Royal Optical Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1962

135 N.L.R.B. 64 (N.L.R.B. 1962)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
IT IS HEREBY ORDERED that paragraph 1 (a) of the Order herein be,
and it hereby is, deleted, and that there be substituted therefor the
following :
"1. Cease and desist from :
"(a) Picketing or causing to be picketed, or threatening to picket
Macatee, Inc., where an object thereof is to force or require Macatee,
Inc., to recognize or bargain collectively with it where within the pre-
ceding 12 months a valid election under Section 9(c) of the Act has
been conducted which the Respondent did not win."
IT IS FURTHER ORDERED that the notice herein be, and it hereby is,
amended by substituting for the paragraph commencing with "We
will not" and ending with "election of June 24,1959" the following :
WE WILL NOT picket or cause to be picketed, or threaten to
picket, Macatee, Inc., where an object thereof is to force or require
Macatee, Inc., to recognize or bargain collectively with us where
a valid election which we did not win has been conducted by the
National Labor Relations Board among the employees of Maca-
tee, Inc., within the preceding 12 months.
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the con-
sideration of the above Supplemental Decision Granting Motion and
Modifying Order.
Royal Optical Manufacturing Co., Inc. and Production , Mainte-
nance and Service Employees Union , Local 3. Case No. 2-CA-
7727. January 8, 1969
DECISION AND ORDER
On May 8, 1961, Trial Examiner Lee J. Best issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that they cease and desist
therefrom and take certain affirmative action as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner also found that
Respondent had not engaged in other unfair labor practices which
had been alleged in the complaint. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent did not file any exceptions.
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 this
135 NLRB No. 10.
ROYAL OPTICAL MANUFACTURING CO., INC. 65
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the clarification noted below.
1. In the absence of exceptions by the Respondent to the Inter-
mediate Report, we adopt the Trial Examiner's findings 1 that Re-
spondent violated Section 8(a) (1) by interrogating its employees
concerning their union affiliations and by promising rewards and
threatening reprisals to induce them to abandon membership in the
Charging Party, referred to herein as the Union; and also violated
Section 8(a) (5) by concealing preparations to move its plant from,
New York to Passaic, New Jersey, by failing to afford the union
representative an opportunity to bargain with respect to the effect
of the move upon the working conditions of the employees, by deal-
ing individually with the employees in derogation of the bargaining
rights of the Union, and by refusing to discuss and negotiate a col-
lective-bargaining agreement with the Union. We also adopt the.
Trial Examiner's recommendations that the Respondent is obligated
to bargain in good faith with the Union both as to the effects of the
plant removal upon the tenure and conditions of employment of its
employees and as to the negotiation of an agreement covering their
employment at the Passaic plant.
2. The General Counsel has excepted (1) to the Trial Examiner's
failure to find a violation of Section 8(a) (5) in the transfer of the
plant in order to avoid bargaining with the Union; and (2) to his
failure to find a violation of Section 8(a) (3) in that the transfer of
the plant caused its employees to leave their employment.
As to (1), we agree, in effect, with the Trial Examiner's finding
that the removal of the plant was not motivated solely by the Re-
spondent's desire to avoid bargaining but was undertaken in large
part for valid economic reasons. In any event, since our Order will
require the Respondent to bargain with the Union on all aspects of
employee rights which were affected by the move, such further ground
for finding a violation of Section 8(a) (5) would not change the scope
of the bargaining Order.'
As to (2), the Union had been authorized by Respondent's em-
ployees in an appropriate unit to represent them and had won an
election conducted by the New York State Labor Relations Board
on November 7, 1960. Following the election, the Union attempted
to negotiate an agreement with Respondent but was put off by a
statement of Respondent's president, Wasserman, that he was trying
to find a more economical location for his plant. Respondent had
located a suitable site for its plant in Passaic, signed a lease thereon
on December 1, 1960, and physically removed its equipment to the
1 We note, moreover, that these findings are amply supported by the record
s We note that the General Counsel has not suggested that the Board order Respondent
to move its plant back to New York City.
