BAUSCH & LOMB INCORPORATED v. NLRB
Decision Date | 18 December 1968 |
Docket Number | No. 183 and 184,Dockets 32553,32677.,183 and 184 |
Citation | 404 F.2d 1222 |
Parties | BAUSCH & LOMB INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
Court | U.S. Court of Appeals — Second Circuit |
Truman G. Searle, Rochester, N. Y. (Nixon, Hargrave, Devans & Doyle and Gerald L. Paley, Rochester, N. Y., on the brief), for petitioner.
John I. Taylor, N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Michael N. Sohn, N.L.R.B., on the brief), for respondent.
Sipser, Weinstock & Weinmann, and Richard Dorn, New York City, on brief for amicus curiae, United Optical Workers Union, Local 408, IUE, AFL-CIO.
Before KAUFMAN and ANDERSON, Circuit Judges, and TENNEY, District Judge.*
Following a decision filed by the Regional Director on May 5, 1966, a representation election was held on May 26, 1966 in a unit composed of certain ophthalmic laboratory employees at the New York City branch of Bausch & Lomb, Inc. Out of twelve eligible voters, four cast ballots for and eight against representation by the United Optical Workers Union, Local 408, International Union of Electrical, Radio and Machine Workers, AFL-CIO.
On June 2, 1966, the Union filed objections to the election which, it claimed, had been unfairly influenced by "gross misstatements of fact" in a Company letter dated May 23, 1966, three days before the election. That letter stated in pertinent part:
The Union specifically challenges the italicized portion of the letter. With respect to the Company's assertion that the Minneapolis employees would not get a Christmas bonus, the Union answered that its fellow local had filed unfair labor practice charges against the employer and thereby compelled it to pay the bonuses. It also asserted that the employees were not bereft of a pension plan because one already existed.
In response to these allegations, the Company submitted an affidavit by the Company's Manager of Regional Industrial Relations, which apparently described the Minneapolis contract eliminating the Christmas bonuses, and which also explained the negotiations with the Minneapolis Union that accepted a package without the new pension plan. With post-election issues thus drawn, it became the responsibility of the Regional Director to hear and decide the case and dispose of the questions involved. Such action "may be on the basis of an administrative investigation or, if it appears * * * that substantial and material factual issues exist which can be resolved only after a hearing," on the basis of an evidentiary hearing. 29 C.F.R. § 102.69(c).
In this case, the Director chose to conduct an independent investigation after which he entered a Supplemental Decision on July 19, 1966. Although it is stated therein that the parties were afforded a full opportunity to submit evidence, it is unclear what additional evidence was in fact offered and by whom. In any case, the Director refers to certain statements which made their way into his hands:
Although the National Labor Relations Board argues that the Director's statement of the Union's explanations of the actions of the Minneapolis local constitutes specific findings of fact, the record does not support this. Rather, it appears that the Regional Director concluded that even if the Union's allegations and arguments were correct, its objections were without merit because they did not refute the literal correctness of the Company's statements.
The Company, which had defended against the Union's claim of "gross misstatements of fact" before the Regional Director by demonstrating the truthfulness of its statements, did not learn of the Union's "explanations" until July 19, 1966 when the Regional Director's Supplemental Decision was filed. Its only opportunity to offer evidence to counter or meet them was in the event the Union in seeking review asked for a hearing. On July 28, 1966, the Union did petition the Board for review of the Regional Director's decision, which, it claimed, had departed from reported Board precedent. The petition for review expanded somewhat upon the allegations which the Union representative had made before the Regional Director, namely, that the Minneapolis employees preferred additional days of sick leave to the Christmas bonus, and the old pension plan to the new one. The Union did not, however, ask for a...
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