Bausch & Lomb Optical Co.

National Labor Relations Board - Board Decisions

Aug 2, 1946

69 N.L.R.B. 1104 (N.L.R.B. 1946)

In the Matter of BAUSCii & LOMB OPTICAL COMPANY and PATTERN
MAKERS LEAGUE OF NORTH AMERICA, A. F. OF L.
Case No. 3-C-796.Decided August 2,1946
DECISION
AND
ORDER
On December 3, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the respondent
had not unlawfully discriminated against George Shields, as alleged
in the complaint, and recommended that that allegation be dismissed.'
Thereafter, the respondent filed exceptions to the Intermediate Report
and a brief. On May 14, 1946, the Board, at Washington, P. C., heard
oral argument, in which the respondent participated.
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 hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, the oral argu-
ment, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
exception and addition hereinafter noted.
1. The Trial Examiner found that the respondent, on April 2, 1945,
and all times thereafter, refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate unit,
and thereby violated Section 8 (5) of the Act. We do not agree. We
believe, in view of the factual circumstances in this case, partly as set
forth in the Intermediate Report and partly on our independent view
of the conflicting testimony of Lichtenwalter and Maguire, that the
Union did not, as of April 4, 1945, the latest specific date alleged in
the complaint, go far enough in either pressing its demand for recog-
a Inasmuch as no exception has been filed to the recommendation of dismissal , we shall
dismiss the complaint as to Shields.
69 N. L. R. B., No. 134.
1104
BAUSCH & LOMB OPTICAL COMPANY 1105
nition or bringing its majority status to the attention of the proper
company officials. We fail to find, in these circumstances, that the
relations of the parties ever reached a point at which respondent's good
faith could be put to the test. Accordingly, we shall dismiss this
allegation of the complaint. In so doing, however, the Board is not to
be taken as holding that, had the parties' prior relations been less
ambiguous, the respondent could necessarily have based a defense of
the 8 (5) allegation upon the fact that the Union, which once had
majority status, failed to win an election immediately following the
commission of the respondent's other unfair labor practices. The
Chairman therefore does not join in the second paragraph of Mr.
Reilly's special opinion.
2. Like the Trial Examiner, we find that the respondent violated
Section 8 (1) of the Act by the conduct mentioned in The Remedy
herein, and more fully detailed in the Intermediate Report. We also
agree with the Trial Examiner that by questioning its employees as to
how they voted in the election, referred to in the Intermediate Report,
violated Section 8 (1) of the Act. In reaching this conclusion the
Trial Examiner relied mainly upon the fact that such questioning
invades the employee's right to exercise a free and unfettered choice
through a statutory method designed to insure this freedom. We
agree with this rationale. In addition, we find no merit in the re-
spondent's contention that it so questioned its employees in order to
obtain information to enable it to prepare a defense to the charge of
interference, restraint, and coercion, inasmuch as the existence of
actual coercion is not a prerequisite to the establishment of such a
charge.2 Thus it is immaterial to such issue as to how the employees
voted in the election; such questioning consequently could not aid
the respondent in preparing the defense. Under the circumstances the
respondent's conduct in questioning its employees had a natural tend-
ency to coerce them in the exercise of rights guaranteed in Section
7 of the Act.
THE REMEDY
We have found that the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act in violation of Section (8) 1 thereof. Among other
things, about a week before the election, Employee Counsellor Burns
warned employee Knipper that "if the Union got in the Bausch &
Lomb pattern shop, the work would be sent outside to Syracuse. The
2 See , for example , N. L. R. B . v. Link-Belt Co., 311 U. S. 584, in which the court stated :
"If the words or deeds of the supervisory employees , taken in their setting , were reasonably
likely to have restrained the employees ' choice and if the employer may fairly be said to
have been responsible for them , they are a proper basis for the conclusion that the em-
ployer did interfere." [Italics supplied.]
701592-47-vol. 69-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pattern shop would close up"; Foreman Phillips told Knipper about
a week before the election that, if he did not "play ball" with the re-
spondent, the pattern shop would close; about the same time, Burns
made a similar statement to employee Sarnes, adding that Sarnes had
worked for the respondent "pretty long" and had a "nice standing"
there ; Director of Industrial Relations Piper asked employee Pfiel
if he was with the respondent as he always had been, to which Pfiel
replied that he had been in the respondent's employ for 11 years, had
done his work to the best of his ability, and expected to be compen-
sated accordingly, whereupon Piper told Pfiel that there was a raise
"coming through" for him; Foreman Stringham told employee
Acheson, within a week of the election, that "the Company isn't going
to take this thing sitting down, if things get slack around here they
might weed out a few of them fellows," and Stringham made similar
remarks to employees Shields and Murphy; Foreman Phillips told
employee Murphy 2 days before the election that, if the Union were
not successful, there would be a, lot of repair work and, about half hour
before the election, Phillips told Murphy to "use his head"; and, after
the election, the respondent questioned the employees as to how they
had voted.
Upon the entire record we infer and find that the respondent by
its foregoing coercive course of conduct has displayed an attitude of
opposition to the general purposes of the Act. Because of the re-
spondent's unlawful conduct and the underlying purpose manifested
thereby, we are convinced and find that the unfair labor practices
which it has committed are persuasively related to the other unfair
labor practices proscribed by the Act, and that danger of the commis-
sion in the future of any or all of the unfair labor practices listed in
the Act is to be anticipated from the respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless our order is
coextensive with the threat.3 We shall therefore order the respond-
ent to cease and desist not only from the unfair labor practices herein
found, but also from in any other manner interfering with, restrain-
ing, or coercing the employees in the exercise of the rights guaranteed
in Section 7 of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Bausch & Lomb Optical
Company, Rochester, New York, and its officers, agents, successors,
and assigns shall:
s See N. L. R. B. v. Express Publishing Company , 312 U. S. 426; May Department Stores
Company v. N. L. R. B., 326 U . S. 376.
BAUSCH & LOMB OPTICAL COMPANY 1107
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the ex8rcise of the right to self-
organization , to form labor organizations , to join or assist Pattern
Makers League of North America, A. F. L., or any other labor
organization , to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its plant at Rochester , New York, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Third Region, shall, after
being duly signed by the respondent's representative, be posted by
the respondent immediately upon receipt thereof and maintained by
it for sixty ( 60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps should be taken by the respondent to in-
sure that said notices are not altered, defaced, or covered by any
other material;
(b) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of George Shields,
within the meaning of Section 8 (3) of the Act.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent has refused and
failed to bargain collectively with the Union, within the meaning of
,Section 8 (5) of the Act.