634449-62-vol. 135-6
,66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new plant on December 3, 1960. At no time did Wasserman inform
the Union that it had actually selected a new site or that it intended
to move so quickly: On Friday, December 2, when packing in prep-
aration for the move had begun, one of the employees, Guillermo
Vega, realized that the plant was to be moved outside of New York
City and requested an increase in pay. He quit when his request was
refused. The other employees all reported for work at the Passaic
plant on Monday, December 5. On Tuesday, they assembled in a
group and demanded extra compensation to cover the increased trans-
portation expenses necessitated by traveling from their homes in
New York to Passaic. Wasserman was unwilling to meet the em-
ployees' demands and during that week five of the six employees then
at work quit. Of these, two were rehired in January but the remain-
ing four, including Vega, have never returned to work. Based on
these facts, the Trial Examiner concluded that Respondent had not
discriminatorily discouraged membership in the Union, in violation
of Section 8.(a) (3), by moving its plant, but because the other con-
current unfair labor practices of Respondent had "created undue
hardships and caused its employees to quit work," he nevertheless
ordered the Respondent to grant, upon their individual applications,
full reinstatement to the four employees who left their employment
in the week beginning December 2,1960.
It is the contention of the General Counsel that the employees who
quit during that week were constructively discharged, and are entitled
to immediate reinstatement with backpay from the date of the dis-,
charge, plus reimbursement for the cost of transporting their house-
holds to Passaic and additional commutation expenses until their move
to Passaic had been completed. We do not agree that the quits from
December 2 through 9 were in fact constructive discharges. We adopt
the Trial Examiner's recommendation that these employees be rein-
stated only upon application, because we believe that they were in fact
unfair labor practice strikers. Attempts of Respondent to deal with
them individually in derogation of the rights of their bargaining repre-
sentative, and Respondent's failure to discuss with the Union its plan
to remove the plant, are causally connected with the employees' leaving
their work immediately before and after the removal of the plant.
Their refusal to work after the plant was moved to Passaic was in pro-
test of the Respondent's failure to meet their collective demands and
those of their bargaining representative for the negotiation of an
agreement. Accordingly, we find that these employees, by collectively
withholding their services because of the Respondent's unfair labor
practices, became unfair labor practice strikers and as such are entitled
to immediate and full reinstatement only upon their application to
return to work.' The Respondent is also obligated to dismiss, if neces-
8 The Cro88 Company, 127 NLRB 691, 692.
ROYAL OPTICAL MANUFACTURING CO., INC. 67
,sary, any persons hired to replace them. We shall also order that the
Respondent make whole those strikers who are entitled to reinstatement
for any loss of pay they may suffer by reason of the Respondent's re-
fusal, if any, to reinstate them, upon request, by payment to each of
them of a sum of money equal to that which he normally would have
earned as wages during the period beginning 5 days after the date on
which he applies for reinstatement and terminating on the date of the
Respondent's offer of reinstatement, such loss to be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB 289.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, Royal Optical Manu-
facturing Co., Inc., Passaic, New Jersey, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Production, Maintenance and
.Service Employees Union, Local 3, or any other labor organization, by
interrogating employees with respect to their union affiliations, promis-
ing rewards, threatening reprisals, or in any like manner interfering
with, restraining, or coercing its employes in the exercise of the rights
guaranteed in Section 7 of the Act.
(b) Refusing to bargain collectively with Production, Maintenance
and Service Employees Union, Local 3, as the exclusive bargaining
representative of all regularly employed production workers, exclud-
ing salesmen, bookkeepers, and plant foremen, employed by Royal
Optical Manufacturing Co., Inc., at Passaic, New Jersey.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Production, Mainte-
nance and Service Employees Union, Local 3, as the exclusive bargain-
ing representative for the aforesaid appropriate unit, and, if
understanding is reached, embody such understanding in a written
agreement.
(b) Upon application, offer to Rafael Baquero, Avelino Martinez,
Katherine Massenberg, and Guillermo Vega immediate and full rein-
statement to their former positions, without prejudice to their seniority
and other rights and privileges of employment, dismissing, if neces-
sary, any persons hired to replace them, and make them whole for any
loss of pay, in the manner set forth in the decision above, and forth-
with bargain in good faith with the Union as their bargaining repre-
sentative with respect to any differential in wages due each of them by
reason of Respondent having moved its plant on December 3, 1960,
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without affording their bargaining representative an opportunity to
bargain with respect thereto.
(c) Preserve and, upon request, make available to the Board or its,
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports and
all other records necessary to analyze the amounts of backpay due, if
any, and the rights of employment under the terms of this Order.
