Bausch & Lomb Optical Co.

In the Matter of BAUSCH & LOMB OPTICAL COMPANY and OPTICAL AND INSTRUMENT WORKERS ORGANIZING COMMITTEE , C. I. O. In the Matter of BAUSCH & LOMB OPTICAL COMPANY and UNITED ELEC- TRICAL, RADIO AND MACHINE WORKERS OF AMERICA, C. I. O. Cases Nos. 3-C--810 and 3-C-854., respectively.Decided January 15, 1947 Mr. Cyril W. O'Gorman, for the Board. Nixon, Hargrave , Middleton c6 Devans, by Mr. Arthur L. Stern, of Rochester, N. Y., f or the respondent. Mr. W. J. Widman, of Rochester, N. Y., for the Optical Workers. Mr. Seymour Linfield, of New York City, for the UE. Mr. Jack J. Mantel, of counsel to the Board. DECISION AND ORDER On August 2,1946, Trial Examiner David Rein issued his Intermedi- ate 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 Interiiiediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate-Report and a supporting brief. On November 14, 1946, the Board, at Washington, D. C., heard oral argument in which all parties participated. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions .and brief, and the entire record in the case, and finds merit in the respondent 's exceptions. 1. The complaint in this proceeding alleges that the respondent "prevented union organizers from distributing ... union literature to its employees on a public street . . . and forcibly ejected union organizers from said street for the purpose of discouraging member- ship in the unions and to frustrate . . . self-organization of its em- ployees. .." The respondent admits, as the complaining unions 72 N. L R B No 21. 132 BAUSCH & LOMB OPTICAL COMPANY 133 charge, that on three occasions it excluded union organizers from Suntru Street, a public street adjacent to its plant, and that its guards knew that the persons excluded were union representatives. The three instances involved the exclusion of two UE organizers, once in November 1945 and again in January 1946; and of an Optical Work- ers' representative in December 1945. The record discloses that since February 1942, at the instance of War and Navy Department officials who had inspected the respond- ent's plant to determine whether production of war material at the plant was adequately protected against sabotage, the respondent has maintained a guard force at the Suntru Street entrance with instruc- tions to prohibit unauthorized persons from entering that street.' Those authorized to enter were employees of the respondent and of the neighboring gas company, suppliers of material, and others hav- ing proper credentials from the War or Navy Department. Numer- ous persons not included in these categories have been excluded from Suntru Street by the guards during the war period and thereafter, pursuant to the respondent's instructions.2 The Trial Examiner concluded that the respondent violated Section 8 (1) of the Act by its conduct in excluding the union organizers on the ground that the respondent discriminated against the unions by excluding their representatives, while permitting access to others, not employees or suppliers, and that the respondent's purpose was to interfere with union organization of its employees. In so finding, the Trial Examiner relied largely on testimony indicating that an Optical Workers' representative was on two occasions in October 1945, permitted by the guards to enter Suntru Street and to distribute union literature to the respondent's glass plant employees but way prohibited from engaging in such conduct in December 1945, after the Optical Workers had filed with the Board a petition for certifica- tion of representatives 3 under Section 9 (c) of the Act. The Trial Examiner also relied on the testimony of three witnesses who testified without contradiction that, on separate occasions after November 5, 1945, they drove automobiles past the guard, proceeded to the end of the street, turned around, and drove Out.4 However, on occasions when automobiles sped past the guard at the Suntru Street entrance, he would customarily telephone the guards stationed at the other end of the street to be on the alert for unauthorized persons. In addition, 1 Suntru Street is a short dead-end street affording access only to the respondent' s glass plant and that of a gas company. 2 After V-J Day, the respondent continued to guard Suntiu Street because of its current work under contracts with the United States Government. 3 The petition was filed on November 5, 1945. 4 One of the three witnesses testified that he, his wife, and children sat in a packed car on Suntru Street and watched the glass plant for 10 or 15 minutes without being approached by any of the respondent's guards Suntiu Street slopes and winds so as to make visibility difficult from either end of the street. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other duties occasionally required the Suntru Street guard to absent himself from that point for as much as 25-30 minutes at a time. The three witnesses referred to admitted in their testimony that they engaged in the conduct described above, as a test "to see if they would be stopped" and two of them testified that they were UE members employed at another plant. The respondent permitted the unions at all times to distribute litera- ture at all the plant entrances including that at Suntru Street. Also, automobiles carrying employees slowed down sufficiently at the Suntru Street entrance to permit distribution of literature to the occupants. Unlike the Trial Examiner, therefore, we find that, by forbidding union organizers to distribute literature on Suntru Street, the respond- ent did not deny the unions substantial access to its employees. To support his conclusion, the Trial Examiner cited the United Aircraft case,5 in which the Board found that the employer had dis- criminatorily excluded union organizers from a public street, in view of disparity of treatment by the Employer in excluding union organi- zers and permitting others, such as vendors and tradesmen, to use the street. In the present case, however, there is no showing that it was the respondent's practice to permit persons without credentials, other than union organizers, to use Suntru Street. Under the circumstances, we are of the opinion that the record contains insufficient evidence to establish that the respondent, in ex- cluding the union organizers from Suntru Street, discriminated against them by reason of their status as union representatives or that the respondent excluded them for the purpose of discouraging union membership or to frustrate self-organization of its employees, as alleged in the complaint. We shall therefore dismiss that allega- tion in the complaint. 