Lenscraft Optical Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1960

128 N.L.R.B. 807 (N.L.R.B. 1960)

LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 807
Upon the basis of the foregoing findings of fact and the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. The Electrotypers are labor organizations within the meaning of Section 2(5)
of the Act.
2. By engaging in a strike and picketing with an object of forcing or requiring
Meredith to assign the disputed work on machines #1 and #2 of "Pin System" to
its members rather than to employee members of the Pressmen, the Electrotypers
have engaged in unfair labor practices within the meaning of Section 8 (b)(4)(D)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Lenscraft Optical Corporation and Rayex Corporation and
Alessandro Rivero and Local 422, International Jewelry Work-
ers Union, AFL-CIO, Party to the Contract
Local 122, International Jewelry Workers Union , AFL-CIO and
Alessandro Rivero and Local 422, International Jewelry Work-
ers Union , AFL-CIO, Party to the Contract
Lenscraft Optical Corporation and Rayex Corporation and Local
810, Steel , Metals, Alloys and Hardware Fabricators and Ware-
housemen, International Brotherhood of Teamsters (Ind.)
and Local 422, International Jewelry Workers Union, AFL-
CIO, Party to the Contract
Local 122, International Jewelry Workers Union , AFL-CIO and
Local 810, Steel , Metals, Alloys and Hardware Fabricators and
Warehousemen, International Brotherhood of Teamsters
(Ind.) and Local 422, International Jewelry Workers Union,
AFL-CIO, Party to the Contract . Cases Nos. 2-CA-5504, 2-CB-
92097, 2-CA-5505, 2-CB-9071,. August 24, 1960
DECISION AND ORDER
On July 31, 1959, Trial Examiner Herbert Silberman issued his
Intermediate Report in these proceedings, finding that the Respondent
Companies, Lenscraft Optical Corporation and Rayex Corporation,
herein individually called Lenscraft and Rayex, had engaged in vio-
lations of Section 8(a) (1), (2), and (3) of the Act and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner found that neither the Respondent
Companies nor Local 122, International Jewelry Workers Union,
AFL-CIO, the Respondent Union, had engaged in certain other un-
fair labor practices alleged in the complaint and recommended the
dismissal of the complaint with respect to such allegations. There-
after the Respondent Companies filed exceptions, a brief and reply
128 NLRB No. 99.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief, and motions to reopen the record; 1 the General Counsel filed
exceptions, a supporting brief, and a memorandum in opposition to
a motion to reopen the hearing; and Charging Party Alessandro
Rivero filed exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions indicated.
1. The Respondent and the General Counsel have excepted to cred-
ibility resolutions of the Trial Examiner. It is well established that
the Board will not overrule a Trial Examiner's resolution as to credi-
bility unless a clear preponderance of all the relevant evidence con-
vinces the Board that such resolution was incorrect.' We find no
basis for disturbing the Trial Examiner's credibility findings in these
cases.
2. We are adopting the Trial Examiner's conclusion that the record
does not warrant a finding that Respondent Companies discriminated
against the 14 employees terminated on March 14 and 18, 1957. How-
ever, we do not base this finding as to nine of these employees, as the
Trial Examiner did, on their failure to testify at the hearing. These
nine employees stand in the same shoes as the other employees dis-
charged at the same time and for the same assigned reason. We are
satisfied that participation in the slowdown found by the Trial Ex-
aminer was the reason for the discharge of all of them.
3. We also adopt the Trial Examiner's finding that Respondent
Companies violated Section 8(a) (1) and (2) of the Act. We note
here, as we did in the companion cases decided today,' that the exten-
sion of the bargaining agreement between Respondent Companies and
Local 122 on July 22, 1957, was neither alleged nor litigated as a
violation of the Act in these cases; nor does the complaint in the instant
i The Respondent Companies moved to reopen the record to prove (1) that, on.
September 29, 1959, Local 810, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Ind ) (herein referred to as Local '810), aban-
doned its representative interest in Respondents' employees, and (2) that, on March 4,
1960, the New York State Court of Appeals reinstated the arbitrator's award referred to
by the Trial Examiner in footnote 42 of his Intermediate Report. As such additional
evidence could not affect the outcome of these cases, the motions to reopen are denied.
3 Regarding the Trial Examiner's action in striking the testimony of the witnesses who
did not appear at the reconvened hearing for cross-examination on pretrial statements, see
Tidelands Marine Service, Inc , 126 NLRB 261, decided since the issuance of the Inter-
mediate Report
3 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
4 Lenscreft Optical Corporation, et al , 128 NLRB 836.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 809
cases allege as a violation the application by Respondent Lenscraft
and Local 122 of their bargaining contract to Lenscraft's new Flush-
ing plant in 1956, and the General Counsel in effect conceded that
such conduct did not violate the Act.
4. Considering the nature of Respondent Companies ' unfair labor
practices , including the fact that a finding is not warranted that Re-
spondent Companies , by contract or otherwise , unlawfully required
employees to become Local 122 members as a condition of employ-
ment, we agree with the Trial Examiner that the application of the
Brown-Olds remedy' is not justified in these cases.'
5. In these cases, unlike the above-mentioned companion cases,
Local 422, International Jewelry Workers Union, AFL-CIO, is not
involved in the unfair labor practices found against Respondent Com-
panies and its status as a successor to Local 122 was not a litigated
issue at the hearing. Consequently , we shall omit from our Order the
specific reference to it contained in the recommended order of the
Trial Examiner.
ORDER
Upon the entire record in these cases , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents Lenscraft Optical
Corporation and Rayex Corporation , their officers , agents, successors,
and assigns , shall :
1. Cease and desist from:
(a) Encouraging membership in Local 122, International Jewelry
Workers Union , AFL-CIO, or any other labor organization , or dis-
couraging membership in Local 810, Steel, Metals, Alloys and Hard-
ware Fabricators and Warehousemen , International Brotherhood of
Teamsters (Ind.), or any other labor organization, by laying off or
discharging any of their employees or otherwise discriminating in
regard to their employees ' hire or tenure of employment or any term
or condition of employment.
(b) Assisting or contributing support to Local 122, International
Jewelry Workers Union, AFL-CIO, or any successor organization,
or to any other labor organization.
(c) Threatening employees with reprisals or promising them bene-
fits to encourage their affiliation with or support of Local 122, Interna-
tional Jewelry Workers Union, AFL-CIO, or any other labor
organization , or to discourage their affiliation with or support of
Local 810, Steel, Metals, Alloys and Hardware Fabricators and Ware-
housemen, International Brotherhood of Teamsters (Ind.), or any
other labor organization.
a J S Brown -F F. Olds Plumbing & Heating Corporation , 115 NLRB 594.
' Cf. Chun King Sales . Inc. 126 NLRB 851.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Recognizing or contracting with Local 122, International
Jewelry Workers Union, AFL-CIO, or any successor organization,
as the representative of any of their employees for the purpose of deal-
ing with such organization concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until any said labor organization shall have been
certified by the Board as such representative.
(e) Giving effect to, performing, or maintaining their agreements
with Local 122, entered into on September 6,1955, or any modifications,
extensions, supplements, or renewals thereof, including the extension
agreement entered into on July 22, 1957, or to any other contract,
agreement, or understanding entered into with Local 122, or any
successor organization, relating to grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
unless and until any said labor organization shall have been certified
by the Board as the representative of their employees.
(f) In any like or related manner interfering with, restraining, or
coercing other employees in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Julio Sanabria immediate and full reinstatement to
his former, or to a substantially equivalent, position without prejudice
to his seniority or other rights and privileges and make him whole in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy" for any loss of earnings he may have suffered by reason
of the discrimination against him.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, timecards,
personnel records and reports, and all other records necessary or useful
to analyze the amount of backpay due under the terms of this Order.
(c) Withdraw and withhold all recognition from Local 122, Inter-
national Jewelry Workers Union, AFL-CIO, or any successor organ-
ization, as the collective-bargaining representative of any of their
employees, unless and until any such organization shall have been cer-
tified by the Board as such representative.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 811
(d) Post at their plant in Flushing, Queens, New York, copies of
the notice attached hereto marked "Appendix." ° Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by a representative of Respondent Companies,
be posted by them immediately upon receipt thereof and maintained
by them for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent Companies
to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of the Order what steps they have taken
to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed, insofar as it alleges that Local 122 International Jewelry
Workers Union, AFL-CIO, violated the Act and to the extent that
it alleges that Lenscraft Optical Corporation and Rayex Corporation
violated the Act otherwise than as found herein.
7In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
APPENDIX
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 recognize Local 122, International Jewelry
Workers Union, AFL-CIO, or any successor organization, as the
representative of any of our employees for the purpose of dealing
with such organization concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment unless and until said labor organization shall have
been certified by the Board as such representative.
WE WILL NOT perform, enforce, or give effect to our contract
entered into on September 6, 1955, with Local 122, International
Jewelry Workers Union, AFL-CIO, or to any modifications,
extensions, supplements, or renewals thereof, including the exten-
sion agreement entered into on July 22, 1957, or to any other
contract, agreement, or understanding with said Local 122, or
any successor organization, unless and until said labor organiza-
tion shall have been certified by the Board as such representative.
WE WILL NOT encourage membership in Local 122, International
Jewelry Workers Union, AFL-CIO, or any other labor organiza-
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, or discourage membership in Local 810, Steel, Metals,
Alloys and Hardware Fabricators and Warehousemen, Inter-
national Brotherhood of Teamsters (Ind.), or any other labor
organization, by laying off or discharging any of our employees
or by otherwise discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT threaten our employees with reprisals or promise
them benefits to encourage their affiliation with, or support of,
Local 122, International Jewelry Workers Union, AFL-CIO, or
any other labor organization, or to discourage their affiliation
with or support of Local 810, Steel, Metals, Alloys and Hardware
Fabricators and Warehousemen, International Brotherhood of
Teamsters (Ind.), or any other labor organization.
WE WILL NOT assist or contribute support to Local 122, Inter-
national Jewelry Workers Union, AFL-CIO, or any successor
thereto.
WE WILL NOT in like or related manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
or to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL offer Julio Sanabria immediate and full reinstate-
ment to his former or to a substantially equivalent position With-
out prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suffered
by reason of his layoff or discharge.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
LENSCRAIT OPTICAL CORPORATION AND
RAYEx CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP.
INTERMEDIATE REPORT
813
STATEMENT OF THE CASE
The above-numbered cases having been duly consolidated, this proceeding,
brought under Section 10(b) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act, was heard in New York, New York, on various days between
March 24, 1958, and January 2, 1959, pursuant to notice to all parties. A con-
solidated complaint against Lenscraft Optical Corporation and Local 122, Inter-
national Jewelry Workers Union, AFL-CIO, was issued on December 16, 1957,
and an amendment thereto was issued on February 27, 1958. Lenscraft Optical
Corporation duly filed a venfied answer, dated March 14, 1958.
At the hearing, the complaint was further amended in various respects. In-
cluded among such amendments were allegations relating to Rayex Corporation
and Local 422, International Jewelry Workers Union, AFL-CIO. The General
Counsel's additional motions to amend the caption of the complaint by naming
Rayex Corporation as a respondent and Local 422 as a party to the contract were
also granted i The General Counsel's motion to strike the affirmative defenses set
forth in Lenscraft's answer to the complaint as originally issued was granted. The
Respondent Employers and Local 422 entered on the record answers to the com-
plaint as finally amended. The General Counsel of the National Labor Relations
Board, the Respondents Lenscraft Optical Corporation and Rayex Corporation, the
Party to the Contract Local 422, and Alessandro Rivera were represented at the
hearing by counsel and were afforded full opportunity to participate.2 The parties
were given opportunity to engage in oral argument at the close of the hearing and
to file briefs with Herbert Silberman, the duly designated Trial Examiner. The
Employer submitted a comprehensive brief which has been carefully considered.
Respondent Local 122 neither filed an answer to the complaint nor entered an
appearance at the hearing. Accordingly, the General Counsel moved " for sum-
mary judgment on the pleadings against Local 122." Decision on this motion was
reserved. In addition to this motion, I also reserved decision on the following
motions made during the hearing:
a. Upon the close of the General Counsel' s case-in-chief, a motion on behalf of
Rayex Corporation to dismiss the complaint.
b. Upon the close of the General Counsel' s case-in-chief, the Employer 's motion
to dismiss the complaint insofar as it alleges that the following persons who did
not testify at the hearing had been discriminatorily discharged: Adolfo Soto,3
Alexandro Rangel, Andres Ramirez, Mariano Gonzalez, Flor Valentin, Robert
Sanchez, Jesus Rojas, Jose Sanchez, Wilfred Juarez, and Andrew Alba.4
c. Employer's motions to dismiss the entire complaint as against all the
Respondents.
These motions are disposed of in accordance with the findings , conclusions, and
recommendations made below.