(d) Post at its plant in Passaic, New Jersey, 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 an authorized representative of Royal
Optical Manufacturing Co., Inc., be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not altered,.
defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
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."
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 discourage membership in Production, Mainte-
nance and Service Employees Union, Local 3, or any other labor
organization of our employees, by interrogating them concern-
ing their union affiliations, promising rewards or threatening
reprisals, or in any like manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed in Section
7 of the Act.
WE WILL, upon request, bargain collectively in good faith with-
Production, Maintenance and Service Employees Union, Local 3,
as the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, hours of em-
ployment, and other conditions of work, and, if an understanding
ROYAL OPTICAL MANUFACTURING CO., INC. 69
is reached, we will embody such understanding in a signed writ-
ten agreement. The bargaining unit is :
All production workers regularly employed at our plant in
Passaic, New Jersey, excluding salesmen , bookkeepers, and
plant foremen.
WE WILL, upon application, offer to Rafael Baquero, Avelino
Martinez, Katherine Massenberg, and Guillermo Vega immedi-
ate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority and former
rights and privileges of employment, dismissing, if necessary,
any persons hired to replace them, and make them whole for any
loss of pay suffered by them as a result of our failure to reinstate
them within 5 days after their application, and will forthwith
bargain in good faith with their above-named bargaining repre-
sentative with respect to any differential in wages that may be
reasonably due each employee by reason of our removal of the
plant to Passaic, New Jersey, on December 3,1960, without afford-
ing to their representative an opportunity to bargain with respect
thereto.
ROYAL OPTICAL MANUFACTURING CO., INC.,
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding brought under Section 10(b) of the National Labor Relations Act
(29 U.S.C. Sec. 151 , et seq. ), herein called the Act, with all parties represented, was
heard before Lee J. Best, the duly designated Trial Examiner , in New York City,
New York, on March 16 , 17, and 20, 1961 , upon a complaint issued by the General
Counsel of the National Labor Relations Board and answer filed thereto by Royal
Optical Manufacturing Co., Inc ., herein called the Respondent or Respondent Com-
pany . The principal issues raised in the complaint , as amended , and litigated at the
hearing are, as follows:
(1) Whether the Respondent , in October or November 1960 , interfered with, re-
strained , or coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act by interrogating them concerning their organizational activities , and promis-
ing wage increases , hospitalization , and other benefits if they would refrain from
assisting , supporting , or remaining members of the Union.
(2) Whether the Respondent on and after October 25, 1960 , refused to bargain
collectively in good faith with the Union as exclusive bargaining representative of its
employees in the appropriate unit.
(3) Whether the Respondent on and after December 3, 1960 , discriminated in
regard to terms and conditions of employment to discourage membership in a labor
organization by moving its plant to Passaic , New Jersey , thereby adversely affecting
the time, convenience , and expense of employees in reporting for work, and con-
structively discharging Guillermo Vega , Israel Ortiz , Jose Ortiz, Rafael Baquero,
Katherine Massenberg , and Avelino Martinez.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT
Royal Optical Manufacturing Co., Inc., is a corporation duly organized and exist-
ing under the laws of the State of New York, having its principal office and place
of business prior to December 1960 at 16 West 22d Street in New York City, New
York (herein called the New York plant), and since that time at 100 Dayton
Avenue, Passaic, New Jersey (herein called the New Jersey plant), at both of which
plants it has continuously engaged in the fabrication, assembly, sale, and distribution
of eyeglass frames and related products. During the calendar year 1960, which is a
representative period of annual operations, Respondent Company in due course
and conduct of its business manufactured, sold, and distributed products valued in
excess of $140,000 of which more than $120,000 in value were shipped from its
New York plant in interstate commerce to customers throughout the United States
of America outside the State of New York. It is conceded, therefore, and I find that
Respondent is an employer engaged in commerce within the meaning of Section 2
(2), (6), and (7) of the Act. Since February 1, 1960, and at all times thereafter,
Robert Wasserman has been and now is president and general manager of the
corporation.
II. THE LABOR ORGANIZATION INVOLVED
Production, Maintenance and Service Employees Union, Local 3, is a labor organi-
zation within the meaning of Section 2(5) of the Act, existing in whole or part for
the purpose of representing employees in dealing with employers concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, and conditions of
work. At all times pertinent to this case, Alfred Cavallaro was and now is president
of the Union.
