Farm Crest Bakeries

National Labor Relations Board - Board Decisions

Apr 27, 1979

241 N.L.R.B. 1191 (N.L.R.B. 1979)

FARM CREST
Farm Crest Bakeries, A Division of Ward Baking
Company, Inc., Ward Foods, Inc. and Bakery Sales-
men, Drivers, Warehousemen and Helpers Local
Union No. 51, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Cases 7-CA-13925 and 7-CA-13992
April 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 2, 1978, Administrative Law Judge Sid-
ney J. Barban issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions, a supporting brief, and an an-
swering 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Farm
Crest Bakeries, A Division of Ward Baking Com-
pany, Inc., Ward Foods, Inc., Detroit, Michigan, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph 2(a) and
reletter the following paragraphs accordingly:
"(a) Cancel its jobber agreements for distribution
of its products and reestablish the driver-salesman
system of delivery and distribution of its products.
"(b) Offer the driver-salesmen terminated on or
about March 2, 1977, immediate and full reinstate-
ment to their former positions or, if such positions no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights or privi-
leges previously enjoyed, and make them whole for
1191
any loss of pay they may have suffered in the manner
provided in the remedy section of this Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed as to alleged violations of the
Act not found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT deal directly or individually
with employees concerning their working condi-
tions in derogation of Bakery Salesmen, Drivers,
Warehousemen and Helpers Local Union No.
51. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other union which is the exclu-
sive representative of our employees for the pur-
poses of collective bargaining.
WE WILL NOT unilaterally change the working
conditions of our employees in violation of a col-
lective-bargaining agreement without the con-
sent of the union which is party to that agree-
ment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights under the National Labor
Relations Act.
WE WILL, upon request of the Union, sign the
driver-salesman bargaining agreement effective
October 31, 1976, and running to October 6,
1979, and WE WILL honor and comply with that
agreement retroactive to its effective date.
WE WILL cancel all jobbers agreements and
WE WILL reestablish the driver-salesman system
of delivery and distribution of our products.
WE WILL offer to the driver-salesmen termi-
nated on or about March 2, 1977, immediate and
full reinstatement to their former positions or, if
such positions no longer exist, to substantially
equivalent jobs, without prejudice to their senior-
ity or other rights and benefits previously en-
joyed, and WE WILL make each of them whole
for any loss of earnings or benefits he may have
suffered by reason of his termination, with inter-
est thereon.
FARM CREST BAKERIES, A DIVISION OF
WARD BAKING COMPANY, INC., WARD
FOODS, INC.
241 NLRB No. 195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was heard before me in Detroit, Michigan, on October
17-21, 1977, upon an order consolidating cases and a com-
plaint issued on June 1, 1977, based on charges filed by the
above-named Charging Party (herein called the Union) on
March 29 and April 27, 1977. The complaint alleges that
the above-named Respondent violated Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended
(herein called the Act), as hereinafter detailed. The answer
to the complaint denies the unfair labor practices alleged.
Upon the entire record in this case,' from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Ward Baking Company, Inc. (herein called Ward Bak-
ing), a wholly owned subsidiary of Ward Foods, Inc.
(herein called Ward Foods), operates plants in several
States of the United States, including a plant located at
3600 Toledo Avenue in Detroit, Michigan, under the opera-
tion of its Farm Crest Division (which plant will be referred
to herein as the plant, or Respondent's plant). During a
recent annual period, goods and materials valued in excess
of $50,000 were transported and delivered from directly
outside the State to Respondent's plant, and during the
same period Respondent received revenues in excess of
$500,000 from the sale of its bakery and food products.
It is admitted, and I find, that Respondent is an employer
engaged in commerce, and that the Union is a labor organi-
zation within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
(1) For some years the Union has been the exclusive bar-
gaining representative of an appropriate unit of driver-
salesmen employed by the Respondent at its plant opera-
tions in and about Detroit (the Union has also been the
bargaining representative of appropriate units of Respon-
dent's clerical employees and its transport drivers and ga-
rage employees, who are involved to a lesser degree in this
matter). Respondent and the Union were parties to a collec-
tive-bargaining contract covering the driver-salesmen unit
effective from 1973 until October 30, 1976, subject to condi-
tions discussed hereinafter. General Counsel asserts that
prior to the termination date of the 1973-76 agreement,
Respondent agreed that it would execute whatever contract
the Union reached with Respondent's major competitors
I Since the close of the hearing I have received G.C. Exh. 23 from the
parties for inclusion in the record. It has been inserted in the exhibit file in
accordance with rulings made at the hearing.
(with whom the Respondent had been accustomed to join
in bargaining with the Union), but that Respondent, in vio-
lation of the Act, refused to sign and adhere to the negoti-
ated 1976-79 agreement covering the driver-salesmen.
Respondent does not dispute that it agreed in advance to
sign the driver-salesmen contract negotiated with its com-
petitors for 1976-79, but argues that it was nevertheless not
obligated to sign or comply with that agreement because of
several factors: (I) the Union's notice to open the 1973-76
agreement was untimely and therefore the agreement re-
newed itself: (2) the Union's notice to open the 1973-76
agreement was so limited that the agreement renewed itself;
(3) at the time Respondent's representative agreed to ex-
ecute the new agreement negotiated by the Union for
driver-salesmen, that representative was not personally
aware of the asserted deficiencies in the Union's notice to
reopen the 1973-76 agreement; (4) the 1976-79 agreement
contains changes not open for negotiation under the
Union's notice; and (5) because it had contracted out the
work formerly done by its driver-salesmen to persons who
had been its driver-salesmen (and two or three others), it
therefore assertedly had no driver-salesmen employees at
the time the Union requested Respondent to sign the new
agreement. General Counsel contends that the driver-sales-
men continued to be employees of Respondent when Re-
spondent refused to sign the 1976-79 agreement.
