Shuron Optical Co., Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1939

11 N.L.R.B. 859 (N.L.R.B. 1939)

In the Matter of SHURON OPTICAL COMPANY, INC. and ALBERT L.
LUDRICK
Case No. C-494.-Decided March 2, 1939
Optwal Lens and Frame Manufacturing Industry--Interference, Restraint,
and Coercion : charges of, dismissed-Discrimination : charges of , dismissed-Res
Adjudicata : withdrawal of charges in former case, as.
Mr. John J. Dorsey, for the Board.
Harris, Beach, Folger, Bacon, and Keating, by Mr. Charles S. Wil-
cox, of Rochester, N. Y., for the respondent.
Mr. Lester Asher, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Albert L. Lud-
rick, the National Labor Relations Board, herein called the Board,
by Henry J. Winters, Regional Director for the Third Region (Buf-
falo, New York), issued its complaint dated February 19, 1938,
against Shuron Optical Company, Inc., Geneva, New York, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce with-
in the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act.
The complaint alleged in substance that the respondent, on or
about August 25, 1937, terminated the employment of Albert L.
Ludrick because of his membership and activity in the American
Federation of Labor and thus discriminated in regard to his hire and
tenure of employment to discourage membership in a labor organ-
ization, thereby interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. Copies of the complaint, accompanied by notice of hearing,
and an amended notice of hearing were duly served upon the re-
spondent and upon Ludrick. On February 28, 1938, the respondent
filed an answer to the complaint, denying the alleged unfair labor
practices and averring that "the discharge of Albert Ludrick was
11 N. L. R. B, No. 65.
859
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasioned by his misconduct and failure to properly perform his
work, after warning."
Pursuant to the amended notice, a hearing was held at Geneva,
New York, on March 2, 1938, before Mark De Wolfe Howe, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. At the commencement of the hearing counsel
for the respondent objected to proceeding with the case upon the
ground that subsequent to the discharge of Ludrick it had entered
into a contract with the labor organization of which Ludrick was a
member, Optical Workers Union, Local No. 20890, herein called the
Union, settling all differences between the respondent and the mem-
bers of the Union. The Trial Examiner overruled this objection.
For the reasons set forth below, the Trial Examiner's ruling is af-
firmed. During the course of the hearing the Trial Examiner made
various rulings on objections to the admission of evidence. The
Board has reviewed these rulings and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
At the close of the Board's case and again at the close of the en-
tire case, the Trial Examiner reserved ruling on motions by the
respondent to dismiss the complaint on the ground that the evidence
failed to sustain the charges of unfair labor practices alleged in the
complaint. On March 28, 1938, the Trial Examiner issued his In-
termediate Report which was filed with the Regional Director and
duly served upon all the parties, finding that the respondent had
not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed.
On April 1, 1938, Ludrick filed exceptions to the Intermediate
Report. The parties, although accorded an opportunity to apply
for oral argument before the Board or for permission to file briefs,
made no request therefor. The Board has considered the exceptions
to the Intermediate Report and finds them to be without merit.
Upon the entire record in the case, the Board makes the fol-
lowing :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation engaged in the manu-
facture and sale of optical lenses and frames . It has a manufac-
turing plant at Geneva , New York, where the unfair labor practice
is alleged to have been committed , and one at Rochester , New York.
The respondent has offices in New York City, Massachusetts , Illinois,
Ohio, Michigan, and two each in Pennsylvania and California. Ap-
91ItJRON OPTICAL COMPANY PT AL. 861
proximately 75 per cent of the raw materials used by the respondent
are imported from States other than New York or from foreign
countries and approximately 75 per cent of the finished product is
shipped outside New York. The value of the finished products sold
by the respondent in 1937 totaled approximately $3,000,000.
II. THE ORGANIZATION INVOLVED
Optical Workers Union, Local No. 20890, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the respondent at its Geneva plant.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The ehronology of events
The American Federation of Labor began organizing the em-
ployees at the respondent's Geneva plant in June 1937. As a result
the Union was formed, and during July it made efforts to bargain
collectively with the respondent. The attempts to bargain were
unsuccessful, and at a meeting of the Union held near the end of
July, the members discussed the question whether a strike vote
should be taken.
Albert L. Ludrick, a member of the Union and night fireman at
the respondent's Geneva plant since August 1933, spoke in favor of
calling a strike and said that he did not think the Union should send
its representatives "to fight for us with toy pistols against men
with machine guns." On August 5, 1937, the Union filed charges
with the Regional Director for the Third Region in Case No. III-C-
1481 alleging that the respondent had refused to bargain collectively
with the Union. At a meeting of the Union held on August 23
Ludrick again spoke in favor of calling a strike. He stated that he
"was sick of dilly-dallying around ; they had been holding confer-
ences two or three times a week but were not getting any place, and
the only way we would get any place was by striking." At this
meeting a strike committee was chosen, Ludrick and two other mem-
bers being elected.
