Coca-Cola Bottling Co. Of Buffalo, Inc.

COCA-COLA BOTTLING CO OF BUFFALO 989 Coca-Cola Bottling Company of Buffalo, Inc. and Market Produce, Warehouse, Frozen Food, Cannery Workers, Drivers & Helpers, Local Union 588, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, AFL-CIO. Case 3-CA-14611 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On August 16, 1989, Administrative Law Judge Howard Edelman issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in reply to the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and bnefs and has decided to affirm the judge's rulings, findings, and conclusions as modified below, and to adopt the recommended Order The judge found, and we agree, that the Re- spondent violated Section 8(a)(5) and (1) of the Act by, inter alia, refusmg to recognize the Umon as the collective-bargaining representative of its em- ployees employed at its Orchard Park, New York facility, and refusing to apply to the latter employ- ees the terms and conditions of its collective-bar- gaining agreement with the Union covering ware- house and production employees employed by the Respondent at its Tonawanda, New York facility 1 However, m agreeing with the judge, we do not rely on his finding that the Orchard Park employ- ees are an accretion to the unit at Tonawanda We find that this case does not involve an accretion issue 2 Rather, the record evidence reveals that the Or- chard Park warehouse facility constitutes an exten- sion of, or a spinoff from, the Respondent's ware- housing operation at Tonawanda In this respect, we find the case analogous to Rice Food Markets, 255 NLRB 884 (1981), in which the Board found, in agreement with the judge, that the transfer by The judge also found, and we agree, that the Respondent further vio- lated Sec 8(aX5) and (1) by dealing directly with unit employees rather than with the Union concerning the terms and conditions of employment that would apply to employees who transferred from Tonawanda to the Orchard Park facility, and violated Sec 8(aX1) by telling employees that the Orchard Park facility would be nonunion and that they would have to withdraw from the Union in order to transfer there 2 We also specifically disavow the judge's statement m the first para- graph of the analysis and conclusion section of his decision that "the number of employees to be accreted must be very small in proportion to the number of employees in the contractual unit" the employer, a retail food store chain, of its liquor sales departments from its food stores to adjacent liquor stores under the control of a wholly owned subsidiary, was merely a spinoff from the employ- er's food stores operation The Board there agreed with the judge's findings that accretion principles were not "precisely applicable" because the "new" facilities in question were in fact not wholly new either in function, staffing, or location, and "a divi- sion of an existing facility cannot and should not be viewed in precisely the same manner as the addi- tion of a new facility or facilities" The Board im- plicitly adopted the following distinction drawn by the judge between an accretion and an employer's continuing obligation to recognize and bargain with a union on behalf of a group of employees spun off from an existing unit In practical effect, there is a heavy burden on a party seeking to prove "accretion" to show that the group sought to be added to an exist- ing unit is an "accretion" within the meaning of the Board's longstanding use of that term When, as here, an employer at- tempts to justify removing a particular group or groups from coverage of a collective bargain- ing agreement or relationship, it has the burden of showing that the group is sufficient- ly dissimilar from the remainder of the unit so as to warrant that removal 255 NLRB at 887 3 Similarly, we find that the Respondent's Orchard Park facility is not wholly new and that the Re- spondent has not shown that the Orchard Park em- ployees are sufficiently dissimilar from the Tona- wanda employees to warrant their removal from the unit The record clearly demonstrates that de- spite being located some 20 miles from the Re- spondent's principal facility in Tonawanda, in terms of function and staffing the warehouse facili- ty at Orchard Park is merely an extension of the Respondent's principal warehousing operation at Tonawanda and, like the liquor stores operation in Rice Food, supra, cannot be viewed as a "new" fa- cility The Orchard Park facility, as the Respondent points out in its brief to the Board, was designed to serve only as a "small satellite warehouse facility" to facilitate the distribution of its product to exist- ing customers in the southern portion of its fran- chise territory Thus, when the facility opened in July 1988, the Respondent transferred approximate- ly 30 percent of its Tonawanda accounts to Or- 'See also Hahn Motors, 283 NLRB 901 (1987) (holding that service de- partment employees remained part of original production and mainte- nance unit despite relocation to facility 7 miles away) 299 NLRB No 152 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chard Park, and staffed it with four employees, three of whom formerly were employed at Tona- wanda 4 Overall managerial control over the oper- ations of the Orchard Park warehouse facility and over its employees, however, remained