Hawaii Newspaper Operators

National Labor Relations Board - Board Decisions

Jun 29, 1965

153 N.L.R.B. 763 (N.L.R.B. 1965)

HAWAII NEWSPAPER OPERATORS 763
handling, transporting , or otherwise dealing in any products, including material
to be photoengraved , of or for Vindicator Printing Company or any other
producer , processor , or manufacturer , or to appear in The Youngstown Vindi-
cator ; or (b) to force or require Youngstown Arc Engraving Co., or any other
person engaged in commerce or in an industry affecting commerce , to cease
doing business with Vindicator Printing Company or any other person.
AMERICAN NEWSPAPER GUILD, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
YOUNGSTOWN NEWSPAPER GUILD No. 11,
AMERICAN NEWSPAPER GUILD, AFL-CIO,
Labor Organization.
Dated- ------------------ By-------------------------------------------
(Representative ) (Title)
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.
Employees may communicate directly with the Board 's Regional Office, 720 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if
they have any question concerning this notice or compliance with its provisions.
Honolulu Star Bulletin , Inc. and Advertiser Publishing Co., Ltd.,
d/b/a Hawaii Newspaper Operators and Hawaii Newspaper
Guild, Local 117, AFL-CIO. Case No. 37-CA-327. June 29,
1965
DECISION AND ORDER
On January 14, 1965, Trial Examiner Maurice M. Miller issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision together with a supporting brief, the General Counsel
filed cross-exceptions and a supporting brief, and the Respondent filed
a brief in response to the General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
153 NLRB No. 83.
'764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted
below.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
-amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
Respondent, Honolulu Star Bulletin, Inc. and Advertiser Publishing
Co., Ltd., d/b/a Hawaii Newspaper Operators, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order.2
1 We adopt the Trial Examiner's conclusions that section 12(a) of the parties' current
collective-bargaining agreement does not relieve the Respondent of its obligation to bar-
gain concerning bonuses as a mandatory subject because section 12(a) does not show that
the Union clearly, unmistakably, and unambiguously waived its statutory right to bargain
collectively on this matter.
We do not, however, adopt the Trial Examiner's conclusion that the Respondent refused
to bargain about a bonus as of October 1, 1963 It was not until January 2, 1964, that
the Union requested , and the Respondent refused, to bargain on this subject. Accord-
ingly, we find that the Respondent refused to bargain on January 2, 1964, and thereafter,
in violation of Section 8(a)(5).
2 The telephone number for Subregion 37, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read. Telephone No 588-797.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
Upon a charge duly filed and served March 31, 1964, the General Counsel of the
National Labor Relations Board caused a complaint and notice of hearing to be
issued and served upon Honolulu Star Bulletin, Inc. and Advertiser Publishing Co.,
Ltd., d/b/a Hawaii Newspaper Operators, designated as Respondent in this report.
The complaint was issued June 26, 1964. therein, Respondent was charged with unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat 519. Within
its subsequently filed answer , Respondent conceded certain factual allegations set
forth in the complaint, but denied the commission of any unfair labor practice.
Pursuant to notice , a hearing with respect to the issues was held at Honolulu,
Hawaii, on July 27, 1964, before Trial Examiner Maurice M Miller. The General
Counsel and Respondent were represented by counsel. Each party was afforded a full
opportunity to be heard , to examine and cross -examine witnesses, and to introduce
evidence pertinent to the issues . Before any testimony was heard , the General Coun-
sel's motion to amend the complaint with respect to certain minor textual matters was
granted Since the hearing's close, briefs have been received from counsel for the
General Counsel and Respondent; these have been duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evidence received, and my obser-
vation of the witnesses , I make the following findings of fact:
1. THE BUSINESS OF RESPONDENT
Throughout the period with which this case is concerned, Honolulu Star Bulletin,
Inc. and Advertiser Publishing Co., Ltd., have been Hawaii corporations, with their
principal offices and places of business located in Honolulu, Hawaii. Both corpora-
tions have functioned, and presently function , as an integrated enterprise , doing busi-
ness under the name and style of Hawaii Newspaper Operators ; they constitute a
single employer within the meaning of Section 2(2) of the statute. This business
entity, designated the Respondent within this Decision , is engaged in the publication,
printing , sale, and circulation of two daily newspapers , known as the Honolulu Star
Bulletin and Honolulu Advertiser, respectively.
