Titmus Optical Co.

National Labor Relations Board - Board Decisions

Nov 21, 1938

9 N.L.R.B. 1026 (N.L.R.B. 1938)

In the Matter of TIT31US OPTICAL COMPANY and OPTICAL WORKERS
UNION, LOCAL No. 20682
Case No. C-716.-Decided November 01, 1938
Ophthalmic Lens Manufacturing Industry-Interference, Restraint , and Coer-
cion: distribution to employees of letters evincing antipathy to union ; anti-union
statements ; surveillance of union meeting ; threat to close and closing plant to
discourage union activity-Discrimination: discharges , for union membership
and activity ; charges of , not sustained as to four persons-Reinstatement
Ordered: discharged employees-Back Pay: awarded discharged employees.
Mr. Jacob Blum, and Mr. Herbert 0. Eby, for the Board.
Plummer di Bohannan, by Mr. J. Gordon Bohannan, of Petersburg,
Va., and Mr. R. E. Cabell, of Richmond, Va., for the respondent.
Mr. A. George Koplow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On November 15, 1937, E. J. Shave, organizer for Optical Workers
Union, Local No. 20682, herein called the Union, filed charges with
the Regional Director for the Fifth Region (Baltimore, Maryland),
alleging that Titmus Optical Company, Incorporated,' Petersburg,
Virginia, herein called the respondent, had discharged and refused to
reinstate 10 named employees because they joined- and assisted the
Union, thereby engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (3) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On December 20,
1937, the National Labor Relations Board, herein called the Board, by
said Regional Director, issued its complaint which, with respect to
the unfair labor practices, alleged in substance (1) that the respond-
ent discharged and refused to reinstate James E. Hargrave, Virgie
Caudle, J. A. Rideout, Elmer M. Traylor, Robert L. Compton, Otis N.
Weatherford, Charles W. Morris, James T. Dillard, Richard Hart-
land Kirkland, and Joseph Davis 2 because they joined and assisted
1 Incorrectly designated as "Titmus Optical Company " in the pleadings
2 Janes E Hargrave , Richard Hartland Kirkland , and Joseph Davis were incorrectly
designated as James E. Hargrove, Richard Kirkland , and J F. Davies , respectively.
9 N. L. R. B., No. 94.
1026
DECISIONS AND ORDERS 1027
the Union ; and (2 ) that the respondent intimidated , restrained, and
coerced its employees and in other ways attempted to prevent them
from-joining a labor organization of their own choosing. .
The complaint and accompanying notice of hearing were duly
served upon the respondent and the Union . On December 28, 1937,
the respondent filed an answer to the complaint denying that it had
engaged in the unfair labor practices alleged therein , and denying
that the acts alleged in the complaint had a close , intimate , and sub-
stantial relation to interstate commerce. Accompanying the answer
was a motion (1) for a bill of particulars with respect to the allega-
tions of the complaint that the respondent had by acts other than
the discharges, interfered with the self-organization of its employees ;
and (2 ) for the dismissal of the complaint in so far as it contained
such allegations. The grounds for such motion were, first, that the
charges were vague and indefinite , and second , that these allegations
of the complaint were not based upon any charges filed with the
Regional Director . The respondent also filed a motion to dismiss
the complaint for the reason that the complaint averred that the
charges had been filed by the Union , whereas, in fact, they had been
filed- -by an organizer of the Union.
Pursuant to the notice, a hearing was held in Petersburg, Virginia,
on January 6, 7, and 8, 1938, before Earl S. Bellman, 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 conclusion of the hearing the record
was left open and depositions were taken before notaries public in
Henderson , North Carolina, on January 12, 1938, and in Petersburg,
Virginia, on January 13, 1938.
