American Optical Co.

National Labor Relations Board - Board Decisions

Apr 18, 1951

93 N.L.R.B. 1547 (N.L.R.B. 1951)

AMERICAN OPTICAL COMPANY 1547
2. The Respondent , The Radio Officers' Union of the Commercial Telegraphers
Union, AFL, is a labor organization within the meaning of Section 2 ( 5) of the
.amended Act.
.3. By restraining and coercing employees and prospective employees in the
'exercise of a right guaranteed in Section 7 of the amended Act, the Respondent
did engage in and has continued to engage in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the amended Act.
4. By causing A. H. Bull Steamship Company, an employer, to discriminate
against a prospective employee in violation of Section 8 (a) (3) of the amended
Act, the Respondent engaged in , and is engaging in, unfair labor practices within
the meaning of Section 8 (b) (2) of the amended Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the amended Act.
(Recommended Order omitted from publication in this volume.]
AMERICAN OPTICAL COMPANY and UNITED OPTICAL AND INSTRUMENT
WORKERS of AMERICA, LOCAL No. 28, "CIO. Case No. 1-CA-676.
April 18,1951
Decision and Order
On January 9, 1.951, Trial Examiner Sidney L. Feiler issued his
Report in the above-entitled proceeding, finding that the Respondent
had engaged and was engaging in certain unfair labor practices and
recommending that it be ordered to cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices and recommended dismissal of the allegations of the complaint
relating thereto. Thereafter, the Respondent and the Union filed
exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.-- The Board has considered the Intermediate
Report, the briefs and exceptions, and the entire record in the case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, including his dismissal of the complaint with respect
to the discharge of William Morin.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
,of the National Labor Relations Act, the National Labor Relations
1 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 [ Chairman Herzog and
Members Murdock and Styles].
2 At the hearing the Respondent moved that the complaint be dismissed on the ground
that the record did not show any allegation or proof that the Union was in compliance
with Section 9 (f), (g), and ( h) of the Act. For the reasons stated in Lion Oil Company,
76 NLRB 565 , we affirm the Trial Examiner ' s denial of this motion.
93 NLRB No. 265.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent, American Optical Com-
pany, its officers, c gents; successors, and assigns, shall :
1. Cease and desist from :
(a) Questioning employees at its Worcester branch concerning their-
union affiliation and sympathies.
(b) Promising employees at its Worcester branch benefits if union
organization at this branch is rejected.
(c) Engaging in like or related acts or conduct interfering with,
restraining, or coercing employees at said branch in the exercise of
their right to self-organization, to form labor organizations, to join
or assist the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of mutual aid or pro-
tection, or to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act: -
(a) Post at its Worcester, Massachusetts, branch, copies of the
notice attached hereto and marked Appendix A 3 Copies of said no-
tice, to be furnished by the Regional Director for the First Region,
after being signed by an authorized representative of the Respondent,
shall be posted by the Respondent at its Worcester Branch and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the First Region in writing
with ten (10) days from the receipt of this Decision and Order what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent discriminatorily discharged William J.
Morin.
Intermediate Report and Recommended Order
Mr. Joseph Lepie, for the General Counsel.
Messrs. Gerard D. Reilly, of Washington, D. C., and Juliana A. Wilhelm, of
Southbridge , Mass., for the Respondent.
Mr. James A. Beattie , of Boston , Mass, for the Union.
3 The notice shall be amended by substituting in the caption the phrase , "A Decision and
Order" for "The Recommendations of a Trial Examiner ." If this Order is enforced by
a decree of ii United States Court of Appeals, there shall be inserted before the words,
"A Decision and Order," the words, "A Decree of the United States Court of Appeals
Enforcing."
AMERICAN OPTICAL COMPANY 1549
STATEMENT OF THE CASE
Upon a charge filed by United Optical and Instrument Workers of America,
Local No. 28, CIO, herein called the Union, against American Optical Company,
herein referred to as the Respondent, the General Counsel of the National
Labor Relations Board' by the Regional Director for the First Region ( Boston,
Massachusetts), issued a complaint dated September 8, 1950, against said
Respondent alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act as amended, 61 Stat 136, herein called the Act.
With respect to the unfair labor practices the complaint alleges in substance
that: (1) The Respondent on or about April 14, 1950, discharged William Morin
because of his union membership and activities; (2) the Respondent from on or
about April 10, 1950, has interrogated its employees concerning their union
affiliation; (3) has warned its employees to refrain from assisting , becoming
members of or remaining members of the Union; and (4) has promised its
employees benefits if the Union was unsuccessful in organizing its employees
The Respondent in its answer dated September 15, 1950, admits certain juris-
dictional allegations, but denies the commission of any unfair labor practices.
The Respondent prior to the hearing also filed a motion to dismiss the complaint
on the ground that the charge attached to the complaint does not show that
the compliance status of the Union has been verified in accordance with the
requirements of the Board's Rules and Regulations and because it does not appear
that there has been compliance with all the requirements of Section 9 (f), (g),
and (h) of the Act. This motion was referred to Trial Examiner Robert E.
Mullin, who on September 26, 1950, issued an order denying the motion
'Pursuant to notice, a hearing was held at Worcester, Massachusetts, from
October 10 through October 13, 1950, before the undersigned Sidney L. Feller,
the Trial Examiner designated by the Chief Trial Examiner. All the parties
R ere represented by counsel or a representative. Full opportunity to be heard
and to examine and cross-examine witnesses was afforded all parties.