HAWAII NEWSPAPER OPERATORS 765
During the calendar year which preceded the complaint's issuance , respondent
enterprise-in the course and conduct of its business operations-received gross reve-
nues in excess of $500,000 derived both from sales of advertising and newspapers;
further, Respondent purchased goods and interstate news services valued in excess of
$50,000 directly from points and places located outside the State of Hawaii.
Upon the complaint's jurisdictional allegations, which are conceded to be correct,
I find that Respondent is now, and at all times material has been, an employer within
the meaning of Section 2(2) of the Act, engaged in commerce and business activities
which affect commerce within the meaning of Section 2(6) and (7) of the Act, as
amended. With due regard for the jurisdictional standards which the Board presently
applies-see Siemons Mailing Service, 122 NLRB 81, and related cases-I find
assertion of the Board's jurisdiction in this case warranted and necessary to effectuate
statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
Hawaii Newspaper Guild, Local 117, AFL-CIO, which will be designated the
Union within this Decision , is a labor organization within the meaning of Section
2(5) of the Act, as amended , which admits certain of Respondent 's employees to
membership.
III. THE UNFAIR LABOR PRACTICES
A. Facts
1. Background
a. Contact history
Before June 1, 1962, the Honolulu Star Bulletin and Honolulu Advertiser were
published separately; the former was published as an afternoon daily, while the latter
was distributed as a morning daily newspaper. Both newspapers, however, published.
competitive Sunday morning editions, prior to the date designated. On June 1 Hono-
lulu Star Bulletin, Inc. and Advertiser Publishing Co., Ltd., d/b/a Hawaii Newspaper
Operators, (HNO), was formed as a new legal entity for the purpose of publishing,
printing, circulating, and selling both newspapers; thereafter HNO continued to pub-
lish the Advertiser as a morning newspaper, and distributed the Star Bulletin as an
evening daily, but combined their Sunday morning publications. Most of their pro-
duction facilities-with each newspaper's editorial department possibly the sole excep-
tion, so far as the record shows-were likewise combined. A new business entity,
Hawaii Newspaper Agency (HNA) with no more than three managerial employees,
was formed to direct the newly combined facilities.
Before their consolidation, Hawaii Newspaper Guild, Local 117, AFL-CIO, had
negotiated collective-bargaining contracts, separately, with the Star Bulletin and
Advertiser; these had covered, inter alia, the advertising department staffs for each
designated newspaper. Both contracts had March 31, 1963, termination dates. On
July 13, 1962, following the consolidation-pursuant to negotiations previously
held-representatives of the Union reached and signed a consensual "interim" con-
tract with spokesmen for the Star Bulletin, Advertiser, and Hawaii Newspaper
Operators, whereby-with respect to covered joint facility operations thereafter-
provisions of the Star Bulletin contract then current would be "deemed incorporated
into a separate agreement" to be "continued in full force and effect" presumably for
the rest of its stated term, subject to certain modifications not now material. These
commitments with regard to the provisions of the Star Bulletin contract then current
were to be deemed effective, inter alia , for all workers within both newspapers'
advertising departments, covered by previously negotiated contracts, who were
scheduled for transfer to work for HNO, the new joint facility.
b. Bonus payments under prior contracts
With respect to compensation , the Union's superseded Star Bulletin and Advertiser
contracts had both provided, among other things, for minimum weekly salary sched-
ules; these schedules, however, had been coupled with provisions confirming each
publisher's right to pay amounts which might exceed the minimums set forth.
For some years-before the developments with which this case is concerned-both
Advertiser and Star Bulletin advertising department staff personnel had been receiving
incentive bonus payments, calculated to supplement their contractually designated or
negotiated salary rates, for productive efforts deemed worthy of such compensation
pursuant to various bonus plans.
For Advertiser salesmen , there had been a so-called quarterly bonus plan since
1957 continuously; though details with respect to the plan have not been provided for
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the present record, payments pursuant to its terms seem to have constituted a signifi-
cant portion of the compensation which the designated newspaper's advertising sales-
men received. Throughout the same period, however, comparable bonus payments
for Star Bulletin advertising department salesmen had been based upon a series of
plans, promulgated for specific business purposes, which had been discontinued
whenever management considered such purposes served.
When Hawaii Newspaper Operators was formed, however, the well-settled Adver-
tiser bonus plan was discontinued; likewise Respondent's new management discon-
tinued a so-called Sunday bonus plan which had been promulgated for Star Bulletin
workers prior thereto.
Testimony proffered by Respondent's general manager, which was received with-
out contradiction, reveals that no comments or protests were received, either from
Union officials or others, with respect to management's termination of these plans.
