Aire-Con Labs

National Labor Relations Board - Board Decisions

Nov 4, 1975

221 N.L.R.B. 318 (N.L.R.B. 1975)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aris Quality Contact, Lens , d/b/a Aire-Con Labs :and
Margaret M. Visconti . Case 6-CA-7896
November 4, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 25, 1975, Administrative Law Judge "John
M. Dyer issued the 'attached .Decision in- this
proceeding. -Thereafter; the Respondent filed excep-
tions'.
Pursuant to'the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a-three-member panel.
The 'Board has considered' the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings,, findings,' and conclu-
sions of 'the -Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent Aris Quality
Contact Lens, d/b/a Aire-Con Labs, Pittsburgh,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in said
recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Adnnmstrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings. In
this connection we note that, although the Administrative Law Judge in
determining credibility at one point inadvertently confused Wachter with
Wyatt as the employee who had dust returned to work from a suspension,
the other reasons he relied on for discrediting their testimony support his
credibility findings as to them
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: On Novem-
ber 18, 1974,i Margaret M. Visconti who had been
employed by Axis Quality Contact Lens, d/b/a Aire-Con
Labs, herein called the Company or Respondent, filed a
charge against Respondent alleging that she had been
discharged in violation of Section 8(a)(1) of the Act.
The Regional Director issued a complaint on January 31,
1975, alleging that Respondent had discharged and refused
to reinstate Ms. Visconti, because of her concerted
activities. Respondent's timely answer admitted the service
and jurisdictional- allegations, and the position of Respon-
dent's, president, Alexander Hayden, as a supervisor and
agent within the meaning of the Act, and denied the
balance of the complaint. During the hearing, which was
held in- this matter on March 20, Respondent amended its
answer to admit that it had discharged Ms: Visconti and
refused to reinstate her on and after July 26.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses , and to argue orally
at the hearing. The General Counsel and the Respondent
have filed briefs which have been carefully considered.
Both Respondent and General Counsel stressed in their
briefs that the principal issue in this case was the credibility
of the witnesses. The version of the incidents which
occurred on July 25 and 26 varies considerably -between
Respondent and General Counsel witnesses. It appears
that the version, of the events as given by the, General
Counsel's witnesses is more accurate and credible since the
story is more cohesive .and they appeared to be candid and
factual. Two of Respondent' s witnesses contradicted each
other'as to the location of-a principal event and they did
not impress me as being candid. .One , of Respondent's
witnesses shed no light on the events. Respondent's
principal witness Hayden exaggerated Ms. Visconti's
"goofing off" on July 26 since her production showed she
could not have been the indolent employee he sought to
paint her on that day. Hayden sought to put himself in the
best light possible and I believe his testimony is what he
believes should have happened instead of an effort to recall
what did occur. Therefore I have concluded that Respon-
dent violated Section 8(a)(1) of the Act in its discharge of
Ms. Visconti and will recommend appropriate remedial
action.
On the entire record in this case, including my evaluation
of the reliability of the witnesses, based on the evidence
received, my observation of their demeanor and the nature
and manner in which the responses were made , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Pennsylvania corporation engaged in
the manufacture of contact eye lenses with its office and
laboratory in Pittsburgh, Pennsylvania, from where, during
the past year, it has sold and shipped finished products
valued in excess of $50,000, to points directly outside the
Commonwealth of Pennsylvania.
Respondent admits and I find it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Respondent's laboratory room is approximately 20-feet
wide and about 40-feet long. Alexander Hayden's office
adjoins one of the 20-foot ends and there is a passageway
1 Unless otherwise stated all events herein occurred in 1974.
221 NLRB No. 57
AIRE-CON LABS 319
near his office off one of the 40-foot walls to the left,
leading to other offices . Beyond this hall and on the left 40-
foot wall in front of the entrance to Hayden's office is a
table and two lathes . At the far 20-foot wall is a third lathe.
