Bausch & Lomb, Inc.

National Labor Relations Board - Board DecisionsOct 25, 1974

214 N.L.R.B. 338 (N.L.R.B. 1974)

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bausch & Lomb, Inc. and International Union of Op- erating Engineers , Local 71-71A, AFL-CIO. Case 3-CA-5525 DECISION STATEMENT OF THE CASE October 25, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 21, 1974, Administrative Law Judge Eu- gene E. Dixon issued the attached Decision in this proceeding. Thereafter, the Employer filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Bausch & Lomb, Inc., Rochester, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 While not expressly stating that Respondent was the successor-employer of the North Goodman Street boilerroom employees, the finding of the Administrative Law Judge that Respondent's failure to recognize and bar- gain with the Union violated Sec 8(a)(5) of the Act clearly presupposed-as does his analysis of the situation and reliance on the Board's decision in Barrington Plaza and Tragniew, Inc, 185 NLRB 962 (1970), enfoicement denied in relevant part 470 F 2d 669 (C.A 9, 1972), on other grounds-that there is successorship here Members Fanning and Penello so find and con- clude, in accordance with the Administrative Law Judge, that Respondent violated Sec 8(a)(5) Chairman Miller concurs in the adoption of the Administrative Law Judge's bargaining order but finds it unnecessary to adopt his conclusion that Respondent is a successor-employer Rather, Chairman Miller would enter the bargaining order solely as a remedy for Respondent's egregiously discriminatory refusals to employ union members in violation of Sec 8(a)(3) of the Act Piasecki Aircraft Corporation, 123 NLRB 348 (1959). Members Fanning and Penello, while finding successorship, additionally agree with Chairman Miller that a bargaining order would in any event be warranted in order to remedy Respondent's 8(a)(3) violations EUGENE E. DIXON, Administrative Law Judge: This pro- ceeding, brought under Section 10(b) of the National La- bor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Rochester, New York, on April 30 and May 1, 1974. The complaint, dated February 27, 1974, based on charges filed and served on February 28, 1974, was issued by the Regional Director for Region 3 (Buffalo, New York) on behalf of the General Counsel of the Na- tional Labor Relations Board (herein called the General Counsel and the Board.) The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices by various spec- ified coercive conduct, including its failure to bargain with International Union of Operating Engineers, Local 71-71A, AFL-CIO (herein called the Charging Party or the Union), as the bargaining agent of the majority of its employees in an appropriate unit and by refusing to hire and/or continue in their employment, and thereafter refus- ing to reinstate at its North Goodman Street plant, employ- ees Eugene Griffin, James Herman, and Frank Williams, thus violating Section 8(a)(1), (3), and (5) of the Act. In its duly filed answer Respondent denied the commission of any unfair labor practices. Upon the entire record' and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS At all times material Respondent has been a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, Re- spondent has maintained its principal office and place of business at 635 St. Paul Street, in the city of Rochester, State of New York, herein called the Rochester plant, and has maintained an additional plant at 1400 North Good- man Street in Rochester, New York, herein called the North Goodman Street plant, and is and has been at all times material herein engaged at said Rochester plant in the manufacture, sale, and distribution of ophthalmic de- vices and related products. During the year ending Decem- ber 31, 1973, Respondent, in the course and conduct of its business operations, manufactured, sold, and distributed at said Rochester plant products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plant directly to States of the United States other than the State of New York. At all times material herein, Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. i Unopposed motions from both sides to correct errors in the official transcript are hereby granted 214 NLRB No. 53 BAUSCH & LOMB, INC. 339 II. THE LABOR ORGANIZATION International Union of Operating Engineers, Local 71-71A, AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Since a, Board certification in 1959 the Union had repre- sented the boilerroom employees of General Dynamics Corporation premises located at 1400 North Goodman Street in Rochester, New York.' The latest contract be- tween General Dynamics and the Union, pertaining to the 1400 North Goodman Street location, was effective from March 11, 1973, through March 8, 1976. In the summer of 1973, Respondent Bausch & Lomb was contemplating and exploring the acquisition of Gener- al Dynamics' 