Bausch & Lomb, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 262 (N.L.R.B. 1970)

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bausch & Lomb , Incorporated and United Optical
Workers Union , Local 408 , International Union
of Electrical , Radio and Machine Workers, AFL-
CIO. Cases 2-CA-11432 and 2-RC-14304
August 27, 1970
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
On May 28, 1968, the National Labor Relations
Board issued a Decision and Order' in Case 2-CA-
11432 in which it found that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations
Act, as amended, by refusing to bargain with the
Union, which had been certified by the Board in
Case 2-RC-14304 on September 28, 1967, after it
won a second election in a unit of all opthalmic
laboratory employees employed at the Respondent's
branch located at 136 West 52nd Street, New York,
New York. The Board found no merit in the Respond-
ent's contention that the Board had erroneously set
aside the first election in the representation proceeding
without a hearing on the Union's objections thereto;
and ordered the Respondent to bargain upon request
with the certified Union. Subsequently, the Respond-
ent filed with the United States Court of Appeals
for the Second Circuit a petition for review and
the Board filed a petition for enforcement.
Thereafter, on December 18, 1968, the court handed
down its decision in which it denied enforcement
of the Board's Order on the ground that the Board
erred in rejecting the Respondent's request for a
hearing on the objections to the first election, and
remanded the matter to the Board for further proceed-
ings in conformity with the court's opinion.'
On March 21, 1969, the Board issued its order
reopening record and remanding proceeding to
Regional Director for Hearing. Pursuant to due notice,
a hearing was held before Trial Examiner Maurice
S. Bush, and on October 24, 1969, the Trial Examiner
issued his Supplemental Decision, which is attached
hereto, in which he sustained the objections to the
first election and affirmed the Board's finding that
the Respondent violated Section 8(a)(5) and (1) and
its order to bargain upon request with the certified
Union. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Supplemental Decision and
a brief in support thereof. The General Counsel filed
limited exceptions and a supporting argument.
'171 NLRB No 114
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.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Supplemental Decision, the exceptions and
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, to the extent consistent
herewith.
We agree with the Trial Examiner, for the reasons
stated by him, that the Respondent's statement to
its New York employees shortly before the first elec-
tion, "The Local in Minneapolis of the same union
trying to represent you agreed last November that
the four B & L employees represented by them will
not receive a Christmas bonus," created the false
impression that the Minneapolis Local gave up the
valuable right of the Minneapolis employees to receive
the Christmas bonus without receiving anything in
return; that this misrepresentation had the tendency
to unfairly influence the election,' and that the objec-
tion to this statement be sustained. However, contrary
to the Trial Examiner, we find that a preponderance
of the evidence fails to support the Union's contention
that the Respondent's other statement, "The union
also agreed they will not get the new pension plan,"
was a misrepresentation.4
We agree with the Trial Examiner that the Minneap-
olis unit employees were not covered by the Respond-
ent's new pension plan, either before or after the
negotiations. In our view, however, the record does
not support the Trial Examiner's conclusion that
the Minneapolis Local "believed" the employees were
covered by the new plan and therefore did not "agree"
that they would not get the new plan.
The new plan lowered the retirement age from
70 to 65 and increased the monthly benefits. And
yet Manager Howland's notes show that the Minneap-
olis Local's chief negotiator, Gilbert, asked after the
contract was agreed to, to what extent the monthly
benefit would be reduced if an employee elected to
retire at age 65 instead of age 70. If Gilbert had
believed the employees to be covered by the new
plan, he would not have asked that question because
he knew that under the new plan there was no
2)
' Bausch & Lomb Incorporated v NL.R.B, 404 F 2d 1222 (C A
' Hollywood Ceramics Co, Inc, 140 NLRB 221
it is well established that the burden is on the objecting party
to show that the election was unfair See NL R B v Mattison Machine
Works, 365 U S 123, N.L.R B v Houston Chronicle Publishing Co,
300 F 2d 273 (C A 5), enfg 130 NLRB 1237
185 NLRB No. 62
BAUSCH & LOMB, INC
reduction in benefits upon retirement at age 65. More-
over, Gilbert clearly admitted in his letter to the
New York Local dated June 21, 1966, that the Minne-
apolis employees were not covered by the new plan.
In addition, the Minneapolis Local was put on notice
that its contract did not provide coverage under the
new plan by events subsequent to the negotiation
of its contract which, as the Trial Examiner found,
was ambiguous on its face. Thus, shortly after the
contract was executed, Manager Howland informed
the unit employees, including the steward who had
attended the bargaining sessions, that the employees
were under the old plan for the duration of the
contract; one unit employee actually retired under
the old plan during the contract term; and the Minne-
apolis Local was informed by its sister New York
Local of the Respondent's statement, here involved,
that the Minneapolis employees were not covered.
Nevertheless, the Minneapolis Local took no action
to assert its purported belief that the employees were
covered by the new plan. Accordingly, the objection
based on this statement is overruled.
However, as we have sustained the objection based
on the Respondent's statement about the Christmas
bonus, we adopt the Trial Examiner's recommendation
that the Board's prior decisions setting aside the
first election, finding that the Respondent violated
Section 8(a)(5) and (1), and ordering it to bargain
on request with the certified Union, be affirmed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and orders the Respond-
ent, Bausch & Lomb, Incorporated, New York City,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: Pursuant to the
remand of the United States Court of Appeals for the
Second Circuit', as implemented by appropriate orders of
the National Labor Relations Board and agents, this matter
is before the Trial Examiner for a Supplemental Decision
in conformity with the court's opinion.
The trial under the remand took place at Minneapolis,
Bausch & Lomb Incorporated v N.L.R B, 484 F 2d 1222 (C A 2)
263
Minnesota, on May 14 and 15, 1969, following an extensive
prehearing conference on the issues under the court's opinion
on which there is disagreement. The present Trial Examiner
has had no previous connection with the case.
Comprehensive briefs filed by the Respondent and the
Union have received careful consideration Counsel for Gen-
eral Counsel has not complied with the Trial Examiner's
request for a limited brief.'
Upon the entire record and from his observation of
the witnesses, the Trial Examiner makes the following.
FINDINGS OF FACT
I GENESIS OF THE CASE AND ISSUES UNDER REMAND
The genesis of the case , particularly as it relates to
the scope of the issues under the remand on which the
Respondent takes a narrower view than the Trial Examiner,
is as follows
The Respondent Bausch & Lomb, Incorporated, operates
155 ophthalmic branch laboratories throughout the United
States Each of the branches are engaged in the manufacture
and distribution of optical products at wholesale The only
branch of the Company here directly involved is its branch
at 136 West 52nd Street , New York, New York, hereafter
referred to as the New York branch to distinguish it from
the Company 's branch at Minneapolis , Minnesota, which
plays an important role in this proceeding but is not directly
involved or affected herein The only local union here
directly involved is Local 408, International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO, hereafter
referred to as the New York Local to distinguish it from
other locals in Minneapolis which likewise play an important
role in this proceeding but are not here directly involved
or affected
The New York Local caused a representation election
to be held under the auspices of the Board on May 26,
1966, in a unit of the Company's New York Branch com-
posed of certain ophthalmic laboratory employees. The
Local lost by a vote of 8 to 4 out of 12 eligible voters.
The New York Local on June 2, 1966, filed timely
objections with the Board to the results of the election
under which it sought to have the election set aside and
a new election declared because of a letter the Company
sent to its employees at its New York branch on May
23, 1966, 3 days before the election , which it claims unfairly
influenced the election because of "gross misstatements of
fact" therein with reference to what transpired in collective-
bargaining negotiations between the Company's
Minneapolis branch and the Minneapolis Local
' At the conclusion of the trial, the Trial Examiner requested counsel
for General Counsel to file a limited brief in the form of proposed
remedies, conclusions of law, recommended order, and suggested notice
to the employees By letter dated June 20, 1969 , counsel for General
Counsel notified the Trial Examiner that he "does not intend" to file
a brief The Trial Examiner by letter of June 25 advised counsel that
he was not being relieved of the request for the limited brief On June
27, counsel for General Counsel wrote the Trial Examiner that he would
"determine myself whether I deem it appropriate or advisable to file
a brief " As noted Government counsel did not tile the requested brief
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representing the employees in that branch The pertinent
portion of the text of the Company ' s letter to its
Minneapolis employees and the New York Local's
objections thereto will be set forth later below . For present
purposes the portion of the Company 's letter to which the
New York Local objects as not reflecting the full truth and
thus unfairly affecting the election , is as follows.
The Local in Minneapolis of the same union trying
to represent you agreed last November that the four
B & L [Bausch & Lomb] employees represented by
them will not receive a Christmas bonus The Union
also agreed they will not get the new pension plan
On July 19, 1966, the Regional Director , after an inde-
pendent investigation of the New York Local 's objections
under appropriate authority , issued a Supplemental Decision
overruling the Local 's objections to the election and certify-
ing that a-majority of the votes at the election had not
been cast for the local From the text of the Supplement
Decision it appears that the Regional Director 's decision
was based on the contents of the Company 's aforesaid
letter of May 23, 1966, the Union 's objections thereto,
the collective-bargaining agreement between the Minneapolis
local and the Company, an affidavit by the Company's
manager of regional industrial relations of record herein,
and certain additional evidence . With respect to this addition-
al evidence the remand Court noted that although the
Supplemental Decision states that the parties were afforded
a full opportunity to submit evidence , ": t is unclear what
,additional evidence was in fact offered and,by whom
(Emphasis supplied.)
The court specifically found that this additional evidence,
insofar as it consisted of the "explanations" given by a
representative of the Minneapolis local to the Regional
Director of the actions taken by the Minneapolis local
in its contract negotiations with the 'Company, does not
constitute specific findings of fact . These "explanations"
in substance were designed to show that the -Minneapolis
local 'had engaged in hard bargaining with the Company
and had not given up any existing fringe benefits without
receiving in return other new and more valuable fringe
benefits , contrary , as claimed by the Union, to the implica-
tions in the Company 's letter that the Minneapolis union
had not fully protected the interests of Minneapolis employ-
ees
The remand Court quoted the Supplemental Decision's
description of these "explanations" by the Minneapolis
local's representative as follows
[I]t is apparent from a copy of a contract between
the Employer and the Minneapolis local on November
20, 1965 that the Union did in fact agree at
Article XVI thereof that employees covered by the
agreement would not participate in future year-end
bonuses during the contract term A representative
of the Minneapolis local does not deny that it entered
into the above agreement , but explains that the employ-
ees preferred-and were granted-five additional sick
leave days in lieu of a bonus This attempted clarification
does not detract from the literal correctness of the
Employer's assertion in its letter , which obviously refers
to the 1965 contract , however, short it may fall from
depicting all of the aspects of bargaining related to court's opinion
the bonuses
Furthermore, the same Union representative contends
that the Employer did proffer a new pension plan
during the 1965 bargaining sessions. He states that
the then-existing plan was deemed by the Union more
desirable than the new plan "because of the particular
circumstances in Minneapolis (two people on the verge
of retiring)." Therefore, the Union may not be said
to have "agreed" [not] to include the covered
employees in the new pension plan . However,
the term "agreement" may be used to indicate a reason-
able expression, rationalization or interpretation of the
conclusions reached by the contracting parties following
their discussions and comparisons of the existing and
proposed pension plans In such a sense the statements
concerning the bonuses and pension plan did not consti-
tute material misrepresentations of the historical facts
and the objection is not well-founded '
The New York Local on July 28, 1966, filed a request
with the Board for review of the Regional Director's Supple-
mental Decision overruling its objections to the May 26,
1966, election. The remand court describes the Local's
request or petition as follows, "The petition for review
expanded somewhat upon the allegations which the Union
representative had made before the Regional Director, name-
ly, that the Minneapolis employees preferred additional
days of sick leave to the Christmas bonus, and the old
pension plan to the new one."