MR. GERARD D. REILLY, concurring specially:
I concur both in the holding that a violation of subsection 8 (1)
of the Act occurred in this case and in Chairman Herzog's views that,
because of the absence of an unqualified demand for exclusive recogni-
tion, there is no evidence in the case which supports the Trial
Examiner's finding of a violation of subsection 8 (5), since it is
elementary that there can be no illegal refusal unless there is a request
to bargain.,
I should make the further observation that the Regional Office
erred in issuing a complaint in this case, since its own holding of a
'N. L. R. B. V. Columbian Enameling ct Stamping Co., 306 U. S. 292 , aff'd 96 F. (2d)
948 (C. C. A. 7), setting aside 1 N. L. R. B. 181.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consent election showed that a genuine question of representation
existed. It has been established by at least two decisions of this
Board that where a question of representation has once been found
by the Board, the petitioner cannot then be heard to say subsequently
that a documentary showing made prior to an election' is more con-
clusive evidence of the intent of the employees than the actual result
of the secret ballot.
MR. JOHN M. HOUSTON, dissenting in part :
Although finding that the respondent "by its . . . coercive course of
conduct has displayed an attitude of opposition to the general purposes
of the Act," my colleagues have dismissed that portion of the complaint
which alleges that the respondent illegally refused to bargain on the
ground that "the Union did not . . . go far enough in either pressing
its demand for recognition or bringing its majority status to the atten-
tion of the proper company officials." I do not agree with this
disposition.
No issue is raised that the Union did not, in fact, during the period
involved, represent a majority of the employees in an. appropriate
unit; the sole substantial contention of the respondent consists of its
claim that the Union did not make a proper demand for recognition.
In my judgment the facts contradict this position. Evidence which
the Trial Examiner has accepted, and which, I likewise find credible,
discloses that the union representative called the respondent's plant
and asked to speak with the official in charge of the respondent's
labor relations. Pursuant to his request he was connected with
McGuire, the respondent's head employee relations counsellor. There-
after, during a period beginning in February 1945 and extending
through the first part of April 1945, the union representative made
abundantly clear to McGuire that the Pattern Makers League repre-
sented a majority of the respondent's pattern makers and desired rec-
ognition as the collective bargaining representative of those employees.
During his meetings with the union representative McGuire undertook
to represent the respondent as an intermediary. In this capacity
McGuire communicated the Union's position to Vice President
Hallauer, and according to McGuire's testimony, was instructed to
continue his meetings with the union representative but not to com-
mit the Company on the issue of union recognition. In April McGuire
advised the union representative that the respondent would not recog-
nize the Union. Thereafter a series of conferences was arranged
between the Union, the respondent, and representatives of the Board,
the result of which was the execution of a consent election agreement
on April 26, 1945. But, commencing almost simultaneously with the
6 See Matter of A. Sartorius & Co., 40 N. L. R. B. 107, and Matter of The Solvay Process
Company, 47 N. L. R. B. 1113.
BAUSCH & LOMB OPTICAL COMPANY 1109
agreement for an election, the respondent proceeded to make positive
a union defeat at the polls . Its activity in this regard consisted of
statements by its supervisory personnel to the effect that a union suc-
cess would mean economic loss to its pattern makers . It is this cam-
paign which the majority of the Board has found to be a violation of
the Act and proof of the resistance of the respondent to the principle
of collective bargaining. The consequent election resulted in a tie
vote of five to five although seven members of the unit had previously
actually been inducted into the Union. Upon objections by the Union
the balloting was declared void by our Regional Director.
From the foregoing it is clear to me that the respondent has em-
ployed a rather transparent stratagem to evade its responsibilities
wider the Act. For, on the one hand it has clothed an agent with every
ostensible indicia of authority to speak for it in connection with the
Pnion's efforts to gain recognition , and on the other hand , it Was
undertaken to assert its irresponsibility for the knowledge of the
Union's demand which it had acquired through this selfsame agent.
And its justification is that it had instructed its-agent not to recog-
nize the Union. Meanwhile, it has availed itself, upon the basis of the
information gathered by its agent, as to the strength of the Union, and,
as its later conduct conclusively shows, prepared and carried into
effectuation its design to dissipate that strength. The possibilities for
avoidance of the statutory duty to bargain collectively which the ac-
ceptance of this maneuver permits are obvious.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations , to join or assist Pattern Makers League
of North America, A. F. of L., or any other labor organization,
to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose
of collective bargaining . or other mutual aid or protection. All
our employees are free to become or remain members of this
union, or any other labor organization.
BAUSCH & LOMB OPTICAL COMPANY,
By --------------------- --------------
(Representative i (Title)
Date& ----- -----------------
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Francis X. Heigesen, for the Board.
Nixon, Hargrave, Middleton & Dcvans, of Rochester, N. Y., by Messrs. T. Carl
Ni.ron and Arthur L. Stern, for the respondent.
Mr. Richard D. Lichten-walter, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on June 19, 1945, by Pattern 'Makers League of North
America, A. F. of L., herein called the Union, the National Labor Relations
Board, herein called the Board, by its Acting Regional Director for the Third
Region (Buffalo, New York), issued its complaint dated July 10, 1945, against
Bausch & Lomb Optical Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 3 (1), (3), and (5), and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing were duty served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint as amended during
the hearing, alleged in substance that the respondent: (1) on or about June 5,
1945, discharged George Shields and has since said date refused and failed to
reinstate said employee for the reason that he joined and assisted the Union and
engaged in concerted activities for the purpose of collective bargaining and
other mutual aid and protection; (2) that all wood and metal pattern makers
and apprentices, excluding production and maintenance employees, office and
clerical employees, and all supervisory employees with authority to hire, promote,
discharge, discipline or otherwise effect changes in the status of employees or
effectively recommend such action, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of the Act; that from on or about
April 2, 1945, it majority of the employees in said unit had designated the Union
as their bargaining representative and by virtue thereof the Union since said
date has been the exclusive representative of the employees in said unit for the
purposes of collective bargaining; and that respondent since on or about April
2, April 10, and April 26, 1945, has refused and failed to bargain collectively with
the Union; (3) from on or about April 26, 1945, up to and including May 2, 1945,
on which latter date a Board election was conducted among the respondent's
employees, warned, discouraged, and coerced its employees to refrain from affili-
ation with or support of the Union or voting for the said Union in the election,
questioned its employees about their union affiliations, threatened and warned
its employees that the pattern makers' shop would be closed and that the employees
would lose their jobs if they designated the Union as their representative ; (4) on
or about July 10, 1945, questioned employees who were eliglbie to vote and who
voted in the Board election, how they had voted; and (5) by the acts described
above the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent duly filed its answer' in which it admitted its corporate
structure but denied that it had engaged in any unfair labor practices. The
respondent alleged affirmatively; (1) that George Shields was not discharged,
1 The respondent filed a separate answer to the amendment to the complaint during the
course of the hearing.
