F. W. Judge Optical Works, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1948

78 N.L.R.B. 385 (N.L.R.B. 1948)

In the Matter of F. W. JUDGE OPTICAL WORKS, INC., and LOCAL No. 21,
UNITED LEATHER WORKERS INTERNATIONAL UNION (A. F. OF L.)
Case No. 1-C-2872.Decided July 19, 1948
Mr. Leo J. Halloran, for the Board.
Mr. Jarvis Hunt, of Boston, Mass., for the Respondent.
DECISION
AND
ORDER
On June 9, 1947, Trial Examiner C. W. Whittemore issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto., Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief 2
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief of the Respondent, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the additions and modifications 4 herein-
after set forth.
1 Those provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which
the Trial Examiner found were violated herein, are continued in Section 8 (a) (1) and
Section 8 ( a) (3) of the Act , as amended by the Labor Management Relations Act, 1947.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -man panel consisting
of the undersigned Board Members [Houston , Reynolds , and Gray].
8 Based upon the evidence adduced at the hearing , we make the followigg corrections in,
the Trial Examiner's findings of fact: ( 1) we find that during the year 1945 , O'Brien was
absent from work frequently ; from January 1 until April 8, 1946, O ' Brien was absent
from work without leave of the Respondent on two separate occasions for a total loss of
23( hours; ( 2) while, as found by the Trial Examiner, the testimony of Grant and Judge
is inconsistent on several important points, we find that their testimony is not inconsistent
on all points ; ( 3) we find that Grant admitted talking about O'Brien 's discharge with
employees Wight and Pokorski , but denied talking about the matter with any of the
Respondent 's other employees . The foregoing corrected findings do not affect our resolutions
of the issues of this case.
78 N. L . R. B., No. 46.
385
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found that the Respondent discriminatorily
discharged Joseph F. O'Brien in violation of Section 8 (3) of the Act,
and he recommended that the Respondent be required to reinstate
O'Brien with back pay. In this connection, the Trial Examiner re-
jected the Respondent's contention that O'Brien's back pay should be
abated because his case was allegedly compromised as part of a written
agreement wherein the parties settled the strike existing at that time.
Although the Intermediate Report does not indicate that the attor-
ney who represented the Respondent during the alleged settlement
negotiations testified, as also did Judge, that the Union had agreed to
drop O'Brien's case altogether, we are nevertheless of the opinion, as
the Trial Examiner in effect concluded, that at the very most the parties
agreed not to make O'Brien's discharge one of the issues disposed of by
the settlement, and, therefore, that they did not intend to preclude
O'Brien or the Union from pursuing other available remedies in
40'Brien's behalf. Indeed, the written agreement itself contains no
reference to O'Brien. In any event, and even assuming that the parties
*did agree to abandon O'Brien's case finally and without further rem-
edy, we agree with the Trial Examiner that the facts of this case
furnish no justification for mitigating O'Brien's back pay.4
2. We also agree with the Trial Examiner's conclusion that the Re-
spondent violated Section 8 (1) of the Act. In doing so, however, we
do not rely on the evidence concerning the circulation of the petition
described in the Intermediate Report. The record shows that When the
petition was brought to the attention of Judge, the Respondent 's treas-
urer, the following notice, which was suggested and dictated by the
attorney for the Union, was posted in the Respondent's plant :
NOTICE TO ALL EMPLOYEES
The F. W. Judge Optical Works , Inc., has a contract with Local
21 A. F. of L., and under the law that Union is the only Union that
can be recognized by the Company as a bargaining unit until the
expiration of the contract , date Aug. 1947.
Under the law all employees are forbidden to conduct any union
activities on company time, and are subject to dismissal if indulg-
ing in this practice.
(Signed) F. W. JUDGE,
Treasurer, F. W. Judge Optical Works, Inc.
4 Section 10 ( a) of the Wagner Act provided that the Board 's authority "to prevent any
person from engaging in any unfair labor ' practice . . . shall be exclusive , and shall not
be affecfed by any other means of adjustment or prevention that has been or may be
established by agreement, code, law, or otherwise ." Similar language appears in Section
10 (a) of the amended Act.
