Optica Lee Borinquen

National Labor Relations Board - Board Decisions

May 26, 1992

307 N.L.R.B. 705 (N.L.R.B. 1992)

705
307 NLRB No. 114
OPTICA LEE BORINQUEN, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The General Counsel has excepted, inter alia, to the judge’s fail-
ure to find that the Respondent additionally violated Sec. 8(a)(5) and
(1) by unilaterally lengthening employees’ hours of work. We find
no merit to this exception, as the evidence shows that this action was
announced and partially implemented by the Respondent prior to the
date of the Union’s election petition and subsequent certification.
Under these circumstances, we decline to construe the Respondent’s
answer to the complaint as an admission of a violation of the Act
in this regard. Accordingly, we dismiss this allegation of the com-
plaint.
3 We agree with the General Counsel that the Respondent should
be ordered to post copies of the notice in both English and Spanish,
and we shall modify the judge’s recommended Order accordingly.
4 Prior to July 1, 1989, Benitez’ scheduled hours were 9 a.m. to
4 p.m. On July 1, Benitez was transferred to the Plaza Carolina store
with a new work schedule of 9:30 a.m. to 5:30 p.m.
5 Accordingly, we need not decide whether a showing that the Re-
spondent was aware of Benitez’ compliance with the schedule after
November 1, 1989, would demonstrate that its asserted reason for
the termination was pretextual.
6 The General Counsel asserts that a position statement submitted
by the Respondent’s former counsel contains an admission that
Benitez was under an employment contract at the time of his termi-
nation, and further asserts that the judge erred in failing to consider
the position statement in his decision. We agree with the General
Counsel that the position statement was properly admitted and
should have been considered, and we disavow the judge’s gratuitous
remarks concerning this and other matters. However, having consid-
ered the position statement, we find, contrary to the General Coun-
sel, that it is not entitled to significant weight under the cir-
cumstances present here, and does not demonstrate that Benitez was
under an employment contract when he was terminated. Thus, al-
though the position statement indicates that Benitez had an employ-
ment contract at one time, it does not indicate the duration of the
contract or whether it was still in force on November 8, 1989. Under
Continued
Optica Lee Borinquen, Inc. and Federacion de
Optometras de Puerto Rico. Cases 24–CA–
6070, 24–CA–6110, 24–CA–6117, 24–CA–6174
and 24–CA–6199
May 26, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 5, 1991, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
General Counsel, the Respondent, and the Union filed
exceptions and supporting briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order as
modified.3
The General Counsel and the Union have excepted,
inter alia, to the judge’s finding that the Respondent
would have terminated employee Fernando Benitez
even in the absence of his union activity. For the rea-
sons that follow, we agree with the judge that the dis-
charge of Benitez did not violate Section 8(a)(3) and
(1) of the Act.
The Respondent asserted that it terminated Benitez,
an optometrist assigned to its Plaza Carolina store, be-
cause he repeatedly refused to work his assigned
schedule. In this regard, Benitez admits that he regu-
larly failed to work his assigned schedule from July 1
until November 1, 1989,4 despite several verbal warn-
ings and a written warning dated October 24, 1989,
which stated, in essence, that he would be terminated
if he did not ‘‘immediately correct this situation.’’
Benitez also admits that he continued to work less than
his assigned schedule for at least 2 days after he re-
ceived the written warning.
The General Counsel contends that the Respondent’s
explanation is pretextual, noting that Benitez complied
with the assigned schedule from November 1 until his
termination on November 8, 1989. However, for the
reasons stated by the judge, we find that the Respond-
ent was aware of Benitez’ continuing failure to work
his assigned schedule when it received his payroll re-
ports shortly before November 8, but was not aware of
his subsequent compliance at the time of his termi-
nation because those reports had not yet been received
at the Respondent’s central office.5
The General Counsel also contends that the reason
given for the termination is pretextual because Benitez
was under an individual employment contract with the
Respondent when he was terminated and because, prior
to the advent of the Union, the Respondent’s policy
was not to terminate an optometrist during the term of
his or her employment contract. However, we note that
the General Counsel did not introduce a copy of
Benitez’ alleged contract into the record and that the
Respondent’s president, Evelyn Caceres, testified that
Benitez was not under a contract at the time of his ter-
mination. Moreover, the record shows that in May
1989, the Respondent instituted a policy of increasing
the optometrists’ daily work schedule by 1 hour as
their employment contracts expired. The Respondent’s
increase in Benitez’ hours of work on July 1, 1989, is
thus consistent with a finding that no employment con-
tract existed at that time. Moreover, in explaining why
he did not comply with the new schedule, Benitez
never asserted that the change was contrary to any em-
ployment contract he had with the Respondent. Under
these circumstances, we do not find that the judge
erred in finding that no employment contract existed at
the time of Benitez’ termination.6
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these circumstances, we find the position statement insufficient evi-
dence on which to conclude, contrary to the judge, that Benitez was
terminated during the term of an individual employment contract
with the Respondent. Accordingly, we find it unnecessary to pass on
the judge’s statements at fns. 25 and 43 of his decision that a termi-
nation during the term of such a contract could not have been law-
ful.
1 After close of the hearing, the parties entered a stipulation clari-
fying the testimony of Dr. Carol Lopez as it appears in the official
transcript pertaining to February 20, 1991, which was either incor-
rectly transcribed or inaudibly recorded. The record is reopened for
the limited purpose of receiving that document as Jt. Exh. 1. The
corrections in the transcript have been noted and corrected.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Optica
Lee Borinquen, Inc., Guaynabo, Puerto Rico, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(g).
‘‘(g) Post at its facilities in the Commonwealth of
Puerto Rico, in English and Spanish, copies of the at-
tached notice marked ‘‘Appendix.’’80 Copies of the
notice, on forms provided by the Regional Director for
Region 24, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.’’
IT IS FURTHER ORDERED that the complaint allega-
tion that the Respondent, since March 9, 1990, unlaw-
fully unilaterally increased unit employees’ daily work
hours by 1 hour is dismissed.
Antonio F. Santos and Jorge Ramos, Esqs., for the General
Counsel.
Lidia Gonzalez, Esq. (Munoz, Boneta, Gonzalez, Arbona,
Benitez & Peral), of Hato Rey, Puerto Rico, for the Re-
spondent.
Cesar J. Dones-Magaz, Esq., of Rio Piedras, Puerto Rico, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Hato Rey, Puerto Rico, on various dates between
February 18 and 28, 1991, on an original unfair labor prac-
tice charge filed on January 2, 1990, and a consolidated com-
plaint issued on July 31, 1990, alleged that the Respondent
independently violated Section 8(a)(1) of the Act by threats
of discharge and more onerous conditions of work, including
closer supervision and more stringent evaluations, and by
statements linking strikes and violence inevitably to union
organization. It is alleged further that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by on November 8,
1989, discharging Fernando Benitez, and on March 9, 1990,
discharging Eva Lopez Mendez, in reprisal for union activity.
Finally, the complaint alleged that, on and after January
1990, the Respondent violated Section 8(a)(5) and (1) of the
Act by various actions, including its changing unilaterally
conditions of work; refusing, upon request, to provide the
Union relevant and necessary information, and engaging in
surface bargaining for the purpose of avoiding agreement. In
its duly filed answer, the Respondent denied that any unfair
labor practices were committed. Following close of the hear-
ing, briefs were filed on behalf of the General Counsel and
the Respondent.
On the entire record,1 including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Puerto Rico corporation, operates a
chain of 32 optical stores in the Commonwealth of Puerto
Rico from which it sells lenses, frames, and other optical
products. In the course of that operation, the Respondent,
during the 12 months prior to issuance of the complaint, de-
rived revenues exceeding $500,000 in value, and purchased
and received goods and products valued in excess of $50,000
directly from suppliers located outside the Commonwealth of
Puerto Rico. The complaint alleges, the answer admits, and
I find that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Federacion de Optometras de Puerto Rico (the Union) is
a labor organization within the meaning of Section 2(5) of
the Act.
A. Preliminary Statement
This case emerges from an organizational campaign waged
by a group of optometrists. These professional employees
offer services vital to the Respondent’s operation. The Gen-
eral Counsel contends that the Respondent reacted coer-
cively, violating Section 8(a)(1), through antiunion propa-
ganda, and, later, after the Union was designated, retaliated
by terminating two key proponents of organization, hence
violating Section 8(a)(3) of the Act. Finally, the General
Counsel contends that, following certification, the Respond-
ent violated Section 8(a)(5) on a number of counts including
its manifestation of bad faith by engaging in surface bar-
gaining out of a desire to avoid reaching agreement.
By way of background, it is noted that the Respondent op-
erates 32 optometric shops in the Commonwealth of Puerto
Rico. Most are located in the metropolitan area of San Juan.
The stores generally are staffed by three or four employees,
consisting of a store manager, dispenser (salesclerk), and ei-
ther an optometrist or a ‘‘general practitioner.’’ The general
practitioners are medical doctors who are MDs but not cer-
707OPTICA LEE BORINQUEN, INC.
2 All dates refer to 1989, unless otherwise indicated. However, as
shall be indicated below, commencing with sec. III,C,1,b. of this de-
cision, the references shall shift to 1990.
3 Apart from the Respondent’s optometrists, this labor organization
is lacking in any representational base.
4 At the hearing, the General Counsel deleted an allegation in Par.
12(d) of the complaint that the Respondent violated Sec. 8(a)(1)
through a memorandum issued by Mabel Aponte at the Villa Blanca
and Plaza Centro Stores, ‘‘notifying [optometrists of possible] trans-
fers to different optometry stores’’ by reason of their union activity.
5 G.C. Exh. 4. Caceres, in an apparent attempt to distance herself
from the content of this letter, testified that it was drafted by an at-
torney, and that, although she signed and mailed it to all optom-
etrists, she did so without having time to read it. I did not believe
her testimony on this latter point, and conclude that, having signed
the document, she was fully responsible for the views expressed
therein.
6 G.C. Exh. 3(d).
tified by the Optometry Commission of Puerto Rico. Though
excluded from the bargaining unit, they perform the same
functions as the optometrists, providing eye examinations and
writing prescriptions. A rivalry appears to exist between the
two groups, with the optometrists opposing the use of the
general practitioners. Both normally are retained pursuant to
annual, automatically renewable individual employment con-
tracts.
The Respondent portrays this case as a direct outgrowth of
a shift in management’s approach to the optometrists fol-
lowing a change in ownership. Historically, the business was
owned primarily by Eduardo Alvarez, the former husband of
Evelyn Caceres. The latter held an interest in the firm and
was its vice president. On May 31, 1989,2 following a di-
vorce, Evelyn Caceres assumed full ownership and control of
the 32-store chain. In advance of that date, on May 12, 1989,
she conducted a meeting with the optometrists in which she
suggested that a crackdown was on the way, while high-
lighting areas in which changes would be made in their em-
ployment conditions and improved performance expected.
In terms of actual measures, among her initial steps was
a reorganization whereby the optometrists would be subject
to supervision by store managers, themselves nonprofes-
sionals. Previously, there was no day-to-day, immediate su-
pervision of the optometrists, who merely reported to a med-
ical director or the president of the Company, Alvarez. It
also appears that Caceres sought to alter the method of com-
pensating optometrists by lowering their salaries and impos-
ing a system of incentives designed to reward productivity.
The plan called for a shift in status which in all likelihood
would have been viewed as demeaning to the optometrists.
The optometrists would respond. Soon after the ascend-
ency of Caceres, they formed their own labor organization,3
and on July 13, 1989, filed an election petition in Case 24–
RC–2271. The election was conducted on October 24, 1989,
with the Union certified on November 3, 1989. Contract ne-
gotiations opened preliminarily in January 1990, and later
continued, eventually lapsing without agreement being
reached.
As indicated, the complaint contests the legitimacy of the
Respondent’s conduct both before and after the election.
Apart from the preelection allegations, the Respondent is
charged with having violated Section 8(a)(3) by on Novem-
ber 8, 1989, discharging Fernando Benitez, and, on March 9,
1990, terminating Eva Lopez Mendez.
As for the bargaining, according to the complaint the Re-
spondent refused to bargain in good faith, violating Section
8(a)(5) by, since January 1990, unilaterally changing condi-
tions of work; refusing to provide relevant, requested infor-
mation, and engaging in a course of surface bargaining, evi-
dencing its desire to avoid reaching agreement.