Curtailment of Cross-Examination
At the hearing, decision also was reserved on the Employer's motion to strike
the testimony of certain witnesses on the ground that the opportunity to cross-
examine them had been erroneously curtailed. The cross-examination of the wit-
1 At the hearing held on October 28, 1958, counsel for the nondefaulting parties entered
into the following stipulation :
Since the last hearing in this matter ( June 6, 1958 ) Local 422, International Jewelry
Workers Union, AFL-CIO, named in the complaint as a party to the contract, has
withdrawn its affiliation from the AFL-CIO and it is now known as Local 422, Indus-
trial Workers Union, Independent, and the address of the Union remains the same as
it was before it withdrew from the AFL-CIO and its officers also remain unchanged.
2 Respondents Lenscraft Optical Corporation and Rayex Corporation are referred to
herein as the Employer or the Company ; Respondent Local 122, International Jewelry
Workers Union, AFL-CIO, is referred to as Local 122; Party to the Contract Local 422,
International Jewelry Workers Union, AFL-CIO, is referred to as Local 422; and the
Charging Union is refered to as Local 810 or the Teamsters.
8 Unlike the other individuals named in this motion, Soto testified on behalf of the
General Counsel as a rebuttal witness.
4 At the hearing I granted the Employer's motion to dismiss the complaint insofar as
it alleges that Ramon Ortiz, Virginia Olmedas, and Juan Negron Rivero were discrimina-
torily discharged in violation of the Act.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses who testified for the General Counsel disclosed that many of them had fur-
nished him with statements relating to subjects about which they testified at the
hearing. The Employer asked to inspect the pretrial statements, but the General
Counsel refused to produce them. I denied the Employer's requests for a direction
to the General Counsel that he produce the statements. At the close of the General
Counsel's case-in-chief, the Employer moved to dismiss the complaint upon the
ground that justice had been impeded by the General Counsel's failure to produce
the pretrial statements of his witnesses for Respondents' inspection and use at the
hearing. This motion was denied. The hearing in this proceeding was initially
closed on June 6, 1958. Thereafter, in consequence of the Board' s decision in
Ra-Rich Manufacturing Corporation, 121 NLRB 700, I issued an order reopening
the record in this proceeding, vacating and setting aside all rulings made at the
hearing denying Respondents' requests for the production of pretrial statements
within the purview of the Ra-Rich case and ordering the General Counsel to make
such statements available to the Respondents. Upon motion filed by Lenscraft
Optical Corporation, on September 29, 1958, 1 ordered the hearing reconvened to
permit further examination of the witnesses who made pretrial statements and
directed the General Counsel to make all such witnesses, whose appearances were
requested by the Respondents, available for further examination.
The reconvened hearing was held on October 28, 30, and 31, 1958. In accordance
with the order reconvening the hearing, Respondents requested the General Counsel
to produce for further cross-examination 14 witnesses who had testified on behalf
of the General Counsel. However, five such persons, namely, Juan Hidalgo, Adolfo
Soto, Ferdinand Acevedo Ramos, Victor Bonilla, and Santiago Gonzalez did not
appear. Respondents moved to strike their testimony on the ground that their
cross-examination had not been completed and, for the same reason, further moved
to dismiss the complaint insofar as it alleges that Juan Hidalgo, Adolfo Soto, and
Ferdinand Acevedo Ramos were discriminatorily discharged in violation of the Act-5
The General Counsel had mailed subpenas to these five witnesses calling for their
attendance at the reconvened hearing. The subpena to Santiago Gonzalez was duly
served, but the subpenas to the other four witnesses were returned undelivered.
Accordingly, the General Counsel consented to a motion to strike the testimony of
Santiago Gonzalez and the motion was granted. However, the General Counsel
opposed the motion to strike the testimony of the other four missing witnesses.
The General Counsel offered into evidence the pretrial statements of the missing
witnesses to aid the Trial Examiner in the determination of the issues raised by
Respondents' motion. At the hearing I sustained the objections to the admission
in evidence of these documents. Upon reconsideration, I am of the opinion that I
erred in this ruling. These documents are relevant, material, and competent in con-
nection with the issues raised on the motion to strike the testimony of the said
witnesses, although as self-serving, hearsay declarations they have no independent
testimonial value. Accordingly, I hereby rescind the aforesaid ruling and now
receive in evidence in this proceeding, for the purpose indicated, the documents
identified as General Counsel's Exhibits Nos. B, C, D, E, F, G, H, I, J, and K.
After the reconvened hearing had been closed, the parties discovered the where-
abouts of Adolfo Soto. On December 9, 1958, I again reopened the record in this
case and ordered that a hearing be held on January 2, 1958, to permit the further
examination of Adolfo Soto. The said witness appeared at the designated time and
place. After he was further cross-examined, Respondents renewed their motion to
strike his testimony. The motion was denied. Since the motion to strike was granted
as to the testimony of Santiago Gonzalez and denied as to the testimony of Adolfo
Soto, still unresolved is the motion to strike the testimony of Victor Bonilla, Ferdinand
Acevedo Ramos, and Juan Hidalgo and to dismiss the complaint as to the latter two.
The General Counsel does not base his opposition to the pending motion upon
any defect in the manner in which the demand for the production of the witnesses'
pretrial statements was made by Respondents, or upon any failure on the part of
the Respondents to comply with the Board's Rules and Regulations. The General
E; Respondents also moved to strike the testimony of Francisco Vargas Ramos on the
ground that the witness testified he gave a pretrial statement to the General Counsel
which had not been produced in accordance with my orders reopening the record and
reconvening the hearing in this case The General Counsel, however, asserted that the
witness was in error and that "there never was such a statement" Decision was
reserved on this motion Being of the opinion that counsel for the General Counsel has
not attempted to circumvent my order for the production of the pretrial statements of
Ramos I hereby deny Respondents' motion to strike the witness' testimony. However,
the confusion evidenced by the witness is a factor which the Trial Examiner has taken
into consideration in evaluating the reliability of his testimony.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 815
Counsel submitted to Respondents for their inspection the pretrial statements of
the absent witnesses. Also, he made some effort, although unsuccessful, to obtain
their appearance at the reconvened hearing. However, as they did not appear, the
Respondents were unable to cross-examine them with respect to their pretrial state-
ments. The parties were given additional time following the close of the reconvened
hearing to submit briefs with respect to the pending motion. Only the Employer
filed such brief.
"Cross-examination of a witness is a matter of right . . ." Alford v. United
States, 282 U.S. 687, 691, and Section 7(c) of The Administrative Procedure Act
guarantees every party the right "to conduct such cross-examination as may be
required for a full and true disclosure of the facts."
"The office of cross-examination is to test the truth of statements of a witness
made on direct-examination." 6 For such purpose the pretrial statements or reports
of a witness relating to the matters about which he testified has long been recognized
as furnishing a most effective instrument with which to probe the recollection,
accuracy, and veracity of the witness. "Every experienced trial judge and trial
lawyer knows the value for impeaching purposes of statements of the witness
recording the events before time dulls treacherous memory. Flat contradiction
between the witness' testimony and the version of the events given in his reports
is not the only test of inconsistency. The omission from the reports of facts related
at the trial, or a contrast in emphasis upon the same facts, even a different order
of treatment, are also relevant to the cross-examining process of testing the cred-
ibility of a witness' trial testimony." 7 Thus, the cross-examiner as a matter of
right is entitled to the pretrial statements or reports of his adversary's witnesses "touch-
ing the events and activities as to which they testified at the trial." Further, the
cross-examiner "is entitled to inspect the reports to decide whether to use them .
because only the [cross-examiner] is adequately equipped to determine the effective
use for purpose of discrediting [his opponent's] witness and thereby furthering [his
client's case]." 8 Where such pretrial statements are withheld from an adversary,
the appropriate remedy is to strike the testimony of the witness 9
Here, although the pretrial statements of Ferdinand Acevedo Ramos, Victor
Bonilla, and Juan Hidalgo ultimately were produced by the General Counsel and
made available to the Respondents' because the General Counsel failed to produce
these witnesses to testify with respect to their statements, Respondents' opportunity
to fully cross-examine them was curtailed. Significantly, this curtailment occurred
through no fault of the Respondents.
I have been referred to no case exactly like the one at bar. There is respectable
authority to the effect that: "It may be taken as the rule, that where a party is
deprived of the benefits of cross-examination of a witness, by the act of the opposite
party or by the refusal to testify or other misconduct of the witness, or by any
means other than the act of God, the act of the party himself, or some cause to
which he assented, that the testimony given on the examination-in-chief may not
be read." 10 The principle applicable where cross-examination has been inter-
rupted is stated by Professor Wigmore to be:
Where the witness' death or lasting illness would not have intervened to prevent
cross-examination but for the voluntary act of ,the witness himself or the party
offering him-as, by a postponement or other interruption brought about im-
mediately after the direct examination, it seems clear that the direct testimony
must be struck out. Upon the same principle, the same results should follow
where the illness is but temporary and the offering party might have recalled
the witness for cross-examination before the end of the trial.
But, where the death or illness prevents cross-examination under such circum-
stances that no responsibility of any sort can be attributed to either the witness or
his party, it seems harsh measure to strike out all that has been obtained on the
direct examination. Principle requires in strictness nothing less. But the true
solution would be to avoid any inflexible rule and to leave it to the trial judge
to admit the direct examination so far as the loss of cross-examination can
be shown to him to be not in that instance a material loss. Courts differ in
0 98 C I S. 125.
'Jencks v. United States, 353 U.S. 657, 667.
a Jencks v . United States, supra, at pp . 668-669
E.g., National Labor Relations Board, Rules and Regulations, Series 7, Section 102.95,
as amended.
10 Sturm v. Atlantic Mutual Insurance Co., 63 N.Y. 77, 87. Accord : People v. Cole, 43
N.Y. 513.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their treatment of this difficult situation ; except that , by general concession, a
cross-examination begun but unfinished suffices if its purposes have been sub-
stantially accomplished.1'
Responsibility for the Employer 's inability to complete its cross -examination of the
witnesses in question rests with the General Counsel. In the first instance he refused
to produce their pretrial statements when demanded by the Employer at the time
the latter was cross -examining the witnesses . 12 Secondly , he did not produce the
witnesses at the continued hearing which was reconvened for the specific purpose of
enabling the Employer to examine the witnesses with respect to their pretrial state-
ments. The General Counsel asserts that every effort was made to produce the
missing witnesses . However, these efforts consisted of nothing more than mailing
subpenas to the witnesses at their last known addresses and requesting the Teamsters
to try to locate them at their former residences and places of employment . 13 This
in my opinion , falls short of the requirements of the situation . The fact that Adolfo
Soto, who was unavailable when the reconvened hearing was intially opened, was
subsequently located is indicative of the inadequacy of the General Counsel 's search
for the missing witness. Without deciding what would have been a sufficient effort,
it is my opinion that at the very least the General Counsel should have dispatched
an investigator to interview the neighbors , landlords, and former employers of the
missing witnesses regarding their whereabouts . The situation here cannot be viewed
as one where the witnesses became unavailable by reason of death, illness, or act
of God.
I am in agreement with the General Counsel that neither the Jencks case nor the
Ra-Rich case categorically requires that I strike the testimony of the missing witnesses.
Whether or not to do so is a matter within my discretion as the tier of the facts.
This has been a bitterly contested proceeding . Very little of the testimony adduced
on behalf of the General Counsel , including the testimony of the three witnesses in
question , was not directly contradicted by witnesses who testified on behalf of the
Respondents . Thus, questions of credibility have become paramount in the resolu-
tion of the issues . In these circumstances , the parties should be afforded every
reasonable opportunity to cross-examine adverse witnesses . However, Respondents
were denied the use of the pretrial statements of the witnesses called to testify by
the General Counsel at the time they were first subject to cross-examination. This
denial was in error. The importance of such statements to effective cross-examination
is recognized by the Jencks case . The time for the production of such pretrial state-
ments, of course , was when cross-examination was beeun . 14 Respondents were
prejudiced in their defense by having to cross-examine the General Counsel 's witnesses
without the benefit of their statements . In order to remedy the error already com-
mitted I reopened the record and reconvened the hearing to give Respondents an
opportunity to cross-examine the General Counsel's witnesses on the basis of their
pretrial statements after they already had been subjected to an otherwise thorough
cross-examination . It is unnecessary to recount the disadvantages Respondents were
subjected to by reason of this procedure . However , as to the three witnesses in
question the Respondents were not only deprived of the use of their pretrial state-
ments at the time when the statements would have been of greatest benefit to the
cross-examination . but also have been deprived of all opportunity to cross -examine
these witnesses with respect to such statements . The General Counsel has offered
in evidence the pretrial statements of these witnesses as an aid in the determination
of the issues raised by the pending motion. I have read the statements and have
compared them with the testimony of the witnesses : I find differences between the
pretrial statements of the three witnesses and the testimony they gave at the hearing
which are substantial and reflect significantly upon the reliability of their testimony.