F. W. JUDGE OPTICAL WORKS, INC. 387
In view of these facts, we are of the opinion that the Respondent
acted promptly and reasonably to dispel any coercion suggested by the
circumstances surrounding the circulation of the petition.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, F. W. Judge Opti-
cal Works, Inc., Salem, Massachusetts, and its officers, agents, succes-
sors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 21, United Leather
Workers International Union (A. F. of L.), or any other labor organi-
zation of its employees, by discharging or refusing to reinstate any
of its employees, or by discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of
employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join or
assist the United Leather Workers International Union (A. F. of L.),
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Joseph F. O'Brien immediate and full reinstatement
to the position which he occupied on April 12, 1946, or to a substan-
tially equivalent position, without prejudice to his seniority and other
rights and privileges;
(b) Make whole Joseph F. O'Brien for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him,
by payment to him of a sum of money equal to the amount which he
normally would have`earned as wages during the period from April 12,
1946, to the date of the Respondent's offer of reinstatement, less his net
earnings during said period;
(c) Post at its plant in Salem, Massachusetts, copies of the notice
attached hereto and marked "Appendix A." 5 Copies of such notice,
to be furnished by the Regional Diretcor for the First Region, shall,
after being duly signed by the Respondent's representative, be posted
I In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice, before the words "A Decision and Order," the words . "A
Decree of the United States Circuit Court of Appeals Enforcing."
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the First Region (Boston,
Massachusetts) in writing within ten (10) days from the date of
this Order, what steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist LOCAL No. 21, UNITED
LEATIIER WORKERS INTERNATIONAL UNION (A. F. OF L.), or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection.
AVE WILL OFFER to Joseph F. O'Brien immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights or privileges previ-
ously enjoyed, and make him whole for any loss of pay suffered as
a result of the discrimination against him.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in, or activity on behalf of, any such labor organization.
F. W. JUDGE OPTICAL WORKS, INC.,
Employer.
By ----------------------------------- ---
(Representative ) (Title)
Dated------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other-material.
F. W. JUDGE OPTICAL WORKS, INC.
INTERMEDIATE REPORT
Mr. Leo J. Hallos an, for the Board
Mr. Jarvis Hunt, of Boston, Mass., for the respondent.
STATEMENT OF THE CASE
389
Upon a charge filed August 15, 1946, by Local No. 21, United Leather Workers
International Union, (A F. of L.), herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the First
Region (Boston, Massachusetts), issued its complaint dated April 4, 1947, against
F. W. Judge Optical Works, Inc., Salem, Massachusetts, herein called the respond-
ent. The complaint alleged that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint, the charge, and a notice
of hearing were served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance:
(1) that the respondent violated Section 8 (1) and (3) of the Act by discrimi-
natorily discharging Joseph F. O'Brien because of his union activities ; and (2)
that the respondent violated Section 8 (1) of the Act by (a) making non-
membership in a union a condition of employment, (b) threatening to close its
plant if its employees organized, (c) interrogating its employees regarding their
union membership, (d) warning its employees not to join a union, (e) seeking
by inducement to compel striking employees to terminate concerted activities, and
(f) allowing its premises to be used for the circulation among its employees of
a petition prepared for their withdrawal from the Union and for the formation
of an independent union.
In its answer filed April 14, 1947, the respondent denied generally its com-
mission of the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held from April 28 to May 2, 1947, inclusive,
at Boston, Massachusetts, before the undersigned, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent appeared
by counsel. Both parties participated in the hearing, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues.
At the end of the hearing, the Trial Examiner granted a joint motion, made by
counsel for the Board and for the respondent, to conform the pleadings to the
proof adduced as to dates, spelling of names, etc. The hearing was closed after
oral argument before the Trial Examiner by counsel for the Board and for the
respondent.
On June 2, 1947, the counsel for the respondent filed with the Trial Examiner
a "Request for Findings of Fact" and a "Request for Rulings of Law and Brief."
As to the requested findings of fact, the Trial Examiner hereby rejects all such
proposed findings (numbered from 1 to 9, inclusive) which are claimed to be
based "upon all the evidence in the case" ; accepts the proposed findings which
follow the claim that they are based upon "portions of the evidence" : Nos. 1, 2,
4, 9, 12, 16, 25, 26, 28, 29, 30, 31, 32, 34, 37, 40, 43, 44, 46, 47, 56, 57, 63, and 64; and
rejects those numbered : 3, 5, 6, 7, 8, 10, 11, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24,
27, 33, 35, 36, 38, 39, 41, 42, 45, 48, 49, 50, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 65,
66, and 67. As to the requested rulings of law, the following are accepted : Nos.
1, 3, 4, 5, 6, 11, 14, 15, 17, 19, and 20; and the following are rejected : Nos. 2, 7, 8, 9,
79S767-49-vol 78-26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10, 12, 13, 16, 18, 21, 22, 23, 24, 25, and 26. A brief, dated June 2, has been
received from counsel for the Board.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, F. W. Judge Optical Works, Inc., is a Massachusetts corpora-
tion having its principal office and plant at Salem, Massachusetts, where it is
engaged in the business of buying, selling, and manufacturing lenses and imita-
tion jewels.