At the beginning of the hearing the Respondent renewed its motion to dismiss
the complaint on the basis that there was no allegation therein that the Union
had complied with the filing requirements set forth in the Act The motion
was denied At the conclusion of the General Counsel' s case-in-chief the Re-
spondent renewed its motion to dismiss on the ground that no evidence was
submitted to show compliance with Section 9 (f), (g), and (h) of the Act, and
also because there had been a failure of proof This motion was denied. At
the conclusion of the taking of testimony the General Counsel moved to conform
the pleadings to the proof as to formal matters. This motion was granted as to
all pleadings without objection. The parties then waived oral argument.
Opportunity was afforded them to file briefs and/or proposed findings of fact
and conclusions of law. Briefs were received from the General Counsel and the
Respondent.
Upon the entire record and from his observation of the witnesses , the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts business trust having its principal office
and place of business in Southbridge, Massachusetts. While it manufactures
1 The General Counsel and the attorney representing him at the bearing are referred
to as the General Counsel. The National Labor Relations Board is referred to as the Board.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and sells noncorrective sunglasses , safety equipment, clothing, specialty products,
and instruments, the major portion of its business is the manufacture, sale, and
distribution of ophthalmic equipment and material (i. e., materials for the cor-
rection of vision). It maintains a plant at Southbridge, Massachusetts, where,
lenses, frames, mountings, refracting equipment, and machinery for optical
laboratory use are produced. In the last 12 months the Respondent purchased
materials and equipment, for use at its Southbridge plant, valued in excess of &
million dollars, of which in excess of 50 percent was shipped from points out-
side the State of Massachusetts to the Southbridge plant. During the same-
period its total sales were valued at approximately 10 million dollars of which.
over 75 percent was shipped to points outside the State of Massachusetts.
Ophthalmic or corrective supplies and equipment are shipped to, zone offices
located throughout the country from which most of these products are sent to,
280 branches in the United States and 40 in Canada for ultimate, use and sale.
Branch offices operate as ophthalmic prescription laboratories filling prescrip-
tions at the request of members of the eye-care profession and also supplying
raw materials and equipment to members of the ophthalmic profession.
The unfair labor practices set forth in the complaint are alleged to have oc-
curred at the Worchester, Massachusetts, branch of the Respondent. This
branch is one of 23 like branches under the jurisdiction of New England Zone
Manager Howard H. McEvoy, whose headquarters are in Boston.
The Worcester branch serves customers in Worcester County, Massachusetts,
and Putnam , Connecticut. Its annual use of materials is in excess of $100,000'
of which the largest item is lenses received from the Southbridge, Massachusetts,
plant. Its annual sales are in excess of $230,000. Of these total sales approxi-
mately 60 percent is made to members of the ophthalmic profession and the
principal work performed at this branch is the filling of prescriptions by lab-
oratory workers.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act in its business operations, including those of the Worcester branch,
and the undersigned so finds.'
II. TIIE LABOR ORGANIZATION INVOLVED
United Optical and Instrument Workers of America, Local No. 28, affiliatecl
with the Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the Respondent 3
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
The Worcester branch occupies approximately 1,300 square feet of space which
is partitioned into four rooms. One room serves as the general office, another
as the stockroom, a third as the surface grinding room where lenses are ground
to prescription requirements, and in the fourth room laboratory technicians grind
the edges of lenses and fit them into frames. In March 1950 the Worcester staff
consisted of a branch manager, Nils A. Pierson, four office girls, one office boy.
and nine laboratory workers.
2 The Borden Company, Southern Division, 91 NLRB 628 Other cases in which the-
Board has asserted jurisdiction over the operations of the Respondent can be found
at 32 NLRB 455, 33 NLRB 950, and 63 NLRB 924.
3 The Union has been certified at different times as collective bargaining representative
in seven units in the New England zone covering 25 percent of all employees in the zone-
AMERICAN OPTICAL COMPANY 155r
It was customary for the laboratory workers to eat lunch together in one of
the laboratory rooms. In the beginning of March 1950, these men began to discuss,
the Union. At about the middle of the month they delegated one of their group,,
Francis Foster, to contact the Union.
Foster communicated with James A Beattie, a representative of the Union,
and arranged to have him meet with the men at the home of another employee,,
William J Morin. Morin's home was chosen because Morin, in addition to being
an employee of the Respondent, was also a licensed optometrist and conducted
business as an optometrist at his home in Leominster, Massachusetts, in.evening
hours and other nonworking periods, and he wished to be available at his home
on the night of the meeting for any patients who might appear.
The union meeting took place on the night of April 4. Seven of the laboratory
workers met with Beattie on that night at Morin's house. The Union was dis-
cussed and the men signed membership cards. On April 5, Beattie sent a letter
to the Respondent requesting recognition for a unit of the laboratory workers at
the Worcester branch. On April 7 a reply was sent him suggesting that the
Union seek a Board-conducted election in order to determine whether the em-
ployees wished union representation.
On April 6 Beattie filed with the Board a petition seeking a Board-conducted-
election. Notice of the filing of this petition and the beginning of an investigation
concerning it, was sent the Respondent and the Union on April 11. Beattie re-
ceived his notice by mail on the morning of April 12. Pursuant to a Board deci-
sion an election was held on June 9, 1950, in a unit consisting of all the laboratory
workers at the Worcester branch. The balloting resulted in a 4-4 tie on the
question of union representation with one challenged ballot-Morin's. No
further action has been taken pending the outcome of this proceeding.
