Lima Register Company

National Labor Relations Board - Board Decisions

Mar 30, 1982

260 N.L.R.B. 1295 (N.L.R.B. 1982)

I.IMA REGISTER COMPANY
Lima Register Company and United Independent
Workers, Local No. 48 a/w National Federation
of Independent Unions. Case 8-CA-14538
March 30. 1982
DECISION AND ORDER
BY MEMBERS FANNING, JI NKINS, AND
ZIMMERMAN
Upon a charge filed on January 14, 1981, by
United Independent Workers, Local No. 48 a/w
National Federation of Independent Unions, herein
called the Union, and duly served on Lima Regis-
ter Company, herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 8, issued a
complaint and notice of hearing on February 24,
1981, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Respondent filed an answer to the complaint on
March 6, 1981, denying commission of unfair labor
practices and raising affirmative defenses.
On July 1, 1981, the Acting Regional Director
for Region 8 issued an amendment to the complaint
and on July 10, 1981, Respondent filed an answer
to the amendment to the complaint.
On December 21, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
30, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
failed to respond to the notice.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
FINDINGS OF FACT'
I. THE BUSINESS OF RESPONDENT
Lima Register Company, a division of Lennox
Industries, Inc., an Iowa corporation, produces air
conditioning and heating registers at its facility at
1150 North Cable Road, Lima, Ohio. Annually in
the course and conduct of its business it ships
goods valued in excess of $50,000 directly to points
located outside the State of Ohio.
'The following findings of fact, secs 1, II, and lII. are based on allega-
tions in the complaint which were admitted by Respondent
260 NLRB No. 171
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. rHE l.ABOR ORGANIZATION INVOI.VEII)
United Independent Workers, Local No. 48 a/w
National Federation of Independent Unions, is a
labor organization within the meaning of Section
2(5) of the Act.
II111. THIE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally
discontinuing a longstanding practice of giving
Christmas hams to all unit employees.
Respondent produces air conditioning and heat-
ing registers at its Lima, Ohio, facility. Since 1945,
the Union has been the exclusive collective-bar-
gaining representative of Respondent's employees
in the following appropriate unit:
All employees of the Lima Register Company
except supervisory, engineers, office personnel,
guards and watchmen.
Since 1945, Respondent and the Union have en-
gaged in collective bargaining with respect to rates
of pay, wages, hours of employment, and others
terms and conditions of employment concerning
the employees in the unit, and have entered into a
series of collective-bargaining agreements. the most
recent of which is and has been in full force and
effect from October 1, 1980, to on or about Octo-
ber 1, 1983. This agreement was in effect at all
times material.
From 1972 until 1979 Respondent had given a
Christmas ham to each of its employees. This prac-
tice was discontinued in 1980 without affording the
Union any opportunity to negotiate the loss of
benefit.
Respondent in its answer to the complaint ac-
knowledges that it discontinued the Christmas ham
benefit without prior discussion but offers two af-
firmative defenses. It argues, first, that it discussed
the economic basis for its decision with the Union
after it discontinued the Christmas ham bonus.
Second, Respondent contends that it had no bar-
gaining obligation concerning the benefit as its
original decision to provide the hams was a unilat-
eral one and not the product of negotiations.
An employer violates its duty to bargain when it
institutes changes in terms and conditions of em-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment without first informing the union. 2 Here,
the Christmas ham, consistently distributed for 8
years, is a component of wages or terms of em-
ployment, even though not expressly provided by
the bargaining agreement. Such a practice cannot
be discontinued without providing the Union with
an opportunity to bargain unless the Union has
waived its right to bargain over the matter. 3 Re-
spondent does not contend there was a waiver, and
Respondent's discussion with the Union, coming
after the benefit was discontinued, does not satisfy
its obligation to bargain. 4 Accordingly, we find
that Respondent violated Section 8(a)(5) and (1) of
the Act when it unilaterally discontinued its prac-
tice of providing Christmas hams to the unit em-
ployees, and we grant the General Counsel's
Motion for Summary Judgment.
CONCLUSIONS OF LAW
1. Lima Register Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Independent Workers, Local No. 48
a/w National Federation of Independent Unions, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All employees of Lima Register Company,
except supervisory, engineers, office personnel,
guards and watchmen, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since 1945, the Union has been and now is the
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining.
5. Respondent and the Union have at all material
times been parties to a collective-bargaining agree-
ment covering the employees in the above-de-
scribed unit.
6. By unilaterally, without notification to or con-
sultation with the Union, discontinuing its estab-
lished practice of giving to each employee in the
above unit a ham shortly before Christmas, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Sectir,
8(a)(5) of the Act.
7. By its refusal to bargain Respondent has inter-
fered with, restrained, and coerced, and is interfer-
ing with, restraining, and coercing, employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and
2 N.LR.B. v. Benne Katz. Alfred Finkel, and Murray Katz, d/b/a Wil-
liamsburg Steel Products Company, 369 U.S. 736 (1962).
' Nello Pistoresi & Sons Inc. (S & D Trucking Co.), 203 NLRB 905
(1973).
Aeronca, Inc., 253 NLRB 261 (1980); Gas Machinery Company, 221
NLRB 862 (1975).
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit concerning the Christmas ham
bonus. As Respondent's unfair labor practice con-
sists of unilaterally discontinuing giving its unit em-
ployees Christmas hams, a bonus constituting an es-
tablished benefit of employment, we shall order
Respondent to make the employees whole for the
loss of benefits due them by paying them the value
of the lost benefits with interest to be computed in
the manner set forth in Florida Steel Corporation,
231 NLRB 651 (1977). 5 Further, as Respondent has
unilaterally and unlawfully rescinded a benefit of
unit employees, we shall order Respondent to rein-
state its practice of giving unit employees the
Christmas ham bonus.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Lima Register Company, Lima, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally, without notification to or bar-
gaining with United Independent Workers, Local
No. 48 a/w National Federation of Independent
Unions, discontinuing its past practice of giving an-
nually to each of its unit employees a Christmas
ham.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
Union as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with re-
spect to any change in the practice of giving the
Christmas ham bonus to unit employees.
See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1296
LIMA REGISTER COMPANY
(b) Make whole its unit employees, with interest,
for any losses they may have suffered by Respond-
ent's unilateral discontinuance of the Christmas
ham bonus, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Reinstate the Christmas ham bonus for unit
employees.
(d) Post at its facility in Lima, Ohio, copies of
the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 8, after being duly signed by Re-
spondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent taken to comply herewith.
r In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to bargain with United
Independent Workers, Local No. 48 a/w Na-
tional Federation of Independent Unions, by
unilaterally, without notification to or consul-
tation with the Union, discontinuing our past
practice of giving Christmas hams to unit em-
ployees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights mentioned
above.
WE WILL, upon request, bargain with the
above-named Union with respect to the prac-
tice of giving Christmas hams to unit employ-
ees.
WE WILL make unit employees whole by
paying them the value of lost Christmas ham
bonuses with interest.
WE WILL reinstate the Christmas ham bonus
for unit employees. The following employees
constitute the appropriate unit:
All employees employed by us except super-
visory, engineers, office personnel, guards
and watchmen.
LIMA REGISTER COMPANY
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