Bausch & Lomb Optical Co.

National Labor Relations Board - Board Decisions

Jun 28, 1954

108 N.L.R.B. 1555 (N.L.R.B. 1954)

BAUSCH & LOMB OPTICAL COMPANY 1555
RATES NO. EMPLOYEES RATES NO. EMPLOYEES
.97 1 1.18 4
.99 15 1.19 2
1.00 7 1.20 1
1.01 5 1.22 3
1.02 4 1.23 1
1.03 8 1.24 2
1.04 6 1.26 2
1.05 7 1.27 1
1.06 5 1.29 1
1.07 6 1.32 2
1.08 4 1.33 1
1.09 2 1.35 1
1.10 2 1.40 1
1.11 3 1.41 1
1.12 1 1.43 2
1.13 2 1.45 5
1.14 2 1.48 1
1.16 1 1.50 1
1.17 3 1.56 1
BAUSCH & LOMB OPTICAL COMPANY and UNITED OPTICAL
& INSTRUMENT WORKERS OF AMERICA, LOCAL 678,
CIO. Cases Nos. 14 - CA-1080 and 14 -CA-1081. June 28,
1954
DECISION AND ORDER
On December 10, 1953, Trial Examiner Arthur Leff issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging
in unfair labor practices in violation of Section 8 (a) (5) and
(1) of the Act and recommending that it cease and desist
therefrom and take certain affirmative action as set forth in
the copy of the Intermediate Report attached hereto. There-
after, the Respondent requested oral argument and filed
exceptions to the Intermediate Report and a supporting brief.
On April 8 , 1954, the Board granted the Respondent's request
for oral argument , which was heard by the Board on April 22,
1954, and in which the Respondent and the General Counsel
participated.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed . The Board has
considered the Intermediate Report, the Respondent's ex-
ceptions and brief , the oral argument before it, and the entire
record in the case, and finds merit in Respondent ' s exceptions.
The precise issue which this refusal -to-bargain case pre-
sents is one of first impression . The question raised is whether
an employer violates Section 8 (a) (5) and ( 1) of the Act by
refusing to deal with the duly certified representative of its
employees because such representative has established a
108 NLRB No. 213.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business enterprise in the same locality and industry as that
of the employer , and has thus become one of its direct com-
petitors . The Trial Examiner has found a violation of Section
8 (a) (5) and ( 1). We do not agree.
At the outset, we must consider first whether the Board has
authority under the Act to deal with this matter . In urging that
the Board has such authority, the Respondent refers in its
brief to the "Declaration of Policy" appearing as a preamble
to the Labor Management Relations Act, 1947, and to the
"Findings and Policies " contained in Section 1 of the amended
National Labor Relations Act. It argues that the Board has
the statutory authority to find that it would be contrary to the
basic policies of the Act and to the public interest to require
that an employer bargain collectively with a labor organization
which also stands in the position of a competing employer.
According to the Trial Examiner , there is nothing in the policy
declaration itself nor in the implementing statutory provisions
which prohibits a labor organization from acting in such a
dual capacity. Therefore , it his his view that, as the relevant
sections of the Act are clear and explicit on their face, there
is no room for Board interpretation of them and the Re-
spondent ' s plea should be directed to Congress.
It is clearly the function of this Board to interpret the Act
so as to give the greatest possible effect to the Congressional
purpose, as expressed in the "Declaration of Policy," of
prescribing the legitimate rights of employees , employers,
and labor organizations in their relations with each other, and
of proscribing practices onthe part of labor as well as manage-
ment that are inimical to the general welfare and the public
interest . In so doing , the Board has recognized that "resort
to the policy of [the ] law may be had to ameliorate its seeming
harshness or to qualify its apparent absolutes . .. ." 1 Thus,
the Board has indicated that where a particular section of the
Act is subject to different possible interpretations , it is the
duty of the Board, as the administrative agency entrusted
with the enforcement of the public policy embodied in the
Act, to follow what it believes is the purpose and thereby
effectuate the will of Congress. 2
Sections 7, 9, anti 2 of the Act are the implementing stat-
utory provisions which the Trial Examiner considers so un-
equivocal that their terms must be strictly applied. However,
neither the Board nor the courts have found any of these
sections so clear and explicit as does the Trial Examiner,
for each of the sections has required interpretation in light
of the basic policies of the Act. Thus, although Section 7
guarantees to employees the right to engage in concerted
activities for the purpose of collective bargaining or other
IMarkham v. Cabell, 326 U S. 404, 409.
2 See United Brotherhood of Carpenters and Joiners of America , et al , 81 NLRB 802,
814, 815 enforced 184 F 2d 60 (C. A. 10).
BAUSCH & LOMB OPTICAL COMPANY 1557
mutual aid or protection , the Board and the courts have de-
clared that Congress never intended every form of activity
falling within the letter of this provision to be protected.' For
example, employees have been held to have been properly
discharged or refused reinstatement by an employer for: en-
gaging in a mutiny , 4 a sitdown strike ,' mass picketing , 6 a con-
certed slowdown ,7 the use of force or violence calculated to
bar physical entry to a plant during a strike, 8 distributing
handbills to the public attacking the quality of the employer's
products 9 or boycotting the employer ' s product , " and for re-
fusing to work overtime 11 or to process orders from another
plant where a strike was in progress :3This is all despite the
fact that these concerted activities may be considered to come
within the literal language of Section 7.
Similarly , Section 2 ( 4) defines the term representative as
including any individual and Section 9 (c) (1) (A) provides for
the filing of a representation petition by, among others, any
individual acting on behalf of employees . However, as a mat-
ter of policy , the Board has held that a supervisor cannot
act as representative of employees to decertify a union,13
nor can a supervisor represent employees of an employer
for purposes of collective bargaining , " regardless of whether
the employees desire such a bargaining agent and despite the
employees ' right in Section 7 to bargain collectively through
representatives of their own choosing . In so holding, the
Board indicated that one purpose of the Act was to draw a
clear line of demarcation between supervisory representa-
tives of management and employees because of the possible
conflicts in allegiance if supervisors were permitted to par-
ticipate in union activities with employees."