At the beginning of the hearing the Trial Examiner granted with-
out objection the motion of counsel for the Board that the complaint
be dismissed in so far as it alleged the discriminatory discharges of
J. A. Rideout, Elmer M. Traylor, and Charles W: Morris. At the
same time the Trial Examiner denied the motions of the respondent
which had been previously filed, as described above. Both at the
end of the Board's case and at the conclusion of the hearing the
respondent moved to dismiss the complaint on the ground that the
evidence did not support the charges and that the Board's jurisdic-
tion had not been established. The Trial Examiner reserved ruling
on this motion until the issuance of his Intermediate Report.
Thereafter the Trial Examiner filed his Intermediate Report, dated
June 13, 1938, in which he found that the respondent had engaged
in and was engaging in the unfair labor practices alleged in the
complaint , except that he recommended the dismissal of the complaint
134068-39-vol ix--66
1028 NATIONAL LABOR RELATIONS BOARD
in so far as it alleged the discriminatory discharges of James T.
Dillard, Robert L. Compton, and Otis N. Weatherford. The Trial
Examiner further denied the respondent's motions upon which he had
reserved rulings at the hearing. The respondent thereafter filed
exceptions to the Intermediate Report and to various rulings of the
Trial Examiner. Upon request of the respondent, 'a hearing was
held before the Board in Washington, District of Columbia, on
August 2, 1938, for the purpose of oral argument. The respondent
and the Union were represented and participated in the argument,
which included discussion both of procedural matters and the merits
of the case. The respondent likewise filed a brief which the Board
has considered. The Board has also considered the exceptions to the
Intermediate Report and, in so far as they are inconsistent with the
findings, conclusions, and order set forth below, finds them to be
without merit. The Board has also reviewed the rulings of the Trial
Examiner on motions and on objections to the admission of evidence
and, except for rulings on the matters discussed below, finds that no
prejudicial errors were committed. In all other respects the rulings
are hereby affirmed.
In its exceptions the respondent, inter alia, excepted to the Trial
Examiner's denial of its motions to dismiss the complaint for the
reason that the allegations of unfair labor practices contained
therein, except for the alleged discriminatory discharges, were not
supported by any averments contained in the charges. On August
12, 1938, the Board, having reviewed the proceeding and finding
merit in the above exception of the respondent, issued an order re-
opening the record for further proceeding and authorizing the
Regional Director to accept amended charges and to issue an amended
complaint.
On September 7, 1938, the Union filed with the Regional Director
amended charges alleging the discriminatory discharge of the 10
employees named in the original charges and further averring that
the respondent had engaged in other activities constituting unfair
labor practices within the meaning of Section 8 (1) of the Act. On
September 15, 1938, the Board, by it's Acting Regional Director for
the Fifth Region, issued its amended complaint. The amended com-
plaint, in addition to reciting in substance the allegations of the
original complaint, further charged that on or about May 13, 1937,
the respondent caused to be distributed in its plant literature calcu-
lated to interfere with, restrain, and coerce the employees in the exer-
cise of the right to join a labor organization of their own choosing,
and in other ways interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed under Section 7 of the
Act.
DECISIONS AND ORDERS 1029
The amended complaint and accompanying notice of hearing were
duly served upon the respondent and the Union. Thereafter the re-
spondent filed an answer to the amended complaint denying that it
had engaged in the unfair labor practices alleged therein, and deny-
ing that the acts alleged in the amended complaint had a close, inti-
mate, and substantial relation to interstate commerce.
On September 26, 1938, the attorneys for the respondent and for
the Board filed with the Board a stipulation which, subject to ap-
proval by the Board, provided that the amended charge and com-
plaint be regarded as having been substituted for the original charge
and complaint, and that the parties treat as the complete record in this
case all the testimony and depositions taken and the exhibits filed pur-
suant to the hearing on the original charge and complaint. This
stipulation is hereby approved.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Titmus Optical Company, Incorporated, is a Vir-
ginia corporation with its office and plant in Petersburg, Virginia. It
is engaged in the manufacture, moulding, grinding, polishing, and sale
of ophthalmic lenses. Employing approximately 600 persons on a
weekly pay roll of about $10,000, it ranks among the first four manu-
facturers of ophthalmic lenses in the United States.
