Bausch and Lomb Optical Co.

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