Herman Brothers, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1984

273 N.L.R.B. 124 (N.L.R.B. 1984)

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herman Brothers, Inc. and Local 289, Bakery and
Confectionery Workers International Union of
America, AFL-CIO. Case 4-CA-14122
7 December 1984
DECISIONS AND ORDER
CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 25 June 1984 Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision
The National Labor Relations Board has delegat-
ed its authonty m this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulmgs, findings,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Herman
Brothers, Inc , Treichlers, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cif 1951)
We have carefully examined the record and find no basis for reversing
the findings
For the reasons stated in our recent decision in Connecticut Light d
Power, 271 NLRB No 124 (July 31, 1984), we adopt the judge's finding
that Local 289 did not tacitly agree to reopen the contract, thereby in-
curring a bargaining obligation, simply by agreeing to discuss the Re-
spondent's proposed midterm wage modifications and offering its own
counterproposals
Chairman Dotson and Member Hunter, however, do not adopt the
judge's dicta that, even if Local 289 had agreed to reopen the contract
midterm, the Respondent would not have been free to unilaterally insti-
tute its last final wage offer upon an impasse in negotiations As they
have previously stated, in their view dunng negotiations pursuant to a
midterm reopener agreement "an the employer may, absent any indica-
tion in the contract to the contrary, unilaterally modify wages and bene-
fits following a genuine Impasse in negotiations" See Kelly-Goodwin
Hardwood Co, 269 NLRB 33 at 38 (1984)
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge
On March 16, 1983, Respondent Herman Brothers, Inc
entered mto a collective-bargaining agreement with
Charging Party Local 289, Bakery and Confectionery
Workers International Union of America, AFL-CIO
(Union),' for a term commencing July 1, 1982, through
June 30, 1985 Among other things, the agreement pro-
vides that drivers shall be paid a mileage rate of $ 2788
per mile and $9 24 per hour, effective July 1, 1983,
$ 2938 per mile and $1004 per hour, effective July 1,
1983, and $ 3088 per mile and $10 79 per hour, effective
July 1, 1984 It also provides that employees who are
hired after July 1, 1982, will be paid a percentage of the
hourly or mileage rate which is in effect at the time of
hire which shall progress in 12 months increments, as
follows for the first 12 months, 70 percent of the appli-
cable rate, for the second 12 months, 80 percent of the
applicable rate, for the third 12 months, 90 percent of the
applicable rate, and thereafter, 100 percent of the appli-
cable rate The agreement contains no reopener provi-
sion
Respondent, faced with the renegotiation of its agree-
ment for the transportation of flour for its principal cus-
tomer, ConAgra, which was to expire in September
1983,2 attempted to renegotiate midterm the wage struc-
ture to which it had previously agreed On June 19,
ham H Williams, Respondent's director of labor rela-
tions, met with the drivers and mechanics of Respond-
ent's Martins Creek, Ironton, and Triechlers operations
and explained that the wage rates paid by organized
trucking companies in similar businesses in the area were
less than that which Respondent then paid and that the
substantial increase in wages due on July I would place
Respondent in a worse competitive position to bid for
ConAgra's business Williams discussed the matter with
the union president and business agent, Leroy Lmsen-
bigler, on June 25 and explained Respondent's plight
The union membership met on June 26 and voted to
reject the request to reduce wages, and Respondent was
so advised Williams and Lmsenbigler again spoke on
June 30 and arranged to meet later
A meeting followed on July 17 during which Williams
thoroughly reviewed Respondent's cost factors and ex-
plained that Respondent was looking for a wage freeze
until September, at which time there would be a reduc-
tion of wages based on the results of Respondent's nego-
tiations with ConAgra The wage freeze had already
been imposed, effective on July 1 Williams requested a
vote, but Linsenbigler stated that not all union members
were present and, in order to change the contract, the
members were entitled to be given notice of what they
would be voting on Another meeting was held on July
20, at which Williams stated that 42 cents of each dollar
received represented Respondent's total labor costs, of
which 26 cents were pure wages Williams insisted on a
1 I find, as Respondent admits, that It is a Nebraska corporation en-
gaged in the bulk hauling of products from its terminals located through-
out the United States, mcluidng its terminals at Martins Creek, Ironton,
and Treichlers, Pennsylvania, and that, dunng the year preceding the Is-
suance of the complaint herein, It received m excess of $50,000 from the
performance of its Interstate services I conclude that it is an employer
engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the
National Labor Relations Act, 29 U S C § 151 et seq , and also conclude,
as Respondent admits, that the Union is a labor organization within the
meaning of Sec 2(5) of the Act
2 All dates hereinafter set forth refer to the year 1983, unless otherwise
stated
273 NLRB No 27
- HERMAN BROTHERS; INC ' 125
freeze; and the -Ulithe n coil-fueled -With a 'Proposal to base
wages-on the 'ainounf of 26 Cent's:of each dollar received;
but not-1e i than $9.24 per hour, and to increase the per- `•
ceniage Paid to-new'employeeS to 80 percent for the first
6 months and 90 percent for the next 6 months Re-
spondent called its hOme office. and returned to state that
%Youldniit agFee to•the'iNnion's propt•Sal to guarantee
wages Of at least; $9.24 Per hour. •-•
The Wage, freeze 6ontin'ued-until November 13, When'
Respondenf'called a 'Meeting with e Linsenbigler and vani
ous drivers and' explained that ConAgra had accepted"..