B. Acts of interference, restraint, and coercion
Soon after the Union made its demand for recognition, Pierson engaged indi-_
Nidual employees in conversations concerning it. The first such conversation
took place about April 10 with Foster. Others occurred later but the dates of
these could not be fixed acurately by the witnesses. However, Pierson even-
tually spoke with seven of the nine laboratory employees. He did not speak'
with Morin or Peter Paul Pastore.
Pierson testified as follows concerning the substance of these conversations:
A. The conversations were all generally along the same line. Naturally,
they differed some. I brought out the fact that we had received this request
for Union recognition. I asked them what they thought their possible causes
for such a request might be, and generally what they thought any gripes
might be, or anything like that, that would cause any dissatisfaction.
Trial Examiner FEII.ER : Anything else?
The Witness : I believe I asked them if they thought that it would be a
generally good thing for the organization, that is, the employees as a group.
There was considerably more conversation back and forth, but I think that
is the meat of the conversations.
Poster's version of his conversation with Pierson concerning the Union is as,
follows :
He asked me what I knew about the Union, and I told him not too much,
and he said he didn't want me to mention any names or implicate anyone
and proceeded to say he didn't think it was too good an idea, that for men
that were in Springfield, where there was a Union, we were equally as well
off as they... .
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pierson denied that he made any reference to conditions in Springfield during
his conversation with Foster although he admitted that it was possible that he
had made such a reference. He maintained that he stopped Foster and asked
liim if he had heard about the Union's request for recognition and that it was
in that connection that Foster replied that he did not know too much about it.
Timothy O'Connor, Jr., also had a conversation with Pierson concerning the
Union. His testimony as to what was said is as follows :
A. Mr. Pierson asked me if I knew about the Union, and I said yes. He
says, "The Union out in Springfield hasn't done anything good for the
employees out there. By the time they get done paying their Union dues,
they're no better off than we are, that we'd have no more family life there
in the A. 0."
Trial Examiner F EILE1: In what?
The Witness : We'd have no more family life in the A. O.
Trial Examiner FEILER: With the Union?
The Witness : With the Union in there, and if we wanted a favor, we
won't be able to ask Mr. Pierson. We would have to go through channels
in the Union and what-not. That's about all he said that I can remember.
No further testimony was offered as to these conversations There is no
serious conflict in the testimony of Pierson. Foster, and O'Connor and the under-
signed has accepted their testimony as indicated in the finding herein.
Pierson testified that the idea of speaking to the employees concerning the
Union was his own idea and that he did not seek or obtain DMIcEvoy's approval
to speak to the employees. However, he testified, he (lid speak with Lawrence
E. Haskins, assistant zone manager of the Boston zone and McEvoy's adviser
on labor relations, who approved the idea. He further testified that he reported
to Haskins and McEvoy as to what men he had spoken to and what the con-
versations were about
The Respondent contends that Pierson's remarks were not violative of the
Act because there was no attempt to inquire into union activities, but merely
an attempt to find out whether the Union's request for recognition was mo-
'tivated by any employee grievances The undersigned does not agree.
Contrary to the contention of the Respondent, the undersigned finds that
there was interrogation here which sought to probe the union sympathies of
those questioned. Pierson himself testified that he asked the employees whether
the Union would be a good thing for the employees as a group. Obviously, the
answer to that question in each case would reveal whether or not the employee
was or was not in favor of the Union. ( uestions as to what employees "think"
or "feel" about a union are violative of the Act' Pierson's questioning in this
case similarly violated the employees' right to the privacy of their own opinions
concerning activities protected by the Act and, as such, constituted a violation
of Section 8 (a) (1) of the Act.' Pierson's motives, even if they were innocent,
:ire immaterial in this connection.' The fact that, as Foster testified, Pierson
did not attempt to secure the names of union members does not detract from
the violation of the Act inherent in the questioning itself. Moreover, this was
not an isolated spur-of-the-moment impulse on the part of Pierson. Ultimately,
lie questioned seven of the nine employees in the appropriate unit. His su-
periors knew what he was doing and received reports from him concerning
the conversations.
4 Morristown Knitting Mills , 80 NLRB 731, 745.
5 Standard-Coosa-Thatcher Company, 85 NLRB 1358.
The F C. Russell Company, 92 NLRB 206.
AMERICAN OPTICAL COMPANY 1553
It has also been held that asking employees if any reports of a union had
come to their attention is violative of the Act.' Foster and O'Connor were both
asked such a question by Pierson.
The undersigned agrees with the Respondent that Pierson's disparagement
of the Union was not violative of the Act. As to O'Connor's testimony that
Pierson told him that with the Union representing the employees the men
would not be able to ask him for favors but would have to proceed through
the Union, insofar as Pierson did not restrict his statement to the processing
of grievances, he clearly misstated the implications of union representation.
However, the undersigned concludes that this remark, in the absence of further
comment by Pierson clarifying his meaning, was not violative of the Act.
The Respondent contends that the questioning of employees by Pierson was
not within the allegations of the complaint wherein it is alleged in part that
the Respondent "interrogated its employees concerning their union affiliation."
Pierson's questioning did have the effect of requiring employees indirectly to
reveal their union affiliation and sympathies and this violation, therefore, is
within the scope of the pleadings. In addition, there was full litigation of
the circumstances under which Pierson questioned the laboratory workers.
