Zenith Optical Co.

National Labor Relations Board - Board Decisions

Oct 30, 1943

53 N.L.R.B. 252 (N.L.R.B. 1943)

In the Matter of A. S. POLAN, L. M. POLAN, C. M. POLAN, LAKE POLAN,
JR., AND E. J. POLAN, A PARTNERSHIP, DOING BUSINESS UNDER TI1,7
FIRM NAME OF ZENITH OPTICAL COMPANY I and OPTICAL WORKERS
COORDINATING COMMITTEE, AFFILIATED WITH THE CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. 9-C-1809.-Decided October 30,1943
DECISION
AND .
ORDER
On September 14, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist from the unfair labor,
practices found and take certain affirmative action, as set forth in
the copy of the Intermediate Report annexed hereto, and that, the
complaint be dismissed as to the remaining allegations. Thereafter
the respondents filed exceptions to the Intermediate Report and re-
quested oral argument before the Board in Washington, D. C. On
October 14, 1943, the respondents and the Union participated in oral
argument before the Board. The Board has considered the rulings
made by the Trial Examiner at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby affirmed. The
Board has considered the Intermediate Report, the respondents' ex-
ceptions, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
The Trial Examiner found, and we agree, that the respondents
discriminatorily discharged 11 named employees. In making this
finding, we attach considerable weight to the anti-union statements
and conduct of the respondents commencing prior to and continuing
throughout the period of the discharges. Thus, in January 1943,
prior to the discharge of Eckley, Foreman Dent inquired of employee
Stein "how the union was coming along," Foreman D'Ammato charged
employee Poling with being a "ringleader" of the union movement,
and Foreman King, while agreeing with Poling that employees could
' As amended at the hearing.
53 N. L. R. B., No. 49.
252
`LENIT11 OPTICAL COMPANY 253
riot be discharged for joining the Union, asserted "there are always
other reasons." On January 25, prior to the discharges of Kidd and
Johnson, Foreman Chedester and Grieg discussed the dismissal of
Johnson because of his success in organizing the employees. On
February 5, the date of Smallwood's discharge, Foreman Kinder
warned him, "If you don't get some of those ideas out of your head
you won't last long",and also stated that the Union would never get
a footing in the respondents' plants. A few days later, Foreman
Perry, ' in a conversation with Smallwood, disparaged and belittled
the Union. Following Carney's strongly anti-union speech on Feb-
ruary 9-and Albert Polan's threat on that day to beat up representa-
tives of the Union who were passing out handbills, employees Stein
and Poling were discharged on February 12 and 15, respectively. On
February 20, Foreman Sweitzer tore a union leaflet and threw the
pieces at employee Peyton, saying, "That's what I think of you and
your damned union." Commencing on February 22, employees Pey-
ton, Rudman, Baker, Pribble, and Black were discharged in rapid
succession.
We also attach importance to the failure of the respondents, with
respect to the employees named in the complaint, to adhere to their
policy of granting a hearing to employees before their discharge. In
addition, we deem it significant that, with respect to the discharge
of Kidd, Lenertz, the respondents' acting personnel director, stated
to Kidd, after his discharge, that the respondents did not rehire em-
ployees who had previously been discharged by them, while the un-
controverted testimony shows that the respondents rehired employee
Smallwood after he had been discharged by them, and, with respect
to the discharge of Black, that Moore, who investigated one of Black's
absences on behalf of the respondents, was the mother-in-law of L.
M. Polan, and that, although Moore conducted her investigation on
March 5, 1943, Black was not advised that she was to be discharged
until March 22, 1943 2
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, A. S. Polan, L. M. Polan,
C. M. Polan, Lake Polan, Jr., and E. J. Polan, a partnership, doing
business under the firm name of Zenith Optical Company, Hunting-
ton, West Virginia, and their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Optical Workers Coordinating
Committee, affiliated with,the Congress of Industrial Organizations,
'It is noted that the reference in Albert Polan's testimony (at page 16 of the Inter-
mediate Report ) to an employee with "only one band" Is to Gobel Osborne.
559015-44-vol. 53-18
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or in any other labor organization of their employees, by discharging
or refusing to reinstate any of their employees, or by discriminating
in any other manner with regard to their hire or tenure of employment
or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
their 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 ac-
tivities, for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act. '
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Gaylord Kidd, Edgar L. Johnson, Marguerite Stein,
Madeline Peyton, Fred Allen Rudman, Louise Baker, Hugh T. Prib-
ble, and Thelma Black 'immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges;
(b) Make whole Gaylord Kidd, Edgar L. Johnson, Marguerite
Stein, Madeline Peyton, Fred Allen Rudman, Louise Baker, Hugh T.
Pribble, and Thelma Black for any loss of pay they have suffered by
reason of the respondents' discrimination against them, by payment
to each of them of a sum of money equal to the amount which he or
she normally would have earned as wages from the date of his or her
discharge to the date of the respondents' offer of reinstatement, less his
or her net earnings during said period; and make whole Buell Small-
wood for any loss of pay he has suffered by reason of the respondents'
discrimination against him, by payment to him of a sum of money
equal to the amount which he normally would have earned as wages
from the date of his discharge to the date upon which he secured the
job he held at the time of the hearing, less his net earnings during
such period;
(c) Upon application by Doreene Eckley and Glen Poling, within
40 days after their discharge from the armed 'forces of the United
States, offer them immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges;
(d) Make whole Doreene Eckley and Glen Poling for any loss of
pay they have suffered or may suffer by reason of the respondents'
discrimination against their., by immediate, payment to each of them
of a sum of money, equal to the amount which he or she normally
would have earned as wages from the date of his or her discharge to
the date of his or her entry into the armed forces, less his or her net
earnings during said period, and by payment to each of them of a
sum of money equal to the amount which he or she normally would
ZENITH OPTICAL COMPANY 255
earn as wages from a date 5 days after his or her timely application
for reinstatement to the date of the respondents' offer of reinstate-
ment , less his or her net earnings during said period;
(e) Post immediately in conspicuous places throughout their plants
at Huntington, West Virginia, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to their
employees stating : (1) that the respondents will not engage in the
conduct from which they are ordered to cease and desist in paragraphs
1 (a) and (b) of this Order; (2) that the respondents will take the
affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of
this Order; and (3) that the respondents' employees are free to be-
come and remain members of Optical Workers Coordinating Commit-
tee, affiliated with the Congress of Industrial Organizations, and that
the respondents will not discriminate against any employee because
of his membership or activity in that organization;
(f) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondents have taken to comply herewith.
AND IT Is FURTHER ORDERED that the complaint, insofar as it alleges
the discriminatory discharge of Wade Wilson, be, and it hereby is,
dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Benjamin E. Cook, for the Board.
Mr. Edmund A. Marshall , of Fitzpatrick , Strickling d Marshall , of Huntington,
W. Va. for the respondent.
Mr. B. T . Hank Wolford , of Huntington , W. Va., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed on June 28, 1943 , by Optical Workers
Coordinating Committee , affiliated with the Congress of Industrial Organiza-
tions, herein called the Union , the National Labor Relations Board, herein
called the Board, by its Regional Director for the Ninth Region (Cincinnati,
Ohio ), issued its complaint dated July 17, 1943, against A. S. Polan, L . M. Polan,
C. M. Polan, Lake Polan , Jr., and E. J. Polan, a partnership , doing business
under the firm name of Zenith Optical Company, individually and collectively
herein called the respondents , alleging that the respondents had engaged in
and were engaging in unfair labor practices affecting commerce within 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. Copies of the complaint
and notice of hearing thereon were duly served upon the respondents and the
Union.
With respect to the unfair labor practices , the complaint alleged in substance :
(1) that since January 1, 1943, the respondents interfered with, restrained,
256 DECISIONS OF NATIONAZ LABOR RELATIONS BOARD
and coerced its employees in the exercise of the rights guaranteed them in
Section 7 of the Act in that they (a) urged, persuaded, and warned their em-
ployees from becoming or remaining members of the Union; (b) questioned their
employees as to their union affiliations; (c) threatened their employees with
loss of employment and other reprisals if they became or remained members
of the Union; (d) maintained a close surveillance of, and spied upon the
activities, meetings, and meeting places of the Union and its membership; (e)
vilified and disparaged the Union, its leaders and organizers; (f) requested,
urged and ordered their employees to attend a meeting held on or about February
9, 1943, at which the speaker denounced unions and attempted to influence said
employees to refrain from becoming or remaining members of the Union ; and
(g) closed their plant in order to coerce their employees into attending the
meeting; and (2) discharged or laid off the following named persons, on or
about the date appearing opposite their respective names and thereafter failed
and refused to reinstate them, because they and each of them joined and assisted
the Union and engaged in concerted activities with other employees for the
purpose of collective bargaining or other mutual aid or protection : Gaylord
Kidd, January 26, 1943; Edgar L. Johnson, January 27, 1943; Richard Allison,
February 8, 1943; June Callicott, February 10, 1943; Doreene Eckley, February
10, 1943; Glen Poling, February 12, 1943; Marguerite Stein, February 12,,1943;
Madeline Peyton, February 22, 1943; Fred Allen Rudman, February 28, 1943;
Louise Baker, March 3, 1943; H. T. Pribble, March 3, 1943; Thelma Black, March
15, 1943; Buell Smallwood, February 5, 1943; Wade Wilson, June 15, 1943.'
