Century Electric Motor Co.

National Labor Relations Board - Board Decisions

Aug 23, 1971

192 N.L.R.B. 941 (N.L.R.B. 1971)

CENTURY ELECTRIC MOTOR CO. 941
Century Electric Motor Company and International
`Union of Electrical, Radio and Machine Workers,
and its Local 768, AFL-CIO- CLC. Case 8-CA-
5778
August 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND, JENKINS
On May 21, 1971, Trial Examiner Alba B. Martin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Charging Party filed
exceptions, to. -the ' Trial Examiner's Decision and a
supporting brief, and the Respondent filed an
answering brief. -
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a ' three-
member panel.
The Board has, reviwed the rulings of the Trial
Examiner made at, the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and .briefs, and
the =entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
filed by the Union on March 6, 1970, and a complaint
issued December 4, 1970 ,1 involves whether Respondent
violated Section 8(aX5) and (1) of the Act2 by bargaining
in bad faith with a closed mind before withholding the
1969 Christmas bonus and by refusing the Union's request
for financial information . After the hearing excellent briefs
were filed by the General Counsel , Respondent, and. the
Union, all of which have been duly considered.3 During
the hearing I reserved decision on Respondent's motions to
dismiss the complaint. I hereby decide them in accordance
with the findings and conclusions herein 4
Upon the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, Century Electric Motor Company, an Ohio
corporation with its principal office and place of business
in St . Louis, Missouri, is engaged in the manufacture and
We of electrical motors. During the year prior to the
issuance of the complaint, in the course and conduct of its
business operations-at its Gettysburgh, Ohio, plant, which
alone is involved in this proceeding, it shipped products
valued in excess of $50,000 directly from said plant to
points outside the,State of Ohio . Respondent admitted and
I find that at all times material herein Respondent was and
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine
Workers, and its Local 768, AFL-CIO-CLC, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
HL THE ALLEGED UNFAIR LABOR PRACTICES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations, Board hereby orders, that the complaint
herein be, and it hereby is, dismissed in its entirety.
3 In adopting the TniafExaminer's Decision with respect to the Union's
request for financial data, we rely solely on the fact that such request
occurred substantially rafter the Employer had satisfied his statutory
obligation to,bargain as to that issue.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: This case , heard at
Greenville, Ohio , on March 4 , 1971 , pursuant to a charge
i The Regional Director refused to issue complaint on April 23, 1970.
The General Counsel - sustained the Union's appeal to this refusal on
November 18, 1970,, and the Regional Director then issued the complaint.
2 "The Act" refers to, the National Labor Relations Act, as amended, 29
U.S.C. Sec, 151, et seq.
3 Certain obvious errors appear in the transcript of the hearing. These
errors are hereby corrected as follows: P. 46, 1. 7, change "the Central" to
A. Background Facts
For about 10 years Respondent's predecessor in the
operation of the Gettysburg plant, Tait Manufacturing
Company, gave the employees at that plant,a Christmas
bonus . Respondent purchased the plant in about June
1967, and gave the employees a Christmas bonus in
December 1967. Respondent withheld the 1968-bonus, and
on August 12, 1969, Trial Examiner Stanley N. Ohlbaum
found that it did so unilaterally in violation of Section
8(a)(5) and (1) of the Act. Judge, Ohlbaum's Decision was
upheld by the Board on February 3,1970 (180 NLRB' No.
174). This case is now before the Court of Appeals for the
Eighth. Circuit upon Respondent's petition for review (Civil
Action No. 20,636). Respondent's actions in connection
with its nonpayment of the 1969 Christmas bonus are
under scrutiny herein . Respondent paid its employees a
"Century"; p. 50,1.3, change "Central" to "Century"; p. 110, change lines 2
and 3 so they will read , "The reason he refused to issue a complaint is in the
record."
4 At p. 126 of the transcript of-the hearing I erroneously received in
evidence G. C. Exh. 11. At p. 154 the General Counsel stated he did "not
wish to offer G. C. Exh ., 11. The discussion on the record indicated the
reasons for this. I hereby correct my error by rejecting G. C. Exh. 11.
