and affording it an opportu-
nity to bargain about the change.
(c) Failing to bargain in good faith with the Union.
THE REMEDY
Having found that Respondents engaged in unfair
labor practices, I shall recommend that they be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Eye Care violated the Act by refus-
ing to hire Matt Grigsby on and after September 15,
1986, because of his union activity, I recommend that
Respondents be ordered to offer him immediate employ-
ment at the Eye Care laboratory and to make him whole
for any loss of earnings resulting from the refusal to hire
him by payment to him of a sum of money equal to the
amount he normally would have earned as wages and
benefits from September 15, 1986, which was the date he
would have been hired absent the unlawful refusal to
hire him, to the date on which an offer of employment is
made, less net earnings during that period. The amount
of backpay will be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).32
Having found that Professional Eye Care discharged
Leonard Dalasera in violation of Section 8(a)(1), (3), and
(4) of the Act, I recommend that Respondents be or-
dered to unconditionally offer him reinstatement at the
Professional Eye Care laboratory, if they have not al-
ready done so, and to make him whole for any loss of
earnings resulting from his discharge by payment to him
of a sum of money equal to the amount he normally
would have earned as wages and other benefits from
April 10, 1987, which was the date of his discharge, to
May 26, 1987, when he returned to work. The amount of
backpay shall be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in New
Horizons for the Retarded, supra.33
Having found that Professional Eye Care violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to honor the
Union's request to supply certain photocopies, I recom-
mend that Respondents be ordered to furnish the Union
with photocopies of David Vainio's agreement to buy
equipment from Professional Eye Care and with David
Vainio's lease on the Eye Care premises.
Having found that Professional Eye Care violated Sec-
tion 8(a)(5) and (1) of the Act by changing the hours of
employment of employees in the Professional Eye Care
laboratory bargaining unit without notifying the Union
32 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
88 See fn. 32.
757
and affording it an opportunity to bargain about the
change, I recommend that Respondents be ordered to
make the employees in that bargaining unit whole for
any loss of earnings resulting from their reduction in
hours by payment to each of them of a sum of money
equal to the amount he or she normally would have
earned as wages and other benefits if they had worked
full 8-hour days between June 16, 1986, when the hours
of work were first reduced, until September 6, 1986,
when the employees were once again put on an 8-hour
day, with interest thereon to be computed in the manner
prescribed in New Horizons for the Retarded, supra.
Having found that Professional Eye Care violated Sec-
tion 8(a)(5) and (1) of the Act by failing to bargain in
good faith with the Union, I recommend that Respond-
ents be ordered to bargain in good faith with the Union
as the exclusive representative of their employees in the
following bargaining unit:
All laboratory employees employed by David
Vainio d/b/a Professional Eye Care at the facility
located at 225 South Idaho, Butte, Montana; but ex-
cluding all office clerical employees, guards and su-
pervisors as defined in the Act.
It is further recommended that Respondents be or-
dered to preserve and, on 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 analyze the amount of backpay.
It is further recommended that Respondents be or-
dered to expunge from their files any reference to the
failure to hire Grigsby or the discharge of Dalasera and
to notify them in writing that that has been done and
that evidence of those unlawful actions will not be used
as a basis for future personnel action against them.
As Respondents' acts demonstrated a tendency to
behave in total disregard of the rights of their employees,
I recommend a broad 8(a)(1) remedy to enjoin any and
all violations of that section of the Act. Hickmott Foods,
242 NLRB 1357 (1979); Goren Printing Co., 285 NLRB
38 (1987).
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed34
ORDER
The Respondents, David Vainio, H. Marie Vainio,
Kevin Vainio and Leonard Vainio, d/b/a Professional
Eye Care, and Eye Care, Butte and Missoula, Montana,
their officers, agents, successors, and assigns, shall, joint-
ly and severally
1. Cease and desist from
(a) Refusing to hire any applicant for employment be-
cause of that applicant's union activity.
34 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Assaulting any person because that person gave
testimony adverse to Respondents' interest at an NLRB
hearing.
(c) Discharging any employee because of that employ-
ee's union activity or because that employee gave testi-
mony in Board or Board-related court proceedings.
(d) Failing to bargain in good faith with Local Lodge
88, International Association of Machinists and Aero-
space Workers, AFL-CIO in the following bargaining
unit:
All laboratory employees employed by David
Vainio d/b/a Professional Eye Care at the facility
located at 225 South Idaho, Butte , Montana; but ex-
cluding all office clerical employees, guards and su-
pervisors as defined in the Act.