B. Interference, Restraint, and Coercion4 (the
Preelection Allegations)
1. Letter of September 14, 1989
On or about September 14, Caceres mailed an antiunion
letter to all optometrists.5 Its legitimacy is challenged on two
distinct grounds. First, the General Counsel contends that it
conveyed threats of discharge and more onerous working
conditions, including closer supervision and more stringent
evaluations, in the event of unionization. Second, it is
charged that the letter included coercive argumentation which
transcends the free speech guarantees of Section 8(c) by de-
scribing strikes and violence as an inevitable consequence of
unionization.
The initial line of attack requires understanding of the po-
sition advanced by the Respondent in urging dismissal of the
election petition in Case 24–RC–2271. There, the Respond-
ent argued that the Board lacked jurisdiction because the op-
tometrists were independent contractors. This contention ulti-
mately was rejected in a Decision and Direction of Election,
issued by the Regional Director on August 24, 1989.6
The Respondent’s September 14 letter was apparently
drafted after, but without benefit of the Regional Director’s
determination. In it, Caceres sought to explain the Respond-
ent’s position in that regard, while arguing against organiza-
tion on the basis of the greater controls that would be re-
tained and exercised should the optometrists be found to be
employees. Through the following passages, the General
Counsel argues that the employees were threatened unlaw-
fully with closer scrutiny and more stringent conditions of
work:
Our legal representation has sustained and sustains
the position that no jurisdiction of the National Labor
Relations Board exists because I am certain that the fu-
ture of the company has to be in your hands. That is
your only and real guaranty of personal and profes-
sional improvement.
. . .
Two parties do exist in this labor relation. However,
the mere fact that the Union may prevail does not mean
that the company is going to vanish as to its preroga-
tives and powers to exercise control over the compa-
ny’s activities. This is not so. What is going to happen
is that the company is going to exercise some preroga-
tives and powers over each of the optometrists which
heretofore has not been exercised. A Union means that
due to the existence of divided loyalties between the
employer [sic] and the company, we, as employer, have
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to exercise strict supervision over the work schedule,
production, how you take care of the public and also
have to evaluate the quality of professional services
which the optometrists render at their professional; of-
fices, etc. All these areas regarding which the company
has relied on the professionalism of the optometrists
and originates from the premise that only you must
control and watch over. All this professional relation
and respect will vanish with the Union.
Listen closely, inasmuch as a unionized employee,
by definition of the law itself, has to be a supervised
employee over whom the employer is entitled to control
the ways and means concerning all his actions and deci-
sions as to how to perform his work. In our position
before the Board, we have set forth that optometrists
are not supervised personnel and, above all, that the
company has no right to control the ways and means
they decide to carry out their work.
That is why we think that this matter before the
Board is the product of the initiative of a minority
which is ill-advised and is poorly advising and dis-
guising the actual and real facts about what a Union is.
That is the minority you have to reject with your vote.
The union will not be able to eliminate the existence
of the two parties nor will it limit itself either to cre-
ating the situation I just explained. There are two fun-
damental consequence that a decision in favor of the
Union and against the company is going to bring.
The first one is the Company’s legal authority to dis-
charge the optometrists. The existence of a contract to
discharge the optometrists in the terms it is drafted does
not allow taking action to discharge. And, as a matter
of fact, there is not a single case in which this company
has violated the terms of that contract to the detriment
of any optometrist. The terms of the contract guarantee
you the income you earn there in one year and also has
the possibility, in the event that the company should
violate the terms of that contract, to empower you to
file legal action for damages.
The establishment of an employer-employee relation-
ship does not create an everlasting relation. It is just
a relation of permanent employment always subject to
discharge without right to indemnity in any case in
which the employer has just cause for that action. In
such cases the employer can discharge outright. Keep in
mind that the case of a discharge without cause, con-
trary to how the current contract protects you, the em-
ployee is not entitled to claim damages for such action.
So don’t believe that you are more protected with the
Union than without it. [Emphasis added.]
On its face, the message conveyed by this mailing is that
the attempt by the optometrists to organize created a situa-
tion in which, in the eyes of management, the optometrists
had rendered themselves vulnerable to closer supervision and
discharge, and would lose whatever autonomy they enjoyed
previously. The plain, unqualified implication was that, if
found to be employees, the Respondent would alter its his-
toric practice, henceforth exercising greater controls over
them. In doing so, the Respondent threatened that, purely by
virtue of their successful invocation of statutory election pro-
cedures—the cornerstone of Section 7 activity—the optom-
etrists would be vulnerable to closer controls and discharge.
The Respondent thereby violated Section 8(a)(1) of the Act.
The argument that Caceres also unlawfully associated or-
ganization with strikes and violence presents a more difficult
issue. In this respect, the General Counsel cites the following
segment of the letter:
[W]ith the Union reason is going to be replaced by
force, good understanding by misunderstanding and
harmony by discord. There is no human entity nor rela-
tion nor social project where, when this institution be-
comes a reality, man progresses and is happier. Always
in the short and long run it produces a contrary result.
The worst is that when this substitution occurs it then
becomes evident that a loudmouthed, agitating and
thoughtless minority tyrannizes the future of the group
it allegedly is representing. That minority always has a
second exit door in the event that the strike, the pick-
eting or the stoppage, etc. fails because that is pre-
cisely its profession. But he who is a bonafide em-
ployee who with his work brings food to his home and
his job is his only means to make a living to obtain
those indispensable and necessary things for a dignified
life, for those, Unions are finally no good. Union lead-
ers nearly always throw stones and hide their hands.
Later on they blame the responsibility on the employer
but the leader keeps working for the Union, getting the
benefits it provides him, despite the strike conflict his
life level is not affected while the bonafide employee is
at risk of poverty and economic, emotional and psycho-
logical hardship which produces violence, discord and
labor-management conflict.
Simply look around you to see if what I am saying
is wrong. Evaluate the leaders who would be in charge
in case the Union represents you. . . . Ask yourself if
he is more concerned for your well-being and that of
your family than you are. Ask yourself if he is going
to defend you first rather than himself and his own in-
terests. Ask yourself if you have an exit door in order
to endure a labor management conflict full of hatred
and violence. Ask yourself if you have ever seen man
progress and be happier in any situation where there is
discord, misunderstanding and intolerance. And finally
ask yourself if that is the object of a professional. Ask
yourself if the image that you are going to develop
when, instead of looking for improvement through indi-
vidual discussion and negotiation of your conditions of
work and instead of relying of your ability and talent,
you have to resort to force, to anonymity, to hatred, to
yielding your prerogatives of proper judgment in the
performance of your professional work, ask the ques-
tion to yourself if that is what is suitable for you. If
you do not believe in yourself, ask yourself if some-
body else can do so. [Emphasis added.]
In my opinion, nothing in this letter substantiates that the
Employer wrongfully linked the Union with strikes and vio-
lence. Section 8(c) does not require fairness or accuracy, and
does not seek to censor nastiness. See, e.g., Sears, Roebuck
& Co., 305 NLRB 193 (1991). In this regard, the letter is
a low keyed exercise in pejorative, accusatory in tone, draw-
ing on the time worn choice between good and evil. Thus,
709OPTICA LEE BORINQUEN, INC.
7 Cf. Christie Electric Co., 284 NLRB 740, 808 (1987).
8 McCarty Processors, 292 NLRB 359 (1990); Agri-International,
271 NLRB 925, 926 (1984).
9 Clark Equipment Co., 278 NLRB 498, 499–500 (1986); Central
Broadcast Co., 280 NLRB 501, 502 (1986); Asociacion Hospital Del
Maestro, 272 NLRB 853, 857 (1984).
10 G.C. Exh. 5(c).
11 Benitez denied that he requested transfer specifically to Plaza
Carolina, but this was not taken as a contradiction of other aspects
of Caceres’ testimony.
12 Although Benitez denied that he agreed to his compensation, it
is not clear that this denial was broad enough to include his new
work schedule. In this regard, I prefer the direct, unequivocal testi-
mony of Caceres.
unions are portrayed, generally, as the provocateurs of ha-
tred, discord, and misunderstanding, all at the expense of rea-
son. There was no intimation that the Respondent might pro-
voke a strike by refusing to bargain in good faith, or by
naked resistance to union demands.7 There is no reference to
collective bargaining or intimation that any store would be
closed, or that there would be a loss of work, jobs, or em-
ployment. In her convoluted, rambling attempt to persuade
the optometrists that designation of the Union would prove
to be an act of self-betrayal, Caceres simply opines that, in-
stead of bringing happiness to the workers, unions pursue
their objectives, uncaringly, through the use of force, includ-
ing violence, picketing, and strikes.
Under Board policy, the mere mention that strikes are pos-
sible,8 or the characterization of union leaders as having
nothing to lose, or prone to violence and the use of force to
achieve their objectives9 will not alone remove campaign
propaganda from the protective guarantees of Section 8(c). In
the final analysis, the references to strikes and force in this
letter was an attempt to draw upon emotionalism and over-
statement, but merely produced an overall message easily
recognizable as self-serving hyperbole.
Argumentation of this type is left routinely to the good
sense of employees. See, e.g., Auto Workers (Kawasaki Mo-
tors) v. NLRB, 834 F.2d 816, 822 (9th Cir. 1987). Accord-
ingly, it is concluded that the letter did not suggest that
strikes and violence were inevitable consequences of union-
ization under conditions violative of Section 8(a)(1) of the
Act.
2. By Carmen Morales
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act on the basis of a threatening remark attrib-
uted to Carmen Morales, the manager of the Humacao store.
Dr. Lopez Mendez, the optometrist at that location, had
signed the election petition that led to the Union’s certifi-
cation. She testified that, in December 1989, Morales ap-
proached her, stating that if she were Lopez she would save
her money because Caceres was going to decline to renew
the employment contracts of union supporters, and replace
them with general practitioners. Morales denied that she had
any conversation with Dr. Lopez concerning the Union, or
that general practitioners would be used as replacements for
optometrists.
As between them, Dr. Lopez was preferred. Testimony by
Morales in other areas was argumentative and implausible to
the point of suggesting that she was willing to relate any-
thing that might favor the Respondent’s position in the case.
Her exposition that the absence of a salesperson on the busi-
est day of the week would have no impact on sales, that in
her store all customers are willing to stand around and wait,
and that two salespersons could take care of the trade as effi-
ciently as three struck as unrealistic in the extreme. Based
upon the more believable of Dr. Lopez, it is concluded that
the threat by Morales, an admitted supervisor, violated Sec-
tion 8(a)(1) of the Act.
C. Postelection Conduct
1. The alleged discrimination
a. The discharge of Fernando Benitez
The Union was certified on November 3. Dr. Benitez, an
active proponent of the Union, was terminated on November
8.
Dr. Benitez was transferred, effective July 1, 1989, from
Caguas to the Plaza Carolina store. The change was memori-
alized by letter dated June 29, 1989, which also advised that
his scheduled hours were from 9:30 a.m. to 5:30 p.m. with
1 hour for lunch, 6 days per week.10
Caceres testified, without contradiction, that Benitez initi-
ated this transfer, seeking a store with greater volume of ex-
aminations.11 Caceres went on, credibly, to relate, that
Benitez agreed to the new work schedule at Plaza Carolina.12
Benitez, however, admittedly failed to conform to those
hours, claiming instead to have worked regularly thereafter
until November 1 from 9 a.m. to 4 p.m.
This noncompliance would soon become an issue. It was
initially addressed by Dr. David Miranda, the Respondent’s
comptroller, who telephoned Benitez in July, 2 or 3 weeks
after Benitez’ assignment to Carolina Plaza. Miranda in-
structed Benitez to comply with the 9:30 a.m. to 5:30 p.m.
schedule. Benitez claims that he replied as follows:
I told him I was doing my best to comply with these
hours but we would have to sit down and discuss my
salary because my salary was supposed to increase and
. . . on the contrary was decreased when I started
working at Plaza Carolina.
Benitez claims that the change in his daily shift increased
his hours without a change in salary, therefore creating a net
decrease in his hourly earnings. It does not appear that the
Respondent agreed to revise his salary or his schedule.
Benitez simply ignored Miranda’s direction, prompting
Caceres in a letter to Benitez, dated July 26, to refer to his
conduct in light of the agreement on schedule, as follows:
The information that we have received and that you
have confirmed is that you have unilaterally violated
said agreement and started leaving at 4:00 in the after-
noon. We personally request[ed] that you keep with that
agreement and despite that you continue violating the
terms that you agreed . . . [to].
Caceres, through that document, issued the following warn-
ing:
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 R. Exh. 1. In his testimony, Benitez, before being confronted
with this letter, could not recall a written warning prior to October
24.
14 Store Manager Genny Bravo related that she reported the failure
of Benitez to comply with his agreed-upon work schedule continu-
ously to headquarters from the inception of his assignment to the
Carolina Plaza store.