192 NLRB No. 144
942 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
1970 Christmas, bonus. - Industrial Relations Director
Muenster credibly, testified that Respondent paid the 1970
bonus for several reasons including the fact that the Union
was "filing charges against us every year:'
The -Union was certified September 30, 1968. Respon-
dent and the Union are parties to a, collective-bargaining
agreement covering the Gettsburg plant, effective from
November 22, 1968, through November 22, 1971. Respon-
dent and the Union= hold -regular monthly .meetings with
each, other. Respondent's Director, of Industrial Relations,
William H. Muenster, credibly testified that on the whole
Respondent's relations with the Union have been "all
right." During the December 2, 1969,,bargaining meeting
the Union's president, Berton, told Muenster that the
employees at the Gettysburg plant "are a good group of
people . . . they are not like some groups that give the
Company heck at the-union meetings."
B. The December 2 Meeting: Bargaining in Good
Faith or in Bad Faith with a Closed Mind
The parties held only one meeting concerning the 1969
Christmas' bonus, the meeting of December 2, 1969.5 The
evidence on the subject is convincing that this meeting
resulted' from an initiative taken by Industrial Relations
Director Muenster. The meeting lasted around 2 hours.
The meeting opened with discussions and language
agreed upon concerning amending the existing pension
plan covering the employees. 1here was no claim or proof
that on this subject the Company bargained in bad faith
with the Union.
Then the discussion turned to the main topic for which
the meeting had been set up, whether Respondent should
pay'or not pay the 1969 Christmas bonus.
According to the credited testimony of Industrial
Relations Director Muenster, who by, his demeanor and his
testimony impressed me as an honest and'credible witness,
Muenster told the union representatives that the Company
was "desirous of foregoing" the Christmas bonus that year.
In support of this desire, Muenster stated that there had
been substantial price rises in copper and steel, that for the
Gettysburg ' plant `the Company needed to purchase new
machinery ^ and a truck and repair old machinery. He
reminded the union representatives that he had told-them
during the negotiation of their contract that when the
Company had acquired the Gettysburg plant it was a
marginal operation and that the Company wanted to
"make a go of it.",
" Credible oral and written, "testimony introduced by
Respondent showed' factual' support for' the position
Muenster took with the Union. This testimony showed that
gross sales from ,the plant increased in 1969 and 1970 over
the-, previous year but' that, according to the credited
testimony of Plant Manager Dunaway, profit from the
plant was "in the red" in 1968 and 1969 and "in the black"
in 1970. Respondent's testimony showed also that Respon-
dent spent $71,670 in 1970 for repairs and new machinery
°5' An appropriate unit consists of all production and maintenance
employees including group leaders employed by Respondent at the
Gettysburg plant , but excluding all office clerical employees, plant clerical
employees, technical employees, watchmen, guards, professional, and all
other employees and supervisors as defined in the Act. This is the unit for
as against $12,130 in 1969. Dunaway credibly testified that
gross sales from the plant in 1969 ' were down in, October
and November from September, and that in December "it
really looked bad and it turned`outto bebad" He stated,
"Things were tight, tighter than must people knew at that
time. For morale reasons I really didn't like to let it be
known around too much."
Members of the union negotiating committee corrobo-
rated Muenster's testimony concerning-his references to
the high cost of materials and,the necessity of spending
money -on new' machinery and improving the, old. They
also quoted him as referring to the highly competitive
business they were in, as referring several times to the
plant's "marginal profit operation," and as saying business
was not up to their expectations that year. On the entire
record I credit this testimony.