Of the raw materials used by the respondent, glass and rouge are
obtained principally from Pennsylvania, although some of the glass
is procured from Germany. Emery is obtained principally from New
York and Massachusetts, and pitch from New Jersey. The respond-
ent manufactures some 2,000,000 pairs of glasses annually, valued at
approximately $1,000,000. Approximately 95 per cent of the finished
products are shipped outside the State of Virginia.
H. THE UNION
Optical Workers Union, Local No. 20682, is a labor organization
affiliated with the American Federation of Labor, admitting to its
membership employees of the respondent and employees of another
lens manufacturer in the vicinity of Petersburg, Virginia.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union's organizational campaign among the respondent's em-
ployees began in the spring of 1937 and reached its height on May
15, 1937, when the charter of the local was installed and some 250
1030 NATIONAL LABOR RELATIONS BOARD
employees of the respondent became members. During this period of
union activity the respondent engaged in a course of conduct intended
to discourage its employees from joining or remaining members of the
Union.
On or about May 13, foremen in the plant distributed to each of
the workers a multigraphed letter on the respondent's engraved sta-
tionery, addressed to the respondent's employees and signed "Titmus
Optical Company, Incorporated, By : E. H. Titmus." Purporting to
be an explanatory statement of the National Labor Relations Act, the
letter defined certain rights of the employees under the Act and, con-
tinued as follows :
... you should bear in mind, first, That You Are Not
Required to Join Any Labor Union or Employee Representa-
tion Plan or Company Union, and You Are Not Required to
Bargain Collectively, but That You Have the Right to Deal With
the Management of This Company Directly, and the Management
Will Be Glad to Discuss With Any Employee Any Actual or
Supposed Grievances Which He May Have ...
It concluded with the statement that
The management believes that most of its Employees Are Loyal
and It Wishes to Assure Such Employees That It Will Continue
to Deal Fairly With Them in the Future as It Has in the Past and
to Protect Their Interests as Best It Can. It Asks Your Con-
tinued Loyalty and Support.
It is apparent that this letter presented a distorted description of
the Act and its purposes. Although purporting to define employees'
rights under the Act, it emphasized the fact that they were not re-
quired to avail themselves of such rights and that individual bar-
gaining would satisfy the respondent. The final plea for "continued
loyalty" left no doubt of the respondent's hostility to the Union.
Under the circumstances, the letter constituted an infringement upon
the right of the respondent's employees to self-organization free from
the respondent's interference.3
The respondent's secretary-treasurer and general manager, Titmus,
further voiced the respondent's antipathy to union organization.
On or about May 13, he told Hargrave, a union employee who was
later discharged, that he did not mean to submit to a union, that he
intended to operate his factory as he saw fit, and that he would
operate the plant to his own satisfaction or close it. until it fell to the
ground. Titmus' own version of the conversation was : "before I would
stand for what was going on in that plant ... I would close up the
3Matter of Elkland Leather Company and National Leathery Woihe,s' Association,, Local
No 37,8N. L. R B 519
DECISIONS AND ORDERS 1031
plant and it could stand there and rot down." Titmus frankly ad-
mitted at the hearing that he was opposed to union organization
and that he was disappointed with his employees for their union
activity : "I thought last year at this time that I had one of the most
loyal bunches of people."
On the evening of May 15,1937, the Union held a meeting at the Odd
Fellows Hall in Petersburg for the purpose of installing its charter.