(2) On or about February 12, 1977, Respondent shut
down its plant operations in and about Detroit in which its
driver-salesmen and garage employees and transport driv-
ers were engaged, asserting that it would reopen on Febru-
ary 28. General Counsel contends that the decision to tem-
porarily close down operations and lay off those employees
was made and carried out without prior notice to and bar-
gaining with the Union, in violation of the Act. Respondent
argues that it had no obligation to notify or bargain with
the Union concerning the decision to temporarily close
down its operations and lay off the driver-salesmen, garage
employees, and transport drivers, but that it did, in fact, do
so.
(3) General Counsel contends that beginning on or
about February 14, 1977, Respondent bargained directly
and individually with its driver-salesmen (represented by
the Union), in violation of the Act, in an effort to persuade
them to accept a status of jobbers rather than that of em-
ployees, in violation of the Act. Respondent denies that it
bargained individually with the driver-salesmen represented
by the Union in derogation of the Union's representative
status.
(4) General Counsel contends that Respondent's change
from its established method of distribution of its products
by employee driver-salesmen to distribution by asserted in-
dependent jobbers was in violation of the 1976-79 agree-
ment, to which Respondent had agreed, and that such
change, implemented assertedly without notice to the
Union, and prior to impasse reached on the issue with the
Union, violated the Act. The Respondent argues that it was
not bound by the 1976-79 agreement for the reasons noted,
and that, in fact, it did give notice to the Union and bar-
gained with it concerning the change in its method of distri-
bution from driver-salesmen to jobbers.
1192
FARM CREST BAKERIES
B. The Facts
I. The contracts
At times material to this matter, Respondent was party
to three contracts with the Union, one for the driver-sales-
men, one for so-called hourly workers (mechanics, garage,
transport drivers, et al.), and one for office workers. It also
had bargaining agreements covering plant production and
maintenance operations with other unions. As noted above,
we are principally concerned here with Respondent's con-
tracts with the Union for the driver-salesmen.
The 1973-76 bargaining agreement covering driver-sales-
men which Respondent executed provided in article XXIV,
"Term of Agreement," as follows:
Section 1. Term
This Agreement shall be in full force and effect from
October 7, 1973 to and including October 9, 1976, and
shall continue in full force and effect from year to year
thereafter unless written notice of desire to cancel or
terminate the Agreement is served by either party
upon the other at least sixty (60) days prior to date of
expiration.
Section 2. Reopening Notice
It is further provided that where no such cancella-
tion or termination notice is served and the parties de-
sire to continue said Agreement but also desire to ne-
gotiate changes or revisions in this Agreement, either
party may serve upon the other a notice at last sixty
(60) days prior to October 9, 1976, . . . advising that
such a party desires to continue this agreement but
also desires to revise or change terms or conditions of
such Agreement.
Section 3. Failure to Agree
The respective parties shall be permitted all lawful
economic resources, including the right to strike, to
support their request for revisions if the parties fail to
agree thereon.
In January 1976, Respondent and the Union executed an
addendum to this contract, which, inter alia, amended the
article set forth above as follows: "The entire Agreement
shall be in full force and effect up to and including October
30, 1976."
By letter dated August 24, 1976, the Union advised Re-
spondent and other employers that the Union "desires to
continue its existing agreement [covering driver-salesmen],
but also desires to negotiate changes or revisions in such
Agreement. The particular Contract provisions concerning
which we desire to negotiate is wages." Respondent re-
ceived this notice at its Detroit offices on August 26, and at
its Wilmette, Illinois, office on August 29.
2. The September 1976 meeting
Prior to 1976, Respondent had joined with two of its
competitors, ITT Continental (herein ITT) and American
Bakeries (herein called American), in an informal arrange-
ment referred to in the record as "the bargaining council,"
in negotiating with the Union. At Respondent's request, in
late September 1976, Louis M. Picchi, president of the
Union, and Robert Holmes, a vice president of the Team-
sters, met with Vincent Kommer, vice president of Ward
Foods, responsible for labor relations of Ward Foods and
its subsidiary companies (including Farm Crest), and Low-
ell Sitter, executive vice president of Ward Foods. Kommer
and Sitter informed the Union representatives that because
of the magnitude of the losses suffered by Farm Crest in
Detroit so far that year, which were specified, the Respon-
dent was in no position to take a strike, and that such an
event would have disastrous effects. They asked that the
Union agree to Respondent's withdrawing from "the bar-
gaining council" and agree not to strike Respondent, but
deal with it after completing the bargaining with the other
two companies. Picchi responded that he would agree to
this procedure if Respondent would agree to accept the set-
tlement eventually made with the other companies. Re-
spondent agreed to this offer made by Picchi. This con-
cluded the meeting.
In October, Respondent again sought Picchi's assistance
in preventing any picketing of its Detroit operation which
might result from the closing of several distribution depots,
referred to as "agencies," operated in certain outlying com-
munities, these closings again being attributed to financial
losses by Respondent. Though some of the local unions di-
rectly involved threatened economic action, apparently
none occurred.
3. The 1976-79 contract
During the fall of 1976, the Union did negotiate with the
remaining two employers in the "bargaining council." Dur-
ing the course of these negotiations. in November, the
Union struck ITT for 10 days, at the end of which time a
settlement was reached. This settlement provided for a
number of language changes from the prior agreement cov-
ering driver-salesmen, including provisions applicable to (I)
recognition, union shop and dues, (2) hours, (3) sick pay, (4)
employee bonds, (5) vacations, (6) seniority, (7) death in the
family, (8) health, welfare, and pension, and, of course, (9)
term of the agreement.
Whether all of these language changes actually changed
the operation of the contract might be a subject for argu-
ment. For example, one of the new clauses, of particular
significance to the issues here, is the following (from G.C.
Exh. 8, a memorandum of the changes which is entitled
"Addendum to Contract"):
Section 7. The Employer agrees to respect the juris-
dictional rules of the Union and shall not direct, or
allow its employees or persons other than employees in
bargaining unit classifications as hereinafter set forth,
to perform work that has been recognized as the work
of the bargaining unit employees.
Section 8. The employer shall not condition further
employment on the purchase of truck tractor and/or
tractor and trailer or other vehicular equipment or on
the purchase or assumption of any proprietary interest
or other obligation in the business.
