Landers, Frary and Clark

National Labor Relations Board - Board Decisions

Apr 9, 1962

136 N.L.R.B. 923 (N.L.R.B. 1962)

ELECTRIC STEAM RADIATOR CORPORATION, ETC. 923
ary 28, 1961.2 Thereafter, the Respondent filed exceptions to the
Proposed Supplemental Decision and Order and a supporting brief.
The Board 3 has considered the exceptions 4 and brief and the entire
record herein, and finds that the Proposed Supplemental Decision and
Order should be adopted. Accordingly, and pursuant to Section 10 (c)
and (d) of the National Labor Relations Act, as amended.
IT IS HEREBY ORDERED that the Proposed Supplemental Decision and
Order issued herein on December 13, 1961, be, and it hereby is, adopted.
9 130 NLRB 761
3 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 [Members Rodgers, Panning,
and Brown].
4In its brief to the Proposed Supplemental Decision, the Respondent urges, as it had
in its exceptions to the Trial Examiner's Intermediate Report, that the complaint did
not allege and that the Board should not find that the Charging Parties were unlawfully
discharged . In urging that the Board should not so find , the Respondent contends that
it had been "assured" by the Trial Examiner "that nothing outside the complaint would
constitute the basis for a finding of an unfair labor practice " While the Trial Examiner
at one point did state : "If it wasn' t alleged , it will not be held as an unfair labor prac-
tice," this statement , considered in context , does not support the broad proposition
pressed by the Respondent . We note first that the Trial Examiner in making this state-
ment was passing upon an alternative ground of an objection by the Respondent to cer-
tain questions of the General Counsel concerning statements made by an unidentified
person. Neither the objection nor the statement of the Trial Examiner were directed to
other testimony or documentary evidence establishing the discriminatory discharges We
are satisfied , moreover , that the allegations of the complaint did encompass the issue of
unlawful discharges and that the parties did , in any event , fully litigate the matter. See
NLRB v. MacKeg Radio & Telegraph Co., 304 U.S. 333, 350, 351.
Electric Steam Radiator Corporation , a subsidiary of Landers,
Frary and Clark and International Union , Allied Industrial
Workers of America , AFL-CIO. Case No. 9-CA-2095. April
9, 1962
DECISION AND ORDER
On October 26, 1960, Trial Examiner William J. Brown issued his
Intermediate Report 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 Intermediate Report attached hereto.
The General Counsel filed exceptions and a brief, and the Respondent
also filed an exception.
Subsequently, by order dated October 12, 1961, the Board remanded
this matter to the Trial Examiner, who was directed to hold a further
hearing to permit the parties to introduce into evidence certain testi-
mony previously excluded. At the hearing the parties waived their
right to file briefs and to a Supplemental Intermediate Report.
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].
136 NLRB No. 85.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and finds that any prejudicial error which may have
been committed in the first hearing was cured at the hearing on the
remand, and that no prejudicial errors were committed in the hearing
on the remand. The rulings of the original hearing are hereby
affirmed, excepting those rulings which excluded evidence the parties
were permitted to introduce at the reopened hearing pursuant to the
Board's remand. The rulings of the Trial Examiner at the hearing
on the remand are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations only insofar as they are consistent with
this decision.
For a period of at least 10 years prior to Christmas 1959 it has
been the Respondent's custom to give its employees a Christmas bonus.
On December 24, 1959, employee Ward Tomlin, not having received a
bonus, asked General Superintendent Schmid why the Respondent
had not paid the bonus for that year. Schmid replied that the bonus
would not be paid because the Union had organized the plant and in
the election the vote had turned out in favor of the Union. He added
that the minority who supported the Respondent would have to suffer
for the actions of the majority in voting in the Union and that this
was what the employees got "for voting for the damn Union."
We find the above statements by Superintendent Schmid to be coer-
cive, clearly indicating to the employee that adherence to the Union
had already resulted in a withdrawal of a benefit previously enjoyed
and carrying with it the threat that continued adherence could result
in further reprisals. "Threats to withhold bonus benefits if workers
embrace unions unpalatable to management have long been held a
form of interference violating Section 8 (a) (1) of the Act." N.L.R.B.
v. Roure-Dupont Manufacturing, Inc., 199 F. 2d 631, 634 (C.A. 2).