The record shows that on that evening the respondent maintained
a close surveillance of the hall in order to identify the employees
who attended. Titmus, Plant Manager Haering, and two foremen,
Cain and Davis, stood across the street from the hall during the
evening and watched the employees who entered. Titmus admitted
that he was present "to maybe get an idea as to who might be
interested in forming a union." Neither Cain nor Davis, both of whom
testified, denied their participation in the surveillance. It is plain
that such surveillance by supervisory employees was intended to dis-
courage the workers from attending the meeting. The intimidating
effect upon employees who were required to pass the inspection of the
respondent's officials before attending the union meeting requires no
elucidation.
On Monday, May 17, the first working day after this meeting, a
brief notice was posted over the time clock in the plant announcing
that the plant would close that night until further notice, that em-
ployees would be notified when they were needed, and that checks
for wages would be mailed to them. No explanation of the closing
was given in the notice, although such a shut-down was an unusual
event. The plant remained closed for approximately 7 weeks.
At the hearing Titmus explained that the shut=down was for the
purpose of making necessary alterations and installations of equip-
ment which had been planned as early as March 25, 1937. While it
is possible that the plant was closed for the purpose of making re-
pairs, it seems hardly likely, under the circumstances, that the
respondent would have suspended operations without any warning,
at the precise time it did, unless there were some other motive in its
actions. Following immediately after the installation meeting of
the Union and at the end of its successful organization campaign,
and viewed in the light of Titmus' above-mentioned threat that he
would close the plant before he "would stand for what was going on,"
the sudden shut-down without prior warning to the employees raises
a strong inference that the respondent thereby intended to discipline
its employees for their failure to heed the respondent's advice and
renounce the Union. We find that the closing of the respondent's
plant on May 17, 1937, was timed and utilized by the respondent to
counteract the organizational campaign of the Union.
1032 NATIONAL LABOR RELATIONS BOARD
We find that the respondent, by the activities described above, has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The discharges
James E. Hargrave started to work for the respondent in 1933 or
1934. His first job in the plant consisted of running blanks. He
performed efficiently this work as well as the work of making blocks
for countersinks, to which he later was assigned. At the time of his
discharge on July 21, 1937, Hargrave was employed as a semi-finisher,
a job that required greater skill than his earlier assignments and was,
in the nature of a promotion. Hargrave joined the Union on May 8,
1937. The following week, when the Union's membership campaign
was at its height, Haering reported to Titmus that Hargrave and
two others were leaders in organizational activities in the bifocal
department, where most of the organizational work in the plant was
taking-place and where such organizational work was causing con-
fusion. Titmus admitted that he "proceeded to bawl all three of
them out." Clearly Titmus and Haering had knowledge that Har-
grave was an active union protagonist. Moreover, as described
above, Titmus had expressed his opposition to the Union to Hargrave
on May 13. Hargrave was discharged on July 31, 1937, allegedly for
inefficiency, after a year and a half of work as a semi-finisher.
The respondent contends that although Hargrave's work compared
well in quality with that of others in his department, he was a slower
worker. To prove that Hargrave was inefficient the respondent intro-
duced in evidence detailed comparative work records for the months
of February, March, April, May, and July, 1937, which in fact show
that during those months Hargrave's production was lowest in quan-
tity among the men in the department. An analysis of the work
records, however, does not sustain the respondent's contention that
Hargrave was inefficient. It is admitted that the records do not make
allowance for "special" work which slowed down the production of
the operators who were assigned to such work. Nor do the records
indicate the days on which an employee's production had been slowed
down because he had a particularly hard type of glass with which
to work. Indeed, Willie Lane, who inspected his work, testified that
on July 21, the date of Hargrave's discharge, the glass with which
Hargrave had to work was hard, making the work more difficult,
and that he "didn't see how he [Hargrave] could have got his
production."
Furthermore, it is significant that Hargrave was retained on the
same job for a year and a half, and at the time of his discharge he
was earning the highest wages paid in his department. Production
DECISIONS AND ORDERS 1033
records show also that for the period from February through May
1937 Hargrave was given more full days of work than any other man
in his department. The respondent offered no explanation to resolve
the apparent inconsistency in the assignment to an inefficient work-
man of the bulk of the work in a department, nor did it explain the
fact that he was paid the highest wage rate in the department.