Union President Kruse, however, testified likewise without contradiction-that the
notices which the HNO management had posted and distributed to advertising depart-
ment staffers employed by the joint facility shortly after its formation, had promised
that comparable incentive bonus plans would be reinstituted, thereafter, calculated to
yield sums of money equivalent to the amounts previously received pursuant to such
plans. According to Kruse, the notice had stated that such new bonus plans, when
developed, would have a June 1962, retroactive date. With matters in their present
posture, however, determination that such a commitment with respect to retroactivity
was made cannot be considered warranted. The record does show that General
Counsel's representative-when requested to produce a copy of the notice which
purportedly contained Respondent's promises relative to bonus plans-produced a
lengthy document entitled "Hawaii Newspapers, Inc. Advertiser Staff Information
Bulletin" with a June 1 date, which was shown to Respondent's counsel. This docu-
ment, however, was never proffered in evidence. On September 19, 1962, Carl
Barrea, then Respondent's advertising sales director, promulgated-prospectively-
a so-called special bonus plan whereby HNO's retail advertising staff would receive
specified bonus payments for advertising lineage sold for the Saturday Star Bulletin,
Monday Advertiser, or both. Subsequently, during February 1963, Respondent's
management further promulgated "Proposed Bonus Plan # 1" for HNO's retail adver-
tising department. Pursuant to its terms, the department's salesmen were divided
into two teams; these teams were declared eligible to receive monthly team bonus
payments-for division among their numbers-whenever their total lineage perform-
ance bettered a specified quota. Thereafter, some 40 to 50 workers within Respond-
ent's retail advertising department received benefits pursuant to both incentive bonus
plans, in the form of weekly or monthly supplementary paychecks. Testifying with-
out contradiction, Union President Kruse estimated that these bonus payments,
normally constituted five to seven percent of each departmental staff member's earn-
ings. Kruse, himself, estimated that his average bonus payments approximated $60
monthly.
Within the notice distributed in February 1963, which described Respondent's new
monthly team bonus plan, staff members had been told that the plan might be
"revised or discontinued at any time" though HNO's management expected to main-
tain it for the first 4 months of the new year. Respondent's staff members were
advised that the plan was "designed to stimulate sales effort and increase combined
advertising lineage" but would be discontinued if it failed to accomplish that purpose.
The record shows, however, that the plan was finally maintained for something more
than 4 months, under circumstances to be noted.
2. The strike
Meanwhile-with reference to March 31, 1963, specifically-the Union's Star
Bulletin contract, which Respondent's management had committed itself to maintain
in force, subsequent to HNO's formation, for the purpose of governing joint facility
wages, hours, and conditions of work-expired pursuant to its terms Sometime
thereafter, negotiations calculated to produce a new collective-bargaining contract
began. Effective June 22, 1963, however, there was a strike, which affected Respond-
ent's joint facility operations, called by the Union herein; this strike, so the record
shows, lasted until August 2, when a settlement agreement was signed. Thereafter,
further collective-bargaining sessions, directed toward the negotiation of a new con-
tract, were presumptively resumed.
3. Subsequent developments
On August 5, 1963, Respondent's advertising staff was notified by Retail Advertis-
ing Manager Nelson that both management's previously promulgated special bonus
HAWAII NEWSPAPER OPERATORS 767
for Saturday and Monday advertising sold, and the February 1963, monthly team
bonus plan had been discontinued . Respondent promised , however, that new plans
would be presented as soon as possible.
Thereafter-beginning about a week after this notice-Union President Kruse
repeatedly queried Nelson and Barrea with respect to the status of new bonus plans,
during regular morning meetings of the sales staff. He was told, substantially, that
no new plans had yet been approved by Respondent's management. During one
morning meeting, Nelson suggested that the joint facility's advertising staff form a
committee to prepare some bonus plan "ideas" for presentation. Kruse, together with
four staff members, voluntarily formed a committee which presented two proposed
plans during their September 25 morning sales meeting. Nelson declared that they
looked "pretty good" but would have to be submitted to Frederick Brandt, then
Respondent's assistant general manager, for approval.
Testimony proffered, without contradiction by Union President Kruse, reveals
that, subsequently, he queried Barrea and Nelson at least once or twice a week with
respect to the status of the committee proposals. He was told, repeatedly, that
"nothing had been okayed yet" but that the matter of bonus plans was still being
studied.
