Aero-Motive Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 9, 1972

195 N.L.R.B. 790 (N.L.R.B. 1972)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aero-Motive Manufacturing Company and District
Lodge No . 117 of the International Association of
Machinists and Aerospace Workers , AFL-CIO.
Case 7-CA-8775
March 9, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND KENNEDY
Upon a charge duly filed on June 14, 1971, by Dis-
trict Lodge No. 117 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, here-
inafter called the Union, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 7, issued a Complaint and Notice of
Hearing on July 22, 1971, against Aero-Motive Manu-
facturing Company, hereinafter called Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, by unilaterally
granting, after the conclusion of the strike, a bonus only
to nonstriking employees without first bargaining with
the Union, and by refusing to provide, upon request,
the Union with information regarding this action. On
July 27, 1971, Respondent filed an answer denying the
commission of any unfair labor practices.
On October 4, 1971, the parties executed a stipula-
tion of facts, by which the parties waived a hearing
before a Trial Examiner and the issuance of a Trial
Examiner's Decision and recommended Order, and
agreed to submit the case to the Board for findings of
fact, conclusions of law, and an order, based upon a
record consisting of the stipulation of facts and exhib-
its, together with the charge, complaint, and the an-
swer. On October 6, the Regional Director for Region
7 referred the stipulation to the Board for decision.
On October 13, 1971, the Board approved the stipu-
lation of the parties and ordered the case transferred to
the Board, granting permission for the filing of briefs.
Thereafter, both the General Counsel and the Re-
spondent filed briefs.
Upon the basis of the stipulation, the briefs, and the
entire record in this case, the Board makes the follow-
ing:
FINDINGS OF FACT
1. JURISDICTION
Aero-Motive Manufacturing Company is, and has
been at all times material herein, a Michigan corpora-
tion, and maintains its office and place of business in
Kalamazoo, Michigan. Respondent is engaged in the
manufacture, sale, and distribution of industrial reels
195 NLRB No. 133
and related products. In the course and conduct of its
business operations, Respondent during the 1970 calen-
dar year, a representative period, sold products valued
in excess of $50,000 to, and received goods valued in
excess of $50,000 directly from, points outside the State
of Michigan.
The Respondent admitted, and we find, that Aero-
Motive Manufacturing Company is, and at all times
material herein has been, an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admitted , and we find , that District
Lodge No. 117 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At all times since June 24, 1970, and continuing to
date, the Union has been the representative for the
purposes of collective bargaining of the following ap-
propriate unit of employees:
All production and maintenance employees, in-
cluding shipping and receiving employees, truck
drivers, and quality control inspectors employed
by Aero-Motive Manufacturing Company, ex-
cluding office clerical employees, professional and
technical employees, guards and supervisors as
defined in the Act.
On Monday, September 28, 1970,' picketing com-
menced at the one and only drive and entranceway to
the premises of Respondent's plant. Respondent oper-
ated one shift during the strike with picketing taking
place prior and after completion of the shift. During the
course of the strike until about mid-November, some
automobiles and other vehicles of both strikers and
nonstrikers were damaged, as were the homes of certain
nonstrikers. In addition, the gate of Respondent at the
area where the picketing occurred was damaged.' As a
result, certain court proceedings were instituted by the
Respondent which culminated in the issuance of a re-
straining order on October 1 and a preliminary injunc-
tion on November 6.
Following the execution of a new collective-bargain-
ing agreement on December 17, the strikers began re-
turning to work. On December 18, Respondent granted
and distributed checks in the amount of $100 to all
Hereinafter, all dates refer to 1970 unless otherwise noted.
It is not stipulated or agreed that the Union or its pickets, or Respondent
or its agents were responsible for these acts.
AERO-MOTIVE MANUFACTURING CO. 791
employees who had crossed the picket line during the
strike as compensation for risking their "health, prop-
erty, and peace of mind." The record discloses that 40
unit employees, 43 office employees, and 24 supervisors
received the bonus. It is clear that although Respond-
ent decided upon the bonus during the strike, no em-
ployees were informed of it until the bonus was actually
granted on December 18, the day after the strike ended.