We are convinced that Hargrave was discharged not because of
his alleged inefficiency but because of his activity on behalf of the
Union. We find that by discharging James E. Hargrave the re-
spondent has discriminated with respect to his hire and tenure of
employment, thereby discouraging membership in the Union and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
At the time of his discharge Hargrave was earning 421/2 cents
per hour. Since his discharge he has earned approximately $60. At
the time of the hearing he was employed as night watchman for
another company. Hargrave has not obtained regular and substan-
tially equivalent employment and he desires reinstatement to his
former position with the respondent.
Virgie Caudle started to work for the respondent in August 1936,
cleaning rough lenses. She was later transferred to the job of in-
specting, and about 2 months before her discharge she was assigned
to putting bands around packages of finished lenses and stamping
the item numbers thereon, preparatory to shipment. She joined the
Union in May 1937 but never became active in it except for register-
ing a complaint with the president of the Union a few days prior
to her discharge. Foreman Cain discharged her on August 5, 1937,
for talking and inefficiency.
The record shows that Caudle was inclined to be talkative and
that she had been reprimanded several times for talkativeness and
for being inattentive to her work. Furthermore, the evidence estab-
lishes that she made frequent errors in her work which had been
called to her attention on several occasions. On the day of her dis-
charge she had mismarked some lenses, requiring about 2 hours of
extra work to rectify the error. Later in the day she was seen turned
away from her workbench talking to fellow employees for at least
5 minutes. It was this incident which precipitated her discharge.
We are of the opinion that the evidence does not support the alle-
gation that Virgie Caudle was discharged because of her union
activity. We find that the respondent has not discriminated in re-
gard to the hire or tenure of employment of Virgie Caudle for the
purpose of discouraging membership in the Union.
James T. Dillard, Robert L. Compton, and Otis N. Weatherford
had worked for the respondent some 18 months, 13 months, and 9
weeks, respectively, at the time of their discharge. Compton and
1034 NATIONAL LABOR RELATIONS BOARD
Dillard joined the Union in May and Weatherford joined in Septem-
ber 1937. Although there is evidence that the respondent knew that
all three were union members, the only one who was active in the
Union was Dillard, who had solicited memberships and who had filed
a complaint which the shop committee had taken up with the man-
agement. These three men, with two other union members, Morris
and Traylor, operated a group of seven polishing machines. Titmus
discharged all five men on November 10, 1937, because he believed
that one of them was responsible for certain deliberate damage that
had been done in the plant.
On the morning of November 9, 1937, Foreman Petzold discovered
that lenses had been scratched on six of the seven polishing machines
on which and near which these five union members performed their
work in the plant. It was the opinion of all the witnesses that the
damage had been done deliberately either while the polishing ma-
chines were in operation or before the lenses were placed on the
machines for polishing. The scratches could have been made by any
of the five men discharged, by someone on the night shift who had
worked on these machines and lenses the preceding night, or by any
one of several supervisory employees working in and near the
department.
Eanes, manager of this section of the plant, reported the incident
to Titmus' son, who told his father about it. Titmus called the five
polishers into his office and informed them that one of them was
guilty, that if the saboteur confessed, he and the others could all go
back to work, but that if no one confessed they all would be dis-
charged. When none admitted responsibility for the damage, Tit-
mus discharged all five, later reemploying Morris and Traylor.
No thorough investigation as to the cause of the damage was ever
made, nor were the night crew or others who might have caused the
damage questioned. The evidence does not warrant the conclusion
that any of the five men discharged actually were responsible for
the damage. It is apparent from the record, however, that Titmus
believed that one of the five had committed the act when he dis-
charged them. Although he may have been mistaken in his belief,
the record does not establish that Titmus discharged them for any
reason other than his belief. We find that the respondent has not
discriminated in regard to the hire or tenure of employment of
Robert L. Compton, James T. Dillard, and Otis N. Weatherford for
the purpose of discouraging membership in a labor organization.