III. THE UNFAIR LABOR PRACTICES
A. Pertinent facts
In January 1960 Robert Wasserman acquired the controlling interest in Royal
Optical Manufacturing Co., Inc., by purchasing two-thirds of the outstanding capital
stock from Rudolph Basso and Irene Macnow, and thereupon became president and
general manager of the corporation. Lucien Pallant retained a one-third in the
business , and continued his association in the enterprise as vice president and gen-
eral sales manager. Irene Macnow continued her employment as bookkeeper and
office assistant. At that time the Respondent held a lease expiring on January 31,
1961, under which it occupied approximately 1,600 square feet on the eighth floor
of a loft building at 16 West 22d Street in New York City, consisting of two rooms
separated by the intervening office of another tenant. The basic rent was $247.50
per month plus extra charges for jointly used toilet facilities, electric and water
utilities, and parking and watchman services. In addition to Federal taxes, the
Respondent was also required to pay an occupancy tax, gross sales tax, gross profits
tax, and income tax to the State of New York. For the fiscal year ending July 1960,
the Respondent suffered a loss in operations of approximately $25,000.
President Robert Wasserman was and still is a resident of Clifton, New Jersey,
and had frequently expressed the desire to move Respondent's plant across the
Hudson River into that State. Shortly after acquiring control of the business, he
announced to his associates the intention of ultimately moving the plant to a more
economical and convenient location, but hesitated to do so prior to expiration of the
existing lease. Discussions about moving were revived from time to time , first on
February 22, 1960, when elevator service was suspended on the Washington Birth-
day holiday and required employees to climb eight flights of stairs to report for
work; and again in July or August 1960 when the New York Fire Department re-
quired Respondent at considerable expense to remedy certain violations of the fire
protection code on its premises . Several robberies were also perpetrated within
the building occupied by Respondent, although its own premises were not involved"
therein. During these summer months President Wasserman initiated efforts to
obtain a more desirable location by answering newspaper advertisements offering
rental space at Bonny Dell Farms and Van Herwide in the vicinity of Rutherford,
New Jersey. In that respect he also consulted at least two real estate agencies and
Attorney E. Gustave Greenwald at Passaic, New Jersey, but found no satisfactory
location at that time.
Tn October 1960 President Wasserman inspected a vacant two-story building of
Botany Industries, Inc., at 100 Dayton Avenue, Passaic, New Jersey, previously
occupied by a hospital, and was told by the custodian to negotiate with Frank G.
Binswanger, Inc. (rental agent), in Philadelphia, Pennsylvania. Thereupon, he
ROYAL OPTICAL MANUFACTURING CO., INC. 71
called the Binswanger Agency and discussed the possibilities of removing partitions
and renting the ground floor thereof. Binswanger deferred the matter until the
owner could be consulted, and in the early part of November proposed to remove
the partitions and enter into a 2-year lease. Thereupon, the Respondent posted a
confirming letter on November 10, 1960, enclosed deposit check for $200, and
instructed Binswanger to close the deal through Attorney E. Gustave Greenwald,
625 Main Avenue, Passaic, New Jersey. The Binswanger Agency submitted copies
,of a written lease agreement on November 17, 1960, for a term of 2 years from
December 1, 1960, at $2,700 per annum covering a net monthly rental of $200 plus
estimated electric utility charges of $25 per month, subject to final meter readings.
Respondent returned the signed lease to Binswanger on November 23, 1960; and on
November 30, 1960, Frank G. Binswanger, Inc., as agent for Botany Industries, Inc.,
completed the transaction by returning a fully signed copy of the lease to the Re-
spondent, effective December 1, 1960. Thereupon, Respondent moved its plant
from 16 West 22d Street, New York City, to 100 Dayton Avenue, Passaic, New
Jersey, on December 3, 1960.
Meanwhile, on or about October 13, 1960, all production employees of the
Respondent consisting of Rafael Baquero, Avelino Martinez, Katherine Massenberg,
Israel Ortiz, Jose Ortiz, Maximo F. Ortiz, and Guillermo Vega, signed union
cards authorizing Local 3 to represent them in negotiating all agreements as to
hours, wages, and other employment conditions. The Union filed a representation
petition with the New York State Labor Relations Board (herein called the State
Board) on October 17, 1960. Informal hearings were conducted thereon by an
examiner of the State Board on October 21 and 25, 1960; and the Respondent signed
an agreement for consent election on October 27, 1960. Pursuant thereto an elec-
tion was held by the State Board on November 7, 1960, as a result of which the
Union was unanimously elected as bargaining representative and duly certified as.
such on November 18, 1960.
