The American Lubricants Co.

National Labor Relations Board - Board Decisions

Apr 10, 1962

136 N.L.R.B. 946 (N.L.R.B. 1962)

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempting to compel Charlie 's employees to accept or select Teamsters as their
collective-bargaining representative.
(c) In furtherance of the aforesaid demand for recognition and bargaining or
attempt to compel Charlie's employees to accept or select Teamsters as their collective-
bargaining representative , Teamsters , since on or about July 5, 1960 , has picketed
Charlie's.
(d) The aforesaid picketing has been conducted for more than 30 days without
the filing of a petition under Section 9(c) of the Act for a Board election.
(e) The aforesaid picketing has induced individuals employed by neutral suppliers,
service companies , and other persons not to make pickups or deliveries at Charlie's
premises , or perform services at such premises.
The aforesaid conduct is violative of Section 8(b)(7)(C) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts and conduct of Teamsters set forth in section III, above, and operations of
Charlie 's described in Section I, above, have a close, intimate , and substantial relation
to trade, traffic, and commerce among the several States and tend to lead to, and do
lead to, labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Teamsters has engaged in certain unfair labor practices , it will
be recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Teamsters has picketed Charlie's in a manner violative of Sec-
tion 8(b) (7) (C ) of the Act , the Trial Examiner will recommend that the Teamsters,
its officers , representatives , agents, employees , and all members and persons acting
in concert or participation with Teamsters or them , cease such picketing or causing
such picketing at Charlie 's where an object thereof is to force or require Charlie's
to recognize or bargain with the Teamsters as the representative of Charlie's em-
ployees, or force or require Charlie 's to accept or select Teamsters as their collective-
bargaining agent , unless and until the Teamsters has been certified as such by the
Board.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Automotive , Petroleum & Allied Industries Employees Union , Local 618,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America , is a labor organization within the meaning of the Act.
2. By picketing Charlie 's Car Wash and Service for an object or objects pro-
scribed by Section 8 (,b)(7)(C) of the Act , Teamsters has engaged in unfair labor
practices within the meaning of Section 8(b) (7) (C ) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The American Lubricants Company and Sales Drivers, Sales
& Service Local Union No . 176, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 9-CA-2264. April 10, 1962
DECISION AND ORDER
On July 14,1961, Trial Examiner John H. Dorsey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
136 NLRB No. 83.
THE AMERICAN LUBRICANTS COMPANY 947
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the modifications noted below.'
THE REMEDY
We have found that Respondent in December 1960 unilaterally
terminated the bonus paid in December 1959 to its represented em-
ployees with 5 years' service, and thus breached its obligation to
bargain, in violation of Section 8 (a) (5) and (1) of the Act. Ac-
cordingly, in order to effectuate the policies of the Act and to restore
the status quo ante, we shall order Respondent to make whole those
employees who had 5 years' service in 1960 but who were unlawfully
deprived of their bonuses in 1960 by Respondent's unilateral action.2
The amount of the bonus shall be computed in the same manner as
was the bonus given to this category of employees in December 1959.
We disagree with our dissenting colleague that in the circumstances
of this case "this remedy is insufficient and does not effectuate the
purposes of the Act." The complaint alleged that the Respondent
violated Section 8(a) (3) and (5) of the Act by unilaterally, and
for discriminatory reason, withholding from the represented em-
ployees the Christmas bonus which it had customarily and regularly
paid to such employees. It is clear that absent the unilateral dis-
continuance of the bonus, which is the basis for the alleged violation
of both sections of the Act, the represented employees would in 1960
have been paid the same bonus as they were paid in 1959, or one
computed in the same manner as in 1959. The remedy set forth
herein, based on the finding that the Respondent violated Section
8(a) (5) of the Act by its unilateral action, accomplishes this result;
the remedy, thus, is appropriate to the violation found.