Richard Hartland Kirkland and Joseph Davis.-Kirkland started
to work for the respondent in November 1936, washing emery off
semi-finished glass, which work he continued to do until his discharge.
Davis started to work for the respondent in April 1932. After 6
DECISIONS AND ORDEfIS 1035
months at unskilled work he was shifted to the semi-skilled job of
countersink polishing. He performed this work steadily until the
date of his discharge except for two short periods when he did not
work for the respondent. Both men joined the Union during its
organizational drive in May 1937. They were discharged on Novem-
ber 11, 1937, allegedly for calling a fellow employee a "rat" and for
using obscene language toward him.
During the night shift on November 5, 1937, Kirkland, a union
member, called Clements, a non-union man, a "rat." Clements re-
plied by using obscene language toward Kirkland and then reported
the incident to his shift foreman, Stewart, saying that Kirkland had
called him obscene names. Stewart warned Kirkland not to repeat
his actions. Later in the same evening, after Kirkland told Davis
that Clements had spoken to the foreman, Davis called Clements a
"rattish bastard" and Clements again retorted with a burst of pro-
fanity. Clements reported Davis' derogatory epithet to Stewart, but
Stewart did not speak to Davis about it. Stewart, however, reported
the incident to his supervisor, Alex Davis, on the following day, and
the latter told Plant Manager Haering about it a few days later.
Haering spoke to Kirkland and Joseph Davis, received the explana-
tion that it was all a joke, and sent them back to work. Haering
reported the occurrence to Titmus, who dismissed Kirkland and Davis
on November 11. Clements was not discharged. In the 6 days inter-
vening between the time of the incident and the discharges, none of
the supervisors had recommended that disciplinary action be taken,
nor did any of them state at the hearing that they felt the occurrence
merited discharge. The record does not show any repetitions of the
incident or any repercussions from it in the 6-day interval.
The respondent denies that it had knowledge of Kirkland and
Davis' union affiliation. Haering admitted on the stand, however,
that "as long as they called him -a `rat' I surmised that they must
have been union men." Although Titmus denied that he knew they
were union members, Robinson, president of the Union, testified that
he had had a conversation with Titmus in July 1937, in which Tit-
mus had said, "I have evidence you made a statement that anybody
who didn't join your union was a yellow rat." This testimony re-
mained uncontradicted. Under the circumstances, Titmus' denial
of knowledge of Kirkland and Davis' union affiliation cannot be
credited.
The respondent maintains that by the discharges it was merely en-
forcing a regulation against using obscene language in the plant.
Nevertheless, Shift Foreman Stewart testified that swearing is heard
generally throughout the plant, that instances of an employee curs-
ing another have occurred, but that to his own knowledge on no oc-
1036 NATIONAL LABOR RELATIONS BOARD
casion was anyone discharged for using obscene language toward a
fellow employee. None of the other supervisory officials cited any
previous case as precedent for the discharges.
The respondent further contends that Davis on a previous occasion
had been discharged for swearing at and fighting with a foreman.
However, the record shows that he was offered his job back sometime
afterward. In the instant case his offense was less serious. No
fighting or interruption of work resulted from the incident, and
plant operations were not interrupted in any way. Even Clements
admitted that his work had not been interfered with. Kirkland
and Clements were still in their teens, and Davis was a young man.
No criticism was made concerning the work of the two discharged
men. Their immediate supervisors apparently considered the entire
brief incident a petty quarrel such as might arise occasionally among
any young employees.
An employer has a right to discharge an employee for using obscene
language in his plant if he sees fit to do so. The Act is not designed
to deprive him of such rights. In view of the above facts, however,
it is our opinion, and we find, that Titmus seized this incident as a
pretext for discharging Kirkland and Davis when his real purpose
in making the discharges was to discourage membership in the Union.