The probable importance of the pretrial statements was anticipated during the hear-
it Wigmore on Evidence, 3d Edition, at 109.
13 See, Bludworth C'vinstructfon Company, Ine, 123 NLRB 385
13 What Local '8] 0 did in response to the General Counsel's request was not stated
14 Title 18. U S C A , Section 3500, contemplates that pretrial statements should be
produced prior to cross-examination. The statute provides
Whenever any statement is delivered to a defendant pursuant to this section. the
Court in its discretion, upon application of said defendant, may recess proceedings
in the trial for such time as it may determine to be reasonably required for the
examination of such statement by said defendant and his preparation for its use in
the trial
Although this statute is applicable to criminal proceedings, it is a reflection of the
interpretation Congress has placed upon the Jencks decision
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 817
ing as is reflected by the following colloquy which took place on May 1, 1958, while
Respondents' counsel was engaged in the cross-examination of Bonilla:
Mr. SHAPIRO. I will ask the Trial Examiner to direct Mr. Schwartz to turn
over the statement to me. (Referring to the pretrial statement of Victor Bonilla
which the General Counsel refused to produce for the inspection of Respondents,
although demanded ) Here is an obvious case of a witness who is deliberately
telling a falsehood and we have the statement to demonstrate that fact and yet
counsel refuses to turn over such statement.
TRIAL EXAMINER: I do not have authority to direct the General Counsel to
turn over that statement to you. It would appear to me that in view of the
difficulty that has been experienced in eliciting testimony from this witness that
the statement should be turned over and this statement, in particular, General
Counsel should obtain permission, if he needs prior permission, to turn it over.
Another factor bearing upon the question is that the three witnesses were unfamiliar
with the English language and gave their testimony through an interpreter. This
contributed in some measure in restricting the scope of their cross-examination.
Depriving the Respondents of the use of the pretrial statements of these witnesses
was therefore a more serious abridgement of their opportunity to engage in a full
cross-examination than would occur in instances where the cross-examining attorney
can communicate directly with the witnesses.
For the reasons stated above I find that Respondents have been prejudiced in
their defense to this proceeding by having been denied the opportunity to complete
the cross-examination of Ramos, Bonilla, and Hidalgo. Accordingly, I hereby grant
the Employer's motion to strike the testimony of Ferdinand Acevedo Ramos, Victor
Bonilla, and Juan Hidalgo. A further reason for striking the testimony of Ferdinand
Acevedo Ramos and Juan Hidalgo, in particular, is that as alleged discriminatees
they, in effect, occupy the status of complamants.15 "Since the right to cross-examine
witnesses of the adverse party is absolute, it should not be abridged, or limited
unduly, but should be extended liberally; and a party must be given a reasonable
opportunity to cross-examine adverse witnesses. This is especially true where the
witness is the opposite party and is testifying to make out his own case." 16 Without
the testimony of Ramos and Hidalgo, the General Counsel did not establish prinia
facie that they had been discriminatorily discharged. Accordingly, I also grant the
Employer's motion to dismiss the complaint insofar as it alleges that the discharges
of Ferdinand Acevedo Ramos and Juan Hidalgo violated the Act.
Upon the entire record in the case, and from my obervation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Lenscraft Optical Corporation and Rayex Corporation are New York corporations
with their principal offices situated at 133-30 37th Avenue, Flushing, Queens, New
York. Both corporations have identical stockholders, directors, and officers. During
the times material hereto, Rayex was engaged in the business of manufacturing and
selling sunglasses, while Lenscraft was "a subcontractor who does contract work
for Rayex Corporation and also does sales of sunglasses throughout the United
States."
Rayex maintains an office for its clerical, bookkeeping, and sales employees at
the Flushing address, but does no production work at that location It operates
plants at New Britain and Plainfield, Connecticut, where it receives the materials
used in the manufacture of its products. Lenscraft's sole plant and place of business
is situated at the aforesaid Flushing location Lenscraft has no office clerical em-
ployees Its clerical work, including bookkeeping, is performed for it by Rayex "on
a fixed-fee basis, which is paid to Rayex Corp "
During the year 1957, Rayex Corporation shipped goods valued in excess of
$100,000 from its place of business in the State of New York to customers located
outside the State of New York, while during the same period, Lenscraft Optical
Corporation performed services for Rayex Corporation in excess of $100,000. The
services performed by Lenscraft for Rayex, according to the stipulation of the parties,
was with respect to certain styles and models of sunglasses. Rayex manufactures
the frames for these products at its Connecticut plants from which they are shipped
to the principal office of Rayex in Flushing The frames are transferred to Lens-
15 Jaques Power Saw Company, 85 NLRB 440, 443
"198 C J 8 118 : Conso Fastener Corporation, 123 NLRB 1611
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
craft at the same location for assembly. The finished products are returned to,
Rayex and are shipped from the Flushing plant to the customers of Rayex. The
services performed by Lenscraft for Rayex are performed pursuant to a service
contract "based on labor costs."
Upon the basis of the foregoing, I find that Lenscraft Optical Corporation and
Rayex Corporation are engaged in commerce within the meaning of Section 2(6) and
(7) of the Act ,and the two Companies are so closely related as to constitute a single
employer for the purposes of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
'In accordance with the stipulation of the parties, I find that Local 810, Steel,
Metals, Alloys and Hardware Fabricators and Warehousemen, International Brother-
hood of Teamsters (Ind.), and Local 422, International Jewelry Workers, AFL-CIO,
are labor organizations within the meaning of Section 2(5) of the Act; and further,
that at all times material to this proceeding until January 27, 1958, Local 122, Inter-
national Jewelry Workers Union, AFL-CIO, was a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
All conduct alleged to constitute violations of the Act in this case involved the
employees of Lenscraft at the Company's plant in Flushing, New York. Rayex
Corporation is joined as a respondent solely on the basis that it constitutes a single
employer together with Lenscraft. Local 422 likewise did not participate in any of
the alleged unlawful conduct but has intervened in this proceeding to protect its
contractual and representative interests as the recognized bargaining agent of Lens-
craft's employees.
The amended complaint alleges violations of Section 8(a)(1), (2), and (3) of
the Act on the part of the Employer and violations of Section 8 (b) (1) (A) thereof
on the part of Local 122. After the initial complaint in this proceeding had issued,
Local 122 went out of existence and Local 422 assumed its representative interest as
the bargaining agent for Lenscraft's employees.
In substance, the complaint, as amended, alleges that from February 19, 1957,
through June 1957, Lenscraft infringed upon the rights guaranteed its employees by
Section 7 of the Act and unlawfully assisted Local 122 by reason of the following:
(a) Interrogation of employees.
(b) Warning employees against joining or assisting the Teamsters or refusing to
join Local 122.
(c) Threatening employees with reprisals if they joined or supported the Teamsters.
(d) Promising employees benefits if they refrained from joining or assisting the
Teamsters.
(e) Soliciting employees to sign designation and checkoff cards for Local 122 and
to join said Union.
(f) Indicating sympathy and preference for Local 122.
,(g) Discharging certain employees.
(h) Permitting Local 122 to engage in organizational activities in the plant
premises during working hours.
Lenscraft also is alleged to have discriminatorily discharged 23 employees be-
tween March 14 and July 5, 1957.
The complaint also accuses Local 122 of restraining and coercing employees of
Lenscraft in the exercise of the rights guaranteed by Section 7 of the Act by the
following:
,(a) Its agent, Victor Cavallo, on March 1, 1957, threatening to inflict bodily
injury upon certain employees.
(b) From March 1 to May 17, 1957, threatening employees with reprisals if
they failed to support Local 122 or vote for it in a National Labor Relations Board
election
(c) From March 1 to August 1, 1957, threatening to cause Lenscraft to discharge
employees unless they joined Local 122 and renounced support of the Teamsters.
'In this case much evidence was introduced as background to give a frame of
reference and make more understandable the specific conduct upon which the
parties rely in support of their respective positions. For this reason I have set out
in detail the allegations of the complaint, which are generally denied by the Em-
ployer, to obviate confusion as to what are and what are not the issues in this
proceeding. Thus, despite evidence with regard to the contractual relationships
between the Employer and Local 122, there is no issue in this case as to whether
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 819
the contract was unlawful either in content or in its administration. Further,
although many of the events upon which the General Counsel relies in support of
his case occurred while a question concerning representation was pending, no
issue was raised regarding a violation of the Midwest Piping doctrme.17 During
his oral argument at the close of the case, the General Counsel for the first time
advanced the contention that because, in his view, the evidence indicates that check-
off cards in favor of Local 122 were signed by Respondents' employees as a result
of acts of assistance and coercion, the appropriate remedy in this case is reimburse-
ment of all union dues deducted from the employees' wages. However, as the com-
plaint does not allege that under the subsisting collective-bargaining agreement,
which contained a union-security and a checkoff clause, "there was a substantively
unlawful contract or hiring practice," the General Counsel's argument with respect
to the appropriate remedy is without merit. E. & B. Brewing Company, Inc., 122
NLRB 354. Furthermore, the General Counsel failed to support this contention by
a preponderance of the evidence.
As to Local 122, the complaint alleges that beginning on or about March 1, 1957,
by reason of the conduct summarized above, it engaged in unfair labor practices in
violation of Section 8(b)(1)(A) of the Act. The first charge in this proceeding
against that organization was served on October 29, 1957. As Section 10(b) of the
Act provides "that no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge is made
" no conduct by Local 122 which took place prior to April 29, 1957, may be
found to constitute an unfair labor practice in this proceeding. Thus, clearly the
alleged activities of Victor Cavallo on or about March 1, 1957, cannot be found to
constitute an unfair labor practice. In addition, there is no credible evidence in
the record that any other conduct on the part of Local 122, alleged in the complaint
to be violations of Section 8(b)(1)(A) of the Act, occurred on or after April 29,
1957 Accordingly, I shall recommend that the complaint against Local 122 be
dismissed.
B. Factors relating to credibility
A majority of the persons employed at the Employer's Flushing plant are of
Puerto Rican extraction and have only a limited familiarity with the English
language. Most of the witnesses in this proceeding gave their testimony through
an interpreter and with respect to many of them there was considerable difficulty in
communication between the interrogating attorneys and the witnesses. As a result
the interrogation of these witnesses particularly on cross-examination was circum-
scribed. This is unfortunate because much of the testimony is in conflict and it is
conceivable that many of the conflicts could have been satisfactorily explained
were there an easier method of interrogating the Spanish speaking witnesses than
through an interpreter. Some of the witnesses who gave their testimony through
an interpreter told about statements made to them in English by officers and super-
visors of the Employer. These witnesses professed some understanding of the
English language. However, most of these witnesses demonstrated considerable
difficulty in understanding questions asked them at the hearing even with the benefit
of the services of an interpreter. Thus, the possibility of misunderstanding on
the part of the Spanish speaking witnesses as to what was told to them in English
has been taken into consideration in assessing the reliability of their respective
testimony.
Another circumstance which has had an influence upon my determination of
the credibility of various witnesses is the extent to which the testimony they gave
at the instant hearing differed from pretrial statements made by them or from
testimony which they gave in earlier court proceedings. There were a relatively
large number of witnesses whose testimony was impeached to a greater or lesser
degree by proof of inconsistent prior statements made either in affidavits or while
testifying at 'a prior trial. Two witnesses, in particular, namely, Victor Cavallo
and Domingo Baerga impressed me as being incredible and I have placed no
reliance upon any of their testimony except as it is otherwise corroborated. While
no single witness may fairly be referred to as a principal witness for the General
Counsel, the weight of the defense in this proceeding rests upon the testimony
of four witnesses called by Respondents, namely, Raymond Tunkel, Leonard
Falitz, Sidney Katz, and Victor Arias. Because of their positions with the Em-
ployer these four witnesses are partisan. I am of the opinion that Katz and Arias
were not completely reliable witnesses. As a consequence, I have given credit
11 Midwest Piping & Supply Co., Inc., 63 NLRB 1060.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to certain portions of their testimony only after very careful consideration. On
the other hand, Leonard Falitz impressed me favorably. He gave his testimony
in a straightforward manner without any undue hesitation and without any indi-
cation that he was attempting to shape his answers as to best serve the Respondents'
defense. I am of the opinion that Falitz was a wholly truthful witness. Raymond
Tunkel also impressed me as being a generally truthful witness. Tunkel, who
is president of the Employer, made no effect whatsoever to conceal his violent
partisanship in this proceeding. From the point of view of the General Counsel
who cross-examined him he was an uncooperative witness. Despite this, and de-
spite some verbal fencing that he engaged in with opposing counsel, I am of the
opinion that his testimony was generally reliable. He was equally full and com-
plete in describing events and occurrences unfavorable to the defense as he was
in giving testimony on behalf of the Respondents. Despite his belligerency toward
the General Counsel, I am of the opinion that he disclosed all information relevant
to the questions asked him and did not evade answering any questions or distort
facts to create an impression more favorable to the defense than the facts warranted.