2. We also disagree with the Trial Examiner's conclusion that the respondent violated Section 8 (1) of the Act by distributing to its employees a pamphlet entitled, "Let's Face the Facts." 6 The pamph- let on its face contains no coercive statement, but consists essentially ,of statements disparaging unions and of expressions of opinion as to the disadvantages of labor organization,-statements which, standing alone, are protected by the constitutional guaranty of free speech. Nor are the statements coercive when evaluated in the context in which they were made. We have found that the respondent did not engage in an unfair labor practice by excluding the union organizers from Suntru Street. Although in another proceeding,' upon a charge filed by the Pattern Makers League of North America, AFL, we have found 5 Matter of United Aircraft Corporation, Pratt d Whitney Aircraft Division, 67 N. L. R B. 594. The pamphlet is set forth as Appendix "A" of the Intermediate Report. T Matter of Bausch d Lomb Optical Company, 69 IN L. R B. 1104. BAUSCH & LOMB OPTICAL COMPANY 135 that the respondent's supervisors made statements to employees which were coercive within the meaning of Section 8 (1) of the Act, those statements were made over 7 months before the pamphlet was issued and were uttered only to a small group of approximately 11 pattern makers employed in the respondent's wholly separate pattern shop. Our decision in that case did not issue until August 1946, long after the distribution of the pamphlet in question. In our opinion, there- fore, the surrounding circumstances here are not such as to impart into the pamphlet a coercive meaning 8 In view of the foregoing, we shall dismiss the complaint in its entirety. 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 complaint issued herein against the respondent, Bausch & Lomb Optical Company, Rochester, New York, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Cyril W. O'Gorman, for the Board. Nixon, Hargrave, Middleton d Devans, of Rochester, N. Y., by Mr. Arthur L. Stern, for the respondent. Mr. W. J. Widman, of Rochester, N. Y., for the Optical Workers. STATEMENT OF THE CASE Upon charges duly filed by Optical and Instrument Workers Organizing Com- mittee, C. I. 0., herein called the Optical Workers, and United Electrical Radio and Machine Workers of America, C. I. 0., herein called the UE,1 the National Labor Relations Board, herein called the Board , by its Regional Director for the Third Region ( Buffalo, New York ), issued its complaint dated April 11, 1946, against Bausch and Lomb Optical Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint on the consolidated cases accompanied by notice of hearing thereon were duly served upon the respondent , the Optical Workers and the UE. With respect to the unfair labor practices the complaint alleged in substance that the respondent had interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by vilifying,' disparaging and expressing disapproval of the Optical Workers and the UE, interrogating its employees concerning union affiliation and urging, persuading and warning its employees to refrain from assisting , becoming or remaining members of the Optical Workers or the UE. The complaint further alleged that the respondent had prevented union organizers from distributing handbills 8 Member Houston does not consider the 7 months ' interval alluded to above as deci- sive, and does not rely thereon in finding the pamphlet free of illegality. IThese cases were consolidated by the Board in an order dated Maich 27, 1946. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other union literature to its employees on a public street and forcibly ejected union organizers from said street for the purpose of discouraging membership in both the Optical Workers and the UE and to frustrate the self-organization of its employees as guaranteed in Section 7 of the Act. The respondent thereafter filed with the Regional Office a motion for a Bill of Particulars, which was replied to in a letter by counsel for the Board. At the hearing, the respondent agreed that his request for a Bill of Particulars had been satisfied by this exchange of correspondence In its answer, the respondent denied that it had engaged in any of the unfair labor practices alleged in the complaint, and set up as an afiirnlative defense that any action it had taken in excluding individuals from in and around its property had been taken pursuant to the laws of the State of New Yoik and an older by the New Yolk State War Council. Pursuant to notice a hearing was held on May 7 and S. 1946, at Rochester, New York, before the undersigned, the Tiial Examiner dnl} designated by the Chief Trial Examiner The Board and the respondent were represented by counsel and the Optical Workers by its Regional Director Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues was affoided all parties At the hearing. the complaint was amended, on motion by counsel for the Board, to strike the allegation that the respondent had interrogated its employees concerning their union affiliation. Motions of the respondent to dismiss the complaint made both at the close of the Board's case and at the close of the hearing were denied by the undersigned. A motion by counsel for the Board to strike the respondent's affirmative defense was also denied At the close of the hearing, a motion of counsel for the Board to conform the pleadings to the proof as to dates, spelling of names and other minor details was granted. Although afforded an opportunity to do so, none of the parties argued orally. Thereafter the iespondent filed a brief with the undersigned. 