15 G.C. Exh. 5(b). Benitez could not recall that Caceres had
warned him verbally concerning his failure to abide by his assigned
schedule. I believed Caceres.
16 G.C. Exh. 6.
17 G.C. Exh. 5(a).
18 Benitez was the union president. He claims that he was named
to this post in June 1989. He did not, however, sign the election pe-
tition which was filed on July 13. (G.C. Exh. 3(a).) He claims, with-
out corroboration, to have identified himself as union president at the
informal prehearing conference on that petition. The conference was
attended by lawyers who at that time represented the Respondent,
but have since been replaced. Neither Caceres, nor any other func-
tionary of the Respondent was identified as present on that occasion.
The parties agree that, while testifying at the preelection hearing,
Benitez was not identified as the union president. There is no direct
evidence conflicting with Caceres’ denial that she was aware of his
official status in the Union at any time prior to the discharge. I find
that she lacked such knowledge. Nonetheless, Caceres acknowledged
that she attended the preelection hearing on the date that Dr. Benitez
testified.
If you continue with problems regarding the quitting
time we have two options: exercise the right to termi-
nate the work contract or accept your resignation if
your non compliance of the contract is caused by strict-
ly personal reasons and you prefer to act in that man-
ner.13
Benitez still did not comply. Caceres avers that she talked
to him four or five times about this problem prior to October
24, the day of the union election.14 By letter of that same
date, Caceres admonished Benitez as follows:
Effective July 1, 1989, we sent you a memorandum
with the new change of optical center and schedule.
While reviewing our records, these indicate that you
are not complying with your assigned schedule. This
situation has become intolerant thus practically leaving
us with a discharge action as the only alternative.
It is essential that you comply with the schedule, in
the same we have complied with you. If you do not im-
mediately correct this situation, we will be forced to
take the only measure remaining, as we have warned
you so before.15
As he had the others, Benitez initially ignored this warn-
ing. Between October 24 and November 1, he continued to
leave at 4 p.m. According to Benitez, ‘‘two or three days
after’’ he received and read the October 24 letter, he con-
sulted his attorney, and on advice of counsel, after November
1, he complied with the designated schedule.16
Nevertheless, by letter of November 8, within a week after
the Union’s certification, Caceres terminated Benitez, stating
as follows:
On multiple occasions, we have informed you in per-
son as well as in writing of your consistent incom-
pliance with your schedule, without this shortcoming
having improved.
Upon noticing this past fortnight that you have not
yet complied with your schedule, we decided to dis-
pense with your professional services as an Optometrist
in our company effective today, the 8th day of Novem-
ber 1989.17
The discharge took place against a background of overt
union activity. Benitez along with all other optometrists who
supported the Union appeared at the joint preelection con-
ference. He was one of four optometrists who testified on be-
half of the Union at the preelection hearing on August 2 and
4, 1989.18 On that occasion, in the presence of Caceres, he
offered testimony opposing to the Respondent’s position that
the optometrists were independent contractors. It is noted fur-
ther that uncontradicted evidence names him as present along
with Drs. Enid Molinary and Eva Lopez Mendez, and two
representatives of the Respondent, to witness the opening and
counting of ballots after the election.
This knowledge coupled with other factors impel the Re-
spondent to disassociate this termination from unlawful con-
siderations. Thus, earlier, the Respondent had declared hos-
tility to the right of optometrists to organize. The step was
taken shortly after the Union’s designation and certification,
and since the employee involved had given testimony against
the Respondent’s effort to prevent an election, the cir-
cumstances reflect sufficient earmarks of reprisal to warrant
an inference that union activity was at least a part of the mo-
tivation. Thus, consistent with the proof responsibilities as-
signed by the Board in Wright Line, 251 NLRB 1083 (1980),
the burden shifted to the Respondent to demonstrate that this
was not the case. Under the precedent, this burden is not met
simply by verbalizing an ostensibly legitimate ground for ter-
mination. The defense must go further, demonstrating ‘‘by a
preponderance of the evidence that the action would have
taken place even without the protected conduct.’’ Hicks Oils
& Hicksgas, 293 NLRB 84 (1989). Moreover, where pretext
is asserted, it must be ascertained whether the employer’s as-
signed ground is credible, so as to substantiate that protected
activity was mere coincidence. Wright Line, supra.
In this connection, I am convinced that the conduct of Dr.
Benitez was a contumacious attempt to seize control of, and
impose his own conditions of work. Until November 1, he
defiantly refused to abide by his assigned and agreed-upon
work schedule. His course of conduct over a 4-month span
constituted just cause of a nature that would support termi-
nation even in the absence of protected activity.
The effort on the part of the General Counsel to disparage
the reasons for the discharge as pretext was unpersuasive. In
this connection, a contention is leveled that Benitez was sin-
gled out for warning on October 24, though none was for-
warded to other optometrists that had refused to work their
assigned schedules.
The General Counsel attempts to make the point through
the experience of Dr. Enid Molinary, arguing that she pur-
sued a similar course, but received no discipline. The cases
are different. Dr. Molinary was transferred to the Caguas
store effective July 1, 1989. Earlier, in June 1989, Molinary
was informed by letter that her schedule at this store would
be changed to 9:30 a.m. to 5:30 p.m. She declined to adhere,
instead working from 10 a.m. till 4:30 p.m. Her deviation
was initially accepted and then, when called to her attention
711OPTICA LEE BORINQUEN, INC.
19 G.C. Exh. 13(a).
20 G.C. Exh. 13(b).
21 G.C. Exh. 13(b). Benitez had no similar protection. Prior to the
ascendency of Caceres, Benitez had a special status in the operation,
which dispensed with necessity that he sign an employment contract.
Thus, in his case, the assigned schedule did not conflict with any
right bestowed contractually.
22 R. Exh. 18.
23 Caceres testified that she did not confer with the Plaza Carolina
store manager as to whether Benitez, at the time of discharge, con-
tinued to work his own schedule. In light of his historic pattern of
noncompliance, particularly since the October 24 warning, Caceres
had no reason to assume that there had been any change.
24 The General Counsel at fn. 6 of its posthearing brief argues that
because Caceres admitted that sales forms arrived at headquarters
within 24 hours after the close of work, they were available when
she made her decision, ergo, it is asserted that she must have known
at the time of discharge that, consistently since November 1, Benitez
was working in compliance with her demands. Although the record
is ambiguous in this respect, Caceres testified that the discharge de-
cision was made only with benefit of the attendance records, ex-
plaining further that the sales forms are used for purposes of com-
missions only, and are not sent to the personnel or payroll depart-
ment. It is true that Caceres seemed confused as to when these docu-
ments would be forwarded to headquarters, first testifying on several
occasions that they would be received after the attendance records,
but, then, on cross-examination, stating that she was not sure but be-
lieved they were sent every day. However, on balance, I am inclined
to give her benefit of the doubt, and conclude that she was unaware
as of November 8 that Benitez had made a turnabout.
25 Uncontradicted evidence substantiates that at the time of the dis-
charge, there was no individual employment contract covering Dr.
Benitez. Had his tenure been governed by such an agreement, and
had the termination occurred during its term, notwithstanding the ex-
istence of valid cause, the Benitez discharge would have been un-
lawfully accelerated. Thus, prior to the advent of union activity, the
Respondent did not discharge optometrists for cause under those
conditions. Instead, those with a poor work history were tolerated
until their contract expired, and then eliminated passively, by a fail-
ure to renew. This practice was changed solely because the Regional
Director in his Decision and Direction of Election rejected the Re-
spondent’s position that the optometrists were independent contrac-
tors. Thereafter, Caceres in her letter of September 14, 1989, de-
clared that optometrists, should this prove to be the case, would for
the first time be vulnerable to involuntary termination in the middle
of their individual employment contracts. This change in practice,
occasioned solely in reaction to the invocation of Board remedies,
would not, under any circumstances, support a lawful discharge of
an optometrist during the term of his or her personal employment
contract.
26 G.C. Exh. 3(a).
27 Henceforth, all dates shall refer to 1990, unless otherwise indi-
cated.
once, she complied. Thus, on March 3, 1990, she reverted
to her assigned schedule, having received a letter from
Aponte instructing her to do so.19 The contention that no one
from management between July 1989 and March 1990 had
mentioned her noncompliance is understandable in light of
her own further testimony that at the time of her 1989 trans-
fer, she protested the new schedule to both Caceres and
David Miranda in a conversation which ended with Caceres
asserting that the new hours would be discussed when
Molinary’s contract expired in 1990. Molinary’s case does
not suggest that the Respondent condoned the defiant attitude
manifested by Benitez. Thus, unlike Dr. Benitez, Molinary
did not agree to the schedule imposed on her by the Re-
spondent in June 1989.20 In fact, in her case, there was room
for the claim that this latter schedule conflicted with her per-
sonal employment contract which at least arguably required
her merely to work 6 hours daily.21 Other evidence enforces
the inference that the difference in treatment of Molinary and
Benitez was founded upon a difference in circumstances and
not union activity. For, Molinary was also an active pro-
ponent of the Union. Indeed, she had acted as the Union’s
spokesperson at the informal negotiating session in Novem-
ber 1989, well prior to her compliance with the schedule im-
posed by the Respondent earlier that summer.
General Counsel also faults the Respondent’s propriety in
effecting the discharge with knowledge that since November
1, Benitez had complied with the assigned work schedule.
The Respondent does not deny this period of compliance, but
observes that at the time of discharge it was unaware of this
change. First, Sandra Cordero, a payroll clerk testified that
the attendance records covering the timeframe October 30
through November 11,22 would not have been received by
the payroll department until Monday, November 13, at the
earliest. Consistent therewith, Caceres denied that, at the
time, she possessed records evidencing that Dr. Benitez had
finally complied. She testified that she relied on the ‘‘pay-
roll’’ records, including the attendance sheets and the sales
forms.23 The attendance sheets covering the payroll period
beginning November 1, were not available, and the sales
forms covering that same period would have been submitted
to the payroll department even later.24
Accordingly, it is concluded that the General Counsel has
not cast doubt sufficient to overide the persuasive evidence
that the Respondent would have discharged Benitez even if
he had not engaged in union activity. Hence, it is concluded
that the Respondent did not violate Section 8(a)(3) and (1)
of the Act by discharging Dr. Benitez.25
b. The discharge of Eva Lopez Mendez
(1) The prima facie case
Dr. Lopez Mendez was an early union supporter. Her ac-
tivity included the filing of the representation petition in
Case 24–RC–2271, a document which bears her signature.26
She attended the preelection hearing, and was among the
union supporters who were present to witness the opening
and counting of ballots on the day of the election. Following
certification, in November 1989, she, along with five other
optometrists attended a meeting with the Respondent where
the Union initially presented its proposed collective-bar-
gaining agreement. In December 1989, because of her sup-
port of the Union, Lopez was unlawfully threatened by her
store manager with termination.
Against this background, by letter dated March 1, 1990,27
Evelyn Caceres informed Lopez as follows:
As you know, your work contract for professional
services expires on April 5 of the present year.
Said contracts provide for a 30 day advanced notice
with the purpose of entirely renewing same. Since there
was an election on the part of Federacion de
Optometras whereby it was decided to constitute them-
selves as an appropriate unit to represent the Optom-
etrists before Optica Lee Borinquen, by these means we
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 G.C. Exh. 8(d).
29 Lopez was asked to work this schedule upon transfer to the
Humacao store. However, her employment contract only obligated
her to work from 9 a.m. to 3:30 p.m. (G.C. Exh. 8(a).) Like other
optometrists, including Enid Molinary, She elected to adhere to her
contractual schedule because the Respondent refused to compensate
her for additional overtime.
30 Aponte actually forwarded three documents, the first on March
9, with the subsequent documents designed to correct the date of the
February 24 incident. G.C. Exhs. 7(a), (b) & (c). One such docu-
ment, though dated March 9, actually was revised on April 4, and
later delivered to Mendez. G.C. Exh. 7(c).
31 Monthly sales records indicate that sales volume on February 24
was the second heaviest of any day that month. G.C. Exh. 12(c).
32 This firm also is owned by Caceres. It provides support services
to the Respondent since engaged in the processing of eyeglasses on
the latter’s behalf.
33 Izquierdo testified that while Dr. Lopez was not eating at the
time, she did not know whether Dr. Lopez was taking her
lunchbreak when she made the examination request.
are hereby informing you that your contract will not be
renewed for the term specified, and you will continue
under a month by month contract until a final decision
is reached with regard to the contract to be executed
between the parties.