More than 30 witnesses testified in the instant proceeding. Any attempt to
discuss the credibility of all witnesses and their respective testimony would unduly
encumber this report. The facts recited below are based upon the evidence
which I have credited after taking into account all controverting testimony. A
number of incidents were described by witnesses who testified on behalf of the
General Counsel which I find did not take place as described by them or which
have no probative value in support of the complaint. I have omitted discussion
of most such testimony.
C. Background
The events with which this proceeding is concerned developed out of the efforts
of the Teamsters to replace Local 122 as the representative of the employees at
Lenscraft's Flushing plant. For a continuous period of approximately 5 years
antedating the issuance of the complaint in this case, Lenscraft had recognized
Local 122 and had had successive collective-bargaining agreements with that
Union. The last of these contracts was executed on September 6, 1955, covering
the period until July 30, 1957, and contained an automatic renewal clause.18
The agreement, among its other terms, contains an arbitration clause, a no-strike
and no-lockout clause, a checkoff provision, and a conventional union-security
clause which requires the Employer to discharge any employee covered by its
terms within 1 week following notification of loss of good standing by reason
of nonpayment of dues or initiation fees.
In the fall of 1956 the Employer moved its plant from Manhattan to its present
location in Flushing. According to the uncontradicted testimony of Raymond
Tunkel, the Employer's president, while the Company's Flushing plant was under
construction, Hank Malamy, a Teamsters representative, visited the site, and left
instructions that the Company get in touch with him, otherwise it would have
a lot of trouble. The Employer began production in its new plant on October
26, 1956. On November 5, 1956, a majority of the employees went on strike.19
The strike was supported by the Teamsters and the pickets carried that union's
placards The strike was terminated about December 14, 1956, by an injunction
issued by the Supreme Court of the State of New York against Local 810 and
other named defendants. The Court's order also required the Employer to rein-
state the strikers, which the Company did.
During the strike, Local 810 demanded recognition and that Lenscraft ne-
gotiate a collective-bargaining agreement with them.2° Lenscraft entered into
discussions with Local 810, and the two parties agreed upon most of the terms of
a contract. According to President Tunkel, the execution of a contract was con-
18 On July 22, 1957, the contracting parties extended the agreement until the question
concerning representation raised by Local 810 is resolved by the National Labor Relations
Board
11 There was testimony indicating that the strike was, in part, an expression of rebellion
by the employees against the inadequate representation they had been receiving from
Local 122.
=° According to President Tunkel, on November 7, 1956, Malamy informed the Employer
that unless it negotiated a contract with Local 810 the strikers would never return to
work and that as a Teamsters' local they could prevent trucks from entering or leaving
the plant so that the Company would never resume production. Tunkel further testified
that subsequently Milton Silverman, president of Local 810, threatened that unless the
Employer discussed a contract with the Union it would have indefinite labor difficulty.
LENSCRAFT OPTICAL CORP . AND RAYEX CORP. 821
tingent upon Local 810 obtaining a National Labor Relations Board certification.
However, negotiations were broken off between February 5 and 12, 1957 , because
Milton Silverman , president of Local 810 interposed certain additional demands 21
D. Sequence of events
Despite the breakdown of negotiations between the Employer and Local 810,
the latter continued to press for recognition . According to the Employer , in order
to force them to enter into a collective -bargaining agreement , Local 810 instigated
a slowdown which began on February 15 and continued until 14 employees were
discharged about 1 month later for their participation in the slowdown. The
General Counsel , however, contends that there never was a slowdown and that
the 14 employees were discriminatorily discharged for having supported Local
810. A further step taken by Local 810 to gain recognition was to institute a
representation proceeding . On March 4 , 1957 , Local 810 filed a representation
petition with the Board . See Case No. 2-RC-8720. An agreement for a consent
election to be held on May 17, 1957 , was entered into on May 3 by the Employer,
Local 810, and Local 122 . Although the election was held as scheduled, the
question concerning representation has not yet been resolved because objections
to the election were filed by Local 810 and the Regional Director has deferred
further action in the representation case pending the outcome of this proceeding.
Towards the close of February 1957 , Local 122 began to exert considerable effort
to reenforce its position as the representative of Lenscraft 's employees and, after
the representation petition was filed , to win sufficient support among the em-
ployees to prevail in the election . The General Counsel contends that Lenscraft
actively supported and assisted Local 122 in such efforts. Respondents do not
dispute that there was increased activity by Local 122 at its plant beginning in
February 1957 , but explain that Local 122 was merely administering its contract
and enforcing the agreement 's union-security clause. As a consequence of the
November -December 1956 strike the employees had discontinued paying dues
to Local 122 and new employees had failed to join the Union as required by
the contract . According to Respondents , Local 122 merely sought to compel
adherence to the terms of the agreement.
The final events in this case relate to the alleged discriminatory discharges of 9
employees in addition to the 14 previously discharged for their alleged participation
in a slowdown . However , I have dismissed the complaint as to five of these em-
ployees so that there remains for consideration the discharges of four employees
between June 6 and July 5, 1957 . The General Counsel contends that they were
discharged in retaliation for their support and activities on behalf of Local 810,
while the Employer asserts that they were laid off in connection with its usual
seasonal reduction in force and that the union activities of these employees had
nothing to do with their selection for layoff.
E. Interference, restraint, and coercion
1. Activities of Local 122 prior to February 28
From the time the strike ended about December 14, 1956, until February 15,
1957, Local 122 did not perform any services for the employees of Lenscraft despite
the Union 's status as their contractual representative . (During this period the
Employer and Local 810 were discussing the terms of a prospective collective-
bargaining agreement . The International Jewelry Workers Union through its
Secretary-Treasurer, Hyman Powell, was aware of these discussions and there is
evidence that the discussions were conducted with his tacit approval. ) The Em-
ployer did not deduct dues on behalf of Local 122 for the months of January and
21 Edward Robinson , an agent of Local 810, testified that there was a negotiating meet-
ing on February 12, 1957 , which was attended by the president of Local 122 and Hyman
Powell , secretary-treasurer of the Jewelry Workers International . At this meeting, in
addition to further discussion of several clauses in the prospective agreement between the
Employer and Local 810 which had not been agreed upon , there was a discussion about
obtaining a release from Local 122 of its interest in the subsisting agreement between
the Company and itself. Although Robinson 's testimony does not harmonize entirely
with Tunkel 's testimony , the latter did testify that there was a meeting at which
Mr. Powell said something about being able to have the president of Local 122 release
the contract at the Lenscraft plant.
577684-61-vol. 128-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 1957.22 Raymond Tunkel, the Employer's president, explained that most
of the employees in the plant had been newly hired and the Company had not
received checkoff cards from them authorizing dues deductions and further that the
Employer did not wish to be caught in the middle of the tug-of-war being waged
by Local 122 and Local 810. In February, Albert Goldman, president of Local 122,
telephoned Tunkel. According to Turkel, Goldman said, ". . . I understand you
got about 200 people there . . . What about the dues; it is $300 a month, we want
to get paid." Tunkel replied, "If you want the dues come and get them. I will
not do your work for you. If you want to service your contract and see that we
have no trouble from the outside then I will be happy to cooperate and collect the
dues for you."
About February 21, 1957, two representatives of Local 122, Kelly and O'Brien,
came to the plant and had a discussion with President Tunkel and Secretary-Treasurer
William Jonas. The union representatives said that they had come to restore peace
in the shop, to enforce the contract, and to collect the dues. When the company
officials complained about the failure of Local 122 to service the shop, the union
representatives promised that things would be different and that they would give
the shop adequate representation. With respect to the question of dues, the company
officials explained that they did not have checkoff cards from a majority of the
employees, those who had been recently hired, and that the Company would not
withhold dues unless it had authority to do so. They also recommended that it
would be advisable for the Union to waive the initiation fees. The union repre-
sentatives agreed to do this.
Kelly and O'Brien returned to the plant three or four times that week. They
appointed a shop steward and a shop committee and presented a number of employee
grievances to management.
2. The meeting of February 28
In the afternoon of February 28, 1957, Kelly and O'Brien came to the plant
accompanied by a third union representative, Victor Cavallo, where they met with
Company President Tunkel. They explained that Local 122 had decided to waive
the January and February dues but wanted to collect dues as of March. They
asked permission to hold a meeting of the employees in the plant to explain why
it was necessary to pay dues to Local 122 and also that it would be easier to do so
by signing checkoff cards. There was a lengthy discussion about the matter. Tunkel
explained that it was already past 4:45 p.m., the normal quitting time, but a ma-
jonty of the employees were still at work. He offered to stop overtime work at
5:45 p.m. and then permit the union representatives to meet with the employees.
The conversation was concluded about 5 p.m. and a meeting of employees was
held at 5:45 p.m. About 140 to 150 employees attended. The foregoing is based
upon the testimony of Raymond Tunkel, which I credit. Tunkel further testified
that during the meeting he stayed in an office on the plant floor from which he
could observe the proceedings although he could not hear what was being said.
He observed Cavallo address the audience. There was shouting and then a female
employee, Betty Rodriguez, spoke to the employees in Spanish. After she finished
Cavallo handed out some cards. The employees left the plant after the meeting
broke up except for four or five who returned to work.
In his opening statement the General Counsel asserted that the meeting took
place during normal working hours 23 Six witnesses called by the General Counsel
testified that the meeting began at 4:30 p.m. They are: Mary Rodriguez, Isabelo
Alejandro, Nelson Vargas, Ephraim Roque Vasquez, Raymond Luciano, and Nor-
berto Santana Vega. Vasquez testified that he punched his timecard when the meeting
ended at 5:30 p m., but his timecard shows it was punched out at 4:49 p.m. Vega
also testified he punched his timecard when the meeting ended, but in his case his
timecard shows that it was punched out at 6:45 p.m. On the other hand, the
testimony of four other witnesses called by the General Counsel, namely, Julio
Sanabria, Francisco Vargas Ramos, Gregorio Roman, and Rodin Calderon cor-
23 In March 1957, the Employer renewed its observance of the checkoff provision of its
contract with Local 122
The General Counsel apparently was attempting to prove that the employees were
paid by Lenscraft for the time they spent at the meeting The Employer's plant superin-
tendent, Sidney Katz, testified that the employees punched out when the meeting started
and Supervisor Leonard Falitz testified that the employees attended the meeting on their
own time. Although the timecards of a few employees show that they punched out about
6:45 p.m. that day, I find that the General Counsel has not established by a preponder-
ance of the evidence that the employees were paid for attending the February 28 meeting.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 823
roborates the Employer's version that only employees who were working overtime
attended the meeting.24 The Respondents, in their brief, after referring to the
foregoing and after alluding to other conflicts among the General Counsel's wit-
nesses as to what transpired at the meeting, argue that the inexorable conclusion
is that witnesses called by the General Counsel deliberately described a meeting
which they did not attend. As I have found that the meeting began at 5:45 p.m.,
there is a question as to the reliability of the testimony of Mary Rodriguez, Isabelo
Alejandro,25 Nelson Vargas, Efraim Roque Vasquez, and Raymond Luciano, who
punched out their timecards prior to 4:50 p.m. on February 28 but testified that they
attended the meeting.
There is equally great conflict among the General Counsel's witnesses as to who
spoke and what was said and done at the meeting. Julio Sanabria testified that,
in addition to Cavallo, William Jonas, the Employer's secretary-treasurer, spoke
at the meeting and Jonas as well as Cavallo handed out union cards. Despite the
large number of witnesses who testified about the event there was only slight cor-
roboration of Sanabria's testimony regarding Jonas' participation in the meeting.26
I do not credit Sanabria in this respect. I find that the General Counsel has failed
to establish by a preponderance of the evidence that anything was said or done at
the meeting which supports any of the allegations of the complaint.27
3. The events of March 1
After the above-described meeting disbanded, Company Officers Tunkel and
Jonas, and Union Representatives Kelly, O'Brien, and Cavallo had another con-
ference. The union representatives demanded that the Company enforce the union-
security provisions of its contract with Local 122 and discharge all employees who
refused to pay their union dues. The Employer's response was that it could not
afford to do so because production would be disrupted 2s It was decided that the
timecards of the employees who had not signed checkoff cards would be removed
from the rack that night and the following morning Cavallo would station himself
in the employees' entrance area and would explain to these employees, as they
came into the plant, that because of the union-security clause in the subsisting
collective-bargaining agreement, they were required to pay dues to the Union to
continue working in the plant. Those employees who paid their dues or indicated
a willingness to do so by signing a checkoff card would then be given their timecards
and permitted to go to work, and the Employer would discharge the others.29
However, it was the understanding that a full explanation of the situation would be
given the employees who refused to pay dues to the Union and that only if they
persisted in their refusals would they be discharged. In accordance with this
arrangement, the timecards of the employees who had not signed checkoff cards 30
were removed from the timecard rack that night.31
The next morning, Victor Cavallo was seated at a small table in the plant's
entranceway while Tunkel, Jonas, and several supervisors stationed themselves in
the area. A majority of the employees found their timecards in the rack and
punched in. However, instead of going to their places of work they remained in
24 In addition to Tunkel, various other witnesses called by Respondents testified that
the meeting took place after regular working hours
22 Alejandro's timecard for the week in question was not introduced in evidence, but he
testified that he left the plant at 4 :45 p.m. on the day of the meeting.