The prior agreement provided merely that "The Em-
ployer agrees that it will not ask any employee covered by
this Agreement to make any verbal or written agreement
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which in any way conflicts with the terms of this Agree-
ment."
Respondent was aware of the strike against ITT and the
settlement of the new contract at the time those events oc-
curred. In late January 1977, the Union supplied Respon-
dent, for its information, a copy of the Addendum to Con-
tract, referred to above, containing the changes which had
been agreed upon by ITT and American. On March 17,
1977, and thereafter, the Union requested Respondent to
sign the driver-salesmen agreement for 1976-79, containing
the terms which had been agreed upon by ITT and Ameri-
can, but Respondent refused?
4. The temporary shutdown and layoffs
In January 1977 (all dates hereinafter are in 1977, unless
otherwise noted), Respondent underwent a corporate reor-
ganization. On February 10, at Respondent's request,
Picchi and Eugene Cope, vice president of the Union, met
at Respondent's plant with Geoffrey Stiles, the new pres-
ident of Ward Baking, Herbert VanWyck, and William E.
Buchanan, then officers of Farm Crest, and Lowell Sitter of
Ward Foods. The Union representatives were informed
that Farm Crest was losing about $90,000 a week, which
management could not allow to continue, that Farm Crest
had therefore decided to close down its operations in De-
troit effective February 12 (since this was a Saturday, ordi-
narily a nonwork day, the actual closing would occur on
February 14) for a 2-week period in order to reorganize the
operation, and that this might involve the elimination of
some driver-salesmen. It was stated that the operation
would be resumed on February 28. Picchi argued that Re-
spondent should reorganize while it was operating, that it
should not remove itself from the market for 2 weeks. Re-
spondent countered that it was not concerned by being out
of the market for 2 weeks, that it had been out of the mar-
ket before because of strikes, and that it could cut its losses
substantially by shutting down.
By memo dated the same day, Respondent's employees
were notified that they would be on "temporary lay-off,"
effective February 12.
In response to a number of calls by its members, the
Union scheduled a union meeting to discuss the layoff and
asked that a member of management attend to answer
questions. At the union meeting held on February 14,
Picchi informed the members of what he had been told on
February 10, and VanWyck, on behalf of Farm Crest, as-
sured the men that Respondent would reopen on the 28th,
but probably with substantially fewer sales routes. He sug-
gested that driver-salesmen with less than a certain amount
of seniority should begin looking for new jobs.
5. The contracting out of driver-salesmen work
The meetings on February 16-18. At Respondent's re-
quest, Picchi met with Kommer, Sitter, and VanWyck at
the Dearborn Inn during the morning hours on February
16- 18. Respondent again emphasized its losses in operating
2 At the same time. Respondent did sign the new agreement covering the
mechanics, transport dnvers, and other hourly rated employees, as requested
by the Union.
in Detroit, and asserted that they would have to reduce
costs in order to stay in business. Picchi took the position
that Respondent was losing money because of the cost of
raw materials and the inefficient way, in his opinion, the
plant was being run. Respondent stated that it would be
meeting with the Bakery and Confectionary Workers to dis-
cuss reducing manufacturing costs, but insisted that distri-
bution costs would have to be reduced also. During these
meetings, Respondent suggested that these costs could be
reduced by the Union's agreeing to a reduction in the
amount of commission paid to the driver-salesmen, or by
instituting a system of drop deliveries at central warehouses
of various chain stores. Picchi responded that these actions
would be contrary to the bargaining agreement. In the case
of the suggested reduction in commissions, he noted partic-
ularly that this would put the Union in conflict with Re-
spondent's competitors. (In fact, under the bargaining
agreement, the Union would have to grant all employers
party to the agreement the same favorable terms.) Picchi
noted that the drop delivery suggestion would deprive the
driver-salesmen of the commissions to which they were en-
titled under the contract. According to the testimony of
Kommer, Respondent also discussed with Picchi problems
of discounts to supermarkets and costs of distributing pri-
vate label breads, matters over which the Union had no
control. Picchi suggested to Respondent that it could cut
costs by rearranging and combining sales routes and laying
off those driver-salesmen with the least seniority, which
would be in accordance with the bargaining agreement. Re-
spondent stated that this would not save enough money,
and that it therefore could not agree to that.
During the morning of the 19th, Respondent gave Picchi
a handwritten proposal, which provided as to the driver-
salesmen: "Effective 2/28/1977 the route sales operations
of Farm Crest will be replaced by jobbers. Obligations un-
der the labor agreement of severance pay and vacations will
be complied with." It also provided that with respect to the
"hourly employees." their agreement should be amended to
provide for elimination of certain fringe benefits and an 8
percent wage reduction for one year. Picchi rejected these
proposals, noting that they were contrary to the agreement
and that by such action Respondent would deprive the
driver-salesmen of their health, welfare, and pension cover-
age, place them in unfair competition with driver-salesmen
employed by Respondent's competitors, and, in fact, re-
move them from union membership. He further stated that
he could not agree to cut the wages and benefits of the
hourly employees.
The meetings broke up on this note. Komer recalled that
Picchi said he would present Respondent's proposals to the
union membership.
Respondent's desire to replace the driver-salesmen with
jobbers was apparently quickly communicated to its sales
supervisors. On February 19 or 20, at least one supervisor,
Vultaggio, asked the driver-salesmen whom he supervised
to attend a meeting on February 20 to discuss the matter.
At this meeting the driver-salesmen were given to under-
stand that their agreement to become jobbers would be in
their best interests, as Respondent would likely not reopen
its operations if the employees did not agree to the desired
change in operations. One driver-salesman present, Freder-
ick Parker, sought to persuade the employees that the
1194
FARM CREST BAKERIES
change was not in their best interests and that the men
should stick together.
The meeting with the employhees on Fehruaro 22. Through
the sales supervisors Respondent requested the driver-sales-
men to attend a meeting at Respondent's plant on the eve-
ning of February 22. Buchanan invited Picchi to attend. At
this meeting Respondent advised the employees of its finan-
cial difficulties and said that it would be necessary to
change its method of distributing its products. The employ-
ees were told that Respondent wanted them to agree to
become independent jobbers. Buchanan advised the em-
ployees that they could make money on this basis and
spelled out a number of details of the proposed operation.'