I The Trial Examiner found inter alia that Respondent violated Section 8(a) (5) of the
Act when it took unilateral action with respect to the 1960 Christmas bonus , and further
violated Section 8 ( a) (3) by its disparate treatment in granting bonuses to the unrepre-
sented employees while discontinuing the bonus payments to the employees within the
bargaining unit. As we agree that the Respondent's unilateral refusal to pay the 1960
Christmas bonus violated Section 8(a) (5), and as in our view the remedy would be the
same, whether such conduct be deemed a violation of Section 8(a) (3) or 8 ( a) (5), we
find it unnecessary to pass on the alleged 8(a)(3) violation
2Marcu8 Trucking Company, Inc ., 126 NLRB 1080, enfd . 286 F. 2d 583, 593-594
(C A. 2).
641795-63-vol. 136-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chairman McCulloch's reliance on the Seven-Up Bottling Com-
pany and Bryan Manufacturing Company cases 3 is, we believe, mis-
placed. For neither of those cases stands for the proposition which
he advances-that it is appropriate to measure to make-whole remedy,
not by the violation found, but by some other violation which might
have been found if a timely charge had been filed. It is rather wholly
inappropriate, in our opinion, to measure the make-whole remedy here
to fit the 1959 changes in the wage structure which were neither alleged
nor established to be unfair labor practices 4
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The American
Lubricants Company, Dayton, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Sales Drivers, Sales &
Service Local Union No. 176, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, concerning the
payment of Christmas bonuses to its employees within the appro-
priate unit represented by said Union.
(b) Unilaterally terminating or changing the amount of Christmas
bonuses or any other term or condition of employment of its employees
within the appropriate unit represented by the Union.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the Union named above, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
8 N.L R B. v Seven- Up Bottling Company of Miami, Inc , 344 U.S. 344 ; Local Lodge
No 1424, International Association of Machins8t8, AFL-CIO, et al. v. NLRB., 362
U.S. 411.
4 We cannot agree with our colleague that Respondent 's 1959 change in the bonus
structure can be ignored . The conclusion that the unit employees ' bonus for 1960 should
have been computed on the same basis as the unrepresented employees ' bonus for 1960,
must assume that both bonuses should have been computed on the same basis in 1959;
this latter assumption must necessarily rest on the further conclusion that the bonus
change in 1959 was also an unfair labor practice . Such a conclusion is, however, pre-
cluded by the absence of a timely charge with respect to Respondent ' s 1959 conduct. In
this respect , we see no difference in principle between the two-step withdrawal of the
bonus here and, for example, a two-step reduction in wage rates . If the Respondent here
had reduced wage rates instead of withdrawing a bonus , all other facts being the same,
it would in our view have been inappropriate to measure backpay by the wage rates be-
fore the first reduction because Section 10(b) would have precluded a finding that the
first reduction was a violation Thus, it may be true that "a wrong does not become
right upon being done a second time ," but in the context here , it is irrelevant . What is
both true and relevant is that because of Section 10(b), the passage of time may leave
a wrong without a remedy.
THE AMERICAN LUBRICANTS COMPANY 949
or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Sales Drivers, Sales
Service Local Union No. 176, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, concerning
the payment of Christmas bonuses to employees within the appropri-
ate unit represented by the Union.
(b) Make whole the eligible employees in the appropriate unit for
any loss which they may have suffered by reason of Respondent's uni-
lateral termination of the December 1960 bonus payments, in the
manner set forth in the section of the Decision herein entitled "The
Remedy."
(c) Post at its plant in Dayton, Ohio, copies of the notice attached
hereto marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for the Ninth Region, shall, after being
duly signed by the Respondent's authorized representatives, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it fora period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
CHAIRMAN MCCULLOCH, dissenting in part :
I disagree only with the finding of the majority that it is unneces-
sary to pass on the alleged 8(a) (3) violation by Respondent, and that
a remedy limited to the 1959 computations fully effectuates the policy
of the Act.