The president of Local.768, Charles B. Berton, testified
that Muenster said at this meeting that Respondent was
not obligated to pay the bonus, and that "the Company
was in a financial position where the, bonus could not be
paid." Union Committeeman Marinich's'version of this
alleged statement was that Muensters'aid "he didn't think
that the Company, was obligated to pay the Christmas
bonus because it was not in written form' in this contract
and, at the, time it would be difficult to pay, several things,
and in a 2 1f2 hour meeting, why-" Union Committeeman
Eberwein testified Muenster said "that , the Company
wasn't going to pay the Christmas bonus this year as it had
in the past." The reason he allegedly gave was "marginal
profit" and "that they didn't feel they could pay the
Christmas bonus." Muenster credibly denied most -of--this
testimony. He, denied saying the Company was, not in' a
financial position to pay the bonus. He denied saying the
Company was not obligated to pay the bonus because it
was'-not. in the contract. He denied saying the Company
was not,going to pay the bonus. Of these four witnesses
Muenster was the only one who by his demeanor and his
testimony was convincing that he clearly remembered what
he said at this meeting and was able correctly to articulate
it. He was a strong and sure witness, and a credible one.
Berton was not sure of his testimony and he sometimes
resorted to the phrase, "I think" when he was uncertain.
On these controversial matters Marinich and Eberwein did
not seem to me to be as certain of their testimony as
Muenster was of his. Of these four, by their demeanor and
in all, their testimony Muenster impressed me as the most
credible , witness, and I credit his denials.
After Muenster said the Company wished to forego, the
bonus that year, Berton asked if the , Company was
eliminating it entirely. Muenster replied in the negative and
restated that the Company wished to forego it in 1969 and
that the Company was. here to bargain about the 1969
bonus.
Early in the meeting Berton proposed'three alternative
ways, of paying the bonus, each of which, according, to
Muenster's credited testimony, would have cost the
Company as much as the bonus. Muenster credibly
which the Union was certified by the Regional Director and the unit
covered by the collective -bargaining Agreement. Th6-Boird found this unit
toy be appropriate in can 180 NLRB No. 74. This was the unit for which the
parties were bargaining on December 2,1969.
CENTURY ELECTRIC MOTOR CO.
testified that if the Union had suggested something the
Company considered economically feasible, the Company
would have entertained it. In view of this credible
testimony and upon the entire record I do not credit
Berton's testimony that after Berton presented his alterna-
tives Muenster stated "he felt as though they [of the
Company] just were not in the frame of mind even of
considering the Christmas bonus." In this connection I
note that on direct -examination Berton testified that
following Berton's alternative proposals Muenster said
nothing except to ask for a caucus. Not until redirect
examination did Berton quote Muenster as stating the
above.
Berton's three alternatives were that the payment of the
-bonus- could, be made in the form of a 3-cents-an-hour
wage increase , that the bonus could be paid in quarterly
installments, or in the form of profit sharing at the end of
the` year. Muenster replied that giving a wage increase on
an-hourly basis would be an increase in the middle of the
contract and would mean opening the contract which the
Company,did not wish- to do. He also said this would
increase the Company's costs, which it didn't want to do.
He also rejected the suggestion of quarterly payments.
Muenster said that profit sharing worked well when there
were good profits, but that when it "goes in reverse" it
creates a morale problem. He said some companies he
knew had expressed this point of view.
The parties discussed employee morale at some length.
To meet the Union's concern that there would be a morale
problem -if the bonus was not paid that year, after a caucus
Respondent suggested a ham or turkey to each employee in
lieu of the bonus.; Muenster credibly testified that the idea
of a turkey arose between him and Dunaway during the
caucus and that prior to that he had had no discussion with
anybody concerning giving a ham or turkey. Although the
union negotiators were not warm to this substitute, Berton
agreed to submit, the matter to the meeting of the union
members scheduled for that afternoon and to let Respon-
dent know their reaction. He did this and the union
members turned down the offer and Berton so informed
Plant Manager Dunaway over the telephone.
At the December 2 meeting the Union uttered no hint
that it questioned the accuracy or truthfulness of the
reasons Muenster gave for wishing to forego the bonus that
year: The rise in the cost of materials, the need for new
machinery and refurbishing the old, the highly competitive
nature of the business, and the fact that the Company had
bought a marginal operation and wanted to make a go of
it. At the meeting the Union did not request any
information or the right to inspect any records of the
Company to test the accuracy of Muenster's statements.