The petition for review contains the following statement,
"By deliberately and consciously withholding pertinent
information, the Employer engaged in material misrepresen-
tations which require the Board to set this election aside
and give the employees a chance to indicate their choice
in a free and fair election."
The court notes that the New York Local did, not ask
for a'hearmg in its request for•review
The Company filed a statement and later a brief in
opposition to the Union's request under which it urged
denial of review as a matter of law, but likewise did
not ask for hearing except in the event the Board should
believe that the Union's factual allegations were relevant
The Board on December 9, 1966, issued a decision in
favor of the New York Local's objections and accordingly
overruled the Regional Director and ordered a second
election In its decision, the Board referred to the two
sentences in-the Company's.letter of May 23, 1966, reading
as follows:
The Local in Minneapolis of the same union trying
to represent you agreed last November that four B
& L employees represented by them will not receive
a•Christmas Bonus The Union also agreed they will
not get the new pension plan
and, held that these statements, viewed from the context
of the entire paragraph in which they appear, "were intended
to, and reasonably did, convey to the employees soon
to vote in the election, the impression that the Petitioner
[the New York Local] if elected as their representative,
' The emphasis shown in the above quotation is as supplied in the
BAUSCH & LOMB, INC
would act against their interests by agreeing , like its sister
local in Minneapolis , to forgo participation in the Christmas
bonus and to reject ` the new pension plan."' The Board's
decision then went on to say that, "It was therefore of
critical importance to the employees to know whether or
not the sister local had in fact acted adversely to the
interest of the employees it represented Unlike the Regional
Director , we find that the Employer 's omission of critical
facts on the subject of Christmas bonus and pension plan
negotiations could and, in our judgment, did render the
statements made so misleading that the omission had mate-
rial and substantial affect upon the employees ' free choice
of election." (Emphasis supplied.)
The Board found these critical facts to be those set
forth in the Regional Director ' s Supplemental Decision
which it stated "indicate that five additional days of sick
leave were granted in exchange for the participation in
future Christmas bonus and that the employees themselves
preferred the existing pension plan . . "4 It should,
however, here again be noted that the remand court
specifically found that these critical facts as contained in
"the Director 's statement of the Union ' s explanation of the
action of the Minneapolis local" do not constitute findings
of fact
The Board in its decision noted' that the Company,
because of its participation in the Minneapolis negotiations,
had access to the mentioned critical facts , but failed to
substantially controvert them In view of this, the Board
stated, "We reject the Employer 's contention that a hearing
is necessary to resolve factual issues "
Pursuant to the Board's decision, a second election was
held on May 4 , 1967 The New York Local won that
election by a vote of 7 out of 12 in its favor The Company
on May 10, 1967, filed timely objections to the election
The primary objective of the Company 's objections was
to obtain a hearing on its opposition to the objections
filed by the New York Local to the first election This
appears from page 4 of the Company ' s objections to the
second election which reads as follows
There being no way to appeal the Board 's decision
directly to the courts , the Company was forced to
proceed to a second election even though it believed
the first election [which it had won] was valid and
should have been sustained . Now, for the first time,
the Company can officially object to the Board's find-
ings and conduct in setting aside the first election.
The concluding paragraph of the Company 's objections
seeks the following relief
WHEREFORE , since it is the Company's belief that
if the Board had granted the request for a hearing
the second election would not have been ordered, it
respectfully requests that the results of the second
election be set aside, and that a hearing be held to
determine the facts as controverted by the parties If,
as a result of the hearing, it is shown that the Company's
version of the facts are true, and that the Union
has misrepresented such not only to the Company's
employees but to the Board as well , it respectfully
' This summarization by the Board appears in its "Decision on Review,
Order, and Direction of Second Election" at fn 4
265
requests that the results of the first election be certified
or, in the alternative, that a third election be held.
[Emphasis supplied ]
The Regional Director, after an independent investigation,
overruled the Company's objections to the results of the
second election on the ground "that the Company' s argu-
ments and contentions had been previously considered by
the Board and found to be inadequate as a basis for a
hearing or a contrary conclusion regarding" the New York
Local's objections to the first election.
The Company on July 21, 1967, filed timely exceptions
with the Board to the Regional Director's report, together
with "previously unavailable evidence" which the remand
Court states "tended to contradict the Board's earlier-
post-first-election findings," to wit, that the 5 additional
days of sick leave were not received in lieu of the bonuses,
and that the Minneapolis employees, themselves, did not
favor the old pension plan over the new 6
The Board on September 28, 1967, after consideration
of the entire record, adopted the Regional Director's findings
and recommendations, rejected the Company's new evidence
as "untimely," and certified the New York Local as the
exclusive bargaining representative of the New York branch
employees in the appropriate unit
On or about October 16, 1967, the New York Local
requested the Company to bargain collectively in the
appropriate union and the Company on or about October
20, 1967 refused the request. The New York Local thereupon
filed a timely unfair labor practice charge against the Compa-
ny, alleging the Company's refusal to bargain in violation
of Section 8(a)(1) and (5) of the Act. Thereafter, the Regional
Director issued a complaint against the Company based
on the charge. In due course the case came before a
Trial Examiner (other than the present Trial Examiner)
who upon motion granted summary judgment against the
Company on the pleadings and the relevant documents
officially before him, under which he found that the factual
issue had been previously determined by the Board and
that these could not be disturbed in a complaint proceeding
before a Trial Examiner under established Board policy
in the absence of newly discovered or previously unavailable
evidence, there being no evidence of this sort before him.
The Board affirmed the Trial Examiner's decision and
ordered the Company to bargain upon request. The Compa-
ny thereupon petitioned the Court for review of the Board's
order and the Board cross-appealed for enforcement of
its order
The above-stated sequence of events and the remand
court's interpretation thereof are essential for the determina-
tion of the issues under the remand From these circum-
stances and the 'Trial Examiner's analysis of the court's
opinion, the Trial Examiner finds the issues under the
remand to be as stated to the parties at the prehearing
conference and at the opening of the trial, towit-
1 Did the statement "The Local in Minneapolis of
the same union trying to represent you agreed last
' This quotation is likewise from the same fn 4 of the Board's decision
6 The above description of the contents of the alleged previously
unavailable evidence is as summarized by the remand court in its fn
3
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November [ 1965] that the four B & L employees
represented by them will not receive a Christmas bonus"
create an erroneous impression that the Minneapolis
local gave up a valuable right without receiving some-
thing of value in return under the terms of the rest
of the collective bargaining agreement
2 Is the statement "The [Minneapolis] Union also
agreed they will not get the new pension plan" a
misrepresentation9 If it is found to be a misrepresenta-
tion, did that misrepresentation affect the results of
the election9
The Trial Examiner rejects Respondent 's contention that
the issue under the remand is the truthfulness of the explana-
tion given by an unidentified representative of the Minneapolis
local to the Regional Director in the course of his independ-
ent investigation of the New York Local 's objections to
the first election Based on such "explanations ," Respondent
would frame the issues as follows
1 Did the employees want to exchange the Christmas
bonus for five days extended illness pay? If so, did
the Company know this reason prior to May 23, 19667
2 Is the Union explanation concerning the pension
plan-that the then -existing plan was deemed by the
Union more desirable than the new plan "because
of the particular circumstances in Minneapolis (two
people on the verge of retiring"-true? If so, did the
Company know this reason prior to May 23, 1966?
Respondent 's insistence on narrowing the issues under
the court 's remand to the testing of the truthfulness of
the Union's "explanations" before the Regional Director
flies in the face of the court ' s express finding that the
"Regional Director 's references to Union explanations does
not constitute findings of fact " Pressing home its point that
the explanations were not evidence , the court notes that,
"The Union never offered and was never required by the
Board to present any evidence or anything in the nature of
evidentiary material."
The whole thrust of the court 's remand order is that
the Company shall be given "an opportunity to answer the
other party ' s `explanations ' when they are going to be
treated as competent and material evidence " ( Emphasis
supplied ) As the court held that the union's explanation as
reflected in the Regional Director 's report does not have
evidentiary status, it inevitably follows that the court has
ordered a trial de novo on the issues of fact raised
by the New York Local 's objections to be the first election
and the Company 's statements in opposition thereto as
expanded or amended by subsequent documents filed by
the parties in administrative appellate proceedings before
the Board For all practical purposes , the Union 's objections
to the first election , as amended , and the Company 's state-
ment in opposition to the objections , as amended, are
deemed in effect as the pleadings in the case
Pursuant to this interpretation of the court 's remand,
the Examiner has afforded the parties a trial de novo
on the issues raised by the New York Local 's objections
to the first election and the Company 's statements of opposi-
tion thereto It may be noted that insofar as the New
York Local's aforementioned "explanations" of the action
of the Minneapolis local have become part of the present
record by appropriate documentary evidence and independ-
ent testimony, the Trial Examiner will rule on the truthful-
ness of the asserted explanations and, if true, whether
or not the first election was materially and substantially
affected by the Company's failure to set forth the full
circumstances under which the Minneapolis local agreed
that the Minneapolis employees would not get a Christmas
bonus and the new pension plan
ii ALLEGED OBJECTiONAL CONDUCT BY
COMPANY WITH RESPECT TO FIRST
ELECTION IN CASE 2-RC-14304
Most of the framework facts have been stated above
and are not in dispute by the parties Only as much thereof
will be restated below as is necessary for the narrative
continuity of the events. The bulk of the findings below
will relate to new evidence presented under the court's
remand on the question of whether or not the Company's
two aforementioned statements in its letter of May 23,
1966, to its employees in its New York City branch as
to what transpired in previous collective bargaining negotia-
tions between the Company and its Minneapolis branch
employees unfairly affected the results of the first election
held in New York City.
As heretofore noted, the New York Local lost the first
Board conducted election held in New York City on May
26, 1966
Three days prior to the election the Company sent letters
to the unit employees in its New York City branch which
reads in pertinent part as follows-
On May 26th you are going to be asked to vote
on whether or not you want the Union to be your
collective bargaining agent This is a very serious deci-
sion on your part and I want you to know the facts.