The complaint further alleges that the Respondent violated the Act by promis-
ing its employees benefits if the Union was unsuccessful. The evidence on this
point deals with occurrences on the night before the representation election held
among the laboratory workers of, the Worcester branch when a dinner was given
for them by the Respondent. It was the only dinner ever given by the Respond-
ent for these employees. Pierson was the only management representative
attending. He testified that the idea for the dinner was his, but that McEvoy
approved the suggestion when he told McEvoy that the purpose of the dinner
would be to have an open discussion, allow the employees to say anything they
might choose to, and also, he, Pierson, would probably express his personal
opinion to some extent. The Respondent paid for the dinner. Pierson's testimony
as to what was said at the dinner is as follows :
Q. What did you say?
A. I brought up the matter by simply stating that I believed we all real-
ized that we had an important thing in front of us the following day, and
I thought possibly there was something that some of the fellows, some
questions the fellows might like to ask me, anything they might like to say.
That opened a general discussion that lasted a considerable length, with
practically everybody-if not everybody-taking part.
Q. Did you warn these employees against joining the Union or voting
for it?
A. No. I did not.
Q. Did you make any threats at all?
A. No.
Q. To use the words of the Complaint, did you promise the employees
benefits if the Union was not successful in an election?
A. No.
Q. You have been quoted here as saying that you would have a freer hand
at giving them raises if the Union was not successful. Did you say any-
thing along that line?
A. Well, yes, I did. In doing that, there was more to it. I pointed out
that if they elected to have a Union, that the only way any changes of any
' The Warren Company, Incorporated, 90 NLII.B 689.
943732-51-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kind could be made, would be, as I understood it, through Union negotiation.
That would be the only way to make changes of any kind ; whereas if they
were not organized as a Union, I could make changes on the basis of merit
simply by recommending, certainly giving we a freer hand.
Pierson further testified that in the past he had recommended merit increases
for individual employees to McEvoy and that in practically every case his rec-
ommendation had been followed. He also added that at the dinner he men-
tioned that $62 was the top union wage but that if increases were based strictly
on merit an employee could earn according to his ability and value to the
Company rather than according to any stipulated contract rate.
Three employees who attended the dinner at Pierson's invitation testified
concerning what was said there. Francis E. Foster testified that Pierson said
that he was not in favor of the Union and that if the men did not vote for it,
the Boston office would probably give him a freer hand in giving raises; that the
Union was not working too well in other branches of the Company, such as
Springfield.
Timothy O'Conner, Jr., agreed with Foster's version; he also added that
Pierson stated that even if the men did get $62 a week that would be as far
as they would go, whereas, if the men voted against the Union, he would probably
have a free hand to make raises in the future.
Peter Paul Pastore testified that Pierson stated that it would make him very
happy if the men voted against the Union and that it took something like this
to give the Company a "kick in the pants" and that if the men would vote
against the Union he would get a freer hand and would see what he could do.
The undersigned, from his observation of the, witness, credits the testimony
of Foster, O'Connor, and Pastore and concludes from all the evidence that
Pierson did more than indicate that without a union, merit increases could be
made on recommendation whereas with a union such changes would have to be
negotiated. The credited testimony indicates that Pierson strongly hinted that
the defeat of the Union would result in liberal treatment in the awarding of
raises. It constituted a promise of financial benefit if the men voted against
the Union and, as such, was violative of the Act.8
C. The discharge of William J. Morin
William J. Morin was discharged by Pierson at the close of business on
April 14. Morin had been employed by the Respondent since 1937 as a lens
grinder although he had not always worked full time. He studied optometry
from 1939 until 1943 and worked for the Respondent only during the summer
months of that period. After his graduation he returned to the Respondent's
full-time employ and so continued until his termination. He was stationed
in the Worcester branch from September 1943. Dr. Morin received his
State license in 1946 and in May of that year opened his own office at his home
for the private practice of optometry on his own free time. The Respondent
was aware of this private practice because Morin brought his prescriptions to
the Worcester branch for completion and the Respondent maintained records
for him as well as other customers showing the monthly amount of purchases
of supplies or of prescription work and each year an entry was made on his
records showing his estimated or projected purchasing power. The Respondent
does not assert that it discharged Dr. Morin because of his work as a laboratory
employee ; rather it maintains that it took the action it did because of certain
8 Medo Photo Supply Corp . v. N. L. R. B., 321 U. S. 678, 686 ; May Department Stores
Co. v. N. L R. B, 326 U. S 376, 385.
AMERICAN OPTICAL COMPANY 1555
action taken and the possibility of additional action by the Massachusetts Society
of Optometrists.
The action on which the Respondent relies was originated by Dr. Fred H.
Gathercole, an optometrist with offices in Fitchburg, Massachusetts. Dr. Gather-
cole testified that he had patients in the adjoining city of Leominster where Dr.
Morin practiced and that some of those patients told him that their friends
and neighbors had been able to obtain professional services from Dr. Morin
at prices substantially less than Dr. Gathercole's and other optometrists'. Dr.
Gathercole attended the annual convention of the New England Council of
Optometrists on March 12, 1950, and there, he met and spoke with John P. Regan,
sales manager of the Respondent for the New England zone. The substance
of their conversation, according to Dr. Gathercole, was as follows-
A. I registered a complaint with him that he had in his employ a man
who was charging sub-standard fees and I was getting complaints from
patients of mine from Leominster. And the point I wanted to make to
him was that I didn't think it was fair for them to hire a man who took:
advantage of having his living provided for and then could, on his spare-
time without any extra overhead, do work at sub-standard fees. I just:
was not finding fault with Dr. Morin as I was with the American Optical!