In the conduct of its business and in the operation of its plant, the respondent,
during 1946, purchased raw materials, consisting principally of glass, felt and
emery, valued at more than $25,000. Approximately 10 percent of such raw
materials were purchased outside the Commonwealth of Massachusetts and were
transported to its plant at Salem. During the same period, the total value of its
finished products was more than $100,000. Approximately 75 percent of such
finished products were shipped to points outside the Commonwealth of
Massachusetts.
The respondent admits that it is engaged in interstate commerce within the
meaning of the Act'
II. THE ORGANIZATION INVOLVED
Local No. 21, United Leather Workers International Union, A. F. of L., is a
labor organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues and related, undisputed events
During the period relevant to the issues, from 30 to 100 workers were em-
ployed at the respondent's plant. There is no evidence of self-organizational
efforts among the employees before March 1946.
On April 12, 1946, employee Joseph F. O'Brien was discharged by Superin-
tendent Louis P. Grant. On April 25 employees Phillip Bellino and Edward
Beausoliel were discharged. On April 26 the employees went on strike, insisting
that the three above-named employees be reinstated. Following negotiations,
during which Treasurer F. W. Judge stated that he would close the plant down
before he would take O'Brien back, representatives of the Union and of the
respondent entered into a strike-settlement agreement on May 29, 1946. The
agreement provided for the reinstatement of Bellino and Beausoliel. Shortly
after returning to work on or about June 3, the employees went again on strike.
The second strike terminated with the signing of a year's contract, on August 2,
1946, between the Union and the respondent. Neither strike is alleged in the
complaint as having been caused or prolonged by the respondent's unfair labor
practices. Only certain events, claimed to have occurred during the strikes, in-
eluding statements by Superintendent Grant, are in issue, and will be discussed
below.
i The findings as to commerce are based upon a stipulation entered into at the hearing
by counsel for the Board and for the respondent.
F. W. JUDGE OPTICAL WORKS, INC. 391
Nor are the discharges of Bellino and Beausoliel alleged to have been unfair
labor practices. Only the discharge of O'Brien is in issue. On August 22, 1946,
the respondent was informed by the Board's First Regional Office that the Union
had filed charges claiming that O'Brien's discharge was in violation of the Act.
Also involved are numerous alleged coercive remarks and interrogations by
Grant and Judge, before and after the strike, and the open circulation, in the
plant, of an anti-union petition in January 1947.
B. The discharge of Joseph F. O'Brien
1. Events relevant to the discharge
O'Brien was employed by the respondent early in January 1945. He worked
as a grinder until August of that year, when he became a presser of molten glass
into imitation jewels. He remained a presser until his discharge in April 1946,
at various times instructing new help in the craft and, at the time of his dis-
charge, receiving a higher base pay rate than any other presser in the plant'
Before being hired by the respondent, O'Brien had injured his back, and the
effect necessitated his wearing, at the plant and throughout 1945, a brace or
"corset." On several occasions during the year, he was absent from work, or was
granted permission by Superintendent Grant to leave early. Both Grant and
Judge were aware of O'Brien's injured back. From the first of January 1946,
however, until April 9 he was not absent from work except for a few days in
February when, with full permission of management, he was away due to death
of a relative.
At a Christmas party in 1945, Judge told a number of his employees that he
hoped to inaugurate a profit-sharing plan beginning in January. Early in March
he instructed Grant to notify some of the employees that the profit-sharing plan
was to be abandoned. According to Judge's testimony, Grant carried out these
instructions.' In any event, knowledge of the changed plans reached several of
the employees, particularly in the pressing department, where about 12 workers
were then employed. Dissatisfaction followed the announcement. O'Brien
consulted a representative of the Union in a nearby community. Upon his return
he discussed organizing possibilities with 2 other pressers, Wight and Pokorski,
and in the later part of March all 3 went to the union representative. Thereafter
O'Brien sounded out organization sentiment among several employees in other
departments.
Management became aware of the Union activity at least by April 8. On that
day Superintendent Grant asked O'Brien if he had heard any talk about the
Union. When O'Brien admitted that he had,-Grant replied, "Well, we don't want
2 The finding as to the quality of O'Brien 's workmanship rests mainly upon the credible
testimony of employees Pokorski, a presser, and Soucy, an inspector and trimmer, both
being witnesses for the Board Reginald Clark, a witness for the respondent , testified
(1) that once , during the brief period when he was foreman over O'Brien, he had recom-
mended to Judge that the employee be fired because he "was disturbing some of the other
men on the job" but that Judge had declined because "O'Brien 's work warranted keeping
him on."
, Grant's testimony is in direct contradiction to that of Judge on this point. The super-
intendent denied that Judge said anything to employees about the plan at the Christmas
party, and denied that he, himself , ever said anything about it to any of the employees.