1400 North Goodman Street facility just the physical premises, no production or business interests whatsoever. By this time General Dynamics had ceased any manufacturing functions at that location and was leas- ing out portions of the building for storage to various ten- ants. This fact had no effect, of course, on the boilerroom operations which were continued and maintained by Gen- eral Dynamics at all times without substantive or organiza- tional change. The publicity given to the proposed acquisition by Bausch & Lomb gave rise, to an inquiry by the General Dynamics bargaining unit employees and its union repre- sentatives as to what they could look forward to job wise with respect to the change in ownership. Thus, Union Busi- ness Manager Ronald Bess called Respondent's vice presi- dent, corporate industrial relations, Eugene Roberts, to ask what Respondent's position was regarding the three engi- neers in the bargaining unit at the Goodman's Street loca- tion. Bess was informed that Respondent intended to place their own employees in the boilerhouse but that (as testi- fied to by Bess) Respondent `,`would be prepared to offer to these employees jobs possibly in maintenance, maybe in the pipe shop or words to that effect.,, 3 Similarly, Bernard Simpson, the supervisor of the Gener- al Dynamics unit employees and himself a member of the Union, made more than one request to various of Respondent's officials (on occasions when they were mak- ing inspection visits to the Goodman Street premises) on 2 Technically the unit was described as comprising all boilerroom employ- ees excluding all other employees , guards , supervisors and professional eip- ployees as defined in the Act. This unit originally covered two different locations of the General Dynamics Corporation in Rochester. For some reason in or about 1962 the Union and General Dynamics began negotiat- ing separate contracts for each location, one being the 1400 North Good- man Street location . At all times material the contract covering the North Goodman Street facility involved the above-described unit (which I find appropriate) composed of three stationary engineers , Eugene Griffin, Jo- seph Herman , and Frank Williams , all alleged discnminatees herein and all members, of the Union. - 3 Roberts testified that "there would be jobs for these people in mainte- nance other than the power house" if they were qualified. When asked if he did not consider them qualified to work in the boilerroom he answered, "We knew what we had to do with the boiler room. We had our people ready to go in there." behalf of himself and his three crewmembers as a unit for the continuation of their jobs under the Bausch & Lomb management. The information he received as a result of these inquiries was always that while Respondent intended to man the boilerroom from its own forces (or give prefer- ence to its own employees) 4 there was the likelihood that Respondent could use the three engineers (as well as Simp- son) in its maintenance department and would welcome their applications which would be considered on an indi- vidual basis. - Thereafter, on August 21, 1973, Simpson filed a formal application for the Goodman Street job. At the same time he was given application forms for his three engineers (to be mailed back) having again been informed of Respondent's policy to utilize its own employees first and the "likelihood of staffing the boilerhouse" from Bausch & Lomb's oranization. He was also informed that Respon- dent would consider all the applications "on an individual basis." In the meantime Respondent's Samuel H. Fruscione, manager of corporate facility planning, had met Simpson on his several inspection trips to the Goodman Street facili- ty. As part of his evaluation of the boilerroom operation Fruscione came to the conclusion that notwithstanding that Bausch & Lomb had a chief engineer in charge of facilityy being operated by Bausch & Lomb at Chili, New York, "it would be advisable for Bausch & Lomb to em- ploy someone who was familiar with the system.... " 6 For this reason Fruscione recommended that Simpson be hired to head the boilerroom operation in the about-to-be acquired facility. Thereafter, having been prompted by Fruscione to see Raymond Anderson, corporate employment manager for Respondent, the latter offered Simpson a job as group leader of the boilerhouse at $192 a week with a certain category of fringe benefits. Simpson rejected this out of hand. Anderson then excused himself and returned in a few minutes increasing the offer to $200 a week. Simpson did not reject this outright but left with the request by Anderson "to think it over and get back to him." According to Simpson's undenied and credited testimo- ny, at some point not clear in time, he had a conversation with Fruscione at which the latter gave him a pep talk about his prospects as an employee of Bausch & Lomb; how he could not tell