Lenscraft Optical Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1960

128 N.L.R.B. 836 (N.L.R.B. 1960)

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 24, 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.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 837
spondents, Lenscraft Optical Corporation, Rayex Corporation, and
Miro-Ray Corporation, herein individually called Lenscraft, Rayex,
and Miro-Ray, had engaged in and were engaging in violations of
Section 8(a) (1) and (2) of the Act and recommending 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 also found that Respondents had not engaged in
certain other unfair labor practices alleged in the complaint and recom-
mended that the complaint be dismissed with respect to them. There-
after, the Respondents filed exceptions and a supporting brief and a
motion to reopen the record; i the General Counsel filed exceptions
and a memorandum in opposition to the motion to reopen; and
Charging Party Alejandro 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 brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifications
indicated.
1. The Trial Examiner found, and we agree, that the Respondents
violated Section 8(a) (1) and (2) of the Act by extending recog-
nition to Local 422, Industrial Workers Union, Independent, shortly
after January 27, 1958, and by thereafter maintaining and enforcing
in favor of Local 422 the 1955 union-shop agreements, as extended,
which were originally entered into by Lenscraft and Miro-Ray with
Local 122, International Jewelry Workers Union, AFL-CIO, Herein
called Local 122.
The Trial Examiner found that Section 10(b) of the Act bars a
finding in this proceeding that Respondents violated the Act by
maintaining and enforcing their bargaining agreements, as extended,
with Local 122 between October 15, 1957, and January 27, 1958, for
the reason that such a finding necessarily depends upon a determi-
nation that the extension agreements were unlawful because executed
on July 22, 1957, during the pendency of a question concerning repre-
i Respondents Lenscraft and Rayex have moved to reopen the record to prove that,
on September 29, 1959, Local 810, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America ( Ind.), herein referred to as Local 810, abandoned
its representative interest in Respondents ' employees . However, even assuming that the
evidence which Respondents propose to offer at a reopened hearing would support their
claim that Local 810 abandoned its interest in Respondents ' employees , that event , occur-
ring in September 1959, could have no effect upon the validity of the unfair labor
practice findings herein. The motion to reopen is accordingly denied.
577684-61-v of 128-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentation, an event which occurred more than 6 months before the
filing of the charges and which is not alleged as a violation of the
Act in the complaint in these cases nor in the companion cases in
which a Decision and Order is issuing today .2 In view of the Su-
preme Court's decision in Local Lodge No. 1424, etc., et al. (Bryan
Manufacturing Company) v. N.L.R.B., 362 U.S. 411, we agree with
the Trial ''Examiner's conclusion here.' This does not, however,
affect our findings and order in the companion cases with respect
to Respondents' assistances to Local 122.
2. As appears from the Intermediate Report, the basis for our
finding that Respondents violated Section 8(a) (1) and (2) of the
Act is that Respondents accorded recognition to Local 422 at a
time when Local 422 did not represent a majority of the employees
involved and also when a question concerning the representation
of these employees existed, and thereafter maintained and en-
forced in Local 422's favor contracts containing union-security clauses
which were implemented by checkoff provisions. By virtue of these
plainly illegal contracts forced upon them, employees have been un-
lawfully coerced into becoming members of, and paying initiation fees,
dues, and other moneys to, Local 422 as the price of employment. In
these circumstances, we believe that the remedy of reimbursement of
the moneys deducted from their earnings on behalf of Local 422 or
paid by Respondents' employees to Local 422 is appropriate and neces-
sary to expunge the illegal effects of Respondents' unfair labor prac-
tices. See Virginia Electric and Power Company v. N.L.R.B., 319
U.S. 533; N.L.R.B. v. Revere Metal Art Co., Inc., et al., 280 F. 2d
96 (C.A. 2). As recommended by the Trial Examiner, therefore, we
shall order Respondents to refund to their employees all moneys they
were illegally required to pay as a price for their employment.
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, Rayex Corporation, and Miro-Ray Corporation, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Recognizing or contracting with Local 422, Industrial Workers
Union, Independent, or any successor thereto, as the representative
of any of their employees for the purpose of dealing with the said
2 Lenscraft Optical Corporation, et al, 128 NLRB 807.
3 Our reliance upon the Supreme Court 's decision , which issued subsequent to the Inter-
mediate Report herein , makes it unnecessary for us to pass upon the validity of the
Trial Examiner 's discussion regarding the applicability to this case of the Board 's deci-
sions in Bryan Manufacturing Company , 119 NLRB 502 , and Shea Chemical Corporation,
121 NLRB 1027.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 839
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 duly certified by
the National Labor Relations Board as the exclusive representative
of such employees.
(b) Giving effect to, performing, or in any way enforcing in favor
of Local 422 its agreements entered into with Local 122 on September 6,
1955, and extended on July 27, 1957, or any modifications, extensions,
supplements, or renewals thereof, or to any other contract, agreement,
or understanding entered into with Local 422 or any successor to the
said organization relating to grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment, un-
less and until said labor organization shall have been certified by the
National Labor Relations Board as the exclusive representative of
Respondents' employees.
(c) Assisting or contributing support to Local 422 or any other
labor organization.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Local 422, Indus-
trial Workers Union, Independent, or any successor to said organiza-
tion, as the collective-bargaining representative of any of their
employees unless and until such labor organization shall have been
duly certified by the National Labor Relations Board as the exclusive
representative of such employees.
(b) Reimburse their present and former employees for all initia-
tion fees, dues, and other moneys their employees have been required
to pay to Local 422 since January 27, 1958, by reason of Respondents'
maintenance and enforcement in favor of Local 422 of their agree-
ments of September 6, 1955, as extended.
(c) Post at their plant in Flushing, Queens, New York, copies of
the notice attached hereto marked "Appendix." 4 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by a representative of the Respondents, be
posted by them immediately upon receipt thereof, and be maintained
by them for 60 consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps they have taken
to comply herewith.
4 In 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."
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS ALSO ORDERED that the complaints herein be, and they hereby
are, dismissed insofar as they allege that the Respondents have en-
gaged in unfair labor practices by reason of maintaining and enforc-
ing collective-bargaining agreements with Local 122, International
Jewelry Workers Union, AFL-CIO, prior to January 27, 1958.
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, as amended, we hereby notify our employees that :
WE WILL NOT recognize Local 422, Industrial Workers Union,
Independent, or any successor thereto, as the collective-bargaining
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 National Labor Relations Board as the
exclusive representative of the said employees.
WE WILL NOT perform, maintain, or enforce in favor of Local
422, Industrial Workers Union, Independent, our contracts en-
tered into on September 6, 1955, with Local 122, International
Jewelry Workers' Union, AFL-CIO, or any modifications, exten-
sions, supplements, or renewals thereof, including the exten-
sion agreement entered into on July 22, 1957, unless and until
said Local 422, or any successor thereto, shall have been certified
by the National Labor Relations Board as the exclusive repre-
sentative of the said employees.
WE WILL NOT assist or contribute support to said Local 422, or
any other labor organization.
WE WILL reimburse our present and former employees for all
initiation fees, dues, and other moneys our employees have paid
to Local 422, Industrial Workers Union, Independent, since
January 27, 1958, either directly or through deductions from their
wages, by reason of our having maintained and enforced in favor
of said Local 422 our collective-bargaining contracts of September
6,1955, as extended, which originally were entered into with Local
122, International Jewelry Workers' Union, AFL-CIO.
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 conform-
ing to the applicable provisions of Section 8(a) (3) of the National
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 841
Labor Relations Act, as modified by the Labor -Management Reporting
and Disclosure Act of 1959.
LENSCRAFr OPTICAL CORPORATION, RAYEX
CORPORATION , AND MIRO-RAY 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Alejandro Rivero, an individual, and served upon Re-
spondents Lenscraft Optical Corporation and Rayex Corporation, on April 15,
1958, the General Counsel of the National Labor Relations Board, by the Regional
Director for the Second Region (New York, New York), issued a complaint in
Case No. 2-CA-5885 against the said Respondents alleging that they had engaged
in, and were engaging in, unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and (2) and 2(6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. The Respondents duly filed
answers to the complaint denying that they had committed the alleged unfair labor
practices and setting forth certain affirmative defenses to the complaint. Local 422
also filed an answer generally denying the material allegations of the complaint.
Pursuant to notice, the hearing in Case No. 2-CA-5885 was begun on January 26,
1959, in New York, New York, before Herbert Silberman, the duly designated
Trial Examiner. All parties were represented by counsel. The hearing in the case
was recessed on January 30 and reconvened on March 5, 1959.
In the interim, upon a charge filed by Local 810 on February 3 and served on
February 10, 1959, the said Regional Director on February 20, 1959, issued a com-
plaint in Case No. 2-CA-6385 against Lenscraft Optical Corporation, Rayex Corpo-
ration, and Miro-Ray Corporation alleging violations of Section 8(a)(1) and (2)
of the Act. Except for the inclusion of an additional Respondent, the allegations
of the complaint in Case No. 2-CA-6385 are substantially the same as in Case No.