On October 31, 1963, the Union and Respondent signed a new contract for the
joint facility, with an October 1 effective date. This contract, inter alia, covered a
group of Respondent's employees which the General Counsel's complaint designated
a unit appropriate for the purposes of collective bargaining within the meaning of
the statute The employee group in question-defined within the complaint in lan-
guage slightly at variance from that found in the contract-included:
All advertising department employees, excluding confidential secretaries, tempo-
rary employees, guards, professional employees, employees covered by other
collective-bargaining agreements, the advertising editor, advertising sales director,
retail advertising manager, general advertising manager, classified advertising
manager, advertising production manager, assistant retail advertising manager,
assistant classified advertising manager, advertising commission salesmen, classi-
fied telephone room supervisor, promotion manager, and all supervisors as
defined by the Act.
Section 12 of the new contract, which dealt with minimum salaries, contained a com-
mitment that the present salaries of employees covered thereby would not be reduced;
the contractual term "present salary" was, however, defined to mean merely the
straight-time weekly salary being paid for a workweek of 40 hours, exclusive of "pay-
ments for overtime or bonus" or any other extra payments. This provision precisely
duplicated a predecessor provision within the Union's terminated 1961-63 contract
with the Honolulu Star Bulletin, which provision had been continued in force subse-
quent to Respondent's formation, without change, pursuant to the so-called interim
contract between the parties, previously noted. Within the Union's contemporaneous
Advertiser contract-which had been terminated by consent upon Respondent's
formation-there had been a comparable proscription with respect to salary reduc-
tions for covered workers. By contractual definition, however, only "payments for
overtime or any other extra payments" had been excluded from the "present salary"
concept within the Advertiser contract; the provision in question had not, specifically,
excluded bonus payments from those "salary" payments which management had
committed itself not to reduce. Testimony proffered for the record, without contra-
diction, warrants a determination that negotiators for both parties reached their con-
sensus with respect to the provision in question without any discussion, whatever,
regarding Respondent's prior practice in promulgating and terminating bonus plans
for joint facility advertising department staffers.
During December 1963, Respondent promulgated a special "one-day" bonus plan,
designed to stimulate advertising sales for a Christmas gift guide which the Advertiser
published; so far as the record shows, this represented Respondent's only bonus plan
since the current contract's negotiation.
4. The refusal to bargain
On January 2, 1964, Union President Kruse, accompanied by Thomas Lum, the
Union's administrative officer, called upon Assistant General Manager Brandt to
question Respondent's failure to promulgate new bonus plans for advertising depart-
ment salesmen. Testimony proffered for the record by both union representatives,
without contradiction, warrants a determination that Brandt-by way of reply-first
stated his belief that a bonus payable to all Respondent's joint facility workers "includ-
ing the business office staff, janitors, and what-not" was the only sort of bonus plan
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which HNO should promulgate. The Union's spokesmen pointed out that they were
merely interested in securing Respondent 's commitment to reinstitute bonus plans
comparable to those which advertising department staffers had previously enjoyed.
To this, I find , Brandt replied, substantially, that:
... he didn't feel that the bonus plan was a negotiable item. that he felt that it
was the company's prerogative to . . . put them in or take them out whenever
they felt like it, and he didn't feel it was part of the wage structure.
Lum recalled, further, Brandt's comment that bonuses were not covered by their
current contract, which covered "everything" that was negotiable
On March 17, Kruse and Lum again called upon Brandt; Respondent's assistant
general manager, however, continued to maintain that the matter of bonus plans
was not negotiable.
With matters in this posture , Respondent 's advertising sales staff met to consider
further action; Lum was directed to write Brandt a letter requesting, specifically, that
a date be set to negotiate with respect to new bonus plans. Pursuant to this direction,
such a letter, requesting negotiations on the matter in question , was prepared and
delivered to Respondent 's assistant general manager.
On or shortly after March 25, Lum received Brandt's verbal reply. Respondent's
assistant general manager declared that his position remained unchanged, and that
union representatives could pursue whatever course they felt they must take. The
union representatives thereupon ceased their effort to bargain with respect to bonus
plans; within a week the charge which initiated the present case was filed.
B. Conclusions
1. Issue
Respondent's legal duty to bargain collectively-defined in Section 8(a)(5) and
8(d) of the statute-concededly requires its spokesmen to meet with the qualified
representative of its employees at reasonable times:
... and confer in good faith with respect to wages, hours, and other terms and
conditions of employment, ... and the execution of a written contract incorpo-
rating any agreement reached if requested by either party, . . .