Prior to certification of the Union in 1959, Respondent had given
Christmas bonuses to all its employees every year since 1948. Al-
though the record does not indicate what method Respondent used to
compute the amount of the bonus in the years 1948-54, Respondent
determined the individual amounts of the bonus paid from 1955 to
1958 by classifications based on length of service.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 27,1959, about a week prior to a scheduled consent election
among the warehouse employees on the Union's petition, Respondent
addressed a letter to all its employees, at both its plant and warehouse,
in which it set out the various benefits which the employees were then
receiving "without cost to you" and stated that :
You can see that the Company has carefully planned and provided
for your welfare in many ways. IT REQUIRED NO UNION
TO GET THESE CONDITIONS FOR YOU, AND IT WON'T
REQUIRE ANY UNION TO KEEP THEM FOR YOU.
One of the benefits listed was the Christmas bonus.
The election was held on August 4,1959, and the Union having won,
it was certified on August 12, 1959, as the exclusive representative of
the warehouse employees.
Later that month, Respondent and the Union entered into a
collective-bargaining agreement. The subject of a Christmas bonus
was not an issue in the negotiations leading up to the contract. A
few days after the execution of the contract, when asked by the
Union's business agent and two stewards what he proposed to do about
the Christmas bonus, Respondent's president, Sears, replied that it
was "entirely discretionary and not subject to negotiation." He also
told them that even though there was no obligation to pay any bonus,
he intended to pay 2 weeks' salary at the old rate to those warehouse
employees with 5 or more years' service but that those with less than 5
years' service would receive nothing. This represented a reduction
in bonus payments, as theretofore the warehouse employees with more
than 5 years' service had been paid a bonus equivalent to 4 weeks'
salary, and those with less than 5 years' service had been paid a bonus
equivalent to from 1 to 2 weeks' salary.
At the end of 1959, Respondent restricted its bonus payments to
those employees within the bargaining unit to such employees who
had a minimum of 5 years' service. These employees received only
an amount equal to 2 weeks' pay. The remaining employees in the
unit received nothing. Respondent, however, computed its bonus pay-
ments for those outside the bargaining unit on the same, more liberal
scale used in prior years, and also gave bonuses to a number of sales
employees who had not received them before.
No unfair labor practice charges were filed by the Union within
the statutory 10(b) period with respect to this course of action by
Respondent. Accordingly, the Board does not base any unfair labor
practice finding on the Respondent's conduct with respect to the
bonus for that year. Those employess in the bargaining unit who
received no bonus in 1959 are not entitled to receive it now by Board
Order, nor are those unit employees who received a reduced bonus
in 1959 entitled now to receive more.
THE AMERICAN LUBRICANTS COMPANY 951
The subject of a bonus next arose during the new negotiations which
were held in July and August 1960. Sears again asserted that the
subject was not negotiable, that the granting of bonuses was a man-
agement prerogative, and that he did not want to discuss it. Sears
admitted that the Union did not agree to these assertions, nor did it
waive the right to bargain on the subject of bonuses. However, the
contract was executed without any affirmative provision relating to
bonus payments.
In December 1960 Respondent did not give bonuses to any employees
within the bargaining unit, but continued its bonus payments at the
same rates as in preceding years to the unrepresented plant and cleri-
cal employees outside the unit. In addition, it gave bonuses to still
other salesmen who had not received them before. Moreover, the total
amount of the bonus payments in 1960 exceeded that of the previous
year.
Respondent's continued animus toward the Union is apparent from
the timing of the changes in its bonus plan. Respondent had given
Christmas bonuses to its office clerical, warehouse, and production em-
ployees every year since 1948 and, as found by the Trial Examiner, the
employees were justified in regarding the bonus payment as wages,
having received them regularly over a substantial period of time. No
changes in the bonus plant were made by Respondent until after the
warehouse employees, contrary to Respondent's expressed desire, chose
the Union as their bargaining representative. Thereupon, in Decem-
ber 1959, 4 months after the Union was certified, Respondent took
away the bonus from all employees in the bargaining unit except
those who had a minimum of 5 years' service, and this latter group
was 'tendered a reduced bonus of 2 weeks' pay, half as much as they
would normally expect to receive according to Respondent's estab-
lished plan. At the same time, employees outside the bargaining unit
continued to receive a bonus computed as in previous years, and some
sales employees who had never before been given a Christmas bonus
received one for the first time.