2e Gregorio Roman testified that at the end of the meeting Jonas said, "Vote for 122."
However, it is noted that there was no election question pending on February 28.
21 Despite the many witnesses who testified with regard to what transpired at the
meeting, there is no version of the event which I credit.
29 Tunkel testified that he also said, "This doesn't sound fair to us. First we have 122
here and then 810 pulling the people out Now we have 122 firing the people. . . . What
the hell gives in this shop1"
2° As the General Counsel did not prove that as of March 1 there were any employees
who had been working for less than 30 days, no basis exists in the instant record to
support a finding that the Employer or Local 122 sought to compel any employee to
join the Union prior to the expiration of the statutory 30 days' grace period.
30 None of the employees had paid their dues directly to the Union
21 According to Tunkel, the Company had checkoff cards for all employees who had
worked prior to the November 1956 strike None of the newer employees had signed
checkoff cards between the beginning of the year and the Local 122 meeting that night.
Tunkel was shown the checkoff cards which had been signed that night. The timecards
of this latter group and the older employees were not removed from the timecard rack.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the area to observe what was going on. Jonas held the timecards of the employees
who had not signed checkoff cards for Local 122. As they entered the plant they
were told by Cavallo or Jonas that under the contract they had to pay dues to Local
122 and if they were willing to pay their dues they could go to work, but if they
do not wish to pay dues, the representative of Local 122 would not permit the
Employer to continue them at work. These employees were also told that the best
way to pay dues is to have the Employer deduct it from their wages and if they sign
a checkoff card the Employer has the right to make such deductions and they can go
to work. Some employees signed checkoff cards and were then given their time-
cards and permitted to go inside. Those employees who refused to pay dues to
the Union or to sign checkoff cards were told to wait at one side of the entrance
area . This procedure had already begun to generate some excitement among the
employees when Francisco Vargas Ramos came into the plant at the head of a
group of 10 to 15 employees shouting, "Let's get Cavallo." Some of the group
rushed at Cavallo. He got up and ran from the area, while the company officers
and supervisors formed a line to hold back the employees. The employees were
quieted when Santos Quinones shouted something to them in Spanish . Jonas finally
ended the confusion by giving the employees their timecards and letting them go
to work. Nobody was discharged for refusing to pay their union dues that day.32
4. Further efforts by Local 122 to collect dues
Local 122 Representative Kelly met with the Employer's officers, Tunkel and
Jonas, later in the morning of March 1. After Kelly was told what had happened
earlier that day, he complained to Jonas that the latter should not have permitted
the employees who did not want to pay dues to go to work. Jonas suggested that
the recalcitrant employees be spoken to in small groups. This suggestion was
adopted. Beginning that afternoon and continuing for 3 or 4 days, employees in
groups of two to four 33 were brought to the office.34 About 40 to 45 employees
were spoken to in this fashion. According to Tunkel, he was present at all the
interviews and Kelly usually was present 35 Tunkel testified that "most of the time
I would do the talking because I did not want [ the employees ] to be spoken to by
someone who to them was a stranger ." He explained to the employees that pur-
suant to the contract with Local 122, they were required to pay dues to the Union.
A contract was on hand for the employees' inspection. At these conferences Kelly
told the employees that he realized there had been gripes about Local 122 but he
was there to service the shop and the people would be taken care of. Kelly also
told the employees that they had to pay dues or sign a checkoff card or the Company
would have to let them go.
The General Counsel called upon a number of witnesses to give their versions of
what transpired at these meetings . To the extent that their testimony is inconsistent
with the summary set forth above, which is based largely on Tunkel's testimony, I
do not credit them.36 I will, however, discuss the testimony of one witness about
his conference because it raises issues pertinent to questions relating to his discharge
which will be discussed in a later section of this report.
Francisco Vargas Ramos testified that on March 1, Local 122 Representative
Cavallo escorted two other employees and himself to the office. During the ensuing
conference Kelly told him that he would have to sign a membership card for Local
122 or be laid off. When Ramos refused to sign, the Employer's secretary-treasurer,
William Jonas, who was also present, told him to sign a card or otherwise he would
be laid off in 10 days. Jonas also said that if he and the other employees did not
sign such cards the Company was going to move to Connecticut because the Com-
sa The version of the incident summarized above is based largely upon the testimony
of Raymond Tunkel. However , in most parts , his testimony was corroborated by the
following witnesses who testified on behalf of the General Counsel: Mary Rodriguez,
Esteban Rosario , Norberto Santana Vega, and Rodin Calderon.
as At least one person who understood English was included in each group
34 Local 122 Representative Cavallo returned to the plant after his hasty departure on
March 1 and escorted the employees to the office.
85 Other representatives of the Employer and Local 122 attended the conferences also.
s' Mary Rodriguez testified that she attended one such meeting and was told that she
was required to sign a new membership card for Local 122 despite her protest that she was
already a member but did not wish to remain a member. However, I credit Tunkel's
testimony that what had occurred was that Kelly told Mary Rodriguez she was in default
in the payment of her union dues and had never given the Employer a checkoff card and
she would either have to pay her dues or sign a checkoff card to retain her job.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 825
pany needed the Union. Ramos further testified that President Tunkel told him
that if he did not sign the Local 122 card he would be put "on the slow down," he
would be taken to arbitration and he would be laid off.
On his cross-examination, Respondents introduced into evidence two affidavits
sworn to by Ramos on March 1 and March 9, respectively, in which the same event
is described. In the earlier affidavit, Ramos states that in the morning of March 1
Victor [presumably Cavallo] told him that he was wanted in the office. At the
meeting in the office, he was asked to sign a card for Local 122. When he refused,
according to the affidavit, "Victor told me that I would be laid off for 2 weeks . .
he also said that if I sign they would not take any dues from my pay . . . As
I still refused, Victor told me that I would have my head broken open." The
affidavit states that these remarks were overheard by Tunkel and Jonas. In the
March 9 affidavit, Ramos states that in the afternoon of March 1 he went to Jonas'
office with three or four people. He further states that Jonas asked him to sign
with Local 122 and when he refused Jonas told him that if he did not sign he would
have no job in the plant. (No mention is made in this affidavit of a threat
to this person.) In addition to the inconsistencies between each of the two affidavits,
both affidavits are inconsistent with the testimony the witness gave at the hearing.
First, in his testimony at the hearing, Ramos did not refer to any threat by Cavallo
as stated in the March 1 affidavit. In neither affidavit is there any mention that Jonas
told him that if the employees did not sign the Local 122 cards the Company would
move to Connecticut or that Tunkel threatened that he would be accused of partici-
pating in a slowdown, go to arbitration, and be laid off. When the witness was
asked to explain the reason for these omissions from his affidavits his answer was,
"probably I forgot." Since one affidavit was made on the very day the event took
place and the other affidavit only 8 days later, while his testimony was given more
than a year after the occurrence, his explanation for the omissions from the affi-
davits is hardly convincing. As the variances between Ramos' affidavits and his
oral testimony at the hearing are substantial and not satisfctorily explained and
because generally Ramos impressed me as not being a reliable witness, I do not
credit Ramos' testimony regarding the meeting described above.
5. Conclusions as to the violations of Section 8(a)(1) and (2) of the Act
When, in February 1957, Local 122 insisted upon enforcement of the union-
security clause in its contract with Lenscraft, the Employer found itself in a delicate
position. It knew that a substantial proportion of its employees was opposed to
Local 122 and, partially in recognition of this fact, despite the contract's checkoff
provision, had discontinued deducting dues on behalf of Local 122 from the wages
of employees who had signed appropriate authorizations. On the other hand,
Local 122 had the right under the subsisting collective-bargaining agreement (which
the General Counsel concedes was valid at the time in question) to demand the
discharge of employees who refused to pay dues to the Union 37 The Employer, in
order to avoid such action, permitted Local 122 to hold a meeting in the plant after
working hours on February 28, 1957, for the purpose of explaining the situation
to the employees. When this proved not to be completely successful, the Employer
joined with representatives of Local 122 in efforts to persuade the recalcitrant em-
ployees that it was necessary for them to observe the terms of the collective-
bargaining agreement of paving dues to Local 122. The General Counsel has cited
to me no case which supports his contention that in these circumstances the Em-
ployer's conduct constituted unlawful support and assistance to the contractual bar-
gaining representative or was otherwise an infringement of the employees' statutory
rights. Even if it were considered that a question concerning representation was in
existence at the time of these activities, nevertheless, the existence of such question
concerning representation does not prohibit the parties to a lawful collective-
bargaining agreement from administering and enforcing its provisions. Accordingly,
I find no violation of the Act based upon the incidents which occurred on February
28 and March 1, 1957, and upon the conferences with employees during which the
Employer and representatives of Local 122 sought to persuade them to pay their
union dues. The General Counsel contends that the Employer attempted to coerce
the employees into signing checkoff cards. I do not find that the General Counsel
has proved this by a preponderance of the evidence. Although some witnesses
testified that the Employer insisted that they were required to sign checkoff cards
to retain their jobs, I credit the testimony of Respondents' witnesses to the effect
"'The General Counsel did not prove that during the times in question any employees
had been working for the Company for a period of less than 30 days.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that checkoff cards came into the various discussions only as a suggestion to em-
ployees as to how they might go about paying their dues as required by the contract.
On March 4, 1957, the Teamsters filed a representation petition with the Board
and an election was held on May 17 with the Teamsters and Local 122 appearing on
the ballots. The Employer did not profess neutrality with regard to which of the
two rival organizations should emerge as the victor. After its negotiations with
the Teamsters were broken off in February, the Employer was wholeheartedly
opposed to that union becoming the bargaining agent for its employees. The Em-
ployer not only made known to its employees that it favored Local 122, but during
the preelection period sought to influence the employees' vote by threats of reprisals
should the Teamsters win the election and promises of benefits if Local 122 pre-
vailed. More specifically, I find that during this period, the Employer through its
officers and supervisors engaged in the following conduct:
a. Victor Arias and William Jonas urged employees to vote for Local 122.
b. Victor Arias and Sidney Katz threatened employees that if the Teamsters
wins election the plant will be moved to Connecticut and they would lose their
jobs.
c Victor Arias warned employees that Local 810 would never be recognized by
the Employer.
d. Victor Arias, Isadore Akrow, and Herman Padro advised employees against
wearing Teamsters buttons and warned them that they might be discharged if they
did not remove the buttons or continued supporting the Teamsters.
e. William Jonas promised to make Julio Sanabria a foreman and give him an
increase in pay plus 2 weeks' vacation if he abandoned his active opposition to
Local 122.
f. Employees were promised that if Local 122 wins the election, on the day of
the election there will be a party and the employees will get a half day's holiday.38
Section 7 of the Act guarantees employees the right to self-organization and to
bargain collectively through representatives of their own choosing. Section 8(a) (1)
declares it an unfair labor practice to infringe upon such right, while Section 8(a) (2)
interdicts all forms of employer assistance to a labor organization. Thus, an em-
ployer must remain neutral when the adherence of his employees is sought by
rival labor organizations. Harrison Sheet Steel Company v. N.L.R.B., 194 F. 2d
407, 410 (C.A. 7). Even slight employer intrusion in this area may have a telling
effect upon the employees' freedom of choice. The International Association of
Machinists etc., Lodge No. 35 (Derrick Corp.) v. N.L.R.B., 311 U.S. 72, 78. By
its preelection conduct, summarized above, the Company was attempting to "en-
trench [Local 122] among the employees." Virginia Electric and Power Company
v. N L.R.B., 319 U.S. 533, 540. In so doing it not only failed in its duty to maintain
a neutral attitude as between the two competing labor organizations, but thereby
gave Local 122 potent support and assistance. The fact that the Company was
under contractual relations with Local 122 did not legalize its support of that union.
N.L.R.B v. Electric Vacuum Cleaner Company, Inc., 315 U S. 685, 692-695. Ac-
cordingly, I find that the Company has violated Section 8(a)(1) and (2) of the Act
by its conduct, described above.
