Aeronca, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1980

253 N.L.R.B. 261 (N.L.R.B. 1980)

AlR()NCA, IN(
Aeronca, Inc. and Local odge 2535 of District
Lodge 13 of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 9-CA-12250
November 12, 1980
DECISION AND ORDER
By CtL.AIRMAN FANNIN(, AN) Ml NMIIRS
JENKINS ANI) lNII 10
Upon a charge filed on March 1, 1978, by Local
Lodge 2535 of District odge 13 of the Interia-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union the
General Counsel of the National Labor Relations
Board by the Regional Director for Region 9,
issued a complaint and notice of hearing on No-
vember 17, 1978, against Aeronca, Inc.. herein
called Respondent, alleging Respondent had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) of the National Labor Relations
Act, as amended. Respondent filed an ans:wer to
the complaint, denying commission of unfair labor
practices and raising affirmative defenses. A hear-
ing was held on May 23, 1979, before Administra-
tive Law Judge Walter H. Maloney, Jr.
Thereafter, the parties to this proceeding entered
into a stipulation that the charge, complaint, and
record evidence adduced at the hearing herein con-
stitute the entire record in this proceeding, that
there are no outstanding questions of credibility,
and that the proceeding involves legal issues only.
The parties waived the making of findings of facts
and conclusions of law by the Administrative Law
Judge and the issuance of an Administrative Law
Judge's Decision. They moved that the case be
transferred directly to the Board for decision.
On July 3, 1979, the Board issued its order grant-
ing the motion and transferring the proceeding to
the Board. Thereafter, the General Counsel and
Respondent filed briefs.
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:
FINDIN;S O0 FACT
I. THE BUSINESS OF RESPONDINT
Respondent, an Ohio corporation, is engaged in
the manufacture of aircraft components at its facili-
ty in Middletown, Ohio. During the 12 months
prior to the issuance of the complaint, a representa-
tive period, Respondent purchased and received
253 NLRB No. 26
goods and materials valued in excess of $5(),000,
which were shipped to its Middletown, Ohio, fa-
cility directly from points outside the State of
Ohio. It is admitted, and we find, that at all times
material herein, Respondent is, and has been, an
employer within the meaning of Section 2(2) of the
Act, engaged in commerce and in operations af-
fecting commerce within the meaning of Section
2(6) and (7) of the Act. Accordingly, we find that
it will effectuate the policies of the Act to assert
jurisdiction herein.
11. IlI I AOR O)R(GANIZ/.A I ON INVOI VI 1)
Local Lodge 2535 of District Lodge 13 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
111. TIl. ..I.I(1iI) I'NFIR I ABOR I'RACTICEI
A. ucts
The complaint alleges that Respondent violated
Section 8(a)(5) and (I) of the Act by unilaterally
discontinuing a longstanding practice of giving
Christmas turkeys to all unit employees. Respond-
ent contends that the Board should defer to the ar-
bitration award denying the Union's grievance over
the matter and that the Union contractually waived
the right to bargain over the matter.
Respondent manufactures aircraft and aerospace
components at its Middletown, Ohio, facility. The
Union is the certified exclusive collective-bargain-
ing representative of Respondent's employees in
the following appropriate unit:
All production and maintenance employees of
Respondent at its Middletown division plants
at Middletown, Ohio, including plant clerical
employees and truck drivers, but excluding all
office clerical employees, technical employees,
and professional employees, guards and super-
visors as defined in the Act.
On April 1, 1974, Respondent and the Union en-
tered into their first bargaining agreement effective
until 1976, and on July 18, 1976, the parties entered
into their second agreement effective through July
18, 1979. This later agreement was in effect at all
material times herein.