Ludrick's working hours were from 11 p. m. to 7 a. m. Shortly
after he started working on August 24, 1937, Leslie J. Poole, a mem-
ber of the Union and the respondent's night foreman of production,
came into the boiler room and told Ludrick to stop talking about
unionism. Ludrick's uncontradicted testimony with respect to
Poole's statements is that "all previous to this he had talked for the
Union but this night he talked against the Union."
At 2: 35 a. m. Ludrick noticed that the water was going down in
the boiler. The water gauge then showed a reading of 6 or 7 inches,
about half full, and the boiler was carrying about 110 pounds of pres-
862 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
sure. Ludrick left the boiler room and went over to the water pumps
which were in another building about 300 feet away. After regu-
lating the pumps for 3 or 4 minutes, he went to the toilet, about 300
feet further on. He then proceeded to the emery department, which
was nearby, in order to find out whether the men were going to
cook emery and would need steam.
One of the men in the emery department told him that William H.
Mathews, day foreman and head of the lens department, was in the
building. Ludrick immediately returned to the boiler room, arriving
there at about 2: 55 or 3: 00 a. m. He had time only to shake the
fire a little when Mathews entered the boiler room and discharged
him. Mathews' uncontroverted testimony as to the discharge is as
follows: "I just told him I was disgusted with him and wanted to
get rid of him and didn't want to have him there any more. I dis-
cussed about his leaving the boiler without any protection, with high
pressure and not too much water." Ludrick answered him, "You are
not kidding me any. I realize what I am being discharged for, and
it is not for leaving the boiler."
Mathews admitted that he went to the plant on the night of
August 24 for the purpose of watching Ludrick's activities without
being observed himself. He testified that on August 20 or 21, 1937,
Poole had complained to him that Ludrick wandered about the plant
after 1:30 a. m. and talked to the men in the emery and finishing
departments, and that as a result of this complaint he went to the
plant to check on Ludrick's activities.
On September 2, 1937, the Union called a strike at the respondent's
plant. On September 3 and on October 7, 1937, amended charges
were filed in Case No. III-C-148, which in addition to the charge
that the respondent had refused to bargain collectively with the
Union, also alleged that Ludrick had been discharged because of his
union activities.
On about October 11, 1937, Oscar W. Harris, assistant to the
County Commissioner of Public Welfare, to whom Ludrick had ap-
plied for relief, inquired of Howard Searles, the respondent's account-
ant, as to why Ludrick had been laid off. The reason which Searles
gave for the dismissal was set forth by Harris on Ludrick's case
record in the following words : "In checking up with Mr. Searles as
to the amount of his earnings and why he was laid off-find that
he was discharged August 8th, 1937, on account of neglecting his
boilers for the purpose of agitating through the factory." At the
hearing Harris testified that this was what Searles had told him.
Searles, on the other hand, testified that Harris had frequently called
upon him for information with respect to persons employed by the
respondent, that he had given Harris the figures as to Ludrick's
earnings, but that he did not remember whether or not he had made
SHURON OPTICAL COMPANY ET AL. 863
the statement concerning the reason for Ludrick's discharge. In -view
of the unbiased character of Harris' testimony, we find that Searles
made the statement which is attributed to him.
On October 20, 1937, the strike was terminated and a contract
was entered into between the Union and the respondent. On Octo-
ber 25 Harry G. Brennan, general representative of the American
Federation of Labor, wrote the following letter to the Board's
Regional Office for the Third Region :
We hereby withdraw the charges filed with your office against
the Shuron Optical Company of Rochester and Geneva, New
York. The original charge in this case was filed August 4, 1937,
and amended charges were filed September 2, 1937, and October
7,1937.
Our reasons for withdrawing these charges are as follows :
(1) The company has agreed to bargain with the American
Federation of Labor and has entered into a signed contract with
the union providing for a preferential union shop, vacations with
pay, 40-hour week, time and a half for over-time, seniority rights,
and a complete revision and readjustment of piece work sched-
ules. We will forward a copy of this contract to your office.
(2) The company has agreed to cease and desist from dis-
couraging membership in the American Federation of Labor or
from interfering with the rights of its employees as guaranteed
in Section 7 of the National Labor Relations Act.
(3) The company has agreed to reinstate in his former posi-
tion Albert L. Ludrick, discharged for his union activities.