We therefore find that the statements made by Superintendent Schmid
to employee Tomlin interfered with the employees' rights under Sec-
tion 7 and thus were violative of Section 8 (a) (1) of the Act.
We agree with the Trial Examiner that the Christmas bonus, given
every year for at least 10 years, had become part of the employees'
wages and thus a term or condition of employment. We do not agree,
however, with his further conclusion that the Respondent's failure to
pay the bonus was not a violation of the Act. The statements of
Superintendent Schmid set forth above clearly demonstrate that the
Respondent denied the bonus to its production and maintenance em-
ployees because they had voted for the Union and thus denied these
employees a part of their regular compensation for discriminatory
reasons. We shall therefore find the failure to pay the bonus to be a
violation of Section 8 (a) (3) and (1) of the Act.
ELECTRIC STEAM RADIATOR CORPORATION, ETC. 925
At the first hearing the Respondent contended that it had failed to
pay the bonus becaues it believed that the making of such a payment
on December 24, without bargaining with the Union which had been
certified by the Board on December 17, would have constituted a
violation of Section 8(a) (5) of the Act. It offered to prove that it
had not paid the bonus because it believed the payment of the bonus
was a negotiable issue and that negotiations had actually been under-
taken. The Board therefore remanded the case for the taking of the
evidence proffered by the Respondent.
The uncontroverted evidence presented at the second hearing dis-
closed that when the question of the Christmas bonus for 1959 was
raised, the Respondent indicated that it regarded the bonus as a part
of the economic issues and as subject to discussion when those issues
came up. Later in the negotiations the Respondent offered to pay the
1959 Christmas bonus but only if the Union would accede to several
conditions including agreement to the Respondent's proposals as to
all outstanding unresolved matters and withdrawal of its charge
which forms the basis for this unfair labor practice proceeding.' Upon
the refusal of the Union to agree to this unlawful demand, no further
offer was made in regard to the 1959 Christmas bonus and the
collective-bargaining agreement eventually signed did not contain
any reference to a Christmas bonus.
It is apparent from the foregoing that the Respondent did not, as
it contended, fail to pay the 1959 bonus because it feared that such
payment would constitute a unilateral change in the terms and condi-
tions of employment which would be an unfair labor practice in viola-
tion of its duty to bargain with the Union. On the contrary the
evidence shows that the Respondent withheld the bonus because the
employees had selected the Union as their representative and it in-
tended to use the bonus as an economic weapon in future bargaining
with the Union and as a means of coercing the Union to withdraw
the unfair labor practice charges which had been filed. Thus even
if it be assumed that the Respondent could have lawfully refused
to pay the bonus until such time as the Union had agreed to it,2 it is
obvious that this was not the motivating consideration. This addi-
tional evidence has, in fact, further convinced us that the Respondent's
denial of the bonus was for reasons interdicted by the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth above, occurring in con-
nection with the operations of Respondent as set forth in section I of
i "Withdrawal or settlement of the pending unfair labor practice charge cannot lawfully
be insisted upon as a prerequisite to the fulfilling of the requirements of § 8(a ) (1) and
(5) of the Act." Lion Oil Company v . NLRB, 245 F. 2d 376, 379 ( C.A. 8), and cases
there cited.
2But see Crosby Chemicals , Inc, 121 NLRB 412, 416-417 , reversed 274 F. 2d 72
(C.A. 5).
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intermediate Report, has a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It appears from the record that the Respondent has ceased business
operations at its Paris, Kentucky, plant and has removed all records
and equipment to the parent company in New Britain, Connecticut.
We shall therefore modify our usual order requiring the posting of
notices and require the Respondent to send copies of the notice to
each of its employees at their last known address. Custom Quilting
Corporation, 134 NLRB 51.
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce within the meaning of
the Act.
2. International Union, Allied Industrial Workers of America,
AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
3. By announcing to employees that they would not receive the
regular, annual bonus and by withholding and refusing to pay the
regular, annual bonus, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (3) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
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, Electric Steam
Radiator Corporation, a subsidiary of Landers, Frary and Clark,
Paris, Kentucky, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union, Allied In-
dustrial Workers of America, AFL-CIO, or any labor organization of
its employees, by withholding or refusing to pay the 'regular, annual
bonus customarily paid to its nonsupervisory production and mainte-
nance employees at its plant at Paris, Kentucky.