As noted more fully hereinafter , the testimony of both Grant and Judge were confused,
contradictory , and in part refuted by company records. The above finding rests not only
upon Judge 's testimony , but also upon the testimony of several employee witnesses.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any union here."' Late the same day, after working hours, the pressers asked for
and were granted an interview with Judge. They complained that their produc-
tion quotas were too high on some "stones," that pressers were being moved to
less desirable machines, and that proper allowances were not being made for time
lost by accidental break-downs of machines Judge made numerous concessions.
Then he told the assembled pressers that he wanted them to take home the money
they earned-and not give it to any "union" man. He declared that he wanted
no union in the plant, and would "rather" close down the shop than have a union
there.'
At about 9:30 or 10 o'clock the next morning, April 9, O'Brien decided to go
home because of pains in his back. He told two nearby pressers and the super-
intendent of his decision. Grant replied "Okay," and O'Brien went home and to
bed. Later the same day O'Brien visited a local doctor, who gave him treat-
ments. That same night, at an employees' bowling tournament, Grant told em-
ployee Frank Newport that he was going to fire O'Brien because he did not like
him "generally." The next day, at the plant, Grant told employee Mildred Hoeg
that "they" were letting O'Brien go because "he knew it all," and told employee
James Wight that O'Brien was all through because be was getting "too smart."
Grant also told Wight, on this occasion, that he "guessed" he had "nipped the
union in the bud."
O'Brien remained at home, in bed, April 10 and 11. Early the morning of
April 10, the day after he went home ill, Mrs. O'Brien called the plant office, and
reported to some girl in the office that the doctor had advised her husband to stay-
out of work for the rest of the week O'Brien came to the plant on Friday,
April 12, to get his pay. He was handed his check by Grant, who told him it
would be his last, and that he was "all done." Grant gave him no reason, but
shrugged his shoulders and walked away. O'Brien went into Judge's office
nearby and demanded to know why he was being discharged. Judge told him,
"I just don't like you."
After O'Brien's discharge, employees Bellino, Pokorski, and Wight assumed
leadership in the organizational activities. Union local meetings were held.
According to Grant's own testimony, he went about the plant, interrogating many
employees as to whether or not they had joined or intended to join the Union.
On April 25 Bellino and another employee, Edward Beausoliel, were discharged.
A union meeting was held that night and a strike call was issued for the next day,
in protest against the discharges of O'Brien, Bellino, and Beausoliel.
As noted heretofore, the strike occurred, was followed by a second, and ulti-
mately settlement was reached with an offer of reinstatement to Bellino and
4 The finding rests upon O'Brien's credible testimony . Grant did not specifically deny
thus questioning O'Brien. His testimony that he was unaware of any union activity until
about April 24 is not believable For reasons set forth hereinafter, Grant's testimony,
where unsupported by credible evidence, is wholly untrustworthy.
5 The finding as to Judge's coercive threat to close the plant is based upon the credible
testimony of five witnesses for the Board, who were present at the meeting. Frederick A.
Sexton. a presser called as a witness for the respondent, testified that he did not hear
Judge say anything about a union at the meeting. Sexton's credibility on this point, how-
ever, is reduced by his admission that in January 1947, he signed an anti-union petition,
and by his statement that he had volunteered to testify for the respondent although no
one told him a hearing was to be held. Thice management witnesses-Judge, Grant, and
Anthony Mento, the last-mentioned a foreman-denied that Judge made the statement.
Mento also signed the anti-union petition in January 1947.
Grant did not deny making the above-described remarks to Hoeg and Newport. He
denied saying anything to anyone about having "nipped the Union in the bud" For reasons.
heretofore set out, the Trial Examiner does not accept Grant's denial as credible.
F. W. JUDGE OPTICAL WORKS, INC. 393
Beausoliel, and the execution of a year's contract. Upon Judge's adamant insist-
ence that he would close the plant down before reinstating O'Brien, the Union
agreed to drop his case as a strike issue .' Within 2 weeks from the signing of
the contract , however , the Union filed with the Board charges alleging that O'Brien
had been discharged because of his activities on behalf of the Union.
2. The respondent 's contentions , and the Trial Examiner 's conclusions, as to
the discharge
In its answer the respondent advanced no affirmative reasons for the discharge
of O'Brien. On August 29, 1946, however, in reply to the Board's notification that
a charge had been filed, Judge replied, in part:
Mr. O'Brien was warned continually during the year 1945 and part of 1946
that if he persisted in leaving during working hours before the close of the
business day, and if he persisted in being absent from work days at a time,
he would be discharged. Mr. O'Brien failed to heed these warnings and con-
tinued to take days off and leave his employment half an hour and sometimes
five hours before closing time.
At the time of his discharge Mr. O'Brien quit on Tuesday five and one-half
hours before closing time and then did not appear for work the following
three days and only came in to receive his pay on Friday at which time he
was told that he was discharged.