In addition, it is equally clear that Respondent took
this action unilaterally, without any discussion with the
Union.
Pursuant to a provision in the contract, the Union,
on December 22, requested a special meeting with rep-
resentatives of the Respondent. At the meeting, which
was held on December 30, the union representative
asked for information with respect to the payment of
the bonus, but the Respondent's representative did not
provide the requested information. In response to a
question from Respondent, the Union representative
stated that he was contemplating the filing of unfair
labor practice charges. No discussions were held be-
tween the Respondent and the Union subsequent to
that meeting with regard to the bonus until after the
unfair labor practice charges were filed.
B. Contentions of the Parties
The General Counsel contends that the payment of
the bonus is an encroachment on the employees' right
to strike and is therefore violative of Section 8(a)(1) of
the Act ; that by granting this bonus unilaterally, Re-
spondent violated Section 8(a)(5) and ( 1); that it also
violated Section 8(a)(5) and ( 1) by refusing to provide
the Union with information concerning the bonus pay-
ments . Respondent argues that inasmuch as the bonus
was not granted until after the strike ended and no
employee knew about the bonus until it was actually
paid , Respondent did not interfere with the employees'
right to strike, and the Board cannot consider, in this
case, what possible effects , if any , the bonus could have
on employees ' rights in the future . Respondent further
contends that since the union representative did not
request that collective bargaining take place regarding
the bonus prior to the filing of the charge, the bonus did
not violate Section 8 (a)(5). Finally, Respondent states
that it did not possess the requested information on
December 30 and that since the Union did not repeat
its request , Respondent cannot be held to have refused
to provide the information in violation of Section
8(a)(5).
C. Analysis and Conclusions
Congress has declared that it shall be a violation of
Section 8(a)(1) of the Act for an employer "to interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed in section 7." It has long been recog-
nized that one of the rights guaranteed by Section 7 is
the right to strike. Thus, various actions by employers
which interfere with this right, such as depriving strik-
ers of benefits which have been granted to nonstrikers,'
or making threats or promises of benefit to induce em-
ployees to abandon a strike,' are violative of the Act.
As the Supreme Court has said, "This repeated solici-
tude for the right to strike is predicated upon the con-
clusion that a strike when legitimately employed is an
economic weapon which in great measure implements
and supports the principles of the collective bargaining
system."5 Whether employer conduct unlawfully inter-
feres with any Section 7 right and is therefore violative
of Section 8(a)(1) is determined by "whether the em-
ployer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee
rights under the act."6 (Emphasis supplied.)
Thus the issue posed here is whether the payment of
a special cash bonus to employees who chose to refrain
from protected, concerted activity (plus the nonpay-
ment of such a bonus to employees who had persisted
in engaging in the protected strike activity) tends to
interfere with the free exercise of the statutory right of
the employees of this plant to engage in strike action.
While the precise issue may be somewhat novel,' the
governing principles seem to us to be well-established.
It is by now axiomatic that employers violate our Act
if they grant special benefits to employees who refrain
from engaging in concerted activity and who deny such
benefits to those who choose to engage in such activity.
Respondent urges as its principal defense to the ap-
plication of this basic principle that there was no illegal
interference here because the bonus was not granted
until after the strike had ended. While it is true that the
absence of an advance announcement or payment
necessarily means that the bonus was not used as an
' N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221; N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26.
Continental Motors, Inc., 145 NLRB 1075.
Erie, supra at 223-224.
N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7) enfg. 61
NLRB 1129.