Pursuant to notice, a hearing was held at Huntington, West Virginia, from
August 2, to 6, 1943, before Gustaf B. Erickson, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondents
were represented by counsel and the Union by an authorized representative.
All of the parties participated in the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses and -to introduce evidence
bearing upon the issues.
At the commencement of the hearing the undersigned granted without objection
a motion of counsel for the respondents that his oral denial of each and every
allegation of the complaint stand as respondents' answer to the complaint.
The undersigned also granted without objection motions made by counsel for
the Board to amend the title of the complaint and to add to paragraph 6
thereof the names of Mrs. Thelma Black, Buell Smallwood, and Wade Wilson.
At the close of the Board's case the undersigned granted a motion of counsel for
the Board to dismiss from the complaint the names of Richard Allison and
June Callicott, and denied a motion made by counsel for the respondents that
the complaint be dismissed. The respondents' motion to dismiss was renewed
at the close of the hearing. Ruling thereon was deferred. The motion is now
denied. Thereafter the undersigned granted a motion of counsel for the Board
to conform the pleadings to the proof. At the close of the hearing the parties
were afforded an opportunity to argue orally before and to file briefs with
the undersigned. No oral arguments were made and no briefs have been filed.
I The last 3 names and dates were added to paragraph 6 of the complaint by amend-
ment made at the hearing. The name of James Smith was also sought to be included in
this amendment. On objection by counsel for the respondents who claimed surprise as to
Smith, the undersigned ruled that with respect to Smith the respondent should be allowed
the customary 10 days notice. The Board withdrew Smith's name from the proposed
amendment
ZENITH OPTICAL COMPANY 257
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THe COMPANY
The respondents A. S. Polan, L. M. Polan, C. M. Polan, Lake Polan, Jr.,
and E . J. Polan, a partnership doing business under the firm name of Zenith
Optical Company, have their principal office and place of business in Hunting-
ton, West Virginia, where the partnership is engaged in the processing of glass
for gunpowder and gun-control instruments. During the last year the partner-
ship business exceeded $500,000 in value. It has contracts with the United
States Government and delivers about 50 percent of its products to government
ordnance depots located in Pennsylvania and Illinois. The balance of the
processed glass is delivered to the Minneapolis Honeywell Company in Minne-
sota under contract with the latter company, which purchases the processed
glass from the respondents for use in performance of contracts it has with the
Government. The Government furnishes all of the glass z and owns about 95
percent of all of the machinery and equipment, the respondents holding title
thereto as agents of the Government. The Iespondents purchase for their own
account all necessary processing materials Such as felt for beveling, serum for
polishing , various types of pulls and weights for blocking and polishing, cheese
cloth, and alcohol. A substantial amount of such material is shipped to the
respondents' plant in West Virginia from points outside that State. The premises
are leased by the respondents from the owner of the property ; the respondents
exercise full managerial functions and complete supervision and supervisory
authority over their employees, except that the plant guards are militarized.
The undersigned finds that the respondents are engaged in commerce within
the meaning of the Act s
II. THE ORGANIZATION INVOLVED
Optical Workers Coordinating Committee, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to membership
employees of the respondents.
III THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion
In August 1942, the Union began a campaign to organize the employees of the
respondents. From the beginning of the campaign the respondents concerned
themselves with the Union's activities. Employee Wade Wilson 4 testified that
soon after he was employed in August 1942, his foreman, James scales, accused
him of "talking union" and said that he had been so told by Russell Carte,
captain of the respondents' plant guards; and that on several occasions Scales
told him that any man who joined the Union should find himself another job.
Scales testified that he "never discussed the union with anyone," and never
considered the Union at all in his dealings with Wilson. Wilson was a credible
witness. Scales impressed the undersigned as evasive. The undersigned finds
2 Excess spoilage must be replaced by the respondents at their expense.
8 The Board so found In the Matter of Zenith Optical Co , 48 N. L R B 1283.
4 Erroneously named in the transcript as William Wilson.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
k
that Scales made the statements attributed to him by Wilson. By December of
that year the Union's organizing campaign was in full progress.
On February 9, 1943, the employees were told by their respective foremen
that they should attend a meeting scheduled for that afternoon in the City
Hall at Huntington. The plant was closed for a period of about 2 hours and
15 minutes to enable all of the employees to attend and they were paid by the
respondents for the time so spent. The meeting was attended also by some of
the respondents, their superintendents and foremen and was addressed by R W.
Carney, a lecturer and business man of Wichita, Kansas. Although the meeting
was ostensibly called for the purpose of increasing the production of war
materials, the speaker dwelt also on the question of union organization in war
plants. Louise Baker, a credible witness for the Board, testified without denial,
and the undersigned finds that Carney "talked about the war ; about what we
should do to speed up production ... Mr. Carney went on to say that 'unions
were just like [a ] tub, that they wouldn't hold water. He said anyone trying to
organize a [union in a] defense plant should be stood up against a wall and
shot. He said unions (wouldn't offer you job security." Although a number of
the respondents and some of their supervisory staff were present when Carney
made the above quoted anti-union remarks, they did not disavow his remarks,
nor did they ever inform their employees that Carney's speech did not represent
their viewpoint 6
The respondents contend that they should not be held accountable for Carney's
speech because he had been recommended to them by members of local dinner
clubs ° as a speaker of wide reputation whose influence would increase the pro-
duction of the plant. On the basis of the undenied testimony as set out above
this contention is clearly without merit. The respondents' utilization of Carney
and their failure to disavow his anti-union utterances, constituted unfair labor
practices. An employer is responsible undar the Act for anti-union actions
prosecuted with its assistance by other persons or agencies in the community
even though such persons or agencies have no direct pecuniary interest in the
employer's business.? As found above, the respondents have never disavowed
the speech, nor have they taken any other step to inform their employees that
the speech and its implications were not sponsored and approved by the
respondents. On the contrary the plant was closed and the employees who
were told to attend by their supervisors were paid while attending the meeting.
It is therefore clear that the speech was intended by the respondents to dis-
courage union affiliation by their employees and the undersigned so finds.
Later on the afternoon of February 9, representatives of the Union distributed
handbills in front of the plant stating that the plant and war production had
stopped for a period of approximately 21/4 hours, supposedly for the purpose of
permitting the employees to hear a speech on production but instead " you em-
ployees were made to sit and listen to a man who is a `paid speech maker,' used
by companies to defeat the aims of your Union." The leaflet also called attention
to the number of man hours "wasted," and appealed to the employees to loin
the Union.
Harold Damaron, a field representative for the Union, testified that as he
was giving out the leaflets that day in front of the plant, he was approached
by Albert Polan, one of the respondents herein, and four other people' He
5 Carney received no compensation from the respondents
9 The record discloses that Carney was brought to Huntington at the instance of the
local Lions and Foremans Managers Clubs.
7 See Matter of Manville Jenckes Corporation 30 N L R. B. 382.
8 Damaron testified that he assumed that the four people with Polan were office workers
because he had seen them at times entering and leaving the plant in street clothes as
distinguished from the work clothes worn by the production employees.
ZENITH OPTICAL COMPANY 259
handed a leaflet to Polan who jerked it from Damaron's hand and then walked
over to the curb. There Polan said to the four who were with him, "which one
of the sons-o-bitches do you want to kick the hell out of." Charles Spurlock,
who assisted Damaron in the distribution of the leaflet corroborated the testi-
mony of Damaron and testified further that Polan then said, "I will take the
fat one," referring to Denis Jades who was also distributing the leaflets, and
that one of the four persons who were with Polan said, "I will take the little
one" referring to Spurlock. No altercation, however, resulted from the incident.
Polan denied the statements attributed to him by Damaron and Spurlock and
testified that it is not his fashion to express himself in the manner testified to
by Damaron and Spurlock ; that he can say things just as "nasty, but I don't
cage it in those terms. It is a certainty that on that occasion, or on any occa-
sion, I made no such statement." The undersigned rejects his denial and find-,
that the incident occurred substantially as testified by Damaron and Spurlock.
Madeline Peyton, a credible witness testified without denial that about Febru-
ary 20, 1943, she handed a union leaflet to her foreman George Sweitzer, as he
was leaving the plant. He read it, tore it up and threw the bits at her saying
"That's what I think of you and your damned union."
James Smith ° testified that sometime prior to May 14, 1943, his foreman
Scales, told him that Carte had sent him to Smith to inquire if Smith had joined
the Union and "did I have any cards." Although Smith had joined the Union
he told Scales that he had not because, as he testified, "I knew I would be dis-
charged if I had." Although Scales did not specifically deny his conversation
with Smith, he did testify, as set forth above, that he never discussed the Union
with anyone. Smith was a credible witness ,and the undersigned accepts his
testimony as true.
Upon the basis of the credible evidence set out above, the undersigned finds
that the respondents interfered with, restrained and coerced their employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
B. The discharges; further interference, restraint and coercion
The complaint as amended , alleges that the respondents on various dates
discharged and thereafter refused to reinstate Gaylord Kidd, Edgar L. Johnson,
Buell Smallwood , Doreene Eckley, Glen Poling, Marguerite Stein, Madeline
Peyton, Fred Allen Rudman , Louise Baker, H. T. Pribble , Thelma Black and
Wade Wilson, because they joined and assisted the Union , and engaged in con-
certed activities with other employees for the purposes of collective bargaining
or other mutual aid or protection.
The respondents ' personnel policy, especially as it concerns the discharge pro-
cedure is of great significance in determining the merit of the respondents'
contentions with respect to the discharges alleged by the Board to be discrim-
inatory.