For years Respondent maintained a practice of
giving all employees, including managers and su-
pervisors, a Christmas turkey on their last day of
work prior to the customary plant shutdown for
the Christmas holidays. Employer Ronald Baker.
who was union president in 1976 and 1977, testified
that he received a turkey every year from 1952,
when he was first employed by Respondent,
2ol
I)ICISIO()NS () NA I O()NAI. I.AIO()R RELATIONS ()ARI)
through 1976. 'Ihe turkeys averaged 14 to 16b
pounds and would easily feed eight people. The
practice of giving a Christmas turkey continued
after the Union was certified, even though neither
of the bargaining agreements referred thereto.
In D)ecember 1976, poor financial conditions
prompted Respondent to institute a general muster-
ity program. As a part of the program, Respond-
ent's president decided at that time to discontinue
the turkey bonus but not to do so until 1977 as it
was then too close to Christmas. In late November
1977, at a grievance meeting, a shop committeeman
asked Respondent's president if employees would
receive a Christmas turkey that year. The president
answered that he did not know. Later in the mcet-
ing Frank Sciutto, Respondent's vice president for
industrial relations, told the union representatives
that the employees would not receive turkeys that
year. In the first part of December 1977, Union
President Baker again asked Sciutto about the tur-
keys and was told that they would not be given
that year. Baker asked Sciutto to post a notice to
that effect, and Sciutto said he would. No notice,
however, was posted. Sciutto said that posting the
notice would be "like waiving a red flag in front of
a bull." The employees were not given turkeys that
Christmas.
On December 29, 1977, the Union filed a griev-
ance protesting Respondent's unilateral discontinu-
ance of the turkey bonus. At step 2 of the griev-
ance procedure, Sciutto replied in a letter dated
January 11, 1978, "The Company does not recog-
nize that the subject of Christmas turkeys is a grie-
vable matter and will not discuss it in that con-
text." At the third-step grievance meeting in mid-
January, Sciutto said he would not discuss the
turkey bonus grievance, period. On February 7,
1978, the Union gave notice that it was submitting
the grievance to arbitration. On March 1, 1978, the
Union filed the instant charge with the Board.'
On May 23, 1978, an arbitration hearing was
held on this and two other grievances. Both parties
were present, participated in the hearing, and sub-
mitted briefs to the arbitrator. On July 17, 1978,
the arbitrator issued his award denying the Christ-
mas turkey grievance. In the award, the arbitrator
fully set forth the positions of the parties, referred
to the Board's decision in Radioear, Inc., 214
NLRB 362 (1974), briefly discussed the issues, and
concluded:
The Union accepted the bargaining waiver
[zipper] clause in the contract, failing to incor-
porate continuance of any past practises [sic],
Ihe Regional Direcltor initiall1 deferred the matter t tile pending
arbitration but subsequenlly determined that the aard did not melltC d'-
ferral standards and issued the complainl herein.
consequently, the Arbitrator must recognize
restrictions and limitations placed on him as
Arbitrator and reject the Union contention the
Christmas turkeys are a benefit and past prac-
tise [sic] and I so find.
The arbitrator did not determine if the subject of
turkeys was raised in the 1976 contract negotiations
but found, "Whether or not it was mentioned the
fact remains it was riot in the contract specifically
or by reference to it and I so find."
Neither the 1974 nor the 1976 bargaining agree-
ment referred to Christmas turkeys. Neither con-
tained a maintenance-of-benefits clause or similar
provision. Both, however, contained the following
waiver or zipper clause:
The parties acknowledge that during the nego-
tiations which resulted in this Agreement each
had the unlimited right and opportunity to
make demands and proposals with respect to
any subject or matter not removed by law
from the area of collective bargaining, and
that the understandings and agreements ar-
rived at by the parties after the exercise of that
right and opportunity are set forth in this
Agreement. Therefore, the Company and the
Union, for the life of this Agreement, each
voluntarily and unqualifiedly waives the right,
and each agrees that the other shall not be ob-
ligated to bargain collectively with respect to
any subject or matter referred to or covered in
this Agreement, or with respect to any subject
or matter not specifically referred to or cov-
ered in this Agreement, even though such sub-
ject or matter may not have been within the
knowledge or contemplation of either or both
of the parties at the time that they negotiated
or signed this Agreement.