The General Counsel also proved that, at least during the period from March 27
through April 1957, it was the Employer's practice upon hiring employees to give
them Local 122 cards to fill out. Thus, Vincent Berrios Calderon testified that when
he was rehired by the Company about April 7, 1957, -a secretary in the personnel
office gave him a Local 122 card to fill out together with other required forms.
Similarly, Gregorio Roman testified that when he was rehired on March 27, 1957,
Supervisor Victor Arias gave him a Local 122 card to fill out. This was corroborated
by Arias who testified that he helped newly hired Spanish speaking employees fill
out necessary forms and among such forms were Local 122 membership or check-
off cards. In these circumstances, newly hired employees, particularly those who
could not speak English, were led to believe that executing a membership or check-
off card for Local 122 was a prerequisite to employment with the Company. For
the reasons stated in Alaska Salmon Industry, Inc., et al., 122 NLRB 1552, and
New Orleans Laundries, Inc, 114 NLRB 1077, this practice was unlawful. Accord-
ingly, I find that the Employer thereby has further violated Section 8(a) (1) and (2)
of the Act.
311 find that the General Counsel did not prove by a preponderance of the evidence
that the Employer permitted representatives of Local 122 freedom to engage in campaign
activities in the plant during working hours, that supervisors wore Local 122 buttons in
the plant, or that the Employer was responsible for the appearance on the exterior of the
plant building of a sign on which was written "Vote for 122."
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 827
F. The discharges
1. Motion to dismiss as to alleged discriminatees who did not testify
The complaint alleges that the discharges of seven employees on March 14, 1957,
and another seven on March 18, 1957, were discriminatory. Three of the individuals
named as part of the first group and six named as part of the second group did not
testify at ' the hearing. Respondents moved to dismiss the complaint as to these
nine on the ground that the General Counsel has failed to make out a prima facie
case that their discharges were in violation of the Act. The General Counsel opposes
this motion. His argument is that because the Employer discharged the employees
in each group at the same time for the same alleged reason, namely, the employees'
participation in a concerted slowdown, the evidence relating to the Employer's dis-
criminatory motivation as to those who testified at the hearing is applicable to those
who did not testify. I find no merit in this argument. Even if the Employer's
single explanation for all the discharges is found to be specious, it does not follow
that the true reason for each of the discharges was the same. A prima facie case of
violation of Section 8(a)(3) of the Act is not established merely by proving that the
assigned reason for a discharge is false. Although illegal motivation may be estab-
lished by circumstantial evidence, here the General Counsel adduced no proof,
direct or circumstantial, as to the Employer's motivation for discharging the nine
employees who are the subject of the instant motion. He would have me infer
illegal motivation as to the nine from the evidence relating to the five employees
who did testify. The fault with his syllogism is that the premises are not acceptable.
As to the employees who were discharged on March 14 and 18, 1957, but did not
testify at the hearing, there is insufficient evidence in this record to establish that
the Employer knew they had been active supporters of the Teamsters or that they
were selected for discharge for any reason related to their union or concerted
activties. Accordingly, I grant the Employer's motion to dismiss the complaint
insofar as it alleges that the following were discriminatorily discharged: Alexandre
Rangel, Andres Ramirez, Mariano Gonzalez, Robert Sanchez, for Valentin, Jesus
Rojas, Jose Sanchez, Wilfred Juarez, and Andrew Alba.
2. Teamsters meeting of February 14
While the General Counsel contends that Adolfo Soto, Francisco Vargas Ramos,
Nelson Vargas, and Isabelo Alejandro, who were discharged on March 14, 1957,
and Ephraim Vasquez, who was discharged on March 18, 1957, were discharged
for having joined or assisted Local 810 and for having opposed Local 122, the
Employer asserts that they were discharged because they had participated in a slow-
down. According to the Employer, at a meeting conducted by the Teamsters on
February 14; 1957, its employees were instructed to engage in a slowdown, and
thereafter such slowdown did take place and continued until the Employer dis-
charged one group of seven employees on March 14 and an equal number of em-
ployees on March 18 for their activities in connection with the slowdown.
Following the 1956 strike, the Employer and the Teamsters had a series of
discussions relating to the terms of a possible collective-bargaining agreement
between them. Edward Robinson testified that an understanding had been reached
upon all the terms of the contract except for the selection of an arbitrator, the
minimum starting wage, and the commencement date for welfare benefits. How-
ever, negotiations were broken off about February 12, 1957, when the Teamsters
made certain additional demands upon the Employer. The next day the Teamsters
distributed a leaflet at the Flushing plant announcing a meeting for the evening of
February 14, at an adjacent meeting hall. The leaflet, which is dated February 13,
1957, stated:
The purpose of the meeting is to bring you up to date regarding the
negotiations that have taken place during the past few weeks and also
give you our proposals regarding actions, etc., to be taken in the near future if
negotiations do not come to a head.
When the time for the meeting arrived, in order to insure maximum attendance,
the Teamsters posted representatives at the entrance to the Employer's plant
to guide the employees to the meeting.
Edward Robinson, an organizer for the Teamsters, spoke at the meeting
and his remarks were translated into Spanish by another agent of the Teamsters,
Arroyo. There is substantial conflict as to what Robinson told the audience on
this occasion. Santos Quinones, a witness for the Respondents, testified that Robinson
suggested that the employees engage in a slowdown in order to force the Company
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to conclude a contract with the Teamsters. According to Quinones, "Mr. Robinson
at the meeting was saying to take it easy, not to rush too much ; that when we see
the bosses in front of us that we pretend we were working, and when the bosses
turned around, continue working slowly." He also testified that Robinson promised
that if anyone is laid off there will be a strike. Quinones' testimony was generally
corroborated by four other witnesses who testified for the Respondents. On the
other hand, a number of witnesses on behalf of the General Counsel were questioned
about the meeting. Of these witnesses, apart from Robinson, only Nelson Vargas
and Adolfo Soto, gave any meaningful testimony as to what transpired. Vargas
first testified on May 6, 1958, at which time, during his cross-examination, he stated
that he did not remember what Robinson had said at the February 14 meeting.
However, on June 5, 1958, he was recalled as a rebuttal witness by the General
Counsel. This time he remembered what Robinson had said at the meeting and
testified that he heard nobody say anything about a slowdown. Soto was also called
as a rebuttal witness by the General Counsel. His testimony contained a very brief
summation of what was said at the meeting. He was not asked specifically whether
the subject of a slowdown was discussed at the meeting and he neither affirmed nor
denied that Robinson told the employees to slow down.
The General Counsel's principal witness regarding the February 14 meeting was
Robinson. The latter testified that the purpose of the meeting, which lasted an
hour, was to report to the employees concerning the progress of negotiations between
the Teamsters and the Employer. Robinson testified as to what he had said at the
meeting. He specifically denied that he had said anything about a slowdown.
On cross-examination Robinson was asked to explain what was meant by the
language in the leaflet announcing the meeting, that its purpose was "also give you
our proposals regarding actions, etc., to be taken in the near future if negotiations
do not come to a head." His answer was, "By these I meant the complete organi-
zation of the plant, giving specific instructions to our people to help us sign up the
new people who were coming into the shop, expressing the idea of wearing our
union buttons on the job to keep up the morale of the workers, and to strengthen
our organization within the plant." However, while the leaflet stated that the em-
ployees would be informed about the Teamsters' "proposals regarding actions, etc.,"
Robinson did not testify that any mention of the "proposals," which he described
on his cross-examination, was made to the employees at the meeting.39
Whether Robinson on February 14 sought to inspire a slowdown is material in
this case because of the bearing it has upon the principal question of whether em-
ployees were discharged for their participation in the alleged slowdown. A finding
that Robinson had instructed the employees to slow down tends to bolster other
evidence adduced by the Employer to demonstrate that in fact such slowdown did
occur. For this reason, I have discussed at length the evidence relating to the
meeting of February 14. Upon weighing all the evidence upon the subject, I con-
clude that the summarization of the meeting given by Santos Quinones is the most
credible of all. Nelson Vargas' unexplained ability to recount what was said at
the February 14 meeting a month after he testified that he was unable to recall
anything whatsoever about what had transpired on that occasion makes his testimony
suspect. Soto's description of the meeting, which lasted an hour, was very brief.
He neither affirmed nor denied that the subject of a slowdown was discussed. In
the circumstances, his testimony is of only slight value in support of the General
Counsel's thesis that no mention of a slowdown was made at the February 14
meeting. Robinson, on the other hand, was the most fluent witness who testified
about the event. He is an employee of the Teamsters and, at the time in question,
apparently was in charge of the organizational activities for that union at the Em-
ployer's plant. Thus, he has a direct concern in the outcome of this proceeding.
Although he was neither evasive nor argumentative, I do not consider him a re-
liable witness. He impressed me as trying to fit his testimony into the mold of the
General Counsel's case rather than trying to describe the events about which he
39 On his cross-examination Robinson testified that at the February 14 meeting he told
his audience that it was his opinion that the contract between the Teamsters and the
Employer would be completed in about a week However, in an earlier proceeding before
the Supreme Court of the State of New York Robinson gave the following testimony :
Q. What were these proposals regarding actions et cetera to be taken in the near
future if negotiations don't come to a head that you stated at the meeting? Was
that a slowdown?
A. The proposals were many. The proposals were, number one, that we would
have to wait for the expiration of the contract on July 30 or August 1.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 829
was being questioned as they had occurred. I do not credit Robinson's version of
what he told the Company's employees on the occasion of the meeting he conducted
on February 14, 1957, and I find that he urged the employees to slow down at
their work.
3. The slowdown
According to the Employer, on February 15, 1957, its production employees began
a slowdown which reached its worst stage in the first 2 weeks of March. The Em-
ployer adduced evidence that its employees were encouraged and directed in this
conduct by Teamsters Representative Robinson from outside the plant 40 and by
employee leaders appointed by Robinson from inside the plant. It is the Re-
spondents' theory that as the outstanding injunction which had been issued by the
Supreme Court of the State of New York, on December 14, 1956, resrained the
Teamsters from calling a strike to enforce their demands for recognition and a con-
tract, the Union resorted to calling the slowdown as an alternate device for exerting
pressure upon the Employer.
The General Counsel's position is that there was no slowdown and considerable
oral and documentary evidence was adduced relating to this issue. The Employer
maintains production figures for its metal assembly department only. The records
show that the number of units produced in this department for the weeks set forth
below were as follows:
Week ending : Units Week ending. Units
2/8/57 -------------- 130,095 3/22/57 ------------- 105,925
2/15/57 ------------- 131,235 3/29/57 ------------- 120,785
2/22/57 ------------- 119,075 4/5/57 -------------- 127,910
3/1/57 -------------- 111,870 4/12/57 ------------- 125,735
3/8/57 -------------- 100,600 4/26/57 ------------- 138,500
3/15/57 ------------- 95,725
It is thus seen that following February 15, 1957, production declined steadily until
March 15, 1957, and there is a difference of 27 percent between the figures for
the week ending February 15 and for the week ending March 15. Thereafter, pro-
duction began to rise again. Although not conclusive, the foregoing tends to sup-
port Respondents' assertion that a slowdown took place following the Teamsters
meeting of February 14, which was most effective during the first 2 weeks in March,
and ended about March 15.
In addition to the evidence relating to the decline in production, the Respondents
called upon various representatives of management and some rank-and-file employees
to testify regarding the slowdown. Thus, Leonard Falitz, supervisor of the metal
assembly department, testified that beginning on February 15, 1957, the production
in his department began to fall and he noticed that employees left their workbenches
with unusual frequency to go to the restrooms or to converse with other employees.
Other supervisors testified to the same effect. Domingo Baerga testified that on
February 15 Robinson named him leader and in turn he appointed Francisco Vargas
Ramos, Julio Sanabria, and Santos Quinones as his lieutenants. The latter three
employees gave reports to Baerga as to how the slowdown was progressing and who
were refusing to cooperate. Santos Quinones corroborated Baerga. Quinones
testified that under instructions from Baerga he reported regularly to Baerga as to
who was and who was not cooperating in the slowdown. Several other employees,
called as witnesses by Respondents, also testified that a slowdown was in progress
during the period in question. Furthermore, Quinones and Vincent Berrios Cal-
deron testified regarding the encouragement they received from Robinson. Accord-
ing to Quinones, in the afternoons when they left the plant, Robinson would advise
the employees that they should "take it easy." Similarly, Calderon testified that
Robinson encouraged the employees to "do it like I told you and then we will hurry
up this deal."
Although witnesses called by the General Counsel, including Robinson, denied
that there was any slowdown, or that they participated in or encouraged a slowdown,
and although some of the testimony adduced by the Respondents in support of their
position regarding the slowdown is fraught with manifest exaggeration, I conclude
that the record as a whole supports the Respondents' contention that during the
month following the Teamsters meeting of February 14, its employees engaged in a
concerted slowdown.
4° Robinson testified, "I was outside the plant practically every working day, all day,
every day after the February 14th meeting."
