Herman Brothers, Inc.

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 -Ulithen 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 eLinsenbigler 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 eUnain; 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 freetie— 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 `and : 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."