2-CA-5885. The Respondents and Local 422 duly entered answers denying the sub-
stantive allegations of the complaint . The answer of the Respondents also contains
affirmative defenses to the complaint. Pursuant to notice, the hearing in Case No.
2-CA-6385 was opened on March 5, 1959, in New York, New York, before me. The
General Counsel, the Respondents and Local 422 appeared by counsel. I granted the
General Counsel's motions to consolidate the hearing in Case No. 2-CA-6385 with
the hearing in Case No. 2-CA-5885, and to make the proceedings theretofore had in
Case No. 2-CA-5885 part of the record in the consolidated cases. The hearing in
the consolidated cases was held from March 5 to March 13, 1959. Decision was
reserved on the General Counsel 's motion, made at the close of the hearing, to dismiss
the various affirmative defenses set forth in Respondents' answers. The motion is
disposed of in accordance with the findings, conclusions, and recommendations made
below. The General Counsel and Respondents duly filed briefs with me which have
been carefully considered.
Following the close of the hearing, Respondents filed a motion with me to open
the record in the consolidated cases for the purpose of receiving in evidence a tele-
gram, dated August 8, 1957, sent to Chas. T. Douds, Regional Director, National
Labor Relations Board , by Garey & Garey. The General Counsel filed an answer
to Respondents' motion in which he consented to the admission in evidence of the
said telegram provided that the letter of reply from Mr. Douds is likewise admitted
in evidence . Respondents have not replied to the General Counsel 's answer to their
motion. None of the other parties filed any responses to the Respondents ' motion
or the General Counsel's answer thereto. Upon consideration of the matter, I
hereby grant Respondents ' said motion to reopen the record in this proceeding
for the purpose of receiving in evidence the August 8, 1957, telegram from Garey &
Garey and I also grant the General Counsel's request to admit into evidence the
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reply of Mr. Douds to the said telegram. A copy of the said telegram from Garey &
Garey is attached hereto marked "Appendix A" and the reply from Mr. Douds is
attached hereto marked "Appendix B" and I hereby direct that these appendixes be
made part of the record in this proceeding.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses, I hereby make the following:
FINDINGS OF FACT
1. BUSINESSES OF THE RESPONDENTS
Rayex Corporation, Lenscraft Optical Corporation, and Miro-Ray Corporation
are New York corporations with their principal offices situated at 133-30 37th Ave-
nue, Flushing, Queens, New York. Rayex is engaged in the manufacture and sale
of sunglasses.' Its manufacturing plants are located in Plainville and New Britain,
Connecticut,2 but its office clerical and sales forces are housed in the Flushing
premises. In its Connecticut plants, Rayex produces completely assembled sun-
glasses and also component parts, particularly frames, for sunglasses. Part of the
Company's output of finished products is shipped directly to its customers from its
Connecticut plants and the balance is sent to its Flushing location. As Rayex has
no production employees in the Flushing plant, its products are shipped to its
customers from that location by the employees of Lenscraft. The unassembled
components manufactured by Rayex in its Connecticut plants are also shipped to
Flushing where they are turned over to Lenscraft for assembly, including the insertion
of lenses. During the past year, Rayex manufactured and sold products valued in
excess of $1,000,000, of which products valued in excess of $200,000 were shipped
from its plants in interstate commerce directly to States other than the States of
New York and Connecticut.
Lenscraft's only place of business is located in the said Flushing plant where it
cuts, grinds , and polishes lenses and assembles sunglasses . In excess of 90 percent
of the frames used by Lenscraft in its production operations is obtained from Rayex.
Although Lenscraft sells sunglasses for its own account, a substantial part of its
business is the assembly of sunglasses for Rayex . During the past year , the value of
the services performed by Lenscraft for and on behalf of Rayex was in excess
of $200,000. Lenscraft maintains no bookkeeping or office clerical staff and these
services are performed for Lenscraft by Rayex pursuant to an arrangement pro-
viding for reimbursement.
Miro-Ray is engaged in the business of mirror -coating lenses and related activities
at the aforesaid Flushing premises. This is a service operation which the com-
pany performs for Lenscraft, Rayex, and others. During the past year the value of
the services performed by Miro-Ray for and on behalf of Rayex was in excess of
$50,000. Miro-Ray has no clerical staff and Rayex does the clerical work for
Miro-Ray for which it receives reimbursement.
The three corporations have identical stockholders, directors, and officers except
only that one Mike Friedman is- a vice president of Rayex but does not -hold office
in either of the other two companies. Raymond Tunkel, president of the companies,
and William Jonas, their secretary-treasurer, are in active, overall charge of the
three companies. They exercise ultimate responsibility for and direction of the
production and sales activities and labor relations policies of the three companies.
Thus, Tunkel and Jonas negotiated all the collective -bargaining agreements entered
into with labor organizations by Lenscraft and Miro-Ray. (The employees of Rayex
are not represented by any labor organization, so there has been no occasion for the
negotiation of any collective-bargaining agreement for that company.)
It is evident from the foregoing that the operations of all three Respondents are
closely intertwined. Thus, Lenscraft does assembly and shipping for Rayex and
obtains much of the components used in its production from Rayex. while Rayex
performs bookkeeping and clerical services for Lenscraft .3 Similarly, Miro-Ray,
1 Since December 1, 1957, Rayex also has been distributing novelties which it obtains
from outside sources.
2 The New Britain plant has been idle during the 7 months preceding the hearing.
8 Indicative of the close interrelationship of the companies is the fact that Raymond
Tunkel , their president , testified that with respect to services performed by Lenscraft for
ethers, he was unable to recall whether the invoices to such customers were made out
In the name of Lenscraft or Rayex Similarly, he was uncertain as to whether title
to various machines and equipment in the Flushing plant was in the name of Lenscraft
or Rayex.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 843
which performs a service operation, is located in the same premises with Lenscraft
and Rayex and devotes most of its production to servicing the needs of Lenscraft
and Rayex,4 and depends upon Rayex for its clerical work. In addition to the
integration of the production and clerical work of the three Respondents, they are
subject to common management and control. In the circumstances, I find that the
businesses of the three Respondents are so closely related as to constitute them a
single employer for the purposes of the Act. I further find that the Respondents
are engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 122, International Jewelry Workers Union, AFL-CIO, herein called Local
122, at all times material to these proceedings until January 27, 1958, was a labor
organization within the meaning of Section 2(5) of the Act. Local 422, Industrial
Workers' Union, Independent, herein referred to as Local 422,5 and Local 810,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Ind.), herein referred to as Local 810, are, and have been at all
tunes material hereto, labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
The activities upon which the alleged unfair labor practices are based involve
transactions between Respondents Lenscraft and Miro-Ray and Locals 122 and 422
with respect to the Companies' production and maintenance employees at their
Flushing plant. Rayex did not participate in any of the alleged unlawful conduct
but is joined as a Respondent because it constitutes a single employer together with
Lenscraft and Miro-Ray.
For a period of several years prior to January 27, 1958, Lenscraft and Miro-Ray
had recognized Local 122 as the collective-bargaining representative of their em-
ployees. The Companies had entered into separate contracts with that union
covering their respective employees.6 The last contract between Lenscraft and
Local 122 is dated September 6, 1955. The Miro-Ray contract, however, was not
produced. Raymond Tunkel, Respondents' president, testified that despite diligent
search, the contract could not be found. However, he testified that the terms of the
Miro-Ray contract were "almost identical" with those in the Lenscraft agreement.
The 1955 agreement with Lenscraft names the contracting union as Local 122,
"or its successors." Pertinent to the issues in this proceeding are the following
provisions of that agreement:
Article I "The Employer recognizes the Union as the sole and exclusive collec-
tive bargaining agency for its employees in the following classifications: .
However, the agreement contains no list of employee classifications and therefore is
ambiguous as to which employees are covered. In explanation, President Tunkel
testified that the agreement covered all employees, excluding office clerical em-
ployees, supervisors, and salesmen. The Company employs no guards or profes-
sional employees.
Article III is a union-security clause, conforming to the conditions of the proviso
to Section 8 (a) (3) of the Act, which makes membership in the Union a condition
of employment.
Article XVIII is a checkoff clause.
Article XX. "Neither the Employer, any employee or group of employees shall
have the Tight to waive or modify the wage schedule or any provision of this con-
tract without the written authorization of the Union."
Article XXVI. "This agreement shall be binding upon the panties hereto, their
respective successors or assigns."
Article XXVII (wage schedule) provides for a starting minimum wage of 75
cents per hour and an automatic increase of 5 cents per hour after 30 days of
employment with an additional 5-cent increase after 5 months of employment.
4 Tunkel testified that Miro-Ray performs only "some work" for others.
6 Prior to October 1, 1958, Local 422 was affiliated with International Jewelry Workers'
Union, AFL-CIO, and was known as Local 422, International Jewelry Workers' Union,
AFL-CIO
6 President Tunkel testified that the first collective-bargaining agreement between Miro-
Ray and Local 122 was made "long after" the first agreement between Lenscraft and
Local 122.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The agreement also provides for an across-the-board increase of 5 cents as of
July 30, 1956?