Respondent what to do and how he had "to talk for Bernie Simpson and not for anyone else." Simpson protested that he was not trying to tell anyone what to do. All he was saying was that he did not plan "to become nursemaid ... to a crew of green men." In this connection Simpson pointed out that, his three crewmem- bers had sent in their applications and wanted to know why no one had talked to them. Fruscione suggested that Simpson take the matter up with Anderson. _ -, Thereafter Simpson called Anderson and arranged an 4 A policy of some 20 years ' standing according to Respondent 5 The city code required that systems with various ratings had to be oper- ated by licensed engineers of various ratings The Goodman Street facility rei cored a first class engineering rating - In his various discussions with Respondent about being retained on the Goodman Street 'job Simpson maintained credibly that he was reluctant to assume the supervision of the operation without'his experienced crew. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interview for his three crewmembers with Anderson. The three crewmembers were interviewed separately on Sep- tember 24 by Anderson. According to their testimony, af- ter reviewing their qualifications, Anderson told them all essentially the same thing: There were no present open- ings; Respondent had to look out for its own personnel first; and the applicants were told "not to put all [their] eggs in one basket." He also told at least one of them, that if anything came up he would let them know. Of the three, Frank Williams, who was the last to be interviewed, also testified that Anderson asked him if he was a member of Local 71. The other two denied any such interrogation as did Anderson in his testimony. Everything considered I credit Anderson. According to Simpson's testimony some 3 weeks or so after the $200 offer by Fruscione at Respondent' s initiative he met with Ellis Faro, Respondent's director of employ- ment and compensation, in the latter's office.' Faro in- formed him that Vice President Ashcroft had authorized him to offer Simpson $240 a week as manager of the boiler- house (a supervisory position as distinguished from lead- man, a rank-and-file category) with better fringe benefits. Simpson commented, "The money is very satisfactory (it was $7 a week more than he was making on the job) but there's one more thing and I think you know what it is .. . what about my three men?" To this, according to Simpson, Faro replied as follows: Bernie, will you please back off this. We can't touch any of those men . . . if we touched any 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. This may change some day. I am not at liberty to say. . . . I am not even prepared to say whether the Company is right in this position. Now, Bernie, if you have any regard for me personally, you'll not let this out be- cause if you do, I'll be forced to deny it. It's because of my personal regard that I have to say this but it's the truth. To this Simpson replied, "these men . . . we're talking about men in their fifties. We are talking about men that are in the twilight of their working years and I just can't see them dumped into the street at this stage. They've stuck by me and made my job a pleasant one." With that Faro asked if the men would consider other jobs, what would they have to have in the line of a wage rate for work in the plumbing shop or maintenance. Simpson replied that they were getting in the neighborhood of $5 an hour. Faro went on to say that if they took other jobs and at a later date it should be proved that they were needed in the boilerroom because Simpson's new assistants were not working out "they ... could possibly get these men back on a transfer circumventing the need to deal with the Union." Simpson promised to sound out his men on the terms they had discussed and on his own behalf accepted Faro's 7 Simpson was acquainted with Faro from previous employment with Bausch & Lomb and had renewed the acquaintanceship on one of Faro's inspection tours of the Goodman Street facility offer. On his part Faro promised to check with his people and get back to Simpson on the matter. According to Simpson's further testimony, sometime later Faro told him, "Bernie, don't think that we've forgotten about your men. We'll talk to them at about the middle of November con- cerning these openings." Simpson then told his three crew- men that they would be contacted by Respondent on or about November 15. No such contacts were ever made. In his testimony Faro denied making the incriminating remarks attributed to him by Simpson.8 He further testified that Respondent was "looking for plumbers almost any- time" and was hiring them off the street. Having reviewed the applications of the three stationary engineers he "was confident that [Respondent] probably could place them within a maintenance position...... He also admitted telling Simpson