The Appropriate Unit
By reason of the aforesaid representation election and certification by the New
York State Labor Relations Board, I find that Production, Maintenance and Service
Employees Union, Local 3, is and has been at all times since November 7, 1960, the
exclusive bargaining representative within the meaning of Section 9(b) of the
National Labor Relations Act of Respondent's employees in the appropriate unit
consisting of: All regularly employed production workers, but excluding salesmen,
bookkeepers and plant foremen employed by Royal Optical Manufacturing Co., Inc.,
at West 22d Street, New York City (now Passaic, New Jersey).'
B. Interference, restraint, and coercion
Several witnesses for the General Counsel (Robert A. Baquero, Rafael Baquero,
Katherine Massenberg, Avelino Martinez, and Guillermo Vega) credibly testified in
substance that preceding the election of November 7, 1960, President Wasserman on
two separate occasions assembled his employees in the plant and importuned them
to abandon the Union by promising them an increase in wages plus hospitalization
insurance benefits without the expense of paying union dues and fees. At the same
time he inquired of the group, and interrogated certain individuals within the group,
whether and why they wanted a union to represent them.
Robert A. Baquero, shop foreman from 1954 until resignation on March 10, 1961,
credibly testified in substance also that President Wasserman requested him to talk
to the employees, to persuade them not to join the Union, and to find out who was
trying to bring the Union in.
Rafael Baquero (employee) credibly testified in substance also that Foreman
Robert A. Baquero (his brother) talked to him and other employees during the
lunch hour in the shop; said that "if the Union comes in things are going to be tough
on you, you will be wasting money on dues"; and "when business gets slow you will
be the first to be laid off"; that President Wasserman was willing to give them
hospitalization benefits and an increase in pay, but did not want a union; and that
President Wasserman himself on one occasion told him that he knew who was trying
to bring in the Union, and suggested getting rid of Guillermo Vega.
Katherine Massenberg (shipping clerk) credibly testified- in substance also that
Foreman Robert A. Baauero talked to her about the Union on at least two occasions,
saying that President Wasserman had been urging him to talk to the employees about
' I further find under the circumstances of this case that removal of Respondent's plant
to Passaic, New Jersey, did not alter or revoke the Union's representation status
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it; that he was "worried about us"; that "we did not need the Union, and would be
better off without that extra expense."
C. Refusal to bargain
Following the representation election, President Robert Wasserman went to the
union office on or about November 9, 1960, to confer with President Alfred Cavallaro.
At that meeting Cavallaro proposed (1) an overall wage increase of $5 per week;
(2) hospitalization benefits for all employees and their families; (3) seven paid
holidays each year; (4) 2 weeks' vacation annually for workers employed more than
3 years; and (5) 2 days' leave of absence for sickness each year. Wasserman replied
that Respondent could not afford it, mentioned the fact that he was trying to find
a more economical location for his plant, and insisted on postponing further
negotiations until he consulted his lawyer and accountant. Cavallaro indicated that
he would assist Respondent in finding a new location for the plant. Thereafter, on
or about November 14, 1960, the Union submitted a complete proposal in writing
for a 3-year contract in which the union demands for a wage increase were reduced
to $4 per week, hospitalization benefits limited to individual members, and leave of
absence for sickness omitted. The Respondent made no reply thereto. Thereafter,
on November 22, 1960, President Cavallaro went to Respondent's office at 16 West
22d Street, New York City, and inquired whether Wasserman was ready to sign
the contract. Thereupon, President Wasserman instructed his accountant (Richard
A. Agisin) to show Cavallaro a financial statement of his business. The book-
keeper (Irene Macnow) was present in the office and observed them examining the
books and records. Then Cavallaro and Wasserman went outside into the hallway
for a more private conversation. In the hallway Cavallaro insisted that Respondent
sign the contract, but President Wasserman again postponed negotiations for fur-
ther consideration of the union demands, but made no counterproposals, and did not
inform the Union that Respondent was preparing to sign a lease with the Binswanger
Agency for a new location for the plant in Passaic, New Jersey. This lease was
actually signed and returned to Binswanger on the next day, November 23, 1960.