For any doubts, please communicate with our central
offices.28
Less than 10 days later, on March 9, Dr. Lopez was termi-
nated. The discharge of a key protagonist of the Union,
whose union activity had been the focus of an unlawful
threat, shortly after a high level assurance of continued em-
ployment, suffices, at least in part, to warrant an inference
that proscribed considerations influenced that decision. Ac-
cordingly, as in the case of Dr. Benitez, the burden was on
the Respondent to demonstrate that Lopez would have been
terminated even had she not engaged in union activity.
(2) The defense
The Respondent cites two reasons for the termination.
Both relate to events occurring well before the March 9 dis-
charge. The first, and most significant incident, took place on
Saturday, February 24, when Dr. Lopez declined to examine
several customers. The second, founded on an alleged ‘‘neg-
ligent’’ handling of an examining lamp, dated back to Feb-
ruary 10. These grounds were formally described in writing
to Dr. Lopez by Mabel Aponte, Respondent’s personnel
manager, as follows:
On Saturday, February 24, 1990, on the date when
the manager of the optical center, Carmen Morales, was
absent because of illness, around 3 p.m., you refused to
take care of three (3) patients who went to the optical
center to have their vision examined. In spite that you
were required to provide services to those patients, you
continued in your refusal, offering as an ‘‘excuse’’ that
you were ‘‘tired.’’ Your conduct prevented that the es-
tablished sales goals be reached, in addition to the un-
easiness caused in the patients by the lack in service.
I would like to bring up to your attention that you
have not been using the optical equipment with the
proper care and diligence. I specifically refer to the
lamp of the chair used to administer examinations. This
equipment had been repaired on Saturday, January 22.
Last Saturday, February 10, to the technician’s surprise,
who had to return again to repair it, finding the same
problem of January 22: The defective wires were bro-
ken because they were twisted like a braid. You had to
be given instructions by the technician on how to oper-
ate the lamp, in spite of your experience in the handling
in the above mentioned equipment.
Exactly as Mrs. Evelyn Caceres pointed out to you
in the memorandum of July 29, 1989, the regular work
schedule assigned to you is from 8:30 a.m. to 4:30 p.m.
with an hour to have your meals.29 It is unacceptable
that you decide on your own not to provide the services
for which you have been contracted, within the sched-
ule assigned to you.
Your conduct adversely affects the smooth running
of the business, the good name of the business and pro-
fessional reputation of the Optica Lee Borinquen, and,
therefore, it cannot be tolerated. This conduct is of such
importance that management has reached the decision
to discharge you immediately.30
(3) The February 24 incident
Dr. Lopez did not deny that she refused to examine sev-
eral patients on Saturday, February 24. She avers that this
was a busy day, in which she examined 13 patients, plus
about five follow up examinations, without taking her
lunchbreak until 3 p.m., the last one-half hour of her shift.31
She admits that she was told by Assistant Store Manager
Cecilia Izquierdo and by a dispenser, Juan Carlos Rivera,
that two patients wished examinations and that she re-
sponded, ‘‘please I’m having my lunch; . . . please make an-
other appointment for Monday.’’ A third patient was rejected
by Dr. Lopez because he was incoherent and she feared that
he was not a legitimate customer. Dr. Lopez left the store
at 3:30 p.m., her customary quitting time.
Concerning the events of February 24, the Respondent
called Rivera and Izquierdo, along with another individual,
Alberto Sanchez, an optician employed of Pan American Op-
tical Manufacturing,32 to dispute the timing and reason given
by Dr. Lopez for refusing the examinations.
Rivera testified that on February 24, at 2:45 p.m., a patient
entered for an eye exam. Rivera informed Dr. Lopez of that
fact. The latter replied that there would be no further exami-
nations that day because she was tired. At the time, accord-
ing to Rivera, Lopez was reading a book. Rivera told the pa-
tient to return on Monday. Rivera states that the patient did
not return.
Cecilia Izquierdo testified that on February 24, at 2:55
p.m., she referred a patient to Dr. Lopez for examination. Dr.
Lopez refused, stating that she was very tired. Izquierdo in-
sisted that Dr. Lopez test the patient because the store need-
ed one sale to meet quota. She again refused, stating, no, she
was too tired, and instructed Izquierdo to make an appoint-
ment for Monday.33
Alberto Sanchez testified that on February 24, he was in
the Humacao store for the purpose of providing training to
Juan Carlos Rivera. He was present for the entire day. The
training was provided in the same room where Dr. Lopez
would take her breaks. He avers that Dr. Lopez was in the
room, while he was in attendance there from 2:45 to 3 p.m.
713OPTICA LEE BORINQUEN, INC.
34 Sanchez did not strike me as a particularly reliable witness. He
admittedly was not asked for his version of the incident until March
26, when, as part of an investigation, he was called in by the Re-
spondent’s attorney. I specifically did not believe that he was aware
of the precise time that Rivera appeared to request examination of
the first patient. Contrasted with other aspects of his testimony, this
refinement seemed reflective of a selective memory.
35 Contrary to the testimony of Rivera and Izquierdo, records
maintained by the Respondent, but containing notations by Dr.
Lopez, reflect that she examined her last patient on February 24 at
3 p.m. G.C. Exh. 12(p).
36 Rivera could not recall when he signed the document. He did
recall that on Monday, February 26, he reported the incident to Store
Manager Morales, who, in his presence, telephoned the central of-
fice.
37 Alberto Sanchez was not mentioned in this document.
38 R. Exh. 4.
39 It is impossible to accept that Evelyn Caceres was not among
them. I am convinced that at all times the ‘‘right hand’’ was fully
mindful of the actions of the ‘‘left.’’
He claims to have observed Dr. Lopez reading a book, when
at 2:45 p.m., she refused, at Rivera’s request, to examine a
patient. Later, according to Sanchez, Rivera returned indi-
cating that there were two additional patients seeking exam-
ination. In each instance, Lopez declined the examination, al-
legedly stating that she was too tired, while Rivera persisted
that the patients be examined. Sanchez adds that later, Dr.
Lopez commented to him, ‘‘what do these people think, I’m
very tired, I’m exhausted and I’m not going to do any ex-
aminations.’’ He denies that Lopez was eating.34 He did not
identify Izquierdo as having appeared in the room at any
time that afternoon.
Store Manager Carmen Morales was absent on February
24. She testified that when she returned to work on Monday,
February 26, employees reported that Dr. Lopez failed to
treat patients at 3 p.m. on February 24.35 Morales reported
this immediately to Aberlyn Garcia. The latter arranged for
Morales to meet concerning the incident on March 5.
Morales did not prepare a written report until March 5.
The document also contained the signatures of Rivera36 and
Izquierdo.37 It alleged that ‘‘Dr. Lopez refused to give her
professional services to several patients’’ upsetting the pa-
tients and causing the store to fall short of established sales
goals. (R. Exh. 2.)
(4) The examining lamp
Concerning the allegations pertaining to the lamp, Dr.
Lopez avers that in January she reported that an electrical
discharge was being emitted from her examining chair. Their
was no response. Eventually the lamp broke down. This oc-
curred when Dr. Lopez’ replacement, Dr. Hector Perez was
working. To her knowledge, Jose Caceres, the brother of
Evelyn Caceres repaired the lamp on Saturday, January 22.
A couple of weeks later the lamp again ceased functioning,
once more on the shift of Dr. Perez. Jose Caceres returned
on February 10, repairing the lamp, this time, advising Lopez
that the cables on the lamp had been twisted, while admon-
ishing her not to move the lamp so often. She avers that she
pointed out to Caceres that, to perform her duties, it was nec-
essary to move the lamp.
Jesus Caceres, the general manager of Pan American Opti-
cal, and the brother of Evelyn Caceres, testified that he had
to go to the Humacao store twice to repair the wire in the
overhead examining lamp that apparently had been broken
because of unnecessary twisting in use. He agrees that he re-
paired the lamp both on January 27 and February 10. He
avers that he submitted a report to Evelyn Caceres on Feb-
ruary 12, which stated the entire case against Dr. Lopez:
Last [S]aturday, February 10, I visited . . . Humacao
because I had been informed that lamp of the visual ex-
amination chair was not working. Two weeks earlier,
[S]aturday, January 27, I had visited this optic to fix the
same problem. That time as well as [t]his . . . the elec-
trical wiring was broken. I spoke to Dr. Eva Lopez and
told her that I had installed new wiring in the lamp and
in only two weeks the wiring had broken again. I told
her that you didn’t have to turn the lamps around and
around as apparently was happening since the wires
looked like braid and when they were bent they broke.
The necessary movement for the lamp is only 450. I
don’t know why they twist and twist till they break the
wires.38
Jesus Caceres acknowledged that this problem arises in all
stores, thus, explaining use of the term ‘‘they’’ in the above
report. He asserts, however, that, although the wiring might
go bad after several years of use even in the hands of an ex-
perienced optometrist, normally the breakdown occurs at the
hands of a new inexperienced optometrist. He describes the
incident at Humacao as unprecedented, for he never before
was required to return after making the repairs.
(5) Concluding analysis
I was singularly unpersuaded by the Respondent’s expla-
nation for this discharge. The examining lamp incident struck
as pure afterthought. Neither Morales, Aponte, Evelyn
Caceres, nor any other of Respondent’s managerial staff ever
mentioned the matter to Lopez. There was neither written,
nor oral warning in that regard. In the case of Evelyn
Caceres silence concerning the issue is indicative of the ra-
pacity with which the matter had become stale, for, having
received her brother’s February 12 memo much earlier, the
lamp did not preclude Caceres from on March 1 advising Dr.
Lopez that, in April, after expiration of her contract, employ-
ment would continue on a month to month basis. The res-
urrection of a condoned offense that never before had been
mentioned to the employee often provides the framework for
sham.
The February 24 incident had characteristics of a similar
bent. Mabel Aponte, who lacked educational background in
the field of personnel administration, testified that she alone
made the decision to terminate Lopez after discussion with
certain individuals whom she did not identify.39 She avers
that she terminated Lopez without prior warning ‘‘because
her conduct was of a type that the company could not tol-
erate because she denied attending three patients that went to
the optical store to make an eye examination.’’ While I have
no doubt as to the Respondent’s concern, the facts show little
sense of emergency. It took almost 2 weeks to effect this
‘‘summary’’ termination. During that period, there was no at-
tempt to communicate with Lopez. In an event, suspicion is
capped by other persuasive evidence showing that the Re-
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 G.C. Exh. 9(b).
41 R. Exh. 9(b).
42 Added concern for the bonafides of the Respondent’s defense
emerges from one of its witnesses, Hector Sauri, an employee of a
firm that contracts with the Respondent for auditing customer service
in its stores. Sauri claims that after a visit to the Humacao store on
March 6, he completed a handwritten report mentioning that a clerk
had advised that examinations are not given at that store after 3
p.m., and in any event that the optometrist was not in the store at
the time. R. Exh. 3. The report goes on to state: ‘‘According to a
conversation with David Miranda Dr. Lopez leaves at 4:30 P.M.’’
Sauri states that he did not at the time know the names of personnel
in the store, and did not believe that he talked to David Miranda
and would have no reason to do so. Sauri first attempted to explain
away the inconsistency between the quoted statement and the limits
of his personal knowledge by first testifying that the statement was
based on ‘‘my supervisor’s instruction he told me that the doctor
was supposed to leave at 4:30.’’ Sauri then backtracked denying that
he put this in the report pursuant to instruction, stating that he him-
self considered this relevant because the optometrist was not avail-
able to provide an examination. Sauri was no more credible than his
report, which insofar as it included matters collateral to his direct
observations derived from visiting the store, was beyond the scope
of his duties. In my opinion, the inclusion of this reference was ex-
plainable solely as a crude attempt to entwine the facial indifference
of an independent third party in a scheme to demean Lopez.
spondent would not have imposed such drastic discipline
were other considerations not involved.
Of empirical significance is evidence of disparate treat-
ment. In this regard the record amply demonstrates that other
optometrists engaged in equally offensive conduct which pre-
vented customers from receiving examination, yet were cor-
rected through lesser forms of discipline.
Dr. Jose Luis Martinez was a multiple offender. On Janu-
ary 31, he failed to perform an examination at request of a
company auditor. On March 6, only a few days prior to the
discharge of Lopez, was guilty of a second offense. This was
handled through warning dated March 13, which acknowl-
edged several other occasions in which Dr. Martinez refused
to examine patients during the last one-half hour of his shift.
The warning included the following explanation for not ef-
fecting discharge:
[W]e have decided to give you another opportunity and
only give you an admonishment letter, since when on
March 8, I explained to you that it was your responsi-
bility to examine the patient . . . you complied with
your duty of performing an examination upon him, we
will not take other more severe disciplinary measures
against you.40
Dr. Lopez was not afforded a similar opportunity to correct
what apparently was a single aberration.