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 RFSPONDi,NT Bausch and Lonib Optical Company is a New York corporation with its prin- cipal office and place of business in Rochester, New Yoik, where it is engaged in the design, manufacture, sale and distribution of optical instruments and re- lated products During the 12 months preceding the hearing the respondent purchased raw materials of a value in excess of $1,000,000, of which in excess of 25 percent was shipped to the respondent from points outside the State of New York. During the same period the respondent's sales amounted in value to more than $1,000,000 of which in excess of 50 percent was shipped to points outside the State of New York. H. THE ORGANIZATIONS IN'.OLVFD Optical and instrument Workers Organizing Committee, C I. 0 , and United Electrical Radio and Machine Workers of America. C I 0 , are laboi oi ganiza- tions admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A. The exclusion, of labor of ganizei s (i ont Srenti is Street The chief issue in this case arises from the exclusion by the respondent of organizers both of the UE and of the Optical Workers from Suntru Street in the BAUSCH & LOMB OPTICAL COMPANY 137 'City of Rochester , New York. The facts concerning the exclusions are substan- tially undisputed The irsnes presented are legal ones These issues may be -stated as follows : ( 1) Did the respondent 's exclusion of these organizers interfere with the organizational tights of the employees as guaranteed in Section 7 of the Act ; ( 2) if such inteileience is found, was the respondent's action excused because of the laws of the State of New York. or instructions received by the .respondent from the War and Navy Departments. Suntru Street , was until March 12, 1946,2 a public street in the City of Rochester. It is a short street , approximately 1000 feet long and 30 feet wide. It begins at Bausch Street and runs downhill where it comes to a dead end at the respond- ent's glass plant on the Genessee River The street gives access only to the respondent' s plant and to the property of the Rochester Gas & Electric Company, which propel ty is used sololy for the purpose of supplying gas to the respondent The respondent adnuts that an organizer for the Optical Workers was excluded from this street and prevented from distributing leaflets on the street in Decem- ber of 1945, and that organizers from the Ul7 were prevented from distributing leaflets on the street in November 1945 and again in January of 1946 It argues, However , that this exclusion chid not, in fact , interfere with the organizational activities of these unions, since it permitted the organizers of both unions to dis- tribute union literature at various other entrances to the respondent's plant and at the entrance to Suntru Street, at its junction with Bausch Street . The em- ployees of the respondent 's glass plant enter this plant through a gate at the foot ,of Suntru Stieet If is necessary for them , in order to reach this entrance, to turn down Suntru Street at the corner of Bausch and Suntru Streets either on foot or in an automobile The respondent argues, accoidingly, that since these organizers were permitted to distribute leaflets at the juncture of Bausch and Suntru Streets, they had full access to the employees at this point , and therefore their organiza- tional activities were not interfered with by refusing to permit them to go down Suntru Street But the record shows that the access to the employees afforded the organizers at the junction of Bausch and Suntru Streets ivas not adequate. A large number of the employees proceed to work by automobile , turn at the corner -of Bausch and Suntru Streets and proceed down Suntru Street to a pankiug lot where they park their cars before entering the plant The automobiles do not -come to a complete stop at the corner of Bausch and Suntru Streets, but slow down only sufficiently to turn the corner and to permit the guards to recognize a metal identification tag issued to employee automobiles. Thus , although the union org.imzeis might have been able to teach these employees proceeding clown Suntiu Street on foot , it is apparent that they could not feasibly have passed out union literature to the employees pipceeding in automobiles Obviously, the place most satisfactory for the distribution of leaflets was on Suntiu Street itself at the point where the employees leave their cars and walk on foot to the plant gate It is thus evident , and the undersigned finds, that the exclusion of the union organizers from Suntru Street amounted to a substantial denial of access by the union organizers to its employees and constituted an interference with the rights of its employees as guaranteed in Section 7 of the Act' The respondent argues further that even if the exclusion of the union or- ganizers constituted an interference with organizational activities, the respond- ent's action was justified since the action was taken in accordance with an order of the New York State War Council pursuant to the provisions of Article 3 On i arch 12, 1946 , Suntru Street was abandoned as a public street by the City of Rochester and since that time has been the private property of the respondent. 