Having thereafter completed the new lease transaction on November 30, 1960, the
Respondent moved its plant without affording the Union any opportunity to consider
or bargain with respect to the effect thereof upon employees. Respondent's next
contact with the Union occurred on December 5, 1960, when President Cavallaro
called by telephone to again inquire whether President Robert Wasserman had yet
made up his mind to sign the contract. Thereupon, Wasserman told the Union that
the plant had been moved, that everything was in turmoil, and that Respondent was
at that time in no position to consider the matter. Cavallaro replied: "We can get
over to New Jersey and get you. If you don't sign , we are going to turn you over to
the National Labor Relations Board." The Union, thereafter, filed a charge on
December 15, 1960, and Respondent has made no subsequent offers to negotiate an
,agreement.
D. Discrimination against employees
Respondent received a fully executed lease from Frank G. Binswanger , Inc., agent
for Botany Industries , Inc., on or about Thursday , December 1, 1960 . On Friday,
December 2, 1960 , the Respondent began packing and moving operations, and on
Saturday , December 3, 1960 , completely moved its plant to the new location.
Employees worked overtime to accomplish this feat . Perceiving that a move was
taking place, Guillermo Vega (employee ) requested an increase in pay, and upon
Respondent 's refusal , quit his job on Friday , December 2, 1960. All other employees
reported for work at the new plant on Monday , December 5, 1960. On the next
-day (Tuesday ), however , they assembled in a group at the timeclock, and demanded
extra compensation to cover increased transportation expenses in reporting to work
from their homes in New York City. President Wasserman tried to make arrange-
ments for a car pool , and offered to furnish gasoline and pay toll charges across the
Hudson River on a monthly basis, but this plan was not satisfactory to the em-
ployees. He made a separate offer to pay Katherine Massenberg extra compensa-
tion of $3 per week to continue at work , but she refused to accept it. Upon failure
to reach any agreement with the Respondent for increased compensation , all em-
ployees in the bargaining unit, except Maximo F . Ortiz. quit work during the week
ending December 9, 1960 . Of these , Israel Ortiz was rehired on January 13, 1961, at
an increase in wages of approximately $8 per week . Jose Ortiz was rehired on
January 18, 1961 , at an increase of approximately $3 per week . Rafael Baquero,
Avelino Martinez , Katherine Massenberg, and Guillermo Vega have never returned
to work.
ROYAL OPTICAL MANUFACTURING CO., INC. 73
Concluding Findings
Having credited the testimony of witnesses for the General Counsel (Robert A.
Baquero, Rafael Baquero, Katherine Massenberg, Avelino Martinez, and Guillermo
Vega), I find that pending the representation election of November 7, 1960, Presi-
dent Robert Wasserman assembled Respondent's employees on two occasions during
working hours in the plant, interrogated them collectively and individually with
respect to their union activities, and offered them an increase in wages plus hospitali-
zation benefits if they would abandon the Union. At the behest of Wasserman,
Shop Foreman Robert A. Baquero concurrently therewith talked to employees in
the plant, telling them that the Respondent was willing to give them hospitalization
benefits and an increase in wages, but did not want a union, and that they would
be better off without one. I find, therefore, that Respondent in and after October
1960 by promises of reward and threats of reprisal interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.
From a preponderance of the evidence it is clear, and I find that Respondent at
all times on and after November 9, 1960, by pleas of financial hardship deliberately
postponed and thwarted negotiations with the Union as bargaining representative of
its employees, and by concealing preparations to move its plant to New Jersey
failed and refused to afford the Union an opportunity to bargain with respect to the
effect it would have on the working conditions of the employees involved. When
removal of the plant was completed, Respondent dealt directly and individually
with its employees with respect to their demands for increased compensation in
flagrant derogation of their exclusive bargaining representative concerning matters
properly the subject of collective bargaining; and on December 5, 1960, refused to
further negotiate with the Union concerning a collective-bargaining agreement. I
find, therefore, that Respondent at all times on and after November 9, 1960, refused
to bargain in good faith with Production, Maintenance and Service Employees
Union, Local 3, as the duly designated, certified, and exclusive representative of its
employees in the appropriate unit with respect to wages, hours, and other terms
and conditions of employment or the negotiation of an agreement with respect
thereto.