3International Union, U A.W A. A. F of L., Local 232, etal. v. Wisconsin Employment
Relations Board, et al., 336 U S. 245 and cases cited therein. Elk Lumber Company, 91
NLRB 333, 336, 337.
4Southern Steamship Co. v. N L R B., 316 U. S. 31.
5N L R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240.
6 Precision Castings Company, Inc., 48 NLRB 870. The International Nickel Company, Inc.,
77 NLRB 286.
7 Elk Lumber Company, footnote 3, supra.
3 The W. T. Raleigh Company, 90 NLRB 1924, vacated in part and enfd. as mod. 190 F
2d 832 (C A.7).
9N L. R. B. v. Local Union No. 1229, International Brotherhood of Electrical Workers,
346 U S 464.
10 The Hoover Company v. N. L. R. B., 191 F. 2d 380 (C A. 6).
n C G Conn. Ltd. v. N. L. R. B , 108 F. 2d 390 (C A. 7).
12 N L R. B. v. Montgomery Ward R, Co., 1667 F. 2d 486 (C A. 8).
13 Clyde J. Merris, 77 NLRB 1375; See also Gold Bond, Inc., 107 NLRB 1059.
14 Kennecott Copper Corporation, 98 NLRB 75; Douglas Aircraft Company, Inc., 53 NLRB
486.
"Another example of Congressional recognition of the mutually exclusive interests of
management and labor is Section 8 (a) (2) of the Act which protects the right of employees
to bargain collectively through representatives of their own choosing by proscribing as an
unfair labor practice any type of employer participation in the formation or administration
of a labor organization.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the Board in effectuating the policies of the Act
has refused to permit certain types of unions to become
representatives of employees. Thus, craft unions cannot
represent members of their crafts in the basic steel, alu-
minum, lumber, and wet milling industries, 16 and the Board
has recently held that if one of these unions seeks to sever
a craft group from a larger established bargaining unit it
must show that it is the one which traditionally represents
that craft,17 even though under a strict interpretation of
Section 7 all employees are guaranteed an unqualified choice
of bargaining representative.
The Supreme Court indicated the scope of the Board's
authority in this regard in the Jones & Laughlin case?" when
the Court stated that in performing its statutory function the
Board "has discretion to place appropriate limitations on the
choice of bargaining representatives should it find that public
or statutory policies so dictate." We are of the opinion, there-
fore, that, contrary to the Trial Examiner, the Board has the
statutory authority to find, if the underlying policies of the
Act will best be effectuated thereby, that a labor organization
which is also a business rival of an employer is not a proper
bargaining representative of employees of that employer.
Having concluded that the Board has the necessary authority,
we turn to a consideration of the question presented in this
case.
A brief statement of the relevant facts, as found by the
Trial Examiner, is in order at this juncture. The Respondent
is engaged in the manufacture and sale of eyeglasses and
optical products in St. Louis, Missouri. The Union has repre-
sented the Respondent's employees for many years under
oral agreements. Relations between management and the
Union apparently were harmonious. In May 1953, the Union
established a company to engage in the same business as the
Respondent. Only members of the Union can become stock-
holders of this company and since its incorporation 336 shares
of common stock have been issued of which 332 are presently
owned by 124 union members. It was conceded by the Union,
and the Trial Examiner found, that the Union actually controls
and operates the company's business. The company is in
direct competition with the Respondent as well as all other
optical wholesalers in the city of St. Louis. After the Union's
certification by the Board on May 25, 1953, the Union and the
Respondent commenced bargaining negotiations. Relations
between the parties were severed on September 16, 1953, when
the Respondent's attorney advised the Union by letter that the
Respondent declined to conduct further negotiations until such
i6National Tube Company, 76 NLRB 1199; Permanente Metals Corporation, 89 NLRB 804;
Weyerhauser Timber Company, 87 NLRB 1076; Corn Products Refining Company, 80 NLRB
362.
17 American Potash 4 Chemical Corporation, 107 NLRB 1418.
18N. L. R. B. v. Jones & Laughlin Steel Corp., 331 U S. 416, 422.
BAUSCH & LOMB OPTICAL COMPANY 1559
time as the Union should divorce itself from the operation,
management , and control of its company and no longer be a
competitor of the Respondent . Thereafter , the Respondent's
employees went out on strike.
In the opinion of the Trial Examiner, as there is no evidence
that the Union was actually bargaining for the benefit of its
company rather than for the welfare and in the interest of the
employees of the Respondent as employees , and no bad-faith
dealing by the Union has been shown, there is no basis for
finding that the Union became disqualified to act as bargaining
representative . While we agree with the Trial Examiner that
no evidence of specific abuse by the Union in the bargaining
relationship has been presented , we cannot ignore or dis-
regard the innate , danger involved were we to order this Re-
spondent to bargain with a union which is also its business
competitor.
In considering this question it is necessary to view the
Act's collective -bargaining requirements in light of the dual
capacity which the Union now occupies . Collective bargaining
is a two-sided proposition ; it does not exist unless both parties
enter the negotiations in a good-faith effort to reach a satis-
factory agreement . ' What is envisioned by the Act is that in
attempting to make such an agreement the parties will approach
the bargaining table for the purpose of representing their
respective interests and having approximately equal economic
power. The employer must be present to protect his business
interests and the union must be there with the single-minded
purpose of protecting and advancing the interests of the em-
ployees who have selected it as their bargaining agent, and
there must be no ulterior purpose. As the Supreme Court has
stated : " The bargaining representative , whoever it may be, is
responsible to, and owes complete loyalty to, the interests of
all whom it represents ." 20 In the event an impasse in nego-
tiations occurs , the union has among its economic weapons its
right to call a strike . The employer has among its economic
weapons the right to continue the existing terms of employment
and to replace economic strikers . These represent the basic
ground rules from which good -faith bargaining stems . In our
opinion, the Union's position as the bargaining table as a repre-
sentative of the Respondent ' s employees while at the same
time enjoying the status of a business competitor renders
almost impossible the operation of the collective -bargaining
process . For, the Union has acquired a special interest which
may well be at odds with what should be its sole concern--that
of representing the interests of the Respondent ' s employees.