3 See N. L. R. B v. Foil Motor Co, 114 F. (2d) 905, 910 (C. C. A. 6), enf'g as modified 14 N. L. R. B. 346, cert. den 312 U. S. 689. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI of the New York State War Emergency Act. In this connection, the respond- ent presents the further argument that it is not the province of the Board to interpret the laws of the State of New York, but that the respondent should be protected if it acted in good faith pursuant to its interpretation of such laws, even if such interpretation was erroneous. This latter argument of the re- spondent is clearly without merit. The respondent, as found above, has, by the exclusion of the union organizers from Suntru Street, engaged in a violation of the Act. It might conceivably argue, as it does here, that this violation should be excused because it acted under the compulsion of some other law,' but is can hardly set up as a defense to a violation of the Act that it acted under an erroneous belief that it was compelled to do so by some other law. Such a defense is particularly inapposite in the present case, where it is evident from the record, that the respondent took no steps without first consulting counsel. Ob- viously the respondent's defense that is was acting in accordance with the laws of the State of New York must fail if these laws did not, in fact, authorize such action. Upon examination of the statute involved, the undersigned is convinced and finds that the respondent's action was not justified by the statute and the order of the State War Council. Article VI of the New York State War Emergency Act sets forth a procedure for the securing of permission for the posting of property An entirely different section sets forth the procedure for the closing or restricting the use of a public highway, and provides for a different type of notice to be posted. In the present case, the respondent applied for and received permission to post its property, but never applied for and consequently clearly never received permission to close Suntru Street It should be further noted that Section 69 of the New York State War Emer- gency Act provides that Nothing in this Article shall be construed to impair, curtail' or destroy the rights of employees and their representatives to self-organization, to form, join or assist labor organizaions to bargain collectively through repre- sentatives of their own choosing and to engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid or protection. This language is substantially that set forth in Section 7 of the National Labor Relations Act. Its purpose to prevent any construction of the War Emergency Act which would cause the Act to conflict with the N. L. R. A. is apparent. This section thus completely refutes the argument of the respondent, since it provides It is obvious that in the event of a conflict between the National Labor Relations Act and the laws of the State of New York , the Act must, in the absence of some extraordi- nary circumstance, prevail. Clearly, the Board could not permit a State Act to contravene the rights guaranteed in the National Labor Relations Act. Hill v. Florida, 325 U. S 538. Matter of Eppinger and Russell Company, 56 N. L. R. B. 1259 , and cases therein cited 5 The respondent's argument that the permission to post notices "on and around", its property included authority to close the street is without merit in view of the specific pro- visions in the Statute-§§ 62 and 63, which provide for closing or restricting highways The respondent also argues that the action of the war Council in notifying the city officials of the authority to the respondent to post, is an indication that this included authority to close Suntru Street, on the ground that the statute provides for notification to city officials only where the closing of a public street is involved This argument is without merit. By § 68, local peace officers are authorized to enforce "no entry" postings made pursuant to § 66. Under these circumstances, it is only reasonable that the local authori- ties should be informed of any order or ruling even if the closing of a public street was not involved. BAUSCH & LOMB OPTICAL COMPANY 139 that the Act should not be construed or applied so as to conflict with the N. L. R. A. 'Thus, even if the respondent had been granted authority to close Suntru Street, this authority would, under the provisions of the War Emergency Act, be subject to the rights of the employees as guaranteed in Section 7. Indeed even in the absence of such a saving provision, since a State law cannot nullify a national act, it would be necessary to read this limitation ins It is obvious, therefore, that the respondent's defense that its action in excluding union organizers from Suntru Street was taken pursuant to the New York State War Emergency Act and an order of the State War Council is without merit, and the undersigned so finds. The respondent further contends that its actions were taken pursuant to instructions from the War and Navy Departments. However, no showing is made in this record that any official of the War or Navy Department ever re- quired the respondent to exclude union organizers from Suntru Street' It is further evident that the exclusion of union organizers was not required by the needs of military security. The union organizers did not attempt to enter the respondent's plant where they might have obtained military secrets or in any way interfered with military production It would have been a fairly simple matter for the respondent, if it felt that security needs required, either to have someone observe the actions of the union organizers while distributing leaflets, or to check