Berton and one member of the Union's negotiating
committee, Marinich, testified that at the meeting Berton
requested that a date be set for another bargaining meeting
on the bonus and the Company did not set a date. Upon
the preponderance of the evidence in the entire record I do
not credit this testimony. It was contradicted by another
member of the Union's committee, Eberwein, who was also
called as a witness by the General Counsel, who testified
that his pretrial affidavit was correct where it said, "I do
943
not think that Berton asked for another bargaining meeting
on the Christmas bonus at that meeting." Berton's
unconvincing testimony on this subject was that "I think
before we left the meeting of December 2 ... that I made
a statement that . . . I thought that it should be
reconsidered . . . ." Then he testified that "I think in one
of my letters to Mr. Muenster I stated that-we should
continue this here discussion .... " Neither of his two
letters in evidence, dated December 8, 1969, and January 7,
1970, expressed any such thought, and the record contains
no suggestion he wrote any other letters. When he was
confronted with his two letters on cross-examination,
Berton changed 'his ground and testified that on'December
2 or 3 he asked Muenster or Dunaway to' meet again.
Both Muenster and Dunaway credibly testified that at
the December 2 meeting Berton did not request the
Company to meet with 'them again to discuss the bonus.
Muenster testified that Berton did not ask that any date be
set or suggest any tentative date.
The parties knew that right after, this meeting the Union
was having its monthly meeting. Berton said he would
present Respondent's offer of a ham or turkey to the
employees at the union meeting and asked if Muenster
wanted to meet again that evening. Muenster replied that
he could not, that he was leaving for St. Louis and had
another obligation. Berton said he would get in touch with
Dunaway. This was the only reference in thee session to
meeting again.
The following day, December 3, Berton telephoned
Dunaway and told him the employees had turned down
the Christmas turkey as a substitute for a bonus and that
he was sorry. Dunaway ' said he was sorry too, and that he
would notify Muenster. Dunaway credibly testified that
Berton said nothing about a further meeting to discuss the
bonus.
General Counsel's witness, Paul Marinich, testified that
normally the regular monthly union meeting, of union
members employed at the plant was held on the Tuesday
following the first Monday, and that the regular monthly
meeting between the Union and the Company occurred the
following Thursday. In December 1969 the union meeting
was held on December, 2 and the union-company meeting
would normally have occurred on, December 4. The record
is silent as to whether this, December 4 meeting was held,
and there was no showing that at any such meeting there
was any further discussion of the bonus or any talk of
requesting information from Respondent.
On December 8, 1969 Berton wrote Muenster as follows:
Having attended the Union meeting December 2, 1969,
of the membership of the Century Electric Motor unit,
a full discussion was held concerning the meeting with
management together ,with the Shop Committee.
There is a strong feeling that the year 1969 has been the
best year in history of the Gettysburg plant. Also there
is a strong feeling that a turkey is- a very poor
supplements for the Christmas bonus.
I consequently have no other alternative than to say
that a Christmas bonus should be paid as it has been in
past years. I have suggested different methods of
6 Berton testified "supplement" was intended to be "substitute."
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payment such as quarterly payments, a profit sharing
plan, etc.
I think -the majority, of your employees' morale and
feeling towards the Company will be revivedif in some
manner this Christmas bonus can be continued.
I am asking again that you give this matter your
immediate attention for reconsideration.
Of note is that although this letter requested the Company
to reconsider the matter, it did not request another meeting
to discuss the bonus.
Muenster replied to Berton's letter on December 17,
1969,7 as follows:
On December 2, 1969, we met with you to bargain
about the Christmas Bonus or,its possible termination.
I would note, too, that the Company and the Union
reached agreement on the amendment to the Pension
Plan during that December 2, meeting.
We went on to explain the unsatisfactory, profit
position of the plant along with the need to purchase
new equipment and refurbish some of the old. It is
surprising, indeed, in light of the circumstances, that
you should choose to bargain"uphill. " You started from
the top and went up, rather than seek realistic
settlement.