In our opinion , the situation created by the Union ' s dual status
is fraught with potential dangers.
Thus, under ordinary circumstances , although a bargaining
agent's initial demands upon an employer in the give -and-take
SN. L. R. B. v. Kentucky Utilities Co., 182 F. 2d 810 (C. A. 6).
20 Ford Motor Co. v. Huffman, 345 U. S. 330, 338.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of negotiations may be excessive, they are subject to qualifi-
cation and compromise because it is to the direct benefit of
the employees and the union which represents them that the
employer be able to continue operating the business success-
fully. In other words, it would be a pyrrhic victory for a
union to have an employer accede to such importunities if the
result was to force the employer out of business, thereby de-
priving the employees of their status as employees and the
union of its function as their bargaining representative. Indeed,
recognition of the mutuality of concern that' the bargaining
agent, the employees, and the employer have in the prosperity
of the employer's business is evidenced by the fact that, in a
particular industry where there is very keen competition,
unions have been known to contract for decreases in wages of
employees in order to enable an employer to combat effec-
tively such competition. However, because of the twofold
function of the Union involved herein, this retarding influence
upon inordinate demands may well be eliminated. For, the
Union cannot help being cognizant of the adverse effect that
the good business fortunes of its company can have upon those
of the Respondent as its competitor and vice versa. Indeed,
the success of one could well mean the failure of the other.
Having such knowledge, the Union might be sorely tempted in
negotiations to make intemperate demands upon the Respondent
with respect to wages, hours, and working conditions of the
Respondent's employees, under the guise of performing its
function as bargaining agent, which would redound to the
benefit of its company at the Respondent' s expense.
The Trial Examiner suggests that the answer to this problem
is that the Respondent would not have to agree to any such
terms. However, this answer fails to take into account the
Union's peculiar status and the consequent possible distortion
of the prerequisites for good-faith bargaining and its effect
upon the Respondent's position. Thus, as bargaining repre-
sentative, a union is entitled to make excessive demands upon
an employer so long as they are made in good faith for the
benefit of employees. A refusal to bargain would subject an
employer to a finding of a violation of Section 8 (a) (5) of the
Act. However, if a bargaining agent should make exorbitant
demands upon an employer for the purpose of driving the em-
ployer out of business so that a competitive company which it
controls would be benefited, this would constitute bad-faith
dealing by the union. Even though a refusal to bargain by the
Respondent under these circumstances would not be violative
of the Act, we nevertheless feel that it would not be conducive
to collective bargaining to impose upon the Respondent the
difficult burden of attempting to disentangle the Union's con-
flicting interests in order to determine, at all times during
negotiations, the Union's motivation for each demand made.
Moreover, as there does not appear to be any way that the
Respondent could make the necessary resolution of the Union's
BAUSCH & LOMB OPTICAL COMPANY 1561
motivation , it would be effectively deprived of its right to
refuse even to discuss excessive demands designed to force
it out of business.
Nor would Respondent ' s right not to accede to any such
demands, as suggested by the Trial Examiner, be a satisfactory
answer in light of the fact that the demands could be imple-
mented by effective threats to the Respondent that, if it failed
to accept the Union ' s terms, its plants would be struck and
picketed . Furthermore , should the Respondent resist the Union
and should the latter carry out its threats , the Union could,
while the Respondent ' s plant was closed, divert some, If not
all, of the Respondent ' s business to its own company. In
this respect , it could be said that the Respondent would be
21
involuntarily subsidizing the Union in their economic battle.
According to the Trial Examiner, the risk of losing business
to competitors is one an employer always runs in any strike
situation . However, we know of no law which would permit
an employer qua employer to engage in a strike or picketing
against its competitor . Yet because of its dual status here,
this is exactly what the Union could do. Moreover , since the
Union apparently has considerable control over the available
labor supply in the St. Louis area, during a strike it could
seriously weaken one of the Respondent ' s counterbalancing
economic weapons--the right to replace economic strikers--as
the Respondent might find it virtually impossible to obtain
competent help.
We believe that the Union by becoming the Respondent's
business rival has created a situation which would drastically
change the climate at the bargaining table from one where
there would be reasoned discussion in a background of balanced
bargaining relations upon which good-faith bargaining must rest
to one in which , at best, intensified distrust of the Union's
motives would be engendered . " The Board has held that under
unusual circumstances a union may , by contemporaneous
action in connection with bargaining , afford an employer grounds
for refusing to bargain so long as that conduct continues .
24 This
is so because it cannot be determined whether or not an
employer is wanting in good faith where the measurement of
this critical standard is precluded by an absence of fair dealing
on the part of the employees ' bargaining representative.25
21 For the foregoing reasons, we believe the case of Pueblo Gas and Fuel Co. v. N. L. R. B.,
118 F. 2d 304 (C. A. 10), cited by the Trial Examiner as support for his suggestion that the
Respondent would not have to agree to excessive demands by the Union , is distinguishable
from the instant case. Moreover, in our opinion, the Pueblo case must be limited to its
particular factual context.
22 The Union represents 7 of the 11 wholesale optical firms in the area and is certified
bargaining representative for 1 of the remaining 4--the Respondent ' s employees.
23See Textile Workers Union of America, CIO, et al. (Personal Products Corporation),
108 NLRB 108 NLRB 743.
24 Phelps Dodge Copper Products Corporation, 101 NLRB 360, 368.
25 See Superior Engraving Co, v. N. L. R. B.. 183 F. 2d 783 (C. A. 7); Times Publishing
Co., et al., 72 NLRB 676, 682, 683.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In our opinion , the Union involved herein by virtue of its
dual capacity has made fair dealing with the Respondent
inherently impossible.
As previously indicated , the Trial Examiner apparently
subscribes to the view that, as there is no evidence that prior
to the disruption of negotiations in this case the Union took
unfair advantage of its dual capacities , it should be permitted
to maintain its refusal -to-bargain charge while acting in both
of them. We do not believe it is incumbent upon the Board
to hold, in a situation such as is involved here , which possesses
latent dangers , that merely because the hazards which can
be anticipated have not yet been realized , the Respondent-
employer is nonetheless under a statutory duty to bargain.