Respon.dent's offer. However,-Respondent had to redtiCe
its bid in Order to retain the''liusiriesS;_ and because of
that; the employeeswbuld2ha've to take' a wage reduction
to $7.81 per hour.- Otherwi ,Se, ResPondent wOuld-have
close terminal' After somediscussion,'Kespondent of-.
fered to reduCe wages to $8 53'kers hour....0.n,November.
20, the' union meembership rejected Respondent's- pro-
posed Wage , redudtion' ; 'bOt itesp'onclent :nonetheless on
November 21, 1983, 'reduced' Wages-, to $8 53 per- hour
and mileage rates to 23'ce' nts per, Mile.3eitiowe'ver,-,siniu12'.
taneciusiy, RespondeV increased the, percentage rate- for r'
new erriployees to' 80:Percent of the 'red'uced hourly rate
for the first year 'of emPloyment and 90 pereent of the
' reduced hourly rate for'the,second year Of eiriployment"
The Union's unfair labor practice charge soon followed
In' defense of its , changese to the agreerneift,„Respondent
contends that it and The Union. , agrered, to the" wage,
freeze. However, I discredit William's' testimony that
Linsenhigler had agreed-on, June 25-and, again„ on June
30, to , forgo, the . scheduled July 1 7 wage ' increase. 5. In his
letter to Linsenbigler, dated JUly -1, Williams made ,no
mention of such an agreement, Instead, , he requested Lin-
senbigler to consider :,Respondent's argument that- "a
wage-increase, at this time, does not make .good sense"
and requested another.meetingfor July 17. There was.no
reason for Williams to 'contend, that a wage' increase did
not- make-sense if, he had already received, the .Union's
consent to ,waive the increase.,Williams-testified that, on
July 20, he stated -to Linsenbigler that Respondent could
not implement the , wage increase, because it could, not
pass the cost onto ConAgra.,,There was no reason:he
would have -made that argument if . he had-,:previously
agreed With -the, 'Union _to ,the -.wage freeze.. In Williams'
notes for the November -13; meeting, , he acknowledged
that, subsequent td,the Meetings' „of, June rand July, the
employees voted to strike over t Respondent's failure to
implement the-increase due -On July-1 ,Williams assuredly
knew that union -ratificatiOn -was- necessary to .approve
any change to thesagreement and- that -the members not
only, did not ratify Respondent's proposal but also reject-
ed it. - • - - . •-
. .