Your, suggestions , such as quarterly payments, profit
sharing plan, or a general wage increase, would have'no
relation to the Company's purpose or intent in giving a
Christmas Season ' gift, or as a sign of good will towards
its employees. Rather, your suggestion would
"supplement" (add to) as your letter indicates, and this
would lock the Company in to mid-contract, term wage
increase . This is ' disheartening, especially when you
know the Company is struggling ' hard to make a
success of the Gettysburg operation. I had hoped that
you could see your way clear to a more reasonable
position than upgrading the Christmas bonus.
From your letter of December 8, 1969, I can only
understand that the Union's position is that you simply
want the Company to pay a Christmas Bonus, anyway,
regardless of circumstances. However, your letter is not
clear on whether or not you are opposed' to our
December 2 suggestion that the Company give a gift of
a Christmas Turkey to each- employee as a Christmas
Season gesture of sincere-good will.
The Company does not feel that a ,Christmas Bonus,
this year, is either appropriate or justifiable. The
Company is, however, very much interested in main-
taining good employee morale, and is appreciative of
the efforts and cooperation by the Gettysburg employ-
ees during 1969. Accordingly, we have decided to give
each employee a Turkey as a Christmas gift from the
Company.
This Christmas gift may or may not be repeated in
future years, and is not to be construed as a new form
of remuneration, or as a new term or condition of
employment.
Best Wishes to you and your family this Christmas
Season.
r Berton testified that mad from St. Louis to his office in Dayton, Ohio,
is sometimes slow and that this letter, mailed on Wednesday; December 17,
may not have reached his offi:- until Monday or Tuesday, December 22 or
On December 19 Respondent.wrote an appreciative, note
to each employee saying that Respondent, would give -a
turkey to each employee . at, the end; of the, shift on
December 23. On December 23 it,.did this, and all
employees but two accepted the turkeys.
C. Refusal of Financial Information
On January 7, 1970, inwhat was admittedly the Union's
first request for financial information, Berton wrote
Muenster as follows, in pertinent part:
During our meeting on December 2, 1969 concerning
the Christmas bonus, you indicated that the Company
could not afford to pay the Christmas bonus because' of
unsatisfactory profits at the Gettysburg Plant during
1969. You said that the bonus could - not - be paid
because the Gettysburg operation was a marginal profit
operation.
Employees who have been employed at the Gettysburg
Plant for many years inform me that the Gettysburg
operation, from a production -standpoint, , should, be
showing increased profits for 1969, as compared with
previous years.
Under the circumstances set forth above, I request the
following: -I request permission for a qualified expert
from the International of'the IUE and me to check the
financial books and records as, they pertain to the
Gettysburg operation, in order to ascertain whether the
Company's plea of poverty is supported,, by the
financial ^ records previously mentioned. I request the
opportunity to check the financial records for the years
1967, 1968, and -1969 in Gettysburg, Ohio, atnthe plant.
Please' advise the date when a representative of the
,International of the IUE and I check the aforemen-
tioned books and records.
Muenster replied to Berton's request on February 3,
1970, as follows, in pertinent, part:
This letter, is in response to your recent letter by which
you are apparently renewing your i11,-disguised cam-
paign of harassment of this Company. From your
letter, I was frankly amazed to see the extent to,which
you are apparently willing to mis-state and/or simply
ignore the actual facts in order to serve your own ends.
First of all, with respect to the issue of, the so-called
"Christmas Bonus," at no time during my-meeting with
you on December 2,1969, .or at any other time before
or since that date, did -I or any representative of the
Century' Electric Motor Co. ever state or imply that the
Company "could not afford to pay the Christmas
Bonus.,,
Secondly, again, contrary to the self-serving allegations
of your January 7, 1970 letter, I did not state on
December 2, "that the bonus could not be paid because
the Gettysburg operation was a marginal profit
operation."