Similar misconduct brought a lenient reaction on February
8, 1990, when Dr. Myriam Martinez only received a written
warning despite her rejection ‘‘in an insubordinate manner’’
of Mabel Aponte’s order that she replace an incapacitated
optometrist at a high volume store. The circumstances re-
flected a ‘‘pressing need’’ to meet demands for examinations
at that location. (G.C. Exh. 9(a).) Aponte, only a month be-
fore the termination of Lopez, treated Martinez’ conduct,
though potentially leaving a busy store without optometric
service for an entire day, with an act of grace:
Despite the fact that you stated that you would not
comply with these orders and that you’d rather quit the
job, I have decided to give you another opportunity, be-
cause I believe you reacted without thinking.
Dr. Charlene Cordero, on July 31, 1990, merely received
a written warning for the following offenses:
Last Friday, July 27, 1990 you were absent from work
without notifying or submitting any excuse. On Satur-
day July 28, after completing your work at the Levit-
town eye center, approximately at 1:30 p.m. there were
still three (3) patients waiting to be examined, one of
which was sent to the eye center of Santa Rosa, which
was where you were assigned to work in the afternoon,
so that you examine them there. Notwithstanding, you
did not show up at your work in the afternoon at the
Santa Rosa eye center, as was your duty. You did not
notify the manager of Santa Rosa either that you would
not show up to work nor subsequently submit any ex-
cuse for such absence. [G.C. Exh. 9(c).]
Basically I would agree with the Respondent that the re-
fusal to provide examinations during working hours is a seri-
ous offense. However, the above cases indicate that, while
Lopez was not even contacted for her version of the story,
others no less guilty, were counselled and warned. Indeed
these latter cases reflect that a key union adherent was vic-
timized by a disparate application of disciplinary standards to
an extent obviating a finding that her discharge would have
occurred even if she had not engaged in activity protected by
the Act.
The timing of the discharge in light of the Respondent’s
acknowledged difficulty in recruiting certified optometrists
during the same timeframe also supports the General Coun-
sel’s claim of pretext. Aponte testified that 1990 was the
most difficult year to hire optometrists, and it appears that
prior to the Lopez discharge, the Respondent was attempting
to recruit optometrists. As part of the effort, advertisements
were placed in a periodical, producing results, given feint
praise by Aponte, as follows:
Well, I would say they were very favorable. But the
majority of them [applicants] did not have their license,
the ones that wished to work, it’s because they did not
pass their Board exam.41
Thus, while the Respondent was faced with difficulties in
staffing its stores, it departed from the existing disciplinary
pattern to discharge the individual most overtly responsible
for the election that resulted in designation of the Union.42
In sum, the General Counsel has discredited, effectively,
the testimony offered to substantiate the Respondent’s
grounds for terminating Lopez, thus, enforcing the inference
of discrimination that arises from the case-in-chief. Accord-
ingly, as the Respondent has failed to demonstrate by credi-
ble proof that Dr. Lopez would have been terminated had she
not engaged in union activity, it is concluded that the Re-
715OPTICA LEE BORINQUEN, INC.
43 Even were I to find that the Respondent had maintained its bur-
den in this respect, a more limited violation would inure. For, Lopez
was discharged during the term of her contract. As heretofore indi-
cated, action at that time constituted an implementation of a change
in practice, occasioned solely by the Regional Director’s determina-
tion that optometrists are employees, rather than independent con-
tractors. Thus, had the optometrists not invoked the election process
of the Board, the Respondent would have deferred action upon any
misconduct until expiration of Lopez personal employment contract,
then simply declining to renew. Thus, by acting on an accelerated
basis, the Respondent would, in any event, have violated Sec. 8(a)(3)
and (1) of the Act. However, on this theory, the remedy would be
confined to the period prior to expiration of the employment contract
in April 1990.
44 The Respondent was permitted at the hearing to deny this alle-
gation, after clarification of the General Counsel’s theory in this re-
spect.
45 See, e.g., R. Exh. 9.
46 As I indicated at the hearing, evidence proffered by the Re-
spondent was initially misconstrued by the me as an attempt to sub-
stantiate economic justification. Later, my misinterpretation was cor-
rected, and the General Counsel was informed that he would be re-
lieved of a stipulation entered in reliance upon my stated position,
and hance was obligated to combat the Respondent’s case in this re-
spect. This produced evidence limited to a document which signified
that, while only three candidates passed the optometric examination
in August 1990, 15 others successfully completed a repeat examina-
tion given 3 weeks later and were certified subsequently on an un-
disclosed date. G.C. Exh. 20.
spondent thereby violated Section 8(a)(3) and (1) of the
Act.43
2. The 8(a)(5) allegations
a. Unilateral Action
(1) The Undisputed Allegations
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by, since January 1990, by unilat-
erally and without notice or bargaining with the Union,
changing conditions of work. In this respect, the Respondent
admits rescinding sales commissions on color contact lenses,
and increasing the minimum daily work hours on days off
without a commensurate increase in earnings. The answer
also admitted that these changes were implemented without
notice, or opportunity for bargaining. Neither change was
pursuant to any announcement or implemention taking place
before the Union’s certification. In the circumstances, as both
affected a mandatory subject of bargaining, the Respondent’s
action independently violated Section 8(a)(5) and (1) of the
Act.
(2) The disputed changes
(a) The use of general practitioners
The certified unit excludes general practitioners even
though they perform the same work as the optometrists. The
General Counsel contends that the Respondent violated Sec-
tion 8(a)(5) and (1) by since March 1990, broadening its uti-
lization of general practitioners by hiring them in predomi-
nant numbers to fill vacancies in jobs formerly occupied by
certified optometrists.44 The Respondent explained that it did
so, but argues that the change in profile was dictated by
labor market conditions, beyond its control, which made it
impossible to recruit certified optometrists.
Until 1985, no educational institution in the Common-
wealth of Puerto Rico prepared and graduated optometrists.
Thus, prior to 1985, the Respondent employed few, if any
optometrists. All examinations were performed by medical
doctors, who were not graduates of a school of optometry
and not certified by the local board of optometry.
In 1985, Interamericana Universidad graduated its first
class of optometrists. The Respondent, in the years that fol-
lowed preferred to hire optometrists, but continued to retain
the general practitioners, apparently only on a supplementary
basis. This use increased dramatically several months after
the Union’s certification. Thus, In March 1990, the Respond-
ent employed about 26 optometrists and only about 6 general
practitioners. At the time of the hearing the ratio had re-
versed itself with the Respondent employing only 7 optom-
etrists, but filling in with 19 general practitioners. (G.C. Exh.
2.)
In 1989, a critical shortage of certified optometrists
emerged. In 1989 and 1990, many optometrists went into pri-
vate practice, and, despite large graduating classes, few were
passing certification exams. In 1990, despite the largest grad-
uating class, only about three passed their boards. In con-
sequence of the shortage, the Respondent hired only four to
six licensed optometrists in 1989. In addition to manning its
business with general practitioners, the Respondent looked
ahead, hiring uncertified graduate optometrists, who worked
as dispensers, pending successful completion of their board
examinations. Personnel Manger Aponte credibly testified
that general practitioners were hired solely to fill the void
created by the inability to recruit optometrists.
The General Counsel contends that that the hiring process
is a mandatory subject of bargaining which may not be al-
tered without allowing the Union an opportunity to bargain.
While this may be so where management has defined a hir-
ing policy or systematic approach or formal rules governing
hire, I am aware of no precedent that makes the Union a
partner with management in connection with isolated action
occurring on an ad hoc basis during the actual hiring process.
In this context, the duty to bargain assumes, at a minimum,
that the employer’s action is founded upon an area of discre-
tion.
On this record, there is no evidence that the Respondent
altered its hiring philosophy after the Union’s designation.
The evidence fails to suggest that it declined to hire a single
optometrist that applied for work, that their was any reduc-
tion in its efforts to recruit those certified in that profes-
sion,45 or that the general practitioners were accorded a pref-
erence over qualified optometrists. On the other hand, the
evidence makes plain that the ratio was not a byproduct of
management plan or policy concerning employment criteria,
itself of a bargainable nature, but a pattern that emerged
from ad hoc hiring decisions influenced by labor market con-
ditions. As between the two classes of professionals, the Re-
spondent had neither alternative, nor choice.46 In short, to
sustain the alleged violation is to assume that the Act re-
quires clearance with the statutory representative before an
employer might take favorable action on an individual em-
ployment applications. The law does not support this notion.
See, e.g., Star Tribune, 295 NLRB 543 (1989). The 8(a)(5)
allegation in this respect shall be dismissed.
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 G.C. Exh. 10(b).
48 There is no requirement that a party file a posthearing brief, and
hence in no obligatory sense need its content be useful. However,
when the allegation is general, but comprehensive, and the evidence
is multifaceted, guidance on the part of counsel is rightfully ex-
pected. At the hearing, the warned counsel for the General Counsel
that in light of the last-minute nature of this allegation, and its
breadth, rules omitted from the discussion of facts or rationale in his
posthearing brief, would be taken as a concededly legitimate. In its
posthearing brief, counsel for the General Counsel allowed the issue
to hang on an abstract declaration that the 1990 version of the rules
effected changes pertaining to sick leave, leave without pay and judi-
cial leave, eyeglass and contact lens purchase policy, restrictions on
personal visits, rules regulating proper attire, and disciplinary proce-
dure. The questions of whether, how, and why the Employer’s ac-
tions as to each item exceeded legitimate prerogatives are left to my
unaided resources. The processing of this decision was slowed also
by the failure, in the brief filed on behalf of the Respondent, to in-
clude a single citation of case authority.
49 In its posthearing brief, the Respondent states that this language
was contained in a memo dated February 15, 1989. No exhibit num-
ber is cited for such a document. My search through the numerous
exhibits has failed to locate any document fitting that description.
50 By memo dated March 22, 1988, employees were informed that
medical excuses may be subject to verification. There is no dif-
ference between this announcement, made prior to the advent of the
Union, and a like declaration in the 1990 revision. (R. Exh.7(a).)
51 See, e.g., R. Exh. 7(a) re: Verification of medical excuses.
(b) Employment rules
The complaint was amended at the hearing to allege that
the Respondent, on or about April 17, 1990, violated Section
8(a)(5) and (1) of the Act by promulgating revised rules and
regulations concerning discipline and disciplinary procedures.
The revisions in question bear that date, but Evelyn Caceres
acknowledged that they probably were not distributed to em-
ployees until 1 or 2 months late.47 The Respondent concedes
that the new rules were promulgated without affording the
Union notice or an opportunity to bargain concerning these
changes in guidelines published earlier in 1987. The Re-
spondent defends on grounds that the changes were merely
a codification of revisions that predated the Union’s certifi-
cation.
Analysis of the question requires comparison of two sets
of rules, one dated May 15, 1987, and that under interdict
of the complaint, dated April 17, 1990. A cursory compari-
son of the two documents reflects a plethora of close factual
and legal questions. Thus, many of the revisions merely sug-
gested nonnegotiable clarifications or a more elaborate recita-
tion of a preexisting requirement. Others resemble adjust-
ments already published by the Respondent at a time when
it was under no duty to bargain. Finally, there are revisions
operative only with respect to nonunit personnel.48
Having examined the documents, it is clear that for the
most part the 1990 revisions were nonbargainable, but that
their have been substantive additions not embraced by the
1987 version which would be subject to duty to bargain in
advance. My views in this respect as they bear upon the top-
ics mentioned by the General Counsel are outlined below:
Sick Leave. The revisions as to ‘‘how’’ employees are to
report their absences,49 ‘‘how’’ they are to justify absences,
and what action will be taken by the Employer in connection
with such proof,50 amounted merely to language adjustments
which either codify previously announced procedures,51
eliminate ambiguity, or articulate procedures undeclared, but
implicit in an existing body of rules or restrictions. The
standard governing the employer’s obligation in such cir-
cumstances recently was restated by the Board in Bath Iron
Works Corp., 302 NLRB 898 (1991):
When changes in existing plant rules . . . constitute
merely particularizations of, or delineations of means
for carrying out, an established rule or practice, they
may in many instances be deemed not to constitute a
‘‘material, substantial, and significant’’ change. Only
changes of this magnitude trigger a duty to bargain
under the Act.
Consistent with the foregoing, it is concluded that the sick
leave revisions were not of such a nature that their imple-
mentation impinged upon the representational rights of em-
ployees. This would have been the case even had they been
invoked on a case-by-case basis and unpublished. In each in-
stance, the revision was subsumed within management’s right
to police and administer existing employment terms. See
Trading Port, Inc., 224 NLRB 980, 983 (1976). Accordingly,
the Respondent did not violate Section 8(a)(5) and (1) of the
Act in this respect.