Both contracts also contained in article 23 the fol-
lowing provision:
This document contains the entire Agreement
of the parties and neither party has made any
representations to the other which are not con-
tained herein.
At the beginning of negotiations in 1976 for the
more recent agreement, the Union submitted a 72-
page contract proposal. With respect to the zipper
clause, the Union proposed adding "except as re-
quired by this Agreement" to the waiver of the ob-
ligation to bargain. The Union also proposed the
addition of a maintenance-of-benefits provision to
article 23 to read "except that any and all benefits
that the employees and/or Union are now receiv-
ing which are not specified in this Agreement shall
continue during the term of this Agreement." The
262
AERONCA. INC.
chief negotiator for Respondent objected to the
length of the proposal stating, "we can't negotiate
on that thing," and the session ended. Subsequent-
ly, in reducing the proposal, the maintenance-of-
benefits provision was dropped. Union Business
Representative James Ronto testified that he met
with the union negotiating committee to reduce the
proposal, that the Christmas turkey bonus was re-
ferred to in connection with the maintenance-of-
benefits proposal, and that it was decided to drop
the proposal because the employees had "been get-
ting [the turkeys] right along." However, in the
protracted (50, 60, or 75 sessions) negotiations with
Respondent for the new agreement, there was no
mention of the turkey bonus, and the waiver provi-
sion and article 23 were carried over verbatim
from the prior contract without discussion.
B. Contentions of the Parties
The General Counsel contends that the arbitra-
tion award does not meet the Spielberg standards 2
for deferral because the arbitrator relied exclusive-
ly on the literal wording of the contract, failed to
consider the parties' past practices, ignored Board
precedent, and failed to make a crucial finding
under Board law of the extent to which the turkey
bonus was discussed during negotiations. More spe-
cifically, the General Counsel argues that although
both parties to the arbitration cited Radioear, supra,
as controlling and the arbitrator referred to the
case, the arbitrator, as the award makes clear, ig-
nored that case and its legal principles.
On the merits, the General Counsel argues that
the turkey bonus was an employee benefit estab-
lished on the basis of longstanding practice, that
Respondent was therefore obligated to bargain
with the Union over any change in the benefit
unless the obligation had been waived, that a
zipper clause in and of itself does not constitute a
waiver of a statutory right, that the Union did not
waive its bargaining rights about the matter, and
that Respondent did not bargain about its discon-
tinuance of the Christmas turkeys. Accordingly.
the General Counsel contends that Respondent un-
lawfully refused to bargain about the turkey bonus
and unilaterally discontinued the benefits of unit
employees in violation of Section 8(a)(l) and (5) of
the Act.
Respondent argues that this case should be de-
ferred to arbitration because the parties had full op-
portunity to present all factual and legal issues and
did so, that the award addressed and resolved these
issues, and that the award is not contrary to Board
law. Respondent contends that the arbitrator, in de-
ciding the waiver issue, did consider a number of
2 Spwhlbarg .Mjnulicturing Cpwtol,l 112 NI RH 1080 ( 1955)
factors including a zipper clause broader than that
in Radioear, supra, the failure of the contract spe-
cifically or by reference to include the Christmas
turkey bonus, the failure to incorporate continu-
alnce of past practices, and the completeness of the
contract.
On the merits, Respondent contends that it was
motivated solely by its dire financial straits and
that it did not refuse to bargain over discontinu-
ance of Christmas turkeys but gave the Union prior
notice. Respondent argues that various factors
demonstrate that the Union knowingly waived its
right to bargain. Respondent further argues that
the Union's failure to raise the turkey bonus during
negotiations, despite its opportunity to do so, and
its knowledge of the contract's provisions, proves
that the Union clearly waived whatever rights it
had to bargain about the matter.
C. Discussion and Conclusions
There are, as the parties stipulated, no factual
issues to be resolved. The first legal issue to be re-
solved is whether the arbitration award meets the
Spielberg standards for deferral. We find that it
does not. Although all parties had agreed to be
bound by arbitration of the dispute and the pro-
ceedings appear to have been fair and regular, we
find for the reasons below that the award is clearly
repugnant to the purposes and policies of the Act.