the credentials of the union organizers in order to determine if their purpose was a legitimate one. Finally, the record shows that the respondent was not motivated in its exclu- sion of these union organizers by the needs for military security. The respond- ent did not consider it an absolute necessity to exclude all individuals, other than employees or suppliers, from Suntru Street. On several occasions cars without any credentials proceeded down Suntru Street without being stopped by any guard. The guard in charge of the post at the head of Suntru Street testified that he was frequently away from this post for as long as 25 to 30 minutes. Obviously, during this period, any individual would have been free to enter Suntru Street. On one occasion, an individual with his wife and chil- dren sat in a parked car on Suntru Street and watched the glass plant for 10 to 15 minutes, without being approached by any of the respondent's guards. Moreover, organizers for the Optical Workers were permitted to distribute leaflets unmolested on Suntru Street on two separate occasions in October 1945, and were subsequently prevented from distributing leaflets only after a petition for certification had been filed by the Optical Workers. And in November 1945, organizers for the UE distributed leaflets on Suntru Street for 15 to 20 minutes before being excluded. It is apparent from these facts that the subsequent exclusion of union organizers was not part of a uniform policy to exclude all "unauthorized persons," but was, on the contrary, part of a policy directed exclusively against union organizers.' The undersigned accordingly finds that the respondent's exclusion of union organizers from Suntru Street was not authorized by the laws of New York 6 See footnote 5, supra. ' This contention of the respondent raises implicitly the problem of the authority of the War or Navy Departments to override the laws of the state or the federal government. That responsible officials of these departments did not attempt to assert such authority is shown by the evidence that it was the military officials that advised the respondent to apply for permission to post its property under the provisions of the New York State War Emergency Act. 8 See Matter of United Aircraft Corporation, Pratt & Whitney Aircraft Division, 67 N. L. R. B. 594. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State or the order of the New York State War Emeigency Council, and that such exclusion was in violation of the National Labor Relations Act The undersigned further finds that the respondent applied a discriminatory policy in excluding union organizers, and that such a policy was applied for. the pur- pose of discouraging membership in both the Optical Workers and the UE, and of preventing self-organization by its employees. The undersigned finds that, by such acts, the respondent interferred with, restrained and coerced its employ- ees in the exercise of the rights guaranteed in Section 7 of the Act B The respondent's circular On about December 3, 1945, shortly after a petition for an election was filed by the Optical Workers,' the respondent distributed to its employees a pamphlet entitled "Let's Face the Facts" This pamphlet was distributed to the eniplo}ees in the plant by supervisors during working hours The pamphlet, which is set out in full in Appendix A, is a bitter attack against both the Optical Workers and the U E It contains, moreover, a clear intimation that the respondenC s projected expansion program and continued employment for its employee., would be threatened by their self-organization into either of these hibor organiz itiois The respondent argues that the views set forth in this pamphlet are protected by the constitutional guaranty of fieedoii of speech. and points to the assertion in the pamphlet that the respondent would in any eNent abide by the re,ulrs of a Board election. Accordingly, the respondent aigues that it was piivileged to express its views on labor organizations so long as it did not engage in or threaten to engage in economic reprisals But the whole gist of the respond- ent's circular in this case constituted a warning to the uniploNees that the security of their employment depended upon their refusal to affiliate with either of the labor organizations campaigning for their suppoi 1 Such a threat has been held to constitute in unfair labor practice and to fall without the constitu- tional guaranty of freedom of speech 10 Moreover, it is an established doctrine that any expression of views concerning: labor organizations by an employer must be evaluated in the context in which the statements are made" The respondent has, in the present case, as found above, refused to permit union organizers to have full and free access to its cur ployees for the purpose of distributing union literature, while the respondent on the other hand took full advantage of its control over its employees to Propagandize against labor organizations in the plant during working hours Further, in a recent case decided by the Board,12 the Board found that the respondent, in its dealings with another labor organization, after signing, a consent election agree- ment, used its economic power to prevent a free choice of representatives Viewed in this context, the respondent's assertion that it would abide by the results of the election carried no assurance to its employees that they were free from 9 This election was never held because of the subsequent filing of charges of unfair labor practices bi both the U E and the Optical workers 1° See Matter of A J. Showalter Company, 64 N L. R B 573. Matter of Goodall Cone- p o ny, 68 N L R B 252. 11 See N L R B v Virginia Electric & Power Company. 