With due regard for Board decisional doctrine, there can be no doubt that incentive
bonus payments-particularly when made pursuant to published plans-constitute
wage payments. Clearly, therefore, management-promulgated programs with respect
to such payments must be considered a mandatory subject for collective bargaining
within the meaning of the statutory provision noted. Skyway Luggage Co., 117
NLRB 681; Cf. General Telephone Company of Florida, 144 NLRB 311; Niles-
Bement-Pond Company, 97 NLRB 165, enfd. 199 F. 2d 713 (C A. 2); Singer Manu-
facturing Company, 24 NLRB 444, 459, 460, 470, enfd. 119 F. 2d 131 (CA. 7).
I so find. See also W. W. Cross and Company, Inc. v. N.L.R.B., 174 F. 2d 875 (C.A.
1), wherein the court declared that the statutory term "wages" was intended to
embrace at least those "amounts resulting from employment in addition or supple-
mental to `actual rates of pay"' which are in the nature of "direct and immediate
benefits flowing from the employment relationship ." Bonus payments clearly con-
stitute such benefits. So far as I can tell, Respondent 's counsel herein makes no con-
trary contention.
Respondent does contend , however , that the Union waived its right to bargain with
respect to the promulgation or discontinuance of bonus plans for the joint facility's
advertising department staff members . Such a conclusion should be considered war-
ranted-so counsel's argument runs-because the matter in question (Respondent's
claimed right to promulgate and terminate bonus plans as a matter of management
prerogative) was covered by the parties' current contract, and because union repre-
sentatives had received "actual" notice before the current contract 's execution date
that Respondent's management considered the subject one concerning which it had
unfettered discretion.
With matters in this posture , some determination would seem to be required
whether certain cited language within the current contract, or conduct chargeable to
union representatives prior to the contract 's execution , should be considered sufficient
to relieve Respondent from a statutory duty to bargain regarding the formulation,
modification , or termination of bonus plans.
HAWAII NEWSPAPER OPERATORS 769
2. Discussion
This Board has recognized that-with certain circumstances present-the statutory
right of a union to bargain about changes in terms of conditions of work may be
considered waived. Waiver or relinquishment of a statutory right, however, will
never be inferred lightly. Cf. C. & C. Plywood Corporation, 148 NLRB 414 Such
a relinquishment, to be effective, must be clear and unmistakable. The Timken
Roller Bearing Co. v. N.L R B., 325 F. 2d 746 (C.A. 6); Proctor Manufacturing
Company, 131 NLRB 1166, 1169. As the Board stated in the last-cited case
The Board's rule, applicable to negotiations during the contract term with
respect to a subject which has been discussed in precontract negotiations but
which has not been specifically covered in the resulting contract, is that the
employer violates Section 8(a)(5) if, during the contract term, he refuses to
bargain or takes unilateral action with respect to the particular subject, unless it
can be said from an evaluation of the prior negotiations that the matter was
"fully discussed" or "consciously explored" and that the Union "consciously
yielded" or clearly and unmistakably waived its interest in the matter.
Compare The Press Company, Incorporated, 121 NLRB 976, 978, within which the
Board had previously defined its position in practically identical terms. With this
basic decisional doctrine clearly determinative, then, consideration must be given
Respondent's contentions.
Counsel for Respondent has suggested that section 12(a) of the Union's current
contract-since it proscribes "present salary" reductions by the joint facility, but
specifically excludes bonuses from the contractual "present salary" definition-nega-
tively implies Respondent's right to terminate or reduce bonuses. Testimony prof-
fered by General Manager Brandt reflects his contention that Respondent herein-
like its Honolulu Star Bulletin, Ltd., predecessor-had construed section 12(a) as a
license to promulgate and discontinue bonus plans for advertising department staff
members at will. This contention, however, whatever its merit, cannot carry a further
contention that Respondent was free to take such action within its sole discretion.