The employees were invited to ask questions and a number
of them did so. Inasmuch as Respondent's proposal would
mean that it would no longer be responsible for contribu-
tions to the union health and welfare and pension funds, a
number of employees were concerned about their status un-
der those funds. Picchi attempted to answer those ques-
tions, but apparently not entirely successfully. He therefore
agreed to hold a union meeting the next evening at which
representatives of those two funds would be present to an-
swer questions of the members.
After this meeting, Respondent's representatives returned
to their office, where they proceeded that night and the next
morning to draft a jobbers agreement and, apparently, a
vehicle sales agreement. The next morning, Respondent
asked Picchi and other union representatives to meet with
Respondent's officers and its lawyers at the plant.
The February 23 meeting between Respondent and union
representatives. Picchi and some other union officers met
with Buchanan and others at Respondent's plant in the ear-
ly afternoon on February 23. Respondent distributed copies
of the draft jobbers agreement and asked for the Union's
comments on it. Picchi reiterated his objection to the pro-
posal, but agreed to go over it with Respondent on the basis
that if the driver-salesmen were ultimately compelled to ac-
cept it, they should have the least objectionable arrange-
ment. In the course of over 2 hours of discussion, the parties
read the proposed agreement paragraph by paragraph, with
the union representatives stating several objections to var-
ious proposals. While Respondent appears to have indi-
cated acquiescence on some of these matters in whole or in
part, there seems to have been no actual agreement on
changes at the meeting. Picchi stated that he would present
Respondent's jobber proposal to the union membership at
the meeting scheduled for that evening.
Earlier that same day. Supervisor Vultaggio had again
met with the driver-salesmen under his jurisdiction in a fur-
ther effort to persuade the employees to become jobbers.
Vultaggio advised that he had been told by management
that Respondent was definitely . . . going to go jobbers."
Vultaggio sought the names of driver-salesmen who were
interested so that Respondent would have an idea of how
many were inclined to accept the new procedure. Employee
Parker again protested that this was an illegal meeting and
asserted that Respondent would continue under the "old
contract" if the employees refused the jobber arrangement.
I Kommer testified that this presentation was much more complete than
that given the Union on February 18. characterizing the February 22 presen-
tation as a proposal for a jobber agreement, whereas that of February 18 was
a "proposal to go . . to the jobber method of distribution."
Vultaggio insisted that this would not occur: there was no
longer a sales force, he said, and "[i]t was either this jobber
deal or forget it."
The union meeting on Februaro 23. Prior to the union
meeting, Respondent delivered to Picchi a form letter ad-
dressed to "All Prospective Jobbers." stating that Respon-
dent had reviewed its position "aifter listening to your
questions and discussions last evening." and was now will-
ing to increase the discount to 32 percent in order to launch
this program as vigorously as possible.' Attached to this
letter was a list of Respondent's proposed wholesale and
retail prices, in response to questions raised by employees at
the meeting on the evening of February 22.
At the union meeting on the evening of February 23,
Picchi told the members of his meeting with Respondent
earlier in the day and read the jobbers agreement which
Respondent had proposed and the letter which had just
been delivered from Respondent. When the union members
were asked whether they were interested in Respondent's
proposal, only five voted for it. Picchi said, therefore, this
was the end of the matter. Representatives of the union
pension and health and welfare funds were present to dis-
cuss the members' questions concerning those matters.
Thereafter, Picchi called Buchanan and advised him that
only five members were interested in becoming jobbers. Bu-
chanan replied that "it looks like we are in trouble," assert-
ing that the men should have accepted but that was "their
business." That evening and the next day, Respondent ob-
tained from members who had been present at the meeting
reports as to what had been done and said at the meeting.
The meetings with employees on February 25 and 26. Re-
spondent, anticipating that it would take longer than origi-
nally expected to accomplish its purposes, by notice dated
February 25 notified the employees that it would not re-
open its plant until March 7, instead of February 28 as
previously expected.
Beginning February 25, Buchanan, together with some
other supervisors and management personnel, began meet-
ing with the driver-salesmen individually and in groups in
an effort to induce them to agree to become jobbers as
Respondent desired. Buchanan had made notes of various
objections to Respondent's program which had been re-
ported to him after the union meeting of February 22, and
prepared certain concessions which Respondent had de-
cided to give to meet those objections. Principal among
these was an offer to the driver-salesmen of a 6-week (or 42-
day) trial period to see how the program worked out, dur-
ing which Respondent would lease its trucks to the driver-
salesmen (lease payments to be applied to the purchase of
the trucks) and would continue to pay insurance and ex-
penses on the trucks and maintain them, as well as provide
spare equipment if the leased truck broke down, and an
offer by Respondent to take back a certain proportion of
the product remaining on the retailers' shelves beyond the
'Respondent had proposed giving the jobbers a 30 percent discount off
the wholesale pnce of Respondent's products (set by Respondent). Picchi
had objected that some other bakers under contract to the Union who paid
their employees on a discount basis paid 32 33 percent (though those em-
ployees are stated in the record to be jobbers, the record shows that those
employers covered such employees under the union contract, paying their
pension and health and welfare contributions, social security, unemployment
insurance. etc.)
1195
)DE('CISIONS OF NA 'IONAI, LABOR RELATIONS BOARD
expiration date stamped on the product (referred to as
"stale") and to deliver its products at Respondent's expense
to the various agency points, where they could be picked up
for delivery to the retailer during the trial period.