ELECTRIC STEAM RADIATOR CORPORATION, ETC. 927
(b) Announcing to employees that they will not receive a bonus
because of the advent of a union, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of the rights
to self-organization, to form labor organizations, to join or assist any
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Pay to its nonsupervisory production and maintenance em-
ployees at Paris, Kentucky, the bonus for Christmas 1959, to be com-
puted in the same manner as the bonus for Christmas 1958.
(b) Send to each of the employees a copy of the notice attached
hereto marked "Appendix." 3 Copies of said notice, to be furnished
by the Regional Director for the Ninth Region, shall, after being duly
signed by Respondent, be sent to employees employed by the Respond-
ent as of December 24, 1959, at their last known address.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of said bonus
payment due and the last known address of said employees.
(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.
IT is FDRTHER ORDERED that the allegations of the complaint, insofar
as they allege unfair labor practices not found herein be, and they
hereby are, dismissed.
MEMBER RODOERS , dissenting :
I would affirm the Trial Examiner, and dismiss the complaint.
8In 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."
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 Management
Relations Act, we are notifying our employees that :
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in International Union,
Allied Industrial Workers of America, AFL-CIO, or any other
labor organization of our employees, by withholding or refusing to
pay the Christmas bonus customarily paid to our nonsupervisory
production and maintenance employees at our Paris, Kentucky,
plant.
WE WILL NOT announce to our employees that they will receive
no Christmas bonus because they chose to be represented by a
union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Inter-
national Union, Allied Industrial Workers of America, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
certain activities for the purpose of collective bargaining or other
mutual aid or protection, and 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.
WE WILL pay all our nonsupervisory production and mainte-
nance employees at Paris, Kentucky, the customary Christmas
bonus which would have been paid them in 1959 but for our dis-
crimination. Such payment is to be made in one Iump sum.
ELECTRIC STEAM RADIATOR CORPORATION,
A SUBSIDIARY OF LANDERS, FRARY AND
CLARK,
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, Fourth 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
STATEMENT OF THE CASE
Upon a charge and an amended charge filed by International Union , Allied In-
dustrial Workers of America, AFI-CIO, hereinafter sometimes referred to as the
Union , the General Counsel caused the complaint in this proceeding to be issued on
May 17, 1960 , by the Regional Director for the Ninth Region.
In addition to jurisdictional matters, the complaint alleged that : ( 1) the above-
indicated Respondent interfered with , restrained , and coerced its employees in
ELECTRIC STEAM RADIATOR CORPORATION, ETC . 929
exercise of rights guaranteed under Section 7 of the Act by several utterances of
supervisory employees; (2) the Respondent discriminatorily refused to hold or
support the customary Christmas party for production and maintenance employees
because of their membership in and activities on behalf of the Union; and (3) the
Respondent discriminatorily failed and refused to pay the bonus regularly distributed
to employees at Christmas time because of their membership in and activities on
behalf of the Union. Respondent's answer admits the jurisdictional allegations of
the complaint and denies the commission of the unfair labor practices alleged. On
the complaint and answer, a hearing was held before Trial Examiner William J.
Brown, duly designated by the Chief Trial Examiner, at Paris, Kentucky, on July 11,
1960. At the hearing the complaint was amended, without object of the Respondent
and pursuant to leave granted by the Trial Examiner, to add to Respondent's name
the descriptive phrase "a subsidiary of Landers, Frary and Clark," as above-
indicated.
Following the hearing, briefs were received from the General Counsel and the
Respondent; they have been fully considered by the Trial Examiner. At the con-
clusion of the hearing the Trial Examiner reserved ruling on Respondent 's motion to
dismiss the complaint. That motion is disposed of in accordance with the findings
and conclusions below.
Upon the entire record in this proceeding , and from my observation of the
witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
It appears from the complaint and answer that Respondent is a Kentucky corpora-
tion engaged in the manufacture and sale of electrical and related products. Its
office, plant, and principal place of business is at Paris, Kentucky. During the 12
months preceding the issuance of the complaint, a representative period, Respondent
shipped more than $100,000 worth of its products directly to points outside the
Commonwealth of Kentucky. During the same period Respondent received in
excess of $100,000 worth of materials directly from points outside the Commonwealth
of Kentucky. On the basis of the foregoing, I find that Respondent is engaged in
commerce within the meaning of the Act and that it would effectuate the policies of
the Act to assert jurisdiction in this proceeding.