Company conducting that kind of a situation, and the purpose of it was
that I thought they would say to Morin, "Well, if you are going to work for
us and practice optometry and compete with the other optometrists, you
have got to do it in such a way that there is no objection." That was my
point in making the complaint.
Q. Who brought up the subject of Dr. Morin? Did you bring it up or
did Mr . Regan?
A. I brought it up.
Q. What did Mr. Regan say?
A. Well, he sort of nodded his head -in a gesture of understanding my
complaint and my position of what I was complaining about. But he-
said, "You know, there is nothing very much that we can do about it. Why
don't you take it up with your Society? I should think that that that would,
be the place to take it to get action, would be to take the matter up with.
your Society."
Regan in his testimony was not in any substantial disagreement with Dr.
Gathercole. He testified that Dr. Gathercole complained to him that Dr. Morin
was charging substandard fees and that he told Dr. Gathercole that the question
of charging substandard fees would seem to be a matter for the State society
rather than the Respondent. Regan did not report this conversation to McEvoy.
On March 28, Dr. Gathercole presented the following motion at a meeting
of the Wachusett District of the Massachusetts Society of Optometrists as
recorded in the minutes of that meeting "A motion was made and passed that
the chairman take up with the executive committee the matter of an optometrist
practicing in the District, charging sub-standard fees while working for a
wholesale laboratory."
On April 12, Dr. Howard A. Bemis, chairman of the Wachusett district, went to,
Boston to attend a meeting of the executive committee of the State society and
to present the above resolution for consideration. But before attending the meet-
ing he visited the offices of the Respondent. His purpose in going there, he-
testified, was to see Regan in order to find out whether he had actually suggested
to Dr. Gathercole that action against Dr. Morin be initiated in the State society.
Regan was not in and Dr. Bemis then went to McEvoy, showed him a copy of
the motion, and told McEvoy that he intended to present it to the executive
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee when it met that day. Dr. Bemis did not have an exact copy of the
motion as recorded in the minutes of the meeting; the resolution as he had
recorded it and as he showed it to McEvoy read as follows :
That the Chairman of the Wachusett Society be instructed to present the
Executive Board of the Massachusetts Society of Optometrists, the matter of
an optometrist practicing in a community within the Wachusett District, in
an unethical manner while also in the employ of a wholesale laboratory.
Dr. Bemis also told McEvoy that the resolution was directed at Dr. Morin. Dr.
Bemis further testified that his purpose in showing the resolution to McEvoy
was not to register any complaint against Dr. Morin with McEvoy, but that he
merely thought that -this was a logical way to bring up the matter and to get
facts for presentation to the State society. He also testified that he told McEvoy
that he did not want to present the resolution because he did not think it suf-
ficiently important. McEvoy stated, according to Dr. Bemis, that the Respondent
had been dissatisfied with the situation for a long time. Dr. Bemis denied that
McEvoy asked that the resolution not be presented that day. However Dr.
Bemis was not certain as to all the conversation at this time and the undersigned
credits the following testimony from McEvoy indicating that he did ask for a
delay :
"Well," I said, "Mr. Regan is not here and I am very much surprised.
Does this motion have to go in today?" He said, "Yes, it has to go into this
afternoon's Executive Board meeting." I said, "Well, I am highly upset
about this because it looks to me like a black mark against the American
Optical Company, and I just wish that there was a little more time to look
into it because, as you can see, I am concerned about it."
"Well," he said, "I am sorry. This has to go in today."
On his way to the meeting Dr. Bemis also met Arthur J. Stearns, a sales repre-
sentative for the Respondent whose territory included the Fitchburg area. Dr.
Bemis showed Stearns a copy of the motion, told him that it referred to Dr. Morin,
and also told him that he was going to present it before the executive committee
that day. Stearns immediately went to McEvoy and said that it was dangerous
to have such a motion presented to any committee of optometrists. He referred
to other trouble that the Respondent had been having with optometrists in the
area and stated that this merely added fuel to the fire and that "we" had to move
to liquidate the cause of the conditions that had caused the motion to be presented.
Although Stearns had received some reports of Dr. Morin's practice he had not
made any reports concerning these to his superiors and in fact, had not met Dr.
Morin as of that time. McEvoy replied that he had asked Dr. Bemis to delay
action.
McEvoy next had a conversation with Dr. Alden I. Clason, another member of
the executive board of the State society. McEvoy told Dr. Clason of Dr. Bemis'
visit to him and of the motion directed at Dr. Morin. He asked whether anything
could be done to hold up the motion until he could investigate further. Dr. Clason
replied that he would try to be of assistance and in a later conversation with
Dr. Bemis persuaded the latter not to offer the motion at that meeting.
McEvoy telephoned Regan on the evening of the 12th and asked him to relate
his conversation with Dr. Gathercole. Regan did so and informed McEvoy that
the gist of Dr. Gathercole's complaint was that Dr. Morin was charging sub-
standard rates.