vested in Tonawanda The record shows that the daily work assignments for the Orchard Park employees, as well as the "load maps" which employees must follow m preparing their deliveries, originate m Tonawanda Likewise, all hiring decisions for the Orchard Park facility, and decisions involving pay raises, vacations, or other benefits for the Orchard Park employees are made in Tonawanda Also, the vehicles and other equipment used at Orchard Park are serviced at Tonawanda On these facts it is clear that the Orchard Park warehouse facility does not operate as a new facili- ty, but functions instead simply as an extension of the Respondent's main warehousing operations at Tonawanda For these reasons we find, as we did in Rice Food, supra, that accretion principles do not control 5 We further find that the Respondent has not demonstrated that the employee group at Or- chard Park is sufficiently dissimilar from the re- mainder of the bargaining unit at Tonawanda to justify removing them from the unit The evidence reveals a strong community of interests between the two groups Thus, the Orchard Park employees perform basically the same work performed by the unit employees at Tonawanda, receive substantially the same rates of pay and benefits as unit employ- ees, and have some degree of regular contact with each other In these circumstances, and for the rea- sons stated above, we find that the Orchard Park employees were at all relevant times part of the bargaining unit represented by the Union at Tona- wanda, and that by refusing to recognize and bar- gain with the Union as the representative of the Orchard Park employees, and refusing to apply to the latter the terms of its collective bargammg with the Union, the Respondent, as found by the judge, violated Section 8(a)(5) and (1) of the Act, as al- leged ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Coca-Cola Bottling Company of Buffalo, Inc. Tonawanda and Orchard Park, New York, its officers, agents, sue- Orchard Park employee Bill McKissock was a new hire However, employee Mel Mmgout had been a bargaining unit member at Tonawan- da, and employee Mike Haug had been employed as a nonumt employee at Tonawanda Also, Geoff Joy, the Orchard Park supervisor, had been a member of the bargaining unit at Tonawanda 5 See also Illinois-American Water Co, 296 NLRB 715 (1989) cessors, and assigns, shall take the action set forth in the Order Doren G Goldstone, Esq and Donald Scott, Esq , for the General Counsel James A Prozzi, Esq (Feldstein, Grinberg Stein & McKee), for the Respondent DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge This case was tried before me on February 7 and 8, 1989, in Buffalo, New York On September 27, 1988, Market Produce, Warehouse, Frozen Food, Cannery Workers, Drivers & Helpers, Local Union 588, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO (the Union), filed a charge against Coca-Cola Bottling Company of Buffalo, Inc (Respond- ent) On November 4, 1988, a complaint issued alleging that Respondent violated Section 8(a)(1) and (5) of the Act The thrust of the complaint was that Respondent refused to apply the terms and conditions of its existmg collective-bargaining agreement with the Union to its employees employed by Respondent in a newly estab- lished warehouse facility, Briefs were filed by counsel for the General Counsel and by counsel for Respondent Upon my consideration of the entire record, the briefs, and my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT Respondent is a New York State corporation with its principal office and place of business in Tonawanda, New York, and since July 1988, a warehouse facility m Orchard Park, New York Respondent is engaged in the production and wholesale distribution of soft drink prod- ucts Respondent, annually, in the normal course of its business operations, purchases and receives at its Tona- wanda facility goods valued at in excess of $50,000 di- rectly from points outside the State of New York It is admitted, and I find, that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act Prior to July 1988 Respondent operated a production and warehouse facility in Tonawanda, New York It pro- duced and distributed Coca-Cola and distributed Canada Dry products over a seven county area in western New York The Canada Dry products were shipped to the Tonawanda facility from various out-of-state locations The Union has represented Respondent's production and warehouse employees employed at the Tonawanda facility for a number of years 1 Prior to July 1988 the Tonawanda facility was Respondent's only facility Re- , Respondent also employs sales, distnbution, and fleet service person- nel at the Tonawanda facility who are not represented by the Union COCA-COLA BOTTLING CO OF BUFFALO 991 spondent employs about 25 unit employees at its Tona- wanda facility As early as January 1987, Respondent began to consid- er the possibility of opemng a small satellite warehouse facility to facilitate its existmg distribution It was con- templated that such facility would be a warehousing op- eration only The Union learned of the possibility of a new ware- house facility prior to the begmmng of collective-bar- gaining negotiations for a new contract in March 1987 As a result of such knowledge the Union proposed in writing that a new agreement would mclude the "Right to transfer and