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Employer's defensive measures
Company President Tunkel testified that he had many discussions with his super-
visors about the slowdown. The Employer was afraid to discharge any of the em-
ployees because such action might be construed as a breach by the Employer of its
obligations under the injunction which terminated the 1956 strike and thus remove
the restraint upon the Teamsters against calling another strike.41 Since the Company
then was at the peak of its season a strike would have been especially damaging to
its business.
As a first measure, President Tunkel and other company supervisors spoke to the
employees about their performance. However, many of the employees were openly
defiant. Thus, Tunkel testified that on occasions when he asked employees who had
congregated in the restroom what they were doing, the response was, "We are tired,
we are resting." And when he suggested they return to work, the answer was, "As
soon as we are ready." On five or six occasions when he asked employees why they
were not working, he was told, "You don't like it, punch my time card." Employees
also threatened that they would strike if he discharged them. Sidney Katz, Leonard
Falitz, and Victor Arias, all of whom supervise production, also testified to similar
experiences. According to Tunkel, at least one-half of the Company's 200 employees
were not doing a full day's work and 30 to 40 of them were flagrant in their refusals
to work.
Finally, at a management conference, it was decided to discharge seven employees
who were the worst offenders in that they not only were not doing their work but
were preventing other employees from working. The Company advised Local 122
of its intentions. Representatives of that union, namely, Cavallo, O'Brien, and
Kelly, protested the contemplated action and suggested that they first be permitted
to talk to the employees. This suggestion was followed and on March 6, 1957,
representatives of Local 122 and the Employer spoke with a group of seven employees
which included Adolfo Soto, Francisco Vargas Ramos, Alexandro Rangel, Andres
Ramirez, Mariano Gonzalez, Nelson Vargez, and Isabelo Alejandro. The employees
were told that if they do not begin working normally they would be discharged.
The answer given by some was that if they do not get more money they will not work
and if the Company does not like it, it could fire them.
The situation did not improve and, upon consultation with its attorney, an arbitra-
tion proceeding was instituted by the Employer. A hearing was held before an
arbitrator designated by the New York State Board of Mediation at the offices of
that agency. On March 14, the arbitrator issued his opinion that the Employer
had the right to discharge the employees named above 42 These seven employees
were discharged about noontime on the same day. After the discharges a majority
of the employees resumed normal work, including Domingo Baerga,43 who had been
one of the leaders in the slowdown.44 However, some of the employees still per-
sisted in the slowdown, including four who told Tunkel that they would not work
with Baerga because he was a turncoat. In the evening of Friday, March 15, the
Company decided to discharge seven additional employees for continuing to slow
410n December 14, 1956, a justice of the Supreme Court of the,, State of New York
issued an order enjoining the Teamsters and other defendants from engaging in a strike
against the Employer to force the Employer to recognize them as the collective- bargaining
agent for the Employer's employees A condition of the injunction was that the Employer
reinstate the striking employees to their jobs The court's order further provided that
in the event of the Employer's failure to reinstate the strikers the injunction shall be
deemed vacated The fear expressed by Tonkel that the discharge of any former striker
might be construed as a breach by the Employer of a condition of the injunction is borne
out by the fact that after certain employees had been discharged, the Teamsters, on
August 5, 1957, began picketing the Company's plant and continued to do so until an
order adjudging the Teamsters in contempt was issued on January 13, 1958
42 The award of the arbitrator was subsequently vacated and I have already ruled that
it does not determine any issue in the instant case However , the arbitration proceeding
is relevant as one of the circumstances which has bearing upon the question of the
Employer's motives for discharging certain employees
43 Plant Superintendent Sidney Katz testified that the reason Baerga was not included
in the group first discharged was that Baerga was doing a skilled operation and the
Company at the time could not afford to lose his services.
44 Santos Quinones and Domingo Baerga testified that they lost faith in the Teamsters
when no strike was called following the discharges of seven employees on March 14.
According to them, Robinson had promised that there would be a strike if the Company
discharged anyone who participated in the slowdown.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 831
down. They were terminated on Monday morning, March 18. Included in this
latter group were: Ephraim Roque Vasquez, Robert Sanchez, Flor Valentin, Jesus
Rojas, Jose Sanchez, Wilfred Juarez, and Andrew Alba.
5. Conclusions as to the discharges
It is well established that a slowdown, although a form of concerted activity, is
unprotected by the Act. Elk Lumber Company, 91 NLRB 333. 1 have found,
contrary to the General Counsel, that between February 15 and March 15, 1957,
employees at the Company's Flushing plant, inspired by the Teamsters, by means of
a slowdown sought to exert pressure upon the Employer to recognize that union.
Among the participants in this slowdown I find were Adolfo Soto, Francisco Vargas
Ramos, Nelson Vargez, Isabelo Alejandro, and Ephraim Roque Vasquez, who the
General Counsel contends were discriminatorily discharged. That the Employer
may have known them to be active Teamsters adherents does not immunize them
against disciplinary action for their misconduct. The Employer had a right to dis-
charge them for participating in the slowdown. Phelps-Dodge Copper Products
Corporation, 101 NLRB 360, 367-368. The circumstance in this case that the
Employer discharged only 14 employees from among the many who participated
in the slowdown does not serve to rebut its assertion that such conduct alone was
the motivating consideration for their discharges any more than, in a converse situa-
tion, the fact that an employer fails to discharge all union adherents refutes the
evidence as to the discriminatory motivation for the discharges of some. "The
Respondent simply wanted to make an `example' of these . . . employees in order
to stop the slowdown, and apparently felt that it was unnecessary to discharge the
entire . crew to accomplish that purpose." California Cotton Cooperative
Association, Ltd., etc., 110 NLRB 1494, 1496.
The General Counsel sought to prove through the testimony of Francisco Vargas
Ramos and Isabelo Alejandro that the slowdown was used by the Employer as a
pretext to disguise its discriminatory motivation for discharging the five employees
in question. However, I do not credit their testimony. Ramos testified that President
Tunkel had threatened that he would be discharged for allegedly slowing down if
he did not sign a card for Local 122. This testimony has been discussed elsewhere
in this report and for the reasons already indicated I do not credit Ramos. Isabelo
Alejandro testified that when he was notified about his discharge on March 14, 1957,
he was told by Plant Superintendent Katz and also by Supervisor Victor Arias that
he was being laid off because of his refusal to sign a card for Local 122. However,
Alejandro was notified of his discharge at the same time as the other six employees
who were discharged on March 14. Nelson Vargez testified that he and the six
other employees, including Alejandro, who were terminated on March 14 were
sent to the office and notified as a group of their discharges. According to Vargez,
Katz told the group "to go with 810," but did not say why they were being laid off.
Katz denied having made this remark. Francisco Vargas Ramos also testified that
the seven employees were simultaneously discharged with no explanation being
given to them as to why. Thus, Alejandro's testimony is specifically refuted by
Vargez and Ramos. Furthermore, as Arias and particularly Katz were fully aware
of the arbitration proceeding to obtain a determination that the Company could
rightfully discharge Alejandro and the other six employees for their activities in
connection with the slowdown, it would be illogical for either of them to have given
Alejandro an inconsistent reason for his discharge 45
I find that the General Counsel has failed to prove by a preponderance of the
evidence that Adolfo Soto, Francisco Vargas Ramos, Nelson Vargez, Isabelo Ale-
jandro and Ephraim Roque Vasquez 45 were discriminatorily discharged in violation
45 Soto testified that sometime prior to his discharge Supervisor Arias warned him that
if the Teamsters "would go in this factory," the factory would be moved to Connecticut
and Soto together with the other employees would be laid off and would be without work.
This generalized threat does not prove that the Employer had singled out Soto as an
object of its discriminatory attention, or overcome the evidence adduced on behalf of the
Employer that Soto 's participation in the slowdown was the reason for his discharge.
Furthermore, Arias had nothing to do with the selection of the employees who were
terminated on March 14.
4U Vasquez testified that he was notified of his discharge by the Company's secretary-
treasurer , Jonas , who said to him at the time, "go over to Mr Robinson to find you
another job. He is outside waiting for you " In view of the evidence that the Employer
was aware that the slowdown had been instigated by the Teamsters through the leadership
of its organizer, Robinson, this remark, although undenied, is not inconsistent with the
Employer's position that Vasquez was discharged for his participation in the slowdown.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8(a)(3) of the Act, and I further find that they were discharged for
cause because of their participation in the slowdown . Accordingly, I shall recom-
mend that the complaint as to them be dismissed.
6. Other discharges
The remaining issue in this case is whether four employees who were laid off
between June 6 and July 5, 1957, were unlawfully discriminated against or whether
they were routinely terminated as part of a seasonal decline in employment at
the Flushing plant.
The Employer's operations are seasonal . At the end of November it begins
hiring employees and continues adding to its production force through February.
Its payroll remains relatively constant until its business peak is reached about
Decoration Day. Thereafter, its production force is reduced by more than 50
percent with the greatest number of employees being laid off in the month of June.
The Employer's working force varies from a high of about 220 to a low of about
90. In 1957, following its business peak for the year, the Employer made its usual
seasonal layoffs of employees about as follows: 3 or 4 in May; 61 on June 6; 4 or 5
on June 13; 42 on June 20; then a few additional employees were laid off in the last
week of June and in the first week of July. Approximately 112 employees were
affected by the 1957 layoffs.
The subsisting contract between the Employer and Local 122 did not provide for
seniority and in practice seniority was not considered except when the choice was
between employees of equal worth. The Employer correctly points out that the
General Counsel did not establish that there was a pattern to the 1957 layoffs
indicating that it was seeking to take advantage of the seasonal decline in its business
to rid itself of the Teamsters adherents among its employees. For example, the
evidence does not show that a disproportionately large number of employees who
continued to support the Teamsters was laid off. On the other hand, in June and
July 1957 the Employer was still strongly opposed to the Teamsters and, in the
circumstance, it would not have been unnatural for the Employer to bear an in-
stinctive hostility toward employees who still supported the Teamsters.
a. Norberto Santana Vega
Vega was first hired on December 11, 1956, at a time when the strike against the
Employer was still in progress. He was laid off on June 6, 1957, together with 60
other employees.
Vega supported the Teamsters in their organizational drive and several weeks
before the May 17 election began wearing that union's button in the plant. During
the campaign period preceding the election, Plant Superintendent Sidney Katz
asked Vega whether he favored the Teamsters and when Vega acknowledged that
he did Katz warned him that if the Teamsters won the election, the factory would
be moved and the employees would lose their jobs. Similarly, Supervisor Victor
Arias after inquiring why Vega was wearing a Teamsters button told him that all
employees who voted for the Teamsters would be laid off.4?
Respondent's position is that Vega was laid off as part of a normal seasonal reduc-
tion in force and that his union activities had no influence upon his selection. Thus,
Vega's supervisor, Leonard Falitz, explained that customarily in late May of each
year he and Plant Superintendent Sidney Katz, after determining how many em-
ployees should be laid off, go over the roster of employees in his department to
determine which they shall be. They selected Vega, among others, for layoff
because he was a relatively new employee. Both Falitz and Katz testified that no
consideration was given to whether or not Vega was actively in favor of the
Teamsters.
Presumably the General Counsel relies upon Vega's testimony with respect to
the threats made to him by Arias and Katz to establish that his selection for layoff
was discriminatorily inspired. However, the statements to which Vega testified were
47 On his direct examination, Vega, who testified through an interpreter, answered,
"Yes, sir," to the following question • "Did anybody else tell you that if you didn't sign
a card you would be thrown out of the factory?" He then testified that Victor Arias
made such a remark However , immediately preceding these questions Vega testified
merely that an employee named Betty had asked him to sign a card. In view of these
circumstances , I give no probative weight to Vega's affirmative response to the General
Counsel's leading question , quoted above. It is certainly not clear that Vega was refer-
ring to a different conversation than the one where Arias told him that all employees
who voted for the Teamsters would be laid off.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 833
made during the preelection period when the Employer was actively trying to in-
fluence its employees to vote against the Teamsters. The threats about which Vega
testified were of a general nature. Although I have found that these remarks, as
well as other conduct by the Company's representatives, constituted unlawful in-
fringement upon its employees statutory rights and unlawful support of Local 122,
I do not construe them as reflecting an intention on the Employer's part to single
out Vega from among the many other Teamsters supporters for later reprisal.