Thirdly, during that meeting I did .not claim that the
Gettysburg plant had "lost money" during calendar
year '1969.
During our meeting on December 2,1969, I did point
23. He testified his secretary did not stamp it'"in. He testified that at times
mail from at . Louis arrives sooner. I-find this testimony unconvincing as to
when the December 17 letter arrived.
CENTURY ELECTRIC MOTOR CO. 945
out to you and your committee that 1969 sales of
Gettysburg plant products had been substantially less
than the Company had planned for and expected them
to be during last year . I also pointed out that the costs
to the Company for copper, steel and other materials
purchased by the Company nevertheless have contin-
ued to increase substantially . I then called attention to
the fact that much= of the machinery and equipment in
the Gettysburg plant was in need of repair or
replacement. In that connection I explained to you that
it was the Company's policy that the costs of repairing
equipment or purchasing new equipment should come
out of the profits generated by the plant for which
modernization or repair expenditures were required
and that this should have top priority for the Gettys-
burg plant. I then explained that as neither the 1969
business or profits from the Gettysburg plant operation
had satisfactorily met the Company's expectations and
in view of the serious need for repair and moderniza-
tion of the Gettysburg plant and equipment, the
Company did not feel that a bonus or alternative form
of mid-contract wage increase such as you then
proposed was justified or warranted.
In short, it was and still is the Company's position that
any profits produced by our Gettysburg plant should
be applied toward repairs and improvements needed to
make that operation more successful in the future
rather than to be distributed as bonuses or additional
wage increases such as you were demanding . This is
certainly no "plea of poverty."
During our meeting on December 2, 1969 , I also made
it clear to you that the Company was certainly very
desirous of maintaining good employee morale, and to
meet your objection that morale would suffer if no
Christmas bonus were to be paid in 1969, I offered to
have the Company give turkeys to each of our
employees as a Christmas gift.
At that time, you agreed to consider my Christmas
turkey gift offer and to take the matter up with your
full committee. I in turn said that I would discuss with
the Company's management your various proposals for
alternative type wage increases or wage supplements.
By a very ambiguous letter to me dated December 8,
1969, you referred to my offer to supply a turkey to
each employee as "a very poor supplement for the
Christmas Bonus," and then repeated your demands of
December 2, either that a Christmas Bonus be paid or
that the Company agree to a mid-contract term wage
increase in some form.
I then replied by letter to you dated December 17,
1969, in which I advised you that your alternative
demands for various types of mid-contract term wage
increases were not acceptable to the Company, but that
the Company had decided to give each employee a
Christmas turkey as I had offered to do on December
2, in lieu of a Christmas Bonus. Since the Company
heard nothing further from you or your union, such
turkeys were in fact distributed to and accepted by the
Gettysburg employees the following week.
Under these circumstances, your attempt at this late
date to now raise a question concerning the Company's
profit picture as allegedly pertinent to the Christmas
Bonus - Christmas turkey issue is certainly untimely.
Secondly, even if you had made a timely request, for
the reasons set forth , there is no valid basis in fact to
justify your request to engage in the kind of "fishing
expedition" you demand, since this Company at no
time made any such "plea of poverty" as you
erroneously allege. Accordingly, your request to see all
Company financial books and records for a three-year
period obviously constitutes only another form of
harrassment by you and your union , and it is denied.
As has been seen above, the Union filed the charge on
March 6, 1970, after all of the above had transpired.
D. Conclusions
Upon the preponderance of the credible evidence I
conclude that in its bargaining with the Union concerning
the bonus and in its refusal to let the Union inspect its
books and records Respondent did not violate the Act.
In the earlier case Judge Ohlbaum's decision directing
Respondent to bargain in good faith with the Union
concerning any proposed change in the "Christmas bonus
system" was issued on August 12, 1969 . I find credible
Muenster's testimony that Respondent decided to bargain
with the Union concerning the 1969 bonus, even though
Respondent is challenging the Ohlbaum and Board
Decisions in the court . Avoiding future litigation by
initiating bargaining talks does not say to me that
Respondent entered the talks with a closed mind.