Employees are originally hired by the respondents ' personnel department,
subject to the approval of the department supervisors , on a 90-day temporary
basis, after which they become, permanent employees. During the temporary
period they undergo training for the job to which they are assigned and enjoy
the rights and privileges of permanent employees . 10 It is the customary and
general policy of the respondents, according to the testimony of Ellen Lenertz,
respondents ' assistant personnel officer , that before discharging an employee, the
° See footnote 1, supra.
10 They do not however enjoy group insurance benefits until they become permanent
employees.
260 DECISIONS OF NATIONAL LABOR RELATIO N S BOARD
discharging officer, who is usually the foreman , discusses with the employee
the fact that he is about to be discharged , during which conference the employee
is permitted to bring to his attention any facts regarding his work, and the
possibility of employment in a different job. If the employee is denied a hearing
by the discharging officer, or feels that he has not been given a satisfactory
hearing, he has the right to present his case to the personnel officer , who, after
a hearing , often makes adjustments to the satisfaction of the employee.
Doreene Ecicley " was first employed by the respondents in March 1942. Until
June of that year she worked 3 hours per day, from 5: 30 until 8: 30 in the eve-
ning, and attended college in the daytime. From the beginning of her employment
she operated a machine which polished to a certain precision , glass used for
bomb sights . The respondent made no contention that her services and produc-
tion were not good . From June until September she worked full 8-hour shifts,
her shift being from 3: 15 to 11: 45 p. in. In September , she and two other em-
ployees, one of whom was Virginia Lee Crum, requested their foreman, John
Ptzseck, for permission to work a shift from 2: 00 to 10: 00 p. in. each day to en-
able them to get a full night's sleep so that they could continue their college
courses which commenced again about the middle of September . After con-
sulting with management , Ptzseck told them that their requests had been granted
and they commenced working those hours.
Eckley joined the Union in December 1942. She actively solicited member-
ships and according to her undisputed testimony "really organized the whole
floor" she was on and had other employees helping her to organize other depart-
ments in the plant. It is reasonable in these circumstances , to infer that the
respondents were aware of her union activities and sympathies.
About January 16 , 1943, Ptzseck told Eckley and Crum that some of . the girls
in their department were complaining because they had to work from 3: 15 to
11: 45 p. m., whereas Eckley and Crum worked from 2: 00 p. in. to 10: 00 p. in.,
and for that reason the latter two would have to conform their hours to those
of the regular shift if they wanted to keep their jobs . They told him they would
think the matter over and let him know, and intimated to Ptzseck that if they
must work the regular hours they would have to quit their jobs.
On January 17 they reported for work at 3: 15 p. in. and worked until 11: 45
p m., the regular shift 'hours. On the following day they again ' reported at
3:15 p. in. During the course of that work day, Ptzseck suggested to them
that they should write a note to management to the effect that if they were
compelled to work the regular shift hours they would have to quit their jobs.
They did so and gave the note to Ptzseck.'Z
On January 19, Eckley and Crum reported for work at 3: 15 p . in. Attached
to their time cards was a note stating that they "couldn't come back to work"
and to report to the personnel office. They did so and were told by Personnel
Officer Burr that their checks were ready and their services were no longer
required because of the note they had,sent to management on the previous day.
They asked Burr for the right to work on the regular shift for another month at
least, or until the following June. Burr refused their request.
ii Eckley's testimony was by deposition taken by stipulation of the parties before
Cornella S. Williams, a shorthand reporter and notary public for the County of Cabell,
State of West Virginia, on July 27, 1943.
'z The note was as follows :
We are going to school, and cannot work from 3: 15 to 11 : 45 every night. The
hours are too long and lowers our efficiency to work. We were working from 2: 00
P. Al until 10: 00 P. M. but these hours were changed, due to someone sending of com-
plaints into the office. We find we will have to discontinue our work here if these
hours are not changed,
VIRGINIA CRUM and DOREIMNg ECKT r•
ZENITH OPTICAL COMPANY 261
The respondents contend that because of the complaints they received from
girls in the department where Eckley was employed , production was disrupted,
and that Eckley voluntarily quit her job when she was told that she would have
to work the regular shift hours.
The facts do not support this contention . Admittedly Eckley was a good
worker. There is no contention that her production lagged. When Ptzseck
told her on January 16, that she could no longer work from 2: 00 to 10: 00 p.m.,
but would be required to work the regular shift hours, she obeyed him and re-
ported for work, thereafter at 3:15 p. m. It was Ptzseck who suggested that
she send the note to management , the sending of which resulted in her dis-
charge. And when she reported to the personnel office she received no
consideration in her plea for continued employment contrary to the announced
policy of the respondents.
The facts convince the undersigned and he finds , that Ptzseck ' s suggestion to
Eckley that she send the note of January 18 to management was a subterfuge
and, was calculated to maneuver Eckley into a position on the basis of which
the respondents could contend that she voluntarily left their employment. It
is clear however and the undersigned finds that the respondents ' action with
respect to Eckley consituted a discharge, the true motive of which was her
union membership and activity.
Eckley enlisted in the Navy as a WAVE on or about July 28, 1943, and is
now serving in the Armed Forces of the United States.
Gaylord Kidd was employed by the respondents on January 6, 1943, as a
freight elevator operator . He joined the Union on or about January 10, and en-
gaged in union activities to the extent of soliciting union memberships and at-
tending its meetings. On one occasion , during his employment , he was given
some Union membership cards by a fellow employee , in the presence of Foreman
Rex Morris . Thereafter , Morris asked other employees the identity of Kidd.
When he reported for work on January 25, he found that his time card was not
in the rack . He asked the guard in charge for his card and was told by him to
report to Miss Burr, respondents ' personnel officer, the next morning at 9 o 'clock.
On his third unsuccessful attempt to see Burr on the 26th, he was told by one of
the employees in her office that Burr would not see him , and that he should
return the next day for his final pay . In the meantime , he talked to Carte,
who in addition to being captain of the guards , was also directly in charge of
maintenance employees and Kidd's foreman, and asked him for reemployment.
Carte told him that if Kidd could "straighten it out with the office" he would re-
employ him . Kidd went to the personnel office the next morning as instructed.
There he told Ellen Lenertz of his conversation with Carte. She told him that
she had been told by Carte that he had not sent Kidd to the office and that "the
company didn 't hire people they had discharged ." She also told him that the rea-
son for his discharge was "unnecessary talking." He received his pay and left.
Carte testified that at the time of his employment he instructed Kidd not to
"leave the elevator and go into any department and talk to any employees," and
that within a week he received complaints from departments that Kidd was
violating those instructions which caused his discharge by Carte. He testified
specifically to written reports received by him from Guard M. C. Wellman, dated
January 18, Production Manager D. W. Harris dated January 20 , and Guard
L. R. Mays dated January 27 . These reports alleged in substance,- all of which
was reiterated by the testimony of Wellman , Harris, and Mays, that Kidd was
reckless in the operation of the elevator ; that he did not stay on the job , causing
delay in the moving of freight ; and that he talked too much to the girls in the
processing department on the fourth floor of the plant.
262 DECISIONS OF NATIONAL LABOR RELATI0KS BOARD
Carte further testified that sometime prior to January 20, he warned Kidd
to correct his faults but thereafter never talked to him in that regard. Harris
testified that he talked to Kidd two or three times, but never in formal con
ferences as was the policy of the respondents, because Kidd was not a "produc-
tion employee, merely a service employee." Wellman testified that he talked
to Kidd on different occasions about his alleged infractions and "he would seem
to be all right at the time and when I left he would be reckless as ever again."
Except for the written report made by Wellman on January, 18, he never re-
ported Kidd's alleged misconduct to any foreman. Mays testified that his
written report of January 27, was made prior to Kidd's discharge and "I don't
know if' it was the cause of him being-discharged." When it is remembered
that Kidd's time card was not in the rack on January 25 and that he has not
worked since then, 'May's testimony casts doubt on the good faith of the re-
spondents' contention. Foreman Marcus Dent testified that Kidd had a tend-
ency to talk to girls, rather than run the elevator.
Kidd, a credible witness, testified that the elevator he operated carried
blocks from the fourth to the fifth floor and that he seldom had a call from
below the third floor. Since he had no special place to park the elevator, he
remained on the fourth floor until he got a call to go elsewhere. He admitted
that on occasions he would step just outside the elevator door and testified
without denial that there was no rule of the plant against talking while on the
job. He denied that he had ever been warned that he was "doing wrong."
The respondents made no attempt to explain the abrupt dismissal of Kidi
without a hearing, nor did Lenertz, who well knew respondents' policy in that
regard, give a reason for bluntly telling Kidd "the company didn't hire people
they had discharged." Neither did the respondents offer a defense to the infer-
ence to be drawn from the fact that Foreman Morris sought the identity of Kidd
at a time when the latter was receiving Union membership cards from a fellow
employee. All of these items, when considered in the light of Carte's testimony
that Kidd was discharged by him on the strength of the complaints received, one
of which was made 2 days after Kidd's time card had been pulled from the rack,
convinces the undersigned, and he finds, that Kidd was not discharged for ineffi-
ciency or violation of instructions.
The undersigned finds that the defense of the respondents fails and that as set
forth in the complaint Kidd was discharged by the respondents on January 25,
1943, because he joined and assisted the Union.