We do not mean to imply that given the opportunity the Union
would inevitably take advantage of its position in the manner
heretofore indicated . It is enough for us that it could and that
the temptation is too great.
We conclude , therefore , that the particular circumstances
of this case warrant exercise by the Board of its authority
to determine that while the Union retains it dual status of
bargaining agent and business competitor it is not a proper
representative of the Respondent ' s employees for the purposes
of invoking Section 8 (a) (5) of the Act . For the foregoing
reasons, we find that the Respondent ' s normal obligation to bar -
gain was suspended , and that it did not violate Section 8
(a) (5) and ( 1) of the Act by refusing to bargain while the
Union was its business competitor . We shall, therefore,
reverse the Trial Examiner and dismiss the complaint. We
wish to make it clear, however , that by our action herein we
are not in any manner condemning the right of a labor or-
ganization to invest in a business or, indeed , to own one. We
are aware of the fact that unions do make investments in
various business enterprises , and we do not believe that union
participation in business enterprises poses any real problem
for this Board , or is likely to jeopardize to any appreciable
extent their status as bargaining representatives . We hold
only that , under the facts of this case , which we regard as
unique, the Union cannot perform its statutory function as
bargaining representative if simultaneously it is an immediate
business competitor of the particular employer whose em-
ployees it purports to represent.
[The Board dismissed the complaint.]
Member Murdock , concurring:
I concur in the dismissal of the complaint alleging that
the Employer refused to bargain in violation of Section 8
(a) (5) of the Act . I find it unnecessary to utilize or endorse
all of the rationale by which my colleagues arrive at that
BAUSCH & LOMB OPTICAL COMPANY 1563
result. I would dispose of this case simply on the basis of
the doctrine laid down in the Phelps Dodge case as follows:26
Under unusual circumstances, a union may, by contem-
poraneous action in connection with bargaining, afford
an employer grounds for refusing to bargain so long as
that conduct continues. This is so because it cannot
be determined whether or not an employer is wanting
in good faith where measurement of this critical standard
is precluded by an absence of fair dealing on the part of
the employees' bargaining representative. We believe
that the Union exhibited just such a lack of fair dealing
here, by calling a slowdown in an effort to compel the
Respondent to accede to bargaining demands.
I believe that engaging in a competitive business as here is
similarly conduct which is not consistent with good-faith bar-
gaining on the part of a union . Accordingly, the Employer
is justified in refusing to bargain so long as that conduct
continues.
26 Phelps Dodge Copper Products Corporation, 101 NLRB 360, 368 This doctrine was
also implicitly recognized in Textile Workers Union of America, CIO, et al., (Personal
Products Corporation). 108 NLRB 743, where engagement in several types of unpro-
tected concerted activities was found inconsistent with good-faith bargaining by the union.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges in Cases Nos. 14-CA-1080 and 14-CA-1081 having been filed by United Optical
& Instrument Workers of America, Local 678, CIO, herein called the Union, against Bausch
& Lomb Optical Company, herein called the Respondent, and the two cases having been
duly consolidated, the General Counsel issued complaints alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act,
61 Stat. 136, herein called the Act. More specifically, the complaints alleged that, since on
or about May 15, 1953, the Respondent had refused to bargain collectively with the Union as
the exclusive bargaining representative of its employees in two appropriate collective bar-
gaining units . The Respondent in its answers to the complaints admitted that it had refused
to bargain with the Union, but, by way of avoidance, alleged for reasons to be stated below,
that the Union was not entitled to continued recognition as an exclusive bargaining agent within
the meaning of the Act. Pursuant to notice, a hearing was held on October 26 and 27, 1953,
at St. Louis, Missouri, before the undersigned, Arthur Leff, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were
represented at the hearing by counsel. Full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the issues was afforded all parties. At the
opening of the hearing a motion by the General Counsel was denied to strike certain affirmative
defenses alleged in the Respondent's answers. At the end of the General Counsel's case,
the Respondent moved to dismiss the complaints for want of proof. The motion was denied.
At the close of the case a motion by the General Counsel was granted to conform the pleadings
to the proof with regard to minor variances. The parties failed to avail themselves of the
opportunity accorded them to argue orally at the end of the hearing, but all parties filed
briefs thereafter.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Bausch & Lomb Optical Company, a New York corporation, with its principal office and
place of business in Rochester, New York, is engaged in the design, manufacture, sale,
and distribution of optical instruments and related products. Its out-of-State sales from its
Rochester, New York, facility, exceed $ 25,000 in value. The Respondent maintains branch
offices in various States, including a branch facility at St. Louis, Missouri, where it is engaged
in the manufacture and sale of eyeglasses and optical products. The St. Louis facility alone
is involved in these proceedings.
IL THE LABOR ORGANIZATION INVOLVED
The United Optical & Instrument Workers of America, Local 678, CIO, is an organization
in which employees participate and whichexists for the purpose, in whole or in part, of dealing
with employers concerning wages, rates of pay, hours of employment, or conditions of work.
III. THE UNFAIR LABOR PRACTICES
A. The issue
This refusal-to-bargain case presents a novel issue. It is characterized by the Respondent
in its brief as "a case with far reaching implications," and perhaps it is. Briefly stated the
issue is this: Does a duly certified union forfeit its right to employer recognition as a
statutory bargaining representative when it engages in a business venture of its own in the
same field as that of the employer?
B. The facts
The facts are not in dispute. For many years the Union has represented optical and optical
instrument workers in Kansas City, St. Joseph, and Springfield, all in Missouri, and in Evans-
ville. Indiana, as well as in St. Louis, Missouri, where the Respondent is located. The Union
has a total membership of over 360, of whom approximately 225 are to be found in St. Louis.
The Respondent employs about 22 employees at St. Louis, of whom 13 are craftsmen and the
rest stock and office employees and messengers.
The Union has represented employees of the Respondent and its predecessor, Riggs
Optical Company, since about 1936. Prior to 1953, the Union's right to represent such em-
ployees was unquestioned . Though no formal written contracts were executed, except possibly
in 1 year, oral agreements , supplemented by an exchange of correspondence and telegrams,
were reached as to wages , hours, and working conditions, and the relations between manage-
ment and the Union appear to have been harmonious.