The next day, McEvoy telephoned Pierson, and, according to the former's testi-
mony, told him that Dr. Bemis had shown him a motion relating to Dr. Morin's
practicing at home at Leominster at night and on other nonworking times while
AMERICAN OPTICAL COMPANY 1557
working at the Worcester laboratory and further told Pierson that it would only
hurt the Respondent if the situation continued and that the only thing to do was
to discharge Dr. Morin. He instructed Pierson to discharge Dr. Moi in the next
day, to explain to him the reason for his discharge and the Respondent's position,
and that Dr. Morin also should be given vacation and severence pay. Pierson
stated that the discharge of Dr. Morin would leave him shorthanded but McEvoy
insisted that the discharge would have to be made at that time. It is undisputed
that McEvoy did not talk with Dr. Morin concerning Dr Gathercole's motion be-
fore directing Dr. Morn's discharge nor did he give Dr. Morin the choice of any
alternative short of discharge. McEvoy's testimony as to his reasons for deciding
co discharge Dr. Morin and why he did not give him any alternative is as follows :
A. There were several reasons I went over very carefully. I felt that if I
gave him the choice and that he decided to remain with the Company, that
it would be impossible to police his practice at night, that we would have a
festering sore with the optometrists in the locality in which he did practice
nights and weekends ; and then, of course, he had the equipment for re-
fracting eyes in his office
It seemed to me that there would be a great desire on his part, perhaps,
to examine two or three pair of eyes over a weekend, with resultant disturb-
ance in the area. That was my first reason.
Secondly, I didn't feel that it was in my province and as a representative
of the American Optical Conrpany to say to him, "You either practice or you
work for us". I thought that his professional career probably meant more to
him than anything else, he having spent considerable money on his educa-
tion, in the purchase of his equipment, and the laying out of his office, and
that it didn't seem to me that I had the right to give him that choice.
At another point, McEvoy testified that Morin's charging of substandard fees
was none of his business.
On the next day, April 14, Pierson spoke with Dr. Morin shortly before quitting
time and hold him that a complaint had been made by an optometric group that
he was practicing optometry while engaged by the Respondent as a lens grinder
at the same time and that McEvoy had given instruction that he should be
discharged.' He referred Dr. Morin to McEvoy if he should need any help.
Dr. Morin made no protest at that time about the Respondent' s action. Sub-
sequently Dr. Morin had an exchange of letters with McEvoy concerning the
computation of his final pay but he had no further discussions with McEvoy
nor did they at any time discuss the discharge. The charge in this case was
filed on April 18.
No further action was taken by the Massachusetts Society of Optometrists
against either Dr. Morin or the Respondent. Sometime before April 24, McEvoy
telephoned Dr. Bemis and told him that Morin had been discharged because it
was not the policy of the Respondent to employ optometrists who also engaged
in private practice. Dr. Gathercole learned of the discharge from Dr. Morin
himself and, at the April 18 meeting of the Wachusett district, he introduced a
motion, which was passed, rescinding the previous motion on the basis that
the matter had been taken care of.
McEvoy further testified that his decision to discharge Dr. Morin was made
without consultation with the legal department of the Respondent but that when
the charge herein was received he forwarded it to that department. He was
9 Dr. Morin also testified that Pierson told him that if he kept on working for the
Respondent while practicing , the optometric group would press charges against him and
it would be a black mark against his name and that the Company did not want this to
happen. His testimony is credited.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then requested by it to secure a copy of the original motion from the Wachusett
district. He made such a request of Dr. Bemis and received a letter dated
April 22 setting forth the original motion with a comment by Dr. Bemis, that
since McEvoy had initiated an inquiry which resulted in action , the Wachusett
district had directed its chairman not to present the motion to the executive
board.
McEvoy testified that the Respondent had no written policy forbidding optom-
etrists working in its laboratories to engage in their own practice during non-
working time. However, he testified that there was a general policy against
such practice but that he took no action against Dr. Morin because he had not
received a complaint about it. When Bemis showed him a copy of the motion,
he continued, he construed it as a complaint against the Respondent for allowing
such a situation to continue.
Regan testified that after Morin was licensed he discussed his practice with
McEvoy and stated that he felt that Morin would leave the Respondent's employ
eventually.
McEvoy also testified that while there was no written policy against private
practice of optometrists in the Respondent's employ, he had set up a policy
of his own against such practice when he employed a Dr. Galloway several
months before Dr. Morin's discharge. At that time, he testified, he told Dr.
Galloway that he could not engage in private practice and that Dr. Galloway
assured him that he would not do so. However, McEvoy continued, he never
talked to Dr. Morin about this regulation nor did he notify any of the branch
offices of this policy. He intended to carry out this practice and exercise
control of the situation since he reviewed all new applications of employment.
At the time of Dr. Morin's discharge there were no other optometrists employed
in the New England zone other than Dr. Galloway. However, in the past,
optometrists had been so employed and had worked for the Respondent while
they were empowered to engage in private practice under State law. When
McEvoy was asked why he accepted Dr. Galloway's promise not to engage in
private practice but did not seek to obtain a similar promise from Dr. Morin,
and had further testified that he would not rely on it even if he did receive
one, he replied that the distinction between the two cases was that Dr. Morin,
to McEvoy's knowledge, had equipment to engage in private practice and had
been doing so whereas Dr. Galloway, at least. to McEvoy's knowledge, did not
have such equipment.