Edgar L. Johnson was first employed by the respondents on January 17, 1943,
as a helper to Alonzo Webb, a machine operator in the polishing department.
His job was to keep water and rouge on hot lenses that were being machine
polished on spindles. To do this job he walked back and forth over a distance
of between 12 to 14 feet with a syringe full of water and a can of rouge in
his hands. Johnson, a credible witness, testified without denial, that a few
nights after he was employed his foreman Arthur Greig asked Webb haw
Johnson was getting along in his work and was told by Webb, "just fine."
Johnson joined the Union on January 18, attended its meetings, solicited mem-
berships and talked in behalf of the union on every opportunity "he had." He
testified that a few nights liefore he was discharged he overheard Robert
Chedester, a shift foreman, say to Greig "Johnson is getting along pretty well
organizing" to which Greig answered "Yes, we will get rid of him in a few days."
Prior to that time Greig had taken a friendly interest in Johnson. However,
at about that time Greig overheard Johnson and P. L. Craig, a machine operator
discussing the Union and observed that Johnson was carrying a union card in
his pocket. He advised Johnson to leave his card at home. Thereafter Greig's
ZENITH OPTICAL COMPANY 263
attitude toward .Johnson changed and for the last 3 nights of his employment
Greig spoke to him but once. Chedester and Greig denied that they had such
a conversation. Because the circumstances surrounding Johnson's discharge so
coincide with Greig's prophecy, the undersigned does not credit the denials.
On January 28 Johnson reported for work and found that his time card
was not in the rack. He called this to the attention of the guard in charge
and was told by him "You are to report to the personnel office." There Johnson
was told by an unidentified employee that he had been discharged because his
foreman had reported that Johnson was "not adapted" to his work. Johnson
asked her if she would transfer him to another department and she refused
to answer him. At the time, Johnson saw a man, whose name he did not
know, being signed up to go to work. He then went back to the plant and asked
the guard to be permitted to see the foreman of the department. The guard
refused to let him enter the plant or call the foreman to the gate.
Greig testified that he discharged Johnson because he had received complaints
from Craig, "the man he was helping" ; that Johnson "wasn't moving fast enough ;
he wasn't taking care of the spindles and letting them burn" ; that as a result
the machine operator's production fell down. He attributed Johnson's failing
to inability to walk fast enough up and down the row of spindles because of
a physical handicap and to inaptness to do the type of work he was doing.
He further testified that he did not discuss the discharge or possibility of
transfer to another department with Johnson, but had referred him to the
personnel office because "it is their function to see if they can put them in
some other place."
The undersigned observed Johnson as he walked to and from the witness stand
on three occasions, and also his movements in and about the court room after
Greig had testified. His movements on foot appeared as normal as that of
any other person in the court room. Marcus Dent, a shift foreman, was the
respondents' next to the last witness. He testified that he had many times
seen done the operation that Johnson performed in the plant and that an
"average' walk would carry [the operation] along very nicely." He further
testified that "It might be once in awhile that they would have to make a
dash for a spindle that didn't have enough rouge or water but as a rule it
wouldn't keep them moving -very fast."
Johnson worked for the respondents only 10 days. Until about the 7th day
of the employment period Greig displayed a friendly interest in him, and re-
ceived a commendatory reply from Webb when he asked him how Johnson was
getting along on his job. When he learned that Johnson was an active union
member his attitude toward Johnson suddenly changed to the extent that he
ignored Johnson. Consistently within Greig's prophecy to Chedester, Johnson
was discharged a few days thereafter.
It is significant that Johnson like Kidd, was not given a hearing by his fore-
man before his discharge and that the personnel officer and the guard ignored
him in his quest for further employment.
The undersigned finds that Johnson was physically able to and did perform
his duties in a workmanlike manner and rejects the testimony of Greig to the
contrary. He further finds the respondents discharged Johnson on January 28,
1943, because he had joined and assisted the Union.
Buell Smallwood was first employed by the respondents on April 8, 1942, as
an operator of a fine edging and centering machine. He joined the Union on
December 15, 1942. Smallwood, a credible witness, testified without contra-
diction , that about 3 days thereafter his foreman, Everett Kinder, asked him
why he had joined the Union and then told him that the Union "wouldn't get
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in because it was a defense plant." On December 19, 1942, Smallwood was
discharged. The Union presented Smallwood's case to respondents' counsel
Edmund Marshall, and upon Smallwood's promise to him that he would "do
better," Smallwood was rehired about January 9, 1943.13
Smallwood's activities in behalf of the Union consisted of attending its meet-
ings and soliciting memberships. Shortly after he had been rehired, E. J.
Polan, one of the respondents herein, accused Smallwood of soliciting member-
ships during working hours. Smallwood told him that he was not doing that,
but that he was "doing everything [he] could outside the plant."
On February 5, 1943, during a smoking period in the plant, Kinder asked
Smallwood if he knew he was being watched. When Smallwood told him that
he did, Kinder said to him, "If you don't get some of those ideas out of your
head you won't last long." Smallwood asked him if Kinder was referring to
the Union, to which Kinder answered that the Union would never get into the
plant because "it was a defense plant." That night Smallwood was discharged.
Smallwood testified that about 3 or 4 days after his discharge, he met Fore-
man Bert Perry in a local hotel and that Perry told him that he [Perry] "had
risen from a rough grinder and a polisher to a foreman, and he [Perry] said
he didn't need no union to do that." Smallwood further testified that Perry
told him that he was "fired on account of the Union." Perry testified that he
had a conversation with Smallwood at about the time and place indicated by
Smallwood but denied that in that conversation or in any other conversation he
had with Smallwood, was the Union mentioned. He then testified that in the con-
versation above referred to he asked Smallwood why he had been discharged,
and was told by Smallwood "because I joined the union." Perry was an evasive
witness and would not answer questions directly. The undersigned does not
credit his testimony and finds that his conversation with Smallwood occurred
substantially as related by Smallwood.
The respondents contend that Smallwood was discharged because he "Does
not take orders as he should, does not stay at machine during working hours
[and] does not take an interest in his work "
Tilman Morgan testified that he had been made-foreman of the department
in which Smallwood worked, about "a week or ten days" prior to Smallwood's
second dischafrge ; that inspectors were running to him "constantly" and ad-
vising him that Smallwood's work was not up to specifications, that he "con-
stantly" cheeped Smallwood's work and when the errors were called to Small-
wood's attention for correction, Smallwood "seemed not to take any interest."
Morgan never discussed the reasons for his discharge with Smallwood.
Arthur Greig, respondent's shift foreman testified that about 3 or 4 nights
before Smallwood was discharged, Morgan asked him to observe Smallwood's
work ; that he did so and noticed that Smallwood was out of the department
more than seemed necessary and he "must have been a camel the way he drank
water."
13 On the same day Smallwood signed a paper which stated : "Because he can be a good
worker and intends to correct his former bad habits and work to the best of his ability
for the good of the war effort, we shall reinstate Buell Smallwood on a probational basis
for the rate of 571/2 cents an hour for 3 mos. or until.he proves the honesty of his inten-
tions. At this time he will be fully reinstated as to the rate due him on the basis of time
worked or at 621/2 cents an hour."
(S) BUELL SMALLWOOD.
(S) MADELINE BURR.
Smallwood testified on cross-examination that he signed the paper "under pressure." He
further testified , "I had to sign it to get my job back , and I signed it under pressure because
I wanted my job back."
ZENITH OPTICAL COMPANY 265
General Superintendent D. J. Slater testified that he noticed Smallwood "being
in the hallways and in the basement. He might be smoking or loitering at
those times."
Kinder did not testify.
The reasons advanced by the respondents for discharging Smallwood, would,
under normal circumstances, be sufficient to justify a discharge for'ce' cause. It
is clear however, that the respondents discharged Smallwood for reasons other
than those advanced in the testimony of their witnesses. That Smallwood was
an active Union protagonist was known to the respondents. That he was so
marked by them is certain from Kinder's admonition to him that he should "get
some of those ideas out of [his] head" or he "won't last long." Moreover it is
clear that,he was discharged for union activities as indicated by Foreman Perry
who told Smallwood that he was "fired on account of the union."'' ' 1
Whatever may be said of the reasons advanced by the respondents for dis-
charging Smallwood, the undersigned finds that they were not the motivating
cause, but were used by the respondents pretexts to hide the true motive. The
undersigned finds that Smallwood was discharged by the respondents on Febru-
ary 5, 1943, because he joined and assisted the Union. Smallwood' does not
desire reinstatement.
Marguerite Stein was first employed at the respondents' plant on October 27,
1942. At the beginning she worked as a fine grinder and after a month .on that job
she was made an inspector. She joined the Union on January 27, 1943. Stein,
a credible witness, testified that about 6 weeks before her discharge, which oc-
curred on February 12, 1943, her foreman, Marcus Dent, asked her "how the
union was coming .along." Dent denied that he ever had a conversation about
the Union with Stein. However, his memory was so vague, with respect to
ether matters in connection with Stein's employment history that the under-
signed discredits his testimony, and finds that he asked the question of Stein,
and thereby indicated to her that he knew of her union sympathies.