With due regard for the "natural significance" of the contractual language under
consideration, I have not been persuaded that union representatives, through their
concurrence regarding such language, had consciously yielded, or "clearly and unmis-
takably" waived, their right to bargain with respect to bonus plans. Reasonably con-
strued, the contractual language certainly reflects no such conscious waiver; though
Respondent's right to reduce bonus payments or terminate specific bonus plans during
the contract's term may be necessarily implied, nothing within the provision shows
any "clear and unmistakable" relinquishment of the Union's statutory right to bargain
with respect to the development and promulgation of bonus plans, or the correlative
right of union spokesmen to be heard with respect to their proposed modification or
discontinuance. Stating the matter differently, Respondent's current contract con-
tains no provision which specifically grants it the right to promulgate, modify, or
terminate bonus plans unilaterally, or which binds the Union not to request negotia-
tions regarding bonus payments during the contract's term. Without such a provi-
sion, Respondent cannot contend legitimately that management's prerogative with
respect to bonus matters was "covered" within the contract in question. Cf. Leroy
Machine Co., Inc., 147 NLRB 1431. This Board has frequently held that the duty
to bargain-which the statute prescribes for both employers and worker representa-
tives-is a continuing one; consistently, parties to a contract have been held obligated
to discuss any bargainable subject upon request, unless their agreement with respect
to that subject has been reduced to writing, or unless they have agreed in writing not
to bargain about it during their contract's term. The Jacobs Manufacturing Coin-
pany, 94 NLRB 1214, 1221, enfd. 196 F. 2d 680 (C.A. 2). Certainly, section 12(a)
of the current contract, on its face, merits no such sweeping construction.
Conceivably, testimony sufficient to warrant a determination that-during their
1963 negotiations-representative of the parties "fully discussed or consciously
explored" management's claimed prerogative with respect to the promulgation or
termination of bonus plans, and that union spokesmen "consciously yielded or clearly
and unmistakably waived" their constituency's interest with respect to such plans,
could sustain a conclusion that section 12(a) of their contract, despite its textual
limitations, reflected a consensus that management would retain complete discretion
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770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to bonus payments. No such testimony, however, can be found in the
record. Respondent, rather, has conceded that questions regarding the scope of
managerial prerogative with respect to bonus plans were neither raised nor discussed
during the negotiations in question. When queried with respect to prior negotiations
which had produced the so-called interim contract between the Union and Respond-
ent's newly formed joint facility, General Manager Brandt testified, categorically, that
there had been no discussion, then, with respect to the difference between section
12(a) of the predecessor Star Bulletin contract, which the negotiators had agreed to
reconfirm, and the comparable Advertiser contract section, which they permitted to
lapse. Management made no claim, then, that section 12(a)'s mere specification of
bonus payments as excluded from the contractual "salary" concept should be con-
strued as recognition that Respondent would have complete discretion with respect to
the promulgation, modification, or discontinuance of bonus plans; nor did union
spokesmen express a contrary view. During the discussion which preceded negotia-
tion of their subsequent 1963 contract, record testimony clearly shows bonus plans
were likewise never mentioned. Accordingly, no waiver of the Union's statutory
right to insist on bargaining with respect to the question can be found on the facts of
this case.
Contrary to Respondent's contention, the Board's decision in Tucker Steel Corpora-
tion and Steel Supply Company, 134 NLRB 323, fails to support its position.
True, that case-like the present one-did concern an employer who had deter-
mined bonus payment questions within his discretion for a considerable period of
time, without being confronted with demands from his workers' bargaining repre-
sentative regarding bonus amounts payable, the manner of their computation, or their
mode of payment This fact, however, was not considered determinative when the
Board concluded that the union, therein, was equitably estopped from asserting its
statutory right to bargain with respect to discontinuance of a bonus plan The sub-
ject matter of the bonus had been raised, specifically, during bargaining negotiations,
and the employer had suggested the possibility that bonus payments then being made
might be unilaterally terminated if the union's demand for broader vacation benefits
was met. Further, Tucker's workers. particularly the union steward, had been told,
thereafter, that the bonus would be discontinued. Nevertheless, union spokesmen had
remained silent in the face of such statement; they had signed a collective-bargaining
contract without protest, subsequent to the firm's unilateral bonus termination.
By way of contrast, herein, management had notified the joint facility's advertising
department staff members-when their bonus plans, promulgated prior to the consoli-
dation, were discontinued shortly after HNO's formation-that new bonus plans,
calculated to yield substantially equivalent returns, would shortly be instituted. This
promise regarding the prospective institution of new bonus plans-whether or not
such plans were, really, calculated to yield returns substantially equivalent to those
which departmental staff personnel had previously received-had been kept. Further,
when Respondent's management later posted and distributed their August 5 notice
that HNO's Saturday-Monday and monthly team bonus plans were terminated, new
plans were once more promised as soon as possible. With matters in this posture,
union quiescence with respect to Respondent's course of conduct cannot, legitimately,
be found sufficient to equitably estop union spokesmen from pressing its statutory
right to bargain, thereafter, regarding management's formulation and promulgation
of bonus plans. General Telephone Company of Florida, 144 NLRB 311, 314-315.