Article XXVIII provides that the contract shall be for a term expiring on July
30, 1957, with automatic renewal for a period of 1 year, absent 60 days' written
notice of a desire to modify its terms. This paragraph also provides that "when
a new contract has been consummated, agreed and signed by the Employer and
Local #122 then such contract shall be retroactive to the date of expiration of the
within contract."
President Tunkel testified that in March 1956 all employees earning less than
$1 per hour were increased to that amount in compliance with the wage-hour
law. There was no written amendment of the contract to reflect this adjustment
in the employees' wage rates and it does not appear that there were any negotia-
tions between the contracting parties regarding the subject, despite article XX of
their agreement.
On March 4, 1957, Local 810 filed a representation petition in Case No. 2-RC-
8720 with respect to the employees covered by the Company's contracts with Local
122. An agreement for consent election was entered into by Local 810, Local 122,
and the Employer, which is named therein as Lenscraft Optical Corporation, Rayex
Corporation, and Miro-Ray Corporation, providing for an election on May 17,
1957, among all production, maintenance, shipping, and receiving employees of
the Employer's Flushing, New York, plant, excluding office clerical employees, sales-
men, guards, watchmen, professional employees, and supervisors as defined in the
Act. Of the 241 ballots cast in the election, 138 was for Local 122 and 78 was
for Local 810. Although Local 122 received a majority of the votes, it was not
certified because Local 810 filed timely objection to conduct of the election and
the parties on July 24, 1957, entered into a stipulation and agreement that the
election be set aside and a new election be conducted at a time and place designated
by the Regional Director for the Second Region. However, subsequent thereto,
charges of unfair labor practices were filed against Lenscraft and Rayex in Cases
Nos. 2-CA-5504 and 2-CA-5505, which resulted in the issuance of a complaint
and a hearing before me. Much of the matter set forth by Local 810 in its objections
to conduct of election was the subject of the proceedings in the aforesaid unfair labor
practices case. As that case has not been finally resolved, the Regional Director
has not as yet directed another election in the representation proceeding.8 Accord-
ingly, the question concerning representation raised by the petition in Case No.
2-RC-8720 is still pending.
On July 22, 1957, Lenscraft and Local 122 executed the following agreement:
EXTENSION AGREEMENT
between
LENSCRAFT OPTICAL CORPORATION
and
LOCAL 122, I.J.W.U. AFL-CIO
WHEREAS, the existing collective bargaining agreement between the parties
hereto will expire on July 30, 1957; and
WHEREAS, under the terms of the agreement, unless a notice of a desire to
change the terms of said agreement is given within 60 days to the expiration of
the agreement, the said agreement renews itself; and
WHEREAS, by reason of the actions of Locals 810, I.B.T. and 1614 I.B.E.W.,
it is difficult to negotiate a new contract under terms satisfactory to the parties
hereto;
Now, therefore, be it agreed, That:
1. The said collective bargaining agreement be and the same hereby is ex-
tended until such time as the National Labor Relations Board finally deter-
mines the collective bargaining agent for the employees employed by the
employer herein; and it is further agreed
7 Prior to the execution of this agreement the Fair Labor Standards Act of 1938 had
been amended ( See. 3 of Public Law 381 ; c. 687 , 69 Stat . 77, approved August 12, 1955)
to raise the minimum wage to not less than $1 per hour , effective on March 1, 1956.
Thus, the wage schedule of the agreement fell below the lawful minimum within 9
months after its execution , and was still below the legal minimum after the midterm
increase.
8 See N.L.R .B. v. Trimftt of California, Inc, 211 F. 2d 206 , 209 (C.A. 9), footnote 2.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 845
2. In the event the undersigned Union is determined to be the collective
bargaining agent, the parties will immediately negotiate for a new agreement,
and will extend the present agreement for thirty days after the date of cer-
tification or such additional time as is necessary to allow for the negotiation
of the new contract.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this 22 day of July, 1957.
For the Union: For the Employer:
(s) ALBERT GOLDMAN (S) WILLIAM JONAS
President Sec. Treas.
According to President Tunkel, the above agreement was posted on the plant bulletin
board the day it was signed. A committee of employees protested to management
that under the terms of the extension agreement they would have to work at the
same salaries until the Board certifies the bargaining representative which might
involve a considerable period of time. Accordingly, Jonas and Goldman, the per-
sons who executed the above-quoted agreement for their respective principals, the
same day, entered into a superseding agreement which was identical with the earlier
extension agreement except for the addition of the following:
3. The terms of the new contract negotiated between the parties shall be
effective as of the 30th day of July, 1957.
President Tunkel further testified that the above extension agreement also covered
Miro-Ray's employees. He explained, "since the National Labor Relations Board
deemed it fit to call them one body (the employees of Lenscraft and Miro-Ray),
we decided that one extension agreement would cover both. Since both contracts
were similar, it covered it."
Despite the aforesaid extension of the collective-bargaining agreement, and article
XX of the underlying contract, in August 1957 Lenscraft and Miro-Ray gave their
employees a general across-the-board increase of $3 per week and additional merit
increases to some employees, without entering into prior discussions about the matter
with Local 122.
About January 27, 1958, Local 122 went out of existence and its membership
was absorbed by Local 422 and its contracts were assumed by Local 422. The
circumstances will be described more fully below. Thereafter, Lenscraft and Miro-
Ray recognized Local 422 as the substitute or successor of Local 122 and as the con-
tracting union in the place and stead of Local 122. During all times material to
this proceeding, Lenscraft and Miro-Ray have been maintaining and enforcing the
union-security and checkoff provisions of their collective-bargaining agreements,
first in favor of Local 122 and subsequent to January 27, 1958, in favor of Local 422.
B. The issues
As the first charge in these consolidated proceedings was served upon the Re-
spondents on April 15, 1958, the complaint does not allege as an unfair labor prac-
tice any conduct occurring before October 15, 1957. Evidence of prior transac-
tions was introduced as background "to show the purpose and character of the
particular transactions under scrutiny." F.T.C. v. Cement Institute, 333 U.S.
683, 705.
The General Counsel's contentions as to the violations of the Act on the part of
the Respondents are as follows:
1. By reason of the pendency before the Board of the proceedings initiated by
Local 810 through the filing of the petition for certification of representatives in
Case No. 2-RC-8720, an unresolved question concerning representation of the
employees in the units covered by the 1955 agreements existed at all times since
March 4, 1957. The Respondents were thereafter precluded from bargaining col-
lectively with Local 122, citing in support Shea Chemical Corporation, 121 NLRB
1027. In consequence, the extension agreement entered into on July 22, 1957, was
invalid and the maintenance and enforcement of the contract, particularly the
union-security clauses thereof, between October 15, 1957, and January 27, 1958, in
favor of Local 122 was a violation of Section 8(a)(1) of the Act.
2. When Respondents recognized Local 422 as the representative of its employees
and agreed to the substitution of Local 422 for Local 122 as the contracting union
under the 1955 collective-bargaining agreements, as extended on July 22, 1957,
Local 422 did not represent an uncoerced majority of the employees covered by
the said agreements and a question concerning the representation of those employees
was still pending before the Board. In the circumstances, Respondents' recognition
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Local 422 and its maintenance,and enforcement of the 1955 contracts, as extended,
including the agreements' union-security provisions, are alleged to violate sub-
paragraphs (1) and (2) of Section 8 (a) of the Act.
3. Even if Local 422 is regarded as the lawful successor of Local 122, because
the extension of the union-shop contracts entered into by Respondents and Local
122 was invalid and because substitution of Local 422 for Local 122 did not operate
to cure the invalidity, Respondents' maintenance and enforcement of the said agree-
ments in favor of Local 422 violates Section 8(a)(1) and (2) of the Act.
4. Since January 27, 1958, Respondents, in violation of Section 8(a) (1) and (2)
of the Act, have deducted union dues on behalf of Local 422 from the wages of
employees who have not authorized Respondents to make such deductions.
Respondents' defenses are both substantive and procedural. In substance, al-
though not in the order or form pleaded, they are:
1. There is a fatal variance between the allegations of the charges and complaints
in these proceedings.
2. The facts which form the basis of the instant proceedings were adduced during
the trial of a prior unfair labor practice proceeding against Rayex and Lenscraft
in Cases Nos. 2-CA-5504 and 2-CA-5505, and as the General Counsel did not
allege in that proceeding that these facts constituted violations of the Act, the com-
plaint herein should be dismissed. Further, the decision in that proceeding will be
res adjudicata of the issues in these proceedings.
3. It is an injustice and hardship to subject Respondents to a new hearing based
upon the same matters adduced in the prior hearing. As the charge in Case No.
2-CA-5885 was filed when the hearing in Cases Nos. 2-CA-5504 and 2-CA-5505
was first opened, the General Counsel was under an obligation, if he wished to
advance additional theories for violation of the Act, to do so by amendment of the
complaint in the earlier unfair labor practice proceeding rather than by issuance of
a separate complaint and the conduct of another hearing.