On the morning of February 12, 1943, Stein reported for work about 30 minutes
late, her shift hours being from 7:45 a.m. to 3:15 p.m. She did not stop to
change into her slacks and hair net, as required by a plant rule announced the
previous September that all women employees wear hair nets and slacks, but
went about her duties clothed in regular dress. About 2:30 p m. of that day
she saw Dent talking to E. G. Polan, one of the respondents herein. Immediately
thereafter, Dent discharged her. She was told by Personnel Officer Burr that
she was discharged because she did not wear slacks and hair net.14
Stein testified without denial that.she had reported late for work on other
occasions, and on many days during her employment she did not wear the slacks
and hair net ; that she had never been criticized or reprimanded therefor ; and
that other girls did likewise with impunity. She also testified that the rule
applied to women machine operators and not to inspectors and in this respect
her testimony was corroborated by employee Black.
Dent testified that he had never told Stein she did not have to wear slacks
and hair net and that the requirement applied to her as an inspector as it
did to operators. He could not remember where the notice relating to slacks
and hair ,nets was posted, nor who posted it. He testified it was "probably"
posted under his supervision and that "All those orders came from the guards" ;
that there is no such notice posted at the present time and he did not know if
34 Stein, on cross -examination , was asked why she was discharged , and answered because
she did not wear the hair net and slacks It is apparent to the undersigned that her
answer contained the reason given her by Burr, and not her independent thought on the
matter.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was a posted notice to that effect in January, February and March 1943.
He further testified that he did not know if any of the other women employees
worked in the plant during those months without slacks and hair nets; and
that if they reported for work without them, they were "supposed to go home
and get them as a general rule. If they lived a great distance away, there is
a possible chance that they might have worked. I won't say they did and I
won't say they didn't because I don't remember."
It thus appears that Stein's foreman, the person who discharged her for
an alleged violation of a plant rule, knew little or nothing of the posting of the
rule in the plant or the observance thereof by the employees. The available
credible evidence clearly shows, however, that violations of the rule were
tolerated by the respondents ; that the strictest enforcement of the rule prior to
Stein's discharge consisted of sending home to get her togs an employee who
reported for work without them, and then only if the employee lived within
"a great distance" from the plant. The' undersigned does not condone the viola-
tion of plant rules by employees. However, the severe penalty meted out to
Stein for the violation of a rule, the non-observance of which had been there-
tofore tolerated by the respondents, convinces the undersigned, and he finds
that the respondents did not discharge Stein because she did not wear slacks
and a hair net, but seized upon Stein's offense to rid the plant of a union member.
Glen Poling was first employed by the respondents on January 1, 1942. He
spent the first 4 weeks of his employment learning prism grinding, a skilled
job that requires one to be able to gauge manually the thickness of a piece of
glass to the exactness of 2/10,oooth of an inch. His services were terminated on
February 15, 1943. During the period of his employment his wages were raised
from 40 cents to 671/ cents per hour. Poling, a credible witness, testified that
at no time did any supervisor complain about his conduct or workmanship, but
that on the contrary, in about December 1942, Albert Polan, one of the re-
spondents herein, told inspectors for the Minneapolis Honeywell Company, one
of the respondents' principal customers, that Poling was the most experienced
man in the respondents' plant for hand grinding prisms. That the respondents
considered Poling to be a valued and essential employee is evidenced by the
fact that commencing December 28, 1942, at the respondents' request, on the
ground that he was a valued and essential employee, Poling was deferred from
the draft for a period of 6 months.
Poling joined the Union in December 1942. On January 7, 1943, he was elected
its'financial secretary. He testified that one day during the lunch period Fore-
man Henry D'Ammato called him over to D'Ammato's desk in the plant and said
to him "I hear you are a ring leader in the union " Poling denied that he was
a ring leader but stated that he took an active part in the affairs of the Union.
Foreman Earl King who was nearby and heard the conversation between Poling
and D'Ammato stated that a lot of the employees were not joining the Union
because they were afraid of their jobs. Poling told King that employees could
not be fired for joining the Union, to -which King answered "No, they can't fire
you for that, but there are always other reasons."
D'Ammato, a witness for the respondents, testified that he had had a noon-
hour conversation with Poling at a time when King was present and that the
subject of the conversation was the amount of wages the employees would earn
when the Union got "bargaining rights" in the plant. He denied that he had
referred to Poling as a ring leader in the Union and could not remember King's
part of the conversation. The undersigned does not credit the denial . King did
not testify. The undersigned credits the testimony of Poling and finds that
D'Ammato and King made the statements attributed to them by Poling.
ZENITH OPTICAL COMPANY 267
Poling further testified that on February 15, 1943, his superintendent, E. H.
Diehl told him that Albert Polan wanted to see him in Polan's office. There, ac-
cording to the testimony of Poling, Polan told him in the presence of Diehl that
Diehl had complained that Poling was not cooperative with him; that Polan did
not want to discharge him because he did not want a discharge to appear on
Poling's record; and that Poling could either quit his job, or the respondents
would "lift his deferment," and if he lost his deferment, Poling would be drafted
into the Army. Poling further testified that he chose the first of the two alterna-
tives so that he would be in a position to get another job, and resigned. Before
leaving the plant, Poling went to Diehl and asked him to explain just how he
had not been cooperative. Diehl did not answer Poling. On May 8, 1943, Poling
enlisted in the Engineers Corps of the United States Army.
At the hearing the respondents introduced in evidence Poling's final pay
ticket which was signed by Diehl and Roy Hatton, Poling's immediate super-
visor. The pay ticket stated that Poling left the employ of the respondents on
February 15, 1943, of his own accord, because, as stated on the ticket, he was
"dissatisfied." Also noted on the ticket were the observations of Diehl and Hat-
ton that Poling was "not industrious, indolent and unable to do work properly."
Polan denied that there was any talk of lifting Poling's deferment at the con-
ference held with Poling on February 15. He testified that Poling was a good
worker but for some "stranger reason"^ he had lost the exactness that was re-
quired of him to do his work properly ; that Diehl complained to Polan about
the matter and Poling was sent to him "to talk with and see when he doesn't do
as he should, and make an effort to correct that" ; that at the conference "I cussed
him out as he should have been cussed out, . . . I told him that he was falling
down and there must be some reason, and if there was anything I could do to
help get it straight he should come to me.... The boy got huffed and he said
'I quit.' " He further testified that although Poling seemed to be "a nice clean
chap" he made no attempt to induce Poling to remain in the employ of the re-
spondents because "the minute his reaction to me when I am ready to help him
and trying to help is one of defiance, then he has no place," and that "today
it [Poling's work] is being done by a man whose keenness of the feeling is ac-
centuated. He has only one hand, and he has twice as much feeling in one hand
as we have in two" and that he would not have put Poling in another job "because
it is not advantageous to use a man of greater skill in a job that requires less
skill." 1e
Diehl, on the other hand, testified that in December or November of 1942, he
assigned Poling to train Gobel Osborne in the job of hand grinding because he
had noticed that Poling was becoming erratic in his work, due to what Diehl
described as a nervous condition, and it was necessary to have a man in'the
plant who was able to efficiently perform the work that Poling was doing; that
he transferred Poling to another department where his work "didn't require
this delicate touch he had to have to do the operation he was performing" ; that
'° Polan testified as follows "Some of the work which Glen Poling did required such
a surface flatness that the variance of a couple thousandths of an inch would spoil it. It
is recognized that the people versed in that work become a little unbalanced in doing it.
If a man is unbalanced , and if he loses his capacity to maintain the proper perspective,
his value to us and to the company in that particular work ceases
Q Do you think that Glen had reached the point where his equilibrium was a little
unbalanced?
A. I think everybody in this work is a little unbalanced.
11 Asked whether Poling would have been discharged had he not "resigned," Polan
replied , "No, I wouldn 't have [discharged him.] Normally we would have given him a
week to see if there was a greater percentage of acceptable elements."
268 DECISION'S OF NATIONAL LABOR R'E'LA:[Y[ONS BOARD
he did not know whether Poling resented the transfer but that he refused to
apply himself to his new work ; that on February 15, Poling told him, "I don't
believe you want me around any more, I think I'll quit."; that he suggested to
Poling that the two of them go down to Polan's office and talk the matter over
with him ; that they did so ; that there was no mention of draft deferment in his
presence and that Poling asked Polan if he would get him a release to which
Polan answered that he would help get him a release and help him get a job
somewhere else "and that is about all. He [Poling ] left then . I shook hands
as he left the plant and wished him success and we left good friends."
On cross-examination Diehl testified that between December 1942 and Feb-
ruary 15, 1943 , Poling and Osborne together did the same job, that is "the two
of them doing a one man job ;" that Osborne was no longer doing hand grinding
in the plant , but that he had been transferred to another department.
Hatton testified that "around November or December . . . Glen [Poling]
seemed to lose interest somewhat in his work and later he was transferred to
another department because Mr . Diehl and I had talked over on numerous oc-
casions as to how the work was being done on the band correction , that is the
result of it, and we thought that possibly due to these nervous conditions which
he seemed to show-we didn't know the cause of it in any way-that he might
be better fitted in another department . In the meantime Glen trained Gobel
Osborne to do his work ."; and that "probably a month or two month 's" prior
to the termination of his employment he was transferred to the roughing de-
partment in the plant.
It thus appears that the testimony of respondents ' witnesses Polan, Diehl and
Hatton, is inconsistent in that contrary tQ the testimony of Polan, Osborne was
transferred from the hand grinding job to another department and to a job re-
quiring less skill , and is still working for the respondents ; and contrary to the
testimony of Polan and Diehl, Poling was transferred into the roughing depart-
ment a month or two prior to the termination of his employment . Moreover,
the reasons given for Poling's discharge on his final pay ticket are contradictory
in that he is termed "dissatisfied ," a charge obviously sought to be related to his
alleged remark to Diehl, and it is also claimed that he was "indolent and unable
to do work properly," a charge which finds no support in the credible testimony.