During these meetings, Respondent distributed to the
driver-salesmen revised copies of its proposed "Jobber
Agreement."' Respondent went over its proposal with the
driver-salesmen paragraph by paragraph. A number of' the
proposals made to the employees at these meetings differed
from the written proposal submitted to the Union on Feb-
ruary 23. Some of these involved concessions made in re-
sponse to union objections on February 23; others. like the
6-week trial period noted above, made in response to em-
ployee complaints, were apparently never discussed with
the Union. Other such concessions offered at these meetings
included Respondent's offer to have its management in
charge of sales negotiate with the chain stores for the job-
bers in order to obtain acceptance of Respondent's prod-
ucts delivered by jobbers (the record indicates that this e-
fort by Respondent was eventually not successful), more
flexibility in the procedure whereby the jobbers could in-
crease or reduce their orders for Respondent's products (re-
ferred to in the record as "cut and plus"): a less rigid re-
quirement than the proposal that the jobber not sell his
interest in his route for I year: a proposal that the jobber
might pay his security deposit to Respondent on a certain
deferred basis rather than all at once: and discussion of the
amounts each driver-salesmen would have in unused vaca-
tion benefits and severance benefits under the union con-
tract,, which it was suggested could be used to pay the secu-
rity deposit or pay for the jobber's route truck to be
purchased from Respondent. At these meetings Respondent
also advised the driver-salesmen of the amounts Respon-
dent wished to receive for the various route trucks.
Buchanan at this meeting took notes of the responses of
the driver-salesmen as to whether they were interested in
becoming jobbers for Respondent.
Union President Picchi, having heard of these meetings,
called and spoke to Buchanan during one of the meetings to
protest Respondent's dealing with the employees directly.
Two of the driver-salesmen also protested during the meet-
ings that such meetings violated the union contract. Bu-
chanan responded to those employees that Respondent no
longer had a sales department, that it had been discontin-
ued; he stated that Respondent was "going jobber," and, in
response to a specific inquiry, that if the driver-salesmen
refused the proposal, Respondent would not reopen.
After February 26. Within a short time after February 26.
Respondent secured a number of signed Jobber Agree-
ments from the driver-salesmen. On March 2, Respondent
met with the Union and advised that Respondent had de-
cided to reopen with distribution of its products by those
persons who had signed the Jobber Agreements. It was in-
s Though Buchanan identified G.C. Exh. 16 as the document used at these
meetings. it was more likely G.C. Exh. 15 (also labelled "Jobber Agree-
ment"). The latter is the only such agreement providing for a 42-day trial
perieod. Notes on the documents indicate that G.C. Exh. 15 was used during
the trial period, and G.C Exh. 16 thereafter.
s General Counsel points out that in computing vacation benefits. Respon-
dent followed the new terms of the 1976-79 agreement recently negotiated.
Respondent, which contends that it was not bound by that agreement, as-
serts that it followed the agreement only out of generosity.
dicated that Respondent was not open to further discussion
on the subject. Respondent reopened its plant on March 7.
and began distribution of products on March 8.
C. Re.spondent's Relation.ship With Jobbers
Respondent contends that from about March 2 it no
longer employed driver-salesmen. and that thereafter the
persons delivering its products, referred to as "jobbers,"
were independent contractors. General Counsel disputes
this. He further contends that at least fr the first 6 weeks
(42 days) after Respondent resumed its operations--during
which the new method of distribution was on trial and Re-
spondent was continuing to perform many of its previous
services in the distribution of the products-the jobbers
vw'ere not independent contractors, but continued to be em-
ployees.
Inasmuch as I have determined, for reasons set forth
hereinafter, that the resolution of this issue is not essential
to the decision in this case, I see no reason to discuss at
length the various documents, agreements, and testimony in
the record which concern the issue.
Analysis and Conclusions
(1) First, General Counsel asserts that Respondent did
not notify the Union, representing its driver-salesmen and
some other employees, in sufficient time to afford the Union
a meaningful opportunity to bargain over the Respondent's
decision to temporarily shut down its Detroit operations
and the effects of such shutdown on the employees who
were thus laid off, and thus violated Section 8(a)(5) of the
Act. However, Respondent did meet with the Union and
notify it of Respondent's decision 2 working days in ad-
vance of the shutdown and did discuss the Union's objec-
tions to its proposed action. The Union was unsuccessful in
changing the decision, but it is not required that Respon-
dent concede its position. Therefore, in the absence of any
showing that Respondent acted in bad faith or in violation
of contractual obligation, I shall recommend that these alle-
gations of the complaint be dismissed.
(2) Next, the complaint alleges that Respondent bar-
gained directly and individually with its employee driver-
salesmen in derogation of the Union's status as their bar-
gaining representative. The record clearly shows that, when
it was unable to secure the bargain it wanted from the
Union (that the Union and its members agree that Respon-
dent might change the method of distribution of its prod-
ucts by employee driver-salesmen to system of distribution
by nonemployee independent jobbers), Respondent by-
passed the Union and began dealing directly with the
driver-salesmen individually and in small groups concern-
ing these matters, over the protest of the Union and some of
the employees to such individual bargaining. As considered
hereinafter, Respondent now asserts its success in inducing
the employees to abandon the Union bargaining agreement
as a defense to its refusal to execute that agreement.
There is a long line of cases in which it has been held that
an employer acts in bad faith and violates the Act by deal-
ing directly with its employees concerning their working
conditions at a time when they are represented by an exclu-
1196
FARM CREST BAKERIES
sive bargaining representative. particularly when the em-
ployer is engaged in negotiations with the bargaining repre-
sentative concerning these matters. One of the earliest of
these cases is M:edo Photo Sppli Corporation v. N.. R. B..
321 U.S., 678, 683 684. 687 1944). where the Supreme
Court stated:
The National Labor Relations Act makes it the duty of
the employer to bargain collectively with the chosen
representatives of his employees. The obligation being
exclusive .... it exacts "the negative duty to treat with
no other." ... Petitioner. b ignoring the union as the
employees' exclusive bargaining representative, b ne-
gotiating with its employees concerning wages at a
time when wage negotiations with the union were
pending, and by inducing its employees to abandon the
union by promising them higher wages. violated §8(1)
[now 8(al) I ] of the Act, which forbids interference
with the right of employees to bargain collectively
through representatives of their own choice.
Petitioner was not relieved from its obligation because
the employees asked that they be disregarded. The
statute was enacted in the public interest for the pro-
tection of the employees' right to collective bargaining
and it may not be ignored by the employer. even
though the employees consent . . . or the employees
suggest the conduct found to be an unfair labor prac-
tice, . .. at least where the employer is in a position to
secure any advantage from these practices ....