Vega was laid off simultaneously with 60 other employees during a period when
the Employer was in the process of reducing its force by 50 percent or more. Vega
was hired by the Company for the first time at the beginning of its 1957 busy season
and no evidence was adduced indicating that he was as good or better than the
average employee or that any other reason existed why he should not have been
laid off during the Employer's 1957 reduction in force. Despite the evidence that
the Employer knew that Vega was a supporter of the Teamsters, I find that the
General Counsel failed to prove by a preponderance of the evidence that this fact
motivated the Employer to select him for layoff in June 1957.
b. Esteban Rosario
Rosario was hired by the Employer in January 1957. He was laid off on June 26,
1957. Leonard Falitz testified that "he fell into the same category as all new em-
ployees who are not exceptional in any way and he was laid off with the other
people." The General Counsel did not adduce any evidence tending to establish
that Rosario was a better than average employee or would not have been affected
by the layoff but for his union sympathies and activities. However, Rosario testified
that when he was laid off Falitz explained "because he told me to vote for [Local
122] and I didn't do it." Presumably it is upon the basis of this testimony that the
General Counsel rests his case that Rosario was discriminatorily selected for discharge.
On his cross-examination, Rosario, who doesn't speak English, testified that Leonard
Falitz spoke to him in Spanish. Falitz denied that he speaks Spanish 48 and likewise
generally denied Rosario's testimony relating to the alleged conversations between
them. I credit Falitz's denials. Rosario was an insolent and confused witness and
impressed me as being unreliable. Upon consideration of all the evidence relating
to Rosario's discharge, I find the General Counsel failed to prove by a preponderance
of the evidence that he was selected for layoff in 1957 because he wore a Teamsters
button in the plant or because the Employer knew or suspected he favored that union.
c. Alessandro Rivero
Rivero was first hired by the Employer on March 3, 1955. He was laid off on
June 6, 1955, rehired December 6, 1955, and again laid off on August 1, 1956.
His last period of employment began on September 18, 1956, and ended on June 21,
1957. The Employer contends that Rivero was a seasonal employee, that its motives
for laying him off in 1957 were no different than for the 2 preceding years and
that his union activities did not influence his selection for layoff in 1957.
Rivero acted as an observer for the Teamsters in the May 17, 1957, election. He
testified that in March 1957, his foreman, Herman Padro, told him that if he
continued wearing a Teamsters button he would be laid off because the Company
did not want enemies in the plant, that Padro repeated this threat many times, and
that shortly before the election, Padro urged him to discard the Local 810 button
and wear a Local 122 button. He also testified that prior to the election Supervisor
Victor Arias urged him to vote for Local 122. Finally, Rivero testified that the day
after the election Padro asked if he had voted for Local 810 and he admitted that
he had done so, and when he was laid off Foreman Padro said to him that he had
been warned that he would be laid off if he voted for Local 810. Arias denied
having made the statements attributed to him by Rivero, but Padro did not testify
at the hearing.
The Employer contends that Rivero's testimony is impeached by an affidavit he
gave the General Counsel on August 5, 1957. The last two paragraphs of the
affidavit state:
After the election Herman Padro, a working foreman, told me that if I wore
an 810 button I would be laid off. 11 was wearing an 810 button. He told me
this 2 weeks before I was laid off.
Nobody else in the plant talked to me.
The affidavit is inconsistent with Rivero's trestimony concerning conversations
about his union sentiments which he had with Arias and Padro before the election.
' No witness other than Rosario testified that Falitz could speak Spanish.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The witness explained this inconsistency by testifying that the last paragraph in the
affidavit refers to the period after the election. However, the affidavit is still in-
consistent with Rivero's testimony that the day after the election Padro asked him
whether he had voted for Local 810 and Rivero acknowledged that he had, and 1
month later when he was discharged Padro told him it was because he had voted
for Local 810. These two conversations with Padro occurred after the election,
but are not mentioned in the affidavit. The last paragraph of the affidavit would
appear to deny any conversation between Rivero and Padro at the time of Rivero's
discharge. It is strange that in stating the circumstances of his discharge in an
affidavit taken by a Board investigator in the course of an investigation of the charge
filed by himself, Rivero should mention a threat of discharge made 2 weeks before
the event but omit to include in the affidavit a contemporaneous admission as to
the discriminatory nature of his discharge. These circumstances impair the re-
liability of Rivero's testimony.
Although the evidence raises a suspicion that Rivero may have been selected for
layoff because of his activities on behalf of the Teamsters, upon the entire record,
including my reservations as to the reliability of Rivero's testimony and the un-
disputed fact that Rivero was laid off at the end of the Employer's busy season during
the proceeding 2 years, I find that the General Counsel has not proved by a pre-
ponderance of the evidence that Rivero was unlawfully discruninated against when
he was laid off in 1957.
d. Julio Sanabria
Sanabria was first hired on April 16, 1956, as a machine operator at $1 per hour.
He was laid off on May 23, 1956, but was rehired on December 12, 1956, at $1.10
per hour. On March 23, 1957, he was promoted to the job of floor boy and given
an additional increase of 5 cents per hour.49
Sanabria actively supported the Teamsters. He urged the employees in his section
not to sign any cards for Local 122 and wore a Teamsters button in the plant. About
3 weeks before the May 17 election his foreman, Isadore Arkow, told Sanabria that
because he had a better position than the other employees he should stop wearing
the Teamsters button and should not let anybody know he favored Local 810.
Sanabria removed the Local 810 button from his shirt. Arkow further warned
Sanabria that if he continued his activities on behalf of the Teamsters, he would be
fired. Prior to the election Jonas also spoke to him about his union activities. Jonas
asked Sanabria to quit making propaganda against Local 122 and promised to
advance him to foreman, give him a raise of $15 per week, and 2 weeks' vacation.
Sanabria testifed he, nevertheless, continued urging the people in his section not
to sign cards for Local 122.50 Sanabria was laid off on July 5, 1957. He testified
that Plant Superintendent Sidney Katz informed him it was because he was not
doing a good job, although at no time prior thereto had any complaint been made
to him about his work.
President Tunkel testified that Sanabria as floor boy acted as an assistant to Fore-
man Isadore Arkow. According to Tunkel, at the close of the Company's 1957
busy period the number of employees in Sanabria's department had been reduced
from between 40 and 60 to about 15, and because there was no longer any need
for an assistant to the foreman in the section, Sanabria was laid off. Tunkel denied
that Sanabria's union activities contributed to the decision to lay him off Plant
Superintendent Katz also testified that Sanabria was laid off because there was no
longer need for his services as a floor boy.
The Employer's position in this proceeding is that it retains its better employees
at the end of each season and lays off its poorer employees. The fact that, in March
1957, the Company advanced Sanabria to the job of floor boy, or assistant to the
foreman, and at the same time increased his wages indicates that the Employer
considered him to be much above average. This is further corroborated by Tunkel's
49 As floor boy Sanabria acted as an assistant to his foreman. Sanabria testified that
he was rehired as an assistant foreman in December 1956. Sanabria also testified that
he received his last increase in February 1957, after he signed a card for Local 122.
However, he later changed his testimony and stated that he signed the Local 122 card the
last day of March or in April. I find no connection between Sanabria having signed a
card for Local 122 and his promotion to the job of floor boy. Also, I credit the Employer
that Sanabria was not given the job of floor boy until about March 23, 1957.
60 Respondents pointed to certain inconsistencies between Sanabria's testimony and a
pretrial statement by him relating to these events. However, as Sanabria was not con-
tradicted by Jonas, who was available to testify, despite these inconsistencies, I credit
the testimony of Sanabria as summarized above
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 835
testimony that at the time Sanabria was made floor boy Jonas told Sanabria that he
was "a good boy," and by the fact that after the hearing in this case had opened
Jonas said to Sanabria that he was "one of my best workers." 51 Thus, it was incon-
sistent with the Company's policy of retaining its better employees to have laid off
Sanabria who was "one of the best workers." Even if it be true that there was
no need for an 'assistant to Foreman Arkow during the slow period, the Employer
gave no explanation as to why Sanabria was not retained as one of the 15 employees
in the same department who were continued in lobs after the seasonal layoff.
While I find the Employer's explanation for laying off Sanabria on July 5, un-
convincing, the uncontradicted evidence is that Sanabria was warned that he would
be discharged if he continued his activities in opposition to Local 122, and that not
only his immediate foreman urged him to desist but Secretary-Treasurer Jonas did
likewise. In the circumstances, I conclude that Sanabria was selected for layoff on
July 5, 1957, not for the reason asserted by the Employer that there was no longer
any need for his services, but in reprisal for his activities in opposition to Local 122,
which organization was favored by the Employer. As Sanabria had a better position
than the other rank-and-file employees in his department, the Employer expected,
if not his cooperation, at the very least no opposition on his part to their efforts
directed toward solidifying Local 122's position as bargaining agent for the employees
in its plant. I find that Sanabria's employment was discriminatorily terminated on
July 5, 1957, to discourage his and other employees' membership in the Teamsters
and to encourage their membership in Local 122, in violation of Section 8(a)(1)
and (3) of the Act.52
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Employer set forth in section III, above, occurring in con-
nection with its operations 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 obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Employer has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take affirmative
action designed to effectuate the policies of the Act.
It has been found that the Employer unlawfully discriminated in regard to the
tenure of employment of Julio Sanabria. It will be recommended that the Employer
offer him immediate and full reinstatement to his former or to a substantially
equivalent position without prejudice to his seniority or other rights and privileges
and make him whole for any loss of earnings he may have suffered by reason of
the Employer's discrimination against him by payment to him of a sum of money
equal to that which he normally would have earned from the date of his layoff or
discharge to the date of the Employer's offer of reinstatement, less net earnings
during said period. Said loss of earnings shall be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB
289. It will also be recommended that the Employer preserve and make available
to the Board, upon request, payroll and other records to facilitate the determination
of the amount due to Julio Sanabria under this recommended remedy.
It also has been found that since March 1957 the Employer, in violation of
Section 8(a)(1) and (2) of the Act, has contributed unlawful assistance and support
to Local 122 The Employer continues to recognize and deal with Local 122 or
that organization's successors in interest and to maintain and enforce its agreement
with Local 122, as extended. Local 122 went out of existence on or about January
27, 1958, and on or about Fbruary 1, 1958, Local 422 assumed the contract of
Local 122. The Employer thereafter recognized Local 422 as the representative of
its employees covered by the agreement of September 6, 1955, as extended on July
22, 1957, and has dealt with Local 422 as the successor or substitute of Local 122.
Between June 6 and October 28, 1958, Local 422 withdrew from its affiliation with
the AFL-CIO and since then has been known as Local 422, Industrial Workers
63 Sanabria testified to a conversation with Jonas which took place in the hearing of
Tunkel Jonas did not testify at the hearing. Although Tunkel's version of what was
said differs in various particulars from Sanabria's testimony, Tunkel did not contradict
Sanabria that Jonas referred to him as "one of .my best workers."
u l find no merit in the Employer's contention that Sanabria is not entitled to rein-
statement because he participated in picketing the Employer 's plant on and after
August 5, 1957.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union , Independent . In accordance with the Board 's established policies, it will be
recommended that the Employer withdraw and withhold recognition from Local 122
and its successors in interest as the collective-bargaining representative of any of
its employees and cease giving effect to its contract entered into on September 6,
1955, with Local 122 and all modifications , supplements , renewals, and extensions
thereof, including the extension agreement of July 22, 1957. Nothing in this
recommendation , however , shall be construed to require the Employer to vary or
abandon those wage, hour , seniority, or other substantive features of the relation-
ship between the Employer and its employees which may have been established in
performance of the agreement of September 6, 1955, between the Employer and
Local 122 or any extensions , modifications , or renewals thereof.
The Employer's violations of the Act, found herein, are related to other unfair
labor practices proscribed by the Act, and the danger of their commission in the
future is to be anticipated from the Employer's conduct in the past . The pre-
ventive purposes of the Act will be thwarted unless the remedial order is coextensive
with the threat. In order therefore to make effective the interdependent guarantees
of Section 7 of the Act and to prevent the recurrence of unfair labor practices, it
will be recommended that the Employer cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the tenure of employment of Julio Sanabria
to encourage membership in Local 122 and to discourage membership and activities
on behalf of the Teamsters , the Employer has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
2. By contributing support and assistance to Local 122, as heretofore described,
the Employer has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (2) 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 Employer has engaged in, and
is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Local 122, International Jewelry Workers Union , AFL-CIO, has not engaged
in any unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act.
[Recommendations omitted from publication.]
Lenscraft Optical Corporation and Rayex Corporation and
Alejandro Rivero and Local 422, Industrial Workers Union,
Independent ( formerly known as Local 422, International Jew-
elry Workers' Union , AFL-CIO), Party to the Contract
Lenscraft Optical Corporation , Rayex Corporation and Miro-Ray
Corporation and Local 810, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica (Ind .) and Local 422, Industrial Workers Union , Independ-
ent (formerly known as Local 422, International Jewelry
Workers' Union , AFL-CIO), Party to the Contract . Cases Nos.
2-CA-5885 and 2-CA-6385. August !?4, 1960
DECISION AND ORDER
On August 13, 1959, Trial Examiner Herbert Silberman issued his
Intermediate Report in these proceedings, finding that the Re-
128 NLRB No. 101.