Respondent's attitude toward the warehousemen further hardened
in 1960 when, after refusing to bargain with the Union on the subject
matter of a Christmas bonus, it flatly refused to give bonuses to any
employee within the bargaining unit. However, it still continued to
make bonus payments to the unrepresented employees and included
additional employees for the first time. Respondent asserted no
economic motive for its action. In fact, such an assertion would hardly
be credible in view of the fact that the total amount of its bonus pay-
ments in 1960 exceeded that of any prior year, and new recipients
were added.
The Trial Examiner was convinced, from his overall consideration
of the facts of the case and from the demeanor of Respondent's presi-
'952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent while testifying, that Respondent had withheld the 1960 bonus
from the employees in the bargaining unit in retaliation for their
having spurned its wishes by selecting a bargaining representative. I
cannot disagree with the Trial Examiner that all the evidence, includ-
ing the pattern of Respondent's conduct, justifies this inference of
unlawful motivation, and that by its withholding of the 1960 bonus
from its employees within the warehouse unit the Respondent violated
Section 8(a) (3) of the Act.6
The remedy devised by the majority would ignore the Respondent's
established pattern of many years, and would approve its unilateral
discrimination in 1959, by awarding 1960 bonuses only to those em-
ployees in the bargaining unit who had 5 (years' service, and in addition
would compute the amount of his bonus in the same manner as was
the reduced bonus given in 1959. I believe that this remedy is insuffi-
cient and does not effectuate the purposes of the Act. The record
fully supports the Trial Examiner's conclusion that Respondent was
discriminatorily motivated against its warehouse employees for their
designation of the Union and that it resorted to reprisal to discourage
their union membership and adherence. Although some of this con-
duct was not charged as an unfair labor practice within 6 months and
cannot now be the basis for an unfair labor practice finding, Section
10 (b) does not prevent us from considering such conduct for the pur-
pose of framing au adequate remedy for the unfair labor practices
found.? But for their having designated the Union, the warehouse
employees would have been given 1960 bonuses computed in the
same manner as those of the other employees. This being the case, I
would now place the warehouse employees in the position they would
have occupied in 1960 if they had not incurred the Respondent's
reprisal by selecting the Union to represent them. I take issue with
the assumption of the majority that it would have been lawful for
the Respondent in 1960 to pay its represented employees only the
reduced bonus of the previous year. A wrong does not become right
upon being done a second time. Nor does it establish a new "custom-
ary and regular" basis for future repetition, as my colleagues would
find.
My colleagues' disagreement concerning the proper scope of the
remedy clearly arises from the narrow construction which they give
to the violation found. This, as they put it, is merely the unilateral
termination in 1960 of the bonus paid to certain represented employ-
ees in 1959. From this the narrow remedy the order seems naturally
to follow.
6 This case is clearly distinguishable from Pittsburgh -Des Moines Steel Co v. N L R B ,
284 F. 2d 74 ( CA 9), where respondent had an economic reason for its conduct in grant-
lag all but one group of its employees a Christmas bonus
7 See N.L.R B v. Seven- Up Bottling Company of Miami, Inc, 344 US 344, 348-349;
Local Lodge No. 1424, International Association of Machinists , AFL-CIO, et al. v.
N.L.R.B., 362 U S. 411 , 416-417.