Petitioner cannot, as justification for its refusal to bar-
gain with the union, set up the defection of union
members which it had induced by unfair labor prac-
tices, even though the result was that the union no
longer had the support of a majority. .... Petitioner's
refusal to bargain under those circumstances was but
an aggravation of its unfair labor practices in destroy-
ing the majority's support of the union, and was a vio-
lation of §8(1) and (5) [now 8(a)(5)] of the Act.
It is therefore found that by bargaining directly with the
driver-salesmen in derogation of the Union as their bar-
gaining representative. Respondent violated Section 8(a)( 1)
and (5) of the Act.
(3) The complaint alleges and General Counsel argues
that Respondent also violated Section 8(a)( 1) and (5) of the
Act by refusing on or about March 17 and thereafter to
execute a collective-bargaining agreement covering driver-
salesmen, in violation of the Act. As previously found, in
order to secure a commitment from the Union not to in-
volve Respondent in joint bargaining with its two principal
competitors (with whom Respondent had joined in bargain-
ing with the Union in the past) for a contract to succeed the
1973 76 contract covering driver-salesmen and not to in-
volve Respondent in a strike over terms for a new contract,
Respondent agreed to accept whatever contract terms for a
new agreement the Union negotiated with Respondent's
chief commpetitors. Though requested to do so, Respon-
dent has refused to execute or adhere to the new agreement
(except as to one improvement in the vacation benefits pro-
vided in the new contract). Respondent asserts a number of
reasons for this refusal. They are considered below.
(a) Respondent contends that the 1973 76 agreement
covering driver-salesmen automatically renewed itself by its
terms, asserting that the Union's notice of a desire to mod-
if, that agreement was untimely (a matter assertedly not
known to Respondent's representative when he promised to
accept whatever successor agreement was negotiated). This
contention is based on the following reading of the 1973 76
agreement: The original 1973 76 agreement provided that
a party desiring to terminate that agreement should give at
least 60 days notice "prior to date of expiration" of the
agreement (which was October 9, 1976), while the following
paragraph provided that a notice of a desire to modify the
agreement must be given at least 60 days "prior to October
9. 1976." The following year, the parties signed an adden-
dum extending the term of the 1973 76 contract to October
30, 1976. without specifically amending the provision re-
quiring notice to modify the agreement be given prior to
October 9. The Union's notice of a desire to modify the
1973 76 agreement was timely with respect to October 30,
but not in regard to October 9, 1976.
I find this contention without merit. It is clear that in the
original agreement the parties intended that notice to termi-
nate or modify the agreement should be given at least 60
days prior to the expiration date of the agreement. There is
nothing which indicates that the parties intended in their
extension agreement to extend the requirement for notice of
an intent to modify the agreement to 81 days (while leaving
the requirement to terminate at the original 60 days). Com-
mon sense and long experience with such clauses' indicate
that the parties overlooked this quirk in draftsmanship in
the original agreement. On the basis of all the facts, I find
that the Union's notice of a desire to modify the 1973-76
was timely and the contract did not automatically renew.
I further find that by agreeing in advance to be bound by
the new agreement negotiated with its competitors Respon-
dent waived any right it might have had to protest such a
defect in the Union's notice.' Though Respondent's repre-
sentative asserts that he personally was unaware of the
Union's notice, or its timing, when he promised to accept
the new contract. Respondent had in fact received the no-
tice and is charged with knowledge. Further, in return for
its promise to accept the contract. Respondent received the
benefits from the Union which it sought and should not
now be heard to complain of the bargain.
(b) Respondent further contends that it cannot be bound
by the terms of the new agreement covering driver-salesmen
for 1976-79 because in its notice to reopen the 1973-76
agreement, the Union specified only wages as the item
which it desired to negotiate, while the completed agree-
ment also covered other matters, such as a provision which
Following the requirement of Sec. 8(dX I) of the Act, such contracts com-
monly require 60 days' notice to terminate or modify bargaining contracts.
I It is noted that Respondent's competitors having the same contract re-
ceived the same notice from the Union mailed the same date, but agreed to
the new agreement. waiving the claim now advanced by Respondent. While
the Board has held. for reasons particularly applicable to representation
cases, that in such cases untimely notice to terminate or modify expiring
agreements may not be waived, it is clear that in cases such as the present
untimely notice may be waived. See. e.g., General Maintenance Service Com-
pany. Inc., 182 NLRB 819 (1970). See also Anchorage Laundry & Dry Clean-
ing Association Inc. 216 NI.RB 114 (1975), ("However, despite the late re-
ceipt of notice, Respondent. by its action, could have waived the notice
requirement, and agreed to bargain with the Union.")
1197
DECISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
in effect would prohibit Respondent from compelling the
driver-salesmen to become independent jobbers in order to
continue working for Respondent. However, it is noted that
the 1973 76 contract did not require the Union to specify
what items it desired to negotiate.' Since Respondent as-
serts that it promised to accept the new contract without
knowing of this asserted limitation in the Union's notice, it
cannot be said that Respondent relied on this statement in
the notice in making its commitment to accept the same
contract as its competitors. In effect, Respondent agreed
without condition to whatever contract its competitors
agreed that they could live with.
Respondent argues, nevertheless, that there was no
"meeting of minds of the parties" with respect to the terms
of the new agreement other than wages and therefore "Re-
spondent had no obligation to sign that agreement" (br. p.
