Titmus Optical Co.

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