On sevelai occasions Mr. O'Brien appeared at his woik in an inebriated
condition and was warned not to do so. In spite of the warnings he repeated
this offense time and time again with the net result that management found
it necessary, as an accumulation of all these breaches of rules, to let Mr.
O'Brien go.
In November 1946, in an affidavit before a Board agent, Grant stated, in part:
In April 1946, there was considerable talk among the pressers that the work
load was not being distributed so as to give all the fellows an equal chance
at good pay. On Tuesday, April 9th, I made a change in O'Brien's work
which would make it more difficult for him to make more money and I gave
his job to another fellow, Pororski or Dudley, so as to build their quota up.
O'Brien refused to work on the new pressing job and said I am going home
and he did. I told him that he knew the results if he went. A little later I
went upstairs to his section and asked some of the fellows what happened
to him. Some said they thought he went home sick; others said he just went
out mad and said he might be back in a few days or a few weeks. I came
down and told Mr. Judge that as far as I was concerned he was through. Mr.
' Judge testified that just before the first strike agreement was entered into , he was told
by the union attorney that the Union was, in effect , dropping O'Brien's case altogether.
Counsel for the respondent urged , at the hearing, that because of this alleged statement on
the part of the union attorney, the respondent should not be held liable for any back pay
from the date it was made to the date of the receipt of the Board 's complaint Although
the union attorney was not a witness , and Judge ' s testimony on this point is not directrly
denied in the record , the Trial Examiner is unable to make a finding based upon Judge's
testimony unsupported by more credible evidence . The testimony of Union witnesses makes
it clear that the Union decided to drop O ' Brien 's case only as a strike issue . Even if the
statement had been made by the union attorney, however, the Trial Examiner is of the
opinion that there is no merit in the respondent 's contention. Judge himself foreclosed
any possible justification for such mitigation when , as he admitted , he repeatedly informed
the Union that lie would close the plant before he would reinstate O'Brien.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judge said, "all right," so the rest of the week I came in early to catch him.
before he started to work. He didn't come in till Friday and then I told him
he was all through.
At the hearing the testimony of Judge and of Grant is in agreement upon at
least one main point-that sometime after O'Brien left the plant on the morning
of April 9, the superintendent told Judge that he intended to discharge the em-
ployee and that Judge approved the decision.
On almost every other essential point their testimony is either inconsistent
or in open disagreement.
As to the events of April 9, Grant testified, on direct examination, in substance
as follows: (1) that in accordance with the agreement between the pressers and
Judge, the night before, to equalize the pay as far as possible, early in the morn-
ing of April 9 he transferred O'Brien to a machine where he would make less
money that week; (2) that when told what the quota would be on the new job,
O'Brien walked away "in a huff" and in a few minutes went by the superintendent
with his coat and hat on, saying only, "I am going home"; and (3) that Grant
said nothing to him as he left because "he was going too fast."
On cross-examination, Grant repeated that O'Brien had walked out "mad,"
"in a huff," and "dissatisfied." He insisted that O'Brien had been transferred
to the lower-paying job that morning. Counsel for the Board thereupon called
for O'Brien's work slip for April 8. When it was produced, it showed conclusively
that O'Brien had actually been transferred to the lower-paying job on April 8_
When faced with this documentary refutation not only of his previous testimony,
but also of his affidavit above quoted, Grant admitted that the transfer had been
made, not on the day he went home, but the preceding day, and before the meet-
ing of the pressers with Judge. He then also admitted that O'Brien bade no
complaint at the meeting about his transfer, and that the employee was satisfied
with it. In the opinion of the Trial Examiner, Grant's obvious efforts to distort
the truth in this important respect casts serious discredit upon his entire
testimony.
Other serious contradictions appear in the superintendent's testimony and his
affidavit. In the latter document he stated that "O'Brien refused to work on the
new pressing job." The work slip of April 8 and Grant's revised testimony on
cross-examination establishes that he did not refuse to accept the transfer. In
the affidavit Grant stated that he told O'Brien, as lie went out on April 9, that he
"knew the results if he went" home. In his testimony, as noted above, Grant
stated that he said nothing to O'Brien as he left. In the affidavit the superin-
tendent declared (1) that on the same day, and soon after O'Brien left the plant,
he told Judge that as far as he was concerned O'Brien "was through" and (2)
that Judge approved the decision. In his testimony, however, Grant insisted
that he made the decision and obtained Judge's approval on April 10, the day
after O'Brien had gone home ill.