Nor is it probable that Polan would agree to get a "release " for Poling and find
him a new job with another employer if Poling had assumed an attitude of de-
fiance to a degree that kept Polan from trying to keep Poling as an employee in
another department ; particularly when that procedure was the policy of the
respondents and as Polan testified , Poling was a good worker . Because of the
variance in the testimony of Polan, Diehl and Hatton, and from his observation
of them as witnesses , the undersigned rejects their testimony except insofar as
it is corroborative of the testimony of Poling whom the undersigned has found
was a credible witness.
In `rebuttal , Poling testified , and the undersigned finds, that he was assigned
to the job of -training Osborne as a hand grinder ; when Osborne became efficient
in the job he was given Poling's job ; Poling was kept in the same department and
because of his wide experience he was used as an all around man" and worked
on all the jobs of the department as occasion needed him . He further testified,
that he had never suffered a nervous condition and that the first intimation he
had that his employment was to be terminated was on February 15, when Diehl
told him that Polan wanted to see him in the office . Although Polan testified
that notice of the severance of employment or a draft -deferred employee is for-
warded to that employee's draft board on the day following the severance of
employment , no such notice of Poling's severance of employment was sent to his
draft board until March 29, 1943.
ZENITH OPTICAL COMPANY 269
From all the evidence, the undersigned is convinced and finds that on February
15, 1943, Poling was told by Polan that lie could either quit his job or the
respondents would lift his deferment and that then he would be drafted into
the Army ; that Poling chose to quit so as to enable him to get another job; that
Poling was a good capable worker as a hand grinder and proficient in all the jobs
in the department ; that on the day of the termination of his employment and
for several weeks prior thereto, Poling was not working on the specific job of
hand grinding, but was the utility man of the department, and that Polling had
given the respondent no legitimate occasion to terminate his services. The
undersigned finds that the respondents knew and resented the fact that he joined
and assisted the Union, and that the circumstances surrounding the termination
of Poling's employment makes that termination of employment tantamount to
it discharge, effected in violation of the Act.
Madeline Peyton entered the employ of the respondents on October 22, 1942,
as a grinder in the blocking department. After 3 months of service she qualified
as a satisfactory worker and was given a raise in wages of 121/.2 cents per hour,
on the recommendation of her foreman, George Sweitzer. For a period during
her employment, she trained new employees and assisted others in their jobs.
Peyton. joined the Union in December 1942 or January 1943. She solicited
memberships, passed out union literature and attended union meetings.
At the close of the shift on February 22, 1943, Schweitzer, without giving her
a reason, told Peyton to punch her time card and turn in her badge to the guard
in charge, because she was discharged. On the following day she returned to
the plant, got her final check and termination of employment slip, which stated
that she had been discharged, but noted no reason therefor.
The respondents contend that Peyton was discharged because she did not
"do her work," smoked at times other than rest periods and slept on her work
table.
In - support of the respondents' contention, employee Irvin Bowman testified
that on a day shortly prior to the date of Peyton's discharge, Sweitzer asked him
to observe that Peyton was sleeping during working hours, which he did, and
that on February 24, 1943, he signed a statement, prepared by Sweitzer, at
Sweltzer's request, which statement reads as follows:
In regards to Madeline Peyton : Aside from her not doing her work and other
violations. We actually saw her trying to sleep on the working table.
On cross-examination Bowman testified that he did not know it Peyton was
"doing her work" ; that the "other violations" noted in the statement could have
been that she left the "work room" ; and that he did not know if Sweitzer had
given her permission to rest when she was "caught up" in her work and to leave
the "work room" when necessary.
The undenied testimony of Peyton is that in November 1942 she became
pregnant; that thereafter Sweitzer told her not to assist'other employees in
their production quotas anymore, and that she should rest, and if desirable , sleep,
during periods while she was waiting for further work. She denied that she
violated the "no smoking" rule and testified that she had permission from
Sweitzer and did go to the rest room when necessary.
The undersigned finds that Peyton did not violate any company rules; that
she was an efficient worker, and that her alleged indiscretions of going to the
rest room and sleeping at her table during periods when she was waiting for
work, was done with the permission of her foreman, Sweitzer, and at his
instructions.
It is to be noted that, as found above, on February 20, 2 days before Peyton's
discharge, Sweitzer indicated to her his antipathy toward the Union and her
55901 5-44-vol. 53-19
270 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities in its behalf. Her abrupt discharge without reason given therefore
in direct violation of the respondents' policy and Sweitzer's anti-union prejudice
which manifested itself emphatically in her case, combine to convince the under-
signed and he finds that Peyton was discharged on February 22, 1943 because
she joined and assisted the Union. The reasons advanced by the respondents-to
support a contrary conclusion lack support in the credible evidence and are, in
the circumstances disclosed in this case, clearly pretexts.
Fred Allen Rudman joined the employ of the respondents on January 7, 1943
as a plant guard. Because of his duties and the fact that he was required to
"carry a gun" while on duty, he was not eligble to join the Union and was not a
member . His two sons, however, George and Charles, were active Union mem-
bers prior to their discharge from the employ of the respondents, which occurred
prior to March 1, 1943, when Rudman was discharged. He was a•Union sympa-
thizer and openly told employees, who asked him what he thought about joining
the Union, that he was a firm believer in collective bargaining . Rudman, a-
credible witness, testified that about 2 weeks before he was discharged, and
while he was on duty at the front gate of the plant, his foreman, Russell Carte,
and Albert Polan told him to put two Union representatives, who were distrib-
uting Union literature there "off the [public] sidewalk and make them go away"
which he refused to do. Polan testified that he remembered an incident when
handbills were being distributed, and he instructed Carte to see that "the doors
were kept open," and denied that he ever gave any orders to Rudman in that
regard . Carte testified that persons may have been distributing handbills on
an occasion when he instructed Rudman to "clear the entrance," but that he does
not know if Rudman obeyed the order. The undersigned finds that about 2
weeks before his discharge, Polan and Carte ordered him to clear the sidewalk
of two Union representatives who were distributing Union literature there, and
that Rudman refused to do so.
On March 1, 1943, Rudman reported for duty and found that his card was not
in the rack. The guard in charge told him to report to the personnel office.
There he was told by Lenertz that his final pay check was not ready and to return
for it on the following day. Then, according to the testimony of Lenertz, a 1
argument followed between her and Rudman concerning the legal right of an
employee to have his pay check within 4 hours after the close of his last work
day, during which Rudman became "abusive." Rudman demanded that he be
given a reason for his discharge, which he never received. Rudman impressed
the undersigned as a truthful, forceful, kindly individual and was aggressive in
demanding what he considered to be his rights. The undersigned finds that he
argued with Lenertz but that Rudman was not abusive.
The respondents contend that Rudman was discharged because he refused to
obey Carte's orders to patrol the plant building.
Carte testified that about 2 weeks before he discharged Rudman he called
Rudman to his office and cautioned him that he was talking to employees too much
and too loudly, and told him that he should sit down and not stand up when he
was serving as guard at the front entrance of the plant, and to alternate that post
with Guard Switzer Bias in the patrol of the plant building ; that "It went on for
a few days, and I kept seeing the other guard patrolling all the time, and I spoke
to him and asked him if Mr. Rudman ever relieved him, and he says : 'No, he stays
up at the front gate" ; and that he discharged Rudman "For the simple reason 'it
seemed to me like the man didn't want to take orders," that is, to alternate with
Bias.
Bias testified that he received orders from Carte to alternate with Rudman,
but never did it, because Rudman was an older man on the job than he was and
ZENITH OPTICAL COMPANY 271
if Rudman did not want to alternate with him, that was Rudman's prerogative
because of his seniority ; and that he was never reprimanded by his superiors for
not doing so.
Rudman denied that he had been cautioned by Carte in any regard concerning
his work or that Carte ordered him to alternate with Bias. He testified that
Bias told him that Carte wanted Rudman and Bias to alternate their posts, and
that he never refused to do so. Rudman's work as a guard was praised by D. T.
Slater, general superintendent of the respondents plant.
The fact that Rudman was never given a-reason for his dismissal is significant:
This is particularly true when it is remembered that for 2 weeks, Carte allegedly
observed that Rudman was not alternating with Bias, questioned Bias about it,
but said nothing to Rudman. It was about that time that Rudman had refused
to disturb the union representatives who were distributing literature in front of
the plant. It is more significant, however, that Rudman was discharged for
allegedly refusing tb alternate his post with Bias and that Bias was not so much
as reprimanded for disobeying the same order. Since it was the policy of the
respondents that Carte should discuss the discharge with Rudman, the fact that
it was not done, but to the contrary, he was summarily told to report to the
personnel office when considered with the foregoing observations, leads the under-
signed to reject the respond'ents' contention. As a witness, Carte was defiant
and arrogant. The undersigned does not credit his testimony that he discharged
Rudman because he allegedly refused to alternate his post with Bias or because
"it seemed to me the man didn't want to take orders." It has been found that
Rudman did, however, refuse to obey Carte's order to him to clear the side-
walk in front of the plant gate, of union representatives who were engaged
in union activities. The respondents do not contend that Rudman was dis-
charged for refusing to obey this order. However, the undersigned is con-
inced that Rudman's known union sympathies17 In conjunction with his refusal
to interfere, at the respondents' order, with legitimate union activities caused
the respondents to discharge him on March 1, 1943, in violation of the Act.