4. Local 810 by its conduct was abandoned, rejected, and repudiated the rep-
resentation petition filed by it in Case No. 2-RC-8720. Consequently, there has
been no pending question concerning representation as alleged in the complaint.
5. Under Section 10(b) of the Act no unfair labor practices can be based upon
the execution of the extension agreement of July 22, 1957. As the contracts are
lawful on their face, the maintenance and enforcement thereof, as extended, cannot
be deemed a violation of the Act.
6 When the July 22, 1957, extension agreement was executed, it was lawful and
permissible for Respondents to enter into such agreement under the principle of
William D. Gibson Co., et al., 110 NLRB 660, which then reflected the Board's
prevailing policy.
7. In any event, the 1955 agreements automatically renewed themselves as to
notice of a desire to change the terms thereof had been given by either party at
least 60 days before the expiration date of the contracts. The extension agree-
ment of July 22, 1957, was a mere limitation upon the term of the 1955 contracts,
as automatically renewed, and was not a newly negotiated collective-bargaining
agreement within the meaning of the Shea case.
8. Local 422 is the legitimate and lawful successor to Local 122. Accordingly,
Respondents were privileged to recognize and deal with Local 422 as the substitute
for Local 122.
C. The extension agreement
Basic to the General Counsel's position that Respondents violated the Act by
maintaining and enforcing their agreements with Local 122 after October 15, 1957,
is that the renewal or extension of the 1955 contracts was invalid.9 The Respondents
contended that, as neither of the contracting parties had taken action to forestall
renewal of their agreements by giving timely written notice of a desire to change
their terms, the contracts were automatically extended for 1 year from their ex-
piration date July 30, 1957. 10 However, I agree with the General Counsel that
9 Although no written agreement between Miro-Ray and Local 122 was produced, the
General Counsel does not question Tunkel's testimony that there was such a contract and
further that the July,22, 1957, extension agreement applied to that contract as well as
to the one between Lenscraft and Local 122.
w The General Counsel argued that the pendency of the petition in Case No. 2-RC-8720,
which raised a question concerning representation of the employees in the contractual
units, served to stay the agreements from renewing themselves. It is the opinion of the
undersigned that the Board's rule is to the contrary. Merchants Refrigerating Company,
78 NLRB 528; The Coolidge Corporation, 108 NLRB 3.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 847
the extension agreement of July 22, 1957 , modified the termination clauses of the
1955 agreements by eliminating the automatic renewal provisions therein . Reference
to the 1955 agreements would indicate that the parties could not have intended that
their terms be continued for an additional year without change as these contracts
provide for a maximum wage scale of from 80 to 90 cents per hour at a time when
the lawful minimum wage was $1 per hour. Furthermore, since the effective date
of the 1955 amendments to the wage -hour law, the Respondents have been using
a different wage scale than provided for by their agreements and to that extent, at
least, have not been observing their terms.li Thus, if nothing more, the 1955
agreements had to be modified to conform to the law and the Respondents' prac-
tices. That it was the intention of the parties that the terms of their contracts
should not be continued for an additional year without change also is apparent
from the very language of the July 22, 1957, extension agreement. Its- third num-
bered paragraph provides that the terms of any new agreement negotiated between
the parties "shall be effective as of the 30th day of July 1957." In addition, the
first numbered paragraph of the extension agreement specifically calls for -a ter-
mination date different from that of the 1955 contracts, namely, "until such times
as the National Labor Relations Board finally determines the collective bargaining
agent." Respondents assert that a purpose of the extension agreement was to limit
the term of the 1955 agreements and, therefore, inferentially concede that the 1955
agreements were not renewed for an additional year following their expiration on
July 30, 1957. This is supported by the first whereas clause of the extension agree-
ment which recites that "the existing collective bargaining agreement between the
parties will expire on July 30, 1957." Accordingly, I find that the 1955 contracts
between Respondents and Local 122 did not automatically renew themselves,12 but
were extended by virtue of the July 22, 1957, agreement.13
As a question concerning representation of the employees covered by the 1955
agreements was pending when they were extended on July 22, 1957, the General
Counsel contends that the extension agreement is invalid. This argument is based
upon the alleged applicability of the Midwest Piping doctrine.14 The principle of
that case is that an employer, who arrogates to himself the resolution of a repre-
sentation dispute by recognizing and contracting with one of several rival unions
violates Section 8 (a)( I) and (2) of the Act because he has accorded unwarranted
prestige and support to the favored union by giving it improper advantage in its
competition for the employees' allegiance and also has infringed upon the employees'
statutory right to freely select a collective-bargaining representative of their own
choosing. However, "that doctrine, necessary though it is to protect freedom of
choice in certain situations , can easily operate in derogation of the practice of con-
tinuous collective bargaining, and should, therefore, be strictly construed and spar-
ingly applied." Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443, 1445. Thus,
the Board has indicated various bounds circumscribing the application of this doc-
trine. One limitation upon the reach of the Midwest Piping principle is that a repre-
sentation petition filed with the Board must "create a real question concerning repre-
sentation." William Penn Broadcasting Company, 93 NLRB 1104, 1105. In
apparent reliance upon this limitation, Respondents interposed the defense that Local
810 had abandoned, rejected, and repudiated the petition it filed in Case No. 2-RC-
8720. However, contrary to Respondents' assertion, the activities relied upon by
them to support their argument reflect -a continuing interest on the part of Local
810 to obtain recognition as the collective-bargaining representative of the employees
covered by that union's petition. The fact that following the May 17, 1957, election,
Local 810 filed charges of unfair labor practices against the Respondents, which
under the Board's usual procedures has served to delay a second election and a final
resolution of the question concerning representation , does not impair the vitality of
the pending petition in Case No. 2-RC-8720. I find, therefore, that during the times
material hereto there existed a real question concerning representation by reason of
the pendency of the petition in Case No. 2-RC-8720.
The problem as to the applicability of the Midwest Piping doctrine to the instant
proceedings arises from the fact that when Local 810 filed its petition for certifi-
cation of representatives Local 122 was the recognized representative of Respondents'
11 Article XX of the contracts iprohibit modification of their wage schedules without
written authorization from the Union . Nevertheless , it appears from Tunkel's testimony
that Respondents adjusted their employees ' wages to conform to the amended wage-hour
law without consultation or negotiation with or written authorization from Local 122.
U 'Red Jacket Manufacturing Company, 62 NLRB 740.
1s Phelps -Dodge Refining Corporation, 112 NLRB 1209.
14 Midwest Piping & Supply Co., 63 NLRB 1060.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and there was in existence a valid collective-bargaining agreement be-
tween Respondents and Local 122. In such circumstances the nature of the sub-
sisting relationship between the employer and the current representative prevents
him from according like treatment to both competitors. If he continues to recognize
and deal with the incumbent, that organization has the advantages of a defender in
an entrenched position against the campaign of a rival to oust it. On the other hand,
if the employer ceases to recognize the incumbent that union suffers a loss of
prestige which gives "an undue advantage to the rival union." 15 As to what action
an employer may take in such situation involves striking a balance between con-
flicting considerations. The Board has held that it is permissible for an employer
to accord recognition to an incumbent union during an election campaign and to
cooperate with the incumbent in the administration of their contract."' The raising
of a question concerning representation by another union therefore neither suspends
an existing contract nor interferes with the implementation of its terms even in-
cluding negotiation of a wage increase pursuant to an appropriate reopening clause.
The Coolidge Corporation, 108 NLRB 3. However, absent contractual justification,
as in the Coolidge case, executing an agreement with an incumbent union during
the pendency of a valid question concerning representation, until the Gibson case,
had been considered to be a violation of the Midwest Piping doctrine."?
The maximum limitation upon the Midwest Piping principle is found in William
D. Gibson Co., supra. In that case, the Board sanctioned the negotiation of a
new agreement between the employer and the recognized representative of its em-
ployees, although a representation proceeding with respect to employees in the
contractual unit was then pending before the Board. Emphasizing the desirability of
preserving "continuity in collective-bargaining agreements," the Board's majority
stated, "that the policies of the Act will best be served if the Midwest Piping doctrine
is not applied to situations where an employer contracts with a labor organization
which is an incumbent union actively representing the employer's employees." 18
Within 4 years of its Gibson decision, the Board specifically questioned the
validity of the principle enunciated therein.19 This appears in Kiekhaefer Corpo-
ration, 120 NLRB 95, where the Board set aside a representation election because
the employer and the incumbent union continued negotiations for a new contract
and settled a grievance concerning the claim of four to five laid-off employees to
pay for Memorial Day while the representation proceeding was pending. Finally, in
Shea Chemical Corporation, supra, the Board overruled the Gibson case, stating:
We now hold that upon presentation of a rival or conflicting claim which raises
areal question concerning representation, an employer may not go so far as to
bargain collectively with the incumbent (or any other) union unless and until
the question concerning representation has been settled by the Board. This
is not to say that the employer must give an undue advantage to the rival union
by refusing to permit the incumbent union to continue administering its con-
tract or processing grievances through its stewards.