The Board does not defer to an arbitration award
where the arbitrator has not addressed himself to
the unfair labor practice issue and his award is con-
trary to unfair labor practice decisions under the
Act. Alfred M. Lewis, Inc., 229 NLRB 757 (1977).
Here the arbitrator specifically stated as the basis
for his award that "the Union accepted the bar-
gaining waiver clause in the contract [and failed] to
incorporate continuance of any past practises [sic]."
Thus, the arbitrator reached his decision on the
basis of the silence of the contract about the Christ-
mas turkeys and the broad zipper clause, that is, on
the terms of the contract itself. The arbitrator
thereupon specifically rejected "the Union conten-
tion the Christmas turkeys are a benefit and a past
practise [sic]." Thus, the arbitrator rejected the
Union's grievance solely because the turkey bonus
was not covered or protected by the contract.
From the foregoing, it appears that the arbitrator
neither considered nor discussed the statutory issue.
Respondent contends that the award properly
decided the statutory issue in effectively finding
that the Union. based on a number of factors, had
contractually waived its right to bargain about the
matter. We do not agree. First, as we read the
award, the arbitrator did not consider, let alone re-
solve, the statutory issue. Second, as discussed
203
I)tCISI)NS ()1: NA I()NAI. LA()KR RIL'.ATI()NS ()ARD[)
below, the factors presented to the arbitrator do
not under Board precedent establish such a waiver
of the statutory right to bargain. The law is settled
that the right to be consulted concerning changes
in conditions and terms of employment, including
an established practice, is a right given by statute
and not necessarily one obtained by contract. To
establish a waiver of such a right there must be a
showing of a clear relinquishment of the right
which is to be decided on the facts and circum-
stances surrounding the making of the contract as
well as the language of the contract itself. McDon-
nell Douglas Corporation, 224 NLRB 881 (1976).
Here, the factors cited by Respondent as having
been considered by the arbitrator are all based on
the wording of the contract-the length of the con-
tract, the zipper clause, the silence of the contract
on Christmas turkeys, and the clause that the docu-
ment contained the entire agreement. Yet the arbi-
trator refused to determine whether the turkeys
were mentioned during negotiations and failed to
consider the parties' past practices under the prede-
cessor agreement and in 1976 under the new agree-
ment. Thus, we find that the arbitrator reached a
result at odds with Board law and that deferral is
therefore inappropriate.
It is undisputed that Respondent for years had
annually given its employees Christmas turkeys
until the practice was discontinued in 1977. It is
well settled that an employer violates its duty to
bargain collectively when it institutes changes in
employment conditions without fist consulting with
the Union. N'L.R.B. v. Benne Katz, etc., d/b/a Wil-
liamsburg Steel Products Co., 369 U.S. 736 (1962). It
is also settled that a Christmas bonus consistently
paid over a number of years is considered a com-
ponent of wages or term of employment, even
though not expressly provided by the bargaining
agreement, which cannot be discontinued by the
employer before the Union has been given notice
and an opportunity to bargain. Nello Pistoresi &
Sons, Inc. (S & D Trucking Co.), 203 NLRB 905
(1973); Gas Machinery Company, 221 NLRB 862
(1975). Respondent contends that the Union was
given notice and an opportunity to bargain prior to
the discontinuance of the turkey bonus. The
record, however, shows that what Respondent told
the Union prior to the time employees were to re-
ceive the turkeys was that employees would not
get them that year. In addition, the record shows
that Respondent made its decision in 1976 nearly a
year prior to its "notification" to the Union. Even
though Respondent may have been willing, as it
contends, to discuss the matter, it did not inform
the Union of its proposed actions prior to its deci-
sion in the matter or under circumstances which af-
forded a reasonable opportunity for counterargu-
ments or proposals. It is irrelevant that the Compa-
ny's action was based on compelling economic
considerations; an employer is not required to
forgo needed changes, but it must first notify and
bargain with the Union. Accordingly, we find that
Respondent has neither bargained over the matter
nor afforded the Union a reasonable opportunity to
do so. N.L.R.B. v. Citizens Hotel Co. d/b/a Hotel
Texas, 326 F.2d 501 (1964).