staff any new facilities by seniority" Re- spondent counterproposed in wntmg the following 1 In the event that Buffalo Coca-Cola would es- tablish a new Coca-Cola production facility within the current Coca-Cola franchise territory, we agree to offer transfers to the new facility, for the staffing of bargaining unit positions at that facility, to cur- rent employees on a seniority and qualification basis 2 In the event that Buffalo Coca-Cola would es- tablish a warehousing distribution facility within the current Coca-Cola franchise territory wherein the establishment of that facility directly affected a layoff at the Wiens Road facility, we agree to pay a severance pay to those laid-off employees in the amount of days pay for each year of continuance service Negotiations contmued without resolution of this and other economic issues As of May 31, 1987, the last day of the then-current agreement, these issues were unre- solved The Union then commenced a strike which ended on June 2 The parties then met on June 16 and July 10, 1987 There were still a number of items in dis- pute including the Union's demand for, the nght to trans- fer and staff any new facilities by semonty and Respond- ent's proposal limiting such right to new production fa- cilities Respondent's negotiators told the union negotia- tors that they had the right to organize any new ware- house facility The Union withdrew its right to transfer proposal and the parties agreed to terms for a new agree- ment The new agreement contained Respondent's limit- ed proposal relating to transfers of employees to any new production facility Respondent might establish There was nothing in the agreement which expressly or impliedly waived the Union's right to represent the em- ployees of any new warehouse facility Respondent might establish The term of agreement was from 1987 to 1990 Sometime in early June 1988 the Tonawanda ware- house supervisor, Robert Riggs, met with some of the senior unit employees He told them Respondent was going to open a new warehouse facility in Orchard Park and that it would be staffed with three warehousemen Riggs told them they would receive substantially the same pay, slightly better benefits, and retain their seniori- ty He also told them the facility would be nonumon In July 1988 the Orchard Park facility opened The Orchard Park facility was set up to service the southern area of Respondent's territory then presently serviced by the Tonawanda facility Respondent transferred about 30 percent of its Tonawanda accounts for distribution by Orchard Park Labor relations for both facilities are centralized Each facility has a warehouse supervisor who handles the day- to-day relations of the employees under him The respec- tive warehouse supervisors report to the company oper- ations manager at Tonawanda Hiring of employees, their daily work schedules, merit pay raises, and authorization of vacation requests for em- ployees at the Tonawanda and Orchard Park facilities are decisions performed by Tonawanda supervisory per- sonnel The warehouse supervisor at the Orchard Park facility spends most of his time working with the three warehousemen and could best be described as a working supervisor The warehousemen were Mel Mmgoia, a bar- gaining unit, employee Mike Haug, a nonbargaimng unit employee, and Bill McKissock, a new hire The Orchard Park facility was exclusively a ware- house facility It was located about 20 miles, or a 30- minute drive, from the Tonawanda facility It was much smaller in size than the Tonawanda facility The Tona- wanda facility could handle about five trucks while the Orchard Park facility could only handle one The employees in Orchard Park are presently non- union and receive substantially the same rate of pay but slightly more in benefits than the pay and benefits pro- vided in the collective-bargaining agreement at the Tona- wanda facility As set forth above, Orchard Park em- ploys 3 warehousemen, Tonawanda employs 25 unit em- ployees The job functions and skills of the employees at both facilities are virtually identical The employees at both facilities spend virtually all their time loading trucks for delivery and distribution, and "stripping" or unloading trucks with products which are placed in the warehouse for ultimate distribution These shipments are checked to ascertain that they contain the correct products The trucks at both facilities are loaded pursuant to "load maps" which designate the location for each product in the trailer The "load maps" used at the Orchard Park facility are data faxed from Tonawanda daily Products are delivered from the Tonawanda facility to the Orchard Park facility at least twice each day for ulti- mate distribution by Orchard Park The deliveries are made by an Orchard Park employee who punches in and out at the Tonawanda facility This requires some inter- action between Orchard Park and Tonawanda warehou- semen The deliveries are then stripped at Orchard Park by the Orchard Park employees All trucks dispatched from Orchard Park are serviced at the Tonawanda facility Tonawanda mechanics go to Orchard Park to fix smaller equipment like forklifts During July 1988 the Union requested that Respond- ent recogmze it as the collective-bargaining representa- tive for the employees at the Orchard Park facility and apply the parties' collective-bargaining agreement