82). citing Industrial Engineering Co.. Inc., 173 NLRB 77
(1968). In that case the employer, Industrial, a construction
firm accustomed to subcontract work to other firms, had for
some time been under pressure by the union to subcontract
work only to firms with union contracts. Industrial had dur-
ing one period done this, but lost considerable money as a
result. Thereafter, Industrial refused to limit its subcon-
tracting as the Union desired, even though on one occasion
the Union picketed the employer to secure its acquiesence
to this proposal. Without being bound to do so, Industrial
had customarily signed or adhered to the agreement negoti-
ated between the union and the employer association repre-
senting union employers in the area. However, in 1967, the
union, during its negotiations with AGC for a new contract,
approached Industrial and demanded that the employer
agree to accept the wage and fringe benefits ultimately
agreed by AGC retroactive to the termination date of the
prior contract. Thereafter, the union sent Industrial an
agreement to "sign and adopt the collective-bargaining
agreement eventually consummated by the Union and the
AGC," retroactive to the date of the prior agreement. 173
NLRB at 79. Industrial was told that any employer who did
not sign this commitment would be picketed. Industrial ac-
cepted the commitment. When the eventual contract con-
tained a provision containing the disputed subcontracting
clause (which Industrial had adamantly refused to sign in
the past), Industrial refused to sign it. The Board held that
this did not constitute a violation of the Act, on the ground
that in these circumstances, Industrial could not be said to
have contemplated the new agreement would contain such
a subcontracting clause (which had never before been in-
cluded in the AGC contracts), and therefore the new AGC
agreement did not constitute a consciously arrived at agree-
ment between the parties.
Though in a number of respects similar, upon careful
consideration I find Industrial Engineering Co., supra, not
controlling in the present matter. In that case, in effect, the
union, unable to obtain Industrial's agreement to a contract
provision in the past, sought to obtain it by a device so
represented that Industrial would not normally have antici-
pated the result. Here the Union in no way sought to take
advantage of Respondent (in fact, since Respondent asserts
that it was unaware of the Union's letter stating that the
contract was being reopened for wages. it cannot even be
9(1I. Mason ('tv RBulder Supphl (o, 193 NI.RB 177 (1971), where the
contract required notice "o'l all requested changes"
said that Respondent was unintentionally misled in making
its commitment0 ). In this instance, Respondent's commit-
ment to the new contract came about as the result of its
own initiative and was made for Respondent's own advan-
tage. Indeed, it might very well be that if Respondent had
not made its commitment to accept the new contract, and if
it had been involved in the bargaining, and possibly had
been struck. Respondent might well have agreed directly
and specifically to the provisions to which it now objects.
We are precluded from knowing these facts because of the
promise to accept the new agreement which Respondent
now says is not binding.
It also serves the purposes of the Act to stabilize labor
relations and prevent work stoppages, to require partici-
pants in collective bargaining to honor such commitments.
Commitments to accept the results of association and mul-
tiemployer bargaining (sometimes referred to as "me-too"
agreements) are widespread among many industries. They
assist in orderly bargaining. and protect the employers
party to such "me-too" commitments from costly and un-
necessary work stoppages. It would be inappropriate for the
Board by finding such commitments not binding, to so
weaken this bargaining technique as to destroy its useful-
ness.
(c) Next, Respondent contends that by the time the
Union requested it to execute the new agreement on March
17, there were no longer any driver-salesmen employed in
the unit covered by the contract inasmuch as a majority of
them had, Respondent asserts, become independent con-
tractor-jobbers, and the remaining driver-salesmen had
been terminated. This situation, however, had been accom-
plished, as has been found, by Respondent's unfair labor
practices in bypassing the Union and negotiating directly
with the driver-salesmen to achieve the results upon which
it now relies. I find, as the Supreme Court held many years
ago in Medo Photo Supplv. supra at 687, that Respondent
"cannot, as justification for its refusal [to execute the con-
tract agreed upon], set up the defection of union members
which it had induced by unfair labor practices .... IRe-
spondent's] refusal . . . under those circumstances was but
an aggravation of its unfair labor practice in destroying the
majority's support of the union, and was a violation of [Sec-
tion 8(a)(1) and (5)] of the Act." In these circumstances,
therefore, I find it unnecessary to consider or determine
whether the driver-salesmen were indeed independent con-
tractors at the time Respondent refused to execute the
1976 79 driver-salesmen agreement.
(4) General Counsel also contends that Respondent vio-
lated the Act by unilaterally changing its method of distri-
bution from one utilizing employee driver-salesmen to one
of distribution by jobbers who are not employed under the
conditions of the bargaining agreement or accorded its
benefits, without agreement of the Union." Before Respon-
O(Collective bargaining is normally an integrated process. It cannot be
said on this record, indeed. that the provisions in the new agreement were
not part of the wage bargain struck at the negotiations.
1 General Counsel also argues that this action by Respondent violated the
Act because it was implemented not only without agreement by the Union,
but prior to bargaining to impasse. It is unnecessary to consider this latter
theory, since it could only possibly come into play if it were found that the
1976 79 contract were not binding on Respondent. I find that contract was
binding
1198
FARM CREST BAKERIES
dent took the action complained of, it had agreed that it
would accept the terms negotiated with its competitors:
those terms had been negotiated and agreed by the Union
and Respondent's competitors: and Respondent had been
advised in writing what those terms were. At that point,
Respondent had obtained the benefits for which it gave its
promise. On those facts, I find that Respondent was bound
to comply with the agreed-upon terms, or at least not to
violate those terms and conditions. Inasmuch as that agree-
ment prohibited the action which Respondent took, clearly
Respondent violated the agreement. This is so even though
Respondent had not signed the written document. In the
administration of the Act great stress is placed on the re-
duction of conditions of employment to writing because of
the certainty and stability afforded, see H. J. Heinz Co. v.
N.L.R.B., 311 U.S. 514 (1941). But this does not mean that
commitments and understandings not contained in a signed
contract are not also binding. See, e.g.. Brotherhood of
Painters, Decorators and Paperhangers of America, AFL -
CIO, District Council No. 9 of New York City' (Westgate
Painting. et al.), 186 NLRB 964 (1970). where the Board
held that a union's attempt to unilaterally change condi-
tions of employment based on past custom violated the Act.
Cf. Communications Workers of America, AFL-CIO, Local
1170 (Rochester Telephone Corporation), 194 NLRB 872
(1972).
Based on the above. and the record as a whole, it is found
that Respondent. by unilaterally changing conditions of
employment in violation of its agreement with the Union
covering the employment of driver-salesmen, violated Sec-
tion 8(a)(5) and () of the Act.