In extension of his claim that he did not decide until April 10 to discharge
O'Brien, Grant testified at considerable length to the general effect: (1) that
lie "knew in [his] own mind why" O'Brien did not come back, and (2) that the
employee was "getting back to the same groove that he was in ... taking time
off and not notifying us, and so forth " Although pressed repeatedly, Grant
gave no reasonable explanation for concluding that O'Brien was returning to
his 1945 "tactics"-of being absent. Records produced by the respondent at
the hearing establish firmly the fact that O'Brien's only absence in 1946, up to
F. W. JUDGE OPTICAL WORKS, INC. 395
the time of his discharge, was to attend a funeral-and Grant admitted that
he had given permission for this absence. Even if the general untrustworthiness
of Grant's testimony permitted the finding that O'Brien left the plant on April
9 with no explanation at all, and failed to notify the respondent thereafter of
his illness, it is plain that the single instance, occurring after a clear record of
more than 3 months, would be unstable support for an assumption that the
employee was embarking upon a series of unexplained absences. Nor does the
record contain substantial and credible evidence that even in 1945 were O'Brien's
absences unexplained e Both Grant and Judge admitted that they knew O'Brien
had trouble with his back during that year. Although Grant testified that he
warned O'Brien many times in 1945 about leaving his work during the day, he
also admitted, on cross-examination, that when the employee left early he
never denied him permission to go. Grant also admitted that "a few times" in
1945 he received word through the office that O'Brien would not be in.
O'Brien denied that he ever left the plant without permission or that he
remained away from work without sending in word. The confused and contra-
dictory nature of Grant's testimony lends credibility to O'Brien's straightforward
denials. In any event, it is clear that he was not discharged in 1945, and that
in 1946 he had a perfect attendance record. The Trial Examiner is convinced
and finds that the respondent's contention that absence from work was the cause,
in part, of O'Brien's discharge is wholly without merit s
As to the claim in Judge's letter to the Board that O'Brien had "time and
time again" appeared at his work in "an inebriated condition," and was warned
repeatedly, the testimony of management witnesses is equally unconvincing.
Judge admitted that he never saw O'Brien under the influence of liquor while at
work, and that he never warned him Grant testified that so far as he knew,
O'Brien had not drunk anything in 1946. Neither Grant's testimony nor that
of Judge, as to their decision to discharge O'Brien, mentions any discussion of
the employee's drinking habits. When pressed for an explanation as to why
"inebriation" had been advanced by Judge in his statement to the Board, Grant
replied, "I don't know where this drinking come in, anyways." Reginald Clark,
foreman over O'Brien in November and December 1945, and a witness for the
8 Counsel for the respondent had an office girl read into the record the number of hours
worked by O'Brien in the weeks of 1945 Since Grant admitted that there were many
occasions when O'Brien was absent with his permission, or when Mrs. O'Brien called in to
report that he would be absent, the Trial Examiner is unable, because of the state of the
record, to make a finding that any single or any number of absences were unexplained or
not permitted.
9 The respondent introduced much testimony relating to a written rule containing the
requirement for reporting absences, which it claimed had been posted for many years.
The Trial Examiner considers it unnecessary to resolve the conflicting evidence regarding
its posting It is clear that, if ever posted, it was placed only in an inconspicuous spot
near a medicine cabinet and the office, in a plant which had several floors Several of the
respondent's own witnesses, including O'Brien's former foreman, testified that they never
saw the notice. Nor is it necessary to dwell at length upon the testimony of Katherine
Robinson, clerk of the corporation and the only girl then regularly in the office, that she
received no telephone call from Mrs O'Brien on the morning of April 10 The state of
the record permits several different inferences, including the possibility that some other
girl, from the factory room nearby, may have answered the telephone on this occasion In
any event, Grant's affidavit, his own testimony, and his remark to employee Newport on
the night of April 9 that he was going to discharge O'Brien, make plain the fact that he
made his decision on April 9. Even if the testimony of Grant, Judge, and Robinson on
the point of the telephone call be accepted at its face value, it cannot reasonably be
considered as bearing upon the discharge.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, testified that he would not say that O'Brien had ever been "under
the influence of liquor." Thus, by the respondent's own witnesses, there was
produced at the hearing no evidence that O'Brien had been "inebriated" while
at work from November 1, 1945, to the date of his discharge, a period of more
than 5 months. As noted in a footnote heretofore, Clark recommended O'Brien's
discharge in the middle or latter part of November 1945, because be was
"irritable," but Judge refused for the reason that the employee was too valuable
a worker.
Thus the respondent's position as to "inebriation" is untenable , by evidence
from its own witnesses. Their testimony clears O'Brien of any charge of such
dereliction from November 1, 1945, 2 weeks or a month before Judge rejected
a recommendation that the employee be fired for other reasons.
It has been shown that the respondent's contentions as to its reasons for dis-
charging O'Brien lack the support of credible evidence. Credible and sub-
stantial evidence does support the allegations of the complaint that the real
reason for the employee's discharge was his activity on behalf of the Union.