THE AMERICAN LUBRICANTS COMPANY 953
But the crux of the violations found by the Trial Examiner, and
apparently adopted by the majority, is broader. It encompasses the
refusal by the Respondent in 1960 to bargain with its represented em-
ployees about the whole subject of bonuses, as well as its subsequent
unilateral withholding from all these employees of bonuses equivalent
to those given its unrepresented employees. The disparate treatment
accorded union and nonunion employees for unlawful reasons is
clearly supported by the record and found by the Trial Examiner.
Thus, absent the refusal to bargain and absent the discrimination, it is
the bonuses given the other employees in 1960, not just the reduced
bonuses given to some unit employees in 1959, that becomes the proper
measure of the loss suffered in 1960 and of the remedy to be ordered.
It is the status quo sine, not the inapplicable status quo ante, that the
Board should restore.
As did the Trial Examiner, I would direct the Respondent to pay
1960 bonuses to all employees in the bargaining unit, using the same
formula as that used in computing the amount of the 1960 bonuses
paid to employees outside the unit. Moreover, since the Respondent
did not offer any argument directed specifically to the Trial Ex-
aminer's remedy, I think the Board on its own motion should not
reconsider the remedy he recommended.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT unilaterally terminate or change Christmas
bonuses or any other term or condition of employment of our
employees within the appropriate unit, without bargaining col-
lectively with Sales Drivers, Sales & Service Local Union No.
176, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. The appropriate unit is:
All warehouse employees, excluding all office clerical em-
ployees and all guards, professional employees, and super-
visors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right
guaranteed in Section 7 of the Act, to form, join, or assist any
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all of such activities, except
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL pay to each eligible employee within the appropriate
unit a 1960 Christmas bonus, the amount of the bonus to be
computed in the same manner as was the bonus given in December
1959.
WE WILL, upon request, bargain collectively with the Union
concerning the payment of Christmas bonuses to employees within
the appropriate unit.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the Act.
THE AMERICAN LUBRICANTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, 4th and Vine Streets, Cincinnati 2, Ohio,
Telephone Number, Dunbar 1-1420, if they have any question concern-
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Sales Drivers, Sales & Service Local Union No. 176, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, the General Counsel issued a complaint alleging
that The American Lubricants Company, herein called Respondent, had violated
Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended.
Respondent filed its answer denying the alleged violations. Hearing on the issues
raised by the pleadings was held before the duly designated Trial Examiner, John H.
Dorsey, at Dayton, Ohio, on April 20, 1961. The General Counsel and Respondent
were represented by attorneys; the Charging Party by its business agent. The parties
were afforded full opportunity to be heard. General Counsel and Respondent each
filed a brief. Upon the entire record, and from by observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, is engaged in the manufacture and distribu-
tion of industrial oils and greases and asphalt roofing material at its plant and
principal place of business in Dayton, Ohio. During the 12 months preceding the
issuance of the complaint, which is a representative period, the Respondent had a
direct outflow of its products, in interstate commerce, of a value in excess of $50,000
which it sold and shipped directly to points outside of the State of Ohio. During the
same period, it had a direct inflow of materials and supplies, in interstate commerce,
THE AMERICAN LUBRICANTS COMPANY 955
of a value in excess of $50,000 which were shipped to its Dayton, Ohio, place of
business directly from points outside of said State.
Respondent admits and I find that it is an employer as defined in Section 2(2) of
the Act, and is engaged in commerce and in operations affecting commerce as de-
fined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is a labor organization as defined in
Section 2(5) of the Act.
M. THE FACTS
A. Certification of the Union as exclusive collective-bargaining representative
On or about August 12, 1959, pursuant to a consent election in Case No. 9-RC-
3731, the Union was certified as the exclusive bargaining representative and at all
times thereafter has continued to be such representative of employees of Respondent
in the unit, appropriate for the purposes of collective bargaining, described as follows:
All employees of he Employer [Respondent] at its warehouse in Dayton, Ohio,
excluding all office clerical employees and all guards, professional employees,
and supervisors as defined in the National Labor Relations Act, as amended.