By its decision in the Shea case the Board has removed the limitation placed upon
the Midwest Piping doctrine by the Gibson case, but did not enlarge the doctrine to
embrace situations not theretofore within its scope. Thus, the pendency of a valid
question concerning representation does not serve to terminate abruptly all relation-
ships between an employer and the recognized representative of his employees.
The Shea case specifically sanctions the continued administration of a subsisting
collective-bargaining agreement, which includes maintenance and enforcement of
the agreement's union-security and checkoff provisions, if any.20 Even upon expi-
ration of the agreement, the employer may continue to accord the incumbent union
limited recognition. This follows from the disjunctive structure of the second
is Shea Chemical Corporation , supra.
ie Seaboard Terminal and Refrigeration Company, 114 NLRB 754; Stewart-Warner
Corporation, 102 NLRB 1153, 1157.
iv See Kearney & Trecker Corporation, 101 NLRB 1577, enforcement denied 210 F. 2d
852 (CA. 7) ; International Shoe Company , 97 NLRB 772.
18 Accord : General Electric Company, 110 NLRB 1109.
10 In The Electric Auto-Lite Company, 116 NLRB 788, the Board set aside an election
because the employer and the incumbent union had orally agreed to the terms of a
proposed contract while a question concerning representation was pending. This decision
presaged the later reversal of the Gibson case
20 "The Board can not ignore the plain provisions of a valid contract made in accord-
ance with the letter and the spirit of the statute and reform it to conform to the Board's
idea of correct policy." Colgate-Palmolive-Peet Co. v. N.L.R.B., 338 U.S. 355, 363.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 849
sentence, quoted above, from the Shea case which reads: "to continue administering
its contract or processing grievances through its stewards."
Turning back to the facts in the instant proceedings, had the Respondents and
Local 122 not entered into their extension agreement the 1955 contracts would have
automatically renewed themselves for an additional period of 1 year.21 Respondents
argue that the purpose of the extension-agreement was to limit the renewed term
of their 1955 contracts to less than 1 year. However, the July 22, 1957, agreement
extended the 1955 contracts for an indefinite period, namely, until such time as the
National Labor Relations Board finally determines the collective-bargaining agent,
rather than for a fixed term. Had the Board finally determined the question con-
cerning representation within a year of the expiration of the 1955 contracts, then
the July 22, 1957, agreement would have extended the underlying contracts for a
period of less than 1 year and Respondents' asserted purpose would have been
realized. But, as events developed, the Respondents have been maintaining and
enforcing their 1955 contracts on the basis of the extension agreement for approx-
imately 2 years at this writing. Thus, in fact, the extension agreement has not
operated as a limitation on the automatic renewal provision of the 1955 contract.
In addition to extending the term of the 1955 contracts, the July 22, 1957, agree-
ment included another substantial change. The third numbered paragraph provides
that the terms of the new contract negotiated between the parties shall be effective
as of the expiration of the 1955 agreement. Such provision normally is regarded
as an important bargaining concession 22 and was so regarded here. Initially the
parties extended the 1955 agreement without specifically providing for retroactivity.
Only after the employees protested did the contracting parties renegotiate the matter
to include such provision. The employees' protest was directed to management
rather than to Local 122 and Respondents quickly acceded thereto by amending their
extension agreement with Local 122. Such conduct was a persuasive testimonial to
the employees that their demands were more likely to be met by the Respondents
if they retained Local 122 as their bargaining agent. Therefore, it is seen that the
July 22, 1957, contract did more than merely extend the term of the 1955 agree-
ments, it specifically gave assurances that the provisions of the 1955 agreements,
particularly their wage schedules, would not be continued beyond the agreements'
expiration date on July 30, 1957, so long as Local 122 continued to be the collective-
bargaining representative for the employees. In effect, it told the employees that
if the question concerning representation then pending was resolved in favor of
Local 122 they would obtain additional benefits effective as of July 30, 1957.
Emphasizing these implied assurances is the fact that the very next month, in
August 1957, while the representation question still was unresolved, the Respondents
granted a general wage increase plus some merit increases to their employees. Thus,
the execution of the July 22, 1957, extension agreement tended to increase the
prestige of Local 122 among Respondents' employees and give it an undue advantage
in its representation contest with Local 810.
Although the Midwest Piping doctrine is not intended to interfere with the normal
administration of a subsisting collective-bargainng agreement or to termnate all
dealings between the employer and an incumbent union upon the filing of a repre-
sentation petition, it does interdict renegotiation of the agreement before resolution
of the representation question by the Board 23 Closely paralleling the facts in this
case is Phelps Dodge Copper Products Corporation, 63 NLRB 686. There the
Board found no objection to the fact that the parties to an expired collective-bar-
gaining agreement continued in effect its substantive provisions pending disposition
of a representation proceeding so long as it did not appear that the incumbent union's
"prior exclusive representative status was thereby preserved or recognized, or that
the maintenance of membership provision of the expired contract was actually
extended.. . Specifically, the Board approved continued dealings between the
employer and incumbent union under the established grievance procedure of the
expired contract. However, the Board found that it was unlawful for the parties
to continue to enforce the union-security provision of the contract. In so holding
the Board stated: "We are of the opinion that if, during the pendency of an election
directed by the Board to resolve a question concerning representation, an employer
extends or renews an existing contract with a labor organization, or makes a new
one, he violates the Act insofar as that organization is accorded recognition as exclu-
sive bargaining representative or employees are required to become or remain mem-
'bers thereof as a condition of employment." The holding in the Phelps Dodge case
21 Footnote 10, supra.
22 See Krambo Food Stores , Inc, 120 NLRB 1391.
23 This statement is qualified for the period during which the Gibson case represented
Board ,policy.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is consistent with the language of the Board in the recent Shea case. It appears to
me that the Phelps Dodge case strikes a reasonable balance, in a situation where a
collective-bargaining agreement expires or is terminated while a question concerning
representation is pending, between the desirability of preventing a hiatus in the
collective-bargaining relationship and insuring the employees maximum freedom to
choose a representative at an appropriate time. Accordingly, I find that by the
standards which were applicable prior to the Gibson case and have been applicable
since the Shea case, Respondents' execution of the extension agreement of July 22,
1957, with Local 122 would under the Midwest Piping doctrine violate Section
8 (a)( 1 ) and (2) of the Act.
As execution of the July 22, 1957, extension agreement preceded by more than
6 months the filing and service of charges in this case, no unfair labor practice may
be based upon that event. However, the General Counsel contends that the main-
tenance and enforcement of the agreement's union-security provision since October
15, 1957, the cutoff date under Section 10(b) of the Act, violates the Act. Re-
spondents disagree with the General Counsel's interpretation of Section 10(b) and,
in addition, interpose the equitable argument that when the extension agreement
was entered into the prevailing Board policy, as expressed in the Gibson case, sanc-
tioned such dealings between an employer and an incumbent union.24 I find merit
to these defenses. The Bryan case,25 upon which the General counsel relies, is
distinguishable. In that case the Board found that the maintenance and enforcement
of a contract containing an otherwise valid union-security clause with a union which
was not the majority representative of the employees covered by the agreement was
an unfair labor practice despite the fact that the contract had been executed more
than 6 months before the filing of charges. In explaining why, although Section
10(b) of the Act prohibits basing any unfair labor practice upon the execution of
the agreement, the section did not bar an unfair labor practice finding based upon
the maintenance and enforcement of the agreement, the Board stated:
Moreover, we can perceive no difference in illegality betweein a contract un-
lawful on its face, that is, one prescribing a form of union security prohibited by
the statute, and a contract invalid because certain requisites to the making of a
valid contract have not been complied with. . . . In the one type of case the
contract itself establishes the invalidity; in the other the invalidity is proved
by reference to the facts surrounding the execution of the contract. [Emphasis
supplied.]
The "requisites" referred to by the Board in the above quotation are found in the
following clause of Section 8 (a) (3) of the Act:
. .. (i) if such labor organization is the representative of the employees as
provided in section 9(a), in the appropriate collective-bargaining unit covered
by such agreement when made, and has at the time the agreement was made
or within the preceding twelve months received from the Board a notice of
compliance with section 9(f), (g), (h), and (ii)) unless following an election
held as provided in section 9(e) within one year preceding the effective date
of such agreement, the Board shall have certified that at least a majority of
the employees eligible to vote in such election have voted to rescind the
authority of such labor organization to make such an agreement.. . .
Establishing the absence of any of the above-quoted "requisites" does not neces-
sarily prove an unfair labor practice independent of the violation arising from the
failure to comply with the proviso to Section 8(a)(3). For instance, entering into
a union-shop contract with an noncomplying union would be a violation of the Act
because one of the requisites to the making of such an agreement has not been met,
although a contract with such union which omits a union-security clause is lawful 26
Thus, although in the Bryan case, the agreement was entered into with a labor
organization which was not the statutory representative and the execution of any
agreement with such union, even without a union-security clause, may have been a
separate violation of the Act, it was unnecessary for the Board to make such finding.