Coming back down the other 40-foot wall to the right is a
curve machine and then a large table at which there are
two edgers and a lensometer . That table would not be
visible from Hayden's office unless you came to the
doorway . Visconti and Janis Marshall worked within a foot
of one another at this table . In the center of the room (also
end-to-end) is a table and a polisher machine.
Hayden was responsible for the business operations and
ran that end of the business with Ronald Preuhs being in
charge of the lab . Preuhs was on vacation during the latter
part of July and was scheduled to return on Monday, July
29. Hayden normally got to the office between 10 a.m. and
noontime and usually would not spend more than a half
hour a • day in the lab. The Company was open from 8 or
8:30 a .m. until 5 : 30 p.m. with the employees' hours
varying . Janis Marshall worked from 8:30 a.m . to 5, p.m.
and Visconti and Faulici from 9 a.m. to 5:30 p.m. The
employees had staggered lunch hours of 45 minutes and
were given 15 minutes to clean up at the end of the day.
In July 1974 , there were approximately 8 or 9 persons
working in the , lab, whereas, prior to that time in June there
were some 12 lab employees.
Ann Faulici started with Respondent in March 1974, and
in July was reading - base curves for the lenses. After
Visconti's discharge Faulici was moved to Visconti's job of
grinding lenses . At the beginning of work on Thursday,
July 25 , Faulici was told to put Thursday's and Friday's
work together in, order to get Friday 's work out since
Wyatt would be absent on Friday . Another employee
named Leonard was transferred to her so that they could
get all the work , done on Thursday . After lunch on
Thursday, Faulici talked with Wachter, Wyatt, Visconti,
Leonard, and Ophermein about the heavy amount of work
they had to do. According . to Visconti, they discussed
various ideas about bringing their ,problem to manage-
ment's attention and suggestions including a walkout or
sitdown strike, were made before they agreed to go in , a
group and talk to Hayden and ask him for additional lab
help and for more pay. Wachter said he would not go into
the office . Visconti, Ophermein, Leonard, and Faulici went
into Hayden 's office that , afternoon. Hayden stated that his
meeting with the employees occurred in the morning. The
fact that Hayden usually arrived between 10 a.m. and
noontime, the staggered lunch hours , the time it would take
to get a group to discuss and agree to, a course of action
make it appear that this meeting took place in the
afternoon.
Faulici was the spokesman and said that they wanted to
talk to Hayden about getting more help because of the
volume of work they had . Hayden asked each of them
what additional help could do for them and Faulici
responded that she could use somebody to help compute
the curves . Visconti said she needed somebody to help her
rule lenses . Hayden- said he did not know what went on in
the lab and asked them to wait until Ronald Preuhs, who
was in charge of the lab , came back from vacation on
Monday, and that Preuhs could probably satisfy them.
Hayden more or less corroborated this conversation but
did not mention asking what additional help they needed.
B. The Confrontations of July 25 and 26
According to both Faulici and Visconti, at or about 5:15
p.m. on Thursday, July 25, when they were starting to
clean up for the day , Faulici accompanied by Ophermein
came over to Visconti's work station to talk to Visconti
about what they were going to do for Jams Marshall who
was leaving the next day. Janis Marshall worked until 5
p.m. and her work area was only a foot or so from Visconti,
which would confirm that such a conversation took place
after 5 p .m. After talking for a moment or two, Hayden
walked up to them and asked what was the problem, that
they had just been in his office saying they had too much
work to do and now they had time to stand there and talk.
Faulici said they were not talking about him , that they
were talking about getting Jams Marshall a gift. She and
Opehermein left and returned to their work stations.
Visconti said he knew what the problem was, that they had
discussed needing more help. Visconti testified that
Hayden's voice was raised and that among other things he
said he was tired of the girls standing in huddles discussing
problems about what they should do in the lab . Visconti
said if they wanted to get more work out they needed to get
more help in the lab . Hayden -said that they were not going
to get any more help, that they had plenty of time to stand
around, and that they did not need help before and they
did not need it then . Visconti said if they were not, going to
get extra help, she wanted a 25-cent raise , that she was
tired of 10-cent raises . Hayden said she would never see a
quarter raise and she replied that she wanted extra help.