As found above, Respondent's unilateral discon-
tinuance of the turkey bonus is an unlawful refusal
to bargain unless, as contended by Respondent, the
Union has waived its right to bargain over the
matter. Respondent, to establish such a waiver,
must show that the Union consciously yielded its
statutory right. Whether there has been such a
"clear and unmistakable" waiver of the right is de-
termined by the contractual language and the facts
and circumstances surrounding the making of the
contract. McDonnell Douglas, supra at 895; Pepsi-
Cola Distributing Company of Knoxville Tennessee,
Inc., 241 NLRB 869 (1979). Upon the varied fac-
tors and circumstances herein, we find that the
Union made no such waiver.
We do not find Radioear, supra, or Bancroft-
Whitney, supra, relied upon by Respondent, deter-
minative.3 Although Radioear concerned "turkey"
money bonuses and a similar though somewhat less
broad zipper clause, the agreement containing the
zipper clause was the first bargaining agreement
between the parties and there was no practice, as
herein, of giving the bonus in face of the zipper
clause. In addition, the parties had bargained about
a maintenance-of-benefits provision but failed to
reach agreement and did not include such a provi-
sion in the final contract. Although Bancroft-Whit-
ney also involved an annual bonus or dividend and
a similar zipper clause, the zipper clause was a
newly negotiated provision and there was no histo-
ry of payments of the benefit under the zipper
clause. In addition, the contract also provided that
"all wages and other benefits to be received are
contained in this agreement," a more specific pro-
vision than that in the instant contract providing
that the "document contains the entire agreement
of the parties."
Although Respondent and the Union herein en-
gaged in extensive negotiations resulting in the
complete and detailed 1976-79 bargaining agree-
: Iherl Nlcnher F;lrllairig and Memhcr Jlllk dissented in Rudioear
.ad woulhl lover ule that dcilon Charllnrill .dliiliig grees i hat IIIn-
i,ro/i 'hi lz i, il deter llinatinc ill this case iov" c tCr, this doue, lot
rnelran Ih. fi he agrees wih i he finding in lanun/l-I-Whitlm, in which he did
ut plltip;lt MemN her Jenkinis ist.ented i ll n m ji lu-r,, - h y i l n wOUld
o'.crrulc tht (t ciioIn
204
AERONCA. INC
ment of the parties, the turkey bonus was never
discussed or referred to during the negotiations.
Initially the Union had, in its written contract pro-
posal, asked for a minor change in the existing
zipper clause and the inclusion of a maintenance-of-
benefits provision. Respondent took a brief look at
the proposed contract and concluded that it was
too ponderous a basis for meaningful negotiations.
In an intraunion meeting to reduce its proposal, the
union negotiating committee discussed the mainte-
nance-of-benefits provision with reference to the
turkey bonus but decided to drop the provision be-
cause the bonus had never been a problem under
the prior contract. Because Respondent had given
out the turkey under the old contract which did
not have a maintenance-of-benefits provision but
did have the zipper clause, the Union had a ration-
al basis for concluding that the zipper clause did
not affect the turkey bonus. During the subsequent
negotiations. maintenance of benefits was not raised
or discussed. Both the zipper clause and the con-
cluding provision were carried over from the prior
contract without modification and without discus-
sion during the negotiations. There were, thus, no
new provisions or changes in the contract or dis-
cussions during negotiations that would reasonably
lead the Union to believe that the turkey bonus
was in peril or its rights with respect thereto in any
way modified. Accordingly, we find that the con-
duct of the negotiations indicates that the Union
had not waived its right to bargain over the turkey
bonus.
