Bausch and Lomb Optical Co.

National Labor Relations Board - Board Decisions

Dec 2, 1953

107 N.L.R.B. 263 (N.L.R.B. 1953)

BAUSCH AND LOMB OPTICAL COMPANY 263
CONCLUSIONS OF LAW
1. By discriminating with respect to the hire and tenure of employment of Juan Jose
Arcelay, thereby discouraging membership in a labor organization of its employees, Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
2 By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act
3 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the National Labor Relations Act, we hereby notify
our employees that:
WE WILL NOT discourage membership in any labor organization of our employees
by discharging or refusing to reinstate our employees.
WE WILL NOT interfere with , restrain , or coerce our employees in the exercise of
their right to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection by discharging or refusing to reinstate our employees.
WE WILL offer to Juan Jose Arcelay immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to any seniority or other rights
and privileges , and make him whole for any loss of pay suffered as a result of the
discrimination against him.
All our employees are free to form, loin, or assist any labor organization , and to engage
in any self-organization and other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment in conformity with Section 8 (a) (3) of the
Act.
RUGCROFTERS OF PUERTO RICO, INC.,
Employer.
Dated.. ... .... By . .................. ............. ........................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material
BAUSCH AND LOMB OPTICAL COMPANY and THOMAS RAB-
BETT, Petitioner and LOCAL 45, OPTICAL AND INSTRU-
MENT WORKERS OF AMERICA, CIO. Case No. 18-RD-98.
December 2, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Richard P.
O'Connell, hearing officer. The hearing officer's rulings made
107 NLRB No. 73.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.'
3. A question affecting commerce exists concerning the re-
presentation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a decertification election in a
single-plant unit of laboratory employees in the bench and sur-
face departments at the Employer' s Minneapolis, Minnesota,
optical plant. The Union contends that only a multiemployer
unit or a two-plant unit embracing employees at the Employer's
Minneapolis and St. Paul plants is appropriate.
In an earlier proceeding involving the Employer' s prede-
cessor and other optical companies in the Minneapolis and St.
Paul area,' the Board found as an appropriate unit all labora-
tory employees of the optical companies in the Twin Cities rep-
resented by a common agent in collective- bargaining matters.3
Thereafter, several of these companies , including the Em-
ployer' s predecessor , asserted to the Board an intention to
disassociate from the group-bargaining arrangement that had
theretofore existed . Relying upon this assertion , and in the ab-
sence of any objections thereto, the Board , in a supplemental
decision , reversed its prior holding and found appropriate
units confined to an individual employer .4 Pursuant to this de-
cision, separate elections were held at the Employer's Min-
neapolis and St. Paul plants on December 29, 1949, and sepa-
rate certifications were issued to the Union as the result
thereof on January 6, 1950. The Employer has since that time
executed several contracts with the Union. One of these con-
tracts has expressly covered both plants; others have been
separate but identical contracts for each plant , negotiated
simultaneously between the Union and the Employer' s repre-
sentative.
Although it appears that the same labor relations consultant
has continued to represent all but one of the optical companies
involved in the original proceedings ,5 the present record does
not support the Union' s contention that the individual employ-
ers have abandoned their previously announced intention to
pursue individual courses of action with regard to labor rela-
'The Petitioner asserts that the Union , the certified and recognized representative of
employees herein concerned , is no longer their exclusive representative as defined in Section
9 (a) of the Act
2johnson Optical Company , et al., 85 NLRB 895.
3 The following employers were involved in this proceeding : Johnson Optical Company;
Twin City Optical Company, Inc ; American Optical Company; Riggs Optical Company, the
Employer's predecessor; and the Walman Optical Company
4 Johnson Optical Company, et al., 87 NLRB 539.
5 This consultant no longer represents American Optical Company.
BAUSCH AND LOMB OPTICAL COMPANY 265
tions . With respect to the Union ' s second contention , the Un-