In early 1953, questions concerning representation were raised by the Respondent. Con-
sequently, on March 26, 1953, the Union filed with the Board petitions for certification in
two units of the Respondent's employees. Thereafter, on May 12, 1953, agreements for consent
elections were entered into by the Union and the Respondent covering the following units
of the Respondent's employees, agreed upon by the parties, and here found, to be appropriate
for the purposes of collective bargaining:
1. All production employees in the finishing and surfacing departments, excluding
all stock and office employees, messengers, foremen, guards, and supervisors as
defined in the Act.
2. All stock and office employees, messengers in the stock and office department,
excluding all other employees, confidential secretary, guards, and supervisors as defined
in the Act.
On May 15, 1953, elections by secret ballot were conducted under the supervision of the Re-
gional Director of the Fourteenth Region in each of the above units. The tally of ballots in
BAUSCH & LOMB OPTICAL COMPANY 1565
the production unit showed that of 14 eligible voters, 13 cast valid votes, all for the Union.
The tally in the other unit showed that of 9 eligible voters, 6 voted for the Union, and 3
against. No objections tothetalliesortheconduct of the elections having been filed, the Board,
on May 25, 1953, certified the Union as the collective bargaining representative of the em-
ployees in each of the aforesaid appropriate units.
Following the certifications, bargaining negotiations were conducted by the Respondent and
the Union in eachofthe appropriate units until September 16, 1953. A number of meetings were
held during that period. The record does not detail what occurred at these meetings, nor is it
important to the issues of this case. Bargaining relations were broken off on September 16,
1953, when the Respondent's attorneys wrote the Union's attorney a letter reading as follows:
Dear Mr. Martin:
We have been directed by our client, Bausch & Lomb Optical Company to advise
you that theCompany mustdeclineto conduct further labor negotiations with United Optical
and Instrument Workers of America, Local 678, C. I. 0., until such time as the Union
shall divorce itself from the operation, management and control of United Optical Whole-
salers, Inc.
In this same connection, we have further been directed to advise you that the Company
is withdrawing all offers heretofore made to the Union during the course of labor nego-
tiations, including an offer to make any wage increase retroactive.
The Company will be willing to resume negotiations if and when the Union is no longer
a competitor of Bausch & Lomb. In our opinion, the law contemplates negotiations between
employer and employee, not between competing employers.
Very truly yours,
Cobbs, Blake, Armstrong,
Teasdale & Roos
By: J. Terrell Vaughan
After the Respondent's refusal to bargain, the Respondent's employees went out on strike.
Literature issued by the Union reflects that the strike was called because of the Respondent's
refusal to bargain and also because the Respondent was assertedly paying a wage rate of 8
cents an hour less than the Union's area standard. Since the beginning of the strike, and in
support of it, the Union has been engaged in picketing the Respondent's premises.' At the
time of the hearing, however, office employees, but not others, were crossing the picket
line with the approval of the Union.
The reason the Respondent has given for its refusal to bargain makes it necessary to
consider in some detail the facts relating to the organization of the United Optical Whole-
salers, Inc., its ownership and management structure, the objects for which it was incor-
porated, the character and extent of its business operations in relation to that of the Re-
spondent, and the degree to which the Union exercises control over the enterprise.
United Optical Wholesalers, Inc., hereinafter referred to as UOW, Inc., is a corporation
organized under the General and Business Corporation Act of Missouri. The decision to or-
ganize that corporation was reached in April 1953 at a meeting of union members, conducted
by the Union's attorney, that immediately followed a regular union membership meeting.
At that meeting, according to Joseph C. Williams, now the president of UOW, Inc., it was
proposed that the members form a corporation of their own to engage in the wholesale
optical business. Among the reasons given in support of the proposal were that the corporation
would create jobs for union members who were unemployed and possibly also earn money for
those members of the Union who bought stock in the corporation. Under the plan as proposed
only members of the Union could become stockholders in the corporation, and the number
of shares each member could own would be limited to 2--a restriction that has since been
modified by raising the outside limit to 6 shares per member. The plan having been approved
at the meeting, articles of incorporation were prepared and subscribed to by 3 incorporators,
as required by Missouri law. Included among the 3 subscribers were the Union's financial
iAmong the union members who have engaged in picketing are employees of United Optical
Wholesalers, Inc.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary-treasurer and a representative of the Union's international.2 A certificate of
incorporation was issued to UOW, Inc., on May 1, 1953.
Since its incorporation, UOW, Inc., has issued 336 shares of common stock, of which 332
are owned by 124 members of the Union, no 1 member owning more than 6.3 The shares
of stock, which are without par value, have been issued at $25 per share. Arrangements
for the sale of the stock were made by the Union. In addition to its promotion of the sale
of stock, the Union has assisted UOW, Inc., financially by obtaining loans for the corporation,
and by itself making open, unsecured loans to the corporation in substantial amounts. Thomas
E. Andert, the Union's president, who is alsopresident of its international, has also personally
made loans to UOW, Inc., on an unsecured basis.4
Management of the affairs of UOW, Inc., is only nominally lodged in its board of directors
and its corporate officers. All directors and officers of UOW, Inc., are members of the Union.
Two of the three directors are employed at retail optical concerns in the St. Louis area,
and the third is an employee of the Respondent where he is a shop steward. The three
officers are employees of retail optical concerns in St. Louis. None of the officers either work
for or are paid by UOW, Inc., nor do they participate in any active manner in the management
or operation of that corporation.
Although the day-to-day operations of UOW, Inc., are supervised by a general manager
employed by it, it is conceded by theUnion, and it is found, that the Union actually controls and
operates the business of that company.
UOW, Inc., began its business operations shortly after its incorporation. It has since been
engaged in the wholesale optical business in St. Louis. The business it conducts is in com-
petition with the Respondent as well as with all other wholesalers in that field in the St. Louis,
Missouri, business area. UOW, Inc., has 11 employees, including its bookkeeper and business
manager. Three of its employees are former employees of the Respondent, who left the
Respondent's employ in May to accept pos itions with it. Like other area employers in that field,
UOW, Inc., recruits its employees through the office of the Union. Unlike the others, however,
UOW, Inc., follows the practice of placing whomever the Union dispatches to it without ad-
ditional interview. UOW, Inc., has no collective-bargaining agreement with the Union, but
compensates its employees on the basis of the Union's established area standards.