Leave Without Pay. The two discernible changes in this
provision produce varying results. First, the change in iden-
tity of the person charged with administering the benefit
merely entailed a reallocation of supervisory authority which
was purely within management’s exclusive right to designate
its representatives. The Union held no bargainable interest in
this matter. On the other hand, the exclusion of optometrists
from eligibility for leave without pay was a substantive
change of an unprecedented nature, having detrimental effect
upon unit employees. As such it was negotiable as a new
term, and the failure to notify and bargain violated Section
8(a)(5) and (1) of the Act.
Judicial Leave. The Respondent contends that the changes
reflected in the 1990 rules were made in order to comply
with duly enacted laws of the Commonwealth of Puerto Rico
covering this subject matter. However, under the precedent,
this furnishes no justification for bypassing the exclusive rep-
resentative as to a bargainable subject. Nevertheless, all 1990
revisions in this area were outside the realm of negotiability.
Language pertaining to notification, proof of appearances,
limitation on compensability, and the right to request annual
leave for jury duty were nonsubstantive matters implicit in
existing conditions and subject to clarification by manage-
ment without intervention of the Union. The only issue of
concern is the express omission in 1990 of a 1987 exclusion
from authorized leave in the case of those subpoenaed as de-
fendants. Thus, under the new rules, unlike 1987, an em-
ployee subpoenaed as a defendant in a criminal case will be
entitled to judicial leave. This, upgrading of employee bene-
fits is sufficiently slight to be diminimus and within that cat-
egory of changes that need not be committed to compulsory
bargaining. The 8(a)(5) and (1) allegation in this respect shall
be dismissed.
Employee Purchases. The 1990 publication lowers dis-
counts on the purchases by employees on their own behalf
and on behalf of relatives on untinted glasses, sunglasses,
717OPTICA LEE BORINQUEN, INC.
52 Basically, the 1990 revisions were announced in a memo dated
November 10, 1989. (R. Exh. 8(a).) However, here again, the Re-
spondent acted after the Union’s certification.
53 The discount issue is not specified and logically is not em-
braced, directly or by implication, in any topic listed in the agenda
that Caceres purports to have followed at that meeting. (R. Exh.
19(a).)
54 R. Exh. 7(b).
55 R. Exh. 7(c).
56 For purposes of this discussion, all dates refer to 1990, unless
otherwise indicated.
and contact lenses.52 Although the Respondent’s counsel
sought to elicit testimony from Caceres that at a meeting
with optometrists on May 12, 1989, prior to organizational
activity, these changes were discussed with employees, the
resulting testimony was vague, and it is considered unlikely
that she explored the matter in detail on that occasion.53 Ac-
cordingly, I am not persuaded that Caceres’ remarks at that
time were coextensive with the substantive changes effected
through the November 10 publication. The revisions were
new in terms of their impact upon conditions of work, and
could not be implemented without first negotiating with the
Union. See Owens-Corning Fiberglas, 282 NLRB 609
(1987). By failing to do so, the Respondent violated Section
8(a)(5) and (1) of the Act.
Personal visits policy. The 1990 revision bans nonbusiness
personal visits during working hours, even from coworkers.
The 1987 version permitted nondisruptive personal visits in
the reception areas, and, apparently without restriction, if
permission is granted by a department manager. The Re-
spondent contends that this change was an amplification of
a job description issued in January 1989 covering ‘‘store
managers.’’ (R. Exh. 7(f).) That document authorized store
managers to ban personal visits during working hours. The
1990 revision entailed a material change in the 1987 rule.
Under the latter, employees, including the optometrists, were
not precluded from engaging in nondisruptive visitation.
They were restricted in that area only if the store manager
intervened to prohibit it. However, the 1990 change banned
nondisruptive visitation absolutely, while removing any dis-
cretion held by the store managers to permit the practice.
The change was substantive, a material variance from exist-
ing privileges and should have been negotiated. By failing to
do so, the Respondent violated Section 8(a)(5) and (1) of the
Act.
Appropriate attire. The changes affecting unit employees
in the 1990 revision appears to be limited to a more detailed
statement on appropriate dress than previously in effect, as
mentioned in both the 1987 rules, and the individual employ-
ment contracts. (G.C. Exh. 16(d).) In this area I detect no
material variation from existing rules.
On the other hand, the 1987 rules contained no provision
for wearing identification tags. However, by memorandum
dated March 29, 1989, employees were informed that prep-
arations were underway to supply them with identification
tags.54 By another, dated July 21, 1989, the Respondent es-
tablished an express requirement that they be worn visibly.55
Accordingly, in the case of the identification tags, the 1990
rules reflected no change from employment conditions prior
to the Union’s designation by a majority. The 8(a)(5) and (1)
allegations in this respect shall be dismissed.
Violations of conduct. In this area, the General Counsel
has identified the change, as limited to a ban on ‘‘dis-
loyalty.’’ The parameters of such a prohibition are suffi-
ciently vague as to preclude any finding that this newly an-
nounced condition of work was ‘‘necessary to the protection
of the core purposes of the enterprise.’’ GHR Energy Corp.,
294 NLRB 1011 (1989). Accordingly, by initially announc-
ing this limitation on employee behavior without negotiating,
the Respondent violated Section 8(a)(5) and (1) of the Act.
Clarifying notes (disciplinary procedures). The 1990 revi-
sion displaces a specified progressive system of discipline by
adoption of an unstructured, somewhat garbled set of guide-
lines which have the net effect of providing management
with a free hand in invoking any of the specified options,
such as counselling, reprimands, probation, suspension, and
discharge. The Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally effecting these changes. Migali In-
dustries, 285 NLRB 820 (1987); CIBA-GEIGY Pharma-
ceuticals Div. v. NLRB, 722 F.2d 1120, 1124–1125 (3d Cir.
1983).
b. The information request
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing, upon request to pro-
vide the Union with copies of its contracts with hired general
practitioners. The Respondent admits that this information
was requested and that it stood firm on its position that there
would be no response.
For obvious reasons, the optometrists opposed the Re-
spondent’s use of general practitioners to perform their work.
Issues existed as to their use to reduce the bargaining unit
and to curtail employment opportunities for optometrists. Ac-
cording to the uncontradicted testimony of Enid Molinary, at
a negotiating session on June 19, as well as an earlier occa-
sion, the Respondent was informed that the general practi-
tioner contracts were needed as a means of determining their
number and method of compensation.
In agreement with the General Counsel, since the optom-
etrists and general practitioners performed the same work,
yet the latter were excluded from the bargaining unit, the
benefits enjoyed by these competing groups was relevant to
fair assessment of positions advanced by the Respondent at
the bargaining table, if for nothing else to assure that one
group was not being played off against the other. Moreover,
equal pay for equal work is inherently ripe for negotiation,
and the employment contracts of the general practitioners
would furnish a comprehensive, reasonably reliable, ref-
erence point in the quest for a a fair settlement. In sum, the
information was necessary to the Union’s representation of
unit employees, and hence the Respondent violated Section
8(a)(5) and (1) of the Act by failing to respond. See, e.g.,
NLRB v. Leland Stanford Jr. University, 715 F.2d 473 (9th
Cir. 1983)
c. The negotiations; overall bad faith
Finally, the complaint alleges that, between April and June
1990,56 the Respondent engaged in bad-faith bargaining by
failing to make a wage proposal, by proposing a reduction
in basic salaries and sick leave and annual leave, and by fail-
ing to make counterproposals with respect to other issues in
negotiations, all for the purpose of avoiding agreement.
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
57 NLRB v. National Shoes, 208 F.2d 688, 691–692 (2d Cir. 1953).
58 H.K. Porter Co. v. NLRB, 397 U.S. 99, 107–108 (1970).
59 NLRB v. American National Insurance Co., 343 U.S. 395
(1952).
60 Molinary testified that the proposals were forwarded by mail in
November or December, but lost, requiring personal delivery of a
second copy. G.C. Exh. 14(a).
61 R. Exh. 11.
62 R. Exh. 12.
63 R. Exh. 13.
64 Attorney Gonzalez read from a document in evidence as R. Exh.
13. I see nothing in that document of an offensive nature. In the
main, it includes suggestions and relevant inquiries, while seeking
union assent to a protocol for collective bargaining.
65 R. Exh. 15.
66 The Union opposed this, taking the position that the Company’s
proposal was an inappropriate guide because, while the Company
had several months to consider the Union’s package, the latter had
no opportunity to consider that of the Employer. Aponte testified
that the Union expressed that its original proposal should be the sole
guide. On cross-examination, Dr. Betancourt testified that the Re-
spondent’s attorney rejected the Union’s agreement, stating that it
was worded in a fashion that precluded its use as a vehicle for nego-
tiation. She claims that the optometrists were shocked by the criti-
cism, and therefore went into caucus. I reject Betancourt’s testimony
insofar as she suggests that the Respondent insisted on its proposal
being the sole guide. I find based on the entire record that the argu-
ment centered on demands by each side that its proposal be the
guide. Understandably, this produced a dispute with the parties argu-
ing for some 45 minutes as to whether to proceed on the basis of
the company or union proposal. The dispute finally was resolved by
agreement that the parties rely on an article-by-article dialogue.
67 Dr. Molinary testified that Attorney Gonzalez ‘‘tried to present
a collective-bargaining agreement.’’ The Union’s refusal to even ac-
cept a copy was never relaxed. It at no time during the negotiations,
altered its posture in this respect. This, despite the fact that the
Union was alerted in advance that the Company’s proposal would
be available in this timeframe. In this connection, it is noted that the
Respondent’s counsel wrote the Union’s attorney on March 19,
1990, advising of its difficulty in formulating an initial proposal. The
former indicated that the Employer’s offer should be available dur-
ing the ‘‘last week of April.’’ (R. Exh. 12.) Aponte testified, without
contradiction, that the Union did not respond.
68 G.C. Exh. 14(a).
Pursuant to claims of subjective bad faith, ‘‘[t]he problem
is essentially to determine from the record the intention or
state of mind of the [employer] in the matter of its negotia-
tions with the Union.’’57 The affirmative burden is formi-
dable. ‘‘[A] company may use its relative strength to press
for contract terms favorable to itself, [but] it may not use its
strength to engage in futile or sham negotiations with the in-
tention of never reaching agreement.’’ Roman Iron Works,
275 NLRB 449, 452 (1985). Thus, the General Counsel must
draw the line between hard bargaining in quest of a favorable
contract, which is perfectly legitimate, and a time consuming,
exercise through which the employer, under the guise of
good-faith negotiation, seeks to manipulate the process to
achieve ends inimical to the principles of collective bar-
gaining. Moreover, the proof warranting an inference of bad
faith must be sufficiently definitive to further Congressional
recognition that collective bargaining is a private process,
which provides the parties latitude to formulate their own
bargaining strategies without governmental interference. To
this end, any such finding must recognize the Board’s status
as referee over a procedure, which, if honestly pursued, will
result in an outcome compatible with the economic strength
of the parties.58 The evidence must show more than what
may be gleaned from second guessing a party as to the num-
ber of concessions, or the quality or fairness of any proposal,
made.59 ‘‘The Board is not permitted, under the guise of
finding bad faith to require the employer to contract in a way
which the Board deems proper, nor may the Board ‘‘directly
or indirectly compel concessions or otherwise sit in judgment
upon the substantive terms of collective-bargaining agree-
ments.’’ KB Resources, 294 NLRB 908 (1989).
Here, the first formal bargaining session was held on April
26, the last on June 25. All told, the parties met on only
seven occasions. Negotiations apparently ended in undeclared
suspension without indication that the parties had reached an
impasse. This occurred without any showing whatever that
the Employer at any time had declared a ‘‘final’’ position
with respect to any unresolved issue. Rather than seek addi-
tional negotiations, the Union, more than a month after the
last session, on July 30, filed an amended unfair labor prac-
tice in Case 24–CA–6199, specifying that the Respondent
had engaged in ‘‘surface bargaining.’’
The negotiating history shows that, prior to the formal
onset of negotiations, the Union, in November 1989, met
with Mabel Aponte, who was in company of attorneys asso-
ciated with the law firm that previously represented the Re-
spondent. At that time, Dr. Enid Molinary orally presented
an initial contract proposal. Once reduced to writing, the de-
mands were delivered to the Respondent’s attorney by
Molinary, personally, on February 20.60 Receipt was ac-
knowledged by the Respondent’s letter dated March 8.61
On March 19, the Respondent’s attorney wrote the
Union’s attorney suggesting meeting dates.62 The Company
received no response. It followed up by letter of April 10.63
Later, the Union’s attorney confirmed that the originally pro-
posed dates were acceptable.