C(()N('I.tSI()NS ()o LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6). and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material herein the Union has been and
continues to be the exclusive representative of Respondent's
employees in the appropriate unit set forth immediately be-
low for the purposes of collective bargaining within the
meaning of Section 9(a) and (b) of the Act.
4. All full-time and regular part-tine driveil-salesmen.
swingmen and driser-salesmen trainees, employed by Re-
spondent alt or from its Detroit, Michigan, plant. excluding
all other employees. guards and supervisors as defined in
the Act. constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(h) of
the Act.
5. Respondent. by its refusal to sign. honor, and complN
with the collective-bargaining contract covering the above-
stated appropriate unit for the term from October 31. 1976.
to October 6. 1979. by bypassing the Union and dealing
directly and individually with driver-salesmen in the appro-
priate unit represented bh the Ulnion concerning their con-
ditions of employment. b unilaterallk changing conditions
of, employment of the driver-salesmen in the aforesaid ap-
propriate unit, and b changing such working conditions
without the agreement of' the Union in violation of the
aforesaid collective-bargaining contract engaged in unf.ir
labor practices in violation of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent is and has been
engaged in unfair labor practices in violation of Section
8(a)(5) and (I) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
It having been found that the Respondent has refused to
sign, honor, and comply with the terms of the collective-
bargaining agreement negotiated by the Union effective Oc-
tober 31, 1976, to October 6, 1979, covering its driver-sales-
men, it will be recommended that Respondent forthwith
sign that collective-bargaining agreement wiih the Union,
effective October 31, 1976, and that Respondent give retro-
active effect, to that date, to the terms and conditions con-
tained in that agreement. and make its employees whole for
any loss of wages or other employment benefits they may
have suffered as a result of Respondent's failure and refusal
to honor and comply with the terms and conditions of that
agreement, such payments to be made in a manner consis-
tent with the Board policy set forth in F. W Woolworth
Company, 90 NLRB 289 (1950), to which interest shall be
added as prescribed by the Board in Florida Steel Corpora-
tion, 231 NLRB 651 (1977)." See, e.g., Seven Motors LTD.,
d/h/a Mazda South, et al., 233 NLRB 1198 (1977).
The Board's normal remedy in situations in which an
employer has destroyed a unit of employees in violation of
the Act, as with remedies for other unfair labor practices, is
to order restoration of the status quo ante. See. e.g.. Jav
Foods, Ic., 228 NLRB 423 (1977). Indeed, it would be dif-
ficult to fashion an appropriate and effective remedy for the
unfair labor practices found hereinabove, if Respondent
were not ordered to reestablish its driver-salesman deliver
operation and canel its asserted subcontracting arrange-
ments (referred to as Jobber Agreements). It would be im-
possible for Respondent to honor and comply with the bar-
gaining agreement to which it agreed unless the status quo
were restored.
I am aware of and have considered Board decisions such
as Avila Group, Inc.. 218 NL.RB 633 (1975), in which the
Board has refused to order reestablishment of subcontract-
ed operations. where the employer had good economic rea-
son lir its action. and has ordered bargaining instead. low-
ever. this again would undermine Respondent's obligation
to sign, honor, and comply with the bargaining agreement
to which it agreed. Respondent has previously bargained
with the Union in an attempt to have the Union agree to
change the terms of that agreement. When this effort failed.
Respondent proceeded to change the conditions of emplo-
ment. previously established and covered bh the agreed bar-
gaining contract. without the consent of the Inllion. To the
extent that restoring the tatus quo is burdensome, it is the
2 See. generally. I Plumhrnls laIt,,pl (. 138 NI RB I16 1962)
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of Respondent's unfair labor practices. Not to require
it would leave the violations of the Act unremedied.'"
It will therefore be recommended that Respondent be
ordered to cancel its Jobber Agreements and reestablish its
driver-salesman delivery operation and reinstate its driver-
salesmen, with backpay based upon their earnings from the
date of their termination on and after March 2, 1977, to the
date of Respondent's offer of reinstatement less any net in-
terim earnings computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon in accordance with the Board's policies set forth in
Florida Steel Corporation, supra, and Isis Plumbing & Heat-
ing Co., supra.
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'4
The Respondent, Farm Crest Bakeries, A Division of
Ward Baking Company, Inc., Ward Foods, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Dealing directly or individually with its employees in
an appropriate unit concerning wages, hours, or other terms
or conditions of employment in derogation of Bakery Sales-
men, Drivers, Warehousemen and Helpers Local Union
No. 51, IBTCHW&HA, the Union herein, or any other
labor organization representing such appropriate unit.
(b) Unilaterally changing wages, hours, or other terms or
conditions of employment in violation of a collective-bar-
gaining agreement, without the consent of the labor organi-
zation party to such agreement.
(c) Failing or refusing to execute, honor, and comply
with the collective-bargaining agreement negotiated by the
Union named above effective October 31, 1976, covering an
appropriate unit of driver-salesmen.
(d) In any other manner interfering with, restraining, or
i This is not meant to preclude the Union and Respondent from further
negotiations with respect to this matter, however.
'' 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.
coercing employees in the exercise of rights guaranteed by
the Act.
2. Take the following affirmative action which will effec-
tuate the purposes of the Act:
(a) Cancel its Jobber Agreements for distribution of its
products and reestablish the driver-salesman system of de-
livery and distribution of its products, and offer to the
driver-salesmen terminated on or about March 2, 1977, im-
mediate and full reinstatement to their former positions,
without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss of
earnings or benefits he may have suffered in the manner
provided in the section of this Decision entitled "The Rem-
edy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to effectuate this Order.
(c) Upon request by the Union, execute the driver-sales-
men bargaining agreement effective October 31, 1976, nego-
tiated by the Union, and honor and comply with the terms
and conditions of that agreement with retroactive effect to
its effective date.
(d) Post at its premises in Detroit, Michigan, copies of
the attached notice marked "Appendix."'" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 7, after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by it to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to alleged violations of the Act not
found hereinabove in this Decision.
' In the event that this Order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1200