The Union probably has made some promises to you
on what they will get for you. You must understand
that they are just promises; not guarantees They are
promises intended to get your vote The only thing
a union guarantees are dues. If the union wins the
election all items dealing with wages, hours and working
conditions are bargainable-that means they must be
discussed between the Company and Union and may
change as a result of these discussions This means
your rate of pay, Group Insurance, Pension Plan,
Christmas Bonus, Vacations, etc , are all subject to
negotiation and therefore could be changed, they may
be more, they may be less than you have. The Local
in Minneapolis of the same union trying to represent
you agreed last November that the four B & L employees
represented by them will not receive a Christmas Bonus.
The Union also agreed they will not get the new pension
plan. This was the result of discussions with the Union
there. I don't know if that will happen here since
no one can predict the outcome of negotiations If
the Union wins, no one can say how negotiations
may change the wage and fringe benefit package you
now enjoy." [Emphasis supplied.]
On June 2, 1966, the New York Local filed objections
with the Regional Director to the election on the ground
that the Company 's aforementioned letter contained "gross
misstatements of fact" which had unfairly influenced the
BAUSCH & LOMB, INC 267
election The document filed by the Union identified these
alleged misstatements by direct quotation from the Compa-
ny's letter and stated the Union's objections thereto as
follows
The Employer stated that a local union belonging
to the IUE in Minneapolis "agreed last November
that the four B & L employees represented by them
will not receive a Christmas Bonus The Union also
agreed they will not get the new pension plan."
The true fact is that when the Employer refused to
pay the Christmas bonus, the Union filed unfair labor
practice charges with the National Labor Relations
Board and was successful in compelling the Employer
to pay the bonus Furthermore, the Union did not
agree that the employees would not get the new pension
plan. On the contrary, a pension plan does exist with
the Company and said employees are eligible to join
said plan
Being unsuccessful on its objections before the Regional
Director, the New York Local filed a request for review
with the Board. In its request, the Union expanded or
amended its original objections as follows-
1 With reference to the Company's statement that the
Minneapolis local "agreed last November that the four
B & L employees represented by them will not receive
a Christmas bonus," the New York Local stated:
In Minneapolis, the true facts are that the local union
there filed an unfair labor practice charge which culmi-
nated in a finding by a trial examiner that the Employer
unlawfully withheld the 1964 Christmas bonuses from
several employees. Thereafter, during negotiations,
Christmas bonuses were eliminated, but only because
the employees decided that they no longer wanted the
bonus but instead wanted and were granted five addition-
al days of sick leave. [The italics has been supplied
The italicized portion of the first sentence adds detail
to the original objections The italicized second sentence
adds a new objection to the original objection.]
2 With reference to the Company's statement that the
Union also agreed that the Minneapolis employees would
not get the new pension plan, the New York Local stated.
. the fact is that the employees in the Minneapolis
plant are at present covered by a pension plan which
they felt was more desirable than the one proffered
by the Company.
The Company's noted statements to its New York City
employees and the New York Local's objections thereto
throws open the question of what really transpired in the
collective-bargaining negotiations in 1965 between the Com-
pany and the Minneapolis local representing the Company's
Minneapolis branch employees It is on this that the appellate
court has ordered a remand. From the circumstances sur-
rounding the contract negotiations between the Company
and the Minneapolis local, determination will be made
below on the question of whether the Company's two
noted statements to its New York City employees 3 days
prior to the first election unfairly affected the results of
that election
At all times here material the Company's Minneapolis
branch had a unit of four ophthalmic laboratory employees
engaged in work similar or identical with those employed
by the Company in its New York City branch The names,
dates of birth, and dates of hire by the Company of the
four unit employees in the Minneapolis branch are as
follows
I Tom Rabbett, born on January 15, 1900, hired
in November 1918.
2. Roy Anderson, born on September 3, 1900, hired
in November 1916
3 Wenzel Shimek, born on May 30, 1904, hired in
November 1923
4 Jack Longton, born November 28, 1922, hired in
February 1947.
It appears that these four Minneapolis employees had
their first representation by a union during their long
period of employment with the Company in 1964. On
July 22, 1964, the Optical Workers Local 1054, International
Union of Electrical Workers, became the certified bargaining
agent for the unit consisting of the four Minneapolis employ-
ees. In the latter part of 1964, that local negotiated a
collective-bargaining agreement for the unit with the Compa-
ny for the period November 20, 1964, to November 19,
1965
Although the four employees had been receiving a Christ-
mas bonus of approximately a week's pay for many years,
the Company after the contract had been executed declined
to pay them a Christmas bonus for 1964 on the ground
that the agreement did not call for the payment of such
a bonus and on the further ground that the contract barred
demands or proposals not covered therein. The Union,
refusing to accept this decision by the Company, filed
an unfair labor practice charge with the Regional Director
against the Company, alleging violations of Section 8(a)(1)
and (5) of the Act A complaint under the charge was
issued on June 14, 1965, and in due course after a full
hearing before Trial Examiner David London, the Trial
Examiner recommended an order requiring the Company
to pay the employees in the unit "the 1964 Christmas
bonus . . with interest thereon from December 15, 1964"
on the ground that the Union had not waived the right
of the employees to receive the long established Christmas
bonus It is established that the Company complied with
the recommended order by paying the employees the Christ-
mas bonus for 1964'(C. P. Exh 3)
In May 1965 Minneapolis Local 1054 merged with Minne-
apolis Local 1140 of the same International Union 8 There-
after Minneapolis Local 1140 negotiated a new collective-
bargaining contract to replace the first agreement which
bore as shown above a termination date of November
19, 1965. The new contract was for a term of 2 years
from November 20, 1965, to November 19, 1967
' Decision of Trial Examiner London, adopted by the Board, Bausch
& Lomb Incorporated, Case 18-CA-2034, TXD-37-66 Official notice
is taken of that decision
It should be noted that the New York City Local 408, herein
directly involved, Minneapolis Local 1054, and Minneapolis Local 1140
are affiliates of the International Union of Electrical, Radio and Machine
Workers, AFL-CIO Prior to the merger of Local 1054 into Local 1140,
the latter had no connection with the Bausch & Lomb 's Minneapolis
branch
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The new collective-bargaining agreement contains only
two provisions which are pertinent here The first of these
relates to the Company's Christmas bonus and specifically
provides that the employees covered by collective-bargaining
agreement will not receive the Christmas bonus. The precise
wording of the paragraph is as follows:
ARTICLE XVI
Bonus Exclusion Clause
If the Company should determine to pay a yearend
bonus to employees generally, employees covered by
this Agreement shall not participate in the bonus
The other provision of the new collective-bargaining agree-
ment here pertinent relates to the Company's pension or
retirement program for its Minneapolis laboratory workers
which reads as follows.
ARTICLE XVII
Maintenance of Benefits Clause
The Company agrees that during the life of this Contract
to maintain the same benefits as provided under the
present Group-Life and Accident Insurance, the Hospi-
tal, Surgical, Major Medical Program, and to retain
the Retirement Program of which the laboratory workers
are now members. [Emphasis supplied.]
The first above-quoted paragraph from the collective-
bargaining agreement on the subject of the Christmas bonus
shows that the Company's statement to its New York
laboratory employees in its letter of May 23, 1966, reading
as follows:
The Local in Minneapolis of the same union trying
to represent you agreed last November [1965] that
the four B & L employees represented by them will
not receive a Christmas bonus. [Emphasis supplied]
is literally correct
The same comment, however, cannot be said with respect
to the Company's statement in the same letter to its New
York laboratory employees that, "The [Minneapolis] Union
also agreed they will not get the new pension plan," as
there is nothing in the above-quoted Maintenance of Benefits
Clause in the collective-bargaining agreement which literally
backs up the Company's statement to its New York employ-
ees That clause is not in itself definitive
The present record contains testimony and documentary
evidence on the negotiations leading to the Company's
second collective-bargaining agreement with the Minneapolis
local It is only from an examination of such evidence
that determination can be made on whether the Company's
statement to its New York laboratory workers that the
Minneapolis focal of the same International Union had
given up the Christmas bonus theretofore paid to the Minne-
apolis laboratory employees, is the whole truth, not with-
standing the fact that the statement standing by itself is
literally true. If such evidence reveals that the Minneapolis
local gave up the bonus in exchange for other benefits
they deemed more important, then obviously the Company's
literally true statement that the Minneapolis local gave
up the Christmas bonus would not be the whole truth
and would contain a material omission
Similarly, it is only from an examination of the evidence
on the negotiations leading to the second collective-bargain-
ing agreement that determination can be made on whether
the Company's other statement to its New York laboratory
employees that the Minneapolis local agreed that the Minne-
apolis laboratory employees would not get the Company's
"new" pension plan is true or a misrepresentation of the
true fact It may again be noted with respect to this
statement that the Company cannot, as in the case of
the Christmas bonus, claim literal correctness for it from
the text of the collective-bargaining agreement dealing with
the Company's retirement program as quoted above
Negotiations leading to the execution of the second collec-
tive-bargaining agreement were initiated by a letter dated
September 15, 1965, by Minneapolis Local 1140, signed
by Walter W Gilbert, Jr, financial secretary to the Compa-
ny's regional branch manager, Ray E Howland, at Chicago,
Illinois, requesting a bargaining meeting.
In a followup letter dated September 28, 1965, Minneapo-
lis Local 1140, submitted proposed contract changes in
the then existing contract as follows:
Article 3
One-half ('/2) day off before Christmas-New Years
to be part of contract (follow Walman contract on
Christmas off Friday)
Article 5
Vacation-15 days after 13 years and 20 days after
20 years
Article 12
Wages to comply with Walman
Article 15
Death in family, Husband or wife, mother, father,
son or daughter-three days off with pay.
Bonus same as other Bausch & Lomb Plants
Sick leave-10 days a year.
Rest period-10 minutes in the morning and 10 minutes
in the afternoon
Contract to expire June 1, 1968, 30 months
November 20, 1965-14
June 1, 1967-14
Discuss pension plan
The proposal above reading "Wages to comply with
Walman" is a reference to one of Bausch and Lomb's
local competitors in Minneapolis known as Walman Optical
Company. The article numbers in the proposal are to the
articles in the then existing contract or first collective-
bargaining agreement
There were only two contract negotiation meetings prior
to the execution of the second collective-bargaining agree-
ment The first meeting was held on October 7 and the
second on November 9, 1965, both at Minneapolis The
resulting contract was executed in early December 1965
When the new agreement expired on November 18, 1967,
it was not renewed and Local 1140 was thereafter decertified
as the representative of the unit.
The October 7 meeting was attended by the following
in behalf of the Company- the aforementioned Ray E.