H. THE LABOR ORGANIZATION INVOLVED
From the complaint and answer it appears, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The general background
Prior to May 1955, the Respondent corporation was owned and managed by
Roy Fischer, Sr. About that time it became a wholly owned subsidiary of Landers,
Frary and Clark, hereinafter sometimes called Landers. The agreement covering
Landers' acquisition of Respondent provided for Fischer's continuing as president
and manager of operations for a period of 1 year. On the expiration of that transition
period Landers' representative, Edward C. Schmid, assumed control of Respondent's
operations as general manager. Landers has its home office in New Britain,
Connecticut, and owns four American and two foreign operating subsidiaries in
addition to Respondent. Its director of employee relations, Robert H. Keane, serves
in that capacity for the subsidiaries as well as for Landers. The domestic subsidiaries
in addition to Respondent are located in Thomaston, Connecticut; Massachusetts;
St. Louis; and Arkansas.
Employees at Respondent's operation appear to be grouped into four classes:
production and maintenance, production supervisory, office and clerical, and semi-
executives and senior executives. The total number of employees was about 126
in December 1956. Their number had grown to about 235 by the end of 1959 and
thereafter declined so that it was substantially lower in the spring of 1960.
Respondent's principal product is a portable room-sized steam radiator operated
by plugging into an ordinary wall electrical socket. In addition the Respondent
manufactures a vaporizer, a bottle warmer, two types of fry pans, and certain plastic
items not otherwise specified at the hearing. In December 1959, the Respondent
experienced for the first time a heavy return of radiators. Also about the same time
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rexall Drug, a purchaser of vaporizers, and Sears, Roebuck, a purchaser of fry
pans, canceled orders. The bottle warmer is an accommodation item, somewhat akin
to a loss leader. Notwithstanding the relatively bleak economic outlook in De-
cember 1959, the Respondent admits that it was financially capable of meeting the
normal demands upon it.
The Union was successful in a Board-conducted election held December 9, 1959,
and was certified as representative of the production and maintenance group on
December 17, 1959. Bargaining meetings commenced January 20, 1960.
B. Interference, restraint, and coercion
The complaint alleges violation of Section 8(a)(1) of the Act in three separate
utterances by General Superintendent Schmid and one utterance of Supervisor
Pracht.
1. The Schmid statement of December 19, 1959: The complaint alleges a viola-
tion of Section 8(a)(1) of the Act in that Schmid told an employee that the
employees had decided they wanted a union and let the Union have a party for them.
It appears from the testimony of Marie Logan, an employee in the office of Plant
Superintendent Snapp, that she customarily fills in at the switchboard during the
lunch hour. She further testified that about 2 weeks before Christmas 1959, while
she was on the switchboard, a call came in from Bill Highlander, the vicinage's
restaurateur, who asked to talk to Schmid. At the time Schmid was out of the plant.
Highlander called again later in the day when Schmid had returned and Schmid
asked Marie Logan to find out what Highlander wanted to discuss. Highlander
informed Marie Logan, and she relayed this to Schmid, that he wanted to inquire
whether Schmid wanted to reserve a date for the party since it had been held at
Highlander's Restaurant the preceding year. Schmid directed Marie Logan to tell
Highlander that there was nothing to discuss inasmuch as the people had decided
they wanted a union and the Union could have a party for them. This message was
conveyed to Highlander by Marie Logan. Marie Logan's testimony in this regard
is confirmed by the admissions of Schmid.
It appears from the foregoing that with respect to this area of the complaint,
the General Counsel relies upon Schmid 's noncoercive statement made to Marie
Logan, an office employee not in the unit involved herein, in reply to an inquiry
made by Marie Logan in the regular course of her employment. I can find no viola-
tion in the Act in this incident.
2. The Schmid statement of December 24, 1959, that employees were not going
to get the bonus because they voted for the "damn" Union. Concerning this aspect
of the complaint , it appears that employee Ward Tomlin, a maintenance electrician,
inquired of Schmid on the morning before Christmas 1959 , as to whether or not the
customary bonus would be paid . It appears from Tomlin's testimony which, in
effect , is confirmed by the admissions of Schmid that at that time Schmid did in
fact say that the bonus would not be paid because the Union had organized the
plant and the election and the vote had turned out in favor of the Union. This
statement appears to be a noncoercive reply to Tomlin 's inquiry and not violative
of Section 8(a)(1). The use of profanity does not per se make the statement
improper. Press Co., Inc. v. N.L.R.B., 118 F. 2d 937 (C.A.D.C.), cert. denied 313
U.S. 595.