Respondent, in its answer, admits the foregoing.
B. Bonuses to employees
Respondent has given Christmas bonuses to employees since 1948.
Under date of July 27, 1959, prior to the then arranged consent election referred
to in section A, above, Respondent, over the signature of its president, Wesley Sears,
addressed a notice to its plant and warehouse employees from which the following is
excerpted:
I would like to tell you something about Company policy on various matters
which vitally affect you and your families. At the present time, the Company
pays the following, without cost to you:
4. Christmas bonus
IT REQUIRED NO UNION TO GET THESE CONDITIONS FOR
YOU, AND IT WONT REQUIRE ANY UNION TO KEEP THEM FOR
YOU.
If a Union represents employees in the Plant, the Union will probably not
permit the continuation of some of these plans. The Company prefers to deal
directly with its employees as it has in the past, rather than through any outside
organization. It feels that it is not necessary to bring in a "stranger" to both of
us to achieve those things which are in the best interests of the employees.
There can be no doubt as to Respondent's objective in p^I blishing the notice-Presi-
dent Sears testified that he opposed the selection of the UTlion by the employees.
From 1955 to 1958, inclusive, Respondent determined the amount of the bonus
paid to each of its office clerical, warehouse, and production employees, including
those within the collective,bargaining unit, on the basis of length of service as
follows:
Length of service: Amount of bonus
Over 5 years-------------------------------------- 4 weeks' pay.
2 to 5 years--------------------------------------- 2 weeks' pay.
Ito 2 years--------------------------------------- 1 week's pay.
Less than 1 year----------------------------------- Token amount.
In August 1959 the Union and Respondent entered into a collective-bargaining
contract. The record contains no evidence as to the negotiations leading to this
contract.
In 1959, after executing the contract, Respondent, unilaterally, changed its bonus
formula. Within the collective-bargaining unit the only employees given bonuses
were those with more than 5 years' service and each of them was given an amount
equal to 2 weeks' pay. The employees outside the unit received bonuses computed
as in the prior years; and Respondent gave bonuses to a number of sales employees
who had not before been recipients.'
1 This change in 1959 Is set forth for background. The complaint contains no allega-
tions concerning It.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In August 1960, the Union and Respondent again executed a contract. In the
negotiations leading to this contract the subject of bonuses was raised by the Union.
The details are set forth below. Suffice to say at this point, the contract has no
bonus clause.
Respondent, in 1960, again, unilaterally changed its bonus plan after the execu-
tion of the contract. It gave no bonus to any employee within the unit. It continued
the bonus payments to the other job classifications; and it gave bonuses to additional
salesmen who were not ,before included among the recipients. The total amount of
the bonus payments in 1960 exceeded that of the previous year.
C. The controversy concerning the payment of bonuses
A few days after the execution of the 1959 contract the Union's business agent,
Robert Rodgers, in company with Shop Stewards Robert Kinney and Colston Rut-
ledge, met with Wesley Sears, president of Respondent. Rutledge asked Sears what
he proposed to do about the Christmas bonus. Sears replied that it was entirely
discretionary and not subject to negotiations. Further, Sears said that although there
was no obligation to pay a bonus, he intended to pay 2 weeks' salary at the old rate
to those with 5 years' service or more, but there would be no bonus to those with less
than 5 years' service.
The next time that the subject of bonuses was discussed by the parties was during
negotiations in July and August 1960 which led to the execution of a contract in
the latter month. Respondent's president, Sears, steadfastly asserted that the subject
was not negotiable; the granting of bonuses was a management prerogative; and he
did not want to discuss it.2 As a consequence the contract as executed contains no
provision relative to bonus payments.
At the final negotiating session, held on August 17, 1960, Sears made the state-
ment, ". . that there would not be any bonus paid in addition to the amount
[wages] set forth in our offer." But, Sears testified that the Union did not waive its
rights to bargain on the subject of bonuses nor did he ask them to waive it.