As indicated, Respondent has had a long, and
until 1977 uninterrupted, practice of giving its em-
ployees Christmas turkeys. That practice continued
despite the Union's having become the certified
bargaining representative of the unit employees.
That practice continued during the term of the
1974-76 contract despite the presence of the identi-
cal zipper and concluding provisions. And that
practice continued in 1976 under the more recent
agreement despite the same zipper and concluding
provisions. Respondent's contention that the zipper
clause and other contractual provisions constitute a
waiver by the Union of its right to bargain about
the Christmas turkeys is refuted by this extensive
past practice under these varied circumstances. In
addition, that practice was such that the Union
could rely thereon in not seeking to protect its
rights by contract.
For the foregoing reasons, we find that the
Union has not clearly and unmistakably waived its
right to be consulted with regard to any change in
the Christmas turkey bonus. Inasmuch as a \waiver
of a statutory right is not lightly inferred, we con-
clude that, in the circumstances herein, there was
no waiver by the Union and Respondent should
have bargained with the Union prior to discontinu-
ing its established practice regarding this condition
of employment. Accordingly, we find that Re-
spondent has violated Section 8(a)(5) and (1) of the
Act by unilaterally discontinuing giving unit em-
ployees this benefit.
CONCUSIONS 01 L.Aw
1. Respondent is an employer engaged in com-
merce 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 representing the
appropriate unit of:
All production and maintenance employees of
Respondent at its Middletown division plants
at Middletown, Ohio, including plant clerical
employees and truck drivers, but excluding all
office clerical employees, technical employees,
and professional employees, guards and super-
visors as defined in the Act.
3. 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.
4. By unilaterally, without notification to or con-
sultation with the Union, discontinuing its estab-
lished practice of giving annually to each of the
employees in the above unit a 14-16 pound turkey
shortly before Christmas, Respondent has violated
Section 8(a)(5) of the Act.
5. By its refusal to bargain Respondent has inter-
fered with. restrained, and coerced its employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act and thereby has violated Section
8(a)(l) of the Act.
6. The foregoing unfair labor practice affects
commerce within the meaning of Section 2(6) and
(7) of the Act.
THI- REMIEDY
Having found that Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(5) and (1), we shall order that it cease and
desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act
including, upon request, to bargain collectively
with the Union as the exclusive representative of
unit employees about the Christmas turkey bonus.
As Respondent's unfair labor practice consists of
unilaterally discontinuing giving its unit employees
Christmas turkeys, a bonus constituting an estab-
lished benefit of employment, we shall order Re-
spondent to make the employees whole for the loss
265
I)ECISI()NS OF NAII()NAL .ABO()R RELATIONS BOARD
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). 4 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 turkey 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,
Aeronca, Inc., Middletown, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally, without notification to or bar-
gaining with Local Lodge 2535 of District Lodge
13 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, discontinuing
its past practice of giving annually to each of its
unit employees a 14- to 16-pound turkey shortly
before Christmas.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their right to self-organization, 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 purpose of mutual aid or protection, as guaran-
teed in Section 7 of the Act, or to refrain from any
and all such activities.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good
faith with the Union as the exclusive collective-bar-
gaining representative of the employees in the ap-
propriate bargaining unit with respect to any
change in the practice of giving the Christmas
turkey bonus to unit employees.
(b) Make whole its unit employees, with interest,
for any losses they may have suffered by Respond-
ent's unlawful and discriminatory discontinuance of
the Christmas turkey bonus, in the manner set forth
in the section of this Decision entitled "The
Remedy."
(c) Reinstate the Christmas turkey bonus for unit
employees.