3. The statement of Schmid on December 24 to an employee to the effect that
the innocent would have to suffer along with the majority who voted for the Union.
The statement in this regard was made as part of the same conversation referred to
in 2, above , and it appears from the testimony of Tomlin confirmed by the admission
of Schmid that the alleged statement was in fact made. I find, however, that
under the circumstances of this case the statement in question is not to be considered
a violation of the Act. Leader News Co., Inc., 98 NLRB 119.
4. The alleged statement of Supervisor Pracht on December 24 to an employee
to the effect that she would not receive the bonus because she was in the unit
which had selected the Union. No evidence was adduced in support of this count
of the complaint and I recommend its disimssal.
C. The customary Christmas party
The specific allegations of the complaint in this regard are that the Respondent
"discriminatively failed and refused to hold, sponsor, or contribute financially to
the customary Christmas party for its production and maintenance employees because
of their membership and activities in behalf of the Union."
ELECTRIC STEAM RADIATOR CORPORATION, ETC. 931
Tomlin, the maintenance electrician, testified that during his 3 years of service
prior to 1950, there was a practice of holding parties at Christmas time inside the
plant. These parties were organized by committees of office employees who made
the necessary arrangements. Tomlin's knowledge or recollection of any employee
Christmas parties after the year 1950 appears to be somewhat indistinct. His best
recollection is that there was a party in either 1955 or 1956 given at the country
club which might, however, have been a personal party given by Fischer. He also
believes that in 1957 or 1958 there was a party at the Highlander's Restaurant.
Marie Logan recalled attending a Christmas party in 1955 at the country club
given by Fischer; she also recalls attending a party in 1958. She positively stated,
however, that there were no companywide parties in other years. It appears from
her testimony that the office employees had individual parties among their own
group which she did not attend. The 1958 party at the Highlander's Restaurant
was attended by both office and production and maintenance employees. Her
knowledge or memory on parties was distinct only with respect to the "big" party
given by Fischer at the country club in 1955, and the one at Highlander's Restaurant
in 1958.
Alex Beam recalled that the 1955 party given by Fischer was a personal party.
He had no knowledge of any parties in 1956, 1957, or 1958.
General Manager Schmid in explaining the reason for giving a Christmas bonus
in 1956 stated that the motivating factor was that in the preceding year, Mr. and
Mrs. Fischer had given a private party at the country club for employees, but in
1956 the country club was being altered at Christmas time and the decision was
made to give a cash gift rather than a party.
Concerning the reasons for the Company's failure or refusal to sponsor or con-
tribute financially to a Christmas party in 1959, Tomlin testified that in the course
of his conversation on December 24 with Schmid, Schmid told him that the Com-
pany could not participate in any way with the Union in connection with providing
such functions. Furthermore, as pointed out above, in connection with the tele-
phone call from Bill Highlander concerning the availability of a date for a Christmas
party in 1959, Schmid directed Marie Logan to tell Highlander that since the people
had decided they wanted a union, the Union could have a party for them. It appears
from the testimony of D'Ambrosio, regional director of the Union, that he was in-
formed approximately a week prior to Christmas 1959 that the Company was not
going to sponsor a party, whereupon, D'Ambrosio authorized the expenditure of
union funds to meet the expenses of a Christmas party.
Schmid further testified that following the conversation with Marie Logan in
connection with the telephone call from Bill Highlander, Schmid called Keane at
the headquarters of the parent company in New Britain who authorized Schmid to
pay the costs of a party if the employees asked for one. Schmid testified that no one
asked for one.
The record, summarized above, fails to establish the existence of a "customary
Christmas party" or a practice of Respondent's contribution to a Christmas party.
The evidence thus fails to establish discrimination with respect to a term or condition
of employment.
D. The Christmas bonus
1. The factual pattern
The complaint alleges and the answer denies that "on or about December 24, 1959,
Respondent discriminatively failed and refused to pay its production and mainte-
nance employees the bonus regularly distributed to them at Christmas time, because
of their membership and activities in behalf of the Union."