IV. THE ISSUES
1. Whether Christmas bonuses are a mandatory subject of collective bargaining
by requirement of Section 8(a)(5) and 8(d) of the Act?
2. Whether Respondent fulfilled its collective-bargaining obligations on the sub-
ject of bonuses in the negotiations preceding the execution of the 1960 contract?
3. Whether Respondent is obligated to bargain with the Union on the subject of
bonuses during the term of the 1960 contract?
4. Whether Respondent's unilateral action with respect to bonus payments in 1960
violated Section 8(a),(5) and (1) of the Act?
5. Whether Respondent withheld bonus payments from the employees in the unit
in 1960 in violation of Section 8(a)-(1) and (3) of the Act?
V. CONCLUSIONS
A. The Christmas *bonuses are a mandatory subject of bargaining
Over a period of years Respondent's employees within the unit enjoyed a bonus
arrangement whereby they received, at the end of each year, compensation directly
related in amount and supplementary to their wages. The fact that the bonus was
paid regularly over a substantial period of time is sufficient to justify the expectation
on the part of the employees that, absent a change in circumstances, they would
receive a yearend bonus upon which they might rely as part of their wages. That
the bonus constituted an integral part of Respondent's wage structure is underscored
by the content of its notice to the employees dated July 27, 1959, discussed above.
I find that Respondent's bonus payments constitute "wages" and are therefore a
subject encompassed within the Respondent's statutory obligation to bargain. Niles-
Bement-Pond Company, 97 NLRB 165, enfd. 199 F. 2d 713 (C.A. 2). Cf. The
Press Company, Incorporated, 121 NLRB 976.
B. Respondent failed to bargain on the subject of bonuses
In N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 349,
the Supreme Court has construed Section 8(a).(5) and 8(d) of the Act as estab-
lishing the obligation of the employer and the representative of its employees to
2 While the witnesses for Respondent and the General Counsel differed in reciting the
phraseology used by President Sears, their testimony in substance, supports this
statement.
THE AMERICAN LUBRICANTS COMPANY 957
bargain with each other in good faith with respect to mandatory subjects of col-
lective bargaining. In N.L.R B. v. Jacobs Manufacturing Company, 196 F. 2d 680,
683, the Second Circuit has defined bargaining in good faith to mean "cooperation
in the give and take of personal conferences with a willingness to let ultimate
decision follow a fair opportunity for the presentation of pertinent facts and argu-
ments." Respondent failed to meet these tests when during the July-August 1960
bargaining sessions, and particularly on August 17, 1960, it refused to discuss the
subject of bonuses, a mandatory subject of collective bargaining under the facts of
this case. Consequently, it violated Section 8(a)(5) and (1) of the Act.
C. Respondent is obligated to bargain on the subject of bonuses during
the term of the contract
The Board's rule, applicable to negotiations during the contract term with respect
to a subject which has been discussed in precontract negotiations but which has not
been specifically covered in the resulting contract is:
the employer violates Section 8(a)(5) if, during the contract term, he
refuses to bargain or takes unilateral action with respect to the particular sub-
ject, unless it can be said from an evaluation of the prior negotiations that the
matter was "fully discussed" or "consciously explored" and that the Union
"consciously yielded" or clearly and unmistakably waived its interest in the
matter.3
In the instant case the uncontroverted facts prove that the matter of Christmas
bonuses [a mandatory subject of collective bargaining] was not "fully discussed" or
"consciously explored" in the contract negotiations prior to the August 1960 contract;
the Union did not waive its interest and concern in the matter; and Respondent took
unilateral action concerning the Christmas bonus paid in December 1960. There-
fore, applying the Board's rule: (1) Respondent was and is obligated to negotiate
concerning bonuses during the term of the contract; and (2) Respondent violated
Section 8,(a) (5) and (.1) of the Act when it took unilateral action with respect to
the 1960 Christmas bonuses.