There is no evidence that prior to the Respondent's refusal to bargain and the ensuing
strike, the Union ever used its position as a labor organization to solicit the flow of business
away from the Respondent or toward its own company. However, the record discloses that,
after the strike, the Union sent circular letters to area opticians and optometrists who
normally transact business with concerns in the wholesale optical field. In one, dated September
29, 1953, the Union informed the doctors that the Respondent's employees were on strike;
stated that it had been unsuccessful in the efforts it was pursuing to reach an honorable
settlement; expressed regret that its action might have caused the addresses unavoidable
inconvenience, listed in alphabetical order the names of 7 companies--1 of which was UOW,
Inc.--that were "union" and could provide good service; and emphasized that the listed com-
panies could supply theunion lable,which. itwas stated, was becoming "increasingly important
as the union campaign to have all union people in St. Louis request the label picks up mo-
mentum." In the other, dated October 15, 1953, the Union pointed out that its strike against
the Respondent was still in progress ; again expressed regret over any inconvenience that it
might be causing; stated that the Union was willing to negotiate a settlement of the dispute,
but that the Respondent was still refusing to bargain; once more listed in alphabetical order
the 7 "union" companies, including its own, that, it said, could provide good services along
with the union label; also listed this time 4 other companies, among them the Respondent,
which were stated to be -nonunion and unable to supply the union label; and closed without
more, except for an expression of thanks for anticipated cooperation.
2 The international representative, Arthur Albertstein, is also named in the articles of
incorporation as the person designated to receive legal service on behalf of the corporation.
Although not an official of the local Union, Albertstein has represented the Union in official
capacities. Thus, he was one of the Union's representatives in its negotiations with the
Respondent. He has also been one of the organizers of the picket- line activities at the Re-
spondent's plant following the Respondent's refusal to bargain.
3 The limitation of six shares to a stockholder is now established by the bylaws of UOW,
Inc.
4Andert is also a stockholder, owning six shares or less.
BAUSCH & LOMB OPTICAL COMPANY 1567
C. Analysis and conclusions
In this case there is no claim , and certainly no proof , that the Union bargained in bad
faith in its negotiations with the Respondent prior to the latter's disruption of the bargaining
relationship . There is no claim and noproof , for example , that the Union abused its represent-
ative position by seeking to extract from the Respondent information desired to serve
the competitive business interests of UOW, Inc .; none that the Union 's demands were designed
primarily to force upon the Respondent wage rates , hours of employment , or other working
conditions that would give UOW, Inc ., a competitive advantage; none , broadly speaking, that
the Union was actually bargaining for the welfare and in the interest of UOW, Inc ., rather than
for the welfare and in the interest of the represented employees as employees of the Re-
spondent . It is unnecessary therefore to decide what the rule would be if any such bad-faith
dea by the Union had been shown .5 As presented , the issue here is whether, absent a
specific showing of abuse in the bargaining relationship , the Union nevertheless became dis-
qualified to act as a bargaining representative simply because of its members ' stock owner-
ship in a competing business corporation , the actual operation and control of that competing
business corporation , the actual operation and control of that competing business by the Union,
and the financial obligations of that business to the Union and one of its officers.
No such basis for disqualification is to be found in the language of the Act . Sections 1,
7, and 8 (a) ( 1) clearly reflect the statutory intent of allowing employees an unrestricted right
to designate bargaining representatives of their own choosing . Sections 8 (a) (5) and 9 (a)
unequivocally and without qualification impose upon an employer the obligation to bargain
collectively with a bargaining representative designated by a majority of his employees
in an appropriate unit. The term "representative " is defined in Section 2 (4) as including
any individual or labor organization . And the term "labor organization" is defined in Section
2 (5) as including "any organization of any kind ... in which employees participate and which
exists for the purpose , in whole or in part, of dealing with employers concerning grievances,
labor disputes , wages , rates of pay , hours of employment , or conditions of work. " (Emphasis
supplied .) The Act imposes no restrictions upon the qualification of a labor organization
to act as a bargaining representative other than the procedural restrictions to be found in
Section 9 (f), (g), and (h) relating to the filing of financial data and non-Communist affidavits
as conditions precedent to the entertainment by the Board of representation petitions or the
issuance by It of unfair labor practice complaints.6
It does not matter that the Respondent 's refusal to bargain here was not unconditional,
but was stated to be subject to the Union 's divestiture of its operation, management , and con-
trol of UOW, Inc . For the Act makes bargaining compulsory as to "rates of pay , hours of
employment," and neither a union nor an employer may condition bargaining , where the
statutory obligation otherwise exists , upon the acceptance by the other of some condition
outside the compulsory bargaining area of "terms and conditions of employment."7
To support its position that the Union was disqualified as a bargaining agent by virtue of
its interest in a competing business , the Respondent advances two main arguments . It argues,
first, that as a matter of statutory construction the Union could no longer be regarded as an
5Cf., Section 8 (b) (3) of the Act; Times Publishing Company, et al., 72 NLRB 676, 682,
683.
6It has been held, however, that even noncompliance by a labor organization with the
filing requirements does not relieve an employer of his statutory obligation to bargain
collectively with the chosen representative of his employees during the noncompliance
period, though the Board 's processes to enforce that obligation cannot be invoked until
compliance has been had. See, New Jersey Carpet Mills, Inc., 92 NLRB 604; West Texas
Utilities Co., Inc., v. N. L. R. B., 184 F. 2d 233 (C A., D. C.), cert. denied 341 U. S.
939; N. L. R. B. v. Tennessee Egg Co., 201 F. 2d 370 (C A. 6); N. L. R. B. v. Reed &
Prince Mfg. Co., 205 F. 2d 131 (C. A. 1). cert. denied November 16, 1953.