BAUSCH & LOMB OPTICAL COMPANY 1111
but that he voluntarily left the respondent's employ on June 5, 1945, rather
than accept a transfer from the metal pattern shop to other comparable work,
such transfer being necessary because of lack of work in the metal pattern
shop; (2) that no qualified representative of the respondent had ever been
approached or requested by the Union to bargain collectively with it, that at no
time did a majority of the respondent's pattern makers ever properly designate
the Union as their representative for the purpose of collective bargaining with
the respondent, that at no time has the respondent failed or refused to bargain
collectively with any representative duly chosen by a majority of its employees
in a unit appropriate for such purpose; (3) that at no time and specifically at no
time prior to the election did the respondent engage in any unfair labor practices
within the meaning of Section 8 (1) of the Act; and (4) that it did ask cer-
tain employees who voted in the Board election whether they were willing to
tell how they voted and that the employees expressed a willingness to state
how they voted and did so state, that the respondent during the course of the
preparation of its defense in this proceeding had the legal right to inquire of
the employees how they voted in order to determine if such employees had been
discouraged or coerced from supporting or voting for the Union.
Pursuant to notice, a hearing was held at Rochester, New York, on August
1, 2, and 3, 1945, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board and the respondent were represented by
counsel, and the Union by a lay representative. All parties participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded to all parties. At
the beginning of the hearing, the motion of Board's counsel to exclude the wit-
nesses from the hearing room until they were called to testify, was granted
by the Trial Examiner. At the close of the Board's case the respondent moved
to dismiss certain paragraphs of the amended complaint and also the com-
plaint in its entirety. The motion was denied. At the close of the hearing the
undersigned took under advisement the motion of the respondent to dismiss
the amended complaint for lack of proof. The motion is hereby denied. At the
close of the hearing counsel for the Board argued orally before the undersigned;
counsel for the respondent waived the making of any oral argument. Counsel for
the respondent subsequently filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Bausch & Lomb Optical Company is a corporation duly organized and exist-
ing by virtue of the laws of the State of New York, having its principal office
and place of business in the City of Rochester, County of Monroe, State of New
York, where it is engaged in the design, manufacture, sale and distribution of
precision optical instruments and related products. During 1944, the respondent
in the course and conduct of its business operations purchased for use at its
Rochester plant, raw materials valued in excess of $1,000,000, of which approxi-
mately 25 percent was transported to its Rochester plant from States other than
the State of New York. During the same year, the respondent manufactured at
its Rochester plant products valued in excess of $1,000,000, of which in excess
of 50 percent was sold and shipped to points outside the State of New York.
The respondent admits that it is engaged in commerce within the meaning of
the Act.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II, THE ORGANIZATION INVOLVED
Pattern Makers League of North America, A. F. L., is.a labor organization
which admits to membership employees of the respondent.
III. THE UNFAIR I^ABOR PRACTICES
A. The refusal to bargain collectively; interference, restraint, and coercion
1. The appropriate unit
The complaint alleges that all wood and metal pattern makers and apprentices
excluding production and maintenance employees, office and clerical employees,
and all supervisory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees or effectively recom-
mei d such action, constitute an appropriate unit for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
In the consent election agreement entered into by the parties on April 26,
the propriety of the above-described unit was agreed to. The respondent offered
no evidence on the subject in the present hearing. No reason exists for de-
parting from the agreement of the parties concerning the appropriate unit.
The undersigned finds that all wood and metal pattern makers and apprentices
of the respondent, excluding production and maintenance employees, office and
clerical employees, and all supervisory employees with authority to hire, promote,
discharge, discipline or otherwise effect changes in the status of employees or
effectively recommend such action, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
At the hearing the respondent introduced in evidence a list of the employees
of the pattern making shop for the week ending April 28. This list bears 13
names. It was the respondent's contention at the time of the signing of the
consent election agreement that all 1.3 employees were properly within the ap-
propriate unit. The Union took the position that 3 of these employees were
not properly classified in the appropriate unit. Despite these differences, the
parties agreed that all 13 employees could vote at the Board election with the
proviso that the Union be permitted to challenge the votes of the 3 employees.'
At the Board election held on May 2, the Union challenged the votes of the said
3 employees. Thereafter, the Regional Director in his "Report on Challenged
Ballots" sustained 2 of the challenges and found and directed that the third
challenged ballot be opened and counted for the reason that the employee who
voted the said third challenged ballot was properly within the appropriate unit.
Thus, the Regional Director in his "Report on Challenged Ballots" found that
there were 11 employees in the appropriate unit eligible to vote in the election.
The respondent did not file any objections to the Regional Director's "Report
on Challenged Ballots," nor did it introduce evidence at the hearing bearing on
this issue. There is no evidence in the record that there were any changes of
employees or their status in the pattern making department during the entire
month of April. Upon the basis of the foregoing, and upon the entire record,
the undersigned finds that during the month of April and at all material times
thereafter there were 11 employees in the appropriate unit.
Board's counsel introduced in evidence a list bearing names of 8 employees
of the pattern shop who had signed application cards for membership in the
2 The parties also set forth in writing that , "If the Union does challenge any or all of
said 3 votes , and if the result of the election would be affected by the inclusion or exclusion
of any such challenged votes, it is agreed that the validity of such challenged votes shall
be determined after the election has been held."
BAUSCH & LOMB OPTICAL COMPANY 1113
Union. 'The original cards were then offered by Board's counsel to the re-
spondent to be checked. The respondent objected to the admission of this list
among other grounds on the ground that the list did not show the dates when
the application cards were signed. Richard Lichtenwalter, district organizer
for the Union, testified that during the months of December, 1944, and January,
1945, he personally approached some of the employees and secured cards from
them and that other members of the Union received several cards from em-
ployees which were turned in to him, with the result that up to February, 1945,
the Union had obtained 9 signed cards from employees of the respondent's pat-
tern making department,' According to Lichtenwalter, membership in the
Union is not attained until the applicant pays his initiation fee, dues, and tool
insurance and goes through a formal initiation ceremony. Of the 8 employees
who signed application cards, 7 were initiated into the Union and formally be-
came members thereof on April 2.4 Thus on April 2, the Union had as members
7 of the respondent's 11 pattern makers.
The undersigned finds that on April 2, 1945, and at all material times there-
after, the Union was and now is, the duly designated representative of a majority
of the employees in the aforesaid appropriate unit, and that by virtue of Section
9 (a) of the Act, the Union at all times was and now is the representative of
all the respondent's employees in such unit for the purpose of collective bar-
gaining with respect to rates of pay. wages, hours of employment, or other
conditions of employment.