7 Respondent cites Association of Motion Picture Producers, Inc., 79
NLRB 466, and Columbia Pictures Corporation, 82 NLRB 568, both in-
volving the same circumstances, as having presented the same issue and as
precedent for its position here. We have reviewed the facts of those cases,
and do not find them parallel to those here. There bonus was related to a
strike settlement agreement, and also was, in part, to compensate employees
for having worked outside their normal jurisdiction. There is, however, some
language in those cases which is susceptible to the interpretation that
bonuses not announced prior to the end of the strike cannot form a basis for
an 8(a)(1) finding. To the extent that the decisions in those cases carry that
implication, they are hereby overruled.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inducement to refrain from concerted activity at the
time the strike was in progress, we cannot put on blind-
ers and fail to look at the impact of the payment on
employees at the time it was made and for the future.
Once granted, the former strikers were plainly disad-
vantaged with respect to the nonstrikers and it was
equally plain that the distinction was drawn solely on
the basis of who engaged in -protected, concerted ac-
tivity and who did not. This not only created a divisive
wedge in the work force, but also clearly demonstrated
for the future the special rewards which lie in store for
employees who choose to refrain from protected strike
activity.
Respondent also contends that the purpose of the
payments, and its motive in making them, was simply
to compensate the nonstrikers for the special risks
which were involved in view of the violence which took
place during the strike. But, as Respondent points out
in support of its first argument, the payments here were
neither announced nor made during the strike, nor
were they offered as an inducement to encourage em-
ployees to run whatever risks may have been created by
the violence which accompanied-the strike.
If, then, the employees came to work and were will-
ing to do so for no more than their regular wages, what
business justification is left for the granting of special
rewards, after the strike is over, to nonstrikers? We
perceive none.
However the Respondent may have characterized
the payments, we believe that the principal impact of
the payments will be to discourage employees from
engaging in protected activity in the future. And we
think this is true even if Respondent's heart was pure.
Thus even if Respondent's officers and agents who de-
cided upon the bonus payments acted solely out of a
desire to provide additional compensation to employees
whom Respondent believed to have risked personal
harm, our decision herein would be no different. We are
concerned not with the subjective motivation of Re-
spondent but with the objective impact of its action.
The reward here was not made to employees who
had encountered violence in contradistinction to em-
ployees who had not encountered such violence.
Greater payments were not made to employees who
had run more risks than others. Rather, the only visible
line drawn between employees who received the pay-
ment and employees who did not receive the payment
was the line between the strikers and nonstrikers.
Whatever Respondent's motives may have been, there-
fore, it seems to us that the impact on employees is
plain for all to see-that nonstrikers did, and presuma-
bly will in the future, receive special benefits which
strikers will not receive. Employer actions which have
this impact are violative of Section 8(a)(1).
We turn now to the question of whether Respond-
ent's unilateral action in granting the bonus also vi-
olated Section 8(a)(5). Normally, making unilateral
changes in wage payments violates an employer's obli-
gation to bargain. But we are here dealing with a pay-
ment which was illegal. Is it true, then, that there was
nothing which could have been lawfully bargained
about? We think not.
Not altogether infrequently, both in commercial
negotiations and in labor negotiations, one party may
propose to do something which he believes to be lawful,
but which is not. Often the raising of the subject and
the discussion of possible or probable illegality will
dissuade the proposing party, from pursuing his
proposal further. Or, on occasion, such discussion may
lead the parties to an alternative proposal which may
not run afoul of legal prohibitions.
So here, had Respondent known, before it decided on
the payments, of the Union's view that they contra-
vened our Act, and, further, that the Union intended
to pursue the matter before this agency, mayhap Re-
spondent would have taken second thought and all of
these proceedings might have been avoided. But once
the course was set, and the payments made, it was not
easy for Respondent to reverse itself, and this litigation
almost inevitably followed.
We are therefore of the view that the raison d'etre of
requiring bargaining in advance of changes in wages
has at least as much application to proposed illegal
changes as to legal ones. And so we find Respondent's
unilateral action in paying the bonus to have been a
violation of Section 8(a)(5) and (1) of the Act.
