Bausch & Lomb, Inc.

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