3. The refusal to bargain
(a) Chronology of events
The record does not disclose any history of collective bargaining in the
respondent's plant prior to December, 1944. Lichtenwalter testified that early
in November, 1944, the Union started an organizing campaign among the pat-
tern makers in the City of Rochester. During December, 1944, and January,
1945; Lichtenwalter called at the homes of various pattern makers employed
by the respondent to solicit membership in the Union, and was assisted in this
work by several of respondent's employees. As part of the organizing cam-
paign, the Union held five or six meetings among the pattern makers of various
plants in Rochester. Up to February 1945, nine of respondent's pattern makers
had signed application cards for memb rship in the Union.' ,
Prior to February 4, according to Lichtenwalter, he called the respondent's
plant on the telephone and asked for the person who handled respondent's
labor relations, whereupon he was connected with Toni 113aGuire.° Lichtenwalter
told âIaGuire that lie represented the Union, that respondent's pattern makers
were members of the Union, and asked for an appointment with MaGuire, They
arranged to meet at the Rochester Hotel on February 4, where they had lunch.
Lichtenwaiter testified that at this luncheon meeting he asked MaGuire to
recognize the Union as the bargaining agent for the pattern makers, that
MaGuire said he was quite surprised that the pattern makers were organized
and that "it was something" for the respondent to have ony of its men organized;
3It was explained by Lichtenwaiter that one of the employees who signed a card was
transferred to the instrument department a few days after he signed the card and was given
a release from the Union, thus accounting for the discrepancy between the list bearing
eight employees' names and the nine cards testified to by Lichtenwalter.
' The eighth employee had not paid his dues In full as of April 2 and was therefore not
admitted to membership in the Union as of that date.
See footnote 3, supra.
MaGuire is head employee relations counsellor for the respondent.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would take the matter up with his boss to see what they would do and
would meet with Lichtenwalter again.
On February 14, according to Lichtenwalter, he met MaGuire again at the
Rochester Hotel. MaGuire told Liclitenwalter he had talked it (the Union)
over with his boss,' that although his boss told MaGuire not to bother with
the Union, "just to drop it," MaGuire said lie had persuaded his boss that he
(MaGuire) should meet again with Lichtenwalter. Lichtenwalter then testified
that MaGuire asked how many members the Union had, to which he answered
that 9 of the 10 pattern makers' were members. Thereupon MaGuire said that
he thought the respondent might recognize the Union without an election, that
respondent did not want the fact that a Union was in the plant, spread around
the plant. MaGuire then asked that Lichtenwalter send him a copy of a pro-
posed contract.
Several days later Lichtenwalter mailed a copy of a proposed contract, together
with copies of two contracts then in existence with other plants, to MaGuire at
the respondent's plant. Subsequently only the copies of the two contracts that
the Union had with other plants were returned to Lichtenwalter.
On April 4, Lichtenwalter met MaGuire for the third time at the Rochester
Hotels According to Lichtenwalter, MaGuire said that he was not getting along
very well with the respondent [ regarding the Union] whereupon Lichtenwalter
told MaGuire that the Union was petitioning the Board for elections in other
plants in the city the following week, and if the respondent refused to recognize
the Union, it would at the same time file a petition for the respondent's em-
ployees. MaGuire then told Lichtenwalter to call him in a few days for an
answer. When Lichtenwalter did telephone, MaGuire told him to go ahead with
his plans, and Lichtenwalter said he would then petition the Board for an
election.
On April 10 the Union filed a petition for certification of representatives,
pursuant to Section 9 (c) of the Act. Concurrently therewith, Lichtenwalter
notified MaGuire by mail that the petition was being filed.'0
MaGuire did not deny that he spoke on the telephone with Lichtenwalter on or
about February 4, or that he suet with Lichtenwalter on the three different
occasions testified to by Lichtenwalter.
v Lichtenwalter testified that MaGuire did not reveal the name of the person he spoke
with, other than to describe the person as his boss.
I As heretofore noted , although there were 13 employees in the pattern making depart-
ment it was the Union ' s contention that 3 men were not properly classified as pattern
makers.
9 Lichtenwalter testified that arrangements for their meetings were made over the phone,
with Lichtenwalter usually calling MaGuire.
10 The letter addressed to MaGuire is as follows
APRIL 10, 1945.
Mr. THOMAS McGrIRE (siC)
BAUSCH & LOMB OPTICAL CO.
635 St . Paul St ., Rochester 5, New York.
DEAR SIR : After I notified you that the pattern makers are members of the Pattern
Makers League of North America and met with you several times you informed me that
the company refuses to recognize the Pattern Makers League as a bargaining agent for
the pattern makers.
Therefore we are notifying you that we will file a Labor Relations Board petition
to establish our rights to bargain.
Yours truly,
(s) R. Lichtenwalter,
R. LICHTENWALTER,
District Organizer.
R. L.,, E
BAUSCH & LOMB OPTICAL COMPANY 1115
MaGuire, testifying in contradiction of Lichtenwalter's version of the telephone
conversation, stated that Lichtenwalter (lid telephone him on or about February 4,
and after introducing himself told MaGuire that he represented the Union,
that he was a friend of Bob Warner, an American Federation of Labor organizer
who was also MaGnire's friend, and wanted to know if MaGuire could see him
became the Union had al majority of the respondent's pattern makers signed up.
MaGuire testified further that he told Lichtenwalter there was no purpose in
seeing or talking to him, because he did not have "anything to do with anything
pertaining to matters of this kind." According to MaGuire, he then told Lichten-
walter that if he was a friend of Warner's, he (MaGuire) would be glad to see
him and have a drink or lunch with him. MaGuire testified that they talked
a while longer and Lichtenwalter said "Are you trying to stall me, or something?"
and MaGuire answered "Hell, no, I have been in the game a good many years,
I have been with the A. F. of L. a good many years, and_I am not trying to stall
you. I am telling you I haven't anything to do with matters of this kind.
What you want to do is to notify the proper authorities to notify the Company."
They then arranged to meet for lunch at the Rochester Hotel.
At their first luncheon meeting on February 4, according to MaGuire, they
talked first about their nnltual friend Warner, then Lichtenwalter again stated
that he had the pattern makers signed up. MaGuire then testified that he told
Lichtenwalter he did not have anything to do with those matters and the best
thing for Lichtenwalter to do was to notify the respondent." MaGuire admitted
that he told Lichtenwalter that lie was surprised about the Union but denied
that he told Lichtenwalter he would take the matter of the Union up with his
boss.
MaGuire testified that prior to the second luncheon meeting with Irfchtenwalter,
MaGuire conferred with Carl Hallauer, vice-president of the respondent, and told
Hallauer of Lichtenwalter's phone call and of the Union's claim of majority.
When MaGuire told Hallauer he was going to have lunch with Lichtenwalter,
Hallauer told him to "Go ahead." but when lie asked Hallauer if there was
anything he (Hallauer) wished MaGuire to tell Lichtenwalter, Hallauer answered,
"I want him to notify the Company in the proper way. Don't have anything
to do with it."