There remains the further question of whether Re-
spondent also committed an 8(a)(1) and 8(a)(5) viola-
tion by refusing to supply the Union with requested
information regarding the payment of the bonus. The
stipulation of facts indicates that only one request was
made for information with respect to the payment of
the bonus. This request was refused and thereafter the
Union filed the charges with respect to the payment of
the bonus which gave rise to these proceedings. We are
unimpressed with Respondent's contention that we
should not find a violation because the request was not
repeated. If the Union was entitled to the information
at the time it made the request, then Respondent was
obligated to furnish it and there is no obligation of the
Union to repeat such a request any given number of
times. Rather the obligation is on Respondent to fur-
nish as promptly as practical any information properly
requested by the exclusive bargaining agent.
A somewhat novel question is presented again, how-
ever, by the fact that we have held that the payments
were illegal. Respondent, however, at all times has
taken the position that it was legally entitled to make
the payment. Since this was its position, albeit an er-
roneous one, it had the duty of discussing its position
AERO-MOTIVE MANUFACTURING CO.
with the union, and, in order to make such discussion
meaningful, to provide the exclusive agent of its em-
ployees with full information pertaining thereto. This
would at least have enabled the bargaining agent to
determine whether there were any legal or permissible
bargainable areas, and particularly to determine what
areas of remedy might be fruitful to explore with Re-
spondent in an effort to avoid litigation. Voluntary set-
tlements arrived at in such a manner through collective
bargaining are surely to be encouraged, and are a vital
part of collective bargaining, as that term is used in our
statute. We therefore hold that the refusal to furnish
the requested data was violative of Section 8(a)(5) and
(1) of the Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, we shall order it to cease and
desist therefrom in the future.
With respect to the Section 8(a)(5) violation with
respect to the refusal to furnish information concerning
the bonus payment, we are limiting our Order to one
requiring Respondent to cease and desist from like con-
duct in the future, since with respect to the instant
bonus the matter is now moot. Full information about
the bonus will be required to be provided to our compli-
ance officers in order to effectuate the remedy here-
inafter provided.
Having found the payment of the bonus to violate
Section 8(a)(1) we return now to the question of provid-
ing an effective remedy for this violation. Rescission
would appear to be inappropriate and impractical and
would, we believe, create greater discord among the
employees than currently exists as a result of Respond-
ent's illegal action. The only practical method, there-
fore, of restoring the statutorily required equality of
treatment as between employees who engaged in con-
certed activity and those who refrained therefrom is to
require the payment of an equivalent amount to the
employees who did engage in the concerted activity and
who were denied the payment. We shall therefore re-
quire Respondent to pay all employees who were em-
ployed at the conclusion of the strike or who were
recalled to work within 30 days thereafter and who did
not receive the bonus payment the sum of $100 each
plus interest at 6 percent per annum computed from the
date on which the bonus payments were made to the
nonstrikers, and computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
ORDER
793
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Aero-
Motive Manufacturing Company, Kalamazoo, Michi-
gan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting special bonuses in compensation to em-
ployees who refrain from lawful strike activity, or in
any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their rights guar-
anteed in Section 7 of the Act.
(b) Refusing to recognize and bargain collectively
with District Lodge No. 117 of the International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO, in good faith; unilaterally modifying the existing
collective-bargaining agreement with said Union or
refusing to provide information relevant to the pay-
ment of bonuses to employees in the bargaining unit.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Pay $100 (plus interest at 6 percent from the date
$100 bonuses were paid to nonstrikers) to each of the
employees who engaged in the 1970 strike against Re-
spondent, who did not receive the $100 bonus paid that
date to other employees, and who were recalled to work
within 30 days after December 17, 1970.