Howland, regional branch manager from Chicago, Robert
BAUSCH & LOMB, INC
T Burns, regional industrial relations manager from Chica-
go, and John Olson, resident manager of the Company's
Minneapolis branch laboratory The union representatives
at the meeting consisted of the aforementioned Walter
W. Gilbert, financial secretary of Local 1140, Robert Single-
ton, vice president of Local 1140, and Wenzel Shimek,
the aforementioned employee at the Company ' s Minneapolis
branch and a member of the unit represented by Local
1140.
The record contains testimony as to what transpired
at the October 7 meeting by Gilbert in behalf of Local
1140 and by Burns and Howland in behalf of the Company.
In addition the record contains typewritten minutes of
the meeting by Burns which Burns testified were prepared
by his secretary from his written notes made at the meeting
which were then destroyed. The minutes were received
in evidence as Respondent's Exhibit 8 As originally present-
ed, the minutes showed the meeting as having taken place
on November 7, 1965 On Burns' testimony that the Novem-
ber 7, 1965, date on the minutes was an error on the
part of his secretary, the Trial Examiner permitted Burns
to strike out the typewritten month of November and
to place over it in ink "Oct " for the month of October.
For reasons hereinafter indicated, Mr Burns' minutes of
the October 7 meeting insofar as they bear on the question
of whether Local 1140 rejected the Company's revised
retirement plan are questionable However, for all other
purposes the Examiner finds the minutes to be fairly reliable.
The opening sentence of the minutes refer to the "Union
demands"; this is found to be a reference to the Local
1140's "proposed contract changes" in its letter of September
28, 1965, as set forth above The text of Mr Burns' minutes
of the October 7, 1965, meeting is as follows.
The meeting began with the Company asking for clarifi-
cation of some of the Union demands.
(1) Article III-"One-half day off before Christmas-
New Year's to be part of Contract (follow Walman
Contract on Christmas off Friday)." The Company
stated that they did not understand what this meant.
The Union replied that they wanted one-half day off
before both Christmas and New Year's and the language
to follow that now contained in the Walman Agreement
(2) In their wages demand , in one place the Union
demand states "wages to comply with Walman," in
another "an increase of $.14 effective November 20,
1965." Inasmuch as Walman just increased $.08 per
hour, the company questioned whether the demand
was $ 08 per hour, $.14 per hour, or $.22 per hour
The Union replied their demand was for a $ 22 per
hour increase
(3) The Union asked for a 30-month contract The
Company raised the question of why the Union wanted
a contract with an unusal period . The Union stated
that they would like the termination of the Bausch
& Lomb contract at the same time as the rest of
the companies in the area.
(4)The Company pointed out that the Union demand
for "Death in Family" change would actually reduce
the privilege that is now covered by the contract
The proposed language of the Union would actually
269
restrict those considered as "immediate family." The
Union agreed to withdraw this demand
Mr Burns then reviewed the increased benefits in
the revised company Retirement Plan. He pointed out
how each member of the bargaining unit would be
affected by this change, if the change was proposed
and accepted.
At this point, the Company proposed the following-
(1) Reject all Union demands.
(2) A one-year contract with an across the board
increase of $.05 per hour for individuals and $ 05
on rate ranges in the contract
(3) The Bonus Exclusion Clause added to the con-
tract
At this point, there was further discussion of the
Union demands and agreement was reached on the
following
(1) A formal 10-minute break in the morning and
a 10-minute break in the afternoon
(2)The Company agreed to add their extended illness
provision (5 days) to cover the waiting period for
any employee going out on a group insurance claim.
(3)The Company offered a two-year contract with
a $.05 across the board increase each year both on
the individuals rates and the rate ranges in the contract
There was a short recess at this point
The Union presented the following proposal
(1) A two-year agreement with an across the board
increase of $.08 per year on the individuals rates and
$.08 per year on the rate ranges in the contract.
(2) A letter of intent on the company's willingness
to allow employees to leave work early on the day
before both Chnstmas and New Year's The control
would be at the sole discretion of the Branch Manager
and after all the work was processed for that day.
(3) The increased benefits in the Retirement Plan.
(4) The 10-minute break and extended illness previ-
ously agreed
(5) To accept the Bonus Exclusion Clause
There was another short recess at this point.
The Company presented the following counterproposal.
(1) A two-year contract with a $ 08 per hour across
the board increase on the individuals rates and $.08
on contract ranges the first year and a $ .07 per hour
across the board on ranges the second year
(2) The 10-minute break and extended illness item
as previously agreed.
(3) The Bonus Exclusion Clause as previously agreed.
(4) Maintain all other benefits at their present level
The Union rejected this proposal
Adjourned at 4.30.
RTB/pct R Burns
At the October 7 meeting , Burns turned over to the
Union representatives a company published booklet which
describes the Company's revised retirement plan which
will be more fully described below. Burns told the union
representatives that the revised plan involved two important
changes over the Company's old retirement plan. The first
was a change of age at which an employee could elect
to become eligible for retirement from 70 to 65. The second
was a substantial increase in retirement benefits under the
270 DECISIONS OF NAT IONAL LABOR RELATIONS BOARD
revised plan as compared to the old plan Burns brought
and exhibited to the union representatives at the meeting
schedules showing the benefits each of the four employees
in the unit would receive under both the old and the
revised retirement plan, these are now in evidence as
Respondent's Exhibits 9(a) to (d), inclusive The one for
Shimek , an employee of many years of service, shows
that as of the date of the meeting he could retire at
$69 per month under the old retirement plan and at $95 91
under the revised retirement plan Thus under the revised
plan, he would have a monthly increase of $26 91 The
figures for the other three unit employees show comparable
increases in monthly pension benefits under the revised
plan.
From Mr Burns' minutes of the October 7, 1965, meeting
and from other corroborating testimony , the Trial Examiner
finds and concludes that both Local 1140 and the Company
were proposing package deals to each other and were
not negotiating on an item -to-item basis . This is evident
from the last two proposals at the meeting The Union's
last package proposal embraced an agreement to forgo
the Christmas bonus if the Company would give the unit
a very substantial increase in hourly wage and the increased
benefits in the Retirement Plan among other items. The
Company's last package proposal called for a somewhat
smaller hourly wage increase if the Union would agree
to a waiver of the Christmas bonus and agree to "maintain
all other benefits at their present level," among other propos-
al The Union's package proposal was rejected by the Union
The meeting thus ended without an agreement on a contract.
The second and final contract negotiation meeting held
on November 9, 1965, was attended by Gilbert, Singleton,
and Shimek for Local 1140 and by Howland and Olsen
for the Company There is testimony on what transpired
at this meeting by Gilbert and Howland In addition there
is in evidence as Respondent's Exhibit 10 very skimpy
handwritten notes by Howland on the events of the meeting
which read as follows:
I [Howland] said we would like to review our last
proposal (these appear on the last page of notes taken
by Bob Burns at the 10-7-65 meeting )
Stated we would like to make one change on wages-
8 & 8 instead of 8 & 7
Walter [Gilbert] called for a recess and upon our
return said we have a contract. [Emphasis supplied.]
Want to know % reduction in monthly benefit if
a person elects to retire at 65 instead of 70.
Union would like 8 copies
Howland's testimony shows that he at no time during
the second bargaining session put the union representative
on notice that the Company was proposing as part of
its package deal that the unit employees would not be
under the revised retirement plan Gilbert testified that
it was his understanding both at the first and second
bargaining meeting that there was an understanding between
the parties that the Company's revised retirement plan
was applicable to the employees in the unit The Trial
Examiner finds that the union representatives at the Novem-
ber 9, 1965, meeting proceeded on this assumption when
they informed Howland after a caucus of the members
of the unit that the Union was accepting the Company's
package offer
The two bargaining sessions resulted in the aforemen-
tioned Company's second collective -bargaining agreement
with respect to its Minneapolis branch The contract was
drafted by Mr Burns for the Company. The new collective-
bargaining agreement reflects the following gains for the
four employees in the unit over what they had in the
old agreement
1 A wage increase of 16 cents per hour in the
first year of the agreement and an additional increase
of 16 cents per hour in the second year of the contract
This increase put the Bausch & Lomb employees on
par with the wage scale received by similar workers
at Walman's Optical Co (8^ of the 16t increases were
due to rate changes )
2. An express recognition of pension rights although
the provision therefor does not clearly and unambigu-
ously state whether such pension rights are under
the Company's old or revised retirement plan. (As
heretofore noted , the article in question simply reads,
"The Company agrees . to retain the Retirement
Program of which the laboratory workers are now
members " One of the questions to be decided herein
is whether the new collective-bargaining agreement
put the 4 unit employees under the revised pension
plan or kept them on the old plan )
3 An express provision for two 10-minute coffee
breaks to formalize informal , non-contractual coffee
breaks the employees had prior to the execution of
the new collective bargaining contract.
4. Five days of extended sick leave in addition to
the five days of casual sick leave they had in the
old contract which was carried over to the new contract.
This extended sick leave was intended to cover, in
the event of a serious illness, the one-week qualification
period before insurance program payments begin
In connection with the new contract 's above-noted
"extended sick leave" provision , it is found from the record
as a whole that at least three of the four employees in
the unit were deeply interested in the new extended sick
leave benefits because two of the three were already 65
years of age and the third was 61 years of age. Two
of the employees in the unit , Anderson and Rabbett, are
now retired . Rabbett retired during the life of the 2-year
term of the second collective -bargaining agreement For
the first 21 months of his retirement he received pension
benefits under the Company's old retirement plan and there-
after by the voluntary action of the Company he was
placed under the revised retirement plan at substantially
increased monthly benefits. Anderson , after a long illness,
retired shortly after the expiration of the second collective-
bargaining agreement , under the revised retirement plan.
The new collective -bargaining agreement reflects the loss
of only one benefit that the new unit employees had prior
to the execution of the new agreement , albeit by order
of the Board and not under the express terms of the
old collective-bargaining agreement The reference here is
to the Company's traditional Christmas bonus. It will be
recalled that the Company after the execution of the first
collective-bargaining agreement refused to pay the four
BAUSCH & LOMB, INC 271
Minneapolis unit employees the Christmas bonus for 1964,
but subsequently did so pursuant to Board order in an
unfair labor practice proceeding In the new collective-
bargaining agreement, the Union expressly waived the right
of the four employees during the life of the agreement
to receive such Christmas bonuses. Evidence, hereafter not-
ed, shows that in the bargaining the unit employees preferred
receiving the extended sick leave over Christmas bonus,
if one of the two had to be given up in the give-and-
take of bargaining.
The above findings set forth the material facts which
relate to the circumstances under which the Minneapolis
union waived the Christmas bonus and some but not all
of the important and material facts relating to the question
of whether the Minneapolis Union also waived the right
of the unit employees to the increased pension benefits
under the Company's revised retirement program.