MaGuire testified that at the second meeting, he and Lichtenwalter talked
about Warner. MaGuire then told Lichtenwalter of his conference with Hallauer
and repeated to Lichtenwalter what Hallauer told him. MaGuire then testified
that Lichtenwalter told him the "boys" were getting a little uneasy and wanted
action, and there was some talk about putting an article in the newspaper,
whereupon MaGuire said "Well, maybe it will be just as well if you would wait
and notify the Company and probably be all right for you, or something like
that." MaGuire recalled some conversation about contracts, but did not remem-
ber asking Lichtenwalter for copies of any contract. He admitted receiving
copies of two contracts that the Union had with other plants, but testified that
they were sent to him after lie had consented to look them over at Lichtenwalter's
request, and he returned them to Lichtenwalter in about a week or two. He
also testified that the 'contracts received by him were not shown to any repre-
sentative of the respondent and denied telling Lichtenwalter that the respondent
might recognize the Union without an election and that the respondent did not
want "the word spread around."
Although he could not remember whether it was at the third luncheon meeting
or in a telephone conversation, MaGuire admitted that he told Lichtenwalter
11 MaGuire admitted lie did not tell Liclitenwalter whom to notify.
1116 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"he did not think the Company would go for them." Testifying further with
respect to what occurred at the third luncheon meeting on April 4, MaGuire
stated that he told Lichtenwalter "that he did not think the Company would
go for the contract," whereupon Lichtenwalter said the Union would have to
petition for an election. MaGuire denied that lie said he was not getting along
well with the respondent in an attempt to get it to recognize the Union. He
further denied that lie told Lichtenwalter to call him in a few days to get the
respondent's answer as to whether it would recognize the Union.
MaGuire admitted receiving Lichtenwalter's letter of April 12 u and testified
that he showed it to Hallauer, who told MaGuire not to answer the letter
because the Board had already notified the respondent of the Union's petition.
MaGuire's over-all testimony in the main was unconvincing. From his
demeanor on the witness stand, MaGuire impressed the undersigned .^a an
unreliable and untrustworthy witness. The undersigned was impressed with
the credibility of Lichtenwalter as reflected by the reasonableness of his testi-
mony and his attitude and demeanor on the witness stand. The undersigned
credits Lichtenwalter's version of the telephone conversation of February 4, and
the conversations at the meetings of February 4,. 14, and April 4, and finds that
the statements attributed to MaGuire were made substantially as testified to
by Lichtenwalter.
On April 10, the Union filed a petition for certification of representatives
with the Board. Thereafter several meetings were held between representa-
tives of the Board, the respondent, and the Union, culminating in the parties
signing a consent election agreement," which provided among other things for
an election to be conducted under the supervison of the Board on May 2, among
the pattern makers in the afore-mentioned unit.
(b) Interference, restraint, and coercion
At or about the same time that the consent election agreement was signed, and
up until about a half-hour before the Board election was conducted, the
respondent, as hereinafter found, engaged in a concerted campaign designed to
discourage its pattern makers from continued affiliation with or support of the
Union, or voting for the Union in the election. Thus, Joseph Knipper, a pat-
tern maker, testified that about a week before the election he received a tele-
phone call, during working hours, from Richard Burns, an employee counselor,"
to come to Burns' office. Knipper found Burns and Helen Gearing, 6 Knipper's
sister, in the office when he arrived there. Burns engaged Knipper and his
sister in a general conversation and then according to Knipper, [Burns] said
that "if the Union got in the Bausch & Lomb pattern shop, the work would be
sent outside to Syracuse. The pattern shop would be closed up." Burns
invited Knipper out for dinner that night, but Knipper declined the invitation.
11 See footnote 10, supra.
's These meetings were held on April 18, 19, and 26, respectively,
"RichardBurns testified that his duties involved "any dealings with employee problems,"
and included all problems of rationing and all types of problems that an employee en-
counters in the plant or at home. When an employee experienced any difficulty in con-
nection with his work, he was referred to Burns by the foreman. Burns has a private
office in the plant where employees are interviewed regarding their problems. It is
apparent from the nature of his duties and his title and from the record as a whole that
Burns was a managerial employee at all times material herein, and the undersigned so
finds.
16 Helen Gearing was an employee of the respondent for 22 years and timekeeper in the
polishing and spraying department for 18 years. Gearing testified that she "Just happened
to meet Burns outside of his office when Knipper came up there."
BAUSCH & LOMB OPTICAL COMPANY 1117
Burns admitted calling Knipper to his office about a week before the Board
election. Burns testified that in line with his duties and in order to safeguard
against the possibility of "trouble " in the pattern shop. he asked Gearing if she had
heard Knipper speak of any trouble going on. Gearing did not know of any, and
according to Burns suggested that he call her brother to his ( Burns ) office. Burns
asked Knipper , if any trouble was brewing in the pattern shop."and Knipper said
he did not think so, and did not care to talk about it . Burns did not deny that
the subject of the Union was discussed by Knipper and himself , but denied that
he told Knipper that if the Union won the election . the respondent would move the
pattern shop work elsewhere . Gearing was called as a witne,;s by the Board.
Her demeanor on the witness stand indicated that she was a reluctant witness.
She did not recall Burns saying anything to her abort trouble in the pattern shop
and although she was unable to precisely remember what took place in Burns'
office , she testified that Burns and her brother talked about the Union thus
corroborating Knipper 's testimony in this regard.
Burns from his demeanor on the witness stand impressed the undersigned as
an unreliable and untrustworthy witness. The undersigned was impressed with
the credibility of Knipper as reflected by the reasonableness of his over -all testi-
inony and his attitude and demeanor on the witness stand . The undersigned
does not credit Burns' version of the conversation with Knipper and finds that
the statements attributed to Burns were made substantially as testified to
by Knipper."
16 Burns explained that the trouble he heard about in the pattern shop was that some men
wanted the Union there and others did not and there was strife between the two factions.
17 It is the respondent 's contention that Knipper ' s testimony is not worthy of belief for
the reason that his recollection of what occurred at several conferences with Arthur Stern,
respondent 's counsel , and Piper , was inaccurate . Knipper admitted that he was questioned
by Stern and Piper in a private office in the plant on two occasions subsequent to the Board
election . Knipper testified and readily admitted that on the first occasion on or about
May 8, when Stern asked him if anything was said pertaining to unions , he answered that
he did not know anything about it and that nobody had approached him. On or about July
10, the occasion of the second interview, Knipper testified that he told Stern that he had
given a statement to a Board Field Examiner , which included the fact that his sister was
present when he met Burns in the latter's office. It is apparent from Knipper 's further
testimony that he told Stern that in his statement to the Field Examiner , he had informed
her of Burns' remark that if the Union came into the respondent's plant, the pattern work
would be sent to Syracuse , and the pattern shop closed down . According to Knipper, Stern
then said he would have to include the Burns ' conversation in the statement he was pre-
paring for Knipper 's signature , but that originally he was not going to mention it because
Burns' remark "did not amount to anything" and had no bearing on the issue. Knipper
testified further that Piper said "it would probably make bad blood and so on with my
sister being in this case, and maybe it would be all right not to mention that." Knipper
then testified that he told Stern and Piper that if what Burns told him about the shop clos-
ing did not amount to anything it would be all right with him not to mention it in the
statement.