According to Visconti this type of bickering went on while
she was cleaning up her work station . The voices of both
Hayden and Visconti grew louder and Hayden said that,
since she knew she was not going to get a quarter raise, she
would probably quit and leave them stranded . Visconti
said she had not said that but that if another job
opportunity came up she would let him know in due time.
Hayden said he wanted her 2 weeks ' notice and for her to
give it to him and repeated this statement several times, in
a loud voice . She replied that he should not put her on the
spot, that she was not quitting and needed 'her job. He
stated he wanted her to say she was giving 2 weeks' notice.
She replied that she was not doing so . Hayden then said
that he was giving her 2 weeks, and wanted her out of there
in 2 weeks and that was final. She told him- he could not
fire her for a reason such as that because other people such
as Wyatt had asked for raises, and if that was the way it
was then others should have gotten fired for asking for a
raise. She repeated that she still wanted her job.
Faulici corroborated the timing and beginning of this
meeting and that this bickering and loud voices went on for
some 10 or 15 minutes and that both of them were shouting
by that time .' At 5:30 p.m. she and Visconti walked out of
the lab.
Michael Wachter testified that Visconti and two other
girls were standing and talking in front of Hayden 's office
around 1 p.m. on Thursday, when Hayden asked them to
disperse. He said that Visconti and Hayden got into an
argument in which a vulgar expression was used by
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Visconti to Hayden. Visconti then came back to where she
worked and he knew there were going to be problems
because he heard Visconti, talking under her voice, say that
she was going to "make trouble for us," and if she did not
get a 25-cent raise within 2 weeks she would be out. He
states that Hayden asked if that was her final 2 weeks'
notice and she said if that's what he wanted that was it.
Wachter said he did not hear any shouting by Hayden but
he heard shouting by Visconti most of which took place in
the doorway of Hayden's office and he heard it even
though he was at the edger machine with the machine
turned on. He placed Janis Marshall in the group of three
whom Hayden addressed but was unable to say where
Janis Marshall was during the conversation or after the
girls dispersed even though if he was correct Marshall
would have been working immediately beside him.
Wachter did not explain how Hayden heard the remarks he
said Visconti made "sotto voce" while the machines were
running.
Russel Wyatt testified that sometime between 1 and 2 in
the afternoon, while he was at a lathe cutting lenses, he saw
three girls standing near Visconti's work station out of the
comer of his eye. He then noticed Hayden coming out of
his office marching towards the edger. This-caused him to
stop the lathe so he could turn around and see' what was
going on . He heard Hayden say something to the girls
about whether they had something to do and they went
back to their jobs but Hayden stayed there with Visconti.
Wyatt 'testified he heard her say she was working her tail
off and wanted a 25-cent raise or she would give her 2
weeks' notice. At that point Wyatt said he turned around
and started his lathe because he knew there was going to be
an argument and he did not want to hear what was said.
Despite the fact that his lathe was on and he was on the
other side of the room, Wyatt said he heard Visconti
shouting and heard her use some' four-letter words such as
damn and hell and saw Hayden go back to his office. To a
leading question he answered that he did hear a vulgarism
used by Visconti to Hayden. Wyatt admitted that he had
been laid, off from work on February 28, 1975, because
during, a vacation period he had worked for a competitor
and when Hayden found this out he was laid off. He was
called back to work, on Friday, March 14, a few days
before the hearing in this matter.
Hayden testified that, about 1 or 1:30 p.m., he saw three
girls standing and talking in the laboratory and after
passing that way a few minutes later and noticing them
again, he went back to,them,and in a nice way asked if they
did not have something to do. He stated that two girls
walked away, but Visconti told him she was tired of
working her tail off and demanded a 25-cent raise within 2
weeks or she was quitting. She then told him he did not
know how to do his job and used a vulgarism towards him.