314 U S 469, 479 , N L R B v. M B Blatt Co, 143 F. (2d) 268 (C C. A 3), cert denied 323 U S 774 Matter of Re- liance Manufacturing Company of Hattiesburg, Mississippi, 67 N L R. B 515, Matter of Grove Regulator Company, 66 N L. R B 1102 12 Matter of Bausch & Lomb Optical Company, 69 N. L R. B 1104. BAUSCH & LOMB OPTICAL COMPANY 141 economic reprisals; and the pamphlet as a whole, in its context, constituted a statement of opposition to the two labor organizations which the respondent was willing to back with economic reprisals if necessary. Thus it constituted a threat by the respondent that it would take such steps as it considered necessary in order to defeat the self-organization of its employees and the full effectuation of collective bargaining without regard'for the wishes of its employees Under these circumstances, the pamphlet was not protected by the guaranty of freedom of speech. The undersigned finds that by the distribution of the pamphlet set out in Ap- pendix A, the respondent interfered with, restrained and coerced its employees in the exercise of the rights guar anteed 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 111, above, occurring in connection with the operations of the respondent described in Section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce 27hlong the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof V• THE REMEDY The undersigned has found above that the respondent engaged in unfair labor practices by excluding union organizers from Suntru Street. Since the date of that exclusion and as of March 12, 1046, the street has become a private street. Nevertheless, as has been determined by the Supreme Court, the rights of private property are subject to the guarantees of the Act when these rights collie in con- flict.13 Under these circumstances, the undersigned finds that in order to remedy the effects of the unfair labor practices, it is necessary to permit union organizers to enter Suntru Street and distribute union leaflets and the undersigned will ac- cordingly recommend that the respondent be required to permit them to do so. The Board has previously found that the respondent has engaged in unfair labor practices of a nature different from those present in this case It is apparent. in view of these previous findings of the Board and the findings made in this Iihterinedmte Report, that these actions of the respondent are not isolated instances, but on the contrary constitute a general pattern of conduct designed to defeat the employees' freedom of self-organization. They reveal an attitude by the respondent of opposition to the purposes of the Act to protect the rights of employees generally' said it is accordingly necessary that the respondent be ordered to cease and desist from in any manner interfering with these rights, and the undersigned will so recommend. CONCLUSIONS OF LAW 1 Optical and Instrument Workers Organizing Committee, C I. 0., and United Electrical Radio and Machine Workers of America, C. I. 0., are labor orga niza- tions within the meaning of Section 2 (5) of the Act. 2 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 13 Republic Aviation Cotp v N L R B, 324 U S 793 11 May Deportment Stores Company ( N L R B , 326 U S 376 142 DECISIONS OF NATIONAL LABOR RELATIONS BOAR and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law the under- signed hereby recommends that the respondent, Bausch and Lomb Optical Com- pany, Rochester, New York, and its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Excluding union organizers from Suntru Street in the City of Rochester and preventing the distribution of union literature on said Suntru Street; (b) In any other manner interfering with, restraining and coercing its employ- ees in the exercise of the right to self-organization, to form labor organizations, to join or assist Optical and Instrument Workers Organizing Committee, C. I. 0., or United Electrical, Radio and Machine Workers of America, C. I 0, or any other labor organization, to bargain collectively through representatives of their ow choosing and to engage in concerted activities for the purpose of collective bar- gaining 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) Permit the distribution of union literature by union organizers to its employees on Suntru Street in the City of Rochester, New York ; (b) Post at its plant in Rochester, New York, copies of the notice attached to the Intermediate Report herein marked "Appendix B." Copies of said notice, to be furnished by the Regional Director .for the Third Region, shall, after being duly signed by the respondent, 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- toinarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced or covered by any other material ; (c) File with the Regional Director for the Third Region on or before ten (10) days from the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form with which the respondent has complied with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent has notified said Regional Director 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. , As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the (late 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 notions 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 exceptions and/or brief, the party or counsel for the Board filing the same Mliall BAUSCH & LOMB OPTICAL COMPANY 143 serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) clays from the (late of the order trans- ferring the case to the Board Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other par ties and the Regional Director. DAVID REIN, Trial Exanuiier. Dated August 2, 1946. APPENDIX A Let's Face the Facts [Published solely in the interest of providing Bausch & Lomb Employees with true facts] DECEMBER 3, 1945. BAUSCH &- LOMB FOUNDRY REJECTS CIO PROGRAM In the NLRB-conducted vote