The respondent did not introduce Knipper ' s statement in evidence . Piper testified that
Knipper did not mention any conversation with Burns relative to the closing of the pattern
shop in the event the Union came into the respondent's plant. Piper denied that he advised
Knipper that to involve his sister in this matter might create bad blood between them.
Stern, on the other hand, admitted that Knipper told him that Burns said the pattern shop
might close but did not say anything about unions in connection with his statement.
Piper admittedly was present with Stern when Knipper was questioned. As noted hereto-
fore, the undersigned was impressed with Knipper's credibility. Knipper readily admitted
that he was not correct when he told Stern on the occasion of the first interview that
nobody approached him or said anything to him regarding unions; however, when inter-
viewed again he voluntarily advised Stern of Burns' remark . The undersigned does not
credit the denials of Piper and finds that the statements attributed to Piper and Stern
were made substantially as testified to by Knipper , and further finds no merit in the re-
spondent 's contention regarding Knipper 's testimony.
1 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a week before the election, according to Knipper's further testimony,
Frank Phillips, foreman of the respondent's foundry, came up to his bench while
he was working and told Kuipper that if he did not "play ball" with the respond-
ent, the pattern shop would be closed. Phillips also stated that he was not
supposed to mention "those things" about Unions to Knipper.
Phillips denied having made the statements ascribed to him by Kuipper.
Although he admitted having had a conversation with Knipper he failed to
elaborate as to its nature. Phillips impressed the undersigned as an unreliable
witness, from his demeanor on the witness stand. The undersigned does not
credit the denials of Phillips and finds that the statements attributed to him
were made substantially as testified to by Knipper.
At about the time when Burns had the aforesaid conversation with Knipper,
he engaged Sarnes, another pattern maker, in a similar conversation. Sarnes, a
hesitant witness, testified that a few days before the election the subject of the
Union 18 was brought up in a discussion between himself and Burns, in Burns'
office, during which Burns said to him that the respondent could have its pat-
tern work done outside, and called to Sarnes' attention that he (Sarnes) had been
working for the respondent "pretty long" and had a "nice standing" there.
Burns denied making the statements attributed to him by Sarnes. As heretofore
noted, the undersigned did not find the testimony of Burns generally to be credible.
The undersigned does not credit the denials of Burns and finds that the statements
attributed to him were made substantially as testified to by Sarnes.
Pattern Maker Fred Pfeil testified that about a week before the Board elec-
tion, Foreman Phillips instructed him to go to Ray Welch's 19 office. While they
were discussing Pfeil's eligibility for a pension when he should reach the age
of 70, ° Kenneth Piper, respondent's Director of Industrial Relations, came into
the office and asked Pfeil if he was with the respondent as he always had been.
Pfeil answered that he had been in the respondent's employ for 11 years, had
done his work to the best of his ability and expected to be compensated accord-
ingly, whereupon Piper, according to Pfeil, said there was a raise coming
through for him 21
Harry Acheson, a pattern maker, testified that within a week of the election,
Forrest Stringham, foreman of the pattern shop, came up to his bench during
working hours and said "The Company wasn't going to take this sitting down,
if things get slack around here they might weed out a few of these Fellows."
Pattern maker George Shields testified that about 2 or 3 days before the Board
election, Stringham came up to him in the pattern shop and said "I see you are
going to have an election * * * Well, the Company isn't going to take it
sitting down, they are going to fight it." John Murphy, another pattern maker,
testifying similarly, stated that on Monday before the election, Stringham in the
presence of Acheson told Murphy that "if the Union got in we would all be out
of a job."
Shields' credible testimony in this regard is uncontradicted. Stringham while
admitting that he talked with Acheson and Murphy regarding the subject of the
Union, denied the statements attributed to him by them. His denials are not
'"' Sarnes was unable to state with accuracy who i t was who first mentioned the Union,
varying his testimony from "he [Burns ] said the fellows in the shop joined the Union"
to "I said myself to him we fellows did belong to the Union."
19 Ray welsh is the Director of the Insurance and Retirement department for the
respondent.
YU Pfeil testified that he was 62 years old.
21 The findings in this paragraph are based upon the testimony of Pfeil . Piper denien
the statements attributed to him by Pfeil , the undersigned does not credit these denials.
BAUSCH & LOMB OPTICAL COMPANY 1119
credited and the undersigned finds that the statements attributed to Stringham
were made substantially as testified to by Shields, Acheson and Murphy .'
Murphy testified further regarding several conversations with Phillips as
follows : On the Monday before the election Phillips told Murphy that if the
Union was not successful there would be a lot of repair work ; ' about a half hour
before the election Phillips told Murphy to "use his head." 24
The election held on May 2 was not determinative because of a total of 13
ballots cast, 5 were in favor of the Union, 4 were opposed, 1 a void ballot, and 3
were challenged. The Regional Director, thereafter investigated the basis for the
challenges and on May 28, issued his "Report on Challenged Ballots" wherein he
found and determined that in view of the work duties of 2 of the employees
whose ballots were challenged, they were not within the appropriate unit and
the challenges to their ballots were sustained. The third employee was found
within the appropriate unit and his ballot was ordered opened and counted.
The final results of the election disclosed a tie vote." By letter dated May 5,
the Union filed objections to conduct affecting the results of the election based
upon certain alleged acts of unfair labor practice committed by the respondent
prior to the election.6 Subsequently on June 13, pursuant to the provisions of
22 The respondent contends that the testimony of Shields, Murphy, and Acheson is
doubtful because they did not remember to tell Stern of their conversations with Stringham,
when he (Stern) interviewed them a few days after the election. The pattern makers
were interviewed individually in a private office in the plant with only Stern and Piper
present. They were asked if they knew of anything to form the basis of unfair labor
practice charges against the respondent. Considering the circumstances of the inter-
views, the surroundings in which they were held, and the fact that the pattern makers
were asked what amounted to a legal question, it is not unreasonable that they did not
think of telling Stern what they testified to at the hearing. The uhdersigned finds no
merit in the respondent's contention regarding Shields, Murphy, and Acheson.
23 Pattern makers in addition to making new patterns also do repair work on old and
used patterns. It appears from the record that there was a good deal of repair work
going on at this time.