to the Orchard Park employees Respondent refused The Union filed a grievance Respondent contended that the Orchard Park facility was not an accretion to the Tons- 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wanda facility Thereafter the Union filed the Instant unfair labor practice charge Analysis and Conclusion The Board is reluctant to find an accretion because of its concern that the employees are deprived of their nght to select a representative of their own choice, or no rep- resentative For this reason the Board has treated accre- tion as a narrow exception to the general rule against prehire or premature recognition Pursuant to this policy, the Board has found a valid accretion only when the ad- ditional employees have little or no separate group iden- tity, and thus cannot be considered to be a separate unit In other words, the number of employees to be accreted must be very small in proportion to the number of em- ployees in the contractual unit Safeway Stores, 256 NLRB 918 (1981) In the instant case such initial require- ment is met The Tonawanda facility employs 25 unit employees, while the Orchard Park facility employs a small unit of only 3 employees Once this initial requirement is met the Board goes on to look at other factors to determine whether there is a community of interest in the two units The factors con- sidered by the Board are (1) centralization of manage- ment and supervision, particularly in regard to labor re- lations, hiring, discipline, and control over day-to-day operations, (2) the extent of interchange and contact be- tween employees, (3) functional integration of operations, (4) similarity of work conditions, skills, and functions, (5) geographic proximity, and (6) collective-bargaining his- tory Safeway Stores, 276 NLRB 944, 948-949 (1985), NLRB v Stevens Ford, Inc , 773 F 2d 4.68 (2d Or 1985), Bryan & Infants Wear Go, 235 NLRB 1305, 1306 (1978) In the instant case there is almost total centralization of management and supervision with respect to all facts of Respondent's operation It is admitted that control of labor relations is centralized from the Tonawanda facili- ty The evidence also establishes that hiring of employ- ees, their rate of pay, pay raises, benefits, authorization, and approval of vacation requests are centralized from the Tonawanda facility Even work assignments are cen- tralized to a large extent through the use of load maps which are faxed from the Tonawanda facility to Orchard Park The supervisor at the Orchard Park facility is es- sentially a working supervisor There is some degree of regular contact between the Orchard Park employees and the Tonawanda employees One of the Orchard Park drivers transports products from Tonawanda to Orchard daily Moreover, he punches his timecard in and out at the Tonawanda facili- ty While loading this truck there is some interaction be- tween the Tonawanda employees and the Orchard Park driver-warehouseman Further there is additional contact when Tonawanda mechanics came to the Orchard Park facility to repair and mamtam Orchard Park equipment There is almost total functional integration between the Tonawanda and Orchard Park facilities The area serviced by Orchard Park used to be serviced by Tona- wanda The same products are delivered from Orchard to the same customers who used to receive them from Tonawanda These products are delivered to Orchard Park exclusively from Tonawanda Orchard Park trucks are serviced at Tonawanda by unit employees, while Or- chard Park equipment is serviced at Orchard Park by Tonawanda unit employees The working conditions, skills, and functions of the Orchard Park employees are identical to those per- formed by the bargaining unit members at the Tonawan- da facility The vast majority of work time of the Or- , chard Park employees is spent on loading and stripping trucks The load maps used by the Orchard Park em- ployees are identical to those used by the Tonawanda employees and the same trucks are being loaded with the same products Further, the Orchard Park employees re- ceive substantially the same rates of pay and other bene- fits Additionally, unit employees at Tonawanda who were offered the opportunity to transfer to Orchard Park were told they would retain their semonty Indeed, the single unit employee who did transfer has retained his se- niority The Orchard Park facility is close to the Tonawanda facility The Orchard Park facility was opened to serve a portion of temtory formerly serviced by Tonawanda Moreover the distance is short enough so that products are easily delivered daily from Tonawanda to Orchard Park, for delivery to Respondent's customers Further, the facilities are close enough so that one of the three employees at Orchard Park is required to punch m and out of the Tonawanda facility Universal Secunty Instru- ments, Inc , 250 NLRB 661 (1980) The bargaining history between the parties does not militate against a finding of accretion The Orchard Park warehouse was created after the current agreement was effective The Orchard Park facility is the only facility opened by Respondent aside from its Tonawanda facility, and so there is no history of employees performing this type of work at a facility other than Tonawanda The language in the collective-bargammg agreement does not serve to preclude a finding of accretion Universal Securi- ty