(d) Post at its facility in Middletown, Ohio,
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
See, generally. Ii Phing & fleating Co., 138 N.RH 716 (1962)
In the event that this Order is enfiorced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted By
Ordel f the National Labior Relations Board" shall read "Posted 'ursu-
ant to a Judgment of the nited States Court of Appeals Lnforcing an
Order of the National Labor Relations Hoard"
Regional Director for Region 9, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
eluding all places where notices to employees are
customarily posted. Reasonable 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 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MIEMBIER PENI1 LO, concurring:
I agree with the majority, but for different rea-
sons, that deferral is inappropriate because the arbi-
tration award is clearly repugnant to the purposes
and policies of the Act. As I would find the award
repugnant on a narrower, more restricted basis
than the majority, and as I have often disagreed
with them over the application of Spielberg Manu-
Jacturing Company, 112 NLRB 1080 (1955), 1 am
concurring separately.
As fully set forth by the majority, the issue
herein is whether Respondent violated the Act by
unilaterally ceasing to give employees an annual
Christmas turkey bonus. The matter was taken
through the contractual grievance procedure to ar-
bitration. The arbitrator permitted the parties to
fully develop their positions, and all issues, includ-
ing the unfair labor practice issue, were presented.
There was no dispute before the arbitrator that the
Employer had given Christmas turkeys to its em-
ployees for a number of years or that the Employ-
er discontinued giving turkeys in 1977. In dispute
was whether the Employer acted properly and
what was the effect of the contractual zipper clause
(i.e., a provision that the contract is complete and
the parties waive the right to bargain over any-
thing contained or not contained in the contract).
In conclusion, the arbitrator rejected the Union's
contention that the turkey bonus was a benefit and
past practice on the grounds that the contract con-
tained a zipper clause and did not contain a mainte-
nance-of-benefits clause.
As is evident, the arbitration proceedings were
fair and regular and all parties alw-eed to be bound
by the proceedings. Howeve' in my view the
award does not meet the Spioiuerg, test for repug-
nancy solely because the arbitrator reached a result
wholly at odds with Board law. Although a zipper
clause in certain circumstances may constitute a
bargaining waiver,6 such a clause does not waive
the right to bargain over employment benefits
6 See, e.g, Radioear. Inc., 214 NLRB 362 (19741
260
AERONCA, INC
given under the very same zipper clause. As the
Employer continued to give turkeys to employees
in the face of the contractual zipper clause, that
clause cannot, as a matter of law, constitute a
waiver with respect to the turkey bonus. By find-
ing a waiver in these circumstances, the arbitrator
has in effect found that the Employer does not
have to bargain with the Union over terms and
conditions of employment, a finding clearly repug-
nant to the fundamental purpose of the Act to pro-
mote industrial peace through bargaining.
For the above reasons I agree with the majority
that deferral is inappropriate herein and that the
proceeding is properly before the Board for deci-
sion. On the merits, I agree with the results, ration-
ale, and remedy in the majority decision and join
my colleagues in finding that Respondent violated
the Act as alleged.
APPENDIX
NoTICFl To E1PIpOX.yi iS
'OSTIEI) BY ORI)IR 01 I HE
NAIIONA I LBOR RilI.,VIONS BOARD
An Agency of the United States Government
The Act gives employees 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.
Wl WIll. NOI refuse to bargain with Local
Lodge 2535 of District Lodge 13 of the Inter-
national Association of Machinists and Aero-
space Workers, AFL-CIO, by unilaterally,
without notification to or consultation with the
Union, discontinuing our past practice of
giving Christmas turkeys to unit employees.
WL Wtll I Nr in any like or related manner
interfere with, restrain, or coerce our employ-
ces in the exercise of their rights mentioned
above.
Wi. w1i.i, upon request, bargain with the
above-named Union with respect to the prac-
tice of giving Christmas turkeys to unit em-
ployees.
WF Wit I make unit employees whole by
paying them the value of lost Christmas turkey
bonuses with interest.
WI! wtll reinstate the Christmas turkey
bonus for unit employees. The following em-
ployees constitute the appropriate unit:
All production and maintenance employees
of Aeronca, Inc., at its Middletown division
plants at Middletown, Ohio, including plant
clerical employees and truckdrivers, but ex-
cluding all office clerical employees, techni-
cal employees, and professional employees,
guards and supervisors as defined in the Act.
AI RONCA, INC.
2h7