in the Foundry Wednesday, November 28, B & L men rejected the CIO-requested strike by it vote of 32 to 14. The issue was steady jobs versus picket lines-whether B & L Wien wanted to support Bausch & Lomb's program of peacetime expansion and reconversion-or take their chances with CIO strikes that are plaguing the country. The answer to CIO was an emphatic 'NO!" B & 1, men in the Foundry said there will be NO STRIKE-no costly work stoppage at Bausch & Lomb They are squarely behind B & L's bold and courageous peacetime expansion for new machinery and equipment to inch ease the pi oduction of lenses, microscopes, binoculars, etc., to make jobs for thousands at good wages and under good working conditions. THE ISSUE: JOBS Olt PICKET LINES They have flatly rejected the CIO's postwar program of strikes spreading all over the country . . idle plants jobless men inarching in winter picket lilies . . pai alyzing Ni ork stoppages with their staggering losses in wages and ;elf-respect . strike-bound employees with empty dinner pails after four long, weary war years. The issue here was JOBS OR PICKET LINES 'B & L men wanted steady jobs. With steady paying jobs and all of us working, the peactinie orders will be filled With the CIO fora nila of work stoppage, strikes, and picket lines, orders cannot be filled . . business may go to our competitors . . . and our company- may not be able to provide jobs. Today, in competitive business, custwuers stick to the company which can maintain full production and deliver its products When everyone works full time to make our ophthalmic and instrument products which our customers buy, it means more steady jobs-greater security in our jobs-more opportunity B & L men have now renounced the CIO's program which has provoked mass unemployment, throwing hundreds of thousands of Aiperican workers out on the street You have only to read the headlines in the daily newspaper to verify this. 731242-47-vol 72 11 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But in the midst of the chaos the CIO has been creating since VJ-Day, holding up reconversion in a desperate clutch for power in the postwar world, B & L men and women have gone on working, building for a bright and promising peacetime future. Even as countless thousands of their hapless followers, turned away from their jobs by picket lines, now swarm to register for unemployment insurance in cities all over the land, the CIO has the monstrous gall to send its emissaries to B & L gates, to talk of strikes . . . hitting the street in picket lines . . . no pay envelopes for workers . . . in their "full employment" program. 93 YEARS OF JOB BUILDING For 93 successful years, B & L has gone on building a business-making and providing jobs without the help of the CIO Throughout all these years, no men)- her of B & L has ever had to pay any outside union or anyone else for the privilege of working here. Without the CIO, B & L has enjoyed successful employee relations that have prompted savers to put their money into the company to enable us to expand plants and machinery and equipment for a great postwar future. This is how jobs are made There can be jobs for no one until there is a factory to walk into, benches to work at, machinery to run, materials to work with, orders to fill. The CIO has not put one cent of money into this company to make a job for any B & L man or woman. It has put neither sweat nor savings into our job reconversion program-not even an encouraging word. The hysterical propa- ganda put out by CIO does not make jobs for any of us. To make a job at B & L, some saver must put up $3,000 To risk his savings, the saver must have confidence that here is no strike-ridden mob, torn by dis- sension and strife, but an intelligent, working organization of men and manage- ment with their eye on the ball. B & L men and women have earned a high reputation for no work stoppages, for the quality of our products and their dependability As a result, there will be jobs for at least twice the number of B & L men and women who were employed before the war It is true that we are now moving swiftly through a period of reconversion, a time of change from a wartime to a peacetime operation. But instead of idle plants and picket lines, our force is working actively, reconverting for expansion that spells jobs and opportunities for the biggest peacetime working force in the company's history. WHAT LIES AHEAD Our company is aggressively expanding in new equipment and new products to make new jobs ; our sales force is vigorously training to recapture our peace- time sales and win new customers ; our engineers are improving on the finest line of scientific optical and ophthalmic products in the world As our company moves through this reconversion , it embarks on its great job-building program, confident that the most promising years of our history are about to unfold. LOOK AT THIS PICTURE Full production of ophthalmic lenses and scientific instruments will be needed to catch up with the huge backlog of demands resulting from war-created depletion of dealers' stocks of lenses BAUSCH & LOMB OPTICAL COMPANY 145 What is B & L's program to meet the challenge of competitor companies who plan expanded production with new machinery, new equipment, and new methods. Bausch & Lomb in its bold and courageous program of holding and expanding its markets is investing six iiiilhos. dollars on new machinery, new equipment, and new methods To insure our future and the security of our jobs, modern and new machinery and methods will make our quality products which, in turn, will meet the challenge of competition Our company will continue its extensive research bureau which has developed such improvements as a cement for optical instruments that with- stands wide temperature