that the time to talk to the men "will be a couple of weeks before . . . takeover." Somewhere along the line Simpson developed second thoughts about his job with Bausch & Lomb and discussed the possibility of employment elsewhere with Union Rep- resentative Bess. There appeared to be an opening for a job apparently not as good as his Bausch & Lomb position which Simpson said he might consider but he apparently did nothing about it. On Friday, December 14, Respondent learned that the transfer of the facility was to be the following Monday. Fruscione and several Bausch & Lomb employees arrived at the plant at 12 noon on December 17. Upon entering the boilerroom Fruscione found Bess and Simpson. Bess stated that he was there to see whether the boilers were in good working order and to help facilitate the transfer. Simpson indicated that the boilers were all in good working order. At this point Bess said to Simpson that he was sorry to see that Simpson would have to work with a green crew and stated that there was an opening for a job within the union structure that Simpson could have if he wanted it. Simpson inquired whether the job was available regardless of the status of his health.' Assured that it was Simpson immedi- ately resigned his position with Bausch & Lomb and ac- cepted Bess' offer. At this point Respondent was without a licensed chief engineer to take over the facility . Bess informed Fruscione that unless he had a qualified licensed engineer to make the transfer to he would have to shut down the plant. Since the temperature was 12 above there was the likelihood that shutting down the boilers for any length of time would cause damage to the building. In this context Bess offered to Fruscione a union contract on similar terms and condi- tions as the General Dynamics contract, a copy of which he held in his hand at the time. Fruscione said he lacked authority to accept such an offer and would have to talk to his superiors about it. Bess inquired how much time Frus- cione would need for this and was told an hour an a half or so. Bess agreed to keep his men on the job for that period and Fuscione left. In or about 2 hours Fruscione returned accompanied by Robert Aubel a licensed chief engineer employed at a Bausch & Lomb plant in Chili, New York, and indicated s For reasons which will appear (including my obsverations of the wit- nesses) I credit Simpson 9 He had had some health problems BAUSCH & LOMB, INC. that Bausch & Lomb was prepared to take over the plant. Although Bess was reluctant to acknowledge Mr. Aubel's status as a licensed chief engineer without being shown his certificate , once the Bausch & Lomb chief of security had assisted in confirming Aubel's status by telephone with the City License Bureau, Bess instructed Simpson to give Au- bel a brief tour of the facility and turn it over to Respondent's employees. After taking over the facility Respondent hired on a part-time consultant basis at $20 an hour one Kelly who had had 5 years' experience working at the General Dyna- mics facility. When asked how much time Kelly put in on this assignment , Fruscione testified as follows: Well, it's on a diminishing basis. The first month he put in about 60 hours. The second month he put in about 20 hours. And in March he only put in a very few hours . In April we had some operational problems with some of our controls , so he did work another 20 hours but he is scheduled to be phased out with the introduction of our new burners in about 2 months. Referring to Respondent's recognition of the admitted complexity of the boilerhouse operation and Respondent's intention "to give these men [the three General Dynamics engineers] jobs in other areas" Faro was asked, "Why did you not continue them in the job that they knew so that you would not have a problem?" Fero testified, "I can't answer that." A. 8(a)(3) Conclusions The inference that Respondent's failure and refusal to hire the three General Dynamics experienced engineers for its newly acquired Goodman Street facility was grounded in its determination to avoid bargaining with the Union is fully warranted by the circumstances herein. Being fully cognizant of the complexity of the operation it was acquiring and resigned to the necessity of securing someone with experience to run it, Respondent was unwill- mg and refused to hire the available personnel that would completely eliminate the problem. Indeed, so fixed was Respondent's opposition to this logical and obvious solu- tion of its difficulties that it was willing to pay out in excess of $2,000 for special consultation fees (which were still being paid out at the time of the hearing) to instruct its own "qualified" people in the performance of their newly assigned duties. Moreover, to ensure that none of the unde- sirables might slip into the boilerhouse operation by the back door as it were, Respondent also (being fully cogni- zant that the applicants