Management's reassurances, voluntarily proffered, regarding the prospective presenta-
tion of new plans-while contract negotiations were pending-must, contrariwise, be
considered sufficient to preclude Respondent's alliance upon the Union's failure to
request contract negotiations on the subject as a concession that bonus plans, there-
after, would be considered within the sphere of managerial prerogative
Counsel for Respondent suggests-consistently with a dictum proffered by the
Trial Examiner in the Tucker Steel case-that the Union's position and conduct, when
confronted with HNO's August 5 notice, was "so unreasonable or illogical" that it
compels a conclusion that spokesmen for the organization had "consciously yielded"
their constituency's rights. This contention, however, likewise fails to persuade.
Taken as a whole, the present record will not sustain a determination that union
spokesmen maintained silence with respect to their claimed right to bargain on bonus
matters, despite "actual notice" that Respondent's management considered such
matters within their discretion.
General Manager Brandt did testify that he was "certain" the Union's international
representative-who had participated in the negotiations which produced the so-
called interim contract-had recognized the significance of section 12(a) within the
HAWAII NEWSPAPER OPERATORS 771
'Star Bulletin contract as permitting Respondent's abrogation of bonus plans within
its sole discretion; no specific verbal or written representations chargeable to union
spokesmen were cited, however, to buttress his claimed certainty. Brandt testified,
further, that he "thought" the Union's local representatives had known his position
with respect to the significance of the contractual language in question for quite some
time. When queried with respect to when his views had been communicated to such
union representatives, however, Respondent's general manager conceded that he had
had no discussions on the subject with union spokesmen until "around" the first of
"this" year, clearly, his reference was to their January 2, 1964, talk. Testimony by
Union President Kruse that he "might have" spoken to Brandt, prior to their new con-
tract's execution, regarding prospects for the promulgation of a new bonus plan, falls
short of a concession that Brandt's views iegarding management's claimed prerogative
within this field were stated during any such conversation. With matters in this
posture, Respondent can hardly claim, persuasively, that union spokesmen were on
notice, before their new contract was signed, that Respondent's management con-
sidered bonus matters committed to their sole discretion. True, union representatives
filed no protests with respect to Respondents' 1962-63 decisions to discontinue pre-
viously promulgated bonus plans. Their mere discontinuance, however, could not
reasonably be considered "notice" with respect to Respondent's belief that bonus plan
questions were matters of management prerogative; counsel's contrary contention
must be rejected. And-since union silence regarding these joint facility decisions
clearly reflects nothing more than a willingness to wait for promised bonus plans-
such silence cannot, legitimately, compel a conclusion of waiver with respect to their
negotiability.
3. Conclusion
With matters in this posture, Respondent's conceded refusal to bargain with respect
to the formulation and reinstitution of incentive bonus plans for advertising depart-
ment staff members, since October 1, 1963, specifically, must be considered a refusal
to bargain in derogation of its statutory duty.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The course of conduct chargeable to Respondent, set forth in section III, above-
since it occurred in connection with the business operations of Respondent set forth
in section I, above-has a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and, absent correction, would tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent engaged in and continues to engage in
certain unfair labor practices, it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action, includ-
ing the posting of appropriate notices, designed to effectuate the policies of the Act,
as amended.
Respondent's course of conduct, however, cannot reasonably be found revelatory
of any pervasive attitude of opposition to the purposes of the statute, with respect to
the protection of employee rights in general. With matters in their present posture,
no broad order seems warranted. My recommendation, therefore, will be that
Respondent merely be ordered to cease and desist from any continued refusal to bar-
gain with the Union regarding the promulgation, modification, or termination of
bonus payment plans, and that it be further ordered to cease and desist from inter-
ference with, restraint, or coercion of employees in any like or related manner.
In the light of certain factual concessions within Respondent's answer, the fore-
going findings of fact, and upon the entire record in this case, I make the following-
CONCLUSIONS OF LAW
1. Honolulu Star Bulletin Inc. and Advertiser Publishing Co., Ltd., d/b/a Hawaii
Newspaper Operators, is an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect commerce within the mean-
ing of Section 2(6) and (7) of the Act, as amended.