It was sufficient for the Board in the Bryan case merely to find that the contracting
union was not "the representative of the employees as provided in Section 9(a)"
without also finding that such fact independently constituted a violation of the
Act. As the court of appeals explained, in affirming the Board's decision in the
24 The General Counsel does not contend that the transaction between Respondents and
Local 122 bore sufficient similarity to the facts in Jersey Contracting Corp., 112 NLRB
660, as to have made the Gibson case inapplicable.
2s Bryan Manufacturing Company, 119 NLRB 502, affd . 264 F. 2d 575 (C .A.D C.).
26 See N L.R B. v. Gaynor News Company, Inc., 197 F. 2d 719 (C.A. 2), affd. 347 U.S. 17.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 851
Bryan case, "although the Board in the instant case must look to the facts sur-
rounding the making of the 1954 contract, its ultimate holding depends on their mere
existence rather than on ascribing legal significance to those facts standing alone.
Accordingly, the court of appeals distinguished the Pennwoven 27 and Childs 28 cases
on the ground that "in those cases, for the Board to have found an unfair labor
practice within the statutory period, it would first have been required to make an
express finding that another unfair labor practice had been committed outside the
6-month period."
In the instant proceedings, unlike the Bryan case, the invalidity of the union-
security clause cannot be established without first proving that action constituting an
unfair labor practice had occurred outside the 6-month period of limitations. As
written, the union-security clause in Respondents' contracts conforms to the statute.
The alleged illegality stems from the fact that a question concerning representation
was pending on July 22, 1957, when Respondents extended their union-shop con-
tracts with local 122. However, none of the "requisites to the making of a valid
[union-security] contract," as set forth in Section 8(a)(3) of the Act, relate to
whether or not there is a question concerning representation pending at the time
a contract is executed and the Board has held that the proviso to Section 8(a)(3)
does not bar adoption of a union-security proviso while such question is pending.29
But the proviso to Section 8(a) (3) does prohibit a union-security agreement with a
labor organization assisted by action defined in Section 8(a) of the Act as an unfair
labor praetice.30 To find that an agreement containing a union-security provision is
outside the permissive limits of the proviso in Section 8(a)(3) because it was made
with an assisted union it is necessary to find that the favored labor organization has
been assisted by action constituting an unfair labor practice. As the only act of
assistance in this case occurred on July 22, 1957, more than 6 months before the
filing of the charges, Section 10(b) bars a finding that such action constituted an
unfair labor practice. Without such finding there is no basis for concluding that
the extension agreement between Respondents and Local 122 was unlawful. Ac-
cordingly, I find, contrary to the General Counsel, that Section 10(b) of the Act
is a bar to a finding in this case that Respondents have violated the Act by main-
taining and enforcing their agreements with Local 122 between October 15, 1957,
and January 27, 1958.31
Respondents' equitable argument also has persuasive appeal. At the time the
July 22, 1957, agreement was entered into, as the Gibson case represented pre-
vailing Board policy, the contract would not have been deemed a violation of the
Act. It was not until 14 months later when the Board issued its decision in the Shea
case that conduct which theretofore had been considered lawful was declared by
the Board to be a violation of the Act. In the circumstances, I question the wisdom
of a retroactive application of the Shea case to the instant proceedings. As in
N.L.R B. v. Rockaway News Supply Company, Inc., 345 U.S. 71, 77, "the principle
is applicable here, which Mr. Chief Justice Hughes stated for a unanimous Court:
`The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree . . . It is quite clear, however, that such broad statements as to the effect
of a determination of unconstitutionality must be taken with qualifications. The
actual existence of a statute, prior to such a determination, is an operative fact and
may have consequences which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects-with respect to particular
relations , individual and corporate, and particular conduct, private and professional.
Questions of rights claimed to have become vested, of status, of prior determination
deemed to have finality and acted upon accordingly, of public policy in the light
z1N L.R.B. v. Pennwoven, Inc., 194 F. 2d 521 (C A 3).
21 N L.R.B. v. Chtilds Company, et at., 195 F. 2d 617 (C.A. 2).
29 In the Gibson case , although the contract in question contained a union-security
provision, nevertheless, the Board found the contract lawful despite the pendency of a
question concerning representation at the time the contract was entered into
30 The proviso to Section 8(a) (3) of the Act begins as follows: "That nothing in this
Act, or in any other statute of the United States, shall preclude an employer from
making an agreement with a labor organization ( not established , maintained, or assisted
by any action defined in section S(a) of this Act as an unfair labor practice). . . "
si Greenville Cotton Oil Company, 92 NLRB 1033 , affd. 197 F. 2d 326 ( C.A. 5). See
Kearney & Trecker Corporation, Supra.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the nature both of the statute and of its previous application, demand examina-
tion . .' Chicot County Drainage District v. Baxter Bank, 308 U.S. 371, 374." It is
my opinion that in this case the ill effects of a retroactive application of the Shea
case overbalances "the mischief of producing a result which is contrary to a statutory
design or to legal and equitable principles." Securities & Exchange Commission v.
Chenery Corporation, et al., 332 U.S. 194, 203.
D. Issue as to successorship
Since about January 27 , 1958, Respondents have been recognizing Local 422 as
the substitute or successor of Local 122 under the 1955 contracts, as extended, and
have been maintaining and enforcing the agreements, including the umon-shop pro-
visions, in favor of Local 422. According to Respondents and Local 422, on Janu-
ary 27, 1958, the membership of Local 122 voted to merge with Local 422 and this
action constitutes the basis for the accession of Local 422 to the contracts between
Respondents and Local 122. The General Counsel contends that Local 422 is not
a lawful successor to the status of Local 122 as the representative of Respondents'
employees and therefore Respondents have violated Section 8(a)(1) and (2) of the
Act by recognizing Local 422 and by maintaining and enforcing their agreements
with Local 122 in favor of Local 422.
At the time of the alleged merger between Local 122 and Local 422 both unions
were affiliated with the International Jewelry Workers' Union, AFL-CIO. Prior
thereto, in September 1957, the International's president, upon the recommendation
of that organization's Fair Practice Committee, had appointed an administrator
over the affairs of Local 122 who remained with Local 122 until that union ceased
to function about January 27, 1958.
What prompted the merger of the two Locals was not clearly developed at the
hearing. James Matienzo, president of Local 422, testified that he had been ap-
proached by Hyman Powell, secretary-treasurer of the International, who inquired
whether Local 422 "could more or less absorb or merge with Local 122" and service
their shops. Matienzo did not testify that he was told why such a step should be
taken. Similarly, the record does not show who on behalf of any of the interested
parties promoted the alleged merger. Powell did not testify at the hearing and
there is no evidence, other than with respect to the described conversation with
Matienzo, that he took any action in the matter. In any event, whatever Powell
as an International officer may have done to further a merger between Locals 122
and 422 does not appear to have been authorized because Joseph Morris, general
president of the International, testified that he had issued no instructions regarding
a merger between Local 422 and Local 122 and furthermore that he had no prior
notice of the merger.32 Albert Goldman, president of Local 122, testified that he
did not participate in any of the action leading to the merger of Local 122 with
Local 422. According to Goldman, he had no discussions with the officers of Local
422 -about a merger of the two unions and the merger took place without his knowl-
edge.33 Finally, Matthew Gammerino testified that, although be was acting as
administrator over the affairs of Local 122, he had no notice whatsoever of the
merger between that organization and Local 422 until about a week after the event.
According to Gammerino, he became ill on January 21, 1958, and not until a week
after January 27 did he learn about the merger. It further appears from Gam-
merino's testimony that the merger was a precipitate matter , as on January 21 he
had no information of any such contemplated action and on January 27 the merger
had been concluded.
It is the position of the Respondents and Local 422 that the merger of the latter
organization with Local 122 occurred upon approval being given by the membership
of Local 122 at a meeting held on January 27, 1958.34 No official or member of
22 Morris testified that he had received a telephone call from Irving Horowitz, president
of Local 222 , who stated that it would be advisable for Locals 422 and 122 to merge.
What Interest Local 222 had in the matter is not apparent . Morris testified that except
for this conversation he had not been consulted regarding the merger between Locals 422
and 122.
sa Initially , Goldman testified with respect to Local 422 taking over the affairs of Local
122, "I think I got instructions from the International." He later corrected this testi-
mony and denied he had received any instructions from the International.
34 The members of Local 122 are supposed to have received notice of the meeting from
the Union's president . However, its president , Goldman, testified that he did not remem-
ber whether a letter under his signature was sent to the members of Local 122 informing
them of a meeting scheduled for January 27, 1958, to discuss a merger between Local 122
and Local 422. Goldman further testified that he had no knowledge of a membership
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 853
Local 122 testified with respect to that organization's meeting of January 27, 1958.
However, James Matienzo, president of Local 422, testified that he attended the
meeting as a guest or as an observer. No one checked the credentials of the persons
attending the meeting. According to Matienzo between 800 and 1,200 persons
attended the meeting 35 which was conducted by International Vice President Horo-
witz.36 No evidence was adduced as to the authority of Horowitz to conduct a meet-
ing of the membership of Local 122. As Joseph Morris, general president of the
International, testified that the International had not ordered or authorized any
merger discussions, it does not appear that Horowitz had any authority from the
International. Likewise it does not appear that Horowitz held any position with
Local 122 which authorized him to conduct a meeting of that union's membership.