3 The reco-rd; although dot precise, nichcates that the reduction affect-
ed both drivers and mechanicS'erigaged in the ;hauling of flour
4 The relevant, docket entries in this proceeding are as follows -The
Union hled `iis unfair labor practice charge on December 5, 1983, com-
plaint Issued on linuary-13, '1484, and the hearing Was held on May 1,
1984
Linsenbigler did not_ recall the contents of the:June 25 conversation
and could recall'only that, on 'June 30, , he agreed to meet with Williams
Despite his lack. of recollectiOn, the remainder of his testlinonY, whiCh. . . ,
credit, indicates that he made no agreement to freeze wages
The , MO'st that -can-conclude from this record isthat '
Linsenbigler held out some hope that' the,-employeés
might be recePtive to forgoing the July 1 increase. Wil-
liams testified only that Linsenbigler said that he had-
talked-to some of the dnvers who were willing to accept •
a wage freeze That is afar-cry from a cOMmitment by"
the e Unain; Nit, is, at' best; an indication that' it members
might agree' to a freeke.''' Even' if I were -to credit Wil-
liam; and' I do not, rfind that the Union agree -d tO a
freeze, Williams" coutered with a proposal that the'
freeze Would be cOntingent Ofi Respondent's 'completion
of 'its negotiations with ConAgra and further _reductiOn
of' wages_ An -acceptance of the Union's Counteroffer
mist be clear and unambiguOus. It cannot vary, add-to,-
or qualify _the terms-of the offer; if it does, it constitutes-
a rejection of the Offer. 1 Williston, Contracts § 7243 (3d
ed. 1957 & Suppe. 1983). Respondent's brief contends that
Respondent agreed to the freeze as an interim solution,
but the Union did 'not offer it with 'that conditionjif
indeed offered it). In any event, Williams agreed to' the
freet ie— While simultanedhsly looking towards a wage-re-
duction, a edistinet variance of the 'Union's proposal, and
-no contract was formed:
What Respondent is attempting ' to e do is bifurcate the
series' of , proPosals ,so that there is an acCeptance .to., a,
countefprOposal while the ongmal proposal is still out-
standing and while Respondent rejected the remainder - of_
the Union's offer' I knoew of no legal authority. which
sustaini.Respondent's argument ReduCed, perhaps, to be' -
absn-rd, Respondent's argument on another' day„ in a dit-
• ferentj economic ,climate,' would permit; a labor. organiza-
tion to Continue to hold out" substantial wage increases,
while agreeing piecemeal to lesser wage,inCreases offered
by anemployer s - -
I ,Conclude that the'.Union.never agreed to the freeze.
The Union's actions , were consistent .with , this conclusion.
The Union filed a grievance on August .16 protesting
that Respondent violated-its agreement , ,6y failing to , pay
the wage increase. Rather than pleading what at hearing s
was alleged to be an agreement, Respondent answered
the- grievance merely by_ stating: "Do [sic] to..particular „
facts 'presented grievance is denied."? It is:probable that„. -
had there been,an agreement to freeze wages, , Respond-.
ent, would have-.stated precisely .that ,Furthermore,,addi-
tional actions of the:,Union . sustain the conclusion that it
never agreed to anything. For example, as noted ,above,„
the Union.voted to reject Respondent's first proposal and
to strike.to protest the freeze. At the November 13.meet-
ing,Lirisenbigler made a counterproposal, to Respond- F
ent's, demand -that wages be , reduced by' requesting , that
Respondent pay its employees "what. [it] 'owed [them] .up
to date.' and the Union would accept a •freeze -until the, .
following July - -
Respondent next contends the Union agreed to reopen
the contract, but once again I find no support for its ay:
guments In sum, Respondent had a problem of retaining
its contract with ConAgra and approached its employees
and Linsen,bigler with its problems and requests for ,wage
6 -Respondent agreed dui-1dg the hearing that It does not desire to- defer .
to arbitration , pursuant to Collyer Insulated Wire, 192' NLRB 837' (1971) --
126 DECISIONS OF NATIONAL: . LABOR RELATIONS BOARD
concessions: The -Union was receptive, insofar: as .listening
to Respondents-pleas, but the Unions never •said,
stance We will reopen the agreement.. If we do not .
reach agreement on the reopener, you, Respondent, can
do anything . you like.': 7 There is nothing in this record.,
other than, talking, listening and, the ;possible hint of an ,.
accommodation, except for evidence thatLinsenbiglepon,1
one occasion used the word renegotiate" There is
tainly , nothing to support Respondent's thesis that, ,once
having agreed to, listen to Respondent or even to ','rer
negotiate, , the agreement became , a.nullity ,and:-,that
spondent,was free, to gomply with It Or ,violate" it, at its:
pleasure To find that, once the Union.agreeS to listen to
and to talk about midterm modifieatiOns; it waives all its„
rights, nnder a written . collective-barganung agreement,• ,•
wOnld_forever deter any labor organization frOM talking
abont any changes, no matter what the circumStanc,-eS„
and ,Would destroy even the possibility of dikuk-sifig,arit-,-
employees financial difficulties. . • - 1,'•;Surely,' the Act is, intended t6 encourage`.bargaining,

and not tO impede ' it as would follow from the- , , . •, .,•,
of keSpondents arguments. Indeed, Section 8(d) . "shall 1.