D. Respondent violated Section 8(a) (1) and (3) of the Act
Other than its position that the granting of the bonuses was discretionary and not
subject to collective bargaining, Respondent proffered no reason for not giving
bonuses in 1960 to employees within the unit while it continued the payment of
bonuses to its other employees who had before been recipients and added some
employees who had not previously been recipients. The reason for this disparate
treatment of union and nonunion employees is unexplained. Of a certainty it was
not for economic reasons since the total amount Respondent distributed in bonuses
in 1960 exceeded that of the previous year. Consequently, Respondent's intent and
the inherent nature of its conduct must be founded upon the application of legal
principles defined in prevailing case law.
Specific proof of intent is unnecessary where the employer's conduct "inherently"
discourages union membership. This is but an application of the common-law rule
that a man is held to intend the foreseeable consequences of his conduct. The
Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull
Steamship Company), 347 U.S. 17, 44-45. Upon the facts in this case, and from
my observation of the demeanor of Respondent's president, while testifying, I am
convinced and find that the Respondent did not include employees within the unit
in its 1960 bonus in retaliation for said employees selecting the Union as collective-
bargaining agent notwithstanding Respondent's expressed opposition. Further, the
unilateral action taken by Respondent, after certification of the Union, is denying
a bonus to the represented employees while continuing to give a bonus to non-
represented employees, even adding salesmen not previously recipients, is a striking
example of conduct which "inherently" discourages union membership. The Radio
Officers' Union, etc., 347 U.S. 17. Cf. Speidel Corporation, 120 NLRB 733, 735-736,
in which the Board points out limitations upon the scope of the holding in The
Radio Officers' Union, etc. The discussion of the limitations supports the finding
in the instant case that Respondent treated its union and nonunion employees in a
disparate fashion based upon membership or nonmembership which "inherently"
tends and was intended to discourage union membership in violation of Section
8(a)(1) and (3) of the Act.
s Proctor Manufacturing Corporation, 131 NLRB 1166
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
VII. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent refused to bargain collectively with the Union, I
shall recommend that Respondent, upon request, bargain with the Union as the
exclusive representative of the employees in the appropriate unit with respect to
bonuses.
Having found that Respondent discriminated against the employees in the ap-
propriate unit represented by the Union as sole collective-bargaining agent, I shall
recommend that Respondent make whole said employees for any loss of "wages," in
the form of a Christmas bonus in 1960, which they suffered as a result of Respond-
ent's discrimination against them.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Union is the sole collective=bargaining agent for the employees of
Respondent in the unit described in section III, above.
4. The payment of Christmas bonuses, within the facts of this case, is a manda-
tory subject of collective bargaining by requirement of Section 8(a)(5) and 8(d)
of the Act.
5. Respondent violated Section 8(a)(5) and (1) of the Act in refusing to discuss
the subject of Christmas bonuses with the Union during the July-August 1960 pre-
contract negotiations.
6. Respondent was and is obligated to bargain with the Union on the subject of
Christmas bonuses during the term of the August 1960 contract; and its unilateral
action relative to the subject after execution of the contract was in violation of
Section 8(a)(5) and (1) of the Act.
7. Respondent, in the payment of Christmas bonuses in 1960, discriminated against
its employees within the unit in violation of Section 8(a)(3) and (1) of the Act.
[Recommendations omitted from publication.]
Rohr Aircraft Corporation and International Union , United
Weldors (Independent ), Petitioner. Case No. 11-PTC-6342.
April 10, 1962
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on October 3, 1961 ( not published in NLRB volumes), an elec-
tion by secret ballot was conducted on October 18, 1961, under the
direction and supervision of the Regional Director for the Twenty-
first Region among the employees in the appropriate unit. Upon the
conclusion of the election , the parties were furnished a tally of ballots
which showed that of approximately 95 eligible voters, 89 valid ballots
were cast, of which 45 were for the Petitioner , 44 were for the Inter-
136 NLRB No. 102.