# Bausch & Lomb Inc. v. National Labor Relations Board

> Court of Appeals for the Second Circuit · October 22, 1971 · 451 F.2d 873

URL: https://www.frixlaw.com/law-library/cases/8886777

## Case

- **Full name:** BAUSCH & LOMB INCORPORATED v. NATIONAL LABOR RELATIONS BOARD, and United Optical Workers Union, Local 408, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Intervenor
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 22, 1971
- **Citations:** 451 F.2d 873; 78 L.R.R.M. (BNA) 2648; 1971 U.S. App. LEXIS 7457
- **Precedential status:** Published
- **Opinion:** Concurrence by Anderson
- **Judges:** Anderson, Kaufman
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8886777

## Opinion text

ANDERSON, Circuit Judge
(concurring) :
I concur in Judge Kaufman’s opinion which supports the Board’s contention that on the record as a whole there is ample evidence to justify its finding “that the misrepresentation here was highly likely to affect the outcome of the election.” The Board, however, in its brief and oral argument asserted that “the test is not whether employees were actually or necessarily misled, but only that it is ‘sufficiently likely that it cannot be told whether they were or not.’ ” For this proposition the Board cites Baumritter Corp. v. NLRB, 386 F. 2d 117, 120 (1 Cir. 1967) and NLRB v. Clearfield Cheese Co., 322 F.2d 89, 93-94 (3 Cir. 1963). As I read the opinion in the present case, it in no way expresses or implies approval or adoption of the Board’s statement of the test as the one to be used in cases such as this where, as the Regional Director found, the statement made by the employer was literally true, but it did not describe its context or tell the whole story. The adoption of the test asserted by the Board in these circumstances would lead to a deprivation of the employer’s First Amendment right to freedom of speech at the mere whimsey of the Board.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8886777. Public record. Not legal advice.