ion, as already stated , was certified on January 6, 1950, as
the representative of separate units at the Minneapolis and
St. Paul plants of the Employer ' s predecessor . Although the
Employer has negotiated identical contracts with the Union
for each plant since the Union was certified , we do not feel
that this short bargaining history standing alone, in the ab-
sence of any interchange of employees between the 2 plants,
or other indication of an intent to create a 2-plant bargaining
unit, is sufficient to preclude the granting of the instant peti-
tion for a decertification election in a unit for which the Union
has been certified. We believe that the unit covered by the
Union's certification is not rendered inappropriate by the kind
of subsequent bargaining which occurred in the case at bar.
Under these circumstances , we find insufficient merit in
either of the contentions advanced by the Union.
We find , therefore , that the following employees of the Em-
ployer constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the
Act: All laboratory employees in the bench and surface de-
partments at the Employer ' s Minneapolis , Minnesota , optical
plant, excluding office clerical employees , errand boys,
stockroom employees , inspectors , professional employees,
guards, watchmen , and supervisors as defined in the Act.
J Text of Direction of Election omitted from publication.]
Member Murdock, dissenting:
I cannot agree with the majority ' s appropriate unit finding
in this case because , in my opinion , it does not accord proper
weight to the history of collective bargaining. The record
shows that since January 1950 when the Union was certified
as the exclusive bargaining representative for the employees
at the Employer ' s Minneapolis and St . Paul plants, it has exe-
cuted a series of contracts with the Employer covering these
employees. Some of these contracts have expressly covered
both plants; others although separate were identical contracts
for each plant , negotiated simultaneously between the Union
and a representative of the Employer. In the light of this his-
tory of bargaining I conclude that the intent of the parties to
bargain on the basis of a 2-plant unit is clear. The record
contains no evidence which counter balances this long (almost
4 years ) history of bargaining on the basis of a 2-plant unit.
Therefore , I would find that the 2-plant unit which has been
stabilized by almost 4 years of collective bargaining is appro-
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate and would dismiss the petition on the ground that the
single-plant unit requested is inappropriate.6
Member Peterson took no part in the consideration of the
above Decision and Direction of Election.
6 The Firestone Tire & Rubber Company, 103 NLRB 1749; Los Angeles Paper Box & Board
Mills, Inc., 101 NLRB 1026; Bigelow-Sanford Carpet Company, Inc., 100 NLRB 1021; Basalt
Rock Company, Inc., 96 NLRB 1058.
CHECKER TAXI COMPANY and JOHN A BRAT TIN and HOW-
LAND E. ,BOSWORTH, et al . and LOCAL 496, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA, A. F. L.
Cases Nos . 1-CA-1132 and 1-CA-1144. December 4, 1953
DECISION AND ORDER
On June 23, 1953, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in these cases , finding that the Re-
spondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. There-
after , the Respondent , the Teamsters , and the General Coun-
sel filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed . The Board has
considered the Intermediate Report , the exceptions and briefs,
and the entire record in these cases . The Respondent and the
Teamsters contend, on several grounds , that the Board either
lacks or should not assert jurisdiction over the present em-
ployer . Without otherwise considering the merits of the cases,
the Board finds that it will not effectuate the policies of the
Act to assert jurisdiction here and that, for the different
reasons set forth below , the complaint should be dismissed in
its entirety.
1. The Respondent operates approximately one-sixth of the
taxis licensed to do business in the city of Boston. It holds
contracts for the use of an exclusive ramp at each of 3 rail-
road stations located in that city . In addition to such ramps,
2 of the stations have public stands at which all taxicab com-
panies may , and do, pick up passengers . According to the
statement of the Respondent ' s vice president , MacOdrum, the
Respondent annually makes approximately $ 384,000 in trips
from the stations or their environs . MacOdrum also stated
that the Respondent got its share of the trips to the stations,
estimating that such trips constituted about 4 percent of its
107 NLRB No. 85.