Matienzo further testified that Horowitz explained to the membership of Local 122
the method of operations of Local 422 and at the end of the meeting there was a
"unanimous vote, rising or hand vote," of the membership "to go into 422." The
resolution voted upon, if there was one, was neither introduced in evidence nor
otherwise described.
Although Matienzo testified that the membership of Local 122 had voted to merge
with Local 422, there was no similar approval of the merger by the membership of
Local 422. The only evidence offered on behalf of Respondents and Local 422 as
to action on the part of Local 422 with respect to the merger is the minutes of an
executive board meeting of Local 422 held on January 3, 1958, in which it is stated:
"The officers of Local 122 requested that their members merge with Local 422."
This statement in the minutes is contradicted by Goldman, president of Local 122,
who testified that he never had any discussions with officers of Local 422 regarding
a contemplated merger.
Joseph Morris, general president of the International, testified that after he learned
of the alleged merger on January 28, 1958, he discussed the matter with the Inter-
national's advisory board. It was then decided to investigate how the merger came
about. The International received information that the membership of Local 122
had been notified by a letter from President Goldman that there would be a meeting
on January 27, 1958, to discuss a merger with a sister local. The letter was not
introduced in evidence and Goldman was unable to recall having issued or authorized
any such document. Morris further testified that he held a meeting of the stewards
of Local 122, at which meeting the stewards advised that there had been a member-
ship meeting of Local 122 on January 27 and that the membership was content to
be in Local 422. The International did not investigate whether the membership of
Local 422 had similarly approved a merger with Local 122. The fact is that there
was no such meeting of Local 422 and the membership of Local 422, according to
its president James Matienzo, never voted to merge with Local 122. Morris also
testified that the executive board of the International approved the merger, but no
new charter was issued to Local 422 as a result of the merger and the International
considers that there has been no change in Local 422 by reason thereof. He also
testified that the International considers Local 122 to be nonexistent, although it has
taken no formal action with respect to Local 122 such as revoking or suspending its
charter. Goldman testified that Local 122 has ceased to function and is no longer
in existence.
Following the January 27, 1958, meeting, the former officers of Local 122 were
hired as organizers by Local 422. There was no change in the officers of Local 422.
Morris testified that the International's Advisory Board was told that Local 422 was
taking physical possession of the records and assets 37 of Local 122. However, it
appears that Morris was misinformed. Goldman testified without contradiction
that since the alleged merger he has retained possession of the books and records
meeting of Local 122 for the purpose of discussing a merger with Local 422 and learned
about the action after the event. With respect to the January 27 meeting of Local 122,
Goldman testified:
A. I found out a few days after they had a membership meeting with my people ;
I didn't know anything about it until I found out.
Q Who had the membership meeting?
A. Local 422, and they took everything away from me ... .
15 No evidence was adduced as to the total membership of Local 122. Furthermore, it
is uncertain as to what proportion of the persons attending the meeting were in fact
members of Local 122.
80 Joseph Morris, president of the International , identified Horowitz as president of
Local 222, rather than as an International vice president.
37
Goldman testified that Local 122 had no assets at the time of the alleged merger.
577684-61-vol. 128-55
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Local 122, including the collective-bargaining agreements between Local 122 and
various employers, and has not turned them over to Local 422. This testimony is
corroborated by James Matienzo, president of Local 422, who testified that although
Local 422 was administering the contract between Respondents and Local 122 he
never saw the agreement.
A purpose of the Act is to protect "the exercise by workers of full freedom of .. .
designation of representatives of their own choosing." The Act does not countenance
the imposition upon employees of a bargaining agent not of their own selection.
Hence the statutory right of a duly designated or selected collective-bargaining agent
to act as the exclusive representative of the employees in an appropriate unit is not
transferable 38 Similarly, where a change in structure, function, or affiliation of a
union is of such nature as to alter the character of the labor organization to such an
extent that it is no longer the same organization which the employees had designated
or selected as their collective-bargaining agent or where a change in the union arises
through circumstances (such as from a schism within its ranks or a jurisdictional raid
by another union ) as to raise a question concerning the representation of the em-
ployees involved, then the representative rights of the originally designated labor
organization are not acquired by its purported successor.39 On the other hand, not
every organizational change within a union, including merger among unions, serves
to disrupt a collective-bargaining relationship existing between such union and the
employer whose employees the union represents. If the "continuity of [the em-
ployees' own] organization" 40 has been preserved, an organizational change does
not result in the abrogation of the union's representative status or in the ter-
mination of its collective-bargaining agreements because the bargaining agent
which had been duly designated or selected by the employees has remained substan-
tially unchanged to discharge its statutory functions as the employees' representa-
tive. Thus, it has been held that a mere change in designation or affiliation of a
union does not invalidate its collective-bargaining agreements or impair its right to
continue as the statutory representative of the employees by whom it has been se-
lected.41 Similarly, where two or more labor organizations merge the consolidated
organization may acquire the representative status and collective-bargaining agree-
ments of its constituents if the circumstances are such that the new organization has
become the alter ego or continuance of the constituent unions. National Carbon
Company, etc., 116 NLRB 488, enfd., sub nom. Union Carbide and Carbon Corpo-
ration, 244 F. 2d 672 (C.A. 6).42
Unlike the situation in the National Carbon case, it cannot be found here that
Local 422 is the alter ego or continuance of Local 122. Respondents contend that a
merger of the two unions had taken place. By what authority or how it occurred
has not been adequately disclosed. My attention has not been directed to any
provision in the constitution or bylaws of the International or the locals themselves
which sets up a procedure for mergers. Matienzo, president of Local 422, testified
that on January 27, 1958, the membership of Local 122 voted "to go into 422."
However, the evidence does not establish that the meeting at which the vote was
taken was either a regular or special meeting duly called in accordance with the
constitution, bylaws, or other governing rules of Local 122, or that the meeting
was properly called to transact the business before it, or that the meeting was con-
ducted by anyone having authority to do so. In addition to the apparent lack of
regularity with respect to the January 27th meeting, it is not clear what the member-
ship of Local 122 voted to do. A vote "to go into 422" is not synonymous with
approval of a proposed merger Matienzo the only witness who testified with respect
to the said meeting of Local 122 did not testify that the terms of any proposed merger
was presented to the membership so that it cannot be found that the vote at the
meeting constituted approval of a merger of Local 122 with Local 422. Finally, there
is no evidence as to how many, if any, employees of Respondents received notice of
the meeting or attended the meeting or had any opportunity to voice approval or
disapproval with regard to being represented by Local 422.
sa See Douds v. Local 34368 , etc, 86 F Supp. 542 (D C N.Y.).
8 Drennon Food Products Co., 120 NLRB 624; Gulf Oil Corporation, 109 NLRB 861;
Sears Roebuck & Company, 110 NLRB 226; Graphic Finishers, Inc, 119 NLRB 374;
Kramho Food Stores, Inc., 119 NLRB 369.
40 Harris-Woodson Co., Inc., 85 NLRB 1215, 1217.
41 Harris-Woodson Co., Inc., 85 NLRB 1215, enfd. 179 F. 2d 720 (C.A. 4) ; Chesapeake
& Potomac Telephone Company of Baltimore, 89 NLRB 231; The Louisville Railway Com-
pany, 90 NLRB 678; Dryden Rubber Division, etc., 118 NLRB 369; Alto Plastic Manu-
facturing Corporation, 119 NLRB 1458; Hershey Chocolate Corporation, 121 NLRB 901.
42 See New Jersey Oyster Planters and Packers Association , Inc., 101 NLRB 538.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP. 855
A merger or amalgamation of two unions should involve approval by both parties.
While it is contended that the membership of Local 122 approved the merger, no
similar action was taken by the membership of Local 422. A document purporting
to be the minutes of a meeting of the executive board of Local 422 held on January
3, 1958, states that the officers of Local 122 requested that their members merge
with Local 422. This bare statement in the minutes is not corroborated by the
testimony of any officer of Local 122, while Albert Goldman, its president, denied
that he had any meeting with officers of Local 422 and Matthew Gammerino, the
administrator of the affairs of Local 122, testified that he had no advance informa-
tion about any proposed merger. Matienzo testified that at the January 3, 1958,
executive board meeting of Local 422 the proposed merger "was more or less
approved." The approval must have been more on the lesser side and less on the
more side because the minutes of the meeting make no mention of any such approval.
Apart from the fact that it has not been established that the alleged merger of
Local 122 with Local 422 had the approval of the membership or governing officials
of each of the unions, the circumstances existing after January 27, 1958, demonstrate
that Local 422 was not the alter ego or continuance of Local 122. Local 422 has
not taken possession of the books and the records of Local 122 and no evidence was
adduced that it has assumed the liabilities and obligations of Local 122. None of
the officers of Local 122 were given official positions with Local 422, while the
officers of Local 422 remained unchanged. Furthermore, no readily identifiable
group representing Respondents' employees prior to the alleged merger existed to
exercise such function after the event. Thus, whereas prior to January 27, 1958,
Albert Goldman, president of Local 122, handled the affairs and negotiations on
behalf of Respondents' employees, thereafter he had no further concern with such
matters. On the other hand, Matienzo, president of Local 422, testified that in
February 1958, he informed Respondents that he was going "to handle the shop,
insofar as any grievances or any problems that may come up. .. . Although he
intended to serve in this capacity, Matienzo testified he never saw the contract with
Respondents which purportedly he was going to administer on behalf of the employ-
ees covered by its terms.