He replied that he could terminate her employment and
she told him he could not fire her. At that point he just
walked away and went back to the office. Hayden said he
did not shout or yell 'or: scream but that Visconti was loud
enough so that everybody could hear her and it was very
embarrassing to him to have her making demands on him
and she should have dome into the office to talk to him. He
also said that the strong language she used was very
shocking to him.
On Friday, July 26, around 4 p.m. Hayden called Faulici
into his office and talked about what, had occurred the
previous day. Hayden told her he -really did not know
anything about what went on in ' the lab and that when
Ronald Preuhs got back they would talk about it. He
mentioned that while the business was very busy right then
it would be slow again in September. He talked about
wages and said that he could not give anyone a raise and
mentioned the amount his daughter was making. He said
that Visconti should not have come out and asked for a 25-
cent raise, that he thought he was going to have to let her
go. Faulici asked if he was going to fire Visconti and he
said yes, that no one was going to ask him for a raise. She
then left the room and went back to her table., Between
4:45 and 5 p.m. she saw Visconti coming out of Hayden's
office.
Visconti testified that, when she' started to work on
Friday, all of the day's work was ready and waiting for her
and this was very unusual. She worked steadily and
finished the work sometime after 4 p.m. She had some
lenses to work on for a patient who was waiting for them
and after completing her operations she took the lenses to
the office to see if they should be taken to the patient, then.
Chris Brunner (an office employee) and Alexander Hayden
were in the office. To Visconti's question, Hayden replied
that they would-take care of it and to leave the lenses there.
As she started back to the lab Hayden followed and
stopped her near his office. He said that what he had said
to her the previous day still held andthat he ' wanted her
out of there in 2 weeks. He added that she had really
surprised,him because he thought she had more sense when
she had started working there. She answered ' that she was
not quitting and that she would 'be there in 2 weeks. He
told her that she would not be. She told him to talk to the
people in the plant about the procedures and they would
tell him how they felt, that for ` instance, Wachter was
unhappy because Wyatt took the easier things and left the
tougher lenses for him to cut. Hayden said he was going to
get rid of a few other people in the next few weeks. Visconti
responded that if that was the case she hoped everybody
quit on him because they all felt the same way she did. She
left and went to the lab.
A short time later, shortly before '5 p.m., Faulici called
Visconti over to where Faulici was working and asked
what had happened. As Visconti started to recount the
conversation in the office Hayden came out of his office
and asked in a loud voice what the problem was, and why
they had time to stand around when they had been
complaining about needing extra help and here they were
talking. Visconti said she had finished her work and
although it was early asked if he wanted her to clean up.
He told her that if she got too smart with him he would fire
her then. She replied that he would not. He said we will see
and went back in the office and a-few minutes later placed
a check in front of her saying that she was finished, and he
did not want to see her around the lab again. She-said that
she would be in on Monday and he said that if she did
come in he would have her removed bodily. About that
time Janis Marshall told Hayden to leave Visconti alone.
AIRE-CON LABS
Hayden was following Visconti around as she was cleaning
up, talking very loud and shaking his finger at her. Hayden
told Marshall it was her last day and that she was paid and
to get out.
Janis Marshall testified that she was about ready to leave
and had her machine cleaned up when Hayden told
Visconti to clean up. Visconti said that was fine with her
but normally she would not clean up that early in case a
patient came in late. As Visconti was cleaning up Hayden
,said he did not see why they needed help when they could
get all their work done. Marshall said the statements kept
going back and forth between Hayden and Visconti,
getting louder all the time, until Hayden was screaming at
the top of his lungs. Visconti was cleaning up her machine
and walking back and forth to the sink. After the statement
that if she came into work he would have her carried out,
Marshall told Hayden he should not yell at them when
they were just talking to him. She remembered Hayden
saying that Visconti did not know when to shut up, that she
was always meddling into other people's affairs. Hayden
told Marshall she was through and to get her check and
leave.