not lie consfined as requiring either party to discuss - of• • . •agree to any modification of the terms and .conditionstri.
a cOntract for 'a fixed' period;' if such modification
beCome. effective' before' . suCh terms and conditions can
be reopened under the provisions of the contract ." 'The
General bent-Bel cogently argues that "discuss or agree",-;
permitted the' Union to discuss, but impOsed '
tion - on the Union to agree. And, if there is no-obligatiOn
to agree, - R'es'Pondenemdy'not impok its ow'n 'proposalS
as if th'e : Union had 'agreed, thus nullifying the thudits• .statutory privilege to agree.
.SeCtion '8(d) of 'the Act also PrcAiides-that rfo - party to
a contract shall modify a contract unless the party d'esir-,
ing . such modificatiOn (1) Serves a wfitten notice on the
other' party of' the proposed modifiCation, '(2) offers tO
meet witlethe other party, (3) notifies the Federal Medi-
ation' arid Conciliation Services and 'any state'agenCy es-
tablished to 'mediate' and' conciliate disputes Within 30
dayi afteeSnch nOtiCe,and (4) .continues in force all the ; 7
term's -Of' the' existing agreement for a -certain . ' PeriOcl:' -
There is 'no question that - Respondent2 did- nOt . Sefv&the-
notides-reqUired . by Section 8(d)(1) and (3) of modify 'the-.
agree- 'ment WithOut-ihe consent of the Union Respondent'
was -required tO serve such nOticeS, because the 'Union -
sought to modify ancl .did modify the existing agreernent: •
. In addition, Respondent contends that its Inactiow fwas '-
not alleged in the complaint and that it would'-violate
due' Process to find a violation in this respect: 'However,.‘
the -Complaint 'clearly encompassed Respondent's . failure ,--
to complyi With- Section 8(d) by its unilateral . change-arid -•
Respondent was not "misled into failing to' 'litigate- this
issue. Rather, it stipulated to facts at the beginning of the
7 I di 'Lredit, eiie.ral, testi;nony arid, -in 'paiticulait Re- -
spondent's notiCe posted 'on' November 21 in which Respondent claimed
that the Union's negotiating committee agreed to reopen the agreement,
on June 19 The negotiating committee was not present•at the June 19
meeting I also discredit the self-serving statement in Respondent's No-
vember 15 letter to its employees that the Union's negotiatingsommittee
agreed in , June to reopen: the agreement No testimony was adduced that
the committee met la-June , kl
hearing which, ,were relevant, only to, the .8(d) notice
issue.•,In,addition, although Respondent . alleges-.a
of due process, it neglects to advise, what it omitted from
the record because of, its -alleged lack of understanding of
the complaint;
Finally, I turn to the second change the, reduction ,of
wages ...I_ have already rejected' Respondents contention
that there Was any commitment to . reopen the agreement.
But; even if there was, no mention was 'made , about what
was to happen irthe :parties failed , to reach .agreement.
Respondent puts , the ,burden on. -the . UniOnt,tO fix the
terms ,of the reopener, agreement', despite the fact that it
waS, Respondent who desired, to change, the agreenient. ,
Respondent's, argument, in essence„ i , that he-cause there . I
was no,.agre,ement either to arbitrate„or. s cOntinue .in,
effect ` the terms Of the elisting agreefnent; the-parties--. .•
wer ru,e,,freed from all Stctures of the agreement and
could take, such- eConornic action as tie' , deemed desira-
ble..Pfind this' contention unrearand,,groundless, I find
no basis in Unj/thing ` Said'hry. anyone that at the 'point the
Union agreed to discuss the financial problems of Re-:
spondent the collective bargaining agreement became
nullity:Jo', be 'dispOsed of at the whini of 'Respondent.
