# National Labor Relations Board v. Bausch & Lomb, Inc. > Court of Appeals for the Second Circuit · November 25, 1975 · 526 F.2d 817 URL: https://www.frixlaw.com/law-library/cases/8898033 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD v. BAUSCH & LOMB, INC. - **Court:** Court of Appeals for the Second Circuit - **Decided:** November 25, 1975 - **Citations:** 526 F.2d 817; 90 L.R.R.M. (BNA) 3217; 1975 U.S. App. LEXIS 11766 - **Precedential status:** Published - **Opinion:** Concurring in part by Friendly - **Judges:** Friendly, Kaufman, Smith - **Cited by:** 18 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/8898033 ## Opinion text FRIENDLY, Circuit Judge (concurring and dissenting): I join in so much of the decision as declines to issue a bargaining order but respectfully dissent from the portion enforcing the orders for reinstatement, back pay, and other relief. Although the majority has corrected the Board’s most serious errors and the portions of the order being enforced may have little practical significance, I would deny enforcement altogether. The difficulty with the portion of the majority opinion from which I dissent is that, like the decision of the ALJ which the Board affirmed, it largely ignores the record evidence of the business realities which Bausch & Lomb, Inc. (B&L) was facing. B&L was not initiating a new operation; it was planning on moving to the North Goodman St. site, which General Dynamics (GD) had vacated, the work that had been going on at the St. Paul St. plant, one of the five plants it had long maintained in Rochester, N. Y. There was uncontradicted testimony that it had been B&L’s policy for about twenty years to maintain on its payroll all B&L employees whom it could use, and to advance them when opportunity arose. One member of the company’s management stated that strict adherence to this policy for strengthening employee morale was peculiarly necessary because “we heard rumors from our employees that we were moving out of town.” Another officer expanded on the point by saying: This was a very important thing to our company. In this community, the number of companies that have left for other environments is quite extensive and to maintain a labor force without turnover and people leaving you and not applying for work is a very serious problem. And as a result of this, we wanted to make sure our people understood that they were going to be utilized first, their skills. Even the General Counsel’s witnesses conceded that the company clearly and consistently maintained this position from the start and never deviated from it. For this reason, B&L planned to fill three of the four jobs as stationary engineers in the North Goodman St. plant with boiler room employees already on its payroll at lower wages — believing, until the day of the transfer of control of the pjant, that the continued employment of Simpson, who had been GD’s chief engineer, would satisfy any need for continuity and special knowledge of the facility. Simpson resigned as a prospective B&L employee, just as the plant was being transferred, upon finding out that a union representative had located another job for him; it was only then that B&L found it necessary to engage an outside consultant, familiar with this particular facility, on a temporary basis. Whether B&L’s decision to man the North Goodman St. boiler room with Simpson, himself a union member, and three of its own non-union employees, thereby maintaining employee morale at the possible cost of some inefficiency at the start, rather than retain all four of the more experienced GD employees, with opposite results, was wise or unwise as a matter of business policy, the decision was one that B&L could make without violating §§ 8(a)(3) or (1) of the National Labor Relations Act. The second and third “basic facts” relied on by the ALJ and the majority thus have no tendency whatever to support an inference of ulterior motive. The fourth “basic fact,” that B&L failed to offer alternative employment to the three other men, is unsupported by substantial evidence, except perhaps on a strictly literal reading of the record which conceals rather than reveals the actual facts. The union’s business agent testified, and the record is uncontradicted, that B&L told him early in the game that it was prepared to offer the three men jobs in B&L’s maintenance department or pipe shop. The three men were interviewed on September 24, but this was too early for action since the date of the transfer to North Goodman St. was *829 uncertain. Simpson admitted that, on or about November 1, Ellis Faro, B&L’s employment director, told him to, “sound out these gentlemen” concerning a possibility of employment. Beyond that, the most that appears from the testimony is that the three men might reasonably have believed that B&L would take the lead in making further contact; as a matter of ordinary employment practice, it seems that the company might have believed the opposite. In fact, no one contacted anyone, and the men got other jobs. Whoever was at fault, this scarcely presents a picture of three men eagerly seeking B&L employment and being refused because of anti-union animus. All that remains is Simpson’s testimony, denied by Faro but credited by the ALJ, that on the same occasion in late October or very early November referred to above, when Simpson was trying to persuade B&L to retain the three other men in their existing jobs, Faro said “We can’t touch any of those men . . If we touch anyone of those men, we have to take the union contract and you know that this company has never dealt with the union and never intends to deal with the union.” Putting aside any question of Faro’s authority to discuss policy matters of this sort and disregarding the point that, in light of the majority’s correct construction of § 8(a)(5), his remark was based on a misapprehension of the law, the lack of anti-union animus was shown by the very next portion of Simpson’s testimony, namely, that Faro inquired whether the men would consider other suitable jobs with B&L, asked Simpson to sound them out, and suggested that, if B&L’s own people should prove unqualified, this might be a way to get the three men back to the boiler room without creating, as Faro mistakenly thought, an automatic obligation of B&L to deal with the union as representing the boiler room employees. The interview ended with Simpson’s accepting B&L’s offer for himself and agreeing to sound out the three other men. The ALJ’s decision in this case and, with all respect, the majority’s deference to the §§ 8(a)(3) and (1) portions of it come within Mr. Justice Frankfurter’s description of practices which Congress intended to end when it passed the TaftHartley Act. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-91 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951). It is our obligation to look at the record as a whole, and not just at a scrap of evidence that supports the Board’s decision. On that basis, the record demonstrates that B&L was following the permissible policy of staffing the new facility with its own employees, guided by Simpson’s experienced hand if he was willing to work for it, by that of someone else if he was not. B&L was willing to employ the three other GD employees, once they became available, as openings appeared, but the three never pressed the matter. To sanction the predicating of a finding of violation of § 8(a)(3) and consequently § 8(a)(1) on a single remark' of one supervisory employee, who either was making up his own mind on the law or had been misadvised, when there is no other basis for it, is not consistent with our “responsibility for assuring that the Board keeps within reasonable bounds,” 340 U.S. at 490 , 71 S.Ct. at 466 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8898033. Public record. Not legal advice.