He was the leader of the organizing movement, which management resented.
Management was aware of his leadership.
The Trial Examiner concludes and finds that O'Brien was discharged on
April 12, 1946, because of his activities on behalf of the Union, and for the
purpose of discouraging self-organization of the iespondent's employees and
membership in the Union.
C. Other acts of interference, restrarint, and coercion
When Josephat Fontaine was hired in September 1945, he was told by Judge
,that he did not want and would not "stand for" a union in the plant, and
that no union was needed because it was a "family affair."'0
According to the superintendent's own testimony, not long before the strike
in April 1946, and shortly after the discriminatory discharge of O'Brien, he
went to many employees, while they were at work, and interrogated them as to
whether or not they had joined, or were going to join, the Union. He told Mrs.
Pearl Croteau that if she joined she would get only $18.00 a week and that her
husband would be denied his "G. I." training.
Early in May Grant appeared at the house of the Croteaus late one night,
after they had retired. He rapped at their window until they let him in. He
then declared that he was going to have his say about the Union, and told them
they were foolish to want a union in the plant. He repeated the threat previ-
ously made to Mrs. Croteau about the pay and the "G. I." training. Croteau
asked if his application had been forwarded, Grant replied, "No, you signed one
of those union cards, didn't you?" During his further conversation Grant stated
that "we got rid of Joe O'Brien and we fired Phil Bellino," and added that if
they had known Pokorski and Wight had been "carrying on" for the Union
they would have been fired also."
10 Judge denied, generally, ever making similar renlarks to any prospective employee. As
found heretofore, Judge's testimony, where unsupported by credible evidence, is untrust-
worthy. I
11 Grant admitted the occasion but, after tesifying hat he "didn't think anything would
come of it," denied saying anything about the strike, the Union, or Croteau's "G. I train-
ing." As found heretofore, Grant was an untrustworthy witness The respondent intro-
duced evidence tending to show that Croteau's application had not been sent in through
any fault of its own. The Tiial Examiner considers it unnecessary to determine what the
actual reason was. The statement of Grant, whether based upon fact or not, was coercive.
F. W. JUDGE OPTICAL WORKS, INC. 397
Also during the strike, Grant approached employee Provencher outside the
plant, and told him that "you fellows are awful foolish trying to get yourself
a union. If you people would forget about a union, Mr. Judge and I. could
put everybody back to work within 3 days, but if not, it [the strike] would drag
out into months . . ."
Shortly after the strike, Foreman Harry Corbett interrogated employee Mildred
Hoeg as to what the employees "did in the Union." 12
2. The anti-Union petition of January 1947
On January 8 and 9, 1947, the respondent's supervisors permitted the following
petition to be circulated in the plant during working hours :
We, the undersigned, employees of the F. W. Judge Optical Co., Inc., 21
Endicott Street, Salem, Mass., wish and desire to sever all connections of
every nature, with the United Leather Workers International Union, Local
21, A. F. of L., of Peabody, Mass., and respectfully petition your honorable
board to so notify the officers of the above named union, to the end that you
may take whatever steps are necessary to bring about the above much desired
change, so that we can be free to form or organize our own independent
shop union, with our own fellow employees to represent us in connection
with any grievance we may have as employees of the F. W. Judge Optical
Co., Salem, Mass.
The petition was sent to the Board's Regional Office in Boston The evidence
does not reveal who prepared or initiated the circulation of the petition. Many
employees testified that it was found by them on their benches. Among other
signatures upon the petition were those of Foremen Mento and Talbot, as well
as that of Hazel Grant, the superintendent's sister One of the employees who
admitted having circulated the petition openly during working hours was Mar-
garet Gillies, Grant's sister-in-law.
Under the circumstances, the Trial Examiner is convinced and finds that
management was well aware of the petition and its circulation and, in permitting
its circulation during working hours, thereby sponsored and approved its
contents.
After learning of the petition, employee Laura Soucy, union steward, com-
municated with the union attorney. The union business agent came to the
plant, and told Judge to stop circulation of the petition. Judge agreed to call his
lawyer, and shortly thereafter the respondent posted a notice, dictated by the
union attorney, to the effect that a year's contract between the Union and the
respondent was in existence, which would not expire until August 1947. The
notice also pointed out that union activities on company time were forbidden. The
petition, however, was forwarded by some one to the Board's Regional Office, and
there is no evidence that the respondent has ever disavowed the petition.13
D. General conclusions
The Trial Examiner concludes and finds that the respondent, from early April
1946, when it first learned of organizational activities in its plant, began and has
12 Hoeg's credible testimony was uncontiadicted on this point. Corbett is also Judge's
son-in-law.