Faulici testified that she did not remember everything
that was said because the,loud talking and the arguing
made her a bit nervous, but that what she did recall she
was positive of. Respondent's characterization of her
testimony in its brief is inaccurate and does not accord
with Faulici's testimony. She stated that during this last
conversation late on Friday afternoon there was a good bit
of talking about Visconti being paid for her vacation time.
She also recalled Hayden saying that this was Visconti's
last day and Visconti stating that he could not fire her just
because she asked for a raise,
Wachter did not testify concerning the events of July 26,
and Wyatt was' absent that day. Hayden testified that on
Friday, every time he looked back in the lab, Visconti was
every place but where she was supposed to be working, but
that he did not say anything to her but got increasingly fed
up as the day went on. He also said that he passed' her a
few times and she made faces at him but these were not
described: Finally he determined he was not going to put
up with such behavior for 2 weeks and was going to
terminate her that day, because she was causing disruption
in the lab and not doing her work, was talking to other
employees and making faces at him and he had to do
something immediately, so he fired her. It was only after a
leading question that Hayden lumped in the alleged
vulgarism . Hayden did not describe any disruption
supposedly caused by Visconti.
In regard to his conversation with Faulici, Hayden told
her that Visconti was being terminated because of
insubordination, that she was, insolent, and that he could
not tolerate anything like that particularly in front of the
other employees and it was not just because she had asked
for a 25-cent raise.
During cross-examination Hayden admitted that Viscon-
ti was a good worker' and that they had gotten along very
well until this happened. He noted that when the machines
were on no one could hear a normal conversational tone
more than 10 or 12 feet away, but said there was no noise
from the machines when he spoke to Visconti and the other
321
girls. Asked where the other employees were at that time he
said that he could not answer that question because he was
"pretty upset."
In regard to the conversation on July 25, he said he took
her demand for a 25-cent raise within 2 weeks or she would
quit, as her notice of termination. Then he said that he
gave her 2 weeks in which to look for another job. He also
repeated on cross-examination that every time he looked
into the lab Visconti was away from her machine talking to
people and just generally goofing off, and said that such
behavior would be unusual for her. Asked how many times
this occurred he said it was quite a few times and did not
know the number but that it might be three or four. Asked
if her job required her to be away from her work station he
answered hardly ever, but that he really did not know.
Concerning the conversation with Faulici he did not
recall that he had called her into, the office on Friday
afternoon, but occasionally they did talk. He stated that it
was a silly situation about Visconti demanding a -25-cent
raise, but when he was talking to Faulici he really hadn't
made up his mind as to whether to fire Visconti that day.
Again he stated that he decided to fire her because of her
"goofing off' and making faces and so forth and being
very insolent about the thing and that he called her into the
office and told her it was her last day. He said that this
encounter became very noisy, and he told her he would
have her check ready at the end of the day. He did not
recall Janis Marshall injecting herself into a conversation
between himself and Visconti. He denied that he was
shouting at Visconti or following her around the lab.
Respondent produced another witness, Joanne Goehner,
who testified that she worked at the curve machine, which
would be on the same side of the room and near Visconti's
work station. In regard to the July 25 confrontation in the
lab, she said she did not remember what was said but did
hear something that shocked her at the time and said it was
something she would not have said to a boss. She did not
remember where Wachter was at that time. According to
Wachter's testimony he would have been between her and
Visconti and Hayden if the conversation took place as
Wachter had testified.
Respondent produced some production records and had
Ronald Preuhs testify that, on June 28, they had produced
some 180 lenses and finished early. During cross-examina-
tion he admitted they had about 12 employees in the lab at
that time instead of the 8 or 9 they had in latter July.