(b) Post at its plant at Kalamazoo, Michigan, copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 7, after being duly signed by Respond-
ent's authorized representative, shall be posted by the
Respondent 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. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER KENNEDY, dissenting:
This case has been submitted directly to the Board
upon an agreed statement of facts. Briefly they are:
When Respondent and the Union were unable to
agree on the terms of a collective-bargaining contract
the Union struck. Not all the unit employees joined the
' 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 be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike. The strike lasted from September 28, 1970, to
December 17, 1970, when a new collective-bargaining
agreement was signed. The striking employees began
returning to work on December 21, 1970. During the
period of the strike and the picketing by the Union
considerable damage was done to property of nonstrik-
ing employees. Thus approximately 15 automobiles
owned by nonstrikers sustained damage in the form of
scratches or dents while making passage through the
picket line; approximately 20 cars belonging to non-
strikers sustained tire damage caused by the presence
of nails or other sharp objects on the roadway near the
entrance to Respondent's plant property;' a nonstriker
had the windshield of his car smashed while making
entrance through the picket line; an employee's trailer
parked on Respondent's premises was slightly damaged
by fire; a nonstriker had paint thrown on his car and
house; another had the windows of a store belonging to
him smashed; several nonstrikers had the windows in
their homes broken. Nonstrikers were also harassed by
telephone calls.
During the strike Respondent's top managment offi-
cials discussed with counsel the possibility of making
some "award or compensation" to personnel who were
"risking their health, property, and peace, of mind" by
reporting for work. It was decided that a bonus would
be appropriate. However, the fact that a bonus was
being considered was not communicated to employees
in order not to have it construed as an inducement to
abandon the strike. The day the new contract was
signed bonus checks for $100 were ordered and were
distributed the following day to all nonstriking em-
ployees, including supervisors, office employees, and
unit production employees. The distribution was a
complete surprise to all employees except top manage-
ment. The $100 figure was not of special significance;
it was not correlated to any property loss figure at-
tributable to the strike; it was merely what manage-
ment deemed appropriate. The bonus payment was also
unprecedented.
The General Counsel contends that Respondent
should have bargained with the Union about the grant
of the $100 bonus to nonstriking unit employees and
that its failure to do so violated Section 8(a)(5) of the
Act. He further contends that the same conduct inde-
pendently violated Section 8(a)(1) of the Act., My col-
leagues agree with the contentions of the General
Counsel and have made findings in accordance there-
with. As a remedy, they have not only prescribed the
usual cease-and-desist order, but they also require Re-
spondent to reward the strikers with the same $100
bonus payment which it made to nonstrikers in ap-
9 Respondent reimbursed the nonstriking employees for the costs of this
tire damage
preciation of their loyalty in having worked under diffi-
cult conditions during the strike.
An employer is required to bargain with a union only
with respect to wages, hours, or other terms and condi-
tions of employment. Not all forms of monetary pay-
ment to employees are mandatory subjects of bargain-
ing.10 For example, if an employer should decide to
make a gift of $100 to each of his employees in celebra-
tion of his daughter's marriage, I do not think my
colleagues would say that the employer violated Sec-
tion 8(a)(5) by not bargaining with the union before
making his decision. The Board and the courts have
also made a distinction between a money payment,
such a Christmas bonus, which because of duration and
regularity has come to be considered part of the wage
structure," and a gift.12 As stated by the court in the
Wonder State Manufacturing Company case (344 F.2d
at 213):
The rule is that gifts per se-payments which do
not constitute compensation for services-are not
terms and conditions of employment, and an em-
ployer can make or decline to make such payments
as he pleases, but if the gifts or bonuses are so tied
to the renumeration which employees received for
their work that they were in fact a part of it, they
are in reality wages and within the statute.
In Wonder State, the court found, that a Christmas
bonus which the employer unilaterally discontinued
was not a mandatory subject of bargaining, because
previous bonus payments had been made intermit-
tently, there was no uniformity in or basis for the
amount of the bonus, the bonus was not tied to the
remuneration received by the employees, and' whether
a bonus was paid depended on the financial condition
of the employer. It seems clear to me that the bonus
which Respondent paid to nonstriking employees can
in no sense be considered wages but was literally and
in' fact a one-time gift made in appreciation of em-
ployees having reported for work under harassing and
perilous conditions. Respondent was therefore not re-
quired to bargain with the Union before deciding on or
distributing the $100 bonus payment to employees."
