Bausch & Lomb Optical Co. v. National Labor Rel. Bd.

• Decision Date: 01 December 1954
• Docket Number: No. 36,Docket 23053.,36
• Citation: 217 F.2d 575
• Parties: BAUSCH & LOMB OPTICAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

217 F.2d 575 (1954)

BAUSCH & LOMB OPTICAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 36, Docket 23053.

United States Court of Appeals, Second Circuit.

Argued October 5, 1954.

Decided December 1, 1954.

Arthur L. Stern, Rochester, N. Y. (Nixon, Hargrave, Devans & Dey and Richard L. Turner, Rochester, N. Y., on the brief), for petitioner.

Melvin Pollack, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Frederick U. Reel, Atty., National Labor Relations Board, Washington, D. C., on the brief), for respondent.

Before CLARK, Chief Judge, and L. HAND and FRANK, Circuit Judges.

CLARK, Chief Judge.

Bausch & Lomb Optical Company petitions us to review and set aside an order of the National Labor Relations Board holding it guilty of violating §§ 8(a) (1) and 8(a) (3) of the Labor Management Relations Act, 29 U.S.C. §§ 158(a) (1) and 158(a) (3), and directing it to reinstate four employees with reimbursement of lost pay. The Board found that the petitioner company had illegally interfered with union organization through threats of economic reprisal and coercive interrogation of its employees. It also found that the four employees had been discharged or not reinstated because of their known union affiliations. 107 NLRB No. 157. Petitioner justifies its anti-union statements as an exercise of its free speech prerogative under § 8(c) of the Act, 29 U.S.C. § 158(c), and claims that the personnel separations were warranted by uniform company regulations and by economic necessity. The Board's answer to these allegations contains also a request for enforcement of its order, entered upon recommendation of its Trial Examiner.

Although much of the testimony before the Trial Examiner was conflicting, there was ample evidence for a holding of undue company interference with unionization. Both before and within the 6-months' limitation period of § 10 (b), 29 U.S.C. § 160(b), high-ranking company officials repeatedly threatened that success by the International Association of Machinists in its unionizing campaign would result in curtailment of production and loss of personal vacation and other benefits. On one occasion Plant Manager Walter Sether stated that the union controversy had already resulted in the cancellation of machinery ordered for a new department. In several instances these threats accompanied interrogation concerning the union. Employees were asked about union membership and goals in general, as well as about their own affiliations. Admission of union membership called forth deprecatory responses by company officials. These incidents cannot be dismissed as de minimis, as the company contends, since any expressions of company attitudes, even to small groups of individuals, were likely to be rapidly disseminated around a plant during the struggle of organization.

After the union's defeat in a consent election, petitioner's Vice-President, C. S. Hallauer, publicly congratulated the employees on the failure of the union to achieve recognition. Hallauer's statement is not attributable merely to unusual tactlessness, but is one further example of the pervasiveness of the company's anti-union attitude, which went far beyond a friendly solicitude for the well-being of its workers. The Board could reasonably deduce from all these facts the existence of an "aroma of coercion" which interfered with the employees' rights to choose their own bargaining representative. N. L. R. B. v. Syracuse Color Press, 2 Cir., 209 F.2d 596, 600, certiorari denied Syracuse Color Press v. N. L. R. B., 347 U.S. 966, 74 S.Ct. 777; Precision Fabricators v. N. L. R. B., 2 Cir., 204 F.2d 567, 569; N. L. R. B. v. Montgomery Ward & Co., 2 Cir., 192 F.2d 160; N. L. R. B. v. Beaver Meadow Creamery, 3 Cir., 215 F.2d 247; N. L. R. B. v. Tennessee Coach Co., 6 Cir., 191 F.2d 546; Joy Silk Mills v. N. L. R. B., 87 U.S.App. D.C. 360, 185 F.2d 732, certiorari denied 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350.

Viewed against this background of pronounced company hostility to unionism, there is justification also for the Board's order with respect to discrimination in the hire and tenure of four Bausch & Lomb employees. It is to be noted that the Trial Examiner exercised care and discrimination in making his findings and recommendations and that he refused to find unfair labor practices in the separation of 41 additional employees named in the general counsel's complaint. And the Board upon review here also accepted his recommendation and ordered dismissal of the complaint as to these employees.

The case of Doris Brown is perhaps the clearest of the four now in issue. Although petitioner asserts that she was discharged only for repeated infraction of a company regulation against excessive loitering away from the work bench, the Board could reasonably find that this minor regulation was merely a pretext for the dismissal of an active trustee of the union. There was conflicting testimony as to the discriminatory enforcement of this regulation; the Trial Examiner and the Board were entitled to resolve this conflict in favor of the employee. N. L. R. B. v. Dinion Coil Co., 2 Cir., 201 F.2d 484. Brown was never warned about her loitering until she had stated her allegiance to the union and her belief that it would improve working conditions. Furthermore, Brown was told by Industrial Relations Director Jack Moore that she was a "marked woman" who would have to do just as she was told because of her union activities. Significantly, this testimony remains uncontradicted. We hold that there was substantial evidence for the Board's finding of discriminatory discharge with respect to Brown. N. L. R. B. v. Vermont Am. Furniture Corp., 2 Cir., 182 F.2d 842; N. L. R. B. v. Beaver Meadow Creamery, supra, 3 Cir., 215 F.2d 247.

The facts concerning the discharge of Neil Bernard and Charles McGill are essentially similar, so that their cases may be conveniently...