7 See, e, g., N. L. R. B. v. Dalton Telephone Co., 187 F. 2d 811 (C. A. 5), conditioning
bargaining upon union becoming an entity subject to suit in State courts; N. L. R. B. v,
George P. Pilling & Son Co., 119 F. 2d 32 (C. A. 3), insisting upon union first organizing
competitors in the industry; Eppinger & Russell Co., 56 NLRB 1259, insisting upon union
registration under a State statute; N. L. R. B. v. Tower Hosiery Mills, Inc., 180 F. 2d 701
(C. A. 4), cert. denied 340 U. S. 811, insistence on an indemnity bond; N. L R. B v. Aldora
Mills , 180 F . 2d 580 (C. A. 5), insistence on union chartering local organization.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee representative , but must be viewed as an "employer" within the meaning of the
Act. It argues, secondly, that to require an employer to bargain collectively with a labor
organization that also stands in the position of a competing employer would contravene the
basic policies of the Act and be opposed to the public interest.
The argument that under the statute a labor organization may not be an employee represent-
ative within the meaning of the Act if in connection with another business enterprise , separate
and apart from that of the employer of the represented employees, it exercises employer
functions, is I think an untenable one. The statutory definitions of "representative" and "labor
organization ," already adverted to, make it clear that a labor organization may be an em-
ployee representative even though it does not exist wholly for the purpose of dealing with em-
ployers concerning matters affecting the relationship of represented employees with their
employers. In addition, the statutory definition of "employer" recognizes that a labor
organization in different capacities may be an employee representative in certain relationships
and an employer in others. 8 The two are not necessarily mutually inconsistent, as the Re-
spondent appears to contend. Though the Union in this case might be regarded as employer in
the functioning of the business of UOW, Inc., its statutory position visa vis the Respondent
is still that of a representative of the Respondent's employees.
The Respondent has not documented its policy argument except by reference to the "Decla-
ration of Policy" appearing as a preamble to the Labor Management Relations Act, 1947, and
to the "Findings and Policies" contained in Section I of the amended National Labor Relations
Act. My attention has not been directed to any prior case or any legislative history bearing
precisely on this question, nor has any been revealed by my independent research. Apart
from one of the statutory aims, declared clearly enough--that of avoiding industrial strife
burdening commerce by, among other things, protecting employees in "the designation of
representatives of their own choosing for the purpose of negotiating the terms and conditions
of their employment or other mutual aid and protection"--I find nothing in the cited policy
declarations that sheds significant light on the subject. The Respondent in its brief points
particularly to language in the "Declaration of Policy" to the effect that it was a congres-
sional purpose and policy to prescribe the legitimate rights of employers, employees, and
labor organizations in their relations with each other, and, also, to define and proscribe
practices on the part of labor, as well as of management, that are inimical to the general
welfare and the public interest. The Respondent argues that to allow a labor organization to
bargain for employees of an employer when it is engaged in a business in competition with
that employer would jeopardize the public interest, and that it must be presumed, therefore,
in light of the policy declaration to which it points, that Congress intended to bar any such
practice. But the difficulty with that argument is that it begs the question. There is nothing
in the policy declaration itself, and certainly nothing in the implementing statutory provisions
by which Congress specifically defined the legitimate rights and proscribed the practices
with which it was concerned, to indicate that Congress considered the practice of which the
Respondent complains as one opposed to the public interest --or, for that matter, that it
considered the question involved at all. It may well be that, had Congress thought of it, it
might have reached the conclusion for which the Respondent contends. But I think it would
be presumptuous surmise to use that as a basis for a finding of congressional intent, par-
ticularly where, as here, the bargaining obligations expressly spelled out by the statute are
clear and unambiguous on their face and admit of no exception.
The Respondent in its brief points to various evils it says may ensue if a labor organization
interested in a business of its own is allowed to represent the employees of a competing
business. Among those it mentions are that a union in such a position may seek to favor the
competitive position of its own business by means of the economic demands it makes on
others; that during a strike the Union's company could take over business formerly performed
by the struck employers, that such a union might utilize its combined positions of labor
organization and business entrepreneur to engage in practices involving restraints of trade
in violation of State and Federal laws; that such a situation could make for divided loyalties
among employees of competing companies who may have a stake in the success of the union's
venture; and that such a situation generally makes for bad relations between management
and labor, conducive to economic conflict.
8Section 2 (2) of the Act, to the extent here pertinent, provides: "The term 'employer'
.. shall not include.... any labor organization (other than when acting as an employer)...."
BAUSCH & LOMB OPTICAL COMPANY 1569
So far as the instant case is concerned , the abuses the Respondent fears are still mainly
in the realm of speculation,' though the existence of a possibility that they might occur
cannot therefore be gainsaid . To many of the points made by the Respondent answering
arguments might be urged. Thus, to the argument that the Union would be in a position to
make demands on the Respondent to place it at a disadvantage in relation to UOW. Inc., it
can be said that the Respondent would not be obligated to agree to any such terms. See
Pueblo Gas and Fuel Co. v. N. L. R. B., 118 F. 2d 304 (C. A. 10).'o To the argument that the
Union during a strike would be in a position to take over business of the Respondent, it
might be said that there is always a risk to an employer of loss of business to competitors,
whoever they may be, in any strike situation, just as there is a risk to strikers of loss of
jobs through replacement . To the argument that the Union might utilize its position to engage
in illegal restraints of trade or other unlawful conduct , the answer might be made that, if so,
the remedy is to be found in the enforcement of the other laws if and when violations of them
occur, rather than by the present denial to the employees, in advance of any abuse, of their
statutory right to bargain through a representative of their own choice . See N . L. R. B. v.
Jones & Laughlin Steel Corp., 331 U. S. 416, at 430. To the argument that the situation may
make for employee infidelity, it might similarly be said that the remedy for that is to be
found in the employer's right to discharge. Ibid. To the argument, generally, that repre-
sentation of employees by a labor organization also interested in a competing business is
fraught with the possibilities of abuse, it might be said that simply because abuse may
occur, it is not to be assumed that it will occur, and that in any event the mere possibility
of abuse does not qualify as a legal basis for restricting the Respondent's employees in
their statutory right to bargain through a representative of their own choice. See N. L. R. B.