Noi,do`I find that the Act,' ak -a,,Matter of law, requires
such -a peculiar- result. The la :WA so -deaf- as:to be with
out doubt ; and various of,,, RespOrident's 'contention-S.-
raised at - the.hearing and in its'brief have been fully an
swered . by ,Administrative Law Judge Robert A pian
nak in 'La Porte Transport ,Co., ID-152-84, as follows:
.. •
--' It , is' undispiited- that - Respondent .impleniented:
changes' in . an 'existing- collective-bargaining agree-
ment withent the Union's,consent.,Siich:
vidlative - Of Section 8(a)(5) and -(1) -' of. the Ad be>
caige Section 8(d), which ,defines . the duty to bar':
gain,PfOhibits such changes: In pettinent part, Sec-
• 'tioif8(d) Provides that "n6 party td [an' eiosting col-

' bargaining - agreeinent] shall terminate or
modify' such 'contra,át" .unlesa certain notice'- provi
sionZ ànd : other conditions "are met Section 8(d) - •
-Continues; : 'and the dutieS sd-trnposed shall not be''
., construed as reqiiinng either'. :party to - discuss i" or
agree -to - any modification ' of the terms and , cOndi-
:' ;.tions:-contained- in a:contract fOr' a fixed tperiod, ! if'.
' such ?Modification is to become effective befOre such'
terms"-and- conditidns/can-be 'reopened :under' the::'
7 provis'ions Of the contract" [emphasis added]. In this
case, the Union did‘not agree td Respondent's pro-
' ,posed niodificatiOris. In . ' these circumstances;- the
Board and. the CoUrts 'have' clearly 'and consistently -
. -found an- - eniployees mid-terni- :,modifiCation Of a
fixed 'tent,- thriti'act to be' Unlawful ..:See Oak Cliff-
Go/man Baking Company, 207 NLRB 1063, 1064
(1973), enfd. 505 F 2d 1302 (C.A. 5, 1974),, cert.
denied 423,U.S . 826 (1975); C & S Industries, Inc ,
158 NLRB-454, 457-458 (1966); We-Care Trading
CoMpany,: Ltd, 265 NLRB . No." 56,- slip Op. at 7
(1982). 6, This IS 'true even, though ; &)• ntinneci compli-
ance with the contract will cause the employer fi-
nancial hardship: 'See, Ross-Crane Rental Corp.; 267
NLRB- No. ' 50, slip 'Op. at -6 (1983) Oak
'Goliniin, supra; 207 NLRB at 1064. , ,
isting agreement particularly since Section 8(d) spe-
cifically prohibits such conduct
6 Additionally, in order for a violation to occur, the provisions
of the collective-bargaining akfeement which Me unilaterally modi-
fied must constitute niandatOry subjects of bargaining See Allied
Chemical Workers v Pittsburgh Plate-Glass Go, 404 US 157, 187
(1971) There is no dispute that the provisions of the contract
which are the subject of the instant case do constitute mandatory
subjects
•
Accordingly, conclude that Respondent has violated
Section 8(a)(5) and (1) and 8(d) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and- desist therefroni , and take certain affirma-
tive action designed to effectuate the- purposes of -the
•Act, including the posting of the attached notice. In par-
ticular, I shall recommend that Respondent be ordered'
to rescind its unilateral changes retroactive to July 1,
1983, and--to make whole the employees covered by the
collective-bargaining- agreement for the loss of wages
that they sustained as a result of Respondent's unlawful
conduct of both not increasing wages on July 1, 1983, as
-its agreement requires, and reducing , wages on Novem-
ber 21, 1983. Such payments shall be made with interest
thereon as prescribed in Florida Steel Corp., 231 NLRB
651 (1977).
On these findings of fact and conclusions of law and
on the entire record, 8 I issue the following recommend-
ed 9
ORDER
The Respondent, Herman Brothers, Inc., Treichlers,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Local 289, Bakery and
Confectionery Workers International Union of America,
AFL-CIO by unilaterally modifying and refusing to
comply with the provisions of its collective-bargaining
agreement with the Union, dated May 16, 1983, concern-
ing hourly wages and mileage rates.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section' 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act
(a) Bargain with the Union by restoring, placing in
effect, and complying with all the terms and conditions
of employment provided for in its collective-bargaining
agreement with the Union, retroactive to July 1, 1983.