ranges and Created optical surfaces that increase trans- mission of light and reduce glare In the immediate future as rapidly as machinery installations can be made, we will expand domestic lens production 34 percent per month, and export production 220 percent per month. Ray-Ban sun glasses, industrial goggles, frames and mountings will be in- creased 3.5 percent per month. We are scheduled to increase our production of scientific instruments by 60 percent over present monthly production. Similai increases are scheduled for virtually all our established products. This means twice as many jobs as before the war, twice as many people work- ing, twice as many opportunties for high-skilled ratings and openings for supervision. And in addition to all this, there is a vast potential market for our line of instrument products, including microscopes, projection lenses, binoculars, re- flectors, diagnostic sets, refractors, optical measuring instruments, photomicro- graphic equipment, etc We are extremely fortunate in hairng a hard-hitting sales force working for us to sell the products we make We would not get far in this business without lii o markets for our products CONTRAST THIS PICTURE What has the CIO done to bring any of this about. Besides stokes, the CIO has nothing to offer to date except abuse for Bausch & Lomb management and ridicule to B & L workers who seem slow to welcome this union with open aims. The CIO has not made one single constructive sug- gestion that would make a single job for a Bausch & Lomb man or woman. The CIO has had nothing good or decent to say about the company or the people who comprise it The CIO has set itself up as our severest critic, and yet in a recent handbill this union did not even know how to spell the name of the president of our company. This same handbill went on to make specific statements which are false as follows: 1 "We have most every subsidiary of Bausch & Lomb under contract." THIS STATEMENT BY CIO IS FALSE. The truth is that Bausch & Lomb has 202 branches of companies affiliated with it and of these 202 branches the employees of only nine are represented by this CIO union, or four percent-a long, long ways from what CIO would have us believe. 2 "Bausch & Lomb never paid for holidays before we petitioned for a union in your Glass Plant" ... "You are beginning to receive some of the advantages of union memberships ... " 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THIS STATEMENT BY CIO IS FALSE . The truth is that the decision by our company to pay for all six holidays was made long before any CIO petition was filed. In fact, notices weie posted on bulletin boards advising of holiday pay on Monday morning, November 5, and of course they had to be printed the pre- ceding week before they could be posted . It was not until November 5 that the CIO filed its petition according to its own statement , and it was not until some time tliereafter that the company had any idea that such a petition was planned Could it be that the CIO filed its petition in a great hurry AFTER the holiday pay notice was posted in order TO TRY to get credit for it? "POT CALLS KETTLE BLACK" One CIO handbill recently canned it would not join with the other CIO union in the "mud slinging campaign put on by the Electrician's Union " One CIO union calls the other CIO union "ignorant," accuses it of "tearing down" oi- ganizational activities and brands it as "petty, cheap sensationalism " The second CIO union counters the first CIO union by calling it a "two-bit side show," the "cheapest side show on earth," and charges it with "trickery" and engaging in "shady tactics And these are the CIO unions that want B & L employees to pay monthly dues to them for the privilege of working here. If the CIO has these things to say about the CIO itself, who are we to deny or contradict their" Why does the CIO engage in making these false statements and calling each other names'> There can be only one answer-the truth would not gain support for them. Untruths and name-calling are used as their stock in trade in the hope that B & L men and women will be duped into supporting them We in B & L know that B & L men and management have learned that by working together in harmony, honing out our problems across the table as man to man, we get the orders, provide steady jobs and good wages year in and year out, and keep our plant running, prospering and expanding, while competitors are harassed by strikes and picket lines. The Bausch & Lomb way of men and management getting along together is one of the greatest business-getters we have The CIO petitioned the NLRB for a certification as representative of some of you This means an election. How the majority of you totes will decide whether the CIO shall represent you or whether you wish to continue to deal directly with our company. Our company will abide by your decision. Let's Face the Facts! APPENDIX B No'iIo 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 notif^ our employees that : We will not in any manner interfere with, restrain, or coerce our employ- ees in the exeicise of their right to self-organization, to form labor organi- zations, to join or assist Optical and Instrument Workers Organizing Conn- mittee, C. I. 0, or United Electrical Radio & Machine Woikers of America, C. I. 0 , or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities BAUSCH & LOMB OPTICAL COMPANY 147 for the purpose of collective bargaining or other mutual aid or protection. All our employees are flee to become or remain members of this union, or any other labor organization. Distribution of union literature on Suntru Street will be permitted. BAUSCH & LOMB OPTICAL COMPANY, By ---------------------- -------------- (Representative) (Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.