Ward Tomlin testified that on the day before Christmas 1959, he inquired of
Ernest Blum, Respondent's industrial engineer, whether the Company would pay
the regular Christmas bonus. Blum did not object to the description of the Christmas
bonus as a customary one and suggested that Tomlin talk with Schmid. The results
of that talk have been detailed above. Tomlin who was originally hired in 1947
and worked continuously to the date of hearing except for a short period in 1950
and 1951, testified that he received a Christmas bonus every year of his employment
except for 1959. In the earlier years commencing in 1947 and going through 1950,
his recollection was not clear as to the amounts of the bonus and he admitted that
he did not have any knowledge of the basis on which bonuses were given in those
years. He further conceded that nothing was said to him at any time about the
bonus being part of his wages or conditions of employment. He testified that the
641795-63-vol. 136--60
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bonuses were received at the time of the usual weekly paycheck just before
Christmas Day in each year, and usually there was a message of greeting from
Fischer . Tomlin testified that in the first year of Schmid 's management , which would
have been 1956, the amount of the bonus was based upon years of continuous
employment and a schedule was posted on the bulletin board . In subsequent years,
and specifically in 1958, he is of the opinion that the bonus was still based on
seniority , this based on his comparison of the amount of his bonus with other employ-
ees of like seniority.
Marie Logan , an office worker , testified that she has received a Christmas bonus
every year since she has been in the employment of the Company , that is since 1952.
Although she did not recall the amounts of her Christmas bonus each year, she was
clear in her recollection that the first year "would have been" $5, and the last year
"would have been" $25. She recalls a memorandum on the timeclock each year
telling employees the amounts of service credited their accounts and the consequent
amount of bonus they would receive . This would ordinarily be put on the timeclock
about a week before Christmas.
Alex Beam, an employee since 1949 , testified that he received a Christmas bonus
starting in 1949 every year of his employment.
The first year of full management under Schmid was 1956 . At that time Schmid
testified he paid a Christmas bonus because, as noted above, it was not possible to
give , as in 1955 , a Christmas party. In 1956 the production and maintenance em-
ployees and the office and clerical employees received bonuses ranging in amount
from $5 to $20 . In 1957 likewise , cash gifts were given to office workers, super-
visors, and plant employees . In 1958, according to Schmid's testimony , the usual
pattern was followed and the gifts ranged from $5 to $25.
I find that the Christmas bonus was a part of wages and a term or condition of
employment . Crosby Chemicals, Inc., 121 NLRB 412, reversed on other grounds
274 F. 2d 72 (C.A. 5).
Schmid testified that the reason why the bonus was not given the production and
maintenance employees in Christmas 1959 , was twofold : first , counsel advised that
the bonus could not be paid without risking an unfair practice charge. It appears that
this advice was given to Schmid by Judge Townsend , counsel for the Company in
Lexington , Kentucky, and also was given to the New Britain management by Attorney
Cullina of New Britain, Connecticut . The second reason for nonpayment of the
bonus was economic, not in the sense of inability to pay, but in the sense that Re-
spondent faced a downward trend in cash receipts and working capital.
It appears that in 1959, as in each preceding year , Schmid made it a point to bring
up with the New Britain top management the question of payment of the bonus. In
each year , the actual decision would be made only a short time before Christmas.
In 1959, Schmid recommended payment of the bonus because he felt nonpayment
would have an adverse effect on employee relations in view of the advent of the
Union . Schmid testified that in each year the decision in connection with the bonus
was made on the basis of the financial prospects of the Company . The year 1956
was good , 1957 fairly good , and 1958 quite good again.
Toward the latter part of 1959 , however , the situation looked different . In that
year for the first time there were a substantial number of radiators returned as de-
fective and an additional substantial number as to which a question had been raised
as to whether they would be returned or whether payment for them would be deferred.
Furthermore , at that time the management had been informed by its principal
purchaser of vaporizers that it would no longer be able to purchase Respondent's
vaporizers since it was changing to a different type . And, with respect to another
substantial item , the aluminum fry pan , the Respondent 's largest customer , Sears,
Roebuck, had been unable to move the quantities ordered in the volume anticipated
and as a consequence canceled production orders with Respondent.
