Bausch and Lomb Optical Co.

National Labor Relations Board - Board Decisions

Nov 17, 1950

92 N.L.R.B. 139 (N.L.R.B. 1950)

In the Matter of BAUSCH AND LOMB OPTICAL COMPANY, EMPLOYER and
UNITED OPTICAL AND INSTRUMENT WORKERS OF AMERICA, C. I. 0.,
LOCAL 27, PETITIONER
Case No. 32-RC-259.-Decided November 17, 1950
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Anthony J. Sabella, hearing
officer. The hearing officer's rulings, made at the hearing ,are free
from prejudicial error and are hereby affirmed.
. Pursuant to the provisions of Section 3 (b) of the Act, the'Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tiox of employees of the Employer within the meaning of Section
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to include two employees who are not pres-
ently included in the already established production and maintenance
unit at the Employer's Little Rock, Arkansas, plant.
- On November 16, 1949, the Petitioner was certified as the exclusive
bargaining representative for the production and maintenance em-
ployees of the Riggs Optical Company at its Little Rock, Arkansas,
plant' In April 1950, the Riggs Optical Company, formerly a sub-
sidiary of the Employer herein, was absorbed by the latter without
any change in the nature of the business or personnel. The Employer
conceded recognition to the. Petitioner as the certified bargaining rep-
resentative for its employees in the afore-mentioned unit. Later, dur-
ing contract negotiations, a dispute arose between the Employer and
the Petitioner concerning the supervisory status of J.-W. Kaufman
and Owen T. Gabriel. The Employer contended that they had been
' Case No. 32-RC-148.. Unpublished.
92 NLRB No. 20.
139
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluded by the Board as supervisors in Case No. 32-RC-148,2 and'
refused to bargain concerning them. Thereupon, the Petitioner filed-
the present petition.
The Employer here contends that the Board's decision in Case No..
32-RC-148 is It bar to this proceeding. We do not agree. From a.
review of that case, it appears that there was no contest with respect
to the supervisory authority of the employees involved, and there was.
no evidence before the Board describing the duties of Kaufman and.
Gabriel. The determination there was based solely upon the conclu-
sions of a representative of the employer., We shall treat the instant,
petition in the nature of a request to amend the certification in Case-
No. 32-RC-148. The sole question to be determined here is whether-
Kaufman and Gabriel are supervisors. If they are not, they may-
properly be included in the already existing unit .3
J. W. Kaufman generally receives, prices, and assigns prescriptions.
for optical lenses and makes the final inspection with respect thereto..
However, in the absence.of the plant manager Kaufman is in charge
of the plant. For the past 6 months the manager has been away on
business from the plant from part of a day to 2 and 3 days in succes-
Sion each week. During the manager's recent 2-week vacation Kauf-
man handled all of the Employer's correspondence, and he also certi--
fied the payroll for that period. Under all the circumstances, and they
.absence of other intermediate supervision between the manager and
the production employees, we believe that Kaufman occupies a posi-
tion in the plant by virtue of which his interests are closely. aligned
with those of management. We shall , exclude- him from the-existing,
unit.'
Owen T. Gabriel inspects optical lenses before they are mounted in,
frames. Although, he, as a matter of routine, rejects and returns for
correction defective work to the employee responsible for such condi-
tion, such authority, is not in itself sufficient to constitute supervisory
authority.5 While in the past, the manager, in contemplation of a,
reduction in force, consulted Gabriel concerning the quality of work
produced by employees, this appears to have involved only the fur-
nishing of information rather than the making of effective recom-
2 In that case, Kaufman and Gabriel, respectively, were described in the exclusions as.
the "supervisor in charge of billing , pricing and final inspection" and the "surface room.
foreman."
At the election , Kaufman and Gabriel voted challenged ballots. As such ballots did'
not affect the results of the election, there was no disposition made of the challenges.
3 Cf. Continental Oil Company, 85 NLRB 827; Inter-Inland Steam Navigation Co., Ltd.,
61 NLRB 988.
4 Queen City Furniture Company, Inc., 87 NLRB 634.
5 Shelbyville Desk Company, Inc., 82 NLRB 1230; Chase Aircraft Company, Inc., '91
NLRB 288.
BAUSCH AND LOMB OPTICAL COMPANY 141
emendations. We find that Gabriel is not a supervisor, and shall include
him in the already established unit.'
The Employer concedes that the Petitioner represents the em-
ployees in the existing unit. There is therefore no reason for further
investigation of the question concerning representation by way of
election or otherwise. We shall amend the certification in* Case No.
.32-RC-148 to conform with our decision herein, and shall dismiss the
instant petition. _
ORDER
IT IS HEREBY ORDERED that the certification in Case No. 32-RC-148
be amended as to include Owen T. Gabriel in the unit.'
IT IS FURTHER ORDERED that the petition (Case No. 32-RC-259) filed
herein be, and it hereby is, dismissed.
e United States Gypsum Company, 81 NLRB 310.
This amendment is not to be construed as a new certification.