were qualified) disregarded and rejected the three engineers' applications for jobs whose skills were in such demand by Respondent that it was hir- ing to fill them "off the street." No wonder that Faro, when asked the obvious question by the Union's counsel, was unable or unwilling'to produce an answer. The answer, in my opinion, was given to Simp- son when Faro informed Simpson that Respondent's refus- al to hire the three engineers was grounded in its unwilling- ness'to have anything to do with the Union. On'this evi- dence I find that Respondent has discriminated against 341 Eugene Griffin, Joseph Herman, and Frank Williams in violation of Section 8(a)(3) of the Act. As noted by the Supreme Court in a decision handed down June 3, 1974, Howard Johnson Co., Inc., v. Detroit Local Joint Executive Board, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, 86 LRRM 2449, 2454, footnote 8 [417 U.S. 249], a successor-employ- er has a right to hire or not to hire a predecessor's employ- ees as it sees fit subject to a qualification stated by the Court as follows: Of course, it is an unfair labor practice for an employ- er to discriminate in hiring or retention of employees on the basis of union membership or activity under §8 (a)(3) of the NLRA. Thus, a new owner could not refuse to hire the employees of his predecessor solely because they were union members or to avoid having to recognize the Union. See Burns, supra, 406 U.S. at 280-281 n. 5; K. B, J. Young's Super Markets v. N.L.R.B., 377 F.2d 463, 65 LRRM 2369 (C.A. 9), cert. denied, 389 U.S. 841, 66 LRRM 2307 (1967); Tri State Maintenance Corp. v. N.L.R.B., 132 U.S. App. D.C. 368, 408 F.2d 171, 69 LRRM 2937 (1968). B. 8(a)(5) Conclusions I also find on this record that failing to recognize and bargain with the Union since December 17, 1973, Respon- dent violated Section 8(a)(5) of the Act. Respondent's con- tention that the bargaining unit is not appropriate because the certification'originally covered two of General Dynam- ics' locations is without ment. The current contract cover- ing the Goodman Street facility makes both the majority and unit presumptively valid in The absence of contrary evidence. Barrington Plaza and Traginew, Inc., 185 NLRB 962, footnote 5 (1970). No persuasive evidence to the con- trary was adduced. Moreover, that a unit composed of "all the Utilities Control employees at all five of Respondent's local heating plants" might also have been appropriate, as contended by Respondent, does not render the unit cover- ing the Goodman Street facility inappropriate. In my opinion the above-cited case is controlling on the 8(a)(5) question here. In that case the respondent employer acquired a complex of residential apartments whose main- tenance and service employees currently were and for years had been represented by a union. When the takeover occurred the purchaser (which continued to operate the apartments) retained all the unrepresented employees of the predecessor but refused to hire any of the union repre- sented maintenance and service employees for the sole rea- son that it wanted to avoid any obligation to bargain with the union. On such facts the Board found 8(a)(3) and 8(a)(5) viola- tions. With respect to the refusal to bargain the Board said that "The bargaining order . . . is required not only-to remedy the aforesaid violations, but also to cure the Respondent's other unfair labor practices . . . by restoring the situation as nearly as possible to that which would have prevailed absence such other unfair labor practices." Such is the situation here. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE REMEDY Having found that Respondent has committed certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action to re- store as nearly as possible the situation that would have existed absent the unfair labor practices. Having found that Respondent discriminatorily failed to hire stationary engineers Eugene Griffin, Joseph Herman, and Frank Williams, at its 1400 Goodman Street facility in Rochester, New York, on December 17, 1973, I shall rec- ommend that it offer such employment immediately to each of said individuals and make each whole for any loss he may have suffered as a result of the discrimination against him by paying each an amount equal to that which he would have earned in Respondent's employ at the Goodman Street facility from December 17, 1973, to the date of his hire less his net earnings elsewhere during the interim period to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344 (1953), with interest as provided for in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). Having found that since December 17, 1973, Respon- dent has refused and is refusing to recognize and bargain collectively with the Union as the representative of the em- ployees in an appropriate unit, I shall also recommend that upon request Respondent so bargain and if an under- standing