Molinary and Dr. Carole Lopez Betancourt testified on be-
half of the General Counsel as to what transpired at the bar-
gaining table, with Aponte, called to offer the the Respond-
ent’s version.
The first bargaining session was held on April 26. The
meeting opened with an indication on behalf of the Respond-
ent that Attorney Gonzalez would act as its spokesperson.
The Union countered that it would speak through all attend-
ing optometrists. When Attorney Gonzalez offered that this
would be an awkward means of negotiating, the Union
agreed to designate Dr. Enid Molinary as its spokesperson.
Attorney Gonzalez prefaced the discussions by announcing
‘‘the rules of the game.’’64 The Company then submitted an
initial contract proposal.65 Piqued at the delay in submitting
any proposal and an alleged declaration on the part of Attor-
ney Gonzalez that this would be the guide to negotiations,66
union negotiators angrily declined to even look at the Com-
pany’s proposal.67
The discussion of substantive issues, when opened, pro-
duced an objection by the Company to the Union’s proposed
statement of principles, insofar as it declared that the purpose
of the agreement was to improve wages and conditions of
work for optometrists.68 According to Betancourt, Attorney
Gonzalez stated that the language was too broad and could
later provide problems in arbitration. The statement of pur-
pose was reworded, apparently to the satisfaction of the par-
ties. Further accords were achieved with respect to union
719OPTICA LEE BORINQUEN, INC.
69 Aponte testified that this was part of changes made by Caceres
when she took control in June 1989. It was announced to the optom-
etrists and contributed to the reasons for their formation of the
Union.
70 Betancourt did not agree. She viewed the legal restriction as im-
posing a limited obligation that each store be represented by one cer-
tified in optometry. In her view, an uncertified general practitioner
could practice optometry if a certified optometrist was also assigned
to that store.
71 Later in the session, the Union caucused. On return, the optom-
etrists threatened to go back to their former schedules. After the Re-
spondent reminded of the legal consequences of such action, the op-
tometrists elected to forbear, stating however, that the Employer to
provide its answer on compensation by the May 24 session.
72 Although Molinary described salary as among the issues re-
moved from the table, she was probably mistaken in this regard, and
I construe the Company’s position as removing grievances founded
on alleged past derelictions, as distinguished from union proposals
appropriate for inclusion in a collective-bargaining agreement.
proposals pertaining to time off for work accidents (art. XI)
and tax withholding (art. XXIII). Partial agreement was
achieved on customer demands for prescriptions (art. XX).
After reviewing both proposals, the last issue discussed was
the Company’s wage proposal, which was $18,000 the first
2 years, $20,000, during the third year, plus a fee of $5 per
examination during the first 3 years. The Company’s pro-
posal raised the base salary to $22,000 during the fourth
year, with an increase in the examination commission to $7.
At the time, salaries for optometrists were listed in individual
contracts at $32,000, plus commissions. Betancourt was earn-
ing $37,000 at the time.69 The Union at all times sought to
incorporate the $32,000 salary figure as a minimum in the
collective-bargaining agreement; no increase was ever
sought. Vacation and sick leave was also discussed. At the
time, Betancourt enjoyed 14 vacation days and 10 sick days
annually, while Molinary earned 10 and 10. The Company’s
proposal would have downgraded this to five and three. It
will be recalled that the reduction in salary, vacation, and
sick leave is identified in the complaint as substantiating the
surface bargaining allegation.
The second session was held on May 1. The Company ex-
plained its scaled-down wage proposal as founded on man-
agement’s interest in developing a compensation scheme
based on productivity. The Union indicated that it rejected
the Company’s proposal because the optometrists were al-
ready earning at least $32,000 annually. Dr. Betancourt
added that at this meeting, the Respondent announced oppo-
sition to a union shop arrangement. It is clear from Aponte’s
testimony that the Respondent opposed a union shop and
checkoff on the stated ground that it wished the newly hired
to make up their own minds on the issue of union member-
ship.
On May 3, discussion centered on vacations, sick leave
and the the Respondent’s use of private practitioners. Ac-
cording to Molinary, the Union reaffirmed resistance to the
Employer’s proposed reduction to 5 days’ vacation and 3
days for sick leave. She further testified that the Union’s at-
torney alerted the Company to a judicial decision barring use
of general medical doctors to practice optometry without cer-
tification.70 Betancourt testified that at this or the earlier ses-
sion the parties could not agree on the length of the work-
day, with both seeking a 7-hour day, but the Employer add-
ing an hour for lunch, and the Union, only a one-half hour.
On May 10, the Union raised an apparent grievance based
on the fact that since March, optometrists had been required
to work longer hours, but had not received additional com-
pensation from the Respondent. The Union advised that the
optometrists were willing to work the additional hours, if
paid, or, if not, to be restored to their former shifts. The Re-
spondent replied that the issue was being audited and hence
no response could be made at that time, but that, if justified,
compensation would be provided for the extra hours.71 At
this meeting, the salary issue was again discussed. Molinary
admitted that the Respondent advised that the proposed base
salary of $18,000 was not a final offer. However, according
to Molinary, the Respondent also stated that it would not op-
erate on the basis the current $32,000 guarantee. The Union
indicated that it would insist on holding to current salary lev-
els.
On May 24, the issue of management rights was discussed.
The Company asserted that use of private practitioners was
a management prerogative, and somewhat of a ‘‘sacred
cow.’’ The Union’s position reminded ‘‘that in Puerto Rico
optometry can be practiced by optometrists or ophthalmol-
ogist but not by general practitioners.’’ The Union ques-
tioned the Company’s proposal subjecting the optometrists to
evaluation by nonprofessionals; namely, the store managers,
in the performance of their professional duties. The Company
replied that it was not insistent on this arrangement, and that
identity of the person selected to make the evaluations would
be revealed at a later date.
On June 5, Attorney Gonzalez suggested that a mediator
might aid the process. The Union opposed this, suspecting
that the mediator would not understand their problems, and
hence would would be in position to make a contribution.
The issue of lengthened work schedules was again raised,
with the Company failing to provide an answer at that point.
The Union’s attorney requested a letter from management
clarifying the latter’s position. At this session the Union ad-
dressed another grievance. Thus, the optometrists apparently,
since January 1990, had not received commissions for fitting
colored contact lens, though the individual employment con-
tracts obliged the Respondent to pay $15 for each colored
lens dispensed. The Company’s response was not described.
The Union again inquired as to the status of the Company’s
salary proposal, with the later replying once more that the
$18,000 offered was not final, but ‘‘at that moment’’ would
not be revised. According to Molinary, the Company in-
quired as to whether the Union would be willing to develop
a graduated wage schedule reflecting a different base salary
for newly hired optometrists from the higher rates that would
be available to those with seniority. As I understand
Molinary, this was opposed by the Union on grounds, that
if licensed, all optometrists should receive the same salary.
At the negotiating session of June 19, the work hour and
unpaid commission issues were again raised, with the Com-
pany advising that these were not appropriate for discussion
at the negotiating table, but should be addressed to manage-
ment representatives independent of the contract talks.72 The
Union, through Attorney Dones renewed its request for a
copy of the version of the contract used by the company in
securing the services of general practitioners. According to
Molinary, the Company refused to supply this document,
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
73 It does not appear that the Respondent resisted arbitration of un-
resolved grievances, precluding an assumption that it sought exclu-
sive discretion over all disputes.
74 R. Exh. 16.
75 The Respondent opined that the optometrists were responsible
for their own expenses within 100 miles of their assigned branch.
giving no reasons for its position in this regard. Salaries were
again discussed, with the Company again stating that the
$18,000 figure was not final, and the Union still insisting on
$32,000.
On June 19, the Company again proposed mediation, but
the Union resisted on grounds that a mediator would not
‘‘have knowledge of what was going on between the com-
pany and the optometrists.’’ The parties did discuss the
Union’s proposed grievance/arbitration provision. Pursuant
thereto, at the third step, a joint union-management com-
mittee was established. According to Molinary, this was op-
posed by the Company, which did not want that body to in-
clude any union representatives.73 Beyond that, the Union’s
proposal imposed no time limitation on the initiation of a
grievance. The Employer proposed that the employee be
given 3 days to contact the Employer’s attorney concerning
the problem. The Union countered that this was insufficient.
The Company indicated that it would accept a 10-day limita-
tion, if the Union agreed to eliminate its representatives from
the grievance committee. The Union declined. Dr. Betancourt
testified that at one of the last three meetings, the Employer
accepted the Union’s proposed article XXVI pertaining to
‘‘leave for Union business.’’
Aponte testified that the optometrists at that meeting were
‘‘insulted’’ by the Respondent’s position increasing their
daily work shift by 1 hour, that they were provoked to en-
gage in disrespectful behavior toward Aponte. In con-
sequence the Company terminated the meeting of that day.
In consequence of this episode, by letter of June 20, Attorney
Gonzalez wrote the Union’s attorney charging that the op-
tometrists were guilty of inappropriate behavior during nego-
tiations, and in strong terms attempted to persuade that a me-
diator was necessary, and that union consent to the request
for mediation would constitute ‘‘a positive gesture of good
faith from both parties toward the reaching of an agree-
ment.’’74 The suggestion again went unheeded.
At the outset of the June 25 meeting, documents requested
by the Union were given to Attorney Dones. The Union
raised the general practitioner, work schedule, commission,
and salary issues, but there was no resolution. On salaries,
the Respondent reiterated that the $18,000 was not a final
offer. Grievance/arbitration was again discussed, but their
was no movement by either party. This would prove to be
the final meeting.
The foregoing is supplemented by a summary of the issues
offered through Molinary. Among the specifics were holi-
days, with the Union’s proposal apparently limited to those
that were obligatory under the laws of Puerto Rico, and the
Employer voicing uncertainty as to whether the Union’s pro-
posal was consistent with statutory requirements. The Em-
ployer also opposed the Union’s seniority provision which
would allow protection against interstore transfers, and also
indicated that it had problems with the Union’s proposal that
at least one optometrist be assigned to each store. Molinary
testified that during the early sessions, partial agreement was
attained concerning the Union’s health insurance proposal.
However, the Company opposed any contractual retirement
plan, the Union’s request for food and mileage in the event
of a transfer,75 checkoff, and a no-strike/no-lockout provi-
sion. Finally, Molinary testified that the parties differed over
the duration of the agreement, with the Union seeking 2
years and the Company, 4.
The complaint includes no allegation faulting the Respond-
ent with termination of the negotiations. Molinary testified
that:
[N]o other meeting was held because at the end of the
last meeting no dates were proposed by Attorney Lidia
Gonzalez and she was going to send a copy of those
dates to the office of Attorney . . . [Dones] and I think
that those letters weren’t sent . . . but we never got
into meeting anymore. [Emphasis added].
Aponte indicates that the letters were sent, but that there was
no response. In any event, the record does not show that,
after June 25, the Union took the initiative to assure resump-
tion of negotiations. In this connection, Aponte testified to
one possible explanation for this result. Thus, she testified,
with confirmation by David Miranda, that Attorney Dones,
on behalf of the Union, stated at the June 25 session that it
would be inadvisable to continue negotiating unless the Re-
spondent increased its wage offer. Whatever the cir-
cumstances, the evidence does not disclose that the Union
after June 25, pushed for a resumption of negotiations.
The evaluation of the Respondent’s state of mind must
turn upon the entire circumstances. The Board recently re-
stated the principles governing such an inquiry in
Hydrotherm, Inc., 302 NLRB 990, 993–994 (1991), as fol-
lows:
[G]ood faith bargaining might be quite hard and still
lawful. In determining whether a party has bargained in
good faith, making a genuine effort to reach agreement,
we will seldom find direct evidence of a party’s intent
to frustrate the bargaining process. Rather we must look
at all of its conduct, both away from and at the table,
including the substance of the proposals on which the
party has insisted. Such an examination is not intended
to measure the intrinsic work of the proposals, but in-
stead to determine whether, in combination and by the
manner in which they are urged, they evince a mindset
open to agreement or one that is opposed to true give-
and-take. [Citations omitted.]
The General Counsel’s capacity to prove a ‘‘mindset
[closed] to agreement’’ through a preponderance of the evi-
dence is complicated on this record by a number of factors.
This was not a classic example of experts wending there way
through the subtleties of collective bargaining. In the early
summer 1989, Caceres acquired the Respondent and an-
nounced her intention to implement new measures that would
reduce the job freedom, status and earnings of the optom-
etrists. The optometrists fought back by organizing them-
selves into a Union; their purpose being to head off the
Caceres agenda. Negotiations opened on an antagonistic note,
with an immediate struggle for the upper hand. Caceres, on
one side, held to the belief that her former husband had pam-
721OPTICA LEE BORINQUEN, INC.