Another point developed by the Respondent through its witnesses was that
optometrists frequently, in forwarding prescription work to a laboratory, in-
cluded thereon the names of the patients involved and that it was possible for
a laboratory worker by looking at the prescription to find out the names of the
patients of different optometrists and probably learn other details of the nature
and extent of the business of optometrists. The testimony on this point as to
methods and procedures in the Respondent's laboratory was conflicting in some
detail but does establish that a laboratory worker such as Dr. Morin would on oc-
casion have an opportunity to see some of the prescriptions that were handled in
the laboratory. However, Dr. Morin worked and brought his own prescriptions
to the Worcester laboratory, whereas his area competitors would normally use
the Fitchburg laboratory. While it was theoretically possible for prescriptions
issued by Dr. Morin's area competitors to be sent to the Worcester laboratory,
this would have been the exception rather than the rule and there is no proof
that this happened to any extent. No contention was ever made by the Re-
spondent that Dr. Morin ever secured confidential information which he could
use. Furthermore, when McEvoy was asked to state directly his reason for
deciding to discharge Dr. Morin, he did not list this factor in stating his reasons
AMERICAN OPTICAL COMPANY 1559
although he later, in response to a leading question, did say that the possibility
of abuse of confidential information by a professional man was in the back of
his mind in reaching his decision.
On Monday, April 17, Pierson called the Worcester laboratory workers to-
gether and told them about Dr. Morin's discharge. He testified that his purpose
in doing so was that he felt that something should be said to the employees
because of the suddenness of Dr. Morin's discharge. He testified that he told
the employees that he thought there would be some speculation concerning Dr.
Morin 's discharge and that he thought it fair to tell them why the discharge
had been made. He announced that there had been a complaint from an op-
tometric group in writing and that it had been decided by the management that
the only way to clear up the matter was by discharging Dr. Morin. He further
testified that he did not recall saying anything about the Respondent receiving
prior complaints or that he told the employees that there had been other prior
verbal complaints before but that the most recent complaint had been in writing
and therefore the Respondent could not ignore it as it had the others.
Five of the employees who listened to Pierson's announcement testified con-
cerning it. They were in general agreement that Pierson stated that the Re-
spondent had had prior verbal complaints but had done nothing about it until
it had received a written complaint and that the gist of the complaint, according
to Pierson, was that Dr. Morin was practicing optometry while working for
the Respondent at the same time. Pierson, as has been previously noted, could
not recall whether he did make any statements concerning the receipt of prior
complaints. The undersigned credits the testimony of the employee witnesses.
Conclusions
There is no proof that the presentation of the original motion to the Wachusett
district was directed against Dr. Morin because of his union activities. At the
time Dr. Gathercole complained to Regan about Dr. Morin's practices, the
Worcester laboratory workers had not yet attempted to communicate with the
Union. At most, they had begun discussing it among themselves. The de-
meanor, while testifying, of Dr. Gathercole and his entire testimony established
that at no time did he enter into any arrangement to furnish a pretext for Dr.
Morin's discharge.
Regan's suggestion to Dr. Gathercole,that substandard charges by Dr. Morin
would seem to be a matter for the State society was undoubtedly an effort to
avoid the necessity for the Respondent having to take action in view of the
failure of any proof showing that Regan then knew or had any reason to know
of any union activities by Morin and also in view of proof in the record evi-
dencing friendship between the two men.
The General Counsel contends, however, that although the resolution was not
inspired by Morin's union activities, McEvoy seized upon it as a convenient
pretext to rid the Respondent of a union adherent. Some of the undisputed facts
which lend support to this contention are:
.Morin was discharged 10 days after a union meeting was held at his home
and shortly after notice had been sent the Respondent of the filing of the rep-
resentation petition.
He had been a satisfactory employee for many years ; yet he was discharged
without warning.
McEvoy knew that he was engaging in private practice, but made no effort
to stop him. Even when McEvoy, according to his testimony, adopted a rule
against private practice by employees, he did not publicize it nor did he bring
it to the attention of Morin.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McEvoy did not investigate the resolution other than to ascertain from Regan
that the gist of Dr. Gathercole's complaint to him was that Morin was charging
substandard fees.
McEvoy did not give Morin any alternative nor did he have any discussion
with Morin in an effort to reach a solution satisfactory to everyone concerned.
Other points which have been argued are :
McEvoy obviously and suspiciously misconstrued the original resolution which
was directed against Morin and not, as McEvoy testified he understood it, at
the Respondent's toleration of Morin's private practice while in its employ.
Also, that McEvoy persisted in that error after Regan had told him that Morin's
fee-charging practices were the cause of the attack on him. In this connection,
it has been pointed out, McEvoy testified that Morin's fee-charging practices
were none of his business.
Another licensed optometrist, Dr. Galloway, had been allowed to choose
between engaging in private practice or giving it up in order to work for the
Respondent.
Dr. Bemis did not present the resolution to McEvoy as a formal complaint.
The conduct of Pierson which has been found violative of the Act indicates
that the Respondent was opposed to the efforts of the Union to organize the
Worcester branch.
* * * * * * *
Although Dr. Bemis did not present the resolution to McEvoy as a formal
complaint against the Respondent, McEvoy's reaction to it, before he had had
any time for reflection or to concoct any plan, as the General Counsel suggests,
was that the resolution was aimed at the Respondent. Such a construction
was not unreasonable and Dr. Bemis did not indicate that McEvoy was in
error in making that assumption. Actually, Dr. Gathercole testified that he held
the Respondent to blame for what he regarded as a bad situation rather than
Dr. Morin and wanted it to take action. It is true that Dr. Bemis had not
presented the resolution to McEvoy as a formal complaint, but certainly McEvoy's
efforts to prevent it going further cannot be regarded as unreasonable.