is reached embody such understanding in a signed agreement. In view of the character of the unfair labor practices committed I shall also recommend that Respondent be or- dered to cease and desist from infringing "in any manner" upon the rights guaranteed its employees by Section 7 of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent Bausch & Lomb at all times material has been and is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. International Union of Operating Engineers, Local 71-71A, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to hire Eugene Griffin , Joseph Herman, and Frank Williams because of their union mem- bership , Respondent has discriminated and is discriminat- ing against them in regard to their hire or tenure of em- ployment thereby discouraging membership in a labor or- ganization within the meaning of Section 8(a)(3) of the Act. 4. All boilerroom employees of Respondent's 1400 Goodman Street , Rochester , New York, facility excluding all other employees , guards, supervisors and professional employees as defined in the Act constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Union at all times material herein has repre- sented a majority of employees in an appropriate unit with- in the meaning of Section 9(a) of the Act. 6. Since December 17, 1973, Respondent has refused to bargain collectively with the Union in violation of Section 8(a)(5) of the Act. 7. By the foregoing conduct Respondent has interfered with , restrained , and coerced , and is interfering with, re- straining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 10 Respondent Bausch & Lomb, Inc., Rochester, New York, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organization by discriminating in regard to the hire or tenure of employ- ment of any employee or applicant for employment. (b) Refusing to bargain in good faith upon request with the above-named Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self- organization, to form labor organizations, to join or assist International Union of Operating Engineers, Local 71-7IA, AFL-CIO, or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Sec- tion 8(a)(3) of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer immediate employment to Eugene Griffin, Jo- seph Herman, and Frank Williams as stationary engineers at the 1400 Goodman Street facility and make each whole in the manner set forth in the section entitled "The Reme- dy" above. (b) Upon request, bargain collectively with Internation- al Union of Operating Engineers, Local 71-71A, AFL- CIO, as the exclusive representative of all employees in the 10 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, 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 BAUSCH & LOMB, INC. appropriate unit and if an understanding is reached em- body it in a signed agreement. (c) Post at its 1400 Goodman Street, Rochester, New York, facility copies of the attached notice marked "Ap- pendix." 11 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by its representative, shall be posted by Respondent immedi- ately upon receipt thereof and be maintained for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to en- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 11 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board - APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in any labor organization by refusing to hire or otherwise discrimi- nating-against job-applicants because of their union membership. 343 WE WILL NOT refuse to recognize and bargain collec- tively with International Union of Operating Engi- neers, Local 71-71A, AFL-CIO, as the exclusive rep- resentative of the employees in the unit described as follows: All boilerroom employees at our 1400 Goodman Street facility excluding all other employees, guards, supervisors and professional employees as defined in the National Labor Relations Act. WE WILL NOT in any other - manner interfere with, restrain , or coerce - our employees in the exercise of the right to self-organization,, to form, join, or assist any labor organization , to bargain collectively through representatives of their , choosing, or to engage in con- certed activities for the purpose of collective bargain- ing or other mutual aid, or to refrain from any or all such activities. - WE WILL offer immediate employment to Eugene Griffin , Joseph Herman, and Frank Williams as sta- tionary engineers in our Goodman Street facility and make them whole for any loss of pay suffered as a result of the discrimination against them. WE WILL, upon request , recognize and bargain with International Union of Operating Engineers, Local 71-71A, AFL-CIO, as the exclusive representatives of the employees in the above -described unit with respect to rates of pay, wages, hours of- employment, and other conditions of 'employment, and, if an under- standing is reached, embody such understanding in a signed agreement. BAUSCH & LoMB, INC.