(e) Refusing to honor the request of that Union to
supply it with photocopies of David Vainio's agreement
to buy equipment from Professional Eye Care and with
David Vainio's lease on Eye Care's Missoula premises.
(f) Changing the hours of employment of employees in
the Professional Eye Care laboratory bargaining unit
without notifying the Union and affording it an opportu-
nity to bargain about the change.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Matt Grigsby immediate employment at the
Eye Care laboratory and make him whole with interest
for lost earnings in the manner set forth in the remedy
section of this decision.
(b) Offer Leonard Dalasera unconditional reinstate-
ment at the Professional Eye Care laboratory, if that has
not already been done, and make him whole with inter-
est for lost earnings in the manner set forth in the
remedy section of this decision.
(c) Preserve and, on 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 analyze the amount of backpay.
(d) Expunge from their files any reference to the fail-
ure to hire Grigsby and the discharge of Dalasera and
notify them in writing that that has been done and that
evidence of those unlawful actions will not be used as a
basis for future personnel action against them.
(e) Bargain in good faith with Local Lodge 88, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO in the following bargaining unit:
All laboratory employees employed by David
Vainio d/b/a Professional Eye Care at the facility
located at 225 South Idaho, Butte, Montana; but ex-
cluding all office clerical employees, guards and su-
pervisors as defined in the Act.
(f) Honor the request of that Union to supply it with
photocopies of David Vainio's agreement to buy equip-
ment from Professional Eye Care and with David Vain-
io's lease on Eye Care's Missoula premises.
(g) Make the employees in the above-described bar-
gaining unit who were employed between June 16 and
September 6, 1986, whole for their reduction in hours,
with interest, as is set forth in the remedy section of this
decision.
(h) Post at their Butte and Missoula , Montana facilities
copies of the attached notice marked "Appendix."35
Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondents' authorized representative, shall be posted by
the Respondents immediately on receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ents to ensure that the notices are not altered, defaced,
or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
IT IS FURTHER RECOMMENDED that those allegations of
the complaint as to which no violations have been found
are dismissed.
85 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to hire any applicant for employ-
ment because of that applicant's union activity.
WE WILL NOT assault any person because that person
gave testimony adverse to our interests at an NLRB
hearing.
WE WILL NOT discharge any employee because of that
employee's union activity or because that employee gave
testimony in Board or Board-related court proceedings.
WE WILL NOT fail to bargain in good faith with Local
Lodge 88, International Association of Machinists and
Aerospace Workers, AFL-CIO in the following bargain-
ing unit:
All laboratory employees employed by David
Vainio d/b/a Professional Eye Care at the facility
located at 225 South Idaho, Butte , Montana ; but ex-
cluding all office clerical employees, guards and su-
pervisors as defined in the Act.
WE WILL NOT refuse to honor the request of that
Union to supply it with photocopies of David Vainio's
agreement to buy equipment from Professional Eye Care
and with David Vainio's lease on Eye Care' s Missoula
premises.
WE WILL NOT change the hours of employment of em-
ployees in the Professional Eye Care laboratory bargain-
PROFESSIONAL EYE CARE 759
ing unit without notifying the Union and affording it an
opportunity to bargain about the change.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL offer Matt Grigsby immediate employment
at the Eye Care laboratory with backpay plus interest.
WE WILL offer Leonard Dalasera unconditional rein-
statement at the Professional Eye Care laboratory with
backpay plus interest.
WE WILL expunge from our files any reference to the
failure to hire Grigsby and the discharge of Dalasera and
WE WILL notify them in writing that that has been done
and that evidence of those unlawful actions will not be
used as a basis for future personnel action against them.
WE WILL bargain in good faith with Local Lodge 88,
International Association of Machinists and Aerospace
Workers, AFL-CIO in the bargaining unit set forth
above.
WE WILL honor the request of that Union to supply it
with photocopies of David Vainio 's agreement to buy
equipment from Professional Eye Care and with David
Vainio's lease on Eye Care's Missoula premises.
WE WILL give backpay plus interest for their reduc-
tion in hours to employees in the Professional Eye Care
laboratory bargaining union who are employed between
June 16 and September 6, 1986.
DAVID VAINIO, H. MARIE VAINIO, KEVIN
VAINIO AND LEONARD VAINIO, D/B/A
PROFESSIONAL EYE CARE
EYE CARE