Additional facts relating to the applicability of the Compa-
ny's revised retirement plan to the four unit employees
in its Minneapolis branch are as follows The revised pension
plan, which as shown above reduced the eligibility age
for retirement from 70 to 65 and substantially increased
monthly retirement benefits, became effective as of January
1, 1965 It was the Company's third revision since it first
inaugurated an employee retirement program in 1942 The
Company announced its newly revised plan in a pamphlet
published in the spring of 1965 The first page of the
booklet reads, "Retirement Income Plan for United States
Employees of Bausch & Lomb Incorporated' . . . and
three of its affiliates (Emphasis supplied )
The third page of the booklet contains an introductory
letter dated April 19, 1965, from the president of the
Company. Although the letter has no salutation, it is found
that the Company's president intended it as a message
to all the Company's employees in the United States. The
letter reads-
In keeping with our policy of updating our Retire-
ment Plan from time to time, this booklet describes
the third revision to the Plan since it was begun on
December 28, 1942
The principal features of this latest revision, which
is effective as of January 1, 1965, are the establishment
of the normal retirement age for men at 65 and a
change in the base on which past service benefits
are calculated so as to provide more liberal retirement
income for longer service employees. The substantial
cost of these changes is being borne by the Company,
with no additional cost to members of the Plan.
We believe that the Plan, as described in this booklet,
is simple and sound It is insured by a leading insurance
company in the field of pensions, Connecticut General
Life Insurance Company of Hartford, Connecticut,
which has insured the Plan from the beginning It
is a cooperative plan in which you and the Company
contribute to build up your retirement income for
the benefit and protection of you and your family.
Sincerely yours,
Wm W. McQuilkin
The booklet at page 5 states, "Present members of the
Plan will automatically be members of this revised Plan."
The record shows that the four unit members of the Compa-
ny's Minneapolis branch were "present members of the
Plan" at the time the revised plan became effective on
January 1, 1965 The fund under the retirement plan consists
of contributions made by both the Company and employees
who have elected to come under the plan Three of the
Company's four Minneapolis employees have made contribu-
tions to the plan by way of payroll deductions from the
time the plan was started in 1942 and the fourth employee
had made contributions to the plan from the year following
his employment by the Company in 1947
The record contains a copy of an unsigned letter dated
April 19, 1965, addressed to G. F. Del Fiacco at 15
NW Fifth Street, Minneapolis, Minnesota, without appella-
tion to indicate his business calling, but the contents of
the letter and other testimony show that the letter was
intended for Del Fiacco in his capacity as field representative
of the International Union who with Raymond F. Horsch,
president of the Optical Group of Minneapolis Local 1054,
had negotiated the first collective-bargaining agreement for
the Minneapolis unit of the Company's Minneapolis branch
The text of the letter reads
Dear Mr Del Fiaco 10
This letter is to inform you that the Company has
revised its retirement plan
However, in view of the fact that the wages, hours
and working conditions of our employees who are
members of your union are governed by the provisions
of a collective bargaining agreement, we have not made
the changes applicable to those employees We will,
of course, continue the present retirement plan for
those union employees who are members of the plan
We suggest that the change to the plan be discussed
at the bargaining sessions held at the expiration of
our present contract
Very truly yours,
Although the document does not show the name of
the sender, there is testimony by Mr Howland, the afore-
mentioned Company's regional branch operations manager,
that the original of the letter had been signed by his
superior, G. N. Mastrogany, the Company's regional branch
manager. At the time of the letter Howland and Mastrogany
occupied offices in the Company's regional headquarters
in Chicago Howland testified that Mastrogany had prepared
the original of the letter and then handed it to him for
review and mailing to Del Fiacco Howland further testified
that after he had read the letter, he turned it over to
a secretary he shared with Mastrogany for ordinary mailing
to Del Fiacco There is no claim that the letter was sent
by registered mail The document which is in evidence
as Respondent's Exhibit 1 is an office copy of the original
letter.
Del Fiacco, who has been a field representative for the
International Union for 19 years and who was the agent
who had filed the unfair labor practice charge against
The Company also does business in a number of foreign countries '° The correct spelling of the addressee's name is Del Fiacw
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company for failure to pay the Christmas bonus, flatly
denied that he had received the letter in question from
the Company His testimony shows that he opens his own
mail and that the secretary in his office is under instruction
not to open his mail
Del Fiacco testified that if he had seen the letter he
would have immediately filed an unfair labor practice charge
against the Company to compel it to place the Minneapolis
unit under the revised pension plan, dust as he had filed
the successful charge against the Company for failure to
pay the Christmas bonus. Del Fiacco is a man of strong
character He had refused to sign the original collective-
bargaining agreement because it contained a "Full Agree-
ment Clause "" It was under that clause that the Company
later sought to defend its action for refusal to pay the
Christmas bonus
The filing date of Del Fiacco's unfair labor practice
charge against the Company for refusal to pay the Christmas
bonus was April 15, 1965. The Company's purported letter
to Del Fiacco stating it was not making the revised retire-
ment plan applicable to the unit is dated April 19, 1965
Because of this conjunction of dates and the vital importance
of the revised and enriched retirement plan to the aging,
long-term employee-members of the unit, the Trial Examiner
credits Del Fiacco's testimony that if the Company's pur-
ported letter of April 19, 1969, had actually been received
by him he would have filed an unfair labor practice charge
against the Company to compel it to make the increased
pension benefits applicable to the unit, just as he had
filed the unfair labor practice charge on the Company's
refusal to pay the Christmas bonus Any other action
would have been out of character for the man who had
been so insistent upon protecting employee rights that he
had refused to sign the first collective-bargaining agreement
because it contained a clause he believed would not be
in the best interest of the employees he was representing.
As heretofore noted Minneapolis Local 1054 merged
with Minneapolis Local 1140 in May 1965 or within approxi-
mately 30 days after the Company's purported letter to
Del Ftacco of April 19, 1965. Thereupon Horsch12 who
had been president of the Optical Group of Local 1054
became president of the Optical Group of Local 1140,
but did not participate in the negotiations leading to the
second collective-bargaining contract with Bausch & Lomb
because of injuries received in an auto accident As shown
above, Gilbert, the financial secretary of Local 1140, was
the chief negotiator of the second collective-bargaining agree-
ment
Both Horsch and Gilbert testified that they had never
seen the Company's purported letter of April 19, 1965, to
" The only signature on behalf of the Union on the first collective
bargaining agreement is on an undated addendum thereto That signature
was that of the aforementioned president of the Optical Group of Local
1054, Raymond Horsch
" Horsch, who has never been an employee of Bausch & Lomb,
is an employee of Walman Optical Company, one of Bausch & Lomb's
Minneapolis competitors which operates a much bigger shop than the
Bausch & Lomb shop Horsch had assisted in organizing Bausch &
Lomb's Minneapolis branch in 1964 which had resulted in the certification
of Local 1054 in 1964 as the official representative of the unit in the Bausch
and Lomb Minneapolis branch
Del Fiacco prior to the time of the trial herein
In the light of all of the circumstances set forth above, the
Trial Examiner finds and concludes that there has been a
failure of proof by the Company to show by competent and
convincing evidence that its purported letter of April 19,
1969, had been actually mailed by the Company to Del
Fiacco 13 A letter of that importance should have been sent
by registered mail The letter was received in evidence as
Respondent's Exhibit I over the objections of the New
York City Local The ruling receiving the letter in evidence
is herewith revoked.
The record shows through the testimony of Horsch that
Minneapolis Local 1140 received a copy of the Company's
booklet on the revised retirement plan sometime between
April 19, 1965, and the first part of October 1965 when
negotiations started on the second collective-bargaining
agreement Horsch was unable to give a more precise date
as to the receipt of the booklet and was unable to state
how or from whom the booklet was received. There is
no evidence that the booklet was received by the Union
directly from the Company or from the members of the
unit 14 As Bausch & Lomb has a number of employees
at its Minneapolis branch other than those in the unit
here involved, it is possible that the booklet may have
come from that source 15 Gilbert, the aforementioned secre-
tary of Local 1140, found the booklet in the Bausch &
Lomb file of Local 1054 at some unremembered date subse-
quent to the merger of Local 1054 into Local 1140 in
May 1965
It will be recalled that the booklet contained a sentence
reading, "Present members of the Plan will automatically
be members of this revised Plan " Horsch testified that
" The New York Local also advances a further argument against
giving the April 19, 1965 , letter legal status as a notice This is the
argument that the letter "was allegedly intended for Local 1140" as
stated in an affidavit by Company representative Burns (G C Exh
2(J) at document 7), "but Local 1054 was the contract local at the
time" as Local 1054 did not merge into Local 1140 until the month
of May 1965 The concluding sentence of the New York Local 's argument
as reflected in its brief states , "The letter is therefore devoid of legal
value as not binding on the contracting party " The argument is based
on this sentence in the Burns ' affidavit of May 19, 1967, "On April
19, 1965 the Company notified Local 1140 that it had revised
and established a new pension plan for its employees " It appears to
the Trial Examiner that this was merely a mistaken reference to Local
1140 when Local 1054 was intended The affidavit was prepared a
little over 2 years after the purported mailing of the April 19, 1965,
letter With such lapse of time it would be easy to make the mistake
referred to, particularly in view of the fact that Local 1140 was then
the local the Company had been dealing with for some 2 years under
the second collective-bargaining agreement From the cross -examination
of Burns on this discrepancy , the Trial Examiner finds that Burns made
an honest mistake and that what he really intended to say in his affidavit
was that the Company by its letter of April 19, 1965 , "notified Local
1054," rather than "notified Local 1140 " This second argument of
the Charging Party is in any event now academic in view of the Trial
Examiner 's finding that the Company has failed to present convincing
evidence that it actually mailed the purported letter of April 19, 1965,
to Del Ftacco
" The unit members were not called upon for testimony
" The Decision of Trial Examiner London in Bausch & Lomb Incorpo-
rated, supra, shows that the Company at its Minneapolis branch had nine
other job classifications without collective bargaining representation in
addition to the unit of four optical workers represented by Local 1054 and
later, Local 1140
BAUSCH & LOMB, INC 273
when he saw this statement in the booklet he took it
to mean that the members of collective bargaining unit
at Minneapolis branch of the Company were automatically
covered by the revised plan
Wholly aside from the booklet, there is also independent
evidence that Minneapolis Local 1140 had knowledge that
there were changes in the Company's retirement plan when
the negotiations for the second collective-bargaining agree-
ment opened in October 1965 This appears from the Union's
letter of September 28, 1965, to the Company which enclosed
an agenda of proposed contract changes The last item
on that agenda reads, "Discuss pension plan " All other
proposals were in the form of demands. The Trial Examiner
interprets the shorthand phrase, "Discuss pension plan,"
as a request for specific information as to how the revised
retirement plan would affect unit employees on the verge
of retiring The record shows that Burns understood the
request to mean this ' as he brought with him schedules
which showed the comparative pension benefits of each
of the unit employees under both the old and revised
plan
The credited testimony of Burns, the Company's regional
industrial relations manager, shows that he gave Gilbert
one of the booklets on the revised retirement plan at the
contract negotiation session of October 7, 1965, when he
was discussing the changes in the revised plan over the
old retirement plan This would make it the second such
booklet to come into the hands of the Union. Although
Burns testified extensively both under direct and cross-
examination on the subject matters discussed at the October
7, 1965, contract negotiation session, his testimony fails
to disclose that he had at any time mentioned to the
union representatives the purported letter-notice of April
19, 1965, that the Company was not making the increased
benefits under the revised retirement plan applicable to
the four employees in the unit . Burns admitted under
cross-examination that when he handed Gilbert the company
booklet on the revised retirement plan containing the sen-
tence, "Present members of the Plan will automatically
be members of this revised Plan," that he did not tell
Gilbert that the Company was making the Minneapolis
unit an "exception" to that flat assurance
As heretofore noted, Burns' typed minutes of the October
7, 1965, bargaining session (Resp Exh 8) states that the
Union representatives towards the end of the meeting made
a package proposal which included a demand for the
"increased benefits in the Retirement Plan." The minutes
then indicate that the Company made a counterproposal
which included the proposal that "all other benefits" be
maintained "at their present level." However, no mention
of such a company counterproposal is made in an affidavit
of Burns filed with the Board on or about May 19, 1967,
and here of record as General Counsel's Exhibit 2(J),
item 7 This, as stated by the Charging Party in its brief,
is "a curious void " It gives rise to the suggestion that
part of Burns' minutes of October 7, 1965, meeting which
reports a counterproposal by the Company (as part of
a package deal) that all other benefits be maintained at
their present level could be in error. The evidence pointing
to such an error is set forth below
Burns testified that he transposed his notes of the October
7, 1965, meeting the very same night from handwritten
form to typewritten form and that the typewritten form
was then put into a final typewritten form by his secretary
"within a week." The typewritten minutes as originally
offered in evidence show the meeting as having taken place
on November 7, 1965, instead of the actual date of the
meeting on October 7, 1965 At the hearing, Burns testified
that his secretary "goofed" by typing in November 7,
1965, as the date of the meeting . The Trial Examiner
thereupon permitted Burns to put an inked horizontal line
through the November 7 date and write above it October 7
With reference to this alleged mistake, the New York
local in its brief contends, "It is hardly possible for Burns to
have erred that same night in setting forth November 7 as
the date of the meeting when it was then October 7, nor is it
likely that the secretary would have typed the wrong date
while still in the month of October. This kind of error is
made only in retrospect, so that if one were typing the
letter in December or later one could erroneously supply a
November date where an October date is intended. The
significance is that the alleged transcribed minutes cannot
be relied upon as having been made at that time
The documents attached to Burns' affidavit of May 19,
1967, lend support to the Union's claim that Burns'
transcribed minutes of the October 7, 1965, meeting in the
respect here under consideration lack reliability These
consist of the four schedules showing a comparison of the
pension rights of the four Minneapolis employees of the
Company under both the old and the revised pension plans
which Burns exhibited to the union representatives at the
meeting but retained in his possession A set of these
schedules have found their way into General Counsel's
exhibits herein as part of General Counsel's Exhibit 2 (G.