The records originally produced by Respondent ran
from Monday, July 15, to Tuesday, July 30, but omitted
Monday, July 29. When this omission was pointed out to
Respondent, the record was later produced. It is interesting
to note that on that date, Monday, July 29, only 114 lenses
were produced. The remaining records show' that in
addition to adjustments and uncuts, the group where
Visconti worked starting with July 15, produced 159, 182,
190, 156, 147, and for the week starting Monday, July 22,
160, 172, 210, 180, and 158 on Friday, July 26.
C. Analysis and Conclusions
Considering for the moment only the production records,
it appears clear that Visconti could not have been "goofing
ofl' on Friday, July -26, and completed the amount of
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lenses produced that day, and still have finished earlier
than usual . She produced what was a normal day's
amount , for this "busy season" as Hayden described it.
The testimony of Visconti and Fauhci was .mutually
corroborative and consistent and they both appeared to try
to recount the events as they remembered them. .
Visconti may have colored her testimony a bit in
describing Hayden asyelling and screaming when he came
out .of his office, but Hayden probably was talking loudly
to make himself heard over the machine noise and it is
certainly true that both Hayden and Visconti got louder
during the arguments of July 25 and 26. Considering the
testimony and the, witnesses, I have decided to credit the
version of the conversations as given by Faulici and
Visconti and as corroborated by Janis Marshall , including
the time sequence when these events took place. Wachter
and Wyatt - contradicted one another as to where the
Thursday confrontation took place with Wachter saying it
occurred in front of Hayden's office and Wyatt saying it
took place back at Visconti's'machine. Wyatt's testimony is
not convincing . In his work he faces the wall opposite to
where Visconti worked and said he noticed three girls
talking and , when 'he saw Hayden "marching" towards
them, he turned off his machine and turned around to see
and hear , what was happening . There is a polishing
machine. between 'him and Visconti's machine but there
was no testimony as to whether anyone was operating that
machine or whether it would have blocked his view or
hearing . Having gone to this trouble, Wyatt' then states
when he heard four-letter words such as damn and hell, he
hastily turned his machine back on and began working so
he could not hear what was going on.
Wachter's testimony is suspect both because of where he
places the confrontation and' because he had been laid off
for more than a week for disciplinary reasons and then
returned to work almost immediately before the hearing in
this matter. Wachter was also led `in part of his testimony.
The only testimony from Respondent as to what
occurred onn Friday, July 26, is from Hayden. Clearly
Hayden exaggerated his testimony when he testified on
direct that every time he looked into the lab Visconti was
off some place talking to people and' goofing off. He said
this was one of the things that determined him to discharge
her. Visconti's- production record for, that day, makes it
evident that she could not have been "goofing off" and
have finished her work early as she testified.
It is apparent that of the group of employees who talked
to Hayden on Thursday, Visconti was the one who
responded to the attacks he made on them for "not
working" and "standing around" and that Hayden did not
like her responding to him . Visconti and the others had
engaged in concerted activities in speaking to' Hayden
about getting more employees in the lab and about more
money . Hayden referred to this meeting on Thursday and
on Friday when he spoke-to the girls saying, that they did
not need more help in the lab if they had enough time to
stand around and talk . The theme of the office meeting ran
throughout Visconti and Hayden's'conversation on Thurs-
day when they talked about more help and/or more money
after Hayden asked what the problem was., Hayden was
stating that they would not get more help in the lab and
there would be no . raise and on that basis , sought her
resignation . She refused to resign stating she needed a job
and Hayden pushed it to the point of giving her a 2-week
notice and in effect discharging her. Hayden confirmed the
reason for Visconti's discharge being concerted activities
when towards the-end on Friday he said that-Hayden did
not know when to shut up and was always meddling in
somebody else's business . This can only be a reference to
concerted `activities and Visconti' s maintenance of the
position the group took.
Visconti denied using any vulgarity toward Hayden and
I am not convinced that she did. It is clear that both
Hayden and Visconti did not keep complete control of
their tempers in the arguments which took place on both
Thursday and Friday, 'and in such circumstances, where
the thread of concerted activity was being pursued, I
cannot ' find that Respondent had reason to discharge
Visconti because of any supposed vulgarity particularly
where Hayden did not use such as a reason for discharge
until he was led to it.