We find that by discharging Richard Hartland Kirkland and Joseph
Davis the respondent has discriminated with respect to their hire and
tenure of employment, thereby discouraging membership in the
Union and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The record does not indicate what wage Kirkland and Davis were
earning at the time of their discharge. Since their discharge Kirk-
land and Davis have worked only at occasional odd jobs. Kirkland
had earned $7.15, and Davis had earned $7.89, up to the time of the
hearing. Neither has obtained regular and substantially equivalent
employment elsewhere and both desire reinstatement to their former
positions with the respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent 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.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from further
DECISIONS AND ORDERS 1037
engaging in such practices and to take certain affirmative action
which we deem necessary to effectuate the purposes of the Act.
Since we have found that James E. Hargrave, Richard Hartland
Kirkland, and Joseph Davis were discriminatorily discharged, we
shall order the respondent to offer them reinstatement without preju-
dice to their seniority and other rights and privileges. We shall
further order the respondent to make them whole for any loss of
pay they have suffered by reason of their respective discharges by
payment to each of them of a sum equal to the amount which he
normally would have earned as wages from the date of his discharge
to the date of the offer of reinstatement, less his net earnings 4 during
said period. We shall not order the respondent to award back pay
to its employees who were locked out on May 18, 1937, since it is im-
possible to determine from the record the extent to which the period
of the shut-down was attributable to business reasons rather than
to the respondent's desire to discourage union activity.5
Upon the basis of the foregoing findings of fact and upon the en-
tire record in the case, the Board makes the following :
CONCLUSIONS of Law
1. Optical Workers Union, Local No. 20682, is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of James E. Hargrave, Richard Hartland Kirkland, and
Joseph Davis, thereby discouraging membership in the Union, the
respondent has engaged in and is engaging in an unfair labor prac-
tice, within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Net, with respect to Virgie
Caudle, J. A. Rideout, Elmer M. Traylor, Robert L. Compton, Otis
N. Weatherford, Charles W. Morris, and James T. Dillard.
4 By "net earnings " Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B. 440.
5 See Matter of Leo L. Lowy, individually , doing business as Tapered Roller Bearing
Corporation and International Association of Machinists , District No 15, 3 N. L. R. B. 938.
Matter of American Radiator Company, a corporation and Local Lodge No 1770 , Amalga-
mated Association of Iron, Steel and Tin Workers of North America , affiliated with the
Committee for Industrial Organization , 7 N. L R . B 1127.
1038 NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Titmus Optical Company, Incorporated, Petersburg,
Virginia, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Optical Workers Union, Local
No. 20682, or any other labor organization of its employees, by dis-
charging any of its employees, or in any manner discriminating in
regard to hire or tenure of employment or any term or condition of
employment;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to James E. Hargrave, Richard Hartland Kirkland,
and Joseph Davis immediate and full reinstatement to their former
positions without prejudice to their seniority or other rights and
privileges ;
(b) Make whole James E. Hargrave, Richard Hartland Kirk-
land, and Joseph Davis for any loss of pay they have suffered by
reason of their respective discharges by payment to each of them,
respectively, of a sum of money equal to that which he would nor-
mally have earned as wages during the period from the date of
his discharge to the date of the offer of reinstatement, less his net
earnings during said period;
(c) Post immediately in conspicuous places in its plant at Peters-
burg, Virginia, and maintain for a period of at least thirty (30)
consecutive days, notices to its employees stating that the respondent
will cease and desist in the manner aforesaid;
(d) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
And it is further ordered that the complaint, in so far as it al-
leges that the respondent has engaged in unfair labor practices with-
in the meaning of Section 8 (3) of the Act, with respect to Virgie
Caudle, J. A. Rideout, Elmer M. Traylor, Robert L. Compton, Otis
N. Weatherford, Charles W. Morris, and James T. Dillard, be, and
it hereby is, dismissed.