76 There was no logical justification for the Union’s position in
this respect. The fact that the Respondent had 2 months, after sub-
mission of the Union’s proposal, to furnish its own was no reason
to encumber the process. In consequence of this spiteful refusal, the
Union denied itself advance opportunity to study the Employer’s
item-by-item position. Instead, it had to be educated in this respect
by oral presentation of each provision at the bargaining session.
While the Union could hardly gain advantage from this tactic, it was
a step that hardly could be expected to avoid misunderstanding or
do anything but prolong the process.
77 The General Counsel contends that the Respondent’s offer of re-
gressive wages and annual and sick leave benefits was in con-
sonance with a desire to avoid reaching agreement. On the contrary,
the Respondent’s position in this respect, as well as much of the un-
lawful unilateral action, was the essence of a fight to preserve a
managerial philosophy that had prompted union activity in the first
place. I know of no rule that requires an employer to make conces-
sions with respect to preorganizational personnel policies or be faced
with a meritorious surface bargaining charge.
78 I have not overlooked the unfair labor practices heretofore
found, including those accompanied by union animus, and others
that, carry no suggestion of untoward motivation, but on technical
grounds violated Sec. 8(a)(5). In the circumstances of this case, these
offenses do not lessen the ambiguities that arise from the negotia-
tions themselves, and bear an insufficient nexus to assessment of the
Respondent’s state of mind to suggest an intent to avoid reaching
agreement. See Roman Iron Works, supra 285 NLRB at 453.
pered the optometrists, whose services were not producing
cost-effective revenues. On the other side sat those offended
by this woman and her agenda of degradation. Egos were on
a collision course. It is not surprising that the struggle for
control led to an exercise in bashing, and ultimate collapse
of the negotiations, for which the Employer, could not alone
be faulted. The Union was persistent in its rejection of medi-
ation. The Union was unwavering in its flat refusal to accept
possession of the Employer’s written proposal, thus, denying
itself opportunity for a studied approach to the areas of dis-
pute.76 The Union did not press for continued negotiation
after June 25, even though the Respondent had indicated that
its position on salaries was not final, and despite the fact that
the Respondent had not declared a final position on any open
issue. Moreover, as I understand the testimony of Dr. Betan-
court, the Union condoned the disruption of negotiations
through the presentation of grievances or ‘‘personal affairs,’’
which ‘‘brought up a lot of tension sometimes.’’ To say the
least, neither party had a monopoly over the causes of acri-
mony and delay, or the charges and countercharges that, in
the end, produced a termination of negotiations before either
side had allowed themselves time to relax with the process
and create a climate for conciliation, rather than one in
which pride was the enemy of rational discussion and ulti-
mate agreement.
As is true in any case, the Respondent could have taken
a more gracious approach. The optometrists might well have
been given what they wanted. And one might be sympathetic
to their resentment and frustration with Caceres’ ostensible
use of the bargaining process to further her managerial pro-
gram.77 However, where the Union was formed to head off
previously announced downward revisions in employment
terms, the law offers no guarantee that collective bargaining
will tie management’s hand. In fact, the Board has recently
confirmed that: ‘‘Proposals that seek deep reductions in al-
legedly noncompetitive existing benefits are not necessarily
indicative of a desire to frustrate negotiations.’’ See Concrete
Pipe & Products Corp., 305 NLRB 152, 153 (1991).
In the final analysis, the General Counsel’s contention is
made on a record where a finding of bad faith would be pre-
mature and insubstantial. The indefinite suspension of initial
negotiations after only seven bargaining sessions, without
protest from the Union, and without evidence that the party
charged had asserted that any position was final, raises ques-
tion as to whether Caceres would have held steady had she
been given more time to play out her hand. Simply put, there
is serious question as to whether agreement would not have
been reached had the process continued.
In these circumstances, intervention by the Board is pre-
mature and inappropriate. The parties should left as they are
in the hope that negotiations will resume with benefit of an
understanding that there is no alternative to rationale delib-
eration. Once exhausted, any inability to reach agreement in
that context, would allow fair evaluation of the Respondent’s
state of mind. Cf. A-1 King Size Sandwiches, 265 NLRB 850
(1952). At this point, however, the General Counsel has
failed to demonstrate by a preponderance of the evidence that
the Respondent engaged in a course of conduct inimical to
principles of good-faith collective bargaining,78 and hence it
is concluded that the 8(a)(5) and (1) allegations in this re-
spect have not been substantiated.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
threatening to deny renewal of a personal employment con-
tract in reprisal for union activity.
4. The Respondent violated Section 8(a)(1) of the Act by
threatening employees with more stringent conditions of
work and termination because they engaged in union activity.
5. The Respondent violated Section 8(a)(3) and (1) of the
Act by terminating Dr. Eva Lopez Mendez on March 9,
1990, in reprisal for her union activity.
6. The Respondent violated Section 8(a)(5) and (1) since
on or about September 18, 1990, by publishing new employ-
ment rules rules altering employee discounts on purchases,
banning nondisruptive visitation, excluding optometrists from
receiving leave without pay, banning disloyalty, and revising
a progressive system of discipline, without notification to, or
bargaining with, the certified representative of employees in
the following appropriate unit:
All optometrists employed by the Employer at all of its
stores located in the Commonwealth of Puerto Rico, ex-
cluding all other employees, office clerical, guards and
supervisors as defined in the Act.
7. The Respondent violated Section 8(a)(5) and (1) by uni-
laterally, without notification or bargaining with the certified
representative of the aforesaid employees, changing employ-
ment schedules of those who work on their scheduled days
off; and by rescinding commissions paid on sale of colored
contact lenses.
8. The Respondent violated Section 8(a)(5) and (1) by re-
fusing, upon request of the Union, to furnish copies of indi-
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
79 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
80 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
vidual employment contracts entered with its general practi-
tioners—information that is relevant and necessary to the
performance of the Union’s statutory functions.
9. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily discharged Eva
Lopez Mendez, it shall be recommended that she be offered
immediate reinstatement to her former position and made her
whole for any resulting loss of earnings and benefits. Back-
pay shall be computed on a quarterly basis from date of dis-
charge to the date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950).
Having found that the Respondent, on April 17, 1990, un-
lawfully refused to bargain before eliminating commissions
on colored contact lenses and increasing minimum daily
work hours on days off, and by effecting a variety of
changes in its employment rules, it shall be recommended
that the Respondent be ordered to immediately restore the
rules in the form that they existed prior to the Union’s des-
ignation as exclusive bargaining representative, and maintain
the earlier conditions of employment until such time as it in
good faith negotiates to impasse, or agreement as to each of
these changes. It is further recommended that, in the interim,
employees shall be made whole for expenses and losses sus-
tained by reason of said changes.
All sums due under the terms of this recommended Order
shall include interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended79
ORDER
The Respondent, Optica Lee Borinquen, Inc., Guaynabo,
Puerto Rico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge or more strin-
gent conditions of work because they engage in union activ-
ity.
(b) Discouraging union membership by discharging, or in
any other manner discriminating with respect to wages,
hours, or other terms and conditions or tenure of employ-
ment.
(c) Refusing to bargain in good faith with the Union by
modifying employee discounts on purchases, by deeming em-
ployees to be ineligible for leave without pay, by banning
nondisruptive visitation during working time, by instituting a
ban on disloyal behavior, by altering its progressive system
of discipline, by rescinding commissions on sales of color
contact lenses, and by lengthening the work shift on un-
scheduled workdays, without prior notification to, or bar-
gaining with, the certified representative of employees in the
following appropriate unit:
All optometrists employed by the Employer at all of its
stores located in the Commonwealth of Puerto Rico, ex-
cluding all other employees, office clerical, guards and
supervisors as defined in the Act.
(d) Maintaining a ban on disloyal behavior until any such
restriction is negotiated in good faith to impasse or agree-
ment with the exclusive bargaining representative of employ-
ees in the aforedescribed collective-bargaining unit.
(e) Refusing to bargain in good faith by refusing, upon re-
quest, to furnish information relevant and necessary to the
Union’s performance of its duties as exclusive bargaining
representative of employees in the aforedescribed collective-
bargaining unit.
(f) In any like or related manner interfering with, coercing,
or restraining employees in the exercise of their rights guar-
anteed by section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.
(a) Bargain in good faith with the Union by providing ad-
vance notice and a reasonable opportunity to bargain before
implementing any change in the wages, hours, or employ-
ment conditions of the employees in the appropriate unit de-
scribed above.
(b) Restore the right of optometrists to enjoy employee
discount and purchase benefit program, leave without pay
privileges, nondisruptive visitation during working time, a
progressive system of discipline, commissions on color con-
tact lenses, and shift schedules on unscheduled workdays, as
these conditions existed prior to the Union’s designation by
a majority, and make whole employees in the above unit for
expenses or losses sustained by them with interest, and under
the conditions set forth in the remedy section of this deci-
sion.
(c) Offer Eva Lopez Mendez immediate and full reinstate-
ment to her former position without prejudice to her seniority
or any other rights or privileges previously enjoyed, and
make her whole for any loss of earnings or benefits resulting
from our discrimination against her, plus interest, as set forth
in the decision of the administrative law judge.
(d) Immediately provide the Union with copies of all em-
ployment contracts entered with currently employed general
practitioners.
(e) Remove from its files, delete, and expunge any and all
reference to the unlawful termination of Eva Lopez Mendez,
notifying her that said action has been taken, and that said
unlawful discipline will not be used against her in the future.
(f) Preserve and, on request, make available to the Board
and its agents for examination and copying, all payroll
records, social security records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facilities in the Commonwealth of Puerto
Rico, copies of the attached notice marked ‘‘Appendix.’’80
723OPTICA LEE BORINQUEN, INC.
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.’’
Copies of the notice, on forms provided by the Regional Di-
rector for Region 24, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notice is not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten our employees with more stringent
conditions of work or discharge if they designate a union as
their representative.
WE WILL NOT discourage membership in a labor organiza-
tion by discharging, or in any other manner discriminating
against our employees with respect to their wages, hours, or
other terms and conditions or tenure of employment.
WE WILL NOT refuse to bargain in good faith by modi-
fying employee discounts on purchases, by deeming employ-
ees to be ineligible for leave without pay, by banning non-
disruptive visitation during working time, by instituting a ban
on disloyal behavior, by altering our progressive system of
discipline, by rescinding commissions on color contact
lenses, and by lengthening the work shift on unscheduled
workdays, without prior notification to, or bargaining with,
the certified representative of employees in the following ap-
propriate unit:
All optometrists employed at all of our stores in the
Commonwealth of Puerto Rico, excluding all other em-
ployees, office clerical, guards and supervisors as de-
fined in the Act.
WE WILL NOT maintain a ban on disloyal behavior until
any such restriction is negotiated in good faith to impasse or
agreement with the exclusive bargaining representative of
employees in the aforedescribed collective-bargaining unit.
WE WILL NOT refuse to bargain in good faith by refusing,
on request, to furnish information relevant and necessary to
the Union’s performance of its duties as exclusive bargaining
representative of employees in the aforedescribed collective-
bargaining unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Eva Lopez Mendez immediate and full re-
instatement to her former job without prejudice to her senior-
ity or other rights and privileges previously enjoyed, and WE
WILL make her whole for any loss of earnings or other bene-
fits resulting from our discrimination against her, plus inter-
est, as set forth in the decision of the administrative law
judge.
WE WILL notify Eva Lopez Mendez that we have removed
from our files any reference to the unlawful discipline that
we have imposed against her, and that our action in that re-
spect will not be used against her in any way.
WE WILL bargain in good faith by providing the Union ad-
vance notice and a reasonable opportunity to bargain before
we implement any change in the wages, hours, or employ-
ment conditions of the employees in the appropriate unit de-
scribed above.
WE WILL restore the right of optometrists to enjoy past
benefits, including our employee discount and purchase ben-
efit program, leave without pay privileges, nondisruptive vis-
itation during working time, a progressive system of dis-
cipline, commissions on color contact lenses, and shift sched-
ules on unscheduled workdays, as these employment condi-
tions existed prior to the Union’s designation by a majority,
and WE WILL make whole employees in the above unit for
expenses or losses sustained by them by reason of our un-
lawful changes in these terms, with interest, and under the
conditions set forth in the decision of the administrative law
judge.
WE WILL immediately provide the Union with copies of all
our employment contracts entered with currently employed
general practitioners.
OPTICA LEE BORINQUEN, INC.