At the only bargaining session on the subject, initiated
by it, Respondent stated its desire to forego payment of the
bonus that year and gave its economic reasons behind the
desire, which were not questioned by the Union and which
had bases in fact. The Union did not question the
correctness of Respondent's statements concerning its
increased costs and need for new and refurbished machin-
ery at the Gettysburg plant. The Union did not ask to
check the Company's books. Respondent did not claim
poverty or inability to pay but was concerned with the
proper allocation, by its lights, of the available funds. In
the long meeting Respondent listened to and considered
the Union's counterproposals, none of which would have
relieved the pressure on costs which Respondent was
seeking, and gave its reasons for rejecting them. Convinced
from the long discussion that foregoing the bonus might
cause a morale problem, Respondent counter-offered a
Christmas ham or turkey to each employee in lieu of the
bonus. This idea arose to Respondent during its caucus, a
fact which tends to show good-faith bargaining. The Union
submitted the question that afternoon to a meeting of the
plant's union members and promptly informed Respon-
dent that they had rejected the offer. Thus at this point
Respondent had presented two propositions and the Union
had rejected them both. I find on all the evidence that
Respondent was bargaining in good faith.
In his letter of December 8, 6 days after the meeting, the
Union's president wrote Respondent that "I . . . have no
other alternative than to say that a Christmas bonus should
be paid . . . I have suggested different methods of
payment such as quarterly payments, a profit-sharing plan,
etc. . . . I am asking again that you give this matter your
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate attention for reconsideration." Of note is that
Berton did not ask for another meeting and did not state or
hint that the Union had any further proposals to suggest.
In fact the purport of the letter was that the Union had no
more ideas or proposals and that its only and final position
was that the bonus should be paid. At this point the Union
dropped the matter. It did not communicate further with
Respondent about the bonus until January 7, a month
later.
At this point the negotiations on the subject of the bonus
were at an impasse, Respondent's position being 'that it
desired not to- pay it, the Union's position being that
Respondent should pay it. The issue had been discussed at
length at a long meeting called primarily to discuss it, and
Respondent had negotiated "at least to the extent
appropriate to the gravity of the situation." (See Simpson
Lee Paper Company, 186 NLRB No. 109.)
In his December 17 letter Muenster informed the Union
well in advance of December 23 that the Company was
going to give each employee a turkey. In addition, around
December 16 Dunaway told Union Negotiator Marinich
that "we have been authorized to give a Christmas turkey. "
On December 19 Respondent gave each employee a
written announcement that it would present each employee
with a turkey on December 23. It is a fair inference, which
I reach, that with all this communication, word reached the
Union well in advance of December 23 that the Company
was going to give the turkeys. Remaining silent, the Union
took no steps to convene another meeting with the
Company on the subject of the bonus, to make other
proposals, or otherwise to break the deadlock . Under all
the circumstances Respondent had bargained in good faith
to impasse on the subject of bonus and was free to
withhold it and to give the turkeys in lieu of it.
There is, a timeliness about bargaining for a Christmas
bonus. When, as, here, the matter was first discussed
extensively on December 2, in the absence of extenuating
circumstances , the Union should have requested any
information it wished much sooner than 2 weeks after
Christmas. It could have requested it on December-4 if the
regular union-company monthly meeting , was -held that
day. It could have made its request for information any
time between December 2 and December 25, a matter bf
23 days. Instead its request came 2 weeks lacking I day
after Christmas . Under all the circumstances I hold that its
request was made too late.
Further, there was no valid basis upon which the Union's
request was justified. As Muenster's letter of February 3
correctly stated, the Company had not claimed poverty or
inability to pay the bonus.
Upon the preponderance of the evidence in the entii4e
record considered as a whole I find and hold that
Respondent did not violate the Act in its bargaining
concerning and withholding of the 1969 Christmas bonus,
and in its refusal of information to the Union. Accordingly
this is my recommended:
ORDER
The complaint is dismissed in its entirety.