Louise Baker was first employed by the respondents on November 2, 1942, as a
fine grinder. At the end of the first 90 days of her employment, she was made
a permanent employee and given a raise in wages of 10 cents per hour. Baker
joined the Union in January 1943. She attended its meetings, solicited member-
ships and talked about the Union to her fellow employees in the plant during
leisure and rest periods."On March 3, 1943, she reported for work and found
that her time card was missing from the rack. She asked the guard in charge to
find it for her and instead he found a note instructing her to report to the per-
sonnel office. There she got her final pay check and separation slip stating that
she was discharged, but no reason therefor was noted thereon. She then tele-
phoned her foreman, Marcus Dent and asked him the reason for her discharge.
His answer was "Sorry, Louise." She then asked him, "Wasn't my work all
right" and he answered "Sorry, Louise," and terminated the conversation.
Marcus Dent testified that he discharged Baker because she became "indiffer-
ent to her work and the type of work she was putting out"; that he had checked
her work for a period of from 4 to 6 weeks and found that she was not producing
"enough." He could not remember the type of work she was doing or how
much her production lagged. He "believed" that he "talked with her to the
effect that she wasn't putting out enough work" but he could not remember
I Rudman made known his pro-union sentiments . to Carte in a conversation which
occurred about 2 weeks before his discharge.
3" Baker testified that she solicited union memberships from "older employees " who were
friends of Foreman Marcus Dent.
272 DECISI0N'S OF NATIONAL LABOR RELATIONS BOARD
when , or what her answer to him was . He did remember , however , that he did
not talk with her before her discharge . There was nothing definite in Dent's
testimony , regarding Baker's discharge ; he convinced the undersigned that his
testimony was incredible and an attempt to legitimatize Baker 's discharge.
In view of the respondents ' patently anti-Union attitude, as hereinabove found,
the undersigned is convinced and finds that the respondents discharged Baker on
March 3, 1943, because she joined and assisted the Union.
Hugh Pribble, who is 73 years of age, was first employed by the respondents
on September 5, 1942, as a cleaning janitor. He immediately joined the Union
and actively solicited memberships . Pribble was outspoken in his Union sym-
pathies and on several occasions he discussed the Union with the respondents'
Building Supervisor , Zimm , telling him that he had joined the Union. He was
discharged on March 3, 1943.
Albert Polan testified he had seen Pribble "struggling " with another em-
ployee in one of the departments and after that "on a dozen occasions" he had
found that Pribble 's job was not "being done," so he instructed Foreman Hatton
to "get rid of him."
Hatton testified that Pribble "never done a first class janitor job . . . as far
as I know" and that he was discharged because Hatton thought Pribble was
"incapable physically of performing his duties ." He also testified that Pribble
was "unpopular" with the employees because of his "grouchiness ," which "was
a detriment to the production."
Diehl testified that he signed Pribble's final pay ticket because "the old man
was most too old for the job really" and because of complaints he received from
employees that Pribble carelessly bumped into them when they were carrying
trays of glass in their hands and that he talked excessively to employees. He
further testified that on the day previous to Pribble' s discharge , Pribble collided
with a girl inspector , tore her hose and then entered into a heated argument
with her.
Pribble worked for his immediate previous , employer 11 years. He and Polan
had known each other for 20 years, and it was because of this acquaintanceship
that Polan arranged to have him work for the respondents . It thus appears
that Polan knew, or should have known, Pribble's capacity for work and his
temperament. Pribble appeared to the undersigned to be in good physical condi-
tion, sturdy and rugged and far less than 73 years of age. Pribble testified that
Polan had often told him that his work was satisfactory ; that he had never been
criticized by a supervisor ; and never was given any opportunity to discuss his
discharge with any of them . or is there any testimony that any supervisor,
except Polan , discussed his work with him at anytime during his employment.
That Pribble was physically able to do a cleaning janitor job is apparent to
the undersigned and was apparent to Polan when he put him to work, which
was only 6 months before he was discharged . His alleged 'excessive talking
were not factors considered by Polan and Hatton in discharging him and his
alleged neglect of duty, as stated by Polan, was not a factor considered by
Hatton and Diehl in their testimony concerning Pribble's discharge . It is sig-
nificant that Polan, Diehl , and Hatton should differ in their testimony which is
general and vague with regard to the reasons for Pribble ' s discharge.
Fribble was an honest and credible witness. The fact that lie was not given
a reason for his discharge added to the fact that he was a competent employee
and one whose union membership and sympathies were well-known, lead the
undersigned to conclude and he finds that Pribble was discharged on March 3,
1943, by the respondents because they knew of,and resented his union affiliation
and activity.
ZENITH OPTICAL COMPANY 273
Thelma Black was employed by the respondents about April 13, 1942, as a
fine lens grinder, at a wage of 30 cents per hour. At the time of her discharge
on March 15, 1943, she received a wage of 57% cents per hour and was one of
the oldest employees in her department in point of service. She joined the
Union late in December 1942, attended its meetings, solicited memberships, and
distributed union literature to her fellow employees. The latter activity was
known to plant supervisors among whom were E. Polan and Foreman Sweitzer
who received handbills.from Black in front of the plant.
On March 15, 1943, Black became ill. She remained at-home under the care
of a doctor and a nurse until March 22. On that day she returned to work and
found that her time card was not in the rack. The guard in charge told her
that Allen Polan, one of the respondents herein, wanted to see her. Polar told
her, in the presence of her foreman, Ptzseck, that she had not been ill, there
was nothing she could do to change the situation, and that she should get her
final pay check. Black offered to furnish proof that she had been home sick, but
was not given the opportunity by Polan.
Frances Flesher Moore, an investigator for the respondents, testified that
one day in March or April she was assigned to investigate Black, who on that
day had left work at about 11 a.m. because of claimed illness. She testified
that she went to the address given to her by the respondents and inquired for
Black; that she was told by the landlady to whom she talked that Black was
not in, but had "gone uptown." Black, a credible witness, testified that on that
day, which was March 5, 1943, she left the plant because she was ill, went to
bed for a few minutes in the room she lived in in Huntington; and then went
to her own home some distance "up-town" for the rest of the day. The under-
signed finds that on March 5, 1943, Black was ill and did not work on that day
because of that fact. '
Black returned to work the following day, March 6, and continued in her
job until March 14, 1943. On that day, she again became ill and went to her
home until March 22. Her foreman was notified by telephone of her illness.
Black's uncontradicted testimony is corroborated by Nurse Maude Duncan, a
credible witness, that she was ill and at home during that period, attended by a
physician and visited by Duncan, who is a Red Cross nurse.
Foreman Ptzseck testified that Black was an excellent worker but that she
was discharged because he "didn't see any sense to her coming in one day
and starting something and then leaving production stand for another day."
He further testified that he "believed" Black was discharged on the morning
following the investigation made by Moore.
Black's immediate foreman, Ernest Howerton, testified that Black was dis-
charged on March 6 following an investigation that had been made by Moore, who
had reported that Black was not at home sick. He further testified that she
was an excellent worker.
It is thus apparent that Black's discharge was defended by the respondents
on the ground that she allegedly had feigned sickness on March 5, which is not
supported by the evidence and presumably on the basis of the report made by
Moore. Their pay roll records show that she worked on the 6th and through the
13th, which apparently was unknown to Howerton and Ptzseck. Black offered
to present proof that she had been ill, but was denied that opportunity to explain
19The respondent produced the absentee record of Black which showed that she was
absent from work as follows : September 26 and 30; October 2 and 3; November 6 through
21; December 12; January 28; February 5, 17 and 29; March 1, 5 and 14. In November
she was married, which accounts for the 2 weeks absence in that month, which was
excused by the respondents.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her legitimate absence by Polan. That fact is so contrary to the respondent's
policy of according discharged employees a hearing with a view to adjusting such
matters, as to compel the undersigned to reject their defense. When this fact is
considered with the positive testimony of Howerton and the vague testimony of
Ptzseck , that she was discharged on March 6, following Black's alleged feigned
illness, and Polan's association of her discharge with that event, the undersigned
is convinced and finds that the respondents initilized an, absence which the
record shows was legitimate in an attempt to effect her discharge for discrimina-
tory reasons.
Wade Wilson was first employed by the respondents on August 12, 1942, as a
janitor . In point of service he was the oldest janitor in the plant , and "all the
bosses" said he was the best janitor . He joined the Union shortly after his
employment and solicited one membership for the Union . In April 1943 , his fore-
man, James Scales, told him that he knew Wilson was talking "union " and "all
that joined and affiliated with that organization can get them another job."
On June 15, 1943, Wilson reported for work at 3: 15 p. in. He met Scales and
was asked by him if he had seen the 4th and 5th floor janitors . Wilson said he
had not seen them to which Scales said, "I am going to get rid of them . . . and
get men like you and Cap Brown ." Wilson was admittedly a good worker.
Wilson , a credible witness, testified that about 5: 15 p. in. that day , June 15,
Scales came to him and asked him to look after the cleaning of the third floor in
addition to doing his regular work. According to Wilson , the following colloquy
occurred : Wilson said "God , Jim, don 't you think you have enough power over
me, are you going to work me to death . I can 't do that." Scales then said :
"You can't do it?" Wilson countered with the question , "How am I going to do
it?" and was then told by Scales , "Go and ,pull your card ," which meant that he
was discharged.