Hayden's claim of insolent behavior and being embar-
rassed is not sustained by the credited , testimony of
Visconti, Faulici, and Marshall . Visconti was not an
employee to "shut up" and not reply, to the attacks made
-by Hayden. Faulici, as she testified , was a little bit-nervous
about speaking back to her boss. It was Visconti's
reiteration of the ideas expressed in the meeting that
appeared to enrage Hayden to the point of discharging
Visconti. I do not credit his statements about Visconti
"making faces" and place that in the'same category as his
statements about her "goofing off." " -
It appears clear that Hayden was in an unfamiliar role in
dealing with the employees and he really ' did not I know
what to do when met with their ' demands. Instead of
waiting for Preuhs to return as he had suggested , Hayden
became increasingly incensed as, he thought , about the
demands for more help and when he saw someone
standing in the laboratory and not "working hard" his
anger was intensified and led to his discharge of Visconti
for mentioning and maintaining these demands,. Hayden's
rambling reasons for Visconti 's discharge leads to this
conclusion.
I conclude and find that Respondent through the activity
of Alexander Hayden violated Section 8(a)(1) in discharg-
ing Margaret Visconti. -
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES-
UPON COMMERCE
The activities of Respondent set forth in section II, and
therein found to constitute unfair labor practices in
violation of Section 8(a)(1) of the Act, occurring in
connection with Respondent's business operations as set
forth above in section I, have a close , intimate, and
substantial relationship , 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.
IV. THE REMEDY
AIRE-CON LABS 323
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent discharged Margaret
Visconti by its actions of July 25 and 26, 1974, and did not
thereafter offer her reinstatement, I recommend that
Respondent offer her immediate and full reinstatement to
her former position or, if such position has been abolished
or changed in Respondent's operations, then to any
substantially similar position without prejudice to her
seniority or other rights and privileges and that Respon-
dent make her whole for any loss of pay she may have
suffered by reason of Respondent's discriminatory termi-
nation of her, by payment to her of a sum equal to that
which she would have normally received as wages from
July 26, 1974, the date of her termination until Respondent
offers her reinstatement, less any net earnings for the
interim. Backpay is to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950),, with interest at the rate of
6 percent per annum to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I further recommend that Respondent make
available to the Board, upon request, payroll and other
records in order to facilitate checking the amounts of
backpay due her and any other rights she might be entitled
to receive.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by its
discriminatory termination of Margaret Visconti because
she engaged in concerted activities with other employees
for the purpose of mutual aid and protection.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case
considered as a whole, I hereby make the following
recommended:
ORDER2
Aris Quality Contact Lens, d/b/a Aire-Con Labs,
Pittsburgh, Pennsylvania, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discriminatorily terminating employees because they
engage in concerted activities with other employees for
their mutual aid and protection.
(b) In the same or any similar manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Margaret Visconti whole for the loss of pay she
suffered by reason of Respondent's discrimination against
her in accordance with the recommendations set forth in
the section of this Decision entitled "The Remedy."
(b) Post at its Pittsburgh, Pennsylvania, office and lab,
copies of the attached notice marked "Appendix."3 Copies
of said notice on forms provided by the Regional Director
for Region 6, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which the Company and the
General Counsel of the National Labor Relations Board
participated and offered evidence, it has been found that
we violated the Act. We have been ordered to post this
Notice and to abide by what we say in this Notice.
WE WILL NOT fire employees for engaging in
concerted activities with other employees for their
mutual aid and protection.
WE WILL offer Margaret Visconti immediate and full
reinstatement to her former job and reimburse her for
the pay she lost as a result of our action.
WE WILL NOT in the same or any similar manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed under Section 7 of the
Act.
ARTS QUALITY CONTACT
LENS, D/B/A AIRE-CON
LABS