2. Hawaii Newspaper Guild, Local 117, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act, as amended, which admits certain employees
of Respondent to membership.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All of Respondent's advertising department employees, excluding confidential
secretaries, temporary employees, guards, professional employees, employees covered
by other collective-bargaining agreements, the advertising editor, advertising sales
director, retail advertising manager, general advertising manager, classified advertis-
ing manager, advertising production manager, assistant retail advertising manager,
assistant classified advertising manager, advertising commission salesmen, classified
telephone room supervisor, promotion manager, and all supervisors as defined by the
Act, constitute a unit appropriate for the purposes of a collective bargain, within the
meaning of Section 9 (b) of the Act, as amended
4. At all times material herein, subsequent to October 1, 1963, the Union has been
entitled to recognition as the exclusive representative of Respondent's employees,
within the unit described above, pursuant to the provisions of Section 9(a) of the
Act, as amended, for the purpose of collective bargaining with respect to their rates of
pay, wages, hours of work, and other terms and conditions of their employment.
5. By its refusal to negotiate with union representatives, since October 1, 1963, with
respect to the formulation and reinstitution of incentive bonus plans for employees
within the bargaining unit previously described, Respondent refused to bargain with
the Union in good faith; thereby, Respondent engaged in and continues to engage in
unfair labor practices affecting commerce within the meaning of Sections 8(a)(1)
and (5) and 2(6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that Respondent, Honolulu Star Bulletin, Inc and
Advertiser Publishing Co., Ltd., d/b/a Hawaii Newspaper Operators, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Further refusal to bargain collectively with Hawaii Newspaper Guild, Local
117, AFL-CIO, as the exclusive representative of its employees within the bargain-
ing unit herein found appropriate, with respect to the formulation and reinstitution
of incentive bonus plans for Respondent's employees within such unit.
(b) Interference with, restraint, or coercion of employees in any like or related
manner, in connection with their exercise of the right to self-organization, to form
labor organizations, to join or assist Hawaii Newspaper Guild, Local 117, AFL-CIO,
or any other labor organization, to bargain collectively through representatives of
their own free choice, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment, author-
ized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act, as amended:
(a) Upon request, bargain with Hawaii Newspaper Build, Local 117, AFL-CIO,
with respect to the formulation and reinstitution of incentive bonus plans for Respond-
ent's employees within the unit herein found appropriate for the purposes of a col-
lective bargain, and, if requested by said Union, execute a written contract incorporat-
ing any agreement reached.
(b) Post at its principal offices and places of business in Honolulu, Hawaii. copies
of the attached notice marked "Appendix " 1 Copies of said notice, to be fuinished
by the Regional Director for Region 20, as the Board's agent, shall, after being duly
signed by a representative of the respondent enterprise, 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 Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(c) File with the Regional Director for Region 20, as the Board's agent, within 20
days from the date of service of this Decision, a written statement setting forth the
manner and form in which it has complied with this Recommended Order.2
1 Should the Board adopt this Recommended Order, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice. Further, should the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing
an Order" shall be substituted for the words "a Decision and Order" in said notice.
2 Should the Board adopt this Recommended Order, this provision shall be modified to
read • "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
NATIONAL METAL FABRICATORS, INC . 773
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL bargain , upon request, with Hawaii Newspaper Build , Local 117,
AFL-CIO, as the exclusive representative of all our advertising department
employees within the bargaining unit found appropriate in the Trial Examiner's
Decision , with respect to the formulation and reinstitution of incentive bonus
plans for such employees , and, if requested , we will execute a written contract
incorporating any agreement reached.
WE WILL NOT , through any course of conduct subject to proscription as a
refusal to bargain , interfere with , restrain , or coerce our employees in the exer-
cise of their right to self-organization , to form labor organizations , to join or
assist Hawaii Newspaper Guild, Local 117, AFL-CIO , or any other labor orga-
nization, to bargain collectively through representatives of their own free choice,
and to engage in other concerted activity for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activity,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized
in Section 8(a) (3) of the Act, as amended.
HONOLULU STAR BULLETIN , INC. AND ADVERTISER PUBLISHING CO.,
LTD., D/B/A HAWAII NEWSPAPER OPERATORS,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate with the Board 's Subregional Office, 680 Ala Moana
Boulevard , Honolulu , Hawaii, Telephone 58831, Extension 408, if they have any
question concerning this notice or compliance with its provisions.
National Metal Fabricators , Inc. and Roy Eugene Barnett and
Roy W. Barnett . Cases Nos. 9-CA-3202-1 and 9-CA-3202-2.
June 29, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Fanning, Brown,
and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
153 NLRB No. 64.