This settlement was reached at a conference called by a rep-
resentative of your board on October 18, 1937. I should like to
express at this time the appreciation of myself and my organiza-
tion for the splendid cooperation rendered in this case by the
members of the staff of the Third Region of the National Labor
Relations Board.
The Regional Director consented to the withdrawal of the charges
and on October 29, 1937, closed his files in Case No. III-0-148. How-
ever, Ludrick was never reinstated by the respondent and on Janu-
ary 5, 1938, he filed the charges involved in the present case.
B. The respondent's contention concerning a prior adjudication
At the outset of the hearing the respondent urged that the matters
alleged in the complaint had previously been adjudicated in view of
the agreement between the Union and the respondent and the with-
drawal by the Union of the charges in Case No. III-C-148. The re-
spondent asserted in this regard that the agreement between the
Union and the respondent made no provision for the reinstatement
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Ludrick; that the agreement was made with the understanding
that the charges in regard to Ludrick would be withdrawn; that the
Union and a conciliator representing the United States Department
of Labor had agreed that Ludrick's discharge was justified; and
that the statement that the respondent had agreed to reinstate
Ludrick which was made by the representative of the American Fed-
eration of Labor in his letter of October 25 was inaccurate. Counsel
for the Board stated for the record that after the charges were with-
drawn in Case No. III-0-148, "It has . . . come to the attention
of the Board that the company did not agree to reinstate Mr. Lud-
rick in the negotiations which took place between the Union and the
respondent company."
Section 10 (a) of the Act provides that "The Board is empowered,
... to prevent any person from engaging in any unfair labor prac-
tice . . . affecting commerce. This power shall be exclusive, and
shall not be affected by any other means of adjustment . . . that has
been or may be established by agreement . . ." Accordingly, the
agreement between the Union and the respondent does not constitute
a bar to the present proceedings. Moreover, the Board is not bound
in this case by the Regional Director's dismissal of the allegations
with respect to Ludrick in the former case. No contention based
upon the doctrine of res adjudicata can prevail since the former
case was dismissed before hearing was reached and without op-
portunity for adjudication of the merits. It is to be noted that the
charge with respect to Ludrick in the former case was dismissed
before any complaint was issued and before hearing was reached.
The Board may, of course, in the exercise of its discretion refuse
to disturb the settlement. In Matter of Ingram Manufacturing Com-
pany and Textile Workers Organizing Committee 1 the Board stated :
In a proper case, particularly if the agreement is concluded with
the safeguard of the presence of a governmental representative,
we may exercise our discretion and refuse to disturb the settle-
ment. But we will closely scrutinize all agreements purporting
to settle or compromise charges of unfair labor practices.
Under the circumstances of the present case, we do not believe that
the agreement has effectuated the policies of the Act, and we cannot
therefore withhold action on its account. Moreover, any agreement
between the Union and the respondent whereby the Union agreed to
withdraw the charges of unfair labor practices with respect to Lud-
rick without effectuating his reinstatement was never made known
to the Regional Director in the request for withdrawal of the
charges.
15 N. L. R B 908.
SHURON OPTICAL COMPANY ET AL. 865
C. Conclusions with respect to the alleged discriminatory discharge
of Albert L. Ludrick
The complaint alleges that Ludrick was discharged because of his
union membership and activity. The respondent denies this allega-
tion and contends that the dismissal "was occasioned by his mis-
conduct and failure to properly perform his work, after warning."
On a number of occasions several months before Ludrick's dis-
charge Mathews discussed with the plant engineer and superintendent,
Alfred W. Burnham, the desirability of dismissing Ludrick because
he did not keep his fire and the boiler room in proper condition.
While Burnham agreed that Ludrick showed "a general tendency
towards carelessness," he advised Mathews that "the particular things
that he spoke about . . . were not sufficient to discharge him and
... we would give him another chance." There is no evidence that
Ludrick was ever told of these faults or was ever warned that his
work demanded improvement. Nor was Ludrick advised of the fact
that on August 20 or 21 Poole complained about him for wandering
about the plant. Without giving him any prior admonition, Mathews
discharged Ludrick for being away from his boiler for a period of
20 or 25 minutes on the morning of August 25.