The General Counsel contends, however, that McEvoy's persistence in the
position that the resolution was aimed at the Respondent permitting Morin to
work for it and also engage in private practice even after Regan told him
that Dr. Gathercole was protesting Morin's fee practices, further evidences
MeEvoy's discriminatory motives. Actually, Dr. Gatherbole was complaining
of one aspect of the employer-employee relation between the Respondent and,
Morin-its subsidizing Morin (as Dr. Gathercole saw it) so that he could suc-
cessfully charge substandard fees. This idea, though not always clearly ex-
pressed, motivated much of the interchange among those who played a part
here. It explains the position of the Wachusett district in dropping action
against Morin, once he had been discharged. Their action, in turn, lends sup-
port to McEvoy's belief that the Respondent would avoid trouble by discharging
Morin.
The undersigned is persuaded that the evidence indicates that McEvoy upon
learning of Dr. Gathercole's resolution decided to take steps to avoid antagoniz-
ing organized optometrists who collectively were the major customers of the
Respondent. Under all the circumstances, his decision to discharge Morin
to avoid any further entanglements might be criticised as unfair to Morin, harsh,
and lacking in courageous support of an experienced employee, but it falls short
of establishing that McEvoy's decision was improperly motivated. McEvoy's
failure to consult with Morin before the discharge was not unreasonable since
AMERICAN OPTICAL COMPANY 1561
McEvoy was acting primarily to protect the Respondent and, to a certain
extent, himself. Morin could not be of help in determining what was necessary
for such protection.
The evidence indicates that professional practice by employees in the New
England zone had not constituted a serious problem before Morin's case and
there had been no rule forbidding such dual activity. McEvoy testified that
he had adopted such a rule several months before Morin's discharge, when he
employed Dr. Galloway ; but this was more of a mental reservation than a rule
since it was never publicized. McEvoy clearly did not expect trouble from
these dual activities or felt each situation would adjust itself. Dr. Morin's
case did contain points of difference from that of Dr. Galloway which did not
make unreasonable McEvoy's decision to retain Dr. Galloway, but to release Dr.
Morin.
It is true that Morin was discharged while organizational activity was at its
height, within 10 days of the union meeting at Morin's home, and 3 days after
the Respondent was sent notice of the filing of the representation petition.
However, there is no direct proof that the Respondent had any notice of the
meeting at Morin's house. Pierson, McEvoy, and Regan specifically denied
having any knowledge of that meeting before Morin's discharge. The General
Counsel contends that knowledge of Morin's activities may be inferred from
Pierson's questioning of the laboratory employees, the timing of the discharge,
the lack of merit in the Respondent's defenses, and the size of the unit and
laboratory.
Pierson did question employees and in his conversations asked questions
having the tendency to cause employees to reveal their union sympathies, but
there is no evidence that in any conversation he attempted to find out the union
sympathies or membership of employees other than the employee with whom he
was then speaking. One witness for the General Counsel testified that Pierson
told him not to reveal names. There is no evidence that Pierson asked any
employee about union meetings nor is there any evidence that any employee
told him of the meeting at Morin's house. Pierson did not question Morin.
The timing of the discharge certainly is a factor that warrants consideration,
but it does not in itself warrant the finding that the Respondent had.knowledge
of Morin's activities. The undersigned has already dealt with the Respondent's
defenses. They are not without merit, as the General Counsel contends.
Finally, while the Board has sometimes held that it might be presumed that
in a small plant knowledge of union activities will come to the attention of an
employer, this is not an irrebuttable presumption. In those cases other factors
lend, support to the conclusion. Here there is no such support. Rather the
evidence indicates that although, as McEvoy testified, the Respondent had no
interest in Morin's fee practices as such, once McEvoy had notice that the
Respondent might be embroiled in a controversy between the State society and
Morin, he took action to disassociate the Respondent from Morin by discharging
Morin. The undersigned concludes that the preponderance of the evidence
does not establish that McEvoy was motivated in his decision by Morin's union
membership or concerted activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to be unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices it will be recommended that it cease and desist therefrom and
take certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent violated the Act by questioning em-
ployees at its Worcester branch concerning their union affiliations and sym-
pathies and by promising those employees benefits if the Union was defeated
in its organizing campaign. The undersigned from his study of the evidence
Js convinced that a broad cease and desist order is not necessary in this case,
but that it is necessary that the Respondent be ordered to refrain from vio-
lating the Act by any conduct like or related to that which has been found
violative of the Act.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. United Optical and Instrument Workers of America, Local No. 28, CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By questioning employees at its Worcester branch concerning their union
affiliation and sympathies and by promising those employees benefits if the
Union was defeated in its organizing campaign, the Respondent has interfered
with and is interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act and has thereby
engaged in and is engaging in unfair labor practices within the meaning of
.Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. It has not been established that the Respondent discharged William J.
Morin because of his union or concerted activities.
[Recommended Order omitted from publication in this volume.]
DONOVAN, JAMES, WISHER, & BECKER and INTERNATIONAL ASSOCIATION
OF MACHINISTS, PETITIONER. Case No. 21-RC-1705. April 18,
1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Daniel J. Harrington
and George H. O'Brien, hearing officers. The hearing officers' rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed.'
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 Houston, Reynolds, and Styles].
i At the hearing the Petitioner was permitted to amend the unit description.
93 NLRB No. 255.