Instruments, Inc , supra at 671, Goodyear Tire & Rubber Go, 195 NLRB 767, 769 (1972) Based on an analysis of the above factors, I conclude the Orchard Park facility is an accretion of the Tona- wanda facility Respondent contends that during the 1987 collective- bargaimng negotiations, the Union acquiesced in the ex- clusion of the Orchard Park facility from the existmg collective-bargaining unit and therefore waived its right to represent the Orchard Park employees in the present bargaimng agreement I fmd no merit m Respondent's contention The law is unequivocal that a waiver of contractual rights must be clear and unmistakable Metropolitan Edison Co v NLRB, 460 U S 693 (1983), Rockwell Inter- national Gory, 260 NLRB 1346 (1982), Southern Cahfor- ma Edison Go, 284 NLRB 1205 (1987) The Board has held that where a umon promises not to represent certain employees during the term of its collective-bargaining agreement, the Board will not during such term entertain a petition by the union seeking such representation Briggs Indiana Corp, 63 NLRB 1270 (1945), Allis- Chalmers Mfg Go, 170 NLRB 1 (1969) However, the Board has also held that such waiver will be applied COCA-COLA BOTTLING CO OF BUFFALO 993 only where the contract itself contains an express prom- ise on the part of the Union to refrain from seeking rep- resentation of the employees in question Such promise or waiver will not be implied from a mere unit exclusion, or on the basis of any alleged understanding of the par- ties during contract negotiations Cessna Aircraft Co, 123 NLRB 855 (1959), United Broadcasting Co, 223 NLRB 908 (1976) The present collective-bargaining agreement between the parties contains no provision, express or implied, re- lating to the Union's right to represent employees at any new facility opened by Respondent Respondent contends that the Union waived its right to represent the Orchard Park employees because it withdrew its proposal that Respondent recognize the Union at any new facility opened by Respondent Re- spondent cites Weathente Co, 261 NLRB 667 (1982), where the Board states In those situations where a party knowingly acqui- esces in the exclusion of a group of employees at the time it executes a collective bargaining agree- ment, it is reasonable to presume that the party which later seeks to upset the collective agreement received some concession which may not have been granted if it had pressed the unit placement problem at the bargining table Hence it would be unfair of the Board to give a party something it would not or could not buy at the bargaining table However during all bargaining sessions both the Union's proposals and Respondent's counterproposals in- volved the right to transfer current unit employees to any new facilities opened and not the issue of recognition or right of representation As a matter of fact Respond- ent throughout the entire course of negotiations took the position that the Umon could always organize the em- ployees employed at any new facility opened by Re- spondent I find such position inconsistent with Respond- ent's present contention If the Union could organize the employees and use the Board election procedures to obtain certification it can also, in the absence of an ex- press waiver, use the Board's procedures to establish an accretion Park-Ohio Industries, 257 NLRB 413 (1981) I conclude the Union did not waive its right to estab- lish an accretion, or its right to represent the employees at Respondent's Orchard Park facility It is admitted that in June 1988, Riggs met with bar- gaining unit employees and told them about job opportu- nities at the Orchard Park facility Riggs was very spe- cific in setting forth the terms and conditions of employ- ment at the Orchard Park facility It is beyond dispute that the setting of wages and benefits are mandatory sub- jects of bargaining Accordingly, I conclude that Re- spondent in dealing directly with its employees concern- ing these matters violated Section 8(a)(1) and (5) of the Act Universal Security Instruments, 250 NLRB 661 fn 3 (1980) It is also admitted that Riggs when he met with em- ployees in June 1988, told them if they were considering transferring to the Orchard Park facility that it would be a nonunion facility and the employees would have to withdraw from the Union in order to transfer to that fa- cility I find such statement constitutes an interference with the employees Section 7 rights and Respondent vio- lated Section 8(a)(1) of the Act when making these com- ments THE REMEDY Having found that Respondent violated Section 8(a)(1) and (5) of the Act by failing to recognize the Union as the exclusive collective-bargaining representative of its employees employed at the Orchard Park facility and to extend their collective-bargaining agreement to the above-named employees, I shall recommend that such recognition be ordered, and the collective-bargaining agreement be extended retroactively to such employees I shall also recommend that Respondent be ordered to make whole the Orchard Park employees for any loss of pay or other benefits they may have suffered as a result of such failure to extend the above collective-bargaining agreement, together with interest computed in accord- ance with the formula approved in New Horizons for the Retarded, 283 NLRB 1173 (1987) Additionally, Re- spondent shall be ordered