By reason of expressed intentions by the Respondent prior to advent of the
Union, and the patent advantages and desirability of obtaining a more economical
and suitable location for its plant, I am not convinced that the removal on Decem-
ber 3, 1960, was motivated by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to discourage membership in a labor
organization in violation of Section 8(a)(3) of the Act. I am convinced, how-
ever, that other concurrent unfair labor practices of the Respondent, found herein,
created undue hardships and caused its employees to quit work. By reason thereof
a proper remedy will be provided.2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondent set forth in section III, above, occurring in connec-
tion with the activties of the Respondent described in section I, above, has a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tends to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent interfered with, restrained, or coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, and refused
to bargain in good faith with their exclusive bargaining representative with respect
to wages, hours, and other terms and conditions of employment and the negotiation
of an agreement with respect thereto, it will be recommended that Respondent cease
and desist from such unfair labor practices, and take certain affirmative action de-
signed to effectuate the policies of the Act.
Finding that Respondent imposed undue hardship upon its employees by moving
its plant without notice to or affording their bargaining representative an opportunity
to bargain with respect to the effect upon working conditions, I shall recommend
that Respondent, upon individual application, offer to those employees, who have
not already returned to work, immediate and full reinstatement to their former or
equivalent positions, without prejudice to their seniority and other rights and
privileges of employment, dismissing, if necessary, any persons since hired to replace
them, and forthwith bargain in igood faith with the Union as bargaining representa-
2 See Brown Truck and Trailer Manufacturing Company, Inc, at al, 106 NLRB 999 ;
Jack Lewis, at al , d /b/a California Footwear Company, 114 NLRB 765.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
five for all employees in the unit herein found to be appropriate with respect to
wages, hours, and other terms and conditions of work, including any differential in
.wages caused by Respondent moving its plant on December 3, 1960 , without af-
fording said Union an opportunity to bargain with respect to its effect upon the
working conditions of such employees.
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. Production , Maintenance and Service Employees Union , Local 3 , is a labor
-organization within the meaning of Section 2 ( 5) of the Act.
2. All regularly employed production workers, excluding salesmen , bookkeepers,
and plant foremen , employed by Royal Optical Manufacturing Co., Inc., at Passaic,
New Jersey , constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(c) of the Act.
3. At all times since November 7, 1960 , the aforesaid Union has been and now is
.the duly designated and exclusive bargaining representative of all employees in the
aforesaid appropriate unit within the meaning of Section 9 ( a) of the Act.
4. By interrogating its employees concerning their union affiliations , promising re-
wards and threatening reprisals to induce them to abandon membership in the
Union , the Respondent interfered with , restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, thereby discouraging mem-
bership in a labor organization in violation of Section 8(a)(1) of the Act.
5. By postponing negotiations, concealing preparations to move its plant to Pas-
saic, New Jersey , not affording an opportunity for their bargaining representative
to bargain with respect to the effect thereof upon working conditions of its em-
ployees, thereafter dealing directly and individually with such employees in deroga-
tion of their bargaining representative with respect to subjects of collective bargain-
ing, and refusing to discuss and negotiate a collective -bargaining agreement, the
Respondent refused to bargain collectively within the meaning of Section 8(a)(5)
and (1 ) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
'Comptometer Corporation and International Union of Electrical,
Radio and Machine Workers, AFL-CIO, Local 1198, Petitioner.
Case No. 13-RC-1095. January 8, 1962
SECOND SUPPLEMENTAL DECISION AND ORDER
On September 20, 1950, the Board issued a Supplemental Decision
-and Certification of Representatives in the above-entitled proceeding,
in which the Petitioner was certified as the bargaining representative
of the production and maintenance employees at the Employer's plant
located at 1735 N. Paulina Street, Chicago, Illinois. On April 25,
1961, the International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, and its Local 1198, filed a motion to amend certifica-
tion to provide for inclusion in the certified unit of the production
and maintenance employees at the Employer's 5600 Jarvis Avenue
plant in Niles, Illinois. The Petitioner contended, generally, that
-commencing in 1960, certain of the Employer's operations were trans-
ferred from the Chicago plant to the Niles project, and that the Niles
operation constituted an accretion to the unit represented by it. In
response thereto, the Employer filed a statement of its position in
135 NLRB No. 15.