13 The findings as to disposition of the petition rests upon Soucy's credible testimony.
Judge testified that, upon learning of the petition from Grant, he communicated with the
anion attorney and asked for instruction. As noted heretofore, Judge's testimony, where
unsupported by credible evidence, is untrustworthy.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to engage in a pattern of conduct designed to discourage membership
in the Union.
By the discharge of O'Brien, by the coercive, anti-union remarks and inter-
rogations by Judge, Grant, and Corbett, and by permitting the circulation of the
petition, above described, the respondent has interfered with and is interfering
with the exercise of rights guaranteed to employees by, the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
O. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action which the Trial Examiner finds will effectuate the
policies of the Act.
It has been found that the respondent has discriminated against Joseph F.
O'Brien. It will therefore be recommended that the respondent offer to him
immediate and full reinstatement to his former or substantially equivalent
position 15 without prejudice to his seniority or other rights and priviliges, and
that it make him whole for any loss of pay he may have suffered, by reason
of the discrimination against him, by payment to him of a sum of money
equivalent to that which he would normally have earned as wages from the date
of his discharge to the date of offer of reinstatement, less his net earnings 19
during said period.
In view of the unfair labor practices found to have been committed by the
respondent, constituting violations of Section 8 (1) and (3) of the Act, the Trial
Examiner is of the opinion and finds that there is danger of the commission of
other and additional unfair labor practices, since the violations thus far engaged
in by the respondent indicate an intent to interfere generally with the rights of
the employees as guaranteed by the Act. It will therefore be recommended that
the respondent cease and desist from in any manner interfering with, restraining,
or coercing its employees in their right to self-organization 17
11 There is no evidence in the record to sustain the allegation of the complaint that the
respondent made non-membership in the Union a condition of employment Counsel for
the Board introduced evidence to show that, shortly before the hearing, the respondent sent
letters to many former employees, asking them when they became aware of union activities
at the respondent's plant. Under the circumstances revealed by the evidence, the Trial
Examiner does not consider that such interrogation was an unfair labor practice. It was
made clear that the question was asked at the request of counsel for the respondent, in
preparation for the hearing.
' In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New Yo,k, San Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827. '
16 Matter of Crossett Lumber Co., 8 N. L it. B. 440, 497-498.
17 See May Department Stores, 326 U. S. 376.
F. W. JUDGE OPTICAL WORKS, INC. 399
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. Local No. 21, United Leather Workers International Union (A. F. of L.) is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Joseph
F. O'Brien, the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the Trial
Examiner recommends that F. W. Judge Optical Works, Inc., its officers, agents,
successors and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Local No. 21, United Leather Workers Inter-
national Union (A. F. of L.) or any other labor organization of its employees by
in any manner discriminating in regard to their lure and tenure of employment or
and term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to join or assist the United
Leather Workers International Union, A F of L., or any other labor organization,
to bargain collectively through representatives of their own choosing and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to Joseph F. O'Brien immediate and full reinstatement to the position
which he occupied on April 12, 1946, prior to the respondent's discrimination
against him , or to a substantially equivalent position, without prejudice to his
seniority and other rights and privileges ; and make him whole for any loss of pay
he may have suffered by reason of the respondent's discrimination against him, in
the manner provided herein in the section entitled "The remedy" ;
(b) Post immediately at its plant in Salem, Massachusetts, copies of the
notice attached hereto marked "Appendix A." Copies of such notice, to be
furnished by the Regional Director for the First Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent immedi-
ately upon receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the First Region (Boston, Massachusetts)
in writing within ten (10) days from the date of the receipt of this Intermediate
Report what steps the respondent has taken to comply therewith.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or.before ten (10) days from the-
receipt of this Intermediate Report, the respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the order
transferring the case'to the Board, pursuant to Section 203 38 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25, D. C.,
an original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and four copies of a brief in support thereof ; and any party or
counsel for the Board may, within the same period, file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.65. As further provided in said Section 203 39, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
C. W. WHITTEMORE,
Trial Examiner.
Dated June 9, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist LOCAL No. 21, UNITED LEATHER WORKERS
INTERNATIONAL UNION, A. F. of L., or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL OFFER to the employee named below immediate and full rein-
statement to his former or substantially equivalent position without prej-
udice to any seniority or other rights and privileges previously enjoyed, and
make him whole for any loss of pay suffered as a result of the discrimina-
tion.
Joseph F. O'Brien
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
F. W. JUDGE OPTICAL WORKS, INC. 401
any employee because of membership in or activity on behalf of any such labor
organization.
F. W. JUDGE OPTICAL WORKS, INC.,
Employer.
By ---------------------------------------
(Representative ) (Title)
Dated------------------------
NOTE: Any of the above -named employees presently serving in the Armed
Forces of the United 'States' will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.
0