'° See Seattle First National Bank v NL.R B, 444 F.2d 30, 32 (C A 9)
"Only as to those matters enumerated in Section 8(d) of the Act is there a
mandatory obligation to bargain under Section 8(a)(5) And, as to those
matters specified in Section 8(d), the phrase `terms and conditions of em-
ployment' is to be interpreted in a limited sense which does not include
every issue that might be of interest to unions or employers ' . A mere
remote, indirect or incidental impact is not sufficient. In order for a matter
to be subject to mandatory collective bargaining it must materially or signifi-
cantly affect the terms or conditions of employment" (Citations omitted.)
" Beacon Journal Publishing Co. v N.L.R.B, 401 F 2d 366 (C A. 6),
enfg in relevant part 164 NLRB 734, General Telephone Co. of Florida v
NL.R B., 337 F 2d 452 (C A 5), enfg as modified 144 NLRB 311
" Wonder State Manufacturing Company v NL.R.B., 344 F.2d 210
(C A 8), enfg in part and setting aside in part 147 NLRB 179
' Id.
AERO-MOTIVE MANUFACTURING CO. 795
The majority 's conclusion to the contrary appears to
me to, ,be erroneous.
There is another reason,why I would not.find a viola-
tion of Section 8(a)(5) here . The Board ought not to
expend its energies in. making futile determinations.
How can a union which has called and led a strike be
expected to bargain for a gift to employees who crossed
the union 's picket line to go to work? Such a require-
ment is no more realistic than a requirement that an
employer bargain with a striking union about the em-
ployer's decision to hire striker replacement " or to sub-
contract work 's as a means- of continuing to operate
during a strike.
Although the grant of a gift is not in my opinion a
mandatory subject of collective bargaining, it may un-
der appropriate circumstances violate other sections of
the Act. In this case, the General Counsel alleges, and
my colleagues have found , that Respondent did inde-
pendently thereby violate Section 8(a)(1). It is signifi-
cant that the General Counsel does not allege a viola-
tion of Section 8(a)(3). To do so he would have had to
establish an intent to, encourage or discourage union
membership. The record is devoid of evidence to sup-
port such a finding under either of the standards set
forth in Great Dane Trailers. 11 The majority therefore
resorts to the argument that the grant of the bonus was
unlawful under Section 8(aXl) because it "tends to in-
terfere with the free exercise" by employees of the right
to strike . I shall assume for the purpose of argument
that an employer's small gift of appreciation, at the
close of a strike , to employees who had crossed a picket
line to report for work and hazarded property and
other damage did not service a "legitimate business
end"" so as to excuse otherwise unlawful conduct.
Respondent carefully refrained from announcing or
granting the bonus until the strike had been settled and
a new collective-bargaining contract signed . Therefore
the grant could not have interfered with any employee's
desire to continue with the strike which ended on
December 17. The possible impact of the bonus pay-
ment was therefore limited to alleged discouragement
of participation in future strikes. But how real or sub-
stantial is this possibility? In trying to answer this ques-
tion , we must assume that we are dealing with real
people in a real environment and not with disembodied
humans in a laboratory vacuum. When the bonus pay-
ment was made the parties had just signed a new collec-
tive-bargaining contract to be effective for a 3-year
term. The lesson which an employee might reasonably
draw from the fact of the gift was that if a strike oc-
curred again, if it lasted for several months, and if there
See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333.
" Hawaii Meat Co., Ltd. v. N.L.R.B., 321 F.2d 397 (C.A. 9), setting aside
139 NLRB 966.
" N.L.T.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34.