(b) Make whole the employees in the unit covered by
the collective-bargaining agreement for any loss of
8 Transcript errors have been noted and corrected
9 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
HERMAN BROTHERS, INC 127
Respondent alleges that it was justified in unilat-
erally implementing its proposals to alter the exist-
ing agreement, notwithstanding the Union's refusal
to agree to the • alterations, because (1) an impasse
existed, . [This allegation is] patently without
merit -
First, an impasse in negotiations is irrelevant in a
situation where a party seeks unilaterally to change
an existing agreement. Respondent had agreed to a
contract in April of 1982 and less-than a year later
sought to change specific provisions of that agree-
ment- Whose terms were to continue through March
of 1985 Section 8(d) provides that this 'cannot be
done -without the Union's consent. As the Board
stated in a case where, as here, an employer pro-
posed mid-term contract modifications, the union
indicated a willingness to discuss the matter and the
employer subsequently declared an' impasse and im-
plemented its proposed modifications without the
union's consent.
The Union's consent was required if manage-
ment's ,proposed modifications were to take
effect. When the Union lawfully withheld its
assent, a stalemate did , obtain. The Trial Examin-
er correctly found, however, that although an
employer may unilaterally , institute changes when
an impasse occurs during the negotiations for an
initial bargaining agreement or following the ex-
piration date of an expiring contract, the employ-
er may not do so where, as here, the contract has
not yet terminated. Accordingly, the Trial Exam-
iner correctly ruled that Respondent was not free
in the manner sought to modify the unexpired
agreement over the Union's objections, but was
obligated to maintain in effect all preexisting con-
tractual commitments for the contract term. We
affirm, therefore, the Trial Examiner's finding
that by unilaterally publishing and implementing
terms and conditions of employment inconsistent
with the extant collective-bargaining agreement,
Respondent violated Section 8(a)(5) and (1) of
the Act. [Footnote omitted.]
The Standard Oil Company, 174 NLRB 177, 178
(1969). •
Section 8(d) specifically prohibits such unilateral
changes. Indeed, in the absence of a contractual re-
opener clause, a party may refuse even to discuss
proposed changes. See C S Industries, supra, 158
NLRB at 457. However, where mid-term bargain-
ing does take place pursuant to such a clause, com-
pliance with the Section 8(d) notice requirement
simply permits a party to thereafter resort to a
strike or lockout. See NLRB v. Lion Oil Company,
352 U.S 282, 291-292 (1957). Compliance with the
notice provisions of Section 8(d) does not confer
upon a party the right to unilaterally change an ex-
128 DECISIONS OF NATIONAL LABOR RELAT!ONS BOARD
wages which, the employees' sustained as a _result of Re-
spondent's unlawful conduct, in the, manner- set forth an
the section of this decision entitled "The Remedy."
(c)- Preserve and, on request, make available to the
Board, or its agents for examination and copying, all pay-
roll records, social secunty payment ,records, timecards,
personnel records and reports, and all other records nec-
essary to' analyze the amount of backpay due under the
terms of this Order'. -
(e) Post at its Martins Creek, Ironton, and Treichlers,
Pennsylvania ficilities Oopies' of the attached ,notice
marked "Appendix."" Copies of the notice, on forms
provided by the Regional Director for Region 4, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the ,Respondent immediately
upon receipt and maintained for 60 consecutive days in, , -
conspicuous places including all places where notices to •
employees are customarily posted_ Reasonable steps shall
be taken by the Respondent to ensure that the, notices
are not. altered, defaced, or covered.by-any other mien-.
al . ,
(f) Notify the Regional -Director in-writing within 20
days from the date of this Order what .steps the Re-.,
spondent has taken to,•comply. - ,
- *t. •
10 If this Order 'Is enfoiced by'a Judgment of a United States Court of
Appeals; the words in the notice reading "Posted by Order- of tile
tional Labor Relations Board" shall read,"Posted, Pursuant to a Judgment _
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 refuse to bargain with Local 289,
Bakery and Confectionery Workers International Union
of America, AFL-CIO by unilaterally modifying and re-
fusing to comply‘ with the provisions of our collective-
bargaining agreement with the Union„ dated May. 16,
1983, concerning hourly wages and mileage rates. -
WE WILL NOT in any like or related manner interfere
with, _restrain, or coerce _employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL bargain with,the Union by restoring, placing
in effect, and complying with -all the terms- and condi-
tions of employment ,provided for in our collective-bar-
gaining agreement with the Union, retroactive to July 1,
1983.
WE WILL make whole the employees' in the unit cov-
ered by the collective-bargaining agreement for any loss
of wages which the employees , sustained as a result of
our unlawful conduct, with interest.
HERMAN BROTHERS, INC."