Hudson Optical, Inc.

HUDSON OPTICAL, INC. 149 Hudson Optical, Inc., and Custom Optical, Inc. and United Optical Workers, Local 408, International Union of Electrical, Radio & Machine Workers, AFL-CIO. Case No. ?-CA-5568. November 19, 1958 DECISION AND ORDER On July 18, 1958, Trial Examiner Ralph Winkler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain alleged unfair labor practices, and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondent filed exceptions to the Intermedi- ate Report and briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by the above-named labor organization, herein called the Union, the General Counsel of the National Labor Relations Board issued a com- plaint dated December 31, 1957, against Hudson Optical, Inc., and Custom Optical, Inc., herein jointly called Respondent, alleging that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and charges were duly served upon Respondent, in response to which Respondent filed an answer denying the unfair labor practices alleged. Pursuant to notice, a hearing was held on various dates in May 1958, at New York, New York, before the duly designated Trial Examiner. All parties were rep- resented by counsel and participated in the hearing ; they were also given oppor- tunity for oral argument at the close of the hearing and to file briefs as well. Upon the entire record in this case , and upon observation of the demeanor of witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Hudson Optical , Inc., and Custom Optical, Inc., are New York corporations; they are a single integrated enterprise with their principal office and plant located in New York City where they are engaged in the manufacture and sale of optical frames and related products; their interstate sales during the past year exceeded $50,000. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 122 NLRB No. 19. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Local 408 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE On July 8, 1957, the Union filed a petition in Case No . 2-RC-8983, seeking certification as representative of Respondent's employees . Notice of such filing was served on Respondent that same month, following which a notice of hearing was issued and served on August 12. An order rescheduling the hearing from Sep- tember 5 to September 10 was served on August 14, and a meeting on the petition was held at the Board's Regional Office on September 12, 1957. The parties exe- cuted a consent-election agreement at the September 12 meeting ; in accordance with such agreement, the Regional Office conducted an election on September 30, 1957. The Union did not obtain a majority of the eligible votes cast and it thereafter filed objections to conduct affecting the results of the election. The Regional Director , upon investigation , directed the September 30 election set aside and another election held. The second election has not yet been conducted. Respondent's workweek ends on Wednesday and its employees are paid on Friday. The salary checks received by approximately 125 of 150 employees on September 13 (the day following execution of the aforementioned consent-election agreement ) contained a wage increase . The complaint alleges as the sole issue in this case that Respondent granted these wage increases after entering into the consent-election agreement in order to induce employees not to choose the Union as their bargaining representative. Irving Hirschman is Respondent's president and Marietta Sperber is the office manager. Sperber and Hirschman testified that: Hirschman requested Sperber in June 1957 to prepare a complete list of employees with wage and employment data for submission to Hirschman after the July vacation ; Sperber prepared and gave Hirschman such a list about the latter part of July or the first week of August;' and Hirschman returned the list to Sperber about the third week of August with instructions to include stated increases in salary checks distributed on September 13, for the workweek ending September 11. Sperber further testified that the office practice is to begin collating weekly payroll data on Wednesday morning, with the salary checks being made out early Thursday afternoon for distribution on Friday . This practice was followed , also according to Sperber , as to the checks distributed on September 13. The aforesaid original list prepared by Sperber , concerning which Sperber and Hirschman testified , was adduced at the hearing and their testimony is recalled to the effect that Sperber prepared the list in July or the first week of August 1957. This list contains names of employees who were hired as recently as August 13, 14, and 15; it is apparent, upon examination of the physical makeup of the list, that the list could not have been prepared until on or after August 16 . Neither Sperber nor Hirschman was able to explain the discrepancy between the list and their testi- mony concerning it. Hirschman and other Respondent witnesses testified that , in addition to individual merit increases given throughout the year, the September 1957 increases followed a pattern of general increases given in September at least since 1955.2 There was testimony in this connection of a contract operative during this period with another union ; Hirschman's testimony is uncontroverted , however, that the wage increases of September 1955 and 1956 were . not required by such contract and were not made pursuant to negotiation or consultation with said contracting union. Hirsch- man and other Respondent witnesses also testified in effect that the Sepember 1957 increases followed the practice of the September 1955 and 1956 increases in that, except for Sperber and her payroll staff, no prior notice of such increases was given to employees or supervisors. Hirschman testified that all his foremen had inquired in the spring and summer of 1957 concerning wage increases for rank-and -file employees and the foremen advised him that employees had been requesting increases , Hirschman testified that he granted the September 1957 increases because of rising living costs and to avoid employee turnover and that he decided in August to instruct Sperber to 1 Sperber testified that she could not have prepared this list as late as August 15. In September 1955, approximately 100 of 175 employees received increases ; in Septem- ber 1956, the figure was 81 of 169 employees. FARMERS UNION CREAMERY ASSOCIATION 151 make such increases effective, as stated above, because of an upturn in Respond- ent's own business conditions . According to several foremen, however , employees requested wage increases all year around and employee turnover was no greater in 1957 than in prior years. Although Hirschman first testified that he had no knowledge of the Union's representation petition when, in August, he allegedly directed Sperber to include wage increases in the September 13 checks, he later testified to a "vague knowledge" of the petition at such time; still later he admitted in effect, and I find, that he took such action with complete knowledge of the petition. Hirschman also first testified that he was unaware of the Union's organizational campaign before September 12 and he further denied counterefforts by Respondent in such connection ; the record demonstrates Hirschman's testimony incredible on both grounds. Conclusions Although I am convinced that Hirschman is not a truthful witness and that Sperber, his office manager, also is not entitled to belief , the record as made shows a pattern of September general increases and there is no evidence contraverting the testimony that the September 1957 increases were promulgated before the execution date (September 12) of the consent -election agreement. In these circumstances I am constrained to find that there is no record preponderance to support the General Counsel's complaint herein. I accordingly recommend dismissal of the complaint. Farmers Union Creamery Association, Petitioner and Local 74, General Drivers & Helpers Union, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 18-ISM-270. November 19, 1958 SECOND SUPPLEMENTAL DECISION AND CERTIFICA- TION OF RESULTS OF ELECTION Pursuant to a Second Direction of Election issued by the Board on July 1, 1958,1 an election by secret ballot was conducted on July 29, 1958, under the direction and supervision of the Regional Director for the Eighteenth Region among the employees in the unit found appro- priate by the Board. Upon the conclusion of the election the parties were furnished with a tally of ballots which showed that of 29 eligible voters, 25 cast valid ballots, of which 1 was for the Union, 11 were for no labor organization, and 13 ballots were challenged. The chal- lenged ballots were sufficient in number to affect the results of the election. On July 30, 1958, the Union filed objections to the conduct of the election. After investigating the issues raised by the objections and the challenges, the Regional Director on August 29, 1958, issued and duly served upon the parties his report in which he found that the objections raised no substantial or material issues with respect to the conduct of the election and recommended that they be overruled. He has also recommended that all the challenges be sustained and that a 1 Unpublished. 122 NLRB No. 22