" N.L.R.B. v. Brown, et al. d/b/a Brown Food Stores, 380 U.S. 278, 286.
was•.aatensive damage . to the property of employees
who chose not to strike , Respondent might grant those
employees who did work a bonus payment of approxi-
mately $ 100 over and above their usual wages. Would
such a possibility tend to discourage employees from
striking? It seems to me that any. tendency in that
direction is so slight as to be , de minimis and not to
justify a finding of an 1(a)(1) violation."
The majority decision also finds that Respondent
violated Section 8(a)(5) by refusing to furnish the
Union with information as to the names of employees
who'received the bonus . The only evidence as to Re-
spondent 's alleged refusal'is the following statement in
the stiuplation:
[R]epresentatives of Respondent and the Union
met on December 30, 1970. During the course of
which meeting Union Representative Eifler asked
for information with respect to the payment of a
$100 bonus to employees who crossed the picket
line during the strike . Respondent 's representa-
tive,. Mr. Nasser , did not provide the requested
information at that meeting. In respect to a ques-
tion from Mr. Naser , Mr. Eifler stated that he was
contemplating the filing of unfair labor practice
charges.
I do not think that this statement is sufficient to support
a finding that Respondent refused to furnish the re-
quested information . The statement is just as'suscepti-
ble of the interpretation , as urged by Respondent, that
Respondent's representative did not have the list with
him and therefore was not then in a position to comply
with the request.
Where lawful and unlawful inferences from given
facts are equally reasonable, the Board ought not to
assume illegality ." A list of the names of employees
who received bonus payments is actually attached to
the stipulation submitted to the Board. This casts doubt
upon the majority's finding that Respondent "refused"
to furnish this information . In any event it shows that
no order requiring Respondent to furnish such list of
names is necessary.
" In Columbia Pictures Corporation, 82 NLRB 568, the complaint al-
leged that Respondent violated Section 8(a)(1) by the payment of bonuses
to those employees who passed the picket line or performed the work of the
strikers . In refusing to find a violation under the circumstances of the case,
the Trial Examiner commented (82 NLRB at 636):
[C]rucial to a finding that the Board's complaint in this respect has been
sustained is some element of proof that workers were promised or told
that for their conduct in passing through the picket lines or performing
the work of strikers, they would receive in addition to their fixed com-
pensation , an additional bonus and that the bonus became an induce-
ment to the workers to help break the strike.
The Board adopted the Trial Examiner 's dismissal of this 8(a)(1) allegation.
See also Association of Motion Picture Producers, Inc., 79 NLRB 466,
496-500.
11 Cf. N.L.R.B. v. News Syndicate Company, Inc., 365 U.S. 695, 699.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the foregoing reasons, I dissent from the majori-
ty's decision. I would dismiss the complaint in its en-
tirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT grant special bonuses or com-
pensation to employees who refrain from lawful
strike activity, or in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their right to strike or any other rights
guaranteed to them in Section 7 of the Act.
WE WILL NOT refuse to recognize and bargain
collectively with District Lodge No. 117 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO, in good faith.
WE WILL NOT unilaterally modify the existing
collective-bargaining agreement with the Union.
WE WILL NOT refuse to provide information
relevant to the payment of any bonuses to em-
ployees in the bargaining unit.
WE WILL pay $100, plus interest, to each of the
employees who engaged in the 1970 strike against
us, who did not receive the $100 bonus paid on
December 18, 1970, to other employees, and who
were recalled to work within 30 days from the
conclusion of the 1970 strike.
WE WILL, upon request, recognize and bargain
collectively with District Lodge No. 117 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining unit
described below with respect to rates of pay,
wages , hours of employment , and other terms and
conditions of employment . The bargaining unit is:
All production and maintenance employees,
including shipping and receiving employees,
truckdrivers, and quality control inspectors
employed by Aero-Motive Manufacturing
Company , excluding office clerical em-
ployees , professional and technical em-
ployees , guards and supervisors as defined in
the Act.
AERO-MOTIVE
MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building , 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 313-226-
3200.