It appears from all the testimony in this case that at least one of the reasons for
the nonpayment of the bonus in .1959 to the production and maintenance workers was
the recent certification of the Union as their representative . Another reason, how-
ever , was as is shown by the testimony , the financial condition of the Company. In
this latter regard , it is noted that in 1959 the Christmas bonus was paid only to the
office, clerical , and supervisory employees and it was paid to that group because of
their substantial volume of overtime work without compensation for overtime as
such and further because the small size of the group permitted its payment for a
relatively small sum . It is also noted that in 1959 no bonuses were paid to other
operating subsidiaries of the Landers Company.
ELECTRIC STEAM RADIATOR CORPORATION, ETC. 933
2. Conclusions as to the Christmas bonus
The reasons for Respondent 's action in withholding the Christmas bonus from the
production and maintenance group in December 1959 are found in the testimony of
General Manager Schmid and Director of Employee Relations Keane . Schmid, al-
though advised by Respondent 's local attorney that payment of the bonus could
engender the filing of an unfair labor practice charge, recommended payment on the
ground that it was an expectancy of the employees and nonpayment would affect their
relations with Respondent . Keane, assigned by Landers ' president, Silverman , to take
action on Schmid 's recommendation , rejected it . Keane testified that the bonus was
withheld pursuant to a decision reached 1 or 2 weeks before Christmas . The decision
was based on (1) advice of Landers ' New Britain attorney that payment might be
considered an unfair labor practice , (2) the realization that union organization of
the Paris operation could result in additional labor costs there, and (3 ) the economic
outlook for Landers' operations which indicated a declining profit position.
The General Counsel contends that: (1 ) Antiunion motivation for the withholding
of the bonus is shown by Schmid 's statement of December 24 to Tomlin referred to
above, and by a statement of Supervisor Snapp to employee Beam on or about
April 8 , 1960 , to the effect that the Company could properly withhold the bonus
from the production employees while paying it to supervisors because the latter are
not taken care of by the Union but must look out for themselves ; (2) in any event
proof of antiunion motivation is unnecessary since the Respondent 's action is of a
character inherently to discourage union membership , and (3 ) Respondent had the
burden of establishing economic justification for the withholding of the bonus and
has failed to sustain that burden.
But the statements relied on do not by any means establish that Respondent was
motivated by antiunion animus in its action respecting the bonus. They represent
merely an explanation to inquiries of the fact that the bonus withholding was a
consequence of organization ; they do not suffice to prove that it was in retaliation
for organization . The attorney for the General Counsel , with commendable zeal, did
establish that Schmid in giving the explanation characterized the Charging Party as
the "damn" Union ; but the profanity itself adds nothing to his case in the circum-
stances. Press Co., Inc., v. N.L.R.B., supra. Snapp's statement , lacking in any
profanity, is also seen to be a mere objective statement of the Respondent 's position.
The basic issue in this case is whether or not independent proof of antiunion moti-
vation is necessary or whether as the General Counsel contends, the disparity of treat-
ment as between the organized and other employees in the circumstances suffices to
establish a violation . Both Respondent and the General Counsel rely on The Radio
Officers Union of the Commercial Telegraphers Union , AFL (A . H. Bull Steamship
Company ) v. N.L.R .B., 347 U .S. 17. That decision does not suggest anything more
than that independent proof of improper motive may be inferred where the disparity
of treatment inherently encourages or discourages union membership . In the cir-
cumstances of this case and on the record herein, I am of the view that the dis-
crimination here was not of the type that inherently encourages or discourages union
membership . Speidel Corporation , 120 NLRB 733, Anheuser-Busch, Inc., 112
NLRB 686 ; cf. N.L .R.B. V. Crosby Chemicals, Inc., 274 F. 2d 72 (C.A. 5), reversing
121 NLRB 412. Since I do not find independent proof of antiunion motivation, I
shall recommend dismissal of this count. The General Counsel 's reliance on a theory
that the burden of proof shifted to Respondent is misplaced . Whatever duty might
rest on Respondent to support the testimony of Schmid , who .by his demeanor and
candid admissions as to his sentiments toward the Union impressed me as a credible
witness, and Keane , where such testimony is contradicted , no such duty expected here
where their testimony was unshaken by cross-examination and not controverted by
other testimony.
On the basis of the above findings of fact , and on the entire record in this case, I
made the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 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. The Respondent has not violated Section 8 (a) (1) and (3) of the Act as alleged
in the complaint.
RECOMMENDATION
In view of the above findings and conclusions , I recommend that the complaint be
dismissed in its entirety.