V. E. C. Atkins & Co., 331 U. S. 398, 405; N. L. R. B. v. Jones & Laughlin Steel Corp.,
supra.
However, I do not think it lies within the province of the Board to measure the relative
force of the competing arguments that may be made on this point, and to determine whether
on balance the potentialities of possible harm that lurk in employee representation by a
labor organization, itself engaged in a business like that of an employer with whom it would
bargain, so outweigh the unequivocally declared legislative policy of granting full freedom
to employees in their choice of bargaining representatives, as to warrant the Board in pro-
nouncing, when Congress has not, that it would be contrary to the public interest to allow
bargaining by such a labor organization . What the Respondent 's argument really comes down
to is a plea for the desireability of engrafting on the Act an exception to those provisions,
summarized above, that now so clearly define without room for qualification bargaining
rights and obligations. But that is a plea that should be addressed to Congress. For it is the
function of Congress, not the Board, to determine what is in the public interest, and to
create exceptions or qualifications at odds with the plain terms of the Act. See Packard
9 The only actual "abuse" thus far to which the Respondent in its brief is able to point
is the current strike and picketing of the Respondent's business while the UOW, Inc., is
continuing to operate. As has been found, however, the strike was the result of the Re-
spondent's refusal to bargain. If anything, the current strike situation merely proves the
correctness of the Act's policy finding that interference with employees' rights to bargain
collectively through representatives of their own choosing leads to industrial strife.
>o In the cited case, the employer defended a refusal- to-bargain complaint on the ground
that the union there was incompetent to act as a bargaining agent because a majority of its
members were employees of a rival industry. The court, enforcing the Board's order
stated:
Petitioner asserts that the Local Union is an inappropriate bargaining unit because
a majority of its members are employees of a rival industry it argues that this union
might attempt to force upon Petitioner bargaining terms advantageous to an electric
utility and therefore disadvantageous to a competing utility engaged in the distribution
of natural gas. An employer is bound to deal with any union which represents a majority
of its employees, regardless of whether it also represents employees in a rival industry.
The argument that such a union may force bargaining terms on Petitioner disadvan-
tageous to itself is untenable, because under the Act an employer is not obligated to
agree to any terms proposed by the bargaining agency disadvantageous to itself.
339676 0 - 55 - 100
157 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motor Car Co. v. N. L. R. B., 330 U . S. 485 , 490. My conclusion here is perhaps best sum-
marized by the following comment of the Supreme Court in the Packard case, made in
response to the contention of the company in that case that It would be bad labor -manage-
ment and industrial policy to require bargaining on behalf of foreman ii (at p. 493):
However, we may appraise the force of these arguments as a policy matter, we are
not authorized to base decision of a question of law upon them . They concern the wisdom
of the legislation ; they cannot alter the meaning of otherwise plain provisions.
For the reasons stated above, I reject the Respondent 's contention that under the circum-
stances of this case the Union was disqualified from acting as the bargaining representative
of its employees in the appropriate units. On the record as a whole , I conclude and find
(1) that at all times since May 15, 1953, the Union was, and now is, the exclusive bargaining
representative of all employees in each of the units found above , within the meaning of the
Act; (2) that, by refusing tobargainwiththe Union as such exclusive bargaining representative
on September 16, 1953, and thereafter , the Respondent violated Section 8 (a) (5) of the Act;
and (3) that, by such conduct, the Respondent also interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act.
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
Since it has been found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act . It having been found that the Respondent has
refused to bargain collectively with the Union as the exclusive representative of its em-
ployees in appropriate units , it will be recommended that the Respondent bargain on request
with the Union.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. United Optical & Instrument Workers of America, Local 678, CIO, is a labor organiza-
tion , within the meaning of Section 2 (5) of the Act.
2. The following constitute units appropriate for the purpo ;°s of collective bargaining,
within the meaning of Section 9 (b) of the Act:
(a) All production employees in the finishing and surface departments of the Respondent's
St. Louis, Missouri, facility, excluding all stock and office employees , messengers, foremen,
guards , and supervisors as defined in the Act.
(b) All stock and office employees, ' messengers in the Respondent's St. Louis, Missouri,
facility, excluding all other employees , confidential secretary , guards, and supervisors, as
defined in the Act.
3. At all times since May 15, 1953, theUnion was, and now is , the exclusive representative
of all employees in each of the aforesaid units for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing since September 16, 1953, to bargain collectively with the Union as the
exclusive representative of all employees in each of the units described in paragraph 2,
above, the Respondent has engaged in unfair labor practices within the meaning of Section 8
(a) (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 (a) (1) of the Act.
n The Packard case arose prior to the Taft- Hartley Act, which excluded supervisors
from employee protection.
NIAGARA BEER DISTRIBUTORS ASSOCIATION 1571
6. The aforesaid unfair labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
Recommendations omitted from publication.
APPENDIX 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 engage in any acts in any manner interfering with the efforts of
United Optical & Instrument Workers of America , Local - 678, CIO , to negotiate for
or represent the employees in the bargaining units described below.
WE WILL bargain collectively upon request with the above -named Union as the
exclusive representative of all employees in each of the bargaining units described
below with respect to wages , rates of pay, hours of employment, and other conditions
of employment , and if an understanding is reached , embody such understanding in a
signed agreement . The bargaining units are:
1. All production employees in our finishing and surface departments, excluding
all stock and office employees, messengers, foremen, guards, and supervisors, as
defined in the Act.
2. All our stock and office employees, messengers, excluding all other employees,
confidential secretary, guards, and supervisors, as defined in the Act.
BAUSCH & LOMB OPTICAL COMPANY,
Employer.
Dated ............ .... By.................. ............. .. ...................... ..... ...........
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
NIAGARA BEER DISTRIBUTORS ASSOCIATION' and LOCAL
195, INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORK-
ERS OF AMERICA, CIO, Petitioner. Case No. 3-RC-1364.
June Z8, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a hearing was held before John M.
Shea, Jr., hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1, The Employer, Niagara Beer Distributors Association
(hereinafter referred to as the Association), is an unincorpo-
iThe name of the Employer appears as amended at the hearing.
108 NLRB No. 217.