When asked how long it was safe to leave a boiler with 110 pounds
of pressure and with the water gauge about half full, Ludrick ad-
mitted that "according to the rules and regulations it is not safe to
leave it any length of time." He conceded that the water gauge
could break while the boiler was unattended, the water would run
out, and as a result the danger would arise that the boiler might
burst. The plant engineer, Burnham, stated that it is not entirely
safe to leave a steam boiler unattended for any period of time when
it is carrying a pressure of 110 pounds, but that it is reasonably safe
to leave it for not more than 5 minutes. Ludrick attempted to justify
his conduct by showing that in the past he had been ordered to do
work on the emery mills and had left his boiler unattended; that at
other times he did the watchmen's work and rang the time clocks; and
that he had frequently met Mathews in the emery department and
had spoken to him, without complaint, for periods of 10 or 15
minutes. The respondent refuted Ludrick's first two contentions,
however, by showing that he had worked on the emery mills or as
watchman only on week ends when the plant was not in operation and
steam pressure was needed merely for purposes of heating. Ludrick's
assertion that he had frequently talked to Mathews outside the boiler
room for 10 or 15 minutes at a time was corroborated by two em-
ployees of the emery department. However, Mathews testified that
these conversations had taken place in the morning when Ludrick
was off duly. Mathews insisted that any conversations which had
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred during Ludrick's working hours had lasted less than 5
minutes.
Mathews and Beverly Chew, the respondent's executive vice presi-
dent, testified that at the time of the discharge they were not aware
of the fact that Ludrick had spoken in favor of a strike at several
meetings of the Union. Chew stated that he had no reason to
believe that Ludrick "was any different in his union affiliations .. .
than any of the other firemen who worked for the company." The
evidence with respect to Ludrick's importance in advocating the strike
is confused and contradictory. Two employees called as witnesses on
behalf of Ludrick testified that he was the only member of the Union
who openly favored a strike. Several employees called by the
respondent, on the other hand, stated that Ludrick merely made his
remarks from where he sat in the meeting hall and that other mem-
bers of the Union also spoke in favor of calling a strike.
With reference to the statement which we find was made by Searles
that Ludrick was discharged "on account of leaving his boilers for
the purpose of agitating," the respondent contends that it is not
bound by this remark since Searles, as the accountant, did not have
the power to hire or discharge and did not make the statement as a
result of any information which he received from any supervisor
or company official. We find that Searles was held out to be the
proper representative of the respondent for the purpose of furnish-
ing information concerning the respondent's, employees and gave
similar information to Harris on several other occasions. We con-
clude, therefore, that Searles was identified with the management and
that his statement may be regarded as the respondent's statement.
We think on the basis of the foregoing that there is considerable
ground for the suspicion that the respondent in discharging Ludrick
was motivated by his union membership and activity. However,
Ludrick's conduct in remaining away from a high-pressure boiler
for 20 or 25 minutes involved possibilities of great danger to persons
in the plant and to the property of the respondent. Furthermore,
the record does not reveal any prior anti-union conduct on the part
of the respondent, nor da we believe that Ludrick's union activity
was of sufficient prominence to make reasonable the conclusion that he
was chosen to be the object of the respondent's discrimination.
Under all the circumstances of the case., we find that the evidence is
insufficient to justify a finding that Ludrick was discharged because
of his union membership and activity. We find that the respondent
has not discriminated in regard to hire or tenure of employment of
Albert L. Ludrick to discourage membership in a labor organization.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
SB URON OPTICAL COMPANY ET AL.
CONCLUSIONS OF LAW
867
1. The operations and business of the respondent constitute a. con-
tinuous flow of trade, traffic, and commerce among the several SI ates,
within the meaning of Section 2 (6) of the Act.
2. Optical Workers Union, Local No. 20890, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The respondent has not discriminated in regard to the hire or
tenure of employment of Albert L. Ludrick within the meaning of
Section 8 (3) of the Act.
4. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
!awl and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
complaint against the respondent, Shuron Optical Company, Inc.,
Geneva, New York, be, and it hereby is, dismissed.
MR. EDWIN S. SMITH, dissenting :
I do not believe there is warrant in the record for the conclusion
that there is insufficient evidence to justify a finding that Ludrick
was discharged because of his union membership and activity. The
sequence of events surrounding his discharge, leaves little doubt of
the respondent's underlying reason for its action. Undoubtedly
Ludrick was a leading spirit in the union activities and in advocating
the strike. On the night following his election to the strike com-
mittee, Poole came into the boiler room and told him to stop talking
about unionism. Immediately thereafter Mathews came to the plant
for the purpose of watching Ludrick's activities without being
observed himself. Although the respondent has urged that Ludrick
was careless in his work for some length of time, the record is sig-
nificantly silent as to any warning given to him. It is highly un-
likely that Ludrick would have been summarily discharged without
previous warning and opportunity to correct his conduct if the
respondent had not had an additional reason for desiring to be rid of
him. The statement made to Harris by Searles, the accountant,
reflects the attitude of the respondent concerning Ludrick and is an
additional indication of the respondent's motivation in discharg-
ing him.
I consider that the evidence satisfactorily establishes that Ludrick
was discriminatorily discharged because of his union membership
and activity.