C. Exh. 2(J), Items 1-A to 1-D ) The top sheet of this
exhibit bears a handwritten note by Burns reading,
"Discussed individually at 1st meeting Nov 7 1965 "
Respondent also introduced in evidence a duplicate set of
the same schedules as Respondent's Exhibit 9 A-D but
altered the note at the top by Burns by an inked line through
"Nov" and placing above it the abbreviation "Oct."
Although there can be no doubt that the schedules were
exhibited to the union representatives by Burns at the
October 7, 1965, meeting rather than as of the November 7,
1965, date shown thereon, the mere fact that both the
minutes of the October 7, 1965, meeting and the schedules
here under discussion orginally showed the meeting to have
taken place on November 7, 1965, gives rise to the inference
that the minutes of the October 7, 1965, meeting were
prepared not within a week after the meeting took place but
at the time Burns gave his affidavit of May 19, 1967, to the
Board
By reason of the inference drawn from the record that the
alleged minutes of the October 7, 1965, meeting were
prepared 2 years after the meeting took place, the Trial
Examiner finds and concludes that that part of the minutes
which state that the Company made a counterproposal to
the Union to "maintain all other benefits at the present
level is not entitled to face value acceptance.
But even if the Company is assumed to have made such a
proposal to the Union as part of its proffered package deal
and that the Union accepted it as part of the Company's
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed package deal at the November 9, 1965, bargaining
session as indicated by Howland's skimpy handwritten
notes of the meeting, a question of interpretation arises as
to the meaning of the company proposal to "maintain all
other benefits at their present level " In view of the
statement in the Company's revised retirement plan booklet
that, "Present members of the plan will automatically be
members of this revised Plan," the Company's proposal to
"maintain all other benefits at their present level" is subject
to the interpretation that the proposal means that the unit
employees would be under the revised retirement plan. The
ultimate conclusion on this will be stated below under
"Discussion and Conclusions "
As indicated the Minneapolis Local 1140 and the
Company reached an oral agreement on November 9, 1965,
at their second bargaining agreement for a collective-
bargaining contract later reduced to writing.
On November 12, 1965, the Company signed an
amendment to its group life insurance contract with
Connecticut General Life Insurance Company, the
insurance underwriter of its Retirement Plan, putting into
formal legal form its revised retirement plan, permitting
retirement at 65 years of age instead of 70 and substantially
increasing monthly pension benefits The amendment its
provisions retroactive to January 1, 1965 Paragraph 33 of
the amended insurance contract specifically excludes
Bausch & Lomb employees "who are covered under a
collective bargaining agreement" from the benefits of the
revised retirement plan The precise language of paragraph
33 is as follows
33 Notwithstanding any of the proceeding terms of this
amendment to the contrary, this amendment shall not
be applicable to the coverage or benefits of employees
at the Branch Units of the Employer listed in TABLE
H who are covered under a collective bargaining
agreement In lieu thereof, the terms of the contract as
in effect prior to this amendment shall continue to
govern the coverage and benefits of such employees
[Emphasis supplied
Table H of the amendment to the insurance contract has
a heading reading, "LOCATION OF BRANCH UNITS OF THE
EMPLOYER AT WHICH THE EMPLOYEES ARE COVERED UNDER
A COLLECTIVE BARGAINING AGREEMENT ARE NOT ENTITLED
TO THE COVERAGE OR BENEFITS PROVIDED UNDER THE
TERMS OF AMENDMENT NUMBER GR-510-16." Directly
under this heading, there is listed 13 of the Bausch & Lomb
union covered branch units out of its 155 branches through
out the United States. Among the 13 cities shown at which
the Company has branch units covered by the collective-
bargaining agreements is the city of Minneapolis.
It appears that shortly after agreement was reached on
the second collective-bargaining contract the four unit
employees were disturbed by reports reaching them that the
management construed the contract to exclude them from
the revised retirement plan and from the Christmas bonus
contrary to their understanding of the agreement reached
by the Company and the Union They took the matter up
with Mr. Olson, the resident manager of the Minneapolis
branch Olson16 telephoned Howland at Chicago about
these inquiries Howland saw fit to answer these inquiries in
person and come to Minneapolis in mid-December 1965 for
that purpose He had a meeting with the four unit
employees at which he read to them each article of the
second collective-bargaining contract. When Howland read
the pension article reading, "The Company agrees . to
retain the Retirement Program of which the laboratory
workers are now members," employee Shimek raised the
question of whether that provision meant that the unit
"would not come under the New Pension Plan " Howland
replied, " . . that this clause means that they would still be
under the old pension plan during the term of this
contract " He also told the employees that under the
contract they would not receive the Christmas bonus There
was no union representation at the meeting As heretofore
noted, none of the four employees of the unit were called for
testimony in the present proceeding There is no evidence
that Minneapolis Local 1140 which had negotiated the
second collective-bargaining contract or any of the unit
members ever filed an unfair labor practice charge against
the Company for failure to place the unit under the revised
retirement plan
Some 6 months after the execution of the collective-
bargaining agreement between Minneapolis Local 1 140 and
the Company with respect to the unit employees in the
Company's Minneapolis branch, New York City Local 408
sent a letter, not here of record, to Minneapolis Local 1140
requesting information on what had transpired in the
negotiation of the contract between Minneapolis Local
1140 and the Company. Although the letter of the New
York Local to the Minneapolis Local is not of record, it is
apparent that the New York Local was seeking the facts
with respect to the two controversial statements made by
the Company in its letter of May 23, 1966, of the unit
employees in its New York City branch, as to what had
transpired in the negotiations between the Company and
the Minneapolis Local in their contract negotiations of late
1965. It will be recalled that the Company's letter of May
23, 1966, was sent to its New York City employees just 3
days prior to the day the Board conducted an election in
New York City for the purpose of giving the New York
City employees opportunity to vote on whether or not they
desired to be represented by New York Local 408 in
collective-bargaining negotiations with the Company The
controversial statements in the Company's letter of May
23, 1966, on which the New York City Local was eliciting
information from Minneapolis Local 1140 were, as above
stated, as follows
The Local in Minneapolis of the same union trying to
represent you agreed last November that the four B &
" Olson did not testify in this proceeding but in his affidavit of
May 24, 1967, which is now part of G C Exh 2(J) he states, "After
the contract had been negotiated and executed , I became aware, from
the questions being raised by my bargaining unit employees, that they
did not realize that they would not be receiving either the new pension
plan or the yearend bonus under the new agreement I informed my
immediate supervisor , Ray Howland of this misconception among the
employees, and he thought that a meeting should be held to discuss
the provisions of the new contract and how it affected them I agreed,
and a meeting was held with our Union people in December 1965 "
BAUSCH & LOMB, INC 275
L employees represented by them will not receive a
Christmas bonus. The Union also agreed they will not
get the new pension bonus
In reply to this inquiry, Gilbert in behalf of Minneapolis
Local 1140 sent a letter dated June 21, 1966, to John
R Golia, business representative of New York Local 408,
reading in pertinent part as follows:
Dear Brother Goha-
In reference to your letter requesting information on
negotiations with Bausch & Lomb, will try to answer
to the best of my knowledge as to what went on
in negotiations on the last contract.
1. Yes, the people at Bausch & Lomb did give up
the Christmas Bonus Plan. The people felt that it
was not a big issue. There are only four (4) people
in the bargaining unit
2. The Union did pick up five (5) additional days
sick leave on extended illness per year and felt this
was 0 K.
3 We did talk on the new pension plan and here
again the people chose to stay with the present plan.
There were two people ready to retire and one has
since done so These people in the bargaining unit
have only been with the Union about one (1) year
The Committee felt they were satisfied with the negotia-
tion settlement and accepted it as such They received
8 first year, 8 second year, 10 minute break in the
morning and 10 minute break in the afternoon, plus
5 additional days on extended illness.
Discussion and Conclusions
After full hearing in the case in conformity with the
directions of the remand court, the Trial Examiner finds
and concludes from the findings shown thereon above that
the Company unfairly influenced the representation election
held by the unit of its New York City branch ophthalmic
laboratory employees on May 26, 1966, by the two aforemen-
tioned statements in its letter to them of May 23, 1966.