24 Phillips testifying in contradiction to Murphy's version of the conversations with
him denied saying anything to Murphy about repair work. Phillips testified that on
the day of the election and shortly before the actual voting time, Murphy accosted him
as he (Phillips) was going into the pattern shop and said "Frank, I am going to vote a
blank ticket" and that Phillips advised him against that, saying he (Phillips) would
vote one way or the other. Further, Phillips denied telling Murphy to use his head.
As heretofore noted the undersigned, did not find the testimony of Phillips generally
to be credible. The undersigned does not credit the denials of Phillips and finds that
the statements attributed to him were made substantially as testified to by Murphy.
23 The revised tally of ballots was as follows :
Approximate number of eligible votes________ _____________________ 11
Void ballots---------------------------------------------------- 1
Votes cast for Pattern Makers League of North America, A. F. L______ 5
Votes cast against participating labor organization __________________ 5
Valid votes counted___ ___________________________________________ 10
2d PATTERN MAKERS' ASSOCIATION OF ERIE AND VICINITY
1701-1703 State St., Erie, Pa.
May 5, 1945.
Mr. M. S. RYDER,
Genesee Bldg., Buffalo, N. Y.
DEAR MR. RYDER: The Pattern Makers League of North America charges the Bausch &
Lomb Optical Company with unfair labor practice immediately prior to the election held
by the wood and metal pattern makers and pattern maker apprentice, May 2, 1945.
The Pattern Makers League further charge that unfair labor acts of the company re-
sulted in certain eligible employees to vote against the League because of intimidation and
coericion (sic) on the part of the Company agents.
The Pattern Makers League is prepared to prove these charges by witnesses under oath.
Pattern Makers League of North America,
R. LICHTENWALTER,
District Organizer.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the consent election agreement, the Regional Director, after an investigation,
having found that the objections raised substantial and material issues with
respect to the election, sustained the objections and set aside the results of the
election.
4. Conclusions
(a) Interference, restraint, and coercion
Upon the facts hereinabove related, the respondent has engaged in a course of
conduct designed to defeat the self-organization of its pattern makers.
The respondent contends that even if it should be assumed that unfair labor
practices under Section 8 (1) of the Act were committed, such acts did not
affect the Union's status as representative and did not affect the result of the
election. The undersigned finds no merit in this contention. The Board and
the Courts have uniformly held, "such proof is not essential to a finding of a
violation of the Act." It is the coercive import of the statements which controls,
regardless of whether they actually produced the effects intended.2'
The undersigned finds that by the totality of the statements and conduct of
Burns, Phillips, Stringham, and Piper, as hereinabove set forth, particularly
when viewed in the light of the time when such statements were made, the
respondent interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
(b) The refusal to bargain
The respondent contends in substance (1) that the Union never made a demand
upon it for recognition; and (2) that the Union never offered any proof to the
respondent that it represented a majority of the employees in the unit.
As to the first contention, the record discloses that Lichtenwalter was con-
nected with MaGuire when he telephoned the respondent's plant and asked for
the Labor Relations Director. Whether or not MaGuire was in fact the Labor
Relations Director, as the telephone operator undoubtedly thought,29 when she
connected Lichtenwalter with him, is of no consequence; the fact remains that
MaGuire met with Lichtenwalter as the respondent's representative to discuss
matters pertaining to the Union and at no time did he advise Lichtenwalter
to the contrary. Moreover, after the respondent was put on notice that MaGuire
had met with Lichtenwalter and that the Union claimed a majority of the pattern
makers, it gave MaGuire the "go ahead" sign to meet with Lichtenwalter again,
but at the same time, in effect, cautioned him not to bargain with the Union
when Hallauer said "I want him [Lichtenwalter to notify the Company in
the proper way. Don't have anything to do with it."
A request to bargain was made of MaGuire when the Union represented a
majority of the pattern makers and such a request was in effect notice to the
respondent through MaGuire as agent of the respondent, that the Union desired
to bargain collectively. The respondent therefore had knowledge of the Union's
request for collective bargaining and it was thus obliged to meet with the Union.'
The respondent's first contention is without merit.
24 See N. L. R. B. V. John Englehorn d Sons, 134 F. (2d) 553 (C. C. A. 3 ) ; Humble Oil d
Refining Co. v. N. L. R. B., 113 F. (2d) 85 (C. C. A. 5 ) ; American National Bank v. N. L.
R. B.. 144 F. (2d) 268 (C. C. A. 8) ; N. L. R. B. Y. Brezner Tanning Co., 141 F. (2d) 62
(C. C. A. 1) ; N. L. R. B. V. Walt Disney Productions, 146 F. (2d) 44 (C. C. A. 9), cert.
denied 65 S. Ct. 1025.
2+ MaGuire admitted that people assumed he was the Labor Relations Director.
29 See Matter of Pioneer Pearl Button Company , 1 N. L. R. B. 837.
BAUSCH & LOMB OPTICAL COMPANY 1121
As to the second contention , the respondent by its negative attitude demon-
strated its unwillingness to do anything regarding the Union 's request to bar-
gain. As was stated by the court in the case of Remington-Ran.d ,30 the respond-
ent "made no effort to learn the facts and took the chance of what they might
be." The undersigned finds the respondent 's second contention without merit.
The consent election at most must be considered as a method of proof to which
the parties resorted as a means of establishing officially the Union ' s majority
status. Despite the agreement to settle the question of the Union's status by an
election , the respondent by its course of conduct from the date of the signing of
,the consent election agreement up until a half hour before the casting of the
ballots in the election, exerted efforts to render impossible a fair official de-
termination of that issue . Thus the respondent flagrantly disregarded its duty
to refrain from interfering with the freedom of choice of the employees and to
cooperate in the ascertainment of the Union ' s majority status. Under these
circumstances , the failure of the Union to demonstrate its majority at the elec-
tion can only be attributed to the respondent ' s unfair labor practices °i The
election was consequently not controlling in establishing the Union's majority
status "
In all the circumstances the undersigned finds that the respondent on April 2,
1945, and at all times thereafter refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate unit and has
thereby interfered with, restrained , and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
5. Other interference, restraint, and coercion
It is undisputed that after the receipt of the complaint in this proceeding,
Piper and Stern interviewed, for the second time,` the pattern makers who had
voted at the Board election."