to make the Union whole for any moneys due it pursuant to the terms of the collec- tive-bargaining agreement between Respondent and Umon CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Umon is a labor organization within the mean- ing of Section 2(5) of the Act 3 The Union is the exclusive bargaining representative of Respondent's production, maintenance, and warehouse employees employed by Respondent at its Tonawanda and Orchard Park facilities 4 Respondent violated Section 8(a)(1) and (5) of the Act when it refused to recognize the Union as the exclu- sive bargaining representative for the employees em- ployed by Respondent at its Orchard Park facility, and to extend the terms of its collective-bargaining agree- ment with the Umon to such employees 5 Respondent violated Section 8(a)(1) and (5) of the Act by dealing directly with its Orchard Park employees represented by the Union with respect to wages and other terms and conditions of employment 6 Respondent violated Section 8(a)(1) of the Act by telling its employees that it would have to withdraw from the Union to transfer from the Tonawanda to the Orchard Park facility and such facility would be non- union The aforesaid unfair labor practices affect commerce within the meaning of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Continued 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Coca-Cola Bottling Company of Buf- falo, Inc , Tonawanda and Orchard Park, New York, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Refusing to recognize and bargain with Market Produce, Warehouse, Frozen Food, Cannery Workers, Drivers & Helpers, Local Union 588, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, as the exclusive bargain- ing representative of Respondent's production, mainte- nance, and warehouse employees employed at Respond- ent's Orchard Park facility (b) Dealing directly with our employees at our Or- chard Park facility who are represented by the Union (c) Telling employees who wish to transfer from our Tonawanda facility to our Orchard Park facility or become employed at our Orchard Park facility that such facility will be nonunion (d) In any like or related manner mterfenng 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 necessary to effectuate the policies of the Act (a) Recognize and upon request bargain with the Union as the exclusive representative of our employees in the Orchard Park unit described above (b) Apply the terms of our collective-bargaining agree- ment with the Union to the unit employees employed at our Orchard Park facility (c) Make whole together with interest as described above those employees employed at our Orchard Park facility for any loss of wages and benefits they may have suffered for our failure to apply the terms of the collec- tive-bargaining agreement with the Union to them (d) Make whole the Union for any moneys that would have been due it under the terms of the collective-bar- gaining agreement with the Union (e) Preserve and, on request, make available to the Board or its agents for exammation and copying, all pay- roll records, social security 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 (f) Post in conspicuous places at its principal place of business in Tonawanda and Orchard Park, New York, and at all other locations where notices to employees are posted copies of the attached notice marked "Appen- dix "3 Copies of the notice, on forms provided by the 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 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcmg an Order of the National Labor Relations Board" Regional Director for Region 3, shall be signed and posted by an authorized representative of Respondent Employer immediately upon receipt, and maintained for 60 consecutive days Steps shall be taken by Respondent Employer to ensure that the notices are not altered, de- faced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT refuse to recognize and bargain with Market Produce, Warehouse, Frozen Food, Cannery Workers, Drivers & Helpers, Local 588, of the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of Amenca, AFL-CIO, as the ex- clusive bargaining representative of Respondent's pro- duction, maintenance and warehouse employees em- ployed at Respondent's Orchard Park facility WE WILL NOT deal directly with our employees at our Orchard Park facility who are represented by the Union WE WILL NOT tell our employees who wish to transfer from our Tonawanda facility to our Orchard Park facili- ty or become employed at our Orchard Park facility that such facility will be nonunion WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and upon request bargain with the Union as the exclusive representative of our employees in the Orchard Park unit descnbed above WE WILL apply the terms of our collective-bargaining agreement with the Union to the unit employees em- ployed at our Orchard Park facility WE WILL make whole together with interest as de- scribed above those employees employed at our Orchard Park facility for any loss of wages and benefits they may have suffered for our failure to apply the terms of the collective-bargaining agreement with the Union to them WE WILL make whole the Union for any moneys that would have been due it under the terms of the collec- tive-bargaining agreement with the Union COCA-COLA BOTTLING COMPANY OF BUF- FALO, INC