The first of the controversial statements in the Company's
letter, it will be recalled, reads- "The Local in Minneapolis
of the same union trying to represent you agreed last
November [1965] that the four B & L employees represented
by them will not receive a Christmas bonus "
The New York Local in its original objection to statement
objected to it on the ground that "when the Employer
refused to pay the Christmas bonus, the Union filed unfair
labor practice charges with the National Labor Relations
Board and was successful in compelling the Employer to
pay the bonus." In its subsequent request to the Board
for review of the Regional Director's adverse decision on
its objections, the Local changed the ground of its objection.
It now conceded that the unfair labor charges theretofor
filed against the Company for failure to pay the Christmas
bonus related to the calendar 1964 and not to 1965 which
was the year to which the Company's statement related.
In its request for review, the Union revised its position
and now admitted that the second collective-bargaining
agreement of the Minneapolis Local with the Company
"eliminated" the Christmas bonus, but claimed that this
came about "only because the employees decided that they
no longer wanted the [Christmas] bonus but instead wanted
and were granted five additional days of leave [i.e., extended
sick leave]." In effect the petition for review asserts that
the Union bartered the Christmas bonus for the more
desired extended sick leave
In the Trial Examiner's opinion as heretofore noted the
objections of a party to conduct affecting a representation
election is in the nature of pleading such as a complaint.
However , it is at once apparent that such "objections
to an election" do not have the rigidity of a complaint
as they are intended for use by lay persons, such as union
or company officials. They are to be liberally construed
and should be regarded as readily subject to amendment
for particulars, either by way of further documentation
or by statements made at a hearing. This liberal approach
also appears from the opinion of the remand court in
the sentence which notes that the Union's petition for
review "expanded somewhat upon the allegations which
the Union representative had made before the Regional
Director . . ." (Emphasis supplied )
In the light of the entire record it is clear that the
thrust of the Union's objection to the statement of the
Company here under consideration is that it created the
false impression that the Minneapolis Local gave up the
valuable right of involved Minneapolis Bausch and Lomb
employees to receive the Company's traditional Christmas
bonus without receiving anything in return by way of
barter and thereby unfairly influenced the result of the
New York election of May 26, 1966.
The record is clear that the Company's statement did
create that false impression . The evidence is conclusive
that both the Minneapolis Union and the Company in
their 1965 collective-bargaining negotiations bargained on
the basis of package proposals and not on an item-by-
item basis This appears from the Company 's own minutes
of the two meetings that led to the execution of the
Minneapolis unit's second collective-bargaining agreement
with the Company. It also appears from the testimony
of both company and Minneapolis union officials The
bargaining that took place was barter bargaining by package
proposals or deals. In the final deal, the Union gave up
the Christmas bonus, but received in exchange as part
of the total package deal substantial wage increases and
extended sick leave, among other benefits. The Company
obviously had knowledge of this. It is thus clear that
Company's statement to its New York City employees
that a Minneapolis Local of the same union trying to
represent them agreed that the Minneapolis employees would
not receive the Christmas bonus was only a partial truth
and that it withheld other vital facts which if they had
been mentioned would have thrown an entirely different
and more accurate and friendly light on the bargaining
negotiations of the Minneapolis Local than the bare state-
ment that the Minneapolis Union had given up the Christ-
mas bonus.
Although the New York Local in its original objection
to the election sought to refute the Company' s statement
to its New York City employees that the Minneapolis
Local of the same Union trying to represent them had
abandoned the Christmas bonus by showing that the Minne-
apolis Union had not only abandoned the bonus but on
276 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
the contrary had compelled the Company to pay the bonus
by filing an unfair labor practice charge, that fact is not
directly relevant here, as the evidence of record with respect
to that charge shows that it related to an earlier year
(1964) than the year (1965) the Company had reference
to in its said statement. The fact, however, that the Minneap-
olis Local, later merged into another Minneapolis Local
of the same International Union, had forced the Company
to pay the withheld bonus of a prior year is evidence
that the International Union through its locals is not given
to surrendering valuable rights without a fight, contrary
to the opposite implication in the Company's statement
to its New York City employees.
The Trial Examiner finds and concludes that this company
statement to its New York City employees, being a half
truth was of sufficient gravity in and of itself to unfairly
influence the representation election of May 26, 1966,
because it had a tendency to destroy the confidence of
the New York City employees in the New York Local
seeking to represent them in collective bargaining with
the Company.
The Company's other statement under attack by the
New York City Local is the statement in its letter that,
"The [Minneapolis] Union also agreed they will not get
the new pension plan." In its original objections, the New
York Local flatly denied that " . . . the Union did not
agree that the employees would not get the new pension
plan." The Union's objections further states, "On the contra-
ry, a pension plan does exist with the Company and said
employees are eligible to join said plan." Later the New
York City Local in its request to the Board for a review
of the Regional Director's adverse decision on its objections
to the election, stated, "As to the statement that the [Minne-
apolis] union agreed that the employees would not get
the new pension plan, the fact is that the employees in
the Minneapolis plant are at present covered by a pension
plan which they felt was more desirable than the one
proffered by the Company."
This latter statement is confusing in that it implies or
suggests that three separate retirement plans were mentioned
or discussed at the collective-bargaining meetings between
Minneapolis Local 1140 and the Company whereas the
record shows that only two such plans were discussed
There is no credible evidence of record to show that any
retirement plans were discussed or even mentioned by com-
pany representatives at the meetings other than the "old"
and the "new" retirement or pension plans. By the old
retirement plan, the negotiators had reference to the Compa-
ny's retirement plan in effect prior to January 1, 1965.
By the new retirement plan, the negotiatiors had reference
to the Company's revised retirement plan which became
effective on January 1, 1965 As the whole issue here
under discussion is whether Minneapolis Local 1140 agreed
not to come under the new or revised retirement plan
as claimed in the -Company's statement to its New York
City employees, the statement in the New York Local's
request for review that "the [Minneapolis] Union agreed
that the employees would not get the new pension plan"
is simply careless pleading due nto obviously inadequate
investigation of the situation in distant Minneapolis. The
case is controlled by the evidence presented herein. The
case as developed at the trial stands on the New York
Local's original objection that, "The [Minneapolis] Union
did not agree that the employees would not get the new
pension plan." The reference in that original objection
to the "new pension plan" is a reference to the Company's
"revised retirement plan" which became effective on January
1, 1965.
The Company's above-noted statement to its New York
City employees that, "The Union [Minneapolis] also agreed
they will not get the new pension plan," must be measured
against the provision in the collective-bargaining agreement
which states that, "The Company agrees . . . to retain
the Retirement Program of which the laboratory workers
are now members." The language of that provision is ambi-
guous and obscure in that it does not define the retirement
program of which "the laboratory workers are now mem-
bers " In view of this the Company was on obvious shaky
ground in its claim to its New York City employees that
the Minneapolis Union "agreed that they will not get
the new pension plan." There is simply no support in
the contract itself for such a flat statement of fact. In
view of this the Company was essentially asking its New
York City employees to accept its own 'interpretation of
the contract provision which was that the Minneapolis
Union had waived the rights of its Minneapolis Bausch
& Lomb employee-members to the increased benefits of
the new retirement plan. The question of whether the
Minneapolis employees waived such rights obviously
involves a question of intent and questions of intent are
always litigatory matter. Any statement of fact by a Compa-
ny to its employees which requires litigation for the determi-
nation of its truthfulness is not a protected statement if
it has the affect of influencing a representation election
The involved collective-bargaining contract was drafted by
the Company and not by the Minneapolis Local. With
reference to the Christmas bonus the contract clearly
expressed the intent of . the parties that the "employees
covered by this Agreement shall not participate in the
bonus" That left no room for doubt or argument for
its literal interpretation. The Company could have likewise
drafted a provision clearly putting its Minneapolis employees
outside of the benefits of the revised pension plan but
did not. The Company thus invited litigation as to whether
it intended its Minneapolis employees not to have the
benefits of the revised retirement plan.
It thus follows that the Company's involved statement
to its New York City employees was a questionable state-
ment of fact on its face and for this reason alone the
statement is objectionable if it had the affect of unfairly
influencing a representation election. 'Since the statement
in effect charged a Local of the same International Union
seeking to organize its New York City employees of surren-
dering valuable pension rights, the Trial Examiner finds
that the statement had the tendency to unfairly influence
the election held in New York City on July 26, 1965.
Just as the contract fails to show direct, clear and unambi-
guous support for the Company's statement that the Minne-
apolis Union agreed not to get the pension, the record
herein dehors the contract similarly fails to show any
direct, clear, and unambiguous support for the Company's
statement. On the contrary, the record shows that the
BAUSCH & LOMB, INC
union negotiators believed that the contract as written
gave the members of the unit the increased benefits under
the Company's new or revised pension plan. The matter
of pensions was of vital interest to the unit because three
of the four members of the unit were at or near retirement
age under the new pension plan. The new pension program
made it possible for the employees to retire at age 65
instead of 70 and at increased monthly benefits over what
they would have had under the old plan. It thus cannot
be lightly assumed that the union negotiators, which includ-
ed shop steward Shimek who was then himself 65 years
of age, would waive the increased benefits under the new
pension plan. That is why as Respondent's brief shows,
"The Trial Examiner [at the hearing] asked, rightfully
so, why would a Union accept lower retirement benefits
when 75% of its members employed by the Company
were at or near close to retirement." Respondent's brief
states, "The Company could not answer that question."
(Emphasis supplied.)
The record compels the "answer" that the Union did
not elect to accept the lower benefits for the employees
in the unit in lieu of the higher benefits prescribed in
the Company's revised retirement plan
All the evidence points to the conclusion that in signing
the collective-bargaining agreement, the union negotiators
believed that the members of the unit were covered by
the Company's new pension plan. The Union came into
possession of the Company's official, printed booklet explain-
ing its revised retirement plan sometime prior to its first
bargaining session with the Company on October 7, 1965.
The booklet contains a statement by the Company's presi-
dent that the revised retirement plan became retroactively
effective on January 1, 1965. The opening page of the
booklet reads, "Retirement Income Plan for United States
Employees of Bausch & Lomb Incorporated"; the booklet
was thus intended for each and every United States employee
of the Company. No exceptions are noted on the opening
page or anywhere else in the booklet.
Page 5 of the booklet states in plain unambiguous language
that, "Present members of the Plan will automatically be
members of this revised Plan." Under that language the
four members of the unit automatically became members
of the revised plan because prior to the effective date
thereof they had been members of the prior pension plan
for many years. There is no evidence or claim that the
Company prior to the execution of the collective -bargaining
contract ever notified the four members of the unit directly
by letter or word of mouth that they were not covered
under the revised retirement plan The Company claims
that it notified the Union of such noncoverage by letter
dated April 19, 1965, addressed to Business Agent De
Fiacco, but it was found above that the Company failed
to prove by competent and credited testimony that such
a letter was actually mailed to or received by De Fiacco.