Scales testified that on the occasion just referred to, he was short of help and
"so when I , am short like that I always ask the janitor on the floor below to help
... you know in order to carry the work along. He flatly refused and went
down and punched his card, and there was nothing I could do . He quit ... I
said , "You mean you aren't going to help me ?", and he went down and punched
his card."
It thus appears that the respondents contend that they did not discharge
Wilson but that he quit because Scales asked him to do additional work, and it
is Wilson 's testimony that he was discharged because he objected to doing that
work . It is not necessary to resolve the conflict . That Scales had no intention
of discharging Wilson on June 15 is evidenced by Wilson's own testimony that
Scales was , going to discharge two other janitors and replace them with men
like Wilson and Cap Brown . There is no evidence that the additional work
which Scales asked Wilson to perform was a discriminatory use of authority or
a departure from the customary practice in the plant. Therefore , upon Wilson's
own version , his refusal constituted insubordination and a legitimate cause for
his discharge.
The undersigned finds that Wilson was not severed from the pay roll of the
respondents because of this union membership and activity.
The undersigned finds that the respondents discharged and thereafter refused
to reinstate to their , former or substantially equivalent employment on the dates
following their names , the following persons : Doreene Eckley , January 19, 1943;
Gaylord Kidd, January 25, 1943; Edgar L. Johnson , January 28, 1943;, Buell
Smallwood , February 5, 1943; Marguerite Stein, February 12, 1943; Glen Poling,
February 15, 1943; Madeline Peyton, February 22, 1943; Louise Baker , March 3,
1943 ; Hugh Pribble , March 3, 1943; and Thelma Black, March 15, 1943, for the
ieason that they joined and assisted the Union , and Fred Allen Rudman on March
0
ZENITH OPTICAL COMPANY 275
1, 1943, because of his sympathies for the Union , thereby discouraging member-
ship 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 undersigned further finds that the respondents, by the statements of Greig
and Chedester, on or about January 15, 1943, which were overheard by Johnson;
the statements of Dent to Stein in January 1943; the statements of Kinder and
Perry to Smallwood on or about December 13, 1942, February 5 and 8, respec-
tively; the statements of Scales to Wilson on April 15, 1943; and the statements
of D'Ammato and King to Poling about January 7, 1943, as above set out, the
respondents interfered with, restrained and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondents set forth in Section
III above, occurring in connection with their operations described in Section I
above, have a close, intimate and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondents have engaged in unfair labor
practices, it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondents discriminated in regard to the hire
and tenure of employment of Gaylord Kidd, Edgar L. Johnson, Marguerite
Stein, Mrs. Madeline Peyton, Fred Allen Rudman, Mrs. Louise Baker, H. T.
Pribble, Mrs. Thelma Black, and Buell Smallwood. Smallwood does not desire
reinstatement. It will be recommended that, except as to Smallwood, the
respondents offer them immediate and full reinstatement to the positions they
held at the time of their discharge or if these positions are not available, to
substantially equivalent positions. It will be recommended also that the re-
spondents make whole Gaylord Kidd, Edgar L. Johnson, Marguerite Stein, Mrs.
Madeline Peyton, Fred Allen Rudman, Mrs. Louis Baker, H. T. Pribble, and
Thelma Black, for any loss of pay they may have suffered by reason of the dis-
crimination against them by payment to them of a sum of money equal to
the amount each would have earned as wages from the date of the discrimina-
tion -against them to the date of the offer of reinstatement, less their net earn-
ings,20 during said period , and that Smallwood be made whole for any loss of
pay he may have suffered from the date of the discrimination against him to
the date of this present employment , less his net earnings during that period.
It has been found that the respondents discriminated with regard to the hire
and tenure of employment of Glen Poling and Doreene Eckley. They are now
serving with the Armed Forces of the United States and accordingly are not
available for immediate reinstatement . It will be recommended that the re-
spondents upon application by Glen Poling and Doreene Eckley within 40 days
20 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. Monies received for
work performed upon Federal , State, county, municipal, or other work-relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L. R . B. 311 II. S. 7.
O
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after their discharge from the Armed Forces of the United States offer-them
reinstatement to their former or substantially equivalent positions without preju-
dice to their seniority or other, rights and privileges. It will be recommended
further that the respondents make whole Glen Poling and Doreene Eckley for
any loss of earnings they may have suffered by reason of the respondents'
discrimination against them by immediate payment to them of a sum of money
equal to the amount each normally would have earned as wages during the
period between the date of discharge and the (late of entry into the Armed
Forces less their net earnings during that period ; and by payment to them of
a sum of money equal to the amount each normally would have earned as wages
between a date 5 days after their timely application for reinstatement and the
date of offer of reinstatement by the respondents less their net earnings during
said period.
Upon the foregoing; findings of fact and upon the entire record in this case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. Optical Workers Coordinating Committee, affiliated with the Congress of
Industrial Organizations, is a labor organization, within the meaning of sec-
tion 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Gay-
lord Kidd, Edgar L. Johnson, Doreene Eckley, Glen Poling, Marguerite Stein,
Mrs. Madeline Peyton, Fred Allen Rudman, Mrs. Louise Baker, H. T. Pribble,
Mrs. Thelma Black, and Buell Smallwood, and thereby discouraging membership
in Optical Workers Coordinating Committee, affiliated with the Congress of
Industrial Organizations, the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining and coercing their employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act, the respondents have
engaged in and are engaging in unfair labor practices, within the meaning of
Section 8 (1) 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 respondents did not violate the Act by discharging Wade Wilson.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and the
entire record in the case, the undersigned recommends that the respondents
A. S. Polan, L M. Polan, C. M. Polan, Lake Polan, Jr., and E. J. Polan, a part-
nership doing business under the firm name of Zenith Optical Company, their
officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Optical Workers Coordinating Committee,
affiliated with the Congress of Industrial Organizations, or in any other labor
organization of their employees by discharging or refusing to reinstate any
of their employees, or by discriminating•in any other manner in regard to their
hire and tenure of employment or any term or condition of their employment ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the rights to self-organization, to form, join, or assist
labor organization, to bargain collectively through representatives of their' own
choosing and to engage in concerted activities for the purposes of collective
bargaining for their mutual aid or protection as guaranteed in Section' 7 of
the Act.
ZENITH OPTICAL COMPANY 277
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Gaylord Kidd, Edgar L Johnson, Marguerite Stein, Mrs. Made-
line Peyton, Fred Allen Rudman, Mrs. Louise Baker, H. T. Pribble, and Thelma
Black, immediate and full reinstatement to their former or substantially equiv-
alent positions without prejudice to their seniority or other rights and
privileges ;
(b) Make whole' Gaylord Kidd, Edgar L. Johnson, Marguerite Stein, Mrs.
Madeline Peyton, Fred Allen Rudman, Mrs. Louise Baker, H. T. Pribble, and
Mrs. Thelma Black, for any loss of pay they may have suffered by reason for
the respondents' discrimination in regard to their hire and tenure of employment
and terms and conditions of their employment by payment to them of a sum
of money equal to that which each normally would have earned as wages from
the date of the discrimination against him to the date of the offer of reinstate-
ment, less his net earnings during this period ; and make whole Buell Smallwood
for any loss of wages he may have suffered from the date of the discrimination
against him to the date of his present employment less his net earnings during
that period;
(c) Upon application-by Glen Poling and Doreene Eckley within 40 days after
their discharge from the Armed Forces of the United States offer them imme-
diate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges;
(d) Make whole Glen Poling and Doreene Eckley for any loss of earnings
suffered by reason of the respondents' discrimination against them by imme-
diate payment to them of a sum of money equal to the amount each normally
would have earned as wages during the period between the (late of their dis-
charge by the respondents and the date of their entry into the Armed Forces
less their net earnings during that period ; and a sum of money equal to the
amount each normally would have earned as wages between a date 5 days
after Poling's and Eckley's timely application for reinstatement and the date
of the offer of reinstatement by the respondents, less their net earnings (luring
that period ;
(e) Post immediately in conspicuous places in its Huntington, West Virginia
plants and maintain for a period for at least sixty (60) consecutive days from
the date of posting, notices to their employees stating: (1) that the respondents
will not engage in the conduct from which it is recommended that they cease
and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the
respondents will take the affirmative action set out in paragraph 2 (a), (b),
(e), and (d) of these recommendations; and (3) that the respondents' em-
ployees are free to become or remain members of Optical Workers Coordinating
Committee, affiliated with the Congress of Industrial Organizations, or any
other labor organization of their choice and that the respondents will not dis-
criminate against any employees because of their membership or activity in
any of these organizations;
(f) Notify the Regional Director for the Ninth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respond-
ents have taken to comply therewith.
It is further recommended -that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondents notify said Regional Direc-
tor in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
It is recommended that the complaint he dismissed as to Wade Wilson.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October, 28,
1942-any party may within fifteen (15) days from the date of the, entry of
the order -transferring the case to the, Board, pursuant: to Section 32, of Article
II of said Rules and Regulations, file with the Board, Rochambeau, Building,
Washington, 25, D. C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding (including rulings upon all. motions or objections)
as he relies upon, together with the original, and four copies of a brief in, sup;
port thereof. As further provided in said Section 33, should any party desire
permission to argue orally before the Board, requests therefor must be made
in writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
GUSTAF B. ERICKSON,
Trial Examiner.
Dated September 14, 1943.
a