Shuron Optical Co., Inc.

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