"The right of a successor union to assume the status [as] bargaining agent held
by its predecessor depends on a factual issue-is the new union a continuation of
the old union under a new name or affiliation or is it a substantially different organiza-
tion?" 43 The circumstances here indicate a complete engulfment of Local 122 by
its successor Local 422 rather than an organizational change, such as in the National
Carbon case, which did not destroy the identity of the representative which had been
duly selected by Respondents' employees. Upon the record in this case, I find that
Local 422 is a substantially different organization than Local 122 and is not such a
successor to Local 122 as entitled it to assume the status of bargaining agent of
Respondents' employees. Accordingly, I find no merit to Respondents' defense
that it had a right to recognize Local 422 and to enforce its 1955 union-shop con-
tracts, as extended (which originally were entered into with Local 122) in favor
of Local 422 by reason of the alleged successorship of Local 422 to the interest of
Local 122 as representative of Respondents' employees.
E. The remaining defenses
Respondents contend that their recognition of Local 422 shortly after January 27,
1958, was based not only upon that organization's claim to be the successor of Local
122 but also upon a demonstration by Local 422 that it represented a majority of
the employees in the appropriate bargaining units covered by the contracts with
Local 122. This defense is deficient in two respects. First, there was a failure of
proof that when Respondents accorded recognition to Local 422 that Union had
been designated as representative by a majority of the employees.44 To the contrary,
I find that at no time material herein had Local 422 been designated or selected as,
representative by an uncoerced majority of Respondents' employees in any appro-
priate unit. Secondly, as there was a question concerning representation pending
when Respondents accorded recognition to Local 422, regardless of majority, such
action was an unlawful breach by Respondents of their obligation and duty to remain
49 Carpinteria Lemon .4 sooiation et al. v N L.R B , 240 F. 2d 554 (C.A. 9).
44 Raymond Tunkel, Respondents' president, testified that at a meeting with Matienzo
early in February 1958 he was shown "a sufficient number of cards to make me believe
that it represented everybody in the shop " However, the evidence shows that the bulk
of the cards referred to by Tunkel were either authorization or checkoff cards in favor of
Local 122 rather than Local. 422.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neutral and, under the Midwest Piping doctrine, constituted a violation of Section
8(a)(1) and (2) of the Act.
Respondents' remaining defenses are procedural rather than substantive. One
such defense is that there is a variance between the allegations of the charges and the
complaint. This defense is based upon the fact that the first charge in these proceed-
ings alleges assistance to Local 422 since October 15, 1957, whereas the complaint
alleges that the Respondents' unlawful assistance to Local 422 dates from January 27,
1958. I find no merit in this defense. A charge is not a pleading. The Act requires
only that the charge bear some relationship to the violations of the Act alleged in the
complaint and not that the complaint in all respects be consistent with the assertions
in the charge.45 Respondents' final defenses are based upon the fact that the evidence
supporting the alleged violations in the instant proceedings had been adduced during
the trial of a prior unfair labor practice proceeding against Rayex and Lenscraft in
Cases Nos. 2-CA-5504 and 2-CA-5505. However, the maintenance and enforce-
ment of Respondents' 1955 contracts with Local 122, as extended, first in favor of
Local 122 and subsequent to January 27, 1958, in favor of Local 422, which is the
conduct alleged in this case to constitute violations of the Act, was not alleged to be
an unfair labor practice in the earlier proceeding and was not an issue litigated in
tbnt proceeding. Accordingly, a decision therein will not be res adjudicata of the
issues herein. Furthermore, even if it were possible for the General Counsel to
have consolidated the issues litigated in this case with those in the earlier case so
that all might have been disposed of at one trial, that was a matter within the dis-
cretion of the General Counsel and I do not find that he has abused his discretion
by not doing so.
I find, therefore, that at no time material hereto was Local 422 the stautory
representative of Respondents' employees and that Respondents since January 27,
1958, have been violating Section 8(a)(1) and (2) of the Act by maintaining and
enforcing in favor of Local 422 the 1955 union-shop agreements, as extended, which
were originally entered into by Lenscraft and Miro-Ray with Local 122.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and that they take
affirmative action designed to effectuate the policies of the Act.
It has been found that since January 27, 1958, Respondents have violated Section
8(a)(1) and (2) of the Act by according recognition to Local 422 as the exclusive
collective-bargaining representative of certain of its employees and by maintaining
and enforcing in favor of Local 422 its 1955 collective-bargaining agreements, as
extended, which originally had been entered into with Local 122. In accordance
with the Board's established policies in such cases, it will be recommended that the
Respondents withdraw recognition from Local 422 as the collective-bargaining
representative of its employees and cease giving effect to its September 6, 1955,
contracts as extended on July 27, 1957, or to any modifications, extensions, sup-
plements, or renewals thereof unless and until Local 422 shall have demonstrated
its exclusive majority representative status pursuant to a Board-conducted election
among Respondents' employees in a unit or units appropriate for the purposes of
collective bargaining. Nothing in this recommendation, however, shall be con-
strued to require the Respondents to vary or abandon those wage, hour, seniority,
or other substantive features of the relationship between Respondents and their
employees which may have been established pursuant to the aforesaid agreements.
As the aforesaid agreements contain a union-security provision and as Respondents
have been maintaining and enforcing such provisions in favor of Local 422 since
January 27, 1958, and as I have found that the maintenance and enforcement of
the aforesaid agreements has been unlawful, I further find that employees were
coerced to become and remain members of Local 422 and to pay to Local 422
initiation fees, dues, and/or other moneys. Therefore, to expunge the effects of
these unlawful exactions, it will be recommended that Respondents reimburse their
45 N.L.R. B. v. Pant Milling Co., 360 U.S 301; The Grand Union Company, 123 NLRB
1665, and cases cited in the Intermediate Report.
LENSCRAFT OPTICAL CORP. AND RAYEX CORP . , 857
present and former employees for all initiation fees, dues, and other moneys the
employees have been required to pay to Local 422 by reason of Respondents'
maintenance and enforcement of the said contracts, whether such moneys were
checked off from their wages by Respondents or were paid directly to Local 422
by the employees.
Upon the basis of the foregoing findings of fact, and upon the entire record of
the case, I make the following:
CONCLUSIONS OF LAW
1. By maintaining and enforcing since January 27, 1958, collective-bargaining
agreements in favor of Local 422 which required the employees covered thereby, as
a condition of employment, to become and to remain members of Local 422, although
that union was not the representative of the aforesaid employees within the meaning
of Section 9(a) of the Act, Respondents have engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (2) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
CHAS T. DOUDS AUGUST 8, 1957
REGIONAL DIRECTOR
NATIONAL LABOR RELATIONS BOARD
2 PARK AVENUE
NEW YORK CITY
WE SIGNED A STIPULATION CONSENTING TO THE SETTING ASIDE
OF THE MAY 17 ELECTION ON THE EXPRESS REPRESENTATION AND
AGREEMENT THAT NO CHARGES WOULD BE FILED IN CONNECTION
WITH MATTERS WHICH ALLEGEDLY OCCURRED PRIOR TO THE DATE
OF THE STIPULATION AND ON THE FURTHER AGREEMENT THAT
THE ELECTION WOULD BE HELD TODAY AUGUST 8, 1957. SUCH
AGREEMENT WAS MADE WITH THE SANCTION OF A BOARD AGENT
AND IN HIS PRESENCE. IN VIEW OF THE FLAGRANT BREACH OF
SUCH AGREEMENT AND THE UNILATERAL RESCISSION BY LOCAL
#810 WE HEREBY RESCIND OUR STIPULATION AND DEMAND THAT
YOU PROCEED AS THOUGH NO STIPULATION WAS EVER SIGNED.
GAREY & GAREY
ATTORNEYS FOR LENSCRAFT AND RAYEX
APPENDIX B
NATIONAL LABOR RELATIONS BOARD
SECOND REGION
2 Park Avenue
New York 16, New York
Telephone Murray Hill 9-9730
GAREY & GAREY, Esqs. August 19, 1957
63 Wall Street
New York, N.Y.
Re: Lenscraft Optical Corp.,
Rayex Corp. and
Miro-Ray Corp.
Case No. 2-RC-8720
GENTLEMEN: Receipt of your telegram dated August 8, 1957 hereby is
acknowledged.
In response thereto you are advised that no approval to the rescinding of the
Stipulation to set aside the election entered into by the parties on July 24, 1957
will be given. The Stipulation, therefore, will be given full effect and as I have
indicated previously, it is not necessary to issue a Report on Objections.
Very truly yours,
Cauu,ns T. Douns,
Regional Director.