At the two contract negotiation sessions leading into the
second collective-bargaining agreement , the company repre-
sentatives never at any time referred to this alleged letter.
Similarly they never at any time orally notified the union
representatives at the bargaining meetings that the unit
members were not covered by the new or revised plan.
The Company's minutes of the October 7, 1965, meeting
277
states that the Company at the end of the meeting made
a counterproposal to the Union which included the proposal
to "Maintain all other benefits at their present level."
If that proposal is taken to mean that the Company informed
the union representatives that the unit members were to
remain under the old retirement plan, the Trial Examiner
in the light of all the circumstances of the case does
not credit the Company's claim that such a proposal was
made at the meeting despite the fact that the proposal
appears in the Company's minutes of the meeting. The
accuracy of the Company's minutes of the meeting insofar
as they relate to the proposal under discussion are open
to question because an analysis of the evidence indicates
that the minutes of the meeting were not transcribed within
a week of the meeting as testified to by the Company's
regional industrial relations manager, but that they were
transcribed some 2 years later when controversy had arisen
as to what had occurred at the bargaining sessions If,
on the other hand, the proposal is deemed to have been
made by company representatives precisely as set forth
in the minutes, the proposal is subject to the same criticism
shown above in connection with similar phraseology in
the "Maintenance Benefits Clause" in the collective-bargain-
ing agreement. This is that the language of the proposal
fails to show any direct, clear, and unambiguous support
for the Company's statement that the Minneapolis union
agreed not to come under the new pension plan, but on
the contrary is subject of the interpretation that the proposal
meant that the employees in the unit were already covered
by the revised retirement plan which had become effective
many months before the first bargaining session was held
in October 1965.
It will be recalled that Walter Gilbert, the financial
secretary of Minneapolis Local 1140, was the unit's chief
negotiator and that he wrote a letter to the New York
City Local 408 dated June 21, 1966, in response to a
letter of inquiry from Local 408 "requesting information
on negotiations with Bausch & Lomb " In pertinent part
that letter reads, "We did talk on the new pension plan
and here again the people chose to stay with the present
plan " It is evident from Gilbert's testimony on cross-
examination that his reference in his letter to "the new
pension plan" was a reference to a third pension plan
beyond what has been described above as the old and
the new plan. However, the findings above show that in
the contract negotiations there was discussion of only two
plans, the old and the revised retirement plan, and that
no plan other than these two was mentioned or discussed
at the negotiation meetings. Accordingly the Trial Examiner
finds that Gilbert's reference to a "new pension plan"
other than the revised plan is due to faulty memory of
past events of some 6 months ago. Gilbert's testimony
makes it clear, however, that at the time of the negotiations
he believed the unit employees were already under the
revised plan as stated in the Company's booklet. It is
difficult to arrive at any other conclusion in the light
of the pervading question of "Why would a Union accept
lower retirement benefits when 75% of members employed
by the Company were at or close to retirement?" It is
difficult to believe that the Minneapolis union negotiators
and the unit in its caucus on the Company's final contract
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer would deliberately give up without a fight valuable
pension rights for employees on the verge of retiring, espe-
cially in view of the fact that the contract which was
negotiated does not appear to have given the unit any
outstanding advantages. The contract, for example, gave
the employees no wage advantages over that already being
received by laboratory employees working for competing
optical companies, but merely brought them up to par,
apparently for the first time, with the wages being paid
by Walman Optical Company, Bausch & Lomb's largest
competitor in Minneapolis.
In summary the Trial Examiner finds that there is no
support in the record to back up the Company's statement
to its New York City employees that the Minneapolis
Union "agreed they will not get the new pension plan."
The Trial Examiner finds and concludes that the statement
was not only a gross misrepresentation of fact but was
also such a grave and material misrepresentation as to
undermine the confidence of the Company's New York
City employees in the sister local trying to organize them
and that it thereby had the tendency to unfairly influence
the election of May 26, 1966, in New York City in which
they participated.
Utilizing some of the language of the Board in its afore-
mentioned Decision of December 9, 1966, the Trial Examin-
er finds that the two involved statements made by the
Company in its letter of May 23, 1966, to its New York
City employees were so misleading that they had a material
and substantial effect upon the employee's free choice in
the election.
111. FINDINGS OF FACT IN COMPLAINT
Case 2-CA-11432
In Case 2-CA-11432 , the present Trial Examiner adopts
the findings of fact made therein by Trial Examiner Sidney
Lindner on February 27, 1968, as adopted by the Board
in 171 NLRB No . 114. More particularly the present Trial
Examiner adopts the findings in Trial Examiner Lindner's
Decision which read as follows:
In its answer the Respondent admits the following
allegation of the complaint: (1) jurisdiction; (2) that
the Union is a labor organization within the meaning
of Section 2(5) of the Act; (3) that the unit is
appropriate; (4) that the employees designated and
selected the Union in the May 4, 1967, election and
the Board issued a certification on September 28, 1967;
(5) that the Union is the representative for purposes
of collective bargaining of a majority of the employees
in the unit; (6) that on or about October 16, 1967,
the Union requested Respondent to meet and bargain
collectively; and (7) that on or about October 20,
1967, the Respondent refused the Union's request to
bargain.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
In Representation Proceedings
(Case 2-RC-14304)
1. The objections of the United Optical Workers Union,
Local 408, International Union of Electrical, Radio and
Machine Workers, AFL-CIO, to the conduct of Bausch
& Lomb, Incorporated, affecting the results of a representa-
tion election held on May 26, 1966, in a unit of its ophthalm-
ic laboratory employees at its New York City branch,
are sustained.
2. Bausch & Lomb, Inc., by the said conduct unfairly
caused the Union to lose the election of the unit held
on May 26, 1966.
3. By reason of the said unfair conduct, the election
of May 26, 1966, should be set aside
4 The National Labor Relations Board by its order
dated December 9, 1966, properly set aside the said election
held on May 26, 1966.
CONCLUSIONS OF LAW
In Complaint Proceedings
(Case 2-CA-11432)"
1. The following employees of the Respondent constitute
a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All ophthalmic laboratory employees employed by the
Respondent at its branch located at 136 West 52nd
Street, New York, New York, including surface grind-
ers, finishers and RX clerks, but excluding office
clercial employees , salesmen , messenger boys, billing
clerks, stock clerks, guards, watchmen, and all supervi-
sors as defined in Section 2(11) of the Act.
2. On May 4, 1967, a majority of Respondent's employees
in the appropriate unit selected the Union as their collective
bargaining representative in a secret-ballot election conduct-
ed under the supervision of the Regional Director for
Region 2 of the National Labor Relations Board.
3. On September 28, 1967, the National Labor Relations
Board, after consideration of Respondent's objections to
the above-described election, certified the Union as the
exclusive collective-bargaining agent of the employees in
the said unit.
4 At all times since September 28, 1967, the Union
by virtue of Section 9(a) of the Act, has been and is
now the exclusive representative of all employees in the
appropriate unit for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
" The Conclusions of Law set forth under the above caption have
been taken verbatim from the aforementioned Decision of Trial Examiner
Sidney Lindner dated February 27, 1968, Case 2-CA-11432, 171 NLRB
No 114,supra
BAUSCH
5. On or about October 16, 1967, the Union requested
Respondent to bargain collectively with the Union as the
exclusive collective bargaining representative of Respond-
ent's employees in the appropriate unit.
6. On or about October 20, 1967, the Respondent refused
to bargain collectively with the Union as such representative.
7. By such action the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) of the Act
and has interfered with, restrained, and coerced its employ-
ees in violation of Section 8(a)(1) of the Act
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings of fact and conclusions
of law, and upon the entire record in this case,, the Trial'
Examiner recommends that the Board issue the following:
ORDER"
A. For the purpose of determining the duration of the
certification, the initial year of certification shall be deemed
to begin on the date the Respondent commences to bargain
in good faith with the Union as the recognized bargaining
representative in the appropriate unit "
B. Bausch & Lomb, Incorporated, its officers, agents,
successors, and assigns, shall.
1. Cease and desist from.
(a) Refusing to bargain collectively with United Optical
Workers Union, Local 408, International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO, as the exclu-
sive collective-bargaining representative of the employees
in the following appropriate bargaining unit.
All opthalmic laboratory employees, employed at
Respondent's branch located at 136 West 52nd Street,
New York, New York, including surface grinders, finishers
and RX clerks but excluding office clerical employees,
salesmen, messenger boys, billing clerks, stock clerks, guards,
watchmen, and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent employees as an exclusive collective-
bargaining representative, or in any like or related manner
interfering with employee efforts at self-organization.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with United
Optical Workers Union, Local 408, International Union of
Electrical, Radio and Machine Workers, AFL-CIO, as the
exclusive representative of the employees in the appropriate
unit with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
" This Order is taken verbatim from the same Decision of Trial
Examiner Sidney Lindner as noted in the previous footnote , including
the footnote under paragraph A of the Order
" The purpose of this provision is to ensure that the employees
in the appropriate unit will be accorded the services of their selected
bargaining agent for the period provided by law See Mar-Jac Poultry
Co, Inc, 136 NLRB 785, Commerce Co d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd 328, F 2d 600 (C A 5), cert denied 379 U S 817 (1964),
Burnett Construction Co, 149 NLRB 1419, 1421, enfd 350 F2d 57
(C A 10, 1965)
& LOMB, INC 279
(b) Post at its New York City branch, copies of the
attached notice marked "Appendix. 1121 Copies of said notice,
on forms to be furnished by the Regional Director for
Region 2, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respond-
ent immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 2, in writing,
within 20 days from receipt of this Decision, what steps
it has taken to comply herewith 21
30 In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
in the event that the Board's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of The United States
Court of Appeals Enforcing an order of the National Labor Relations
Board "
" In the event this recommended order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 2, in writing, within 10 days from receipt of this Order,
what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
United Optical Workers Union, Local 408, Internation-
al Union of Electrical, Radio and Machine Workers,
AFL-CIO, the Union, as the exclusive bargaining repre-
sentative of all the following employees-
All ophthalmic laboratory employees employed
at Respondent's branch located at 136 West 52nd
Street, New York, New York, including surface
grinders, finishers, and RX clerks but excluding
office clerical employees, salesmen, messenger
boys, billing clerks, stock clerks, guards, watch-
men, and supervisors as defined in the Act.
WE WILL NOT interfere with efforts of the Union
to negotiate for or represent employees as an exclusive
collective-bargaining representative, or in any like or
related manner interfere with, restrain, or coerce
employees in the exercise of their rights under the
Act.
WE WILL bargain collectively with the Union as
the exclusive collective bargaining representative of
these employees and, if an understanding is reached,
we will sign a contract with the Union.
280
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BAUSCH & LOMB,
INCORPORATED
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 36th
Floor, Federal Building, 26 Federal Plaza New York, New
York 10007, Telephone 212-264-0300