During the course of the interview Stern advised the pattern makers that
he was preparing the respondent's defense to the allegations of the complaint
and asked each employee how lie voted in the election ; the employee's answer
was then incorporated in the statement prepared by Stern 95
It is the respondent's contention that the information as to how the employees
voted in the election was important and necessary in the preparation of its de-
fense and since such information was voluntarily given by the employees, the re-
spondent cannot be found guilty of a violation of the Act. This contention is
without merit. While a respondent may through its counsel interview employees
to discover facts within the limits raised by a complaint for the purpose of pre-
paring its case for trial, nevertheless questioning of employees as to how they
voted in an election by secret ballot is objectionable and as the Board stated
in its recent decision in the Libby-Owens-Ford Glass Company case,3' "Plainly,
90 N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2).
31 Cf. N. L. R. B. v. Bradford Dyeing Assn., 310 U. S. 318.
32 See Matter of H. McLachlan & Company, 45 N. L. R. B. 1113; Matter of Heilig Bros. Co.,
32 N. L. R. B. 505, 123 F. (2d) 734 (C. C. A. 3), cert. denied 316 U. S. 701. See also
Warehouse Employees Union Local No. 359, A. F. L. v. Foreman Ford & Co., 16 L. R. R. 407.
33 The first interviews of the pattern makers were conducted by Stern and Piper on or
about May 8.
34 All were interviewed except Shields who was no longer in the respondent's employ.
35 The findings in this paragraph are based upon a reconciliation of the testimony of
Stern, Piper, Acheson, Knipper, and Murphy.
36 63 N. L. R. B. 1.
701502-4i-vol. 69---72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such conduct invades the employee's right to exercise a free and unfettered choice
through a statutory method designed to insure this freedom." n
Upon the basis of the foregoing, the undersigned finds that the respondent has
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
6. The alleged discriminatory discharge of George Shields
The complaint, as amended, alleges that the respondent on or about June 5,
1945, discharged George Shields, a pattern maker, and since has failed and refused
to reinstate him because of his union membership and activities. This the
respondent, in its answer, denies ; it says that Shields was not discharged, but
that he voluntarily left respondent's employ rather than accept a transfer made
necessary because of the lack of work in the metal pattern shop.
According to the undisputed and credited testimony of Walter Brayer, super-
intendent of the respondent's foundry and pattern shop, because of the cancellation
of Government war contracts early in 1945, there was no necessity for three metal
pattern makers in that department. In April, Brayer testified that it became ap-
parent that the work of the metal pattern workers was not going to pick up
and accordingly he notified the Industrial Relations Department of this fact
and since Shields had less seniority than the other metal pattern makers, all
of whom were of equal ability, Brayer recommended the transfer of Shields.
According to Brayer, the Industrial Relations Department advised against Shields'
transfer at that time because of the possibility of an election among the pattern
makers. The respondent continued to carry the three metal pattern makers in
its employ, but "made work" was found for them. On another occasion prior
to the election Brayer raised the subject of Shields' transfer with Piper, but he
received the same instructions as previously. After the election and the decision
on challenged ballots had been made, Brayer again proposed the transfer which
was approved by Stern. Accordingly, on or about June 5, Brayer told Shields
that because of slack work he would have to transfer him. Shields, according to
Brayer, said that he wanted to stay in his trade as a metal pattern maker.
Shields was sent over to the employment office to discuss the matter, but accord-
ing to Arthur Brayer, personnel interviewer, lie was offered several openings else-
where in the plant, which he refused and lie was given a release.
Shields was a member of the Union. The record does not reveal that Shields
engaged in any union activity other than to talk to some of the men about how
they felt about joining the Union and acted as observer in the Board election.
Shields admitted that lie was doing more repair work on patterns at the time
he obtained his release than he had in the few months prior to that. During a
slack period in the summer of 1944, for about 5 days, Shields worked in the
instrument department. That Shields was offered a transfer to the lens depart-
ment is not in dispute ; it was Shields' testimony, however, that he was told
that the work in the lens department was hard and heavy. Shields admitted
that he refused the transfer because lie was a pattern maker and wanted to
remain in his trade.
The undersigned finds that under the circumstances heretofore set forth the
respondent released Shields, the last pattern maker to be hired in the department,
because of a decrease in its pattern work and for the reason that he refused
to accept a transfer to other work, preferring to remain in his own trade. The
37 In Matter of A. J. Tower Company, CO N. L. R. B. 1414, the Board said that, "such a
practice would nullify the very purpose of the secret ballot to insure a free and untram-
meled choice." See also matter of E. J. Anderson, d/b/a Anderson Manufacturing Com-
pany, 58 N. L. R. B. 1511.
BAUSCH & LOMB OPTICAL COMPANY 1123
case as to George Shields must therefore be dismissed, and it is so recommended
hereinafter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Pattern Makers League of North America, A. F. L., is a labor organization
within the meaning of Section 2 ( 5) of the Act.
2. All wood and metal pattern makers and apprentices of the respondent ex-
cluding production and maintenance employees , office and clerical employees, and
all supervisory employees with authority to hire, promote, discharge , discipline,
or otherwise effect changes in the status of employees , or effectively recommend
such action, at all times material herein , constituted and now constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 ( b) of the Act.
3. Pattern Makers League of North America , A. F. L., was on April 2, 1945,
and at all material times thereafter has been , the exclusive representative of
all the employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Pattern Makers League of North
America, A . F. L., as the exclusive representative of its employees in the afore-
said appropriate unit , the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act.
5. By interfering with , restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
7. The respondent has not discriminated in regard to the hire and tenure or
the terms and conditions of employment of George Shields.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Bausch & Lomb Optical Company,
Rochester, New York, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Pattern Makers League of North
America, A. F. L., as the exclusive representative of all wood and metal pattern
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
makers and apprentices of the respondent, at its plant in Rochester, New York,
excluding production and maintenance employees, office and clerical employees,
and all supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees or effectively
recommend such action.
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Pattern Makers League of North America, A. F. L., or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Pattern Makers League of
North America, A. F. L., as the exclusive representative of all wood and metal
pattern makers and apprentices of the respondent, at its plant in Rochester,
New York, excluding production and maintenance employees, office and clerical
employees, and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees or
effectively recommend such action ; -
(b) Post at its plant at Rochester, New York. copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director of the Third Region, shall, after being duly signed by the
respondent's representative, be posted by the respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps should be taken by the respondent to in-
sure that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the Third Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
It is recommended that the allegations of the complaint as to George Shields
be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of ex-
ceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
BAUSCH & LOMB OPTICAL COMPANY 1125
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of the order
transferring the case to the Board.
SIDNEY LINDNER,
Trial Eraniin.er.
Dated December 3 . 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL not in any manner interfere Avith, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Pattern Makers League of North
America, A. P. L., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection. All our employees are free to become or remain members
of this union, or any other labor organization.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is : All wood and
metal pattern makers and apprentices, excluding production and main-
tenance employees, ottice and clerical employees, and all supervisory em-
ployees with authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees or effectively recommend such
action.
BAUSCH & Loam OPTICAL COMPANY,
BS' ------------- ------------
Dated ----------------------- ( Representative ) (Title)
This notice mist remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.